13 January 2026

New guidelines for the Foreign Subsidies Regulation

13 January 2026

On Friday, January 9, 2026, the European Commission published the guidelines associated with the Foreign Subsidies Regulation (“FSR”). In these guidelines, the European Commission clarifies various concepts in the FSR and explains the application of the FSR. This publication marks another step in making the FSR review process transparent. 

Foreign Subsidies Regulation – how was it again?

On July 12, 2023, the FSR became applicable. The FSR allows the European Commission to address distortions caused by foreign subsidies. The aim is to create a level-playing-field between all (EU and non-EU) companies operating within the EU.

In a nutshell, the FSR contains three procedures:

  • A reporting requirement for transactions involving subsidies given by third countries. This notification requirement applies if the target company, one of the merging parties or the joint venture has an EU turnover of at least EUR 500 million and these companies have received subsidies from third countries totaling more than EUR 50 million in the three years prior to the conclusion of the purchase agreement;
  • A notification requirement for procurement involving subsidies from third countries. This notification requirement applies if the estimated contract value is at least EUR 250 million and the tenderer has received more than EUR 4 million in subsidies from third countries in the three years prior to the notification; and
  • An ex-officio procedure by the European Commission, in which the European Commission launches an investigation on its own initiative.

Since coming into force, the European Commission has launched a few investigations and has completed very few investigations as well as published decisions. As such, these guidelines, which the European Commission needed to draft according to the FSR, are also timely. They give (foreign) parties more legal certainty about their legal position under the FSR.   

On what issues do the FSR guidelines provide more clarity?

The comprehensive guidelines (48 pages) explain many parts of the FSR. A few points to highlight are the following:

  • The assessment of market distortions caused by subsidies from third countries. The guidelines clarify that when the European Commission has concluded that a company has benefited from a foreign subsidy, the European Commission determines whether market distortion has occurred in two steps. First, the Commission examines whether the foreign subsidy strengthens the firm’s position in the EU market. Second, the European Commission examines the impact of the subsidy on competition in the market. In doing so, the European Commission analyzes whether the subsidy is responsible for a change in the company’s behavior and market dynamics to the detriment of other market parties.
  • Assessment in tenders. The European Commission also provided further clarification on how it will assess market distortions caused by subsidies in tenders. In doing so, the European Commission will first examine whether the company adjusted the tender as a result of the subsidy. If so, the European Commission will assess whether the tender is unduly advantageous by comparing it with other comparable tenders and assessing the tender by comparing the conditions with the contracting authority’s own estimates.
  • The balancing test. The balancing test can be applied by the European Commission on a grant-by-grant basis and takes into account the specific circumstances of the case. The guidelines explain how to weigh positive effects of a subsidy versus negative effects of a subsidy. In doing so, the European Commission will include only the positive effects that are specific to the subsidy. The test will also include the severity of the market distortion and the positive effects without the market distortion.
  • An ex-officio investigation. The European Commission has provided more clarity in the guidelines on when it will initiate an ex-officio investigation. In doing so, the guidelines provide so-called safe harbor thresholds: for procurement procedures with a low value, subsidies under EUR 4 million and subsidies aimed at special circumstances (such as natural disasters), the European Commission will not start an investigation.

What does this mean for your company?

With the publication of these FSR Guidelines, the European Commission is taking the next step in the development of the FSR. These guidelines give companies and contracting authorities more clarity on how the European Commission assesses notifications. Importantly, the European Commission is also introducing safe harbor thresholds that will allow companies and contracting authorities to be more certain that the European Commission will not start an investigation. This will increase legal certainty.

Do you have questions about the FSR or the guidelines discussed above? Please contact Arnout Koeman or Monika Beck or one of our other FSR and procurement law specialists.

