Conduct of Member States with regard to agreements with a third country
1. For all agreements falling within the scope of this Regulation, the Member State concerned shall inform the Commission without undue delay of all meetings which take place under the provisions of the agreement. The Commission shall be provided with the agenda and all relevant information permitting an understanding of the topics to be discussed. The Commission may request further information from the Member State concerned. Where an issue to be discussed might affect the implementation of the Union's policies relating to investment, including in particular the common commercial policy, the Commission can require the Member State concerned to take a particular position.
2. For all agreements falling within the scope of this Regulation, the Member State concerned shall inform the Commission without undue delay of any representations made to it that a particular measure is inconsistent with the agreement. The Member State shall also immediately inform the Commission of any request for dispute settlement lodged under the auspices of the agreement as soon as the Member State becomes aware of the request. The Member State and the Commission shall fully cooperate and take all necessary measures to ensure an effective defence which may include, where appropriate, that the Commission participates in the procedure.
3. For all agreements falling within the scope of this Regulation, the Member State concerned shall seek the agreement of the Commission before activating any relevant mechanisms for dispute settlement included in the agreement and shall, where requested by the Commission, activate such mechanisms. Such mechanisms shall include consultations with the other party to the agreement and dispute settlement where provided for in the agreement. The Member State and the Commission shall fully cooperate in the conduct of procedures within the relevant mechanisms, which may include, where appropriate, that the Commission participates in the relevant procedures.
In notifying the Commission of negotiations and their outcome in accordance with Articles 8 and 11, Member States may indicate whether any of the information provided is to be considered confidential and whether it can be shared with other Member States.
1. The Commission shall be assisted by the Advisory Committee for the Management of Transitional Arrangements on International Investment Agreements.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.
1Council Decision of 9 October 1961 on the standardisation of the duration of trade agreements with third countries and Council Decision of 16 December 1969 on the progressive standardisation of agreements concerning commercial relations between Member States and third countries and on the negotiation of Community agreements.
2For recent case law, see judgments C-205/06 and C-249/06 of 3 March 2009 and judgement C-118/07 of 19 November 2009, in which the Court of Justice of the European Union found that specific provisions of Bilateral Investment Treaties concluded by Austria, Sweden and Finland were incompatible with the EC Treaty and that the Member States concerned had not taken the appropriate steps to eliminate those incompatibilities. The same or similar clauses exist in other BITs concluded either before or after accession to the Union. In its judgements, the Court has called upon the Commission to engage in the role of facilitator on these matters.
3OJ L 200/52 of 31 July 2009, p. 25 and p. 46.
4See Proposal for a regulation of the European Parliament and of the Council laying down the rules and general principles concerning mechanism for control by Member States of the Commission's exercise of implementing powers, COM(2010) 83 final of 9 March 2010.
5See Article 10 of the abovementioned Commission proposal.
6For recent case law see judgments of the Court of Justice of the European Union in cases C-205/06, Commission v. Austria, C-249/06, Commission v. Sweden, and C-118/07, Commission v. Finland.