Previous Solar Wars articles have noted that tribunals hearing Energy Charter Treaty (ECT) claims by an investor from one EU Member State against another EU state had consistently held that the decision of the Court of Justice of the European Union (CJEU) in Slovak Republic v Achmea did not apply to ECT claims.
Claims against EU Member States by disappointed energy sector investors have been a major growth industry in recent years. As regular readers will know, Spain alone has faced more than 30 claims under the Energy Charter Treaty (ECT) by investors in its renewables sector who lost out following the government’s abrupt about-turn on generous rewards for solar generation. All these claims – some running to billions of Euros -- have been taken to international arbitration under ECT Article 26. But increasingly the European Commission has challenged the jurisdiction of arbitral tribunals in intra-EU investment disputes – that is, where an EU investor claims against an EU Member State – on the basis that these claims are incompatible with EU law.