Foreign Investment Screening and the China Factor – Memo

New protectionism or new European standards? CLASSIFICATION: EXTERNAL SOURCES: consultations with officials in Brussels and key European capitals; open sources Download the report in PDF here November 16th 2017 Executive Summary Chinese businesses have increased and diversified their direct investment at an exponential rate throughout Europe. In Germany alone, the increase was ten-fold in 2016 […]

New protectionism or new European standards?

CLASSIFICATION: EXTERNAL

SOURCES: consultations with officials in Brussels and key European capitals; open sources

Download the report in PDF here

November 16th 2017

Executive Summary

  • Chinese businesses have increased and diversified their direct investment at an exponential rate throughout Europe. In Germany alone, the increase was ten-fold in 2016 compared to 2015.
  • Chinese FDI include both state and private acquisitions of strategic infrastructures as well as smaller investments aimed at acquiring cutting-edge technological know-how.
  • The surge in Chinese investment raises growing concern among governments about the loss of Europe’s technological edge and the transfer of dual-use technologies to China.
  • Europe has begun to awaken to the need for an EU-wide foreign investment screening mechanism. The Commission has put forth a proposal but one that is much less ambitious than what is already in place in other G7 states. Only 12 out of 28 member states have their own screening mechanisms in place.
  • The new EU proposal has entered the legislative process in the European institutions. However, it faces a coalition of free-marketeers and recovering southern EU economies dependent on Chinese FDI which oppose a strict screening mechanism at the EU-level.

Introduction

Since the 2008 financial crisis, Chinese investments in the EU have jumped tenfold, from roughly €2 billion in 2009 to almost €20 billion in 2015. Last year alone, China’s foreign direct investment (FDI) in Europe reached over €35 billion. That is another 77 % increase compared to 2015 and a more than 1,500% increase compared to 2010.[1] Meanwhile, European investments in China have decreased by 25% in 2016 and the trend is set to continue this year due to regulatory barriers and a lack of reciprocity.

This new trend has strengthened China’s foothold in key European sectors, including high technology ones, and has created important points of influence for Beijing across the continent. Therefore, while Europe’s eyes are set on threats emanating from terrorism or Russia’s aggressive behaviour, in the long-term, China is the one external power that could pose the greatest challenge to Europe’s cohesion as an economic superpower.

Although the EU has a mechanism for merger-controls, it does not yet have one for reviewing foreign investments in sensitive sectors. This is slowly changing as some EU capitals have begun to raise concerns about national security and the loss of technological know-how. In response, European Commission President (EC) Jean-Claude Juncker proposed in his September 2017 State of the Union Address an EU-wide framework for investment screening.

Nonetheless, the EU-wide response risks being too little too late in comparison to measures already in place among G7 countries, many of which – including the U.S., the U.K. and Japan – are looking to tighten their already existing investment screening mechanisms.

An EU-wide response to the China investment factor is hampered by several cross-cutting cleavages. At the core is a coalition between free-marketeers and recovering EU economies dependent on Chinese FDI pitted against member states concerned by the loss of technological know-how. Divisions also run across governments and private interests as well as across commitments to open markets versus commitments to securing strategic sectors.

Trends in Chinese Investment in Europe

Chinese businesses have substantially increased and diversified their direct investment in Europe, seeking both large-sized acquisitions of strategic infrastructures as well as smaller investments aimed at acquiring cutting-edge technological know-how. Part of this trend is driven by Chinese private investors looking for opportunities outside China, as the country has seen some recent volatility. Others are driven by priorities set by Beijing. This includes the State strategy of ‘China 2025’ which aims to transform the nation into a high-end manufacturing power within the next decade.

  1. CHINESE DIRECT INVESTMENT IN EUROPE AND MULTI-PRONGED STRATEGY

Southern EU members have seen the largest increase with total Chinese FDI in 2015 almost as much as the EU’s three largest economies. China targeted privatisation opportunities and infrastructure projects, particularly in Portugal, Greece, Italy and Spain in need for cash after the 2008 crisis. Chinese FDI as a percentage of total FDI in Italy and Portugal approaches 5% over the 2000-2015 period.

In 2016, however, Chinese investment also expanded significantly to France, U.K., Germany and Northern Europe. For example, compared to 2015, Chinese investment in Germany has risen almost tenfold to 11 billion in 2016. Those investments have mostly targeted innovation and advanced technology sectors.[2]

Central and eastern Europe (CEE) has become another area of interest for Chinese investments. This is partly because the region is set to attract investments other than EU funds in its infrastructure projects. Beijing seized the opportunity and in 2011 created the 16+1 group of CEE states, which meets once a year usually at the level of heads of state. Seven CEE countries have signed memoranda of understanding with China on the ‘Belt and Road Initiative’ – Bulgaria, Croatia, Czech Republic, Hungary, Poland, Slovakia and Serbia. However, in spite of promises for a $10 billion credit line in 2012, to date, actual Chinese engagement has been modest in the region and the 16+1 is mostly seen as a PR initiative aimed at dividing the EU.[3]

Cross-Cutting Cleavages

Questions about how to cope with the massive surge in Chinese investment since the mid-2010s have laid bare three cross-cutting cleavages in Europe: (1) government versus private sector; (2) concerns with national security versus commitments to open markets; and (3) East-West as well as North-South divisions.

The latter recently led to a coalition between northern free-marketeers and southern FDI recipients, which seeks to water-down the proposed EU screening measures on foreign investments.

  1. GOVERNMENT VERSUS PRIVATE SECTOR

Large-size single acquisitions have raised the profile of Chinese investment in the EU, creating different perceptions about Beijing’s strategic influence among governments and the private sector.

In the EU’s South, for instance, Chinese investments focus mainly on government-initiated privatisations to gain a foothold in the economy. Strapped for cash and in the aftermath of the financial crisis, the governments of the EU’s southern tier welcome large investments.

In stronger economies such as Germany, efforts to attract Chinese capital are generally private sector-driven. By securing Chinese funds, businesses gain not just fresh capital but also hope for a better access to the Chinese market. This creates tensions with governments which have grown increasingly reluctant to greenlight Chinese mergers and acquisitions affecting what they consider to be critical industrial assets.

Illustrative of this is the case of Aixtron, which China’s Fujian Grand Chip Investment Fund LP sought to acquire in late 2016. The chip manufacturing company is one of Germany’s flagships in the high-technology sector. The move raised alarm in the U.S., where authorities blocked the Chinese acquisition of Aixtron’s U.S. assets and warned Berlin. Subsequently, Germany withdrew its clearance certificate as well.

 2. OPEN TRADE VERSUS SECURITY

The surge in Chinese investment has also led to growing apprehension among governments about the loss of Europe’s technological edge and the transfer of dual-use technologies to China. Europe thus faces a second cleavage between its open markets principles and some European governments’ security concerns to protect critical sectors.

The latter aspect has been increasingly sensitive as it ties to transfers of technology for dual use. According to numerous reports, China employs co-production deals using civil purchase labels, only to then shift to military use upon acquisition. Additionally, EU member states interpret the current EU arms embargo on China[4] quite narrowly and do not include dual-use technology.

EU arms makers received licenses to export $3.3 billion worth of arms to China between 2002-2012. This has generated tensions with the United States.[5] Beijing’s ability to bypass the arms embargo by stealth allows its air force, for instance, to rely on French-designed Airbus EC175 helicopters while its submarines and frigates are powered by Germany’s MTU and French SEMT Pielstick (owned in turn by Germany’s MAN) engines

These practices have potentially profound security implications, especially given China’s growing military posture in its wider region. Such a step, however, strikes at the EU’s ideological core – i.e. its inherent commitment to open market access.

3. DIFFERENCES BETWEEN MEMBER STATES

Finally, the difficulty with reaching a common EU position on how to better manage foreign investment in critical sectors is compounded by a third cleavage – divisions and competition among member states vying for better market access and more Chinese investment. For example, in 2014, London, Frankfurt, Luxembourg and Paris all competed to become Renminbi (RMB) offshore settlement centres before they all obtained the status.[6]

Chinese investments in some EU economies combined with active diplomatic entreaties by Beijing have created a fault line across the EU. It runs between those member states in southern and central Europe who are keen to attract Chinese investments, and states like France which seek stronger measures against what they see as unfair market access and investments encroaching on critical sectors.

