Under the Treaty on the Functioning of the European Union (TFEU), the European Union obtained a new exclusive competence in respect of foreign direct investment, including the negotiation of treaties protecting such investment. The delicate interrelationship between the powers of the EU and its Member States in this area is not settled. Developments in 2018 confirmed the EU institutions' active stance on investment treaties concluded directly by the EU and third states.2 The Achmea judgment issued by the Court of Justice of the European Union (CJEU) in March 2018 contributed to further uncertainty regarding the legal status of existing bilateral investment treaties (BITs) concluded by the Member States prior to their accession to the EU.
II THE YEAR IN REVIEW
i Developments affecting investment protection treaties of Member States: extra-EU BITs
As explained in previous editions of this chapter, Regulation (EU) No. 1219/2012 confirmed that extra-EU BITs remain binding on Member States under public international law. These treaties will be progressively replaced by investment protection agreements negotiated directly between the EU and third countries. The transitional period will apply at least until 2020, at which point the Commission will present a report on the application of Regulation (EU) No. 1219/2012 to the European Parliament and the Council.
In parallel, the EU has pursued negotiations for free trade agreements with third countries that contain chapters on investment promotion and protection, or separate stand-alone investment agreements concluded by the EU and its Member States with third countries.
On 17 October 2014, the EU and Singapore concluded the negotiations regarding the investment chapter of the EU–Singapore Free Trade Agreement (EUSFTA).3
On 4 March 2015, the Commission sought the clarifications of the CJEU regarding the EU's competence in relation to EUSFTA.4 On 16 May 2017, the CJEU, sitting in a Full Court composition, ruled that the EUSFTA included both provisions within the exclusive competence of the EU and provisions within the shared competence of the EU and its Member States. As a result, the EUSFTA must be concluded not only by the EU, but also by all EU Member States. In particular, the CJEU disagreed with the Commission that investment provisions other than those relating to foreign direct investment, and the provisions on investor–state dispute settlement, fell within the EU's exclusive competence. At the same time, the CJEU agreed with the Commission that the EU had exclusive competence in relation to the termination of foreign direct investment provisions contained in extra-EU BITs with third countries with which the EU had concluded new investment treaties.5
Following this opinion, the final text of the EUSFTA was split into two distinct agreements: the EU–Singapore free trade agreement and the EU–Singapore investment protection agreement. These two agreements were signed on 19 October 2018 by the EU and Singapore, and the European Parliament approved the agreements on 13 February 2019 for a further internal ratification process, including ratification of the investment protection agreement by all EU Member States.6 When ratified, the EU–Singapore investment protection agreement will replace 12 existing BITs between the Member States and Singapore.
On 4 August 2015, the EU and Vietnam reached an agreement in principle on a comprehensive EU–Vietnam trade and investment agreement.7 On 17 October 2018, the European Commission adopted the final text of the EU–Vietnam trade and investment agreement, which will be presented to the European Council and Parliament for their vote.8
On 15 February 2017, the European Parliament voted in favour of the adoption of the Canada–EU Comprehensive Economic and Trade Agreement (CETA).9 The CETA entered into force provisionally on 21 September 2017.10 That provisional application was made possible following the Commission's decision to propose the CETA as a mixed agreement to 'allow for a swift signature and provisional application' of those chapters of the CETA that fall within the EU's exclusive competence.11 However, in accordance with the decision on the provisional application of the Council of the European Union, the CETA's provisions on investment protection, investment market access with regards to portfolio investment and the investment court system are not subject to provisional application.12
As a mixed agreement, the CETA will need to be ratified by each Member State to enter into force. As of May 2019, 11 Member States had ratified the CETA, namely Croatia, the Czech Republic, Denmark, Estonia, Finland, Latvia, Lithuania, Spain, Portugal, Sweden, and the United Kingdom.13
In contrast to the existing BITs, the CETA and the EU–Vietnam free trade agreement each provide for a novel investment tribunal system, whereby a permanent Investment Tribunal will be established by the trade committees constituted under the respective treaties. This approach is consistent with the Commission's Concept Paper from 2015 entitled 'Investment in TTIP and Beyond – the Path for Reform', which suggested the creation of a permanent multilateral arbitration court, a permanent list of arbitrators and the bilateral appeal of arbitration awards.14 Under the CETA and the EU–Vietnam free trade agreement, the trade committees will appoint the Tribunal's members. An equal number of the Tribunal's members will consist of nationals of the Member States, nationals of Canada or Vietnam, respectively, and nationals of third countries, appointed for a specific term. The Tribunal 'shall hear cases in divisions consisting of three members', one of whom shall be a national of the Member State, the second one a national of the other contracting party under the respective agreement and the third one a national of a third country. Awards will be subject to appeal before an appeal tribunal, whose members will also be appointed by the trade committees.15
Significantly, on 6 September 2017, Belgium filed its application to the CJEU for an opinion 'regarding the compatibility of the ICS [Investment Court System provided in the CETA] with: 1) The exclusive competence of the CJEU to provide the definitive interpretation of European law; 2) The general principle of equality and the 'practical effect' requirement of European Union law; 3) The right of access to the courts; 4) The right to an independent and impartial judiciary'.16
On 30 April 2019, the CJEU, sitting in a Full Court composition, issued an opinion upholding the compatibility of the investment–state dispute settlement (ISDS) mechanism in the CETA with EU law. The CJEU first held that the CETA section on the ISDS mechanism 'does not adversely affect the autonomy of the EU legal order' because the CETA 'does not confer on the envisaged tribunals any jurisdiction to interpret or apply EU law' beyond the provisions of the CETA and because 'those tribunals have no jurisdiction to call into question the choices democratically made within a Party relating to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals, the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or, equally, fundamental rights'.17
The CJEU then held that the mechanism is compatible with the principle of equal treatment under Article 20 of the Charter of Fundamental Rights of the European Union (Charter) because Canadian investors that have access to a CETA tribunal are 'not comparable' to investors of Member States that invest within the Union, as the latter are not 'foreign investors'.18 The mechanism was also compatible with 'the requirement that the EU competition law be effective' because it 'does not impede the full application of the provisions of the FEU Treaty designed to ensure the preservation of undistorted competition in the internal market'.19 Finally, the ISDS mechanism was compatible with the right of access to an independent tribunal provided in Article 47 of the Charter. The accessibility requirement was met despite the financial burden because in Statement 36 of the CETA, 'the Commission and the Council have given a commitment to implement, rapidly and adequately, Article 8.39.6 of the CETA and to ensure the accessibility of envisaged tribunals to small and medium-sized enterprises'.20 The independence requirement was satisfied by the CETA provisions concerning appointment, composition, remuneration, and removal of a tribunal, as well as the CETA's reference to the IBA Guidelines.21
Following the CJEU opinion on the CETA, the EU will be able to continue including similar ISDS clauses in its investment treaties.
During the year in review, the EU acquired certain powers to control foreign direct investment (FDI) into the EU on security grounds under Regulation (EU) 2019/452 on the screening of foreign direct investments into the Union.22 The Commission made initial proposals for a new EU legislative act establishing a screening mechanism for FDI in September 2017. Those proposals responded to concerns by the Member States that certain foreign investors had already acquired strategic assets and could control them to hinder the EU's technological intellectual property rights, security interests or public order. The Commission's proposals aimed to put in order any disparities in the screening practice of the Member States and assert the EU's powers in this area. Pursuant to Regulation (EU) 2019/452, the Commission will cooperate with the Member States' investment screening authorities and will give non-binding opinions on whether an FDI harms the EU's interests in sectors considered as pertaining to security and public order. The affected sectors include infrastructure, utilities, energy, advanced technologies (e.g., semiconductors, dual-use software, robotics and artificial intelligence), aerospace (e.g., drones, aircraft) and defence. The Commission's opinions will have binding force when certain FDIs relate to the EU's cross-border infrastructure or priority energy and space projects, listed in the Annex to Regulation (EU) 2019/452. The Commission will also have the possibility to issue retroactive opinions on screened FDIs up to 15 months after their completion, notably in the Member States that have chosen not to screen them, potentially causing major uncertainty for investment decisions in the affected sectors starting on 10 April 2019. The mechanism will apply with full effect on 11 October 2020.
