Belgium requests an opinion on the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty

Belgium submits a request to the Court of Justice of the European Union for an opinion on the compatibility of the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty with the European Treaties.

By submitting this question, Belgium is seeking legal clarification from the Court on the compatibility under Union law of the dispute settlement mechanism provided for in the draft modernised Energy Charter Treaty, in view of the fact that this mechanism could be interpreted as allowing its application intra-European Union, i.e. between an investor who is a national of EU Member States only and an EU Member State.  

Belgium does not wish to defend a pre-established opinion on the matter but considers that, in view of the uncertainties and divergences which have arisen between Member States on whether or not the lessons of the Court's Achmea judgment[1] apply to the Treaty in question, a clear legal response is necessary to prevent any complications which might arise from possible subsequent legal challenges.

Since the purpose of this request for an opinion is to provide clarity and legal certainty, Belgium is putting the question to the Court in a neutral manner. The submission of this request follows a decision by the intra-Belgian coordination body for European matters, the DGE, which brings together representatives of the federal government and the governments of the federated entities.

 

[1] The Achmea judgment of the Court of 6 March 2018 in Case C-284/16 states that the arbitration clause included in the agreement concluded between the Netherlands and Slovakia on the protection of investments infringes the autonomy of Union law and is therefore incompatible with it.