Despite the judicial doctrine on fundamental rights in the EU being not fully developed yet, the status quo allows us already to contextualize regulatory activities in the fundamental rights framework. The codification of the Charter of Fundamental Rights in the EU has contributed to this development significantly. In this regard, the recent “Regulation establishing a framework for screening of foreign direct investments into the EU” raises several issues, e.g. the personal scope of the Charter – particularly regarding third country entities and state owned enterprises or entities with strong links to third country governments; the material scope of certain fundamental rights with regard to FDI; and eventually the effectiveness of fundamental rights against administrative measures under FDI regulation. The analysis addresses these issues and sheds light on a potential shift concerning the functioning of fundamental rights in this field: from remedies to regulatory design.
The use of powers aimed to check FDIs always poses many problems for foreign investors: firstly, unclear legal frameworks in this field are quite diffused, and this gives a problem of legal certainty; a second related problem concerns the possibility to exercise remedies against unlawful decisions which forbid foreign investments, especially the chance to appeal the decision in court. Very often States do not provide any kind of remedy: in this case the foreign investor can only invoke the diplomatic protection from its own State. As a consequence, special attention will be devoted to the Investor-State dispute settlement mechanism, which allows the involved parties to refer to an international arbiter rather than defer disputes to local courts or to diplomacy, and the new European regulation on FDIs, which obliges every EU member State to guarantee judicial review against screening measures issued by the Government.
The recent reforms in the field of foreign direct investments screening measures address national securities and other public interests’ risks in various forms. However, they may also conceal different concerns, such as the fear of predatory acquisitions of relevant local businesses from foreign countries. As a consequence, the above-mentioned measures may be used to create commercial barriers in spite of the many international Treaties which guarantee freedom of trades. Therefore, attention must be devoted to analyze how national governments justify the use of powers which forbid investments from abroad and to understand if there are common reasons among different countries. In particular, the study will deepen recent cases of use of the so-called “golden power” in Italy, which were aimed to oppose possible phenomena of foreign governments driven acquisitions.