50 Amendments of Jan ZAHRADIL related to 2012/0163(COD)
Amendment 16 #
Proposal for a regulation
Title
Title
Regulation of the European Parliament and of the Council establishing a framework for managing financial responsibility linked to investor-to-state dispute settlement tribunals established by international agreements to which the European Union is party
Amendment 17 #
Proposal for a regulation
Citation 1
Citation 1
Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 64(2) and 207(2) thereof,
Amendment 18 #
Proposal for a regulation
Recital 1
Recital 1
(1) With the entry into force of the Lisbon Treaty, the Union has acquired exclusive competence for the conclusion of international agreements on investment protectionthe protection of foreign direct investment according to Article 207 TFEU. The Union is already party to the Energy Charter Treaty which provides for investment protection.
Amendment 22 #
Proposal for a regulation
Recital 2 a (new)
Recital 2 a (new)
(2a) Claims brought by an investor from a third country against either the Union itself or a Member State and that are resolved through alternative means to investor-to-state dispute settlement tribunals established by international agreements to which the Union is party, should be excluded from the scope of this Regulation.
Amendment 24 #
Proposal for a regulation
Recital 3
Recital 3
(3) In accordance with the case-law of the Court of Justice of the European Union, international responsibility for treatment subject to dispute settlement should follow the division of competence between the European Union and Member States. As a consequence, the Union will in principle be responsible for defending any claims alleging a violation of rules included in an agreement which falls within the Union's exclusive competence, irrespective of whether the treatment at issue is afforded by the Union itself or by a Member State. Likewise, Member States will in principle be responsible for defending any claims alleging a violation of rules included in an agreement which falls within Member States' exclusive competence, irrespective of whether the treatment at issue is afforded by the Union itself or by a Member State.
Amendment 29 #
Proposal for a regulation
Recital 4
Recital 4
(4) Where the Union, as an entity having legal personality, has international responsibility for the treatment afforded, it will be expected, as a matter of international law, to pay any adverse award and bear the costs of any dispute. However, an adverse award may potentially flow either from treatment afforded by the Union itself or from treatment afforded by a Member State. It would as a consequence be inequitable if awards and the costs of arbitration were to be paid from the Union budget of the European Union where the treatment was afforded by a Member State. It is therefore necessary that financial responsibility be allocated, as a matter of Union law, and without prejudice to the international responsibility of the Union, between the Union itself and the Member State responsible for the treatment afforded on the basis of criteria established by this Regulation.
Amendment 31 #
Proposal for a regulation
Recital 6
Recital 6
(6) Financial responsibility should be allocated to the entity responsible for the treatment found to be inconsistent with the relevant provisions of the agreement. This means that the Union itself should bear the financial responsibility where the treatment concerned is afforded by an institution, body or agency of the Union or any other legal entity acting on behalf of the Union. The Member State concerned should bear the financial responsibility where the treatment concerned is afforded by athat Member State. However, where the Member State acts in a manner required by the law of the Union and fully complies with its obligations under the Union law, for example in transposing a directive adopted by the Union, the Union itself should bear financial responsibility in so far as the treatment concerned is required by Union law. The regulation also needs to foresee the possibility that an individual case could concern both treatment afforded by a Member State and treatment required by Union law. It will cover all actions taken by Member States and by the European Union. In such a case, the Member States and the Union should bear financial responsibility for the specific treatment afforded by either of them.
Amendment 33 #
Proposal for a regulation
Recital 6 a (new)
Recital 6 a (new)
(6a) When the Member State acts in a manner inconsistent with that required by the Union law, for example when the Member State fails to transpose a directive adopted by the Union or exceeds the terms of a directive adopted by the Union when implementing it into the national law , the Member State should consequently bear financial responsibility for the treatment concerned.
