Saatja: Madis Ostra <
[email protected]>
Saadetud: 20.07.2023 13:31
Adressaat: <"MKM info">
Koopia: <"Andres Kikas">
Teema: Vastus
Manused: ATT00001.png; PDF_EE FDI screening_june.23.pdf; FDI screening in
Estonia_july.23.pdf
Tere!
Eesti kehtivad teatud piirangud vara omandamisel, rakendatakse rahvusvahelisi sanktsioone ja
taustakontrollimehhanismi välismaistele otseinvesteeringutele.
Kinnisasja omandamisega seotud piirangud on sätestatud kinnisasja omandamise
kitsendamise seaduses (tõlge inglise keeles:
https://www.riigiteataja.ee/en/eli/506102021003/consolide).
Rahvusvahelise sanktsiooni ja finantssanktsiooni rakendamine on sätestatud
rahvusvahelise sanktsiooni seaduses
(https://www.riigiteataja.ee/akt/108032022003?leiaKehtiv , tõlge inglise keelde
puudub). Asjakohast lisainfot inglise keeles leiab Välisministeeriumi kodulehelt:
https://www.vm.ee/en/sanctions-arms-and-export-control/international-sanctions.
Välismaiste otseinvesteeringute taustakontrolli mehhanismi rakendamist reguleerib
välisinvesteeringu usaldusväärsuse hindamise seadus (tõlge inglise keeles:
https://www.riigiteataja.ee/en/eli/504042023002/consolide), mis sätestab
välisinvesteeringu loa kohustuse ning välisinvesteeringu usaldusväärsuse hindamise
tingimused ja korra ning jõustub alates 01.09.2023. Välisinvesteeringu luba on vaja
tehingu või seotud tehingu lõpule viimiseks pärast 1. septembrit, mille kaudu Euroopa
Liidust väljapoolt pärit investor saavutab kontrolli, omandab vara või olulise osaluse
äriühingus, kes tegutseb Eesti julgeoleku või avaliku korra seisukohalt olulises
majandusvaldkonnas ja kindlaksmääratletud sektorites või omab kontrolli kriitilise
tähtsusega taristu üle. Välisinvesteeringute usaldusväärsust, nende mõju julgeolekule
ja avalikule korrale ning võimalikke riske hinnatakse iga juhtumi puhul eraldi, võttes
aluseks konkreetse välisinvesteeringuks oleva tehingu konteksti ja sellega seotud
asjaolusid. Täpsemat infot inglise keeles leiab manustest.
Lugupidamisega
Madis Ostra
Välisinvesteeringute usaldusväärsuse
hindamise ekspert
+372 620 1756 |
[email protected]
www.ttja.ee | Tarbijakaitse ja Tehnilise
Järelevalve Amet
Endla tn 10A, 10122 Tallinn
Foreign direct investment screening
The Foreign Investment Reliability Assessment Act obligates from the 1st of September 2023
to obtain an authorisation for a foreign investment before finalizing the transaction and
provides the conditions and procedure for assessing the reliability of foreign investments.
The objectives of assessing foreign investments are to avoid threats to the security and
public order of Estonia and the Member States of the European Union and to ensure the
protection of interests that are important for the functioning of the state. For example,
the continuity of vital services, the availability of goods, security of supply and the
resilience of critical infrastructure. The Consumer Protection and Technical Regulatory
Authority (TTJA) carries out an authorisation procedure under the Foreign Investment
Reliability Assessment Act, during which hazards are identified and eliminated.
Foreign investment authorisation
A foreign investment authorisation is mandatory if a natural person or an undertaking
from outside the European Union wishes to participate in an economic field from the point
of view of Estonian security or public order and wants to make an investment in a
company operating in specified sectors.
According to the Foreign Investment Reliability Assessment Act, a foreign investment is
a transaction or linked transactions through which a foreign investor:
• acquires direct or indirect qualifying holding in the target undertaking;
• achieves direct or indirect control over the target undertaking; or
• acquires a part of the target undertaking (including assets and subsidiary).
