Bringing EU investors within the scope of the FDI Legislation
According to the new regulation, investments notified as economic concentrations in accordance with Competition Law No. 21/1996, which meet the conditions regarding the scope of activity set out in the Decision of the Supreme Council of National Defence No. 73/2012 and the value threshold of EUR 2,000,000, will be subject to examination and authorisation by the Commission for the Examination of Foreign Direct Investments (in Romanian: “Comisia pentru examinarea investițiilor străine directe” – “CEISD”), regardless of whether they are carried out by foreign investors or investors from the European Union. The concept of “EU investor” is defined as including the following categories of persons who have made or intend to make an investment in Romania: ▸ Natural persons who are citizens of a Member State of the European Union; ▸ Legal entities, having their registered office in a Member State of the European Union; ▸ Legal entities, having their registered office in a Member State of the European Union, in which control is exercised directly or indirectly by (i) a natural person who is a national of a Member State, (ii) a legal entity that has its registered office in a Member State, or (iii) another legal entity, without legal personality, organised under the laws of a Member State;▸ The trustee of an entity without legal personality or a person in a similar position if the trustee is a national of a Member State (in the case of a natural person), or if the trustee has its registered office in a Member State (in the case of a legal entity), or if the entity has been constituted under the laws of a Member State.
Regulating the possibility to annul the direct investment
The CEISD may issue an advisory opinion with a proposal to annul the direct investment if it finds that a foreign direct investment, for which no request for authorisation has been submitted, has been implemented in breach of the FDI Legislation and affects the security and public order of Romania or is likely to affect projects or programmes of interest to the European Union. The Government of Romania, by decision, may subsequently order the annulment of the investment by establishing the conditions, criteria, deadlines and procedure for the annulment.Value of the direct investment
The new regulation confers upon the Competition Council the power to adopt guidelines on how to determine the value of the direct investment.[1] Date of entry into force of Law No. 164/2023 approving Government Emergency Ordinance No. 46/2022 on measures implementing Regulation (EU) 019/452 of the European Parliament and of the Council as of 19 March 2019 establishing a framework for examining foreign direct investment in the Union and amending and supplementing Competition Law No. 21/1996, published in the Official Gazette, Part I, No. 495/7.06.2023.
