484 / 536
470
MILOŠ OLÍK
CYIL 7 ȍ2016Ȏ
1. Does the arbitration clause contained in Art. 8(2) BIT infringe
Art. 344 TFEU?
11
Art. 344 TFEU precludes Member States from submitting a dispute with an
existing EU law link to any method of dispute settlement other than those stipulated
in the Treaties. The BGH therefore seeks the CJ EU’s answer on whether the agreement
of Member States to submit disputes with private individuals to arbitration tribunals
does in fact contravene the Treaties, as they could decide on EU law questions without
having the possibility of requesting a preliminary ruling from the CJ EU.
In its preliminary opinion, the BGH held that it does not agree with the extension
of Art. 344 TFEU to cover disputes between private investors and Member States.
Although the BGH takes into account the fact that the wording of this Article does
not offer an unequivocal conclusion on the possibility of excluding this provision
from arbitrations commenced by investors from intra-EU BIT member States, it
also, pursuant to the BGH, does not support the argument why individuals should
in fact be included.
The BGH also expressed doubts on whether the existence of a dispute concerning
the interpretation and application of the Treaties, which is one of the prerequisites
for the use of Art. 344 TFEU, is demonstrable.
12
The BGH relied on the fact that the
Final Award was based mainly on the contractual obligations under the intra-EU BIT
and not on questions regulated by EU law. The decision also addresses the fact that
issues such as the one between Achmea and the Slovak Republic cannot be settled in
proceedings under EU law. The BGH wonders whether the lack of any provisions
for judicial recourse against Member States which could be used by investors is proof
that Art. 344 TFEU does not apply under these circumstances. Accordingly, where
the Treaties do not offer procedures which can be protected under Art. 344 TFEU,
then such disputes cannot be qualified as disputes within the meaning of this Article.
2. Does the arbitration clause contained in Art. 8(2) BIT infringe
Art. 267 TFEU?
13
The BGH continues to assess whether the uniform interpretation and application
of EU law would be undermined by the Tribunal’s lack of possibility of referring
questions pertaining to EU law to the CJ EU. The BGH argues that it does not see
any reasons why the arbitration clause contained in Art. 8(2) BIT should be held as
incompatible with Art. 267 TFEU. It noted that, although it is beyond all doubt
that arbitral tribunals are not entitled to request and obtain preliminary rulings
from the CJ EU, the uniform interpretation of EU law can be ensured through
the national courts’ possibility to review the compatibility of awards with EU law,
11
Para. 23 and following of the Decision.
12
Para. 30 and following of the Decision.
13
Para. 45 and following of the Decision.