Opinion of the Court Fourth Chamber of 16 June 2022, Opinion 1/20 pursuant to Article 21811 TFEU modernised Energy Charter Treaty

• Date: 16 June 2022
• Year: 2022

35

VIII. INTERNATIONAL AGREEMENTS: OPINION PROCEEDINGS PURSUANT TO

ARTICLE 218(11) TFEU

Opinion of the Court (Fourth Chamber) of 16 June 2022, Opinion 1/20 pursuant to Article

218(11) TFEU (modernised Energy Charter Treaty)

Link to the complete text of the opinion

Opinion pursuant to Article 218(11) TFEU – Request for an Opinion – Draft modernised Energy Charter

Treaty – Article 26 – Dispute settlement mechanism – Admissibility

The Energy Charter Treaty (ECT), approved on behalf of the European Communities in 1997,

67

has not

been the subject of major revision since its entry into force in 1998. In 2020 negotiations on its

modernisation were started. Those negotiations were to be based inter alia on a list of areas open to

negotiation adopted in 2018 by the Charter Conference.

68

During the negotiations, the European Union proposed amending the mechanism for the settlement

of disputes between investors and Contracting States.

69

Since the field to which that mechanism

belongs was not included in that list, the opening of negotiations on this a rea had to be the subject of

consensus between the contracting parties. In the present case, that consensus was not reached.

On 2 December 2020, the Kingdom of Belgium submitted to the Court of Justice a request for an

Opinion

70

on the compatibility with the Treaties of the dispute settlement mechanism provided for in

the draft modernised ECT, and of the concepts of ‘investment’ and ‘investor’.

71

In essence, that

Member State harbours doubts as to the applicability of that mechanism to disputes between an

investor from one Member State, and another Member State.

In its Opinion, the Court takes the view that it does not have sufficient information on the actual

content of the draft modernised ECT and that, therefore, the present request for an Opinion, on

account of its premature nature, must be regarded as inadmissible.

Findings of the Court

The Court, after finding that at the date on which the request for an Opinion was made, there was no

document containing the text of the ECT, in its updated version, or tha t of Article 26 thereof, observes,

first of all, that on that date negotiations were at a very early stage. Even if a list of areas open to

negotiation had been identified and did not include the dispute settlement mechanism, a consensus

could have, and might still, emerge, among the contracting parties, in favour of the inclusion in that

list of the area covering the dispute settlement mechanism. Consequently, the outcome of any

negotiations concerning that area is not sufficiently foreseeable and it cannot be ruled out that the

provision relating to that provision may be amended.

67

The ECT was app roved by Council and Commission De cision 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 Pr otocol on energy efficiency and rel ated environmental

aspects (OJ 1998 L 69, p. 1).

68

Article 34 of the ECT pr ovides that the Contracting Parties are to meet periodically in the Energy Charter Conference (‘the Charter

Conference’).

69

The mechanism for the settlement of disputes between an inve stor and a Contracting Party is provided for in Article 26 of the ECT.

70

Under Article 218(11) TFEU.

71

Set out in the proposal for amendment of Article 1 of the ECT.