The Web of Autonomy of the EU Legal Order: Achmea

Abstract

Achmea is a seminal case on intra-EU bilateral investment treaties, which will have wider effect on EU external relations law. The judgment has triggered the renegotiation of all intra-EU bilateral investment treaties (BITs), and is one in a long strand of cases in which the Court has interpreted the principle of autonomy of the EU legal order. In Achmea, the Court reinstates the claim against international law and, more specifically, against the judicial control of external judicial views. The case is closely connected to the subsequent Opinion 1/17, and was expected to anticipate the results thereof in terms of the compatibility of investor-state dispute settlement (ISDS) proceedings with the principle of autonomy. The aim of this chapter is to study the relevance and consequences of Achmea for the EU legal order in general and EU external relations in particular. The ‘blind autonomy’ which the Court has purportedly resorted to in Achmea may be difficult to maintain in all practical situations. Inevitably, some exceptions will be necessary to accommodate ‘reasons of policy’, which are already appearingat both judicial and legislative levels. The former includes Opinion 1/17. At the legislative level, four Member States have refrained from signing the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union (‘Termination Agreement’) following the Achmea judgement. These exceptions lead in the direction of an asymmetric conception of autonomy in EU law, which strongly contrasts with the ‘totalitarian vision’ endorsed by Achmea.