CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ CASE NOTES: COURT OF JUSTICE OF THE EUROPEAN UNION TO RULE… Case Notes : Court of Justice of the European Union to Rule on the Compatibility of intra-EU BITs with EU Law in the Case Achmea B.V. vs. the Slovak Republic (The German Federal Court of Justice decision No. I ZB 2/15 of March 03, 2016) The German Federal Court of Justice (Bundesgerichtshof; “BGH”) reached, in its decision of the 3rd of March, 2016, the conclusion that it can decide on the motion of the Slovak Republic to set aside the arbitration award rendered in the Achmea B.V. vs. the Slovak Republic investment arbitration 1 only once it has received the opinion of the Court of Justice of the European Union (“CJ EU”) on the questions of the validity of arbitration agreements contained in bilateral investment treaties concluded between EU Member States (so-called “intra-EU BITs”). This is a considerable achievement for the Slovak Republic, as it has succeeded in convincing the BGH that in order to tackle the underlying investor-State dispute, it is necessary to refer questions of EU law for a preliminary ruling to the CJ EU. In the decision published on May the 11 th , 2016 2 the BGH backed the Slovak Republic’s request and drafted three questions concerning the validity/applicability of arbitration agreements arising from standing offers to resolve an investor-State dispute by means of submitting these to arbitration tribunals stipulated in intra-EU BITs. Proceedings leading up to the referral The Slovak Republic is the legal successor in title to the Czech and Slovak Federal Republic. Following the dissolution of Czechoslovakia in 1993, it also assumed all the legal obligations arising from the 1992 bilateral investment treaty concluded with the Kingdom of Netherlands. On the 1 st of May, 2004, the Slovak Republic acceded to the EU. In the same year Slovakia adopted a set of measures aimed at liberalizing the public health insurance system. As a result of these measures, different companies, including the Dutch company Achmea B.V. (formerly known as Eureko B.V.; “Achmea”), entered the Slovak market becoming a health insurance provider. The liberalization took an abrupt end in 2006 when, due to political changes, the government altered the existing health insurance system and adopted measures which later proved to be not without some adverse consequences. At the heart of the new legal framework were several prohibitions imposed onto health insurance 1 PCA Case No. 2008-13, ACHMEA B.V. (formerly known as “Eureko B.V.”) (“Claimant”) – and THE SLOVAK REPUBLIC (“Respondent,” and together with Claimant, the “Parties”). 2 Decision No. I ZB 2/2015 of the 3 rd of March, 2016. Available at: http://juris.bundesgerichtshof.de/cgi- bin/rechtsprechung/document.py?Gericht=bgh&Art=pm&Datum=2016&Sort=3&nr=74612&linked =bes&Blank=1&file=dokument.pdff; (last visit: May 23, 2016).

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