The Foreign Investment Regulation Review: Spain

Overview

Spain has traditionally been a country open to foreign direct investment (FDI) and, as such, has a favourable legal framework for foreign investors. In fact, prior to the covid-19 pandemic, the basic applicable legislation2 declared the general liberalisation of FDI in Spain, without making distinctions between EU and non-EU residents. There were very limited exceptions to this liberalised regime, mainly related to activities concerning national defence and certain sectoral regulations.

Consequently, during the past decades, Spain has received significant FDI in key sectors such as the automotive, telecoms, infrastructure, chemical, pharma and real estate sectors.

However, in March 2020, the covid-19 pandemic had a significant impact on the Spanish economy – jeopardising the financial soundness of companies across the board – and this motivated an urgent revision of the approach to FDI in Spain, ultimately seeking to control (and limit, if required) the acquisition of strategic companies by opportunistic foreign investors.

Against this backdrop, throughout the covid-19 pandemic the government approved a set of urgent measures aimed at controlling FDI in Spain. Such measures implemented (and subsequently refined) an ex ante screening mechanism for certain investments (the FDI screening mechanism), which include, on a temporary basis, those made by EU/EFTA investors (the temporary regime), concerning strategic sectors of the economy. In practice, the government now has broader authority to review and take remedial action on the grounds of public order, public security and public health with respect to certain FDI in Spanish companies.

This urgent governmental reaction was fully aligned with Regulation (EU) 2019/452 of 19 March 2019 that establishes a framework for the screening of FDIs into the EU (the EU FDI Regulation) and is the approach adopted by the European Commission to tackle the effects of the crisis in distressed companies. In March 2020, the latter openly encouraged:

Member States that currently do not have a screening mechanism, or whose screening mechanisms do not cover all relevant transactions, to set up a full-fledged screening mechanism and in the meantime to use all other available options to address cases where the acquisition or control of a particular business, infrastructure or technology would create a risk to security or public order in the EU, including a risk to critical health infrastructures and supply of critical inputs.3

The increased scrutiny in Spain is not intended to be temporary and will not be automatically repealed at the end of the covid-19 pandemic. The current legal instruments should be regarded as the first step in the process of aligning the Spanish policies with the EU FDI Regulation, which has largely inspired the shape of the current mechanism. In fact, a draft bill on the FDI screening mechanism is currently working its way through Parliament, and although the ultimate scope of the latter is still to be determined, a permanent regime can be expected.

In any event, the new policies should not be regarded as a barrier to FDI in Spain. As explained below, not all FDI is captured by the FDI screening mechanism and that which is captured is, in most instances, cleared unconditionally. In practice, from an investor perspective, the current regime should be regarded in most situations as any other regulatory filing, rather than an actual barrier to investing in Spain.

Year in review

Since March 2020, the approach to FDI has shifted from the general principle of liberalisation of investments to a more restrictive approach, by which certain transactions require prior approval, ultimately seeking to protect key strategic sectors of the Spanish economy.

Major developments during the past year include the implementation of the temporary regime applicable to EU/EFTA investors, in addition to the general FDI screening mechanism for non-EU/EFTA residents. While the temporary regime applicable to EU/EFTA residents was intended to end on 30 June 2020, this has recently been extended until 31 December 2021.

However, while increased scrutiny has meant an increased level of red tape for investors compared with the previous scenario, to our knowledge, most of the transactions reviewed to date have been cleared unconditionally. In this regard, key investments cleared under the FDI screening mechanism from June 2020 to June 2021 include:

