Changes from plenary report to adopted text

Recital 1: (1) The Union welcomes foreign investments as they contribute to its growth by improving its competitiveness, creating jobs and economies of scale, and bringing in capital, technologies, innovation and expertise.

Recital 3: (3) However, Article 21(2) TEU states that the Union's policies and actions aim to safeguard its values, fundamental interests, security, independence, and integrity. Those principles and objectives underpin the Union's common commercial policy, as set out in Article 207 TFEU including in relation to foreign investment. Within that context, international commitments made in the World Trade Organization (WTO), the Organisation for Economic Cooperation and Development (OECD), and the trade and investment agreements concluded with third countries, allow the Union and Member States to restrict foreign direct investments (FDIs) on the grounds of security or public order, subject to certain requirements.

Recital 4: (4) In accordance with Regulation (EU) 2019/452 of the European Parliament and of the Council4 a framework has been set up for screening FDIs into the Union by Member States. In particular, that Regulation has set out a cooperation mechanism enabling Member States and the Commission to exchange information on FDIs and raise concerns about risks to security or public order. That cooperation mechanism required the Member State where the FDI was planned or completed (host Member State) to give due consideration to the comments issued by other Member States and the opinion issued by the Commission in its screening decision.

Recital 6 a (new): (6a) Moreover, a new legislative instrument is necessary due to the evolving nature of investment flows. The integration of global economies, combined with war and geopolitical tensions, has led to the emergence of new risks that need to be addressed by the Union and the Member States. On 20 June 2023, the Commission presented a Communication to the European Parliament, the European Council, and the Council on the “European Economic Security Strategy,” which identifies FDI screening as a tool to protect the Union against economic security risks. The strategy underscores the need to address risks associated with the resilience of supply chains, physical and cyber security of critical infrastructures, technology security and leakage, and the weaponisation of economic dependencies or economic coercion. Those economic security risks are also relevant in the context of the screening of foreign investments, as they could have a negative impact on fundamental societal interests such as prosperity, sovereignty, safety, and the operation of the social market economy, and thereby on Member States' and the Union's public order.

Recital 8: (8) A significant majority of Member States, but not all, have a legislative instrument in place that provides for a mechanism to screen FDIs. In many Member States, national laws also extend to screening intra-Union investments. Among the Member States, there are substantial differences as to the scope, thresholds and criteria used to assess whether an investment is likely to negatively affect security or public order. There are also differences in the screening processes. In certain Member States, the investment can be implemented before having received clearance with respect to the impact on security and public order. However, others require that the investment is only finalised after authorisation under the screening mechanism. Such divergences create a problem for the smooth functioning of the internal market. For example, those inconsistencies create an uneven playing field and increase compliance costs for investors who need to notify transactions in multiple Member States. This Regulation helps in harmonising key elements of the mechanisms implemented at national level. This is crucial to ensure predictability for investors on the applicable national regimes and their characteristics, thereby reducing the associated compliance costs. This is all the more relevant considering the high level of integration in the internal market, which may result in a single transaction impacting multiple Member States across the Union. It is for example possible that a transaction aime…

Recital 9: (9) To ensure a consistent approach to foreign investment screening across the Union, all Member States should be required to screen foreign investments on the grounds of security or public order. Therefore, the core elements of national screening mechanisms should be harmonised. That harmonisation should also include the scope of investments to be screened, the screening procedure’s essential features, and the interaction between the national mechanism and the Union cooperation mechanism, including consistent timelines for screening procedures. In addition, Member States should also be able to extend the scope of their national screening mechanism to include other types of foreign investments, foreign investments in other sectors, additional Union targets or economic activities that the relevant Member State considers critical for its security or public order. When they do so, such screening should also comply with the provisions of this Regulation. It is essential to establish a harmonised and streamlined approach across Member States, which ensures that foreign investments which may have implications for security and public order are subject to consistent scrutiny and efficient decision-making. To that end, screening mechanisms should minimise administrative complexity, avoid unnecessary delays and take into consideration the limited resources of small and medium-sized enterprises (SMEs) when applied to them. Furthermore, the Commission should act in a coordinating role to…

Recital 12: (12) Screening foreign investments should be carried out in accordance with this Regulation, taking into account all factual information available and adhering to the principle of proportionality and other principles enshrined in the Treaties. Moreover, the screening of foreign investments which are carried out through subsidiaries of the foreign investor established in the Union should in all cases comply with the requirements stemming from Union law, and in particular with the Treaty provisions on freedom of establishment and free movement of capital, as interpreted in the case-law of the Court of Justice of the European Union, consistently with the objective of preserving a functioning, open, resilient and inclusive internal market. Any restrictions to the freedom of establishment and free movement of capital in the Union, including the screening and measures arising from screening, such as mitigating measures and prohibitions should be based on a genuine and sufficiently serious threat to a fundamental interest of society, and should be appropriate and necessary as set out in the case law of the Court of Justice. At the same time, the specificities of investments within the Union operated through a subsidiary of a foreign investor should be taken into account when assessing the justification and proportionality of any restrictions on freedom of establishment or to the free movement of capital, including where appropriate in any Commission opinion or decision adopted pursu…

Recital 14: (14) It is also necessary to make the host Member State more accountable to the Commission and to those Member States that express duly justified concerns for their public order or security or the Union’s.

Recital 15: (15) The common framework set out in this Regulation should be without prejudice to the sole responsibility of each Member States to safeguard its national security as provided for in Article 4(2) TEU. It should also be without prejudice to the protection of Member States’ essential security interests in accordance with Article 346 TFEU.

Recital 17: (17) Greenfield foreign investments occur where the foreign investor or a foreign investor’s subsidiary in the Union sets up new facilities or a new undertaking in the Union for the performance of a new economic activity. By setting up new facilities, a foreign investor can impact on security and public order, including when that risk concerns essential economic inputs. Member States should therefore include greenfield foreign investments in the scope of transactions covered by their screening mechanisms.

Recital 18: (18) To ensure consistent and predictable screening processes, it is appropriate to lay down the essential features of the screening mechanisms to be implemented by Member States. Those features should at least include the scope of the transactions to be subject to an authorisation requirement, deadlines for the screening, the possibility for undertakings concerned by the screening decision to seek recourse against such decisions and the ability of screening authorities to effectively address cases of non-compliance or circumvention. Rules and procedures relating to screening mechanisms should be transparent and should not discriminate between third countries. The procedure for the filing of a request for authorisation should ensure that compliance requirements are kept to a minimum.

Recital 19: (19) The cooperation mechanism laid down in Regulation (EU) 2019/452 enables Member States to cooperate and help each other where a foreign direct investment in one Member State could affect the security or public order of other Member States or of the Union, or of projects or programmes of Union interest. This mechanism has proven very useful so far, hence it should be maintained, strengthened and expanded under this Regulation to ensure a more unified approach to foreign investments across the Union.

Recital 20: (20) To ensure that foreign investments likely to negatively affect security or public order in the Union are adequately identified, Member States should screen foreign investments where the Union target is part of or participates in a project or programme of Union interest or where the Union target’s economic activity relates to a technology, materials, asset, facility, equipment, network, system or service of particular importance for the security or public order interests of the Union. Member States should also screen greenfield foreign investments in such sensitive programmes or sectors when a specific risk arises from the characteristics of the investor and the size of the transaction. In addition to these criteria, screening mechanisms may apply to other sectors, Union targets or economic activities that the relevant Member State considers critical for its security or public order.

Recital 21: (21) To ensure that the cooperation mechanism focuses only on those foreign investments where the characteristics of the foreign investor or the Union target make an effect on security or public order likely, it is appropriate to establish risk-based conditions for the notification of foreign investments undergoing screening in a Member State to the other Member States and the Commission. In particular, Member State should assess whether the foreign investor is controlled or influenced by a third country government. Control or influence may be determined based on criteria such as direct or indirect ownership thresholds, the nature and extent of third-country government funding and specific governance arrangements such as golden shares. Cases of opaque or unclear ownership structure, or where the ultimate beneficiary is unknown, should also be included as such a condition. Where a foreign investment does not meet any of the conditions, the Member State where the foreign investment is undergoing screening may notify the foreign investment to the other Member States and the Commission, including where the Union target has significant operations in other Member States, or belongs to a corporate group that has several companies in different Member States.

