7 / březen / 2018

Mgr. David Fyrbach, LL.M.

We are happy to announce that David Fyrbach and Jiri Feichtinger have participated in formulation of argumentation which was yesterday accepted by Court of Justice of European Union (“CJEU”). CJEU issued the ruling that substantially affects the relationship between EU law and BITs concluded between individual Member States. In response to question referred for a preliminary ruling by the Federal German Court in case Slovak Republic v. Achmea BV, the CJEU has declared that Article 8 of the Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federative Republic (“BIT”) is incompatible with Articles 267 and 344 of TFEU. Article 8 of BIT says that „an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept“ (CJEU C‑284/16, rec. 60). The CJEU has concluded that a tribunal such as that referred to in Article 8 of the BIT does not form part of the courts and tribunals of the Member States within the meaning of Article 267 TFEU and is therefore not entitled to request a preliminary ruling from CJEU, however, yet it will as a tribunal interpret and apply EU law. CJEU ruled that no international agreement can interfere with the definition of powers laid down by the Treaties, whereas Article 8 of the BIT “is such as to call into question not only the principle of mutual trust between the Member States but also the preservation of the particular nature of the law established by the Treaties, ensured by the preliminary ruling procedure provided for in Article 267 TFEU, and is not therefore compatible with the principle of sincere cooperation…“ (CJEU C‑284/16, rec. 58).