Member States prior agreements and newly EU attributed competence: what lesson from foreign investment

Among the many changes introduced by the Treaty of Lisbon, one of the most significant ones is the introduction of a new EU exclusive competence concerning foreign investment, as part of the common commercial policy.The exercise of such competence has given rise to several controversial issues, in particular as regards the status and the future of Member States Bilateral Investment Treaties (BITs) concluded before the attribution of this new competence to the EU.This article considers whether Member States BITs can be safeguarded by an application by analogy of Article 351 TFEU, in the same manner as pre-accession agreements. The analysis will include but extend beyond Regulation No. 1219/2012, which attempts to provide a sound legal regime of a transitory period only.