Amendment 34 #
Proposal for a regulation
Recital 7
Recital 7
(7) The Union, represented by the Commission should always act as the respondent where a dispute concerns exclusively treatment afforded by the institutions, bodies or agencies of the Union or any other legal entity acting on behalf of the Union, so that the Union bears the potential financial responsibility arising from the dispute in accordance with the above criteria.
Amendment 35 #
Proposal for a regulation
Recital 8
Recital 8
(8) On the other hand, where a Member State would bear the potential financial responsibility arising from a dispute, it is equitable and appropriate, as a matter of principle, to permit such Member State to act as respondent in order to defend the treatment which it has afforded to the investor. The arrangements set down in this Regulation provide for that. This has the significant advantage that the Union budget and Unionof the European Union and Union non-financial resources would not be burdened, even temporarily, by either the costs of litigation or any eventual award made against the Member State concerned.
Amendment 36 #
Proposal for a regulation
Recital 10
Recital 10
(10) In certain circumstances, it is essential, in order to ensure that the interests of the Union can be appropriately safeguarded, that the Union itself acts as a respondent in disputes involving treatment afforded by a Member State. This may be so in particular in the following cases: where the dispute also involves partially treatment afforded by the Union,; where it appears that the treatment afforded by a Member State is required by Union law,; where a similar claim has been lodged, and where it is likely that other similar claims may be brought, against other Member States; or where the case involves unsettled issues of law, the resolution of which may have an impact on ongoing or possible future cases against other Member States and/or the Union. Where a dispute concerns partially treatment afforded by the Union, or required by Union law, the Union should act as a respondent, unless the claims concerning such treatment are of minor importance, having regard to the potential financial responsibility involved and the legal issues raised, in relation to the claims concerning treatment afforded by the Member State.
Amendment 37 #
Proposal for a regulation
Recital 12
Recital 12
(12) It is appropriate thatn order to create a workable system, the Commission should decide, within the framework set down in this regulation, whether the Union should be the respondent or whether a Member State should act as respondent and inform the European Parliament and the Council of any such decision as part of its annual reporting on the implementation of this Regulation.
Amendment 40 #
Proposal for a regulation
Recital 14
Recital 14
(14) Equally, when a Member State acts as respondent it is appropriate that it keeps the Commission informed of developments in the case and that the Commission can, where appropriate, require that the Member State acting as respondent takes a specific position on matters having a Union interestn impact on the overriding interests of the Union.
Amendment 42 #
Proposal for a regulation
Recital 15
Recital 15
(15) AWithout prejudice to the outcome of the arbitration proceedings, a Member State may at any time accept that it would be financially responsible in the event that compensation is to be paid. In such a case the Member State and the Commission may enter into arrangements for the periodic payment of costs and for the payment of any compensation. Such acceptance does not imply in any legal manner that the Member State accepts that the claim under dispute is well founded. The Commission should be able tomay in such a case adopt a decision requiring the Member State to make provision for such costs. In the event that the tribunal awards costs to the Union, the Commission should ensure that any advance payment of costs is immediately reimbursed to the Member State concerned.
Amendment 43 #
Proposal for a regulation
Recital 16
Recital 16
(16) In some cases, it may be appropriate to reach a settlement in order to avoid costly and unnecessary arbitration. It is necessary to lay down an effective and swift procedure for making such settlements. Such a procedure should permit the Commission, acting in accordance with the examination procedure, to settle a case where this would be in the interests of the Union. Where the case concerns treatment afforded by a Member State, it is appropriate that there should be close co-operation and consultations between the Commission and the Member State concerned, including on the proceedings of the settlement procedure and on the amount of the monetary compensation. The Member State should remain free to settle the case at all times, provided that it accepts full financial responsibility and that any such settlement is consistent with Union law and not against the interests of the Union as a whole.
Amendment 44 #
Proposal for a regulation
Recital 17
Recital 17
(17) Where an award has been rendered against the European Union, that award should be paid without delay. The Commission should make arrangements for the payment of such awards, unless a Member State has already accepted financial responsibility and paid the award.
