Environmental Engineering Reference
In-Depth Information
Commission (Art. 2 of Regulation 1219/2012/EU). Art. 3 of Regulation 1219/2012/
EU clarifies that although the BIT can remain in force, it might eventually be
replaced by a newly negotiated EU-BIT. According to Art. 4(1) of Regulation 1219/
2012/EU, all notifications of the member states are published. The European
Commission then assesses whether all the notified BITs comply with EU law.
This is repeated by Art. 12(1) of Regulation 1219/2012/EU and according to Art.
12(2) and Art. 9(1) and (2) of Regulation 1219/2012/EU, there is a list of possible
incompatibilities between BITs and EU law. If there are serious obstacles, the
European Commission will request that the respective member state adjust the
BIT (Art. 6(1) and (2) of Regulation 1219/2012/EU). If the requirements of Art. 9 of
Regulation 1219/2012/EU are met, the European Commission must authorize the
usage of the BIT (Art. 12(3) of Regulation 1219/2012/EU). The European Com-
mission must decide within 180 days of receipt of notification (Art. 12(4) of
Regulation 1219/2012/EU). Finally, Art. 13 of Regulation 1219/2012/EU deals
with the conduct of the member state if the BIT falls within the scope of Regulation
1219/2012/EU. This requires that the member state must inform the European
Commission of all meetings and their agendas under the provisions of the BIT
(Art. 13(a) of Regulation 1219/2012/EU). If there is a risk of EU law infringement,
the European Commission can request that the member states positions itself on the
respective issue (Art. 13(a) of Regulation 1219/2012/EU). Furthermore, the mem-
ber state must inform the European Commission of any request for dispute settle-
ment under the auspices of the BIT (Art. 13(b) of Regulation 1219/2012/EU). The
European Commission and the member state must cooperate to provide an effective
defense (Art. 13(b) of Regulation 1219/2012/EU). According to Art. 13(c) of
Regulation 1219/2012/EU, the member state must seek the agreement of the
European Commission before activating any relevant mechanisms for dispute
settlement against a third party under the BIT. Mechanisms are defined broadly
(encompassing any consultation) and the European Commission will actively work
together with the member state (Art. 13(c) of Regulation 1219/2012/EU). Art. 7-11
of Regulation 1219/2012/EU deal with questions of new negotiations of BITs and
participation of the European Commission.
It must be noted that a prior draft of Regulation 1219/2012/EU accorded a
greater screening power to the European Commission, but this was downsized by
EU member states to avoid a greater loss of influence.
88
This also indicates that the
list of incompatibilities in Art. 9 of Regulation 1219/2012/EU is final and cannot be
interpreted more broadly. Finally, it is notable that there is the possibility of
'
existing BITs by notifying them to the European Commission.
89
This is also known as a grandfather clause.
grandfathering
'
88
Reinisch (
2014
), 111 (120).
89
Seattle to Brussels Network (
2010
), 12.
