The Infringement Proceedings over Intra-EU Investment Treaties – An Analysis of the Case against Sweden

Abstract

On June 18, 2015, the European Commission initiated infringement proceedings against five Member States over the termination of intra-EU bilateral investment treaties (BITs). In spite of targeting selected agreements, the outcome of these proceedings is bound to have broader ramifications for all existing BITs currently in force between Member States. Engaging in an assessment of the Sweden-Romania BIT, it is of pivotal importance to determine whether the substantive or procedural protections provided for investors under the agreement are compatible with the internal market. Notably, investors from Member States that are not party to the Sweden-Romania BIT are excluded from its protection. In circumstances where these investors are in a similar situation to Romanian and Swedish investors the provisions of the BIT are likely to constitute a violation of the principle of non-discrimination. However, even though the termination of intra-EU BITs appears to be the only pragmatic solution, this cannot have retrospective effect or affect currently pending disputes. Whether or not termination can avoid the prolonging effects of sunset clauses, on the other hand, primarily depends on the view of the investor-state tribunal examining the issue in accordance with international law. However, in anticipation that Sweden decides to negotiate the termination of its BIT with Romania, it is imperative that sunset clauses are addressed explicitly.

Keywords: BIT, investment, European Union, external relations, foreign investment protection, non-discrimination, sunset clause, VCLT