Recital 22: (22) To ensure that the likely effect of a foreign investments on the security or public order of one or more Member States is adequately identified, Member States should be able to provide comments to a Member State in which a foreign investment is planned or has been completed even if that Member State is not screening that foreign investment or if the foreign investment is screened but not notified to the cooperation mechanism. Requests for information, replies and comments from Member States should be notified to the Commission simultaneously to ensure transparency throughout the process.

Recital 23: (23) To ensure that the likely effect of a foreign investment on the security or public order of more than one Member States or the Union as a whole is adequately identified, it should be possible for the Commission to issue an opinion within the meaning of Article 288 TFEU to the host Member State even if that foreign investment is not undergoing screening in that Member State or if that foreign investment is screened but not notified to the cooperation mechanism. To ensure transparency and predictability, opinions of the Commission should be based on specific and documented risks and should follow set issuance criteria, including documented security risks or cross-border concerns.

Recital 24: (24) Furthermore, to ensure the protection of security or public order where the likely effect emanates from a foreign investment into a Union target that provides for the development, maintenance or acquisition of infrastructure, technologies or inputs, which are critical for the Union as a whole, the Commission should be allowed to issue an opinion. This would give the Commission a tool to protect projects and programmes which serve the Union as a whole and represent an important contribution to the Union’s security or public order. A Commission opinion identifying the likely impact on projects or programmes of Union interest on the grounds of security or public order should be notified to all Member States.

Recital 25: (25) Furthermore, it should be possible for the Commission to adopt an opinion addressed to all Member States if it identifies several foreign investments that, taken together, are likely to impact the security or public order of the Union. This could notably be the case where several foreign investments present comparable characteristics. These include where the foreign investments are made by the same foreign investor, or foreign investors presenting similar risks, or where several foreign investments concern the same Union target or infrastructure, including trans-European infrastructure for transport, energy and communication. Member States and the Commission should discuss the risk analysis and the possible ways to address the risks identified in the opinion, ensuring a coordinated approach.

Recital 26: (26) To protect security or public order while providing greater certainty to investors, Member States should have the possibility to make comments and the Commission should have the possibility to issue an opinion on foreign investments that have been completed but not notified within 15 months of the completion of the foreign investment.

Recital 27: (27) For greater clarity, the list of projects or programmes of Union interest should be listed in Annex I. These should include any foreign investments undertaken on the trans-European networks for transport, energy and communication, as well as programmes providing funding for research and development for activities relevant to the security or public order of the Union. Due to the importance of these projects and programmes for the security and public order of the Union and their inherent cross-border nature and network character, Member States should screen foreign investments into Union undertakings that are part of or participating in these projects or programmes, including those that receive funding from the Union.

Recital 28: (28) In order to ensure that the likely effect of a foreign investment on the security or public order of one or more Member States is adequately addressed, Member States receiving duly justified comments from other Member States or an opinion from the Commission should give such comments or opinion utmost consideration, including where it considers that its own security or public order is not affected. The Member State should coordinate with the Commission and the Member States concerned if necessary and provide them with its draft decision, accompanied by written feedback on how the comments and the opinion have been given utmost consideration. The draft decision should remain open to amendments to take into account the views expressed by the Member States concerned and the Commission.

Recital 28 a (new): (28a) In certain instances, disagreements may arise between the host Member State and another Member State, or the Commission, regarding whether the investment is likely to affect the security and public order of a Member State or of the Union. Leaving the resolution of such disagreements solely to the host Member State risks affecting the security and public order of the Union as a whole and undermining the functioning of the cooperation mechanism. Therefore, in such cases, the Commission should be empowered to adopt a decision, basing its assessment of the likelihood of the investment affecting security and public order on the information provided by the host Member State and its own findings, where it has conducted an investigation. In all other cases, the final decision should remain the responsibility of the host Member State.

