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CYIL 7 ȍ2016Ȏ CASE NOTES: COURT OF JUSTICE OF THE EUROPEAN UNION TO RULE…
prior their enforcement. Even if arbitral tribunals refuse (or omit) to apply EU law
rules not falling within the public policy area, for the BGH this is not a reason for
pronouncing Art. 8(2) of the intra-EU BIT to be a breach of Art. 267 TFEU.
3. Does the arbitration clause contained in Art. 8(2) BIT infringe
Art. 18 TFEU?14
The BGH holds that the discrimination against investors from non-contracting
Member States is debatable. Undoubtedly, the possibility of submitting a dispute to
arbitration proceedings is seen by the BGH as a considerable advantage to investors.15
The negative consequences of this different treatment (intra-EU BIT investors vs.
non-intra EU BIT investors) would be, pursuant to the BGH, easily rectified by
extending the protection also to other investors from non-EU-intra BIT Member
States. The breach of Article 18 TFEU would be removed by giving these investors
the advantage of accepting the arbitration offer, despite the fact that their home
State did not conclude a BIT with the host State. The fact that no formal arbitration
agreement would be in place is not regarded as a difficulty by the BGH. It, therefore,
cannot be ruled out that a possible breach of Art. 18 TFEU can be resolved through
a general extension of the rights under intra-EU BITs to non-intra EU BITs investors.
Conclusion
The BGH understands that if any of these Articles would be breached by the
standing offer contained in Art. 8(2) of the intra-EU BIT, then the arbitration
agreement executed by Achmea’s acceptance of the offer would cause the arbitration
agreement to be null and void. No arbitration award could be upheld under such
circumstances and no enforcement could take place. The BGH fully grasped the
importance of the matter, and finally gave the CJ EU the opportunity to issue
a landmark judgment on the future of the intra-EU BIT system.
The suspension of the proceedings pending before the BGH has to be seen as an
important step towards the resolution of the question concerning the compatibility
of the investment protection regime under intra-EU BITs with EU law. The referral
is made at the time when the European Commission is endeavouring to remove
intra-EU investment arbitrations by commencing infringement proceedings against
five Member States,16 including Slovakia. Undeniably, the proceedings before the CJ
EU will offer a fruitful discussion, as not only the Commission but also Member
States (whether pro-intra EU BITs or against intra-EU BIT) will be invited to submit
their opinions. The BGH’s decision of March the 03, 2016, therefore, not only takes
14 Para. 69 and following of the Decision.
15 Para. 72 and following of the Decision.
16 Austria, the Netherlands, Romania, Slovakia and Sweden; see the European Commission’s press release
on the request to terminate intra-EU BITs: ;
(last visit: May 23, 2016).