Traditionally, cross-border foreign direct investment flows in the EU have enjoyed special legal protection by virtue of bilateral investment protection treaties (BITs) concluded between EU Member States (intra-EU BITs). On 6 March 2018, the Court of Justice of the European Union handed down a ground-breaking ruling in the Achmea case, finding that investor-State arbitration provisions contained in intra-EU BITs are incompatible with EU law and therefore cannot be applied. The Court’s ruling thus likely marks the end of investment protection within the EU in reliance on intra-EU BITs and leaves EU investors facing uncertainty about the future protection of their investments in the EU Internal Market.
BOUTHINON-DUMAS, H. et KOROM, V. (2018). Arrêt Achmea : quelles stratégies pour les entreprises européennes pour protéger leurs investissements dans l’UE ? Juriste d’Entreprise Magazine, (31), pp. 30-31.