Environmental Engineering Reference
In-Depth Information
(comparable to the EC Decision 2001/855/EC).
107
The approval reflects the com-
mon and tacit practice of the EU concerning continued applicability of an interna-
tional law contract.
108
Taking this into account, a closer look at the G/M-BIT might reveal a solution.
First of all, there is customary international law principle pacta sunt servanda,
which is referred to in Art. 26 of the VCLT.
109
It is one of the fundamental
principles of treaty law.
110
Furthermore, Art. 39 and 54 of the VCLT stipulate
that the EU does not replace its member states within BITs. Hence, all contracts
which were adopted before a possible change of competence was in sight do not
violate European law. A change in competence does not retroactively affect
previously concluded agreements.
111
Since the G/M-BIT came into force in 2004,
it was concluded before the entry into force of the Treaty of Lisbon, which
reorganized EU competences. The G/M-BIT was adopted on the 18th of March
2004, only 3 months before the European Constitutional Contract (ECC). Art. III-
315 of the ECC was the first article regulating FDIs. However, the draft of the G/M-
BIT dates back to the 6th of August 2001, which was almost 3 years before the
ECC. In 2005, the ECC failed after France and the Netherlands refused to ratify
it.
112
This means that the ECC never came into force and therefore the competence
never shifted due to the ECC. After the ECC failed and before the Treaty of Lisbon,
it was unclear how the EC/EU would develop. Since the Treaty of Lisbon came into
force in 2009, there were almost 4 years between the ECC and the Treaty of
Lisbon,
113
so it would be wrong to claim that Germany certainly knew or predicted
that a change in competence might take place. For this reason, it did not violate
European law or need EU approval.
For the moment, both the grandfather clause as well as Art. 26 of the VCLT still
recognize the G/M-BIT. This might change with a new EU-BIT.
3.3.2.2 Consequences of the Shift in Competence
At the moment, there should be no influence on the G/M-BIT as it was successfully
notified by Germany. Therefore, the G/M-BIT is still applicable and the investor
can sue the host state according to Art. 25 of the ICSID Convention. If the treaty is
replaced, this might cause some issues as it is not clear how and where an ISDS
would take place.
107
BVerfG [2009] 2 BvE 2/08, 2267 (2291) para 380.
108
BVerfG [2009] 2 BvE 2/08, 2267 (2291) para 380.
109
Binder (
2009b
), 187 (192); ECJ [1998] Case C-162/96, I-3655 (3670) para 49.
110
Herdegen (
2010
), § 15 para 4; Binder (
2009b
), 187 (192).
111
ECJ [2002] Schlussantr¨ge des Generalanwaltes Antonio Tizzano C-466/98, I-9431 (I-9475-I-
9476) para 113.
112
Hellmann (
2009
), 6.
113
Hellmann (
2009
), 12.
