CYIL 2015

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MAGDALENA LIČKOVÁ

CYIL 6 ȍ2015Ȏ

appropriate balance between these two clauses is not an easy task and the case law

related to this provision oscillates between stressing the States’ obligations under the

“elimination of incompatibilities” clause

and their rights guaranteed by the “non-

affectation” part of Art. 351 TFEU.

This provision was part of the inter-institutional discussion during the legislative

process leading up to the adoption of the Extra-EU BITs Regulation, as evidenced by

a reference to the “non-affectation” clause of Art. 351 TFEU in the Conclusions on

a comprehensive European international investment policy that the Council of the

European Union adopted in reaction to the proposals made by the Commission in

this field.

It is reported that an explicit reference to this provision in the final text of

the Extra-EU BITs Regulation was traded off against softening that the Commission

accepted to make in respect of the review regime applicable to extra-EU BITs signed

prior to Dec. 1

, 2009.

Having said that, even if the Extra-EU BITs Regulation does

not refer to Art. 351 TFEU, contrary to other examples of empowering regulations,

those extra-EU BITs that the Member States concluded prior to joining the Union

are still covered by the latter provision. Moreover, one could also raise the question

as to whether the reasoning under Art. 351 TFEU could be stretched further to

suggest its broad and “evolutionary” reading. Under such broad reading the notion of

preexisting agreements could refer not only to those instruments concluded formally

before 1958 or the date upon which a particular Member State entered into the

Union but also to the agreements concluded after such a date and before a given

exclusive competence on the part of the Union emerged. Whereas this reading would

be more in line with the principle of attributed competences, the language of this

provision points strictly to the date of accession (or the establishment of the Union)

as the relevant criterion and the judicial and legislative practice of the Union do

Union européenne et droit international

, Paris: Pedone, 2012, xiv-912 p., pp. 587-609, esp. pp. 593-

603; KLABBERS, J.,

Treaty Conflict and the European Union

, Cambridge: Cambridge University Press,

2009, 260 p., esp. pp. 115-149; KOUTRAKOS, P.,

EU International Relations Law

op. cit

. fn. No. 37,

pp. 321-350; LIČKOVÁ, M.,

La dynamique de la complexité en matière de relations extérieures des États

membres de l’Union européenne

(PhD thesis), def. 16 April 2013, Université Paris I Panthéon Sorbonne,

Paris, France, 704 p., par. 415

et seq

See the case law quoted above, fn. No. 28, concerning the Austrian, Finish and Swedish extra-EU BITs.

CJEU (First Chamber), 15 Nov. 2011,

Commission v Slovakia

C-264/09 (ECLI:EU:C:2011:580).

Par. 9 of the Conclusions on a comprehensive European international investment policy, 25 Oct. 2010.

HOFFMEISTER, F., ÜNÜVAR, G., “From BITS and Pieces …”,

op. cit

., fn. No. 38. See Art. 3, 5

and 6 of the Commission’s Proposal quoted above fn. No. 22.

Other empowering regulations refer to obligations under the second indent of Art. 351 TFEU (then

Art. 307 TEC), which implies the acknowledgment of the applicability of the whole provision. See

recitals 3 of Preambles of the Regulations 662/2009 and 664/2009, quoted above fn. No. 16: “Article 307

of the Treaty requires Member States to take all appropriate steps to eliminate any incompatibilities

between the Community

acquis

and international agreements concluded between Member States and

third countries. This may involve the need for the re-negotiation of such agreements.”