TY - JOUR
T1 - Achmea versus the Rule of Law
T2 - CJEU’s Dogmatic Dismissal of Investors’ Rights in Backsliding Member States of the European Union
AU - Kochenov, Dimitry Vladimirovich
AU - Lavranos, Nikos
N1 - Publisher Copyright:
© 2021, The Author(s).
PY - 2022/12
Y1 - 2022/12
N2 - We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law difficult, if not impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding of the rule of law in some EU Member States. While the motives of the CJEU and by extension the European Commission to safeguard their ultimate control over the internal market by exclusively relying on the preliminary ruling system of integrated European judiciary may be understandable, they cannot serve as a credible justification for the long-term consequences of disempowering investors in the name of an ideological stance regarding EU judiciary, which cannot work in the backsliding Member States, where the ‘integration of the EU’s judiciary’ could stand for the absence of independent adjudication. Consequently, the Achmea judgment and post-Achmea developments such as the recently signed Termination Agreement to terminate the intra-EU BITs have been leading to significant—possibly irreparable in the short- to medium-term—lowering of the procedural and substantive protection standards for European investors in times when they are in need of more rather than less protection.
AB - We demonstrate that the CJEU’s Achmea judgment has resulted in significantly more damage beyond the termination of intra-EU BITs. It made the application of EU law difficult, if not impossible. Indeed, it has opened the floodgate to deficient judicial protection in the face of structural backsliding of the rule of law in some EU Member States. While the motives of the CJEU and by extension the European Commission to safeguard their ultimate control over the internal market by exclusively relying on the preliminary ruling system of integrated European judiciary may be understandable, they cannot serve as a credible justification for the long-term consequences of disempowering investors in the name of an ideological stance regarding EU judiciary, which cannot work in the backsliding Member States, where the ‘integration of the EU’s judiciary’ could stand for the absence of independent adjudication. Consequently, the Achmea judgment and post-Achmea developments such as the recently signed Termination Agreement to terminate the intra-EU BITs have been leading to significant—possibly irreparable in the short- to medium-term—lowering of the procedural and substantive protection standards for European investors in times when they are in need of more rather than less protection.
KW - Achmea
KW - Backsliding
KW - CJEU
KW - EU values
KW - Judicial protection
KW - Rule of law
UR - http://www.scopus.com/inward/record.url?scp=85103426246&partnerID=8YFLogxK
U2 - 10.1007/s40803-021-00153-7
DO - 10.1007/s40803-021-00153-7
M3 - Article
AN - SCOPUS:85103426246
SN - 1876-4045
VL - 14
SP - 195
EP - 219
JO - Hague Journal on the Rule of Law
JF - Hague Journal on the Rule of Law
IS - 2-3
ER -