Who is a foreign investor?
A foreign investor is a natural person with or without citizenship of a third country (i.e. a
country that is not a member of the European Union), or a company established under the law
of a third country or a company controlled by the above-mentioned person, regardless of its
place of establishment.
What is a qualifying holding?
A qualifying holding is a holding of at least 10 percent in the company’s share or share capital,
of all rights or votes in the company, or that allows significant influence over the company’s
management bodies (for more details, see § 9 of the Securities Market Act).
What is part of the target company?
A part of a target undertaking means the assets of the target undertaking or an
organisationally independent part of the target undertaking, including an enterprise or
installation, serving as a basis for the relevant economic activities and necessary for
operation for the target undertaking specified in the Foreign Investment Reliability
Assessment Act.
Who is the target company?
The target company is an undertaking operating in an economic field and specified sector
that is important from the point of view of Estonian security or public order.
The target companies are:
• a provider of a vital service and goods and who owns necessary infrastructure for it;
• a company in which the state has a qualifying holding;
• a manufacturer or supplier of military or dual-use goods;
• a provider of national television or raadio service and provider of on-demand audiovisual
media service, as well as a publisher of news, newspapers and magazines in print media
and on the Internet;
• an undertaking holding a geological exploration or extraction permit for the exploration
or extraction of oil shale or a raw material found in Estonia;
• an undertaking linked to the State's operating stock;
• an undertaking that owns the infrastructure of masts with a height of at least 200
metres;
• a certified aerodrome or heliport operator;
• an operator of an Estonian maritime port belonging to the trans-European transport
network.
A more detailed list of the target company can be found in § 4 of the Foreign Investment
Reliability Assessment Act.
Foreign investment authorisation procedure
To obtain an authorisation for a foreign investment, a foreign investor or its representative
must submit to the Consumer Protection and Technical Regulatory Authority:
• an electronic application in Estonian;
• an electronic notification in English;
• translations into Estonian or English certified by a sworn translator of additional
documents;
• certified translations of additional documents into Estonian if the additional
documents are not in Estonian or English.
The application shall include a description of the foreign investment and details of the foreign
investor, the target undertaking, a part of the target undertaking, their ownership structure,
beneficial owner and economic activities as well as the value of the foreign investment, the
source of financing and the time schedule.
To apply for a permit for a foreign investment:
• fill in the application and notification;
• supporting documents to be annexed to the Annex;
• Submit adigitally signed
[email protected].
Application and notification forms:
Time limits
The Consumer Protection and Technical Regulatory Authority shall forward the application
and the documents attached thereto without any shortcomings to the Foreign Investment
Committee for approving the grant.
On the basis of the approval of the Foreign Investment Committee, the Consumer Protection
and Technical Regulatory Authority within 30 calendar days of the submission of the
application without any shortcomings:
• grants a foreign investment authorisation;
• refuses to grant a foreign investment authorisation; or
• notifies the applicant that the foreign investment is not subject to an authorisation
obligation on the basis of Foreign Investment Reliability Assessment Act.
In order to assess the impact of a foreign investment, the Consumer Protection and Technical
Regulatory Authority may extend the time limit of 30 days once by up to 90 calendar days.
If negotiations must be held with a foreign investor over the measures to prevent a threat to
the security or public order of Estonia or another Member State of the European Union, the
Consumer Protection and Technical Regulatory Authority may extend the time limit once by
up to 60 calendar days.
Refusal to grant a foreign investment authorisation
The Consumer Protection and Technical Regulatory Authority refuses to grant a foreign
investment authorisation if:
• the foreign investment may endanger the security or public order of Estonia or another
Member State of the European Union.
