Luis Alonso Cabezas Villagarcia – Junior Researcher MI G.E.O
Abstract
This article analyzes the EU’s evolving FDI screening framework, which balances economic growth with security concerns. It examines Regulation 2019/452, the Xella case, and compares the EU’s approach to US and Chinese models. Furthermore, this work highlights challenges in regulatory harmonization and the geopolitical shift toward investment protectionism, assessing its impact on Europe's strategic autonomy and global competitiveness.
Introduction
Foreign direct investment (FDI) is fundamental for every modern economy. It enhances productivity in both horizontal and vertical industries and supply chains. Moreover, it stimulates technological innovation, increases competition in domestic markets, and promotes cutting-edge management practices (Campos, Estrin & Bruno, 2021). For this reason, FDI usually makes up a significant share of most countries’ economies – the European Union being no exception. According to the latest data of 2022 as reported by the European Commission, the ratio (relative to GDP) of the EU's outward stock of FDI was 59.0%, while the stock of inward investment in the EU was 48.5%. This remains true despite the growing importance of FDI in emerging markets such as Brazil and China, which have increasingly been both receiving and making foreign investments, particularly since the onset of the global financial crisis (Carril-Caccia & Pavlova, 2018), as well as despite the net decrease in investment worldwide (Simmons & Simmons, 2024). In the Old Continent, the sectors mostly receiving FDI are financial and insurance activities, manufacturing, professional, scientific and technical activities, and distributive trades, among others (European Commission, 2022). Moreover, in Europe and other advanced economies, FDI mostly takes the form of mergers and acquisitions (Carril-Caccia & Pavlova, 2018).
Figure 1 - Inward and outward foreign direct investment (FDI) stock as a share of gross domestic product (GDP) in the European Union from 2005 to 2022. Source: Statista
Figure 2 - Foreign direct investments in the world and the EU27. Source: OECD via Simmons & Simmons
Given its importance for economic development, FDI has increasingly been subject to securitization by Brussels. One example of the Commission turning economic affairs into matters of national security is the labeling of China in 2019 as “systemic rival” (European External Action Service, 2023), given the growing number of Chinese manufacturing goods competing against European products. This has led to an increased protection of European supply chains (Glencross, 2024), while the concept of “de-risking” is frequently mentioned among pundits and policymakers, calling for less reliance on China for economic matters. In the same light, some have even urged Brussels to completely decouple from China (Casarini, 2024). Chinese investments in Europe are also a concern for economic security, since the European Commission (2019) has reported that China is rapidly increasing its investments in highly innovative sectors where Europe has traditionally held an edge, such as manufacturing and ICT, and which appear to generate great productivity growth in favor of the Chinese acquiring entities.
Figure 3 - Chinese cross-border mergers and acquisitions (M&As) in EU and US. Source: European Commission
Furthermore, there is growing evidence that FDI is being reoriented along geopolitical lines – a phenomenon known as “friend-shoring”. For instance, a report published in the ECB Economic Bulletin showed that, since 2016, greenfield investments (i.e., intended to build new or extend existing production capacity) between Western countries have increased consistently, accounting for over 30% of all inflows in 2023 (Boeckelman et al., 2024). This situation coexists with the previously mentioned decline in global investment, drawing a seemingly contradictory scenario in which political interests outweigh economic considerations.
The framework for FDI screening in Europe has, therefore, focused on a dual objective: on the one hand, promoting the continent's economic development; on the other, safeguarding European strategic security. Considering this dual objective, this paper proposes an assessment of these two goals with a plural approach: first, by presenting the existing European framework for FDI screening and evaluating the impact of the recent Xella case; and second, by contrasting the European regime to those existing in the United States and China.
