Foreign Investment Control

 
ARGENTINA
Confirmed up-to-date: 08/05/2022

Foreign Investment Control

The General Law of Corporations No. 19,550 provides that a foreign legal entity must be registered in the Public Registry of Commerce, in the terms of Section 123, so as to be able to invest in the country. 

Please find below some limitations or controls that apply on foreign investment: 

Rural land and real estate properties located in border areas regimes

Pursuant to the Rural Land Law No. 26,737, if a foreign person or legal entity or an Argentine company controlled by a foreign person or legal entity intends to purchase rural land (whether directly or indirectly), they must file an application with the Registry of Rural Land seeking a certificate. 

Besides, the Rural Land Law establishes that rural lands of the same foreign owner may not exceed a certain amount of hectares (1,000 hectares in the so-called "core zone" or the equivalent surface in the rest of the country to be determined by each Argentine province). If there is an excess of the surface area threshold, then such party shall be obliged to divest such investment to the extent necessary not to exceed the Rural Land Law’s limits. Such divestiture shall be performed within ninety days following the change of control date.

On the other hand, the regime applicable to real estate properties located in the border zone (in general, a 150-kilometers strip of land from the international limit towards the interior of the country) establishes that in the case of the acquisition of real estate properties located in a border area or the acquisition of control over a legal entity that owns a real estate property located in the border area by foreign persons or legal entities, a prior consent of the Subsecretary of Control and Surveillance of Border Areas must be obtained. A legal entity is considered to be foreign if it is: (i) incorporated abroad; (ii) incorporated in Argentina and foreign persons or legal entities incorporated abroad, are owners of a majority shareholding or have the number of votes to prevail in the shareholders' meetings; or (iii) incorporated in Argentina, but a foreign entity owns more than 25%.

Internal air transport services

The Aeronautic Code sets forth that internal air transport services must be provided by companies (i) that have domicile in the country; (ii) whose control and direction are in the hands of people with real domicile in the country; and (iii) whose majority of the shares and votes belongs to Argentines with real domicile in the country.

Other 

Please bear in mind that the above is not exhaustive, so there may be other limitations or controls on foreign investment.


AUSTRALIA
Confirmed up-to-date: 27/09/2022

Foreign Investment Control

Generally, foreign persons must notify the Australian Government, through the Foreign Investment Review Board (FIRB), and obtain approval from the Federal Treasurer for acquisitions of any interest in Australian land (or an interest of at least 10% in an Australian land entity), an interest of at least 20% in an Australian entity, or any "direct interest" in an Australian agribusiness or Australian media business, in each case if certain monetary value thresholds are met. A "direct interest" in an entity or land is generally an interest of at least 10% but may include lower levels of interest if accompanied by certain control or commercial rights.

Foreign investors must also notify FIRB and obtain approval from the Treasurer before undertaking various actions related to national security ("notifiable national security actions"), including starting or acquiring a direct interest in a national security business or entity that carries on a national security business, or acquiring an interest in national security land.

All foreign governments and their related entities, including sovereign wealth funds, must also notify the Foreign Investment Review Board and obtain approval from the Treasurer for any direct investment (usually 10% or more, but lower in certain circumstances) in Australian entities or businesses or assets or land in Australia, regardless of the value of that investment.  There are limited exceptions for low level investments which can be explored on a case-by-case basis.

Even where notification is not compulsory, the Treasurer may have power to intervene in various circumstances (for example where the action causes a change of control or causes the acquirer to gain further control over a target, or where the investment may pose a national security concern).  The Treasurer may prohibit or unwind transactions if satisfied that they would be contrary to the national interest or national security.  A foreign person may choose to notify FIRB and seek to obtain approval in order to avoid the risk of later invention.

The Treasurer may refuse to grant approval where the investment is contrary to national security or the national interest. Issues which will be considered closely as part of the national interest test include competition, government policies and tax revenues, impact on the community, economy and employment and the character of the investor. FIRB's regular practice is to consult with Commonwealth, State and Territory Government departments and agencies, including the ACCC and the Australian Taxation Office, in making its decision. In this context, protected information may be shared with the government of a foreign country where there is an agreement in place that permits the exchange of information, and the ACCC for the purposes of administering the CCA.

Even if the Treasurer has granted approval for actions notified after 1 January 2021, the Treasurer may, in limited circumstances, later exercise a "last resort" power to impose new conditions, vary existing conditions or order divestment of the assets on national security grounds. There are a number of conditions that need to be met before the "last resort" power may be exercised, including that one of the following applies:

  • where a foreign investor has made a materially false or misleading statement in the original review process, or omitted information which made a statement misleading in a material particular; 
  • the foreign investor's business has materially changed since it received the no objection notification or exemption certificate; or
  • market circumstances have materially changed since that time.

Additionally, the Treasurer must be reasonably satisfied that the national security risk posed by the change of the business, structure or organisation or activities could not have been reasonably foreseen (or was only a remote possibility previously), or the material change alters the nature of the security risk posed previously, or that the false or misleading statement or omission directly relates to a national security risk. Finally, the Treasurer must be satisfied that exercising the last resort power is reasonably necessary to eliminate or reduce the relevant national security risks.


AUSTRIA
Confirmed up-to-date: 15/03/2022

Foreign Investment Control

Under the Austrian Investment Control Act (Investitionskontrollgesetz, "ICA") acquisition by a foreign investor of an Austrian undertaking active in certain sectors is subject to approval from the Minister for Digitalization and Economic Affairs.

Approval is required for acquisition of:

  1. voting rights reaching/exceeding 10 %, 25 % and 50 %,
  2. a decisive influence, or
  3. essential/all assets

of an Austrian undertaking (i.e. having its seat or head office in Austria) provided that the direct or indirect investor is a legal person outside the EU, EEA or Switzerland or a natural person not having the citizenship of an EU/EEA country or Switzerland.

Investments in certain highly sensitive sectors listed (exhaustively) in part 1 of the Annex to the ICA are subject to the 10 %, 25 % and 50 % share (voting rights) threshold, including:

  • Defence equipment and technology;
  • Providing/operating critical energy infrastructure;
  • Providing/operating critical digital infrastructure, in particular 5G infrastructure;
  • Water;
  • Providing/operating systems that safeguard the data sovereignty of the Republic of Austria; and
  • R&D in the fields of pharmaceuticals, vaccines, medical devices and personal protective equipment.

For investments in other sectors that may affect security or public order listed (non-exhaustively) in part 2 of the Annex to the ICA, only the 25 % and 50 % share thresholds (voting rights) apply. Such other sectors include:

  • Critical infrastructure, notably energy, information technology, traffic and transportation, health, food, telecommunications, data processing and storage, defence, constitutional institutions, finance, research facilities and institutions, social and welfare systems, chemical industry and investments in land and real estate crucial for the use of such infrastructure;
  • Critical technologies and dual-use items as defined in EU Regulation No 428/2009; notably artificial intelligence, robotics, semiconductors, cybersecurity, defence technology, quantum and nuclear technologies, nano- and biotechnologies;
  • The supply of critical inputs/resources, including energy or raw materials, food security, medicines, vaccines, medical devices and personal protective equipment as well as R&D in these areas;
  • Access to sensitive information, including personal data or the ability to control such information; and
  • Freedom and pluralism of the media.

As the competent secretary generally takes a very formalistic approach on whether a foreign direct investment in an Austrian undertaking is covered by the ICA, it is normally sufficient that the Austrian undertaking is active in any of the sectors explicitly listed in the Annex to the ICA, regardless of whether the activities of the Austrian undertaking have any actual impact on security or public order in Austria. Further, please note that the above list of relevant sector-specific authorities is not exhaustive and other regulators may also be of importance, e.g. in sectors where specific permits or licenses are required to operate a business.

Excluded are undertakings with (i) fewer than 10 employees and (ii) an annual turnover or annual balance sheet total of less than EUR 2 million (de-minimis exemption).

Please note that the ICA also covers indirect acquisitions. Thus, acquisitions by an EU, EEA or Swiss natural or legal person may also trigger a filing obligation if such direct acquirer is ultimately controlled by a foreign investor or if foreign investor(s) hold a participation in the direct investor exceeding the above voting rights thresholds.

The notification obligation primarily rests with the acquirer(s), however, the ICA includes a reporting obligation of the target in case the acquirer(s) have not submitted a notification. In addition, the competent secretary can assume jurisdiction ex officio after obtaining knowledge of a transaction subject to approval that has not been notified (after requesting the acquirer(s) to file a notification within three working days). In this regard, the competent secretary is quite active in screening press releases about M&A activity and often is requiring further information from the parties (including their legal advisors) on transactions potentially covered by the scope of the ICA.

Following the notification, the European Commission and EU Member States can comment on the transaction within a 35-day period under the EU consultation mechanism of the EU-FDI Screening Regulation (EU) 2019/452 (which can be extended if information is only requested later or another EU Member State submits comments). After expiry of the consultation period, the competent secretary must within one month either (i) approve the transaction by decision or (ii) give notice to initiate an in-depth investigation. In the latter case, the transaction must within 2 months either be (i) approved, (ii) approved subject to commitments or (iii) prohibited. If no decision/notice is delivered within these time frames, the acquisition is deemed to be approved (however,  there is a clear preference of the competent secretary to issue a decision rather than clearing a transaction by letting the waiting period expire).

Non-compliance with these rules is subject to criminal sanctions and fines. In particular, implementation without clearance qualifies as a criminal offence and is sanctioned with a penalty of imprisonment of up to one year (up to three years in case of certain qualified offences). Agreements violating this standstill obligation are likely to be considered (provisionally) invalid until approval is obtained.

If such transfers constitute a merger under the Cartel Act and the applicable turnover thresholds are exceeded, such transaction must also be notified with the FCA. Note that following the KaWeRÄG 2021, the FCA is now also required to forward all Austrian merger filings to the competent secretary to administer her tasks under the ICA (which may lead to more ex officio investigations of transactions where no application under the ICA has been submitted).


