SUMMARY
OF THE REPLIES TO THE COMMISSION QUESTIONNAIRE ON THE SUBSTANTIVE NATIONAL
STANDARDS OF PROTECTION FOR CROSS-BORDER INTRA-EU INVESTMENTS
INTRODUCTION
A first questionnaire on the substantive standards of protection for cross-border intra-EU
investments was sent to the Member States via the Expert Group on intra-EU investment
environment in 2017. Eighteen Member States (AT, BG, CY, CZ, DE, DK, EL, ES, FI, FR, LT,
LV, PL, PT, RO, SI, SK, SE) replied to that 2017 questionnaire.
A second questionnaire was sent to Member States in May 2020. Nineteen Member States (BE,
BG, CZ, DE, EE, EL, ES, FI, FR, HU, LT, LV, NL, MT, PL, PT, RO, SE, SK) have replied to
that second 2020 questionnaire.
The following summary focuses on the most recent replies to the 2020 questionnaire, while
taking account also of replies to 2017 questionnaires, where relevant. The overview follows the
structure of the 2020 questionnaire.
It provides an indicative overview of the types of rules in place in Member States. It is not
complete as it does not include the legal frameworks of those Member States that have not
replied and it is based on the written replies received. Given that the replies from Member States
show different degrees of detail, a detailed comparison for each and every type of rule was not
feasible.
Where Member States are explicitly mentioned or listed as having certain rules serves
illustrative purposes. Thus, if the name of a Member State is
not mentioned under a specific
section, this does not necessarily mean that the framework of that Member State does not have
such a rule in place.
GENERAL LAW PRINCIPLES THAT PROTECT INVESTMENTS UNDER
NATIONAL LAW
How is the principle of legal certainty applied in your Member State in relation to
cross-border investments and in what ways does your national legal framework
protect investors against retroactive effects of state measures that may negatively
affect investments?
The replies to the 2020 questionnaire confirm the 2017 findings that in all responding Member
States the principle of legal certainty is a constitutional or, where not explicitly codified, a
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fundamental principle developed by the national courts. Nearly half of the replies indicate that
the principle of legal certainty is closely linked to the principle of rule of law.
In all responding Member States, the prohibition of retroactive application of laws is the general
rule. The conditions that may lead to the exception to the general rule are as follow: for some
Member States, the exception requires the attainment of reasons of public interest (e.g. BE); for
some others a justification by a legal measure (e.g. DE, LV).
In some Member States, (e.g. LV), the national courts have developed this idea further and
established that while the principle of legal certainty does not preclude the state from changing
the legal environment, it imposes on the state the obligation to ensure stability of established
legal relationships, and requires to take into account already established rights and interests of
the individual. The state needs to balance the interests of the individual against the necessity to
change the applicable legal environment.
In a number of responding Member States, as a general rule, it is prohibited to apply
administrative acts in a retroactive manner (e.g. AT, BE, ES, FI, PT, NL). The conditions that
may lead to the retroactive application of administrative acts constitute an exception to the
general rule and are outlined as follow: in several Member States’ responses, retroactive
application is only possible when the law explicitly provides so (e.g. AT, BE); in few Member
States retroactive application is possible on an exceptional basis with one Member State
requiring that no favourable decisions can be reversed without going through specific
proceedings or even with the compulsory intervention of the court (e.g.ES); in one Member State
administrative decisions can apply retroactively if public interest is at stake and necessity and
proportionality of the administrative act are granted (e.g. PT). In one Member State,
administrative decisions cannot have retroactive effect (e.g. FI).
How is the protection of legitimate expectations framed in your national legal system
and in what ways does your national legal system protect acquired rights, also with
regard to a cross-border investor and actions taken by him in good faith in relation
to his investment?
The legal orders of almost all replying Member States know the principle of protection of
legitimate expectations: some directly through their constitution or laws, others indirectly as
inferred from the general principle of the EU. In most replying Member States, the principle of
legitimate expectations is a corollary of the principles of legal certainty and of the principle of
legality/rule of law.
Some Member States regulate the specific circumstances under which an expectation deserves
protection (e.g. DE, EE, PT, SK); one Member State replied that all the circumstances
surrounding the concrete case should be taken into account (ES), a few Member States have the
practice to adopt transitory provisions into new legislation to safeguard any acquired rights
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under the old regime (e.g. MT). Some Member States lack explicit legislation on legitimate
expectations (e.g. BG, FI, and SE).
