A Critical Analysis of the EU’s Eclectic Foreign Subsidies Regulation: Can the Level Playing Field Be Achieved?

At the end of 2022, the European Union (EU) adopted the EU Regulation on Foreign Subsidies Distorting the Internal Market (Foreign Subsidies Regulation). The regulation is intended to counter the distortive impacts on the EU market arising from foreign subsidized investments and other economic activities. Allegedly, the regulation seeks to ensure a level playing field within the EU, namely to subject foreign investments and economic activities to subsidy controls comparable with the level provided by EU State aid law. This article critically assesses the Foreign Subsidies Regulation and demonstrates that, by drawing upon rules in differing legal schemes, the Regulation departs from EU State aid law. More importantly, the disparities might result in heavier procedural and substantive burdens for foreign investors, rendering it difficult for the EU to fulfil its promise of a level playing field. Finally, the article contends that, in the context of cross-border subsidy control, the normative argument of a level playing field is empty and precarious. Cross-border subsidy regulation is concerned with curtailing the adverse effects of a foreign subsidy rather than creating a level playing field for all. © 2023 Kluwer Law International BV, The Netherlands.