BELARUS
Confirmed up-to-date: 12/08/2022

Foreign Investment Control

As a general rule, Belarusian and foreign investors are equal in their rights, and incorporation of a company in Belarus, acquisition of stocks (shares) in charter capital of a Belarusian company is carried out by Belarusian investors and foreign investors in accordance with the same procedure.

There are neither special legal acts on foreign investment control nor a special state body. However, foreign capital quotas in some sectors are applied.

Banking sector

Currently, there is a 50 % quota for foreign participation in Belarusian banks, established by the National Bank of the Republic of Belarus (“NBRB”). This quota is calculated as a ratio of total foreign capital in charter capitals of banks with foreign investment and the total amount of charter capitals of all banks registered in Belarus. According to the NBRB report for 2019, the share of total foreign capital in charter capitals of Belarusian banks does not exceed 36 %.

A foreign investor (or its Belarusian counterparty) shall get a prior approval of NBRB in order to acquire stocks of a Belarusian bank from the Belarusian bank itself or a Belarusian stockholder. In case of increase of a charter capital of a bank at the expense of a foreign investor, the approval of NBRB is also required.

NBRB may refuse to issue an approval once the quota is reached.

In addition, prior approval is required in case of acquisition of 5 % or more of stocks in charter capital of a Belarusian bank (and each subsequent acquisition) by a Belarusian subsidiary of a foreign investor.

Insurance sector

A quota for foreign participation in the Belarusian insurance market set by the Council of Ministers of the Republic of Belarus is 30 %. This quota is calculated as a ratio of total amounts of all contributions of foreign investors and/or their Belarusian subsidiaries to the charter capitals of insurance companies registered in Belarus and the total amount of charter capitals of all insurance companies registered in Belarus. According to the public sources, the current share of total foreign capital in charter capitals of Belarusian insurance companies does not exceed 5 %. The Ministry of Finance of the Republic of Belarus (“MFRB”) would deny registration of insurance companies with foreign investments once the quota is reached.

A Belarusian insurance company shall obtain a prior approval of MFRB in order to alienate stocks (shares) in its charter capital to a foreign investor (Belarusian subsidiary of a foreign investor) or increase its charter capital at the expense of a foreign investor (Belarusian subsidiary of a foreign investor). Belarusian stockholders (shareholders) of a Belarusian insurance company are also required to obtain a prior approval of MFRB to alienate their stocks (shares) regardless of the state of residence of the acquirer.

MFRB may refuse to issue an approval once the quota is reached and/or in order to “ensure the national security of the Republic of Belarus, including in the economic sphere, protect interests of national insurance companies”.

Under Belarusian laws, due to the Corona pandemic, a number of documents and certificates will remain valid for another 6 months if they have expired or expire from November 11, 2021 to March 26, 2022 inclusively and were not previously extended. These documents include, in particular, preliminary approvals of transactions with stocks, shares in the charter capital of insurance companies issued by Ministry of Finance.

Mass media sector

A foreign legal entity, as well as a foreign citizen and a stateless person cannot be founders of a mass media in the Republic of Belarus.

For a legal entity being a founder of mass media and/or a mass media editorial office, a quota of 20 % of the charter capital applies for foreign direct or indirect participation.

In case of any change of the foreign participation in a legal entity being a founder of mass media and/or a mass media editorial office, the Ministry of Information of the Republic of Belarus shall be notified within one month from the moment of change for introduction of the amendments into the State Register of Mass Media.


CZECH REPUBLIC
Confirmed up-to-date: 19/08/2022

Foreign Investment Control

The Act on Foreign Investment Screening (the “FDI Act“) entered into effect on 1 May 2021. It establishes a regime for screening foreign investment in undertakings relevant from the perspective of protecting the security or public order of the Czech Republic. 

Foreign investments which meet the conditions laid down by the FDI Act must be approved by the Ministry of Industry and Trade (the “MPO”). As is the case with notifications of mergers to competition authorities, investors are prohibited from implementing the investment before the MPO’s approval (the so-called standstill obligation). 

What is considered a “foreign investment”

Under the FDI Act, a foreign investor is any person (natural or legal) who:

  • is not a national of the Czech Republic or another EU Member State;
  • is not established in the Czech Republic or another EU member state; or
  • is indirectly controlled by a person meeting conditions under the points above.

The FDI Act thus also applies to investors from countries belonging to the European Economic Area, including Norway and Liechtenstein. Investors from the United Kingdom will also have to be considered foreign investors.

The FDI Act defines any entry of a foreign investor in a business (target) which enables the investor to exercise an effective degree of control over the economic activity of the target as foreign investment. An effective degree of control is considered to be:

  • the possibility for the investor to control at least 10% of the voting rights and/or the possibility to exert a corresponding influence in the target;
  • appointment of the investor to the target’s board of directors or other decision making body;
  • the ability of the investor to dispose of property rights to an object through which the target persons carry out an economic activity; or
  • another level of control that allows the investor access to information, systems or technology, important from the point of view of the security of the Czech Republic or internal and public order.

Activities protected under the FDI Act

It is mandatory to notify investments in case the target engages in activities relevant to the security of the Czech Republic or its internal order specified in the FDI Act. These are the following:

  • Production, research, development, innovation or life cycle of military material.
  • Operation of critical infrastructure elements. Such elements include all energy distribution systems, as well as animal or plant production which meets certain parameters, or areas of data centres, certain networks and stations. More than a thousand critical infrastructure elements have been defined.
  • Operation of an information or communication system of critical information infrastructure or an essential service;
  • Development or manufacture of dual-use items, i.e. items that can be used for both civilian and military purposes.

Additionally, it is also mandatory to consult with the MPO if the target:

  • holds a license for nationwide radio or television broadcasting;
  • publishes periodicals with an aggregate minimum average print run of 100,000 copies per day for the last calendar year.

The consultation can be considered as a preliminary step before the FDI screening procedure – the consultation may either lead to initiation of approval proceedings, or to a notice to the investor that the investment does not pose a threat to the Czech Republic and thus does not require approval.

In addition, if the target’s activities do not fall under the categories above, the investment may be consulted with the MPO on a voluntary basis. Such consultation might be useful to increase investor’s legal certainty, because the FDI Act empowers the MPO to initiate proceedings on approval of any foreign investment within 5 years after its completion in case it has concerns it could pose a risk to security or internal or public order (even in cases in which the target’s activities do not concern any of the activities set out above). This subsequent review might be avoided by engaging in the voluntary consultation of the investment and obtaining a confirmation from the MPO that the investment cannot endanger the security or internal order of the Czech Republic.

Screening procedure

If the foreign investment meets the criteria described above, the investor must file a notification and obtain the MPO’s approval. Notifications must be filed using a unified form and include a wide range of information, e.g. information about the investor’s and target’s ownership structure, its business activities or source of financing of the foreign investment. 

It does not follow from the text of the FDI Act or the explanatory memorandum to the act whether the notification will be subject to an administrative fee. 

In the event of failing to comply with the notification obligation, the MPO will initiate the approval procedure ex-officio and will be entitled to impose a fine on the investor, which could reach up to 1% of its total turnover for the last accounting period.

Once the investment screening procedure under the FDI Act is initiated, the MPO reaches out to other ministries and state agencies, including the intelligence services, with a request for an opinion. The details on exactly how the review will be conducted and what parameters will be assessed are not clear yet. However, the outcome of the screening procedure can in principle be as follows:

Approval

If the investment does not raise concerns, the MPO will issue an approval decision within 90 days from the initiation of the proceedings (the period might be extended by 30 days in particularly complex cases).

Conditional approval

If the investment is likely to threaten security, internal or public order, the MPO may negotiate on conditional approval with the investor. The conditions may consist, for example, of the obligation to enter into consultations with the MPO in cases of an increase in shareholding in the target. The MPO then submits the matter to the Czech Government, which issues a resolution within 45 days. The resolution may either approve the MPO’s proposal of conditions or reject it in case the investment does not pose a risk (which should lead to unconditional approval of the investment). The MPO will then issue an administrative decision in line with the Governmental Resolution.

Prohibition

In case the investment could threaten security or internal/public order and that risk could not be eliminated by conditional approval, the government may, on the basis of a proposal by the MPO and within 45 days after the proposal being submitted, issue a resolution prohibiting the investment. The MPO will subsequently issue an administrative decision on the prohibition.

The decision can be challenged by an action filed before an administrative court. Such action does not have a suspensory effect.

The FDI Act will apply to investments that have not been completed before the FDI Act comes into effect. Under the FDI Act the date of completion is the later of the following dates:

1) date of conclusion of the last contract;

2) date the investor gains control in the target; or

3) date of commencement of business.


DENMARK
Confirmed up-to-date: 07/08/2022

Foreign Investment Control

The Danish Act Danish act on Screening of certain Foreign Direct Investments (the “FDI Act”) applies for investments etc. completed on or after 1 September 2021. 

The FDI Act requires notification to and prior approval from the Danish Business Authority of business transfers, asset transfers, investments in ownership interests, certain loan agreements and other types of agreements (including agreements to establish a completely new business), provided that

  1. the acquirer/investor/contracting party is domiciled outside Denmark, or if a foreign national or entity has direct or indirect control or significant influence over the acquirer/investor, and
  2. the transfer/investment/agreement concerns "particularly sensitive sectors and activities"

The Danish Business Authority has extended powers with respect to investors domiciled outside the EU/EEA (and for any investors under direct or indirect control or significant influence of a national or entity outside the EU/EEA). For such investors, the abovementioned notification requirement also includes "special economic agreements". Furthermore, in respect of investors domiciled outside the EU/EEA the Authority may intervene against foreign direct investments etc., which do not concern "particularly sensitive sectors and activities", but which may pose a threat to national security or public order. There is no obligation for prior notification and approval in this respect, but it is possible to make a voluntary notification.

Particularly sensitive sectors and activities

The FDI Act defines the following as "particularly sensitive sectors and activities":

  • defense
  • IT security functions
  • processing of classified information
  • products with double application (civil and military purposes)
  • other critical technology
  • critical infrastructure

The listed sectors/activities will be further defined in an executive order. This executive order has not yet been issued, but a draft has been submitted for public consultation  and a final version is expected to be issued before 1 July 2021.

