The Commission welcomes EU Member States’ commitments on the legal consequences of the Achmea judgement and in particular their commitment to terminate all bilateral investment treaties (BITs) between themselves.
As the Commission has consistently stated, and as outlined in its July 2018 Communication on the Protection of intra-EU investment, the dispute settlement mechanisms provided in these treaties as well as they intra-EU application of the Energy Charter Treaty are incompatible with EU law and discriminate between EU investors. The protection for all EU investors against unlawful interference by Member States is provided by EU law, which ensures that all investors are treated equally. EU investors cannot rely on different intra-EU BITs concluded between two Member States. This was confirmed by the Court of Justice of the European Union in its March 2018 judgment in the Achmea case. Following this judgment, the Commission has intensified its dialogue with all Member States. As a result, all Member States committed to terminate all intra-EU BITs. The Commission also welcomes the fact that the majority of Member States committed to undertake action to ensure that the Energy Charter Treaty cannot be used as a basis for arbitration between investors and EU Member States. The commitments taken by Member States provide additional legal clarity for investors and arbitral tribunals and aim to prevent new arbitral awards and arbitration procedures incompatible with EU law. Valdis Dombrovskis, Vice-President in charge of Financial Stability, Financial Services and Capital Markets Union said: “I welcome the commitments taken by Member States to terminate all intra-EU bilateral treaties. This will ensure that all EU investors are treated equally and in full compliance with the EU law. This is what the single market is about.” The commitments signed by Member States can be found here.