Environmental Engineering Reference
In-Depth Information
exclusive competence to decide on facts of EU Law, especially as it views tribunals
as “only” a private form of dispute settlement.
99
3.3.2 Effects on the Desertec Concept
The shift in competence will have an influence on the Desertec Concept as its
success mainly depends on a functional ISDS. If there are any doubts concerning
the investment security, no investor would be willing to spend any money.
3.3.2.1 Application of the G/M-BIT
Based on the grandfather clause, the G/M-BIT was notified by Germany to the
European Commission.
100
As the Federal Ministry for Economic Affairs and
Energy (BMWi) issued an overview of all effective BITs concluded by Germany
up to 13 February 2014, including the G/M-BIT based on the year 2001,
101
it can be
assumed that it is not violating any requirement according to Regulation 1219/
2012/EU. Otherwise, the European Commission would have been forced to request
that Germany change and renegotiate the relevant parts of the G/M-BIT. It must be
kept in mind that due to the shift of competence the EU can lawfully enter into BITs
and also establish new ones.
102
The European Commission has already adopted
negotiating directives for four MENA countries, including Morocco.
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It is unclear
what would happen to the G/M-BIT if the EU negotiated a new BIT with Morocco.
Interestingly, Regulation 1219/2012/EU also affects all BITs which were con-
cluded prior to the Treaty of Lisbon. As the G/M-BIT is concluded between
Germany and Morocco, it is necessary to take a closer look at how German courts
treat changes to EU law which affect prior national law. In 2009, the German
Constitutional Court mentioned that its judgment had no effect on treaties con-
cluded prior to the 1st of January 1958.
104
This contains the legal principle that the
current legal situation within a member state is unchangeable because of later
European integration.
105
This legal principle also applies to BITs concluded after
the 1st of January 1958.
106
Consequently, the EU must approve all existing BITs
99
Reinisch (
2014
), 111 (154-157).
100
European Commission (
2013a
), 2 (27).
101
BMWi (
2014
), 2.
102
Reinisch (
2014
), 111 (119-120).
103
European Commission (
2012b
).
104
BVerfG [2009] 2 BvE 2/08, 2267 (2291) para 380.
105
BVerfG [2009] 2 BvE 2/08, 2267 (2291) para 380.
106
BVerfG [2009] 2 BvE 2/08, 2267 (2291) para 380.
