On October 26, 2022, the German government permitted (with conditions) an investment by Chinese state-owned COSCO Shipping Group (“COSCO”) in one of Hamburg’s four shipping container terminals. Pursuant to foreign direct investment (“FDI”) laws, the German Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz, “BMWK”) had been notified of the proposed acquisition by COSCO of a 35% minority interest in the port terminal, a strategic location on the German coastline. The BMWK ordered that COSCO’s acquisition of voting rights must remain below 25%. The details of the decision remain confidential, but the BMWK justified its partial prohibition on the grounds that the acquisition of 35% as notified would constitute a “threat to public order and security”. According to the BMWK’s press release, the partial prohibition decision prevents COSCO from acquiring a ‘strategic’ shareholding, and reduces the acquisition to a mere financial participation. As a safeguard in this respect, the decision contains provisions prohibiting COSCO from acquiring any additional influence, for example, through a grant of rights that would be atypical for a holder of a less than 25% interest. Furthermore, under the German FDI regime, any follow-on acquisition of additional voting rights by COSCO would be subject to a new notification requirement.
Peter D. Camesasca is a partner in Covington’s Brussels and London offices, with 25 years of experience in all major aspects of EU competition law. Peter also co-chairs the firm’s Foreign Direct Investment Regulation initiative, and, has a particular focus on in- and outbound aspects of the Asia/Europe interface.
Peter’s experience includes cases under Articles 101, 102 and 106 TFEU, national and multijurisdictional merger and joint venture notifications (including FDI assessments), investigations by multiple enforcement authorities and global antitrust litigation and monopolization issues (including IP cross-over issues). In addition, he advises and litigates on horizontal and vertical cooperation issues, prepares and executes various compliance and dawn raid programs and participates in the installation of in-house training programs, and heads a vibrant private enforcement practice.
Peter has acted before the European Commission, the European courts, the German Bundeskartellamt, the UK Office of Fair Trading and the Competition and Markets Authority, the Belgian Competition Council, and various national courts.
Over the summer, the UK Secretary of State for Business, Energy and Industrial Strategy (“BEIS”) delivered the first decisions, in the form of final orders, under the National Security and Investment Act 2021 (“NSIA”). We consider these decisions and other cases in the context of the first nine months of the UK’s new (quasi) Foreign Direct Investment (“FDI”) regime.
- The NSIA has broad reach, and BEIS has shown willingness to exercise the powers to review transactions that can stretch beyond mergers and acquisitions, for example, to licensing agreements.
- NSIA review involves the weighing of a number of factors relating to the target, the acquirer and the level of control being obtained. Early decisions suggest that target’s products/services and activities are just as important a factor as the acquirer’s identity, among the cases that have engaged the attention of the Investment Security Unit (“ISU”).
- “Behavioural” undertakings, e.g. involving implementation of security controls or granting of audit rights to regulators appear to be a continuation of trends seen in the predecessor UK ‘public interest’ regime, and similar to other EU FDI procedures.
On 30 June 2022, the Council of the EU (the “Council”) and the European Parliament (the “Parliament”) reached a much awaited agreement on the proposal of the European Commission (the “Commission”) for the Regulation on foreign subsidies distorting the internal market (the “FSR”) (see our alert on the proposal). This political agreement swiftly concludes the trilogue discussions initiated in the beginning of May this year, after the Council (see our blog post) and the Parliament (see our blog post) each adopted their own positions. The agreement has been approved by the Permanent Representatives Committee (“COREPER”) of the Council on 13 July and the Committee on International Trade of the European Parliament on 14 July.
The FSR grants substantial new powers to the Commission and “will help close the regulatory gap whereby subsidies granted by non-EU governments currently go largely unchecked”, according to remarks from Executive Vice-President of the Commission, Margrethe Vestager. It will be deeply transformative for M&A and public procurement in the EU.
The agreement on the FSR did not lead to any major changes in the proposal made by the Commission. The most notable points of discussion between the Parliament and Council and the outcome of this agreement are:
- The thresholds above which companies are obliged to inform the Commission about their foreign subsidies remain unchanged compared to the Commission’s proposal;
- The time period in which the Commission has to investigate foreign subsidies in large public procurement has been reduced. In the same way, the retroactive application of the FSR has been limited to foreign subsidies granted in the five years prior to the application of the regulation;
- The Commission will issue guidelines on the existence of a distortion, the balancing test and its power to request notification of non-notifiable transactions, at the latest three years after the entry into force of the FSR; and
- A commitment to a multilateral approach to foreign subsidies above the FSR and the possibility for the Commission to engage in a dialogue with third countries has been included.