  1. the public takeover bid launched by Cinven, KKR and Providence over the fourth Spanish telecom operator Masmovil. This was one of the first relevant transactions cleared under the FDI screening mechanism;
  2. eBay's acquisition of a 44 per cent stake in Adevinta, a global online classifieds specialist, including some of the largest online classifieds platforms in Spain, such as Fotocasa or Milanuncios;
  3. Telxius Towers' acquisition by American Tower. The transaction concerned Telefónica's telecommunications towers division in Europe and Latin America, comprising approximately 31,000 sites;
  4. Masmovil's takeover bid for Euskaltel, a Spanish telecommunications operator. The transaction felt under the FDI screening mechanism due to Masmovil's foreign shareholders; and
  5. IFM's takeover bid for up to a 22.69 per cent stake in Naturgy. This is one of the main Spanish energy companies and has significant distribution networks in Spain. The transaction was cleared in early August 2021 subject to remedies. The latter seek to ensure the stability of the company, and protect its critical assets and infrastructure.

In practice, the application of the FDI screening mechanism has spanned a multitude of industries, such as healthcare software, financial services, digital signature services, renewable energies and the utilities sector.

In this climate, foreign companies that envisage transactions concerning Spain should seek FDI advice at an early stage of planning the proposed investment, especially in strategic sectors that have already been subject to scrutiny and that will presumably continue to attract the attention of authorities going forward.

Foreign investment regime

i Policy

The main concern regarding FDI and the driver of the FDI screening mechanism, according to which the liberalisation regime is suspended for certain transactions, is the protection of public order, public safety and public health.

In this regard, prior to the current FDI screening mechanism, Article 7 of Law 19/2003 on the legal regime of capital movements and economic transactions abroad (Law 19/2003) already foresaw suspension of the liberalisation regime by the government where the transaction or legal act:

affects or may affect activities which, by their nature, form or conditions, affect or may affect activities related, even if only occasionally, to the exercise of public power, or activities directly related to national defence, or activities that affect or may affect public order, public safety and public health.

In practice, there is a great level of discretion regarding the review of any given transaction. The definition provided by the relevant legislation is very broad and, at this moment, there are no specific rules or any kind of guidance as to the meaning of 'public order, public safety and public health'.

Such discretion is also present at the time of determining whether a transaction is captured by the regime in the first place. As explained below, the scope of the FDI screening mechanism is broadly defined and there is no guidance as to the definition of the criteria triggering a filing requirement. Although the regime tends to mirror the EU FDI Regulation, the latter does not provide any further clarity on the scope of the different concepts either.

Experience shows that these rules are ultimately enforced following a combination of technical and political criteria.

ii Laws and regulations

The legislation concerning FDI in Spain consists of the following:

  1. Law 19/2003;
  2. Royal Decree 664/1999 on foreign investment; and
  3. the Ministerial Order of 28 May 2001, which regulates the procedure for authorisation and the procedure for declaring the investment (the Ministerial Order).

As explained above, a number of royal decree-laws were issued as a result of the covid-19 pandemic to implement (and refine) the current FDI screening mechanism (including the temporary regime for EU/EFTA investors), namely:

  1. Royal Decree-Law 8/2020, of 17 March, adopting extraordinary urgent measures to deal with the economic and social impact of covid-19;
  2. Royal Decree-Law 11/2020, of 31 March, adopting additional urgent social and economic measures to deal with covid-19;
  3. Royal Decree-Law 34/2000, of 17 November, adopting urgent measures to support business solvency and the energy sector, and on tax matters; and
  4. Royal Decree-Law 12/2021, of 24 June, adopting urgent measures in the field of energy, taxation and energy generation, and on the management of the regulation and water tariffs.

