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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 arbitration1 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 11th, 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 1st 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 3rd of March, 2016. Available at: