Opinion 1/20: Belgium’s request is inadmissible but CJEU still confirms its decision in Komstroy that intra-EU ECT arbitration is incompatible with EU law
On 16 June 2022, the Court of Justice of the European Union (“CJEU”) published Opinion 1/20, concluding that Belgium’s request for an opinion on the draft modernised Energy Charter Treaty’s (“ECT”) compatibility with EU law is inadmissible. The Court’s Opinion was in response to Belgium’s request for an opinion submitted on 2 December 2020, in which Belgium had asked whether the draft modernised ECT is compatible with EU law.
Although refusing to opine directly on Belgium’s questions, the Court highlighted that it had already answered the question of the compatibility of Article 26 of the ECT with European Union (“EU”) law in disputes between investors of one EU Member State and another EU Member State (“intra-EU disputes”). In doing so, the CJEU effectively confirmed its earlier judgment in Case C-741/19, Republic of Moldova v. Komstroy LLC (see our client alert here) which had – even if as an obiter dictum – expressly dealt with the arbitration provisions in the ECT as currently in force.
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