New Investment Control Act in Force as of 25 July 2020
In our Legal Update of 25 July 2020, we already presented the most important innovations of the new Investment Control Act (Investitionskontrollgesetz – InvKG). It was now published in the Austrian Federal Law Gazette on 24 July 2020. Therefore, it came into effect on 25 July 2020, 0.00 am.
The competent ministry already confirmed that for the application of the new law the conclusion of the agreement on the acquisition process, commonly known as “signing”, triggers the approval requirement. Accordingly, the “closing” of a deal is not relevant to the approval requirement. Consequently, the new law applies to all direct investments signed after 25 July, 0.00 am. Direct investments signed before that time, are, in general, subject to the previous legislation with the caveat that depending on the transaction structure specific circumstances are possible that may trigger the requirement of approval under the new Investment Control Act.
For time management of future transactions, the new possibility to obtain a clearance certificate (Unbedenklichkeitsbescheinigung) in accordance with Sec 9 InvKG can be used: The certificate will be issued by the Minister of Digitalization and Business Location within two months of receipt of the complete application for such certificate, provided that no approval is required and no official review procedure needs to be initiated. It is possible to apply for such a clearance certificate already before signing.