Episode 43 – Nadja Vietz (FDI in Spain)

This podcast audio has been transcribed by an automatic transcriber.

Fred Rocafort  0:07 

Global law and global business go hand in hand, but never seem to keep pace with each other. The importance on the global stage of developing and developed nations waxes and wanes, while consumption and interconnectedness steadily increase all the while laws and regulations change incessantly requiring businesses to stay nimble. But how do we make sense of it all? Welcome to Global Law and Business, hosted by Harris Sliwoski International Business attorneys. I’m Fred Rocafort.

 

Jonathan Bench  0:37 

And I’m Jonathan Bench. Every week, we take a targeted look at legal and economic developments in locales around the world as we try to decipher global trends in law and business with the help of international experts. We cover continents, countries, regimes, governance, finance, legal developments, and whatever is trending on Twitter. We covered the important, the seemingly unimportant, the relatively simple and the complex.

 

Fred Rocafort  1:02 

We hope you enjoy today’s podcast. Please connect with us on social media to comment and suggest future topics and guests.

 

Today, we are delighted to have with us Nadja Vietz. At Harris Sliwoski, we pride ourselves and being international attorneys. But Nadja personifies that idea. Originally from Germany, she’s also licensed as an attorney in Washington State, and heads our Spain office, Nadja welcome to Global Law and Business.

 

Nadja Vietz  1:42 

Hi, Fred. Hi, Jonathan. Thanks for having me.

 

Fred Rocafort  1:45 

Nadja, just to get things started, can you tell us a little bit more about yourself, and how it is that you went from East Germany to Barcelona and points in between?

 

Nadja Vietz  1:55 

Yes, that is, in fact, a very long story that I tried to cut short. I was raised in East Germany and study law and East Germany and then did my first exchange program in France and studied at the French University. And that’s where I met other students from Spain. And I decided to move to Spain and got my first job opportunity that was more than 20 years ago. And that’s when I first worked for my Spanish law firm. Were actually just two years ago joined as a partner. And then a couple years down the road, I had the opportunity to move to Seattle and started working for Harris Sliwoski, at your firm, which I really enjoyed. It was almost 10 years with you guys. And I was able to sit for the bar exam. And hence now I’m holding three licenses and three jurisdictions. And me moved back almost 10 years ago, and I opened the office for Bricken. And ever since I’ve been working with us clients and German speaking clients also here in Spain, and very much enjoyed. And two years ago, we signed the lines between our Spanish firm Monereo Meyer and Harris Sliwoski. Since you said I opened the office, I’m the Chief Counsel for speaking in Spain. And it has been very successful.

 

Jonathan Bench  3:18 

I echo that, Nadja, it’s been a lot of fun to work on international transactions with you. I didn’t know how many German affiliations there were in, in Washington and in the greater us. So that’s been quite a bit of fun to be able to work with you over the last couple of years. So today we’re focused on FDI. In Spain, we had a previous guest and we talked kind of generally about what’s going on in Spain. But we’d love to hear from your perspective as a transactional attorney, you know, in Spain with an eye toward the continent. Why is Spain a good place to look at for FDI? You know, why should investors be interested? And what are some of the opportunities that you’re seeing that some of our clients and others who are listening could be interested in?

 

