The Member States of the European Union, Contracting Parties to the Energy Charter Treaty: Plurilateralism in the Light of EU Law

NEFRAMI, Eleftheria

doi:10.1163/22119000-12340386

Article (Scientific journals)

The Member States of the European Union, Contracting Parties to the Energy Charter Treaty: Plurilateralism in the Light of EU Law

NEFRAMI, Eleftheria

2025 • In Journal of World Investment and Trade

Peer reviewed

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Keywords :

Investment, Autonomy, Energy, Energy Charter Treaty, Plurilateralism, Dispute Settlement, Mixed Agreements, EU competences

Abstract :

[en] The European Union's approach to the Energy Charter Treaty (ECT) modernization and withdrawal process reflects a complex interplay of sustainability goals, investment protection, and constitutional constraints. Initially, the EU aimed to approve the modernized ECT before withdrawing to benefit from a shortened sunset clause and non-application of investor-state dispute settlement within the Union. However, lacking approval, the EU has pivoted to promoting its sustainability standards in bilateral or multilateral contexts and decided to withdraw from the ECT, together with an important number of Member States. The EU's strategy involves requiring the remaining Member States to vote for ECT modernization. This approach allows the EU to advance its interests and balance sustainability objectives with investment protection, benefiting both EU and non-EU parties. Despite complexities in reconciling the ECT with EU law, the EU's constitutional imperatives deriving from the intra-EU division of competences, which initially hindered ECT modernization adoption and coordinated withdrawal, now serve for restoring the plurilateral dynamic in the promotion of the Union's environmental standards in the ECT.

Disciplines :

European & international law

Author, co-author :

NEFRAMI, Eleftheria ; University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Department of Law (DL)

External co-authors :

yes

Language :

English

Title :

The Member States of the European Union, Contracting Parties to the Energy Charter Treaty: Plurilateralism in the Light of EU Law

Publication date :

2025

Journal title :

Journal of World Investment and Trade

ISSN :

1660-7112

eISSN :

2211-9000

Publisher :

Brill, Leiden, Netherlands

Peer reviewed :

