The art of casting political dissent in law: The EU’S framework for the screening of foreign direct investment

Abstract

This paper describes and analyses the EU Regulation establishing a framework for the screening of foreign direct investments (FDI) into the Union.The negotiations that preceded the adoption of the Regulation were characterized by greatly divergent views of Member States on the proper use of FDI screening. Under such conditions, the Regulation’s framework for administrative cooperation and information sharing was as much as the Commission could hope for. The main challenge going forward lies in balancing the policy priorities of individual Member States in determining what constitutes a threat to security and public order, with the needs of the collective, that is the EU. In that respect, the indicative criteria set out in the Regulation may initiate a drive towards a rough consensus. While any ambition to fully harmonize FDI screening has now become only a long-term goal, this paper finds that the Regulation has established a nascent EU screening mechanism, albeit a well-camouflaged one.

The interface between EU climate and energy law

“…82 Energy, conversely, is infrastructure-dependent and highly susceptible to delicate national security interests. 83 The linkages between infrastructure and security 84 explain why energy infrastructures have traditionally been constructed within national borders to serve predominantly national, not transnational or European, interests. 85 While global geopolitics are often the source of energy security concerns and protecting energy security has also become an issue of EU law, 86 the governance of the energy sector still remains at the heart of national sovereignty and impacts EU competences.…”

Foreign Direct Investment Screening in the EU – Future Perspectives and Implied Obligations

“…Consequently, Art. 1 (3), defining the subject matter and scope of Regulation 2019/452, provides that nothing in Regulation 2019/452 "shall limit the right of each Member State to decide whether or not to screen a particular foreign direct investment within the framework of this Regulation". 22 As the Commission so eloquently stated in its Explanatory Memorandum, the objective of Regulation 2019/452 "is to create an enabling framework for Member States that already have or wish to put a screening mechanism in place, and to ensure that any such screening mechanism meets some basic requirements, such as the possibility of a judicial redress of decisions, non-discrimination between different third countries and transparency" 23 .…”

“…ORCID ID: orcid.org/0000-0002-9679-222X. establishing a framework for the screening of foreign direct investments into the Union (hereinafter: Regulation 2019/452) 3 . In its Communication to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, the Commission recognized increasing concerns relating to the strategic acquisitions of European companies with key technologies, stressing that "the EU would not hesitate to act in order to protect its citizens and its industry when foreign countries or companies engage in unfair practices or raise concerns for security and public order" 4 .…”