Dear Sandra,
thank you very much for your interesting comment. Indeed, as you argue, the Court concludes that the power to terminate the Member States’ existing BITs with Singapore is ancillary to substantive investment obligations and, therefore, exclusive for FDI and shared for portfolio investment. The Court only relies on the doctrine of functional succession with regard to FDI: As the Lisbon treaty specifies an exclusive Union competence for FDI, the EU “takes the place of its Member States” (para 248). Hence, the EU has the competence to approve, by itself, a provision in an international agreement with a third party that replaces the Member States’ prior bilateral FDI commitments with Singapore (para 249). The termination of the Member States pre-existing portfolio investment obligations with Singapore is addressed in less than two paragraphs (255-256). The Court underlines that the termination of Member State BITs does not fall within exclusive Member State competence (para 256). Yet, it does not explain how the EU may use its shared competence to terminate Member State BITs as regards portfolio investment. Assuming the possibility of facultative “EU-only” treaty-making in areas of shared competences, this question adds an additional layer of complexity (and no less confusion!) to the EU’s external investment governance.
