Scope and content of Royal Decree-Law 09/2024

The Spanish Official Gazette (BOE, in Spanish) published on December 24 (Nº 309) a Royal Decree-Law (9/2024) adopting some Measures on Economic, Tax, Transport and Social Security Matters, and extending others to address Situations of Social Vulnerability. It consists of a preamble describing its purpose and a main body divided into five Parts, the first of which is dedicated, among other subjects, to Foreign Direct Investments (FDI); to financial countermeasures against third countries that pose higher risks of money laundering, terrorist financing, or financing of proliferation of weapons of mass destruction; or to the Corporate  Internationalization Fund (FIEM, in Spanish), a financial instrument aimed at the promotion of the presence of Spanish companies anywhere in the world, either through export operations or foreign direct investments.

Type of Investors affected by these Measures

As regards Foreign Direct Investments, it is worth asking what reasons have prompted the Spanish government to approve a new regulation; what new features does it present; what type of FDIs affect; and for how long will it be in force. According to the Royal Decree-Law’s preamble, the approval of this new regulation is justified by the current panorama of growing tension and political instability, a tension and instability which require to make a further decisive commitment to economic security, maintaining protection against risks to public order, health and safety. Hence, the need to monitor FDs carried out by residents outside EU and EFTA countries, or by residents of EU or EFTA countries whose beneficial ownership (percentage greater than 25% of the capital or voting rights, or effective control of the investor) belongs to residents of the former or the latter,  provided that the following conditions apply:

• Whether they concern listed companies in Spain, or non-listed companies if the value of the investment exceeds 500 million euros;
• Whether they are developed in the sectors mentioned in Section 2 of Article 7bis of Law 19/2003, of July 4, on the Legal Regime of Capital Movements and Economic Transactions Abroad: a) Critical infrastructures (Energy, Transport, Water, Health, Aerospace, Defense, Data, Communications) and their lands and buildings; b) Critical technologies and dual-use products (AI, Robotics, Semiconductors, Cybersecurity, Aerospace and Defense Technology, Energy Storage, Nanotechnology and Biotechnology); c) Supply of essential inputs (Energy, Raw Materials, Food Safety); d) Access to sensitive information (Data) and e) Media; and
• Whether they can potentially affect public safety, order or health.

For How Long these Measures will be in Force?

This new Royal Decree-Law modifies the sole transitional provision of the Royal Decree-Law 34/2020, of November 17, on Urgent Measures for Business Solvency and the Energy Sector, extending until December, 31, 226, the suspension of liberalization of the aforementioned investments made by residents outside EU and EFTA countries, or by residents of EU and EFTA countries whose beneficial ownership belongs to residents of the former or the latter. This transitional regime has been successively extended from 2021 to 2024, and now from 2024 to 2026 for the reasons stated above.

Antonio Viñal
Lawyer
AVCO Legal
madrid@avco.legal