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Background
The Finnish Act on the Screening of Corporate Acquisitions (172/2020, as amended, the "Screening Act") provides the framework for the Ministry of Employment and Economic Affairs of Finland (the "Ministry") to review and, when necessary, to restrict, acquisitions of Finnish corporate entities by foreign investors where the target's business operations are considered to be of "key national interest" and the acquisition could endanger such an interest. It should be noted that separate rules apply to acquisitions of real estate in Finland, which require a mandatory approval prior to transfer of title when the acquiring party is "foreign". The responsible authority for screening acquisitions of real property is the Finnish Ministry of Defence.
Business operations subject to a review
The Finnish foreign direct investment ("FDI") regime is two-fold:
Irrespective of the sector involved, the residence or domicile of the ultimate beneficial owner is decisive. Accordingly, a transaction structure involving one or several holding companies in the European Union or the EFTA Member States (or in Finland, in case of acquisitions in the defence and security sectors) does not exempt an acquisition from the Finnish FDI rules if the criteria are otherwise met.
"Corporate acquisition"
For the purposes of the Screening Act, a corporate acquisition is one where at least 10%, at least one-third or at least 50% of voting rights are acquired by a foreign investor.
Only acquisitions over a pre-existing Finnish corporate entity fall within the scope of the Screening Act. Consequently, an investment into the incorporation of a new Finnish legal entity does not trigger the application of the Screening Act and its notification obligations, even when undertaken by a "foreign investor". Similarly, the Ministry's practice has been to consider asset deals outside the scope of the Screening Act.
Process
The process varies somewhat between the mandatory, defence and security sector notifications, on the one hand, and the optional regime applied to the other critical sectors, on the other hand. In summary:
No expedited process is provided for in the Screening Act. In practice, if an acquisition is ultimately deemed outside the scope of the Screening Act, the Ministry seeks to swiftly issue a decision of non-applicability.
The Ministry acts as a coordinating authority, responsible for overseeing the consultation of other state departments and agencies. Based on consultation replies, the Ministry decides whether a foreign acquisition falls within the scope of the Screening Act, and ultimately whether a foreign acquisition can be approved. An acquisition must be approved unless it endangers a key national interest. If a foreign acquisition is not approved, the acquiring party must divest its ownership so that it holds less than 10% of the aggregate number of votes.
Based on publicly available information, to date no foreign acquisition has been prohibited under the Screening Act.
Finally, a small filing fee is payable in respect of the notification. This amounts to EUR 8,000 or EUR 1,500 if the Ministry issues a decision of non-applicability.
Anna Roubier Partner HPP Attorneys, Ltd. Helsinki, Finland |
Johanna Kauppinen |
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