Representatives of the European Union (EU) Member States, including the Czech Republic, signed a declaration on the legal consequences of the judgment of the CJEU (Court of Justice of the EU) in the Achema case and on investment protection in the EU on 15 January 2019. The CJEU ruled in the Achmea judgement (Achmea v Slovak Republic; Case No. C-284/16) in March 2018 that investor-State arbitration clauses included in the bilateral-investment treaties (BITs) are not compliance with Art. 267 and 344 of the Treaty on the Functioning of the EU (TFEU).
The recent declaration of the EU Member States include, inter alia, the following undertakings of the EU Member States: (i) to inform investment arbitration tribunals about the legal consequences of the Achmea judgment in ongoing proceedings under not only BITs but also under the Energy Charter Treaty; (ii) to inform investors that no new intra-EU (i.e. where both the investor and the defendant state are from the EU) investment arbitration should be launched; (iii) to terminate all intra-EU BITs by 6 December 2019; (iv) however, yet to ensure effective legal protection pursuant to Art. 19(1), second sentence, of the TFEU (giving the Member States the obligation to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”), which should be under the control of the CJEU, against State measures in pending intra-EU investment arbitration cases; (v) not to challenge judgments of arbitral tribunals prior to the Achmea judgement (if they cannot be set aside any longer) if they were complied with or already enforced; and finally (vi) to discuss further implications of the Achmea judgement on intra-EU application of the Energy Charter Treaty.
We will continue to monitoring steps of the EU Member States in the intra-EU investment arbitration and will keep you updated.