Peer reviewed

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since 01 February 2025

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Bibliography

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See (n 1).
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CJEU, Opinion 2/15 Free Trade Agreement between the European Union and the Republic of Singapore [2017], paras 139–47. The global approach of the Union’s external action objectives is based on Articles 21 (3) TEU and 205 TFEU.
CJEU, Opinion 2/15 Free Trade Agreement between the European Union and the Republic of Singapore [2017], paras 225–43. In paragraph 227 the Court of Justice recalls that ‘non-direct foreign investment may, inter alia, take place in the form of the acquisition of company securities with the intention of making a financial investment without any intention to influence the management and control of the undertaking (‘portfolio’ investments), and that such investments constitute movements of capital for the purposes of Article 63 TFEU’.
Article 4(2)(i) TFEU.
CJEU, Case 22/70 Commission v Council [1971] ECLI:EU:C:1971:32.
The Court of Justice recalls that ‘despite there being no contradiction with those common rules, the meaning, scope and effectiveness of the latter may be affected’. CJEU, Opinion 2/15 (n 17) para 201.
European Commission, Council Decision on the Position to Be Taken on Behalf of the European Union in the Energy Charter Conference, COM (2024) 104 final (1 March 2024). In addition, in the ECT modernisation process, the negotiating directives of the Council addressed to the Commission were “without prejudice to the division of competences between the Union and the Member States as laid down in the Treaties”, Council of the European Union (n 7). It results that exclusivity of the EU’s competence does not stem from the ERTA principle.
Merijn Chamon, ‘Constitutional Limits to the Political Choice of Mixity’, in Eleftheria Neframi and Mauro Gatti (eds) Constitutional Issues of EU External Relations Law (Nomos 2018) 137–65;
Inge Govaere, ‘Facultative and Functional Mixity Consonant with the Principle of Partial and Imperfect Conferral’ in Merijn Chamon and Inge Govaere (eds) EU External Relations Post-Lisbon (Brill 2020) 22–47.
Opinion 2/15 (n 17) paras 213–17.
Article 216(1) TFEU, ‘The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope’.
CJEU, Case C-600/14 Germany v Council [2017] ECLI:EU:C:2017:935, para 52.
2006/500/EC: Council Decision of 29 May 2006 on the Conclusion by the European Community of the Energy Community Treaty [13 December 2008] OJ L 335M, 374–82.
Yuliya Kaspiarovich and Ramses Wessel, ‘Unmixing Mixed Agreements- Challenges and Solutions for Separating the EU and its Member States in Existing International Agreements” in Nicolas Levrat, Yuliya Kaspiarovich, Christine Kaddous and Ramses Wessel (eds), The EU and its Member States’s Joint Participation in International Agreements (Hart Publishing 2022) 287, 291. It should be noted that the exercise of the Union’s competence is not deducted by the conclusion of a mixed agreement. In Opinion 1/19, the Court of Justice found that ‘the conclusion of a mixed agreement by the European Union and its Member States in no way implies that its Member States exercise, in that event, competences of the European Union or that the European Union exercises competences of those States; rather, each of those parties acts exclusively within its sphere of competence.’
CJEU, Opinion 1/19 Istanbul Convention [2021] ECLI: EU:C:2021:198, paras 240, 258, 259. However, the Union’s shared competence can be exercised directly in the external field through the adoption of a decision in the body established by the mixed agreement.
See Case C-600/14 (n 30) paras 49–51.
It could therefore be argued that the adoption of the Union’s position in the ECT would be the expression of the exercise of its shared competence. Although such an exercise can be limited in time in the sense that the Member States will be able to exercise again their competence in the future (see Council Decision (EU) 2022/1158 of 27 June 2022 on the Signing, on Behalf of the Union, and Provisional Application of the Agreement between the European Union and Ukraine on the Carriage of Freight by Road [06 June 2022] OJ L 179, 1–3), in the case of the ECT the exercise of the Union’s competence through the adoption of the decision on the modernised ECT could be considered as an argument in favour of ending mixity. See also infra Sections 3.1 and 4.
