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Judicial review of FDI enforcement is rare in the Netherlands. In one of the first matters brought before a Dutch court, the broad retro-active ‘call-in’ powers of the Dutch Minister of Economic Affairs and Climate (‘Minister’), as provided for in the Act on Security Screening of Investments, Mergers and Acquisitions (‘Vifo Act’ or ‘Act’), were scrutinised and the Minister’s enforcement actions were effectively curtailed. The ruling from the District Court of Rotterdam (‘Court’) on 25…

Introduction: New FDI regimes with divergent approaches In February 2024, Bulgaria adopted a new FDI screening regime, while Ireland published guidance on its new FDI regime, which are expected to enter into force in June and September 2024, respectively. The two differing approaches of the two new regimes illustrate the inconsistency of substantive and procedural FDI rules across the EU. While the Bulgarian FDI regime employs a “catch-all” approach with low thresholds and broad powers,…

The start of 2024 has seen the European Commission announce a new EU-wide legislative proposal, and the Italian and UK governments both issued two noteworthy enforcement decisions. In the EU, the European Commission published a proposal to update the 2019 EU Foreign Direct Investment Screening Regulation. The aim of the reform is to enable a clearer and more open line of communication between a national FDI authority and companies that have submitted an FDI filing.…

FDI enforcement in 2023 has been caught between two different public policy aims: the first is a willingness of authorities to expand their FDI regimes to review more investments; and the second, is a greater interest in and attention to the consistency and proportionality of such intervention. We have set out below the three main trends for companies to be aware of in relation to the enforcement of FDI rules and how they may affect…

As a result of national security concerns, the decision-making of national FDI regimes in the EU is not transparent and there are no obligations for authorities to publish their decision or the reasons behind it. However, authorities will often publish annual reports which provide a better understanding of national trends and decision-making. Two such reports were published at the end of September/October 2023. In September 2023, the German Federal Ministry for Economic Affairs and Climate…

FDI enforcement in Europe continues to increase, with authorities focusing on acquisitions relating to strategic assets and infrastructure. Companies and advisors should take this increased scrutiny into account when drafting corporate documents, and ensure that they have a clear strategy in place to obtain FDI clearances in a timely manner. The two major FDI investigations in Europe in September both concerned share acquisitions of strategic assets. First, in the face of concerns raised by national…

On 13 July 2023, in Case C-106/22, the European Court of Justice (ECJ) delivered its decision in relation to a preliminary reference submitted by the Budapest High Court. In the context of companies that often have a cross-border ownership structure extending outside of the EU, the ECJ concluded that the fact that a parent company registered in a third country has a majority control over an EU-based investor does not mean that the EU FDI…

On 4 July 2023, the Spanish Government approved Royal Decree 571/2023 on Foreign Investments (“Royal Decree”), with immediate effect from 1 September 2023, which introduces amendments to and provides further details on the screening mechanism for certain foreign direct investments (“FDI”) in Spain. The main changes to the screening mechanism are summarised below: Review process The Royal Decree includes the following amendments: Introduction of a new consultation regime: The investor may submit a voluntary consultation…

The new Act on Screening of Foreign Investments (“FIR Act”) – revamping the foreign direct investment screening mechanism in Slovakia – entered into force on 1 March 2023. Drawing from the EU FDI Regulation, the new FIR Act will have significant impact on inbound investments meeting specific legal criteria into Slovakia by non-EU investors. The FIR Act introduces an approval procedure held by the Ministry of Economy of the Slovak Republic (“Ministry”) which is mandatory…

Samantha Mobley and Farin Harrison • In recent years, the investment policy landscape has become more complex as nations respond to national security threats, state development strategies and geopolitical risks. Covid-19 created a major economic shock worldwide, prompting some countries to take an even more stringent approach, with a focus on protecting the security of supply of inputs.• Many jurisdictions continue to tighten their screening rules or are introducing robust new measures to protect strategically…