Added to the mix is northern Europe – traditionally favouring the free-market and weary that any hint of protectionism may pose an obstacle to their future absorption of Chinese funds.[7] This makes for a coalition between more vulnerable EU economies and the northern free-traders.

A case in point was the proposal championed by French President Macron at the EU Council on June 22nd, 2017 for effective measures to control foreign investments and address dumping. The plan was opposed by the same coalition of European free-traders and southern and central European economies.[8] The former, especially from northern Europe, were cautious of what they saw as the risk of falling into a protectionist trap.

This fault-line hampers the EU’s ability to develop a clear foreign policy. An example is the South China Sea arbitration decision. After three days of protracted negotiations between EU member states to hammer out a statement, the EU only “acknowledged” the tribunal’s decision as some southern and central European states – Greece, Hungary and Croatia – opposed stronger language.[9] Similarly, in June 2017, Greece blocked an EU statement at the UN, criticising China’s human rights record only months after the acquisition of the Port of Piraeus by China’s COSCO[10].

Europe’s Response and Challenges

Beijing’s uneven adherence to WTO obligations, financial backing for state-owned enterprises, interventionist policies, and the transfer of civilian technology towards military purposes have spurred calls in Berlin, Brussels and Paris to better address the China factor.

  1. THE EU’S 11TH HOUR AWAKENING

While floated publicly, the option of a tit-for-tat EU withdrawal of market access for China in retaliation for limited market access to EU companies is not on the table, according to EU officials. Europeans do not expect China to become a free-market economy instantly. And not even Trump – also vexed by unfair market access – seems willing to take the route of straight-out trade war with China.

EU States with Investment Screening Mechanisms

Europe is trying to strike a new balance between its free trade principles and protecting its critical sectors, thus avoiding any steps which could be interpreted as anti-Chinese. Talks of ‘rules-based trade’ are no longer uttered by the usual suspects with a strong mercantilist tradition, but increasingly by top EU officials. Some known free-trading member states like Denmark are also paying a closer attention to their national security, considering possible Chinese investments in Greenland’s mine-rich underground. The government has commissioned a mapping of all Chinese investment in Denmark.

On May 12, 2016, and against the backdrop of elections in France and Germany in 2017, the European Parliament voted to delay China’s market economy status (MES) bid.[11]

Key capitals have also raised alarm. In 2016, Chancellor Merkel and then-minister of economic affairs, Sigmar Gabriel, hinted at blocking some Chinese investments in sensitive areas. In July this year, Berlin tightened its law on investment screening, with direct implications for Chinese acquisitions.

Following a joint letter in February 2017 by the French, Italian, and German economy ministers to EU Commissioner for Trade Cecillia Malmström and an April 2017 proposal for a motion on increased screening measures put forward by the European People’s Party, Commission President Juncker proposed a regulation for an investment screening framework at the EU-level in his September 2017 State of the Union address.

  1. EUROPE’S FDI SCREENING – TOO LITTLE, TOO LATE?

Fully aware that imposing a one-size-fits-all mechanism will not be supported by all member states, the Commission proposal is a middle of the road compromise. The draft regulation proposes an EU framework for FDI screening and a cooperation mechanism between member states and the Commission based on information sharing. This applies especially when a foreign investment in one EU member state may affect the security or public order in another. However, the regulation does not oblige member states to adopt screening mechanisms, nor does it give the EU any blocking power over investments in national markets.

Specifically, the proposal seeks to a) increase transparency between member states and the Commission on strategic investment, including cross-border investment; b) raise awareness about the issue of FDI in strategic sectors among member states without a screening mechanism (only 12 member states have one[12]); c) raise the issue of security but leaving decisions on specific cases to member states; and d) allow the European Commission to screen FDI affecting the EU’s interest – meaning projects involving EU funding or established through EU legislation.

Senior EU officials hope that these new reporting measures will work as a forcing-mechanism for member states to better address dangerous investments.

The true litmus test will be the Council later in 2018 which must pass the regulation by qualified majority voting. This is where the coalition of northern, southern and central and eastern European states can water the draft down or kill it altogether.

Although a step in the right direction, the proposal is a far cry from what every G7 state already has in place on investment screening (see table in Annex). Aside from Germany, effective October 1st 2017, Japan has strengthened penalties and administrative sanctions, including against FDI related to security. The U.K. government has proposed a bill to restrict threshold and broaden the scope for its investment screening mechanism. Meanwhile, in 2017 alone, the U.S. has seen at least three attempts by Congress to tighten its screening measures. The latest such proposal in October, to which the Treasury Department contributed, seeks to broaden the types of transactions the U.S. can vet. This includes joint ventures and other arrangements (at home or abroad) that require U.S. technology companies to provide intellectual property and support to a foreign person. This applies to existing and emerging technologies.

According to EU sources, Beijing is weary of the Commission’s proposal but has not reacted thus far with its own counter-measures, partly because its investment restrictions are already much tougher.

Conclusion

The issue of China’s investment in sensitive sectors has become a more salient one in EU institutions and some key member-states. However, the proposed EU measures lag behind those put in place by non-EU G7 members. The fact that a majority of EU member states still have no screening measures is a point of vulnerability; one that China’s ‘invest and divide’ strategy in Europe exploits to the fullest

European policy objectives need to strike the right balance so as to avoid appearing protectionist all the while ensuring free trade based on rules:

  1. On investment screening, member states first need effective investment screening mechanisms at the national level. This would help gain more support among free-traders and help meet the Qualified Majority Voting[13] threshold in Council when it comes to an EU-wide framework.
  2. In parallel, the EU’s own proposal needs a clear definition of strategic sectors – so as to avoid a loose interpretation but still be forward-looking regarding new technologies in fast-growing fields like artificial intelligence.
  3. Finally, on China’s “Belt and Road Initiative,” EU needs to draw lessons from previous experiences – including Russia’s Gazprom encroachment in Europe. This time around, the EU needs to develop a collective framework for setting standards for Chinese investments and transferring Chinese funds into existing EU-mechanisms like the Trans-European Networks.

The challenge for the EU is to stay true to its open market principles while developing smarter measures in order to avoid seeing those same principles being turned into a strategic vulnerability. In the end, whether the EU and member states manage to better channel Chinese investment and set a fairer level playing field will be decisive for Europe’s long-term competitiveness and the global trade system.

 

[1] Duchâtel, Mathieu. “Trump trade reset gives China and Europe opportunity to rebalance relations.” ECFR, 16 Mar. 2017, www.ecfr.eu/article/commentary_trump_trade_reset_gives_china_and_europe_opportunity_7246;

Hanemann, Thilo, and Mikko Huotari. RECORD FLOWS AND GROWING IMBALANCES – Chinese Investment in Europe in 2016. Rhodium Group and Mercator Institute for China Studies, Jan. 2017, rhg.com/wp-content/uploads/2017/01/RHG_Merics_COFDI_EU_2016.pdf;

Grieger, Gisela. Foreign Direct Investment Screening: A debate in light of China-Eu FDI Flows. European Parliamentary Research Service. May 2017, http://www.europarl.europa.eu/RegData/etudes/BRIE/2017/603941/EPRS_BRI(2017)603941_EN.pdf.

[2] Hanemann, Thilo, and Mikko Huotari. RECORD FLOWS AND GROWING IMBALANCES – Chinese Investment in Europe in 2016. Rhodium Group and Mercator Institute for China Studies, Jan. 2017, rhg.com/wp-content/uploads/2017/01/RHG_Merics_COFDI_EU_2016.pdf.

[3] An exception being a $2.8 billion planned high-speed railway between Belgrade and Budapest, loans worth almost $1 billion for a Serbian bridge over the Danube and a Serbian thermal power plant, and a $700 million planned highway between Belgrade and Bar in neighbouring Montenegro. Given the membership perspectives of both Serbia and Montenegro, this could seek to strengthen China’s position and influence in countries that will likely be at the EU table in the future.

[4] EU’s embargo on China traces its root to the violent repression of student demonstrators by the Chinese government in 1989 around Tiananmen Square.

