The Luxembourg Chamber of Commerce answered the European Commission’s public consultation questionnaire titled ‘An Intra-EU Investment Protection and Facilitation Initiative’

Legal & Tax

Private intra-EU investments are of key importance to create business and work opportunities and generate sustainable economic growth, especially post Covid-19. Secured and stable flows of investments also allow people to have better infrastructures, diversified products and services, and create job opportunities in the EU.

The debate triggered by the termination of the intra-EU Bilateral Investment Treaties following the Achmea ruling of the Court of Justice of the European Union[1], which held that investor-State arbitration clauses included in those Treaties were incompatible with EU law, offers an opportunity to assess the current system of investment protection and facilitation within the European Union with a view to deciding whether certain aspects could be improved or modernised to make the system more suitable, predictable and secure for cross-border investments.

This is why the Chamber of Commerce answered the European Commission’s public consultation regarding the future of investment protection in the EU. 

The answer was prepared with the help of a group of experts convened by the Chamber of Commerce and composed of Luxembourgish investors and businesses, professional associations, practicing lawyers, academics and former members of the Court of Justice of the European Union. Thanks to the diverse backgrounds of its working group members, the Chamber of Commerce was able to put forward a constructive response to the European Commission’s consultation questionnaire. 

This answer seeks to bridge the dividing gaps between various stakeholders and satisfy their concerns.

Its key message is that EU investment rules need codification in a single legislative instrument with a robust EU-based judicial mechanism that will enforce them. Such a mechanism should cater not only to investors’ rights but also to the protection of public interest and be accessible to small and medium-sized enterprises (SMEs). 

In the absence of a consensus that would allow investment protection in the EU to take that direction, the Chamber of Commerce proposes an alternative arrangement that would codify EU investment rules and harmonise certain aspects of the Member States’ existing system of legal remedies. 

Particular emphasis is also placed on the necessity to enable investors to cumulate an action for an annulment of a measure taken by a Member State in breach of EU investment rules with a claim for damages against that Member State for any loss caused by that breach.

The complete answer of the Luxembourg Chamber of Commerce to the European Commission’s public consultation can be consulted here.

[1] Case C-284/16, Achmea.