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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.