FDI Filing in Germany: A Practical Checklist

FDI filing in Germany: the short answer

An FDI filing with the Federal Ministry for Economic Affairs and Energy (BMWE) is mandatory where a foreign investor acquires a stake at or above the relevant voting-rights threshold in a German company active in a listed security-relevant sector. In those cases, the transaction may not be completed before clearance, and gun-jumping can be a criminal offence. Outside the listed sectors, non-EU investors acquiring 25 per cent or more of any German company can be reviewed without a filing obligation, and many apply voluntarily for a certificate of non-objection to obtain legal certainty. Phase 1 lasts two months; phase 2 lasts four months from complete documentation, with possible extensions.

This checklist reflects the Foreign Trade and Payments Act (Außenwirtschaftsgesetz, AWG) and Ordinance (Außenwirtschaftsverordnung, AWV) as published in November 2026. Germany is preparing a new Investment Screening Act that would change thresholds and periods, but until it is adopted and in force, the rules below determine whether an FDI filing is required.

Step 1: identify the procedure that applies

German investment screening has two tracks with different investor definitions, thresholds and consequences.

The 27 listed sectors in § 55a(1) AWV range from operators of critical infrastructure and providers of sector-specific software to cloud services, media, AI, autonomous vehicles, robotics, semiconductors, quantum technology, critical raw materials and large agricultural holdings. The sector descriptions are technical and must be read carefully against the target's actual activities, including past activities where know-how is retained.

Step 2: calculate voting rights correctly

Thresholds refer to the voting rights the acquirer directly or indirectly holds after the transaction. Section 56 AWV contains detailed attribution rules.

• Indirect acquisitions. An acquisition at holding level counts if the acquirer reaches the relevant threshold in each intermediate company up to the German target.
• Additional acquisitions. Once the entry threshold has been passed, further acquisitions are again reviewable when they reach the additional thresholds in § 56(2) AWV: 20, 25, 40, 50 or 75 per cent for the 10 per cent sectors; 25, 40, 50 or 75 per cent for the 20 per cent sectors; and 40, 50 or 75 per cent in cross-sectoral review.
• Atypical control. Additional board seats, veto rights over strategic decisions or information rights can make a smaller stake reviewable if they give influence equivalent to the relevant threshold (§ 56(3) AWV).
• Acting in concert. Voting rights of third parties are attributed if there is an agreement on the joint exercise of voting rights, and joint exercise is presumed for state-linked investors from the same third country (§ 56(4) AWV).

Asset deals are caught as well. The acquisition of a separable business unit or of all essential operating assets of a German company or unit is treated as an acquisition of the company (§ 55(1a) AWV).

Step 3: prepare and submit the FDI filing

For listed sectors, the direct acquirer must notify the BMWE without undue delay after signing the purchase agreement; for public offers, after publication of the decision to make the offer (§ 55a(4) AWV). The ministry specifies the required information by general order published in the Federal Gazette and provides electronic forms. A complete FDI filing typically includes:

• a description of the transaction, its structure, timetable and consideration;
• the full ownership chain of the acquirer up to the ultimate beneficial owners, including any state ownership, financing or influence;
• the business activities of the acquirer and the target, with the German target's sector classification under § 55a AWV;
• information on the acquirer's other investments in Germany and the EU;
• personal data on board members and key individuals as required by the general order.

Certificate of non-objection

Where no FDI filing is mandatory but the deal is reviewable in cross-sectoral review, the acquirer can apply for a certificate of non-objection (Unbedenklichkeitsbescheinigung) under § 58 AWV. The certificate is deemed granted if the ministry does not open a review within two months of receiving the application. Sellers often insist on it as a closing condition because it removes the risk of an ex officio review, which can otherwise be opened for up to five years after signing.

Step 4: plan the review periods

The periods in § 14a AWG structure the timetable:

1. Phase 1. The ministry has two months from learning of the signing, which includes receipt of the FDI filing or the application, to open an in-depth review. If it does not, clearance or the certificate is deemed granted (§ 58(2), § 61 AWV).
2. Phase 2. If a review is opened, the ministry has four months from receipt of the complete documents to prohibit the deal or impose conditions.
3. Extensions. Phase 2 can be extended by three months in cases of particular factual or legal difficulty and by a further month where defence interests are especially affected and the Defence Ministry says so (§ 14a(4) AWG). Periods can also be extended with the consent of the acquirer and the seller (§ 14a(5) AWG).
4. Suspension. Phase 2 is suspended while the ministry waits for requested information or negotiates a public-law contract with the parties (§ 14a(6) AWG).

