Today marks 100 days since the full application of the Foreign Subsidies Regulation (FSR). Since 12 October 2023, economic operators engaging in public procurement procedures exceeding €250 million are mandated to notify foreign financial contributions of at least €4 million per non-EU country.
So far, the Commission has received over 100 submissions regarding public procurements. The experience shows that there is a need to raise awareness of the FSR for economic operators and contracting authorities alike.
Why the FSR matters
Foreign subsidies can confer unfair advantages, distorting competition for acquiring companies or securing public contracts within the EU. The FSR empowers the European Commission to investigate these contributions, ensuring fair and undistorted market conditions.
It also contributes to the level playing field in the single market by providing a legal basis and a platform for companies to report suspicions of competitors benefiting from distortive foreign subsidies.
Role of contracting authorities
Contracting authorities need to make sure that all participants submit, together with their bid, either a notification or a declaration in case a tender has a contract value of at least €250 million. The submissions are forwarded for assessment to the Commission without delay. For secure digital communication with the Commission, the EU Send tool should be used.
To ensure compliance and equal chances in procurements, contracting authorities are invited to
- inform tenderers in the contract notice or in the tender documents about their notification obligation when the threshold for notification is met
- request a submission from economic operators participating in public procurement when no notification or declaration is received with the bid
Role of economic operators
Notifications and declarations on foreign financial contributions in public procurement procedures with a contract value of at least €250 million must be submitted to the contracting authority or contracting entity in charge of the relevant public procurement procedure.
Economic operators need to submit the simpler declaration instead of a notification if contributions received from a non-EU country are below €4 million in the 3 years prior to the notification.
To facilitate the submission and assessment of notifications and declarations, economic operators are invited to use, as much as possible, the designated eForm (this requires EU-Login authentication, see EU-Login tutorial) and include all requested information. This process occurs within the same framework as the tender submission. For secure digital communication with the Commission, the EU Send tool should be used.
Economic operators are encouraged to engage in a pre-notification discussion with the Commission if there is a need to clarify what to submit.
Finally, economic operators are also invited to inform the Commission about suspicions of unnotified foreign subsidies received by their competitors.
More information
Details
- Publication date
- 19 January 2024
- Author
- Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs