Intra-EU BITs in Light of the Achmea Decision

In its Achmea decision rendered in March 2018, the Court of Justice of the European Union declared that arbitration clauses contained in intra-EU bilateral investment treaties are incompatible with EU law. The Court’s judgment brought to an end the decade long legal battle between the Member States and the European Commission over the EU law compatibility of these treaties. In response to Achmea, the majority of Member States have agreed to terminate their treaties in order to eliminate the EU law incompatibility identified by the Court. At the same time, the political battle over the need for the special protection of cross-border investments in the EU continues. This paper looks back at the political and legal controversy that was sparked by intra-EU bilateral investment treaties and culminated in the Court’s Achmea judgment, and briefly discusses the practical consequences of Achmea for intra-EU investment protection.