Environmental Engineering Reference
In-Depth Information
equitable treatment, protection against direct and indirect expropriation and
umbrella clauses should be part of any EU-BIT.
83
It says that the
EU
s future policy must also promote investment which is sustainable, respects the
environment (
'
) and encourages good quality working conditions in the enterprises
targeted by the investment.
84
...
In contrast to the European Commission, the European Parliament believes that
it will be difficult to maintain the protection level for investors involved in the new
EU-BITs as guaranteed under existing member state BITs (e.g. the need to protect
the state
'
s right to regulate).
85
The European Parliament also wants to exclude
speculative investments.
86
However, the European Commission has pointed out
that such a distinction would be difficult and that both forms should be part of the
notion of investment.
87
3.3.1.2 Regulation 1219/2012/EU
Due to the shift in competence, the EU decided to pass Regulation 1219/2012/EU to
clarify the future procedure concerning bilateral investment agreements (BIA) (Art.
1(1) of Regulation 1219/2012/EU). Although Regulation 1219/2012/EU covers
BIAs, this term encompasses BITs as No. 2 of the guiding principles to Regulation
1219/2012/EU provides a broad definition of BIAs. This is also illustrated by Art. 1
(2) of Regulation 1219/2012/EU, which mentions that BIAs encompass
any
agreement with a third country that contains provisions on investment protection
'
.
Within the guiding principles of Regulation 1219/2012/EU, the EU emphasizes
again that it has exclusive competence with respect to common commercial policy
(No. 1). It acknowledges that there are several BITs of EU member states (No. 4)
and underlines that BIAs remain binding under public international law and
'
will be
progressively replaced by agreements of the Union relating to the same subject
matter
'
(No. 5). According to No. 6, specifications and guarantees concerning
conditions of investments should be maintained in the interests of the investors
and member states until they are appropriately replaced. No. 7 highlights that
Regulation 1219/2012/EU applies to all BIAs signed prior to 01 December 2009
and lays down conditions for BIAs signed between 01 December 2009 and
09 January 2013 (No. 8). EU member states also have the power to take necessary
measures to adjust BITs if they are not in accordance with EU law (No. 11).
If the BIT of an EU member state was signed before 01 December 2009 and
should be maintained, the state must notify the respective BIT to the European
'
83
European Parliament (
2011
); Reinisch (
2014
), 111 (123).
84
European Parliament (
2011
).
85
European Parliament (
2011
).
86
European Parliament (
2011
).
87
European Commission (
2011
), 2-3.
