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Finally, on 20 November 2018, after 15 months of negotiations and legislative elections with the Council and the European Commission (EC), the European Parliament`s (EP) trade negotiators agreed on a transparent and non-discriminatory control mechanism for foreign direct investment and improved cooperation between Member States and the EC. Following the approval of the text by the Permanent Representatives Committee (Coreper), the provisional agreement was last approved by the INTA Committee on 10 December 2018 by 30 votes to 4, with 5 abstentions in the European Parliament. The agreement follows Commission proposals from September 2017 and a short period of negotiations between the European Parliament, the European Council and the Commission. It also follows the latest national reviews and reforms in Germany, France, Italy, Japan, Canada, the United States and the United Kingdom, which we discussed earlier (link here). The EU framework contains essential elements of a procedural framework for verification mechanisms in the Member States. These include transparency of verification mechanisms, non-discrimination between third countries, the setting of deadlines for the adoption of review decisions, the protection of confidential information and the possibility of bringing judicial appeals against review decisions of national authorities. However, each Member State will remain in a position to set up new verification mechanisms or to amend existing ones. At present, 14 Member States have these mechanisms and more are expected to follow. On 19 December 22, 2018, Germany decided to reduce from 25% to 10% the thresholds for the review of foreign investments by the Ministry of the Economy for investments in security-sensitive sectors, such as critical infrastructure.

Given the recent changes and the political climate, it is recommended to ask the supervisory authorities to issue a security certificate in order to preserve the security of transactions. In addition, persons affected by restrictive measures which cannot be legally justified must be given effective remedies.93 As regards remedies, Article 3(5) of the Framework Regulation gives foreign investors and the undertakings concerned the right to appeal pending a review decision by the national authorities. The Framework Regulation itself does not provide for a specific procedure enabling them to benefit from such a right. Therefore, the appeal can only be made on the basis of legal instruments authorised by the national law of a given Member State. Therefore, the right of appeal can only be effectively applied in those Member States which have put in place not only national legislation for the verification of foreign direct investment, but also those which provide for such a right of appeal. With particular regard to the last principle, it should be noted that the Framework Regulation imposes such an obligation on Member States that have already incorporated the verification mechanism into their national legislation and not necessarily on those that have not. . .

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