CYIL 2015

341 / 464

327
POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
not, in principle, provide for such a broad reading either.51 Nevertheless, the EU-law
analysis of Art. 351 TFEU is without prejudice to the international-law assessment of
conflicts possibly arising between treaties involving EU Member States and non-EU
actors, including extra-EU BITs.
This being said, the necessity to resort to Art. 351TFEU in respect of the extra-EU
BITs appears rather limited in the near future because the Member States seem to have
embraced the notification procedure under the Extra-EU BITs Regulation without
resistance and considering also the fact that the inclusion of the respective extra-EU
BITs on the lists published by the Commission can be deemed as confirmation of
their current compliance with EU law. Should any future incompatibility occur, such
a situation will be assessed in the light of the case-law related to both Art. 351 TFEU
and extra-EU BITs which, however, embraced both pro-affectation-clause and pro-
elimination-clause approaches.52 Moreover, novel issues may arise in respect of possible
non-notified extra-EU BITs whose maintenance in force would not be empowered
but which could possibly enter the realm of the non-affectation clause of Art. 351
TFEU. Similarly, Art. 351 TFEU may be of relevance when it comes to compliance
with an award that is issued pursuant to a BIT falling under the scope of this
provision and that may not be consistent with EU law requirements. Further, the
conclusion of a first post-Lisbon international agreement by the Union will trigger
the obligation for the Member States to terminate the empowered pre-existing extra-
EU BITs concluded with the same third country. Although this will be a matter of
international law, some aspects may be of relevance from the EU-law perspective
too, should such termination not absolve the Member States from all of their
commitments. In this context, one can refer to the recent practice of the intra-EU
BITs termination that was accompanied by an agreement not to apply the so-called
survival clause53 or that relied on the understanding that “any possible acquired rights
or legitimate expectations of the Parties” arising out of this clause “shall be respected
within the framework of the EU Acquis”.54 Whether this move constitutes an exercise
of sovereign powers of the contracting parties compatible with international law
51 Ličková (M.), La dynamique de la complexité …, op. cit., fn. No. 45, par. 508-527. For arguments
in favor of an application of Art. 351 TFEU by analogy to post 1958 or post-accession BITs see
PANTALEO (L.), “Member States Prior Agreements and Newly EU Attributed Competence: What
Lesson from Foreign Investment”, European Foreign Affairs Review (2014) vol. 19, No. 2, pp. 307-324.
52 See above fn. No. 28 contrasted with Commission v Slovakia, C-264/09, quoted above fn. No. 47.
53 See the Czech practice in respect of the intra-EU BITs concluded with Denmark, Estonia, Ireland,
Italy, Slovenia
dohod-o-podpore-a-ochra.
54 See the note of the Ministry of Foreign Affairs of Malta No. 455/09 dated 17 Mar. 2009 and the
note of the Embassy of the Czech Republic in Rome No. 319/200 of 2 Apr. 2009, reproduced in
the communication of the Ministry of Foreign Affairs of the Czech Republic No. 89/2010 (sdělení
Ministerstva zahraničních věcí o sjednání dohody o ukončení platnosti Dohody mezi Českou republikou
a Maltou o podpoře a vzájemné ochraně investic, podepsané dne 9. dubna 2002 ve Valletě).