NEWSLETTER-2019-metin

184 NEWSLETTER 2019 Termination of Intra-EU BITs In its Communication 8 dated 19 July 2018, the Commission quali- fied the intra-EU BITs as “ a parallel treaty system overlapping with single market rules, preventing the full application of EU law ” 9 and even added that it may activate infringement procedures against the MSs during its monitor on the termination phase of the BITs 10 . As a complement to this statement, the MSs committed to termi- nate all intra-EU BITs no later than 6 December 2019 in a declaration published on 17 January 2019 11 and acknowledged that: • The EU law takes precedence over intra-EU BITs; • The arbitration clauses contained in these BITs are contrary to EU law and are, hence, inapplicable; • The arbitral tribunals established as per these arbitration cla- uses lack jurisdiction; • No new intra-EU investment arbitration proceeding may be initiated; and • The MS courts shall either set aside, or not enforce, the intra- EU investment arbitration awards. 8 Communication from the Commission to the European Parliament and the Coun- cil: “Protection of Intra-EU Investment”, 19.07.2018, https://eur-lex.europa.eu/ legal-content/EN/TXT/PDF/?uri=CELEX:52018DC0547&rid=8 (Access date: February 2019). 9 Communication from the Commission to the European Parliament and the Coun- cil: “Protection of Intra-EU Investment”, 19.07.2018, p. 2, https://eur-lex.europa . eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018DC0547&rid=8 (Access date: February 2019). 10 Global Arbitration Review, “Brussels Pours Cold Water on Intra-EU Treaty Ar- bitration”, https://globalarbitrationreview.com/article/1172132/brussels-pours- cold-water-on-intra-eu-treaty-arbitration (Access date: February 2019). 11 European Commission announcement on “Declaration of the Member States of 15 January 2019 on the Legal Consequences of the Achmea Judgment and on In- vestment Protection”, 17 January 2019, https://ec.europa.eu/info/sites/info/files/ business_economy_euro/banking_and_finance/documents/190117-bilateral-in- vestment-treaties_en.pdf (Access date: February 2019).