Common Commercial Policy

Książka jest aktualnym i kompleksowym opracowaniem przedstawiającym główne komponenty wspólnej polityki handlowej (WPH). Przedstawiono w niej istotę i ewolucję WPH, proces zarządzania nią, instrumentarium oraz strategiczne priorytety jej bieżącej realizacji. Istotną wartością publikacji jest aktualność omawianych zagadnień oraz przedstawienie ich w szerokim kontekście zmian zachodzących na wszystkich płaszczyznach kształtowania wspólnej polityki handlowej, tj.: na forum Światowej Organizacji Handlu, jak również w działaniach podejmowanych przez UE na poziomie dwustronnym i jednostronnym. Książka jest adresowana głównie do studentów, pracowników naukowych i naukowo-dydaktycznych oraz pracowników administracji państwowej zainteresowanych aktualizacją i poszerzeniem wiedzy w zakresie wspólnej polityki handlowej Unii Europejskiej i kształtowania gospodarczo-handlowych relacji UE z państwami trzecimi.

In 2011, the European Union published its first integrated framework to address a regional crisis in Africa: the Sahel strategy. It aims at enforcing the principles of the comprehensive approach by using CSDP military and civilian missions, humanitarian aid, development cooperation, trade policies and diplomatic action in a coherent and complementary way. The expected result is to put the Sahel region back on track by initiating a virtuous circle of security, state capacity building and development. To achieve this goal, European Institutions have first worked at a structural level, towards a better civil-military coordination (e.g. with the creation of the CMPD) and cooperation (e.g. by using the EUDs as field coordination bodies). Second, new tools such as IcSP and AGIR have been created to ensure the complementarity of development cooperation with humanitarian aid on the one hand, and with further processing the security missions on the other. This paper aims at assessing if these initiatives permitted to fulfil the objective of a comprehensive approach in Sahel. But to do this, it will also tackle questions such as the Economic partnership agreement with West Africa, the geographical scale of the Sahel strategy and the intensity of the diplomatic involvement in the region.

Recently, some European countries and institutions have expressed concerns about a lack of reciprocity in foreign direct investment (FDI) treatment with third countries. Indeed, European investors in foreign countries often do not enjoy the same treatment that foreign investors receive in Europe. Member States and EU institutions legitimately relied upon reciprocity which is the basic principle of international trade and investment law and that aims at promoting mutual benefits of the parties involved in the trading system.
In particular, there is an increasing consensus among European politicians that a more efficient screening mechanism of inward FDIs in the European Union (EU) is needed in order to avoid takeovers of European strategic assets by non-European investors that could jeopardize European security and economy. Hence, this contribution tries to identify possible legal bases in the EU Treaties for the creation of a single UE body of FDI control (the so-called European Committee on Foreign Investment).
However, such a mechanism could affect some of the present international obligations undertaken by the EU with its trading partners. In this regard, this article tries to argue that the establishment of a European Committee on Foreign Investment could be legitimately pursued at the international level because of the reciprocity principle. Finally, the present contribution tries to provide some essential aspects of the Committee proposed here.

It seemed that Court of Justice of the European Union wanted to make it short and sweet: It took the Grand Chamber in its Achmea judgement less than fifteen pages to conclude that Investor-State dispute settlement in an intra-EU context is incompatible with EU law.

The Judgement is noteworthy in terms of both the conceptualisation as well as the application of the principle of autonomy of EU law. In terms of conceptualisation of the principle, what we witness in Achmea, read in conjunction with another decision, could be a first subtle attempt to enrich the principle with notions of the rule of law. In terms of application, the Court further strengthens legal equality, its judicial monopoly, and – perhaps even more importantly – the role of the Member States' courts, understood as " traditional permanent State courts " , in the judicial dialogue.

