Notification and Preliminary Review Notifications for qualifying investments need to be submitted to the ISC, composed of nine representatives from the three Belgian governments (federal, regional and community authorities). No filing fee is required for submissions to the ISC. Asset deals and acquisitions of business divisions or units operating in the relevant sectors are also subject to notification if a non-EU investor acquires control. The Guidelines further clarify that, in certain circumstances, branch offices may be considered entities within the meaning of the FDI Regime – meaning that an investment in a foreign legal entity with a branch office in Belgium may also trigger a notification requirement. If acquisition of voting rights is deferred or conditional, notification of an investment is required as soon as certainty exists that the applicable 10% or 25% threshold will be exceeded. The ISC employs a “look-through” approach to determine voting percentages, meaning it will dilute an investor’s stake in an organization over the entire chain of command down to the Belgian entity unless the investor holds control over the Belgian entity or its parent. Notification to the ISC is generally required upon signing an investment agreement, although the FDI Regime does not impose strict deadlines for submission. The ISC will first proceed with a preliminary review to assess whether the notification is complete and may also request – or in certain circumstances will be obliged to request – advice from different parts of government. The ISC may begin an ex officio procedure even in instances where an investment is not subject to a mandatory application, if that investment concerns matters of national security, public order or strategic interest. Assessment Phase Once the ISC informs the parties that the notification is considered complete, the ISC’s Secretariat officially confirms this to the foreign investor and the assessment phase starts.
y Supply of critical inputs such as energy, raw materials and food; y Access to sensitive information (e.g., relating to Belgium’s defense and strategic assets, personal data or the possibility to control such data); y Private security (e.g., monitoring and protection of persons and goods); y Freedom and pluralism of the media; or y Technologies that are of strategic importance in the biotech sector and whose turnover exceeds €25 million in the year preceding the investment; or ^ At least 10% of the voting rights in, and/ or the acquisition of control over, a target company active in energy, defense (including dual-use products), cybersecurity and electronic communication, or digital infrastructure sectors and whose turnover was more than €100 million in the year preceding the investment. The Cooperation Agreement foresees that the Belgian governments may, by unanimous agreement, decrease the 25% threshold to 10%, or increase the 10% threshold to 25%. Procedures Investments that fall within the scope of the FDI Regime must be notified to the ISC. All notifications are suspensory, i.e., the parties will not be able to close the transaction before obtaining approval. The FDI Regime is thus both mandatory and suspensory for all investments that fall within the scope of the FDI Regime. Financial considerations such as acquisition price, revenue generated by the target company (excluding biotech sector investments), and market shares are not considered by the ISC in determining whether filing an application is necessary.
Belgium
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