The conflict between international investment law and EU law provides fruitful insights into how the arbitral tribunals, acting outside the EU’s judicial system, have viewed the EU and EU law. Taking ...as an example the topical questions of the principle of autonomy of EU law as well as the EU’s State aid rules in investor-State arbitration, the article discusses how arbitral tribunals have seen the role of EU law and how they have treated the opposite demands from the two legal regimes. The claim of EU law rendering the intra-EU investment treaties invalid has constantly proved unsuccessful, and the tribunals have maintained their jurisdiction to be based on international law. However, the possibility of EU law affecting the assessment of the merits of the cases is clearer and more accepted. While harmonious interpretation could somewhat alleviate the remaining conflicts between the two legal regimes, it is unlikely that either regime would compromise the core elements of their systems. The article argues that, for the specific nature of the EU’s legal order to be secured in a way that does not conflict with international law, the relationship between EU law, international (investment) law and investment dispute settlement should be clearly regulated in instruments of international law.
The policy area of cooperation between fiscal authorities of Member States of the EU has historically been characterised by advanced patterns of administrative integration which, coupled with the ...sensitivity of the subject-matter in terms of potential impingement on taxpayers' rights, have made all the more problematic the gaps in effective judicial protection generally to be found in composite procedures set up by EU administrative law. This Article analyses two recent rulings delivered by the Court of Justice where what might be labelled as transnational judicial review has for the first time been accepted by the Court: the possibility that, in so-called horizontal composite procedures, the judiciary of the State to which the authority adopting the final act of the procedure belongs review, along with such latter act, preparatory acts adopted in earlier stages of the procedure by authorities of a different Member State. It strives to read the rulings against the broader background of the judicial dialogue currently engaged into by the European Court of Human Rights and the Court of Justice on the principle of mutual trust, and it argues that the progressive solution reached by the Court of Justice in those cases can be applied across all areas of EU administrative law, pivoting on the right to an effective judicial remedy, but also on other general principles of EU constitutional law (and, in particular, the principles of autonomy and uniformity of EU law).
The Court of Justice of the European Union (CJEU) has recently assessed the compatibility of the reformatory Investment Court System (ICS) of the EU’s trade agreement with Canada (CETA). In the ...Opinion 1/17, the CJEU ruled the ICS mechanism to be compatible with EU law. This article provides a comprehensive critical assessment of the ICS mechanism and its potential adverse effects on uniform interpretation of EU law. It is proposed that, despite the favourable assessment of the CJEU, the ICS mechanism could result in indirect negative effects on the uniform interpretation of EU law and the autonomy of EU legal order. Involvement of the CJEU in the proceedings of the ICS mechanism is suggested as a possible option to resolve all the incompatibilities of the ICS with the autonomy of the EU legal order, and to ensure the CJEU’s exclusive right to interpret EU law.
In its judgment in Achmea (judgment of 6 March 2018, case C-284/16 GC), the Court of Justice ruled that an investor-State arbitration clause in a bilateral investment treaty concluded between two EU ...Member States was contrary to the principle of the autonomy of the EU legal order. In this Article, I suggest that the Achmea judgment could have implications for the validity, not only of ISDS clauses in intra-EU BITs, but also of ISDS and applicable law clauses in BITs and other agreements concluded by the EU (or its Member States) with third States.
This article analyses the aspect of the Court’s reasoning in Opinion 1/17 that focuses on the regulatory autonomy of the Parties to the Comprehensive Economic and Trade Agreement (CETA) to decide on ...levels of protection of public interests. The European Court of Justice’s (ECJ) introduction of regulatory autonomy under EU law coincides with the wider debate around ‘regulatory chill’ under international investment law. This article finds the ECJ’s concept of regulatory autonomy to be narrower than that of the regulatory chill hypothesis put forward by critics of investor-state dispute settlement (ISDS). It further analyses the ECJ’s reasoning that the CETA’s investment tribunals do not have jurisdiction to call into question the levels of protection sought by the EU. In so doing, it will critically evaluate the certainty of the ECJ’s promise that there will be no negative effect on public interest decision-making through CETA’s investment chapter. Finally, it will explore the legal consequences of Opinion 1/17 for future awards and investment agreements.
