Green Power Partners v Spain: 'Upholding the intra-EU objection to jurisdiction in the ECT context-a swerve in the search for the line of two planes'

• Published in: ICSID review 2024-03, Vol.38 (3), p.508-517
• Main Author: Fanou, Maria
• Format: Magazinearticle
• Language: English
• Subjects: Arbitration and award; Court of Justice of the European Communities; Dispute resolution (Law); International law
• ISSN: 0258-3690; 2049-1999
• DOI: 10.1093/icsidreview/siad029

Fifteen years have passed since the first time a respondent (EU Member) State disputed the jurisdiction of a tribunal in a case brought against it by an investor from another EU Member State invoking the intra-EU nature of the dispute. Subsequently, 'intra-EU jurisdictional objections' have been routinely raised, with the European Commission keenly submitting amicus curiae briefs as a non-disputing party (NDP). They have been equally, routinely and consistently rejected by tribunals. The Achmea judgment of the Court of Justice of the EU (CJEU) gave a new shorthand parlance to the controversy (the ''Achmea' objection'), and the debate continued in even more heated terms and 'binary logics'. The overarching language of the CJEU made everyone ask: does Achmea apply to other types of disputes, and, importantly, intra-EU disputes based on the Energy Charter Treaty (ECT)? Lo and behold, the European Commission categorically confirmed that, in their view, it would apply. EU Member States, however, agreed, in three separate political declarations, that they disagree on Achmea's impact on intra-EU ECT disputes. In their subsequent Agreement for the Termination of Bilateral Investment Treaties (BITs), intra-EU ECT proceedings were explicitly excluded from its scope. While tribunals continued to reject the Achmea objection, on the 'EU front', the CJEU seized the opportunity to opine (in the context of an extra-EU case, and thus inevitably, but still lamentably, in the form of an obiter dictum), that the investor-State dispute settlement (ISDS) mechanism provided for in Article 26 ECT is not applicable in intra-EU disputes ('Komstroy').