- EU legislation
1.1. Historical background and the FDI Screening mechanism
Before the establishment of any EU-wide screening instrument, every member state decided on their own national regulations. The basis for a European screening regulation was set by the Lisbon Treaty in 2009 through Article 207 dealing with the common commercial policy. However, Member States repeatedly tried to undermine this power by the Commission. The first proposal of a pan-European screening mechanism came in 2011 by Commissioners Antonio Tajani and Michel Barnier, but it was dismissed by most Commission officials. The same result came with the 2012 proposal by the European Parliament. Momentum in favor of a common mechanism was favored in 2017 by the efforts of Italy, Germany, and especially France, considering the growing Chinese investments in Europe. They were deemed threatening to European economic security, while China was accused of stealing critical technology (Chan & Meunier, 2022).
Regulation 2019/452 was introduced after a lengthy negotiation process. It provides guidelines for member states to screen FDI, focusing on critical areas such as infrastructure, technologies, sensitive information, and media freedom. While it does not force member states to implement screening mechanisms, it sets clear parameters for those that do. Moreover, it facilitates cooperation and information sharing among member states and the European Commission, allowing for comments on specific investments in other member states to evaluate any potential risks. Additionally, member states must report annually to the Commission on FDI inflows, screening activities, and related decisions (Regulation 2019/452). Without being subject to any turnover-based thresholds, the FDI Regulation applies to a wider range of transactions than the Merger Regulation, which was the only other mechanism that the European Commission possessed to review private transactions. Although launched in 2019, this mechanism was properly established in October 2020, amid growing concerns about potential predatory acquisitions of undervalued EU companies during the Covid-19 pandemic (Garrod, 2020; European Commission, 2020).
National support for EU-wide screening varied throughout the Old Continent. One 2022 study (Chan & Meunier, 2022) showed that the more technologically developed countries were more supportive of FDI screening due to concerns over unreciprocated technological transfer. These include Austria, France, Germany and Italy. Countries like Greece and Portugal opposed these measures because of their economies being heavily dependent on Chinese investments.
1.2. Recent developments
According to a 2022 report by the OECD, while the mechanism has strengthened cooperation and transparency, important challenges, such as uneven implementation, persist. In fact, some Member States lack robust screening mechanisms or fail to gather and act on crucial information. The many different administrative and bureaucratic processes across the Union also lead to efficiency issues that limit the ability to properly incorporate feedback. Furthermore, up to 2022, political commitment to advancing reforms had diminished in certain Member States, slowing progress on improving screening practices and addressing regulatory gaps (OECD, 2022).
The Fourth Annual Report on FDI Screening shows that in 2023, EU Member States managed 1808 FDI authorization requests and ex-officio cases, with most of the screened cases (85%) being unconditionally approved. Most FDI notifications were concentrated in Germany (19%), Spain (17%), and France (13%). The majority of investments came from the United States (33%), with other investors comprising the United Kingdom, the UAE, China, and Japan (European Commission, 2024).
Even though most Member States have adopted national FDI screening mechanisms, the FDI regime is still not fully harmonized across Europe. For this reason, in January 2024 the European Commission proposed revisions to the Screening Regulation, aiming to encourage all 27 EU Member States to establish national FDI screening mechanisms with harmonized rules while allowing flexibility to account for unique national security considerations. The revisions also mandate the screening of foreign investments in a minimum set of sectors, including strategic assets, technologies, and entities critical to EU security and public order, as well as procedural improvements to enhance efficiency and accountability (Bartoš et al., 2024).
Two recent examples show how the EU Commission has started to become more assertive regarding FDI Screening. The first one regards the war in Ukraine: the Commission noted that investments linked to individuals or entities influenced by the Russian or Belarusian governments in critical assets could endanger European security and public order and thus urged Member States to be especially cautious about them. The second example regards 5G investments in Europe. This initiative is related to the European Parliament's security concerns related to an increasing Chinese technological influence in the EU. Brussels has taken a similar stance to that of Washington in this regard, which has characterized China’s actions as economic aggression, particularly through companies like Huawei (Roberts, 2023).
