Introduction
Mandatory filing requirement
Other key elements
Comment


Introduction

In July 2020 a new foreign direct investment (FDI) screening act, the Investment Control Act (ICA), entered into force, following the general trend of tightening FDI regulatory frameworks.(1)

The ICA largely transposes the require­ments of the EU Foreign Investment Screening Regula­tion (2019/452). The cooperation mechanism set out in the ICA will take effect concurrently with EU Regulation 2019/452, on which it is based, on 11 October 2020.(2)

Mandatory filing requirement

Under the ICA, a mandatory filing requirement is triggered if:

  • a 'foreign investor' (ie, non-EU, non-EEA or non-Swiss individual or entity) intends to carry out an investment (directly or indirectly) in an Austrian undertaking. This includes:
    • the acquisition of shares totalling or exceeding 10%, 25% or 50% (voting rights);
    • the acquisition of control; and
    • the acquisition of essential or all assets of an undertaking (asset deals);
  • the undertaking is active in a sector listed in the annex to the ICA; and
  • the undertaking is 'Austrian' (ie, has its seat or central administration in Austria).

No approval is required for an investment in an undertaking with:

  • fewer than 10 employees; and
  • an annual turnover or balance sheet total of less than €2 million (start-up exception).

The 10% share threshold (voting rights) applies to investments in certain highly sensitive sectors. An exhaustive list of these sectors is provided in Part I of the annex and includes:

  • defence equipment and technology;
  • critical energy infrastructure;
  • critical digital infrastructure (particularly 5G infrastructure);
  • water;
  • systems that enable Austria's data sovereignty; and
  • research and development in the pharmaceutical, vaccine, medical device and personal protective equipment (PPE) fields. For these fields, the 10% threshold has been introduced temporarily until 31 December 2022 in light of the COVID-19 crisis.

For investments in other sensitive sectors relevant for public order or security, the triggering threshold remains 25% and 50% (voting rights). Part II of the annex contains a non-exhaustive list of these sectors, which include:

  • critical infrastructure such as energy, IT, transport, health, food and telecoms;
  • critical technologies and dual-use items, as defined in EU Regulation 428/2009. These include AI, robotics, cybersecurity, quantum and nuclear technology, nanotechnology and biotechnology;
  • the supply of critical resources, including energy and raw materials, as well as food security, medicines, vaccines, medical devices and PPE;
  • access to sensitive information, including personal data, or the ability to control such information; and
  • the freedom and pluralism of the media.

Other key elements

Other key elements of the ICA are as follows:

  • Indirect acquisitions are covered, contrary to the situation under the former Foreign Trade Act 2011.
  • While the notification obligation rests primarily with the acquirer, the ICA foresees (in subsidiarity) a reporting obligation for targets. In addition, the relevant authority can assume jurisdiction ex officio if it learns that a transaction which was subject to approval has not been notified.
  • The ICA foresees the possibility of requesting a non-jurisdiction letter confirming that an investment is not subject to the approval requirement.
  • The one-month Phase I period starts only after an up to 40-day period during which the EU Commission and member states can comment on the transaction (under EU Regulation 2019/452).
  • A considerable part of the ICA is devoted to the cooperation mechanism for exchanging information and cooperating with the EU Commission and other member states under EU Regulation 2019/452.

Comment

The ICA has considerably extended the scope of the old regime. A broad range of investments must now undergo a screening process. This is in line with the general EU trend of tightening or enacting FDI screening instruments, which has been fuelled by concerns of buy-outs of critical European infrastructure by foreign investors due to the COVID-19 pandemic.(3)

For further information on this topic please contact Volker Weiss or Constantin Fladerer at Schoenherr by telephone (+43 1 53 43 70) or email ([email protected] or [email protected]‚Äč). The Schoenherr website can be accessed at www.schoenherr.eu.

Endnotes

(1) For further details please see "Austrian government proposes new FDI screening act".

(2) For further details please see "A new regulation on FDI screening in Europe".

(3) Further details on the regimes in Central Eastern Europe are available here and here.