The relevant authority to review reportable transactions, according to Article 11.2 of the Ministerial Order, is the Directorate General for International Trade and Investment, which is part of the Ministry of Industry, Trade and Tourism. Scrutiny is carried out by the aforesaid Directorate, together with the Foreign Investment Board at a later stage of the process. However, the final decision rests with the Council of Ministers (together with the latter, the Authority), who approves – conditionally or unconditionally – or blocks the transaction.

iii Scope

FDI screening mechanism (for non-EU/EFTA investors)

FDI in Spanish companies (listed or unlisted) that is carried out either directly or indirectly (through the acquisition of a foreign entity owning a Spanish subsidiary) triggers a mandatory and suspensory filing requirement, provided that the following cumulative criteria are fulfilled:

  1. the investment is made by a foreign investor. Pursuant to Article 7 bis (1) of Law 19/2003, foreign investors are: (1) non-EU/EFTA residents; and (2) EU/EFTA residents beneficially owned by non-EU/EFTA residents. This occurs when non-EU/EFTA residents ultimately possess or control, directly or indirectly, more than 25 per cent of the share capital or voting rights of the investor, or otherwise exercise control,4 directly or indirectly, over the investor;
  2. the investment qualifies as foreign direct investment. Pursuant to Article 7 bis (1) of Law 19/2003, these are: (1) investments that result in the foreign investor holding a stake that is at least 10 per cent of the share capital of a Spanish company; or (2) when, as a result of the corporate transaction, legal act or business, the investor acquires control5 of a Spanish company; and
  3. the investment fulfils either the objective or subjective criteria. From an objective point of view, because the target is active in a 'strategic sector' in Spain, as defined in Article 7 bis (2) of Law 19/2003; or, from a subjective point of view, because the investor meets certain features, as defined in Article 7 bis (3) of Law 19/2003.

From an objective point of view, investments in the following sectors trigger a filing:

  1. critical infrastructures, whether physical or virtual (including energy, transport, water, health, communications, media, data processing or storage, aerospace, defence, electoral or financial infrastructures and sensitive facilities), as well as land and real estate that are key to the use of such infrastructures, as such infrastructures are referred to in Law 8/2011 of 28 April, establishing measures for the protection of critical infrastructures;
  2. critical technologies and dual-use items, key technologies for industrial leadership and training, and technologies developed under programmes and projects of particular interest for Spain, including telecommunications, artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defence, energy storage, quantum and nuclear, as well as nanotechnologies, biotechnologies, advanced materials and advanced manufacturing systems;
  3. supply of critical inputs, in particular energy, as those referred to in Law 24/2013, of 26 December, on the electricity sector, and Law 34/1998, of 7 October, on the hydrocarbons sector, or those related to strategic connectivity services, as well as raw materials and resources related to food safety;
  4. sectors with access to sensitive information, in particular personal data or with the capacity to control such information, in accordance with Organic Law 3/2018, of 5 December, on the protection of personal data and the guarantee of digital rights; and
  5. communication media, without prejudice to the fact that audio-visual communication services under the terms defined in Law 7/2010, of 31 March, General of Audio-visual Communication, shall be governed by the provisions of this Law.

According to Article 7 bis (4) of Law 19/2003, the government may designate additional strategic sectors that may affect public security, public order or public health.

From a subjective point of view, and irrespective of the target's activities, a filing is triggered if:

  1. the foreign investor is directly or indirectly controlled by a foreign government, including any state bodies (e.g., state-owned enterprises and sovereign wealth funds);
  2. the foreign investor has already made investments affecting public security, public order or public health in another EU Member State, and particularly in 'strategic sectors' (as defined above); or
  3. there is a serious risk that the foreign investor engages in illegal or criminal activities affecting public security, public order or public health in Spain.

Thus, if all the aforesaid thresholds are met, the investment will be captured by the FDI screening mechanism. This means that the transaction will be subject to a mandatory obligation to obtain clearance by the Council of Ministers prior to closing of the transaction; that is, there is a suspension obligation. As further explained below, breaching such obligation is subject to sanctions.

