The Fate of EU Environmental and Investment Law after the Achmea Decision

Abstract

In the landmark Slowakische Republik v. Achmea BV judgment, the ecj arguably took a resolute stance against the compatibility of International Investment Agreements between EU Member States and the inherent functioning of EU’s legal order. However, the issue as to whether the foreign investment protection regime is at odds with the sound application of EU law is far from being settled. Furthermore, the international investment protection regime as interpreted by investment tribunals may hamper EU Member States’ regulatory space, especially in the implementation of ambitious environmental and climate policies. The recent surge of litigation before international investment tribunals triggered by retrospective changes to supporting schemes for renewable energy sources and the phase-out of nuclear power plants in some European Member States is a telling example. The purpose of this article thus is to analyse the avenues currently available to ensure consistency between EU’s environmental and climate policies as implemented by EU Member States and the investment protection regime as applied by investment tribunals in the wake of the Achmea decision, with a view to devising a benchmark to prevent and avoid, rather than foster, policy conflicts.