In December 2020, the Grand Chamber of the Court of Justice delivered a judgement in European Commission v. Hungary case which is significant in many respects. The CJEU has confirmed that Hungary had failed to fulfil its obligations in providing migrants with international protection and returning illegally staying third-country nationals. The judgement is also of crucial importance in view of the Common European Asylum System and New Pact on Migration and Asylum. The comment aims at presenting possible consequences of the judgement for both the Hungarian administration and, most importantly, future instruments in the area of asylum in the EU.
{"title":"What might be the future migration and asylum policy of the European Union? Comment on the judgement of the Court of Justice, case C-808/18 European Commission v Hungary","authors":"Małgorzata Myl","doi":"10.21697/2022.11.1.06","DOIUrl":"https://doi.org/10.21697/2022.11.1.06","url":null,"abstract":"In December 2020, the Grand Chamber of the Court of Justice delivered a judgement in European Commission v. Hungary case which is significant in many respects. The CJEU has confirmed that Hungary had failed to fulfil its obligations in providing migrants with international protection and returning illegally staying third-country nationals. The judgement is also of crucial importance in view of the Common European Asylum System and New Pact on Migration and Asylum. The comment aims at presenting possible consequences of the judgement for both the Hungarian administration and, most importantly, future instruments in the area of asylum in the EU.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"220 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122851910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.02
Ivan Ryška
The article examines the content of terms ‘cultural property’ and ’cultural heritage’. It illustrates the continual development in the protection of cultural property that evolved into the concept of cultural heritage. The first part of the article describes differences between the two notions and explains why the term ’cultural heritage’ is more suitable for the current approach to protection of cultural expressions. The second part of the article deals with possible consequences that the conceptual shift from cultural property to cultural heritage can bring to protection under International Criminal Law. It argues that despite the wording of relevant legal documents, it does not explicitly work with the term ’cultural heritage’. The author notes that jurisprudence of international criminal tribunals has already been recognizing this concept and reflecting upon the extent of the term in some of their decisions.
{"title":"Shift from Cultural Property to Cultural Heritage and its Possible Consequences for International Criminal Law","authors":"Ivan Ryška","doi":"10.21697/priel.2021.10.2.02","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.02","url":null,"abstract":"The article examines the content of terms ‘cultural property’ and ’cultural heritage’. It illustrates the continual development in the protection of cultural property that evolved into the concept of cultural heritage. The first part of the article describes differences between the two notions and explains why the term ’cultural heritage’ is more suitable for the current approach to protection of cultural expressions. The second part of the article deals with possible consequences that the conceptual shift from cultural property to cultural heritage can bring to protection under International Criminal Law. It argues that despite the wording of relevant legal documents, it does not explicitly work with the term ’cultural heritage’. The author notes that jurisprudence of international criminal tribunals has already been recognizing this concept and reflecting upon the extent of the term in some of their decisions.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125066326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.05
Marcin Rycek
In a judgement of 19 December 2019, C-532/18,1 in the case GN represented by father HM, against Niki Luftfahrt GmbH, the Court of Justice stated that an accident is any incident occurring on board an airship in which an object used for the use of an on-board service caused damage the passenger’s body, and it is irrelevant as to how the hazard typical of air transport materialized. The mere fact of suffering damage during air travel is sufficient for the court to find that an accident has occurred.
{"title":"Can a Coffee Burn while Traveling by Air be an Accident? Analysis of the Judgment of EU Court of Justice in C-532/18, GN v Niki Luftfahrt GmbH","authors":"Marcin Rycek","doi":"10.21697/priel.2021.10.2.05","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.05","url":null,"abstract":"In a judgement of 19 December 2019, C-532/18,1 in the case GN represented by father HM, against Niki Luftfahrt GmbH, the Court of Justice stated that an accident is any incident occurring on board an airship in which an object used for the use of an on-board service caused damage the passenger’s body, and it is irrelevant as to how the hazard typical of air transport materialized. The mere fact of suffering damage during air travel is sufficient for the court to find that an accident has occurred.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125617056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.08
Agata Kleczkowska
The aim of this article is to analyse the European Court of Human Rights (hereinafter: the Court) decision on admissibility in the Ukraine v. Russia (re Crimea) case from the perspective of the Court’s comments on the status of Crimea and the legality of Russia’s actions. The Court itself observed that it cannot make such findings; nevertheless, did it really refrain from examining facts and evidence which could also be used to prove the illegality of Russian actions? The article is divided into three parts. The first presents the factual background of the case. The next highlights the Court’s declarations about the scope of the case and refusal to engage in assessment of the legality of Russian actions. The third and fourth parts focus on the Court’s examination of the effective control by Russia over Crimea and the issue of jurisdiction, assessing whether the Court limited itself solely to the issues indispensable for a decision on admissibility.
{"title":"Where is the European Court of Human Rights Heading? Comments on the Grand Chamber Admissibility Decision in the Case of Ukraine v. Russia (re Crimea) (Applications No. 20958/14 and 38334/18)","authors":"Agata Kleczkowska","doi":"10.21697/priel.2021.10.2.08","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.08","url":null,"abstract":"The aim of this article is to analyse the European Court of Human Rights (hereinafter: the Court) decision on admissibility in the Ukraine v. Russia (re Crimea) case from the perspective of the Court’s comments on the status of Crimea and the legality of Russia’s actions. The Court itself observed that it cannot make such findings; nevertheless, did it really refrain from examining facts and evidence which could also be used to prove the illegality of Russian actions? The article is divided into three parts. The first presents the factual background of the case. The next highlights the Court’s declarations about the scope of the case and refusal to engage in assessment of the legality of Russian actions. The third and fourth parts focus on the Court’s examination of the effective control by Russia over Crimea and the issue of jurisdiction, assessing whether the Court limited itself solely to the issues indispensable for a decision on admissibility.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124525362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.04
F. Balcerzak
This submission analyses the award rendered in one of the ‘Spanish saga’ cases by a tribunal constituted under the Energy Charter Treaty. This group of cases concern renewable energy disputes and relates to the limits of states’ sovereign powers to amend their regulatory frameworks. The analysis commences by a short presentation of the relevant factual background of the dispute. It then proceeds to each stage of the arbitral proceedings: jurisdiction, merits and remedies. The submission finishes with a number of conclusions drawn from the award, referring to legal issues that can potentially serve as lessons learned for the future.
{"title":"In Search of Limits of Regulatory Powers. Antin v. Spain (ICSID Case No. ARB/13/31)","authors":"F. Balcerzak","doi":"10.21697/priel.2021.10.2.04","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.04","url":null,"abstract":"This submission analyses the award rendered in one of the ‘Spanish saga’ cases by a tribunal constituted under the Energy Charter Treaty. This group of cases concern renewable energy disputes and relates to the limits of states’ sovereign powers to amend their regulatory frameworks. The analysis commences by a short presentation of the relevant factual background of the dispute. It then proceeds to each stage of the arbitral proceedings: jurisdiction, merits and remedies. The submission finishes with a number of conclusions drawn from the award, referring to legal issues that can potentially serve as lessons learned for the future.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132437873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.06
A. Nałęcz
The case comment concerns the Judgement of the EU Court of Justice of 15 September 2020 of Telenor Magyarország Zrt. v Nemzeti Média – és Hírközlési Hatóság Elnöke (Joined Cases C-807/18 and C-39/19). This first judgment of the EU Court of Justice under the Regulation 2015/2120 provided clarity on the interpretation and application of Article 3(2) and Article 3(3) of said Regulation, generally in line with BEREC’s position known since 2016. In the opinion of the EU Court of Justice, commercial practices of providers of Internet access service, and agreements these providers conclude with end users are not prohibited per se if they involve ‘zero tariffs’. However, traffic management measures that slow down or block Internet traffic not subject to the ‘zero tariff’ once an end user’s data volume has been exhausted are incompatible with Article 3(3) of Regulation 2015/2120. To establish such incompatibility, no assessment of the influence of those traffic management measures on the exercise ofend users’ rights is required. However, such an assessment – involving an analysis of the markets for Internet access services, and for Internet content – would be necessary if a national regulatory authority wanted to establish incompatibility of the conduct of a provider of Internet access services with Article 3(2) of Regulation 2015/2120.
本案评论涉及欧盟法院于2020年9月15日对Telenor Magyarország Zrt的判决。v Nemzeti msamdia - samas Hírközlési Hatóság Elnöke(合并案件C-807/18和C-39/19)。欧盟法院根据法规2015/2120作出的首次判决明确了上述法规第3(2)条和第3(3)条的解释和适用，总体上与BEREC自2016年以来的立场一致。欧盟法院认为，互联网接入服务提供商的商业做法，以及这些提供商与最终用户签订的协议，如果涉及“零关税”，本身并不被禁止。然而，一旦最终用户的数据量耗尽，减慢或阻止不受“零关税”约束的互联网流量的流量管理措施与法规2015/2120第3(3)条不相容。为确立这种不相容，无须评估这些交通管理措施对行使最终用户权利的影响。然而，如果国家监管机构希望确定互联网接入服务提供商的行为与法规2015/2120第3(2)条不兼容，则需要进行此类评估(涉及对互联网接入服务市场和互联网内容的分析)。
{"title":"Comment to the Judgement of EU Court of Justice in Joined Cases C-807/18 and C-39/19 Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke","authors":"A. Nałęcz","doi":"10.21697/priel.2021.10.2.06","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.06","url":null,"abstract":"The case comment concerns the Judgement of the EU Court of Justice of 15 September 2020 of Telenor Magyarország Zrt. v Nemzeti Média – és Hírközlési Hatóság Elnöke (Joined Cases C-807/18 and C-39/19). This first judgment of the EU Court of Justice under the Regulation 2015/2120 provided clarity on the interpretation and application of Article 3(2) and Article 3(3) of said Regulation, generally in line with BEREC’s position known since 2016. In the opinion of the EU Court of Justice, commercial practices of providers of Internet access service, and agreements these providers conclude with end users are not prohibited per se if they involve ‘zero tariffs’. However, traffic management measures that slow down or block Internet traffic not subject to the ‘zero tariff’ once an end user’s data volume has been exhausted are incompatible with Article 3(3) of Regulation 2015/2120. To establish such incompatibility, no assessment of the influence of those traffic management measures on the exercise ofend users’ rights is required. However, such an assessment – involving an analysis of the markets for Internet access services, and for Internet content – would be necessary if a national regulatory authority wanted to establish incompatibility of the conduct of a provider of Internet access services with Article 3(2) of Regulation 2015/2120.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115335430","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.07
A. Szafrański
In its judgement C-378/19, the Court of Justice of the European Union responded to the question for a preliminary ruling referred by the Slovak Constitutional Court. The ECJ found in this judgement that Directive 2009/72/EC must be interpreted as not precluding withdrawal of the competence of the President of a Member State to appoint and dismiss the chairperson of the national regulatory authority, and conferral of the same power to the Member State’s government. Similarly, allowing the participation of the Ministers of the Environment and of the Economy in certain price-setting procedures does not violate the decision-making independence of the national regulatory authority. In his commentary, the author cites the line of argument in the judgement and presents the political context in Slovakia that led to the preliminary question. The author then comments approvingly on the judgement, noting that the Court rightly refrained from assessing the political situation in Slovakia, instead opting to focus on the law. At the end of the commentary, the author makes remarks of a general nature relating to the independence of national regulatory authorities.
