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Procedure : 2012/0163(COD)
Document stages in plenary
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Texts tabled :

A7-0124/2013

Debates :

PV 22/05/2013 - 19
CRE 22/05/2013 - 19

Votes :

PV 23/05/2013 - 13.3
CRE 23/05/2013 - 13.3
PV 16/04/2014 - 7.24
CRE 16/04/2014 - 7.24

Texts adopted :

P7_TA(2013)0219
P7_TA(2014)0419

Debates
Wednesday, 22 May 2013 - Strasbourg Revised edition

19. Financial responsibility linked to investor-state dispute settlement tribunals established by international agreements to which the EU is party - Bilateral investment treaties and EU law (debate)
Video of the speeches
PV
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  předseda. − Dalším bodem na pořadu jednání je společná rozprava o právních předpisech EU a mezinárodním investičním právu:

- zpráva, kterou předkládá Paweł Zalewski za Výbor pro mezinárodní obchod o finanční odpovědnosti v souvislosti se soudy pro urovnávání sporů mezi investorem a státem zřízenými mezinárodními dohodami, jichž je EU smluvní stranou, a

- otázka k ústnímu zodpovězení Komisi o dvoustranné dohodě o investicích a právu EU, kterou předkládají Daniel Caspary, Paweł Zalewski, David Martin, Bernd Lange, Silvana Koch-Mehrin, Helmut Scholz, Franziska Keller (O-000043/2013 - B7-0120/2013) (2013/2610(RSP)).

 
  
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  Paweł Zalewski, rapporteur. − Mr President, tomorrow we will vote on one of the most crucial reports of this term – one which falls within the scope of EU trade and investment policy. With this report we are taking the final step towards establishing a consistent and comprehensive common foreign EU trade policy. We have managed to set up a framework that will allow the EU to manage its financial responsibilities resulting from investor state dispute settlements (ISDS). As we know, various EU countries were – often, and with increasing frequency in recent years – subject to dispute settlements held at various tribunals. Now, after the entry into force of the Lisbon Treaty, it is the EU that has exclusive competence over foreign direct investment. It also takes responsibility for financial commitments resulting from lost civil cases.

The core issue in this file was obviously the right apportionment of the obligation to pay awards to an investor. In other words, the decision concerns when and under what conditions the EU pays the awarded sum, and when it is the obligation of the Member State concerned to do so.

I believe, along with other shadow rapporteurs here whom I would like to thank for their excellent cooperation, that we have managed to find a reasonable and widely acceptable solution, the best proof of this being that the vast majority of votes cast in the Committee on International Trade (INTA) were in support of my report. I am sure that here in the plenary we will also gain a big majority for this report and that soon we will be able to start our trialogue negotiations. It is vital for the EU to have the entire debate on this file completed and the regulation implemented as soon as possible.

Using this opportunity, I would like also to congratulate the Commission on preparing a very good draft, a very good proposal, which we could work on. Once the decision is taken by Parliament, we will discuss this in the trialogue.

I would now like to stop outlining the scope of my report, for I would like to take this opportunity to tackle another important issue that has been added to our agenda in relation to the ISDS dossier. It is the oral question that I tabled together with several other MEPs from various political groups on the interaction between EU law and international investment law. There are a number of so-called intra-EU bilateral investment treaties (BITs) concluded between various EU members. The Commission itself takes the view that these treaties are incompatible with EU law and that they should be terminated. I asked, therefore, what steps the Commission had taken to persuade the Member States to terminate these BITs.

In our question, we also tackled the issue of provisions related to the free transfer of capital and their compatibility with EU law, as well as the issue of the level of investment protection that will be granted to foreign investors in future Union agreements. There have recently been many concerns about the fact that those agreements might potentially grant foreign investors a higher protection level than that enjoyed by domestic investors from our Member States. Having just completed building up our external investment policy, I reckon that it is high time that we sort things out domestically within our own venue.

