Rozhodnutí Evropského soudního dvora (ECJ) ve věci Achmea - soulad intra-EU BITs s evropským právem

Dovolím si upozornít na důležité rozhodnutí Evropského soudního dvora (ECJ) ve věci Achmea - soulad intra-EU BITs s evropským právem.

ECJ dospěl k závěru o nesouladu rozhodčích doložek v BITs s právem EU, a to z důvodu (zjednodušeně) nemožnosti rozhodčích soudů vyžádat si stanovisko k předběžné otázce od ECJ a tím sjednocovat evropské právo. Pro obchodní arbitráž toto naštěstí neplatí, jak je v rozhodnutí výslovně zmíněno.

Viz právní věta:

"Články 267 a 344 SFEU musí být vykládány v tom smyslu, že brání takovému ustanovení, obsaženému v mezinárodní dohodě uzavřené mezi členskými státy, jako je článek 8 Dohody mezi Českou a Slovenskou Federativní Republikou a Nizozemským královstvím o podpoře a vzájemné ochraně investic, podle něhož investor z jednoho z těchto členských států může v případě sporu týkajícího se investic v druhém členském státě zahájit řízení proti posledně uvedenému členskému státu před rozhodčím soudem, jehož pravomoc je tento členský stát povinen uznat.";jsessionid=9ea7d0f130de07d4e29f2b8544dbb5c09857338463e4.e34KaxiLc3eQc40LaxqMbN4Pb30Re0?text=&docid=199968&pageIndex=0&doclang=cs&mode=req&dir=&occ=first&part=1&cid=482043

A pro ty, kteří se nechtějí prokousávat celým rozhodnutím přetiskujeme k tomuto tématu shrnující článek z Global Arbitration Review.

ECJ rules against intra-EU BITs
06 March 2018
Sebastian Perry

In a much-anticipated ruling that affects nearly 200 bilateral investment treaties between EU member states, the European Court of Justice has ruled that the investor-state arbitration clause in a BIT between the Netherlands and Slovakia is not compatible with EU law.

The ECJ ruled today that the BIT’s investor-state arbitration clause is adverse to the autonomy of EU law because it establishes a mechanism that cannot ensure that disputes over the application or interpretation of EU law will be decided by a court within the judicial system of the EU.

The judgment is expected to have wide implications for the 196 intra-EU BITs in force and investor-state arbitrations that are pending under them. It also aligns with the view of the European Commission, which has appeared as amicus curiae in multiple intra-EU investment arbitrations but has yet to see its position on the invalidity of intra-EU BITs upheld by any arbitral tribunal.

“With a bang, the [ECJ] today put an end to investor-state arbitration under intra-EU BITs,” says Munich-based Linklaters partner Rupert Bellinghausen. “While the judgment shapes the future for investor-state disputes as desired by the European Commission and a number of member states, investors will feel deprived of their rights.”

He adds, “In the future, investors will be forced to submit any dispute previously protected by an intra-EU BIT to the jurisdiction of their host state. The situation is particularly difficult for those that already initiated BIT arbitrations or have obtained favourable awards that are not enforced yet.”

The ECJ was addressing a request for a preliminary ruling lodged in May 2016 by Germany’s Federal Court of Justice, which is hearing Slovakia’s challenge to a €22 million UNCITRAL award issued in favour of Dutch insurer Achmea in 2012. 

Achmea initiated arbitration in 2008 under the 1991 Netherlands-Czechoslovakia BIT after Slovakia adopted measures reversing the liberalisation of the private health insurance market and preventing the distribution of profits to shareholders. The measures were overturned by Slovakia’s Constitutional Court in 2010.

An arbitral tribunal seated in Frankfurt and consisting of arbitrators Vaughan Lowe QC (chair), VV Veeder QC and Albert Jan van den Berg issued an interim award in 2010 dismissing Slovakia’s jurisdictional objection that its accession to the European Union had rendered the BIT’s arbitration mechanism incompatible with EU law.

The tribunal issued its final award in 2012 ordering Slovakia to pay €22.1 million plus interest after finding that that the disputed measures violated the BIT’s fair and equitable treatment standard as well as a separate obligation to ensure free transfer of payments.

The Higher Regional Court of Frankfurt rejected Slovakia’s challenge to the final award in 2014, leading the state to appeal on a point of law to the German Federal Court of Justice, the country’s highest court of civil jurisdiction.