The Consumer Protection and Technical Regulatory Authority may refuse to grant a foreign
investment authorisation if:
• there is good reason to doubt the authenticity of the data and documents submitted or
the accuracy of the content thereof;
• the applicant has not submitted additional data requested by the Consumer Protection
and Technical Regulatory Authority, which may have an impact on the grant of a foreign
investment authorisation or refusal to grant the same;
• the foreign investment may have an impact on projects or programmes of interest to
the European Union within the meaning of Article 8 of Regulation (EU) 2019/452 of the
European Parliament and of the Council.
The reasons for the refusal to grant a foreign investment authorisation, as well as the
information and evidence collected in the procedure are not disclosed, including to the
applicant, to the extent in which it may endanger the security or the protection of public order
of Estonia or another Member State of the European Union or in which it is subject to the
restriction on access provided for in law, for example, in the case of a business secret of an
undertaking.
Grant of authorisation with secondary condition
A foreign investment authorisation may contain a secondary condition which obliges a foreign
investor or a target undertaking to take measures to avoid endangering the security or public
order of Estonia or another Member State of the European Union, including to transfer holding
of a certain size in the target undertaking or continue effective contracts for the supply of
products or provision of services.
Revocation of foreign investment authorisation
The Consumer Protection and Technical Regulatory Authority may revoke a foreign
investment authorisation if:
• the foreign investor or the target undertaking does not fulfill the secondary condition
imposed by the grant of authorisation;
• the foreign investor has submitted incorrect or misleading data or documents which
were of decisive importance upon making the decision.
Upon revoking a foreign investment authorisation, the foreign investor, the target undertaking
and another party to the foreign investment is required to immediately perform necessary acts
to restore the situation prior to the foreign investment to the greatest extent possible.
Supervision and accountability
State supervision of compliance with the requirements provided for in the Foreign Investment
Reliability Assessment Act is carried out by the the Consumer Protection and Technical
Regulatory Authority.
If
• a foreign investment subject to an authorisation obligation has been made without a
foreign investment authorisation, or
• a foreign investor, a target undertaking or another party to the foreign investment does
not fulfill the secondary condition imposed by the grant of authorisation,
the Consumer Protection and Technical Regulatory Authority may issue a precept to the
foreign investor, the target undertaking and another party to the foreign investment to them:
• obliging them to comply with the secondary condition,
• transfer the holding or a part of the target undertaking,
• reverse the transaction or
• perform other acts to restore the situation prior to the foreign investment.
In the event of a failure to observe a precept issued on the basis of the Foreign Investment
Reliability Assessment Act, the Consumer Protection and Technical Regulatory Authority may
impose non-compliance levy pursuant to the procedure provided for in the Substitutional
Performance and Non-Compliance Levies Act. The upper limit of non-compliance levy is
100,000 euros.
The assessment of foreign investment in Estonia is regulated by:
• The Foreign Investment Reliability Assessment Act
• The regulation "Procedure for submitting an application for a foreign investment”
• The regulation "Rules of Procedure of the Foreign Investment Commission"
• Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March
2019 establishing a framework for the screening of foreign direct investments into the
Union
Foreign Investment Committee
The Foreign Investment Committee operates at the Consumer Protection and Technical
Regulatory Authority and includes representatives of the Ministry of Defence, Ministry of
Economic Affairs and Communications, Ministry of Finance, Ministry of the Interior,
Ministry of Foreign Affairs, Estonian Internal Security Service, Estonian Police and Border
Guard Board, Financial Intelligence Unit, Estonian Foreign Intelligence Service and
Government Office
The rules of procedure of the Committee are established by a regulation of the
Government of the Republic.
Functions of the Committee:
• to assess the impact of a foreign investment on the security and public order of
Estonia or another Member State of the European Union and approves the grant of
a foreign investment authorisation or refuses to approve the same;
• to make a proposal for imposing a secondary condition of a foreign investment
authorisation and gives an assessment of the secondary condition;
• to decide on the provision of comments on the basis of Regulation (EU) 2019/452
of the European Parliament and of the Council and prepares the comments.