Amendment 46 #
Proposal for a regulation
Recital 18
Recital 18
(18) The Commission should consult closely with the Member State concerned in order to reach agreement on the apportionment of financial responsibility. Where the Commission determines that a Member State is responsible, and the Member State does not accept that determination, the Commission should pay the award, but should address a decision to the Member State requesting it to provide the amounts concerned to the budget of the European Union, together with applicable interest. The interest payable should be that set down pursuant to [Article 718(4) of Council Regulation (ECU, Euratom) No 1605966/20012 of 25 June 200the European Parliament and the Council of 25 October 2012 on the Ffinancial Regulationrules applicable to the general budget of the European Communities as amended]Union. Article 263 of the Treaty is available in cases where a Member State considers that theany decision taken by the Commission pursuant to Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council falls short of the criteria set out in this Regulation.
Amendment 47 #
Proposal for a regulation
Recital 19
Recital 19
(19) The Union budget of the European Union should provide coverage of the expenditure resulting from agreements concluded pursuant to Article 218 of the Treaty providing for investor- state dispute settlement. Where Member States have financial responsibility pursuant to this Regulation, the Union should be able to either accumulate the contributions of the Member State concerned first before implementing the relevant expenditure or implement the relevant expenditure first and be reimbursed by the Member States concerned after. Use of both of these mechanisms of budgetary treatment should be possible, depending on what is feasible, in particular in terms of timing. For both mechanisms, the contributions or reimbursements paid by the Member States should be treated as internal assigned revenue of the Union budget of the European Union. The appropriations arising from this internal assigned revenue should not only cover the relevant expenditure but they should also be eligible for replenishment of other parts of the Union budget of the European Union which provided the initial appropriations to implement the relevant expenditure under the second mechanism.
Amendment 48 #
Proposal for a regulation
Recital 22
Recital 22
(22) The advisory procedure should be used for the adoption of decisions on settlement of disputes pursuant to Article 14(3) given that those decisions will have at most a merely temporary impact on the Union budget of the European Union, since the Member State concerned will be required to assume any financial responsibility arising from the dispute, and because of the detailed criteria set down in the regulation for acceptability of such settlements,
Amendment 49 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. TWithout prejudice to the division of competence established by the Treaties, this Regulation applies to investor-to- state dispute settlement conducted pursuant to an agreement to which the Union is aor the Union and its Member States are partyies and initiated by a claimant of a third country.
Amendment 52 #
Proposal for a regulation
Article 2 – point a
Article 2 – point a
(a) ‘agreement’ means any international agreement to which the Union is aor the Union and its Member States are partyies and which provides for investor-to- state dispute settlement;
Amendment 54 #
Proposal for a regulation
Article 2 – point c
Article 2 – point c
(c) ‘dispute’ means a claim brought by a claimant against the Union or a Member State pursuant to an agreement and on which an arbitration tribunal will rule;
Amendment 55 #
Proposal for a regulation
Article 2 – point d
Article 2 – point d
(d) ‘investor-to-state dispute settlement’ means a mechanism provided for by an agreement by which a claimant may initiate claims against the Union or a Member State;
Amendment 62 #
Proposal for a regulation
Article 2 – point j a (new)
Article 2 – point j a (new)
(ja) "overriding interests of the Union" means either or both of the following situations: (i) there is a serious threat to the consistent or uniform application or implementation of investment provisions of the agreement subject to the investor- to-state dispute to which the Union is a party, or (ii) the dispute implies a possible significant financial impact on the budget of the European Union in a given year or as part of the multiannual financial framework, or
Amendment 63 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 1 – point a
Article 3 – paragraph 1 – subparagraph 1 – point a
(a) the Union shall bear the financial responsibility arising from treatment afforded by the institutions, bodies or agencies of the Union or any other legal entity acting on behalf of the Union;
Amendment 67 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Where provided for in this Regulation, the Commission shall adopt a decision determining the financial responsibility of the Member State concerned in accordance with the criteria laid down in paragraph 1. The European Parliament and Council shall be informed about such decision.
