I INTRODUCTION

Under the Treaty on the Functioning of the European Union (TFEU), the European Union was provided with a new exclusive competence in respect of foreign direct investment, including the negotiation of treaties protecting such investment. Since the entry into force of the Treaty of Lisbon, Member States must seek authorisation from the European Commission to negotiate and adopt such treaties. The delicate interrelationship between the powers of the EU and the Member States in this area, as well as the legal status of existing bilateral investment treaties (BITs) concluded by the Member States prior to their accession to the European Union, is not settled. Developments in 2016 continued to highlight the legal uncertainty relating to the application of the existing BITs, and confirmed the EU institutions' active stance in the negotiation and finalising of investment treaties concluded directly by the EU and third states.2

II THE YEAR IN REVIEW

i Developments affecting investment protection treaties of Member States
Extra-EU BITs

As explained in previous editions, 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 European Union 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.

On 17 October 2014, the EU and Singapore concluded the negotiations of the investment chapter of the EU-Singapore Free Trade Agreement (EUSFTA). This marked the successful conclusion of the negotiations of the entire EUSFTA, following the initialling of the other parts of the agreement in September 2013.3

The EUSFTA text is not yet binding and will be subject to ratification. On 4 March 2015, the Commission sought the clarifications of the Court of Justice of the European Union (CJEU, or the Court of Justice) on the following points:

Does the Union have the requisite competence to sign and conclude alone the Free Trade Agreement with Singapore? More specifically: - Which provisions of the agreement fall within the Union's exclusive competence? - Which provisions of the agreement fall within the Union's shared competence? and - Is there any provision of the agreement that falls within the exclusive competence of the Member States?4

The Court of Justice, sitting in a ‘Full Court' composition, issued an opinion in response to the above questions on 16 May 2017, more than two years after the start of the Opinion procedure. The Court of Justice in essence ruled that the EUSFTA included both provisions of exclusive competence of the European Union, and provisions that fall under shared competences between the European Union and the Member States. This means the EUSFTA will need to be concluded not only by the European Union, but also by all EU Member States. In particular, the Court of Justice disagreed with the Commission that investment provisions other than those relating to foreign direct investment and the provisions on investor-state dispute settlement fall within the Union's exclusive competence. However, the Court agreed with the Commission that the European Union has exclusive competence in relation to the termination of direct investment provisions contained in BITs of the Member States and the third state with whom the Union has concluded a new investment treaty.5

Opinion procedure 2/15 involved active interventions by the Council of the EU, the European Parliament and 25 Member States, underscoring its highly political significance. Prior to the CJEU's final opinion, the advocate general appointed by the Court to assist it with the case, Eleanor Sharpston, issued a very detailed opinion on the above questions.6 According to Advocate General Sharpston, the EUSFTA can only be concluded as a mixed agreement by the EU and Member States acting jointly. She also took a different view from that of the Commission on the exclusive competences of the European Union in the area of investment, limiting them to matters of foreign direct investment and investment in renewable energy generation as part of the common commercial policy. By contrast, the Advocate General's opinion excludes any types of investment other than foreign direct investment from the scope of the exclusive competence of the EU, and takes a view that such matters are of mixed competence. Finally, the Advocate General's opinion, in contrast with that of the Court of Justice, opined that matters of termination of existing BITs concluded prior to the entry into force of the TFEU to which an EU Member State and a non-EU State are parties are of the competence of the Member States that have concluded those BITs in accordance with Article 351 TFEU. Therefore, the Advocate General's opinion took a controversial view that the EU does not have an external (international law) competence to act in such termination matters. This view was not followed by the Court of Justice. However, the Advocate General's conflicting views may not lose their relevance, as they may still be used as a source of legal interpretation for the future.

In 2016, the Commission continued the negotiations of the EU agreements to replace the existing BITs. Such negotiations are conducted in the framework of free trade agreements.

On 1 February 2016, the Commission announced the conclusion of the negotiations of the free trade agreement between the EU and Vietnam and made the negotiated text available to the general public ‘for information purposes'.7 The negotiated text, which contains a detailed investment chapter, is currently undergoing legal review, and will subsequently be transmitted to the Council of the European Union and the European Parliament for ratification.

On 30 October 2016, the EU and Canada signed the Canada-EU Comprehensive Economic and Trade Agreement (CETA). Prior to its signature, on 15 December 2015, the European Council decided to declassify the trade negotiating mandate given to the Commission in the course of the CETA negotiations.8 On 5 July 2016, in light of the legal uncertainty on the scope of the EU's exclusive competence pending the CJEU's recent ruling in Opinion procedure 2/15, and following pressure from some Member States, the Commission ‘has decided to propose CETA as a ‘mixed' agreement' to ‘allow for a swift signature and provisional application'.9 The European Parliament voted in favour of the CETA on 15 February 2017.10 As a mixed agreement, the CETA will need to be ratified by each Member State to enter into force. In the meantime, certain chapters of the CETA, namely those concerning the EU's exclusive competence, are likely to be applied provisionally pending their ratification, following the completion of notification procedures under Article 30.7(3) CETA and the respective publication in the EU Official Journal. These formalities appear to have been delayed by the CJEU's Opinion procedure 2/15, which appears to redefine the EU's exclusive competence in matters of foreign investment. In addition, in accordance with the decision on the provisional application of the Council of the European Union, the provisions on investment protection, investment market access with regards to portfolio investment and the investment court system will not be subject to the provisional application.11

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. These 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 a Member State, the second a national of the other contracting party under the respective agreement and the third a national of a third country. Awards will be subject to appeal before an Appeal Tribunal. The Appeal Tribunal's members will also be appointed by the trade committee similar to the method of appointment of the Investment Tribunal.12

This approach is consistent with the Commission's Concept Paper ‘Investment in TTIP and Beyond - the Path for Reform' presented to the European Parliament. The Concept Paper, released in May 2015, suggested the creation of a permanent multilateral arbitration court, permanent list of arbitrators and bilateral appeal of arbitration awards.13

Intra-EU BITs

In contrast to extra-EU BITs, the interrelationship between the intra-EU BITs, that is, treaties concluded between two Members States prior to the accession of one of them to the EU, and EU law has not yet been set out in EU law.

According to the Commission, all Member States have now been requested to terminate their intra-EU BITs in various meetings and discussions held with the Member States.14 Moreover, in June 2015 the Commission initiated infringement proceedings against five EU Member States, namely Austria, the Netherlands, Romania, Slovakia and Sweden, expressing the view that certain intra-EU BITs of these states violated EU law and asking them ‘to bring the intra-EU BITs between them to an end'.15 In particular, the Commission expresses 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.16 The Commission also argues that the investor-state dispute settlement 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 Court of Justice.17 The Commission also suggests 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.18

In its response to the Commission's formal notice, Sweden has expressed its disagreement with the Commission's arguments, including those relating to investor-state arbitration. Sweden has also indicated that it ‘can accept the termination of its bilateral investment protection treaties with other member states', provided that such ‘termination should take place in a coordinated manner, under common forms, ensuring predictability, and in a manner that investors are guaranteed continued protection even after termination'.19 Sweden has also indicated that the suggested ‘notice from the parties that the treaty […] would terminate with immediate effect would contravene the principle of legal certainty'.20

Similarly, Austria has indicated that ‘termination of intra-EU BITs without their replacement would mean a deterioration of the investment climate in the EU and a potential disadvantage for European investors over those from third countries. Therefore, Austria supports, together with other Member States, the development of a pan-European acquis-compliant investment protection mechanism'.21

Consistent with this approach, on 7 April 2016, Austria, Finland, France, Germany and the Netherlands submitted a policy document, the so-called Non-paper on Inter-EU Investment Treaties, to the Trade Policy Committee of the Council of the European Union with a view ‘to reach a compromise solution for the termination' of intra-EU BITs.22 The Non-paper proposed a coordinated termination of the intra-EU BITs ‘through the conclusion of a multilateral agreement among the Member States […] which would replace and supersede pre-existing intra-EU BITs'. The signatories of the Non-paper indicated that, upon the entry into force of such agreement, they would ‘be prepared to immediately (i.e. without sunset clauses) terminate all existing intra-EU BITs'.23 This approach would avoid potential conflicts between the agreement and the intra-EU BITs signed between individual Member States that would continue to apply by virtue of their respective sunset clauses.

The signatories of the Non-paper emphasised that the proposed agreement ‘should restate and codify' the principles of fair and equitable treatment, full protection and security and compensation in cases of expropriation.24 The Non-paper suggests that disputes arising between the Member States and the intra-EU investors under the proposed agreement should ‘usually be subject to the Member States' domestic courts'. However, an alternative mechanism should also be provided ‘in case the dispute cannot be solved through national litigation or where an out-of-court settlement would be more suitable'.25 It is not yet clear how that agreement would articulate the relationship between the settlement of disputes through domestic courts and alternative dispute settlement mechanisms and whether intra-EU investors would have a say in the choice between the settlement options. In addition to investor-to-state mediation, which is contemplated as a non-binding mechanism,26 the Non-paper proposes three alternative dispute settlement options for a ‘binding and enforceable settlement mechanism', to be used ‘as a last resort': jurisdiction of the European Court of Justice as per Article 273 TFEU; a dispute settlement mechanism modelled on the system applied in the framework of the Unified Patent Court; and a ‘Compromis' within the meaning of the 1907 Hague Convention for the pacific settlement of international disputes, ‘the main features of which may be modelled on the recent EU proposal for an Investment Court System in TTIP and other EU trade agreements'.27

The Non-paper also suggests that the contemplated ‘Compromis' relying on the Permanent Court of Arbitration could be used as a provisional mechanism. Moreover, the signatories of the Non-paper also acknowledge that any dispute settlement mechanism would have ‘to comply with the EU legal system', including the competence of the European Court of Justice (ECJ), ‘to finally interpret EU law'. The tribunals constituted under the ‘Compromis' could thus be allowed ‘to directly address requests for preliminary rulings to the ECJ'.28 This would resolve one of the main points of uncertainty that exists today in relation to the application of EU law by the arbitral tribunals constituted on the basis of intra-EU BITs.

ii Developments affecting the interrelationship between EU law and protection granted by BITs

The interrelationship and compatibility between the BITs and EU law is examined on a case-by-case basis in each particular investor-state dispute involving a Member State. Recent decisions rendered by international arbitral tribunals and the CJEU draw a clear distinction between the application of BITs concluded with extra-EU states before and after accession in situations where their provisions are incompatible with EU law. This distinction originates from the wording of Article 351 of the TFEU (former Article 307 of the Treaty of Rome), pursuant to which the ‘rights and obligations arising from agreements concluded […], for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties'.

As regards existing investment treaties concluded with an extra-EU state before a Member State's accession to the EU, and in light of Article 351 of the TFEU, the conflict between two incompatible obligations (one arising from the bilateral treaty and another from EU law) is resolved in favour of the BIT. As confirmed by the Advocate General in Commission v. Slovakia, ‘the rights and obligations arising from an agreement concluded before the date of accession of a Member State between it and a third country are not affected by the provisions of the Treaty [TFEU]'.29 However, following Opinion 2/15 of the CJEU, the protection of rights of Member States pursuant to existing BITs under Article 351 TFEU appears to be partly undermined in the case of a BIT superseded by virtue of a new investment treaty concluded by the Union with the same third state party to the existing BIT, with respect to the provisions concerning direct investment and EU exclusive competence.30

As far as intra-EU treaties are concerned, as expected the Commission has expressed the opinion that ‘EU law takes supremacy not only over the national legal system, but also over bilateral agreements concluded between Member States'.31 This position is supported by Court of Justice case law. According to the Court of Justice, ‘whilst Article 307 EC allows Member States to honour obligations owed to non-member States under international agreements preceding the Treaty, it does not authorise them to exercise rights under such agreements in intra-Community relations'.32 A similar position can be extended to investment treaties concluded with extra-EU states after a Member State's accession to the EU.