Recital 28 b (new): (28b) Within the allocation of responsibilities between Member States and the Commission provided for by this Regulation, national screening authorities face limitations in investigating foreign investment transactions beyond their geographical borders, which can have an impact on the effectiveness of their analysis. For example, this could be the case where customers of the target company are located in another Member State, while their views may be essential to assess the target's sensitivity to security or public order risks, such as the availability of alternative suppliers for the target's goods or services. Given its cross-border perspective, the Commission is well-placed to address those limitations and contribute to the assessment of the impact of foreign investment transactions on security and public order. To that end, it should be granted appropriate investigative powers to gather necessary information. The Commission should be able to request information from entities in another Member State when such information cannot be efficiently obtained through the cooperation mechanism. The Commission’s power to request information should be based on a justified request from a Member State. However, when national authorities face legal or procedural constraints, such as short procedural timelines, the Commission should be able to act independently, provided that the host Member State has been notified. That power should be limited to information necessary to assess the imp…

Recital 29: (29) To ensure the effective functioning of the cooperation mechanism, it is important to require that the Member State notifying the foreign investment to the cooperation mechanism provides a minimum set of information in a standardised format. Where the cooperation concerns a foreign investment not notified to the cooperation mechanism, the host Member State should be able to provide at least the same minimum set of information. The Commission and Member States may seek additional information from the Member State where the foreign investment is planned or completed. Such request for additional information should be duly justified, limited to the information necessary for the Member States to provide comments or for the Commission to issue an opinion, proportionate to the purpose of the request and not unduly burdensome for the notifying Member State and the companies concerned. Where relevant, the Commission may request information from other Union bodies such as the European Securities and Markets Authority, the European Banking Authority, the European Insurance and Occupational Pensions Authority, the Single Supervisory Mechanism or the European Central Bank.

Recital 30: (30) To ensure that the cooperation is based on complete and accurate information, a foreign investor or an undertaking should provide any relevant information requested by the Member State where they are established or the host Member State. In exceptional circumstances, when, despite its best efforts, a Member State is unable to obtain an information requested by another Member State or the Commission, it should notify them without delay. In such a case, any comment issued by another Member State, or any opinion issued by the Commission as part of the cooperation mechanism should be based on the information available to them.

Recital 31: (31) To ensure that the cooperation mechanism is used exclusively for the purpose of protecting security or public order, Member States should duly justify any request for information regarding a specific foreign investment in another Member State and any comment they issue to that Member State. This is essential for preventing misuse of the mechanism and ensuring that it is solely focused on security and public order concerns. The same requirements apply when the Commission requests information about a particular foreign investment or issues an opinion to a Member State.

Recital 31 a (new): (31a) Without prejudice to the cooperation mechanism, there is a need to raise awareness of the participation or contribution of undertakings from third countries in projects of common interest or in critical infrastructure which is strategic for the Union, in order to allow for intervention by public authorities if such participation or contribution is likely to affect security or public order in the Union and does not fall within the scope of this Regulation. Member States may make observations to other Member States as well as to the Commission. Where appropriate, the Commission may request additional information and follow up the situation.

Recital 32: (32) Member States or the Commission, as appropriate, might consider relevant information received from economic operators, civil society organisations, social partners (such as trade unions) about a foreign investment likely to negatively affect security or public order. That information should be assessed thoroughly and may lead to the initiation of a screening procedure by the host Member State.

Recital 33: (33) A host Member State may inform other Member States or the Commission if it becomes aware of new circumstances or new information that may impact the assessment of a notified foreign investment. The other Member States and the Commission may then be granted additional time to complement their assessment of the foreign investment. In such cases, any extension of the assessment period should be kept to a minimum and should not unduly delay the overall screening procedure.

Recital 34: (34) To ensure the efficiency and effectiveness of the cooperation mechanism, it is necessary to align deadlines and procedures when several foreign investments linked to the same broader transaction are screened in several Member States. In such multi-country transactions, the applicant should file the different requests for authorisation in the Member States concerned within a limited timeframe. In addition, those Member States should endeavour to notify the requests to the cooperation mechanism within a limited timeframe. To ensure an efficient handling of these multi-country transactions, the Member States concerned should coordinate and agree on whether the foreign investments are notifiable and on the alignment of their procedural timelines. Furthermore, the Member States concerned should also coordinate on the content of their final decision. If the Member States concerned intend to authorise the foreign investment with conditions, they should ensure that these conditions are compatible with one another and address cross-border risks adequately. Before prohibiting a foreign investment, the Member States concerned should consider whether a conditional authorisation with coordinated measures and their coordinated enforcement is not sufficient to address the likely effect on security or public order. The Commission should be able to fully participate in such coordination.

