Chapter III provides for the modification of existing agreements and the conclusion of new agreements. The procedural framework proposed is inspired by the empowerment mechanism set by Regulation No 662/2009 of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non- contractual obligations and Regulation No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations.3
Article 7 provides for the general framework under which Member States may conclude or modify bilateral agreements relating to investment.
Article 8 requires the notification to the Commission of a Member States' intent to modify an existing or to conclude a new bilateral agreement with a third country. Member States are requested to provide all relevant documentation relating to the re-negotiation or negotiation of an agreement, which can be made available to other Member States and the European Parliament subject to the requirements of confidentiality.
Article 9 details the substantive grounds on the basis of which the Commission would not authorise the opening of formal negotiations by Member States, which include notably the ground that a Member State initiative could undermine the objectives of EU negotiations or EU policy. The Commission may require a Member State to include in a negotiation appropriate clauses, for example with respect to (a) the termination of the agreement in the event of the conclusion of a subsequent agreement between the Union, or the Union and its Member States, on the one hand, with the same third country on the other hand (see for example the denunciation or replacement clauses set forth in Regulation 662/2009, Article 5), (b) transfer provisions or (c) most-favored nation treatment with a view to ensuring equal treatment of all EU investors in the relevant third country.
Article 10 requires that Member States keep the Commission informed of (re-)negotiations that have been authorised. In addition, the Commission may request to participate as an observer in the negotiations concerning investment between the Member State and the third country, to ensure full transparency and consistency with the Union's investment policy.
Article 11 deals with the end of the negotiating process and provides for the procedure and conditions under which Member States can be authorised to sign and conclude an agreement. Further to the notification of the agreement, which is to be submitted to the Commission before it is signed, the Commission assesses whether the agreement does not undermine imminent or ongoing EU investment negotiations or conflict with the obligations of EU law, including those under Part Three, Chapter 4 of Title V of the TFEU.
Article 12 provides for the review of authorisations that would be made pursuant to Chapter III of this Regulation. By reviewing the quantitative and qualitative aspects of the negotiations and agreements authorised, the Commission will assess the appropriateness of continuing the application of the provisions of Chapter III. The report and any possible recommendation to discontinue the application of the provisions of this Chapter or to modify these provisions will be presented no later than five years after the entry into force of the Regulation.