Elena Roca Umbert, Laura González and Valeria Enrich
The Spanish government has modified, once again and with immediate effect from 28 December 2022, Spanish foreign direct investment (“FDI”) rules that were introduced in March 2020 in connection with the COVID-19 pandemic. The changes that have been introduced are twofold:
1. The first change is the extension until 31 December 2024 of the suspension of the liberalisation regime of foreign direct investment by residents of EU or EFTA countries provided the investment is done in: (i) listed companies in Spain (companies with their registered office in Spain whose shares are admitted for trading on an official secondary market in Spain); or (ii) unlisted companies, where the value of the investment exceeds EUR 500 million.
2. The second change is the clarification of the concept of “foreign direct investment”. In particular, the law now defines as foreign direct investment not only the acquisition of control or investment in Spanish companies, but also the acquisition of control over “the totality or part of” a Spanish company. With this change, it is now clear that, under applicable foreign investment rules, acquisitions of assets of a Spanish business may also be caught. In fact, this has already been the practice of the Ministry of Industry, Commerce and Tourism but is now clarified in the applicable rules.
The above amendments come as no surprise and only confirm that what initially seemed to be a temporary regime to protect Spanish critical businesses from the economic crisis resulting from the pandemic, is now clearly a new regime that has come to stay. Further amendments can be expected in the Spanish foreign investment regime shortly and will be focused particularly on providing further guidance to the application of the current regime.