• 重庆律师法律事务服务大厅
  • 重庆律师网值班律师 预约律师
  •     |    
  •  律师微网
  •     |    
  •  律师微信
  •     |    
  •  律师微博
  • 重庆律师网 |  当前位置: 首页 > 律师行业 > 涉外法制 > 正文
    重庆律师网资源 :

    Winds of change in FDI control in EUME

    CQLSW.NET   2019-03-13   信息来源:金杜研究院    作者: Barri Mendelsohn
    核心提示:This article has been written by King & Wood Mallesons partners and lawyers from its offices in Germany (Dr. Sandra Link, Dr. Tilmann Becker), United Kingdom (Barri Mendelsohn, Jenny Goodrich), Spain (Roberto Pomares, Victoria Ruenes), Italy (Stefania Luccetti), France, Belgium (Olivier Armand) and UAE (Shawn Davis).

    In 1990, when the Cold War came to an end, the German rock band The Scorpions sung “The world is closing in, did you ever think, that we could be so close, like brothers?” echoing the spirit of globalisation in their rock ballad “Wind of Change”. Europe has since then been a place proud of its openness to foreign investment. Although such openness is still reconfirmed by government officials and repeated as a mantra in preambles to relevant legislation, there has of late been a tendency to tighten control on foreign direct investment (FDI) so are new winds of change in the air?

    With the recent adoption on 5 March 2019 by the EU Council of the new EU Regulation that regulates FDI in theEuropean Unionwe have now entered an era of renewed focus on promoting FDI in Europe while at the same time enabling closer cooperation between Member States in determining screening factors and other specific regulations, particularly on the grounds of national security and public order.

    The FDI Regulation intends to protect critical European assets against transactions that would be detrimental to legitimate interests of the European Union or its Member States and to do so has determined screening criteria in critical infrastructure, critical technologies and dual use items, supply of critical inputs, access to and control of sensitive information, freedom and pluralism of media and extent of control or funding by non-EU government to name a few areas of focus. Each of these areas are expected to be widely interpreted and applied in any EU review of FDI transactions.

    In addition, there remains a continuing importance of national laws as Member States continue to be empowered to review and potentially block (or apply conditions) to FDI in various ways.

    InGermany, tightening regulations and a sector specific control regime applies if a foreign investor acquires, directly or indirectly, at least 10 % of the voting rights in a target operating in the sector of war weapons, IT security or producing certain goods subject to export control. Such transactions may be blocked if it constitutes a danger for important security interests of the Federal Republic of Germany. Relevant transactions need to be notified to the Ministry and cannot be closed prior to any approval.

    There are also general investment controls that apply in Germany to investors from outside the European Union (EU) or the European Free Trade Association (EFTA) who acquire, directly or indirectly, at least 10% of voting rights in a critical infrastructure target or at least 25 % of voting rights in another target. Such transactions may be blocked if it constitutes a threat to public order or security of the Federal Republic of Germany. Although, in general, there is no obligation to notify relevant transactions to the Ministry and relevant transactions can be closed without the Ministry’s approval, the Ministry has a right to review and prohibit the transaction within three months after becoming aware thereof and within five years after signing of the transaction. In practice, parties usually file for a certificate of non-objection from the Ministry in order to gain transaction certainty and only close their transaction after having received such clearance.

    Notwithstanding the looming exit ofBritainfrom the European Union (the so called “Brexit”), the UK restrictions on FDI substantively follow the European rules in that there is increased scrutiny of investments that could impact on national security. Recent changes to the regulations strengthen existing UK measures and expand the UK Government’s power to be able to intervene in certain transactions involving the acquisition of businesses supplying products in the military, dual-use, quantum technology and/or computer hardware section for national security and other public interest concerns. There has also been a lowering of the investment threshold from £70 million to £1 million in the turnover testing of FDI in sensitive sectors.

    Spain’s regulation of FDI follows similar principals to promote the freedom of movement of capital although requires notification of investments from tax havens. Despite a liberalised system there are controls over investments that might impact public powers, public order, security and public health. There are also industry specific restrictions covering telecommunications, television and radio, energy, financial institutions and the stock exchanges, air transportation as well as national defence related activities.

