FDI: EU-INVESTMENTS INCLUDED IN THE SCREENING

The Law 164/2023¹ published in the Official Journal 495 of June 7, 2023, extends the scope of the screening of foreign direct investments to include, in certain conditions, FDI over EUR 2 MM by EU-investors.

The previous legislation provided only for the screening of FDI by non-EU natural or legal persons investors.

We remind that under the GEO 46/2022 on the enforcement of the EU Regulation 2019/452 of the European Parliament and of the Council of March 19, 2019, foreign direct investments topping EUR 2MM, are subject, in certain conditions, to screening and clearance by the Commission for screening and clearance of foreign direct investments in order to prevent circumvention of the screening mechanisms of foreign direct investments (in Romanian CEISD).

Here follows an overview of the main modifications and amendments brought to the GEO 46/2022 under the Law 164/2023.

Scope

The screening of foreign investments is aimed at both foreign direct investments made or intended by a third-party country (i.e., non-EU citizen or non-EU headquartered legal person or EU-headquartered legal person controlled by a non-EU natural or legal person), but also, subject to certain requirements, investments made / intended by an EU-investor.

According to the newly enacted definitions, an EU-investor is:

1. The natural person, EU-member State citizen, having made or intending to make an investment in Romania;
2. EU-headquartered legal person having made or intending to make an investment in Romania;
3. EU-headquartered legal person, directly or indirectly controlled by an EU-citizen natural person, an EU-headquartered legal person or a legal entity without legal personality, organized and operating under an EU-member State legislation, having made or intending to make an investment in Romania;
4. The trustee of an entity without legal personality having made or intending to make an investment in Romania or a person in a similar position, provided such person is EU-citizen, if natural person, Eu-headquartered, if legal person, or organized and operating under an EU-member State legislation, if other entity;

Clearance threshold

Both the clearance threshold of over EUR 2MM²  and the activity fields remain as provided for under the Decision of CSAT no. 73/2012³, but the scope of the screening is extended to include also direct foreign investments by EU-investors.

We also remind that a FDI clearance by CEISD may exceptionally be required for investments under the EUR 2 MM, if by their nature or potential effects they could impact on security or public order or they pose a threat thereto. How the value of the investment will be determined is to be provided in instructions to be issued by the Competition Council.

The Commission for Screening of Foreign Investments (CESID)

Under the Law 164/2023, a representative of the Ministry of Energy was added to the composition of this commission subordinated to the government.

Thus, the CEISD includes one representative of the Prime Minister, the Competition Council, the General Secretariat of the Government and from the Ministries of Economy, Entrepreneurship and Tourism, Transport and Infrastructure, Research, Innovation and Digitization, Finance, National Defence, the Ministry of Internal Affairs, the Ministry of Health and the Ministry of External Affairs. Representatives of the Romanian Intelligence Service and the External Intelligence Service are permanent guests within the CEISD.

Following screening of the FDI files, the CEISD issues, as appropriate, the following types of clearance: FDI authorization clearance, FDI conditional authorization clearance or FDI denial. The CEISD clearance is issued in maximum 60 days since submission of the complete authorization file.

FDI conditional authorization clearance and FDI denial issued by the CEISD are sent to the government. The government will issue a decision of conditional authorization or, as the case may be, a decision of denial of the FDI request.

Should CEISD find that FDI subject to clearance were made without having filed for clearance and that such investment affects security or public order in Romania or by its nature, is likely to affect projects or programs of interest for the EU, then it will issue an annulment of such direct investment.

Such annulment proposal will provide for the conditions, the criteria, the deadlines, and the procedure of annulment of the FDI, which are going to be established under the Decision of the Government.

It is also to be noted that if the CEISD deems necessary to consult the CSAT (The Superior Council for Defence), the latter will proceed to a thorough screening of the authorization request. Such thorough screening of the authorization request can, subject to certain conditions, be initiated by the CSAT.

Notes 

1. The Law 164/2023 for approval of the GEO 46/2022 on the enforcement of the EU Regulation 2019/452 of the European Parliament and of the Council of March 19, 2019, establishing a framework for the screening of foreign direct investments into the Union, and modifying and amending the Competition Law no. 21/1996
2. Calculated at the exchange rate of the NBR on the last day of the financial year preceding the year of implementation of the operation
3. The fields in which non-EU investments are subject to screening have been set under the Decision no. 73/2012 of the Supreme Council for Defense (“CSAT” in Romanian). Therefore, are subject to screening and approval by the CFDIS investments in the following fields: security of citizens and collectivities, borders security, energetic security, transports security, security of vital resources supply, security of critical infrastructure, security of IT and communication systems, security of financial, fiscal, banking and insurance activities, security of manufacture and circulation of weapons, ammunition, explosives, toxic substances, industrial security, protection against disasters, protection of agriculture and of the environment, protection of privatization operations of state-owned companies or of their management. Also, there are special transparency rules for investments in media companies. Such companies refer to companies (i) holding audio-visual licences or (ii) having released publications of an average 5,000 printed copies / day during the previous calendar year or (iii) owning a web portal of minimum 10,000 views/ month. Such transaction will be subject to public consultation of at least 30 calendar days.