European Papers | 14 January 2019
The Achmea case between international law and European Union law
by Maoro Gatti
Opinion 1/17 in Light of Achmea : Chronicle of an Opinion Foretold ?
TABLE OF CONTENTS : I. Introduction. – II. Achmea’s relevance as a precedent for Opinion 1/17. – III. Applica-tion of the Achmea test to the CETA tribunal. – IV. Conclusion : an Opinion foretold ?
I. In the Achmea judgment,1 the Court of Justice ruled that the principle of autonomy of EU law prevents two Member States – Slovakia and the Netherlands – from setting up an investor-to-State dispute settlement (ISDS) mechanism via a bilateral investment agreement (BIT) inter se.2 Achmea has crucial constitutional relevance : not only does it have a dramatic impact on arbitration within the EU, but might prevent the Union from concluding investment agreements with third countries.
The Court of Justice will soon rule on the later issue : in Opinion procedure 1/17,3 the Court is requested to decide on the compatibility between EU Treaties and the Canada-EU Comprehensive Economic and Trade Agreement (CETA), which includes an investor-to-public authorities dispute settlement mechanism (the Investment Court System, ICS).4 Although the case is pending, several commentators suggested that its outcome is prede-termined by Achmea : the same reasons that motivate the incompatibility between intra-EU arbitration and EU principles in Achmea might imply the inconsistency between CETA and EU Treaties.5 Other authors, however, read Achmea in a different manner : the findings of this judgment are allegedly circumscribed to intra-EU investment agreements and are motivated solely by the specific characteristics of intra-EU arbitration.
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