Temporary regime (for EU/EFTA investors)

On a temporary basis (from 19 November 2020 until 31 December 2021), screening also applies to FDI made by residents of EU/EFTA countries. Such temporary regime applies to direct or indirect investments in Spanish companies provided that all the following criteria are fulfilled (i.e., cumulative criteria):

  1. the investment is carried out by an EU/EFTA investor, namely: (1) EU/EFTA residents; and (2) Spanish residents beneficially owned by EU/EFTA residents. This occurs when EU/EFTA residents ultimately possess or control, directly or indirectly, more than 25 per cent of the share capital or voting rights of the investor, or otherwise exercise control, directly or indirectly, over the investor;
  2. the investment qualifies as a foreign direct investment, following the same indications explained above for the general regime (i.e., acquisition of a stake in excess of 10 per cent or control of a Spanish company);
  3. the investment fulfils the value threshold, which is met if the target is either:
    • a listed company in Spain; or
    • a private company and the investment is worth more than €500 million; and
  4. the investment fulfils the strategic sectors threshold, which is met if the target is active in a 'strategic sector' in Spain (i.e., similar to those of the general regime).

If the investment made by the EU/EFTA investor satisfies the aforesaid thresholds, the transaction will be subject to a suspensory and mandatory filing requirement, and failure to do so will be subject to sanctions.

Exclusions and exemptions

The aforesaid regimes (both general and temporary) shall not apply if the target has no local subsidiary in Spain. However, caution is recommended in cases of acquisitions of assets that could be regarded as strategic, even if not considered as 'critical infrastructure'.

Transactions where the value of the Spanish subsidiary is below €1 million are exempt. Such exemption is, however, part of a temporary regime and potentially subject to changes in the future.

Sanctions for breaching the suspension obligation

An investment carried out in Spain without the required prior approval:

  1. renders the transaction invalid and without any legal effect in Spain until it has become compliant; and
  2. may carry a fine of between €30,000 and the transaction's financial value, plus public or private admonition (i.e., in practice, reputational damage and further scrutiny in future transactions).

iv Voluntary screening

The FDI screening mechanism and temporary regime are mandatory. Nevertheless, given the broad scope of the regimes, it is, in practice, common to seek legal certainty by means of formal and informal consultations with the Authority. This provides comfort to the parties, particularly where it is not clear whether the sector in which the target is active falls within the strategic sectors provided for in Article 7 bis (2) of Law 19/2003.

v Procedures

There are two possible review procedures in case a filing requirement is triggered:

  1. the ordinary procedure; and
  2. the simplified (fast-track) procedure.

Key differences between these are the length of the review and the body in charge of taking a decision.

In both instances, the party responsible for making a filing requirement is the investor. The investor shall request authorisation using an official questionnaire (the Questionnaire) provided by the Ministry of Industry, Trade and Tourism6 and addressed to the Sub-directorate General for Foreign Investment.

It is also relevant to note the potential impact of the EU cooperation mechanism following the EU FDI Regulation, as well as the potential powers of the Authority to review a transaction that has not been notified.

Ordinary procedure

This may take up to six months (although formal requests for information from the Authority may stop the clock). Failure to obtain a decision after the legal deadline shall be understood as clearance not being granted.

The body in charge of the review is the Directorate General for International Trade and Investment of the Ministry of Industry, Trade and Tourism, through its Sub-directorate General for Foreign Investment. The latter carries out the review and issues a proposal that, after going through the Board of Foreign Investment (who issues a non-binding opinion), is ready for final review and decision by the Council of Ministers. The latter may clear – either unconditionally or subject to remedies – or block the transaction.

The decision of the Council of Ministers may be appealed to the Supreme Court.7 However, given the wide discretion and political nature of the Council of Ministers, it is reasonable to expect that any such appeals would only be successful on procedural grounds.

Fast-track procedure

The fast-track procedure foresees a review period of 30 days.8 This is only available for transactions where the value of the Spanish target is between €1 million and €5 million. The body in charge of taking a decision is the Directorate General for International Trade and Investments of the Ministry of Industry, Trade and Tourism, subject to prior review of the Board of Foreign Investment (i.e., the Council of Ministers is not competent). Similar to the ordinary procedure, the decision rendered may clear – either unconditionally or subject to remedies – or block the transaction.