Investments types and thresholds

Investments

The notification obligation not only covers cases of acquisition of ownership interests, but may also include acquisition of assets, granting of long-term loans, etc. The notification obligation also includes greenfield investments, i.e. investment in a completely new business.

The notification obligation includes not only cases where an investor obtains control, but also cases where an investor acquires at least 10% of the ownership shares or voting rights or acquires similar control by other means. Warrants and call options must be included in the calculation as well ownership shares, voting rights or similar control by related parties. The notification obligation applies again in the event of subsequent increases of the ownership share to 20%, 1/3, 50%, 2/3 or 100% of the ownership shares or voting rights.

Special economic agreements

As mentioned above, if the foreign investor is domiciled outside the EU/EEA (or a non-EU/EEA national or entity has direct or indirect control or significant influence over the acquirer), the notification obligation is extended to also cover "special economic agreements" if the foreign investor thereby gains control or significant influence over a business. “Special economic agreements” may be agreements on a joint venture as well as operating, supply and service agreements.

Process:

Preliminary assessment

A foreign investor may request a preliminary assessment from the Danish Business Authority as to whether an intended foreign direct investment, etc. or special economic agreement relates to critical technology or critical infrastructure.

Notification and approval

The Danish Business Authority generally has 60 working days from receipt of a complete notification to either permit the investment or notify the applicant that the case will be submitted to the Minister of Business and Industry for consideration. Notification may be submitted in Danish or English. The deadline for the Danish Business Authority's position may be extended to up to 90 days and extended further at the request of the foreign investor, for instance if the foreign investor offers commitments to address concerns that the Danish Business Authority may have with respect to the planned investment/agreement.

If the case is submitted to the Minister of Trade and Industry, there is no deadline for the Minister's decision.

Criteria

The criteria for whether an investment can be approved are only very broadly described in the FDI Act. Thus, "all relevant circumstances and available information" can be taken into account in relation to whether the foreign investor can be approved. However, the main criteria are

  1. whether the foreign investor is directly or indirectly controlled by a foreign government, foreign government agencies or foreign armed forces;
  2. whether the investor in question has been involved in activities affecting security or public order in an EU Member State or in other friendly and allied countries;
  3. whether there is a serious risk that the foreign investor is engaged in or associated with illegal or criminal activities of national security or public order; and
  4. whether there are indications that the foreign investor is knowingly trying to circumvent the screening rules.

Investments not concerning "particularly sensitive sectors and activities"

In relation to foreign investors who are domiciled outside the EU / EEA (or if a national or entity outside the EU / EEA has direct or indirect control or significant influence over the acquirer), the Danish Business Authority may also intervene against already made foreign direct investments, etc., which do not concern "particularly sensitive sectors and activities", but which may pose a threat to national security or public order.

The possibility of intervention presupposes that the foreign investor acquires possession of or control over at least 25% of the ownership interests or voting rights in the company or equivalent control by other means.

There is no obligation for prior notification and approval, but it will be possible to voluntarily notify the investment in order to obtain approval.

 The criteria for whether an investment can be approved are the same as for investment in "particularly sensitive sectors and activities".

War material:

In accordance with the Danish Act on War Material, approval is required to manufacture war material and a separate approval from the Minister of Justice is required if foreigners obtain decisive influence over a business involved in manufacture of war material. Approval is also required for any subsequent changes in regarding the foreign persons or entities having such decisive influence as well as when such a business moves its domicile out of Denmark.

Power cables and pipelines for transport of foreign-produced hydrocarbons

The Danish Act on the Continental Shelf and certain pipeline installations in the territorial sea stipulates that before granting permission to lay transit power cables or pipelines for transport of foreign produced hydrocarbons on Danish maritime territory, the Minister of Climate, Energy and Supply must obtain a recommendation from the Minister of Foreign Affairs. Permission can only be granted if the Minister of Foreign Affairs considers that a permission is compatible with Denmark's foreign, security and defense policy interests.


FINLAND
Confirmed up-to-date: 21/07/2022

Foreign Investment Control

Foreign investments are controlled with the Act on the Monitoring of Foreign Corporate Acquisitions in Finland (172/2012). The purpose of the Act is to monitor and possibly restrict transfer or influence to foreigners and to foreign organisations and foundations if key national interests so require. The Ministry of Economic Affairs and Employment is the authority who considers official matters concerning the monitoring and approval of corporate acquisitions, and requests opinions from other authorities if necessary.

Key national interest mainly refer to national defence, security of supply and functions fundamental to society.

Pursuant to the Act on the Monitoring of Foreign Corporate Acquisitions in Finland (172/2012), corporate acquisitions refer to actions whereby a foreign owner gains control of a minimum of 10%, 33% or 50% of the total number of votes accompanying company shares or a corresponding de facto influence.

All corporate acquisitions concerning the defence and dual-use sector always require advance approval by the authorities. The Ministry may also request, under specific circumstances, the buyer to file an application or a notification despite that the aforementioned thresholds are not exceeded.

In the non-military sector, the monitoring targets Finnish enterprises considered critical for securing vital functions of society and applies only to foreign owners residing or domiciled outside the EU or EFTA.


GERMANY
Confirmed up-to-date: 07/08/2022

Foreign Investment Control

Rules applicable to non-EU/non-EFTA investors:

A non-EU/non-EFTA investor has to notify to the German Federal Ministry for Economic Affairs and Energy ("Ministry") the direct or indirect acquisition of significant assets or reaching at least 10% of the voting rights in a German company which:

  1. is active as operator of "critical infrastructure" (as further defined in the German Act to Strengthen the Security of Federal Information Technology);
  2. is active in the development or modification of software for the operation of critical infrastructure;
  3. is entrusted with organizational measures for telecommunications monitoring, or manufactures or has manufactured technical equipment for implementing legally prescribed measures for telecommunications monitoring and has knowledge of the technology;
  4. is active in the provision of cloud computing services with certain infrastructures;
  5. has a permit for components or services of so-called telematic infrastructure;
  6. is a company in the media industry which contributes to the formation of public opinion by means of broadcasting, tele-media or print products and is characterised by its particular topicality and broad impact;
  7. provides services necessary to ensure the continuity and functioning of public communications infrastructure;
  8. is active in the development or manufacture of personal medical protective equipment (such as masks);
  9. is active in the development, manufacture, distribution, or holds a corresponding marketing authorization, for essential medicinal products or their raw materials and active ingredients;
  10. is active in the development or manufacture of medical devices intended for the diagnosis, prevention, monitoring, prediction, prognosis, treatment or alleviation of life-threatening and highly infectious contagious diseases;
  11. is active in the development, manufacture or distribution of certain in vitro diagnostic medical devices relating to life-threatening and highly infectious contagious diseases.

It is important to note that the notion of an "indirect acquisition" is extremely wide and also covers situations where a non-EU/non-EFTA shareholder directly or indirectly holds at least 10% of the voting rights in the acquirer or in a company holding at least 10% of the voting rights in the acquirer. 

An "acquisition" that meets the above criteria has to be notified to the Ministry immediately after the signing of the agreement. The Ministry has up to two months from the notification to decide whether it opens an examination procedure and, if it does so, up to four months from the receipt of all required documents to clear or prohibit the acquisition or to impose conditions. During the review period, the parties are not allowed to implement the acquisition, and failure to comply with the standstill-obligation bears the risk of fines and even imprisonment of up to five years. 

The Ministry may also review – without an obligation on the parties to notify – any direct or indirect acquisition by a non-EU/non-EFTA investor of significant assets or at least 25% of the voting rights in a German company if the acquisition endangers the public order or security. 

Rules applicable to all foreign investors - domiciled outside Germany:

A foreign investor (even if domiciled within the EU/EFTA) has to notify to the Ministry the direct or indirect acquisition of significant assets or reaching at least 10% of the voting rights in a German company which:

  1. is active in the development or manufacture of certain war weapons or goods (as further specified in other regulations);
  2. is active in the development or manufacture of specially designed engines or transmissions for battle tanks or military warfare vehicles;
  3. manufactures or has manufactured products (approved by the German government) with IT security functions for processing government classified information, or of specific components for such products, and still has access to or control over the technology. 

The same procedural rules apply as in case of the mandatory notification requirement for the investment of non-EU/non-EFTA investors as described above. 


ICELAND
Confirmed up-to-date: 21/11/2021

Foreign Investment Control

Iceland is part of the common European market, via the European Economic Area Agreement (EEA Agreement). All residents and entities within the European Union and EFTA, enjoy in most cases the same rights to invest as Icelanders do. There are some sector based restrictions that apply to all non-residents (including EEA residents) and some requirements are made regarding investment of residents outside EEA.

Sector based restrictions

In accordance with the Act on Investment by Non-residents in Business Enterprises, investment by non-residents in Iceland is subject to the following restrictions:

  1. Only the following may conduct fishing operations within the Icelandic fisheries jurisdiction or own or run enterprises engaged in fish processing: a) Icelandic citizens and other Icelandic persons; and 2) Icelandic legal persons which are wholly owned by Icelandic persons or Icelandic legal persons which: (i) are controlled by Icelandic entities; (ii) are not under more than 25% ownership of foreign residents calculated on the basis of share capital or initial capital; (iii) are in other respects under the ownership of Icelandic citizens or Icelandic legal persons controlled by Icelandic persons.
  2. Only Icelandic citizens and other Icelandic persons are permitted to own energy exploitation rights as regards waterfalls and geothermal energy for other than domestic use. The same applies to enterprises which produce or distribute energy. Individuals domiciled in another member state of the European Economic Area and legal persons which are domiciled in another EEA member state shall have the same right.
  3. The combined share of non-residents in Icelandic airline companies may not at any time exceed 49%. Individuals domiciled in another member state of the European Economic Area and legal persons there domiciled are exempted.

Public Foreign Ownership

Investment in Icelandic enterprises by foreign states, local authorities or other foreign authority involved in enterprises is prohibited except with a special permission from the Minister of Commerce.

