《欧盟外资安全审查条例》与资本自由流动原则的不兼容性

Incompatibility of the EU Regulation on Screening Foreign Direct Investment with the Principle of Free Movement of Capital

《欧盟外资安全审查条例》已于2019年4月10日生效,其目的是在欧盟层面建立外资安全审查框架,并且协调成员国外资安全审查机制,赋予欧盟委员会对外资安全审查的咨询权力。欧盟条例授权成员国与委员会在审查时考虑外国直接投资对关键基础设施、关键技术、防务投入品、敏感信息和媒体多样性的可能影响,考虑外国投资者是否被外国政府直接或间接控制,这些考虑因素隐含了经济安全与非现实威胁的考量。这种扩大性的解释方式,有悖于欧盟法院的判例法。《欧盟外资安全审查条例》还难以通过涉及资本自由流动原则的比例原则测试,并且与基础条约中的开业自由原则以及与不得强迫成员国提供有悖于其根本安全利益的信息的规则相冲突。通过对《欧盟外资安全审查条例》与欧盟基础条约和判例法的比较分析,本文认为,不仅欧盟委员会在中短期很难取得外资安全审查的最终决策权,而且《欧盟外资安全审查条例》存在与包括资本自由流动原则在内的欧盟既有成文法与判例法的一致性问题。

The Regulation(EU)2019/452 on screening foreign direct investment(FDI)framework aims to establish a new instrument to screen FDI on ground of security or public order.According to the Regulation,the European Commission has been conferred with the right to provide consultative opinion on FDI,and the Member States,no matter whether they have set such screening mechanisms,have been imposed with an obligation to“cooperate”with the Commission and with each other.The Regulation permits the Member States and the Commission to consider the potential effects of a foreign direct investment on critical infrastructure,critical technologies and dual use items,supply of critical inputs and food security,access to sensitive information and the freedom and pluralism of the media,as well as to take into account whether the foreign investor is directly or indirectly controlled by its government.The author argues that the extensive interpretations of the concepts of security or public order used by the Regulation are not consistent with the settled rules of the Court of Justice of European Union,which holds that the security exception to the principle of free movement of capitals should be interpreted strictly,that any legal restriction should not serve purely economic ends,and that there must be a genuine and sufficiently serious threat to a fundamental interest of society.The author also argues that the Regulation cannot pass the proportionality test and that it is contrary to Articles 54-55 of TFEU which protect the principle of free establishment and Article 346 of TFEU which maintains the Member States’right to protect its essential interests of security.In conclusion,the author believes that it is almost impossible for the European Commission to obtain the right to make last decision on screening FDI in the near future unless the founding EU treaties have been amended,and that the Regulation(EU)2019/452 is incompatible with the Acquis Communautaire of the European Union.Due to the absence of established rules of the CJEU,the Regulation will undermine rather than enhance the principle of legal certainty which is contrary to what the Commission had declared.