New Dutch general (F)DI screening mechanism has been adopted by the Senate

Update: 17 May 2022

The new Dutch general (F)DI screening mechanism – Wet veiligheidstoets investeringen, fusies en overnames (Wet Vifo) – has been adopted by the Senate. Wet Vifo will enter into force at a time still to be determined by Royal Decree. However, Wet Vifo has partially retroactive effect as of 8 September 2020. Transactions that have taken place after 8 September 2020, but before the entry into force of the new regime only have to be notified upon request of the Minister. For more information on Wet Vifo and its scope, please be referred to our special webpage.

19 April 2022

The new Dutch general (F)DI screening mechanism – Wet veiligheidstoets investeringen, fusies en overnames (Wet Vifo) – has been adopted by the House of Representatives. Wet Vifo will apply to certain investments in vital providers and companies active in the area of sensitive technology.

Certain providers of:

• transport of heat;
• nuclear installations;
• air transport;
• port activities;
• banking services;
• infrastructure for the financial markets;
• extractable energy; and
• management activities of tech business campuses,

are considered as vital providers under Wet Vifo.

Companies active in the area of sensitive technology include in any case providers of strategic goods (dual-use and military) of which the export is subject to export controls.

Investments in vital providers and companies active in the area of sensitive technology can lead to national security risks (such as the disruption of vital processes and the creation of strategic dependencies).

Wet Vifo must still be approved by the Senate before it can take effect. It is expected that Wet Vifo will enter into force later this year. Wet Vifo has partially retroactive effect as of 8 September 2020. Transactions that have taken place after 8 September 2020, but before the entry into force of the new regime only have to be notified upon request of the Minister.

On 13 April 2022, we were present at the parliamentary debate regarding Wet Vifo. A number of relevant changes/insights emerged that are worth mentioning.

First, an amendment has been adopted on the basis of which managers of tech business campuses are qualified as vital providers under Wet Vifo.

Second, during the debate reference was made to a vitality assessment of the Dutch food security and supply system. The results of this assessment could lead to certain parts of the food system being designated as vital under Wet Vifo. That would mean that an additional category of vital providers will be included in Wet Vifo that will need to be separately adopted at a later stage.

Third, The Minister indicated that an additional and therefore separate sector specific investment test for the defense sector is currently in the making. The draft legislation is supposed to go into internet consultation later this year.

Fourth, the Minister has promised to schedule an initial evaluation moment after two years of entry into force (in addition to the planned evaluation after five years).

New FDI screening mechanisms in the Netherlands

The Netherlands has introduced two FDI screening mechanisms: the General FDI Screening Mechanism and the Act Undue Influence Telecommunications. The first, the General FDI Screening Mechanism, has not entered into force yet, but will be partly retroactive from 8 September 2020. The Act Undue Influence Telecommunications however, has already entered into force in October 2020. To help you assess whether your transaction falls under the scope of the new FDI screening regulations and what that entails, our Competition & Regulatory experts have developed a helpful infographic. You can find it in the link below.

Podcast: FDI screening in the Netherlands

For a more in-depth analysis of the new FDI screening mechanisms, you can listen to the new episode of our podcast Loyens & Loeff Now. In this latest episode, FDI screening in the Netherlands, lawyers Victor van Nuland and Boyd Wolffers discuss the implications of these new regulations and their impact on the transaction practice. You can listen to our podcast via the link below, on your smartphone with the QR code below:

or via your favorite podcast player:

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Quoted

The latest edition of our newsletter Quoted is entirely devoted to FDI screening mechanisms in the Netherlands and offers an in-depth look at the new (draft) regulations that have recently been introduced in the Netherlands.

If you have any questions on this topic, or if you would like to discuss your specific situation, please do not hesitate to contact us. Our experts are always happy to advise you on this or any other subject.