Opinion of the Advocate General — ECLI:EU:C:2017:699
Date: 2017-09-19
Language of the case: German
Subject matter: General provisions;Provisions governing the Institutions;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

summary of the relevant international case-law available in Yannaca-Small, K., ‘“Indirect expropriation” and the “Right to Regulate” in International Investment Law’ OECD Working Papers on International Investment, 2004/04, pp. 10 to 20. 180 See, for example, Técnicas Medioambientales TECMED S.A. v United Mexican States (ICSID Case No ARB(AF)/00/2) Award of 29 May 2003, paragraph 114, and Generation Ukraine Inc. v Ukraine (ICSID Case No ARB/00/9) Award of 16 September 2003, paragraph 20.22. 181 At the hearing, the Cypriot Government referred to paragraphs 62 to 76 of thejudgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, (C‑8/15 P to C‑10/15 P, EU:C:2016:701) where the Court ruled only on the question of whether, having signed the memorandum of understanding on behalf of the ESM, the Commission had contributed to a breach of the appellants’ right to property guaranteed by Article 17(1) of the Charter. The question of whether the Republic of Cyprus infringed that right was not decided, since in any event the Charter is not applicable to the Member States beyond the implementation of EU law (see paragraph 67 of that judgment). 182 See Opinion 1/09 (Agreement on the creation of a unified patent litigation system), of 8 March 2011 (EU:C:2011:123, paragraphs 63 to 89); Opinion 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 183); and Opinion 2/15 (Free Trade Agreement with Singapore), of 16 May 2017 (EU:C:2017:376, paragraph 301). 183 See, to that effect, judgments of 5 February 1963, van Gend & Loos (26/62, EU:C:1963:1, p. 12); of 15 July 1964, Costa (6/64, EU:C:1964:66, p. 593); of 17 December 1970, Internationale Handelsgesellschaft (11/70, EU:C:1970:114, paragraph 3); Opinions 1/91 (EEA Agreement — I), of 14 December 1991 (EU:C:1991:490, paragraph 21) and 1/09 (Agreement on the creation of a unified patent litigation system), of 8 March 2011 (EU:C:2011:123, paragraph 65); judgment of 26 February 2013, Melloni (C‑399/11, EU:C:2013:107, paragraph 59); and Opinion 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 166). 184 See Opinion 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 168). 185 See judgment of 16 July 1998, Oelmühle and Schmidt Söhne (C‑298/96, EU:C:1998:372, paragraph 23), and Opinions 1/09 (Agreement on the creation of a unified patent litigation system), of 8 March 2011 (EU:C:2011:123, paragraph 68) and 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 173). 186 See Article 19(1) TEU. See also Opinion 1/91 (EEA Agreement — I), of 14 December 1991 (EU:C:1991:490, paragraph 35); judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 38); and Opinions 1/09 (Agreement on the creation of a unified patent litigation system), of 8 March 2011 (EU:C:2011:123, paragraphs 66 and 68) and 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 173). 187 Opinion 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 176). See also, to that effect, judgments of 16 January 1974, Rheinmühlen-Düsseldorf (166/73, EU:C:1974:3, paragraphs 2 and 3) and of 12 June 2008, Gourmet Classic (C‑458/06, EU:C:2008:338, paragraph 20), and Opinion 1/09 (Agreement on the creation of a unified patent litigation system), of 8 March 2011 (EU:C:2011:123, paragraph 83). 188 See, to that effect, judgments of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraphs 36 to 39); of 28 March 2000, Krombach (C‑7/98, EU:C:2000:164, paragraph 21); of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 304); and Opinion 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 172). For a more comprehensive analysis of the concept of European public order, I refer to my Opinions in cases also relating to arbitral awards, Gazprom (C‑536/13, EU:C:2014:2414, points 166 to 177) and Genentech (C‑567/14, EU:C:2016:177, points 55 to 72). 189 United Nations Treaty Series, vol. 330, p. 3. 