Nadja Vietz  4:04 

Yes, of course, the spread of COVID-19 has touched every facet of Spanish economy as it has done worldwide. At this point. It’s hard to predict recovered terms reasonably we did a couple of webinars and we talked about FDI in Spain and that’s where the idea for this podcast came from. And I cited a McKinsey’s report from September 2020 that assumed Spain’s economy will recover by the end of 2023. But the situation has changed since then keeps changing. We think that the impact of COVID-19 on revenues would have arrived by sector with slower recovery times likely for sector suffering stronger shocks and the less affected sectors of Spain’s economy, telecommunications, pharma and medical products, public services, consumer goods industry and GE utilities and retail across groceries. That is about 26% of crossover Have you added or 31% of labor market, these sectors might start focusing now on what the business will look like in the future. And we do think that companies will need to determine whether to pursue traditional business models or explore new ones. And considering how they come to customers needs and preferences have changed, which in turn, might lead to a wave of mergers and acquisitions and partnerships and alliances and Spain’s economy recover the bean islands and not easy, but the experience could also be an opportunity to create value in this new normal. In fact, I just some days ago, read in the Spanish news that FDI in Spain grew 52% in 2020, which came as a surprise. But this is due to the purchase of Spanish companies. For instance, mass mobile was purchased by us funds. And there’s a study from the United Nations Conference on Trade and Development that looked at 2021. And it doesn’t expect flows into the US 20 month just correspond to new investments and productive assets, but to come from cross border m&a, especially in the technology and healthcare sectors. Knowing that you companies are expected to attract more than 60% of agreements in terms of value in the technology sector. And also at another European research study of settles a guy or new man with the best European real estate investment options for 2021 were analyzed and it mentioned that Spain still has the best investment offers in Europe. The report highlighted convenience return last mile logistical assets located in densely populated areas with growing ecommerce penetration that remain attractive for core and core plus investors in Spain. The report also mentioned opportunities in Spain in the low offer logistical markets and in segments which generate short term revenues such as co working student or multifamily residences for expected increase in demand for hotel assets and difficult situations and prime tools, locations and also the healthcare and senior housing segment. So there there are opportunities, and we remain very positive about FDI in Spain, and despite the described emergency or the body emergency regulations we had in the past several months on the past year, that clearly showed certain protectionist tendencies that I would like to explain later. We remain positive because we think that there are very good opportunities in Spain and Spain has recovered strongly from the last crisis, which means the economy is growing and stable. tax incentives have been implemented tax incentives for Spanish companies investing settle for America Springer’s tax treaties in place with 94 countries toward top of taxation labor costs remain much more competitive than other main European economies to pick up Berlin was comparatively attractive for entrepreneurs. And Spain has implemented an excellent Infrastructure and Transport systems. And last but not least, Spain is part of an EU framework which guarantees competitiveness services and product market liberalisation. So this all speaks, which just underlines what I was saying there’s really good opportunities in Spain foreign investors, and there are some restrictions in place in uni that I would like to explain further.

 

Fred Rocafort  8:38 

Even though here in the United States, the restrictions surrounding the pandemic haven’t been as strict as the ones in Europe. Yesterday, I was thinking about 2020 and realized that I had not left the United States at any point during 2020, which, given my, my trajectory over the last two decades was pretty dramatic, I think we’d have to go back 30 years right for me to find the last year in which I didn’t leave the country. It turns out that the last trip I took abroad was to Spain at the end of 2019. Together with you and some of our other colleagues in Spain. We offered presentations in Madrid and Barcelona. And I remember that at the time, of course, a lot of our focus was precisely on promoting cross border trade, both to Spain and also to the United States. And now of course, looking back, right, that seems like a different era since COVID-19 has changed so much. So focusing on that focusing specifically on on the impact of COVID-19. How has the pandemic impacted the regulation of FDI in Spain?

 

Nadja Vietz  9:49 

Yes, traditionally, Spain has been a very liberal foreign direct investment territory is Spanish law reflected the general principle of liberalisation that made the European Union treaties. Thus before the COVID-19 outbreaks benders, the eye meshes only include an ex post notification for statistical purposes for most FDA. So we just we would go to Norway to the closing and then file paper, just notifying. And pre authorization was only required for a limited number of investments, such as investments from countries considered tax havens activities related to national defense and security investments and gambling, airlines and among other sectors. Now in response to COVID-19. And following also a recommendation from the European Commission, which encouraged the member states to advance the application of the so called FDI screening regulations, which is an European level regulation. New FDI restrictions came into place in Spain. Of course, this development is not exclusively related to the COVID outbreak, since the EU FTA. Screening regulations that I just mentioned, came into force in April 2019. Already related to other protective movements in a European level. But of course, if that makes situation certainty, accelerated its implementation in Spain, the main changes introduced by the EU regulation foresee the possibility of member states adopting screening mechanisms on foreign investors for reasons of security or public order. Now, with the issuance of several royal decrees earlier last year, Spain essentially chose to spend its liberal foreign investment regime. And this all happened in the first few months of the pandemic. And then in November of last year, Spain tightened FDI even further, the legislation is aimed, especially at protecting Spanish companies, operating sectors, the government thinks strategic, for example, critical technologies, essential resources, such as energy and food, and media.

