337 / 464
323
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.