78
Ingolf Pernice
Deuxième séance de travail — Les retombées
Market could severely be distorted (
76
). As it is difficult to accept that these are
‘exceptional circumstances’ justifying a derogation to be given by the Council
under Article 108(2) subparagraph 3 TFEU, namely with a view to said distor-
tions, not only the prerogatives of the ECJ but also the uniform application of
substantive Union law and, thus, the autonomy of the EU legal order seems to
be at stake. While no legal mechanism binding the ECJ to the interpretation of
a court or tribunal established by an international agreement on a factual level
may be established, the EU might, finally, have no choice other than to adapt
its interpretation of EU law to the ruling of the aforesaid court or tribunal if it
does not want to face several more investment arbitrations and a ‘patchwork
rug’ of factual disapplication of EU State aid law (
77
).
The situation in such circumstances seems to be somewhat more compli-
cated than discussed by Classen, who concludes on the compatibility of arbi-
trations clauses in investment agreements for their very concept is to find a
fair alternative to – and therefore exception from – the prerogatives of nation-
al jurisdictions of states party to such agreements for a legitimate purpose (
78
).
Not only the function of the ECJ is in question, but also the coherence and
uniformity of the application of Union law. To include into investment agree-
ments of the EU an obligation of the arbitration tribunal in charge to refer
questions of Union law to the ECJ under Article 267 TFEU would not only re-
quire a broad interpretation of the term ‘court or tribunal of a Member State’
in this provision (
79
), but also be difficult to reconcile with the very concept
(
76
) This could even prompt attempts to make sure that State aid to be granted by Member
States, but which for whatever reason cannot be paid out due to EU law restrictions, could
be implemented via the back-door of investment arbitration.
(
77
) See Hindelang, Autonomy (note 71), p. 187 et seq.
(
78
) Claassen (note 66), p. 622-628.
(
79
) Such interpretation does not seem excluded, as the tribunal is established by states or the EU
and may be constructed so that the jurisdiction is permanent and compulsory, established
by law and independent, deciding according to law, with a procedure inter partes and that
the awards are enforceable and states might be called to intervene. For the conditions to be
met, see ECJ cCase 102/81
Nordsee
[1982] ECR 1095, paragraphs 10-12; Case 109/88
Danfoss
[1989] ECR 3199, paragraphs 7-9; Case C-126/97
Eco Swiss
[1999] ECR I-3055, paragraph 34;
Case C-125/04
Denuit and Cordenier
[2005] ECR I-923, paragraphs 13, 16; Case C-196/09
Miles
[2011] ECR I-5105, paragraph 42 (complaints board of European Schools established
by the Member States by an international agreement:). For the discussion, with an open
view see v. Papp (note 66), paragraph 8.1.
