Lo status degli accordi internazionali stipulati dagli Stati membri dell'Unione europea, tra giurisprudenza recente e nuove soluzioni normative

This article addresses the status of international agreements concluded by EU Member States from the standpoint of EU law, in light of both the ECJ’s recent case law on Art. 351 TFUE and the transitional arrangements for bilateral investment agreements (BITs) between Member States and third countries, established by Regulation (EU) No 1219/2012, which entered into force on January 2013. Firstly, it provides a general overview on the ECJ’s case law on the subordination clause contained in Article 351 paragraph 1 TFUE, to illustrate the shortcomings of the provision when Member States later on transfer power to the Union. Second, it focuses on Article 351 paragraph 2 TFUE, which stipulates that Member States whose agreements are not compatible with EU law shall take all the appropriate steps to eliminate such incompatibilities. A brief discussion follows on three judgments, rendered in 2009, in which the ECJ declared that Member States failed to fulfil such obligation with regard to BITs entered into with several third countries, vis-à-vis provisions of the TCE which have not been applied yet. Third, it draws a picture of the new Regulation dealing with the status of BITs concluded by Member States with third countries, which is intended to provide clarity as to the status of those agreements, after the EU was granted with a new competence on foreign direct investment by the Treaty of Lisbon. Finally, it considers whether this recent legislation should be taken as a general model-solution to reconcile the needs of developing European integration with the international autonomy of Member States.