In the Netherlands, this principle is not codified but recognized in jurisprudence, as part of
principles of good governance. This does not imply that the legal protection is weaker than in
Member States where this principle is codified.
It seems that in general, in replying Member States the principle of legitimate expectations is
meant to protect individual’s justified/good faith reliance in the validity of acquired rights (e.g.
AT, CZ, DE).
TRANSPARENCY OF THE LEGISLATIVE PROCESS FOR CROSS-BORDER
INVESTORS
How does the framework for your national legislative/rule making process ensure
sufficient transparency of the legislative/rule making process?
All responding Member States have rules in place to make legislative proposals transparent and
accessible to the public. The most common measure is to put legislative proposals as well as the
information on the national parliamentary work online.
Some Member States have very comprehensive specific legislations and rules in place to ensure
not only a high level of transparency of the legislative process, but also to ensure a high degree
of openness and to allow for the participation of the general public as well as stakeholders very
early on and throughout the whole in the process (see II.2 below).
How can individuals including cross-border investors contribute to the national
legislative/ rule making process and make their voices heard therein?
Besides the “classical” way of approaching members of Parliament or national stakeholder
associations (which may have their limitations for foreign investors, as national members of
Parliament or national associations might not necessarily pick up the arguments of those foreign
investors), some Member States have more developed participative tools (usually available
online, e.g. like in CZ, MT, NL, PT, RO, SK) that allow cross-border investors to make their
voices heard.
Several responding Member States launch a public consultation process even before a draft
legislation is written (e.g. EE, ES), some other Member States organize consultations of the
public on the first draft before it is introduced in the national parliament (e.g. ES, NL, PL, LT,
SK).
An innovative tool is reported by LV: since 2013, the LV State Chancellery in close
collaboration with NGOs introduced a new type of public participation, the so-called “green
papers”. State institutions are obliged to publish policy documents and draft legislative acts at
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least 14 days before initiating the legislative process, and to invite NGOs, independent experts
and other stakeholders to express their views regarding the proposed legislative act or policy.
Another example is EE legislation, which foresees that draft legislation must be accompanied by
a table showing opinions and proposals made during a public consultation, explaining to which
extent those opinions were taken on board, and give the reasons why comments were not taken
into account.
Does the framework for your national legislative/rule making process foresee an
assessment of the impacts the planned national measure will have on the interests
of stakeholders, including cross-border investors? If yes, please explain how the
assessment is taken into account.
Many Member States foresee the preparation of a regulatory impact assessment, which is
published together with the draft legislation (e.g. CZ, NL, PL, SE, EE, ES, LT, SE, SK). Among
other things, these impact assessments analyse the entities/groups positively and negatively
affected by the draft legislation, such as additional burdens for companies, effects on
competitiveness of the economy, impacts on entrepreneurs and SMEs etc.
It appears from Member States’ replies that such an impact assessment is not only highly
relevant for the openness and transparency of the legislative process itself, but is also relevant if
a passed legislation is challenged in courts and the national courts have to assess the soundness
and legality of the decisions and arbitrages made by the national legislators.
What types of adaptation or mitigating measures does your national legal framework
foresee where the planned legislation/rule might unduly negatively impact
investments including cross border investments? (e.g. transitional period,
compensation or other)?
The two most commonly cited measures to mitigate negative impacts/restrictions of rights are
transitional periods and compensations for financial losses. Some Member States (e.g. CZ, PL)
establish rules for the period between the promulgation of a law and the time the law takes legal
effect (
vacatio legis); a few Member States make provision for ad hoc mitigation measures (e.g.
CZ, SK).
NL has specific provisions in place on how to design transitional measures in exceptional cases
in the light of the general legal principles. PL mentioned specific considerations (as part of the
guidelines for impact assessment and public consultations in governmental legislative process)
applied to SMEs, such as partial or full exemption of SMEs from planned regulations, exemption
from fees or their reduction, longer transitional periods for adaption to new regulations, direct
financial support, simplified reporting obligations, information, education, training etc..
What are the procedures in your national legislative/rule making process that ensure
compatibility of the planned legislation/rule with EU law?