Amendment 69 #
Proposal for a regulation
Article 4
Article 4
The Union shall act as respondent where the dispute concerns treatment afforded by the institutions, bodies or agencies of the Union or any other legal entity acting on behalf of the Union.
Amendment 72 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Representatives of the Member State concerned shall form integral part of the Union's delegation to the consultations.
Amendment 74 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
As soon as the Commission receives notice by which a claimant states its intention to initiate arbitration proceedings, in accordance with the provisions of an agreement, it shall notify the Member State concerned and inform the European Parliament and the Council.
Amendment 77 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Article 8 – paragraph 1 – subparagraph 1 – introductory part
Provided the agreement provides for the possibility, the Member State concerned shall always act as respondent except where any of the following two situations arise:
Amendment 78 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 1 – point b
Article 8 – paragraph 1 – subparagraph 1 – point b
(b) the Member State has not confirmed to the Commission in writing that it does not intends to act as respondent within 30 days of receiving notice or notification referred to in Article 7.
Amendment 79 #
Proposal for a regulation
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. The Commission may decide, within 30 days of receiving notice or notification referred to in Article 7, and in accordance with the examination procedure referred to in Article 20(3), that the Union shall act as respondent where one or more of the following circumstances arise:
Amendment 82 #
Proposal for a regulation
Article 8 – paragraph 2 – point a
Article 8 – paragraph 2 – point a
(a) it is likely that the Union would bear at least part of the potential financial responsibility arising from the dispute in accordance with the criteria laid down in Article 3 and the amount of money the Union would have to pay would pose a serious threat to the budget of the European Union;
Amendment 84 #
Proposal for a regulation
Article 8 – paragraph 2 – point b
Article 8 – paragraph 2 – point b
(b) the dispute also concerns treatment afforded by the institutions, bodies or agencies of the Union or any other legal entity acting on behalf of the Union;
Amendment 86 #
Proposal for a regulation
Article 8 – paragraph 2 – point c
Article 8 – paragraph 2 – point c
(c) a similar claim has been lodged, and it is likely that other similar claims willmay be brought, under the same agreement against treatment afforded by other Member States and the Commission is best placed to ensure an effective and consistent defence; or,
Amendment 89 #
Proposal for a regulation
Article 8 – paragraph 2 a (new)
Article 8 – paragraph 2 a (new)
2a. If the Commission decides that the overriding interest of the Union requires that the Commission act on behalf of the Member State concerned, it shall do so without delay and inform the European Parliament and Council of such decision. In such case, the Commission shall require the Member State concerned to make advance payments of arbitration costs pursuant to Article 18. The financial responsibility shall remain with the Member State concerned.
Amendment 92 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. The Commission shall inform the other Member States and the European Parliament and the Council of any dispute in which this Article is applied and the manner in which it has been applied.
Amendment 96 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The Commission may,Where overriding interests of the Union so require, the Commission may, after consultations at any time, require the Member State concerned to take a particular position as regards any point of law raised by the dispute or any, the resolution of which may affect the future interpretation of the agreement in question or other agrelement having a Union interests. Such a position shall not unduly compromise the effective defence of the Member State concerned.
Amendment 97 #
Proposal for a regulation
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2a. If the Member State concerned considers the request of the Commission as unduly compromising its effective defence, it shall enter into consultations with a view to finding an acceptable solution. Where an acceptable solution cannot be found, the Commission may take a decision requiring the Member State concerned to take a particular legal position. Such a decision shall be taken without delay in accordance with the examination procedure referred to in Article 20(3).
