Rule of Law and the Fatal Mistake of Achmea: Could the Intra-EU BIT’s Have Been the Last Hope for Justice in Captured Illiberal Member States?

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 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
stands for the complete 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.