Ref. Ares(2018)4057032 - 01/08/2018
Ref. Ares(2020)215484 - 14/01/2020
EUROPEAN COMMISSION
Directorate-General for Trade
The Director General
Brussels,
TRADE/B2/
(20
Art.4.1(b) 18) 4309661
Art.4.1(b)
Art.4.1(b)
Deutsches Aktieninstitut e.V.
Senckenberganlage 28
D-60325 Frankfurt am Main
Deutschland
Subject:
Your letters dated 4 July 2018 concerning the «Achmea» judgment
of the European Court of Justice – concerns of publicly traded
companies and investors - our reference Ares (2018) 3663081
Dear Art.4.1(b) ,
Thank you very much for your letters of 4 July 2018, in which you express the views and
concerns of Deutsches Aktieninstitut on the recent judgment of the Court of Justice of the
European Union in
Achmea1 and its possible consequences for investors. I have been
asked to also reply on behalf of Commissioner Malmström’s Cabinet.
You addressed the same letters to other Directorates-General of the European
Commission, including DG FISMA, DG COMP, DG GROW and their respective
Cabinets. Since DG FISMA is the lead Commission service in charge of the EU
investment policy in the internal market, I refer to the reply of DG FISMA (ref.
fisma.ddg.b.1(2018)4309136) as regards the aspects of your letters that concern the intra-
EU dimension of investment protection.
DG TRADE is the Commission service in charge of the external investment policy of the
EU. Therefore, my reply addresses the points of your letter that relate to the extra-EU
dimension of investment protection. In particular, in point (b) of your letter, you ask the
Commission to clarify that
“extra-EU BITs are not addressed by the judgment” in
Achmea.
The Commission’s view is that in
Achmea the Court has made no findings with regard to
investor-to-State dispute settlement (ISDS) or the Investment Court System (ICS)
mechanisms contained in investment agreements concluded by the Union and/or by EU
Member States with non-EU countries and different legal considerations apply to such
agreements. This also applies to the extra-EU dimension of the Energy Charter Treaty
(ECT).
1
Judgment of the Court (Grand Chamber) of 6 March 2018, Case C-284/16,
Slowakische Republik v
Achmea BV, EU:C:2018:158.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
In
Achmea, the Court also confirmed its well-established case-law according to which the
competence of the EU in the field of international relations and its capacity to conclude
international agreements necessarily entail the power to submit to the decisions of a court
which is created or designated by such agreements as regards the interpretation and
application of their provisions, provided that the autonomy of the EU and its legal order
is respected.
As you may know, the Court of Justice is currently considering legal issues relating to
the EU external investment policy in relation to an opinion requested by Belgium
pursuant to Article 218(11) TFEU concerning the Investment Court System under the
recent EU-Canada trade agreement.2 The hearing in this case took place on 26 June. The
opinion of the Court is expected in the coming months.
Yours sincerely,
Jean-Luc DEMARTY
Cc:
Art.4.1(b)
(Cabinet MALMSTRÖM)
Art.4.1(b)
(Cabinet MALMSTRÖM)
2
Opinion 1/17.
2
Electronically signed on 01/08/2018 10:41 (UTC+02) in accordance with article 4.2 (Validity of electronic documents) of Commission Decision 2004/563