Netherlands FDI Alert: Consultation Launched on New Categories of (Highly) Sensitive Technologies

The Dutch FDI Act (the Investments, Mergers and Acquisitions Security Screening Act) provides for investment screening in transactions involving (highly) sensitive technologies. The relevant (highly) sensitive technologies that fall under scrutiny of the Dutch FDI Act are laid down in the Sensitive Technologies Decree (Besluit toepassingsbereik sensitieve technologie).

On 19 December 2024, the Dutch government launched a consultation to expand the scope of the Sensitive Technologies Decree. The proposed amendments are particularly relevant for companies active in sensitive technologies and investors seeking control or significant influence in these areas. The proposed changes aim to substantially expand the lists of “sensitive” and “highly sensitive” technologies to bolster national security.

This proactive Dutch approach aligns with recent European developments, such as reforms to the Foreign Direct Investment (FDI) Screening Regime and the priorities outlined in the European Economic Security Strategy. The European Commission’s proposals underscore the importance of stricter oversight of foreign investments in strategic sectors, as outlined in the Commission’s recommendation of October 2023. The Dutch FDI Act applies to both foreign and domestic investments.

European Focus on Critical Technologies

The European Commission has identified ten critical areas in its recommendation, with four high-priority sectors designated for joint risk analysis by Member States:

1. Advanced semiconductor technologies;
2. Artificial intelligence technologies;
3. Quantum technologies; and
4. Biotechnologies.

Overview of Proposed Changes in the Netherlands

The expansion of the Sensitive Technologies Decree focuses on areas such as AI systems, biotechnology and nanotechnology, which align closely with EU priorities. The proposed amendments broaden the scope of the Sensitive Technologies Decree (and the general investment review) by adding new technology categories to both sensitive and highly sensitive technologies. 

In summary, the proposal adds the following technologies to Annex 2 of the Sensitive Technologies Decree (which contains the list of sensitive technologies):

AST 5 – Advanced Materials Technology, exclusively related to:

• Technologies for producing materials that enable the storage, transportation, or conversion of energy forms/carriers where reliability, energy storage capacity, or temperature range exceeds commercial standards.
• Technologies for two-dimensional (2D) materials where optical, electronic, magnetic, or acoustic properties can be deliberately adjusted and produced.
• High-entropy alloys (HEAs).

AST 6 – Artificial Intelligence (AI), exclusively related to:

• Identification or impersonation systems for persons, groups, and objects via image, speech, or biometrics.
• Identification of persons, groups, or objects based on the analysis of geography and sensors connected to a network (e.g., GPS, WiFi, cameras, 4G).
• Supporting military or security organisation operations.

AST 7 – Biotechnology, exclusively related to:

• Synthetic cell technology for developing artificial living cells.
• Stem cell technology for cultivation and manipulation.
• Gene editing and genomics.

AST 8 – Nanotechnology, exclusively related to:

• Technology for developing and manufacturing artificial materials based on nanoparticles/nanostructures that can be programmed with one or more desired properties.
• Micro- and nanoreactor technology.

AST 9 – Sensor and Navigation Technology, exclusively related to:

• SLAM (Simultaneous Localisation and Mapping) technology.
• Sensor fusion and array technologies.
• Sensor network and ambient technologies.
• Signature management and pattern recognition technologies.

AST 10 – Nuclear Technology for medical applications.

Annex 3 of the Sensitive Technologies Decree contains the list of highly sensitive technologies, for which an investment screening applies when acquiring or increasing significant influence (which is a lower threshold for an investment/transaction to fall within the Dutch FDI regime). The following technologies are proposed to be added to the highly sensitive category: AST 5 to AST 10 (as listed above) and 5A002, 5A003, 5B002, 5E001.b2, and 5E002 (see the Dual-Use Regulation, Annex 1; this – in short – concerns systems, equipment, components and technology for (non-cryptographic) information security or laser communication).

Legal Implications and Consultation Procedure

The Dutch government plans for a swift implementation of the proposed changes to the Dutch investment screening regime. The proposal stipulates that the changes will take effect immediately upon publication in the Bulletin of Acts and Decrees, bypassing standard entry-into-force rules. This urgency underscores the strategic importance of the amendments. 

Stakeholders have until 31 January 2025, to submit (confidential) feedback to the consultation.

If you need more information or further guidance in this area, please contact Tialda Beetstra and Janneke Kohlen.

VISIT OUR COMPETITION LAW HOMEPAGE