Summary

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2. The momentum created by the termination of intra-EU Bilateral Investment Treaties

The debate triggered by the termination of the intra-EU Bilateral Investment Treaties (intra-EU BITs) represents a good opportunity to assess the current system of investment protection and facilitation within the European Union. It also offers the possibility to assess whether certain aspects could be further improved or modernised to make the system more suitable for the changing investment environment.

In particular in the 1990's, Member States have encouraged cross-border investments by concluding Bilateral Investment Treaties with other European countries that have since joined the EU. In 2018 the Court of Justice (Case C-284/16, Achmea), stated that investor-State arbitration clauses included in those Treaties are incompatible with EU law.

After the judgement, Member States committed to terminate all intra-EU BITs by means of a plurilateral agreement or bilaterally in their Declarations of 15 and 16 January 2019. On 5 May 2020, 23 Member States[11] signed an agreement for the termination of intra-EU bilateral investment treaties. At the same time Member States called on the Commission to explore further actions aimed at better ensuring complete, strong and effective protection of investments within the European Union[12].

Some EU investors have repeatedly raised concerns. They claim that the investment climate has been deteriorating over the last years, notably because of sudden and unforeseeable changes in the regulatory framework or due to a loss of trust in the effective enforcement of their rights. Some investors also claim that due to the termination of intra-EU BITs there will no longer be a level playing field between third country investors in the EU (that can still rely on Member States extra-EU BITs and on EU international investment agreements with third countries) and EU investors within the EU[13].

Investors' concerns have persisted also after the Commission issued in July 2018 a Communication on the Protection of intra-EU investment14, in order to clarify EU law protecting investments throughout their life-cycle. In that Communication the Commission aimed to increase investors' confidence by recalling the most relevant substantive and procedural EU rules with reference to the Court's case law; especially that EU law offers a complete system of judicial remedies. The Communication thus helps to ensure that investors' rights are known and respected in all Member States. However, the Commission remains open to make the protection of investors in the EU even more effective, strong and adequate.

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[11] Signatories of the termination agreement are Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia and Spain.

[12] The texts of the Declarations are available at https://ec.europa.eu/info/publications/190117-bilateral-investment-treaties_en

[13] In its Opinion 1/17 on the compatibility of the Investment Court System under the EU-Canada Comprehensive Economic and Trade Agreement (CETA) with EU law, the Court of Justice of the EU stated that there was no violation of the principle of non-discrimination between Canadian investors and EU investors investing in the EU as these were not in a comparable position. Only the investors of each treaty Party who invest in the territory of the other treaty Party are in comparable situations and they are treated equally under CETA (Opinion 1/17 of the Court of Justice of the EU, paras. 179-181).