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Investment law and its application to the relations of the European Union and its Member States with the rest of the world is an area where the impact of the Lisbon Treaty is both tangible and uncertain. This is due to the new provision of art.207(1) TFEU which, for the first time, brings foreign direct investment within the scope of the Common Commercial Policy (CCP). As the competence of the European Union in this area is exclusive, the implications of the entry into force of the Lisbon Treaty are considerable.
The significance of the expansion of the Union's competence in foreign direct investment is illustrated by the adoption of Regulation 1219/2012 in December 2012. This measure is about the maintenance in force and amendment of existing, as well as the negotiation and conclusion of new, Bilateral Investment Treaties (BITs) by the Member States. Its thrust is the establishment of a procedural framework, at the centre of which lies the Commission. This mechanism has two strands. The first revolves around the duty of Member States to notify all their existing BITs to the Commission. The latter may review them in order to assess whether they are compatible with EU law, they overlap with an agreement that the Union negotiates, or whether they constitute an obstacle to the development and implementation of the Union's investment policies. If no issues are raised, the Commission may authorise the maintenance in force of BITs, notwithstanding the Union's competence in foreign direct investment, and without prejudice to other EU law obligations of the Member States.
The second strand of the mechanism set out in Regulation 1219/2012 is about the amendment of existing or the conclusion of new BITs. The Member States are required to notify the Commission details of the negotiations with a third country in advance. This information would be disseminated to the other Member States, and, within three months, the Commission would ascertain whether the authorisation to open formal negotiations would be granted. Such an assessment would depend on whether the opening of negotiations would be in conflict with EU law, whether it would be superfluous in the light of imminent negotiations of an EU agreement, whether it is inconsistent with the EU's principles and objectives for external action, or constitute a serious obstacle to the negotiation or conclusion of BITs with third countries by the EU.
