The European Union and the Energy Charter Treaty: What Next After ACHMEA?

Mads Andenas, Matthew Happold and Luca Pantaleo (eds), The European Union as an Actor in International Economic Law (T.M.C. Asser Press: 2019 Forthcoming)

36 Pages Posted: 2 Nov 2018

See all articles by Matthew Happold

Matthew Happold

Université du Luxembourg; Universite du Luxembourg - Faculty of Law, Economics and Finance

Michael De Boeck

Max Planck Institute for Procedural Law, Students; Ghent University-Universiteit Gent, Faculty of Law, Students

Date Written: October 5, 2018

Abstract

As a treaty with investment provisions, the Energy Charter Treaty (‘ECT’) is unique. Adopted in 1994, the ECT has been ratified by all 28 EU Member States (although Italy has now terminated its membership), the EU and EURATOM. But the EU itself is also an important regulator in the energy sector. In consequence, EU law has increasingly become relevant to disputes brought under the ECT’s dispute resolution provisions. In such cases, the potential for conflicts between the jurisdictional and substantive regimes of the ECT and EU law are considerable, and the doctrine on treaty conflicts does not point to a single right solution. The recent Achmea judgment of the European Court of Justice evidences this division on issues both of jurisdictional and substantive treaty conflicts between the ECT regime and EU law.

Although specifically dealing with the the effects of an intra-EU BIT, the potential consequences of the Achmea judgment for the ECT are tremendous and are already beginning to be felt. This article seeks to examine what the situation now is, how matters came to such a pass, and whether the current impasse can be ended. But it concludes that we may be moving to a situation where the organisation primarily responsible for constructing the ECT regime will be responsible for its (at least partial) dismantling; a development not without a degree of irony.

Keywords: European Union, Energy Charter Treaty, ISDS, investment treaty arbitration, principle of the primacy of EU law, Achmea judgment

JEL Classification: K33

Suggested Citation

Happold, Matthew and De Boeck, Michael, The European Union and the Energy Charter Treaty: What Next After ACHMEA? (October 5, 2018). Mads Andenas, Matthew Happold and Luca Pantaleo (eds), The European Union as an Actor in International Economic Law (T.M.C. Asser Press: 2019 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3261590

Matthew Happold (Contact Author)

Université du Luxembourg ( email )

Faculté de Droit, d'Économie et de Finance
148, avenue de la Faïencerie
L-1511 Luxembourg
Luxembourg

Universite du Luxembourg - Faculty of Law, Economics and Finance ( email )

162a, avenue de la Faïencerie
Luxembourg-Limpertsberg, L-1511
Luxembourg

Michael De Boeck

Max Planck Institute for Procedural Law, Students ( email )

4, rue Alphonse Weicker
Luxembourg
Luxembourg

Ghent University-Universiteit Gent, Faculty of Law, Students ( email )

Universiteitstraat 4
Ghent
Belgium

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