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On 27 April 2021 the German government adopted the 17th amendment (“Amendment”) to the Foreign Trade and Payments Ordinance (“AWV”) aligning the German Foreign Direct Investments (“FDI”) regime with the EU Screening Regulation. The Amendment significantly extends the number of sectors and target activities that require mandatory notification in Germany and brings significant procedural changes and clarifications. The revised Ordinance entered into force on 1 May 2021 and will apply to all transactions signed thereafter.

The Amendment follows a series of prior legislative changes. In light of the COVID-19 pandemic, the German government previously adopted the 15th AWV-Amendment in June 2020, which introduced far reaching filing obligations in the healthcare sector. Subsequently, the first amendment of the Foreign Trade and Payments Act introduced standstill obligations backed by fines and criminal charges in July 2020. Together with the 16th AWV-Amendment in October 2020 the German FDI regime was also aligned with the requirements of the EU Screening Regulation.

Our blog provides an overview of the German FDI regime and highlights the key changes introduced by the Amendment.
Continue Reading Technology Sector under Closer Scrutiny – German Government Significantly Extends the Scope of Foreign Direct Investment Review in Germany

On 22 January 2021 the German Ministry for Economic Affairs and Energy (“BMWi”) published a draft for the 17th amendment (“Draft Amendment”) of the Foreign Trade and Payments Ordinance (“AWV”). While the Draft Amendment remains subject to comments and further consultation, it already provides early guidance on sectors that may come under close Foreign Direct Investments (“FDI”) scrutiny in future. Among other changes, the Draft Amendment defines a number of additional sensitive activities triggering mandatory and suspensive filing requirements.

The new rules can be expected to have significant impact on transactions in particular in the technology sector and will lead to a significant increase in mandatory FDI filings in Germany.
Continue Reading Significant Revamp of German FDI Regime – German Government Presents New Rules on FDI Screening

On 2 December 2020, the German government prohibited the acquisition of German company IMST GmbH, Kamp-Lintfort (“IMST”) by a Chinese investor. This is the second high profile prohibition decision issued by the German government this year on the grounds of Foreign Direct Investment (“FDI”) rules. Read in conjunction with the upcoming legislative tightening of the existing Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung, the German FDI law), expected to come into force during Q1 / 2021, and other measures like the ‘golden share’ taken in Curevac (a company heavily invested in Covid-19 research), the IMST decision demonstrates the mounting willingness by Germany to step in and protect what it perceives to be its national interests.
Continue Reading Foreign Direct Investment – German Government Prohibits Acquisition By A Chinese Buyer

The European Commission (”Commission”) is preparing the ground for a new competition enforcement tool. This new tool could substantially extend the competition authority’s current enforcement powers and allow for far-reaching intervention where the Commission identifies structural competition concerns. In particular, following the proposal, the standard for intervention could be lowered significantly as the Commission may no longer be required to establish dominance in order to impose behavioural or structural remedies on a company.

Executive Vice-President Margrethe Vestager, in charge of competition policy, explained “that there are certain structural risks for competition, such as tipping markets, which are not addressed by the current rules.” She stated that the Commission “is seeking the views of stakeholders to explore the need for a possible new competition tool that would allow addressing such structural competition problems.
Continue Reading The New Normal? EU Commission Prepares a New Competition Enforcement Tool Aiming at Structural Competition Concerns

On 17 June 2020 the European Commission (“Commission”) published a White Paper on new enforcement powers regarding foreign subsidies. This initiative pursues two objectives, first it sets out a general policy approach for foreign subsidies, and second, it provides a number of proposals to address a perceived regulatory gap. More specifically, the White Paper suggests new tools to manage what the Commission regards as unfair competition and other distortions of competition within the internal market caused by foreign subsidies.

The White Paper proposes these new review powers of the Commission and/or other competent authorities in addition to already existing tools such as antitrust and merger control, State aid and FDI screening. As such, the Commission outlines a complementary toolbox aimed to facilitate transparency regarding foreign subsidies and maintain a level playing field within the EU internal market.
Continue Reading European Commission publishes White Paper on the Review of Foreign Subsidies – [New/More] Intervention Powers ahead?