About this second example, recent developments show the increased cooperation between Member States regarding FDI Screening. In fact, the Commission has been intensifying the monitoring of restrictions on telecom suppliers like Huawei and ZTE for 5G network infrastructure. So far, 11 out of 27 EU countries have imposed restrictions, 21 have adopted related rules, and three have pending legislation. Global distrust of Huawei and ZTE, fueled by concerns over alleged spying and their ties to the Chinese government, led Japan, the US, and EU countries to exclude them from public tenders and telecom projects since 2018. The accused firms, however, deny these allegations. In Europe, countries like Germany and Italy have tried to limit Huawei’s stake in 5G infrastructure projects, while others like Slovenia have taken a more flexible approach, continuing to cooperate with China while getting into security agreements with allies like NATO (Croet, 2024).
- The Xella case: overview and impact
A recent case that is particularly important for clarifying the applicability of Regulation 2019/452 is the so-called Xella case (C-106/22). Xella Magyarország, a Hungarian company operating in the mining industry, planned to acquire Janes és Társa, another Hungarian company involved in the extraction of raw materials such as gravel, sand, and clay. The Xella Group is owned by a fund based in Bermuda and ultimately by an Irish national. The transaction was blocked by the Hungarian ministry of Innovation and Technology on the basis of a potential threat to national security. The Hungarian ministry treated Xella as a foreign investor under Hungarian law and stated that, if Janes és Társa were to be indirectly owned by a foreign company, this would pose a long-term risk to the security of the supply of raw materials to the construction sector, harming the national economy. Xella appealed to the Budapest High Court, which, in turn, requested a ruling from the ECJ.
Despite the opinion by Advocate General Capeta, who supported the application of the Regulation and argued that there is no difference between direct and indirect control by foreign investors (Vacaru & Pascu, 2023), according to the ECJ, Xella is ultimately a company integrated under an EU member state, and thus its ownership structure including an extra-EU country should not be a cause for discrimination. Therefore, Hungary was violating the freedom of establishment as set by articles 49 to 55 of TFEU. According to several analyses (Berg et al., 2023; Shipley, 2023), the ruling underscores a narrow interpretation of Regulation 2019/452 and national security considerations regarding FDI. In this case the ECJ determined that the concerns raised by Hungary were purely economic and did not constitute a high stake for national security as to allow the blockage of the transaction. Additionally, given that Jares’ had a low market share in Hungary and given that Xella had already purchased 90% of Jares’ production capacity in the past, the European Court further concluded that the required "real and sufficient serious threat" was unlikely to exist.
The Xella case sets an important precedent that prevents Member States from engaging in protectionist policies disguised as national security concerns. Given the complexity in FDI screening for each member state (Macovei, 2024), the 2024 revision was in fact an appropriate reform. Indeed, it addresses the legal vacuum that emerged through the Xella case: given that firms integrated in Europe with indirect foreign ownership need to be treated in the same way as European-owned firms, this could be exploited by foreign rivals to undermine European security through harmful investments. The ECJ itself recognized this in the Xella judgement by stating that the national security concern for countries blocking FDI transactions had to be considerable and clear (C-106/22).
3. Comparative analysis
3.1. United States
The US Congressional Research Service (Cimino-Isaacs & Sutter, 2024) describes the Committee on Foreign Investment in the United States (CFIUS) as an interagency body chaired by the Secretary of the Treasury that serves the President in supervising the potential national security risks of certain foreign direct investment in the U.S. economy. CFIUS jurisdiction includes the review of mergers, acquisitions, and takeovers that could result in foreign control of a U.S. business; certain noncontrolling investments in businesses involved in critical technologies, critical infrastructure, or sensitive personal data; and certain real estate transactions.
CFIUS gets its authority from Section 721 of the Defense Production Act (DPA). The DPA was reformed by Congress in 1988 through the “Exon-Florio” amendment, which codified the review process, while the Foreign Investment and National Security Act of 2007 gave CFIUS statutory authority. In 2018, Congress passed the Foreign Investment Risk Review Modernization Act (FIRRMA), aimed at enhancing CFIUS’ ability to address transactions previously not covered by its jurisdiction.
The review process begins with notification to CFIUS by the contracting parties. Non notified transactions remain subject indefinitely to future CFIUS review and possible divestment or other actions mandated by the President. A party’s filing of a transaction can be submitted as a declaration or as a written notice, both differing in submission length, timeline for CFIUS’ consideration, and CFIUS’s options for disposition of the submission. Treasury and a co-lead agency conduct a 45-day review to determine the consequences of the transaction on American national security. The final decision on the transaction is left to the President.
