The Foreign Investment Regulation Review: Belgium
There is currently no general foreign investment regime applicable in Belgium.
Since 2018, there has been a limited foreign investment control regime at Flemish level, providing for a type of 'emergency brake' procedure for strategic investments into government-owned entities. The rules allow the Flemish government to annul or declare void any foreign acquisition that would threaten the strategic interests or the independence of the Flemish Region or Flemish Community, or both. The provision does not provide for clear criteria of what would amount to a 'threat to the strategic interests' of the Flemish Region or Flemish Community (or both), or any time period within which the Flemish government can exercise its foreign investment review powers.
In April 2021, the federal government announced that it will introduce a foreign direct investment screening mechanism at national level. The legislative proposal is currently pending before Parliament but, according to press reports, the key aspects of the regime will likely be as follows:
- the government will create an investment screening commission within the Federal Ministry of Economy. The investment screening commission will consist of seven representatives of the federal Ministries of Economy, Finance, Internal Affairs, Transport, Defence, Energy and Public Health, as well as, from case to case, two representatives of the Belgian region where the proposed investment would take place (Flanders, Brussels or Wallonia). Representatives of national and military intelligence services may also be consulted; and
- acquisitions by non-EU investors of more than 25 per cent of the voting rights in companies active in critical infrastructure such as energy, transport, healthcare, communications and defence would be subject to a mandatory notification process.
The investment screening commission will base its assessment on national security considerations. Although the commission will have the power to prohibit acquisitions that threaten national security, the government has announced that there will be a preference for mitigating any potential risks through remedies.
1 Tone Oeyen is a partner and Marie de Crane d'Heysselaer is an associate at Freshfields Bruckhaus Deringer LLP.