Opinion of the Advocate General — ECLI:EU:C:2021:164
Date: 2021-03-03
Language of the case: French
Subject matter: Energy;Environment;External relations;Provisions governing the Institutions
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
8 October 2019 
Referring court: 
Cour d’appel de Paris (France) 
Date of the decision to refer: 
24 September 2019 
Appellant: 
Republic of Moldova 
Respondent: 
Komstroy, a company the successor in law to the company 
Energoalians 
  
I. Subject matter of the main proceedings 
Assessment of the jurisdiction of an ad hoc arbitral tribunal established pursuant 
to Article 26(3) of the Energy Charter Treaty (‘the ECT’) with a view to resolving 
a financial dispute relating to the payment of a debt linked to a contract for the 
sale of electricity. The arbitral decision upholding the respondent’s application 
was annulled by the cour d’appel de Paris (Court of Appeal, Paris) on the ground 
that the arbitral tribunal had wrongly declared itself to have jurisdiction. The Cour 
de cassation (Court of Cassation) set that judgment aside on the ground that the 
Cour d’appel had interpreted the concept of ‘investment’ within the meaning of 
Article 1.6 of the ECT too restrictively. The outcome of the dispute and, 
consequently, the jurisdiction of the arbitral tribunal are therefore dependent, in 
essence, on the interpretation of that concept. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-741/19 
 
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II. Subject matter and legal basis of the request 
The Cour d’appel de Paris, to which the Cour de cassation has remitted the case, 
takes the view that the Court of Justice has jurisdiction over questions of 
interpretation relating to the provisions of the ECT under Article 267 TFEU. The 
criterion for application of that article is based exclusively on the classification of 
the act the interpretation of which is sought. Mixed agreements concluded by the 
European Union and the Member States with third parties constitute acts adopted 
by the institutions, bodies, offices or agencies of the European Union (judgments 
of 30 September 1987, Demirel, 12/86, EU:C:1987:400, and of 18 July 2013, 
Daiichi Sankyo and Sanofi-Aventis Deutschland, C-414/11, EU:C:2013:520). 
Since it is required to apply the provisions of the ECT in order to determine 
whether the arbitral tribunal has jurisdiction, the national court is entitled to refer 
those questions of interpretation to the Court of Justice with a view to ensuring the 
uniform application of EU law. 
III. Questions referred for a preliminary ruling 
‘(1) Must Article 1.6 of the Energy Charter Treaty be interpreted as meaning that 
a claim which arose from a contract for the sale of electricity and which did not 
involve any contribution on the part of the investor in the host State can constitute 
an “investment” within the meaning of that article? 
(2) Must Article 26(1) of the Energy Charter Treaty be interpreted as meaning 
that the acquisition, by an investor of a Contracting Party, of a claim established 
by an economic operator which is not from one of the States that are Parties to that 
Treaty constitutes an investment? 
(3) Must Article 26(1) of the Energy Charter Treaty be interpreted as meaning 
that a claim held by an investor, which arose from a contract for the sale of 
electricity supplied at the border of the host State, can constitute an investment 
made in the area of another Contracting Party, in the case where the investor does 
not carry out any economic activity in the territory of that latter Contracting 
Party?’ 
IV. Legal context 
1. Provisions of the Energy Charter Treaty 
‘Article 1: Definitions 
As used in this Treaty: 
… 
REPUBLIC OF MOLDOVA 
 
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6. “Investment” means every kind of asset, owned or controlled directly or 
indirectly by an investor and includes: 
(a) tangible and intangible, and movable and immovable, property, and any 
property rights such as leases, mortgages, liens, and pledges; 
(b) a company or business enterprise, or shares, stock, or other forms of equity 
participation in a company or business enterprise, and bonds and other debt 
of a company or business enterprise; 
(c) claims to money and claims to performance pursuant to [a] contract having 
an economic value and associated with an investment; 
(d) intellectual property; 
(e) returns; 
(f) any right conferred by law or contract or by virtue of any licences and 
permits granted pursuant to law to undertake any economic activity in the 
energy sector. 
A change in the form in which assets are invested does not affect their character as 
investments and the term “investment” includes all investments, whether existing 
at or made after the later of the date of entry into force of this Treaty for the 
Contracting Party of the investor making the investment and that for the 
Contracting Party in the area of which the investment is made (hereinafter referred 
to as the “effective date”) provided that the Treaty shall only apply to matters 
affecting such investments after the effective date. 
“Investment” refers to any investment associated with an economic activity in the 
energy sector and to investments or classes of investments designated by a 
Contracting Party in its area as “Charter efficiency projects” and so notified to the 
Secretariat. 
(7) “Investor” means: 
(a) with respect to a Contracting Party: 
(i) a natural person … 
(ii) a company or other organisation organised in accordance with 
the law applicable in that Contracting Party; 
… 
(8) “Make Investments” or “making of investments” means establishing new 
investments, acquiring all or part of existing investments or moving into 
different fields of investment activity. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-741/19 
 