Slovakia argues that its accession to the EU in 2004 has rendered the BIT’s arbitration clause incompatible with the Treaty of the Functioning of the European Union (TFEU), in particular its provision giving the ECJ jurisdiction to make preliminary rulings on the interpretation of EU law; its prohibition against member states submitting disputes over the interpretation or application of the EU’s founding treaties to any method of settlement not provided for therein; and its ban on discrimination on grounds of nationality.

The German Federal Court of Justice did not share Slovakia’s doubts about the BIT’s compatibility with the TFEU but nonetheless decided in March 2016 to seek a preliminary ruling from the ECJ on these questions in view of the numerous other BITs in force between member states containing similar investor-state arbitration clauses.

Sitting in plenary session, the ECJ held a hearing in the case in June 2017, where it received oral observations from Achmea, Slovakia, the Commission and around 15 other member states. The Czech Republic, Estonia, Greece, Spain, Italy, Cyprus, Latvia, Hungary, Poland and Romania all argued in support of Slovakia’s position. By contrast, only Germany, France, the Netherlands, Austria and Finland contended that the BIT provision at issue and similar clauses in other intra-EU BITs are valid. 

Last September, the ECJ also heard the non-binding opinion of one of its advocates general, Melchior Wathelet, who advised that the BIT’s arbitration clause did not violate the autonomy of EU law and was not discriminatory. Wathelet highlighted inconsistencies in the Commission’s views on BITs and noted the states that had lined up in support of Slovakia were frequent respondents in investment arbitrations and had so far mostly failed to terminate the bulk of their intra-EU BITs.

While anecdotally it is said that in most cases the ECJ largely follows the advice of its advocates general, today’s judgment by the ECJ noticeably goes against Wathelet’s opinion while making only fleeting mention of it.

The ECJ said that under its own case law it is settled that an international agreement cannot affect the allocation of powers fixed by the EU’s founding treaties or the autonomy of the EU legal system, a principle enshrined in article 344 TFEU.

The court also said that article 267 of the TFEU provides the “keystone” of the EU judicial system by allowing “any court or a tribunal of a member state” to seek a preliminary ruling from the ECJ with the aim of securing a uniform interpretation of EU law.

While Achmea maintained that an arbitral tribunal under the Netherlands-Slovakia BIT is only called on to rule on possible infringements of the BIT, the ECJ said EU law forms a part of the law of each member state and that the BIT tribunal therefore may be called on to interpret or apply EU law, particularly fundamental freedoms such as freedom of establishment and free movement of capital.

Departing from Wathelet’s advice, the ECJ found that an arbitral tribunal convened under the BIT could not be classified as a “court or tribunal of a member state” under article 267 and therefore was not entitled to seek preliminary rulings from the ECJ on EU law questions.

Unlike bodies such as the Benelux Court of Justice – which ensures legal uniformity in Belgium, the Netherlands and Luxembourg and has been allowed to seek preliminary rulings – an arbitral tribunal under the BIT lacked any such links between the judicial systems of the Netherlands and Slovakia, the ECJ said.

The ECJ also did not accept that the possibility that intra-EU BIT awards can be subject to review by courts of member states sufficiently ensured that relevant questions of EU law could be referred to it for a preliminary ruling.

The court observed that under the BIT the award of an investor-state tribunal is final and that it is for the tribunal to determine its own procedure and seat – and consequently the law that applies to the judicial review of the validity of the award.

In the present case, the UNCITRAL tribunal chose to sit in Frankfurt, which allowed Slovakia to seek judicial review of the award under German law. However, the ECJ observed that such judicial review can only be exercised by a court to the extent that national law permits, and that Germany’s Code of Civil procedure provides only for limited review.

The ECJ noted its previous ruling – in the 1999 Eco Swiss case – that in relation to commercial arbitration, the requirements of efficiency justify the review of arbitral awards by the courts of member states being limited in scope, provided that the fundamental provisions of EU law can be examined in the course of that review and, if necessary, be the subject of a reference to the ECJ for a preliminary ruling.

However, the ECJ held that while commercial arbitration proceedings “originate in the freely expressed wishes of the parties”, intra-EU BIT arbitration derives from a treaty by which member states agreed to remove disputes over the interpretation of EU law from the jurisdiction of their own courts, without the system of judicial remedies required by the Treaty on European Union.