 

Jonathan Bench  12:03 

So Nadja, if we’re talking about foreign investors, I mean, you and I know that in the securities world, you know, you have to fit into some kind of classification. Right? I mean, whether you may be a foreign investor in the US, we may be talking about accredited investors or sophisticated investors. So, how does the Spanish law talk about foreign investors? And why does that matter to potential investors from outside Spain?

 

Nadja Vietz  12:29 

Yeah, that’s important that the investor for it must fall under the definition of a foreign investor, of course, and according to the current regime, this is the case that the investment is made either by residents of countries outside the European Union and the European free trade association or buy your F to investors whose beneficial owners are residents of countries outside the EU and EFTA which I understand is a tricky part. It’s from a practical perspective, it seems important to mention that this includes Spanish companies whose ultimate beneficial owners resident in these areas, the ultimate benefit known as defined as the individual holding at least 25% ownership of capital voting rights or other means of direct or indirect control. That could mean that the acquisition of a Spanish company share shares by a Spanish company whose CEO a member of the board of directors list in UK, which no longer belongs to the EU or after might now need prior authorization. And the November royal decree law, the event expanded that definition temporarily until June of this year, to include residents of other countries of the European Union, the European Economic Area and requires even these investors, government authorization for investment if the investment goes into a listed company, or if the investment exceeds 500 million of yours. So the whole definition of the foreign investor is defined on the residency, except if the investment goes into a listed company, or exceeds to 500 million euro.

 

Fred Rocafort  14:15 

Nadja, you bring up a fascinating question, which is why would someone who can live in Spain would choose to live in the UK? I lived in the UK for two years. So I feel like I can make that joke. But anyway, moving on, let’s look a little bit more closely at the criteria that the FDI must meet under under Spanish law, what are what are some of the other requirements that investors need to look out for?

 

Nadja Vietz  14:43 

Yes, you also need an objective condition, you need to qualify the transaction as an FDI and that is only the case if it results in controlling influence over Spanish company. And that means since November of last year, that investment is FDI is a consequence of which the investor acquires a share of at least 10% of the captain and Spanish company, or acquires control over the company. Previously, they were talking about participation and management or control that was included in the definition and this phrasing has been removed. So it was not very clearly defined To what extent control will be interpreted. There’s, of course, no case law yet. But according to the interpretations VC, or legal opinions you’ve seen, in order to assess whether or not control exists, which would make the investment a qualified FDI investment that might require pre authorization will be necessary to analyze contracts rights and any other means that may give its own any possibility to exercise decisive influence over the company considering the particular circumstances of the case. So there’s room for interpretation, unfortunately.

 

Jonathan Bench  15:58

it tends to be the case, whenever new regulations come out that they they’re never always thought through to the end, the end result and whether it’s whether it’s going to help or hinder the investment. So I think it’s common and based on the stats you provided earlier that that hasn’t necessarily slowed down FDI into Spain right in with our questions regarding how it’s actually going to play out. So what does this suspension of liberalization imply when we’re talking about FDI?

 

Nadja Vietz  16:25 

Right, essentially, that means this the new Spanner regulations mean that prior authorization is required for much greater number of FDI. And this include in some cases that I’ve just mentioned, investments are from EU member states. But you rightfully said that it seems to just not hinder FDI and spin in the practice be we’ll have to see how the authorities will interpret these new regulations. It will be important, however, to determine on a case by case basis, whether specific planned investment falls on any of the mentioned regulations, and is subject to the Spanish authorization requirement. And also importantly, in these last legislative amendments from November 2020, there are no transitional regulations in place. There’s no exception for investments that have already been initiated or signed, but no close. That means that a transaction that may now need to be authorized before it’s closing, even when the underlying contract has already been signed. That is what the suspension mean.

 

Jonathan Bench  17:30 

Did you get a sense that the purpose of the regulations is to slow down FDI? Or ultimately to facilitate FDI ministers? Is this more of a protectionist measure? Or do you think it’s kind of well intentioned regulations to help FDI but that might not necessarily have done exactly what they they thought it was going to do?

