- Trade topics
On 5 April 2022, the Commission published guidance for EU Member States on assessing and preventing threats to EU security and public order from Russian and Belarusian investments.
The guidance highlights the increased risk from investments subject to Russian or Belarusian government influence in the context of Russia's invasion of Ukraine. It calls for close cooperation between authorities involved in investment screening and those responsible for enforcing sanctions.
Member States are called upon to urgently set up comprehensive investment screening mechanisms, if they have not done so already. They are also called upon to enforce anti-money laundering rules to prevent the misuse of the EU financial system by investors from Russia and Belarus.
Key information about the EU framework for foreign direct investment screening
The objective of the EU's Foreign Direct Investment (FDI) regulation is to make sure that the EU is better equipped to identify, assess and mitigate potential risks for security or public order, while remaining among the world’s most open investment areas. It fully applies since 11 October 2020.
- The regulation
- Commission Delegated Regulation (EU) 2021/2126 of 29 September 2021 amending the Annex
- Notification form: Request for information from the investor for the purposes of notifications pursuant to Article 6 of Regulation (EU) 2019/452
- Frequently asked questions on the EU framework for FDI screening (updated June 2021)
- List of screening mechanisms notified by Member States
Main features of the EU investment screening framework
The EU framework for investment screening is part of the Commission's commitment to a Europe that protects its companies, workers and citizens. Due to the high degree of integration within the EU, foreign direct investment* in one Member State could pose risks to security or public order in another Member State, or in the whole Union.
Stepping up information sharing and cooperation in the EU is necessary to identify new challenges and to react accordingly. For that purpose, the new framework:
- creates a cooperation mechanism where Member States and the Commission are able to exchange information and raise concerns related to specific investments;
- allows the Commission to issue opinions when an investment threatens the security or public order of more than one Member State, or when an investment could undermine a strategic project or programme of interest to the whole EU, such as Horizon 2020 or Galileo;
- encourages international cooperation on investment screening, including sharing experience, best practices and information on issues of common concern;
- sets certain requirements for Member States that wish to maintain or adopt a screening mechanism at national level (Member States also have the last word on whether or not a specific investment operation should be allowed on their territory), and;
- takes into account the need to operate under short business-friendly deadlines and strong confidentiality requirements.
To improve the functioning of the cooperation mechanism set up by the EU investment screening framework, the services of the European Commission, at the initiative of DG TRADE, have developed a form for providing information to be submitted to the cooperation mechanism (the form is also available in a format that complies with online accessibility standards).
The use of this form speeds up the examination by the 26 recipient Member States and the European Commission and enables the notifying Member State to finalise its investigation without delay
*'Foreign direct investment' means investments of any kind by a foreign investor aiming to establish or to maintain lasting and direct links between the foreign investor and the entrepreneur to whom or the undertaking to which the capital is made available in order to carry on an economic activity in a Member State, including investments which enable effective participation in the management or control of a company carrying out an economic activity.
Screening mechanisms of Member States
Under the regulation, Member States may maintain their existing screening mechanisms, adopt new ones or remain without such national mechanisms.
The Commission calls on those Member States that currently do not have a screening mechanism, or whose screening mechanisms do not cover all relevant FDI transactions or do not allow screening before investments are made, to urgently set up a comprehensive FDI screening mechanism. In the meantime, it calls on such Member States to use other suitable legal instruments to address cases where the acquisition or control of a particular business, infrastructure or technology would create a risk to security or public order in the EU.
The Commission calls on those Member States that are in the process of setting up such a screening mechanism to accelerate its adoption and prepare its implementation, including by supporting it with appropriate resources.
The regulation does provide for some key requirements for national screening mechanisms:
- transparency of rules and procedures;
- non-discrimination among foreign investors;
- confidentiality of information exchanged;
- the possibility of recourse against screening decisions, and;
- measures to identify and prevent circumvention by foreign investors.
On the basis of notifications by Member States pursuant to the regulation, the Commission publishes an up-to-date list of screening laws in the EU.
The regulation requires the Commission to submit a report on the implementation of the regulation to the European Parliament and to the Council on a yearly basis.
The Commission’s first Report on the Screening of Foreign Direct Investments into the Union was adopted on 23 November 2021. The report includes:
- figures and trends for FDI into the EU;
- legislative developments in Member States;
- screening activities by Member States, and;
- an assessment of the functioning of the EU cooperation on FDI screening since 11 October 2020, when the EU FDI Screening Regulation entered into force.
The report also has a Staff Working Document with more economic data on foreign investments as well as additional details on the legislative developments in all Member States.
- Press release
- Report on the screening of foreign direct investments into the Union (translated)
- Accompanying document to FDI report
Group of experts on screening foreign direct investment
The Commission in 2017 established a group of experts from Member States. The objective of the group is to discuss issues relating to investment screening, share best practices and lessons learned, and exchange views on trends and issues of common concern relating to foreign investments. Pursuant to Article 12 of the new regulation, the group may also discuss systemic issues relating to the implementation of the regulation.
- Commission Decision of 29.11.2017 setting up the group of experts on the screening of foreign direct investments into the European Union C(2017)7866 final
- Register of Commission Expert Groups
Data protection under the EU investment screening mechanism
Joint Controllership Arrangement (JCA)
Under the EU cooperation mechanism set up by the FDI Screening Regulation, Member States and the Commission exchange information about foreign direct investments. This may involve the processing of personal data (e.g. names and addresses of natural persons involved in a transaction).
Hence, the Member States and the Commission have concluded a Joint Controllership Arrangement (JCA) in line with data protection rules, notably the GDPR (Article 26), the EDPR (Article 28) and the EU FDI Screening Regulation (Article 14) and the underlying Commission Decision. The JCA is an agreement between Member States and the Commission on the processing of these personal data. It sets out the allocation of the respective roles, responsibilities and practical arrangements between Member States and the Commission: both being joint controllers of these data.
The document entered into force on 28 April 2022. The main elements of the JCA are available in the EU Register of the Data Protection Officer (DPO).
- Privacy statement on protecting and processing personal data in the context of implementing the EU's Investment Screening Regulation
- Commission Decision (EU) 2020/1502 of 15 October 2020 laying down internal rules concerning the provision of information to data subjects and the restriction of certain of their rights in the context of the processing of personal data by the Commission in the cooperation mechanism established by Regulation (EU) 2019/452 of the European Parliament and of the Council
International cooperation on investment screening
The regulation encourages Member States and the Commission to cooperate with the responsible authorities of like-minded third countries on issues relating to the screening of foreign direct investments on grounds of security and public order.
Such administrative cooperation should aim to strengthen the effectiveness of the framework for screening of investment by Member States and the cooperation between Member States and the Commission. The EU pursues international cooperation bilaterally or in a wider format.
In particular, the EU is supporting the ongoing work of the OECD on Investment policies related to national security and public order.
Since 2021, cooperation with the US on investment screening is also ongoing in Working Group 8 of the Trade and Technology Council (TTC). Stakeholders may provide inputs on Futurium, which is a virtual space for businesses, public authorities, innovators, researchers, civil society, and policymakers to shape the EU and US discussions in the Trade and Technology Council together.
- EU-US Trade and Technology Council Inaugural Joint Statement (Pittsburgh, 29 September 2021)
- Website of the TTC Investment Screening Working Group on Futurium
More on Investment screening
- 2020 Guidance for Member States on how to use foreign direct investment (FDI) screening in times of public health crisis and economic vulnerability in the EU
- 2019 Study on the foreign ownership of EU firms.
- 2017 Communication on Welcoming Foreign Direct Investment while Protecting Essential Interests