Factors to consider screening comprise domestic production needed for national defense; control of domestic industries and commercial activity by foreign citizens; effects on sales of military goods or technology to a country that supports terrorism or proliferates missile technology or chemical and biological weapons; U.S. technological leadership in areas affecting national security; and effects on U.S. critical infrastructure and critical technologies. CFIUS can negotiate and impose mitigation conditions on the parties to address its concerns. If CFIUS believes that a transaction poses unresolved concerns, it may recommend to the President that the deal be prohibited, unless the parties choose to abandon the transaction.
Overall, there has been an increase in transactions reviewed since the enactment of FIRRMA. In 2023, CFIUS reviewed 342 filings, clearing 83 declarations, while more than half of total notices proceeded to an investigation. In 57 cases, parties withdrew the notice during the investigation to address issues, and the majority refiled with CFIUS. CFIUS adopted mitigation measures for 43 notices. In 14 cases, the parties abandoned the deal after CFIUS was unable to resolve its concerns, or after the parties did not accept the proposed measures.
Up to December 2024, some members of Congress were advocating for stricter measures to address concerns over state-directed investments from China and other adversaries. These include potential loopholes in emerging technologies and agricultural land, while new legislation has been proposed to expand CFIUS jurisdiction, restrict Chinese investments, and enhance coordination with the Department of Agriculture. The last controversial transaction reviewed was the blockage of the US Steel / Nippon Steel merger by President Biden on grounds of national security, sparking outrage and leading to a lawsuit against the government by the transacting parties (Lawder, 2025).
3.2. China
China's FDI screening policy, governed by the 2020 Foreign Investment Law, generally gives equal treatment to investments by foreign and domestic companies, except for those included in the Negative List (a list of sectors in which foreign investment is prohibited) or subject to National Security Reviews (NSR). The National Development and Reform Commission (NDRC), the Ministry of Commerce (MOFCOM), and the State Administration for Market Regulation (SAMR) supervise implementation and approvals.
The FDI screening process targets critical sectors like military, energy, technology, and infrastructure, making sure that transactions adhere to the Communist Party’s leadership and ideology. Investors coming from Hong Kong, Macau, and Taiwan may receive preferential treatment, while foreign state-owned enterprises usually face more restrictions. Recently, telecommunications, education, and healthcare services have been somewhat liberalized through the 2024 Negative list (Zhou, 2024).
Foreign investment transactions must be notified. The National Security Review process can result in severe penalties for non-compliance with conditions and mitigation measures, including the invalidation of transactions. The Chinese authorities have broad discretion in evaluating national security risks and decisions are generally confidential. Moreover, the review process ends with agreements which also tend to be undisclosed. Foreign investors can challenge decisions through administrative reconsideration or litigation, but judicial interventions are rare. Increased scrutiny has also focused on "round-trip investments," particularly those involving offshore jurisdictions for tax benefits or maintaining funds abroad (Desmonts, 2024).
In recent years, national security concerns, particularly regarding data protection, have increased the focus of FDI screening, making the NSR more rigorous and reflective of China's broader geopolitical strategies- for instance, China's Dual Circulation Strategy that aims to balance the economic activity within China with the one between China and the rest of the world (McAlary, 2023).
3.3. Implications for the EU
CFIUS’s extensive powers have been cited as a model for the EU Commission’s approach to FDI screening (Vinhas de Souza, 2024). Moreover, both Regulation 2019/452 and FIRRMA have been successful not only in increasing the scope of the regulatory authorities (Kalmanath, 2021), but also in increasing the number of screenings. Thus, it makes sense for officials in Brussels to continue imitating US practices. On the other hand, the Chinese system is tightly controlled by the Communist Party, giving a strong emphasis to national security concerns and potentially contributing to a future economic isolation of Beijing. While such a closed approach to foreign investment should not be a model for Brussels, it is important for European policymakers to learn how the Chinese system works to effectively engage in geoeconomic competition.
