This presentation by Andreas List was made at the session " Evolving approaches to treaty policy in ASEAN and beyond" during the 2nd ASEAN-OECD Investment Policy Conference held on 10-11 December 2014. Find out more at: http://www.oecd.org/daf/inv/investment-policy/2014-asean-oecd-investment-policy-conference.htm

1. EU Foreign Investment Policy
2nd ASEAN-OECD Investment Policy Conference
Jakarta, 10-11 December 2014
Andreas List, EU Delegation

2. The (new) EU competence on FDI
EU competences related to investment:
FDI is explicitly mentioned as forming part of the common commercial policy
(Article 207 TFEU)
Common commercial policy is explicitly mentioned as one of the Union’s
areas of exclusive competence (Article 3(1)e TFEU)
EU role vs. MS role
When the Treaties confer on the Union exclusive competence in a specific
area, only the Union may legislate and adopt legally binding acts, the Member
States being able to do so themselves only if so empowered by the Union (…)
– Article 2(1) TFEU

3. Regulation 1219/2012 establishing
transitional arrangements
for Member States' BITs with third countries
Purpose:
 Grandfathering: Regulation ensures validity under EU law of existing Member States'
BITs (which anyway remain valid under international law)
- Member States may maintain their BITs until they are replaced by the Union's
agreement with the same third countries (replacement)
 Empowerment: Regulation provides the legal basis for empowering Member States to
negotiate (or re-negotiate) and conclude BITs
- Commission may authorize Member States' negotiations/agreement with countries not
immediately scheduled for EU negotiation, provided certain conditions are met
 Relations with EU policy: Commission under obligation to assess whether Member
States' BITs do not undermine imminent or ongoing EU negotiations.
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4. Member States' negotiations
Authorisation can only be refused if Member States' negotiation / agreement:
(a) is in conflict with Union law;
(b) is superfluous, because the Commission has submitted a
recommendation to open investment negotiations at the EU level;
(c) is not consistent with the Union's principles and objectives for external
action; or
(d) constitutes a serious obstacle to the negotiation or conclusion of bilateral
investment agreements with third countries by the Union.
As part of authorisation, Commission may require to include specific clauses
(e.g. so called REIO clause for the EU measures).
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5. Member States' negotiations (cont.)
Stages of authorisation procedure:
 opening of negotiations (article 9),
 signature and conclusion of an agreement (article 11).
By mid-2014, Commission has issued:
• 58 authorisations to open new negotiations and 29 to open re-negotiations
of existing agreements;
• 11 authorisations to sign and conclude new agreements and 7 for
protocols to existing BITs with third countries.
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6. Member States' investment agreements
 There are 1382 bilateral investment agreements signed by Member States
with 149 third countries
Once a year, the Commission publishes list of all Member States' agreements
falling under Regulation (2014 publication in the Official Journal 2014/C
169/01)
 Member States' agreement will stay in force only until replaced by Union's
agreements*
(* by fulfilling current EU negotiating agenda, up to 197 Member States'
agreements shall be replaced)
 Member States shall take any appropriate measures to ensure that their
agreements do not constitute a serious obstacle to the negotiation and
conclusion of EU agreements

7. EU negotiations
Objectives:
Uniform treatment of EU investors (replacement of MS'
agreements)
Better investment opportunities
High level of protection, while continuing to ensure the right
to regulate and pursue public policy objectives
Consistency with objectives and principles of EU external
action including sustainable development and human rights

8. EU negotiations (cont.)
What & with whom:
Investment protection provisions in EU FTAs: Canada (closed), Singapore
(closed), India, Vietnam, Thailand, Malaysia, Japan, Morocco, Tunisia, Egypt,
Jordan, US.
Self-standing investment agreements: China, Myanmar.
Process:
Recommendations from Commission to Council of Ministers on opening
negotiation and negotiating objectives;
Council Decision authorising Commission to negotiate (mandate);
Commission negotiates, supported by a committee of Member States'
representatives;
Once negotiation is concluded, EP consents Council Decision to sign and
conclude EU agreement.

9. Investment negotiations with ASEAN
 Singapore –
September 2011 launch of investment negotiations; conclusion in October 2014
The final text: http://trade.ec.europa.eu/doclib/docs/2014/october/tradoc_152844.pdf
 Vietnam -
October 2013 launch of investment negotiations; 6 negotiation rounds on investment;
expected finalisation in the 1st
half 2015
 Thailand -
March 2013 launch of FTA negotiations; 4 negotiating rounds held so far
 Malaysia -
October 2010 - launch of FTA negotiations; investment negotiations not started
 Myanmar –
March 2014 launch of investment negotiations

10. Thank you!
More info on EU investment policy:
http://ec.europa.eu/trade/policy/accessing-markets/investment/