A View on the Achmea Judgment
ZDENĚK NOVÝ
INTERNATIONAL AND EU LAW DEPARTMENT
FACULTY OF LAW

The purpose of the presentation
uTo identify key tenets of the CJEU’s reasoning in the Achmea case
uTo have a look at rather weak spots in the Court’s argumentation
uTo highlight the current tension between EU law and international investment law and arbitration
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The CJEU Achmea judgment
(C=284/16)
uThe Dutch company Achmea merged with another company providing health insurance services in
Slovakia.
uSlovakia thereafter radically altered its state policy with regard to health insurance.
uAchmea commenced an investment arbitration against Slovakia, based on a BIT between the
Netherlands and the latter, arguing breaches of standards under this treaty.
uThe seat of arbitration was Frankfurt am Main in Germany.
uAchmea won the dispute, but Slovakia requested anullment of the award.
uBGH decided to verify whether the award would be incompatible with EU law, as Slovakia argued.
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Core legal issues
uIs a dispute resolution provision providing for arbitration contained in an intra-EU bilateral
agreement (BIT) compatible with EU law? (art. 267 and 344 TFEU) uWhat should the national court
asked for enforcement of the arbitral award do if such provision is contrary to EU law?
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The CJEU’s answer
uThe dispute resolution clause is irreconcilable with fundamental principles of EU law, in
particular autonomy, sincere cooperation and division of powers among EU law organs
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Reasons
uGerman law, which includes EU law, is applicable in the investment arbitration under the BIT uThe
specific nature of EU law may be maintained solely by MS’ courts and the CJEU,  as these may ensure
primacy, direct effect, consistency, and uniform application of EU law uArbitrators are not obliged
to submit preliminary references to the CJEU uMS cannot resolve their dispute with investor arising
out of an intra-EU BIT in arbitration since it would contradict article 344 TFEU uThe review of
investment arbitral award is limited under the German law  - the compliance with EU law cannot be
guaranteed
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The context
uA lasting tension between EU and investment law
uThe Commission has sought to introduce an EU-law dispute resolution mechanism for intra-and
extra-EU investment disputes (an EU investment court)
uMS mostly unsuccessful with the arguments based on EU law before investment tribunals (e. g.
Anglia Auto Accessories Ltd. v. Czech Republic, Busta and Busta v. Czech Republic) and facing the
enforcement of arbitral awards (e.g. Micula v. Romania)
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The Weak points of the decision
uLack of an analytically reliable distinction between investment and commercial arbitration (hence
possible negative spill-over effects on the latter)
uArt. 267 TFEU has never been addressed to arbitrators, hence no surprise they do not comply with
it
uThe dispute between the investor and Germany does not fall within the scope of art. 344 TFEU (only
disputes between MS)
uNo effective access to justice for an EU investor
uImportant questions left without answer (E. g., what about arbitrations based on BITs that do not
refer to domestic law as applicable?)
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A Reaction by Arbitral Tribunals
uTribunals refuse Achmea in unison (e. g. the Vattenfall II award on jurisdiction):
https://www.italaw.com/sites/default/files/case-documents/italaw9916.pdf
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