{"title":"Independence of Regulatory Authorities in the Energy Market. Comment to the Judgement of EU Court of Justice in C-378/19 Prezident Slovenskej republiky","authors":"A. Szafrański","doi":"10.21697/priel.2021.10.2.07","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.07","url":null,"abstract":"In its judgement C-378/19, the Court of Justice of the European Union responded to the question for a preliminary ruling referred by the Slovak Constitutional Court. The ECJ found in this judgement that Directive 2009/72/EC must be interpreted as not precluding withdrawal of the competence of the President of a Member State to appoint and dismiss the chairperson of the national regulatory authority, and conferral of the same power to the Member State’s government. Similarly, allowing the participation of the Ministers of the Environment and of the Economy in certain price-setting procedures does not violate the decision-making independence of the national regulatory authority. In his commentary, the author cites the line of argument in the judgement and presents the political context in Slovakia that led to the preliminary question. The author then comments approvingly on the judgement, noting that the Court rightly refrained from assessing the political situation in Slovakia, instead opting to focus on the law. At the end of the commentary, the author makes remarks of a general nature relating to the independence of national regulatory authorities.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121229550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.09
Natalia Cwicinskaja
The present commentary concerns the claims alleging a violation under Article 6(1) (right to a fair trial), Article 14 (Prohibition of Discrimination) and Article 13 (Right to an Effective Remedy) of the European Convention on Human Rights as well as Article 1 of Protocol No. 1 (Peaceful Enjoyment of Possessions) to the European Conventionon Human Rights by preventing Ljubljana Bank (a Slovenian bank) from enforcing and collecting the debts of its Croatian debtors in Croatia by the Croatian authorities. The case under discussion is an inter-state case and the applicant was the Republic of Slovenia. The decision is significant from the perspective of the development of case law in inter-state cases, which are still rare in the practice of the European Court of Human Rights. It has been confirmed that inter-state applications are additional measures for the protection of the rights of individuals which cannot be used to protect State interests.
{"title":"Interstate Application on Behalf of Organisations Lacking Non-governmental Status is Inadmissible. Comment on ECtHR Decision in Slovenia v. Croatia (Application No. 54155/16)","authors":"Natalia Cwicinskaja","doi":"10.21697/priel.2021.10.2.09","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.09","url":null,"abstract":"The present commentary concerns the claims alleging a violation under Article 6(1) (right to a fair trial), Article 14 (Prohibition of Discrimination) and Article 13 (Right to an Effective Remedy) of the European Convention on Human Rights as well as Article 1 of Protocol No. 1 (Peaceful Enjoyment of Possessions) to the European Conventionon Human Rights by preventing Ljubljana Bank (a Slovenian bank) from enforcing and collecting the debts of its Croatian debtors in Croatia by the Croatian authorities. The case under discussion is an inter-state case and the applicant was the Republic of Slovenia. The decision is significant from the perspective of the development of case law in inter-state cases, which are still rare in the practice of the European Court of Human Rights. It has been confirmed that inter-state applications are additional measures for the protection of the rights of individuals which cannot be used to protect State interests.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133419941","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-18DOI: 10.21697/priel.2021.10.2.01
Simone Antonio Luciano
There is a gap in the current legal framework that might result in the infringement of the human right to food and it is given by the lack of criminalisation of intentionally caused famines. Man-made famines should be recognised as crimes against humanity because after analysing the APs and the Rome Statute, we observe that they only mention starvation episodes, and several other behaviours and situations that would end with a famine are not considered at all. We are referring here to cases when a state has the capacity to predict a famine-related disaster and the resources to minimize its impact but it fails to mitigate the effects and to mobilize a response.Compared with starvation, famines are events that have much more severe repercussions for larger areas, larger social groups or even whole countries. Furthermore, they usually cover a much longer period of time such as seasons or even years. Moreover, the perpetrators have to be major players such as governments, organisations or groups with sufficient economic or military power.Finally, famines may be achieved through military actions, policies and other political actions influencing and altering the normal social processes connected to the production of food.
