The ISC has 30 calendar days to coordinate the assessment. In case the ISC deems it necessary to request additional information, the 30-day period will be suspended until all information has been received. Each Belgian government that is geographically concerned by the investment will conduct its own assessment coordinated by the ISC. An investment will be (deemed to be) approved and can be implemented if (i) no threats to the public order, national security or strategic interests are identified, or (ii) no decision is taken by the ISC within the 30-day period. However, if one of the examining governments identifies concrete evidence that such a threat exists, it may request the ISC to proceed with an in-depth screening procedure. Such decision The screening phase, which involves a more concrete risk assessment of the contemplated investment, will take at least 28 calendar days, but is likely to be extended (e.g., in case of an oral hearing, remedies or exceptional circumstances relating to the complexity of the case). Notably, requests for information and remedy negotiations suspend statutory timelines. Following the commencement of the screening procedure, any Belgian government considering whether the investment poses a threat may produce a draft opinion that will be provided to the non-EU investor for comment. cannot be appealed. Screening Phase The competent members of the ISC should each, within a term of 20 calendar days after opening of the screening phase, provide a draft advice to the minister that they represent. If the draft advice of one of the competent members appears to be negative, the other competent members will be informed, and the draft advice will be communicated to the foreign investor and the target company. The latter will have the opportunity both to consult the file kept by the ISC and to submit comments in writing within 10 calendar days after consulting the file.
Within 10 calendar days after receiving such comments, the ISC may organize an oral hearing. If one of the relevant Belgian governments proposes to approve the transaction subject to corrective measures and/or commitments (e.g., modifications to the structure of the proposed transaction, increased governance and compliance requirements, requirements related to the exchange of sensitive information, security clearance of directors, reporting to Belgian authorities, protection of sensitive technologies/ know-how/source codes held by the target company, continuity of supply of sensitive products or services, divestments, etc.), the ISC will enter into negotiations with the non-EU investor with a view to addressing such measures and commitments and their implementation. The negotiations regarding the corrective measures will suspend the 20-day term for one month, with the possibility of further one-month extensions for as long as the negotiations last. Each relevant minister must take a provisional decision whether to reject or approve the investment, possibly subject to commitments, which will lead to one of the following joint decisions by the ISC: ^ A prohibition if one of the competent ministers has issued a negative preliminary decision (supported, at federal level, by a deliberation of the federal council of ministers) and a non-remediable impact has been identified following specific advice from ISC members; or ^ A clearance or conditional clearance (subject to a binding agreement by the investor on the remedies imposed and negotiated by the ISC) in all other cases. Considering the lack of a clear calendar for the screening phase, the various possibilities to extend the timeframes that are identified and the relative lack of practice to date under this new FDI Regime, it is for the moment almost impossible to estimate the duration of an FDI screening.
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FDI and National Security Review
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