Notifications in numbers
Companies wishing to implement concentrations (mergers, acquisitions and joint ventures) or participate in public procurements above certain thresholds must notify the Commission. In its review, the Commission published some key FSR enforcement figures for the past three years:
- Concentrations: close to 300 notifications were made, of which only 1% led to the opening of an in-depth investigation. Whilst most FSR notifications (about 80%) were also notifiable under the EU Merger Regulation, the overlap with national foreign direct investment screening mechanisms was less pronounced (approximately 28%).
- Public procurement: more than 700 notifications were made in the field of public procurement, of which just 4 led to an in-depth investigation and 2 were declared irregular.
- Call-in power: the Commission used its power to request prior notification of a below-threshold procurement contract for the first time last year. The economic operator did not comply and was excluded from the procedure.
- Ex officio: the Commission opened two in-depth investigations on its own accord; both are discussed below.
The numbers suggest that the disparity between the high number of notifications and the low number of in-depth investigations which we noted last year has only grown further.
Enforcement in practice: broad reach, targeted interventions
Finalised investigations: what can we learn?
If the Commission finds that problematic foreign subsidies are in place during its in-depth investigation, it may prohibit the acquisition. To prevent this, parties may offer commitments to address any concerns the Commission may have. The past year saw the closure of two in-depth investigations, both after the parties involved offered commitments. These cases show that, despite the FSR framework’s infancy, the Commission is willing to accept commitments to allow concentrations and public procurements to proceed.
ADNOC / Covestro: the Commission’s openness to novel remedies
In November 2025, the Commission cleared the acquisition of German chemicals company Covestro by Abu Dhabi National Oil Company (ADNOC), subject to binding commitments. The Commission had identified foreign subsidies that improved ADNOC’s competitive position and at least potentially negatively affected competition, both by enabling a share price that appeared high relative to market benchmarks and by facilitating what Covestro’s internal documents referred to as “unconstrained growth”.
As we noted last year, this case illustrates that the Commission remains receptive to commitments, particularly those with a long-term focus. ADNOC offered intellectual property commitments under which Covestro would honour nearly all market-standard licensing requests for its sustainability patents, allowing competitors to manufacture in the EU and sell worldwide for a period of ten years. This introduces IP licensing as a novel remedy, one that goes beyond the “firewalling” approach seen in last year’s decision on the e&/PPF Telecom case (which we have discussed before (in Dutch)) and instead rebalances competition by enabling access to sustainability-related innovation.
Violet Line Lisbon: swapping out the subsidised subcontractor
In April 2026, the Commission adopted its first finalised in-depth public procurement decision under the FSR. It concerned a consortium led by Mota-Engil that had partnered with Portugal CRRC – a subsidiary of the China-based, state-owned CRRC group – to construct the new “Violet” metro line in Lisbon. The Commission’s investigation confirmed that Portugal CRRC had received significant foreign subsidies from China, including public procurement contracts potentially worth over € 36 billion, government grants of approximately € 471 million, and reduced enterprise income tax rates. Rather than contesting these findings, the consortium offered commitments to replace Portugal CRRC with PESA, a Polish rolling stock manufacturer that had not received distortive foreign subsidies, which the Commission accepted as fully removing the distortion.
The Violet Line decision is also the first FSR public procurement investigation completed without the bidder withdrawing – a pattern that characterised all prior public procurement cases, including the CRRC/Bulgaria, ENEVO/Romania and Shanghai Electric/Romania investigations. The subcontractor replacement remedy is a pragmatic solution that preserves the consortium’s participation in the tender while removing the subsidised element, though questions remain about its broader applicability in cases where the subsidised entity is the lead bidder rather than a subcontractor. The case, together with the ongoing ex officio cases against Temu, Nuctech and Goldwind (discussed below), also underscores the continued scrutiny of Chinese state-owned enterprises, particularly CRRC, whose involvement in European rail tenders has been a recurring focus of FSR enforcement since the very first in-depth investigation.
Ongoing investigations
Ceconomy / JD.com: novel subsidies, novel remedies?
This year, the only concentration notification that led to the initiation of an in-depth investigation was the contemplated acquisition of the German electronics retailer Ceconomy – owner of MediaMarkt – by China-based e-commerce company JD.com. The Commission is concerned that JD.com may have received distortive foreign subsidies, including preferential debt instruments and tax measures, grants, and other foreign financial contributions. In July, this suspicion led the Commission to issue a formal “statement of grounds”, making Ceconomy/JD.com the first FSR deal to reach this formal charging stage and potentially opening the door to a more tailored remedy discussion. That outcome is unsurprising: JD.com probably intends to invest significantly in Ceconomy’s European business, and the alleged subsidies it faces are unlike those seen in any prior case. It is therefore likely that JD.com and the Commission will need to devise an entirely new set of remedial measures.
