The government assumes that, under the new rules, there will be approximately 1,850 operators of critical infrastructure in Germany (up from approximately 1,600 under the current regime).įor foreign investment screening, the amendment’s biggest impact will likely be in the energy sector, where most transactions will now trigger a mandatory filing. The amendment comprises both revised definitions in certain sectors (energy, water, nutrition, IT and telecommunications, health, finance and insurance as well as transport and traffic) and new or lower thresholds for some of the existing categories in the energy and IT sectors. There is currently a two-prong test for critical infrastructure: the activities in question must (i) fall within one of a variety of business-specific legal definitions, and (ii) meet certain thresholds, which aim to ensure that only activities which are essential for a large part of the population (the base assumption is 500,000 individuals) are caught. Any change to the definition of critical infrastructure therefore has an immediate effect on the screening of investments and the scope of the mandatory notification obligation. Under German law, investments of 10% or more by a non-EU/EFTA investor in German companies that operate critical infrastructure trigger mandatory filing obligations, and it is a criminal offense to close such transactions without approval by the Federal Ministry for Economic Affairs. The qualification as "critical infrastructure" entails a range of obligations for the operators of such facilities, but also serves as a trigger for mandatory FDI screening when operators are acquired by a purchaser that is based outside the EU/EFTA or has shareholders located outside the EU/EFTA.
On 1 January 2022, an amendment to the statutory definitions of critical infrastructure in Germany will enter into force.
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