リスク＆ガバナンス法務ニュースレター（2023年10月）

¹ 本規則第3条第1項。For the purposes of this Regulation, a foreign subsidy shall be deemed to exist where a third country provides, directly or indirectly, a financial contribution which confers a benefit on an undertaking engaging in an economic activity in the internal market and which is limited, in law or in fact, to one or more undertakings or industries.

² 「EU域外国」は、次のとおり3類型からなるものとされています（本規則第3条第2項）。
（a）the central government and public authorities at all other levels;
（b） a foreign public entity whose actions can be attributed to the third country, taking into account elements such as the characteristics of the entity and the legal and economic environment prevailing in the State in which the entity operates, including the government’s role in the economy; or
（c）a private entity whose actions can be attributed to the third country, taking into account all relevant circumstances.

³ 「補助金」となり得る「資金的貢献」には、次の3類型が想定されています（本規則第3条第2項）。
（a）the transfer of funds or liabilities, such as capital injections, grants, loans, loan guarantees, fiscal incentives, the setting off of operating losses, compensation for financial burdens imposed by public authorities, debt forgiveness, debt to equity swaps or rescheduling;
（b）the foregoing of revenue that is otherwise due, such as tax exemptions or the granting of special or exclusive rights without adequate remuneration; or
（c）the provision of goods or services or the purchase of goods or services.

⁴ 本規則第20条第5項は、controlについて以下のとおり規定しています。
Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
（a）ownership or the right to use all or part of the assets of an undertaking;（b）rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.

⁵ 実施規則（Implementing Regulation （EU）2023／1441）のANNEX Iのnote 7において「According to Article 20（3）, point （a）of Regulation （EU） 2022／2560, it is necessary that at least one of the merging undertakings, the acquired undertaking or the joint venture is ‘established in the Union’. ‘Established in the Union’ must be understood in accordance with the case law of the Court of Justice and includes the incorporation of a subsidiary in the Union, as well as a permanent business establishment in the Union（see judgments in cases C-230／14 Weltimmo, paragraphs 29, 30; C-39／13, C-40／13 and C-41／13 SCA Group Holding and Others, paragraphs 24, 25, 26, 27; and C-196／87 Steymann, paragraph 16）.」とされています。

⁶ 本規則第5条は、歪曲的効果が最も高いとされる類型を次の通り列挙しています。
A foreign subsidy is most likely to distort the internal market where it falls under one of the following categories:
（a）a foreign subsidy granted to an ailing undertaking, namely an undertaking which will likely go out of business in the short or medium term in the absence of any subsidy, unless there is a restructuring plan that is capable of leading to the long-term viability of that undertaking and that plan includes a significant own contribution by the undertaking;
（b）a foreign subsidy in the form of an unlimited guarantee for the debts or liabilities of the undertaking, namely without any limitation as to the amount or the duration of such guarantee;
（c）an export financing measure that is not in line with the OECD Arrangement on officially supported export credits;
（d）a foreign subsidy directly facilitating a concentration;
（e）a foreign subsidy enabling an undertaking to submit an unduly advantageous tender on the basis of which the undertaking could be awarded the relevant contract.

⁷ 歪曲的効果の有無は、諸般の事情に基づき認定されるものですが、本規則第5条第1項（前掲注5参照）に掲げられる補助金は歪曲的効果が最も高いとされています。

⁸ 措置の具体的な例としては次のものが挙げられています（本規則第7条第4項）。
Commitments or redressive measures may consist, inter alia, of the following:
（a）offering access under fair, reasonable, and non-discriminatory conditions to infrastructure, including research facilities, production capabilities or essential facilities, that were acquired or supported by the foreign subsidies distorting the internal market unless such access is already provided for by Union legislation;
（b）reducing capacity or market presence, including by means of a temporary restriction on commercial activity;
（c）refraining from certain investments;
（d）the licensing on fair, reasonable and non-discriminatory terms of assets acquired or developed with the help of foreign subsidies;
（e）the publication of results of research and development;
（f）the divestment of certain assets;
（g）requiring the undertakings to dissolve the concentration concerned;
（h）the repayment of the foreign subsidy, including an appropriate interest rate, calculated in accordance with the method set out in Commission Regulation（EC）No 794／2004（20）;
（i）requiring the undertakings concerned to adapt their governance structure.

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