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Towards a Common Screening System of Foreign Direct Investment on National Interests Grounds in the European Union

2018
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Release : 2018
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Book Synopsis Towards a Common Screening System of Foreign Direct Investment on National Interests Grounds in the European Union by : Carlos Esplugues

Download or read book Towards a Common Screening System of Foreign Direct Investment on National Interests Grounds in the European Union written by Carlos Esplugues. This book was released on 2018. Available in PDF, EPUB and Kindle. Book excerpt: Until 2009, the legal regime of international investments in the EU was characterised by its very high degree of fragmentation due to the complex division of competences between the EU and its member states. While the former has mainly intervened to promote greater liberalisation of capital markets, member states have usually been concerned with the post-establishment aspects of international investments. Only since 2009, with the entrance into force of the Treaty of Lisbon and the consequent extension of the Common Commercial Policy (CCP) to cover FDI, has the EU has gained full competence in FDI. However, the exclusive competence of the EU as regards FDI is still under construction and its full implementation by the EU will take time. Fears about Chinese State Controlled Enterprises (SCEs) have increased steadily in Europe over time. There are growing concerns about investment projects from this and other countries, in many cases sovereign-driven investment, targeting certain strategic areas of the EU economy. This situation has supported the debate about the need for a common EU response to foreign investment in certain strategic sectors. Growing concerns about the potential control of large areas of the economy of EU member states by foreign corporations have increased the popularity in some EU countries of national screening systems to determine on the grounds of national interests what FDI is and is not acceptable: France or Germany are good examples of this move. At the same time, FDI originating from the PRC and other emerging countries has provided a forceful push for the development of a common European screening system to evaluate FDI on national security grounds. EU and national authorities are aware of the fact that foreign investors are in many cases interested in acquiring certain technology or patents rather than in running a firm. In order to prevent this situation, the Proposal for a Regulation of the European Parliament and of the Council establishing a framework for screening of foreign direct investments into the European Union was published by the European Commission on 13 September 2017. This article analyses in depth the Proposal and its relationship with the development of the EU Common Policy on Investment.

Screening Foreign Direct Investment in the EU

2022-07-19 Law
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Release : 2022-07-19
Genre : Law
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Book Synopsis Screening Foreign Direct Investment in the EU by : Jens Velten

Download or read book Screening Foreign Direct Investment in the EU written by Jens Velten. This book was released on 2022-07-19. Available in PDF, EPUB and Kindle. Book excerpt: Foreign Direct Investment (FDI) from third countries—a desirable form of investment to boost the EU’s economy or a threat to important EU and Member State interests that must be mitigated via FDI screening mechanisms? FDI screening is a complex, controversial and highly topical subject at the intersection of law, politics and economics. This book analyzes the political rationale behind FDI screening in the EU, reveals the legal limitations of current FDI screening mechanisms based on security and public order, and identifies legislative options for broader screening mechanisms in accordance with EU and international economic law. In particular, the book identifies the four main concerns in the EU regarding FDI from third countries: distortive competition effects; the lack of reciprocity on FDI treatment between the EU and the investor’s home country; objectives of the investor or their home country that may be detrimental to EU interests; and safety of private information. On this basis, the book analyzes the Screening Regulation (Regulation (EU) 2019/452) and its newly introduced screening ground “security or public order” and asks whether this and other similar screening grounds based on the notions of security, public order and public policy can address these concerns with regard to foreign investors. Based on an analysis of WTO law and EU primary law, it argues that they cannot. Thus, the question arises: Do the EU and Member States have the flexibility to adopt broader FDI screening mechanisms? To answer this question, the book examines the freedoms of capital movement and establishment in EU primary law, as well as various sources of international economic law such as, first and foremost, the WTO’s General Agreement on Trade in Services, but also other bi- and plurilateral trade and investment treaties, including the EU-China Comprehensive Agreement on Investment. In closing, the book identifies various legislative options for broader FDI screening mechanisms—and their shortcomings.

