While the ‘foreign subsidy’ concept is among the key concepts delineating the scope of the Foreign Subsidies Regulation (FSR), the exact interpretation of its various cumulative elements is unclear. The preamble of the FSR suggests that inspiration should be drawn from EU State aid law, while the wording employed in the definition itself points towards World Trade Organisation (WTO) subsidy law. To attain more clarity on the degree to which the FSR’s definition of a ‘foreign subsidy’ should draw from each of these legal regimes, this article provides a comparative analysis of the relevant contents of these three legal regimes. The article proposes concrete interpretational frameworks per definitional element, and against that background reflects, where relevant, on the Commission's recently unveiled approach in its first Phase II commitment decision under the FSR. Various roles are attributed to EU State aid law and WTO subsidy law so as to preserve the consistency of EU law and provide undertakings operating in the EU with more legal certainty regarding their obligation under the FSR to notify their economic engagements with third countries.
Common Market Law Review