This study presents an analysis of trade and investment relations between the EU and India and the possible impact of the free trade agreement (FTA), currently under negotiation. The methodology applied to assess the impact of the FTA is based upon the Sussex Framework and the concepts of deep and shallow integration. The EU-Indian relations are outlined in the context of multilateral, bilateral and regional frameworks.
The study is divided into four sections. The first chapter sets the EU – India relations in a political context, elaborating on the legal basis of advancing stages of collaboration that led to the strategic partnership. The second chapter examines the Common Commercial Policy emphasising on the instruments and criteria applied by the EU in its external trade policy. Indian trade policy is briefly presented to assess the extent to which two partners’ policy positions overlap in regards to the FTA. The third chapter provides an overview of trade and investment patterns and flows between the EU and India over the last decade with the focus on trade in goods and services and on foreign direct investments (FDI). This chapter also elaborates on the specificity of Indian business environment leading to conflicts of interests with the EU. Chapter four provides an impact assessment of the FTA on the basis of the theory of deep and shallow integration. The potential impact is evaluated on the basis of selected issues which have caused a stalemate in the ongoing negotiations, namely tariff dismantling, pro- mobility clauses within the liberalisation of services, labour standards and intellectual property rights.
The findings of this study indicate that while the EU-India FTA remains a viable opportunity for both partners, the potential benefits are not always apparent for the stakeholders. For the EU, the FTA will prove beneficial only if it is followed by deep integration, implying a higher level of convergence of standards and elimination of non-technical barriers to trade in India. This causes resistance on the Indian side as in their view it infringes upon domestic methods of governance and implies costly reforms which India could not handle currently due to its high fiscal deficit and currency volatility. The EU is consistent in exercising its external trade policy in a sense that it has maintained its demands on the sustainable development chapter and liberalisation on FDI. However, the EU external trade policy is not fully effective since the EU has not been able to obtain substantial concessions from India on the most “comprehensive” elements disputed. The EU has low visibility in India and the FTA is perceived negatively by many stakeholders who feel excluded from the negotiation process — these factors further undermine the EU’s legitimacy and effectiveness.

This chapter discusses the European Union’s Trade Policy as one of the main connectors of the Union with the outside world, with the ensuing legal and policy ramifications going well beyond trade stricto sensu. Now that the dust of the EU’s reform process has begun to settle after entry into force of the Lisbon Treaty, it is time to take stock of the different ways in which trade serves as such a link. The chapter addresses three main aspects, reflecting the ascending level of ambition the EU shows to influence the outside world. First, the EU’s trade policy as a corollary of its internal market; second, the role of trade policy as a vehicle for various other external policies; third, the role of the EU’s trade policy in ‘constitutionalizing’ the system of global economic governance. In sum, three basic tenets emerge: First, where there is a common market, there needs to be a common trade policy. Second, where there is a common trade policy, foreign policy is right around the corner. Third, the more intertwined international trade and the foreign policy questions become, the greater the need for a (value-based, constitutional) framework balancing the different goals pursued and lending legitimacy to the decision-making process. However, this does not require any lofty ‘constitutional moment’, neither for the EU nor for the WTO, but the maintenance and further development of an effective legal system for international trade.

