Marc Bungenberg, Joern Griebel, Steffen Hindelang (editors),
International Investment Law and EU Law, (Springer, 2011), xii + 206 pp. (including appendices), Hardback, price: € 103,99, ISBN: 978-3-642-14854-5.
The Lisbon Treaty has established for the first time an express competence over foreign investment, by including it in the scope of the Common Commercial Policy (CCP). In amending Article 133 EC, the new Article 207 TFEU brings crucial changes to the scope of the CCP, to its very nature and its objectives. Furthermore, in Case C 205/06 Commission v Austria and Case C 249/06 Commission v Sweden (judgments of 3 March 2009), the Court of Justice of the European Union (CJEU) held, in infringement proceedings brought by the Commission, that, by not having taken appropriate steps to eliminate incompatibilities between their obligations under Community law and provisions on transfer of capital contained in investment agreements entered into with certain third countries, the Kingdom of Sweden and the Republic of Austria had failed to fulfill their obligations under EU law. These few elements suffice to justify the rising number of publications on the role of the European Union in the area of investment policy.
Edited by Marc Bungenberg, Joern Griebel and Steffen Hindelang, and published as a special issue within the yearly “European Yearbook of International Economic Law” (EYIEL), the book under review aims at analyzing the role and scope of the EU in the area of investment policy. It also intends to provoke further debates and offer new approaches to the topic. Mainly based on the contributions presented at the “Tubingen Workshop on International Investment Law and EU Law” of 18 September 2009, the book contains ten contributions. Two appendices, the Commission Communication “Towards a comprehensive European international investment policy” and the “Proposal for a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries”, complete the volume.
The contributions cover a wide range of issues of interest on the topic. For instance, in the first contribution Hindelang and Maydell provide, first, an analysis of the framework preconditioning the exercise of the competence, and, second, they focus on the EU’s external competences under Article 207 TFEU. One of the conclusions they reach is that “the protection of third-country portfolio investments is limited in comparison with such occurring within the EU” (p. 26). The division of competences between the EU and its Member States, which represents one of the most important features of the new legal framework in this area, is the topic of both Bungenberg’s and Reinisch’s contributions. Worth recalling that, according to Bungenberg, the new competence encompasses both investment promotion and investment protection (p. 36).
In Chapter 4 Burgstaller analyses, first, the external dimension of BITs of EU Member States, also in the light of the mentioned cases decided by the CJEU in 2009 (cases C-249/06 and C-205/06), and, second, the future of intra-EU BITs. Burgstaller observes, in his conclusion, that, with regard the external dimension, “it remains to be seen whether the Commission comprehensively challenges the BITs of Member States with third States following the ECJ’s judgments in the infringement cases” (p.76), and, with regard the internal dimension, that “Member States have not yet followed the Commission’s suggestion to terminate intra-EU BITs” (p.77).
In the fifth contribution, Terhechte looks at the principle of loyalty and its potentially difficult application in the relations between the EU institutions and its Member States. Ultimately, a successful common European investment policy will depend on a loyal cooperation between the Union and the Member States. Worth mentioning here are also the last couple of contributions which deal with some of the aspects more controversial, the host State’s rights and the balance between investor’s rights and State regulatory interests.
It must be said that since the publication of the book, the “Proposal for a Regulation of the European Parliament and of the Council establishing transitional arrangements for bilateral investment agreements between Member States and third countries” has been adopted under Regulation (EU) No 1219/2012, which entered into force on 9 January 2013. Some of the contributions are therefore to read in the light of the new legislative act. Also, some overlaps between contributions are also quite evident and many definitions or concepts are explained more than once. These are minor criticisms.
Overall, the book is interesting and deals with the main new legal issues of the Common Commercial Policy as amended by the entry into force of the Lisbon Treaty and also with its consequences in regard to international investment law. It will prove essential reading for those interested in understanding this fundamental area of EU law.
Riccardo Sciaudone
Head