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This article scrutinizes the positions of stakeholders in the light of the arguments of incompatibility of the intra-EU BITs with EU law. Whereas the interest of the Commission and some EU Member States was to protect the legal certainty of EU law and budgetary expenditures, the selective short-term interest of deliberately invoking compliance with EU law conflicts with the long-term interests of the Union, the EU Member States, and investors, including enterprises wholly-owned by the national governments of EU Member State. While waiting for the Commission to come up with a solution to the issue of incompatibility, EU Member States might find themselves exposed to a substantial degree of moral hazard since Member States’ courts should set aside the enforcement of arbitral awards that ignore the primacy of EU law. It is suggested that the tension between different interests may impact the competitiveness of the investment environment of the EU as a whole.
