歐盟之扭曲內部市場外國補貼規則之研究

An Analysis on the EU Regulation on Foreign Subsidies Distorting the Internal Market

當企業受有外國政府之補貼時，該補貼利益即可能對國內市場的競爭造成負面影響，例如獲得外國政府補貼的企業，即得於國內市場上以高價策略性收購國內之重要企業，或以低價參與國內重要建設之政府採購案件等。對於此類不公平競爭的行為，歐盟境內雖設有競爭法、反補貼法、政府採購法及外資審查制度等機制，但均無法用於處理此一問題，歐盟理事會及議會遂於2022年11月28日通過了「扭曲內部市場之外國補貼規則（FSR）」藉以處理外國補貼所造成之問題。FSR主要先對外國補貼及市場扭曲加以定義，並對受有外國補貼之企業在歐盟境內市場之經濟活動進行監管，特別是從事併購及參與政府採購之行為。FSR針對上述狀況制定了三道對外國補貼之調查及處理程序，包括了執委會之職權調查程序、對併購案之外國補貼調查程序及對政府採購案之外國補貼調查程序。由於此一制度結合了國際貿易法、歐盟競爭法、國家補貼法及政府採購法等不同法律領域之概念，許多用語及要件係來自於各領域之相關規定，但因各領域對其用語之解釋及程序均不相同，也極容易形成法律解釋上之問題。故本文主要係FSR之內容進行分析研究，以期能深入瞭解此一制度之內涵、適用及影響。

Subsidies perceived as instruments of governments to spur industrialization and innovation and create economic growth in target sectors were predominantly provided only to the domestic producers, and there is no reason to confer the same benefits to foreign companies in other countries. However, accompanying the development of globalization and the growth of the global value chain, the function of subsidies has broken out of the limitation of supporting domestic industries as usual. Governments may transfer financial support to the subsidiaries and enhance their competitiveness in foreign markets, by providing low-priced products, services, or preferential loans through the state-owned enterprises. Regardless of the forms, subsidies provided by foreign governments may confer benefits to their overseas subsidiaries and use the low-cost advantages to exclude competitors in the markets of the host countries, which will impair the environment of competition in the countries’markets. Through these unfair commercial activities, subsidized enterprises also can strategically acquire important foreign enterprises and assets at higher prices in foreign markets, or participate in government procurement involving important infrastructures at an abnormally lower price. Although there are generally competition regulations, anti-subsidy laws, government procurement laws, and foreign investment review mechanisms at the domestic level, the problems caused by foreign subsidies still can’t be adequately addressed. On 28 November 2022, the Council of the European Union and the European Parliament adopted the Regulation on foreign subsidies distorting the internal market (FSR). To deal with the distortive effects caused by foreign subsidies in the Single Market, the FSR delivers the concepts of foreign subsidies, and market distortions, and establishes a general procedure of an investigation initiated by the Commission ex officio to find out the subsides at first. Secondly, it categorizes the other two models of foreign subsidies according to the different commercial activities, including the acquisition and government procurement, and provides the special review procedures separately. For the investigations, the FSR imposes the obligations of pre-notification on the participants in the cases of merger or government procurement and requires them to provide information about the amount of the subsidies they received from the third countries. The FSR also authorizes the Commission to initiate preliminary and in-depth investigations, find out the existence of the distortive foreign subsidies, and make decisions about the calibrated redressive measures to alleviate the negative effects caused by the foreign subsidies. This article attempts to analyze the initiation, the contents, the arguments, and the related issues raised by the FSR, including the consistency with the WTO Agreement.