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… 
(10) “Area” means with respect to a State that is a Contracting Party: 
(a) the territory under its sovereignty …’ 
‘Article 26 — Settlement of disputes between an investor and a Contracting Party 
(1) Disputes between a Contracting Party and an investor of another Contracting 
Party relating to an investment of the latter in the area of the former, which 
concern an alleged breach of an obligation of the former under Part III shall, if 
possible, be settled amicably. 
(2) If such disputes cannot be settled according to the provisions of paragraph 
(1) …, the investor party to the dispute may choose to submit it for resolution: 
(a) to the courts or administrative tribunals of the Contracting Party to the 
dispute; 
… 
(c) in accordance with the following paragraphs of this Article. 
(3) (a) … to … arbitration …’ 
2. National provision 
Article 1520 of the code de procédure civile (Code of Civil Procedure): 
‘An action for annulment [against an international arbitral award delivered in 
France] is available only in the following cases: 
1. Where the arbitral tribunal wrongly declared itself to have or not to have 
jurisdiction; 
…; or 
5. Where the recognition or enforcement of the award is contrary to 
international public policy.’ 
V. Presentation of the facts and procedure in the main proceedings 
1 Ukraine and the Republic of Moldova are former Soviet republics with 
interconnected electricity networks. On 1 January 1995, a contract was signed for 
the parallel and reciprocal operation of the electricity networks of the two States. 
2 Contract No 01/01 was concluded on 1 February 1999 between the following 
three companies: Ukrenergo, a Ukrainian electricity generator, Energoalians, a 
REPUBLIC OF MOLDOVA 
 
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Ukrainian private-law company specialising in the generation and distribution of 
electricity; and Moldtranselectro, a Moldovan public undertaking established in 
1997. Under that contract, Energoalians purchased electricity from Ukrenergo 
with a view to exporting it to Moldova; the volumes of electricity to be supplied 
were agreed each month between Ukrenergo and Moldtranselectro. 
3 By Contract No 24/02, signed in Kiev on 24 February 1999, Energoalians, 
Derimen, a company registered in the British Virgin Islands, and Moldtranselectro 
agreed that: 
– Energoalians, as supplier, would supply electricity to Derimen; 
– Derimen, as purchaser, would pay the price of the electricity to Energoalians; 
– Moldtranselectro, as ‘beneficiary’, would submit to Ukrenergo, before the 25th 
of each month, an order form stating the quantity of electricity required for the 
following month; 
– Ukrenergo would then supply the electricity subject to the DAF Incoterms 
1990, that is to say, to the border between Ukraine and Moldova, on the 
Ukrainian side; 
– Derimen would recover from Moldtranselectro the price of the electricity sold. 
4 That contract, which was initially concluded for the year 1999, and Contract 
No 01/01 of 1 February 1999 were renewed up to 31 December 2000. For each 
month of supply, Energoalians was required to collect the payment from Derimen 
within 80 days of delivery, while Derimen was required to collect the payment 
from Moldtranselectro. The prices applicable to the payments were fixed by 
various amendments to Contract No 24/02. Under the general terms of those 
amendments and depending on the month, the price paid by Moldtranselectro was 
approximately twice that paid by Derimen to Energoalians. 
5 Electricity was supplied over the course of the two years (1999 and 2000), with 
the exception of May to July 1999. Moldtranselectro paid Derimen for part of the 
year 1999 (January and part of February 1999) and for the whole of the year 2000. 
The remainder of the electricity supplied in 1999 has remained unpaid. On 
1 January 2000, the accumulated debt owed by Moldtranselectro to Derimen 
amounted to USD 18 132 898.94. However, no debt was owed to Energoalians, 
since Derimen paid it for all the electricity supplied. 
6 By contract signed in Kiev on 30 May 2000, Derimen transferred to Energoalians 
the claim which it held against Moldtranselectro under Contract No 24/02. 
7 Moldtranselectro settled its debt in part and reduced Energoalians’ claim in its 
regard to USD 16 287 185.94. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-741/19 
 
