On Achmea, the Autonomy of Union Law, Mutual Trust and What Lies Ahead

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Table of Contents: I. Introduction. – II. Beyond autonomy: mutual trust applies to investment protection and beyond. – III. The application of Achmea by investor-State tribunals. – IV. The consequences: how Member States have committed to apply Achmea.

Abstract: This Article considers the role, application, and implications of the Achmea judgment (judgment of 6 March 2018, case C-284/16 [GC]). As such, the Authors first consider the Leitmotive of Achmea, that is to say, the principles of autonomy and mutual trust. The latter principle, it is argued, should be given much more attention, particularly in light of its fundamental importance in the overall architecture of the European Union. The Article then critically analyses the application of the Achmea judgment by intra-EU arbitral tribunals and how these tribunals have distinguished the effects of the judgment for their assessments on jurisdiction. In a concluding section, the Authors finally reflect on the declarations made by Member States on 15 and 16 January 2019 on the implications and interpretation of Achmea and the intended effects thereof for pending arbitrations.

Keywords: Achmea – bilateral investment treaties – Energy Charter Treaty – autonomy – mutual trust – declaration.

European Papers, Vol. 4, 2019, No 1, pp. 61-78 
2499-8249 - doi: 10.15166/2499-8249/284

* Abogada del Estado-Consejera Jurídica, Permanent Representation of Spain to the European Union, sonsoles.centeno@reper.maec.es.
** Member of the Legal Service, European Commission, nicolaj.kuplewatzky@ec.europa.eu.


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