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MAGDALENA LIČKOVÁ
CYIL 6 ȍ2015Ȏ
Commission expressed the view
6
that intra-EU BITs are not EU-law compatible (as
they infringe upon the prohibition of discrimination based on nationality as well as
upon the jurisdiction of the CJEU) and invited the Member States to terminate them.
However, the responses were reticent across the board. The question then remained in
limbo for nearly a decade, until the Commission stepped up pressure when it sent
a letter of formal notice to five Member States on June 18, 2015, requesting again,
but in a legally more stringent way, that they bring their intra-EU BITs to an end.
If this Commission’s request remains likewise unheard, the matter is likely to be
brought before the CJEU.
7
This constitutes a major breakthrough and shows that the
Commission has lost its patience with the unresponsiveness shown by the vast majority
of Member States.
8
Returning to the post-Lisbon developments of the
extra
-EU facet of investment
regulation, this field has so far been less turbulent as regards enforcement of the
Commission’s position. Although the afore-mentioned decision to seek the CJEU’s
view on the newly defined “divide of competences” in the field of foreign investment
may be regarded as a
tour de bras
in the Commission’s dialogue with the Member
States, it does not attack any existing national measure but rather aims at clarifying
pro
futuro
the newly emerging dimension of EU legal space. As noted earlier, this externally
oriented legal space has both EU-domestic and international implications. This paper
will turn first to the internal facet of the Union’s action whereby the Union is framing
its relations with the Member States so that these better fit the new aspect of its
international capacity (Part I), before addressing the international dimension of EU/
Member States interplay in the context of the EU’s extended competence (Part II).
1. EU-Internal Adaptation to the New Dimension
of EU International Capacity
Seen from the perspective of the EUMember States, the post-Lisbon legal context
has redrawn the limits of their autonomy as regards further management of their
extra-EU BITs. Finding an appropriate EU-law status for these instruments which
suddenly (i.e., essentially overnight
9
) turned EU-incompatible
10
has become one
of the major challenges that the EU has had to embrace while exercising its new
on jurisdiction, arbitrability and suspension, 26 Oct. 2010, PCA case 2008-13;
Electrabel S.A. v.
Republic of Hungary
, 30 Nov 2012, Decision on Jurisdiction, Applicable Law and Liability, ICSID
Case No. ARB/07/19 (ECT).
6
As reported in the partial award
Eastern Sugar B.V.
quoted above fn. No. 5, par. 126.
7
Austria, the Netherlands, Romania, Slovakia and Sweden. See the European Commission press release
available at
http://europa.eu/rapid/press-release_IP-15-5198_en.htm.8
The administrative stage of infringement proceedings has been opened with twenty-one other Member
States, Italy and Ireland being the only States having terminated all of their intra-EU BITs. See Fn. No. 7.
9
From 30 Nov. to 1
st
Dec. 2009 as the Lisbon Treaty was entering into force.
10
Or, partly incompatible, depending on how one construes the extent of the Union’s competence under
Art. 207 TFEU and depending also on the content of the individual extra-EU BIT. See below.