The decision of the Directorate General for International Trade and Investments may be appealed before the State Secretariat for Trade.9 The latter may be further appealed before the National Court.10

The fast-track procedure is part of a temporary regime and potentially subject to changes in the near future.

EU cooperation mechanism

With the EU FDI Regulation in place, several cooperation mechanisms need to be considered, including (if the potential transaction may affect public safety or order in another Member State or at EU level) a consultation process with the European Commission and other Member States. This process may take between 15 and 40 calendar days and may impact timing for clearance.

Furthermore, the Questionnaire contains a section intended to disclose certain information on the investment and its impact in other EU Member States. This information is actively shared among the different EU FDI authorities.

Powers of the Authority to review unreported transactions

Article 12 of Law 19/2003 foresees that the Authority has powers to review and investigate unreported transactions that should otherwise have been filed. If following such investigation, the Authority concludes that the transaction was closed without the required prior approval, it may impose sanctions, as explained in Section III.iii above.

vi Prohibition and mitigation

The FDI screening mechanism and temporary regime grant the possibility of prohibiting transactions or imposing conditions on their approval. Nevertheless, to the best of our knowledge, no transaction has been blocked to date.

In terms of remedies, these may be imposed on grounds of public order, security or health. Such remedies could take, in principle, any form and be adapted to the specific nature of each transaction. To date, and to the best of our knowledge, there have been only a few isolated cases where clearance was subject to remedies. However, strategic transactions will be cleared subject to remedies in the future. In this regard, the proposed acquisition of the energy provider Naturgy was recently cleared subject to conditions. Similarly, there have been press reports that the proposed sale of ITP Aero (part of Rolls-Royce) to Bain would be subject to conditions. In particular, it has been reported that the government will require an additional investment of €600 million in ITP Aero, limiting the indebtedness of the group, as well as the condition that 40 per cent of ITP's shareholding is held by Spanish residents.

There is very limited visibility on the remedial action of the Council of Ministers because there is no public access to its decisions, decisions are not published and, in major precedents, the Council of Ministers only publishes a brief summary of any conditions imposed upon the investor.

Sector-specific requirements

i Prohibited sectors

There are no prohibited sectors.

ii Restricted sectors

In addition to the screening mechanisms described above, certain acquisitions may require specific approvals or notifications from or to the relevant authorities in various sectors. Sectoral filing requirements are independent from any potential filing requirements under the FDI regimes – both could be required. The following are the key sectors to bear in mind when planning an investment concerning (directly or indirectly) Spain.

  1. Banking sector (Law 10/2014 on the regulation, supervision and solvency of credit institutions): certain investments in a Spanish credit entity must be notified, prior to the investment, to the Bank of Spain.
  2. Insurance sector (Law 20/2015 on the regulation, supervision and solvency of insurance and reinsurance companies): certain investments in a Spanish insurer or reinsurer must be notified, prior to the investment, to the General Directorate for Insurance and Pension Funds.
  3. Energy sector (Law 3/2013 on the creation of the National Commission for the Markets and Competition): certain acquisitions in a company carrying out regulated activities in the energy sector shall be notified to the Ministry for Ecological Transition and Demographic Challenge within 15 days after closing of the transaction. If the acquisition is made by a non-EU investor, conditions could eventually be imposed if the transaction poses a threat in Spain.
  4. Media sector (Law 7/2010 on General Audio-visual Communication): the acquisition of stakes in entities providing audio-visual communication services in Spain by non-EU entities are subject to the principle of reciprocity and the stake acquired by a non-EU entity may not directly or indirectly exceed 25 per cent of the share capital. Similarly, the aggregate stake of non-EU entities in the relevant audio-visual company shall be less than 50 per cent of the share capital.
  5. Firearms and defence sectors (Royal Decree 137/1993 on Firearms Regulation and Royal Decree 664/1999 on Foreign Investment): any foreign direct or indirect investment in a Spanish company conducting activities related to the manufacture of firearms or directly related to national defence (e.g., weapons, ammunition and military equipment) require authorisation by the Council of Ministers.
  6. Explosives sector (Royal Decree 130/2017 on the Explosive Regulation): any foreign investments, whether direct or indirect, in Spanish companies with activities related to explosives require authorisation by the Council of Ministers.
  7. Public procurement and concessions: certain public contracts and public domain concessions may need authorisation for a direct or indirect change of control (or both) from the granting authority. This will typically depend on the tender specifications governing the contract.