Amendment 99 #
Proposal for a regulation
Article 9 – paragraph 3
Article 9 – paragraph 3
3. When an agreement, or the rules referred to therein, provide for the possibility of annulment, appeal or review of a point of law included in an arbitration award, the Commission may where it considers that the consistency or correctnit to be in the overriding interests of the interpretation of the agreement so warrantUnion to do so and after consultations with the Member State concerned, require the Member State to lodge an application for such annulment, appeal or review. In such circumstances, representatives of the Commission shall form part of the delegation and may express the views of the Union as regards the point of law in question.
Amendment 102 #
Proposal for a regulation
Article 9 – paragraph 3 a (new)
Article 9 – paragraph 3 a (new)
3a. If the Member State concerned refuses to lodge an application for annulment, appeal or review, it shall inform the Commission within 30 days. In this case the Commission may take a decision requiring the Member State concerned to lodge an application for annulment, appeal or review. Such a decision shall be taken in accordance with the examination procedure referred to in Article 20(3). If the decision obliges the Member State concerned to lodge an application for annulment, appeal or review, the procedures set out in paragraph 3 of this Article shall apply.
Amendment 105 #
Proposal for a regulation
Article 10– point d
Article 10– point d
(d) the Commission and the Member State concerned shall prepare the defence in close co-operation with the representatives of the Member State concerned who shall be entitled to form integral part of the Union delegation in the proceedings.
Amendment 106 #
Proposal for a regulation
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
The Commission shall regularly inform the European Parliament and the Council of developments in the arbitration proceedings referred to in the first paragraph.
Amendment 110 #
Proposal for a regulation
Article 13 – paragraph 3
Article 13 – paragraph 3
3. In the event that the Member State does not consent to settle the dispute, the Commission may settle the dispute where overriding interests of the Union so require. The European Parliament and the Council shall be informed without delay about the Commission's decision to settle the dispute and the justification underpinning it.
Amendment 113 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. A claimant having obtained a final award pursuant to an agreement may present a request to the Commission for payment of that award. The Commission shall pay any such award within the relevant time periods set down in the agreement and in the currency provided for in the agreement, except where the Member State concerned has accepted financial responsibility pursuant to Article 11 in which case the Member State shall pay the award.
Amendment 114 #
Proposal for a regulation
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Where a settlement approved by the Union pursuant to aArticle 12 or 13 is not recorded in an award, a claimant may present a request to the Commission for payment of the settlement. The Commission shall pay any such settlement within any relevant time periods set down in the settlement agreement and in the currency provided for in the settlement agreement.
Amendment 115 #
Proposal for a regulation
Article 17 – paragraph 3
Article 17 – paragraph 3
3. Within three months of receipt of the request for payment of the final award or settlement, the Commission shall adopt, in accordance with the advisory procedure set out in Article 20(2), a decision addressed to the Member State concerned, determining the amount to be paid by that Member State. The Commission shall inform the European Parliament and Council about such decision and its financial reasoning.
Amendment 116 #
Proposal for a regulation
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Unless the Member State concerned objects to the Commission's determination within one month, the Member State concerned shall compensate with the equivalent amount the budget of the European Union for the payment of the award or the settlement no later than three months after the Commission's decision. The Member State concerned shall be liable for any interest due at the rate applying to other monies owed to the budget of the Union.
Amendment 120 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. The Commission may adopt a decision requiring the Member State concerned to make financial contributions to the budget of the European Union in respect of any costs arising from the arbitration where it considers that the Member State will be liable to pay any award pursuant to the criteria set down in Article 3.
Amendment 122 #
Proposal for a regulation
Article 21 – paragraph 1
Article 21 – paragraph 1
1. The Commission shall submit a report on the operation of this Regulation to the European Parliament and the Council at regular intervals. The first report shall be submitted no later than three years after the entry into force of this Regulation. Subsequent reports shall be submitted every three years thereafter. and include a detailed overview of awards paid by the European Union and beneficiaries to whom the awards were paid. Subsequent reports shall be submitted every three years thereafter unless the budgetary authority, comprised of the European Parliament and the Council, decides otherwise.