The Energy Charter Treaty (ECT) is under renegotiation. Its Article 26, which provides a dispute settlement mechanism, has however not been announced as being subject to such renegotiations. On 2 December 2020, Belgium submitted a request to the EU Court of Justice (CJEU) for an opinion on whether the dispute settlement mechanism of the draft ECT, assuming it remains unchanged, could be interpreted as allowing its application intra-European Union, i.e. between an EU Member State and an investor who is a national of another Member State, and whether this would be compatible with the EU Treaties, in particular Article 19 TEU on the role of the CJEU and Article 344 TFEU on the autonomy of EU law.
Yesterday, on 16 June 2022, the CJEU stated in Opinion 1/20 that Belgium’s request was inadmissible. It found that it could not be excluded that Article 26 would be subject to amendments at the end of the negotiations. As the CJEU did not have sufficient information on the content and scope of the provision which will appear in the modernised ECT, it was premature to give an opinion on that scope.
However, the CJEU pointed out that, in any event, it had already ruled on the question in the case Republic of Moldova (C‑741/19, paras 40-66), from which it follows that compliance with the principle of autonomy of EU law requires Article 26(2)(c) of the ECT to be interpreted as meaning that it is not applicable to disputes between a Member State and an investor of another Member State concerning an investment made by the latter in the first Member State.
You can find Opinion 1/20 here.