[5] Hancock, Tom. European Companies Are Supplying China with Billions in Weapons and Military Technology. Business Insider, 30 Apr. 2014, www.businessinsider.com/european-companies-are-supplying-china-with-billions-in-weapons-and-military-technology-2014-4?r=US&IR=T.

[6] Chinese ODI in Europe: Trends and Implications for the EU. EU-Asia Centre, www.eu-asiacentre.eu/documents/uploads/pub_174_chinese_odi_in_europe-_trends_and_implications_for_the_eu.pdf.

[7] Hanke, Jakob, and Maïa de La Baume. Macron’s price for saving Europe: trade defence. POLITICO, 29 June 2017, www.politico.eu/article/macron-cashes-in-on-trade-mention-summit/?utm_source=POLITICO.EU&utm_campaign=f6dcd3bf43-EMAIL_CAMPAIGN_2017_06_22&utm_medium=email&utm_term=0_10959edeb5-f6dcd3bf43-189938965.

[8] Sommet de l’UE: Résistance à Macron sur le contrôle de l’investissement chinois. Capital, 22 June 2017, http://www.capital.fr/entreprises-marches/sommet-de-l-ue-resistance-a-macron-sur-le-controle-des-investissements-chinois-1233959.

[9] “The EU, the South China Sea, and China’s Successful Wedge Strategy.” Asia Maritime Transparency Initiative, 13 Oct. 2016, amti.csis.org/eu-south-china-sea-chinas-successful-wedge-strategy/.

[10] Enter the Dragon. POLITICO, 4 October 2017, https://www.politico.eu/article/china-and-the-troika-portugal-foreign-investment-screening-takeovers-europe/.

[11] China claimed it should have been awarded MES as of December 2016, according to the pact it entered into when joining WTO in 2001. MES would have changed the criteria for what is considered fair price for exports and would hinder the EU’s ability to impose anti-dumping duties on Chinese goods sold at below-market prices, particularly steel. The status would also shift the burden of proof onto EU companies to provide evidence of market distortions.

[12] Austria, Denmark, Germany, Finland, France, Latvia, Lithuania, Italy, Poland, Portugal, Spain, UK* have FDI screening mechanisms.

[13] Qualified majority voting (QMV) is the number of votes required in the Council for certain decisions. The requirement is 55% of member states and 65% of EU’s population on proposals made by the Commission or the High Representative for Foreign Affairs and Security Policy.

 ANNEX I: Comparison of the Various FDI Scrutiny Procedures of all G7 Countries
Country Presence of an FDI scrutiny procedure Prohibition/

Restriction of FDI in selected sectors

Scope of FDI Reviews Scrutiny Procedure Turnover threshold Share/
ownership threshold
Plans to Strengthen Scrutiny Procedure
EU proposal Authorises (not requires) MS to have one/ EC can screen projects of EU interest No Security and

Public order

Case-by-case No No Draft regulation in EP
Canada Yes No Defence & security, “cultural industries,” financial sector, aviation, mining, telecomm., fishing, energy, real-estate Case-by-case $5m (non-WTO)

$300m (WTO)

No N/A
France Yes No Public order and security, defence, energy, water supply, transport, communications, public health protection Automatic No 33.33 % N/A
Germany

 

Yes No Defence, critical infrastructure, telecomm., IT, transport Case-by-case Sector-specific 25 % Strengthened legislation already as of July 2017.
 

UK

Yes Yes Defence and security, electricity, communications, broadcasting and newspapers, financial-sector, dual-use and advanced-tech Case-by-case (proposed to Automatic for certain sectors) £ 70 million

(proposed £ 1 million for defence, dual-use and advanced tech)

25 %  

 

ongoing

Italy

 

Yes Yes Defence & security, energy, transp., communications, shipping, financial services, research, public service, tourism, agro-food, cult. assets Case-by-case Sector-specific Sector-specific N/A
Japan

 

Yes No

 

 

Def., nuclear, dual-use, energy, telecom, transp., pharma., agriculture, forestry, aerospace, petroleum, leather manufacturing Automatic ¥ 5 billion 10 % Strengthened legislation already as of Oct 2017.
US Yes No No specific sectors. Broad mandate, including various joint-vent. & tech. transfer, intellect. prop. Case-by-case No 10% ongoing

 

 

 

icon__close