Commission v. Hungary (Case C-235/17): Some Reassurance for Investors on the Substantive Protections for Expropriation under EU Law

Abstract

The question of the degree of overlap between the substantive provisions generally found in investment treaties and EU law was left unanswered by Case C-284/16 Slowakische Republik v. Achmea B.V. From a practical perspective, investors are left in doubt: assuming that they cannot rely on a dispute resolution clause such as that at issue in Achmea, does EU law offer substantially identical protection? The recent decision of Case C-235/17 Commission v. Hungary may go some way towards reassuring investors EU law may provide materially similar protections to some of the substantive protections ordinarily found in bits. This note (I) provides a summary of the views of the Commission (and respondent Member States) on the issue of the overlap between substantive protections generally found in investment treaties and EU law, (II) considers the Opinion of Advocate General Wathelet on the same issue and (III) considers the decision of Commission v. Hungary.