Partijen en gegevens

In Case C-284/16, Achmea, the Court of Justice of the European Union (CJEU) held that Articles 267 and 344 TFEU must be interpreted as precluding investor-state arbitration clauses contained in bilateral investment treaties between Member States. In accordance with that judgment, the present Agreement terminates (bilateral) investment treaties between the Member States of the European Union.

The Kingdom of the Netherlands notes that bilateral investment treaties have been concluded by the Kingdom for one or more of its constituent parts. The Kingdom of the Netherlands takes the view that the judgment of the CJEU in Achmea only applies to bilateral investment treaties between the Member States of the European Union in respect of the European part of the Kingdom, and that this judgment does not apply to these bilateral investment treaties in respect of the Caribbean parts of the Kingdom, the latter parts being Overseas Countries and Territories. The present Agreement terminates the (bilateral) investment Treaties in respect of all parts of the Kingdom of the Netherlands. The Kingdom of the Netherlands wishes to stress that the CJEU's judgment in Achmea did not oblige the Kingdom of the Netherlands to terminate the bilateral investment treaties for its Overseas Countries and Territories and the decision to do so was taken irrespective of the CJEU's judgment in Achmea.

The Seimas of the Republic of Lithuaniaa

notes that predictable, stable and clear regulation of the business environment is essential to promote, facilitate and protect cross-border investments in the European Union's internal market;

expresses concern that the termination of Bilateral Investment Treaties between Member States of the European Union, while excluding the possibility for investors to defend their violated rights in international arbitration, may have a negative impact on the protection of investors' rights and the investment climate in the European Union;

declares that it is necessary to strengthen the protection of investments within the European Union, to improve the exercise of investors' rights in the European Union and to ensure effective remedies within the legal framework of the European Union by improving existing or creating new tools and mechanisms, including an effective mechanism for the settlement of investment disputes.

Luxembourg reiterates the need to intensify discussions without undue delay with the aim of ensuring complete, strong and effective protection of investments within the European Union in line with its legal framework and compatible with the right to regulate as incorporated in the Declarations of Member States of 15 and 16 January 2019 and in recital XVI of this agreement. We call upon the European Commission and all Member States to start, without any delay, a process with the aim to ensure complete, strong and effective protection of investments within the EU and adequate instruments in this regard. We request the European Commission to put forward a concrete plan for such a process.

Following the Achmea ruling of 6th march 2018, in Case n.º C-284/16, by the Court of Justice of the European Union, Member States have concluded a Treaty to terminate the bilateral agreements for the Promotion and Protection of Investments concluded between Member States.

Portugal reiterates that legitimate expectations for protection as generated under the legal framework of these bilateral agreements deserve effective legal protection.

With this in mind, Portugal expresses its strong support to the intensifying of the discussions between the European Commission and Member States with the aim of better ensuring a sound and effective protection of investments within the European Union. To this end, calls to assess the establishment of new or better tools under European Union law and to carry out an assessment of the current dispute settlement mechanisms which are essential to ensure legal certainty and the protection of interests of investors.