The recent communication of the European Commission about the protection of intra-EU investments

On 19 July 2018, the European Commission (EC) published its communication to the European Parliament and the Council relating to the protection of intra-EU investments[1].

The scope of the communication concerns only intra-EU investments and does not concern investments made by third country investors in the EU.

After the European Court of Justice (ECJ) decision on Achmea, the EC pushed forward its long-standing position that “EU investors cannot invoke intra-EU BITs, which are incompatible with Union law and no longer necessary in the single market.” The EC leaves the protection of EU investor’s rights exclusively with national administrations and courts that apply “national procedural rules which are to ensure that these rights are effectively protected.

Interestingly, the EC draws some conclusions from the Achmea judgment. According to the EC: 1) national courts are under the obligation to annul any arbitral award rendered on the basis of an intra-EU BIT and must refuse to enforce it; 2) Member States are under the obligation to formally terminate their intra-EU BITs; 3) the Achmea judgment is also relevant for the investor-State arbitration proceedings established under Article 26 of the Energy Charter Treaty (ECT) as regards intra-EU relations.

The Achmea decision raised some doubts about whether it also applies to disputes between investors from the EU and another Member State arisen under the ECT, in the light of the possibility for the arbitral tribunal to apply and interpret EU law. The EC takes a clear position on this issue, contending that the Achmea judgment equally applies both to arbitration clauses included in intra-EU BITs and to Article 26 of the ECT when applied to disputes between investors from a Member State and another Member State. According to the EC, the fact that the EU itself is a party of the ECT does not undermine this conclusion, since its participation only creates rights and obligations between the EU and third countries.

By pursuing its role as guardian of the Treaty on the European Union, the EC eventually reiterates its commitment to act against infringements of Member States affecting “the capacity of national judicial systems to contribute to the effective enforcement of EU law.”

In its decision dated 31 August 2018[2], the Vattenfall arbitral tribunal disregarded the EC’s position by arguing that, when it comes to intra-EU disputes under the ECT, the EU law applies only to the merits of the dispute, and not to issues or questions relating to the tribunal’s jurisdiction.

 

[1] Communication from the Commission to the European Parliament and the Council – Protection of intra-EU investment (COM(2018) 547/2).

[2] Vattenfall AB and others v. Germany, ICSID Case No. ARB/12/12, Decision on the Achmea Issue dated 31 August 2018.

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