Capital Openness versus Investment Screening: The EU Dilemma under Article 63 TFEU

Sammanfattning

What does the EU’s emerging outbound review architecture reveal about the future limits of Article 63 TFEU in third-country capital relations? This thesis argues that the outbound investment screening agenda of EU is best understood as a constitutional stress test for external dimension of the Article 63 TFEU. While the potential outbound screening framework still relies on a soft-law review and risk-assessment exercise rather than a binding screening regime, it develops the categories and institutional infrastructure through which future restrictions on outward capital movements may be justified. Read in light of inbound FDI screening, this suggests a gradual shift from exceptional security derogations toward a more structured model of EU capital governance vis-à-vis third countries. This thesis argues that the EU’s emerging investment-screening architecture reveals a constitutional dilemma within the external free movement of capital. The current inbound framework avoids full centralization by relying on non-mandatory Member State screening framework which is coordinated through Regulation 2019/452. Even though this approach preserves a degree of Treaty caution, it also creates fragmentation and potential under-enforcement. The outbound investment screening agenda exposes the same dilemma in a sharper form: if the EU remains at the level of soft-law review, it may lack effectiveness; if it moves toward binding screening or centralized control, it must confront Article 63 TFEU more directly. The Commission’s own documents show that outbound is currently still at the review and risk-assessment stage. The White Paper identifies a knowledge gap and proposes monitoring before any new policy response, whereas the 2025 Recommendations asks Member States to review outbound investments in semiconductors, AI and quantum technologies and report by 30 June 2026.