FSR enforcement: Belgian Court Suspends €750 Million Casino Concession for non-compliance

A recent ruling from the Belgian Council of State¹ underscores the serious consequences of failing to comply with the EU Foreign Subsidies Regulation ("FSR") in public procurement. In addition, the recent ruling signals that national courts are ready to enforce these rules directly. In this alert, we analyse a noteworthy judgment by the Council of State, suspending a €750 million casino concession award after the City of Brussels failed to include mandatory FSR notification requirements in its tender procedures. The ruling offers important takeaways for both contracting authorities and economic operators navigating FSR compliance in high-value procurement.

Background & Context

In July 2026, the City of Brussels launched a concession procedure for the operation of a casino, with an estimated value of €750 million excluding VAT, while omitting to mention the tenderer's obligations under Articles 28 and 29 of the FSR Regulation (EU 2022/2560).

Articles 28 and 29 of the Regulation impose three core obligations:

• Tenderers participating in procurement procedures valued above €250 million must include with their tender either a notification of Foreign Financial Contributions exceeding €4 million, or a declaration confirming that this threshold has not been reached.
• Contracting authorities must reference these obligations in the contract notice.
• Non-compliant tenders must be rejected.

In this case, six tenders had been submitted, of which only the applicant's tender complied with the above obligations.

When the concession was awarded to one of the other bidders, the applicant brought an expedited action for the suspension of the awarding decision ("référé en extrême urgence") before the Council of State. The applicant inter alia argued that given the contract-value threshold had been exceeded, the City had failed to (i) mention the obligation to notify or submit a declaration, and (ii) draw the consequences of the absence of a notification or declaration in the successful bid as required under the FSR.

This was handled in an expedited procedure since under procurement law, once the standstill period prescribed by the EU Remedies Directive (EEC 89/665) expires, a signed contract may no longer be invalidated, and aggrieved bidders are typically limited to damages claims. The Belgian Procurement Act (Act of 17 June 2013) transposes these requirements, providing a standstill period of 15 days for bidders to seek suspension of award decisions before the Council of State. A contract signed in breach of the standstill obligation is "ineffective" and may be declared invalid.

The Ruling

On 31 August 2026, the Council of State suspended the award. Its reasoning carries significant implications for both economic operators and contracting authorities, flowing directly from the application of Articles 28 and 29 of the FSR.

The Council of State confirmed that, for tenders above the €250 million threshold, contracting authorities must mention the notification or declaration obligation in the contract notice. However, it rejected the respective plea as inadmissible since the applicant had not demonstrated any harm caused by the omission.

The applicant's other plea, however, proved decisive. The Council of State made several key findings:

• Since the concession value exceeded the threshold, the FSR provisions apply automatically.
• Even where the €4 million threshold for individual foreign financial contributions is not met, tenderers must still submit a declaration listing all contributions received and confirming that the notification obligation does not apply.
• Because contracting authorities must transfer notifications or declarations to the Commission, the FSR obligations bind them too, not just economic operators.
• Citing Article 29(3) of the FSR, the judgement confirmed that where a failure to submit a declaration or notification persists, the tender must be declared irregular and rejected.

The Council of State accordingly ordered the suspension of the awarding decision. The award, if not withdrawn, remains subject to (i) an action for annulment ("recours en annulation") before the Council of State, or (ii) an action for damages.

Although the applicant's tender is the only one to have complied with FSR obligations, moving forward with its bid seems unlikely. Unless the City of Brussels decides to await the outcome of a potential annulment action, the more probable course is that it will withdraw the award and launch a fresh procedure, this time in full compliance with the FSR.

Wider Implications

This case heralds significant practical implications. The reliance on the direct effect of FSR provisions could give rise to dynamics similar to those seen in private enforcement of State aid rules under the standstill clause in Article 108(3) TFEU. The direct effect of this clause, as confirmed by numerous preliminary rulings from the Court of Justice of the European Union ("CJEU"), for long has enabled national courts to draw the necessary consequences under domestic law when it is breached. Private enforcement of State aid obligations before national courts, thus, has become increasingly common.

The Council of State's reasoning suggests that this case law could be transposed to FSR enforcement. National courts may draw the necessary consequences from a breach of directly applicable FSR provisions without waiting for confirmation from the Commission or the CJEU.

For tenderers, this means an additional and effective avenue of recourse before national courts. In procurement procedures exceeding the applicable thresholds, the FSR's notification or declaration requirements reinforce this remedy, regardless of whether the individual €4 million notification threshold is met.

Key Takeaways

• National courts may directly rely on FSR provisions when assessing the legality of procurement procedures.
• The FSR obligations relating to procurement procedures fall not only on economic operators, but also on the contracting authority.
• Failure of contracting authorities to state FSR obligations in the contract notice may question the legality of procurement procedures.
• Contracting authorities must reject FSR non-compliant tenders.
• The possibility for national courts to directly rely on FSR provisions gives unsuccessful tenderers an additional effective remedy.
• Failure to comply with the obligation to notify, or, alternatively, to submit a declaration, exposes economic operators to the risk of rejection or other implications, including potential penalties.

The Antitrust and Trade teams at Mayer Brown can assist with all aspects of FSR and competition proceedings, including liaison with competition authorities around the world and related litigation. Please get in touch to discuss the issues raised by this alert.

¹ Council of State, Judgment of 31 August 2026, n° 267.514, ECLI:BE:RVSCE:2026:ARR.267.514 (only available in French)