FDI screening in Belgian tech investments: navigating legal grey zones

FDI screening rules in Belgium and at EU level aim to strike a balance between protecting security interests and maintaining an open investment environment. However, broad definitions and limited guidance mean that investors often face uncertainty when assessing their obligations.

For foreign investors, uncertainty about filing obligations and a potential subsequent screening add costs and uncertainty about their investment. Knowing when an investment must be filed is therefore essential.

This question is particularly relevant for tech investments, which involve two particularly thorny issues:

• When asset deals—especially those involving intellectual property, trigger notification obligations?
• How data access and control should be treated within the scope of screening regimes?

Key takeaways

1. Asset deals involving IP may trigger FDI notification

Transfers of assets, including intellectual property, can fall within the scope of FDI screening if they result in a change of control. This concept of “control” is interpreted broadly and may apply even without acquiring shares, especially where the transferred assets constitute an independent business unit capable of generating revenue. This is particularly relevant for technology companies, where intellectual property often represents the core value of the business. 

2. Assets constituting an independent business activity

Belgian guidance on the concept of control remains limited, which means it must often be interpreted in light of other legal frameworks, such as EU competition law and labour law. Read together with those legal frameworks, the question is whether the economic entity retains its identity, meaning an organized grouping of resources which has the objective of pursuing an economic activity, for instance, if an IP right has dedicated personnel working on it or even when turnover can be allocated to the asset.

3. Data access and control significantly broaden the scope

Investments involving access to or control over personal data can also trigger notification obligations under FDI rules. However, the scope is extremely broad, as most companies process some form of personal data. A more relevant criterion than the relation of data access or control to the company’s business activities is the actual risk posed to national security or the rights and freedoms of individuals. This might be the case, for instance, where large datasets are involved, or where sensitive data is processed.

4. Not all data activities should be in scope

At the same time, not all data-related activities should automatically fall within the scope of FDI screening. Practically every company processes, stores or controls personal data relating to employees, customers, suppliers and other business contacts, without however any particular level of sensitivity involved. Therefore, it is reasonable to infer that the activities of the target company must go beyond “standard” activities that any company conducts regarding personal data.

5. Anonymisation can reduce regulatory exposure (in theory)

In principle, fully anonymised data falls outside the definition of personal data and may therefore avoid triggering FDI screening requirements. However, in practice, achieving true anonymisation is challenging, and simple de-identification or pseudonymisation is typically insufficient. As a result, this approach offers only limited certainty as a risk mitigation strategy.

What should investors and companies do?

Given the current uncertainty, a cautious and structured approach is essential:

• Assess early whether asset transfers or data activities could fall within FDI scope
• Review the nature of assets and data (e.g. standalone business value, scale, sensitivity)
• Consider notification in case of doubt, as authorities may investigate transactions retrospectively
• Factor FDI screening into transaction timelines and risk assessment

A need for clearer guidance

The article ultimately highlights a key gap: the lack of precise, practical guidance at both Belgian and EU level. Clearer rules would help reduce uncertainty and ensure that FDI screening effectively targets genuine risks without discouraging investment. Because legislative processes are slow, informal guidance by the Interfederal screening committee can go a long way.

This article originally appeared in TechREG Chronicle, a publication of Competition Policy International.