HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 351/40
EN
Official Journal of the European Union
20.12.2012
REGULATION (EU) No 1219/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 12 December 2012
establishing transitional arrangements for bilateral investment agreements between Member States
and third countries
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
The TFEU does not contain any explicit transitional
EUROPEAN UNION,
provisions for such agreements which have now come
under the Union’s exclusive competence. Furthermore,
some of those agreements may include provisions
Having regard to the Treaty on the Functioning of the European
affecting the common rules on capital movements laid
Union, and in particular Article 207(2) thereof,
down in Chapter 4 of Title IV of Part Three TFEU.
Having regard to the proposal from the European Commission,
(5) Although
bilateral
investment
agreements
remain
binding
on the Member States under public international law and
will be progressively replaced by agreements of the
After transmission of the draft legislative act to the national
Union relating to the same subject matter, the conditions
parliaments,
for their continuing existence and their relationship with
the Union’s investment policy require appropriate
management. That relationship will develop further as
Acting in accordance with the ordinary legislative procedure (
the Union exercises its competence.

1 ),
Whereas:
(6) In
the
interest
of
Union
investors
and
their
investments
in third countries, and of Member States hosting foreign
investors and investments, bilateral investment
(1)
Following the entry into force of the Treaty of Lisbon,
agreements that specify and guarantee the conditions of
foreign direct investment is included in the list of matters
investment should be maintained in force and
falling under the common commercial policy. In
progressively replaced by investment agreements of the
accordance with Article 3(1)(e) of the Treaty on the
Union, providing for high standards of investment
Functioning of the European Union (‘TFEU’), the
protection.
European Union has exclusive competence with respect
to the common commercial policy. Accordingly, only the
Union may legislate and adopt legally binding acts within
that area. The Member States are able to do so them
(7) This
Regulation
should
address
the
status
under
Union
selves only if so empowered by the Union, in accordance
law of bilateral investment agreements of the Member
with Article 2(1) TFEU.
States signed before 1 December 2009. Those
agreements can be maintained in force, or enter into
force, in accordance with this Regulation.
(2) In
addition,
Chapter
4
of
Title
IV
of
Part
Three
TFEU
lays
down common rules on the movement of capital
between Member States and third countries, including
(8) This
Regulation
should
also
lay
down
the
conditions
in respect of capital movements involving investments.
under which Member States are empowered to
Those rules can be affected by international agreements
conclude and/or maintain in force bilateral investment
relating to foreign investment concluded by Member
agreements signed between 1 December 2009 and
States.
9 January 2013.
(3) This
Regulation
is
without
prejudice
to
the
allocation
of
competences between the Union and its Member States
(9) Moreover,
this
Regulation
should
lay
down
the
in accordance with the TFEU.
conditions under which Member States are empowered
to amend or conclude bilateral investment agreements
with third countries after 9 January 2013.
(4)
At the time of the entry into force of the Treaty of
Lisbon, Member States maintained a significant number
of bilateral investment agreements with third countries.
(10) Where bilateral investment agreements with third
countries are maintained in force by Member States
( 1 ) Position of the European Parliament of 10 May 2011 (not yet
under this Regulation, or authorisations have been
published in the Official Journal) and position of the Council at
granted to open negotiations or conclude such agree
first reading of 4 October 2012 (OJ C 352 E, 16.11.2012, p. 23).
Position of the European Parliament of 11 December 2012 (not yet
ments, that should not prevent the negotiation or
published in the Official Journal).
conclusion of investment agreements by the Union.

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20.12.2012 Official
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Union L
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(11) Member States are required to take the necessary
and general principles concerning mechanisms for
measures to eliminate incompatibilities, where they
control by Member States of the Commission’s exercise
exist, with Union law, contained in bilateral investment
of implementing powers ( 2 ).
agreements concluded between them and third countries.
The implementation of this Regulation is without
prejudice to the application of Article 258 TFEU with
respect to failures of Member States to fulfil obligations
(18) Specifically,
those
powers
should
be
conferred
on
the
under Union law.