 

Nadja Vietz  17:49 

It’s clearly a protectionist measure. These restrictions aimed to protect certain critical sectors, as I mentioned, and, and these sectors include strategic sectors and such as critical infrastructure, critical technology supplies, critical inputs, food security, it means that that is the sectors that the government wants to control and wants to be able to control. And is even in the last amendment in November, there’s even room for the government to change even further or strict, tighten these rules even further. And I understand that that’s why there’s room for interpretation. It is to protect but not to make FDI impossible in Spain, that’s no one’s interest in no one’s nobody’s interest to make every AI impossible. Just the day the government Spanish government wants some control over these investments into critical sectors.

 

Jonathan Bench  18:50 

Have there been concerns about investments from specific countries? You know, Fred, and I closely follow China Belton road initiative, and countries all over the world, either tend to embrace or be very hesitant about investments from China, have there been any thing in the Spanish news about concerns about Chinese investment in Spain?

 

Nadja Vietz  19:09 

They’re not concerned about certain countries. But of course, certain investors will always require prior authorization. It doesn’t matter if the investment is in one of these sectors even. And those are investors that are controlled by government of a third party. So if you’re asking that we’ll answer your question, right, if that’s an investment controlled by the government of China, and then, of course, they will need prior authorization? Yes.

 

Jonathan Bench  19:35  

Sure. I mean, that makes sense. If we’re talking about Chinese state owned enterprise investments or, you know, Saudi oil money investments, right. I think that that makes good sense.

 

Fred Rocafort  19:46 

So Nadja, we’ve talked about which countries on which type of investments might draw scrutiny based on the on the government controlled character of the entities that are that are making it, but are there any sectors or industries that in their entirety are affected by the requirements of prior approval.

 

Nadja Vietz  20:05 

Yes, they are listed in the new regulations. And those are the strategic sectors and those sectors such as critical infrastructure, critical technologies, critical inputs, food security, media and sectors that may impact public health, safety or public order. And then there’s sectors with access to sensitive information, which I’m personally worried about, because that criteria gives rise to several interpretation issues, which, of course, are not clarified by Spanish courts yet, because, in fact, in today’s economy, there are very few sectors that to create our lessons extend to not have access to personal data, which would be sensitive information and in the sense of that new law. So it has been argued that the sector’s with access to sensitive information and in particular, its personal data should be interpreted in a restrictive manner, understanding that it only includes sectors in which there’s recurrent and systematic access to sensitive information. I have not seen case law yet. Of course, it’s just to reason that these amendments, but exactly these are the sectors that the government wanted to protect and requests requires a previous authorization. But it’s also interesting is that another question that arises in relation to the new regulations, whether in cases in which the company operates and one of the sectors just marginally or without being part of its main activity? It should be understood that the person is anyway subject to the control mechanism. But of course, we don’t know for sure yet. Also, it cannot be ruled out that companies which carry out activities within these sectors in the directory, for example, through the subsidiaries are regarded as falling within the scope of the new regime. But anyways, it is an FDI that is directed into one of these sectors, we of course, highly recommend to at least review and the chairman make sure that you will not need the previous authorization.

 

Jonathan Bench  22:10 

Nadja what is the situation with Spain’s pharmaceutical sector? Do you Spain have a robust pharmaceutical sector? Or does that they sourced that from other EU countries? I’m just thinking in terms of, you know, that kind of public health. We could also consider critical infrastructure, I would say, right, in terms of making sure that they have critical inputs for things like a COVID vaccine. You know, what is what Spain’s situation that regard?

 

Nadja Vietz  22:39 

That would clearly be one of the cases where prior authorizations required, no doubt about it. The pharma industry is, particularly in Barcelona, we have some very strong pharma companies, and I don’t think we have a vaccine ready yet? I’m quite not sure right now. But of course, investments in these areas will be strictly controlled, for sure. Yes.

 

Jonathan Bench  23:07 

So then, are there other areas that would be completely restricted or very, very tightly restricted compared to just kind of moderate government scrutiny over investments in those areas?

