Art. 351 TFEU, the Principle of Loyalty and the Future Role of Member States' Bilateral Investment Treaties

The transfer of national competences to the European Union or at least the discussion surrounding this contentious issue has been central to almost every revision of the European treaties in recent years. This is in part because none of the Union’s traits highlights its special, downright peerless role among other regional integration projects as succinctly as the wide scope of its competences and responsibilities. The transfer of competences often also serves to resolve policy issues that can no longer be adequately dealt with on a purely national level. The establishment of the Union Policy on the Environment by the Single European Act (now Art. 191–193 TFEU), the introduction of the Common Foreign and Security Policy by the Maastricht Treaty (now Art. 21–46 TEU) and the formation of Union Policy on Energy by the Treaty of Lisbon (Art. 194 TFEU) can all be traced to this central dilemma. In the transfer of the said competences to the Union also lies the Member States’ acknowledgement of their limited possibilities in a time of increasing fragmentation and globalization. They, thus, yield to an overarching “supranational causality”, as Werner von Simson has put it.