Business enterprises

An individual domiciled within the EEA and/or OECD may run a business or take part in a business enterprise with unlimited liability in Iceland, while those from non-member countries need to apply for permission from the Ministry of Industries and Innovation or the relevant authority.

Limited liability companies and other legal entities with domicile outside the EEA and the OECD may operate in Iceland provided that this is permitted in an international treaty to which Iceland is a party or if permission is granted by the Ministry of Industries and Innovation. Board membership of Icelandic companies by individuals with residence outside the EEA/OECD is subject to restrictions (residence requirements) but the Ministry of Industries and Innovation may grant exemptions.

The right to own and control property

Non-residents may acquire title to real estate in Iceland for direct use in an enterprise in accordance with the provisions of the Act governing the ownership and utilization rights of real estate.


INDIA
Confirmed up-to-date: 07/07/2022

Foreign Investment Control

The Government of India has put in place a policy framework on Foreign Direct Investment (FDI), the latest being the Consolidated FDI policy 2020 published on 15 October 2020. This Consolidated FDI Policy may be updated further every year to incorporate any amendments which may have been passed. The Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India makes policy pronouncements on FDI.

Based on the FDI policy, foreign investments can be made in India through two routes, viz., automatic route or Government route. Investments in certain sectors follow an automatic route, where notification is required but no approval from the Government or any of its departments or ministries is required. Whereas under Government route, the investments require the permission or approval of the Indian Government or any of its Department/Ministries.

The current FDI policy prescribes two categories of sectors i.e. prohibited sectors and permitted sectors. No foreign investment is allowed in the prohibited sectors, that includes businesses such as gambling, cigarettes, tobacco manufacturing, atomic energy, railway operations, etc.

On the other hand, in the permitted sector, the extent of foreign investment allowed under the FDI Policy varies from sector to sector and is subject to the approval from the Government or any of its Departments or Ministries. It includes businesses such as agriculture, telecom, mining, services, defence, print-media, transportation, etc. (see Chapter 5 of the FDI Policy).

Buyers caught by the regime

Any non-resident entity can invest in India, subject to the FDI Policy except in the prohibited sectors/activities. However, an entity of a country, which shares land border with India or where the beneficial owner of an investment into India is situated in or is a citizen of any such country, can invest only under the Government route. Further, a citizen of Pakistan or an entity incorporated in Pakistan can invest only through the Government route in sectors/activities excluding defence, space, atomic energy and other prohibited sectors as mentioned under Chapter 5 of FDI Policy.

Sometimes foreign investors also need to satisfy certain specific eligibility conditions as prescribed by the Securities and Exchange Board of India (SEBI) and Reserve Bank of India (RBI). 

Different conditions are prescribed for different modes of investments such as investment in an Indian company or trust or partnership firm can be made by various methods e.g. through alternate investment fund (AIF) or infrastructure investment trust (InvIT), etc. (see Chapter 3 of the FDI Policy).

Transactions and thresholds

Investments can be made by non-residents in the capital of a resident entity only to the extent of the percentage of the total capital as specified in the FDI policy. The caps in various sector(s) are detailed in Chapter 5 of the Policy. There are no turnover thresholds for determining whether a foreign buyer should proceed to seek a FDI approval from the Government or not. The thresholds or caps prescribed under the FDI Policy are in relation to the maximum percentage of foreign investment or capital that a foreign buyer can invest in a sector. Such caps vary across sectors and ranges from 100% to 26%, i.e. while in certain sectors 100% foreign investment is permissible, in some others only 26% foreign investment is permissible. Any cap of investment equal to or above 49% may be subject to automatic or Government approval route, depending on the prevailing FDI policy.

Procedures

Proposals for foreign investment are examined by the relevant competent authorities as per the Standard Operating Procedure laid down by DIPP (available at http://https://www.fifp.gov.in/Forms/SOP.pdf).

Transactions involving a total foreign equity inflow of more than INR 5000 crore, are also reviewed by the Cabinet Committee on Economic Affairs.

Concurrence of the DIPP must be sought by the competent authority where it proposes to reject a transaction as well as in cases where conditions for approval are stipulated in addition to the conditions laid down in the FDI policy or sectoral laws/regulations.

The details of the guidelines for filling applications seeking approval are available at the Foreign Investment Facilitation Portal (www.fifp.gov.in) (see Chapter 4 of the FDI Policy).


ISRAEL
Confirmed up-to-date: 10/01/2022

Foreign Investment Control

There is no central regulatory body in Israel that deals with the regulation of foreign investment, and Israeli regulation in this area is decentralized, with each body or government ministry regulating the issue independently. 

There are three main bodies that regulate foreign, as well as, local investment in Financial markets: the Capital Market Authority, which supervises, among other things, insurance companies and investment houses; The Securities Authority, which supervises mutual funds and investments in the stock exchange and the Bank of Israel, which supervises Commercial Banks in Israel. There have been instances of blocking foreign investments in Israel due to considerations such as corporate governance or financial strength.

In addition, with respect to privatization of, or investment in, governmental companies, the Governmental Companies Law, 1975, empowers the Prime Minister, Minister of Finance and Minister of Defense to issue a decree acknowledging the existence of essential interests in a governmental company, which can restrict foreign control over such company, inter alia, due to national security considerations.

The Telecommunications (Bezeq and Broadcasting) Law, 1982, requires an approval for the transfer of control in an essential telecommunications service based, inter alia, on national security considerations, and allows for the Prime Minister and the Minister of Telecommunications to determine that control will only be granted to an Israeli citizen. 

An advisory committee has been established, to examine national security issues as part of the approval process for foreign investments. The advisory committee is headed by the chief economist of the Ministry of Finance, and has representatives from the Ministry of Defense and the National Security Council. The committee aims to help regulators integrate national security considerations in what are primarily financial and economic considerations in the approval process of foreign investments.  The regulators that can consult with the committee according to the Government decision establishing the committee are various regulators, such as the bank of Israel, Israel Securities Authority, Ministry of Energy, Ministry of Transport, national infrastructure and road safety, Ministry of Communications, etc., but do not include the Israeli Competition Authority. 


KAZAKHSTAN
Confirmed up-to-date: 21/04/2021

Foreign Investment Control

Special foreign investment rules requiring government approval of transactions apply with respect to a foreign person’s acquisition (or obtaining rights, directly or indirectly, in respect) of more than 49% of the voting shares (interest) in a company which is an operator of intercity and/or international telecommunication and owns land lines  (cable, fibre-optic or radio relay type of lines).

The approval is obtained upon an application submitted to the Ministry of Digital Development, Innovation and Aerospace Industry of the Republic of Kazakhstan. The decision is made by the Government based on conclusion of the Ministry of Digital Development, Innovation and Aerospace Industry, agreed with the National Security Committee, within 45 business days from the date of receipt of an application.

In addition, there are certain other restrictions that apply with respect to foreign investors including, inter alia, the following:

Direct/ indirect control, ownership, use and (or) disposal of shares (interest) of a financial organization (e. g. joint-stock investment funds, banks, insurance (reinsurance) companies, special financial companies, legal entities licensed to operate in the securities market) by offshore companies may be limited. For instance, an offshore company cannot obtain the status of:

  • a bank holding or a major participant in a bank;
  • an insurance holding or a major participant in an insurance (reinsurance) organization;
  • a major participant in an investment portfolio manager.

Furthermore, it is prohibited for a foreign investor to:

  • directly/ indirectly own, use, dispose and (or) manage more than 20% of shares (interest) of a legal entity that owns a mass media in Kazakhstan or carries out activities in this field;
  • be a participant of a private security organization, or to have such an organization in trust management;
  • be a participant of specialized training centers, where training of employees holding the positions of the head and security guard in a private security organization is carried out;
  • own, use and (or) dispose as well as exercise effective control over the shares of an airline established in the form of a joint-stock company and (or) derivative securities issued in accordance with Kazakhstan or foreign law, the basic asset of which is the shares of an airline created in the form of a joint-stock company, in the amount exceeding 49% of total placed shares (minus redeemed shares) of the specified airline.

NETHERLANDS
Confirmed up-to-date: 21/09/2021

Foreign Investment Control

There is as yet no general legislation in the Netherlands as concerns foreign investment control. However, given the potentially retroactive application of the proposed new rules as of 8 September 2020, it is advisable already to be aware and to take account of the draft legislation.

Furtermore, the sector specific regulations for the Gas, Electricity and Telecommunications sectors described separately below are already applicable. These regulations are also perceived as FDI-regimes given their aim of protecting the continuity of vital processes in the Netherlands.

Proposed general FDI-regime

The Dutch government first presented a draft 'Economic and National Security Review Act' on 8 September 2020. Following criticism from the Dutch Council of State, the government published a  revised proposal for legislation entitled: 'Security Review Investments, Mergers and Acquisitions Act' (Wet veiligheidstoets investeringen, fusies en overnames). No implementation date is envisaged at this stage. However, the current proposal provides that the Act will apply retroactively from 8 September 2020.

The draft Act covers all mergers, acquisitions and other investments resulting in a change of control or significant influence over companies based in the Netherlands – meaning that actual economic activities are conducted in the Netherlands – which are considered vital to Dutch national security. The Act will apply to all investors, irrespective of their nationality. The aim is to prevent the use of legal structures to circumvent filing obligations.

The concept of "control" follows the definition under EU and Dutch competition law and can include the creation of a joint venture or the acquisition of certain assets of a company.

The concept of significant influence is only relevant in relation to companies active in sensitive technologies. An interest of 10% or more and/or the ability to appoint or dismiss one or more board members are considered significant influence. Further clarification on the concept of significant influence is expected by means of governmental decree.

Vital processes and sensitive technologies

Companies which are vital to Dutch national security are suppliers of vital infrastructure and processes and sensitive technologies:

  • Vital processes include operating heating networks, nuclear energy provision, air transport, airport and port management and operations (Schiphol Airport and the Port of Rotterdam in particular), banking, financial market infrastructures, and natural gas operations. Additional vital processes can be identified by governmental decree.
  • Sensitive technologies include strategic goods such as dual use and military goods, the export of which is subject to export controls. International frameworks have already established that these goods are relevant to national security. These multilateral frameworks for strategic goods are consolidated in Regulation (EC) No 428/2009 and national implementing measures.

