欧盟新投资审查计划剑指中国?

2017-09-19 13:52    发布人:管理员

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      2017年9月13日,欧盟提出一项适用于所有成员国的计划,用于审查他国在本地进行的敏感投资。(Proposal for a Regulation on establishing aframework for screening of foreign direct investments into the European Union)

      出台背景:法德意三巨头呼吁加强外资审查;很大程度上是针对近年来在欧盟投资活跃的中国企业。
      目的:保护欧洲的战略利益。
      外部评论:部分赞赏,多国批判。

      规则具体内容如下:

Article 1 Subject matter and scope(管辖事项和范围)
This Regulation establishes a framework forthe screening by the Member States and the Commission of foreign direct investments in the Union on the grounds of security or public order.

Article 2 Definition(定义)
For the purposes of this Regulation, the following definitions apply:

  1. 'foreign direct investment' means investments of any kind by a foreign investor aiming to establish or tomaintain lasting and direct links between the foreign investor and the entrepreneur to whom or the undertaking to which the capital is made availablein order to carry on an economic activity in a Member State, including investments which enable effective participation in the management or controlof a company carrying out an economic activity;
  2. 'foreign investor' means a natural person of a third country or an undertaking of a third country intending to make or having made a foreign direct investment;
  3. 'screening' means a procedure allowingto assess, investigate, authorise, condition, prohibit or unwind foreign directinvestments;
  4. 'screening mechanism' means an instrument of general application, such as a law or regulation, and accompanying administrative requirements, implementing rules or guidelines,setting out the terms, conditions and procedures for the screening of foreigndirect investments on grounds of security or public order;
  5. 'screening decision' means a measureadopted in application of a screening mechanism;
  6. 'undertaking of a third country' meansan undertaking constituted or otherwise organised under the laws of a thirdcountry.

Article 3 Screening of foreign direct investments(外国直接投资审查)

  1. Member States may maintain, amend oradopt mechanisms to screen foreign direct investments on the grounds ofsecurity or public order, under the conditions and in accordance with the termsset out in this Regulation.
  2. The Commission may screen foreign directinvestments that are likely to affect projects or programmes of Union interest on the grounds of security or publicorder.
  3. Projects or programmes of Union interest shall include in particular thoseprojects and programmes which involve a substantial amount or a significantshare of EU funding, or which are covered by Union legislation regardingcritical infrastructure, critical technologies or critical inputs. An indicativelist of projects or programmes of Union interest is included in Annex 1.

Article 4 Factors that may be taken intoconsideration in the screening(考量因素)
In screening a foreign direct investment onthe grounds of security or public order, Member States and the Commission mayconsider the potential effects on, inter alia:
– critical infrastructure, including energy, transport,communications, data storage, space or financial infrastructure, as well assensitive facilities;
– critical technologies, including artificial intelligence, robotics,semiconductors, technologies with potential dual use applications,cybersecurity, space or nuclear technology;
– the security of supply of critical inputs; or
– access to sensitive information or the ability to control sensitive information.
In determining whether a foreign directinvestment is likely to affect security or public order, Member States and theCommission may take into account whether the foreign investor is controlled by the government of a third country, including through significant funding.

Article 5 Anti-circumvention (反规避)
Member States may maintain, amend or adoptmeasures necessary to prevent circumvention of the screening mechanisms andscreening decisions.

Article 6 Framework for Member States'screening (成员国评审框架)

  1. Member States' screening mechanismsshall be transparent and not discriminate between third countries. Inparticular, Member States shall set out the circumstances triggering thescreening, the grounds for screening and the applicable detailed proceduralrules.
  2. Member States shall establishtimeframes for issuing screening decisions. Such timeframes shall allowthem to take into account the comments of Member States referred to in Article8 and the opinion of the Commission referred to in Articles 8 and 9.
  3. Confidential information,including commercially-sensitive information, made available by foreigninvestors and undertaking concerned shall be protected.
  4. Foreign investors and undertakingsconcerned shall have the possibility to seek judicial redress againstscreening decisions of the national authorities.

Article 7 Notification by Member States ofscreening mechanisms and annual reporting(通知和年度报告)

  1. Member States shall notify to theCommission their existing screening mechanisms by […] (30 days of the entryinto force of this Regulation) at the latest. Member States shall notify to theCommission any amendment to an existing screening mechanism or any newlyadopted screening mechanism within 30 days of entry into force of the screeningmechanism at the latest.
  2. Member States that maintain screeningmechanisms shall provide the Commission with an annual report on theapplication of their screening mechanisms. For each reporting period, thereport shall include in particular information on:
    (a) foreign direct investments screened andundergoing screening;
    (b) screening decisions prohibiting foreigndirect investments;
    (c) screening decisions subjecting foreigndirect investments to conditions or mitigating measures;
    (d) the sectors, origin, and value offoreign direct investment screened and undergoing screening.
  3. Member States that do not maintainscreening mechanisms shall provide the Commission with an annual reportcovering foreign directs investments that took place in their territory, onthe basis of information available to them.——没有外资审查机制的成员国也得报告!

