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BREAKING: EU Member States announce scheme to terminate all intra-EU BITs and warn investor community to not initiate new claims – but views differ with respect to whether Achmea decision applies to Energy Charter Treaty

European Union Member States have issued a political declaration (dated January 15, 2019) addressing the consequences of the European Court of Justice’s Achmea decision in relation to intra-EU bilateral investment treaties – and highlighting a series of new efforts to be taken to bring an end to claims under such treaties.

But as previously revealed by IAReporter Member States remain divided with respect to the implications of Achmea for the Energy Charter Treaty, with several countries preferring not to prejudge a question that is presently before an EU court.*

In the core declaration signed by 22 governments, these signatories have pledged to take actions to terminate their bilateral investment treaties** and to use their influence as home states and respondent-states to notify tribunals of the non-arbitrability of intra-EU BIT and ECT claims , as well as to request the set-aside or non-enforcement of such intra-EU awards.

Of particular note, the declaration expressly purports to put the “investor community” on notice that “no new intra-EU investment arbitration proceedings should be initiated.”

Reflecting divergences between Member States, two additional declarations (one by Finland, Luxembourg, Malta, Slovenia and Sweden and another by Hungary) depart from the main declaration in several respects, chiefly with respect to the application of the Achmea ruling to the ECT.

In a press release available here, the European Commission has saluted the Member States’ decision to terminate their BITs, but expressed regret that not all states agreed that arbitrations started under the ECT are unlawful under EU law.

The three declarations can be found here.

[UPDATE: since the publication of this breaking news item, we have since offered more detailed analysis of key aspects of the declaration here.]

 

* As we reported, an ECT award in favour of Luxembourg-based Novenergia against Spain is currently being reviewed by the Svea Court of Appeal. In the context of those proceedings, the Court of Appeal might opt to ask for further guidance from the ECJ with respect to the application of the Achmea precedent to the ECT.

** Member states have adopted a deadline of December 6, 2019 to carry out these terminations.