Commission given that the procedures set out in
Articles 9, 11 and 12 empower Member States to act
in areas of the Union’s exclusive competence and
decisions thereon must be taken at Union level.
(12) The authorisation to amend or conclude bilateral
investment agreements provided for by this Regulation
should notably allow Member States to address any
(19) The
advisory
procedure
should
be
used
for
the
adoption
incompatibilities between their bilateral investment
of authorisations pursuant to Articles 9, 11 and 12,
agreements and Union law, other than incompatibilities
given that those authorisations are to be granted on
arising from the allocation of competences between the
the basis of clearly defined criteria established in this
Union and its Member States, which are addressed in this
Regulation,
Regulation.
HAVE ADOPTED THIS REGULATION:
(13) The Commission should present to the European
Parliament and the Council a report on the application
of this Regulation. That report should, inter alia, review
CHAPTER I
the need for the continued application of Chapter III.
SCOPE
Where the report recommends discontinuing the appli
cation of the provisions of Chapter III or where it
Article 1
proposes modifying those provisions, it may be accom
Subject matter and scope
panied, if appropriate, by a legislative proposal.
1. Without
prejudice
to
the
division
of
competences
estab
lished by the TFEU, this Regulation addresses the status of the
bilateral investment agreements of the Member States under
(14) The European Parliament, the Council and the
Union law, and establishes the terms, conditions and procedures
Commission should ensure that any information
under which the Member States are authorised to amend or
identified as confidential is treated in accordance with
conclude bilateral investment agreements.
Regulation (EC) No 1049/2001 of the European
Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council
2. For the purpose of this Regulation the term ‘bilateral
and Commission documents ( 1 ).
investment agreement’ means any agreement with a third
country that contains provisions on investment protection.
This Regulation covers only those provisions of bilateral
investment agreements dealing with investment protection.
(15) Investment
agreements
between
Member
States
should
not be covered by this Regulation.
CHAPTER II
MAINTENANCE IN FORCE OF EXISTING BILATERAL
(16) It
is
necessary
to
provide
for
certain
arrangements
to
INVESTMENT AGREEMENTS
ensure that bilateral investment agreements, maintained
Article 2
in force pursuant to this Regulation, remain operational,
including as regards dispute settlement, while at the same
Notification to the Commission
time respecting the Union’s exclusive competence.
By 8 February 2013 or within 30 days of the date of their
accession to the Union, the Member States shall notify the
Commission of all bilateral investment agreements with third
countries signed before 1 December 2009 or before the date of
(17) In
order
to
ensure
uniform
conditions
for
the
implemen
their accession, whichever is later, that they either wish to
tation of this Regulation, implementing powers should be
maintain in force or permit to enter into force under this
conferred on the Commission. Those powers should be
Chapter. The notification shall include a copy of those
exercised in accordance with Regulation (EU) No
bilateral investment agreements. Member States shall also
182/2011 of the European Parliament and of the
notify the Commission of any subsequent changes to the
Council of 16 February 2011 laying down the rules
status of those agreements.
( 1 ) OJ L 145, 31.5.2001, p. 43.
( 2 ) OJ L 55, 28.2.2011, p. 13.

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L 351/42
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Official Journal of the European Union
20.12.2012
Article 3
appropriate measures to be taken by the Member State
concerned in order to remove the obstacles referred to in
Maintenance in force
paragraph 2.
Without prejudice to other obligations of the Member States
under Union law, bilateral investment agreements notified
pursuant to Article 2 of this Regulation may be maintained
CHAPTER III
in force, or enter into force, in accordance with the TFEU
and this Regulation, until a bilateral investment agreement
AUTHORISATION TO AMEND OR CONCLUDE BILATERAL
between the Union and the same third country enters into
INVESTMENT AGREEMENTS
force.