Notification procedure

Parties are required to notify investments meeting the above conditions to the Minister of Economic Affairs and Climate Policy. In practice this means filing with the 'Investment Review Agency' (Bureau Toetsing Investeringen) which assesses the investments on behalf of the Minister. Similar to merger control, the procedure has two phases:

  • Phase I starts with the submission of a notification. The Minister then has eight weeks to assess whether the investment could cause a risk to national security. This period can be extended to a maximum of six months. Phase I ends with a notification that no review decision is necessary or that further review is necessary.
  • Phase II starts upon submission by the notifying party of a request for a review decision. The Minister then has another eight weeks to assess whether the investment causes a risk to national security. This decision period can also be extended to six months. However, the time used for review in Phase I will be deducted, meaning that the maximum time before a final decision is taken is six months.  

A stop the clock principle applies, meaning that if the Minister asks for additional information the decision period is suspended for the period until the prospective investor provides the required information. Furthermore, the decision period can be extended by an additional three months if sharing the notification with the European Commission and/or other Member States is required in accordance with the EU FDI Regulation (Regulation (EU) 2019/452).

Assessment

The Minister assesses whether the investment poses a risk to national security. National security refers to security interests that are essential for the democratic legal order, security, social stability or other important interests of the Dutch state. The Act explicitly notes the following interests:

  • safeguarding the continuity of critical processes;
  • maintaining the integrity and exclusivity of knowledge and information of critical or strategic importance to the Netherlands; and
  • preventing unwanted strategic dependence of the Netherlands on other countries.

In order to assess the risk of the investment to national security, particular attention is given to the following factors:

  • the transparency of the investor's ownership structure and relationships;
  • the investor's identity and criminal record;
  • whether the investor is directly or indirectly subject to restrictive measures following from national and international law, such as Chapter 7 of the Charter of the United Nations;
  • the security situation in the country or region of residence of the investor; and
  • the degree of cooperation of the investor in the review procedure.

Further, specific investment related criteria might apply. These might include particular attention to the track record of the investor in the activities concerned, its financial stability and its motives for the investment. The reputation and potential influence of the investor's home state are likely to be of particular importance.

Decision and possible remedies

The Minister can decide to clear the investment unconditionally, impose remedies or even prohibit the investment. The Minister can only impose remedies or prohibit the investment if strictly necessary for the protection of national security. In case remedies are imposed, the Minister can appoint a third party to monitor compliance with those remedies.

The Act provides a non-exhaustive list of possible remedies, which include:

  • regulating access to sensitive information;
  • appointing security committees or officers which might be required to report to the Minister;
  • placing certain sensitive business activities in a separate Dutch entity;
  • appointing a separate supervisory board for such a Dutch entity performing sensitive business activities; and
  • mandatory certification of all or part of the investor's shares via a foundation.

Additionally, specific possible remedies are identified for sensitive technology companies, including:

  • depositing certain technology, a source code, genetic code or knowledge with the Dutch state or a third party; and
  • a duty to notify the Minister of any intention to transfer activities to third countries. The Dutch state may then decide to acquire the technology concerned or require licensing on fair, reasonable, and non-discriminatory conditions.

Failure to notify

A standstill obligation applies, as a consequence of which it is prohibited to implement the transaction before the Minister has either notified the investor that no review decision is required or has issued a positive review decision.

Failure to notify the investment or violation of the standstill obligation can have several consequences:

  • The investment may be (declared) void. The Minister may also impose an enforcement order to prevent undesirable effects of the investment. If the parties do not abide by the enforcement order, the Minister might even dispose of shares on behalf and for the account of the investor or target company.
  • The exercise of the acquired rights can be suspended. This might be the case if the investment is completed contrary to the standstill obligation or if the companies do not adhere to possible remedies.
  • Failure to notify or a violation of the standstill obligation can lead to a fine of up to EUR 870,000 or 10% of the turnover of the companies involved in the preceding year.
  • The Minister can also order an investor to notify an investment within three months after becoming aware of the fact that the transaction should have been notified or that the notification was incomplete/incorrect.

In the event of a serious risk to national security, the Minister may reassess an investment within six months of becoming aware of a:

  • a potential social disruption with economic, social or physical consequences; or
  • a direct increased real threat to Dutch sovereignty.

If the merger thresholds of the Dutch competition Act are met, notification to the ACM is also required in addition to the notification to the Minister.

Sector specific regulations

As further detailed below, the Gas, Electricity and Telecommunications sectors are subject to separate notification requirements which are also perceived as FDI-regimes given their aim of protecting the continuity of vital processes in the Netherlands. Even though in principle the requirements apply to all investors, they are of particular relevance to foreign investors.

Dutch law does not contain any definition as regards foreign investors/investments and applies to all investors, irrespective of their nationality. This prevents investors from setting up an artificial legal structure to circumvent filing obligations. However, the nationality or (security situation in) the country or region of residence of an investor can play a role in the substantive assessment of a transaction.

Electricity production

Article 86f of the Electricity Act 1998 requires parties to any transaction involving a production installation with a nominal electric capacity of more than 250 MW (megawatt) or an undertaking that manages such production installation to notify the transaction to the Minister of Economic Affairs and Climate Policy, at least four months before the proposed change of control.

The Minister may prohibit or impose regulations in respect of such a change of control on the grounds of public security or security of supply. Legal acts performed in violation of the notification obligation can be annulled by a court decision.

LNG installations

Article 66e of the Gas Act requires parties to any transaction regarding an LNG (Liquefied Natural Gas) installation or an LNG company to notify the transaction to the Minister of Economic Affairs and Climate Policy, at least four months before the proposed change of control.

The Minister may prohibit or impose regulations in respect of such a change of control on the grounds of public security or security of supply. Legal acts performed in violation of the notification obligation can be annulled by a court decision.

Telecommunications

The Dutch Telecommunications Act provides that acquisitions of "predominant control" leading to relevant influence in the telecommunications sector must be notified to the Minister of Economic Affairs and Climate Policy. Notification is required if one of the requirements for “predominant control” below is fulfilled and one of the listed characteristics of “relevant influence” is present.

Predominant control arises if, after the acquisition, the holder or acquirer of such control:

  1. alone or together with persons with which it is in consultation directly or indirectly holds at least 30 percent of the votes in the general meeting of a legal entity;
  2. whether or not by agreement with others, alone or together with persons who act in concert, can appoint or dismiss more than half of the directors or supervisory directors of a legal entity;
  3. holds one or more shares with a special statutory right regarding control;
  4. has a branch office, which is a telecommunications provider;
  5. becomes, as a partner, fully liable to creditors for the debts of the company acting under its own name; or
  6. owns a sole proprietorship.

Relevant influence in the telecommunications sector exists when abuse or deliberate failure of the telecommunications party, and any other telecommunication party in which the holder or acquirer (or its group) holds or acquires predominant control, could lead to:

  1. a wrongful breach of the confidentiality of the communication, or an interruption of the internet access service or telephone service to a certain minimum number of end users in the Netherlands;
  2. an interruption in the availability or verification of a significant part of certain services and applications provided over the internet;
  3. an interruption of availability, reliability or confidentiality of certain products or services for the purpose of a public task in the fields of national security, defense, the maintenance of the rule of law or assistance;
  4. a wrongful breach or interruption as referred to under 1 and 2 regarding a combination of the mentioned services and applications that together exceed certain thresholds; or
  5. other serious consequences regarding the continuity of services by a telecommunications party or the confidentiality of communications.

The concept of relevant influence has been elaborated on in the Decree on undesirable control in  telecommunications (Besluit ongewenste zeggenschap telecommunicatie).

Notification must be filed at least eight weeks before the intended implementation date. In case of a public offer for a listed telecommunications party, the notification should be made at the latest simultaneously with the announcement of the public offer. The Minister will decide within eight weeks of receipt of the notification. If further investigation is required, the Minister may extend the term by a further six months. The term is suspended with effect from the day on which the Minister requests additional information until the day on which the requested information is provided.

The Minister may prohibit or impose regulations in respect of an acquisition of predominant control on the grounds that it could lead to a "threat to the public interest". Such a risk is considered to exist if the investor is a persona non grata or (connected to) a state that can reasonably be expected to use its influence to the detriment of the public interest. Investors that are unwilling to cooperate or whose identity cannot be established may also be considered a threat to the public interest.

A transfer of predominant control without prior notification and approval is void, unless it is made through a stock exchange. The Minister may also impose a fine of up to EUR 900,000 in case of late notification or a failure to notify at all.

In all cases, if the merger control thresholds of the Dutch Competition Act are met, notification to the ACM is required in addition to the notification to the Minister.


NORWAY
Confirmed up-to-date: 21/09/2022

Foreign Investment Control

Generally, Norway’s foreign investment regime is open and offers national treatment to foreign investors. Certain direct investments, from both foreign and domestic acquirers, are however subject to ownership control pursuant to Section 1-3 of the Norwegian Security Act, if the acquisition concerns a "qualified ownership interest". There are no monetary thresholds.

An undertaking may be brought within the scope of application of the Security Act by way of a decision by a Ministry if it is engaged in activities of crucial importance for national security. Please note that a decision to bring an undertaking within the scope of the Security Act, and hence subject to the compulsory notification regime, may be taken at any time, also during a transaction process. Examples of undertakings that can be covered by the provisions on ownership control are companies in the defence, telecommunications, transport, or energy sectors, food and water supply, and health services. 

An acquisition may be refused if the acquisition “may entail a risk that is not insignificant that interests of national security will be threatened”. As the Security Act only recently entered into force, there are currently no public information available as to how the intervention is considered in practice. Within 60 working days after having received a notification, the responsible authority shall either (i) inform the acquirer that the acquisition is approved, or (ii) inform the acquirer that the decision will be made by the King in Council (i.e. the Government). Any requests for information within the first 50 days from filing do have suspensory effect on the 60 working day-deadline. 