Nuctech: non-cooperation with information requests
The Nuctech case illustrates the enforcement mechanism under the FSR that is applied if companies do not comply (fully) with information requests or inspections. In such cases the Commission may adopt its decision based on the “facts available to it”, which may result in an outcome that is less favourable to the undertaking than if it had cooperated. Non-compliance with information requests or company inspections can also result in fines or periodic penalty payments, even for companies that are not themselves under investigation.
In this ex officio investigation, the Commission – following unannounced company inspections – requested Nuctech, a China-based supplier of container and baggage scanning equipment, to provide data stored in China. Nuctech sought interim relief against the Commission’s information requests before the General Court and, on appeal, the Court of Justice of the European Union (CJEU), arguing that the Commission’s request to produce documents located in China infringed public international law and that compliance would compel the group to violate Chinese data protection and state secrets laws. Both courts rejected these arguments, holding that allowing entities to evade information requests by storing data outside the EU would grant companies controlled from third States a competitive and procedural advantage.
Shortly after the CJEU’s judgment, the Chinese government ordered all Chinese entities and individuals not to execute or facilitate the Commission’s cross-border investigative measures in the Nuctech case, reportedly in response to the Commission’s information requests to Chinese banks regarding Nuctech’s financing. This illustrates how companies from third countries may find themselves caught between the risk of fines for not complying with the Commission’s information requests and potential criminal liability under national law.
The FSR Guidelines: guidance without experience
While the decision‑making practice of the Commission and the CJEU offers some guidance on interpreting the FSR, the most significant development this year was the Commission’s publication of its FSR Guidelines in January 2026. The Guidelines, which the Commission had to write “without any meaningful experience”, aim to bring more transparency and predictability to enforcement, covering how the Commission determines whether a foreign subsidy distorts competition, how it weighs a foreign subsidy’s negative effects against its positive effects (the “balancing test”), and when it can “call in” transactions or tenders below the notification thresholds for a preliminary review.
Outstanding concerns
Although the Guidelines offer companies some much needed clarification, problems remain. The administrative burden remains high, particularly for large conglomerate enterprises and private equity firms, which must collect data on a rolling basis regarding tax systems, subsidy schemes and government contracts across multiple jurisdictions – information that is often not readily available.
In ex officio procedures, which unlike concentration and public procurement reviews are not subject to statutory deadlines, the burden is arguably worse. The Commission must “endeavour” to close any in-depth investigation within 18 months but, according to the General Court in its recent case regarding the ex officio procedure against Goldwind, this is “merely an indicative period”. Moreover, the ongoing in-depth investigations against Goldwind and Nuctech remained in the preliminary review phase for 18 months or more and included multiple mandatory requests for information. While the Commission and the General Court contend that the investigated parties may themselves be at least partially responsible for the delays, given the parties’ repeated requests for extensions of the deadlines to respond to information requests, they seem to disregard the size and volume of those requests. In any event, the lack of predictable timelines leaves investigated companies unable to plan their operations or investments with any degree of certainty.
At the same time, the Commission’s review of the FSR found the instrument to be “fit for purpose”. It highlights the effectiveness of the prior review of large concentrations and procurement contracts, combined with the possibility of retrospective examination through the ex officio tool. Although the Commission acknowledges that a more extensive body of decisional practice may be needed before it can offer the kind of predictability that businesses typically expect, it emphasises its efforts to offer more guidance through informal contacts, its guidelines, regular updates to its FSR Q&A and the publication of its decisions. As with any new regulatory framework, some initial growing pains are to be expected. However, as enforcement practice matures and the Commission continues to refine its approach, greater legal certainty and procedural efficiency should follow.
Outlook
The FSR instructs the Commission to adopt legislative proposals as part of its review where it considers this appropriate. Rather than the “fundamental redesign” of the FSR proposed by Germany, it seems the Commission favours more targeted adjustments. For concentrations, these may include higher turnover thresholds, a simplified notification procedure for concentrations that are unlikely to be problematic, an increase in the minimum value of foreign financial contributions that must be reported (thus exempting smaller contributions) and further exemptions for lower-risk contributions, especially for private equity acquirers. For procurement, possible adjustments include simpler notification forms, revised waivers, narrower reporting obligations and clearer rules on access to file, confidentiality and responsibilities. Draft measures are due in autumn 2026, with adoption envisaged in 2027. The coming months will reveal whether the Commission can strike the right balance between rigorous enforcement and a proportionate administrative burden. For now, stakeholders should prepare for a recalibrated but not reimagined FSR regime.
