Communication on the protection of intra-EU investment

Author (Corporate)
Series Title
Series Details (2018) 547, 19.7.2018
Publication Date 19/07/2018
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The Commission is committed to preserving and improving both a predictable, stable and clear regulatory environment and the effective enforcement of investors' rights. Without being exhaustive, this Communication recalls the most relevant substantive and procedural standards in EU law for the treatment of cross-border investments in the EU.

The Communication shows that EU law protects all forms of EU cross-border investments throughout their entire life cycle. It recalls the obligation on Member States to ensure that national measures they may take to protect legitimate public interests do not unduly restrict investments. It draws the attention of investors to the EU rights they may invoke before administrations and courts.


In the last decades, governments have encouraged cross-border investments by concluding bilateral investment treaties (BITs). These BITs typically include the right to national treatment and most favourable nation treatment, to a fair and equitable treatment, to the protection against expropriation and to the free transfer of funds.

Some countries with which EU Member States had previously concluded BITs have since joined the EU. As a result of accession, the substantive rules of BITs as applied between Member States ("intra-EU BITs") became a parallel treaty system overlapping with single market rules, thereby preventing the full application of EU law.

In the recent preliminary ruling concerning the Achmea case, the Court of Justice confirmed that investor-state arbitration clauses in intra-EU BITs are unlawful. Following the Achmea judgment, the Commission has intensified its dialogue with all Member States, calling on them to take action to terminate the intra-EU BITs, given their incontestable incompatibility with EU law.

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ESO: Commission asks Member States to terminate their intra-EU bilateral investment treaties

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