This information was provided by Bert Gevers on 15 September 2020,
and should be reviewed against any later legislative updates.
- Article III.59 and article III.60 of the Flemish Administrative Decree of 7 December 2019 (Vlaams Bestuursdecreet). The Flemish Government is competent for the screening / control measures, but no detailed screening procedure has been implemented thus far.
- There is currently no FDI screening legislation for the Walloon Region and the Brussels Region (written on 4 March 2020).
Safeguarding the strategic interests of the Flemish Community and the Flemish Region.
Ratione materiae: If a legal act of a public authority results in a foreign individual or legal entity gaining control or decision-making power in that public authority, and if the strategic interests of the Flemish Community or the Flemish Region are thereby threatened, in particular if the continuity of vital processes is jeopardized, if certain strategic or sensitive knowledge is at risk of falling into foreign hands, or if the strategic independence of the Flemish Community or the Flemish Region is compromised, the Flemish Government may annul that legal act or declare it inapplicable.
Ratione personae: As a public authority is considered, the Flemish Public Authorities, a local authority (in the Flemish Region) and all institutions (in the Flemish region) that
(i) have been established with the specific aim of meeting needs of general interest;
(ii) have legal personality; and
(iii) a) are financed for more than half by an entity falling within the scope of this section, b) an entity falling within the scope of this section has more than half the votes in the Governing Board; or c) their management is supervised by an entity falling within the scope of this section.
The control measures / screening is not specifically limited to certain sectors.
All sectors that are of strategic interest to the Flemish Community or Region are covered.
The Flemish Administrative Decree does not contain a definition of “investment activities”.
From the text of Article III.60 of the Decree it can be derived that gaining control or decision-making power in a public authority should be considered as “investment activities”.
The provisions can only be applied if a threat to Flemish strategic interests has been identified.
Such threat could exist of:
(i) the continuity of vital processes being jeopardized;
(ii) certain strategic or sensitive knowledge being at risk of falling into foreign hands; or
(iii) the strategic independence of the Flemish Community or the Flemish Region being compromised.
Only foreign investors (EU and non-EU) are subject to the provisions.
Not specified in the legislation.
Not clear since no detailed screening mechanism has been implemented thus far (written on 4 march 2020).
Not clear since no detailed screening mechanism has been implemented thus far (written on 4 march 2020).
The Flemish government must be able to demonstrate that it has made serious efforts to reach an amicable settlement with the public authority entering into the legal act that might threaten strategic interests.
This settlement can be reached by adapting the legal act so that the strategic interests are not threatened, by compensation of loss or through other means.
Individual ex post approach.
No prior notification obligations under the Flemish Administrative Decree.
Not applicable.
Individual ex post approach.
No specific time limits or timing included in the Flemish Administrative Decree.
The decision to annul the legal act or declare it inapplicable is made by the Flemish Government. In this respect, the opinion of the competent federal authority on the threat to national security is important for the factual or empirical substantiation of the Flemish Government’s decision.
This advice by the competent federal authority may be given on its own initiative or can be requested by the Prime Minister of the Flemish Region from the competent federal institution.
Not applicable.
Nullify (ex tunc or ex nunc) or disallow/declare inapplicable the legal acts made by a Flemish Public Authority if that legal act results in a foreign individual or legal entity gaining control or decision-making power in that public authority, and if the strategic interests of the Flemish Community or the Flemish Region are thereby threatened.
None are mentioned in the Flemish Administrative Decree.
The Flemish Administrative Decree remains silent on the possibility to appeal the decision of the Flemish Government.
Based on general principles of Belgian administrative law, an appeal could be lodged with the Belgian Council of State.