Chapter II provides for authorisation for existing bilateral agreements that Member States have concluded with third countries to remain in force.
Article 2 requires Member States to notify to the Commission of all agreements that they wish to maintain under the terms and conditions of the Regulation. Agreements which have been concluded but not entered into force would equally fall under Article 2.
Article 3 authorises the maintenance in force of all existing agreements between Member States and third countries relating to investment that have been notified by Member States, starting upon the entry into force of this Regulation. This authorisation is without prejudice to the obligations of Member States under the law of the Union.2
Article 4 provides for the annual publication of all notified agreements in the Official Journal, to ensure that the exact scope of the legal coverage provided by the Regulation is known by all stakeholders.
Article 5 provides for the review of agreements which have been notified. The review will identify quantitative and qualitative aspects of the agreements in place, as well as the possible obstacles the agreements could present to the implementation of the common commercial policy. In particular, the Commission will assess whether the agreements or provisions thereof conflict with the law of the Union, undermine negotiations or agreements relating to investment between the Union and third countries, or undermine the Union's policies relating to investment, including in particular the common commercial policy. No later than five years after the entry into force of this Regulation, the Commission will present a report based on the review of the agreements and any possible recommendations to discontinue the application of the provisions of Chapter II or to modify these provisions.
Article 6 details the possible withdrawal of the authorisation granted under this Chapter. A withdrawal of authorisation may be necessary for one or more agreements with a given third country when these agreements conflict with the law of the Union. Secondly, authorisation could be withdrawn where an agreement overlaps, in part or in full, with an agreement of the Union in force with that third country and this specific overlap is not addressed in the latter agreement. For example, reference is made to a scenario where the Union concludes a free trade agreement with a third country with provisions concerning investment and six Member States have an agreement in place with similar provisions concerning investment. If the agreement concluded by the EU with the third country does not provide for the replacement of the six agreements of the Member States with the third country, then Article 6 would be applicable. The Commission has set out in a Communication adopted in parallel with this proposal its views on the international investment policy that it intends to pursue, including the countries with which it contemplates, in an initial phase, to negotiate agreements concerning investment. Finally, the authorisation of one or more agreements could be withdrawn where an agreement undermines the Union's policies relating to investment, including in particular the common commercial policy (e.g. where the existence of agreements undermines the willingness of a third country to negotiate with the Union), or where the Council has not taken a decision on the authorisation to open negotiations concerning investment within one year of the submission of a recommendation by the Commission pursuant to Article 218(3) of the Treaty. Article 6 provides for consultation between the Commission and Member State(s) concerned through which the concerns giving rise to a possible withdrawal of authorisation are to be addressed.