Article 5Categories of foreign subsidies most likely to distort the internal market

1. A foreign subsidy is most likely to distort the internal market where it falls under one of the following categories:

(a)

a foreign subsidy granted to an ailing undertaking, namely an undertaking which will likely go out of business in the short or medium term in the absence of any subsidy, unless there is a restructuring plan that is capable of leading to the long-term viability of that undertaking and that plan includes a significant own contribution by the undertaking;

(b)

a foreign subsidy in the form of an unlimited guarantee for the debts or liabilities of the undertaking, namely without any limitation as to the amount or the duration of such guarantee;

(c)

an export financing measure that is not in line with the OECD Arrangement on officially supported export credits;

(d)

a foreign subsidy directly facilitating a concentration;

(e)

a foreign subsidy enabling an undertaking to submit an unduly advantageous tender on the basis of which the undertaking could be awarded the relevant contract.

2. An undertaking under investigation shall be granted the possibility to provide relevant information as to whether a foreign subsidy falling under one of the categories set out in paragraph 1 does not distort the internal market in the specific circumstances of the case.