Having signalled those problems, I thank you for your attention and I count on a comprehensive debate on them in this House not only today, but in the near future, with a view to finding a satisfactory solution.

 
  
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  David Martin, author. − Mr President, firstly let me make it clear that my own Group does not believe that investor-state dispute settlements are necessary between mature legal systems. So we have grave doubts about including ISDS in our agreements with Canada, the USA, and other agreements where we are dealing with two sets of well-developed, mature legal structures.

Where ISDS does exist, there are three key issues that we are keen to emphasise: firstly, that it should give no advantage to foreign companies over domestic companies. We do not believe that there should be a system where a foreign company can claim for compensation when domestic companies are excluded from that avenue. Secondly, we do not believe that ISDS should in any way be allowed to limit public space for development of health, social, environmental and other policies.

We do not want to see a system where countries are sued, or the EU is sued, by companies because of changes in health or other legislation, as has happened elsewhere in the world. Thirdly, we want the system to be as transparent and as open as possible. It is very easy in such a system to use commercial confidentiality as an excuse for keeping all this away from the general public. That must not be allowed to happen. We have to know what cases exist, what the settlements were, what the grounds for complaint were, and so on. And all of that needs to be published.

So I repeat: there are circumstances where ISDS may be necessary, particularly if it helps in relation to a developed country, where it helps both European investors to invest and that country to attract investment that it might not otherwise attract. However, when you are dealing with mature legal systems, we do not believe that there is any justification for ISDS.

 
  
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  Helmut Scholz, author. − Mr President, even though it is late, this is a matter on which we are doubtless all agreed: investments are important. The rule of law is a central prerequisite for the flow of investments. Ensuring compliance with the law, however, is a task for the courts.

Commissioner, you want to ensure, in binding national agreements between the EU and third countries, the right for investors to take action against governments, leaving judgment to trade specialists to whom environmental or other social interests do not matter.

With this law you deprive the governments of the Member States of the right to defend their own political majority decisions, such as the withdrawal from nuclear energy. You even want to be able to force them to relinquish their position and take over the position of the Commission. What is the point then in having elections?

Internationally the number of such lawsuits has increased more than tenfold to nearly 500 at this moment in time. It is a mighty billion-dollar arbitration industry in its own right. On average we are talking about USD 8 million in legal costs and over USD 100 million in compensation claims per case.

This law creates the foundations for the plundering of the European Union and its Member States by specialised law firms and corporations. From which budget line do you want to pay for lost lawsuits? That is not clear, and we have to discuss the whole issue at length. I also want to thank the rapporteur; while we were discussing the report, we established that this question is still open and on the table.

I would also like to expand on the third question we raised. Companies in the European Union have to go via the ordinary courts, but you wish to enable investors from the outside to make use of the State method, which provides for far greater sums and compensation for damages. Do you intend to encourage companies to establish a branch abroad and then sue the EU or its Member States as an external plaintiff?

A recent study concludes that in the text foreseen on the agreement with Canada, the CETA agreement, the wording on the table enables exactly this procedure, and legal action could soon be started against us, for example regarding the legislation prohibiting or regulating fracking.

I therefore cannot agree to the proposed bill and we will probably reject it, but I would like to receive certain answers to the questions we raised.

 
  
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  Franziska Keller, Verfasserin. − Herr Präsident! Letztes Jahr gab es einen Höchststand von Klagen von Investoren gegen Staaten. 2012 wurden mit 52 Fällen die meisten Klagen pro Jahr eingereicht, seit es Investitionsabkommen gibt.

In 70 % der Fälle bekam die Investorin oder der Investor Recht. Ebenfalls 2012 wurde die höchste Entschädigung aller Zeiten verhängt, und zwar gegen Ecuador. Ecuador musste 1,77 Milliarden US-Dollar an Occidental wegen der Kündigung eines Ölvertrags zahlen. Das Urteil wurde von zahlreichen Experten als äußerst zweifelhaft eingestuft. Entwicklungsländer sind überdurchschnittlich oft Ziel solcher Klagen, und für sie bedeuteten die Strafzahlungen existenziell hohe Bürden.