Article 7
Authorisation to amend or conclude a bilateral investment
Article 4
agreement
Publication
Subject to the conditions laid down in Articles 8 to 11, a
Member State shall be authorised to enter into negotiations
1. Every
12
months
the
Commission
shall
publish
in
the
with a third country to amend an existing or to conclude a
Official Journal of the European Union a list of the bilateral
new bilateral investment agreement.
investment agreements notified pursuant to Article 2,
Article 11(6) or Article 12(6).
Article 8
2. The first publication of the list of bilateral investment
Notification to the Commission
agreements referred to in paragraph 1 of this Article shall
take place no later than three months after the deadline for
1. Where
a
Member
State
intends
to
enter
into
negotiations
notifications made pursuant to Article 2.
with a third country in order to amend or conclude a bilateral
investment agreement, it shall notify the Commission of its
intentions in writing.
Article 5
Assessment
2. The
notification
referred
to
in
paragraph
1
shall
include
The Commission may assess the bilateral investment agreements
relevant documentation and an indication of the provisions to
notified pursuant to Article 2, by evaluating whether one or
be addressed in the negotiations or to be renegotiated, the
more of their provisions constitute a serious obstacle to the
objectives of the negotiations and any other relevant
negotiation or conclusion by the Union of bilateral investment
information.
agreements with third countries, with a view to the progressive
replacement of the bilateral investment agreements notified
pursuant to Article 2.
3. The
notification
referred
to
in
paragraph
1
shall
be
trans
mitted at least five months before formal negotiations are to
commence.
Article 6
Duty of cooperation
4. Where
the
information
transmitted
by
the
Member
State
1. The
Member
States
shall
take
any
appropriate
measures
to is not sufficient for the purposes of authorising the opening of
ensure that the provisions of the bilateral investment
formal negotiations in accordance with Article 9, the
agreements notified pursuant to Article 2 do not constitute a
Commission may request additional information.
serious obstacle to the negotiation or conclusion by the Union
of bilateral investment agreements with third countries, with a
view to the progressive replacement of the bilateral investment
5. The
Commission
shall
make
the
notification
referred
to
in
agreements notified pursuant to Article 2.
paragraph 1 of this Article and, on request, the accompanying
documentation, available to the other Member States subject to
the requirements of confidentiality laid down in Article 14.
2. If the Commission establishes that one or more of the
provisions of a bilateral investment agreement notified
pursuant to Article 2 constitute a serious obstacle to the
negotiation or conclusion by the Union of bilateral investment
Article 9
agreements with third countries, with a view to the progressive
Authorisation to open formal negotiations
replacement of the bilateral investment agreements notified
pursuant to Article 2, the Commission and the Member State
1. The
Commission
shall
authorise
the
Member
States
to
concerned shall enter into consultations expeditiously and
open formal negotiations with a third country to amend or
cooperate with a view to identifying the appropriate actions
conclude a bilateral investment agreement unless it concludes
to resolve the matter. Those consultations shall take no
that the opening of such negotiations would:
longer than 90 days.
(a) be in conflict with Union law other than the incompati
3. Without
prejudice
to
paragraph
1,
the
Commission
bilities arising from the allocation of competences between
may, within 60 days of the end of consultations, indicate the
the Union and its Member States;

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EN
20.12.2012 Official
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European
Union L
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(b) be superfluous, because the Commission has submitted or
are not subject to the obligation to notify under Article 2 or
has decided to submit a recommendation to open negoti
under Article 12.
ations with the third country concerned pursuant to
Article 218(3) TFEU;
3. Upon notification the Commission shall make an
assessment as to whether the negotiated bilateral investment
(c) be inconsistent with the Union’s principles and objectives
agreement conflicts with the requirements of Article 9(1)
for external action as elaborated in accordance with the
and (2).
general provisions laid down in Chapter 1 of Title V of
the Treaty on European Union; or
4. Where
the
Commission
finds
that
the
negotiations
have
(d) constitute a serious obstacle to the negotiation or
resulted in a bilateral investment agreement which fulfils the
conclusion of bilateral investment agreements with third
requirements of Article 9(1) and (2), it shall authorise the
countries by the Union.