ii Developments affecting the interrelationship between EU law and protection granted by BITs: intra-EU BITs and the impact of the Achmea judgment
By 2012, the Commission requested all Member States to terminate their intra-EU BITs, that is, treaties concluded between two Members States prior to the accession of one of them to the EU.23 Moreover, in June 2015 the Commission initiated infringement proceedings against five Member States, expressing the view that certain of their intra-EU BITs violated EU law and asking them 'to bring the intra-EU BITs between them to an end'.24 Since that time, the Commission has expressed the view that the intra-EU BITs in question contain provisions that overlap with the TFEU provisions on the freedom of establishment and the free movement of capital and, for this reason, may affect common provisions of EU law or alter their scope.25 The Commission also has argued that the ISDS mechanism in these treaties contravenes the provisions of Article 344 of the TFEU, according to which Member States undertake not to resolve disputes regarding the interpretation or application of EU law other than as determined by EU law, in particular through referral to the CJEU.26 The Commission also has suggested that the investor–state arbitration clause constitutes direct discrimination against investors from other Member States that may not have the possibility to refer a dispute to arbitration.27
The Commission's position on the ISDS mechanism in intra-EU BITs, however, remained controversial over the years. Various Member States expressed their disagreement with the Commission.28 Moreover, all international arbitral tribunals that considered the issue rejected similar EU law-based jurisdictional arguments raised by respondent Member States, the Commission, or both.29
In the context of such controversy, in 2016, the German Federal Court of Justice made a request to the CJEU for a preliminary ruling under Article 267 TFEU, in Case C-284/16, Slovak Republic v. Achmea BV.30 In the underlying proceeding in Germany, Slovakia sought to set aside UNCITRAL arbitral awards rendered by a tribunal constituted under the Netherlands–Slovakia BIT by arguing that the tribunal lacked jurisdiction because the arbitration clause in the intra-EU BIT was incompatible with EU law.
The German Federal Court of Justice referred the following questions to the CJEU:
1. Does Article 344 TFEU preclude the application of a provision in a bilateral investment protection agreement between Member States of the European Union (a so-called BIT internal to the European Union) under which an investor of a contracting State, in the event of a dispute concerning investments in the other contracting State, may bring proceedings against the latter State before an arbitration tribunal, where the investment protection agreement was concluded before one of the contracting States acceded to the European Union but the arbitration proceedings are not to be brought until after that date? If Question 1 is to be answered in the negative: 2. Does Article 267 TFEU preclude the application of such a provision? If Questions 1 and 2 are to be answered in the negative: 3. Does the first paragraph of Article 18 TFEU preclude the application of such a provision under the circumstances described in Question 1?31
On 6 March 2018, the Grand Chamber of the CJEU rendered its long-anticipated judgment.32 The CJEU found that Article 8 of the Netherlands–Slovakia BIT providing for arbitration 'ha[d] an adverse effect on the autonomy of EU law'.33 The CJEU concluded that:
Articles 267 and 344 TFEU must be interpreted as precluding a provision in an international agreement concluded between Member States, such as Article 8 of the Agreement on encouragement and reciprocal protection of investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic, under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept.34
Following the judgment, on 31 October 2018, the German Federal Court of Justice set aside the arbitral award in Achmea on the ground that there was no valid arbitration agreement because the arbitration clause in the BIT was incompatible with EU law.35
The Achmea judgment has accelerated the process of termination of intra-EU BITs. It has also raised questions about intra-EU investor–state arbitration under existing BITs and the Energy Charter Treaty (ECT), as well as enforcement in the EU of arbitral awards rendered in such arbitration.