The obligation to obtain the necessary approval is with the acquiring party. The filing may be submitted prior to or after closing. Neither the filing or the review process have a suspensory effect on the closing of the transaction, and there are no penalties if the parties implement the transaction before the approval has been granted. However, if the transaction is closed and approval is subsequently refused, the transaction may have to be reversed.


PERU
Confirmed up-to-date: 30/08/2022

Foreign Investment Control

Legislative Decree 662 and Supreme Decree 162-92-EF (“FDI Regulations”) establish a regime for foreign investment in Peru which is aimed to give the same treatment to foreign and national investors with no exceptions other than those established by the Peruvian Constitution and the FDI Regulations.

Restricted investments for foreign investors

The FDI Regulations in accordance with constitutional and legal provisions state limitations on property rights and possession of:

  • mines,
  • land,
  • forests,
  • water,
  • fuel, and
  • energy sources

located in areas within fifty (50) kilometers of the country’s borders by foreign investors. In those cases, prior authorization of the Peruvian government will be required.

There are other specific restrictions regarding

  • exploitation of natural resources within declared Protected Natural Areas,
  • operation of broadcast services,
  • commercial aviation activities, and
  • maritime transportation in the Peruvian territory.

What is considered a “foreign investment”

Under the FDI Regulations, investments from abroad that are made in any of the following modalities may be considered “foreign investments”:

  • Contributions owned by foreign natural or legal persons, channeled through the National Financial System, to the capital of a new or existing company. For example: industrial facilities, new and reconditioned machines or equipment, spare parts, pieces and parts, raw materials, and intermediate products
  • Investments in national currency from resources with the right to be remitted abroad
  • The conversion of private obligations abroad into shares
  • Reinvestments compatible with current legislation
  • Investments in assets physically located within the national territory
  • Intangible technological contributions, such as trademarks, industrial models, technical assistance and patented or non-patented technical knowledge that may be presented in the form of physical goods technical documents and instructions
  • Investments for the acquisition of securities, documents and financial papers listed on stock exchanges or bank deposit certificates in national or foreign currency
  • Resources allocated to a joint venture or similar contracts that grant the foreign investor a form of participation in the production capacity of a company, without implying a capital contribution and that corresponds to commercial operations of a contractual nature through which the foreign investor provides goods or services to the recipient company in exchange for a participation in the volume of physical production, in the global amount of sales or in the net profits of the referred recipient company
  • Any other form of foreign investment that contributes to the development of the country.

Registration of foreign investments

FDI Regulations establish an obligation for non-restricted foreign investments to be registered with the Peruvian Private Investment Promotion Agency (“Proinversion” by its acronym in Spanish). There is no specific threshold or deadline established for this registration.

This obligation also applies for foreign investments contractually formalized with a Peruvian company, including joint ventures and any other form of risk associations.

Equal treatment of non-restricted foreign investments

The FDI Regulations grant guarantees to foreign investors such as:

  • Non-discriminatory treatment
  • Freedom of trade and industry, and freedom to export and import
  • Right to transfer profit or gains abroad in freely convertible currencies and without prior authorization, after having paid the applicable taxes
  • Use of the most favorable exchange rate in the market
  • No restrictions on purchases of national investors’ shares or property rights

The possibility of entering legal stability agreements with the Peruvian government, which could grant foreign investors the following rights for a period of ten (10) years: a) stability of the tax regime (Income Tax), b) stability of the right to non-discrimination, c) stability of the right to use the most favorable exchange rate found in the exchange market, d) stability of the regimen of free availability of foreign exchange, and e) stability of the right of free remittance of profits, dividends and capital.


POLAND
Confirmed up-to-date: 16/08/2022

Foreign Investment Control

The Polish government introduced stricter FDI rules due to the Covid-19 pandemic, which have taken effect on 24 July 2020 and will apply for 24 months from that date. The FDI regime has already existed in Poland since 24 July 2015, however before its extension it applied to specifically enumerated companies, as included in the Regulation of the Council of Ministers that is reviewed on the yearly basis. Based on the list for 2021, there are eleven protected Polish companies (mostly from energy and telecom sectors), and the supervision is exercised by the relevant Minister.

In turn, the extended control of acquisitions (as introduced in 2020) is exercised by the President of the Office of Competition and Consumer Protection (the POCCP). The control will consider the events when a natural person, who is not a citizen of an EU/EEA/OECD Member State, or an undertaking, that does not have or has not had its seat within an EU/EEA/OECD Member State for at least two years before the day preceding the date of notification (date of signing the SPA agreement to be used as a proxy), acquires a “protected undertaking”, achieves a significant participation in a protected undertaking or becomes a dominant entity of a protected undertaking (the Controlled Events). This will also include indirect or secondary acquisitions, where the Controlled Event is exercised by the subsidiary, or cases where the transaction results in obtaining a significant participation/dominant status in a protected undertaking (indirect acquisitions). In relation to secondary acquisitions, the Controlled Event may result for instance: (1) from redeeming/acquiring shares of the protected undertaking, (2) demerger/merger of the protected undertaking, (3) amending the articles of association or the statutes of a protected undertaking with respect to the preference for the shares, a share in the profits, establishing, changing or abolishing any rights vested in the individual shareholders or participants of such undertaking.

The “protected undertaking” is defined as an undertaking which, as at the date when one of the Controlled Events occurs, satisfies at least one of the following criteria, and whose profits generated in Poland from the sale of products and the provision of services in any of the two financial years preceding the notification exceeded the equivalent of EUR 10,000,000:

  • is a public company in Poland; or
  • holds assets in Poland comprising the critical infrastructure (information on what includes the critical infrastructure amounts to classified information that is only known to the entities in question and the relevant authorities); or
  • is an undertaking carrying on business activity in strategic sectors  in Poland listed in the extended FDI regime , e.g. . related to development or modification of software used to provide certain public services (e.g. systems used in public transport, hospitals, food supply), storing and processing data or related to managing natural resources, transhipment, telecommunication services, energy sector, manufacturing of medical equipment and pharmaceutical products, as well as processing meat, milk, cereals, fruit and vegetables.

Before one of the Controlled Events can be conducted, the natural person or the undertaking should submit a notification to the POCCP of his/her/its intention to conduct the Controlled Event, unless such obligation lies with other persons or undertakings (in cases of indirect or secondary acquisition). The POCCP might then object to the Controlled Event i.e. when the intended Controlled Event involves at least a potential threat to the public order, public safety, or public health in Poland.

The review process is divided into two phases. Within 30 business days following the receipt of a request for authorisation, the POCCP will either (i) declare that no authorisation is required; (ii) grant authorisation; or (iii) open an extended review period to determine whether conditions are required to protect national interests.  In case of an extended review, the POCCP has additional 120 days to clear the investment or prohibit it.  If no decision is issued by that deadline, the investment is deemed to be authorised.

The purchaser must refrain from completing the notified transaction until the lapse of the deadline for granting the authorization. Conducting one of the Controlled Events without prior notification or in spite of an objection will be invalid. No right can be exercised (except from the right to sell) from shares or stocks of the protected undertaking, acquired without the required authorisation or despite the prohibition decision. (This applies also to transactions concluded under foreign laws to which the consequence of invalidity could not be applied directly). Similarly, the resolutions of the general shareholders meeting of such protected undertaking are invalid, unless the quorum and the majority thresholds would be achieved irrespective of the invalid votes. 

A person or an undertaking conducting one of the Controlled Events without prior notification shall be subject to a fine of up to PLN 50,000,000 (EUR 11.6m/USD 13.9m) or imprisonment for between 6 months and 5 years, or both these penalties, which shall also apply to the persons who commit such an act while acting on behalf and for or in the interest of a legal person or an incorporated entity.


RUSSIA
Confirmed up-to-date: 07/07/2022

Foreign Investment Control

The Government Commission on Monitoring Foreign Investments chaired by the Russian Prime Minister (the Government Commission)

According to the Strategic Investments Law a pre-closing strategic clearance of the Government Commission is required for acquisition of control over a Russian company having strategic importance for national defense and state security (“Strategic companies”). A Strategic company is a Russian company engaged in any of 46 business areas of strategic importance for the national security and defense listed in the Strategic Investments Law, including manufacturing of aerospace technic, production for weapons and military equipment, activity in the sphere of nuclear and weapon; usage of infectious agents; natural resources; coding and cryptographic equipment, etc. 

Under the Foreign Investments Law foreign governments, international organizations or companies under their control are subject to a separate filing in case of acquisition of more than 25% in any Russian companies directly or indirectly, or a right to block decisions of such companies’ managing bodies according to the procedure set forth by the Strategic Investments Law.

The agency in charge of control over foreign investments is also the FAS making all the paperwork and analysis, while the final decision is taken by a special high-ranked governmental body comprising ministers and top state officers – the Government Commission. 

If a transaction is subject to both merger control and strategic investments filings, no clearance under the Competition Law can be issued unless approval of the Government Commission is obtained. Moreover, a transaction rejected by the Government Commission (although this happens rarely) cannot be cleared under the merger control regulation.

The Russian Prime Minister

According to the 2017 amendments to the Foreign Investments Law the Russian Prime Minister is empowered to forward a transaction of a foreign investor in respect of any Russian entity for consideration of the Governmental Commission under procedure provided by the Strategic Investments Law, if such a transaction can pose a threat to national defense and state security.  


SLOVENIA
Confirmed up-to-date: 23/09/2022

Foreign Investment Control

A foreign direct investment is an investment made by a foreign investor aiming to establish or maintain lasting and direct relations between the foreign investor and an undertaking with registered seat in Slovenia by acquiring at least 10 percent of equity share or voting rights. 

Any natural person who is a citizen or a legal person that has its registered office in an EU Member State, the European Economic Area, Switzerland, or in any third country, intending to make or having made a foreign direct investment, is considered a foreign investor.

