38 Amendments of Ana GOMES related to 2017/0224(COD)
Amendment 74 #
Proposal for a regulation
Recital 1
Recital 1
(1) Foreign direct investment may contributes to the Union'’s growth, by enhancing its competitiveness, since such investment creatinges jobs and, generates economies of scale, bringings in capital, technologies, innovation, expertise, and by opening new markets for the Union'’s exports and enables reciprocity. It may supports the objectives of the Commission'’s Investment Plan for Europe and contributes to other Union projects and programmes set out in the non-exhaustive list included in the Annex to this Regulation, and is therefore in the strategic interests of the Union as its impact extends beyond borders and value chains.
Amendment 78 #
Proposal for a regulation
Recital 2
Recital 2
(2) The Union and the Member States, as market economies, have an open investment environment, which is enshrined in the Treaty on the Functioning of the European Union ('‘TFEU'’) and embedded in the international commitments undertaken by the Union and its Member States with respect to foreign direct investment. This openness to foreign investment must be maintained, provided it does not undermine the strategic autonomy of the Union and the security of the Union and its Member States, while taking into account the increasing number of constraints and difficulties that businesses of the Union are encountering in respect of investing in third countries, as a result of a lack of reciprocity.
Amendment 90 #
Proposal for a regulation
Recital 5
Recital 5
(5) There is currently no comprehensive framework at EU-Union level for the screening of foreign direct investments on the grounds of security or public order or the strategic autonomy of the Union, while all partners of the Union, including the G7 countries, have developed such frameworks using various screening mechanisms of varying levels of transparency, restrictiveness and predictability.
Amendment 94 #
Proposal for a regulation
Recital 5 a (new)
Recital 5 a (new)
(5 a) The dominant position of individuals, in particular multinationals or state-owned entreprises as defined in European competition law may constitute a threat to the security and public order of the Union.
Amendment 99 #
Proposal for a regulation
Recital 7
Recital 7
(7) It is important to provide legal certainty for national mechanisms and for a European foreign direct investment screening mechanism, and to ensure EUnion wide coordination and cooperation by establishing a framework for the screening of foreign direct investment in the Union on grounds of security or public order. This is without prejudice to the sole responsibility of the Member States for the maintenance of national security, public order and its strategic autonomy. This Regulation provides a legal framework in the light of developments in the nature of foreign direct investment and in the practices connected with it around the world. With that in mind, the Commission shall monitor screening systems in third countries.
Amendment 103 #
Proposal for a regulation
Recital 8
Recital 8
(8) The framework for the screening of foreign direct investment should provide the Member States and the Commission with the means to address risks to security or, public order and the Union’s strategic autonomy in a comprehensive manner, and to adapt to changing circumstances, to the context and to the conditions even when the investment has already been made, whilst maintaining the necessary flexibility for Member States to screen foreign direct investments on grounds of security and public order taking into account their individual situations and national circumstances.
Amendment 110 #
Proposal for a regulation
Recital 9
Recital 9
(9) A broad range of investments whichll types of foreign direct investments, regardless of their nature or quantity, including 'golden shares' and 'golden powers' should be covered where there is a desire for direct or indirect control and where they establish or maintain lasting and direct or indirect links between investors from third countries and undertakings carrying out an economic activity in a Member State should be. It is also vital to provide the means necessary to conduct monitoring for the duration of the investments covncerned.
Amendment 118 #
Proposal for a regulation
Recital 10
Recital 10
(10) Member States should be able tomust take the necessary measures, in compliance with Union law, to prevent circumvention of their screening mechanisms and decisions to protect security or, public order and the strategic autonomy of the Union. This shouldmust cover investments within the Union by means of artificial or complex arrangements thatdesigned not to disclose the end-investor or a takeover, or which do not reflect economic reality and circumvent the screening mechanisms and screening decisions, where the investor is ultimately owned or controlled by a natural person or an undertaking ofn end-investor, whether that is for example a natural or legal person, a third -country. This is without prejudice to the freedom of establish undertaking, a foreign power or government, and free movement of capital enshrined in the TFEUrmy or a security force of a third country.
