CYIL vol. 12 (2021)

CYIL 12 (2021) THE KOMSTROY JUDGMENT AND ITS POSSIBLE IMPLICATIONS is part of ( Achmea ). Hence EU law applies to this dispute (Article 19 TEU) 14 . Eventually, the Court concluded by stating that, “ where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling ” 15 . 1.3 No intra EU application of the ECT Subsequently, the Court has turned to the questions referred. Nevertheless, before addressing what qualifies as an investment under the ECT, the Court (and several Member States 16 ) observed that it is first necessary to specify which disputes are eligible for arbitration under Article 26 ECT 17 . The subsequent Court conclusions are not surprising, considering the existing Achmea judgment 18 , to which the Court referred many times in the Komstroy judgment. The Court addressed the autonomy of EU law, consistently following up its argumentation from Achmea and Opinion 1/17 cases, namely: – reference to the autonomy of the EU law to both MS/international law, due to special characteristics like constitutional structure (namely the Treaties including rules on conferral and division of powers, rules on EU institution and judicial system operation and fundamental rules in specific areas) and its nature (independent source, primacy, direct effect) 19 – reference to the creation of a judicial system to ensure consistency and uniformity of EU law interpretation in order to preserve special characteristics and autonomy of EU law 20 Regarding the tribunals under the ECT, since: (i) these tribunals do interpret and apply EU law, (ii) these tribunals are not courts or tribunals of MS under Article 267 TFEU and (iii) the review of their awards depends on the relevant domestic law, therefore, the Court stated that intra EU arbitration under the ECT 21 could exclude dispute resolution guaranteeing full effectiveness of EU law. That would endanger EU law autonomy and the nature of the law established by the treaties 22 . Based upon the above stated, the Court in para 66 concluded that “ Article 26(2)(c) ECT must be interpreted as not being applicable to disputes between a Member State and an investor of another Member State concerning an investment made by the latter in the first Member State. “ 14 Komstroy judgment, para 32–33. 15 Komstroy judgment, para 37. 16 The Slovak Republic did not participate in the Komstroy case. 17 Komstroy judgment, para 39–40. In para 41 the Court specified that the fact that it has jurisdiction to this case does not mean that ECT applies to disputes between EU investors and EU MS. 18 Judgment of 6 March 2018, Achmea , C284/16 6 March 2018 in case C‑284/16, request for a preliminary ruling under Article 267 TFEU from the Federal Court of Justice, Germany, made by decision of 3 March 2016, received at the Court on 23 May 2016, in the proceedings Slovak Republic v Achmea BV . 21 For the sake of this article intra EU ECT arbitration means must disputes between a Member State and an investor of another Member State concerning an investment made by the latter in the first Member State under Article 26(2)(c) ECT. 22 Komstroy Judgment, para 48–63. 19 Komstroy Judgment, Para 43, 44. 20 Komstroy Judgment, Para 45, 46.

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