I. Occasion and purpose of the amendment(s)

The 16th and 17th Amendment Ordinances to the Foreign Trade and Payments Ordinance (“AWV”) resulted in additions and adjustments to the AWV that, in the view of the Federal Ministry of Economic Affairs and Energy (BMWi), were necessary as a result of the amendment of the Foreign Trade and Payments Act in 2020 and to establish synchronization with and concretization of optional contents of EU Regulation 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the verification of foreign direct investment within the Union (“EU Screening Regulation”). Within the framework of investment control, due consideration must now also be given to comments from other EU member states and the EU Commission in the event of probable impairment of the public order or security of one or more other EU member states or of EU projects or programs listed in the EU Screening Regulation.
In addition, the scope of application of investment control in both the cross-sectoral (i.e., civilian) and sector-specific (i.e., military) areas has been significantly expanded to include reporting requirements and enforcement bans, and procedures have been further harmonized between the cross-sectoral and sector-specific areas.

II. Which business acquisitions are most affected by the amendments?

Cross-sectoral examination

The 17th Amendment Ordinance primarily affects the civilian so-called cross-sectoral area:

Catalog of transactions subject to reporting requirements and enforcement bans significantly expanded

The newly inserted § 55a AWV now contains the list of case groups in the civilian (i.e. cross-sectoral) area for which basically a reporting requirement and an enforcement ban exists. This list was extended by 15 (!) case groups by the 17th Amendment Ordinance. Among others, the following case groups have been newly included, which are specified in somewhat more detail in the respective number of § 55a para. 1 AWV, but rarely contain size thresholds, so that the scope of application can be very broad:

• use of artificial intelligence for specific application areas (no. 13),
• automated or autonomous driving or flying (no. 14),
• certain uses of robotics (no. 15),
• Semiconductors (no. 16), cybersecurity (no. 17), aerospace (no. 18), nuclear technology (no. 19), quantum technology (no. 20), certain additive/3-D printing manufacturing processes (no. 21), network technologies (including regarding 5G networks, no. 22), smart meter gateways (no. 23), services for the Federal Republic of Germany in the field of information technology and communications technology (no. 24), companies that directly or indirectly manage an agricultural area of more than 10,000 hectares (no. 27).

New threshold for initial review introduced in certain areas

In connection with this extension, the thresholds for an initial review of the case groups in § 55a para. 1 AWV were newly regulated in § 56 para. 1 AWV. The 10 % threshold (meaning the direct or indirect holding of voting rights) now “only” covers the case groups from § 55a para. 1 nos. 1-7, while an initial review threshold of 20 % will apply in future to the case groups from § 55a para. 1 nos. 8-27. This means that for case groups no. 8 to 12 (certain industries from the health sector and earth observation systems), the threshold for the initial review has been increased from the original 10 % to 20 %.

Further thresholds for additional acquisitions

The 17th Amendment Ordinance now clarifies the question as to when acquisitions are also subject to renewed investment control. Pursuant to § 56 para. 2 AWV, additional acquisitions in the case groups of § 55a para. 1 AWV are subject to renewed investment control if a buyer, as a result, directly or indirectly holds or exceeds at least 20 % (in the case of an entry threshold of 10 %), 25 %, 40 %, 50 % or 75 %.
For cases that can generally fall under § 55 para. 1 AWV but are not covered by a case group of § 55a para. 1 AWV, the initial review threshold (direct or indirect) of 25 % remains; the additional acquisition thresholds would then be 40 %, 50 % and 75 %, respectively.

Investment control also conceivable below the thresholds in the case of atypical acquisition of control

However, an investment review may also be possible below the thresholds if a so-called “atypical acquisition of control” has occurred. According to the newly introduced § 56 para. 3 AWV, this may be conceivable if

“[…] an acquisition of voting rights by a non-European Union person is accompanied by
1. the assurance of additional seats or majorities on supervisory bodies or in management,
2. the granting of veto rights for strategic business or personnel decisions, or
3. the granting of rights over information within the meaning of § 15 para. 4 sentence 1 no. 3 of the Foreign Trade and Payments Act,
which exceed the influence conferred by the share of voting rights in such a way that, as a result or together with the voting rights, a participation in the control of the domestic company corresponding to the relevant share of voting rights within the meaning of paragraph 1 is made possible.”

This provision had already been criticized in advance because it leads to an increase in legal uncertainty in all cases in which shareholder or investor agreements are concluded in the context of an investment or acquisition below the relevant thresholds. In these cases there is no reporting requirement (see § 55a para. 4 sentence 3 AWV) and thus in principle also no legal consequence of the enforcement ban according to § 15 para. 3 AWG, but they are in principle subject to the ex officio examination possibility of the BMWi according to § 14a AWG (which is only excluded 5 years after conclusion of the contract, § 14 para. 3 sentence 2 AWG). Therefore, even in these cases, if there is uncertainty about the existence of an atypical acquisition of control, it is likely to be useful to apply for or obtain a clearance certificate pursuant to § 58 AWV.

No certificate of non-objection in certain cases

It was clarified in § 58 para. 3 AWV that a certificate of non-objection (with the aim of shortening the examination period) cannot be applied for or obtained if there is a reporting requirement for an acquisition (§ 55 para. 4 sentence 1 AWV) or an examination has been initiated ex officio (§ 55 para. 3 AWV).

Sector-specific examination

Adjustment examination standard

In the area of sector-specific examination, the examination standard in § 60 para. 1 AWV has now also been adjusted to the probable impairment of essential security interests.

Extension of case groups

In addition, the case groups here were also amended to include, among others, the following case groups:

• in § 60 para. 1 no. 1 AWV reference is made to all military equipment as defined in Part I Section A of the Export List;
• the newly formulated case group no. 2 now includes companies that develop, manufacture, modify or have in their possession military goods and technologies to which secret patents and classified utility models relate.

Both case groups are also given further special significance by the fact that companies that are no longer actively involved in these areas but still “have knowledge of or other access to the technology underlying such goods” (§ 60 para. 1 sentence 2 AWV) also fall under investment control. Especially the reference to the past causes difficulties in practice, because there are no presumption rules or deadlines in the AWV, when such a reference to the past is no longer given.

Thresholds

Pursuant to § 60a para. 1 AWV, the initial inspection threshold of 10 % remains unchanged, and pursuant to § 60a para. 2 AWV, the provisions of § 56 para. 2 to 5 AWV also apply mutatis mutandis, which means that, among other things, both the additional acquisition thresholds of 20 %, 25 %, 40 %, 50 % and 75 % and the provisions on atypical acquisition of control apply mutatis mutandis.

III. Conclusion and outlook

In an increasing number of transactions with investors from third countries, foreign trade law must be considered and, if necessary, time must be planned for an examination procedure or for obtaining a certificate of non-objection. The BMWi itself assumes that the number of cases will increase considerably due to the expansion of the case groups and that there may also be an increase in case constellations in which the scope of application of the cross-sectoral as well as the sector-specific examination may be opened in parallel. An evaluation procedure of the amendment to the Foreign Trade and Payments Act of 2020 concerning §§ 4, 5, 13, 14a and 15 of the Foreign Trade and Payments Act and the Foreign Trade and Payments Ordinance in the versions of the 15th, 16th and 17th Amendment Ordinances concerning §§ 55 to 62a is still ongoing until July 2022 with regard to the effectiveness of the regulations and the associated expense for companies and the administration. It will then become clear whether investment controls will be further tightened or whether they will be made less stringent and more user-friendly.