1. Introduction
In early August, the Belgian government decided
not to allow the proposed take-over of Ostend-based helicopter company Noordzee
Helikopters Vlaanderen ("NHV") by a Chinese group. This decision has
once again drawn attention to Belgium's screening mechanism for foreign direct
investment ("FDI screening"). Although the mechanism has now been in
force for more than three years, uncertainty still regularly arises in practice
as to when an investment actually needs to be notified. The NHV transaction
provides a useful opportunity to briefly revisit the scope of the Belgian FDI
rules.
2. When does FDI screening apply?
The Belgian screening mechanism was implemented
in pursuance of the Cooperation Agreement of 30 November 2022 and has been
applicable since 1 July 2023. Its purpose is to safeguard national security,
public order and the strategic interests of the Belgian authorities.
An investment falls within the scope of the
screening mechanism if all four of the following conditions have been met:
- the investment is made by a foreign investor, more specifically a natural person, company or other entity from outside the European Union,
- the investment relates to a Belgian enterprise or entity,
- the Belgian target is active in one of the sensitive sectors listed in Article 4 of the Cooperation Agreement, and
- the investment results in the acquisition of control, at least 10% of the voting rights in enterprises active in sectors such as defence, energy, cybersecurity, electronic communications or digital infrastructure (provided that their turnover exceeded EUR 100 million in the preceding year), or at least 25% of the voting rights in enterprises active in other strategic or vital sectors, such as critical infrastructure, healthcare, media, data processing, aerospace, financial infrastructure and certain technologies or raw materials of strategic importance.
When an investment falls within the scope of the screening mechanism, it needs to be notified in advance to the Interfederal Screening Commission. The transaction will be on hold while the screening process is ongoing. During the investigation, the commission determines whether the investment may pose risks to national security, public order or the strategic interests of the authorities concerned. Within a 30-day assessment period, the commission will decide whether or not to launch a formal screening procedure. Depending on the outcome, the investment may be approved unconditionally, approved subject to remedial measures or, in exceptional circumstances, prohibited.
3. Why was NHV's take-over blocked?
The recent decision concerned the proposed
take-over of NHV by GD Helicopter Finance, an Irish company belonging to the
Chinese GDAT group. NHV's activities include helicopter transport services to
offshore wind farms and oil platforms in the North Sea. NHV had also been
mentioned as a potential maintenance partner for the Defence Ministry's new
H145M helicopters.
As part of the assessment of the transaction,
the findings of the military intelligence service, ADIV, which had previously
opened an investigation into the transaction, were taken into consideration.[1] Ultimately, the competent members
of the Interfederal Screening Commission and the ministers concerned concluded
that the identified risks to Belgium's national security and strategic
interests could not be sufficiently mitigated. The investment was therefore
prohibited.[2]
4. Exceptional decision
The NHV decision should be viewed in a broader
context. According to the most recent annual report of the Interfederal
Screening Commission[3] relating to the period from 1 July
2025 to 30 June 2026, the Commission received 191 notifications during that
period. 162 investments were approved unconditionally and two were approved
subject to remedial measures, while 27 cases were still pending. Up until 30
June 2026, the screening mechanism had not yet resulted in the refusal of an
investment and a formal screening procedure had been launched in only 4% of
notified cases.
The NHV case therefore does not suggest that
the Belgian government is reluctant to accept foreign investment. Rather, it
demonstrates that the screening mechanism has become an integral part of the
transaction landscape for enterprises operating in sensitive or strategic
sectors.
Investors, sellers and their advisers are
therefore well advised to analyse potential FDI aspects at an early stage of a
transaction. A notification requirement may indeed affect the transaction
timing and the drafting of suspensive conditions and, in exceptional cases, may
even prevent a proposed investment from happening.
[1] Military intelligence service investigates Chinese takeover of Flemish helicopter company | VRT NWS Nieuws
[2] Government blocks Chinese takeover of Belgian helicopter company: 'Risks to national security) | VRT NWS Nieuws
[3] Screening-Buitenlandse-Directe-Investeringen-Jaarverslag-2025-2026