On 19 July 2018, the Commission released a communication to the European Parliament and the Council entitled 'Protection of intra-EU investment', stating its position that the judgment 'implies that all investor-State arbitration clauses in intra-EU BIT[s] are inapplicable and that any arbitration tribunal established on the basis of such clauses lacks jurisdiction due to the absence of a valid arbitration agreement'.36 The Commission also stated that 'national courts are under the obligation to annul . . . and to refuse to enforce' such awards, and Member States are 'bound to formally terminate their intra-EU BIT[s]'.37 The Commission also expressed its position that the Achmea judgment 'applies equally' to the ECT such that the investor–state arbitration clause is 'not . . . applicable between investors from a Member State of the EU and another Member State of the EU'.38
On 15 January 2019, 22 Member States (including Belgium, Croatia, France, Germany, Italy, Romania, Slovakia, Spain, the Netherlands and the United Kingdom) issued a declaration 'on the legal consequences of the judgment of the Court of Justice in Achmea and on investment protection in the European Union'.39 They noted that they 'are bound to draw all necessary consequences from that judgment pursuant to their obligations under Union law' and that 'all investor-State arbitration clauses contained in bilateral investment treaties concluded between Member States are contrary to Union law and thus inapplicable'.40 These Member States also noted that the arbitration clause in the ECT would have to be disapplied between Member States because a contrary interpretation would be incompatible with the EU treaties.41
In the same declaration, the 22 Member States also undertook, inter alia, to:
- inform the arbitral tribunals about 'the legal consequences of the Achmea judgment' stated in the same;
- 'request the courts, including in any third country . . . to set these awards aside or not to enforce them due to a lack of valid consent';
- 'inform the investor community that no new intra-EU investment arbitration proceeding should be initiated';
- take steps under their national law so that the enterprises under state control that are claimants in pending intra-EU investment arbitration would withdraw from them; and
- terminate all intra-EU BITs 'by means of plurilateral treaty or . . . bilaterally' no later than 6 December 2019.42
They also stated that '[s]ettlements and arbitral awards in intra-EU investment arbitration cases that can no longer be annulled or set aside and were voluntarily complied with or definitively enforced before the Achmea judgment should not be challenged' and that the Member States 'will discuss . . . practical arrangements' concerning them.43
On 16 January 2019, two other declarations were signed, one by Finland, Luxembourg, Malta, Slovenia and Sweden, and the other by Hungary. These Member States stated the same position as the earlier declaration as regards the effect of the Achmea judgment on the intra-EU BITs, but differed with respect to the ECT. The declaration by Finland, Luxembourg, Malta, Slovenia and Sweden stated that 'the Achmea judgment is silent' regarding the ECT, that the issue was being 'currently contested before a national court' in Sweden and that 'it would be inappropriate . . . to express views as regards to the compatibility with Union Law . . .'.44 Hungary similarly stated in its separate declaration that 'in its view, the Achmea judgment concerns only the intra-EU bilateral investment treaties'.45
The legal consequences of the Achmea judgment, however, are far from settled. The Member States' declarations reflect a political statement, and the question remains as to whether they have any binding legal effect under EU law. Moreover, a further question remains as to what effect, if any, the Achmea judgment, the EU Commission's communication and the Member States' declarations have under public international law. Therefore, the impact of the judgment remains an open question before the international arbitral tribunals and national courts. To date, all international arbitral tribunals constituted under intra-EU BITs have rejected intra-EU jurisdictional challenge, including two tribunals following the Achmea judgment.46
As of May 2019, all international arbitral tribunals constituted under the ECT to consider an intra-EU claim have also held that the Achmea judgment does not apply to the ECT.47 The Achmea judgment does not appear to address the question of compatibility between the ECT and EU law. Contrary to intra-EU BITs, the ECT is a multilateral agreement to which EU Member States, non-EU Member States and the EU are parties. In the Achmea judgment, the CJEU acknowledges that the EU has the 'capacity to conclude international agreements', and that such capacity 'necessarily entail[s] the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected'.48
The impact of the Achmea judgment on arbitral awards already issued under intra-EU BITs also remains unclear. In principle, the judgment should not affect the annulment of awards issued under the ICSID Convention, which provides for a self-contained annulment mechanism. An ad hoc annulment committee constituted under the ICSID Convention is not part of the jurisdiction of EU Member States and is not bound by the judgments of the CJEU. At least one international arbitral tribunal has held that the Achmea judgment does not apply to intra-EU ICSID arbitration.49 However, it would be prudent to anticipate the Commission's objection to the enforcement in a Member State of an ICSID award issued under an intra-EU BIT. The Commission could, for instance, rely on the Achmea judgment to bring infringement proceedings against that Member State, which in turn would create obstacles to the enforcement of the award within the EU. The judgment to be issued in Micula v. Commission50 pending before the General Court may also clarify the interrelationship between the ICSID Convention and EU law in the Member States' jurisdictions.
