What are the pitfalls or potential barriers investors should be aware of when considering FDI in Germany?

New rules under the German Foreign Trade Ordinance (Außenwirtschaftsverordnung) aim to tighten the regulatory screening process around foreign acquisition of specific German companies. The Federal Ministry for Economic Affairs and Energy now has the option to review whether a foreign acquisition poses a hazard to public order or security.

More companies than before will be subject to the screening process, in particular those in the energy, IT and telecommunications, transport, health, water, food and finance/insurance sectors. Foreign acquirers of such companies must report relevant transactions to the Federal Ministry for Economic Affairs and Energy in writing.

Levels of scrutiny will depend on whether the investor is from within the European Union/European Free Trade Association or not. Greater planning and preparation will be required prior to the implementation of many mergers or acquisitions, and this is likely to have a negative impact on M&A activity.

On the other hand, the legal certainty for enterprise acquisitions should become even higher due to the increased involvement of the regulator. M&A transactions cannot be prohibited once the review process has been orderly carried out.

Apart from the regulatory process, it must be noted that new companies often experience difficulties securing financing, as the required loans often cannot be collateralised to a sufficient degree. In these cases, with economically appropriate projects, so-called ‘public guarantees’ may replace or supplement any shortfall in loan securities. This instrument delivers additional confidence in favour of the investor’s bank concerning the financed investment project in Germany. Different types of public guarantee programs exist dependent on the size of the loan.

The above comments by Istvan are taken from the IR Global FDI Virtual Series, titled ‘The FDI Age: leveraging international investment opportunities in a global economy’. To view this full publication please click here.