Opinion 2/15 (n 17) para 292.
See Gesa Kübek and Isabelle Van Damme, ‘Facultative Mixity and the European Union’s Trade and Investment Agreements’ in Chamon and Govaere (n 24) 148;
Gesa Kübek, EU Trade and Investment Treaty-Making Post Lisbon (Hart Publishing 2024) 72.
This obligation derives from Article 19 TEU, according to which ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Laurens Ankersmit, ‘Withdrawal from Mixed Agreements under EU Law: The Case of the Energy Charter Treaty’ (2023) Europe and the World: A Law Review 4–5 accessed 23 July 2025.
Opinion 2/15 (n 17) para 293;
Case C-600/14 (n 27) paras 67–68.
Chamon (n 24) 140 et seq;
Luca Prete, ‘Facultative Mixity after the Singapore Opinion: Clarity or Fresh Doubts?’ in Chamon and Govaere (n 24) 216–21. It could be argued that the Court of Justice has qualified the competence of the Member States relating to ISDS provisions as shared, which makes it possible to consider its exercise by the Union alone. However, mixity could be considered to be necessary due to the fact that only States may participate in the ICSID Convention or the UNCITRAL.
See the position of the Court in the Antarctic MPA judgment, CJEU, Joined Cases C-626/15 and C-659/16 Commission v Council[2018] ECLI:EU:2018:925
Gesa Kübek and Isabelle Van Damme (n 31) 148.
The Council’s decision authorizing the opening of negotiations explicitly concerned the extent to which the ECT fell within the competence of the Union (Council Decision of 15 July 2019, 10745/19). Moreover, although the EU, Euratom and the Member States acted as a single entity during the negotiating process, the negotiating directives of the Council clearly indicated that this was “without prejudice to the division of competences between the Union and the Member States as laid down in the Treaties”.
The decision on whether the Union or the Member States will exercise the participation and voting rights falls under the management of mixity; see infra, under Section 3.
The Court of Justice acknowledged that since the judgment of 12 December 1972, CJEU, Joint Cases 21/72 to 24/72 International Fruit Company and Other [1972] ECLI:EU:C:1972: 115, paras 10–18, concerning the position of the European Community in the GATT, the Union “can succeed the Member States in their international commitments when the Member States have transferred to it, by one of its founding Treaties, their competences relating to those commitments and it exercises those competences” (CJEU, Opinion 2/15 (n 17) para 248).
Inge Govaere argues that ‘equating exclusive competence with a quasi-automatic application of the principle of substitution disregards the International Fruit Company conditions’. Govaere (n 24) 45.
This could be an example of functional mixity. See Govaere (n 24) 40.
Sabrina Schaeffer and Jed Odermatt, ‘Nomen est Omen? The Relevance of “EU Party” in International Law’ in Levrat and others (n 29) 131, 138.
CJEU, C-741/19 (n 3).
CJEU, Case C-284/16 Slowakische Republik v Achmea BV [2018] ECLI:EU:C:2018:158.
CJEU, Case C-109/20 PL Holdings [2021] ECLI:EU:C:2021:875.
In Opinion 1/17 the Court of Justice held that respect of the autonomy of the EU legal order implies that arbitral tribunals must treat EU law as a matter of fact. CJEU, Opinion 1/17 (n 5) paras 120–36. Mustafa Karayigit, ‘The Compatibility of the ISDS Mechanism under the Energy Charter Treaty with the Autonomy of the EU Legal Order’ (2024) 29 European Foreign Affairs Review 85, 96 et seq.
CJEU, Case C-638/19 P, Commission v European Food and Others [2022] ECLI:EU:C:2022:50.
David Ingle and Jeffrey Sullivan KC, ‘Arbitration under the Energy Charter Treaty: The Impact of EU Law’ in Nikos Lavranos, Stefano Castagna (eds) International Arbitration and EU Law (Edward Elgar 2024) 272.
Alan Dashwood argues against the expansive reading of the Achmea judgement because arbitral tribunals in the context of the ECT do not apply EU law, and because the dispute settlement mechanism in Article 26 ECT ensures equality of treatment and respect between the Member States and third country parties to the ECT and is created by the collective will of the parties to the ECT. Alan Dashwood, ‘Article 26 ECT and Intra-EU Disputes – The Case against an Expansive Reading of Achmea’ (2021) 46 E L Rev 415–34.