As regards non-ICSID awards issued on the basis of intra-EU BITs, the impact of the Achmea judgment will depend on the seat of the underlying arbitration proceedings. The judgment does not produce legal effect outside the EU. Therefore, in principle, a non-EU Member State court would not be bound by the judgment. In contrast, an EU Member State court is bound by judgments of the CJEU, and may consider that the Achmea judgment should give rise to the annulment of an arbitral award on the grounds of public policy or lack of a valid arbitration agreement. The same reasoning applies to the enforcement of arbitral awards issued under intra-EU BITs within the EU. In cases of doubt, an EU Member State court may seek further clarifications from the CJEU through a request for a preliminary ruling.
Member State courts have begun to consider the Achmea judgment in the context of set-aside proceedings. On 22 February 2019, the Svea Court of Appeal declined to set aside an SCC award made in PL Holdings v. Poland under the Luxembourg–Poland BIT.51 The Svea Court of Appeal agreed that the Achmea judgment 'cannot be understood in any other way than that the dispute resolution agreement is invalid as between the Member States'.52 However, that Court also stated that 'the CJEU's ruling does not mean that an arbitration agreement between an investor and a Member State in a specific case [as opposed to a dispute resolution mechanism in a treaty] violates the TFEU'.53 Because Poland, unlike Slovakia in the Achmea proceedings, had not raised the intra-EU objection until later in the arbitration, it had implicitly consented to arbitration and was precluded from arguing invalidity.54 The same Court also rejected Poland's arguments based on arbitrability of the subject matter and Swedish public policy.55 The Swedish Supreme Court accepted Poland's application for appeal of the Svea Court of Appeal's decision on 9 April 2019.
III OUTLOOK AND CONCLUSIONS
In 2018, the EU continued to adjust its policy and negotiating position on investment protection treaties. The EU policy towards creating an investment court system will likely continue, in light of the CJEU's opinion in 2019 on the compatibility of the CETA dispute settlement mechanism with EU law. The EU's approach to intra-EU BITs will continue to be impacted by the Achmea judgment issued by the CJEU in March 2018. The judgment, as made clear in the first court decisions of Member States, has and will continue to have far-reaching consequences as regards the future application of intra-EU BITs. The judgment expected in the pending proceeding before the CJEU in Micula v. Commission will further reshape the contours of investment protection and the investor–state dispute settlement mechanism within the EU.
1 Edward Borovikov, Anna Crevon-Tarassova and Bogdan Evtimov are partners and Jungmin Cho is an associate at Dentons.
2 The authors recommend consulting the 2013, 2014, 2015, 2016, 2017 and 2018 publications of The International Arbitration Review concerning the same jurisdiction, which may cover important developments from previous years that could not be included in this year's edition by reason of volume.
3 'EU and Singapore conclude Investment talks', European Commission, press release, Brussels, 17 October 2014.
