No time to rest! Updates on Dutch and European investment screening

Publication of the annual report

On 13 May 2025, the Investment Screening Bureau (Bureau Toetsing Investeringen - BTI) published its second annual report, which covered the year 2024. A total of 69 filings were made to the BTI in 2024. The BTI reviewed 83 investments (including 14 cases that had already been notified in 2023) and reached a conclusion in 70 cases:

• 61 cases under the Vifo Act;
• 1 case under the Telecommunications Act;
• 1 case under the Electricity Act 1998 each;
• 7 cases under the Wind Energy at Sea Act (Wet Windenergie op Zee). 

Outcomes

Notably, the Minister used his powers to prohibit an investment for the first time. In addition, three investments were subject to conditions. We understand that all four of these transactions were notified under the Vifo Act. In addition, 14 filings were either not in scope or were withdrawn by the notifying party. 

Review periods

According to the Minister, the BTI has completed all cases within the statutory deadlines, while also extending the review period for ten cases. It was also reported that 25% of the cases were closed within 35 days, and 50% of the cases between 35 and 72 days. While these figures suggest that most cases are cleared relatively quickly, the BTI’s presentation at a conference indicated that the more complex cases involving remedies took between 220 and 320 days for Phase I and up to another 150 days for Phase II. These figures include the time taken in which the statutory review period was suspended due to a request for information being sent to the parties involved. The BTI also asks informal questions more frequently, without suspending the statutory review period. 

Gun-jumping

Furthermore, the BTI noted at a conference that it is conducting various investigations into potential gun-jumping cases but has not imposed any fines (yet). It is actively monitoring relevant media outlets and will send letters to undertakings asking them to provide more information on the investment if it has any concerns.

The timing of changes to Dutch screening regimes

The Dutch government is planning to extend the scope of the Vifo Act by amending the Decree on Sensitive Technology (see our February 2025 newsletter). The Dutch government is currently evaluating the results of the public consultation and intends to submit the draft Decree to parliament for review shortly. The amended Decree was initially expected to come into effect in the second half of 2025, but the BTI has now informally confirmed that this will likely not happen until late 2025 or early 2026. 

Separately, the Dutch government confirmed that it plans to send the final draft of the Defence and Security-Related Industry Resilience Act (Wet weerbaarheid defensie en veiligheid gerelateerde industrie - Defence Resilience Act) to parliament in Q4 of 2025 (see our October 2024 newsletter). The bill must be passed by both houses of parliament before it can enter into force, which is not expected before the end of 2026 at the earliest. 

Step closer towards revised EU FDI Regulation

In January 2024, the European Commission proposed to revise the current EU FDI Regulation, which essentially establishes a cooperation mechanism for the screening of foreign investments into the EU (see our March 2019 newsletter). The proposal aims to strengthen the Commission’s involvement in the cooperation process, but leaves the ultimate decision on whether or not to approve an investment to the member state undertaking the screening. Additionally, the Commission included a list requiring member states to screen investments in certain sectors. 

On 8 May, the European Parliament adopted an amended proposal that goes even further than the Commission’s original proposal. The amended proposal would not only give the Commission new investigative powers, but it would also grant the Commission certain decision-making powers regarding the outcome of the investment under review in the event of a disagreement with the screening member state. 

The next step in the legislative process is for the member states to negotiate with the Commission and Parliament to produce a final proposal for the revised Regulation. After that, it can be adopted by the European Parliament and the Council. We expect the member states to push back on various important elements of the proposal, continuing to view national security as a matter for the member states themselves to decide upon. The new Regulation is expected to come into force at the end of 2026 or in early 2027. We will keep you posted!