Author
A. A. (Arnout) Koeman

Attorney at Law

View specialist
Author
M.C.B. (Monika) Beck

Attorney at Law

View specialist

Articles you may also find interesting

la gro Portret-7336
Arnout Koeman
Attorney at Law
Collective action against Apple in the Netherlands: How the App Store’s ‘virtual space’ determines the competent court
On Tuesday, 2 December 2025, the Court of Justice of the European Union (”CJEU”) ruled in the case of Stichting Right to Consumer Justice and Stichting App Store Claims v. Apple. In this case, the plaintiffs claim that Apple abused its dominant position by retaining a 30% commission on purchases made through the App Store. According to the plaintiffs, this caused damage to users. The plaintiffs brought a case before the Amsterdam District Court on behalf of all affected users of the Dutch App Store under the Dutch Mass Claims Settlements Act (“WAMCA”). However, this case raised an important question: does the Amsterdam District Court have jurisdiction to hear such a dispute, given that the affected users are spread across Amsterdam and the rest of the Netherlands? Background Pursuant to Article 7(2) of Regulation 1215/2012, a court has jurisdiction to hear a dispute if the harmful event occurred within its jurisdiction or if the damage occurred there. The Amsterdam District Court ruled that it had international jurisdiction to hear the dispute between the plaintiffs and Apple. The court determined that Apple’s abusive practices took place on Dutch territory because the App Store is specifically designed for the Dutch market and is offered in Dutch. Moreover, the damage occurred in the Netherlands: the increased prices were paid there by users with a Dutch bank account. However, the court had doubts about its territorial jurisdiction. Therefore, the court referred questions to the CJEU for a preliminary ruling. After all, there are eleven districts in the Netherlands within which different courts have jurisdiction. If Article 7(2) of Regulation 1215/2012 is strictly applied, users who suffer damage in the Netherlands because of Apple’s actions can only bring a claim before the court in the district where their damage occurred (i.e. often where they live). Such a strict approach would require the plaintiffs to file their collective claims with eleven different Dutch courts. The ruling  The CJEU stated that the NL App Store and certain apps offered there are specifically designed for the Dutch market. In addition, the language used in the Dutch App Store is Dutch. This means that the Dutch App Store constitutes a “virtual space” that can be equated with the entire territory of the Netherlands. The damage resulting from purchases made in this virtual space therefore occurred throughout the entire territory of the Netherlands, regardless of where the users concerned were located at the time of purchase. Any Dutch court that has jurisdiction to hear the dispute based on article 7(2) of Regulation 1215/2012 therefore also has territorial jurisdiction to assess the entire dispute for all users. Such centralisation of jurisdiction in a single court is in line with the objectives of Regulation 1215/2012, specifically to improve access to justice and to prevent parallel proceedings on the same dispute. Implications of the Apple ruling for collective claims This ruling facilitates access to the courts for representative entities with exclusive standing, acting on behalf of large groups of individuals. When a representative entity initiates a collective action on behalf of a sufficiently defined group that has made purchases in a “virtual space”, any court in the country in which that space is offered has jurisdiction over the entire collective claim.  Do you have any questions about the ruling discussed above or collective actions? Please contact Arnout Koeman or one of our WAMCA specialists.
Monika Beck 1
Monika Beck
Attorney at Law
ACM 2025: Digital rights, green future and fair deals
The Authority for Consumers & Markets (“ACM“) recently announced its 2025 agenda (link). This agenda outlines the regulator’s priorities and focus areas for the coming years. Among other things, the ACM wishes to get ready for the challenges of our time and has defined three focus areas in that context. There are also plans to conduct market surveys in certain sectors. In the blog below, you can read what the ACM plans to do in the coming year, and what this could mean for you. Focus points voor 2025 This year, the ACM will focus on three key societal themes. In this way, the ACM wishes to ensure the healthy functioning of the markets concerned, and protect consumers’ interests in these rapidly developing themes. This year’s focus is on: Promoting an open and fair digital economy; Accelerating the energy transition; and Developing a more sustainable economy. The focus points for 2025 are a continuation of the focus work for 2024 (link). The focus from 2024 will be further pursued by more specific and targeted actions in 2025, with a stronger emphasis on digital innovation, energy flexibility and supply chain sustainability. Digital economy The Dutch economy is becoming increasingly digitised. This brings opportunities for economic growth and innovation on the one hand, but also risks on the other. The ACM will therefore pay attention to protecting consumers, especially vulnerable groups such as minors, while promoting economic growth and innovation. Areas of focus include: More oversight of big tech companies to prevent abuse of power; Taking action against abuse, deception and manipulation in online sales and gaming; and Strengthening data protection and consumer privacy rights. Energy transition The ACM is also committed to a rapid energy transition. The ACM aims for a reliable and sustainable energy supply for all people and businesses, now and in the future. In that context, the ACM plans, among other things, to reduce grid congestion and improve flexible grid use in the coming year. In addition, the ACM will promote renewable energy sources and design new regulatory methods for grid operators for future-proof infrastructure. Sustainable economy The ACM supports the development of a sustainable economy. The focus is on ensuring a level playing field between companies and providing clarity for companies when cooperating for sustainability purposes within competition rules. The ACM also wants to ensure that consumers can trust information on sustainability provided by companies. Market research In 2025, the ACM will launch five new general market reviews. Specifically, it will look at (i) veterinary practices, (ii) (digital) learning resources, (iii) computerised consumer prices, (iv) the fixed internet budget segment and (v) the development of the hydrogen market. In this way, the ACM can look at the (dis)functioning of these markets without concrete suspicions of violations. For instance, in the veterinary practice market, the issue is that many practices have become owned by investment funds in recent years, which may have led to sharp price increases. In its market studies, the ACM will use its new “Methodology for market research” published in February 2025 (link). In this document, the ACM describes the reasons for (the selection of) market investigations and the process of market investigations. What does this mean for you? The ACM’s 2025 agenda could be significant for several parties. For companies, it is likely that increased compliance requirements will be introduced, especially in the digital sector. More enforcement can also be expected with regard to dissemination of (online) disinformation on sustainability issues or misconduct related to online sales or gaming. Furthermore, the ACM wishes to encourage a healthy market and create more opportunities for companies to realise sustainability initiatives. Consumers can also expect some change. For instance, protecting consumer rights (especially within the focus areas) is one of the ACM’s priorities, and it intends to achieve healthy markets and price formation for consumers through its market investigations. Companies active in the sectors under investigation by the ACM, can expect to receive questions from the ACM. Do you have any questions on this topic? Or do you, as a company, need support in contacting the ACM? Feel free to contact Monika Beck or one of our other specialists.