FOREIGN DIRECT INVESTMENT : A "COINCIDENTAL" COMPETENCE OF THE EU?

Abstract

This article gives an overview of the current status of EU foreign investment policy and outlines the direction in which it is headed. It is also testimony to the fact that when the competence for foreign direct investment was conferred upon the EU, deliberations on what this should entail were not really made. To begin with, the powers of the EU with respect to Hitotsubashi Journal of Law and Politics 43 (2015), pp.85-109. C Hitotsubashi University * The Author, Prof. Dr. Christoph Herrmann, LL.M. (London) holds the Chair for Constitutional and Administrative Law, European Law, European and International Economic Law at the University of Passau and is Academic Director of the Certificate of Studies in European, Comparative and International Law (CECIL) programme. Email: christoph.herrmann@uni-passau.de. ** Judith Crämer, LL.M. (Maastricht, Toulouse) is research assistant and PhD candidate at the Chair of Professor Herrmann at the University of Passau and Coordinator of CECIL. Email: judith.craemer@uni-passau.de. FDI before and after the Treaty of Lisbon entered into force are presented. As the EU has been empowered to regulate FDI matters for its Member States since the Treaty of Lisbon entered into force, there is potential for conflict. Therefore, the second part of this paper analyses the current legal status of intraand extra-EU BITs and presents the BITs Regulation, a first attempt of the EU to define its competence and bring clarity with respect to the legal status of extra-EU BITs. Additionally, the special status of the Energy Charter Treaty is addressed. The third part of the paper will concentrate on the shape the common European investment policy might take in the future, with express reference to the new role of the instutions in regulating FDI and their positions towards FDI as a new competence. It seems from the EU-Canada trade agreement, which may be the first agreement to be concluded under the new competence, that the EU is opting for a rather broad competence including preand post-establishment of investments as well as portfolio investments. The European citizens, however, are not in favour of concluding any agreement. It will be concluded that the transfer of the competence was sudden, but the foundation for a solid European policy has been laid in the past five years.