On The New Development Of The Competence Of EU In The Field Of Investment

Before the entry into force of Lisbon Treaty,the fundamental treaties of EU haven't clarified the questions concerning the competence of EU.The general opinion of European Court of Justice is refusal to include investment into the exclusive competence of EU;after the entry into force of Lisbon Treaty,the foreign direct investment becomes the exclusive competence of EU,which shall be considered as a breakthrough.However,the EU Commission intends to extend the functions of EU,and includes the portfolio investment into the exclusive competence of EU through certain methods of treaty interpretation.This conclusion was applied in the process of concluding the EU-Singapore FTA,and EU Commission sought the consultant opinion from the European Court of Justice concerning what EU competences are involved in the EU-Singapore FTA.The European Court of Justice rejected this conclusion,and considered portfolio investment and the dispute settlement mechanism as shared competence between EU and EU member states.Chapter one is overview which analyses the division of EU competences in the fundamental treaties of EU,and the revision of Lisbon Treaty.The EU competences can be divided into the exclusive competence,the shared competence,the competence to define and implement a common foreign and security policy,and the competence to carry out actions to support,coordinate or supplement the actions of the Member States.There are two provisions dealing with the rules related to shared competence in the fundamental treaties of EU,but the conflicts between the two provisions are unable to be coordinated,and thus the discretion of European Court of Justice shall be applied case by case.The EU competence is developed from the Treaty Establishing European Committee to Lisbon Treaty,and the legal documents of EU Commission and European Court of Justice finally clarified the problems left in the treaties.Chapter two introduces the new development of EU competence in investment,which consists of the Towards a Comprehensive European International Investment Policy issued by the European Commission,and the 2/15 Opinion issued by the European Court of Justice.The Investment Policy mainly explains the EU's future investment policy,which include the portfolio investment into the exclusive competence through a series of methods of treaty interpretation.The logic of reasoning and legal authorities are slightly incomplete,and it bears no legal effect.Opinion argued against Investment Policy,and concluded that the portfolio investment and investment settlement shall be considered as shared competence which shall be subject to approval from EU member states before conclusion of treaties containing the abovementioned.Since there are more rationale in the Opinion,and it can be considered as the soft law with legal effects,the hierarchy of legal effect is higher than the Investment Policy,and the Opinion shall be applied if any conflicts occur.Chapter three deals with the influence on international investment law generated by the new development of EU investment competence.When signing the investment agreements with portfolio investment and investment dispute settlement,EU shall perform the concluding procedures of mixed agreements which render great influence from the European Parliament to the content of the agreement,and require the approval from EU member states to make the international agreement entry into force.Therefore,the contents of international agreements shall comply with the opinions of European Parliament during the negotiation of EU agreements.Meanwhile,some EU international investment agreements,including CETA,wasted some time because of the procedure.Chapter four targets on China.Since the Sino-EU BIT shall continue to negotiate,China shall obtain the opinions from the EU member states,and the European Council shall disclose to China the directives issued to the authorized delegates.Meanwhile,China can require the EU to sign and approve the BIT by way of hybrid acts,and the BIT shall include detailed provisions concerning provisional application.These methods can mitigate the problems brought about by the concluding procedure to Sino-EU BIT.