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The Lisbon Treaty extends exclusive European Union competence to foreign direct investment (FDI). After a transition period this should enable the EU to conclude either international investment agreements or comprehensive trade and investment agreements with third parties. This extension of the EU’s competence offers the opportunity of promoting EU competitiveness in global markets through increased investment and better access to key third country markets. It also facilitates a greater European influence over international investment agreements a key instrument in any response to globalisation. The EU will need to develop a coherent and balanced approach to investment if it is to make the most of these opportunities. In this the EU needs to address four major issues. First, the treaty provides no definition of FDI and thus the scope of EU exclusive competence. The EU institutions must therefore work towards a consensus on the scope of competence or how to manage mixed competence negotiations. Second, there is a need to define the main elements of an EU investment policy. This will involve agreement on standards for investment protection, dispute settlement and arbitral procedures as well as what the EU aims should be in terms of promoting ‘sustainable investment.’ Third, it will be necessary to decide on the basis of clear and objective criteria, which third countries should be given priority when it comes to negotiating EU level investment agreements. Finally, agreement must be found on how to manage the transition from member state bilateral investment treaties (BITs) to EU level investment agreements. This study provides background on the nature of these challenges and discusses the options for EU policy.
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