Compatibility of bilateral investment treaties (BITs) with EU law

17.4.2013

Question for oral answer O-000043/2013/rev.1
to the Commission
Rule 115
Daniel Caspary, Paweł Zalewski
on behalf of the PPE Group
David Martin, Bernd Lange
on behalf of the S&D Group
Silvana Koch-Mehrin
on behalf of the ALDE Group
Helmut Scholz
on behalf of the GUE/NGL Group
Franziska Keller
on behalf of the Verts/ALE Group

Three years after the entry into force of the Lisbon Treaty, a legislative framework for the EU’s exclusive competence on investment is slowly being established.

However, there are a number of issues concerning the interaction between EU law and international investment law that still need to be addressed.

1.  190 BITs have been concluded between Member States of the European Union. These BITs have a discriminatory effect as their investment protection standards vary across treaties and they are thus in breach of Article 18 of the Treaty on European Union. Moreover, these treaties conflict with the European Court of Justice’s monopoly on jurisdiction as regards EU law since they lead to parallel jurisprudence through different arbitration procedures. The Commission has taken the view that these treaties are incompatible with EU law and should be terminated. What steps has the Commission taken to force Member States to terminate these BITs?

2.   In 2009, the European Court of Justice ruled (in Cases C-118/07, C-249/06 and C-205/06) that provisions related to the free transfer of capital were in breach of EU law as they did not allow for the potential application of EU measures on capital movements. What steps has the Commission taken in order to address this particular conflict both in existing and new BITs concluded by the Member States and in the new EU investment agreements?

3.  Investor-state dispute settlement leads to the EU having a financial responsibility towards third-country investors. This financial responsibility cannot be properly managed if the standards of protection afforded in investment agreements significantly exceed the limits on liability recognised in the Union and in the majority of Member States. How will the Commission ensure that the level of investment protection afforded by future Union agreements to foreign investors is the same as, but no higher than, that granted to investors within the Union by EU law and the general principles common to the law of the Members States?

Tabled: 17.4.2013

Forwarded: 19.4.2013

Deadline for reply: 26.4.2013