See also Venetia Argyropoulou, ‘Vattenfall in the Aftermath of Achmea: Between a Rock and a Hard Place?’ (2019) 4 EILA Rev 203;
Mustafa Karayigit (n 44), 92.
For example, Vattenfall v Germany (II), ICSID Case No ARB/12/12;
Masdar Solar v. Spain, ICSID Case No ARB/14/1;
Greentech v Italy, SCC CaseNo V2015/095;
Eskosol v Italy, ICSID Case No ARB/15/50.
Disconnection clauses usually concern substantive provisions of mixed agreements, to a large extent covered by the Union’s competence and are followed by the affirmation of compliance with the obligations stemming from the agreement. Marise Cremona, ‘Disconnection Clauses in EU Law and Practice’ in Christophe Hillion and Panos Koutrakos (eds), Mixed Agreements Revisited (Hart Publishing 2010) 160, 164.
It should be noted that in order to prevent investors from using shell companies in order to qualify for non-EU home state status and thus benefit from the application of Article 26 of the ECT, the Commission has proposed to limit the definition of investors to those engaged in substantial commercial activities in the home state. In addition, in its proposal to modernise the ECT, the Commission has attempted to exclude from its scope the settlement of disputes concerning the cessation of state aid and subsidies. The aim is for the contracting parties not to undertake not to modify the legal and regulatory framework in the name of investor protection. accessed 23 July 2025.
The ECT does not stipulate that the EU and its Member States form a single contracting party.
Article 16 of the ECT provided that any subsequent agreement by parties to the ECT concerning the subject matter of investment protection and dispute settlement cannot derogate from the provisions of the ECT, consequently, the ECT regime prevails over other treaty obligations. Agata Daszko, ‘The Energy Charter Treaty at a Critical Juncture: of Knowns, Unknowns, and Lasting Significance’ (2023) JIEL 720, 731;
Michael De Boeck, EU Law and International Investment Arbitration. The Compatibility of ISDS in Bilateral Treaties (BITs) and the Energy Charter Treaty (ECT) (Brill 2022) 101 et seq;
Johannes Tropper, ‘An inter se Modification of the ECT to Exclude Intra-EU Arbitration -How Can it Work?’ (Kluwer Arbitration Blog, 2023) accessed 23 July 2025.
Article 16 concerns the relationship between coexisting treaties within the meaning of Article 30 of Vienna Convention on the Law of Treaties. Pursuant to paragraph 5 of this Article, rules on the precedence between coexisting treaties are without prejudice to modification. Cécile Rapoport, ‘Moderniser ou quitter le Traité sur la Charte de l’énergie: quels enjeux pour l’Union européenne et son order juridique ?’ (2023) 1 RAE 145, 149–50.
Kingdom of Belgium, Press Release, ‘Energy Charter Treaty: Member States Sign Declaration and Initial Inter Se Agreement Clarifying Non-applicability of ECT Arbitration Provisions Intra-EU’ (24 June 2024) accessed 23 July 2025. As an obligation arising from the principle of sincere cooperation to ensure effective implementation of EU law, the Member States had therefore the obligation to eliminate incompatibilities of international agreements with the EU legal order. The obligation to eliminate incompatibilities concerns international agreements concluded by the Member States before their accession to the EU (Art 351 TFEU) as well as incompatibilities occurring after the entry into force of an international agreement concluded by the Union or as mixed agreement.
Panos Koutrakos, EU International Relations Law (Hart Publishing 2015) 321 et seq.
European Commission, Proposal for a Decision of the European Parliament and the Council, on the Adoption by the Union of the Agreement on the Interpretation and Application of the Energy Charter Treaty between the European Union, the European Atomic Energy Community and their Member States, COM(2024) 257 final (2 July 2024) accessed 23 July 2025;
Decision (EU) 2025/1904 of the European Parliament and of the Council [10 September 2025] OJ L 19.09.2025.