In its decision of 30 November 2012, the Electrabel tribunal considered this interpretation of Article 351 (former Article 307) ‘to accord with international rules relating to the interpretation of successive treaties'. The tribunal concluded that ‘the pre-eminence of EU law applies not only to pre-accession treaties between EU Members, but also to post-accession treaties between EU Members, as EU Members cannot derogate from EU rules as between themselves'.33 Based on this analysis, the tribunal found that if the Energy Charter Treaty (ECT), to which the Member States and the European Union are parties, were materially incompatible with EU law, EU law would prevail in a claim of a Member State national against an EU Member State. Thus, the ECT does not protect an investor of a Member State, as against a respondent Member State, from the enforcement by that Member State of a binding decision of the Commission. In the tribunal's view, the acts of the Member State ‘implementing such a binding decision under EU law have to be taken into account in the evaluation of its conduct under the ECT'.34

This was the first award that clearly articulated the interrelationship between the ECT, as applicable between the Member States, and EU law. A number of investor-state disputes filed on the basis of the ECT are currently pending as between nationals of the Member States against other Member States, with at least 15 claims filed against Spain on the basis of the ECT.35

In January 2016, an arbitral tribunal constituted in one of the earlier cases filed against Spain by Charanne BV, a Dutch company, and Construction Investments Sarl, a Luxembourg company, held that it had jurisdiction under the ECT to consider an intra-ECT claim.36 In doing so, the tribunal considered the view expressed by the Commission in its amicus curiae brief that ‘neither Spain nor the Netherlands or Luxembourg have agreed that disputes under the ECT are to be resolved through international arbitration in intra-EU context'.37

In support of this view, the Commission argued that ‘investors of an EU Member State requesting the settlement of a dispute with another Member State cannot be considered investors of another contracting party within the meaning of Article 26, paragraph 1 of the ECT', because ‘the EU is a contracting party to the ECT and investors of Member States of the EU are, for the purposes of the Charter, investors of the EU'.38 The Charanne tribunal considered that this argument ‘ignore[d] that, although the EU is a Contracting Party of the ECT, the States that compose it have not ceased to be Contracting Parties as well. Both the EU, as its Member States, may have legal standing as Respondent in an action based on the ECT'.39

The Commission further argued that the ECT contained an ‘implicit disconnection clause for intra-EU relations', the purpose of which is to dissociate Member States, in relations inter se, from the ECT.40 The tribunal also rejected this argument, considering that the terms of the ECT were clear and did not provide for an implicit disconnection clause. The tribunal determined that ‘the Contracting Parties to the ECT had no need to agree on a disconnection clause, be either implicitly or explicitly', because ‘there is no conflict' between the ECT and the TFEU. The tribunal emphasised that ‘the competence of the Arbitral Tribunal to decide on a claim filed by an investor of an EU Member State against another EU Member State on the basis of the alleged illegal nature of the actions carried out in the exercise of its national sovereignty, is perfectly compatible with the participation of the EU as a REIO [regional economic integration organization] in the ECT'.41

The Charanne tribunal also found that, similar to the Electrabel case, it did not need to address the question of compatibility between the ECT and EU law, because in the case at hand there was ‘no contradiction whatsoever between the ECT and EU law'.42 Specifically, the tribunal considered that Article 344 of the TFEU cannot be interpreted in a way that would ‘prohibit Member States to submit any dispute that could involve an interpretation of European treaties to a dispute settlement proceedings other than those provided by EU framework'.43

Similar arguments have also been considered, and rejected, by the RREEF tribunal in another ECT arbitration filed against Spain. In its decision on jurisdiction of 6 June 2016, that tribunal found that the provisions of the ECT submitted before it did not contradict EU law. However, ‘in case of any contradiction between the ECT and EU law', the hierarchy of legal norms ‘must be determined from the perspective of public international law, not of EU law' as far as the tribunal's jurisdiction was concerned, and therefore ‘the ECT prevails over any other norm'.44

The RREEF tribunal also rejected Spain's arguments concerning the implicit disconnection clause. The tribunal agreed with the Charanne tribunal that there was ‘simply no need for a disconnection clause, implicit or explicit' because there was ‘no disharmony or conflict between the ECT and EU'.45 Moreover, any attempt to ‘construe an implicit clause […] is untenable', because under ‘the basic public international law principle of pacta sunt servanda [i]f one or more parties to a treaty wish to exclude the application of that treaty in certain respect or circumstances, they must either make a reservation […] or include an unequivocal disconnection clause in the treaty itself'.46 Therefore, according to the RREEF tribunal: ‘should it ever be determined that there existed an inconsistency between the ECT and EU law - quod non in the present case - and absent any possibility to reconcile both rules through interpretation, the unqualified obligation in public international law of any arbitration tribunal constituted under the ECT would be to apply the former. This would be the case even were this to be the source of possible detriment to EU law. EU law does not and cannot ‘trump' public international law.'47