ii iii La Faculté n'entend donner ni approbation ni improbation aux opinions émises dans ce mémoire qui doivent être considérées comme propres à leur auteur. iv REMERCIEMENTS Je tiens à remercier le Professeur Francis Snyder pour ses conseils avisés durant la rédaction de mon mémoire ainsi que le Professeur Valérie Michel pour son aide précieuse. v LISTE DES ABRÉVIATIONS ACEA Association des constructeurs européens d'automobile. ACR Accord commercial régional ADPIC / TRIPS Aspects des droits de la propriété intellectuelle qui touchent au commerce / Trade related aspects of intellectual property rights AFTA ASEAN free trade agreement ALE / FTA Accord de libre-échange / Free trade agreement ALENA / NAFTA Association de libre-échange nord américain /North American Free Trade Agreement AMI Accord multilatéral sur les investissements ANASE / ASEAN Association des nations de l'Asie du sud-est / Association of south east Asian nations APE / PTA Accord de partenariat économique/ Preferential trade agreement ATTAC Association pout la taxation des transactions financières pour l'aide aux citoyens CACR Comité des accords commerciaux régionaux CE Communauté européenne CEPS Centre for European policy studies CIA Central Intelligence Agency CJCE Cour de justice des Communautés européennes DG Direction générale ECIPE European centre for international political economy Fasc. Fascicule AGCS/ GATS Accord général sur le commerce des services /General agreement on trade in services GATT General agreement on tarifs and trade / Accord général sur les tarifs douaniers et le commerce IDE /FDI Investissements directs à l'étranger / Foreign direct investments JTDE Journal trimestriel de droit européen vi Mercosur Mercado Comùn del sur MIC Accord relatif aux mesures concernant les investissements liés au commerce MSF Médecins sans frontières OCDE Organisation pour la coopération et le développement économiques OMC Organisation mondiale du commerce ONG Organisation non gouvernementale ORD Organe de règlement des différents PCC Politique commerciale commune PE Parlement européen PED Pays en développement PIB Produit intérieur brut PMA Pays les moins avancés PME Petites et moyennes entreprises RTDE Revue trimestrielle de droit européen Traité sur l'Union européenne UE Union européenne Vol. Volume vii SOMMAIRE PARTIE I -L'ACCORD DE LIBRE-ÉCHANGE DE SECONDE GÉNÉRATION : UN NOUVEL OUTIL Chapitre I -Les justifications externes du recours aux ALE de seconde génération Chapitre II -Les justifications internes du recours aux ALE de seconde génération PARTIE II -L'ACCORD DE LIBRE-ÉCHANGE DE SECONDE GENERATION : UN OUTIL CONTESTÉ Chapitre I -Les difficultés d'ordre conceptuel liées à l'utilisation des ALE de seconde génération Chapitre II -Les difficultés d'ordre factuel liées à l'utilisation des les ALE de seconde génération 6 Cette difficulté est renforcée par le fait que l'accord ne devrait entrer en vigueur qu'au 1 er juillet 2011. 7 Chiffres extraits du World Factbook de la CIA, la dernière version disponible datant de 2010. mondialisée » 20 . La commission évoque dans ce document un plan d'action dans le domaine du commerce international, en accord avec la doctrine Mandelson, fondé donc essentiellement sur l'optimisation de la compétitivité extérieure de l'Union. La Commission évoque dans ce plan d'action, de manière très précautionneuse, mais avec apparemment beaucoup de conviction et d'insistance, les bienfaits potentiels d'un recours effectif au bilatéralisme commercial en complément d'une participation au système multilatéral de l'OMC 21 . Si la Commission rappelle que l'utilisation des accords de libre-échange bilatéraux n'est pas nouvelle pour l'Union, elle en propose néanmoins une utilisation plus poussée que celle qui a pu en être fait jusqu'à présent. C'est là la véritable originalité de cet aspect du plan d'action de la Commission. En effet, la Commission déclare que : « alors que nos accords bilatéraux actuels soutiennent bien nos objectifs en matière de politique de voisinage et de développement, ils servent moins bien nos principaux intérêts commerciaux, (…). Le contenu de ces accords reste en outre limité. Nous devons continuer à inclure dans les négociations commerciales bilatérales d'autres questions, tout comme le rôle plus large de la politique commerciale dans les relations extérieures de l'UE » 22 . La Commission dans cette optique prône la conclusion d'un nouvel « accord type » dont le contenu axé sur la compétitivité serait « complet et ambitieux ». Ces nouveaux accords qu'ambitionne de conclure la Commission dans le cadre de sa nouvelle stratégie sont les « accords de libre-échange de seconde génération ».

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a "new legal order" distinct from international law—and it is concerned with the European Union as a global actor, a "strange animal" in that the EU is neither a state nor a classical international organization. This essay argues that in the emerging field of comparative foreign relations law, the law of EU external relations will be both a supporting pillar and important driver: A pillar, because, next to U.S. foreign relations law, it is one of the most vibrant scholarly discourses on the subject; and a driver, because it continues to be a fascinating comparator for national—especially federal—systems of foreign relations law that questions many of the assumptions underlying nation-based concepts and blurs the lines between national and international law.

