Foreign Direct Investments
The European Union is the largest destination for Foreign Direct Investments ("FDIs"): whether by private investors from abroad, or by State Owned Entities. Amid growing concerns about countries using those SOEs for geopolitical purposes, however, further and stricter rules for screening FDIs are being introduced, both by the EU and its individual Member States and by countries such as the US and the UK.While the actual screening of FDIs in their respective territories is the jurisdiction of the individual Member States, the European Commission plays an important coordinating role.
European RegulationA European Regulation (Regulation (EU) 2019/452) establishing a framework for the screening of foreign direct investments into the Union (“Regulation”) entered into force on 10 April 2019. This Regulation, which primarily governs the potential cross-border safety and public policy implications of FDIs in the European Union, sets out procedural rules for the Member States to adopt. These include the obligation for Member States to exchange information, the possibility for the European Commission to issue non-binding advice to Member States and minimum standards that national FDI regimes must satisfy.
FDI in the NetherlandsIn the Netherlands, the Minister for Economic Affairs recently published a Bill on Economy and National Safety (Wetsvoorstel toetsing economie en nationale veiligheid, or “WENV”) for consultation purposes. With effect from 2 June 2020, the Bill will be enforced by the Dutch Investment Review Office (Bureau Toetsing Investeringen, or “BTI”) in respect of all investments in companies established in the Netherlands where:
- the investor gains control or significant influence over the company; and the company
- has particular importance for the continuity of critical processes; or
- has operations in the area of sensitive technology.
On top of the general supervision provided for under the Bill, the Telecommunications and Energy sectors already have their own sectoral rules in place, and specific rules for the Defence sector will be introduced shortly. To find out more about the relevant rules and regulations, read our News Update and ICLG publication.
Countries everywhere, both within the EU and beyond, have introduced stricter screening of FDIs. Local sensitivities also mean that those controls often extend to sectors that might not be immediately obvious. Moreover, FDI rules often come into play even where an investment leads to a relatively small acquisition such as 30% of a company’s shares, or even 10%.
HOUTHOFF'S FDI TEAMWe advise clients on how Dutch and European regulations apply, the chances that the BTI will object to a specific investment, and how to optimise transactions and remedies in the event of such an objection. Drawing on our extensive international network, we also advise on risks and reporting obligations in other jurisdictions. We furthermore coordinate notifications for our clients in various jurisdictions: both regular merger notifications and the full FDI notification process.
Our FDI team are highly skilled and experienced in all matters relating to FDIs.
Advised Veritas Capital, in cooperation with Skadden, on possible objections under the Economy and National Security Bill regarding its USD 3 billion acquisition of Cubic, a producer of C4ISR software for the US Army.
Advised JAC Capital, a subsidiary of Chinese state-owned investment company JIC, and Wise Road Capital, as lead counsel on the USD 2.75 billion acquisition of the Standard Products business from NXP Semiconductors, one of the semiconductor market leaders worldwide. The transaction is waiting for approval from amongst others of the European Commission, Federal Trade Commission (US), CFIUS and the Chinese Ministry of Trade.