    Italyhas been focused on promoting investment in high-tech start up ventures and has passed laws that provide tax exemptions and other incentives. However, Italy controls FDI based on the reciprocity principle in that international investors are treated the same way as Italians provided their home country has reciprocal treatment of Italians. In addition, there are the golden powers for Italy to review notified investments in areas of strategic importance and national interest covering the energy, transport, communications and defence sectors. The golden sectors were recently extended to “high-tech” companies, such as those dealing with data storage and processing, artificial intelligence, robotics, semiconductors, dual-use technology, and space/nuclear technology, bringing Italy in line with many other EU states.

    Francehas amended and strengthened its rules on FDI of late, recently extending its control over French companies active in the aerospace sector or carrying out research and development activities in cybersecurity, artificial intelligence, robotics, additive manufacturing and semiconductors. FDI in these sectors are subject to a prior Ministerial approval. The same applies to IT hosts for certain sensitive data, particularly in the health sector.

    Belgiumdoes not have a specific legislative framework for controlling FDI while practically many of the key industries or sectors are very tightly controlled by local operators, such as in the fixed telecoms markets as well as in mobile telephony.

    Despite pan-European or national European regulations being restrictive in certain sectors deemed of strategic importance or of a national interest, the general restrictions are not as nearly restrictive as in other jurisdictions that attract high levels of FDI, such as theUnited Arab Emirates. In the UAE, unless businesses are established in the free trade zone, foreign investors may not own more than 49% of UAE companies although this may be lessened in certain sectors to allow up to 100% ownership if the UAE Cabinet allows. This concession was a recent amendment to the existing UAE laws controlling FDI.

    Given seismic movements in global trade and geopolitics FDI will be a key indicator as to how various countries are responding in these ever-changing times. As a result, governments should closely monitor their relevant regulation of FDI (and that of others) to ensure that it promotes and does not hinder the attractiveness of its economies to the international investment community. That would be a self-defeating act whilst the winds of change continue to blow.

    延伸阅读 重庆律师业务办理平台 | 重庆值班律师
  • 上一篇文章:德国外商投资管控的最新发展
  • 网友评论 查看本信息评论 | 举报
    重庆律师网信息,更多精彩在首页,点击直达
    律师关注
    刑事辩护受理
    刑事侦查辩护委托    审查起诉辩护委托
    刑事一审辩护委托    刑事二审辩护委托
    死刑复核辩护委托    刑事再审辩护委托
    诉讼仲裁代理
    买卖合同纠纷代理    借款合同纠纷代理
    租赁合同纠纷代理    房屋买卖纠纷代理
    建设工程纠纷代理    房产开发纠纷代理
    产品责任纠纷代理    网络侵权纠纷代理
    触电损害纠纷代理    铁路运输纠纷代理
    交通事故纠纷代理    人事仲裁纠纷代理
    离婚争议纠纷代理    财产损害纠纷代理
    不当竞争纠纷代理    网络域名纠纷代理
    特许经营纠纷代理    保险金融纠纷代理
    合伙企业纠纷代理    其他民事纠纷代理
      重庆律师网首页|律师行业|律师纪实|律师实务|律师法学|律师执业|律师法规|律师判例|律师智库|律师名册|业务办理  
    律师的甄别
    识别真假律师
    对律师的错误解读
    以什么标准判断律师是否专业
    律师的作用
    为什么需要律师
    律师表现对于胜诉到底有多大影响
    律师告诉您官司打不赢的原因
    律师为什么不给你胜诉的承诺
    如何选择律师
    聘请律师的误区
    找律师,最忌讳说这八句话
    律师不接待的十类当事人
    重庆律师收费
    重庆律师服务收费指导标准
    你知道律师是如何收费的吗
    同样的事情,律师收费可能会不一样
    律师对刑事案件不能实行风险收费
    委托流程
    重庆律师网办理法律事务流程
    咨询律师
    重庆律师法律事务受理大厅
    重庆律师服务
    重庆律师诉讼代理法律事务中心
    重庆律师刑事辩护法律事务中心
    重庆律师专项法律事务办理中心
    重庆律师法律顾问法律事务中心
    All RIGHTS RESERVED © CQLSW.NET 2008-2019  |  重庆律师网版权所有,任何使用均得恪守《重庆律师网使用协议》(查看)联系方式  |  重庆律师网上服务大厅-重庆律师业务办理平台(登录