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MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ
and the “law in action” that arose upon the entry into force of the Lisbon treaty was
brought into stark relief by such events as the signing of a new German-Pakistan
BIT on the very same day.14 The situation remained for some three years before
a makeshift bridge was built by a “grandfathering” regulation which, with certain
provisos, not only empowers the Member States to maintain the existing extra-EU
BITs in place but which also opens the possibility for them to conclude new ones
(“Extra-EU BITs Regulation”).15 This empowerment is nevertheless not meant to be
permanent as the Member States’ instruments are set to be “progressively replaced by
investment agreements” to be concluded by the Union.
While this is not the first time that an act of EU secondary law has enabled the
Member States to continue acting in a field falling under the exclusive competence of
the Union, the Extra-EU BITs Regulation may be considered the most elaborate piece
of such legislation to the extent that it covers both existing and future Member States’
agreements falling under its scope and considering also its somewhat more detailed
procedural apparatus compared notably to Decision 69/494 adopted previously in
respect of the Member States’ trade agreements.16 It is also the first such empowering
act that the EU has adopted in the post-Lisbon era, newly equipped with a generally
worded EU primary-law basis allowing for adoption of acts empowering the Member
States to act within the realm of the EU exclusive competences.17
The conditions spelled out by the Extra-EU BITs Regulation are procedural as
well as substantive. Whereas some of the procedural obligations are quite specific
(such as notification of existing BITs by a certain date18 ) others entail less clearly
framed obligations to cooperate (e.g. obligation to take appropriate measures so as
the notified BITs are not EU-incompatible or to keep the Commission informed
14 See at
15 Regulation 1219/2012, quoted above fn. No. 13.
16 Council Decision No. 69/494/EEC, 16 Dec. 1969, on the progressive standardisation of agreements
concerning commercial relations between Member States and third countries and on the negotiation of
Community agreements, OJ, 29 Dec. 1969, L 326, p. 39 (this decision was renewed and amended by
subsequent acts); Regulation No. 847/2004 of the European Parliament and of the Council of 29 April
2004 on the negotiation and implementation of air service agreements between Member States and
Third Countries, OJ L 157, 30 Apr. 2004, p. 7; Council Regulation (EC) No. 664/2009 of 7 July 2009
establishing a procedure for the negotiation and conclusion of agreements between Member States
and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions
in matrimonial matters, matters of parental responsibility and matters relating to maintenance
obligations, and the law applicable to matters relating to maintenance obligation, OJ, 31 Jul. 2009,
L 200, p. 46; Regulation (EC) No. 662/2009 of the European Parliament and of the Council of 13 July
2009 establishing a procedure for the negotiation and conclusion of agreements between Member
States and third countries on particular matters concerning the law applicable to contractual and non-
contractual obligations, OJ 31 Jul. 2009, L 200, p. 25.
17 See Art. 2 (1) TFEU.
18 Art. 2 of the Extra-EU BITs Regulation quoted above fn. No. 13 (see also Art. 8, 11, 12 and 13).