Europos Bendrijos kompetencija reglamentuojant užsienio investicijas: link daugiašalio susitarimo dėl užsienio investicijų apsaugos?

Abstract

Although the Treaty of European Communities does not provide for a concept of “foreign investment”, their economic impact on trade is sufficient to argue that foreign investment should fall under the scope of common commercial policy of the European Communities. Unfortunately, although the ECJ supported the wide interpretation of the common commercial policy in its early practice, since 1994 it tends to interpret the concept narrowly. While doing so, it tends to emphasize the importance of the structure and text of the EC treaty. On two occasions – in opinion 1/94 and 2/92 the Court has declared that the right of establishment and free movement of services do not fall under the scope of common commercial policy. The Court also declined that the exclusive EC competence to act in these areas could be implied. During the process of accession of 2004 new aspects of bilateral investment treaties concluded by member states were identified which could run counter to the member states’ obligations under the EC treaty. This could provide further support to an idea that the EC external competence in the area of foreign investment might be wider than viewed so far. The trend might be identified as a convergence of trade law and investment law. It encourages member states to ensure that their foreign investment protection treaties are in line with their trade law obligations. This trend might be a factor encouraging the member states to agree on a multinational agreement on foreign investment.