Member State to sign and conclude such an agreement.
Articles 3, 5 and 6 apply to such agreements, as if they had
been notified under Article 2.
2. As
part
of
the
authorisation
referred
to
in
paragraph
1,
the Commission may require the Member State to include or
remove from such negotiations and prospective bilateral
5. Decisions
pursuant
to
paragraph
4
of
this
Article
shall
be
investment agreement any clauses where necessary to ensure
taken in accordance with the advisory procedure referred to in
consistency with the Union’s investment policy or compatibility
Article 16(2). The Commission shall take its decision within 90
with Union law.
days of receipt of the notifications referred to in paragraphs 1
and 2 of this Article. Where additional information is needed to
take the decision, the 90-day period shall run from the date of
3. The
authorisation
referred
to
in
paragraph
1
of
this
Article receipt of the additional information.
shall be granted in accordance with the advisory procedure
referred to in Article 16(2). The Commission shall take its
decision within 90 days of receipt of the notification referred
to in Article 8. Where additional information is needed to take
6. Where
the
Commission
grants
an
authorisation
pursuant
a decision, the 90-day period shall run from the date of receipt
to paragraph 4, the Member State concerned shall notify the
of the additional information.
Commission of the conclusion and entry into force of the
bilateral investment agreement, and of any subsequent
changes to the status of that agreement.
4. The
Commission
shall
inform
the
European
Parliament
and the Council about the decisions taken pursuant to
paragraph 3.
7. The
Commission
shall
inform
the
European
Parliament
and the Council about the decisions taken pursuant to
paragraph 4.
5. In the event that the Commission does not grant an auth
orisation pursuant to paragraph 1, it shall inform the Member
State concerned thereof and state the reasons therefor.
8. In the event that the Commission does not grant the
authorisation pursuant to paragraph 4, it shall inform the
Member State concerned thereof and state the reasons therefor.
Article 10
Participation of the Commission in negotiations
The Commission shall be kept informed of the progress and
CHAPTER IV
results of the negotiations to amend or to conclude a bilateral
FINAL PROVISIONS
investment agreement throughout the different stages and may
request to participate in the negotiations concerning investment
Article 12
between the Member State and the third country.
Agreements signed by the Member States between
1 December 2009 and 9 January 2013
Article 11
1. Where
between
1
December
2009
and
9
January
2013,
a
Member State has signed a bilateral investment agreement, that
Authorisation to sign and conclude a bilateral investment
Member State shall notify the Commission of such an
agreement
agreement which it wishes to maintain in force or permit to
1. Before
signing
a
bilateral
investment
agreement,
the enter into force by 8 February 2013. The notification shall
Member State concerned shall notify the Commission of the
include a copy of such an agreement.
outcome of negotiations and shall transmit the text of such
an agreement to the Commission.
2. Upon notification the Commission shall make an
assessment as to whether the bilateral investment agreement
2. This
Article
shall
also
apply
to
bilateral
investment notified pursuant to paragraph 1 of this Article conflicts with
agreements which were negotiated before 9 January 2013, but
the requirements of Article 9(1) and (2).

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L 351/44
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Official Journal of the European Union
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3. Where
the
Commission
finds
that
a
bilateral
investment
immediately inform the Commission of any request for
agreement notified pursuant to paragraph 1 of this Article fulfils
dispute settlement lodged under the auspices of the
the requirements of Article 9(1) and (2), it shall authorise the
bilateral investment agreement as soon as the Member
maintenance or entry into force of such an agreement under
State becomes aware of such a request. The Member State
Union law.