Amendment 125 #
Proposal for a regulation
Recital 12
Recital 12
(12) In determining whether a foreign direct investment may affect security or public order or the Union’s strategic autonomy, Member States and the Commission shouldall be able to consider all relevant factors, including the effects on critical infrastructure, technologies, including key enabling critical technologies, and inputs which are essential for security or the maintenance of public order, and the disruptionUnion’s strategic autonomy and the disruption, including supply disruption, failure, loss or destruction of which would have a significantn impact in a Member State or in the Union. In that regard, due diligence by the Member States and the Commission should also be able to take intomust also take careful account of whether a foreign investor of foreign end-investor, is controlled directly or indirectly (e.g. through significant funding, including subsidies, or if a political party is involved in its decision- making) by a foreign power, army or security forces, by a State or by the government of a third country. In addition, in order to build up an accurate picture of the investment, other information is helpful in decision-making, subsidies) by the government of a third countrych as the investment conditions, the level of openness in the investor’s country of origin, the degree of reciprocity, the source of the funds, or the question of whether the foreign investment could bolster or lead to a monopolistic structure or to the control of a value chain to the loss of control of European critical infrastructures or supply chains.
Amendment 139 #
Proposal for a regulation
Recital 13
Recital 13
(13) It is appropriate to lay down the essential elements of the procedural framework for the screening of foreign direct investment by Member States to allow investors, the Commission and other Member States to understand how such investments are likely to be screened and to ensure that these investments are screened in a transparent manner and that they are non-re is no procedural discriminatoryion between third countries. Those elements should at least include the establishment of reasonable timeframes for the screening and the possibility for foreign investors to seek judicial redress before national authorities or jurisdictions with regard tof screening decisions.
Amendment 142 #
Proposal for a regulation
Recital 14
Recital 14
(14) A mechanism which enables Member States to cooperats part of the Union’s arrangements for the screening of foreign direct investment, a mechanism should be set up which enables Member States to maintain their screening mechanism, to cooperate, to exchange information, to build on best practice and assist each other where a foreign direct investment in one Member State may affect the security or public order of other Member States should be set upor the strategic autonomy and the interests of the Union. Member States shouldmust be able to provide commentsan opinion to a Member State in which the investment is planned or has been completed, irrespective of whether the Member States providing commentopinions or the Member States in which the investment is planned or has been completed maintain a screening mechanism or are screening the investment. The comments ofopinions drawn up by Member States shouldmust also be simultaneously forwarded to the Commission. The Commission should also have the possibility, where appropriate, tmust also issue an opinion to the Member State in which the investment is planned or has been completed, irrespective of whether this Member State maintains a screening mechanism or is screening the investment and irrespective of whether other Member States have provided commentopinions.
Amendment 152 #
Proposal for a regulation
Recital 15
Recital 15
(15) Furthermore, the Commission should have the possibility tomust screen foreign direct investments likely to affect projects and programmes of Union interest on grounds of security or public order. This would give the Commission a tool to protect projects and programmes which serve the Union as whole and represent an important contribution to its economic growth, jobs and competitiveness. This should include, in particular, projects and programmes involving a substantial EU funding or established by Union legislation regarding critical infrastructure, critical technologies or critical inputs. For greater clarity, an indicative and non-exhaustive list of projects or programmes of Union interest in relation to which foreign direct investment can be subject to a screening by the Commission should be listed in an Annexis listed in the Annex. In order to update that list, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making1a. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
Amendment 160 #
Proposal for a regulation
Recital 15 b (new)
Recital 15 b (new)
(15 b) At the request of economic operators such as companies, federations or the social partners, such as trade unions and civil society organisations, Members of the European Parliament must help safeguard the Union’s interests by having the power to require the Commission to issue an opinion on a foreign direct investment to a Member State. With due regard for the confidential nature of such opinion outside Member States, the European Parliament must obtain confirmation from the Commission that such an opinion has been issued.
Amendment 162 #
Proposal for a regulation
Recital 16
Recital 16
(16) Where the Commission considers that a foreign direct investment is likely to affect projects or programmes of Union interest on grounds of security or public order, or the Commission should have the possibility toUnion’s strategic autonomy, the Commission must address an opinion to the Member States in which such investment is planned or completed within a reasonable timeframe. The Member States should take utmost account of the opinion and provide an explanation to the Commission if they do not follow this opinion, in compliance with their duty of sincere cooperation under Article 4(3) TEU. The Commission should also have the possibility to request from those Member States the information necessary for its screening of such investment.