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In most Member States, the check of the compatibility of the draft is in-built in the legislative
process and the assessment is made by the responsible national administrations/ministries (e.g.
DE, ES, LT, NL, PL, SK).
In some Member States, independent bodies external to the government may be involved, like
the SE council on legislation and the Dutch Advisory Board on Regulatory Burden in the NL. In
the NL, the explanatory memorandum contains an “integral assessment framework”, compiling
all relevant aspects gathered during the drafting process, including the question of compatibility
with EU law and a Draft Bill is checked by the Highest Administrative Court (the Council of
State) on compatibility with EU and international law obligations. EL in 2019 established a
Committee for the Quality Assessment of the Law-making Process, an independent, inter-
disciplinary advisory body which, among other tasks, examines the compatibility of the
proposed regulation with the EL constitution, EU law, International Law and the European
Convention on Human Rights.
THE RIGHT TO PROPERTY AND THE APPLICABLE NATIONAL REGIME
ENSURING FAIR COMPENSATION IN CASES OF EXPROPRIATION
What are the rights granted to the owner of the property right in your Member State in
case of an expropriation justified in the public interest?
The replies to the 2020 questionnaire confirmed the 2017 findings that the right to property is
protected under all the constitutions of the replying Member States. Formal or “direct”
expropriations (state measures that include a formal transfer of ownership/title from the
individual to a state authority) must be based on law, must be proportionate and justified in the
public interest.
It appears from most replies that the national rules and procedures in place to regulate cases of
“direct” expropriation are mainly applicable to expropriation of privately owned land/immovable
property, for example if the land is needed for the building of public infrastructures such as
motorways or airports.
In all replying Member States, the national framework foresees that the “directly” expropriated
owner must receive a compensation for his loss. Definition of that compensation seems to vary
between Member States, and is defined in different Member States as either ”full”, “fair” or
“just” compensation (just not necessarily meaning full market value, see for example MT under
III.3.).
Many Member States also pointed to the 1st protocol to the European Convention on Human
Rights as a compensation regime distinct from their national law.
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Does your legal system explicitly recognise cases of “indirect expropriation” (i.e.
measures that do not formally constitute expropriation but that de facto have
effects analogue to expropriation?
It appears that no responding Member State explicitly recognizes in the concept of “indirect
expropriation” in its national law.
In some Member States, the constitutional courts have developed similar concepts, for example
as a restriction to the right to property that may give rise to compensation (e.g. AT, DE, FR).
Other Member States explain that in their legal framework, such cases would be addressed under
more general principles of law. For example, in BE a restriction imposed on an investor leading
to situations where the investor can no longer operate its business could be challenged by the
investor as excessive under the proportionality principle; in SK cases of indirect expropriation
could be covered by the principles governing enforced restrictions on ownership.
In your Member State, what are the parameters for the calculation of the compensation
due and what is the applicable interest rate (for example is it based on the
replacement value, the fair market value, would compensation include going
concern or consequential damages, and are compounded interests included)?
Based on the Member States’ replies to the questionnaire received, there are obvious differences
among the Member States regarding the amount of compensation due in case of lawful
expropriation and the parameters taken into account to determine it.
Some Member States (e.g. BE, CZ, EE, EL, NL, HU, RO) provide for full compensation,
covering any damage incurred by the owner of the expropriated property, while other Member
States provide for equivalent (BG), fair (LV, PT), just (DE, LT), due (ES) or adequate
compensation (SK). The amount of compensation due also varies, taking into account the
equivalent (BG), increased fair (SE) or full market value (FI) of the expropriated property at the
time of the expropriation, whereas in some cases interests (e.g. LT) and loss of profits (e.g. LV)
are also covered. Other Member States also provide for the possibility of a replacement in kind
of the expropriated property, if the owner prefers it (e.g. PL).
The amount of compensation due in cases of lawful expropriation is also determined differently
in different Member States. For example, in BE, PT and ES, compensation is determined
following a negotiation process with the person, whose property is expropriated, or by the
competent administrative authorities (e.g. HU, ES and PT should negotiations with the owner
fail) or by experts entrusted with the task (e.g. RO, SK) or national courts (e.g. BE, RO and SK,
should the owner be dissatisfied with the amount of compensation determined). In NL, Courts
can appoint independent experts to calculate the right amount of compensation due. In other
Member States, like EL, compensation is determined directly by the competent national courts.
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At the same time, most of the Member States that replied to the questionnaire do not distinguish
between lawful and unlawful expropriation or specify the kind of remedy (restitution or
compensation). They also do not specify the amount and calculation parameters to be taken into
account for the determination of compensation in cases of unlawful expropriation.
As for interest rate, a few Member States specify the rate, e.g. a fixed rate of 8% in MT or the
applicable rules in this respect, e.g. the respective Civil Code provisions in HU. A few Member
States specify the moment from which interest is due, e.g. the time when the expropriation
decision has reached administrative finality in HU
. Many Member States do not specify the rules
in this respect in their replies.
In your Member State, are there specific procedural rules regarding the payment of
compensation and are there related deadlines?
Some Member States (e.g. BE, FR, NL) replied that the expropriation procedure consists of an
administrative phase and a judicial phase. Not all Member States provide information in
response to this question.
With regard to the deadlines for the payment of compensation: EE replied that the payment
should occur before the public authority takes over the property; whereas other Member States
mentioned: done at once and within 14 days from the moment when the decision of
expropriation is subject to execution and when there was a separate decision on compensation –
at once within 14 days from the day when the decision on the payment of compensation became
final (PL); 15 days following the final expropriation decision (HU); no later than 3 months from
the date of the decision establishing the amount of compensation (RO, MT, SE).
NATIONAL REGIMES ENSURING EFFECTIVE REMEDIES AGAINST OTHER
STATE MEASURES THAN EXPROPRIATIONS WHERE THOSE MEASURES
INFRINGE RIGHTS GRANTED TO INVESTORS UNDER THE EU INVESTMENT
PROTECTION FRAMEWORK
Under the legal framework of your Member State, what are the remedies available to a
cross-border investor in case of an infringement by the State/a national authority of
their rights granted by EU law in relation to the cross-border investment? (e.g.
restauration of the full protection under the primary rule and removal of the illegal
measure and its consequences , restitutio ad integrum, full reparation, damages for
consequential losses, damages for future losses)
As already mentioned during the 2017 survey, in the vast majority of Member States that do not
have a specific legal regime for foreign investors, the remedies for foreign investors are the same
as for any EU individual or citizen. However, several responding Member States do have
specific investment laws (e.g. EL, LT).
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More specifically, what are the remedies available to a cross-border investor in your
Member State where a national legislative act unlawfully impairs his rights?
It appears that in most responding Member States, it is not possible to directly challenge the
legality of a national legislative act. The individual/investor can challenge before the national
courts the individual administrative act of a Member States body that is based on the challenged
legislation.
However, it seems that under strict conditions, in a small number of Member States, it is possible
for an individual/investor to directly challenge the legality of a legislation before the
constitutional court (e.g. PL, DE).
In MT, the constitution provides for an “
actio popularis”, that under certain conditions also
seems to allow to directly challenge a legislative act that infringes EU law.
Does the legal order of your Member State provide for a specific claim/legal procedure
in cases where individuals/investors seek reparation for damages/losses resulting
from the adoption of a legislative act (see above question) and is that procedure also
available to a cross-border investor (legal standing of individuals including foreign
EU investors)?
It seems that in most Member States, there is no such remedy, as public liability claims are based
on the principles of tort law and sanction the wrongdoing (tort/fault) of individuals in the
exercise of their state powers. Such a liability against the state does not apply to acts of the
parliament or to acts of the national government, unless these acts have been annulled by a court
(e.g. SE).
Once a law has been annulled by the national courts (for example because it breaches EU law),
the investor can launch civil proceedings before a national civil court (e.g. PL). In SE, when an
individual or an entity wants to claim damages from the government, it can chose to either go to
the courts, or to have the case settled by Justice Chancellor (JK). The claim settlement at the JK
is done on a voluntary basis and if the individual is not satisfied with the JK decision, it still can
bring the case to court. In contrast, in DE, as a rule, compensation for damages resulting from a
legislative act that has been annulled by a responsible court cannot be claimed before a court.
Compensation for damages caused by legislative acts must first be regulated in another
legislative act.