Typical transactional structures

Foreign investors seeking to set up new facilities or businesses or carry out mergers and acquisitions in Spain may potentially face scrutiny from Spanish authorities pursuant to the FDI screening mechanism, temporary regime or sectoral regimes, as explained above. Other than these, there are no relevant burdens for foreign investors.

i Corporate law residency requirements

Foreign companies and individuals with activities in Spain having a tax nature or with tax implications must have a tax identification number pursuant to Law 58/2003 on general taxation and Royal Decree 1065/2007 on the General Regulations of the tax inspection and management procedures and developing the common rules of the procedures to apply taxes.

ii Takeover bids by foreign companies

Certain investments in listed companies in Spain may be subject to takeover rules (Royal Decree 1066/2007 on takeover bids). Generally, investors who acquire voting rights equal to or greater than 30 per cent in a listed company, or otherwise reaching the legal control threshold concerning the target's directors,11 shall make a mandatory takeover bid for the entire share capital of the target. In practice, this means having to file an offer and a prospectus with the Spanish Securities Market Commission, who shall authorise the offer. These rules apply to both foreign and domestic investors.

iii Entering into joint ventures

Foreign companies entering into joint ventures in Spain with either national or foreign investors may still be subject to the FDI screening mechanism even if only a minority shareholding is being acquired. Greenfield joint ventures may also be captured by the regime. There are no specific limitations for foreign investors regarding joint ventures in Spain (e.g., no need for a domestic partner).

iv Typical corporate structures for conducting business operations

A foreign entity wishing to conduct operations in Spain may either incorporate a subsidiary (or acquire an existing company) or set up a branch. The subsidiary is an autonomous legal entity and may adopt any of the corporate structures foreseen in the Spanish legislation. In turn, a branch has no separate legal personality from the parent company to which it belongs. In practice, there are no major differences between both options. There are no relevant burdens for foreign entities in this regard.

Other strategic considerations

When considering a potential investment in a company in Spain or in a foreign company that has subsidiaries in Spain, the impact of the aforesaid FDI screening mechanism and temporary regime should be borne in mind, as this will help to effectively design the transaction from an FDI perspective and avoid further difficulties and delays at a later stage of the process. From a practical perspective, some of the key aspects to consider are the following.

i Timing

The legal deadline for clearance is six months from filing and therefore it is essential to engage with the Authority early on, particularly in cases where it is not clear whether the transaction triggers a filing requirement. This is also advisable in complex transactions because it will allow for a better coordination and it may streamline the process overall. The Authority is typically keen to have an open discussion with the parties in complex transactions to address the relevant technicalities, tentative calendar and the overall coordination of the process.

ii Contractual provisions

Closure of the transaction should be subject to obtaining the relevant FDI authorisation, if required. Furthermore, sufficient time should be allowed for the review period and it may be useful to include risk allocation provisions, particularly in the most challenging transactions that are only cleared with conditions.

iii Activities of the target

A careful analysis of the activities of the target is advisable in cases where the transaction is potentially problematic. This may help to design the perimeter of the transaction (e.g., by leaving out potentially problematic parts of the business that are not an essential driver of the deal and may be an obstacle for unconditional clearance).

