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MAGDALENA LIČKOVÁ CYIL 6 ȍ2015Ȏ
2. Extra-EU Projection of the Union’s Investment Competence
The Union has exercised its new competence on the international plane by
negotiating new trade agreements that include investment protection-related chapters.
Also, negotiations of a stand-alone investment agreement have been launched in
respect of China.74 At the time of writing, two texts have been finalized or quasi-
finalized (but not concluded yet), while others are reported to be at different stages
of elaboration. The first category concerns the Comprehensive and Economic
Trade Agreement with Canada (“CETA”75 ) as well as the EU-Singapore Free Trade
Agreement (“EUSFTA”76 ). Within the second category that includes a larger
number of countries,77 a free trade instrument with Vietnam has been reported to
be agreed upon,78 while ongoing talks with the United States on the Transatlantic
Trade and Investment Partnership have attracted unprecedented public scrutiny
and discussion. This was recently demonstrated by the resolution of the European
Parliament spelling out recommendations to the Commission as to the points to be
further negotiated and calling for replacement of the ISDS draft provisions “with
a new system for resolving disputes between investors and states”.79
On the European side, the official conclusion of these new instruments will
require the determination as to whether they will be concluded as mixed or as Union-
only agreements. This is a matter of European law and depends generally on the
content of each agreement. If a given agreement goes beyond the scope of the Union’s
exclusive powers, the participation of the Member States is in principle possible and
may be also necessary.80 The delimitation of competences in concreto is not an easy
exercise and currently there does not seem to be an intra-EU consensus as to the
mixed or the Union-only nature of the EUSFTA/CETA which presumably relates to
the above referred discussion on the scope of EU competence over foreign investment.
In order to dissipate the existing uncertainties, the Commission has decided to turn
to the CJEU to request, pursuant to Art. 218 (11) TFEU, that the latter determine
74
75 For the text as of Sept. 2014 see
76 For the text as of June 2015 see
77 An overview:
78 See
79 European Parliament resolution of 8 July 2015 containing the European Parliament’s recommendations
to the European Commission on the negotiations for the Transatlantic Trade and Investment
Partnership (TTIP) [2014/2228(INI)], 8 Jul. 2015. Par. d) (xv).
80 See e.g. HILLION, Ch., KOUTRAKOS, P., (eds.), Mixed Agreements Revisited, Oxford: Hart Publishing,
2010, xxi-396 p.; ROSAS, A., “The European Union and Mixed Agreement” in DASHWOOD, A.,
HILLION, Ch., (eds.), The General Law of EC External Relations, London, Sweet & Maxwell, 2000,
xv-314 p., pp. 200-207, NEFRAMI, E., Recherches sur les accords mixtes de la Communauté européenne.
Aspects communautaires et internationaux, Bruylant, Bruxelles, coll. Droit de l’Union européenne,
thèses, No. 6, 2007, xvii-712 p.; EECKHOUT, P., EU External Relations Law, op. cit. fn. No. 37,
pp. 212-266.