Vattenfall verklagt momentan Deutschland wegen der Entscheidung zum Atomausstieg, die von einer breiten parlamentarischen Mehrheit getragen wurde, und will Entschädigungszahlungen von mehreren Milliarden Euro erhalten. Gerade diskutieren wir in Europa Moratorien und Verbote von Fracking. Viele Mitgliedstaaten haben diese auch schon umgesetzt. Es gibt berechtigte Sorgen, dass eine Aufnahme des Investorklagemechanismus in das Freihandelshandelsabkommen mit Kanada dazu führen könnte, dass Investoren europäische Regierungen wegen Fracking verklagen können. Ein Investor hat gerade die Regierung in Quebec wegen eines solchen Moratoriums verklagt.

An diesem System ist grundsätzlich etwas faul. Wie kann es sein, dass wir Investoren solche umfassenden Rechte einräumen und diese sogar demokratisch getroffene Entscheidungen aushebeln können? Wie kann es die Kommission verantworten, diesen Mechanismus in die Abkommen mit Kanada, USA und Indien aufnehmen zu wollen. Und wie kann die Kommission garantieren, dass unberechtigte Klagen außen vor bleiben? Solche Klagen unterlaufen demokratische Prozesse. Kosmetische Änderungen und auch mehr Transparenz alleine reichen nicht. Der gesamte Mechanismus gehört auf den Prüfstand.

 
  
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  Karel De Gucht, Member of the Commission. − Mr President, I would first like to thank the Committee on International Trade (INTA) and its rapporteur, Mr Zalewski, for this excellent report on the Commission’s Regulation on financial responsibility for investor-state dispute settlements. This is the third of three pillars of the EU’s investment policy. In this respect, I acknowledge Parliament’s own request in April 2011 for the Commission to legislate in the area of financial responsibility.

Turning to the INTA report, the Commission is, in general terms, ready to accept the bulk of Parliament’s amendments, either as drafted or subject to some further work on drafting. We are mainly concerned with those amendments which make it more difficult for the Commission to act to defend the Union’s interests, in particular some elements of Amendments 19, 27, 28 and 30. To give just one example, the Commission must be able to act simply when there is a risk to the interpretation of future agreements. Adding ‘serious’ makes it more difficult for the Commission to act to protect the Union’s interests.

I raise this point because this Regulation gives Member States power to defend themselves – and also, effectively, the EU – on the international stage. It means that a Member State on its own can offer interpretations of an EU agreement. However, these are no longer individual Member State agreements which affect only one Member State but agreements concluded at EU level affecting the EU, all the other Member States and all EU investors. Moreover, interpretation in one case will clearly have an effect on other cases which may involve EU institutions, other Member States and EU investors abroad. Developments in the Council might put this in doubt. We hope that Parliament will support the Commission in defending the unity of external representation in order to protect EU interests.

As I said, this is a very important proposal which will put in place a framework for years to come. While seemingly complex, it involves some key institutional questions which I trust Parliament will, like the Commission, seek to protect.

Let me now turn to the oral question. The Commission agrees that bilateral and investment treaties (BITS) between EU Member States do not comply with EU law. They have been challenged before national courts. These proceedings are still pending and there also seems to be widespread agreement among Member States that at least a lack of legal certainty persists. All the Member States except one have such intra-EU BITS in force. Commission officials have therefore initiated informal discussions with them with a view to reaching agreement on the joint termination of all these agreements within an agreed time frame.

Several Member States have already agreed bilaterally to terminate their agreements, and the Commission has encouraged them to proceed with doing so. However, in those cases where Member States are not willing to terminate agreements, the Commission is ready to play its role as a guardian of the Treaties so as to ensure compliance with EU law.

