The Importance of European Company Law for Intra-EU Investments After Achmea

Abstract

This article discusses the importance of European company law for intra-EU investments after the recent decision of the CJEU in Achmea. In Achmea, the CJEU examined bilateral investment treaties (BITs) concluded between EU Member States in the light of EU law. More specifically, the CJEU scrutinized the compatibility of BITs’ provisions enabling an investor from one contracting party to bring proceedings before an arbitral tribunal in the event of a dispute with the other contracting party with Articles 18, 267 and 344 TFEU. In the aftermath of Achmea, the European Commission issued a Communication on Protection of intra-EU investment (hereinafter, “Communication”), which tried to explain the landscape of cross-border investments at EU level. In the section of the Communication discussing operations on the market, there is a reference to freedom of establishment of companies. European company law belongs to the protective net of EU law seeking to facilitate and to defend intra-EU investments. The role of European company law in this protection is decisive

without an effective and liberalized exercise of the EU freedom of establishment, national companies would not be able to proceed easily to intra-EU investments.