Key takeaways from the EC’s first structural commitments decision

On 21 April 2026, for the first time, the European Commission (the EC) accepted commitments offered in an in-depth public procurement investigation under the EU Foreign Subsidies Regulation (FSR). The EC adopted a decision accepting a change of a main supplier in a bidding consortium from a non‑EU rolling stock manufacturer to the Polish manufacturer Pojazdy Szynowe PESA Bydgoszcz Spółka Akcyjna (PESA) in the context of a tender for a contract to design, construct and maintain the ‘Violet’ metro line in Lisbon, Portugal (the Decision).

Key takeaways for businesses

• The EC is open to commitments, not just prohibition. As in EU merger control, the EC appears willing to work constructively with bidders and accept commitments where these effectively address FSR concerns, offering an alternative to outright exclusion from the tender.
• FSR review can be used strategically in competitive tenders. The Decision shows that bidders may seek EC scrutiny of rival tenders that appear to benefit from support originating from non-EU governments, adding a new strategic dimension to EU public procurement.
• Expect increased engagement by EU‑based bidders. Although the FSR does not provide a formal complaints mechanism, the Decision is likely to encourage bidders to raise concerns proactively with the EC where they suspect non-EU subsidies have influenced competing bids.
• FSR compliance plays an increasingly prominent role in tender planning. The Decision shows suppliers and consortium partners that they should assess FSR exposure early, including at subcontractor level, and be ready to engage with the EC if issues arise during the procurement process.

Background to the investigation

The Decision follows an in-depth investigation opened in November 2025, triggered by the FSR notification submitted by a consortium led by Mota Engil to Metropolitano de Lisboa (the Contracting Authority). The consortium partnered with subcontractors, originally including the Portuguese subsidiary of CRRC, a non‑EU rolling stock manufacturer, which was reportedly due to supply 12 trams. The EC examined whether that entity may have benefitted from foreign subsidies distorting the public procurement procedure by enabling the consortium to submit an unduly advantageous tender. The EC’s review reportedly focused on public contracts of approximately €36 billion, a €471 million grant, and significant tax benefits received by CRRC in China.

Many ‘firsts’

This is not the first time the EC has scrutinised public tenders in the rail sector – see the EC’s first in-depth investigation under the FSR public procurement rules in February 2024. However, this marks the first investigation to conclude with voluntary commitments by the bidders, rather than bidder withdrawal.

A further novelty is that the investigation focused on the non-EU support received by the “main subcontractor” in the consortium’s tender. Under Article 29(5) FSR, a subcontractor is deemed to be “main” where its participation ensures key elements of the contract performance, and, in any event, where its contribution exceeds 20% of the value of the submitted tender.

While the EC’s review of FSR notifications has reportedly led to prohibition decisions on the basis of incomplete notifications submitted by main bidders, this is the first known instance where the scrutiny resulted in the exclusion of a main supplier.

It is also the first known instance where the implementation of the FSR resulted in the substitution of a non-EU supplier with an EU entity.

What happens next?

Although the EC has cleared the consortium’s participation in the tender following the substitution of the subcontractor, the final decision to award the contract lies with the Contracting Authority, which will assess whether the revised bid (with the new subcontractor) complies with all the requirements of the tender. The EC’s role will now shift to monitoring the consortium’s compliance with the commitments accepted under the Decision.

The non‑confidential version of the Decision will be published in the Official Journal of the European Union once confidentiality issues have been resolved.