The European Court of Justice ruled in 2009 that provisions in the bilateral investment agreements of Austria, Sweden and Finland relating to the free transfer of capital were in breach of the EU Treaties and did not allow for the application of EU measures on the restriction of capital movements. The Member States concerned have been compelled to bring their agreements into compliance with their Treaty obligations or to denounce them.

The 2012 regulation establishing transitional arrangements for bilateral and investment agreements between Member States and third countries specifies that, where an existing investment agreement conflicts with substantive Union law, the Member State concerned has to request authorisation from the Commission to open renegotiation of such an agreement with a view to bringing it into compliance with EU law.

When formally authorising the renegotiation of an investment agreement, the Commission instructs the Member State concerned to amend it to ensure compatibility with substantive Union law, in particular through provisions ensuring that nothing in the agreement prevents the Member State concerned from fulfilling its obligations under EU law. When the negotiations are over, the Member State has to notify the Commission of the final outcome of its negotiations and, before authorising its signature, the Commission carries out a final verification of whether the conditions established in Regulation (EU) No 1219/2012 have been met. Under this Regulation, Member States can also be allowed to negotiate and conclude under certain conditions new bilateral investment agreements with third countries. Only agreements which are compatible with EU law can be authorised.

This process of authorising Member States to negotiate or sign new agreements or to renegotiate existing ones has only just started, with 29 requests so far for authorisation to sign or allow the entry into force of protocols amending existing BITS and 36 requests to open negotiations to amend existing BITS. The Commission is now issuing its first authorisations and we are keeping Parliament duly informed.

The Commission also ensures that EU investment agreements being negotiated at EU level are also fully in line with EU law. A specific reference to this objective is included in the recommendations for negotiating directives which the Commission has addressed to Council and which have been shared with Parliament.

Let me, finally, reassure you that the level of investment protection afforded by future investment agreements to foreign investors will be in line with general principles common to EU and Member State law. There is a broad consensus among EU institutions and all the relevant stakeholders that one of the main objectives of EU investment policy is to provide enhanced legal certainty and a high level of protection for investors in line with the best practices of EU Member States. These practices reflect not only fundamental principles of international law but also general principles that are common to the EU and its Member States’ legal systems, such as the principles of non-discrimination, the rule of law, access to justice, due process and the obligation to fully compensate in the event of expropriation. These are precisely the main elements and standards that we are covering in the EU investment protection agreements.

Parliament suggested in its 2011 resolution on the future European international investment policy that the breadth of interpretation left to arbitral tribunals should be reduced in order to increase legal certainty and better protect the public intervention domain. The Commission has endorsed this view and is endeavouring to better clarify the content of our investment protection standards without reducing the level of protection, for example by including useful guidance on the practice of arbitral tribunals.

As this is a joint debate on some rather detailed issues, I have spoken at length and did so to clarify the rationale for the Commission’s proposal. I look forward to Parliament’s support.

 
  
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  Bernd Lange, im Namen der S&D-Fraktion. – Herr Präsident, Herr Kommissar! Ja, wir haben Ihren Vorschlag unterstützt und haben ja auch gerade die Möglichkeiten der Kommission gestärkt, wohingegen auf der anderen Seite natürlich auch Mitgliedstaaten versucht haben, ihre eigene Kompetenz in diesem Bereich herauszukitzeln. Da waren wir also ganz auf Ihrer Seite, um die Kompetenz der europäischen Ebene zu stärken.

Wenn wir jetzt den Mechanismus haben, müssen wir natürlich auch genau überlegen, wann und wo wir ihn ansetzen. Und da müssen wir in den Verhandlungen mit Drittstaaten sehr genau die Bereiche abstecken, in denen der Mechanismus zur Anwendung kommt. Die Gestaltungsmöglichkeiten im Bereich der Sozialstandards, im Bereich der Umweltstandards, im Bereich der gesellschaftlichen Ausgestaltung von Gesetzgebung müssen einem Drittstaat erhalten bleiben, da darf dieses Instrument nicht greifen.