Amendment 169 #
Proposal for a regulation
Recital 16 b (new)
Recital 16 b (new)
(16 b) Provision should be made to cover exceptional cases in which the Commission and at least one third of the Member States believe that a foreign direct investment is likely to affect their security or public order or the Union's strategic autonomy, or the interests of the Union. The Member State in which the foreign direct investment is planned or has been completed has the final decision, but must, in cooperation with the Commission and the Member States concerned, find a solution other than simply authorising the investment.
Amendment 170 #
Proposal for a regulation
Recital 17
Recital 17
(17) In order to facilitate the cooperation with other Member States and the screening of foreign direct investment by the Commission, Member States shouldmust notify their screening mechanisms and any amendment thereto to the Commission, and shouldmust report on the application of their screening mechanisms on a regular basis. For the same reason, Member States that do not have a screening mechanism shouldmust also report on the foreign direct investments that took place in their territory, including ports, airports, energy power suppliers and distributors, defence or dual use industries, territorial waters, the continental shelf and exclusive economic zones, on the basis of the information available to them and the efforts made to obtain that information.
Amendment 177 #
Proposal for a regulation
Recital 18
Recital 18
(18) To that end, it is also important, with the effectiveness of the mechanism in mind, to ensure a minimumsufficient level of information and coordination with regard to foreign direct investments falling under the scope of this Regulation in all Member States. TAll this information should be made available by the Member States in which the foreign direct investment is planned or has been completed upon request of the Member States or of the Commission. Relevant information includes aspects such as the ownership structure of the foreign end-investor, its origin and the financing of the planned or completed investment, including, when availableon the basis of the best available information, information about subsidies granted by third countries. To that end, the Commission may provide further information on the foreign investor and the foreign end-investor on the basis of its activities and experience, in particular as regards its past relations with the foreign investor.
Amendment 202 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
1. 'fForeign direct investment' means investments of any kind by a foreign investor, irrespective of their volume or participation thresholds, by a direct foreign investor, who may or may not be the ultimate investor, aiming to establish or to maintain lasting and , direct or indirect links between the direct foreign investor and the entrepreneur to whom or the undertaking to which the capital is made available in order to carry on an economic activity in a Member State, including investments which enable effective participation in the management or director indirect control of a company carrying out an economic activity;- These ‘foreign direct investments’ can materialise in the form of securities purchases, loans, direct acquisition of real estate, or even patents and licenses from abroad, or indirectly from a already existing implantation.
Amendment 208 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
2. 'foreign investor' means a natural or legal person of a third country or an undertaking of a third country or a national, state institution intending to make or having already made a foreign direct investment, whether they are the end-investor or an intermediary;
Amendment 218 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States mayshall maintain, amend, tighten up or adopt mechanisms to screen foreign direct investments on the grounds of security or, public order, or the defense of the EU’s strategic autonomy under the conditions and in accordance with the terms set out in this Regulation.
Amendment 229 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
2. The Commission mayshall screen foreign direct investments that are likely to affect projects or programmes of Union interest on the grounds of security or, public order or the defence of the strategic order of the Union.
Amendment 262 #
Proposal for a regulation
Article 4 – paragraph 1 – indent 1
Article 4 – paragraph 1 – indent 1
- critical infrastructure, including energy, water, transport, communications and the media, public health, research, data storage, space or financial infrastructure, as well as sensitive facilities;
Amendment 273 #
Proposal for a regulation
Article 4 – paragraph 1 – indent 3
Article 4 – paragraph 1 – indent 3
- the security of supply of critical inputs; or when screening is carried out, the Member States and the Union should take account of the impact of direct foreign investments on the strategic autonomy of the Union and its Member States and on the value chain for critical technologies and sectors;
Amendment 278 #
Proposal for a regulation
Article 4 – paragraph 1 – indent 4
Article 4 – paragraph 1 – indent 4
- access to sensitive information or the ability to control sensitive information including sensitive personal data of European citizens.
Amendment 282 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
(new) The screening on the grounds of security, and public order and the defence of the strategic autonomy of the Union shall include the assessment of: (a) the risks of loss of European control on critical infrastructure and critical technologies in any Member State; (b) the degree of reciprocity in openness to foreign direct investments; (c) the extent to which a foreign direct investment is part of a state-led industrial policy strategy in support of strategic national interests; (d) whether the investment originates from or is directly or indirectly linked to countries subject to EU sanctions, or jurisdictions designated as tax havens in the Council Conclusions of 5 December 2017 on the EU list of non- cooperative jurisdictions for tax purposes. The Commission may take into account whether the foreign investor: (a) is controlled by the government of a third country through significant funding, including subsidies, preferential tax treatment, export credits, investments by state funds, executive boards composed of state or security forces representatives, etc. Effective control may also arise through the use of extended credit and lending by the government of a third country or a state-owned financial institution, or any other state-owned or state-controlled enterprise of a third country; (b) receives substantial state aid; (c) respects core labour standards and international agreements on sustainable development and anti-money laundering and -financing of terrorism rules in its global operations.
