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Actuality

Urgent measures on the legal regime of capital movements and economic transactions abroad.

Royal Decree Law 6/2020 of 10 March, adopting certain urgent measures in the economic field and for the protection of public health and Royal Decree Law 7/2020 of 12 March, adopting urgent measures to respond to the economic impact of COVID-19: No restrictive or protective measures for the Spanish market are envisaged.

In Royal Decree Law 8/2020 of 17 March on extraordinary urgent measures to address the economic and social impact of COVID-19, as explained in the explanatory memorandum, the crisis poses a threat to both listed and unlisted Spanish companies that may end up being involved in operations to acquire them by foreign investors.

I.- THEREFORE, THE RD AMENDS LAW 19/2003 OF 4 JULY ON THE LEGAL REGIME OF CAPITAL MOVEMENTS AND ECONOMIC TRANSACTIONS ABROAD BY ADDING A NEW ARTICLE 7 BIS.

1. The new article suspends DFI direct foreign investment, carried out by investors resident in countries outside the European Union and the European Free Trade Association, in the main strategic sectors of our country when the investor becomes the owner of a stake equal to or greater than 10 percent of the share capital of the Spanish company, or when as a result of the corporate operation, act or legal business, the investor effectively participates in the management or control of the company.

2. Likewise, the regime of liberalization of foreign direct investments in Spain, which are made in the sectors mentioned below and which affect public order, public safety and public health, is suspended.

Specifically, the sectors are as follows:

  1. a) Critical infrastructures, whether physical or virtual (including energy, transport, water, health, communications, media, data processing or storage, aerospace, defence, electoral or financial infrastructures, and sensitive facilities), as well as land and real estate that are key to the use of such infrastructures
  2. b) Critical technologies and dual-use items, including artificial intelligence, robotics, semiconductors, cybersecurity, aerospace, defence, energy storage, quantum and nuclear technologies, as well as nanotechnologies and biotechnologies
  3. c) Supply of critical inputs, in particular energy or those relating to raw materials, as well as food safety.
  4. d) Sectors with access to sensitive information
  5. e)Media

3. The regime of liberalization of foreign direct investment in Spain is also suspended in the following cases:

  1. a) If the foreign investor is directly or indirectly controlled by the government, including public bodies or the armed forces, of a third country, the criteria established in Article 42 of the Commercial Code being applied for the purpose of determining the existence of such control.
  2. b) Whether the foreign investor has made investments or participated in activities in sectors affecting security, public order and public health in another Member State, and in particular those listed in paragraph 2 of this Article.
  3. c) Whether administrative or judicial proceedings have been instituted against the foreign investor in another Member State or in the home State or in a third State for criminal or illegal activities.

The Government may suspend the regime of liberalisation of foreign direct investment in Spain in those other sectors not covered by paragraph 2 of this Article, when they may affect public security, public order and public health, in accordance with the procedure laid down in Article 7 of this Law. Article 7. Suspension of the liberalisation regime

The Government may agree to suspend the liberalisation regime established in this law in the case of acts, businesses, transactions or operations which, by their nature, form or conditions of performance, affect or may affect activities related, even if only occasionally, to the exercise of public power, or activities directly related to national defence, or activities which affect or may affect public order, public security and public health.

Such suspension shall make subsequent operations subject to administrative authorisation in accordance with Article 6.

Suspension of the liberalisation regime shall make such investment transactions subject to authorisation in accordance with Article 6

Investment operations carried out without the required prior authorization will lack validity and legal effects, as long as they are not legalized in accordance with the provisions of Article 6 (Authorizations on acts, businesses, transactions or operations affected by safeguard clauses or exceptional measures) of the Law.

II.-  ARTICLE 8(2) IS AMENDED TO READ AS FOLLOWS

They shall constitute very serious infringements:

  1. a) The carrying out of acts, business, transactions or operations prohibited by virtue of the adoption of the measures referred to in Articles 4 (Safeguard clauses), and 5 (Exceptional measures)
  2. b) Engaging in any act, business, transaction or operation without seeking authorization where required under Article 6 (Authorizations for acts, business, transactions or operations affected by safeguard clauses or exceptional measures) 7 (Suspension of the regime of liberalisation) and 7a (Suspension of the regime of liberalisation of certain foreign direct investments in Spain.), or prior to their concession or with breach of the conditions established in the authorisation.
  3. c) The lack of veracity in the applications for authorisation submitted to the competent bodies, provided that this can be considered to be particularly relevant.