Recital 34 b (new): (34b) To ensure the secure and efficient submission and processing of filings related to foreign investment screening, and to alleviate the administrative burden on both applicants and authorities, a single electronic portal at the Union level should be established. That portal should provide a unified mechanism for applicants and their representatives to electronically file transactions with national screening authorities. The Commission should design the system to be user-friendly and ensure that it complies with applicable data protection regulations and security standards.

Recital 35: (35) To ensure a consistent approach to the screening of investments across the Union, it is essential that the standards and criteria used to assess likely risks to security and public order are those set at Union level in this Regulation. Those should include the impact on the security, integrity, functioning and resilience of critical infrastructure and of the internal market, the availability and uptake of critical technologies and knowledge (including key enabling technologies), the continued supply of critical inputs for security or public order, the disruption, failure, loss or destruction of which would have a significant impact on security and public order in one or more Member States or on the Union as a whole, the security of military facilities and other sensitive public facilities, and the capacity to address strategic dependencies. In that regard, Member States and the Commission should also take into account the context and circumstances of the foreign investment. This should include, in particular, whether an investor has engaged in illegal activities, including repeated failure to comply with Union legal standards, whether it is involved in pursuing policy objectives of third countries, or aims to facilitate their military capabilities or violations of international law. The pursuit of a third country’s policy objectives may involve its government exerting influence over undertakings, leading to significant market distortions. In this context, if applicable, …

Recital 36: (36) Where the host Member State considers that a foreign investment is likely to negatively affect security or public order in the Union, it is appropriate to require that Member State to take appropriate measures to mitigate the risks, where such measures are available, and it considers them adequate, taking into utmost consideration the comments issued by other Member States and the opinion issued by the Commission, if applicable. Foreign investments should be prohibited only on an exceptional basis, and where mitigating measures or measures available under Union or national law other than the screening mechanism are not sufficient to mitigate the effect on security or public order.

Recital 37: (37) To support the implementation of the cooperation mechanism and to foster the exchange of good practices among Member States, the expert group on the screening of foreign investments set up pursuant to Regulation (EU) 2019/452 should be maintained and its tasks updated in accordance with this Regulation.

Recital 37 a (new): (37a) In order to enhance transparency and facilitate the process for investors, Member States should publish and regularly update guidance on screening procedures, timelines and risk assessment criteria. In order to ensure transparency and a consistent application of this Regulation across the Member States, the Commission should publish and regularly update guidance on the requirements at Union level and key concepts and assessment criteria established by this Regulation. The Commission should also maintain a publicly available list of all screening mechanisms established by the Member States.

Recital 39: (39) To ensure the efficacy of the coordination mechanism, the contact points put in place by Member States and the Commission should be suitably strategically placed within the respective administrations. The contact points should have the qualified staff and powers needed to carry out their work under the coordination mechanism and ensure a proper handling of confidential information in line with applicable legal frameworks.

Recital 40: (40) Member States and the Commission should be encouraged to actively cooperate with the responsible authorities of like-minded third countries on issues related to the screening of foreign investments that could affect security or public order. Such administrative cooperation should aim to strengthen the effectiveness of the framework for screening foreign investments by Member States and the cooperation between Member States and the Commission pursuant to this Regulation. The Commission should be kept informed of such bilateral contacts to the extent that they relate to systemic issues, trends, or best practices related to investment screening. It should also be possible for the Commission to monitor developments with regard to screening mechanisms in third countries.

Recital 40 a (new): (40a) This Regulation should be considered amongst the wider package of the Union's defensive instruments aimed at addressing security risks, including the Foreign Subsidies Regulation and the International Procurement Instrument, and it should be ensured that the scope is set out in line with those measures to avoid duplication and to ensure a targeted and proportionate approach