EU Framework for Foreign Direct Investment Control

2019-12-18 Law
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Release : 2019-12-18
Genre : Law
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Book Rating : 215/5 ( reviews)

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Book Synopsis EU Framework for Foreign Direct Investment Control by : Jacques H.J. Bourgeois

Download or read book EU Framework for Foreign Direct Investment Control written by Jacques H.J. Bourgeois. This book was released on 2019-12-18. Available in PDF, EPUB and Kindle. Book excerpt: Foreign direct investment (FDI) has grown considerably worldwide in recent decades, alongside the no-less considerable development of international ‘supply chains’. In the European Union (EU), stock held by foreign investors exceeds EUR 6 billion, while stock held in the rest of the world by EU investors exceeds EUR 7 billion. This important book analyses the current and proposed regimes of FDI screening in the EU, highlighting mechanisms designed to enhance FDI’s advantages and minimize its drawbacks. Leading practitioners, policymakers and academics discuss the 2017 European Commission proposal on FDI screening and its resulting Regulation, focusing on such issues and topics as the following: the economics of FDI screening; rising protectionism versus further investment liberalization; how the EU framework connects with WTO rules; the dangers of foreign investment in sectors essential to public order and security; how the EU regulatory layer interacts with FDI screening at Member State level; and perceived lacunae in the way the EU addresses incoming FDI. Two detailed examples of how FDI screening works in practice are included, along with a comparative view of FDI screening in the United States. Contributions commenting specifically on the EU Regulation deal with the process of adopting the Regulation and the impact of opposing views, and how the Regulation aligns with EU policy in the areas of trade, investment and competition. Companies engaged in FDI or financial services will appreciate the detailed analysis of issues raised by this new EU policy instrument. Practitioners active in competition law, particularly M&A, will welcome this clear commentary and analysis of a crucial component of EU policy in the related areas of trade and investment, and policymakers will be encouraged to consider whether further regulatory changes are called for.

The EU Regulation on Screening of Foreign Direct Investment

2020
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Release : 2020
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Book Synopsis The EU Regulation on Screening of Foreign Direct Investment by : Wolf Zwartkruis

Download or read book The EU Regulation on Screening of Foreign Direct Investment written by Wolf Zwartkruis. This book was released on 2020. Available in PDF, EPUB and Kindle. Book excerpt: In March 2019, the EU has adopted a Regulation on the screening of foreign direct investment (FDI) which will apply from 11 October 2020. Member States are allowed to use a national screening mechanism for FDI from outside the EU on grounds of widely defined public order or security, including the protection of key technologies. A cooperation mechanism is established between the Member States and the European Commission. The European Commission is authorized to give a non-binding opinion if the FDI affects Union interests. The Regulation reflects a new attitude of the EU towards FDI, triggered by geopolitical developments especially involving Chinese state-owned enterprises taking over European companies with key technologies. However, the EU's ambitions are faced by legal and practical challenges. From a legal perspective, the Regulation seems to require an extensive interpretation of the grounds for restriction of free movement as developed by the ECJ and codified in the Regulation. From a practical perspective, making coordination work will not be easy. It requires a significant effort from the Member States and the Commission, and success is by no means guaranteed.

A More Targeted Approach to Foreign Direct Investment

2018
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Release : 2018
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Book Synopsis A More Targeted Approach to Foreign Direct Investment by : Carlos Esplugues

Download or read book A More Targeted Approach to Foreign Direct Investment written by Carlos Esplugues. This book was released on 2018. Available in PDF, EPUB and Kindle. Book excerpt: The process of liberalization of international trade and of Foreign Direct Investment (FDI) has constituted a broadly accepted trend during the last few decades and FDI inflows have expanded constantly since the end of the 1980's. However, signs of a certain crisis of the positive and one-way attitude towards international trade and FDI exist nowadays. The increase in the flux of FDI coming from developing and emerging countries to developed economies, the sudden relevance of foreign sovereign investors, the changing environment for national security or the quest to protect technologies and sectors of the economy considered vital for the host country, its sovereignty and competitiveness are creating a new reality that impacts on both, the global fluxes of FDI and its regulation. Tension exists between the commitment towards freedom of FDI and the right of the state to ensure that certain legitimate public interests and goals can be fully implemented. This may lead to the protection of certain strategic sectors of the economy of the country or flagship firms from foreign investment on national security or related grounds. The current revision of the great paradigms on which FDI, and its legal framework, stand is ascertainable in the growing recourse by states to the development of some measures devoted to prevent the entrance of FDI in the country under certain circumstances.

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