 

Nadja Vietz  23:17 

Yes, there are some investments that will always require strict scrutiny, that those are investments coming from certain investors, as I mentioned before, that are controlled by governments or third parties that have been invested on involved in security, public health or public policy now that EU member states or if they are subject to judicial or administrative proceedings for engaging in criminal activities. So if the investment falls into these categories, and there’s strict scrutiny that there will always require previous prior authorization, but otherwise, the the objective of the government was just to moderate and just to control but it is not to prevent investment, not at all.

 

Fred Rocafort  24:05 

So how does the authorization procedure work?

 

Nadja Vietz  24:09 

Yes, the Spanish regulation sets for that as a condition precedent, the investments that fall within the scope of the control mechanism are subject to prior administrative authorization granted by the Spanish government and that will be specifically the Council of Ministers. And once the application for authorization is submitted, the Spanish Council of Ministers is the only body entitled to decide whether to grant or reject the authorization and failure to obtain the authorization within six months is deemed as a rejection. That means your transaction can be delayed but not more than six months. And there’s also on a temporary basis. Spanish law does provide for an expedited procedure if certain criteria are met. And the simplified procedure applies for either we have an existing agreement between the parties a binding offer in which the price set which can be evidence, dated prior to March 18 2020. So prior to the pandemic, of the transaction is valued between one and 5 million years for. So for those transactions, there’s an expedited procedure. And I believe the in this case, the applications are to be submitted to the Directorate General for international trade and investments which will decide whether current or direct or where track the authorization, following report from the board or for investment. And this is within a 30 day period that they have to grant or reject the authorization. So this adds more formality. But it is much more format than we had before, which is file a notification and inform the authorities and now we have to proactively asked to be improved, or have our transaction improve. That’s the difference.

 

Jonathan Bench  25:55 

You know, that mirrors how, at least the Committee on Foreign investment in the US, we call that cepheus here in the US, especially in the Trump administration, who was tasked with overseeing foreign investment into critical areas, and it still remains a preemptive disclosure as I would describe it. So if we have a company that’s investing in some kind of high technology area from now, it was mainly targeted at China, I would say, but it’s it really covers all foreign investments, then the lawyers and the parties would need to decide, is this a transaction that we need to disclose to cepheus or not? And so it’s always an interesting thing, you know, and you could kind of get a safe harbor by preemptively asking for permission, but it was not required in some areas, right. The regulations weren’t always clear on who had to disclose. So I’m curious, then, what are the consequences of failing to obtain prior authorization in an investment scenario?

 

Nadja Vietz  26:50 

Right. And it’s interesting, and thanks for explaining how that works in the US. And this is fairly new for us. There was no no restrictions before us and not no control in that sense. And that’s why the the consequences of failure. It seems shocking to us because failing to obtain such authorization before closing could resolve the entire transaction being deemed invalid. And means from a civil law perspective, the investment operations carried out without the required authorization will be null and void. That is they will have no validity, or they will have no legal effect until they are legalized, which brings your whole transaction to fall. And what is more, from an administrative law perspective, failure to seek prior authorization or failure to comply with any conditions set by the Spanish authorities in relation to carrying out investment transactions before being authorized, will constitute a very serious infringement and may trigger a fine of at least 30,000 euros and up to the economic value of the transaction, as well as public or private reprimand. So in light of all these legal changes for any new FDI, it’s been very, very commendable. Determining van rents whether or not it needs these, the authorization, and it becomes a little become very interesting. for international cross border transactions, because there might be part of the transaction outside of Spain is valid and part of it inside of Spain. That turns out not to be valid, so that that will become really joyful for us lawyers.

 

Fred Rocafort  28:29 

Well, Nadja, it’s been a great conversation, I always love to talk about Spain, and frankly, all the things that I look forward to with regard to the eventual end of the pandemic, I look forward to going back to Spain and engaging in some more business development work there. And then just generally going back, so bit of a bittersweet experience to talk about Spain. But be that as it may, before we bring the podcast to an end, I would like to ask for your recommendations for our listeners.

