The new Austrian Investment Control Act

The new Investment Control Act ("ICA") was passed by the Austrian National Council on 8 July 2020. This law regulates the review of foreign direct investment holdings in Austrian companies. It was enacted in connection with the EU FDI Screening Regulation ("Regulation"), which will be fully applicable as of 11 October 2020.

Both the Regulation and the ICA aim to regulate potential threats to foreign direct investments by companies in important Austrian enterprises. Foreign companies are defined as companies that have their registered office or head office outside the EU, EEA or Switzerland.

The ICA reviews direct and indirect investments in companies that are indispensable for security and public order. The previous provision of §25a(3) of the Foreign Trade Law only listed a not exhaustive list of such business areas. In order to create more transparency and legal certainty, the ICA sets more stringent standards. The affected areas are divided into two parts: Part 1 of the Annex called “particularly sensitive areas” and Part 2 of the Annex called “other areas where there may be a threat to public security and/or public order, including crisis management and services of general interest”. Part1 of the Annex is an exhaustive list and includes the following areas:

• defence equipment and technologies
• operation of critical energy infrastructure
• operation of critical digital infrastructure, in particular 5G infrastructure
• water
• operation of systems that guarantee the data sovereignty of the Republic Austria
• research and development in the fields of pharmaceuticals, vaccines, medical devices and personal protective equipment.

Part 2 of the Annex is a demonstrative list and includes:

• critical infrastructures such as energy, transport and traffic, food, defence;
• critical technologies such as artificial intelligence, robotics, nanotechnologies;
• critical resources such as energy supply, raw material supply;
• access to or ability to control sensitive information, including personal data;
• freedom and plurality of the media.

An authorisation for the acquisition of foreign shareholdings is already triggered by direct or indirect acquisitions of 10 % of the voting shares for businesses of Part 1 of the Annex. The reduction from the previously envisaged 25% to 10% can be explained by the fact that the areas concerned are particularly relevant to the universal service. For direct or indirect acquisitions of voting rights the threshold remains at 25% of the voting rights for companies in Part 2 of the Annex. As acquisition is considered either the purchase of voting rights, the acquisition of a controlling influence or the acquisition of significant assets. Consequently, with the introduction of the ICA, besides shares deals, now asset deals will also be captured in order to counteract transactions to circumvent such control.

The application for approval must be submitted immediately after the conclusion of the legal transaction. In addition to the acquirer, the target company can also apply for authorisation. Applications have to be submitted to the leading responsible member of the Federal Government, which is currently the Federal Ministry for Digital and Economic Affairs ("BMDW"). If a notifiable transaction is not reported to the BMDW and the BMDW becomes aware of it, the BMDW can initiate the controlling procedure through official channels. The BMDW decides within 2 months whether an in-depth examination procedure should be initiated or whether it will grant approval. If there are any grounds for fear of threat to public safety or public order, the transaction may be approved subject to certain conditions. However, if the threat is too great and no remedies can be imposed, the authority can prohibit the acquisition.

Alternatively, a certificate of no objection may be applied for even before the legal transaction is concluded.

Micro enterprises or start-ups with less than 10 employees and an annual turnover or balance sheet total blow € 2 million are exempt from this new control mechanism.

Autor: Christina Hummer