During the negotiation process, as the reform of Article 26 ECT was not included in the list of areas for negotiation, the Court of Justice, in its Opinion 1/20, rejected as inadmissible Belgium’s request concerning the interpretation of the compatibility of Article 26 TEC with the autonomy of the EU. CJEU, Opinion 1/20 Draft Modernised Energy Charter Treaty [2022] ECLI:EU:C:2022:485. Alan Dashwood, ‘Komstroy and Opinion 1/20 – Curious and Curiouser’ (2022) 59 CMLR 51, 57.
Green Power Partners K/S and SCE Solar Don Benito APS v Kingdom of Spain, SCC Case No V2016/135.
Ingle and Sullivan (n 46) 274.
Nikos Braoudakis, Rosanne Craveia and Clémentine Baldon, ‘Neutralising the ECT Sunset Clause Inter Se’ (2024) 39(2) ICSID Rev 367 accessed 23 July 2025.
European Commission, Proposal for a Council Decision on the Position to Be Taken on Behalf of the European Union in the 33rd Meeting of the Energy Charter Conference, COM/2022/521 final (5 October 2022).
Marc Blanquet, L’article 5 du Traité C.E.E, (LGDJ 1994) 136 et seq.
The obligation not to jeopardise unity in external representation seems to be a more important constraint on the Member States, as it relates to the Union’s objective of actorness, irrespective of any concrete limitation of the Member States’ competence. In PFOs (n 47) the Advocate General referred to the obligation to facilitate the exercise of the Union’s competence, given that Sweden had expressed an individual position while the Council had not yet reached a common position. Opinion of AG Maduro, Case C-246/07 Commission v Sweden (PFOs) [2009] ECLI:EU:C:2009:589, paras 47, 58–59. However, the Court of Justice referred to the obligation not to jeopardise unity. CJEU (n 47) paras 103–04.
Peter Van Elsuwege, ‘The Duty of Sincere Cooperation and Its Implications for Autonomous Member State Action in the Field of External Relations’ in Marton Varju and Veronika Czina (eds), Between Compliance and Particularism (Springer 2019) 283, 291.
CJEU, Joined Cases 3, 4 and 6–76 Cornelis Kramer and others [1976] ECLI:EU:C:1976:114, para 45.
Article 194 (1) TFEU reads: 1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: (a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union; (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and (d) promote the interconnection of energy networks.
CJEU, Case 848/19 P Germany v Commission [2021] ECLI:EU:C:2021:598, para 49.
Federico Casolari, ‘The Odd Couple: A Legal Reflexion on the Interaction between Loyalty and Solidarity in the EU Legal System’ (2023) 2 Nordic Journal of European Law 84, 93.
It could be argued that the reduced Union is exercising a shared competence directly in the external field, via the approval of the modernised ECT. However, the establishment of an enhanced cooperation is dependent on a specific procedure, requiring the approval of the Council. See Articles 329–330 TFEU.
European Parliament, European Parliament Resolution of 24 November 2022 on the Outcome of the Modernisation of the Energy Charter Treaty, P9_TA(2022)0421 (24 November 2022)
European Commission, Proposal for a Council Decision on the Union Withdrawal from the Energy Charter Treaty, COM(2023) 447 final (7 July 2023).
CJEU, Case C-246/07 (n 58).
CJEU, Case C-28/12 Commission v Council [2015] ECLI:EU:C:2015:282, para 55.
It is suggested that a partial mixed agreement is based on the fact that the Union and its Member States each act exclusively within their spheres of competence. See Laurens Ankersmit (n 32) 10;
CJEU, Opinion 1/19 (n 29) paras 259–60. This argument confirms the absence of an obligation of the Member States to ratify a mixed agreement, that could derive from the principle of sincere cooperation: if the Memher States do not act in the sphere of EU competence, the Union cannot impose on the Member States the ratification of a mixed agreement as an obligation to act on behalf of the Union.
Nanette Neuwahl, ‘Editorial Comment’ (2018) 23 European Foreign Affairs Review 145, 148.
The obligation to facilitate the exercise of the Union’s competence through the conclusion of a mixed agreement, as well as the obligation to refrain from jeopardizing the Union’s objectives, are in the case of ratification of a mixed agreement best endeavors obligations, rather than obligations of result. Marcus Klamert (n 47) 203;
Guillaume Van Der Loo and Ramses Wessel, ‘The Non-Ratification of Mixed Agreements: Legal Consequences and Solutions’ (2017) 54 CMLR 744–45. The obligation to refrain from jeopardizing the Union’s objectives also found expression in the duty du remain silent, to refrain from adopting an individual position.