In how many cases has your Member State been a respondent in a State liability claim
for damages caused by a national measure in breach of EU law (“Francovich based
claim”) and in how many cases have damages been awarded? (please add case
references if possible)
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Most responding Member States do not seem to have overviews/statistics as to their numbers of
“
Francovich based claims” and do not seem to be in a position to answer that question. However,
to give an indication of the frequency, PL could report around 20 cases of damage claims
specifically against the adoption of a legislative act incompatible with the PL constitution,
International Law or EU law for the period of 2019, in addition to an undetermined amount of
cases where conformity of national measures with EU law was examined as one of the elements
of the proceedings.
Does the legal order of your Member State provide a procedure to seek judicial interim
protection from a challenged state measure (for example because the state measure
is allegedly in breach of EU law), for example in case the execution of that state
measure is likely to cause imminent and irreversible damage to the investment?
Most replying Member States seem to provide some possibility of interim protection, for
instance in the form of an injunction, temporary measures, suspensory effect of the challenged
measure which the claimant can seek before the responsible national court (e.g. BG, CZ, DE, FR,
ES, FI, EE, HU, LV, NL, PL, PT, SK and MT). Not all Member States provide information in
response to this question.
Most Member States refer to interim measures regarding administrative measures, but some
Member States also specify that their laws provide for interim measures regarding challenged
judicial decisions (e.g. BG) and legislative measures (e.g. SK). For instance, the Constitutional
Court may suspend application of law in case it threatens human rights or there is a threat of
great economic damage (SK).
In DE, except in the cases defined by law, if an investor challenges an administrative decision in
the pre-judicial administrative review, this suspends the enforceability of the administrative act
until the court renders its final decision. While it seems that in some Member States interim
measures are not generally available, in some areas, a challenged decision of an authority cannot
be enforced during the trial on the legality of the decision (e.g. SE).
Some Member States distinguish between individual and general administrative acts and rules on
interim measures may differ in these scenarios. For instance, challenging an individual
administrative act suspends its application (subject to some exceptions) while the challenge of a
general one does not suspend its enforcement, unless the court rules the opposite (e.g. BG).
Some Member States refer to specific conditions for interim protection against state measures to
be granted, such as disproportionate prejudice to the person affected (e.g. MT, HU), or
requirement of a security (e.g. HU, SK). One responding Member State specifies that interim
measures are adopted in expedited judicial proceedings (e.g. DE), while most responding
Member States do not specify whether expedited proceedings for interim are available.
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The possibility to seek effective interim protection can be impaired in cases where the
investor has no legal standing to challenge a directly applicable general rule before the
responsible national court (see IV.1.1 and IV.1.2.).
THE GOOD ADMINISTRATION PRINCIPLE APPLICABLE IN YOUR
MEMBER STATE
The good administration principle is generally implemented in national laws. Its
implementation is often accompanied by other related principles such as legality, equality
before the law, duty of care, impartiality, effectiveness, transparency and good governance.
Does the legal order of your Member State provide specific rules that ensure the
right to be heard before administrative authorities when taking individual
measures affecting investments including cross-border ones?
Some national laws ensure the affected persons the
possibility to provide views during
administrative proceedings
(e.g. BE, SE, BG, FR). Different rules are put in place to facilitate
such submissions: for instance, notification of commencement of procedure (e.g. BG, FR);
enabling access at all stages of the procedure (e.g. BE, HU), acceptance of submission in
suitable form, including oral submissions (e.g. BE); opportunity to submit evidence and
provide statements or written objections (e.g. BG, LV, SK); permission to use mother tongue
or intermediary language (HU).
A number of Member States’ laws contain a requirement
for competent authorities to ask for
input and to invite individually affected persons to express views in particular as regards
unfavourable decisions (e.g. DE, EL, LV, EE, NL). This can be accompanied by an
obligation on the authority to ascertain the facts on its own initiative (e.g. NL, SK, CZ);
The right to be heard can be specified by further requirements regarding the procedure: the
right of access to information and administrative documents (e.g. EL, BG); a requirement to
consider the views of the affected person in the reasoning of the decision (see V.2 below),
conduct proceedings without unnecessary costs to the parties (e.g. CZ)
Certain exceptions to the right to be heard are provided in some national laws on different
grounds: no necessity (SE); urgency, security grounds (e.g. LV, PT); when parties already
submitted evidence before (PT). Additional requirements may apply in case competent
authorities invoke an exception, such as the need to state reasons for any exception to hearing
(PT).