4 Request for an opinion submitted by the European Commission pursuant to Article 218(11) TFEU (Opinion 2/15) (2015/C 363/22), OJEU C 363/19, 3 November 2015.
5 Opinion 2/15 of the CJEU (Full Court), 16 May 2017, ECLI:EU:C:2017:376.
6 'Agreement with Singapore set to give a boost to EU-Asia Trade', European Commission, press release, Brussels, 13 February 2019.
7 'EU and Vietnam reach agreement on free trade deal', European Commission, press release, Brussels, 4 August 2015.
8 'Commission presents EU-Vietnam trade and investment agreements for signature and conclusion', European Commission, press release, Brussels, 17 October 2018. The text of the EU–Vietnam trade and investment agreements, made solely available for informational purposes and not yet binding under international law, is available at http://trade.ec.europa.eu/doclib/press/index.cfm?id=1437.
9 'European Commission welcomes Parliament's support of trade deal with Canada', European Commission, press release, Brussels, 15 February 2017. The CETA was signed by the EU and Canada on 30 October 2016.
10 'EU-Canada trade agreement enters into force', European Commission, press release, Brussels, 20 September 2017.
11 'European Commission proposes signature and conclusion of EU-Canada trade deal', European Commission, press release, Brussels, 5 July 2016.
12 Council Decision (EU) 2017/38 of 28 October 2016 on the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, OJ L 11, 14.1.2017, pp. 1,080–1; see also 'CETA - a trade deal that sets a new standard for global trade', European Commission, fact sheet, 15 February 2017.
13 See Council of the European Union, CETA, Ratification Details, available at http://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2016017. In addition to these Member States, Malta, the only EU Member State that does not require ratification of the CETA under its internal laws, also completed its internal procedures necessary for the approval of the CETA.
15 CETA, Articles 8.27 and 8.28; EU–Vietnam Investment Protection Agreement, agreed text as of 24 September 2018, Chapter 3, Articles 3.38 and 3.39.
16 Belgian Request for an opinion from the European Court of Justice, available on the Kingdom of Belgium, Foreign Affairs, Foreign Trade and Development Cooperation website at https://diplomatie.belgium.be/en/newsroom/news/2017/minister_reynders_submits_request_opinion_ceta .
17 Opinion 1/17 of the Court (Full Court), 30 April 2019, ECLI:EU:C:2019:341, paragraphs 136, 160, 161.
18 Id., paragraphs 180, 181.
19 Id., paragraph 188.
20 Id., paragraphs 218, 222.
21 Id., paragraphs 223–244.
22 Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union, OJ L 79, 21.3.2019, pp.1–14.
23 Commission Staff Working Document, Capital Movements and Investments in the EU, SWD(2012) 6 final, 3 February 2012, p. 13.
24 'Commission asks Member States to terminate their intra-EU bilateral investment treaties', European Commission, press release, Brussels, 18 June 2015.
25 Response to letter of formal notice regarding the treaty between the Government of the Kingdom of Sweden and the Government of Romania regarding the promotion and mutual protection of investments (COM ref. SG-Greffe 2015D/6898, matter number 2013/2207), Sweden, Ministry of Foreign Affairs, Legal Affairs Division, 19 October 2015, paragraph 9 (referring to the Commission's formal notice of 19 June 2015).
26 Id., paragraph 27.
28 See, e.g., Response to letter of formal notice regarding the treaty between the Government of the Kingdom of Sweden and the Government of Romania regarding the promotion and mutual protection of investments (COM ref. SG-Greffe 2015D/6898, matter number 2013/2207), Sweden, Ministry of Foreign Affairs, Legal Affairs Division, 19 October 2015, paragraph 40; 'Bilateral investment protection treaties, including intra-EU BITs', Austria's Federal Ministry of Science, Research and Economy. See also 2013, 2014, 2015, 2016, 2017 and 2018 publications of this publication for a further description of the Member States' positions over the years.
