Opportunities for TMT companies
Unanimity will be required for the Commission to borrow the proposed funds and it is not certain that all Member States will agree to all elements of the proposals. However, France and Germany have already signaled agreement with the principle, and whilst no doubt compromises will be made, there is confidence in the Commission that consensus can be reached roughly along the lines proposed.
The proposed ERP and in particular the Recovery and Resilience Facility is unprecedented in scale and a game-changer. For the first time, the Commission will be providing very significant funds, in both grants and loans, to support investment in digital as well as green projects. Also it paves the way for accelerated and beneficial treatment in areas such as state aid approval.
The ERP brings many opportunities for TMT companies that act quickly to master the complex and new regulatory environment that underpins it and prepare their R&D pipelines and investment portfolios carefully.
All of the funds from the Next Generation EU Instrument, and the new EU budget, will be channeled through existing and new EU programs. In large part, they will aim to support the EU's goals regarding its digital transformation priorities and the 'European Green Deal'. The most important funding programs are following:
- The Recovery and Resilience Facility (new instrument) – EUR 560 billion
This fund is by far the biggest of the Next Generation EU instrument, and is the real 'game-changer' of this initiative. It will provide approximately three-quarters of the entire recovery program to support investments, mostly following the EU's funding priorities relating to the green and digital transitions. Of the EUR 560 billion, EUR 310 billion will be through grants, and EUR 250 billion will be available in loans. Every Member State will benefit, but support will be focused on those most affected by COVID-19 and in greatest need of support.
- The Cohesion Policy programs – An increase of EUR 55 billion
Between now and 2022, this will be allocated under the umbrella of the Cohesion Fund, based on where the impact of the COVID-19 crisis been most severe. This represents an increase of 15% of the proposed Cohesion program for 2014 to 2020.
- Strengthened InvestEU includes new Strategic Investment Facility
InvestEU is Europe's flagship investment program of the EIB. The Commission aims to upgrade and expand it. This includes creating within it a new Strategic Investment Facility, generating EUR 150 billion of private investments, notably linked to the digital and green transition, and 'key value chains in the internal market.'
The focus is that Member States 'need to invest in technologies that spark recovery through new innovation and clean industries'3. Funding will, therefore, be invested in projects which meet the digital single market strategy and/or the EU Green Deal – the so-called 'twin transitions.' These projects come under three main pillars outlined in President von der Leyen speech which outline existing and new investment programs to develop digital technologies.4
The following is an illustrative and non-exhaustive list of the type of projects that may attract support:
- Support for cross-industry developments to improve the EU's position in digital markets.
- Investments in Artificial Intelligence technology that develop trust and confidence with citizens, allowing greater adoption by businesses5.
- Investments in strategic digital infrastructure: supercomputers, data spaces, cybersecurity technology and skills as well as high-speed connectivity solutions (5G/6G and 'gigabit connectivity') to support digitized businesses, public services, education and research.
- Investment in technology to make European supply chains more resilient.
- Digital technology and infrastructure projects that support the Green Deal (for example in its digital strategy areas such as smart heating and data analytics that help farmers reduce the need for pesticides6). Also sustainable energy for data centres and investments in technology to support the smart circular economy.
- Further investment in next-generation batteries as part of the Horizon 2020 programme7.
European technology firms and other market participants need clarity in respect of the specific funding structures the Commission proposes to implement to make available the series of grants and loans. The ERP funding programs are, at this stage, still subject to approval by the Member States. As such, the proposal does not address in detail the structuring requirements that will be imposed.
However, as we have seen with the range of government intervention schemes implemented already on a Member State level, the Commission and Next Generation EU's approach to how this source of funds is structured and the eligibility criteria that will be imposed on companies that apply for such financial support will determine the degree to which the programs are successful.
Based on Baker McKenzie's experience across Europe in helping our clients navigate and gain access to the existing COVID-19 related funding and state aid at the Member State level, we can identify the following immediate questions that will need to be answered.
Baker McKenzie is monitoring the progress of the ERP funding programs and will provide further updates as these questions are answered and other developments arise.
Funding structure issues
- Jurisdictional Focus: how will the impact of COVID-19 be assessed when applications are made in order to determine which Member States are in need of most support?
- Sector Focus: will ERP funding be available to companies that operate exclusively within the digital or sustainable sectors only and what are the parameters of these sectors for the purposes of the ERP financing programs?
- Ownership: will the eligibility criteria exclude applicants that are ultimately owned by Non-EU Member State entities or a Member State that has not been impacted as severely?
- Funding Terms: what terms will apply to ERP funding structured as a loan (e.g., loan amount, pricing, purpose and requirement for credit support such as security or personal guarantees)?
- Further Conditionality: will ERP funding be ring-fenced within an applicant company to be applied for an agreed purpose and will dividends or other distributions by the applicant company and/or its wider corporate family be restricted?
- Regulatory Considerations: will any temporary framework or amendments to State Aid rules take into account different business models, for instance, the accumulation of losses in the early years of a Private Equity investment, to ensure that all types of firms can access the ERP funding as needed?
The Commission has proposed an amendment to the current 2014 to 2020 budget to make an additional EUR 11.5 billion in funding available already in 2020. The remainder of the funds described above will become available with the adoption of the next EU budget, normally as from 2021.
Baker McKenzie has assembled an industry-leading, cross-practice team to assist in identifying opportunities, guiding clients through the regulatory obstacles of securing funding and finance, and then delivering rapid results on the ground.
For more information, please contact a member of the team listed in the alert.
Additional contacts: Raffaele Giarda, Matthew Cox, Haden Henderson and Nick Cusack.
2 The European Commission specifies that this debt is to be repaid "over a long period of time throughout future EU budgets – not before 2028 and not after 2058".