Update: Federal Ministry for Economic Affairs Presents Amendments to German Foreign Trade and Payments Ordinance with Supplements to the Health Sector

As already reported, a draft law on tighter controls on investments from non-EU countries has been submitted to the German Parliament (Bundestag), and the German Federal Ministry for Economic Affairs and Energy (Bundesministerium für Wirtschaft und Energie, BMWi) is also planning amendments to the Implementing Regulation for the Act (cf. Blog post of 16 April 2020). At the end of April, the BMWi presented the draft for the 15th amendment of the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung, AWV), which already incorporates some of the planned amendments and provides for further modifications affecting the health sector (cf. Press Release and Draft).

The amendments already planned and now brought forward concern acquisitions in the field of communications infrastructure, section 55 para. 1 sentence 2 number 7 AWV new, and certain raw materials or their ores which have been designated as critical raw materials by the European Union, section 55 para. 1 sentence 2 number 12 AWV new. The acquisition of at least 10 percent of German companies by non-EU/EFTA investors must be notified for examination once the amendment will be in force; such acquisitions will be included in the list of critical business activities for which not only an examination option but also a notification requirement exists.

The safeguarding of the production of pharmaceutical products and diagnostic agents and medical protective equipment are new and considered to be of utmost priority. This concerns, on the one hand, medicinal products and their starting materials or active substances (insofar as they are essential for healthcare according to the German Medicinal Products Act), medical devices for life-threatening and highly contagious infectious diseases as well as diagnostic agents for infectious diseases (cf. section 55 para. 1 sentence 2 numbers 9, 10 and 11 AWV new). On the other hand, an obligation to verify the (share) acquisition of companies which develop or manufacture personal protective equipment or supply preliminary products or parts for their development or manufacture (cf. new section 55 para. 1 sentence 2 number 8 AWV new).

Finally, further, newly added paragraphs clarify circumstances under which the acquisition of a part of a company or its operating resources must also be notified for examination (cf. section 55 para. 1 a) and section 60 para. 1 a) AWV new) as well as some examination criteria (section 55 para. 1 b) and section 60 para. 1 a) AWV new).

The notification requirement arises with the conclusion of the contract under the law of obligations (cf. section 55 para. 4 AWV).

This will entail a considerable extension of the verification obligations for companies and their lawyers, and the ministries involved (the BMWi and the German Foreign Ministry (Auswärtiges Amt)) intend to create new positions.

Dr. Rainer Bierwagen


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