The Scope of the EU Treaty-Making Power on Foreign Investment: Between Wishful Thinking and Pragmatism

Abstract

Since the Treaty of Lisbon introduced ‘foreign direct investment’ into the provisions on the common commercial policy of the European Union (EU), the scope of that competence has raised a lively debate. Much less attention, however, has been paid to the rules on the free movement of capital in the Treaty on the Functioning of the European Union, although this area is highly relevant to clarify the blurred boundaries of the EU’s competence concerning foreign investment. This article reviews arguments from the chapter on the free movement of capital and from the recent European practice and case-law to shed light on the debate about the competence on foreign investment. It also depicts the circumstances in which the Court of Justice has to deliver its Opinion on the EU competence to sign and conclude the EU-Singapore Free Trade Agreement.