- with readers working within the Securities & Investment industries
The final FSR Guidelines, adopted on January 9, 2026, do not expand the Commission's legal powers under the Foreign Subsidies Regulation (Regulation (EU) 2022/2560). What they do offer is a more calibrated, and more operational, statement of enforcement intent, particularly around when the Commission may require prior notification of otherwise non notifiable deals or tenders.
In Depth
Why the call in mechanism matters
The call in power is one of the FSR's most strategically important features because it allows the Commission to request a filing even where the transaction or procurement falls below the formal notification thresholds which in concentrations takes effect "at any time prior to implementation," and in procurement, "before the award of the contract."
In practice, that means the call in tool can introduce timing and deal certainty risk into situations that parties might otherwise have treated as "out of scope." It is also, by design, a tool that is hard to fully "rule out" in the abstract, because the Guidelines explicitly confirm the Commission has a margin of discretion in deciding whether to exercise it when the legal conditions are met.
Two practical "comfort points" that reduce noise
Against that background, the most eye catching development in the final Guidelines is the addition of two practical comfort points that function as de facto safe harbors for the call in mechanism.
1) The €4 million de minimis (in effect, a call in backstop)
The Guidelines state the Commission will not request prior notification where it can determine with sufficient certainty (without a filing) that the aggregate suspected foreign subsidies in the relevant three year period do not exceed €4 million, or where they meet the conditions for subsidies that are "unlikely to distort" under Article 4(4).
This matters in two ways:
- It signals that below threshold suspected subsidies should not be pulled into an ex ante review via call in if the Commission is satisfied with the fact set
- It places a premium on credible, well documented internal mapping of foreign financial contributions (FFCs) and an ability to explain why the risk sits below that de minimis line.
2) A low value procurement indicator (linked to EU procurement directive thresholds)
For public procurement, the Commission holds that bids in procedures with an estimated value below the EU procurement directive thresholds are unlikely to have the level of "impact in the Union" that would merit an ex ante call in. The practical implication: routine, smaller tenders should be less likely to attract call in attention, helpful for contracting authorities and bidders who have been worried about the risk of an FSR "surprise" on relatively low value procedures.
Is this a "softening" from the Commission?
Importantly, nothing in the Regulation changes, but it is a softening in tone and enforcement position.
The Guidelines frame "impact in the Union" as an exercise in balancing effective protection of the internal market with the need to minimise administrative burden.
Read in context, the message is that the Commission wants to reserve call ins for matters that look material; meaningful EU impact plus a credible basis to suspect subsidies that could distort competition. Put differently, the Commission is trying to reduce the fear of "random" call ins, but without giving away the tool.
Why the safe harbors are not a free pass
It's important not to over read the safe harbors. First, the €4 million point is conditional on what the Commission can determine with sufficient certainty without a notification.
That is a subtle but critical drafting choice. It means the "safe harbor" is not something companies can simply self certify into. If the Commission lacks reliable information, the comfort point may not bite.
Second, the Commission goes out of its way to preserve flexibility by spelling out that it can't commit to a hard timing cut off in procurement call ins. It says it will endeavor to limit interference by taking account of how close the award date is, but also states it is unable to set a specific time limit.
That keeps some residual uncertainty for below threshold tenders, especially where the Commission only learns of a case late in the process.
Third, the Guidelines list a series of risk factors that can still justify a call in even where a case is below thresholds. In assessing whether a case merits ex ante review, the Commission highlights, among other things:
- Strategic or important sectors / assets, including critical infrastructure and innovative technologies
- Patterns of acquisitions, investments, or procurement participation that build influence or economic presence over time
- The fact that the Commission has previously adopted an FSR decision (or opened an in depth investigation) involving the same or related undertakings; and
- Other contextual indicators suggesting a distortion, including potential subsidies of the type "most likely to distort."
This is where the "operational" feel of the final Guidelines comes through. There is more detail on how the Commission may think about case selection, while still retaining a wide enforcement perimeter.
A notable openness to third party input
One of the most practically significant (and, for many businesses, most consequential) passages is the explicit encouragement of market intelligence flowing to the Commission.
The Guidelines state that "Member States ... and any natural or legal persons ... may contact the Commission services" with information about a potentially distortive foreign subsidy.
The text is particularly pointed in procurement. Contracting authorities and competitors are expressly flagged as potential informants, and the Commission indicates it may rely on that information as a basis to request prior notification, subject to verifying accuracy and plausibility.
For companies, this is a reminder that call in risk is not only a question of what the Commission can see publicly. It is also about what rivals, customers and contracting authorities may choose to put on the Commission's radar.
What should companies do now?
If you are advising on M&A or procurement involving parties with material non EU funding links, the Guidelines reinforce a few practical steps:
- Tighten your FFC fact gathering early. The safer you want to feel on the €4 million point, the more you need credible internal information that can be explained succinctly
- Pressure test "impact in the Union" beyond turnover. The Commission explicitly notes that apparent significance may not be captured by turnover alone, especially for strategic assets or future facing capabilities
- Assume competitors may engage. Build an external narrative that anticipates questions about subsidy linked advantages, particularly in strategic sectors or repeat procurement contexts.
- In procurement, manage timing risk. The absence of a bright line time limit means bidders and authorities should keep a contingency plan for last minute information requests or potential call in dynamics.
Bottom line
Compared with the consultation draft (and without attempting a line by line comparison), the final Guidelines read as more implementation minded. The Commission keeps its broad discretion, but introduces clearer guardrails that should improve predictability for stakeholders, especially through the €4 million de minimis comfort and the low value procurement indicator. At the same time, the Commission is careful to preserve a potent call in tool for strategically sensitive cases and it openly invites information from the market that can trigger scrutiny. In other words, comfort, not immunity.
Originally published 14 January 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