See CJEU, Case C-246/07 (n 47).
Andrés Delgado Casteleiro and Joris Larik, ‘The Duty to Remain Silent: Limitless Loyalty in EU External Relations?’ (2011) 36 E L Rev 524–41. However, the duty to remain silent is an obligation to refrain, while the ratification of a mixed agreement requires taking action. Ankersmit (n 32) 9.
CJEU, Case C-28/12 (n 71).
CJEU, Opinion 1/19 (n 29) paras 249, 274.
Panos Koutrakos and Viktorija Soneca, ‘The Future of the Istanbul Convention Before the CJEU’ in Levrat and others (n 29) 189, 200–04.
Strategic Partnership Agreement between the European Union and its Member States, of the One Part, and Japan, of the Other Part [24 August 2018] OJ L 216, 4, art 45.
Schaeffer and Odermatt, (n 40) 145.
Andrés Delgado Casteleiro and Cristina Contartese, ‘International Responsibility of the EU and/or its Member States in International Agreements’ in Levrat and others (n 29) 171, 176 et seq.
Marise Cremona, ‘Disconnection Clauses in EU Law and Practice’ in Hillion and Koutrakos (n 49) 160.
Withdrawal of the UK from bilateral mixed agreements was necessary because of the bilateral structure, while in multilateral mixed agreements the UK continued to be contracting party with adaptations as to the exercise of participation rights. Christine Kaddous and Habib Badjinri Touré, ‘The Status of the United Kingdom Regarding EU Mixed Agreements after Brexit’ in Levrat and others (n 29) 271, 277.
Member States can participate in international agreements falling under the Union’s exclusive competence if so empowered by the Union. CJEU, Case C-45/07 Commission v Greece [2009] ECLI:EU:C:2009:81, paras 30–31;
CJEU, Case C-399/12 Germany v Council (OIV) [2014] ECLI:EU:C:2014:2258, para 52;
CJEU, Case C-24/20, Commission v Council (Accession to the Geneva Act) [2022] ECLI:EU:C:2022:911, paras 99–102.
Marise Cremona, ‘Member States Agreements as Union Law’ in Enzo Cannizzaro, Paolo Palchetti and Ramses Wessel (eds), International Law as Law of the European Union (Martinus Nijhoff 2012) 291.
European Commission, Non-paper, Next Steps as Regards the EU, Euratom and Member States’ Membership in the Energy Chater Treaty accessed 23 July 2025.
European Commission, Non-paper, Next Steps as Regards the EU, Euratom and Member States’ Membership in the Energy Chater Treaty (n 21).
Ankersmit (n 32) 8.
Council of the EU, Press Release, ‘Energy Charter Treaty: EU Notifies Its Withdrawal’ (27 June 2024) ;
International Energy Charter, Press Release, “Written Notification of Withdrawal from the Energy Charter Treaty both accessed 23 July 2025.
Council Decision (EU) 2024/1644 of 30 May 2024 on the Position to Be Taken on Behalf of the European Union in the Energy Charter Conference [6 June 2024] OJ L 2024/1644;
Article 1 of the Council’s Decisions 2024/1644 and 2024/1645.
ibid, art 2.
Energy Charter Secretariat (n 9).
Council Decision (EU) 2024/3086 (n 15).
Council Decision (Euratom) 2024/3030 (n 15).
International Energy Charter, Press Release, ‘The Energy Charter Conference Adopts Decisions on the Modernisation of the Energy Charter Treaty’ (3 December 2024) accessed 23 July 2025.
Johannes Tropper, ‘The ECT’s Long Road to Modernisation: A Story of Delays and Miscalculations’ (Völkerrechtsblog, 19 December 2024) accessed 23 July 2025.
Criticism of the sunset clause and its potential annulment on the grounds of conflict with climate objectives is beyond the scope of this paper.
On 18 June 2025, the agreement was approved by the European Parliament (P10_TC1-COD(2024)0148.
Braoudakis, Craveia and Baldon (n 59) 367.
Supra under Section 3.1.
Philipp Kehl and Sebastian Wuschka, ‘The Energy Charter Treaty at a Tipping Point – Modernization Efforts, Withdrawal Plans and their Legal Consequences’ (ZEuS 1/2024) 60, 85–86 accessed 23 July 2025.
Cremona (n 80) 315.
Regulation (EU) No 1219/2012 of the European Parliament and of the Council of 12 December 2012 Establishing Transitional Arrangements for Bilateral Investment Agreements between Member States and Third Countries [20 December 2012] OJ L 351, 40.
Paolo Palchetti and Luca Pantaleo, ‘The Withdrawal of the EU and the Member States from the Energy Charter Treaty: Who Will Bear International Responsibility for Breaches of the Treaty?’ (18 July 2023) accessed 23 July 2025.