- Context and purpose of the new Regulation
Today’s Official Journal of the European Union finally publishes the long-awaited Regulation (EU) 2026/1386, which introduces a new legal framework for the control of foreign investments in the European Union, with the aim of strengthening the protection of security and public order in a context marked by the increasing complexity of international transactions. the sophistication of investment structures and the increase in risks of a geopolitical nature.
Compared to the model previously established by Regulation (EU) 2019/452 (now repealed), which was based on a mechanism essentially for coordination between Member States, the new regulatory text moves towards mandatory minimum harmonisation, establishing common substantive and procedural requirements without depriving Member States of their ability to extend control in their respective domestic systems.
- Evolution of the system: from coordination to minimum harmonisation
The main transformation introduced by Regulation (EU) 2026/1386 lies in the transition from a decentralised system to a more structured and homogeneous, although not fully uniform, European framework.
| Appearance | Regulation (EU) 2019/452 | Regulation (EU) 2026/1386 |
| Existence of a national mechanism | Optional | Mandatory in all Member States |
| Nature of the EU system | Coordination | Minimum substantive and procedural harmonisation |
| Prior Authorization | Not required at EU level | Enforceable in certain sectors according to national frameworks |
It should be emphasised that the harmonisation introduced is minimal, which means that Member States continue to have a significant margin to define the material scope of their national mechanisms, especially as regards additional sectors or application thresholds.
- Scope of application and type of operations
The new Regulation expands and clarifies the scope of operations subject to control. In particular, it highlights the express inclusion of investments made within the Union through corporate structures controlled, directly or indirectly, by investors from third countries, which responds to the objective of avoiding planning schemes designed to circumvent investor control.
Likewise, the text maintains the exclusion of investments of a purely financial nature that do not entail effective influence on the management or control of the recipient company, while reinforcing the analysis of the concept of control and the ultimate beneficiary as determining elements in the evaluation of operations.
- Strategic sectors and critical technologies
The Regulation sets out a minimum core of sectors in which Member States must provide for control mechanisms. These include traditionally sensitive areas – such as defence or critical infrastructures – along with others that reflect technological and economic developments, such as semiconductors, artificial intelligence or quantum technologies, as well as certain activities linked to the healthcare sector and critical raw materials.
The list of sectors is articulated by means of annexes, which are entrusted to the Commission by means of delegated acts, allowing for flexible adaptation to the changing strategic environment. It should be emphasised that the Regulation sets a minimum standard that Member States can extend.
- Procedure and deadlines
The new framework introduces greater procedural homogeneity, particularly with regard to the principles that should govern national mechanisms, including requirements of transparency, reasoning and effective judicial protection.
As for the processing calendar, an initial analysis period of around 45 days is expected from the complete submission of the application. This period must be interpreted as an initial reference that may be suspended or interrupted depending on the complexity of the file or the need to obtain additional information.
It should also be pointed out that any requirement for prior authorisation derives from the specific configuration of the national mechanisms within the framework of the Regulation, without there being a centralised authorisation procedure at European level.
- Strengthening the cooperation mechanism
The Regulation consolidates and strengthens the cooperation mechanism between Member States and the European Commission, imposing notification obligations in certain cases and promoting structured coordination in cross-border operations.
Although the Commission’s opinions formally retain their non-binding nature, the new framework significantly increases their practical relevance, in that it requires Member States to take due account of these opinions and justify decisions that deviate from them.
- Transparency and oversight
The Regulation introduces enhanced transparency obligations, taking the form of regular reporting by Member States, the publication of interpretative guidance and the creation of a European database to centralise information on foreign investments subject to control.
This increased transparency helps to improve the predictability of the system, but also leads to a greater degree of visibility of operations for European and national authorities.
- Comparison with the current Spanish regime
From the Spanish perspective, the impact of the Regulation must be analysed in relation to the regime currently established, mainly through Article 7 bis of Law 19/2003, incorporated and developed from Royal Decree-Law 34/2020 and subsequent regulations.
| Element | Current Spanish regime | Regulation (EU) 2026/1386 | Practical impact |
| Nature of the system | Consolidated pre-control | Mandatory minimum harmonisation | Spain starts with an advanced system |
| Subjective scope | Third countries + certain intra-EU countries | Express inclusion of controlled intra-EU structures | Reinforcement of criteria already applied |
| Covered Operations | ≥10% or control | Harmonized approach to effective control | Increased scrutiny of indirect structures |
| Sectors | Extensive national catalogue | Expandable harmonized minimum core | Convergence trend |
| Thresholds | Defined in national regulations | Not harmonised at EU level | Maintaining national discretion |
| Authorization | Mandatory in assessed cases | Enforceable under national systems | Continuity with adjustments |
| Deadlines | Non-uniform | Reference to initial harmonised deadlines | Pressure for standardization |
| EU cooperation | Under regime 2019/452 | Significant reinforcement | Increased complexity in multilateral operations |
| Role of the Commission | Limited | Reinforced (non-binding) | Greater practical influence |
| Transparency | Limited | Increased reporting and databases | Greater predictability |
- Specific impact on the aerospace and defense sectors
The new Regulation has a particularly relevant impact on the aerospace and defence sectors, traditionally considered strategic both at national and European level. The explicit inclusion of defence, dual-use technologies and various advanced technologies in the minimum core of sectors subject to control reinforces an already demanding regulatory environment, with an expected intensification of scrutiny on operations affecting critical assets, sensitive industrial capabilities or key technologies.
In this context, greater control of investments related to aircraft equipment manufacturers, system suppliers, companies linked to space programmes or associated critical infrastructures, as well as those developing dual technologies with potential military or security applications, is foreseeable.
From a practical perspective, the strengthening of the European cooperation mechanism is particularly relevant in these sectors, which are characterised by transnational supply chains and industrial programmes at European level. This will foreseeably imply greater coordination between authorities of different Member States and an increase in the Commission’s intervention in operations that, although having a national component, may have effects throughout the Union.
In the case of Spain, where the aerospace and defence sector has a significant weight and a high degree of internationalisation, the impact of the Regulation is expected to result in an increase in regulatory complexity in transactions with investors from third countries, especially in transactions structured through several jurisdictions or involving sensitive technologies.
- Entry into force
The Regulation will apply from 17 January 2028, with a transitional period to facilitate the adaptation of Member States and their administrative structures.
- Final considerations
Regulation (EU) 2026/1386 represents a significant evolution of the European framework for the control of foreign investments, by introducing a mandatory minimum level of harmonisation that, without eliminating national competences, significantly reduces the fragmentation that has existed to date.
From the investor’s perspective, the new regime implies an increase in regulatory complexity and the need for advance planning, especially in operations with a cross-border dimension or affecting strategic sectors. In Spain, where the control system is already consolidated, the impact will be fundamentally of integration into the European scheme, with special emphasis on coordination with other jurisdictions and on the management of more structured regulatory processes at the Union level.