In Opinion 2/15, the Commission, the European Parliament, the Council, and the Member States litigate whether the Union is exclusively competent to conclude the EU-Singapore Free Trade Agreement (EUSFTA) alone, or whether the EU ought to involve the Member States as independent parties to a ‘mixed’ agreement. The delineation of the material scope of EU Common Commercial Policy following the Lisbon Treaty reform of 2009 is central to this proceeding. The Court’s opinion stands in the tradition of seminal EU external competence litigation, such as Opinion 1/78 and Opinion 1/94. It is widely expected that the Court’s judgment will further clarify the Union’s constitutional identity in the area of EU external economic relations. It therefore has the potential to have profound implications for EU external economic governance. This note reviews the evolution of the Union’s Common Commercial Policy in context of the Court’s past jurisprudence and scrutinizes the relevant standards of analysis, which the Court employs in its competence enquiry. It is argued that the Court retains ample space for discretionary judicial decision-making, which surfaces at the intersection of the competence enquiry and the determination of appropriate legal bases. The clarification and further refinement of the Court’s analytical standards in its judgment and their transparent and consistent application could substantially reduce incentives for future litigation and inter-institutional political combat. The recent quarrels over the signing, provisional application, and conclusion of CETA provide sufficient emphasis to this point. Using the legal view of Advocate General as a benchmark, the paper discusses the practical implications of the Court’s judgment for EU trade and investment treaty-making. Finally, a number of institutional alternatives are proposed that may ‘save’ EU economic treaty-making from ‘mixity’ and the pitfalls of associated procedures in the EU and the member states.

This contribution analyses the implications of the Treaty of Lisbon for the nexus between the EU's Common Commercial Policy (CCP) and the protection of human rights. It is argued that the innovations of the Lisbon Treaty significantly affected the law and practice of the CCP in the sense that human rights considerations have become an integral part of the EU's trade policy. This is reflected both at the procedural level, with the practice of human rights impact assessments as a clear example; at the judicial level, with the Charter of Fundamental Rights as a key point of reference for assessing the legality of the EU's external action; and at the practical level, with the introduction of new initiatives and mechanisms aiming at the promotion of respect for human rights in the framework of the CCP.

The article elaborates on the significance of the duty of sincere cooperation as a legal principle in the Common Commercial Policy (CCP) of the European Union (EU), in particular as regards the relationship between the Union and its Member States. It argues that while the duty of sincere cooperation is a judicially enforceable duty visa -vis the Member States, it is losing some of its relevance in the context of the CCP. This is due to the fact that the Lisbon Treaty, as confirmed by the case law of the Court of Justice of the EU, expanded the scope of the CCP and clearly identifies it as an exclusive competence of the Union. Loyalty in the CCP, therefore, is mainly covered by the obligation to respect the exclusivity of the Union's international powers in this area. While this does not equate to the disappearance of the Member States as actors in international economic gover-nance, it does seriously constrain their leeway for autonomous action. In addition, the article applies this finding to a number of current developments surrounding the CCP. These include, firstly, the new Global Strategy for Foreign and Security Policy, which promotes the idea of a " joined-up " approach between different actors and policies; secondly, " Brexit " and the prospect of the United Kingdom negotiating new trade agreements of its own; thirdly, the position of the Member States in the WTO; and fourthly, the nature of the wave of new free trade agreements that the EU is negotiating and concluding.

The first 16 months of the EU's common commercial policy (CCP) in the post-Lisbon period provide indicative insights into how the European Parliament, the European Commission and the Council of Ministers interpret their respective roles under the new legal framework introduced by the Lisbon Treaty. This paper analyses the amendments, the institutional capacities to respond to the reform challenges and the evolving institutional balance applying to Lisbon-era common commercial policy. Against this backdrop, the paper gives an overview of the changing dynamics of EU trade and investment policy in a context of enhanced politicization resulting from the European Parliament's involvement in the decision-making process. Particular importance is given to the question whether enhanced EP involvement in decision-making has the potential to lead to a scenario resembling the policy process in the United States, where congressional responsibility for trade and investment policy has resulted in the capture of the policy agenda by special interest groups and snail-paced policy progress (if any) in recent years. Accordingly, the paper scrutinizes the political preferences that the European Parliament is introducing into current European trade policy debates as well as the framework legislation and trade agreements. Finally, it is argued that parliamentary involvement in making common commercial policy has the potential to narrow the gap between European public political preferences and perceptions, on the one hand, and actual EU trade policies on the other, and to place EU trade and investment policies on a foundation of renewed public political support. In the author's view, however, it is imperative that such an achievement is based on well-informed, responsible, sustainable and clearly communicated policy proposals from the MEPs, who respond to and seek to balance the multiplicity of interests of CCP stakeholders in European civil society and respect the Union's international obligations.