Some national laws also provide for specific rules on the right to be heard of third parties
unfavourably concerned by an administrative decision during the proceedings or by means of
legal standing to bring an action for judicial review of a decision that has an impact on third
parties not involved in proceedings (e.g. LV, LT, PT); special rules on public consultation
when number of third parties is too high (e.g.PT).
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Does the legal order of your Member State provide specific rules on the obligation to
motivate an administrative decision (that might have a negative impact on an
investment)?
Member States’ laws generally contain a requirement to motivate individual administrative
decisions, especially where the rights of interested parties are affected unfavourably, with
some limited exceptions to this rule in different Member States. Requirements on motivation
of administrative decisions of general application also exist in some Member States (e.g. FR,
BG, RO).
The rules differ as regards the approaches to ensure the quality of the decision and content of
the motivation, in particular for unfavourable individual decisions. A number of national laws
provide general requirements on the quality of the motivation, e.g. that the decision is
comprehensible, with sufficient reasoning and clarity on the basis of which the decision was
based (e.g. BE, MT, SE, NL, BG). A number of national laws specify further the elements the
decisions should include, notably the factual and legal grounds on which the decision is based
(e.g. EE, PL, BG, SK, NL, HU). Further elements in some Member States include
consideration of the views of the person concerned in the motivation of the decision (e.g. LV,
EL, SK, HU); elaborating on considerations of necessity, suitability, proportionality of the
decision (LV), stating clearly rights and duties, next steps or possibilities of appeal (e.g. LT,
CZ, HU); lacking or poor quality of reasoning is ground for annulment (BG); a requirement
on consistency with similar decisions as there must not be unsubstantiated differences in
decisions on similar cases (CZ); requirement to indicate the procedural costs accrued (HU).
Some national laws contain exceptions to the requirement to motivate decisions, which vary
as regards the grounds: no significant impact of decision (SE); security (PL, LV); urgency
(LV), if a previous decision on same matter has been issued in previous two years (PT).
Is a tacit refusal by administrative authorities possible under your national law? If
yes, in which cases?
Tacit refusal is possible in some Member States in general (e.g. BE, MT, BG). In other
Member States it is possible in specific scenarios (e.g. SE, PT, SK, HU). Furthermore, HU
for instance distinguishes between “legitimate silence” which can be exercised in specified
cases and “illegal silence”, when the authority exceeds the administrative time limit, without
triggering automatic rejection of the application. Tacit refusal is not possible in other Member
States (e.g. DE, LV, EE, LT, NL, PL). Some Member States for instance, have introduced
tacit consent as a general principle (e.g. FR) with tacit refusal being the exception (e.g. FR).
Does the legal order of your Member State provide for specific timeframes for
administrative decisions? Are there rules in the event that an administrative
authority does not decide in a given timeframe? (e.g. an authorisation request
that has not been formally refused within six month is deemed by law to have
been granted/refused)?
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National laws generally provide for a
reasonable time requirement for the completion of
administrative procedures. A number of Member States specify concrete time-frames, which
may apply to administrative decisions in general or to specific types of decisions. Member
States provide for different safeguards to ensure that this general requirement is implemented.
A number of Member States indicate that the general timeframe for adoption of
administrative decisions is between one week and one month (e.g. LT, LV, PL, PT, BG, SK).
The time-frame in other Member States varies between 6 weeks (NL) or 2 months (FR, MT,
HU, PT for complex cases) and up to 6 months (SE). Some Member States seem to have
different time-frames depending on decision types (RO).
It should be noted though that some Member States have also put in place specific shorter
time-frames for certain types of procedures or administrative decisions, such as
authorisations. They include for instance, decisions on authorisations for strategic
investments (EL - 45 days), permits (EE - 30 days), and requests for information and
certificates or other documents (EL - 60 days). Summary procedures may take significantly
shorter compared to regular ones (HU - 8 days instead of 2 months); automatic decision
making (HU - 24 hours).
Some specific rules on extension exist: e.g. by the same period (30 days) or by decision of
appellate administrative body (SK).