and the Commission shall fully cooperate and take all
necessary measures to ensure an effective defence which
may include, where appropriate, the participation in the
4. The
Commission
shall
take
the
decision
referred
to
in
procedure by the Commission;
paragraph 3 of this Article within 180 days of receipt of the
notification referred to in paragraph 1 of this Article. Where
additional information is needed to take the decision, the 180-
day period shall run from the date of receipt of the additional
(c) seek the agreement of the Commission before activating any
information. Decisions pursuant to paragraph 3 of this Article
relevant mechanisms for dispute settlement against a third
shall be taken in accordance with the advisory procedure
country included in the bilateral investment agreement and
referred to in Article 16(2).
shall, where requested by the Commission, activate such
mechanisms. Those mechanisms shall include consultations
with the other party to a bilateral investment agreement and
5. Unless
a
bilateral
investment
agreement
has
been
auth
dispute settlement where provided for in the agreement. The
orised under paragraph 3, the Member State shall not take
Member State and the Commission shall fully cooperate in
any further steps towards the conclusion of such an agreement,
the conduct of procedures within the relevant mechanisms,
and shall withdraw or reverse those steps which have been
which may include, where appropriate, the participation in
taken.
the relevant procedures by the Commission.
6. Where
the
Commission
grants
an
authorisation
pursuant
Article 14
to paragraph 3 of this Article, the Member State concerned shall
notify the Commission of the entry into force of the bilateral
Confidentiality
investment agreement and of any subsequent changes to the
status of such an agreement. Articles 3, 5 and 6 shall apply
In notifying the Commission of negotiations and their outcome
to such an agreement as if it had been notified under Article 2.
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 may be shared with
the other Member States.
7. The
Commission
shall
inform
the
European
Parliament
and the Council about the decisions taken pursuant to
paragraph 3.
Article 15
8. In the event that the Commission does not grant an auth
Review
orisation pursuant to paragraph 3, it shall inform the Member
1. The
Commission
shall
present
to
the
European
Parliament
State concerned thereof and state the reasons therefor.
and the Council a report on the application of this Regulation
by 10 January 2020.
Article 13
Conduct of Member States with regard to a bilateral
2. The
report
shall
include
an
overview
of
authorisations
investment agreement with a third country
requested and granted under Chapter III as well as a review
Where a bilateral investment agreement falls within the scope of
of the need for the continued application of that Chapter.
this Regulation, the Member State concerned shall:
3. Where the report recommends discontinuing the appli
(a) inform the Commission without undue delay of all meetings
cation of Chapter III or modifying its provisions, that report
which will take place under the provisions of the agreement.
shall be accompanied by an appropriate legislative proposal.
The Commission shall be provided with the agenda and all
relevant information permitting an understanding of the
topics to be discussed at those meetings. The Commission
may request further information from the Member State
Article 16
concerned. Where an issue to be discussed might affect
the implementation of the Union’s policies relating to
Committee procedure
investment, including in particular the common commercial
1. The
Commission
shall
be
assisted
by
the
Committee
for
policy, the Commission may require the Member State
Investment Agreements. That committee shall be a committee
concerned to take a particular position;
within the meaning of Regulation (EU) No 182/2011.
(b) inform the Commission without undue delay of any repre
sentations made to it that a particular measure is incon
2. Where
reference
is
made
to
this
paragraph,
Article
4
of
sistent with the agreement. The Member State shall also
Regulation (EU) No 182/2011 shall apply.

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Union L
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Article 17
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official
Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 12 December 2012.
For the European Parliament
For the Council
The President
The President
M. SCHULZ
A. D. MAVROYIANNIS

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L 351/46
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Official Journal of the European Union
20.12.2012
STATEMENT BY THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION
The fact that this Regulation, including recitals 17, 18 and 19, provides for the use of the procedures
referred to in Regulation (EU) No 182/2011 does not constitute a precedent as to future regulations
allowing the Union to empower the Member States under Article 2(1) TFEU to legislate and adopt
legally binding acts in areas of Union exclusive competence. Furthermore, in this Regulation, the use of
the advisory as opposed to the examination procedure shall not be considered as setting a precedent for
future regulations establishing the framework for the common commercial policy.

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