The Scope of the European External Competence in the Field of Investments

Abstract

This paper aims to make a contribution to the debate on the scope of the European competence on investment. This discussion has been fostered by the inclusion of foreign direct investment in the EU’s common commercial policy by the Treaty of Lisbon, and has come to a decisive moment with the Commission requesting an Opinion from the European Court of Justice on the Free Trade Agreement between the European Union and Singapore. In this study, we analyze the origin and content of the European competence on foreign direct investment within the common commercial policy in light of the recently adopted legislation and the practice of the European institutions. We also examine the express and implied powers to regulate investments deriving from the chapter on capital movements of the Treaty on the Functioning of the EU. Thereby, we explore the limits of this EU competence, whose emergence in the international law of investments should become one of the main vectors of renewal of this legal order, fostering international agreements more sensitive to the defense of general interests and of States’ legislative capacity.