The court concluded that the BIT establishes a mechanism that prevents disputes with investors from being concluded in a manner that ensures the full effectiveness of EU law, even though they might concern the interpretation or application of that law.

The ECJ acknowledged that an international agreement providing for the establishment of a court responsible for the interpretation of that agreement’s provisions and whose decisions are binding on institutions including the ECJ is not in principle incompatible with EU law. The EU’s competence in the field of international relations and capacity to conclude treatis “necessarily entail the power to submit” to the decisions of such a court, “provided that the autonomy of the EU and its legal order is respected”.

However, the ECJ observed that the BIT was not concluded by the EU but by member states. It said the investor-state arbitration clause called into question the “principle of mutual trust” between member states and the preservation of the particular nature of EU law, and therefore was not compatible with the “principle of sincere cooperation” that underlies the TFEU.

In view of these findings, the court said it did not need to decide whether the arbitration clause was also discriminatory.

While a press release issued today about the judgment refers only to its application to the Netherlands-Slovakia BIT, the operative part of the judgment appears to be framed broadly to encompass similar provisions in other BITs.

Hogan Lovells partner Markus Burgstaller, part of the team for Slovakia in the dispute, says the court followed his client’s argument in full. “The court was clear in saying that investor-state arbitration clauses in intra-EU investment treaties are incompatible with EU law. Arbitral tribunals will have to analyse very carefully the impact of this landmark decision on cases before them. The same is true for any investors and governments of EU member states facing such claims.”

Counsel to Achmea, Marnix Leijten of De Brauw Blackstone Westbroek in Amsterdam, says, “Today’s ruling surprisingly contradicts Advocate General Wathelet’s opinion, the German Federal Court of Justice and many unanimous arbitral decisions rendered by distinguished scholars. It creates uncertainty for many intra-EU investors as its temporal scope is not clear”. He also calls the judgment “vague” in its reasoning.

It is also unclear whether the judgment will lend support to the European Commission’s view that the Energy Charter Treaty’s investor-state arbitration provisions are incompatible with EU law, to the extent that they allow EU investors to pursue arbitration against those of its signatories who are EU member states. Spain and the Czech Republic, who are facing multiple ECT claims from solar power investors, are among the states that have embraced the Commission’s interpretation of the ECT.

Leijten says the ECJ “carefully distinguished” its ruling on intra-EU BITs from treaties such as the ECT to which the EU itself is a signatory.

George Burn, head of international arbitration at Berwin Leighton Paisner in London, cautions that “the scope of the decision is not immediately clear... There will be plenty of work to do to understand whether the Energy Charter Treaty, to which the EU is party, is viable here given the court's findings.” 

He says the implications are also unclear for ICSID arbitration, “which has its own specific legal character that arguably may not be caught by this decision.”

Burn continues: “But the writing is most definitely on the wall for all forms of intra-EU treaty arbitration. The next logical step is for the EU and member states to start doing the serious work of setting up an investment court. Whether they can do that work to an adequate degree is a matter on which there will be plenty of scepticism.”

In the meantime, practitioners say the ruling will be concerning for investors within the EU. De Brauw partner Albert Marsmans, also part of the Achmea team, says, “The decision would have the odd consequence that an investor seated outside the EU is better protected against an EU member state than is an EU investor; and that an EU investor is better protected outside the EU than within. It is hard to reconcile this with the EU's general policy aim of stimulating the free flow of capital within the EU.”

Leading Spanish arbitrator Bernardo Cremades says, “I am convinced that the ECJ decision is going to set a very important precedent with regard to investment protection in EU countries. This confirms the communication received several weeks ago from the European Commission indicating that the compensation contained in awards against Spain may be considered illicit state aid. Arbitrators will take utmost account of European law in their decision making process.”

Stephen Fietta, partner at public international law boutique Fietta in London, says, “This is only the latest chapter in what is going to be a longer story about the relationship between investment protection, BITs and EU law, which has been the subject of a number of arbitral decisions that are not addressed in the ECJ’s judgment.”

And a London-based arbitration practitioner who prefers not to to be named points out that the ECJ only ruled on the investor-state arbitration mechanism in the BIT and did not strike down its substantive protections, potentially leaving intra-EU BITs “toothless” and intra-EU investors without recourse.

“It seems the Achmea decision is big on ideology, but light on detail and devoid of discussion of the basic public international law rules that have been decisive in the arbitral jurisprudence to date under intra-EU BITs," the practitioner says.