The European Commission (“Commission”) has repeatedly urged EU Member States to set up foreign direct investment (“FDI”) screening mechanisms. To date, 18 out of 27 Member States have adopted FDI screening powers, providing for the review of M&A transactions and other investments on national security and public policy grounds. Recently, Belgium and Ireland have each announced draft proposals which, once implemented, will enlarge the group of Member States reviewing transactions on FDI grounds.
Against this background of increasing FDI screening for local and global M&A transactions, some voices call for broader reforms. The European Parliament has launched an initiative aimed to address a future EU international investment policy and recently adopted a resolution with far-reaching proposals for FDI screening in Europe.
We provide an update on these developments in this blog post and consider the current outlook for FDI screening.…
On 4 May 2022, the Council of the EU (the “Council”) formally adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). On the same day, the European Parliament (the “Parliament”) also adopted its position on the Foreign Subsidies Regulation (see our blog post). The Council’s adoption confirms the Commission’s initial proposal of the regulation while seeking to limit the Commission’s power to investigate foreign subsidies.
The three most important things for you to know about the recent amendments to the Foreign Subsidies Regulation:
- The thresholds above which companies are obliged to inform the Commission about their foreign subsidies have been increased, reducing the scope of the new rules to a narrower set of acquisitions, mergers and public procurements. In addition, foreign subsidies of less than EUR 5 million would not be subject to notification and foreign subsidies of less than EUR 200,000 would escape any scrutiny.
- The time period in which the Commission has to investigate foreign subsidies in large public procurements has been reduced. Furthermore, the “retroactive” application of the Foreign Subsidy Regulation is limited to foreign subsidies granted in the five years prior to the application of the regulation.
- The application of some concepts (e.g., the power to request prior notification) will be subject to further guidance by the Commission.
On 4 May 2022, the European Parliament (the “Parliament”) adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). It confirms the Commission’s powers to investigate and remedy the potential negative effects of foreign subsidies. It further approves a number of amendments adopted by the committee on international trade “to make the tool more effective and improve legal certainty”, according to the Committee’s press release.
Continue Reading The European Parliament endorses the EU Commission’s proposal on the Foreign Subsidies Regulation
Russia’s continued invasion of Ukraine is broadly impacting foreign direct investment (“FDI”) screening. A range of governments have announced they will apply close scrutiny to investments from Russia and its allied countries in general, and not only to investors that are subject to sanctions or other restrictive measures. The European Commission (“Commission”) has published guidance on the screening of investments from Russia and Belarus.
The German government has already intervened, appointing a fiduciary for an operator of critical gas infrastructure. Canada issued a policy statement targeting Russian investors and Italy permanently broadened its FDI regime. Our blog provides a summary of these developments below.…
The English High Court (“High Court”) has issued an important judgment in the claim that Gemalto group companies (“Gemalto”) brought against Infineon (“Infineon”) and Renesas Electronics (“Renesas”) companies, for damages arising from the smart card chips cartel (Gemalto NV and others v Infineon Technologies AG  EWHC 156 (Ch), the “Judgment”). The claim arises from a European Commission decision in 2014. The High Court has found that Gemalto brought its claim out of time because the limitation period started to run not when the Commission adopted that decision, but about one and a half years before that, when the Commission adopted preliminary charges in the form of a Statement of Objections. The Judgment gives a clear signal that prospective claimants can no longer assume that the limitation period starts running from the date of a regulatory decision and gives some reassurance that potential defendants should not be on the receiving end of claims that could have been brought earlier.
Continue Reading English High Court issues warning shot to cartel damages Claimants who delay
In M&A and other transactions, conditions associated with foreign direct investment (“FDI”) filings are becoming more common place, and investors are adjusting to the diligence, disclosure and time associated with obtaining FDI clearances. In the EU, the introduction of wider-ranging FDI laws has been rapid, and freshly empowered national regulators in the Member States are already demonstrating their willingness to use the tools at their disposal where they believe that is necessary. For investors, the deal execution risks are sobering in circumstances where a failure to obtain mandatory clearance may render a transaction void (in addition to other possible sanctions). Transaction costs are also rising as longstop dates lengthen to accommodate sometimes unpredictable FDI review periods, especially for deals in the most sensitive sectors.
Marking one year since the full implementation of the EU FDI screening regulation (the “EU FDI Regulation” or the “Regulation”), this blogpost considers the first annual report on FDI (the “Report”) published by the European Commission on 23 November 2021 and reflects on M&A in the current EU FDI landscape.…
On 13-14 July, Covington’s Peter Camesasca and Sophie Bertin participated in panels discussing developments in Foreign Direct Investment (“FDI”) and Competition enforcement and compliance at the annual Competition Law Asia-Pacific Conference.
Foreign Direct Investment Regimes
On the first day of the conference, Covington partner Peter Camesasca moderated a group of diverse panellists on recent…