The Wet veiligheidstoets investeringen, fusies en overnames (“Investments, Mergers and Acquisitions (Security Screening) Act) – the Vifo Act”) entered into force on 1 June 2023. The Act gives the Minister of Economic Affairs the power to submit M&A transactions (both full acquisitions and minority investments) to a preliminary review of potential risks to national security, and to block them if necessary.
The Vifo Act contains a number of definitions and open standards that regularly give rise to questions in practice. One of them is the concept of ‘manager of a corporate campus’. New guidance on this term was recently published, providing more clarity on the corporate campuses in the Netherlands that may be in scope.
Manager of a corporate campus
The Vifo Act affects investments in or acquisitions of companies based in the Netherlands that qualify as (i) vital providers; (ii) companies active in the field of sensitive technology, including highly sensitive technology; or (iii) managers of certain corporate campuses. An explanation of the first two categories can be found in this blog.
The exact meaning of a ‘manager of a corporate campus’ was unclear until recently, partly because the term ‘corporate campus’ is not addressed in the Explanatory Memorandum. The reason for this is that this category was added to the Vifo Act at the last minute – at the request of the Lower House – in response to the investment in the High Tech Campus Eindhoven by a Singapore state-owned company. It was therefore in any event clear that the legislature had this particular campus in mind, but it was not clear which other campuses in the Netherlands might fall within the scope of the Vifo Act.
The Ministry of Economic Affairs (“the Ministry”) published the ‘2023 Campuses Report’ in May 2024. In that report, the Ministry identifies the developments of various campuses in the Netherlands. The report focuses on the role of campuses in Dutch research and innovation ecosystems. The Bureau Toetsing Investeringen (Investment Screening Bureau) can use that report in the implementation of the Vifo Act. The Minister of Economic Affairs recently published a policy rule that further defines the legal concept of ‘manager of a business campus’. The report and the policy rule are addressed in this blog.
Ministry’s report on campuses
The report lists 30 campuses, divided into three groups: ‘mature campuses’, ‘growth campuses’ and ‘developing campuses’. This subdivision is based on four criteria:
- Degree of focus on R&D and/or technology-driven activities, whereby the presence of innovative companies on the campus is assessed.
- Physical high-quality establishment possibilities and research facilities, whereby the presence of mostly unique research facilities, such as clean room facilities, is assessed.
- Presence of substantial manifest knowledge carriers, whereby the presence of a main establishment of an R&D company or a large number of employees is assessed.
- Active open innovation: a soundly functioning ecosystem with a community and network of companies, knowledge institutions and other relevant players with an organisation that actively engages in collaborative relationships inside and outside the campus, knowledge valorisation, knowledge transfer, networking and business development.
According to the report, the Netherlands has 14 mature campuses. They include Amsterdam Science Park, Kennispark Twente, NL Space Campus, TU Delft Campus and Brightlands Chemelot Campus. Examples of growth campuses are the High Tech Systems Park in Hengelo and the Automotive Campus in Helmond. The Energy & Health Campus Europe in Petten and the Spoorzone Tilburg are examples of developing campuses.
Minister’s policy rule
With the recently published policy rule, the Minister seeks to clarify what should be understood by ‘manager of a business campus’. The reason for this is the legal uncertainty in interpreting the term in the context of supervision by the Investment Screening Bureau.
According to the policy rule, a ‘manager of a corporate campus’ within the meaning of the Vifo Act is deemed to exist if the following three cumulative requirements are met:
- the manager has an impact on the safety of the corporate campus, given its responsibility for directing one or more activities that are potentially sensitive to that safety;
- at least one company is active in the field of sensitive technology on the business campus for which it has that responsibility; and
- the corporate campus involves public-private cooperation in respect of technologies and applications of economic and strategic importance to the Netherlands.
The Minister has drawn up a score overview and risk matrix to assess whether management has an impact on the safety of a corporate campus (point (i)). Based on four dimensions (generic facilities, specific facilities, admission of ecosystem and programming of ecosystem), it is possible to determine whether the risk sensitivity is such as to constitute ‘management’.
A ‘mature’ campus as classified in the report is more likely to fall within the scope of the Vifo Act than, for instance, a ‘developing campus’, since a mature campus is more likely to be of economic and strategic importance to the Netherlands, given its size and the presence of unique research facilities. However, it cannot be ruled out that the manager of a ‘growth campus’ or ‘developing campus’ also falls within the scope of the Vifo Act.
In short, the policy rule combined with the report provides a number of starting points for assessing whether a manager of a corporate campus falls within the scope of the Vifo Act.
More information on the Vifo Act and other FDI-related questions can be found in this blog, this blog and this blog, or consult our information portal wetvifo.nl.
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