He adds: “The judgment is based on a perception that BIT tribunals are interpreting and applying EU law free from any judicial oversight, when in fact this hasn’t been at issue in the vast majority, if any, of these cases. So the court has taken this decision on the basis of a hypothetical risk of interference with EU law when, in reality, quite different standards of customary international law determine most investment disputes.”

The judgment has triggered strong reactions on social media, where copies of the ECJ press release have circulated all day.

On LinkedIn, Leijten calls it “a sad day for the rule of law in the EU”, while Patrick Baeten, a deputy general counsel at French energy company Engie says, “When you think of the billions we collectively need to invest to reach, inter alia, the goals of the Paris Climate Agreement, one would have thought an efficient investment protection system would be a key concern for decision makers.”

In a Twitter thread, Joel Dahlquist, a doctoral student at Uppsala University and co-host of the Arbitration Station podcast, said it is “amusingly ironic” that the ECJ found intra-EU investor-state dispute settlement does not allow the ECJ to preserve EU law autonomy “given that the ECJ ruling comes in the context of exactly such a case… Put simply, if the court is ‘left out of’ ISDS, where does the Achmea judgment come from?”

Slovak Republic v Achmea BV (Case C-284/16)

Court of Justice of the European Union

Koen Lenaerts (president)
Antonio Tizzano (rapporteur) (vice president)
Marko Ilešič
Lars Bay Larsen
Thomas von Danwitz
Jiří Malenovský
Egils Levits
Endre Juhász
Anthony Borg Barthet
Jean-Claude Bonichot
François Biltgen
Küllike Jürimäe
Constantinos Lycourgos
Michail Vilaras
Eugene Regan

Advocate General: Melchior Wathelet
Counsel to Slovakia

Hogan Lovells
Partners Markus Burgstaller in London and Karl Pörnbacher in Munich

Counsel to Achmea

De Brauw Blackstone Westbroek
Partners Marnix Leijten and Albert Marsman and senior associate Darina Maláčová in Amsterdam

Hengeller Mueller
Partner Henning Bälz and senior associate Ralf Willer in Berlin

Counsel to Germany

T Henze
Counsel to Czech Republic

M Smolek and J Vláčil and M Hedvábná
Counsel to Estonia

K Kraavi-Käerdi and N Grünberg
Counsel to Greece

S Charitaki, S Papaioannou and G Karipsiadis
Counsel to Spain

S Centeno Huerta and A Rubio González
Counsel to France

D Colas and D Segoin
Counsel to Italy

G Palmieri, assisted by S Fiorentino, avvocato dello Stato,
Counsel to Cyprus

E Symeonidou and E Zachariadou
Counsel to Latvia

I Kucina and G Bambāne
Counsel to Hungary

M Z Fehér and G Koós
Counsel to the Netherlands

M Bulterman and M J Langer
Counsel to Austria

C Pesendorfer and M Klamert
Counsel to Poland

B Majczyna, L Bosek, R Szczęch and M Cichomska
Counsel to Romania

R H Radu,  R Mangu and E Gane
Counsel to Finland

M S Hartikainen
Counsel to European Commission

T Maxian Rusche, J Baquero Cruz, L Malferrari and F Erlbacher
Before the German courts

Counsel to Slovakia
Hogan Lovells
Partners Karl Pörnbacher in Munich and Markus Burgstaller in London, and senior associate Alexander Gebert in Munich

Counsel to Achmea
Hengeller Mueller
Partner Henning Bälz and senior associate Ralf Willer in Berlin

De Brauw Blackstone Westbroek
Partners Marnix Leijten and Albert Marsman and senior associate Darina Maláčová in Amsterdam

In the UNCITRAL arbitration

Arbitral tribunal

Vaughan Lowe QC (President) (UK)
Albert Jan van den Berg (Netherlands)
VV Veeder QC (UK)
Counsel to Eureko (Achmea's predecessor)

De Brauw Blackstone Westbroek
Partners Marnix Leijten, Edward van Geuns*and Albert Marsman in Amsterdam
*Now in Singapore

René Visser and Nynke Hupkens, in-house counsel to Eureko
Counsel to Slovakia

Andrea Holíková of Slovakia's Ministry of Finance
Rowan Legal
Partners Miloš Olík, Martin Maisner, David Fyrbach, and Martin Šubrt in Bratislava

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(c) Dušan Sedláček