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Table of Contents: I. Introduction. – II. Member States as custodians of the Union’s public order. – II.1. The concept of “European public order” in Council Decision (CFSP) 2022/351. – II.2. The Foreign Direct Investment Regulation: procedural and substantive obligations on Member States’s assessment of FDI that affect public order and public security. – II.3. The progressive “Europeanisation of public order” in the context of the proposal of Regulation on the screening of foreign investments in the Union and repealing Regulation 2019/452. – III. Conclusions.
Abstract: This Article examines two legal instruments, in the fields of Common Foreign and Security Policy (CFSP) and the Common Commercial Policy, to inquire on whether the concept of “public order” has been “Europeanised”. The first measure is Council Decision (CFSP) 2022/351 prohibiting operators to broadcast the content of selected Russian media outlets. In this context the notion of “European public order” is used to justify the adoption of restrictive measures. Yet, it cannot be maintained that as a result of this Decision Member States have lost their ability to invoke public order on their own. It is too early to conclude that the EU has “Europeanised” public order. Any future development of this notion will depend on whether it will be invoked again by the Council in the practice. The second instrument is Regulation 2019/452 establishing a framework for the screening of foreign direct investments into the Union. In this context, the Union cannot act through the Commission to autonomously protect European public order by preventing a Member State to accept a Foreign Direct Investment (FDI) that concerns critical technologies and infrastructures. However, the view is taken that this act is leading to a soft ‘Europeanisation’ of the concept of public order. The recent Commission’s proposal (COM(2024) 23), repealing the mentioned Regulation, is a step forward towards the recognition that FDIs in certain areas may be the object of restrictions in case they affect “Union public order and security”.
Keywords: European public order – common foreign and security policy – restrictive measures – common commercial policy – foreign direct investments – European integration.
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European Papers, Vol. 9, 2024, No 3, pp. 1424-1436
ISSN 2499-8249 - doi: 10.15166/2499-8249/816
* Professor of EU law, University of Pisa, sara.poli@unipi.it.