In the Achmea case (judgment of 6 March 2018, case C-284/16), the Court of Justice applied its standing case law on the autonomy of the EU legal order to Investor-state Dispute Resolution (ISDS) and ...concluded that the ISDS mechanism at hand was contrary to EU law. Irrespective of whether the Court's construction of autonomy is conceptually convincing, the principled elaborations on autonomy in Achmea, emphasized the relevance of the preliminary ruling procedure as the institutional backbone of the effectiveness of EU law. This institutional backbone, which allows for a constant dialogue between the Court of Justice and the national judiciary, played an important role in the Courts finding that EU law enjoys direct effect and primacy in van Gend en Loos and Costa v. ENEL (respectively, judgment of 5 February 1963, case 26/62 and judgment of 15 July 1964, case 6/64). In the eyes of the Court, it cannot be compromised by offering investors an alternative route of dispute settlement from which no possibility exists to ask preliminary questions. While other aspects of the ruling, that is the Court's considerations on mutual trust, may apply specifically to the type of Intra-EU ISDS mechanisms in Achmea, the autonomy reasoning logically also applies to other forms of investment arbitration, such as the Investment Court System (ICS) in the Comprehensive Economic and Trade Agreement between the EU and Canada (CETA) and the envisaged Multilateral Investment Court (MIC). The principled stand on autonomy, as the Court has presented it in a long list of cases, including in Achmea, amounts to a considerable, albeit not necessarily insurmountable obstacle to both Member States and the Union submitting to the jurisdiction of international courts and tribunals.
On March 6, 2018, the Grand Chamber of the Court of Justice of the European Union (CJEU or Court) rendered its judgment in Slowakische Republic (Slovak Republic) v. Achmea B.V. (Achmea decision) in ...response to the German Federal Court of Justice's (Bundesgerichtshof) request for a preliminary ruling. Deciding for the first time on the compatibility of the arbitration provision in bilateral investment treaties (BITs) with European Union (EU) law, the Court concluded that the investor-state arbitration clause in the Dutch-Slovak BIT was incompatible with EU law because it violated the principle of autonomy. The Court will soon respond to Belgium's request for an Opinion on the Canada-EU free trade agreement (FTA), where it will rule on the compatibility of extra-EU investment agreements with EU law.
In its judgment of 6 March 2018, in Achmea (case C-284/16 GC), the CJEU for the first time ruled on the validity, in light of EU law, of an international agreement between Member States. The judgment ...raises several important legal questions. This Insight concentrates exclusively on those related to the concept of "tribunal" within the meaning of Art. 267 TFEU and the consequences of the declaration of invalidity contained therein.
The provision of the founding treaties in which duty of loyal (sincere) cooperation of Member-States with Community institutions is stipulated, together with the correlating duty of abstention from ...measures that may jeopardize attainment of aims of the founding treaties, has been the subject of interpretation of the European Court of Justice since the Rome Treaty until present-day, having served as the grounds for numerous and material improvements and build ups of the Community legal system, which encompassed the principle of primacy of Community law, implied exclusive competence of the Community in external relations, the principle of effectiveness of Community law, etc. It appears that only case law of the ECJ in the future may provide answer to the question whether there is a single principle of loyalty, or simply a bundle of related duties. If one accepts that it exists, the principle of loyalty seems most closely related to the principle of autonomy of EU law, both judging by its importance for the development of the legal system of the EU, and by the fact that it directly borders the political sphere.
V kontroverznem Mnenju 2/13 je Sodišče EU zavzelo jasno in nedvoumno stališče - osnutek sporazuma o pristopu Evropske unije (EU) k Evropski konvenciji o človekovih pravicah (EKČP) ni združljiv z ...drugim odstavkom 6. člena Pogodbe o EU oziroma s Protokolom št. 8 k EKČP. Zato načrtovani sporazum ne more začeti veljati, razen če je ustrezno spremenjen ali sta spremenjeni Pogodbi. Mnenje 2/13 je sicer precejšen izziv na poti pridružitve EU k EKČP, vendar v nobenem primeru ne odpravlja in tudi ne onemogoča pridružitvene obveznosti. Zato bo treba najti pot, ki bo vodila k pridružitvi, kar najbrž ne bo preprosto, je pa izvedljivo. Če se bo postopek pridruževanja udejanjal v strokovnih okvirih, s strokovnimi argumenti, ter ne bo prevladalo politikantstvo, meniva, da bodo mogoče nekatere spremembe pridružitvenega sporazuma v smeri, kot je nakazalo Sodišče EU. Če in kolikor pa do tega ne bo prišlo, to ne bi smelo biti pripisano (zgolj) Sodišču Evropske unije. Ne pozabimo, da države članice v Pogodbah niso le določile obveznosti pridružitve EU k EKČP, temveč so na to pridružitev vezale določene pogoje, ki jih je Sodišče EU preprosto moralo upoštevati. Prav tako je treba opozoriti, da imajo države članice, če dosežejo konsenz, kot »gospodarice Pogodb« zmeraj možnost Pogodbi ustrezno spremeniti (kar je zdaj, ko je bolj ali manj jasno, da je revizija Lizbonske pogodba nujna, še bolj realno, kot je bilo v času izdaje Mnenja 2/13). Na drugi strani Sodišče EU možnosti revizije Lizbonske pogodbe seveda nima, temveč mora Pogodbi sprejeti kot objektivno danost.
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