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Intra-EU investment: Insurers support improved investment protection and facilitation

Insurance Europe has today published its high-level views in response to a consultation by the European Commission on an intra-EU investment protection and facilitation initiative.

A stable and favourable investment environment with clear rules, effective remedies and measures to facilitate access to investment opportunities is crucial and is in line with the objectives of flagship initiatives, such as the Capital Markets Union (CMU) project.

In particular, there should be no sudden and retroactive changes to local investment frameworks. In recent years, (re)insurers have witnessed unfortunate violations of investor rights in relation to long-term investments in, for example, infrastructure and renewable energy.

Examples include retroactive reductions in feed-in tariffs and retroactive taxation of photovoltaic plants in Spain, the Czech Republic and Italy in 2014, as well as a 90% reduction of the usage fees for the Gassled pipeline network in Norway in 2016.

As a consequence, some (re)insurers decided to refrain from further investing in markets where they have incurred losses on their investments due to retroactive changes to legislation without grandfathering rights.

To facilitate future investment, it is therefore vital that investors are able to rely on the fact that relevant investment conditions will continue to exist after the time of the investment decision. In the event of (retroactive) changes to the legal framework, adequate grandfathering rules must ensure legal certainty.

Cross-border investors in the EU also face problems in certain member states in enforcing their rights and obtaining a remedy. In some cases, investors are likely to have no other option than to bring the matter before a national court, which in turn may lead to dispute escalation. This can lead to increased costs, damage to the company’s relationship with public authorities and even the eventual withdrawal of investments.

While better enforcement on investment rules by member states can help improve the issues faced by investors, consideration of further actions at EU level may be needed to address existing challenges. This is not to question the jurisdiction of EU member states. Rather, it is a matter of simple and effective legal protection for foreign investors in the event of violations of investor rights.

In addition, EU investors should not be disadvantaged when it comes to legal protection compared to investors from third countries. It is vital to ensure a level-playing field between EU and non-EU investors and the effectiveness of procedural guarantees granted to investors.

 

Published 14 September 2020