真诚合作义务对欧盟成员国外资安全准入自主决策空间的限制

Implication of Duty of Sincere Cooperation on EU Member States’Discretion in FDI Security Review

欧盟外资安全审查条例实施后,表面上成员国拥有外资准入的最终决策权,但实际上成员国的决策空间会因"真诚合作义务"而受到较多限制。欧洲法院已明确将欧盟成员国的合作义务解释为具体的行为义务或结果义务,在合作义务为结果义务的情况下,成员国不得采取与欧盟立场相悖的措施。成员国合作义务的内涵受到欧盟权能性质的影响。外资安全审查既涉及共同商业政策,又涉及共同安全与外交政策,但在欧盟利益受到威胁的情况下,欧委会及欧洲法院的一贯立场表明,外资安全准入可能被定性为欧盟专属权能,这意味着成员国会承担结果义务性质的合作义务,不得与欧盟发生立场冲突。即使欧盟权能未被认定为专属权能,欧洲法院仍有可能将合作义务解释为结果义务,借此弥补欧盟的权能困境,实现欧盟与成员国对外关系一致性之目标。由此,在欧盟委员会认为欧盟利益受到威胁的情况下,成员国可能因合作义务而被迫遵从欧盟意见,在外资安全准入问题上实质性失去自主决策空间。

EU member states are subject to duty of sincere cooperation where their conduct has an impact on EU external relation.In the implementation of EU Regulation for screening of FDI,even though member states are the final decision makers,their discretion are limited by the duty of sincere cooperation.Jurisprudence of European Court of Justice has shown that,duty of cooperation brings legal obligations to member states either in the form of duty of conduct or duty of result.In the latter case,the member states are forbidden from taking any measure which goes against EU objective.Based on the jurisprudence of duty of cooperation,the article explores the discretion enjoyed by EU member states in FDI security review when EU declares that its security is threatened.Now that duty of cooperation is linked to the nature of EU competence,the article explores and finds that FDI security review touches both the common commercial policy where EU enjoys exclusive competence and common security and foreign relations policy where member states enjoy competence.Based on jurisprudence,the article argues that,where EU security is found threatened,FDI security review may well be found falling under the area where EU enjoys exclusive competence,which means that FDI destination country undertakes duty of result and is forbidden to take any measure which may damage EU objective.The article further argues that,even if EU competence is not defined as exclusive competence,member states’duty of cooperation is still likely to be interpreted as duty of result because the court is likely to discipline member states with duty of cooperation so as to maintain consistency in EU external relationship and settle complicated competence dispute.Therefore,it can be concluded that,where a FDI is regarded as threatening EU security,there is hardly any room left for member states to deviate from the Commission’s opinion unless the presumption of"EU security threatened"is successfully rebutted.