An amendment to the Critical Infrastructure Act introducing a brand-new foreign direct investment screening mechanism to Slovakia entered into force on 1 March 2021.
The mechanism introduces an obligation to notify changes in the ownership structure of operators of elements of critical infrastructure, as well as a screening mechanism for ownership changes in narrowly-defined industries, which have become subject to examination by the Ministry of Economy and, in certain cases, subsequent approval by the Slovak Government.
General obligation to notify transactions
Under the new regime, the operator of an “element of critical infrastructure”, as defined the Critical Infrastructure Act, must notify any transfer of ownership of the critical infrastructure element, as well as any direct or indirect change in ownership of the operator exceeding 10% of the registered capital or voting rights (or any other change with a comparable impact).
This obligation applies to all sectors falling within the scope of the Critical Infrastructure Act, including transportation; electronic communications; energy; postal services; heavy industry; information and communication technologies; water management; healthcare; pharmaceuticals; finance and agriculture.
Non-compliance with the notification obligation may be subject to fine of up to EUR 50,000.
New screening procedure
The Critical Infrastructure Act also introduces a new screening procedure of proposed ownership changes to be applied in the mining; electric energy; gas, petroleum and petroleum products; pharmaceuticals; metallurgy and chemical industries.
In these industries, the Ministry of Economy will evaluate whether the proposed ownership changes compromise the public order or national security of the Slovak Republic or another EU member state or the interests of the EU, and announce the conclusions of its review within 60 days from the notification.
Where the Ministry finds that the transaction compromises public order or national security, it can propose that the Slovak Government either (i) prohibit the transaction, or (ii) approve the transaction conditionally. The Government may then grant an unconditional or conditional approval in cases where the benefits of the transaction outweigh the risks, or propose remedies to ensure that the benefits outweigh the risks.
If the Slovak Government refuses to grant consent with a transaction in an industry which is subject to the screening procedure, rights and obligations arising from the transaction must not be exercised, with non-compliance incurring the potential fines noted above.