學術研究 • ACADEMIC RESEARCH 澳大新語 • 2023 UMAGAZINE 28 54 Alexandr Svetlicinii是澳門大學法學院環球法律學系副教授，也是法學碩士學位－國際商法（英文）課程的課程 主任。他在有關歐盟對中國投資的監管處理方面的研究獲澳大跨年度研究基金、澳門歐洲研究學會亞歐比較研究 項目和澳門高等教育基金資助。 Alexandr Svetlicinii is an associate professor of Global Legal Studies in the Faculty of Law at the University of Macau (UM), where he also serves as programme coordinator of the Master of Law in International Business Law programme. His research on the regulatory treatment of Chinese investments in the European Union was supported by grants awarded by UM (Multi-Year Research Grant), the Institute of European Studies of Macau (Asia Europe Comparative Studies Research Grant) and the Macao Higher Education Fund. 「學術研究」為投稿欄目，內容僅代表作者個人意見。 Academic Research is a contribution column. The views expressed are solely those of the author(s). information including personal data; and 5) freedom and pluralism of media. Following the adoption of the EU FDI Screening Regulation, member states have accelerated the adoption and expansion of their national screening mechanisms, which creates additional regulatory burdens for foreign investors and reduces predictability concerning the screening outcomes. The application of FDI screening in the EU is of particular concern for Chinese investors who may face more stringent scrutiny in the current geopolitical climate. Furthermore, to ‘level the playing field’ in terms of subsidies that companies active on the EU internal market may receive from governments, the EU adopted the Foreign Subsidies Regulation, which entered into force in early 2023. As a result, any company active on the EU markets must disclose subsidies received from non-EU countries when it engages in mergers and acquisitions or participates in public procurement. The Commission would then determine whether such foreign subsidies could have distorting effects on the EU internal market. Chinese Investments Likely to Face Challenges The EU Competition Commissioner Margrethe Vestager noted in her speech at New York University in 2015: ‘Deng Xiaoping was famous for his saying that it doesn’t matter whether a cat is black or white as long as it catches mice. The antitrust enforcer version of this saying should be that: it doesn’t matter where the company comes from, as long as it competes— by the rules.’ Although the regulatory frameworks mentioned above are not discriminatory de jure, it is not hard to see that they may present substantial challenges to Chinese investments in Europe. challenges in the merger assessment process. For instance, the Commission encountered difficulties in ascertaining whether and how state ownership and control affect the commercial decisions by the SOEs and whether they are likely to coordinate their market conduct. Given the relatively modest presence of Chinese companies on European markets, no merger or acquisition involving Chinese firms has been prohibited under EU merger control thus far. The only notable case was the acquisition of the Swiss company Syngenta by ChemChina in 2017, where the Commission requested certain commitments to preserve competition in the pesticides and plant growth regulators market. Meanwhile, various stakeholder groups representing European industries have called for more stringent merger control that would consider industrial policies, subsidies, and the need to protect the competitiveness of European firms in global markets. These discussions accelerated in 2019, after the Commission prohibited the Siemens/Alstom merger, which was expected to create a ‘European champion’ in high-speed train manufacturing. FDI Screening and Foreign Subsidies Regulation Unwilling to ‘politicise’ the EU merger control, the Commission proposed an alternative regulatory framework—the EU Foreign Direct Investment (FDI) Screening Regulation—to protect the strategic interests of the EU and its member states. It established a coordination mechanism for the member states and the Commission to evaluate planned FDI projects for potential security risks. The following factors are considered during such screening: 1) critical infrastructure; 2) critical technologies; 3) supply of critical inputs such as energy, raw materials, and food; 4) access to sensitive
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