In practice, simple filings in listed sectors are often cleared within phase 1, while phase 2 cases with mitigation negotiations can take six months or longer.

Step 5: respect the standstill

For notifiable transactions, the closing is provisionally invalid (schwebend unwirksam) until clearance (§ 15(3) AWG). In addition, § 15(4) AWG prohibits the parties during the review from allowing the acquirer to exercise voting rights directly or indirectly and from giving the acquirer company-related information on the security-relevant areas of the target or information the ministry has designated as significant. Breaches of these prohibitions are criminal offences under § 18(1b) AWG, punishable by imprisonment of up to five years or a fine.

For non-notifiable but reviewable deals, the purchase agreement is subject to the condition subsequent that the ministry prohibits the acquisition within the statutory periods (§ 15(2) AWG). Closing is possible, but a later prohibition could require unwinding.

Step 6: negotiate conditions and allocate risk

The ministry can prohibit the acquisition or issue orders to protect public order or security (§ 59 AWV), and it often prefers public-law contracts or orders with mitigation measures, such as supply commitments, data and IT separation, security officers, restrictions on information flows or approval rights for site relocations. To enforce a prohibition, it can restrict voting rights or appoint a trustee to unwind a completed acquisition (§ 59(3) AWV).

Purchase agreements should therefore address:

• FDI clearance as a condition precedent, with a definition covering deemed clearance and certificates;
• cooperation and information covenants, including access to the acquirer's ownership data;
• a standard for accepting mitigation measures ("hell or high water" or a defined burden cap);
• a long-stop date that accommodates phase 2 and extensions;
• clean-team and information protocols that comply with § 15(4) AWG during the review.

Common pitfalls in German FDI filings

Most problems in practice do not arise from complex security concerns but from avoidable mistakes in the process. The following issues recur.

• Misreading the sector list. Sector descriptions refer to specific legal definitions, for example critical facilities under the KRITIS rules or goods in Annex I to the Dual-Use Regulation. A target that supplies a single critical component to an infrastructure operator may be caught even if its main business seems unrelated.
• Overlooking indirect acquisitions. A change of control at the level of a foreign parent can require an FDI filing in Germany if the group holds a stake in a German company in a listed sector, even if no German entity is party to the transaction.
• Treating EU vehicles as EU investors. In cross-sectoral review, the ministry looks through acquisition vehicles. An EU-incorporated buyer can still be a non-EU investor if it is controlled from outside the Union, and § 55(2) AWV targets circumvention structures without substantive EU presence.
• Information flows before clearance. Integration planning and data-room access after signing must respect the information prohibitions in § 15(4) AWG. Clean-team rules should be in place on the day of signing.
• Ignoring parallel regimes. Merger control, the EU Foreign Subsidies Regulation and screening in other Member States run in parallel and have their own standstill rules and timetables.

Illustration: a hypothetical Singapore-based fund agrees to buy a German software company that supplies control-system software to municipal water utilities. The software qualifies as sector-specific software under § 55a(1) AWV, so a mandatory FDI filing is triggered from 10 per cent of the voting rights. The parties sign, file immediately, set up a clean team and include a six-month long-stop date with an automatic extension if phase 2 is opened. If the ministry asks for IT security commitments, the purchase agreement already defines which measures the buyer must accept.

FDI filing checklist at a glance

How TRW & Co helps with an FDI filing

We advise foreign investors, sellers and German targets on every step of an FDI filing. We analyse whether the target falls within the listed sectors, calculate voting rights and attribution, prepare filings and applications for certificates of non-objection, handle the ministry's information requests and negotiate mitigation agreements. On the transaction side, we draft regulatory conditions, covenants and clean-team arrangements that respect the standstill. Our work connects with our foreign investment control, merger control and M&A practices. See also our notes on the planned Investment Screening Act and the revised EU FDI Screening Regulation. For a filing assessment, contact us.