Article 8 Cooperation mechanism (合作机制)

  1. Member States shall inform theCommission and the other Member States of any foreign direct investments thatare undergoing screening within the framework of their screening mechanisms, within5 working days from the start of the screening. As part of the information, andwhen applicable, the screening Member States shall endeavour to indicatewhether it considers that the foreign direct investment undergoing screening islikely to fall within the scope of Regulation (EC) No 139/2004.
  2. Where a Member State considers that aforeign direct investment planned or completed in another Member State islikely to affect its security or public order, it may provide comments to theMember State where the foreign direct investment is planned or has beencompleted. The comments shall be forwarded to the Commission in parallel.
  3. Where the Commission considers that aforeign direct investment is likely to affect security or public order in oneor more Member States, it may issue an opinion addressed to the Member State inwhich the foreign direct investment is planned or has been completed. TheCommission may issue an opinion irrespective of whether other Member Stateshave provided comments.
  4. The Commission or a Member State whichduly considers that a foreign direct investment is likely to affect itssecurity or public order may request from the Member State where the foreigndirect investment is planned or has been completed, any information necessaryto provide comments referred to in paragraph 2, or to issue the opinionreferred to in paragraph 3.
  5. Comments pursuant to paragraphs 2 oropinions pursuant to paragraph 3 shall be addressed to the Member State wherethe foreign direct investment is planned or has been completed within areasonable period of time, and in any case no later than 25 working daysfollowing receipt of the information referred to in paragraphs 1 or 4. In caseswhere the opinion of the Commission follows comments from other Member States,the Commission shall have 25 additional working days for issuing the opinion.
  6. The Member States where the foreigndirect investment is planned or has been completed shall give due considerationto the comments of the other Member States referred to in paragraph 2 and tothe opinion of the Commission referred to in paragraph 3.
  7. Cooperation between Member Statespursuant to this Article shall take place through the contact points referredto in Article 12.

Article 9 Framework for Commissionscreening (委员会审查框架)

  1. Where the Commission considers that aforeign direct investment is likely to affect projects or programmes of Unioninterest on grounds of security or public order, the Commission may issue an opinion addressed to the Member Statewhere the foreign direct investment is planned or has been completed.
  2. The Commission may request from theMember State where the foreign direct investment is planned or has beencompleted any information necessary to issue the opinion referred to inparagraph 1.
  3. The Commission shall address its opinionto the Member State concerned within a reasonable period of time, and in anycase no later than 25 working days following receipt of the informationrequested by the Commission pursuant to paragraph 2. Where a Member State has ascreening mechanism in place as referred to in Article 3(1) and the informationon foreign direct investment undergoing screening has been received by theCommission pursuant to Article 8(1), the opinion shall be delivered no laterthan 25 working days following receipt of such information. Where additionalinformation is needed to issue an opinion, the 25-day period shall run from thedate of receipt of the additional information.
  4. The opinion of the Commission shall becommunicated to the other Member States.
  5. The Member States where the foreigndirect investment is planned or has been completed shall take utmost accountof the Commission's opinion and provide an explanation to the Commission incase its opinion is not followed.——成员国可以不采纳委员会意见但需要提供解释,无约束力!

Article 10 Information requirements (信息要求)

  1. Member States shall ensure that theinformation requested by the Commission and other Member States pursuant toArticles 8(4) and 9(2) is made available to the Commission and the requestingMember States without undue delay.
  2. The information referred to in paragraph1 of this Article shall include in particular:
    (a) The ownership structure of the foreigninvestor and of the undertaking in which the foreign direct investment isplanned or has been completed, including information on the ultimatecontrolling shareholder or shareholders;
    (b) The value of the foreign directinvestment;
    (c) The products, services and businessoperations of the foreign investor and of the undertaking in which the foreign directinvestment is planned or has been completed ;
    (d) The Member States in which the foreigninvestor and the undertaking in which the foreign direct investment is plannedor has been completed conduct business operations;
    (e) The funding of the investment, on thebasis of information available to the Member State.

Article 11 Confidentiality (机密性)

  1. Information received as a result of theapplication of this Regulation shall be used only for the purpose for which itwas requested.
  2. Member States and the Commission shallensure the protection of confidential information acquired in application ofthis Regulation.

Article 12 Contact points (联络点)
Each Member State shall appoint a foreigndirect investment screening contact point ('FDI screening contact point') forthe screening of foreign direct investment. The Commission and other MemberStates shall involve these FDI screening contact points on all issues relatedto implementation of this Regulation.

Article 13 Evaluation (评估)

  1. The Commission shall evaluate andpresent to the European Parliament and the Council a report on the applicationof this Regulation no later than 3 years after its entry into force. MemberStates shall be involved in this exercise and shall provide the Commission withnecessary information for the preparation of that report.
  2. Where the report recommends modifyingthe provisions of the Regulation, the report may be accompanied by anappropriate legislative proposal.

Article 14 Entry into force (生效)
This Regulation shall enter into force onthe twentieth day following that of its publication in the Official Journal ofthe European Union.

This Regulation shall be binding in itsentirety and directly applicable in all Member States. Done at Brussels,

原文链接:
https://ec.europa.eu/transparency/regdoc/rep/1/2017/EN/COM-2017-487-F1-EN-MAIN-PART-1.PDF
(整理人:漆彤)

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