The approach of the Charanne and RREEF tribunals to the Commission's arguments is particularly insightful given that the Commission has submitted similar arguments before the various tribunals currently hearing the intra-ECT claims. The tribunals' decisions confirm the growing divide between the approaches of the Commission and the arbitration community. As highlighted by the RREEF tribunal, its decision is consistent with the approach adopted by all previous tribunals that had to deal with the intra-EU objection made by the Commission: ‘the Tribunal underlines that in all published or known investment treaty cases in which the intra-EU objection has been invoked by the Respondent, it has been rejected.'48

iii Enforcement of arbitral awards deemed incompatible with EU law

To date, the CJEU has not yet had an opportunity to provide its opinion on the compatibility of intra-EU BITs with EU law and the enforcement of awards issued on the basis of such BITs. However, on 10 May 2016, the German Federal Court of Justice confirmed that it would make a preliminary reference to the CJEU in Achmea49 v. Slovak Republic,50 brought on the basis of the Netherlands-Slovakia BIT. In that case, Slovakia challenged both the interim and the final award in Germany, the seat of the arbitration. Slovakia requested the Frankfurt Higher Regional Court to set aside the interim award on jurisdiction on the basis of its ‘intra-EU jurisdictional objection', arguing that the arbitration clause in the intra-EU BIT between the Netherlands and Slovakia was incompatible with EU law. When the Frankfurt Higher Regional Court refused to refer the matter to the Court of Justice, Slovakia appealed the decision before the German Federal Court of Justice.

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? 51

The judgment of the CJEU on this request for a preliminary ruling is expected in late 2017 or early 2018.

III OUTLOOK AND CONCLUSIONS

Since 2014, the EU has been reshaping its policy and negotiating its position on investment protection treaties. This has affected the negotiation and ratification of EU free trade agreements containing chapters on investment protection. In the meantime, the Commission has assumed an active role in pending arbitrations initiated on the basis of intra and extra-EU BITs, thus putting emphasis on the unresolved tension between the roles allocated to the European Commission and arbitral tribunals deriving their powers directly from the BITs concluded by individual Member States. None of the published or known arbitral decisions and awards has so far endorsed arguments advocated by the Commission. Decisions and awards issued in 2016 confirm this trend.

1 Edward Borovikov, Anna Crevon-Tarassova and Bogdan Evtimov are partners at Dentons.

2 The authors recommend consulting the European Union chapters in the 2013, 2014, 2015 and 2016 editions of this publication, which may cover important developments from previous years that could not be included in this year's edition for reasons 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 Opinion of Advocate General Sharpston delivered on 21 December 2016 in Opinion procedure 2/15 initiated following a request made by the European Commission, ECLI:EU:C:2016:992. Because Opinion 2/15 was only just published at the time of writing this chapter, it will be analysed in greater detail in the next edition of this publication.

7 ‘EU-Vietnam Free Trade Agreement: Agreed text as of January 2016', European Commission, 1 February 2016.

8 ‘EU-Canada trade negotiating mandate made public', European Council, press release, 15 December 2015.

9 ‘European Commission proposes signature and conclusion of EU-Canada trade deal', European Commission, press release, 5 July 2016.

10 ‘European Commission welcomes Parliament's support of trade deal with Canada', European Commission Directorate-General for Trade, press release, 15 February 2017.

11 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. 1080-1; see also ‘CETA - a trade deal that sets a new standard for global trade', European Commission, fact sheet, 15 February 2017.

