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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 =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, 2nd 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.