Amendment 283 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
The screening on the grounds of security and public order should include; - The degree of reciprocity in openness to foreign direct investments. - The extent to which a foreign direct investment is part of a state-led industrial policy strategy in support of strategic national interests; whether the investment originates from or are directly or indirectly linked to countries subject to EU sanctions, or jurisdictions designated as tax havens in the Council Conclusions of 5 December 2017 on the EU list of non-cooperative jurisdictions for tax purposes. Furthermore the Commission may take into account whether the foreign investor: - Is controlled by the government of a third country through significant funding, including subsidies, preferential tax treatment, export credits, investments by state funds etc; Effective control may also arise through the use of extended credit and lending by the government of a third country or a state-owned financial institution, or any other state-owned enterprise of a third country; - Receives substantial state aid ; - Respects core labour standards and international agreements on sustainable development in its global operations.
Amendment 296 #
Proposal for a regulation
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
Member States and the Commission shall also consider whether the country where the foreign investor is established is listed in Annex II of this Regulation.
Amendment 297 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)
Article 4 a Member States and the Commission shall take account of the impact of direct foreign investments on the strategic autonomy of the Union and its Member States and on the value chain for critical technologies and sectors.
Amendment 303 #
Proposal for a regulation
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1.The Commission shall carry out an investigation into the most significant barriers to investment abroad encountered by Union investors. 2. Based on the findings of this investigation the Commission shall propose a delegated act within one year of the entry into force of this Regulation listing in Annex II of this Regulation the countries where the most significant barriers are encountered.
Amendment 321 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Article 6 a Members States shall ensure that trade unions and other civil society organisations may require the competent authorities of the Member States and the Commission to activate screening mechanisms.
Amendment 338 #
Proposal for a regulation
Article 7 a (new)
Article 7 a (new)
Article 7 a If at least four Member States representing at least 35% of the overall population of the Union have submitted comments indicating that the foreign direct investment planned or completed in another Member State is negatively affecting their security or public order, or if the Commission advises against high risk for the strategic autonomy of the Union, the Member State where the foreign direct investment is planned or completed shall endeavour to propose mitigating measures within three months, reconsider and not authorise such a foreign investment.
Amendment 387 #
Proposal for a regulation
Article 8 – paragraph 7 a (new)
Article 8 – paragraph 7 a (new)
7 a. If at least four Member States representing at least 35% of the EU’s overall population have submitted comments indicating that the foreign direct investment planned or completed in another Member State is negatively affecting their security or public order the Member State where the foreign direct investment is planned or completed shall endeavour to propose mitigating measures within three months.
Amendment 391 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Where the Commission considers that a foreign direct investment is likely to affect projects or programmes of the Union interest or of its strategic interests, on grounds of security or public order relevant for preserving the democratic control and the Union legal order, the Commission mayshall issue an opinion addressed to the Member State where the foreign direct investment is planned or has been completed. The opinion of the Commission shall simultaneously be communicated to the other Member States and this advice should lead to a reconsideration of the referred investment, in order to ensure its control or termination.
Amendment 415 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The opinion of the Commission shall be communicated to the other Member States and to the European Parliament.
Amendment 416 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The opinion of the Commission shall be communicated to the other Member States and to the Parliament.
Amendment 425 #
Proposal for a regulation
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5 a. The protection of confidential and other sensitive information, including commercially-sensitive information, shall be done in accordance with Directive (EU) 2016/943.
Amendment 453 #
Proposal for a regulation
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1.The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The Commission shall be empowered to adopt delegated acts in order to amend the lists of projects or programmes of Union interest set out in Annex I and the list of countries with the most significant barriers to European investors set out in Annex II.
Amendment 470 #
Proposal for a regulation
Annex I a (new)
Annex I a (new)
ANNEX II (new) List of countries with the most significant barriers to Union investors.