The European Union's Competence on Foreign Investment: "New and Improved"?


Dominik Moskvan


Faculty editor: Michael Ramsey
Publication: International Law Journal
Volume: 18
Issue: 2
Start Page: 241
Month: June
Year: 2017
Type: Faculty Essay


The general approach of the EU towards its trade and investment agenda changed in 2006 into a vigorous use of bilateral negotiations as the Union experienced opposition from emerging countries as well as the U.S. The use of bilateral agreements was seen as a reliable instrument to efficaciously realize the Union’s market power that was in decline. The future erosion of the EU’s market position will likely continue and this will contribute to favoring the use of bilateral instead of multilateral trade agreements with the EU. However, as far as competence is concerned, should an investment treaty be signed in the future, it shall be done in the Union’s competence, whose precise scope is expected to be bindingly interpreted by the Court in the Opinion on the Free Trade Agreement with Singapore. With the lack of clarity concerning the scope of the investment competence, and a parallel elevated assertiveness of the Member States at the expense of the European Commission with respect to the CETA and TTIP in the changing political (post-Brexit) environment, it is questionable whether the competence shift may yield any results for the EU even if the CJEU pronounces the competence as exclusive, whether it is through the interpretation of the TFEU or the more general doctrine of implied powers.