Procedural transparency in EU investment screening: an EU board of review for Member State screening decisions?

This article examines the applicable framework for procedural transparency under the EU Investment Screening Regulation and sets forth two arguments. First, with respect to Member State screening procedures, the Regulation cannot guarantee meaningful procedural transparency either at the administrative or judicial stage. Procedural transparency in investment screening is problematic because the screening relates to perceived threats to security or public order, which would be undermined by disclosure. However, a lack of procedural transparency is itself a problem that may result in factual mistakes, security overreach, and abuse, including the use of screening for security-unrelated purposes. Second, to address this conundrum, the article argues that the European Commission could play a role in mitigating the risks inherent in lack of procedural transparency by being given the power to audit or review ex post facto the screening decisions taken by the Member States. The article outlines how such a review mechanism might work in a way that would also satisfy investors’ right to recourse.