Foreign investment screening in Spain: prior consultation and authorisation application

Legal basis and things to bear in mind

• Who needs authorisation: an investor resident outside the European Union and EFTA (AELC), or an EU or Spanish company more than 25% owned or controlled from outside, that comes to hold 10% or control of a Spanish company operating in critical infrastructure, critical or dual-use technologies, supply of energy, water, raw materials or food, access to sensitive information, or the media. If the investor depends on a Government outside the EU, or has certain track records, screening extends to any sector (Ley 19/2003, art. 7 bis; Real Decreto 571/2023, arts. 14 to 16).
• EU and EFTA investors: until 31 December 2026 they also need authorisation if they invest in those sectors in a company listed in Spain or, if it is not listed, for more than 500 million euros (Real Decreto-ley 34/2020, sole transitional provision).
• Exemptions: investments in companies with turnover of up to 5 million euros in the last closed financial year, except in critical infrastructure, certain telecoms operators, mining of strategic raw materials and where the technology was developed with public programmes of special interest; certain investments in the energy sector; real estate that does not serve critical infrastructure; and transitory share placements. Where the investor depends on a Government outside the EU, the turnover exemption has to be studied case by case. An internal group reorganisation, or an increase by a shareholder that already holds more than 10% without a change of control, is not a screened investment (Real Decreto 571/2023, arts. 14.3 and 17).
• There is no general exemption by amount: the one for transactions under 1 million euros was transitional and Real Decreto 571/2023 does not include it. If your case depends on it, the prior consultation settles it with a binding answer.
• Prior consultation: the Directorate-General answers within a maximum of 30 working days, with a favourable report from the Junta de Inversiones Exteriores (Foreign Investment Board), and its answer binds the Administration with respect to whoever consults. It is confidential. While it is pending, authorisation cannot be applied for, and if no answer arrives in time that does not mean authorisation is unnecessary: only that it can now be applied for (Real Decreto 571/2023, art. 9).
• Authorisation: the Dirección General de Política Comercial y Seguridad Económica decides if the investment is up to 5 million euros, and the Consejo de Ministros (Council of Ministers) above that, in both cases with a report from the Junta de Inversiones Exteriores, within a maximum of 3 months; if there is no decision, the application is deemed refused. It may authorise without conditions, authorise with conditions or commitments, or refuse (Ley 19/2003, art. 6.2; Real Decreto 571/2023, arts. 11 and 14).
• In 2024 the Ministry received 167 applications. Of those reported on by the Junta, 94 transactions were subject to screening: 85 were authorised without conditions, 8 with conditions and 1 was refused; another 42 were closed because they were not subject to screening.
• Without authorisation, the transaction has no validity or legal effect and the investor cannot exercise its economic or political rights in the company until it is regularised. It is also a very serious infringement: a fine of at least €30,000 and up to the amount of the transaction, with a public or private reprimand (Ley 19/2003, arts. 7 bis.5, 8 and 9; Real Decreto 571/2023, art. 11.1.a).
• Once authorised, the investment must be made within the period set by the decision or, if none is set, within 6 months, which can be extended once by another 6 if requested before they expire. Changes to the transaction must be notified, and a substantial change requires a new authorisation. Once the investment is made, it is declared to the Registro de Inversiones (Investment Register) within one month (Real Decreto 571/2023, art. 11.1; Orden ECM/57/2024, art. 12).
• Defence, weapons, ammunition, pyrotechnics and explosives have their own authorisation regime, with other authorities and other exceptions (Real Decreto 571/2023, arts. 18 and 19).
• From 17 January 2028, Regulation (EU) 2026/1386 applies: it replaces the current European framework and requires the Spanish regime to be revised, with mandatory authorisation in more sectors and ex officio review of transactions already closed.