Competence to conclude international investment agreements - Exclusive to the European Union or vested in Member States?

Table of Contents

I. The Lisbon Treaty - General Introduction

a) Reform of the Union - a long and tricky road

b) Contractual Basis after the ToL

c) Legal Personality of the European Union

d) The new Foreign Direct Investment Competence

II. Investment

a) Foreign Direct Investment

b) Portfolio Investment

c) Market Access- and Post Market Access Phase

d) Investment Protection Instruments

III. Investment Activities of the Member States

a) Bilateral Investment Agreements

b) Key Common Provisions of BITs

IV. Investment Competences of the EU/EC

a) Foreign Investment Competence in the Treaties and in Case-Law

b) Common Commercial Policy (CCP), Art. 133 EC-T

c) Freedom of Establishment, Art. 47(2) and Art. 48 EC-T

d) Freedom of Capital and Payment

e) Mixed Agreements

f) Investment Provisions in existing Agreements

V. The Reform of the CCP

VI. The Scope of FDI in Art. 207 TFEU

a) Covered Types of Investment

b) Covered Stages of Investment

c) Covered Investment Protection Instruments

d) Protection against Expropriation

e) Dispute Settlement

f) General Limitation by Art. 207 (6) TFEU

VII. Procedures and Voting

a) Framework-Regulations and Negotiation Procedure

b) Voting Rules

VIII. Consequences and Conclusion

Objectives and Topics

This paper examines the impact of the Lisbon Treaty on the European Union's external competences regarding foreign direct investment (FDI). It addresses the transition from a system where investment agreements were largely the responsibility of Member States to a new framework under the Common Commercial Policy (CCP), analyzing the legal implications and potential conflicts.

• The transition of investment competence from Member States to the European Union.
• The definition and scope of Foreign Direct Investment (FDI) within the EU legal framework.
• The role of Bilateral Investment Treaties (BITs) and their standard provisions.
• The interpretation of Article 207 of the Treaty on the Functioning of the European Union (TFEU).
• Challenges regarding mixed agreements and the future of investment dispute settlement.

Excerpt from the book

Summary of Chapters

I. The Lisbon Treaty - General Introduction: Provides an overview of the treaty's historical context, the contractual modifications, and the EU's evolving external competence.

II. Investment: Defines key concepts such as foreign direct investment, portfolio investment, and investment protection instruments.

III. Investment Activities of the Member States: Analyzes the traditional reliance on Bilateral Investment Treaties (BITs) and their common standard provisions.

IV. Investment Competences of the EU/EC: Discusses the pre-Lisbon legal landscape, including the Common Commercial Policy and freedom of movement provisions.

V. The Reform of the CCP: Details the integration of FDI into the Common Commercial Policy under the new treaty architecture.

VI. The Scope of FDI in Art. 207 TFEU: Examines how the new treaty provisions define and limit the Union's authority over various investment aspects.

VII. Procedures and Voting: Explores the administrative shifts in negotiation and voting, including the roles of the Parliament and Council.

VIII. Consequences and Conclusion: Summarizes the shift toward exclusive EU competence while acknowledging remaining uncertainties and the likely necessity of continued cooperation.

Keywords

Lisbon Treaty, European Union, Foreign Direct Investment, Common Commercial Policy, TFEU, Investment Protection, Bilateral Investment Treaties, BITs, Market Access, Dispute Settlement, Competence, External Relations, European Court of Justice, Expropriation, Mixed Agreements

Frequently Asked Questions

What is the core focus of this research?

This research analyzes how the Lisbon Treaty alters the legal landscape for international investment agreements, specifically focusing on whether the competence for concluding such agreements is now exclusive to the European Union.

What are the primary themes discussed?

The main themes include the definition of FDI, the transition of power from Member States to the EU, the legal structure of the Common Commercial Policy (CCP), and the implications for existing Bilateral Investment Treaties.

What is the central research question?

The work seeks to determine if the competence to conclude international investment agreements has become exclusively vested in the European Union or if it remains, at least partially, with the Member States.

Which scientific method is applied?

The author uses a legal-dogmatic approach, analyzing treaty provisions (TFEU, TEU), secondary legislation, and relevant case law from the European Court of Justice to evaluate the scope of new competencies.

What is the focus of the main section of the paper?

The main section evaluates the specific changes introduced by Article 207 TFEU and assesses how these amendments redefine the stages, types, and protection instruments of foreign investment relative to the EU's external action.

Which keywords best characterize this work?

Key terms include Lisbon Treaty, Foreign Direct Investment (FDI), Common Commercial Policy (CCP), Investment Protection, and TFEU.

How does the author view the role of mixed agreements under the new treaty?

The author suggests that despite the broadening of EU competence, comprehensive investment agreements may still require the continued participation of Member States through mixed agreements and intensive cooperation.

How does the paper address the conflict between BITs and EU law?

It highlights that existing Member State BITs may need to be renegotiated or adjusted to comply with the new exclusive competences of the EU, drawing analogies to Article 351 TFEU.

What impact does the "General Limitation" by Article 207(6) TFEU have?

The author notes that this provision creates significant confusion, as it formally includes FDI under the CCP while simultaneously stating that it should not change the existing delimitation of competences between the Union and Member States.