Environmental Engineering Reference
In-Depth Information
3.3.1 Change Due to the Treaty of Lisbon
Since the Treaty of Lisbon came into force, there have been doubts about the BIT
competence of the EU member states. Art. 207(1) of the TFEU deals with the
common commercial policy of the EU. Art. 207(1) of the TFEU stipulates that:
die
Handelsaspekte des geistigen Eigentums, die ausl¨ndischen Direktinvestitionen
'
60
are part of the common commercial policy. This is a major shift of competence
within investment law as, for the first time, a supranational organization can set up
investment agreements with third states for its members. It was surprising that this
change of competence involved very little prior preparation by the EU and its
member states.
61
The EU member states even seemed to be surprised about the
range of the transfer of competence.
62
Based on the Treaty of Lisbon, the EU
already states that it has exclusive competence concerning investments.
63
The EU
also actively uses its new competence as it has been working towards an EU
investment policy for the past few years and it includes investment sections within
border agreements.
64
The new Transatlantic Trade and Investment Partnership with
the USA (negotiations started in 2013) illustrates that the EU is actively participat-
ing in the field of investment.
65
Besides the problematic consequences of this change, the scope of the new
European competence is also unclear. Based on the wording of Art. 207 (1) of the
TFEU, the EU only has competence regarding FDIs, which would exclude all
portfolio investments. This opinion is not shared by the EU institutions, which
consider all kinds of investments to be within their new competence. This is not
undisputed as some legal authors claim that decisions concerning portfolio invest-
ments need to be ratified by EU member states,
66
but at the same time it is highly
likely that the ECJ will adopt the view of the EU institutions.
67
Other legal authors
even claim that Art. 207(1) of the TFEU does not cover the protection of property.
68
This also corresponds to Art. 345 of the TFEU, which stipulates that:
'
(t)he treaties
shall in no way prejudice the rules in Member States governing the system of
'
60
Not as clear in the English version of the contract, where it is mentioned that “commercial
aspects of intellectual property, foreign direct investment” are part of the common commercial
policy.
61
Seattle to Brussels Network (
2010
), 12.
62
Reinisch (
2014
), 111 (115).
63
European Commission (
2014
) Commission to consult European public on provisions in EU-US
trade deal on investment and investor-state dispute settlement; There are different perceptions
within literature, in: Reinisch (
2014
), 111 (117-118 and 125).
64
Tams (
2014
).
65
European Commission (
2014
) Commission to consult European public on provisions in EU-US
trade deal on investment and investor-state dispute settlement.
66
Seattle to Brussels Network (
2010
), 13.
67
Reinisch (
2014
), 111 (136-141).
68
Krajewski (
2005
), 91 (114); Already Article 133 ECT did not include FDIs, in: Osteneck in
Schwarze (
2009
), Art. 133 para 16; Johannsen (
2009
), 5 (16-17); Griebel (
2009
), 469 (471).
