The Covid19 crisis has provoked various countries, amongst which Spain, to put in place limitations on foreign investments in Spain. In other words the liberalization of the foreign investment regime is suspended until further notice.

Spain

The Spanish government requires to previously authorise the following investments that are: 1) foreign and 2) direct investments in Spain and in 3) strategic sectors.

Under “foreign” is understood coming from residents outside the European Union or European Free Trade Association (EFTA) region.

Under direct investments is understood: 1) acquire more than 10% of the shareholding and or 2) obtain the right to partcipate in management.

Affected Sectors

The strategic sectors are:

a) Critical infrastructures, whether physical or virtual. Including infrastructures of energy, transport, water, health, communications, means of communication, data treatment or storage, aerospace, defense, electoral or financial, and sensitive facilities. And  the land and properties that are key to the use of said infrastructures, as contemplated in Law 8/2011, of April 28, which establishes measures for the protection of critical infrastructure.

b) Critical technologies and dual-use products as defined in Article 2 (1) of Council Regulation (EC) number 428/2009, including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defense, energy storage, quantum and nuclear, as well as nanotechnologies and biotechnologies.

c) Supply of fundamental inputs, in particular energy, understanding for such those that are subject to regulation in Law 24/2013, of December 26, of the Electricity Sector, and in law 34/1998, of October 7, on the Hydrocarbons, or those related to raw materials, as well as safety food.

d) Sectors with access to sensitive information, particularly data personal, or with the capacity to control said information, in accordance with the Organic Law 3/2018, of December 5, Protection of Personal Data and guarantee of digital rights.

e) Media.

Further limitations

Previous authorization will also be required for foreign direct investments where:

a) if the foreign investor is directly or indirectly controlled by the government, including public bodies or the armed forces, of a third party country, applying for the purposes of determining the existence of said control the criteria established in article 42 of the Commercial Code.

b) if the foreign investor has made investments or participated in activities in sectors that affect security, public order and public health in another Member State.

c) if an administrative or judicial proceeding has been opened against the investor foreigner in another Member State or in the State of origin or in a third State for carrying out criminal or illegal activities.

Other Sectors

The Government may also suspend such foreign investment in other sectors if they may affect public safety, order public and or public health.

Consequences

Failure to comply with the authorization regime will mean that the foreign direct investment will not be legally valid and could be subject to administrative penalties.

Contact

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