CYIL 2015

MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ by the complex discussion that unfolded, both within the EU institutions and among scholars, on the field that the Union’s competence over foreign investment covers. 37 Controversy exists particularly as to whether portfolio investment, as a type of investment not falling under the generally accepted definition of FDI, still falls under EU exclusive competence by virtue, as the Commission argues, of the implied powers doctrine. More specifically, the Commission refers to the “affectation” scenario, the common rules to be affected by international agreements of the Member States covering portfolio investment being those stemming directly from Art. 63 to 66 TFEU. 38 The main argument put forth against this view refers to the language of Art. 207 TFEU (only foreign direct investment is mentioned therein), to the absence of EU legislation “to be affected” that the doctrine of affectation presupposes 39 and to the fact that the Commission’s argument based on the capital movement treaty provisions extends also to FDI and fails therefore to account for the reason why FDI needs an express basis in Art. 207 TFEU to exist as a part of the Union’s exclusive competence. 40 Moreover, the competence of the Union to regulate post-establishment protection standards (as opposed to market access rights) has been put into doubt altogether by reference to the scope that CCP (of which FDI makes part) embraces. 41 This is a more 37 For an overview see WAIBEL, M., “Competence Review: Trade and Investment” (February 8, 2013). Available at http://ssrn.com/abstract=2507138, par. 32-39. See also e.g. BISCHOFF, J.A., “Role and Responsibility of the European Union under the Energy Treaty Charter” in COOP, G., (ed.), Energy Dispute Resolution: Investment Protection, Transit and the Energy Treaty Charter , JurisNet, Huntington, 2011, lxxxi- 390 p., pp. 155-185; BURGSTALLER, M., “The future of Bilateral Investment Treaties of EUMember States”, European Yearbook of International Economic Law (2011) pp. 55-77; CEYSSENS, J., “Towards a Common Investment Policy?…”, op. cit ., fn. No. 30; EECKHOUT, P., EU External Relations Law, Oxford: European Union Law Library, 2011, xlv-572 p., pp. 62-69; EILMANSBERGER, T., “Bilateral InvestmentTreaties …”, op. cit ., fn. No. 30; DIMOPOULOS, A., EU Foreign Investment Law , 2011, Oxford: Oxford University Press, 416 p., pp. 65-124; KOUTRAKOS, P., EU External Relations Law , 2 nd ed., Oxford, Portland: Hart Publishing, 2015, lxiii-579 p., p. 46-50; SÖDERLUND, Ch., “The Future of the Energy Charter Treaty in the Context of the Lisbon Treaty”, in COOP, G., Energy Dispute Resolution: … , op. cit ., fn. No. 37, pp. 99-123; STRIK, P., Shaping the Single European Market in the Field of Foreign Direct Investment , Oxford, Portland: Hart Publishing 2014, xxviii-318 p. 38 Communication from the Commission to the Council, the European Parliament, the European economic and social committee and the Committee of the Regions, Towards a comprehensive European international investment policy, 7 Jul. 2010, COM(2010)343 final, p. 8 b). Supporting this view HOFFMEISTER, F., ÜNÜVAR, G., “From BITS and Pieces towards European Investment Agreements”, in BUNGENBERG, M., REINISCH, A., TIETJE, Ch., (eds.), EU and investment agreements: open questions and remaining challenges , Baden-Baden [etc.]: Nomos [etc.], 2013, 200 p., pp. 57-85, pp. 65-66. 39 EECKHOUT, P., EU External Relations Law , op. cit., fn. No. 37, pp. 150-151. 40 EECKHOUT, P., EU External Relations Law , op. cit., fn. No. 37, pp. 150-151; KRAJEWSKI, M., “The Reform of the Common Commercial Policy” in BIONDI, A., EECKHOUT, P., RIPLEY, S., (eds.), EU Law after Lisbon , Oxford: Oxford University Press, 2012, xxxiii-436 p., pp. 292-311, p. 303. 41 KRAJEWSKI, M., “The Reform of the Common …, op. cit ., fn. No. 40, p. 303.

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