A foreign direct investment has to be notified to the Ministry of Economic Development and Technology (“Ministry”) by either the foreign investor or the target, provided it concerns at least one of the following:

  1. critical infrastructure, whether physical or virtual, including infrastructure in the field of energy, transport, water, health, communications, media, data processing or storage, aviation and space sector, defence, electoral or financial infrastructure, and sensitive facilities, as well as land and real estate crucial for the use of such infrastructure; 
  2. critical technologies and dual use items as defined in point 1 of Article 2 of Council Regulation (EC) No 428/2009, including artificial intelligence, robotics, semiconductors, cybersecurity, aviation, space and defence sector, energy storage technology, quantum and nuclear technologies as well as nanotechnologies, biotechnologies, health, medical or pharmaceutical technology; 
  3. supply of critical inputs, including energy or raw materials, food security, medical or protective equipment;  
  4. access to sensitive information, including personal data, or the ability to control such information;
  5. the freedom and pluralism of the media, and
  6. projects or programs of Union interest listed in the Annex 1 to the Regulation 2019/452/EU establishing a framework for the screening of foreign direct investments into the Union. 

An "acquisition" that meets the above criteria has to be notified to the Ministry within 15 days from the conclusion of the agreement or from publication of a public takeover bid. 

Notification must also be made within 15 days in case of 

  1. a foreign direct investment by which a foreign investor or its subsidiary intends to invest by contribution of assets (i) in a new business unit, (ii) in expansion of the capacities of an existing business unit, (iii) in diversification of production with new products not previously produced in a business unit, or (iv) significant changes in the entire production process of an existing business unit (in the sectors specified above) by establishing a new undertaking in Slovenia (“greenfield investment”) or
  2. a foreign direct investment by which a foreign investor or its subsidiary obtains the right to dispose of land plots and real estate crucial for critical infrastructure or in its vicinity.

Notification is mandatory if the above-described requirements are met. The Ministry has a certain level of discretion as it decides on whether a review procedure shall be carried out for a specific notified transaction, as a notification does not automatically result in a review procedure. The Ministry must issue a decision within two months after the notification, however, the governing law also stipulates that the Ministry may review and potentially annul the transaction in the five-year period following the execution of a transaction. Thus, the provisions are somewhat unclear which represents an uncertainty for foreign investors. The Act governing foreign direct investment does not contain a specific requirement not to close the transaction before approval, however the transaction may be deemed null and void should the Ministry decide to annul the transaction after the review has been carried out.


SPAIN
Confirmed up-to-date: 07/08/2022

Foreign Investment Control

Up until March 2020, foreign direct investments were liberalized in Spain, with some exceptions. However, due to the health crisis caused by COVID-19, the Spanish government approved the Royal Decree-Law 8/2020 (amended by the Royal Decree-Law 11/2020), in which it suspended the liberalization regime under certain circumstances.

The current legal regime considers “foreign direct investments” to be those investments whereby an investor intends to acquire a stake of at least 10% in the share capital of a Spanish company or takes an active part in managing or controlling that company when the investor exercises a “decisive influence” over it. The term “decisive influence” is interpreted in light of the Spanish antitrust regulation, rather than according to the traditional notion of “control” from a corporate law perspective, provided that one of the following requirements is met: either (i) the investor is resident in a country outside the European Union (EU) and the European Free Trade Association (EFTA); or the investment is executed by residents located in EU or EFTA States whose ultimate beneficial ownership belongs to residents outside EU or EFTA States. For such purposes, an ultimate beneficial owner exists when a person or an entity holds, or ultimately has direct or indirect “control” of, more than 25% of the investor's capital or its voting rights, or through any other means, exercises direct or indirect “control” over the investor.

Foreign direct investments in Spain are authorization-based, subject to prior screening, depending on (i) the type of company in which the relevant investment is made (target), or (ii) the investor's profile.

In the first case, an authorization is needed when the investment is made in specific strategic sectors that affect public security, public order, or public health. More specifically, affected strategic sectors include: 

  1. critical, physical or virtual infrastructures;
  2. critical technologies and dual-use goods;
  3. the provision of fundamental inputs;
  4. sectors with access to sensitive data or which are able to control such data; and
  5. media.

In the second case, an authorization is needed (regardless of the sector in which the investment is made) where the investor: 

  1. is controlled directly or indirectly by a third-country government;
  2. has invested or participated in activities in sectors affecting the public security, public order or public health of another EU Member State; or
  3. has administrative or court proceedings in another Member State, in the state of origin or in a third-party state, arising from criminal or unlawful activities.

Generally, authorization for foreign direct investments is granted by the Council of Ministers. However, a simplified authorization system exists, which is resolved by the General Directorate of International Trade and Investment, in two scenarios: (i) for ongoing transactions before March 18, 2020, or (ii) for transactions involving small amounts: that is, a value between €1 million and €5 million. A de minimis rule also applies to investments with a value below €1 million, which are exempt from the relevant authorization. If an investment is made without the relevant authorization, it will be null and void.

Notwithstanding the foregoing, the recent Royal Decree-Law 34/2020 has set forth a new interim screening regime applicable from 10 November 2020 to 30 June 2021 (the “Interim Regime”). The Interim Regime also applies to investments coming from residents of EU or EFTA States (other than Spain) or by residents in Spain with a ultimate beneficial owner in an EU or EFTA State when the following requirements are all met:

  1. the investment is made in stock-listed companies registered in Spain, or when unlisted, if the value of the investment exceeds €500 million;
  2. the target company operates in any of the abovementioned strategic sectors, and
  3. the investor becomes the holder of at least 10% of the shares or acquires the control of the company according to Spanish antitrust regulation by exercising  a “decisive influence”.

Further regulatory amendments to the current legal framework are expected in the near future. Specifically, and according to a draft which has been made available to the public, the most likely changes will:

  1. exempt some transactions of relatively less relevance from notification;
  2. further define the concept of strategic sectors;
  3. clarifiy the concept of investor in the case of funds; and
  4. reduce decision deadlines.  

THAILAND
Confirmed up-to-date: 07/09/2022

Foreign Investment Control

The main law governing foreign investment in Thailand is the Foreign Business Act B.E. 2542 (1999) (“FBA”). FBA regulates the foreign ownership restrictions in reserved business activities as certain types of business activities are reserved for Thai nationals only.

Definitions of Foreigners

FBA defines “foreigner(s)” as:

  1. natural person not of Thai nationality.
  2. juristic person not registered in Thailand.
  3. juristic person registered in Thailand having the following characteristics:
    • having half or more of the juristic person’s capital shares held by persons under (1) or (2); or having any number of persons under (1) or (2) investing with a value of half or more of the total capital of the juristic person;
    • being a limited partnership or a registered ordinary partnership having the person under (1) as the managing partner or manager.
  4. juristic person registered in Thailand having half or more of its capital shares held by the persons under (1), (2) or (3) or juristic person having the persons under (1), (2) or (3) investing  in the amount of half or more of its total capital.

FBA only considers the shareholding percentage, and not voting rights or dividend rights to determine the ownership of a company under the FBA. The restrictions imposed under the FBA are triggered when a company that is owned by foreigner(s) starts to conduct business activities in Thailand.

Types of Reserved Business Activities

Potential foreign investors should review the 3 lists of restricted businesses as set out in the FBA to determine whether their proposed business falls under any of the reserved business activities.

List 1 consists of business activities which are strictly prohibited to foreigners:

  • newspaper or radio broadcasting stations and radio and television station businesses;
  • rice farming and growing plantations or crops;
  • livestock farming;
  • forestry and timber processing from a natural forest;
  • fisheries in Thai territorial waters and specific economic zones;
  • extraction of Thai medicinal herbs;
  • trading and auctioning of antique objects or objects of historical value from Thailand;
  • making or casting of Buddha images and monk alms bowls;
  • land trading.

List 2 consists of the activities related to national safety or security, or those which affect arts and culture, tradition, folk handicrafts or natural resources and the environment, the details of which can be found in the FBA.

There are exceptions to List 2 where foreigners can engage activities in List 2 provided that Thai nationals hold at least 40 percent of the capital in that foreign juristic person and two-fifths of the directors must be Thai. The aforesaid exceptions are given under the following circumstances:-

  • the Minister of Commerce (with approval from the Cabinet), permits, for a reasonable cause, reduction of the Thai shareholding requirement, which cannot be less than 25 percent of total shares for obtaining a Foreign Business Licence;
  • the foreigner has been granted the investment promotion scheme from the Board of Investment (“BOI”);
  • the foreigner has obtained the authorisation from the Industrial Estate Authority of Thailand; or
  • the foreigner is engaging in a business activity that is being protected under a treaty or obligation to which Thailand is bound.

List 3 consists of business activities for which Thai national are not adequately prepared to compete with foreigners, amongst others, including but not limited to accounting, legal, architectural or engineering services, advertising services, hotels, guided touring, sale of food and beverages and other type of business activities which can be found in the FBA.

There are exceptions to List 3 where foreigners can engage activities in List 3 in any of the following circumstances:

  • permission is obtained from the Director-General of the Department of Business Development, the Ministry of Commerce (with approval from  the Foreign Business Board) for obtaining a Foreign Business Licence;
  • the foreigner has been granted the investment promotion scheme from the BOI;
  • the foreigner has obtained the authorisation from the Industrial Estate Authority of Thailand;
  • the foreigner is engaging in a business activity that is being protected under a treaty or obligation to which Thailand is bound; or
  • the foreigner is engaging in any relevant businesses that are exempted by the Ministerial Regulation(s) issued by Ministry of Commerce from time to time. 

Minimum Capital Requirement

FBA requires a foreigner to maintain a minimum capital of not less than 2 million Thai Baht (“Baht” or “THB”) for the commencement of the operation of a business in Thailand.  

As for the business requiring permission as specified in the lists above, the minimum capital as prescribed in the Ministerial Regulation for each business shall not be less than 3 million Baht.

Application Procedures

Foreigners who conduct the business activities under List 2 or List 3 but are eligible for the privilege under the treaty or obligation to which Thailand is bound; or who are promoted under the investment promotion scheme shall apply to obtain a Foreign Business Certificate as evidence of the exemptions. The authority will issue the certificate within 30 days of the application submission date.

