77
Second working session — The impact
‘Under Article 87 of the ECSC Treaty and Article 219 of the EEC
Treaty (sc.: Article 344 TFEU), the Member States have undertaken
not to submit a dispute concerning the interpretation or application of
the treaties to any method of settlement other than those provided for
in therein’ (
73
).
There are reasons to assume that this is to protect the ECJ and, with it, to
ensure the uniform application of Union law. The ruling therefore applies to
the EU as well as to arrangements among Member States and those with third
countries.
While there may be no formal or explicit legal mechanisms in investor-
State arbitration clauses the agreements referred to with the effect to oblige the
ECJ to align its interpretation of EU law to that of a court or tribunal estab-
lished on the basis of such EU agreement, problems regarding the autonomy
of the EU legal order due to the jurisdiction of investor-State arbitral tribu-
nals might arise even under the EU free trade and investment agreements to
come. An example given by Steffen Hindelang seems to be telling: assume that
an investment tribunal established on the basis of an EU investment-related
agreement rules that the recovery of a State aid granted by a Member State, for
the action of which the EU would be accountable vis-à-vis the country where
the investor is from (
74
), violated material standards contained in the aforesaid
agreement and therefore awarded the investor damages to the amount of the
state aid or even higher. If that very same state aid, however, was declared
contrary to EU law and – the ECJ striking a different balance between legal-
ity and legitimate expectations of an investor (
75
), – the Member State was
compelled to recover it from the investor, the question is which law prevails.
If the EU were to comply with the award it would place the investor in the
same position as before the recovery of the state aid. This would be contrary
to the provisions of Articles 107 and 108 TFEU. Compliance with the award
of the investment tribunal, thus, would amount to a selective non-application
of EU State aid law with the consequence that competition on the EU Internal
(
73
) ECJ Opinion 1/91
EEA
[1991] ECR I-6079, summary, paragraph 2, sentence 4.
(
74
) Member States are not party to this agreement. The act of the Member State would be
attributable to the EU. Cf. on the question of attribution Hoffmeister,
Litigating against
the European Union and Its Member States – Who Responds under the ILC’s Draft Articles
on International Responsibility of International Organisations?,
EJIL 21 (2010), p. 723;
Paasivirta/Kuijper,
Does one Size fit all?: The European Community and the Responsibility of
International Organisations
, NYIL XXXVI (2005), p. 169
(
75
) See e.g. ECJ Case C-24/95
Alcan
[1997] ECR I-1591, especially guiding principle 2.
