Revue - Les Cahiers de l'Arbitrage N°1-2023 - 75

DOCTRINES - DÉBATS
all the other Member States comply with EU law, including fundamental rights, "
whereas that principle has no application in relations between the EU and a nonMember
State. 55
That assertion too is without relevance. The decision-makers in
question in investment arbitration are tribunals, not States, and they are under no
duty of " mutual trust. " In this respect once again, intra-EU and CETA tribunals are
situated no differently. In any event, the fundamental basis of the Achmea ruling was
not the principle of mutual trust, but rather the threat to the autonomy of EU law
posed by arbitral tribunals unauthorized to consult and be guided by the CJEU on
the meaning and validity of EU law. In addition, the threat to EU law autonomy is no
greater when intra-EU tribunals opine on EU law than when CETA tribunals do so.
Sadly, one can only conclude that the CJEU's reasoning in Opinion 1/17 is not
only lame, but also disingenuous.
In its Opinion 1/17, the CJEU actually suggested that the autonomy of EU law
is so essential that an otherwise perfectly valid CETA award would be denied
enforcement in a Member State court were it to find that enforcement " would
adversely affect the autonomy of the EU legal order " and that the award might
" call into question the level of protection of a public interest that led to the
introduction of such restrictions by the [EU]. " 56
A CETA tribunal, it reiterated, " has
no jurisdiction to declare incompatible with the CETA the level of protection of
a public interest established by EU measures ... and, on that basis, to order the
Union to pay damages. " 57
This demonstrates the length to which, in the CJEU's
understanding, the principle of EU law autonomy extends.
(f) The Termination of Intra-EU BITs
The good news, if there is any, is that intra-EU BITs will sooner or later be
things of the past. The Commission has ordered the Members States to terminate
all of their intra-EU BITs and most have done so, and those that have not done
so, or not done so fast enough, are the subject of Commission infringement
proceedings. 58
In
In fact, the Member States dutifully entered on May 5, 2020 into a
Termination Agreement, according to which arbitration provisions in intra-EU BITs
" cannot be applied after the date on which the last of the parties to an intra-EU
bilateral investment treaty became a Member State of the European Union. " 59
doing so, the States also expressly extinguished the " sunset provisions " found in
intra-EU BITs that, out of respect for investors' reliance, had promised continued
protection for a fixed number of years of investments made prior to termination. 60
With termination of the intra-EU BITs, investors from one EU Member State
on the territory of another no longer enjoy protection of their investments under
55. Id. ¶¶ 128-29.
56. Id. ¶ 148.
57. Id. ¶ 153.
58. December infringements package: key decisions, Eur. Comm'n (Dec. 2, 2021), https://
ec.europa.eu/commission/presscorner/detail/en/inf_21_6201 (last visited Mar. 9, 2023).
59. Agreement for the Termination of Bilateral Investment Treaties Between the Member States
of the European Union, May 5, 2020, 2020 O.J. (L 169) 1, 2 [hereinafter Termination Agreement].
Several Member States have placed limitations on their consent to the Termination Agreement,
stating, for example, that the Agreement has no application to ECT disputes.
60. Id. art. 2.
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Revue - Les Cahiers de l'Arbitrage N°1-2023

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