Achmea judgement fallout: 22 EU member states agree to terminate intra-EU BITs

Twenty-two EU member states endorsed a political declaration on January 15, 2019, where they announced a series of actions involving existing intra-EU BITs and upcoming or ongoing investment arbitration.

The reason behind this series of changes is a CJEU ruling in the Achmea. v Slovak Republic case, which found that certain provisions of the TFEU “must be interpreted as precluding a provision in an international agreement concluded between Member States” that would allow an investor from one member state to initiate arbitration proceedings against another member state.

The political declaration was signed by Austria, Belgium, Bulgaria, Cyprus, Czechia, Denmark, Germany, Estonia, Greece, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovenia, Spain and the United Kingdom.

The 22 countries involved have agreed to “terminate all bilateral investment treaties concluded between them by means of a plurilateral treaty, or, where that is mutually recognised as more expedient, bilaterally.” They have set a December 6, 2019 deadline for ratifying that plurilateral treaty.

These EU member states will also direct investors to hold off on any new intra-EU arbitration proceedings, and with regard to ongoing cases, will inform the relevant tribunals, and EU member states that are defendants in those cases are to ask the relevant courts to either drop intra-EU investment arbitration awards or to make sure these are not put into effect.