“The Protection of the European Strategic Sectors”. The kind of protection that is at the heart of this doctoral thesis is the defence of the strategic companies established in the European Union (EU) from takeovers by foreign investors, that is to say investors from countries which are not part of the European Economic Area. This work aims, on the one hand, at outlining the main features of a screening mechanism of foreign investments at the EU level and, on the other, at identifying the proper legal basis in the EU Treaties for its establishment. Chapter 1 contains a non-exhaustive list of the European strategic sectors which consist in all the economic sectors in which the EU or its Member States have adopted rules to limit foreign investors’ right to acquire participations in strategic companies for reasons of public security. Indeed, the Court of Justice of the EU (CJEU) used the expression “strategic sectors” in relation to undertakings whose activities are deeply linked to the protection of public security. The EU notion of public security contains both internal and external security, but also the production of goods and the supply of services which are essential for the very existence of a country. Chapter 2 provides a comparative study of the present situation of strategic enterprises’ protection in three EU Member States (Germany, Italy and France). It shows that a fragmented landscape of foreign investment control rules adopted by national authorities represents both a constraint to an efficient internal market of capital movements, and a limit to an effective protection of the European strategic sectors. By contrast, an EU foreign investment control mechanism could lead to a less fragmented system of strategic companies’ protection, which would be able to encourage foreign investments. At the same time, a single EU body of foreign investment control should be more efficient in order to protect EU public security. Moreover, unlike Member States measures such as “golden shares”, this mechanism could enjoy a greater degree of compatibility with the fundamental freedoms of the Treaties. In effect, the CJEU recognises a “presumption of conformity” with the freedoms of movement to the EU secondary legislation which pursues objectives of general interest like the protection of public security. Chapter 3 analyses the most significant experience of foreign investment control at the global level, the Committee on Foreign Investment in the United States, in order to understand if it could be a suitable model for the establishment of a similar body in the EU, the Committee on Foreign Investment in the EU (CFIEU). Once outlined the key aspects of the CFIEU, chapter 3 focuses on the search of the most proper legal basis in the EU Treaties for its establishment. The study tries to demonstrate that Article 207(2) TFEU on unilateral measures of Common Commercial Policy (CCP) could be the right legal basis for the creation of the CFIEU. Indeed, after the Lisbon Treaty, the CCP has become an exclusive competence of the EU which also encompasses the admission and the treatment of foreign direct investments. In conclusion, chapter 3 tries to figure out the implications of the establishment of the CFIEU both on Member States competences (especially their exclusive competence on national security by virtue of Article 4 TEU), and on the international obligations undertaken by the EU towards third countries, with particular reference to the World Trade Organisation rules and international investment law.

LA PROTEZIONE DEI SETTORI STRATEGICI EUROPEI / F. Di Benedetto ; relatore: R. Cafari Panico ; correlatrice: A. Lang ; coordinatrice: I. Viarengo, B. Nascimbene. - : . DIPARTIMENTO DI STUDI INTERNAZIONALI, GIURIDICI E STORICO-POLITICI, 2016 Jan 20. ((28. ciclo, Anno Accademico 2015. [10.13130/di-benedetto-fabrizio_phd2016-01-20].

LA PROTEZIONE DEI SETTORI STRATEGICI EUROPEI

F. DI BENEDETTO
2016-01-20

Abstract

“The Protection of the European Strategic Sectors”. The kind of protection that is at the heart of this doctoral thesis is the defence of the strategic companies established in the European Union (EU) from takeovers by foreign investors, that is to say investors from countries which are not part of the European Economic Area. This work aims, on the one hand, at outlining the main features of a screening mechanism of foreign investments at the EU level and, on the other, at identifying the proper legal basis in the EU Treaties for its establishment. Chapter 1 contains a non-exhaustive list of the European strategic sectors which consist in all the economic sectors in which the EU or its Member States have adopted rules to limit foreign investors’ right to acquire participations in strategic companies for reasons of public security. Indeed, the Court of Justice of the EU (CJEU) used the expression “strategic sectors” in relation to undertakings whose activities are deeply linked to the protection of public security. The EU notion of public security contains both internal and external security, but also the production of goods and the supply of services which are essential for the very existence of a country. Chapter 2 provides a comparative study of the present situation of strategic enterprises’ protection in three EU Member States (Germany, Italy and France). It shows that a fragmented landscape of foreign investment control rules adopted by national authorities represents both a constraint to an efficient internal market of capital movements, and a limit to an effective protection of the European strategic sectors. By contrast, an EU foreign investment control mechanism could lead to a less fragmented system of strategic companies’ protection, which would be able to encourage foreign investments. At the same time, a single EU body of foreign investment control should be more efficient in order to protect EU public security. Moreover, unlike Member States measures such as “golden shares”, this mechanism could enjoy a greater degree of compatibility with the fundamental freedoms of the Treaties. In effect, the CJEU recognises a “presumption of conformity” with the freedoms of movement to the EU secondary legislation which pursues objectives of general interest like the protection of public security. Chapter 3 analyses the most significant experience of foreign investment control at the global level, the Committee on Foreign Investment in the United States, in order to understand if it could be a suitable model for the establishment of a similar body in the EU, the Committee on Foreign Investment in the EU (CFIEU). Once outlined the key aspects of the CFIEU, chapter 3 focuses on the search of the most proper legal basis in the EU Treaties for its establishment. The study tries to demonstrate that Article 207(2) TFEU on unilateral measures of Common Commercial Policy (CCP) could be the right legal basis for the creation of the CFIEU. Indeed, after the Lisbon Treaty, the CCP has become an exclusive competence of the EU which also encompasses the admission and the treatment of foreign direct investments. In conclusion, chapter 3 tries to figure out the implications of the establishment of the CFIEU both on Member States competences (especially their exclusive competence on national security by virtue of Article 4 TEU), and on the international obligations undertaken by the EU towards third countries, with particular reference to the World Trade Organisation rules and international investment law.
CAFARI PANICO, RUGGIERO
VIARENGO, ILARIA
NASCIMBENE, BRUNO
investimenti stranieri; foreign investment; settori strategici; strategic sectors; sicurezza nazionale; national security; sicurezza pubblica; pubblica sicurezza; public security; EU security; EU public security; sicurezza pubblica dell'Unione europea; pubblica sicurezza dell'Unione europea; CFIUS; energia; trasporti; telecomunicazioni; poste; servizio postale; istituti di credito; banche; settore della difesa; energy; transport; telecommunication; postal service; banking sector; defence sector; defense; politica commerciale comune; common commercial policy; articolo 207 TFUE; article 207 TFEU; misure unilaterali; unilateral measures
Settore IUS/14 - Diritto dell'Unione Europea
LA PROTEZIONE DEI SETTORI STRATEGICI EUROPEI / F. Di Benedetto ; relatore: R. Cafari Panico ; correlatrice: A. Lang ; coordinatrice: I. Viarengo, B. Nascimbene. - : . DIPARTIMENTO DI STUDI INTERNAZIONALI, GIURIDICI E STORICO-POLITICI, 2016 Jan 20. ((28. ciclo, Anno Accademico 2015. [10.13130/di-benedetto-fabrizio_phd2016-01-20].
Doctoral Thesis
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