12 CETA, Article 8.27 (2.The CETA Joint Committee shall, upon the entry into force of this Agreement, appoint fifteen Members of the Tribunal. Five of the Members of the Tribunal shall be nationals of a Member State of the European Union, five shall be nationals of Canada and five shall be nationals of third countries. […] 6. The Tribunal shall hear cases in divisions consisting of three Members of the Tribunal, of whom one shall be a national of a Member State of the European Union, one a national of Canada and one a national of a third country. The division shall be chaired by the Member of the Tribunal who is a national of a third country.) and Article 8.28 (Appellate Tribunal); EU-Vietnam Free Trade Agreement, Agreed text as of January 2016, Article 12 of Section 3 ‘Resolution of Investment Disputes' of the Investment Chapter of Chapter 8 of the Agreement (2. […] the Trade Committee shall, upon the entry Into force of this Agreement, appoint nine Members of the Tribunal. Three of the Members shall be nationals of a Member State of the European Union, three shall be nationals of Vietnam and three shall be nationals of third countries. […] 6.The Tribunal shall hear cases in divisions of three Members, of whom one shall be a national of a Member State of the European Union, one a national of Vietnam and one a national of a third country. The division shall be chaired by the Member who is a national of a third country.) and Article 13 (Appeal Tribunal).

13 Available at trade.ec.europa.eu/doclib/docs/2015/may/tradoc_153408.PDF.

14 Commission Staff Working Document, Capital Movements and Investments in the EU, SWD(2012) 6 final, 3 February 2012, p. 13.

15 ‘Commission asks Member States to terminate their intra-EU bilateral investment treaties', European Commission, press release, Brussels, 18 June 2015.

16 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).

17 Id., Paragraph 27.

18 Id.

19 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.

20 Id., Paragraph 39.

21 ‘Bilateral investment protection treaties, including intra-EU BITs', Austria's Federal Ministry of Science, Research and Economy, statement available at www.bmwfw.gv.at/Aussenwirtschaft/investitionspolitik/Seiten/BilateraleInvestitionsschutzabkommen.aspx.

22 ‘Intra-EU Investment Treaties', Non-paper from Austria, Finland, France, Germany and the Netherlands, Council of the European Union, Trade Policy Committee (Services and Investment), 7 April 2016, Paragraph 1.

23 Id., Paragraph 4.

24 Id., Paragraph 8.

25 Id., Paragraph 9.

26 Id., Paragraph 10.

27 Id., Paragraphs 11-12.

28 Id., Paragraph 14.

29 Opinion of Advocate General Jääskinen delivered on 15 March 2011 in Case C-264/09, Commission v. Slovakia, Paragraph 73. See also Case C-264/09, Commission v. Slovakia, Judgment of 15 September 2011, Paragraph 51.

30 See Opinion 2/15, cited above, Paragraphs 253-254.

31 See the Commission's detailed observations of 7 July 2010 quoted in Eureko v. Slovak Republic, PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension, 26 October 2010, Paragraph 180.

32 See, e.g., Case C-147/03, Commission v. Austria, Judgment of 7 July 2005, Paragraph 58.

33 Electrabel v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, Paragraph 4.186.

34 Id., Paragraph 4.169.

35 See ICSID - Pending Cases, icsid.worldbank.org/apps/ICSIDWEB/cases/Pages/AdvancedSearch.aspx?gE=
d&rspndnt=spain.

36 Charanne v. Spain, SCC Arbitration No. 062/2012, Final Award, 21 January 2016. The tribunal dismissed the case on the merits.

37 Id., Paragraph 424 (referring to the Commission's amicus curiae brief submitted on 19 January 2015).

38 Id., Paragraph 427 (referring to the Commission's amicus curiae brief submitted on 19 January 2015).

39 Id., Paragraph 429.

40 Id., Paragraph 433 (referring to the Commission's amicus curiae brief submitted on 19 January 2015).

41 Id., Paragraph 438.

42 Id., Paragraph 439.

43 Id., Paragraph 444.

44 RREEF v. Spain, ICSID Case No. ARB/13/30, Decision on Jurisdiction, 6 June 2016, Paragraphs 75-76.

45 Id., Paragraphs 82-83.

46 Id., Paragraph 85.

47 Id., Paragraph 87.

48 Id., Paragraph 89.

49 Previously known as Eureko.

50 Previously known as Eureko v. Slovak Republic.

51 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.