{"title":"Man Made Famines: an International Crime. A Critique to the Current Gaps in the International Legal Framework","authors":"Simone Antonio Luciano","doi":"10.21697/priel.2021.10.2.01","DOIUrl":"https://doi.org/10.21697/priel.2021.10.2.01","url":null,"abstract":"There is a gap in the current legal framework that might result in the infringement of the human right to food and it is given by the lack of criminalisation of intentionally caused famines. Man-made famines should be recognised as crimes against humanity because after analysing the APs and the Rome Statute, we observe that they only mention starvation episodes, and several other behaviours and situations that would end with a famine are not considered at all. We are referring here to cases when a state has the capacity to predict a famine-related disaster and the resources to minimize its impact but it fails to mitigate the effects and to mobilize a response.Compared with starvation, famines are events that have much more severe repercussions for larger areas, larger social groups or even whole countries. Furthermore, they usually cover a much longer period of time such as seasons or even years. Moreover, the perpetrators have to be major players such as governments, organisations or groups with sufficient economic or military power.Finally, famines may be achieved through military actions, policies and other political actions influencing and altering the normal social processes connected to the production of food.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"317 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128605780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-08-20DOI: 10.21697/priel.2019.8.1.06
P. Domagala
In the judgment of 6.03.2018 (Achmea case, C-284/16), CJEU ruled that treaty clauses that allow investor from one of the Member States to bring proceedings against another Member State before an arbitraltribunal outside the EU judicial system are irreconcilable with Articles 267 and 344 TFEU when such tribunal may be called on to interpret or apply EU law. This principle is applicable to EU trade or investment agreements (FTAs and IIAs), since they are part of EU law, and to BITs, FTAs and IIAs, since they contain explicit or implicit referrals to municipal (EU) law. In intra-EU relations, such a conflict of norms must be solved according to customary international law codified in the VCLT. According to this law, TFEU would prevail as lex superior and, in the case of Poland and many other Member States, as lex posterior. In intra-EU relations, TFEU prevails ex proprio vigore, i.e. without the need to terminate intra-EU BITs. However, such termination is highly desirable, not only for reasons of clarity, but also because arbitral tribunals and extra-EU courts are not bounded by the ECJ’s ruling. In the case of agreements with non-Member States, the incompatibilities referred to in the Achmea judgment must be eliminated by renegotiation or formal termination (Article 307 (2) TFEU). In the case of the BITs, the latter seems to be the only practical solution.
{"title":"CJEU Achmea Judgment and What Comes Next. Some Reflections on the Potential Implications of the CJEU Judgment (C-284/16)","authors":"P. Domagala","doi":"10.21697/priel.2019.8.1.06","DOIUrl":"https://doi.org/10.21697/priel.2019.8.1.06","url":null,"abstract":"In the judgment of 6.03.2018 (Achmea case, C-284/16), CJEU ruled that treaty clauses that allow investor from one of the Member States to bring proceedings against another Member State before an arbitraltribunal outside the EU judicial system are irreconcilable with Articles 267 and 344 TFEU when such tribunal may be called on to interpret or apply EU law. This principle is applicable to EU trade or investment agreements (FTAs and IIAs), since they are part of EU law, and to BITs, FTAs and IIAs, since they contain explicit or implicit referrals to municipal (EU) law. In intra-EU relations, such a conflict of norms must be solved according to customary international law codified in the VCLT. According to this law, TFEU would prevail as lex superior and, in the case of Poland and many other Member States, as lex posterior. In intra-EU relations, TFEU prevails ex proprio vigore, i.e. without the need to terminate intra-EU BITs. However, such termination is highly desirable, not only for reasons of clarity, but also because arbitral tribunals and extra-EU courts are not bounded by the ECJ’s ruling. In the case of agreements with non-Member States, the incompatibilities referred to in the Achmea judgment must be eliminated by renegotiation or formal termination (Article 307 (2) TFEU). In the case of the BITs, the latter seems to be the only practical solution.","PeriodicalId":269602,"journal":{"name":"Polish Review of International and European Law","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116727819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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