CYIL 2015

POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT… earlier, references can be made to further cases from the practice of the Czech Republic having ratified five brand new extra-EU BITs in the post-Lisbon period (with signature intervening pre-Lisbon while ratification post-Lisbon 32 or with both acts intervening post-Lisbon 33 ). One of these instruments is a BIT with Canada. The existence of such “competence-illegal” extra-EU BITs has been retrospectively (and implicitly) recognized in the Extra-EU BITs Regulation in as much as the latter provides an authorization regime for a specific (“third”) category of extra-EU BITs signed between 1 st Dec. 2009 and its entry into force, when the Member States acted without (EU-law) competence and without (EU-law) authorization. 34 The Extra-EU BITs Regulation requests that the Commission publish lists on a periodic basis of the extra-EU BITs notified under its provisions. Accordingly, the Commission has so far presented three lists. 35 Curiously, they state the dates of signature of the respective instruments but not the dates of ratification (which in some cases occurred in the post-Lisbon period) and therefore simple consultation of these lists does not provide the information as to whether a given BIT was applicable at the time of the publication of the respective list. This may reflect the language of the Extra-EU Regulation which also avoids the term “ratification”. As the designation of these documents indicate, they are genuine “lists” that do not reveal any elements of the assessment that the Commission had presumably conducted over the recorded BITs. Such analytical elements may therefore come as a part of the report on the application of this empowering regime that the Commission should present by 10 January 2020. 36 Scrutiny of the current intra-EU status pertaining to extra-EU BITs should be further complemented by consideration of the two following issues. First, this status should be looked at through the lenses of the interplay between the Extra-EU BITs Regulation and the scope of the EU competence under Article 207 TFEU. Second, it should also be inspected in light of Art. 351 TFEU. As to the first point, the extra-EU BITs are only inconsistent with EU exclusive competence in so much as they correspond to its realm. The consequences that flow from this simple statement are currently, however, difficult to assess as evidenced 32 With Canada (sign. 6 May 2009, rat. 22 Jan. 2012), Georgia (sign. 29 Aug. 2009, rat. 13 Mar. 2011), Saudi Arabia (sign. 18 Nov. 2009, rat. 13 Mar. 2011) andTurkey (sign. 29 Apr. 2009, rat. 18 Mar. 2012) see at link quoted above, fn. No. 31. 33 With Azerbaijan (sign. 17 May 2011, rat. 9 Feb. 2012) and Sri Lanka (sign. 28 Mar. 2011, rat. is reported as “completed” in the Czech Republic, but presumably still pending in Sri Lanka). See above fn. No. 31. 34 See Art. 12 of the Extra-EU BITs Regulation, quoted above fn. No. 13. 35 List of the bilateral investment agreements referred to in Article 4 (1) of Regulation (EU) No. 1219/2012 of the European Parliament and of the Council of 12 December 2012 establishing transitional arrangements for bilateral investment agreements between Member States and third countries, OJ C 135, 24 Apr. 2015, p. 1; OJ C 169, 5 Jun. 2014, p. 1; OJ C 131, 8 May 2013, p. 2. 36 Art. 15 of the Extra-EU BITs Regulation quoted above fn. No. 13.

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