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EU withdrawal from the Energy Charter Treaty

Briefing 04-12-2023

On 7 July 2023, the European Commission published a proposal for a Council decision on the withdrawal of the Union from the Energy Charter Treaty (ECT) – a multilateral agreement that regulates energy investment. This comes after a previous proposal to modernise the ECT did not gather the required majority among Member States. The lack of an EU position de facto blocks the ECT modernisation process. Due to many concerns over the protection of fossil fuel investements and amid the lack of prospects for change, several countries have announced their intention to withdraw unilaterally. France, Germany and Poland are due to leave the ECT by the end of 2023 and Luxembourg by mid-2024. Additionally, the Netherlands, Slovenia, Spain and, more recently, Denmark, Ireland and Portugal have announced their intention to leave unilaterally. The Commission now proposes a coordinated withdrawal by the Union and its Member States, as it considers the Treaty to be no longer compatible with the EU's climate goals under the European Green Deal and the Paris Agreement, predominantly due to concerns over continued fossil fuel investments. Another concern relates to the specifics of the investor-state dispute settlement mechanism. The rulings of international arbitration tribunals are rarely in the public domain, with few opportunities for legal redress and oversight; the majority of cases have been launched against EU Member States, often by investors headquartered in the EU. The Court of Justice of the European Union (CJEU) judgment from September 2021 found it to be contrary to EU law, as it excluded the CJEU from jurisdiction over intra-EU disputes in its areas of competence. A qualified majority of Member States need to back the Commission proposal to withdraw. The procedure requires that the Commission notify the ECT secretariat about the withdrawal of the EU as a whole and that each country does so on its own account. However, some countries have already signalled that they prefer to stay within the ECT. Ϸվ will be asked to give its consent to the EU withdrawal and has already announced in a resolution that there is a required majority to approve the withdrawal. Due to the sunset clause, the parties are bound by the ECT provisions for 20 years after the withdrawal.