iv Potential conditions

In complex transactions, it is essential to foresee potential conditions that may be imposed (not only in Spain but also in other jurisdictions). In fact, diverging outcomes could potentially be obtained when the transaction is notified in various EU Member States. In this context, it is necessary to anticipate all plausible scenarios because the potential outcomes could jeopardise the deal economics and transaction rationale.

v Impact of other FDI filings

The different FDI authorities across the European Union share information about potential investments. Thus, it is key to adopt a consistent approach in transactions involving more than one EU Member State. Furthermore, the review by other authorities may potentially have an impact on the review of the transaction, particularly if they identify any substantive concerns. In terms of jurisdiction, if the transaction does not clearly meet the thresholds of the FDI screening mechanism, but it will be reported in other Member States, this may have a relevant impact on the Authority taking jurisdiction.

vi Impact of other regulatory or competition filings

It can be reasonably expected that other filings could have an influence in the review of the transaction and even disclose transactions that have not been notified in Spain or abroad. In this regard, the Questionnaire expressly requests the investor to disclose whether the transaction is subject to any competition or regulatory filing requirements in Spain or in any other EU Member State. In fact, to the best of our knowledge, there is effective interaction between the Authority and other regulators.

vii Consortiums

It is common to carry out investment alongside other investors. Thus, it is relevant to consider the nature and background of the co-investor, as it may trigger a filing requirement in and of itself (irrespective of the target), and it may even increase the level of scrutiny. This is particularly important in auction bids, where the consortium may be at disadvantage if other bidders do not trigger a filing requirement in Spain. It is advisable to seek expert advice to minimise such risks.

Outlook

In terms of future trends, there are a number of items that foreign investors should bear in mind when planning a transaction in Spain:

  1. there is no certainty at this stage as to whether the temporary regime for EU/EFTA investors will be extended after 31 December 2021;
  2. the exact scope of the FDI screening mechanism may ultimately vary in the coming months. The relevant legislative development is currently with Parliament;
  3. further elaboration of the regime can be expected in the future. By way of illustration, the Questionnaire has been updated several times since March 2020, and the FDI screening mechanism has been subject to amendments since its implementation in early March 2020. We expect this trend to continue;
  4. many scenarios remain untested. As time goes by, the Authority is expected to review more complex and novel situations that would help them to provide more accurate definitions and to apply the regime in practice; and
  5. Spain still faces unprecedented economic uncertainty and, thus, new reactions to address the effects of the economic crisis cannot be ruled out.

Footnotes

1 Álvaro Iza is a partner, and Álvaro Puig and Javier Fernández are associates at Freshfields Bruckhaus Deringer Rechtsanwälte Steuerberater PartG mbB.

2 Law 19/2003 on the legal regime of capital movements and economic transactions abroad; and Royal Decree 664/1999 on foreign investment.

3 See in this regard, C(2020) 1981 final – Guidance to the Member States concerning foreign direct investment and free movement of capital from third countries, and the protection of Europe's strategic assets, ahead of the application of Regulation (EU) 2019/452 (FDI Screening Regulation).

4 In this regard, 'control' shall be understood as defined in Article 7 of Law 15/2007 on Defence of Competition, which follows the concept of control for EU merger control purposes provided for in the Commission Consolidated Jurisdictional Notice.

5 See above regarding the concept of control.

7 See Article 58, Organic Law 6/1985, on the Judicial Power.

8 In line with the standard simplified administrative procedure provided for in Article 96 of Law 39/2015 on the Common Administrative Procedure of the Public Administrations.

9 See Articles 114 and 121 of Law 39/2015 on the Common Administrative Procure of the Public Administrations.

10 See Article 11.1(a) of Law 29/1998 regulating the Contentious Jurisdiction.

11 Where it has acquired, directly or indirectly, a lower percentage of voting rights and appoints, within 24 months from the acquisition date, a number of directors who, together with those already appointed, if any, represent more than half of the members of the board.

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