 

Nadja Vietz  28:59 

Yes, and I have a recommendation that for your listeners, and they will go very well for you too, because it’s not it’s not the latest or what I’m just now currently reading. It is a book about Barcelona, the city where I live and work. And it’s this book is one of my favorites since I read it for for the very first time, I believe 15 years ago. It’s called the Shadow of the Wind by Carlos Ruiz often, it is written by an author from Barcelona and he creates a very nice image of Barcelona’s sides of Barcelona places and that make want to go there, the characters and the family saga full width and background and it’s to continue in a story that’s just amazing. And it actually plays in Barcelona and it is about a boy whose father initiates him into secret of the cemetery of forgotten books. And there he finds a book that is called the Shadow of the Wind and he tries to find more of that author’s books and turns out, he holds the last copy of every book this author has ever written. And in fact, before he knows it is his seemingly innocent quest has opened the door to one of Barcelona’s darkest secrets, an epic story of magic madness. It’s just fascinating. So easy and nice read. And when you come back to Barcelona, you will love finding those places that you read about and book.

 

Fred Rocafort  30:26 

Definitely sounds like something I must get my hands on. Thank you. Thank you for that. Jonathan, what about you?

 

Jonathan Bench  30:32 

I’m recommending a webinar presentation that former national security adviser and retired general HR McMaster did, just recently for World Trade Center, Utah. The he, I guess you could call it it’s his it’s his book tour. Right? He just wrote a book last year, it was published last year called battlegrounds, the fight to defend the free world. And so he spends, you know, 45 minutes talking about his experience talking about his experiences as described in the book, but also kind of laying out from his point of view. And we know he was in the inner circle. I mean, for really, the last 30 years, he’s been looking at national security. And so some really great insights into what we you know, United States needs to think about, and also the world generally, in terms of alliances and, and what should happen next. So I think that this early in the Biden administration, everyone’s trying to give advice to the new administration. And, and so it’s an interesting piece of advice into how we should be dealing particularly in with China in the Asia Pacific region. Fred, what about you?

 

Fred Rocafort  31:43 

I actually have two recommendations today. One of them is perhaps of limited appeal to all but the more more intense China watchers, so I have something else that’s somewhat broader appeal. But first recommendation, it is an article that I read on the CSIS website Center for Strategic and International Studies, the think tank, and it’s it’s called how the CCP governs the view from a Chinese town. And basically, what the piece does is introduce and publish what I assume is an internal document from the the local party branch in a small town in China, it offers a fascinating window into into how the CCP governs and what what its priorities and worldview are, again, I mean, I think it’s a it’s a town of 11,000 or so yet, just document coming from the local authorities, you know, goes into quite a bit of detail into the threats that are being faced at the national level. It’s interesting to see how even at this at this level, you can you can see the official language with regard to issues such as Tibet, and then how the government has to be on the on the lookout for for potential threats coming from there. I know that these these documents are not widely available. So I’m assuming it’s a bit of a fluke, but great opportunity to see this this kind of document and to see it translated. The second recommendation, it’s a Netflix series, it’s a Spanish Netflix series, I wanted to make sure that I had something related to Spain. It’s a series that’s loosely based on a jack London story. I haven’t read the the jack London story, I’d like to get to that. So I don’t know how much of a connection there is. But the name of both the London story and the English translation of the title of the series is the minions of my desk, as in the turns everything that he touches in gold. And in Spanish, it’s less about what he does, they meet us, and it’s very well done very well done great acting. To me, at least it seemed a very timely reflection into some of the issues that that we are seeing and that we discuss on this podcast, right, some of the impacts that particular economic developments that are taking place have on people. So very thought provoking, but overall, just just very entertaining. So if you’re looking for something a little different, maybe work on your Spanish a little bit, maybe just see how they do this kind of drama in a different country. Highly recommend that. With that, Nadja, I’d like to once again, thank you for being on the on the podcast. We’ve been trying to get this set up for for a while, so I’m glad it finally happened.

 

Nadja Vietz  34:33 

Thank you for having me for inviting me in. It was a great pleasure as always talking to you and I really will check out that Netflix series. I look forward to seeing you guys in Spain next time we can travel really. So thank you for having me.

 

Jonathan Bench  34:51 

We hope you enjoyed this week’s episode. We look forward to connecting with you on social media to continue discussing developments in global law and business. This podcast was produced by Harris Sliwoski with executive producer Madeline Williams music composed by Steven Schmidt. Tune in next week for another episode. We’ll see you then.

 

Transcribed by https://otter.ai