Judgment of the Court Grand Chamber of 2 September 2021, République de Moldavie, C-741/19

• Date: 02 September 2021
• Year: 2021

47

The Court next observes, as regards the aims of the agreement, that it seeks principally to establish

the framework for cooperation in matters of transport, trade and development with Armenia. In that

context, the Court finds that to require a development cooperation agreement also to be based on a

provision other than the provision relating to that policy whenever the agreement touches on a

specific area would in practice be liable to render devoid of substance the competence and the

procedure laid down in Article 208 TFEU. In the present case, while some of the specific aims seeking

to strengthen political dialogue may be linked to the CFSP, the Court observes that the enumeration

of those specific aims is not accompanied by any programme of action or concrete terms governing

cooperation in that field that may be capable of establishing that the CFSP constitutes one of the

distinct components of that same agreement, outside the scope of those aspects connected with

trade and development cooperation.

Finally, while a contextual element of a measure, such as, in the present case, the Nagorno-Karabakh

conflict, may also be taken into account in order to determine the legal basis of that measure, the

Court finds that the Partnership Agreement with Armenia does not envisage any concrete or specific

measure with a view to addressing that situation which puts international security in issue.

In the light of the foregoing, the Court annuls Decision 2020/246 since it was wrongly based on the

substantive legal basis of Article 37 TEU. The Court also annuls Decision 2020/245. As is apparent

from recital 10 and from Article 1 thereof, that decision does not relate to the position to be adopted

on behalf of the European Union within the Partnership Council established by the Partnership

Agreement with Armenia in so far as that position is covered by the application of Title II of that

agreement. However, the provisions comprising that title do not constitute a distinct component of

that agreement that obliged the Council to use, inter alia, Article 37 TEU and the second subparagraph

of Article 218(8) TFEU as a basis for establishing that same position. Therefore, there was nothing to

justify the Council excluding the position in question from the object of Decision 2020/245, in so far as

it covers the application of Title II of that same agreement and adopting a separate decision pursuant

to Article 218(9) TFEU, which has as its object the establishment of that position in so far as it covers

that same application.

The Court decides however, on grounds of legal certainty, to maintain the effects of the annulled

decisions pending a new decision to be taken by the Council which complies with the judgment.

Judgment of the Court (Grand Chamber) of 2 September 2021, Rép ublique de Moldavie,

C-741/19

Link to the complete text of the judgment

Reference for a preliminary ruling – Energy Charter Treaty – Article 26 – Inapplicability between Member

States – Arbitration Award – Judicial review – Jurisdiction of a court of a Member State – Dispute between

a third-State ope rator and a third State – Jurisdiction of the Court – Article 1(6) of the Energy Charter

Treaty – Concept of ‘investment’

In performance of a series of contracts concluded in 1999, Ukrenergo, a Ukrainian producer, sold

electricity to Energoalians, a Ukrainian distributor, which resold that electricity to Derimen, a company

registered in the British Virgin Islands, which in turn resold that electricity to Moldtranselectro, a

Moldovan public undertaking with a view to exporting it to Moldova. The volumes of electricity to be

supplied were agreed each month directly between Moldtranselectro and Ukrenergo.

Derimen paid Energoalians the full amounts due for the electricity purchased, whilst Moldtranselectro

only partially settled the amounts due to Derimen for that electricity. On 30 May 2000, Derimen

assigned to Energoalians the claim that it had against Moldtranselectro. The latter settled its debt to

Energoalians in part by assigning to it claims that it held. Energoalians attempted unsuccessfully to

obtain payment of the remainder of that debt, a sum of 16 287 185.94 United States dollars (USD)

(approximately EUR 13 735 000), by bringing proceedings before the Moldovan courts and

subsequently the Ukrainian courts.