On 14 April 2022, the Romanian Government adopted Emergency Ordinance no. 46/2022 (GEO 46/2022) which provides the legal framework for the application of Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for screening foreign direct investments into the Union (the FDI Regulation).
The new legal framework sets forth the creation of a newly constituted body, the Commission for the Examination of Foreign Direct Investments (FDI Commission). We summarize below the key aspects introduced by the new legislation on foreign direct investments (FDIs):
Investments covered by GEO 46/2022
The new screening mechanism applies to FDIs made or intended to be made in Romania by foreign investors, defined as (i) non-EU citizens, (ii) non-EU based legal entities, (iii) EU-based legal entities controlled, directly or indirectly, by non-EU citizens or non-EU entities, or (iv) trustees of non-legal entities or similar persons that are non-EU citizens or non-EU based entities.
FDIs are defined as any investments made by a foreign investor pursuant to which: (i) the foreign investor aims to establish or maintain lasting and direct links between the foreign investor and the legal entity concerned, to which the capital is or will be made available in order to carry out an economic activity in Romania, enabling such to exercise control over the management of the legal entity, or (ii) a change occurs in the ownership structure of a foreign investor legal entity if such a change enables the entity to become directly or indirectly controlled by a non-EU citizen or non-EU legal entity.
In addition to FDIs, new investments will also be subject to the provisions of GEO 46/2022. A new investment is defined as an initial investment in tangible and intangible assets within the same perimeter, related to the start-up of a new business, capacity expansion of an existing company, and diversification of production either by developing new products or a fundamental change of the existing production process.
FDIs with a value exceeding the RON equivalent of EUR 2,000,000 qualify for scrutiny.
By exception, FDIs that do not reach the above-mentioned threshold may still be subject to examination by the FDI Commission if, by their nature or potential effects, such investments may impact or pose a risk to national security or public order, considering the criteria set out in Article 4 of the FDI Regulation.
Sectors subject to scrutiny
FDIs targeting the following sectors will be subject to examination by the FDI Commission:
(i) security of citizens and the community; (ii) border security; (iii) security of the energy sector; (iv) security of transports; (v) security of the supply systems with vital resources; (vi) security of critical infrastructure; (vii) security of information systems and communications systems; (viii) security of financial, fiscal, banking and insurance activity; (ix) security of production and circulation of weapons, ammunition, explosives and toxic substances; (x) industrial security; (xi) protection against disasters; (xii) protection of agriculture and the environment; and (xiii) protection of operations for the privatisation of state-owned enterprises or their management.
Parallel filings for merger control and FDI screening
If an FDI triggers at the same time a merger control notification, the foreign investor is required to submit both an authorisation request under the conditions of GEO 46/2022 and a merger control notification.
The filing of the authorisation request is to be performed by the entity acquiring control and must include the following information:
As regards FDIs carried out through the merger of two or more enterprises, applications for authorisation will need to be submitted by each of the involved parties. Moreover, GEO 46/2022 sets forth that the FDI Commission may initiate the examination procedure of non-notified FDIs either ex officio, or at the request of any Romanian authority.
Following the examination, the FDI Commission will:
(i) issue an opinion authorizing the FDI, deciding that it does not constitute any threat to national safety, based on which the Romanian Competition Authority will issue the authorisation decision, or, alternatively,
(ii) submit the investment to an extended examination by the Romanian Government. Following the extended examination, the Romanian Government will issue a decision to either:
GEO 46/2022 provides that implementation of an FDI without proper authorisation or the submission of incorrect or incomplete information will be sanctioned with fines of up to 10% of the foreign investor’s worldwide turnover.