With regard to the Foreign Business Licence, the Cabinet (for businesses in List 2) or the Director-General (for businesses in List 3) will process an application of a Foreign Business Licence within 60 days from the date of receipt of the said application. The processing period may be extended as necessary by the authorities but in any circumstances shall not exceed a further 60 days.

When approval is granted by the Cabinet (for businesses in List 2) or the Director‐General (for businesses in List 3), the licence will be issued within 15 days from the date of the approval.

Penalties under the FBA

Foreign nationals who violate the provisions of the FBA in relation to conducting business in Thailand without any permission granted, are subject to imprisonment for a term not exceeding three years or to a fine ranging from THB 100,000 up to 1,000,000, or both. A Thai court may also order the violating entity to cease its operations. Any violation of a court order in this regard shall be subject to a daily fine of THB 10,000 to 50,000.

Other Regulations

On top of the FBA, there are other regulations and laws that impose restrictions on foreigners’ participation in specific sectors such as in the financial business, insurance business, land transport business, and real estate related business.


TRINIDAD & TOBAGO
Confirmed up-to-date: 21/09/2022

Foreign Investment Control

Rules applicable foreign investors:

Foreign investment in Trinidad & Tobago is governed by the Foreign Investment Act (the ‘FI Act’). The FI Act requires foreign investors wishing to acquire shares in local companies to inform the Minister of Finance.

Under the FI Act, a licence is required before a foreign investor:

  1. acquires shares in a local public company either directly or indirectly resulting in 30% or more of the total cumulative shareholding of the company being held by foreign investors;
  2. directly or indirectly acquires more than one acre of land for residential purposes anywhere in the country;
  3. directly or indirectly acquires more than five acres of land for the purposes of trade or business anywhere in the country; or
  4. directly or indirectly acquires any land (for any purpose) on the island of Tobago.

Consequently, once any of the above criteria are met, a license must be obtained, which is granted by the Minister of Finance, pursuant to a delegation of that power by the President. In addition, the FI Act also requires foreign investors who wish to incorporate a private company in Trinidad &Tobago to supply the Minister of Finance with prescribed information in respect to the investment, prior to doing so.

With respect to acquisition of land, the Guidelines issued by the Ministry of Finance state that a prior license is not required if the acquisition is:

  1. based on an annual tenancy or for any less interest for the purpose of his residence, trade, or business but not exceeding five acres of land in all;
  2. under an intestacy, or as a beneficiary or as an executor under a will, for a period of one year from the date of the death of the testator or intestate, or for such extended time as the President may grant;
  3. in pursuance of rights to foreclosure or enter into possession as a mortgagee for a period of one year from the acquisition of such land or for such extended time as the President may grant;
  4. as a judgment creditor for a period of one year from the date of acquisition of the land or for such extended time as the President may grant; or
  5. jointly with a spouse, where that spouse is a citizen of a CARICOM Member State who is a resident in T&T within the meaning of Section 5 of the Immigration Act.

It should be noted that consideration for land or shares acquired by a foreign investor must be paid in an internationally traded currency (i.e. not Trinidad &Tobago dollars) through an authorised dealer of that currency, save and except of the case of a company incorporated in Trinidad & Tobago, where such consideration is financed out of capital reserves or retained earnings generated from its operations in Trinidad &Tobago.

In practice, we are not aware of any applications for licences having been refused but there may be substantial delays before they are granted. Note also that if the proposed transaction involves the direct or indirect acquisition of any land on the island of Tobago by a foreign investor, this may delay approval of the proposed transaction as the TTFTC  will not grant permission to merge until any required licences have been granted. There is also a risk that the foreign investor may not be granted a licence to acquire such lands in Tobago.

For reference:

“Foreign investor” is defined in the FI Act as:

  1. an individual who is not a national of Trinidad & Tobago or another CARICOM Member State;
  2. any firm, partnership or unincorporated body of persons of which at least one-half of its membership, or control, is held by persons who are not nationals of Trinidad & Tobago or another CARICOM Member State; or
  3. any company or corporation that is not incorporated in Trinidad & Tobago or another CARICOM Member State or if so incorporated, is under the control of persons to whom the two points directly above apply or is deemed to be under the control of a foreign investor.

“Control” by a foreign person arises where:

  1. at least one-half of the votes exercisable at any meeting of the company or corporation are vested in foreign investors;
  2. at least one-half of the nominal amount of its issued shares that are voting shares are vested in foreign investors;
  3. at least one-half in number of its members are foreign investors; or
  4. the company is otherwise in fact controlled by foreign investors.

Timing for foreign investment review

There is no review period set out in the FI Act. The FI Act authorises the Ministry of Finance to issue regulations to assist with administration, but these have not, to date, been issued.


TURKEY
Confirmed up-to-date: 08/08/2022

Foreign Investment Control

Certain sectors are closed to foreign investments due to their public service character; these include electric power transmission and railways.

Besides that, pursuant to the General FDI Legislation (the English versions may not be up-to-date), (i) foreign-capitalized Turkish companies and (ii) branches of foreign companies established in Turkey, fall under the foreign direct investment concept and those entities must notify direct share transfer transactions to the General Directorate of Incentive Practices and Foreign Capital just for statistical purposes. Such notification should be made within one month as of realization of the share transfer. Indirect changes are not subject to this notification. The General FDI regime is based on freedom to invest principle and does not implement any prohibitions on transactions.

The analysis for identifying whether any regulatory filing, consent and/or approvals will be required (based on general FDI regime or due to sector/industry specific regulations) should be done on a case-by-case basis.

Industries and types of investment covered the general FDI regime

The Turkish FDI regime applies depending on the element of foreignness. Under the FDI Law, foreign investors are:

  1. real persons of non-Turkish nationality;
  2. Turkish citizens residing abroad; and
  3. legal entities and international organizations incorporated under foreign laws.

A foreign direct investment may be defined as 

  1. setting up a new company or branch or
  2. joining the shareholding of a private company by way of acquiring shares outside securities exchanges (regardless of the size of shareholding) or by acquiring at least 10% shareholding or voting rights of a public company from a securities exchange,

provided that the investment is made through economic assets imported to Turkey from abroad such as

  1. cash capital, company securities (excluding state securities), machinery and equipment, industrial and intellectual property rights; or
  2. profit, revenue, cash receivable used in reinvestment, other rights having monetary value or other rights as to exploring or extracting natural resources, by foreign investors.  

Certain sectors such as civil aviation, maritime, broadcasting, insurance and banking are regulated more strictly and investments concerning such sectors may require further reviews. Turkish laws are not intended to be numerus clausus and there are additional limitations as per type of the industry, sector, scope of work, etc.

Any applicable ownership thresholds

In terms of joining private companies, there is no threshold. For public companies, in order for General FDI Legislation to become applicable shareholding and/or voting rights acquired in such company should be at least 10% of such rights in the company. It should be noted that the General FDI legislation would not be applicable if the acquisition falls below this threshold.

Also, as explained above, some sectors are subject to additional regulations, some of which impose restrictions as to ownership. For example, the foreign direct share capital ratio in a media service provider entity cannot exceed 50% of the paid-in share capital and a foreign real person or a legal entity can only be a direct shareholder of 2 media service providers at most. Moreover, foreign persons cannot be granted mining rights nor can they hold shares in the legal entities of private educational institutions.

Although it is not directly related to General FDI legislation, it is worth also noting the filing requirement concerning changes in direct or indirect shareholding. As per Article 198 of the Turkish Commercial Code No. 6102 and Article 107 of the Regulation on Trade Registry, all Turkish entities (including foreign-capitalized entities) are required to disclose direct and indirect share transfers. Relevant articles stipulate that in case an undertaking (real person, legal entity, organization, public economic enterprises etc.), directly or indirectly, reaches or falls below 5%, 10%, 20%, 25%, 33%, 50%, 67% or 100% of shares representing share capital of a Turkish entity, the said undertaking is required to disclose such event to the relevant Turkish entity, within 10 (ten) days following realization of the transaction. Accordingly, the Turkish entity shall have such event registered with the trade registry within 10 (ten) days following the disclosure. 

Differentiation based on nationality of foreign investor

The Turkish FDI regime rests on the principle of equal treatment between foreign investors and Turkish investors. In a similar vein, there is no distinction between foreign investors either.

Although there is no distinction between foreign investors, according to the Law No. 7262 on Preventing the Proliferation of Financing Weapons of Mass Destruction, persons, entities or organizations stated in the decisions of the United Nations Security Council (“UNSC”) or persons or entities controlled directly or indirectly by them or acting on their behalf or for their account cannot carry out activities in Turkey directly or indirectly. This provision obviously does not aim to restrict foreign investments or investors but aims to prevent financing of terrorism.

Relevant Authorities

Under Article 5 of the FDI Regulation, companies and branch offices falling under the scope of the FDI Law are obliged to make certain notifications to the Ministry of Industry and Technology’s General Directorate of Incentive Practices and Foreign Capital (“General Directorate”) through an online system, namely Electronic Incentive Practices and Foreign Capital (“E-TUYS”).

However, due to numerous sector specific legislations, further prior approvals from relevant authorities such as the Ministry of Environment and Urbanization, Energy Market Regulation Authority, Ministry of Treasury and Finance, Banking Regulation and Supervision Agency and Capital Market Board or post-notifications to these entities might be required depending on the business activity of the investor. 

Procedures and Deadlines/Timelines

The General FDI regime only sets forth post-transaction notification requirements. Companies and branch offices falling under the scope of the FDI Law are obliged to make the necessary notifications to the General Directorate through E-TUYS within 1 (one) month following the transaction.  However, failing to meet such deadline for notifications does not affect the validity of the transaction in question.

Other sector-specific legislation may stipulate further prior approval procedures/deadlines/timelines, as the case may be. As provided above, whereas foreign investments in certain sectors may be prohibited under sector specific rules, this is not the case under the General FDI Legislation.


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