Upon performing its functions, the Committee has the right to:
• obtain information from a foreign investor, another person and authority as well as
databases about the circumstances necessary for assessing the reliability of a
foreign investment;
• cooperate with competent authorities of other countries, the European
Commission and international organisations, including obtain information from
competent authorities of other countries, the European Commission and
supervisory authorities.
Last updated 20.07.2023
Foreign investment authorisation
Who is a foreign investor?
Mandatory starting September 1 , 2023, if a natural person
st
A natural person with or without citizenship of a
or an undertaking from outside the European Union wants to third country (i.e. a country that is not a member
participate in an economic field important from the point of of the European Union), or a company
view of Estonian security or public order and wants to make established under the law of a third country or a
company controlled by the above-mentioned
an investment in a company operating in specified sectors.
person, regardless of its place of establishment.
A foreign investment means a transaction or linked For example United Arab Emirates, United
transactions through which a foreign investor: States of America, China, Canada, South Korea,
Norway, Great Britain, Turkey, Russia.
acquires direct or indirect qualifying holding in the target
undertaking; What is a qualifying holding?
achieves direct or indirect control over the target
A holding of at least 10 percent in the company's
undertaking; or share or share capital, of all rights or votes in the
acquires a part of the target undertaking (incl assets and company, or that allows significant influence
subsidiary). over the company's management bodies. A
qualifying holding is defined by the Securities
Market Act Section 9.
Evaluating foreign investments is important to avoid a negative impact on
the security and public order of Estonia and the EU member states, and to
ensure the protection of interests important to the functioning of the state Who is a target undertaking?
(including the continuity of vital services, availability of goods, security of
supply chain and critical infrastructure). These goals are fulfilled by means A company operating in an economic field and
of a systematic risk assessment in the foreign investment authorisation specified sectors that is important from the point
procedure carried out by the Consumer Protection and Technical of view of Estonian security or public order.
Regulatory Authority (TTJA) in accordance with the Foreign Investment
Reliability Assessment Act. For example a target undertaking is:
a provider of vital services and goods and
who owns necessary infrastructure for it;
Authorisation procedure a company in which the state has a
qualifying holding;
1. The foreign investor or his representative submits an a manufacturer or supplier of military or
electronic application and notification to the TTJA. dual-use goods;
a provider of national television or radio
The application shall include a description of the foreign investment and
service and provider of on-demand
details of the foreign investor, the target undertaking, a part of the target
audiovisual media service, as well as a
undertaking, their ownership structure, beneficial owner and economic
activities as well as the value of the foreign investment, the source of publisher of news, newspapers and
financing and the time schedule. magazines;
an undertaking holding a geological
2. The application and the documents appended thereto exploration or extraction permit for the
without any shortcomings are forwarded to the Foreign exploration or extraction of oil shale or a
raw material found in Estonia;
Investment Committee for approving the grant.
an undertaking related to the state’s
3. Within 30 calendar days bases on the approval from the operation stock;
Foreign Investment Committee, the TTJA either grants or an undertaking that owns the infrastructure
of masts with a height of at least 200
refuses to grant a foreign investment authorisation or
metres;
notifies the applicant that the foreign investment is not a certified aerodrome or heliport operator;
subject to an authorisation obligation. an operator of an Estonian maritime port
In order to assess the impact of a foreign investment, the time limit may belonging to the trans-European transport
be extended once by up to 90 calendar days. If negotiations must be network.
held with a foreign investor over the measures to avoid endangering the
security or public order of Estonia or another Member State of the
European Union, the time limit may be extended up to 60 calendar days.
A target undertaking is
defined in
Chapter 4 of the
Foreign Investment
Reliability Assessment
Act
In case of any questions, please contact:
Madis Ostra, Foreign Investment Screening Expert
[email protected] | +372 620 1756 | www.ttja.ee