Upcoming FSR Guidelines: What to Expect
As the EU Commission continues to roll out the Foreign Subsidies Regulation (“FSR”), stakeholders across sectors are awaiting the publication of the FSR Guidelines that will shape its interpretation and enforcement.
These Guidelines, mandated under Article 46 of the FSR, will provide key clarifications on the EU Commission’s approach to foreign subsidies in mergers, public procurement, and broader market practices. The draft is expected for public consultation in July 2025, with final adoption planned by January 2026.
Objective
The Guidelines are not intended to amend the regulation itself, but to clarify how it will be applied in practice. According to Article 46 of the FSR, they must provide detailed information on:
The criteria to identify distortive subsidies;
How the Commission will conduct the balancing test, weighing distortions against positive market effects;
The use of “call-in” powers, allowing the Commission to review transactions and subsidies not formally notifiable;
The methodology for assessing foreign subsidies in public procurement procedures.
These clarifications are particularly important given the novel and cross-cutting nature of the FSR, which imports concepts from competition law, state aid control, and public procurement.
Contrary to the Commission’s guidelines in areas such as merger control or State aid, the upcoming FSR Guidelines will rely on a limited decisional practice. In both merger control and State aid, the Commission has drawn upon decades of experience and case-law. In contrast, the FSR only entered into force in mid-2023, and its implementation remains at a very early stage. To date, the Commission has published just one formal decision under the FSR — adopted on 24 September 2024 — which granted conditional approval, under the FSR, for the acquisition by Emirates Telecommunications Group Company PJSC (e&) of the non-Czech activities of PPF Telecom.
In this context, the Guidelines will play a particularly crucial role in establishing legal certainty for practitioners and companies.
Consultation process
The Commission has already conducted targeted consultations, including:
A questionnaire to all 27 Member States;
Feedback from selected stakeholders: industry associations, academics, law firms, consumer groups, and others.
On 5 March 2025, the EU Commission published a Call for Evidence seeking feedback from Member States and main stakeholders on the main objectives, scope and context of the upcoming Guidelines regarding the implementation of the FSR.
In total, 45 responses were received (available on : Foreign Subsidies Guidelines).
Stakeholders welcomed the guidance initiative, but raised concerns and requests in four key areas:
Distortion analysis: Stakeholders are calling on the EU Commission to adopt a rigorous approach when identifying distortions. They emphasize the importance of a high standard of proof, with clearer boundaries around which subsidies — such as regional aid or small-scale support — should not be presumed distortive by default. Many also stress the need for robust, economically grounded assessments tailored to different sectors, and for overall consistency with existing state aid jurisprudence and market definition;
Public procurement procedures : Stakeholders seek for a broader analytical framework that goes beyond price to include qualitative award criteria. Stakeholders request precise definitions of what constitutes a “genuinely advantageous” tender and greater clarity on when notification thresholds apply. There is also a strong call to limit the administrative burden placed on contracting authorities and economic operators, especially in low-risk or recurring scenarios.
Balancing test : Although the FSR already foresee a balancing of positive and negative effects, stakeholders request clearer guidance on its concrete application. There is also broad support for aligning this balancing exercise with existing state aid rules ;
Call-in powers : The EU Commission’s ability to “call in” transactions that fall below notification thresholds is viewed with caution. Some stakeholders advocate for a strict and exceptional use of this power, reserved for cases with strong preliminary indications of distortion. Others would welcome a more active and flexible approach — including voluntary notifications — to pre-empt risks.
What’s Next?
The draft Guidelines will be open for comment via an eight-week consultation starting in July 2025. The EU Commission will use this feedback to amend the text before presenting the revised Guidelines to the FSR Advisory Committee and Member States in September 2025.
Final adoption of the Guidelines is expected by the end of 2025.
For further information, please contact :
Bruno Lebrun - Partner - b.lebrun@janson.be
Wafa Lachguer – w.lachguer@janson.be