190 Judgment of 23 March 1982, Nordsee (102/81, EU:C:1982:107, paragraph 14). See also, to that effect, judgments of 27 April 1994, Almelo (C‑393/92, EU:C:1994:171, paragraphs 22 and 23) and of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 32). 191 Judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 33). See also, to that effect, judgment of 23 March 1982, Nordsee (102/81, EU:C:1982:107, paragraph 15). 192 See, to that effect, points 59 to 62 of my Opinion in Genentech (C‑567/14, EU:C:2016:177). 193 See also, to that effect, judgment of 21 May 2015, CDC Hydrogen Peroxide (C‑352/13, EU:C:2015:335, paragraphs 57 to 72), where the Court did not follow the point of view which Advocate General Jääskinen expressed in point 124 of his Opinion in CDC Hydrogen Peroxide (C‑352/13, EU:C:2014:2443), that the reference to arbitration might, as such, hamper the effectiveness of Article 101 TFEU. 194 See judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraphs 37 and 40). 195 See Achmea B.V. (formerly known as Eureko B.V.) v Slovak Republic (UNCITRAL) (PCA Case No 2008-13) Award on Jurisdiction, Arbitrability and Suspension of 26 October 2010, paragraph 16. 196 See Article V, paragraph 1(d) of the New York Convention, which might be the case if an arbitral tribunal, contrary to Article 8, paragraph 6, of that BIT, did not take EU law into account. 197 See Article V, paragraph 2(b) of the New York Convention and judgment of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269, paragraph 38). 198 See Article 1059, paragraph 2(1)(d) and (2)(b) of the German Code of Civil Procedure. 199 See Article 53, paragraph 1, of that Convention. I would observe, however, that those concerns did not prevent the EU institutions from choosing the ICSID as the arbitral institution in Article 9.16 of the EU-Singapore Free Trade Agreement. 200 Even in that hypothetical situation, a risk would genuinely exist only if the respondent Member State in the arbitration had assets on the territory of a third country that did not benefit from the immunity recognised in international law to foreign States. In reality, even if the seat of the arbitration is fixed in a third country or recognition and enforcement of the award are requested in a third country, the investor could not avoid requesting recognition and enforcement of the arbitral award before the courts of the respondent Member State. 201 See Electrabel S.A. v Hungary (ICSID Case No ARB/07/19) Decision on Jurisdiction, Applicable Law and Liability of 30 November 2012, paragraphs 4.160 to 4.162. 202 See, to that effect, judgments of 1 June 1999, Eco Swiss (C‑126/97, EU:C:1999:269) and of 7 July 2016, Genentech (C‑567/14, EU:C:2016:526), and judgment of the Swiss Federal Court of 8 March 2006, 4P.278/2005 concerning the action to set aside an arbitral award made in Switzerland between two Italian companies on the ground of infringement of EU competition law. 203 See arbitral proceedings between Gazprom and the Lithuanian Minister of Energy, which formed the subject matter of the case that gave rise to the judgment of 13 May 2015, Gazprom (C‑536/13, EU:C:2015:316). 204 Most awards are public, although that is not the case in international commercial arbitration. It is therefore harder to ascertain whether there has been an infringement of EU law. 205 Opinion 2/13 (Accession of the Union to the ECHR), of 18 December 2014 (EU:C:2014:2454, paragraph 191 and the case-law cited). 206 See, to that effect, Bundesverfassungsgericht (Federal Constitutional Court, Germany), order of 8 May 2007 of the Second Senate, 2 BvM 1/03, ECLI:DE:BVerfG:2007:ms20070508.2bvm000103, paragraph 54. 207 See point 206 of this Opinion. 208 See the examples which I gave in points 42 and 43 of this Opinion. 209 See the Note of 1 March 2017 from the Embassy of France in Germany on direct foreign investment in 2014-2015, created on the basis of statistics compiled by UNCTAD and the Bundesbank (German Federal Bank), available at the following internet address: http://www.tresor.economie.gouv.fr/File/434035. See, in particular, Table 5.