29 See, e.g., A11Y Ltd. v. Czech Republic, ICSID case No. UNCT/15/1, decision on jurisdiction, 9 February 2017, paragraph 177. See also Electrabel SA v. Hungary, ICSID case No. ARB/07/19, decision on jurisdiction, applicable law and liability, 30 November 2012; Charanne v. Spain, SCC arbitration No. 062/2012, final award, 21 January 2016.
30 Slovak Republic v. Achmea BV, case C-284/16.
31 See case C-284/16, Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 23 May 2016, Slovak Republic v. Achmea BV, OJEU C 296/19, 16 August 2016.
32 Case C-284/16, Slovak Republic v. Achmea BV, CJEU (Grand Chamber), judgment, 6 March 2018. The judgment is final and not subject to appeal within the EU system.
33 Id., paragraph 59.
34 Id., paragraph 60.
35 German Federal Court of Justice, decision, case I ZB 2/15 (31October 2018).
36 'Communication from the Commission to the European Parliament and the Council: Protection of intra-EU investment', COM(2018) 547 final, 19 July 2018, p. 3.
37 Id., p. 3.
38 Id., pp. 3, 4.
39 'Declaration of the Representatives of the Governments of the Member States on the Legal Consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union', 15 January 2019 (available at https://ec.europa.eu/info/sites/info/files/business_economy_euro/banking_and_finance/documents/190117-bilateral-investment-treaties_en.pdf).
40 Id., p. 1.
41 Id., p. ۲.
42 Id., pp. 3, 4.
43 Id., p. 4.
44 'Declaration of the Representatives of the Governments of the Member States on the Enforcement of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union', 16 January 2019, available at https://www.regeringen.se/48ee19/contentassets/d759689c0c804a9ea7af6b2de7320128/achmea-declaration.pdf.
45 'Declaration of the Representative of the Government of Hungary on the Legal Consequences of the Judgment of the Court of Justice in Achmea and on Investment Protection in the European Union', 16 January 2019, available at https://www.kormany.hu/download/5/1b/81000/Hungarys%20Declaration%20on%20Achmea.pdf.
46 See Marfin Investment Group v. The Republic of Cyprus, ICSID case No. ARB/13/27, award, 26 July 2018; UP and CD Holding Internationale v. Hungary, ICSID case No. ARB/13/35, award, 9 October 2018. See 2013, 2014, 2015, 2016, and 2017 publications of this publication for a description of prior awards by international arbitral tribunals.
47 See Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID case No. ARB/14/1, award, 16 May 2018; Antin Infrastructure Services Luxembourg Sàrl v. Kingdom of Spain, ICSID case No. ARB/13/31, award, 15 June 2018; Vattenfall AB v. Federal Republic of Germany, ICSID case No. ARB/12/12, decision on the Achmea issue, 31 August 2018; Foresight Luxembourg Solar 1 SÀRL v. Kingdom of Spain, SCC arbitration V (2015/150), final award, 14 November 2018; RREEF Infrastructure (GP) Limited v. Kingdom of Spain, ICSID case No. ARB/13/30, decision on responsibility and on the principles of quantum, 30 November 2018; Greentech et al v. Italian Republic, SCC arbitration V (2015/095), final award, 23 December 2018; CEF Energia BV v. Italian Republic, SCC arbitration V (2015/158), award, 16 January 2019.
48 Case C-284/16, Slovak Republic v. Achmea BV, CJEU (Grand Chamber), judgment, 6 March 2018, paragraph 57.
49 UP and CD Holding Internationale v. Hungary, ICSID case No. ARB/13/35, award, 9 October 2018.
50 Micula et al v. Commission, case T-704/15. The case concerns the applicants' request for annulment of Commission Decision (EU) 2015/1470 of 30 March 2015 whereby the Commission deemed that payment of compensation awarded by an ICSID tribunal in an arbitration brought against Romania under the Romania–Swedish BIT constituted state aid incompatible with the TFEU.
52 Id., p. 42.
53 Id., p. 43.
54 Id., Section 5.2.7.
55 Id., Sections 5.2.5–5.2.6.