In June 2022, the governments of Belgium's nine federated entities agreed on the text of a cooperation agreement ("Cooperation Agreement") implementing a screening mechanism of general application for foreign direct investments into Belgium. The screening mechanism is expected to enter into force on 1 January 2023.
While the text is still subject to change1, the fact that an agreement on a screening mechanism of general application has been reached is a milestone, since Belgium has traditionally been an open economy with hardly any restrictions on incoming foreign investments. As the competence for review of foreign investments in Belgium is scattered among the various federated entities, a cooperation agreement was required to have a single, uniform, screening procedure for inbound foreign direct investments.
The Cooperation Agreement is inspired by EU Regulation 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a general framework for the screening of foreign direct investments into the Union ("FDI Regulation"). Belgium is now set to become the 19th EU Member State with a screening mechanism for foreign direct investments.
The provisions of the Cooperation Agreement apply to foreign direct investments by foreign investors that can have effects in Belgium on (i) security, (ii) public order, or (iii) the strategic interests of the regions and communities2.
A "foreign investor" is (i) a natural person with its main residence outside of the EU, (ii) an undertaking constituted or organized under the laws of a non-EU country, or (iii) an undertaking who has an ultimate beneficial owner (UBO) with its main residence outside of the EU. The regime therefore does not apply to investors from other EU Member States.
"Foreign direct investment" is defined in line with the FDI Regulation as an investment of any kind by a foreign investor aiming to establish or to maintain lasting and direct links between the foreign investor and the entrepreneur to whom or the undertaking to which the capital is made available in order to carry on an economic activity in a member state of the EU, including investments which enable effective participation in the management or control of a company carrying out an economic activity.
Considering that the definition of foreign direct investment is quite open-ended, the Cooperation Agreement sets out that the following transactions by a foreign investor are deemed to be in scope of the screening procedure, i.e., the direct or indirect acquisition of:
Minimum 25% of the voting rights of entities in Belgium and whose activities touch on:
Minimum 10% of the voting rights of entities in Belgium with a turnover of more than EUR 100 million in the preceding year and whose activities touch on:
- critical infrastructure (including energy, transport, water, health, communications, media, data processing or storage, aerospace, defence, electoral or financial infrastructure, and sensitive facilities, and also the land and real estate crucial for such infrastructure)
- technologies and resources of essential importance for security, national defence or public order (including military equipment subject to multilateral and European export control regimes, dual use goods and technologies of strategic importance)
- supply of critical inputs including energy or raw materials, as well as food security
- access to sensitive information, personal data or the possibility to control such information
- private security
- freedom and pluralism of the media
- technologies of strategic importance in the biotech sector, provided a min. turnover of EUR 25 million in the preceding year
- the defence sector (including dual use goods)
- digital infrastructure
When assessing a foreign direct investment, the Investment Screening Commission (ISC) and its members will specifically need to evaluate whether the following risks are present:
- prejudice to the continuity of the critical processes that if disturbed or if shut down could lead to severe issues for society and form a threat to national security, the strategic interests and the quality of life the Belgian population;
- prejudice to the integrity or exclusivity of knowledge and information connected to vital processes and the sensitive high-technology required to that end; or
- the creation of strategic dependencies.
Click here to read the full alert. Please note that the original publication date of this alert is 20 June 2022.
1 The Cooperation Agreement has been submitted to the Council of State (Raad van State / Conseil d'État) for advice.
2 Meaning their interest to - in the context of their respective powers - protect critical processes, prevent that certain strategic or sensitive knowledge falls into foreign hands and ensure strategic independence