Avis rendu en vertu de l'article 218, paragraphe 11, TFUE (Traité sur la Charte de l’énergie modernisé).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:485
• Date: 16 June 2022
• Docket Number: 1/20
• Celex Number: 62020CV0001(01)
• Court: Court of Justice (European Union)

OPINION 1/20 OF THE COURT (Fourth Chamber)

16 June 2022

(Opinion pursuant to Article 218(11) TFEU – Request for an Opinion – Draft modernised Energy Charter Treaty – Article 26 – Dispute settlement mechanism – Admissibility)

In Opinion 1/20,

REQUEST for an Opinion pursuant to Article 218(11) TFEU, made on 2 December 2020 by the Kingdom of Belgium,

The COURT (Fourth Chamber)

composed of C. Lycourgos, President of the Chamber, S. Rodin, J.‑C. Bonichot, L.S. Rossi (Rapporteur) and O. Spineanu-Matei, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Belgian Government, by S. Baeyens, J.-C. Halleux, C. Pochet and M. Van Regemorter, acting as Agents,

– the Czech Government, by K. Najmanová, H. Pešková, M. Smolek and J. Vláčil, acting as Agents,

– the German Government, by J. Möller and D. Klebs, acting as Agents,

– the Greek Government, by K. Boskovits and G. Karipsiadis, acting as Agents,

– the Spanish Government, by S. Centeno Huerta, A. Gavela Llopis and J. Ruiz Sánchez, acting as Agents,

– the French Government, by A. Daniel and W. Zemamta, acting as Agents,

– the Croatian Government, by G. Vidović Mesarek, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, and P. Garofoli, avvocato dello Stato,

– the Lithuanian Government, by K. Dieninis and R. Dzikovič, acting as Agents,

– the Hungarian Government, by M.Z. Fehér and K. Szíjjártó, acting as Agents,

– the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,

– the Polish Government, by B. Majczyna, acting as Agent,

– the Slovenian Government, by N. Pintar Gosenca, acting as Agent,

– the Slovak Government, by B. Ricziová, acting as Agent,

– the Council of the European Union, by B. Driessen and A. Lo Monaco, acting as Agents,

– the European Commission, by L. Armati, O. Beynet, F. Erlbacher, M. Kellerbauer, T. Maxian Rusche and R. Vidal Puig, acting as Agents,

after hearing the Advocate General,

gives the following

Opinion

1 The request for an Opinion submitted to the Court by the Kingdom of Belgium is worded as follows: ‘Is the draft modernised Energy Charter Treaty compatible with the Treaties, and in particular Article 19 TEU and Article 344 TFEU: – so far as concerns Article 26 of that agreement, if that article may be interpreted as allowing the intra-EU application of the dispute settlement mechanism? – in so far as, if Article 26 of that agreement were to be interpreted as allowing the intra-EU application of the dispute settlement mechanism, that agreement does not lay down a specific, express rule or an explicit disconnection clause, in particular in the definitions of investment and investor in Article 1 of the envisaged agreement, providing for the non-applicability of the general mechanism of Article 26 between the Member States?’

Legal context

2 The Energy Charter Treaty, signed in Lisbon on 17 December 1994 (OJ 1994 L 380, p. 24; ‘the ECT’), was approved on behalf of the European Communities by Council and Commission Decision 98/181/EC, ECSC, Euratom of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects (OJ 1998 L 69, p. 1). It consists of a preamble and eight parts, including Part I, entitled ‘Definitions and Purpose’, comprising Articles 1 and 2 of the Treaty, and Part V, entitled ‘Dispute Settlement’, comprising Articles 26 to 28 of the Treaty.

3 Article 1 of the ECT, entitled ‘Definitions’, defines, for the purposes of that treaty, a set of terms which include, in paragraphs 6 and 7 of that article, ‘investment’ and ‘investor’.

4 Article 26 of the ECT, entitled ‘Settlement of disputes between an Investor and a Contracting Party’, states: ‘(1) Disputes between a Contracting Party and an Investor of another Contracting Party relating to an investment of the latter in the area of the former, which concern an alleged breach of an obligation of the former under Part III shall, if possible, be settled amicably. (2) If such disputes cannot be settled according to the provisions of paragraph 1 within a period of three months from the date on which either party to the dispute requested amicable settlement, the investor party to the dispute may choose to submit it for resolution: (a) to the courts or administrative tribunals of the Contracting Party to the dispute; (b) in accordance with any applicable, previously agreed dispute settlement procedure; or ou (c) in accordance with the following paragraphs of this Article. (3) (a) Subject only to subparagraphs (b) and (c), each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article. … (4) In the event that an investor chooses to submit the dispute for resolution under subparagraph (2)(c), the investor shall further provide its consent in writing for the dispute to be submitted to: (a) (i) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States opened for signature at Washington, 18 March 1965 (hereinafter referred to as the “[ICSID] Convention”), if the Contracting Party of the Investor and the Contracting Party party to the dispute are both parties to the ICSID Convention; or (ii) The International Centre for Settlement of Investment Disputes, established pursuant to the Convention referred to in subparagraph (a)(i), under the rules governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre (hereinafter referred to as the “Additional Facility Rules”), if the Contracting Party of the Investor or the Contracting Party party to the dispute, but not both, is a party to the ICSID Convention; (b) a sole arbitrator or ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (hereinafter referred to as “Uncitral”); or (c) an arbitral proceeding under the Arbitration Institute of the Stockholm Chamber of Commerce. …’

5 Article 34 of the ECT, entitled ‘Energy Charter Conference’, provides, in paragraph 1 thereof: ‘The Contracting Parties shall meet periodically in the Energy Charter Conference (referred to herein as the “Charter Conference”) at which each Contracting Party shall be entitled to have one representative. Ordinary meetings shall be held at intervals determined by the Charter Conference.’

The envisaged agreement

6 Since the ECT had not been the subject of any major revision since 16 April 1998, the date of its entry into force, the Energy Charter Secretariat proposed that it be modernised. Following exchanges on this point, the Charter Conference adopted, on 27 November 2018, a list of various fields open to discussion to begin negotiations on modernisation (‘the list of areas open to negotiation’).

7 That list comprises the following areas: – pre-investment; – definition of ‘Charter’; – definition of ‘economic activity in the energy sector’; – definition of ‘investor’; – definition of ‘investment’; – right to regulate; – definition of fair and equitable treatment; – most-favoured-nation clause; – clarification of ‘most constant protection and security’; – definition of indirect expropriation; – compensation for losses; – umbrella clause; – denial of benefits; – transfers related to investments; – frivolous claims; – transparency; – security for costs; – valuation of damages; – third-party funding; – sustainable development and corporate social responsibility; – definition of transit; – access to infrastructure (including denial of access and available capacities); – definition and principles of tariff setting; – Regional Economic Integration Organisations (REIOs); and – obsolete provisions.

8 On 6 November 2019, the Charter Conference created the group on modernisation and asked it to start negotiations on the modernisation of the ECT, with a view to rapidly concluding that process. That conference stated that the negotiations will take account of the list of areas open to negotiation and of the policy options suggested by the Contracting Parties.

9 The first full round of negotiations took place from 6 to 9 July 2020, the second from 8 to 11 September 2020 and the third from 3 to 6 November 2020.

10 On 15 July 2019, the Council of the European Union instructed the...