This article analyses the impact that the Comprehensive Trade and Economic Agreement (CETA) between the EU and Canada might have on the European energy sector once concluded by the Parties. While the CETA should contribute to boost the cooperation among governments, this shouldn’t happen for the cooperation between enterprises. Indeed, the investment chapter of the CETA shouldn’t allow a higher degree of openness to foreign investments between its Parties in the energy industry, which is considered a strategic sector both in the EU and in Canada. The article tries to suggest a solution to this problem from the European side. The considerations on the treatment of the energy sector provided by the CETA and on the investment chapter included in this agreement may be doubly useful. On the one hand, to better understand the relation among the new free trade agreements that the EU is negotiating with third countries and the protection of strategic industries, on the other, to have some guidelines to analyse the other treaties in negotiation as the TTIP with the USA.

Ensuring good global governance through trade is not just a powerful idea, or a ‘global strategy’; it is also firmly anchored in the highest laws of the European Union. Promoting good global governance through trade policy brings together two of the hallmarks of the EU as an international actor. On the one hand, it concerns the area of the EU’s most obvious asset, its economic clout. On the other hand, this relates to the idea of the EU not only as a ‘civilian power’, but as a ‘normative power’ which shapes the world around it by harnessing its economic strength according to a larger vision and based on values which go beyond the strictly economic realm. In order to capture the constitutional moorings of the mandate to pursue ‘good global governance’ through trade and to elucidate its implications, the present chapter shines the spotlights on this issue through three different lenses: historical, comparative and legal-institutional.
First, it retraces the evolution of this idea and its progressive codification in the course of time. Second, it puts the EU’s constitutional ‘conscience’ as a trade power into a comparative context. Against this double backdrop, the chapter then turns to the legal significance of such norms, addressing what they can – and cannot – achieve as norms of EU constitutional law.

The study is divided in three main parts:
In the e first part, the role of Common Commercial Policy (CCP) and Common Foreign and Security Policy (CFSP) is analyzed, providing information about the different actors and policy instruments involved in the institutional framework of the European Union (EU). A broader understanding of CFSP and CCP is considered useful in order to explain the interconnections between each other, regardless of the pillarization of policy spheres.

In the second part, the interdependence of trade and foreign policy is highlighted focusing on the dual-use (DU) goods case. More particularly, the intention here is to explore how the provisions adopted and practices followed, based on claims of public or national security, can cause distortions of competition or obstruct the smooth conduct of EU trade with third countries. Possible shortfalls and future challenges for the protection of the EU‟s security are also be outlined.

As a first step to achieve the above aim, the crucial role of the EU‟s export control of DU goods for the non-proliferation and trade policies is analyzed. Then an account of the historical background is given in order to unfold the evolution of the EU policies towards DU goods and shed some light on the interplay between CCP and CFSP in the course of time. Moreover, the policy-making and implementation of the EU export control regime is analyzed with a view to illustrating the configuration of DU policy under the current institutional framework of the EU. The contribution of the Treaty on the Functioning of the European Union (TFEU) to the current institutional setting and its impact on the DU export control regime is also examined.

The final step in the present study is to explain the mutual impact of the CCP and the CFSP regarding the DU goods case with a view to answering the question of whether the character of their relationship is complementary or competitive. The mutually reinforcing nature of these two policy domains appears to be a prerequisite for both the effective operation of the EU export control system and the overall success of the EU policies that are encountered in the DU policy-making system.