Nun zu der Frage: Brauchen wir so ein Instrument bei hochentwickelten Industrieländern? Gerade jetzt hat der amerikanische Kongress in Beziehung zu dem anstehenden Handelsabkommen mit der Europäischen Union deutlich formuliert, dass es keine Ungleichbehandlung von heimischen Investoren und ausländischen Investoren geben soll, weil eben beide Rechtssysteme voll entwickelt sind. Im Bereich voll entwickelter Rechtssysteme sollten wir also dieses Instrument nicht einsetzen.

Wenn wir etwas aushandeln, dann ist es aber auch notwendig, die Frage der sozialen Verantwortung der Investoren mit einzubeziehen, also CSR mit zu integrieren. Herr Kommissar, die Belgier – Ihre Landsleute – haben ja in einem bilateralen Investitionsabkommen genau das gemacht, und zwar modellhaft. Und dann noch einmal zu den 190 innerhalb der EU bestehenden Investitionsabkommen. Da frage ich mich wirklich: Sind die alle noch notwendig, um in einem Binnenmarkt vernünftig miteinander umzugehen?

 
  
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  Gerard Batten (EFD). - Mr President, I would like to apologise in advance for digressing from the subject of this debate and using my time to make reference to a shocking incident that has happened in my constituency, London, today. There has been a particularly cowardly and disgusting terrorist murder of a man in Woolwich. Initial reports indicate that the victim appears to be a member of Her Majesty’s Armed Forces.

I am sure that all of you, like me, will offer your deepest sympathy to the victim’s family, friends and colleagues. It is not possible to express the depth of outrage that all decent people will feel at this latest expression of barbaric and mindless terrorism. This crime will be condemned by all decent people.

The people of London and the members of Her Majesty’s Armed Forces will not be intimidated by such terrorists and their mindless, primitive violence.

 
  
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  President. − It was not done in accordance with our rules, but we will let it be.

 
  
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  Kriton Arsenis (S&D). - Mr President, we are discussing today the investor-state dispute mechanism, which is the first time the Commission has used its right, under CETA, to decide on and agree investment protection agreements.

It is the EU’s competence now – and why has this competence been transferred from the Member States to the EU? Because the Member States believe, and citizens believe – in accordance with the Lisbon Treaty – that the Commission and the European Union can better guarantee labour rights and other sensitive issues that have proven to be better managed at EU level than in the Member States.

Nevertheless, we now see the Commission introducing the form of investor protection which is, according to the Commission’s impact assessment, most likely to endanger democracy, labour rights and much of the legislation that this Parliament will decide from now on.

I will be very brief and ask the Commissioner to explain the commitment the Commission made in discussions with the Environment Committee to bring specific solutions to address CETA, the new trade agreement with Canada. I would like to raise the issues of treaty-shopping, third-party finance and the protection of the principles of impartiality and transparency which exist in the European Courts but not in the ISDS. How, specifically, are you going to protect and address these three issues?

 
  
 

Zahájení vystoupení na základě přihlášení se zvednutím ruky.

 
  
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  João Ferreira (GUE/NGL). - Senhor Presidente, os acordos comerciais e de investimento são um importante instrumento de política económica. Eles não são instrumentos neutros. Dependendo da sua natureza e objetivos, podem servir o desenvolvimento e o progresso social ou podem, pelo contrário, servir a acumulação de riqueza por parte de grandes grupos económicos transnacionais.

São interesses antagónicos e irreconciliáveis. Pela sua natureza e objetivos, a União Europeia toma o partido das multinacionais e tendo adquirido, com o Tratado de Lisboa, ilegitimamente competência exclusiva neste domínio, pretende coartar qualquer possibilidade de se prosseguir um outro caminho. É um problema que terá de ser resolvido, mais cedo que tarde, revertendo esta e outras disposições de um tratado que fugiu ao escrutínio democrático dos povos.