The FDI space in Europe remains dynamic. Less than five months from the entering into force of the EU FDI Regulation, and just two months since the European Commission asked the Member States to both strengthen and “vigorously” implement the tools available to them and, where appropriate, introduce new FDI screening mechanisms –on which we reported in our previous alert –the past week manifested a number of legislative activities across Europe.

In this blog, we consider the changes proposed or made to laws in Germany, Hungary, Poland and Austria. Overall, we observe a further tightening of the legislative field, lowering the intervention thresholds / filing requirements, while increasing the sectors covered.

Besides the jurisdictions covered in the following, a new FDI law was also proposed in the Czech Republic in April and will be discussed and debated in the Czech Parliament in the coming weeks – watch this space for further updates.
Continue Reading Regulation of Foreign Direct Investment (“FDI”) gathers Pace across Europe – A Week of Change.

On 27 April 2020 the Federal Cartel Office in Germany (“FCO”) cleared the acquisition of Vossloh Locomotives GmbH (“Vossloh Locomotives”) by Chinese manufacturer CRRC Zhuzhou Locomotives Co. Ltd. (“CRRC”). FCO President Andreas Mundt stated that the in-depth investigation found that initial concerns were not serious enough to justify prohibiting the transaction.

The FCO released a press report and a case summary (exclusively available in German) one week before expiry of the review period. The detailed clearance decision will be published at a later stage.

By acquiring Vossloh, CRRC takes over a key manufacturer of shunters in Europe. The FCO determined that Vossloh Locomotives is the leader for the manufacture of diesel-powered locomotive shunters with a share between 40-50% in the European Economic Area and Switzerland. The FCO found that this area constituted a relevant geographic market. CRRC is the world’s largest manufacturer of rolling stock, albeit with only limited activities in Europe.

The decision should be read in the context of the interplay between merger control and Foreign Direct Investment (“FDI”) screening. It contains significant and novel decisional guidance on the competitive assessment under German merger control law of acquisitions by State-owned companies originating from centrally planned economies. It also clarifies that a merger control analysis only covers some of the concerns raised by acquisitions by state-owned companies.
Continue Reading German Competition Authority Provides Guidance on the Interplay of Merger Control and FDI Screening

In two recent webinars covering antitrust, mergers and state aid, DG COMP senior officials shared their views on how DG COMP is operating under the current COVID-19 crisis.

Antitrust: More Flexible Enforcement

Maria Jaspers, head of unit for antitrust case support and policy, gave the following key messages:

  • The absence of legal deadlines creates certain flexibility with regard to time-tables in pending investigations;
  • The crisis may have an influence on pending policy reviews (including the vertical and horizontal block exemption regulations);
  • Several actions have been put into place: these measures include the European Competition Network’s (the “ECN”) joint statement of 23 March 2020, indicating that the Commission (and the competition authorities of the Member States) will not actively intervene against necessary and temporary measures between businesses aimed to avoid a shortage of supply;
  • She pointed to the information on DG COMP’s website titled “Antitrust Rules and Coronavirus” providing dedicated guidance to businesses. Additionally, DG COMP has set up a dedicated mailbox that can be used to seek informal guidance on specific initiatives;
  • She recalled that, on 8 April 2020, the Commission published a “Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak” (the “Temporary Framework”). Read more on the Temporary Framework in this blogpost. Rainer Becker, head of unit in antitrust for pharma and health services added that DG COMP is vigilantly monitoring the markets to ensure that there are no breaches on the back of the crisis and that DG COMP will continue to progress opened proceedings, including by assessing complaints and market information. However, he indicated that competition rules may in certain circumstances be applied in a more flexible manner (read more on the flexible application of competition law rules here).


Continue Reading Competition Enforcement Under the COVID-19 Crisis: DG COMP Staff’s Views

The German government has proposed a new draft bill reforming the current foreign direct investment (“FDI”) regime, which is likely to have a significant impact on all M&A transactions involving acquisitions of 10% or more of the voting rights in German companies active in “critical infrastructures” and “critical technologies” by any non-EU investors. Under the revised regime, such transactions will automatically be subject to a period of suspension until clearance is granted.
Continue Reading German Government Decides on Tightening the National FDI Screening Regime