CYIL 2015

POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT… of respective negotiation and meetings with third parties) 19 making their possible infringement harder to assess. This is all the more true as regards the substantive standards in the light of which the Commission assesses existing extra-EU BITs, on one hand, and the drafts of amendments and possible future new extra-EU BITs, on the other. In respect of these two main categories, the Extra-EU BITs Regulation provide for different empowering regimes. First, it foresees de lege maintenance in force of the preexisting extra-EU BITs (i.e. signed prior to 1 st Dec. 2009), which, after their notification, may be preserved until “a bilateral investment agreement between the Union and the same third country enters into force”. This is, however, “without prejudice to other obligations” that the Member States may have under Union law. 20 While the Commission “may” “assess” and “evaluate” whether these instruments constitute “a serious obstacle to the negotiation or conclusion by the Union of bilateral investment agreements with third countries”, 21 this exercise does not intervene as a condition for the possibility to maintain the respective treaties in force and the “right to maintain” results therefore, in principle, from simple notification. The consequence of the Commission’s possible finding that a notified extra-EU BIT constitutes an obstacle or that it hits “other obligations of the Member State” under EU law is not specified but could possibly lead to subsequent infringement proceedings if the identified flaw is not rectified. Secondly, a stricter review regime frames the possibility for the Member States to amend the existing extra-EU BITs or to conclude new ones, both options being subject to an authorization that the Commission may or may not grant. 22 This review relies on four (possibly five) main material conditions, including the “serious obstacle to the negotiation or conclusion” referred to above, which is complemented by an equally open-ended test of the absence of inconsistency between the amended or new BIT and “the Union’s principles and objectives for external action […]”. 23 Two other conditions embrace more specific wording to require absence of material conflict between the BIT under review and Union law as well as of specified negotiation steps undertaken by the Commission vis-à-vis the third country concerned. The Commission may further require that the Member States adapt the content of the instrument under negotiation. 24 The same conditions also apply to a third category of extra-EU BITs, namely to those signed “illegally” (that is, from the perspective of

19 Art. 6, 10 and 13 of the Extra-EU BITs Regulation quoted above fn. No. 13. 20 Art. 3 of the Extra-EU BITs Regulation quoted above fn. No. 13. 21 Art. 5 of the Extra-EU BITs Regulation quoted above fn. No. 13.

22 The proposal of the Regulation suggested that an authorization regime apply also to preexisting extra EU BITs. It also foresaw the possible withdrawal of such authorization. COM (2010) 343 final, Art. 3, 5 and 6. 23 Art. 9 (1) c) and d) of the Extra-EU BITs Regulation quoted above fn. No. 13. 24 Art. 9 (2) of the Extra-EU BITs Regulation quoted above fn. No. 13.

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