The Scope of the EU's Investment Competence after Lisbon

Abstract

Through the 2009 Lisbon Treaty, the Member States of the European Union conferred upon the EU new exclusive competences. The EU's common commercial policy was broadened to include foreign direct investment. However, the precise scope of the EU’s new competence in the field of investment is not entirely clear. This presents EU decision makers in the various EU institutions with a multitude of complications. Building on the existing literature, the present paper analyses the scope of the EU’s competences pertaining to investment in light of recent developments by drawing on precedents regarding the scope of EU competences and institutional practice. This paper argues that, taking into account the jurisprudence of the Court of Justice of the European Union, the new competence must be interpreted broadly, including the regulation of market access and material standards of protection and dispute settlement. The first part of this paper addresses the nature and definition of competence in EU law; the second part analyses the scope of the EU’s investment competence. The analysis sheds light on divergent institutional opinions and is followed by a discussion of whether portfolio investments and protection standards as well as dispute settlement are covered by the EU’s competences. The final part deals with future International Investment Agreements and negotiations in practice.

Keywords: EU Investment Policy, Investment Competence, EU, International Investment Law, CETA, TTIP