Stephanie von Riegen, Gesellschaftsrecht

New filing fees under German Foreign Direct Investment Regime

Since January 1, 2024, the Federal Ministry for Economic Affairs and Climate Protection ("BMWK") has been charging fees for investment control services, among other things, for the first time.

Unlike decisions by the Federal Cartel Office in merger control proceedings, investment reviews in Germany were previously free of charge for the companies involved - this has now changed. The legal basis for the new fee collection is the Federal Fees Act and the "Special Ordinance of the Federal Ministry of Economics and Climate Protection and the Federal Office of Economics and Export Control on fees for War Weapons Control, Export Control and Investment Control" ("BMWKB-GebKAIV"), which came into force on September 16, 2023.

Level of fees

The amount of the fee depends on the screening phase, duration and degree of difficulty of the procedure. For the termination of a pending investment screening procedure in the generally two-month screening phase I (preliminary screening), the fee schedule provides for a fee of EUR 800. This applies both in the case of termination by administrative act or implied approval due to expiry of deadline after the notification obligation and application for clearance eor application for clearance certificate by the companies involved as well as in case of investment control proceedings initiated ex officio and terminated in phase I. This fee also applies in case of mutually agreed extensions of the deadline in phase I.

If the BMWK opens a screening procedure (phase II), the fee for the termination of the investment screening review in phase II within the statutory period of four months by means of an administrative act or implied approval due to expiry of the deadline is EUR 2,500. If the BMWK unilaterally extends the review period in phase II by three months or by an additional month in the event of particular legal or factual difficulties, the fees are EUR 5,000 resp. EUR 6,000.

There is a one-off increase in the fixed fee in screening phase II proceedings in the event of special protective measures to be taken, e.g. the conclusion of a public law contract or conditions for clearance of a transaction. This increase is graded according to actual effort and degree of difficulty, a distinction is made between a low (EUR 10,000), moderate (EUR 20,000) and high level of effort and degree of difficulty (EUR 30,000). The Fees Ordinance does not set any benchmarks for assessing the effort and difficulty of the investment screening procedure; the future practice of the BMWK remains to be seen. 

Charging of fees

The party liable for the fee is the direct acquirer. The fee notice is issued together with the substantive decision in the investment screening procedure and is therefore part of the non-objection certificate or the clearance, order or prohibition notice issued by the BMWK.

Since the direct acquirer as the party liable for the fee is often domiciled abroad and is also often represented by his lawyer as the authorised ) representative, the BMWK has already announced that the due date for payment of the fee will be set at 30 days after notification of the fee notice as standard instead of the statutory ten days.

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