Foreign Investment Policy in the Post-Lisbon Common Commercial Policy; An Institutionalist Perspective

The inclusion of non-trade values, such as labor standards, human rights, and the protection of IP rights in EU free trade agreements is not a novel practice. However, the Treaty of Lisbon brought new changes to the EU’s Common Commercial Policy (CCP), extending the EU’s exclusive competences over “foreign direct investment.” These three, seemingly insignificant words, have caused a lot of headache for the EU Member States and the EU institutions alike, resulting in a string of new cases of the Court of Justice of the EU, such as Opinion 2/15, Slovakia v. Achmea, and Opinion 1/17. This chapter explores the anatomy of the CCP’s post-Lisbon turmoil, focusing on foreign investment policy. Based on expectations drawn from a middle-ground new institutionalist toolkit we argue that recent institutional changes here betray a “bargain” – in the sense of relatively predictable courses of action taken by EU institutions in the face of disputes over degrees and modes of power delegation – between Member States and the Commission, facilitated by the Court of Justice