Investment checks in times of the corona crisis

(Last update: 27 March)

The spread of the corona (COVID-19) virus is currently weakening the German and European economy. Enterprises of all sizes are feeling its effects. Large foreign investors, in particular, could now take this situation as an opportunity to invest in German and European companies.

In the search for a vaccine and effective drugs against the virus, research companies and production plants in the pharmaceutical, life sciences and biotechnology sectors have already entered the focus of such investors.

New guidelines of the EU Commission

In order to protect German and European enterprises and to ensure primary care and the supply of medical devices and products of the health sector, the European Commission adopted guidelines on 25 March 2020 which call on the EU member states to

• make full use of existing mechanisms to check foreign direct investments, paying particular attention to the risks to critical infrastructures, particularly in the health sector, and
• to introduce missing mechanisms to check foreign direct investments in order to examine foreign direct investments that pose a risk to security or public order, especially in the area of the critical infrastructures in the health sector.

What does this mean for us in Germany?

In Germany we already have far-reaching regulations for foreign direct investments - beyond the EU-wide regulations we even have regulations on indirect investments. The regulations are contained in §§ 55 et seqq. German Foreign Trade and Payments Ordinance [Außenwirtschaftsverordnung - AWV] in conjunction with the German Ordinance for the Determination of Critical Infrastructures pursuant to the Act to Strengthen the Security of Federal Information Technology [Verordnung zur Bestimmung Kritischer Infrastrukturen nach dem BSI-Gesetz - BSI-KritisV].

The BSI-KritisV explicitly mentions in § 6 the health sector as an area of critical infrastructure and focuses on the area of medical care in hospitals or with drugs/medical products and laboratory diagnostics.

In addition to treatment of the symptoms, however, research into a vaccine against coronavirus is currently also in full swing, without any such vaccine having already been produced, let alone marketed. Insofar, it may also be a political objective to include research not identified as critical infrastructure in the scope of the investment control.

The existing legal regulations and examination mechanisms already allow this. Anything that does not fall under the aforementioned area of critical infrastructure according to the BSI-KritisV can still be examined under the aspect of a risk to security and public order. It can definitely be expected that potential foreign investments, not just in the health sector, will now be examined even more closely.

It remains to be seen whether the corona crisis will also lead to a change in investment control regulations. 

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