Se são distintas as necessidades das diferentes economias, porque distinto é desde logo o seu estádio de desenvolvimento, distintas serão também as suas necessidades ao nível dos acordos de investimento. E distintas poderão ser as suas opções neste e noutros planos e essas opções terão de ser respeitadas.

 
  
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  Elena Băsescu (PPE). - Uniunea Europeană nu ar trebui să răspundă juridic pentru acţiunile individuale ale unor state membre. În cazul acordurilor bilaterale de investiţii, fiecare stat membru este responsabil de nerespectarea prevederilor actelor respective.

Acest lucru este cu atât mai important cu cât investiţiile bilaterale au devenit, după adoptarea Tratatului de la Lisabona, o competenţă comunitară. Însă cele 190 de tratate bilaterale de investiţii între stelele membre au un efect discriminatoriu, deoarece standardele de protecţie variază de la un tratat la altul. În plus, există cazuri în care investitorii din afara Uniunii se bucură de mai multe drepturi şi privilegii decât cei din interior. Acest fapt este inacceptabil, deoarece creează bariere pe piaţa unică şi descurajează investiţiile intracomunitare.

 
  
 

(Konec vystoupení na základě přihlášení se zvednutím ruky.)

 
  
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  Karel De Gucht, Member of the Commission. − Mr President, I am not going to repeat what I said in my rather long introduction, but let me just come back to a couple of issues. David Martin raised the question of what kind of trade agreements you would need ISDS in. Obviously you need it when it is an agreement with a third country that does not have a properly-functioning judicial system, where one can have doubts about the rule of law. That of course is not the case, for example, with the negotiations which are probably going to start in the coming months with the United States, where you have a properly-functioning system as well as lawyers who are interested in this kind of dispute settlement, so this is an interesting question to disentangle.

What we need – and I think David can agree on this – is a European way to approach this whenever it is in an agreement, whenever we decide to have it. For example, in CETA there are provisions on that – or rather in what we have been discussing up to now, as CETA does not exist yet. For example, there are very clear provisions with respect to transparency. So we have been limiting very clearly the scope of what arbitrators can do. I also gave a number of examples in my introduction on this.

I know it all looks very technical, but I agree with a number of speakers who said that in the end all this is also rather political. It is about political choices –– but be assured, honourable Members, that whenever we have that kind of clause in a trade agreement, we will make sure that we very clearly define the scope of such a possible arbitration dispute.

The second thing I would like to say is this: the fact that investment policy has become an exclusive EU competence means that you now need new legislation on a number of issues which in the past were in the hands of the Member States. If not, you cannot apply it at the level of the European Union. That goes for ISDS, and it also applies to the question of who is ultimately responsible when something has to be paid. I can also understand if Member States want to defend their interests in such a case, because in the end they can become liable. We have to find a formula within which everyone can take the lead when they are the ultimate responsible entity. On top of that, the Commission has to make sure that whatever defence is put into place is also compatible with EU law.

I think that is the main reason why there should be what could be seen as an intrusive action into a position taken by a Member State whenever it is not compatible with EU law. This is very sensitive and also very technical, which is also demonstrated by the number of people present in Parliament at this time. But it is important if we want to put our relations with the Member States right.

 
  
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  Paweł Zalewski, rapporteur. − Mr President, I would like to thank everybody who made comments on the dossier, on the final report accepted by INTA. I would also like to thank the Commissioner for his clarifications. It is really important to understand that, whenever it is possible, whenever our partner has a mature legal system and an independent judiciary which can bring about improvements and the realisation of the rule of law, then we will limit our ISDS regulations.

However, it is clear – and you, Commissioner, confirmed – that it is needed in many cases, and that we have to vote for this instrument. It is greatly needed in many cases just to protect and secure our European investments abroad. Therefore, I will ask tomorrow for votes in favour of the version which was adopted by the INTA committee without any amendments. I would like to ask for your support for this report. Once again thank you very much.

 
  
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  President. − The debate is closed.

The vote will take place on Thursday, 23 May 2013.

 
Last updated: 19 July 2013Legal notice