345 / 464
331
POSTǧLISBON EXERCISE OF EU COMPETENCE IN THE FIELD OF FOREIGN INVESTMENT…
for the international responsibility to “follow the division of competences between
the Union and the Member States” as the preamble of the Financial Responsibility
Regulation suggests, the given international instrument must acknowledge the
international effects of the intra-EU division of competences or it must be established
that the intra-EU division of competence produces international-law effects
per se
.
This proposition is subject to discussion, international case law divided, and the
related work of the International Law Commission (“ILC”), which constitutes to date
the most authoritative attempt to pull together the existing practice, inconclusive.
70
Another example of what appears problematic in light of applicable international
rules are the provisions (contained in the operative part of the Financial Responsibility
Regulation) indicating who shall “act as respondent” in a given ISDS proceedings.
71
For a Member State to be able to appear as a respondent in a given proceedings, it
must be in principle party to the applicable investment agreement. Otherwise, the
arbitral tribunal will lack personal competence (unless the latter is accepted on an
ad
hoc
basis, which however triggers the issues of the competence
ratione materiae
and of
the applicable law). The same presumed parallel between the intra-EU financial and
extra-EU international responsibility transpires also through the possibility given to
the Member State to enter into a settlement agreement with the concerned investor.
If in these situations the Member States are supposed to act in their own name and
not only as a proxy of the Union, they should be able to be the addressees of the
underlying international obligations to be settled.
72
Although the Commission’s
proposal of the Financial Responsibility Regulation deals with both situations
through the prism of empowerment under Art. 2(1) TFEU,
73
this is an appropriate
response of EU law that does not, however, bridge a possible international-law gap
between the bearer of an international obligation and the actor who presents himself
as willing to respond for it. It follows that the effective operation of the Financial
Responsibility Regulation cannot be dissociated from the relevant international-law
rules including those that the Union is shaping through post-Lisbon negotiation
of investment-related agreements, as further analyzed in the following part of this
paper. In accord with the focus of this paper, the extra-EU exercise by the Union of
its new competence is looked at from the perspective of rules framing the EU’s and
Member States’ respective international presence.
70
This paper will come back to this issue in its “extra-EU” part below.
71
See Art. 4 to 11 and Recitals 9 to 13 of the Preamble of the Financial Responsibility Regulation quoted
above, fn. No. 56.
72
See also DIMOPOULOS, A., “The involvement of the EU …”,
op. cit
., fn. No. 60, p. 1678.
73
See the Commission proposal of the Financial Responsibility Regulation COM(2012) 335 final,
21 Jun. 2012, p. 5.