Creating an EU Investment Policy: Challenges for the Post-Lisbon Era of External Relations

  • Angelos Dimopoulos


The introduction of EU competence over foreign direct investment (FDI) in Article 207 TFEU after the Lisbon Treaty has generated broad discussions regarding the scope of the ‘new’ EU competence and how it will affect Member States’ foreign investment policies and in particular their Bilateral Investment Treaties (BITs). Recently, the European Commission announced its intentions to create a new EU investment policy, indicating its aim to transform the EU into a major player in the field of foreign investment. Within this framework, the purpose of this chapter is to examine the challenges that the creation of an EU investment policy presents which the involved political actors will have to tackle within the following years. In that regard, this chapter looks firstly at the scope and content of EU competence, arguing that neither EU institutions nor Member States have fully grasped the broad scope of foreign investment regulation and how different areas of EU law besides the Common Commercial Policy can impact on it. Secondly, the chapter looks at the specific objectives and content of future EU investment agreements. It is argued that although the Commission intends to cover matters that exist under Member State BITs, such as protection against expropriation and investor-state arbitration, it does not have a clear vision of how to integrate them within the framework of the new ‘constitutional’ objectives of EU external relations. Thirdly, the chapter explores the institutional implications that the creation of an EU investment policy raises, focusing on the effects of concluding investment agreements as mixed agreements. Finally, the chapter examines the practical problems that emerge during the transition from national to EU investment policies. As the smooth transition from Member State BITs to EU investment agreements is necessary to preserve European investors’ interests and rights and to sooth the concerns of third countries, the Commission’s planned action focuses only on short-term measures, which merely postpone the uncertainty that EU investment policy will raise.


Foreign Direct Investment Foreign Investment Investment Policy Investment Agreement Mixed Agreement 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


  1. Bungenberg M (2011) The division of competences between the EU and its Member states in the area of investment policies. In: Bungeberg M, Griebel J, Hindelang S (eds) International investment law and EU law. Nomos, Heidelberg, pp 29–42CrossRefGoogle Scholar
  2. Cardwell PJ, French D (2010) Liberalizing investment in the CARIFORUM-EU economic partnership agreement: EU priorities, regional agendas and developmental hegemony. In: Cordonier-Segger MC, Gehring M, Newcombe A (eds) Sustainable development in World Investment Law. Kluwer, Alphen aan den Rijn, pp 429–450Google Scholar
  3. Ceyssens J (2005) Towards a Common Foreign Investment Policy?—foreign investment in the European Constitution. Legal Issues of Economic Integration 32:259–291Google Scholar
  4. Cremona M (2008) Defining competence in EU external relations: lessons from the Treaty reform process. In: Dashwood A, Maresceau M (eds) Law and practice of EU external relations. Hart, Oxford, pp 34–69CrossRefGoogle Scholar
  5. Cremona M (2009) Member States as Trustees of the Community Interest: participating in International Agreements on behalf of the European Community. EUI Working Paper LAW 2009/17Google Scholar
  6. Cremona M (2011) External relations and external competence of the European Union: the emergence of an integrated policy. In: Craig P, De Búrca G (eds) The evolution of EU law. Oxford University Press, Oxford, pp 217–268Google Scholar
  7. Dimopoulos A (2008) The Common Commercial Policy after Lisbon: establishing parallelism between Internal and External Economic Policy. Croatian Yearbook of European Law and Policy 4:76–101Google Scholar
  8. Dimopoulos A (2010) Shifting the emphasis from investment protection to liberalization and development: the EU as a new global actor in the field of Foreign Investment Policy. Journal of World Investment and Trade 11:3–26Google Scholar
  9. Dimopoulos A (2011) EU foreign investment law. Oxford University Press, Oxford (forthcoming)Google Scholar
  10. Dolzer R, Schreuer C (2008) Principles of international investment law. Oxford University Press, OxfordGoogle Scholar
  11. Govaere I (2010) Beware the Trojan Horse: dispute settlement in (mixed) agreements and the autonomy of the EU legal order. In: Hillion C, Koutrakos P (eds) Mixed agreements revisited. Hart, Oxford, pp 187–207Google Scholar
  12. Handoll J (2006) Capital, payments and money laundering in the European Union. Richmond, OxfordGoogle Scholar
  13. Heliskoski J (2001) Mixed agreements as a technique for organizing the international relations of the European Community and its Member States. Brill, LeidenGoogle Scholar
  14. Hermann C (2010) Die Zukunft der mitgliedstaatlichen Investitionspolitik nach dem Vertrag von Lissabon. Europäische Zeitschrift für Wirtschaftsrecht 21:207–211Google Scholar
  15. Hindelang S (2009) The free movement of capital and foreign direct investment: the scope of protection in EU law. Oxford University Press, OxfordCrossRefGoogle Scholar
  16. Hoffmeister F (2010) Litigating against the European Union and its Member States—who responds under the ILC’s draft articles on international responsibility of international organizations? European Journal of International Law 21:723–747CrossRefGoogle Scholar
  17. Johannsen S (2009) Die Kompetenz der Europäischen Union für ausländische Direktinvestitionen nach dem Vertrag von Lissabon. Beiträge zum Transnationalen Wirtschaftsrecht 90:1–46Google Scholar
  18. Karl J (2003) The competence for Foreign Direct Investment. Journal of World Investment and Trade 4:413–448Google Scholar
  19. Koutrakos P (2009) Legal basis and delimitation of competence in EU external relations. In: Cremona M, De Witte B (eds) EU foreign relations law-constitutional fundamentals. Hart, OxfordGoogle Scholar
  20. Krajewski M (2005) External trade law and the Constitutional Treaty: towards a federal and more Democratic Common Commercial Policy? Common Market Law Review 42:91–127Google Scholar
  21. Kuijper P (2010) International responsibility for EU mixed agreements. In: Hillion C, Koutrakos P (eds) Mixed agreements revisited. Hart, Oxford, pp 208–228Google Scholar
  22. Lykotrafiti A (2011) Consolidation and rationalization in the Transatlantic Air Transport Market—prospects and challenges for competition and consumer welfare. TILEC Discussion Paper 2011–2033Google Scholar
  23. Rosas A (2000) The European Union and mixed agreements. In: Dashwood A, Hillion C (eds) The general law of E.C. external relations. Sweet and Maxwell, London, pp 216–236Google Scholar
  24. Rubins N (2004) The notion of investment in international investment arbitration. In: Horn N (ed) Arbitrating foreign investment disputes. Kluwer, The Hague, pp 283–324Google Scholar
  25. Shan W, Zhang S (2010) The Treaty of Lisbon: half way toward a Common Investment Policy. European Journal of International Law 21:1049–1073CrossRefGoogle Scholar
  26. Tietje C (2009) Die Außenwirtschaftsverfassung der EU nach dem Vertrag von Lissabon. Beiträge zum Transnationalen Wirtschaftsrecht 93:1–32Google Scholar
  27. Tudor I (2008) The fair and equitable treatment standard in the international law of foreign investment. Oxford University Press, OxfordCrossRefGoogle Scholar
  28. Woolcock S, Kleinheisterkamp J (2010) The EU approach to international investment policy after the Lisbon Treaty. European Parliament Directorate General for External Policies, BrusselsGoogle Scholar
  29. Yala F (2005) The notion of investment in ICSID case law: A drifting jurisdictional requirement? Journal of International Arbitration 22:105–126Google Scholar

Copyright information

© T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

Authors and Affiliations

  1. 1.Tilburg Law SchoolTilburgThe Netherlands

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