Declaration on the legal consequences of the judgment of the Court of Justice in Achmea
Last update: 17.01.2019 13:35
This week in Brussels, the Slovak Republic and other EU Member States have signed the Declaration on the legal consequences of the judgment of the Court of Justice in Achmea.
The Declaration constitutes the first important step in the implementation of the Achmea judgement, in which on 6 March 2018 the Court of Justice of EU declared that the arbitration clause contained in the bilateral investment agreement between the Slovak Republic and the Kingdom of the Netherlands is not in compliance with EU law. Subsequently on 8 November 2018, the German Federal Court of Justice (Bundesgerichtshof) finally set aside the arbitration award issued against the Slovak Republic back in 2012 in the investment arbitration Achmea v the Slovak Republic, which was initiated because of the adoption of so called 'non-profit amendment' in 2008, which prohibited profit of health insurance companies. Both these judgements constitute a great victory for the Slovak Republic represented by the Ministry of Finance.
In the Declaration, the Member States committed in particular to terminate all bilateral investment treaties concluded between two EU Member States ('intra-EU BITs'). The full version of the Declaration is available here.
Member States are currently negotiating a multilateral Agreement on termination of intra-EU BITs and it should be signed by the end of this year. The Slovak Republic supports a comprehensive agreement in order to effectively implement the Achmea judgement in line with the content of the Declaration and for the purpose of enhancing legal certainty. In addition, in order to push forward implementation of the judgement, the Slovak Republic, in parallel with the negotiations of the multilateral Agreement, initiated necessary steps for the bilateral termination of its intra-EU BITs.
Neither the Declaration, nor the Agreement on termination of intra-EU BITs decrease the level of protection of cross-border investments within the EU. Even the European Commission emphasized in its Communication on Protection of intra-EU investment that formal termination of intra-EU BITS will not affect the level of protection of cross-border investments within the EU.
The Slovak Republic played the key role in the negotiations of the Declaration and further actively participates in the negotiations of the Agreement on termination of intra-EU BITs.
Ministry of Finance of the SR