Conclusion
So far, the Screening Regulation has led to an increase in screening cases in the EU, as well as more countries starting to adopt their own national regulations. As of January 2025, 24 out of 27 EU members already possess some type of screening regime, while the ones that still don’t (Cyprus, Croatia and Greece) have achieved important progress in their domestic legislations (Bartoš et al., 2024). Although foreign investment in Europe has been declining for some years, it is unclear to what extent it is a result of stricter FDI screening controls. In fact, first, investment has been declining worldwide; second, the mechanism is very recent, and its revisions are yet to be implemented; and third, these provisions are just one piece in the system of regulations and restrictions to trade enacted by the EU. Given that the EEA comprises such a big and profitable market, it is doubtful that a Regulation that so far only coordinates national mechanisms would have such a negative impact on investment.
Overall, the European FDI screening mechanism has led to an increase in the number of potentially harmful transactions assessed, while Europe is still an attractive destination for foreign capital because of its big market and developed economy. At the same time, the revision of the regulation might be an element of further European integration in times of growing protectionism and geopolitical conflict, with FDI screening being an economic domain in which Europe can learn from the measures pursued in the United States. In this regard, cases like Xella can help the EC discover loopholes that could be exploited by rivals to harm Europe through subtle, non-military means, making ECJ case law not an impediment, but a complement to European policymaking. Of course, the ability of Europe to coordinate on FDI for each of its member states is related to the broader problem of European integration, in which several sectors, like defense and tax policy, are yet to be harmonized, and which will add to the challenges for policymakers in the years ahead.
Looking beyond the EU, protectionism is on the rise in many countries, with powerhouses such as the United States and China heavily protecting their national industries. It is unclear to what extent European national security measures will go, whether they will significantly contribute to the fragmentation of global markets, and if Europe will be able to reach its highly desired strategic autonomy. Moreover, the EU’s tools for self-defense do not only comprise the FDI screening regulation, but also other instruments like the Foreign Subsidies regulation and the Corporate Sustainability Due Diligence Directive. The latter focuses on human rights and environmental protection by foreign companies, along with other clauses on forced labor and that particularly target China (EQS, 2024). In addition, the Commission had already imposed tariffs on Chinese goods. These mainly include electric vehicles, but also other sectors such as green technology (Schäpe, 2024), while engaging in several antidumping trade disputes with Beijing (Pereira, 2024).
An analysis on GIS Reports (Savic, 2024) suggests that Europe might be able to balance security and economic protectionism by increasing the investments coming from the United States and Japan, i.e., through the phenomenon of “friendshoring” mentioned in the introduction of this paper. This phenomenon could offset the effects on trade by the barriers enacted by the EU, having an overall neutral or even positive effect on investment and trade to and from Europe.
Another current challenge to the EU comes from the new presidency of Donald Trump, which threatens to further damage the liberal world order and the traditional alliance between Europe and the United States through tariffs and hostile rhetoric. In this light, achieving less reliance on the United States, i.e., achieving strategic autonomy, is crucial. However, the Nippon steel / US steel case, among others, shows that the United States, regardless of who sits in office, is a country that is willing to protect its interests even by blocking investments by traditional allies. Europe should have the capacity to do the same. Nonetheless, this economic security should come, in turn, with keeping a relatively attractive business environment, balancing security concerns with the wellbeing of citizens and stakeholders, European and foreign alike. Although our preliminary analysis shows positive signs, only time will tell.
Source Classification
Information Content | ||
1 | Confirmed | Confirmed by other independent sources; logical in itself; coherent with other information on the topic |
2 | Presumably true | Not confirmed; logical in itself; coherent with other information on the topic |
3 | Maybe true | Not confirmed; reasonably logical in itself; coherent with some other information on the topic |
4 | Uncertain | Not confirmed; possible but not logical in itself; no other information on the topic |
5 | Improbable | Not confirmed; not logical in itself; contradicts with other information on the topic |
6 | Not able to be evaluated | No basis to evaluate the validity of the information |
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