This paper tries to answer the following question: is it possible to create in the EU a Committee similar to the Committee on Foreign Investment in the US (CFIUS)?
The European Parliament considers that a European equivalent of the CFIUS would be desirable to protect the strategic sectors of the European economy. Therefore, the paper sets the essential aspects of the US model of control on Foreign Direct Investment (FDI) and tries to identify in the EU Treaties the proper legal basis for the institution of a Committee on FDI in Europe.
The legal basis deemed to be correct is Article 207 (2) of the TFEU (unilateral measures of common commercial policy). Thus, the EU Commission could be vested with the power to review the compatibility of inward FDI with the EU general interest through an EU regulation adopted in virtue of Article 207 (2). The Commission would be assisted by a Committee similar to the CFIUS.
Then, the paper explores the possible consequences of the adoption of such a regulation in the EU on the legal systems of the Member States.
At last, this work tries to demonstrate that the sole responsibility of the Member States in the field of national security, recognized by Article 4 (2) TEU, is not an obstacle to the adoption of the EU regulation assumed here.

The most controversial issues regarding EU international investment agreements are, on the one hand, the actual extent of the EU’s exclusive external competence over international investments and, on the other, the opportunity to include investor-state dispute settlement (ISDS) clauses in these agreements. The former issue is mainly a legal question, and it especially concerns the inclusion of portfolio investments in the EU’s exclusive external competence. In this respect, this article seeks to provide some insights on the opinion that the European Commission has recently requested from the Court of Justice on the free trade agreement between the EU and Singapore on the basis of the latest developments in the case law of the Court of Justice of the European Union. By contrast, the second issue is mainly a political question and focuses on the inclusion of ISDS in the investment chapter of the Comprehensive Trade and Economic Agreement (CETA) between the EU and Canada. In this respect, while highlighting the main criticisms of the inclusion of ISDS in CETA, it is argued that the right response to European concerns about ISDS provisions in CETA and in TTIP should not be the removal of ISDS from those agreements. Instead, in order to reduce the asymmetric conditions related to the regulatory powers of the parties to CETA, it would be opportune to ask whether it may be appropriate to adopt, in the EU, a system of control on foreign investments like the one existing in Canada and in the United States. In particular, it is demonstrated how the solution can be found in Articles 64(2) and 207(2) TFEU that could be used to adopt a regulation establishing an EU committee on foreign investment in charge of the review of inflow investments coming from non-EU countries in order to protect the EU’s general interests—first, EU security and welfare—just as the Committee on Foreign Investment in the United States and the Minister of Industry of Canada already do.

Double case note on the scope of the EU's Common Commercial Policy and the future of "mixed agreements" based on the two ECJ Grand Chamber Judgements

Case C-414/11, Daiichi Sankyo Co. Ltd and Sanofi-Aventis Deutschland
GmbH v. DEMO Anonimos Viomichaniki kai Emporiki Etairia Farmakon, Judgment of the Court (Grand Chamber) of 18 July 2013, EU:C:2013:520, and

Case C-137/12, European Commission v. Council of the European Union (European Convention on the legal protection of services based on, or consisting of, conditional access), Judgment of the Court (Grand Chamber) of 22 October 2013, EU:C:2013:675.

One of the distinctive aspects of the current EU —beyond its
conception as an economic organization— is the protection and promotion of human rights in its external action. In application of the mandate established in the TEU, in its relations with the rest of the world, the Union contributes to the protection of human rights, as well as the respect and development of international law through the execution of common policies. The Strategic Framework on Human
Rights and Democracy establishes the principles that provide for the integration of human rights in all policies of the Union. The common commercial policy is one of the axes of this action, in particular through two instruments: the clause on human rights and democracy —incorporated in trade agreements— and the Generalised system of preferences —granted to developing countries—. The basis
of these instruments is conditionality, majoritarian positive, aimed at gaining the confidence of third countries and incorporating them into trade to improve their economies. Even so, these instruments suffer from certain technical-legal and political problems, which may hinder the transparent and non-arbitrary action of the Union with respect to the protection of human rights.
Keywords: European External Edentity, common commercial policy, human rights and democracy clause, Generalised system of preferences, conditionality.

The European Parliament had long tried and failed to gain a substantive role in the Common Commercial Policy. The Treaty of Lisbon brought a breakthrough for the EP by giving it a veto over international trade treaties. The rule change originated at the Constitutional Convention. While it is generally accepted that the Convention was steered by a desire to make the EU more legitimate, it is argued here that the rule change resulted from the complex agency of MEPs that participated at the Convention, who simultaneously appealed to ill-informed national participants' sense of appropriateness and employed obfuscation tactics. The piece also makes a concerted effort to develop process tracing as a transparent and powerful tool for single case research. The evidence used to update our confidence in the causal mechanism is presented and evaluated in a structured manner in the appendix.

Settant'anni dopo la conferenza di Bretton Woods, che segnò l'inizio del percorso post-bellico di apertura dei mercati in un'ottica di libero scambio dei fattori della produzione 1 , il mondo sta nuovamente sperimentando un'intensa attività negoziale di carattere economico, che tuttavia non cela ragioni geopolitiche.

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Upon request by the JURI Committee, this study investigates the law and practice of arbitration across the European Union and Switzerland. It includes an in-depth examination of the practice and the laws relating to arbitration in each Member State of the European Union and Switzerland, as well as an examination of the involvement of Member States and the European Union in arbitration. While substantial harmony exists across the European Union at both the level of law and practice, the Study finds that arbitration in the European Union is predominantly regional, rather than transnational. It also concludes that investment arbitration is often a beneficial feature of investment agreements, although the terms of such agreements must be carefully designed.

In September, the EU Commission presented a proposal for the establishment of a common framework for the screening of non-EU FDI, which has recently been a hot topic in Europe. This Perspective tries to confront the Commission’s proposal with other solutions, including the establishment of a European Committee on FDI.

Since the establishment of the World Trade Organization (WTO) in 1994, important international actors such as the United States and the European Union (EU) have engaged in a process known as ‘competitive interdependence’ (CI). Alberta Sbragia (2010) used this term to refer to EU-U.S. structural competition. Each actor sought to advance its economic interests in relation to third country’s markets. In doing so, each can adopt different strategies. One might seek a multilateral deal, which involves many countries. The General Agreement on Tariffs and Trade (GATT) rounds are examples. One or both may focus on bilateral deals, which eventually conclude in free trade agreements (FTAs). Also, some other countries might adopt a unilateral stance to attract foreign chain production to their shores.

Romania does not yet have a separate law regulating the screening of foreign investments. Therefore, it is difficult to argue that the 2011 amendment to Romania's Competition Law, which allows the blocking of a takeover for national security reasons, can be considered an investment screening mechanism under EU Regulation 2019/452. If it can be considered as such, then the summary procedures described in the Competition Law fall short of the requirements of the EU Regulation. Compared to Romania, Hungary has very recently adopted Law LVII of 2018 and Government Decree 246/2018, which set up a detailed investment screening mechanism for national security reasons, in sensitive economic sectors. The Hungarian mechanism is mostly in line with the Regulation's mandatory minimum requirements. They only fall short when it comes to better detailing some of the grounds based on which non-EU, non-EEA, or non-Swiss foreign investors can have their investments blocked, and they do not include provisions on the protection of sensitive information. It is to be seen how effective the Hungarian mechanism becomes, as a number of foreign investors will be affected by it. 2

“Commercial” and “non-commercial” aspects of the copyright law - consequences of the challenges related to setting the demarcation line

This article discusses the issues related to the limits of the European Union competence in external relations in terms of the copyright law with a focus on the problem of defining its particular areas as “commercial” or “non-commercial”. According to Article 207 TFEU, the scope of the common commercial policy (under an exclusive competence of the EU) includes the commercial aspects of the copyright law; thus, it is vital to set a clear demarcation line.

Through the analysis of settled case law of the European Court of Justice (incl. judgement in case C-414/11 and in case C-114/12) the authors diagnose numerous problems related to determining whether and to what extent the European Union has the exclusive competence over the intellectual property law. This also leads them to a conclusion that the European Union has a very wide competence as regards the conclusion of agreements concerning intellectual property rights, what poses a substantial risk.