Joe McVeigh

On 2 August 2022, the government published the Screening of Third Country Transaction Bill 2022. The bill has been drafted in response to the potential threat posed to security and public order from some third country investments.

It introduces the State’s first investment screening regime, which will be implemented alongside Regulation (EU) 2019/452 and has been designed to provide the government with powers to protect security or public order from hostile actors by enabling the Minister for Enterprise, Trade and Employment to review certain transactions that may present risks to security and public order of the State.

Key features of the bill

Mandatory notification

The mandatory screening procedure will be required for certain transactions if the following conditions are met:

• The transaction is valued at €2m or above;
• A third country undertaking or person connected with such undertaking is a party to the transaction;
• The transaction relates to matters which may affect public order or security by impacting on:
  • critical infrastructure or technologies;
  • supply of critical inputs such as energy or raw materials;
  • access to sensitive information; or
  • the freedom or pluralism of the media; and
• The transaction relates to an asset or undertaking in the State.

A third party country is any country other than a member of the EU, the EEA or Switzerland. This means screening would apply to investments from the US and the UK, key sources of inward investment into Ireland.

Multi-party obligation to notify

The obligation to notify lies on all parties to a transaction which meets the relevant criteria, unless in circumstances where they are not aware of the transaction. The Minister must be notified at least 10 days before the date the transaction is completed. All parties are said to have complied with notification if one party notifies the other connected parties of their intention to notify, and the remaining parties agree in writing.

Failure to comply with notification can lead to (a) on summary conviction, a fine up to €1,500 and/or six months’ imprisonment or (b) on conviction on indictment, a fine of up to €4 million and/or five years’ imprisonment.

“Call in” powers

The Minister also has the power to review notifiable transactions that have not been notified and transactions that are not notifiable, but the Minister has reasonable grounds for believing that the transaction would likely affect, the security or public order of the State. This power must be exercised by the Minister within 15 months of the transaction completing.

Review timeline and information requests

A screening decision must be made by the Minister within 90 days from the date of notification. This may be extended by a period of up to 135 days which is at the discretion of the Minister.

The Minister may also issue a request for further information. Failure by parties to comply with this request for further information in a criminal offence under the bill. If a request for information is issued by the Minister, the review period is paused and begins again once the information request has been complied with.

Appealing the decision

A party to the transaction which is being screened has a period of 30 days to appeal the screening decision to an adjudicator. The decision of the adjudicator can be further appealed on a points of law basis only within a period of 30 days.

Conclusion

In summary, the bill when enacted will:

• Assure that Ireland is in a position to fulfil its’ obligations set out in Regulation (EU) 2019/452;
• Determine the type of investments as well as the nature and scale of such investments that should undergo investment screening;
• Allow the Minister for Enterprise, Trade and Employment to assess, investigate, authorise, condition or prohibit foreign investments based on a range of security and public order criteria; and
• Provide a screening mechanism for third country investments into Ireland for the first time.

For any Irish companies seeking investment from outside the EEA and Switzerland, it would be important to identify at an early stage whether there is any possibility that notification may be required.

• Joe McVeigh is a partner and head of corporate at BHSM.

This article is for general information purposes. Legal advice must be obtained for individual circumstances. Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.