The consequences of delay differ and the next steps the affected person can take include:
right to request response (e.g. SE, PT), which should be due within a shorter predefined
period (SE); absence of response within prescribed time-frame is tacit refusal which can be
challenged in court (e.g. MT, BG); tacit approval in general (e.g. EE) or in exceptional cases
(e.g. BG); administration to indicate alternative deadline to person concerned (BE); action for
damages (PL, MT); right to administrative or judicial review (BG, DE, MT, PT, FR, SK); file
a complaint with a specialized administrative body (PT).
In your Member State, is an explicit decision by the competent administrative
authority (where relevant, after hierarchical administrative review) a
precondition for an investor/individual to seek judicial redress?
An explicit decision can be a precondition for an appeal for instance in SE, with special
requirements for authority to issue a decision within a given time-frame. In HU for instance,
in case of delay the competent authority has to reimburse the party the amount corresponding
to the fees or charges payable for carrying out the procedure or, in their absence, pay a
predefined amount to the applicant party who is also exempted from paying any procedural
costs. In other Member States actions for judicial review (or administrative appeal if relevant)
can also be brought in the absence of a decision on grounds of failure to act (e.g. DE, LT, LV,
NL, EE, SK, CZ, HU). An alternative solution is empowering another administrative
authority to take the decision (e.g. EL, HU) or lodging a complaint with an independent body,
such as Ombudsman (SE).
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NATIONAL
DISPUTE
PREVENTION/OUT-OF-COURT
DISPUTE
RESOLUTION MECHANISMS
In your Member State, is there a national body or problem-solving mechanism
(including national investment promotion agencies) which can provide support
to investors in preventing/resolving disputes with the national administration in
individual cases in the pre-litigation phase? - If yes, please describe its way of
functioning and its powers.
Some Member States refer to SOLVIT as the most relevant mechanism in this context (e.g.
SE, DE).
A number of Member States provide for other specific mechanisms (e.g. negotiation,
mediation, conciliation) to prevent/resolve disputes between investors and national
administrations in the pre-litigation phase, possibly restricted only to some areas where
administrative settlement is possible (e.g. LV, ES, BE, EL). In other Member States, out-of-
court settlement may be allowed under the general legal framework (e.g. DE, LV, FR, HU,
PT). Relevant out-of-court mechanisms do not seem available for administrative disputes in
other Member States (e.g. LT, PL, SE, MT).
Some Member States provide additional investment specific mechanisms, which differ in
respect of their competences, functions and level of sophistication. In some Member States,
the national investment promotion agencies can play an intermediary role and help settle
disputes with other competent authorities. This includes for instance a specialised
Ombudsman service for investors in EL. Another type of support is intermediary assistance in
communication with competent authorities (e.g. BE, DE, LT, PL, EE, SK). In some Member
States, there are services within the competent Ministry that may act as an intermediary in
case of potential disputes with public bodies (e.g. CZ, RO).
In your Member State, is there a feed-back mechanism and/or a follow-up
mechanism in case it becomes apparent from the nature or the number of
individual cases that there is a more general concern with some rules/ (any type
of structured dialogue with investors/stakeholders or feedback on local/regional
investment environment issues to responsible national ministry)?
Some Member States refer to specific institutionalized mechanisms for regular feedback and
follow-up. These mechanisms differ as regards the set-up, participants and tasks, but in
general aim to enable the collection of feedback on practical investor concerns, possibly also
facilitating the follow-up to the identified issues. The different mechanisms include for
instance: involvement of umbrella organizations in legislative processes as long as their fields
of interest are affected (e.g. DE, BG); analysis and follow-up to statistics on recurring
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problems from SOLVIT (e.g. DE, NL); systematic collection of information on difficulties
investors face and organising “after care events” for dialogue between investors and political
actors (EL); structured dialogue by investment promotion agency with investors including
regular three-monthly reports and an annual report (BG); high level meetings of foreign
investors and the government (LV); the “national economic council” - a round table format
for structured dialogue between competent authorities and specified stakeholder organisations
and tripartite social dialogue (BG); permanent monitoring investment committee, supporting
projects considered especially relevant for the national economy (PT) and ad hoc discussions
on specific concerns (SK).
Some Member States do not indicate institutionalized structured feedback and follow-up
mechanisms, which investors could use to report general concerns to the government on a
regular basis (e.g. BE, SE, NL, PL, CZ, RO, HU). Some of these Member States specify that
they have designated contact points, e.g. in the competent ministries, which investors can
contact informally (e.g. RO, CZ).
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