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8 Energoalians attempted unsuccessfully to obtain payment of that sum by bringing 
proceedings before the Moldovan courts and subsequently the Ukrainian courts. 
9 Taking the view that certain interventions by the Republic of Moldova constituted 
serious breaches of the undertakings made under the ECT, Energoalians initiated 
an ad hoc arbitration procedure. 
10 By a majority decision given in Paris on 25 October 2013, the ad hoc arbitral 
tribunal, composed of three arbitrators, declared itself to have jurisdiction. It took 
the view that the Republic of Moldova had failed to comply with its international 
undertakings and ordered it to pay the total amount of 592 880 395 Moldovan lei 
to Energoalians on the basis of the ECT. 
11 According to the arbitral tribunal, Energoalians held an ‘investment’ within the 
meaning of the ECT in respect of the public undertaking Moldtranselectro, since 
the ECT applied a rather broad definition of that concept. It relied both on legal 
literature and on other arbitral decisions. In its opinion, that term is part of an 
‘overall and neutral concept’ and extends to ‘all types of contributions’. It 
observed that the case brought before it was squarely described in Article 1.6(c) of 
the ECT. 
12 The president of the arbitral tribunal expressed a dissenting opinion as regards the 
jurisdiction of that tribunal. He took the view that the normal meaning of the word 
‘investment’ means an investment of capital or of effort, with the expectation of a 
certain return, and that that concept presupposes some delay before that return is 
realised (that is, a term) and some uncertainty about the amount of the return (that 
is, a commercial risk). 
13 The Republic of Moldova brought an action for annulment against that decision 
on 25 November 2013. 
14 By act of 6 October 2014, Komstroy, a company governed by Ukrainian law, 
became the successor in law of Energoalians. 
15 By judgment of 12 April 2016, the Cour d’appel de Paris annulled the decision. It 
held that the arbitral tribunal had wrongly declared itself to have jurisdiction on 
the ground that the claim to which the dispute related was concerned solely with 
the sale of electricity. Since there had been no contribution, there could be no 
investment within the meaning of the ECT. 
16 On appeal on a point of law lodged by Komstroy, by judgment of 28 March 2018 
delivered pursuant to Article 1520 of the Code of Civil Procedure, the Cour de 
cassation set aside the judgment of the Cour d’appel de Paris. 
17 The Cour de cassation found that the provisions of the ECT do not specify the 
criteria which characterise an investment but rather simply list, in a non-
exhaustive fashion, assets regarded as being investments. It inferred from that fact 
REPUBLIC OF MOLDOVA 
 
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that the Cour d’appel had infringed the ECT by adding to it a condition for which 
it did not provide. 
18 It referred the case back to the Cour d’appel de Paris, sitting in a different 
composition. 
19 The Republic of Moldova claims that the Cour d’appel should annul the arbitral 
decision of 25 October 2013 on the ground that the arbitral tribunal wrongly 
declared itself to have jurisdiction and that recognition or enforcement of the 
decision would be contrary to international public policy. In the alternative, it asks 
that a request for a preliminary ruling concerning the interpretation of the ECT be 
submitted to the Court of Justice. 
20 Komstroy, the successor in law to Energoalians, contends that the Cour d’appel 
should dismiss the action for annulment brought by the Republic of Moldova and 
reject all of the latter’s claims. 
VI. The essential arguments of the parties in the main proceedings 
21 The Republic of Moldova claims that the dispute does not relate to an investment 
within the meaning of the ECT and that, even assuming that there were an 
investment, that investment would have been made neither by an undertaking of a 
Contracting State nor in the area of Moldova. 
1. The existence of an investment within the meaning of the ECT 
22 (a) The Republic of Moldova submits that the claim acquired by Energoalians, 
which arose from a contract for the sale of electricity, is not an ‘investment’ 
within the meaning of the ECT. That Treaty refers to the ordinary meaning of the 
word ‘investment’, which requires that there be a contribution. Whilst it is true 
that the definition in the ECT does refer to ‘every kind of asset’ owned by an 
investor, the list of examples given by way of illustration demonstrates that not 
‘every asset’ necessarily constitutes an investment. 
23 Having regard to its ordinary meaning and in the light of the objectives of the 
ECT set out in its preamble, the term ‘investment’ is necessarily linked to the 
action by an investor of contributing or transferring capital or other resources 
needed to develop and maintain an investment activity. It is this meaning which 
was adopted by the president of the arbitral tribunal in his dissenting opinion and 
which reflects arbitral case-law. 
24 It observes that Energoalians’ claim against Moldtranselectro, which arises from 
Contract No 24/02, did not involve a contribution, that that contract to which the 
claim is related is not itself an investment since it concerns solely the sale of 
electricity, and that Derimen’s activity consisted in factoring services, which are 
purely financial transactions. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-741/19 
 
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25 (b) The respondent contends in response that the ECT defines the concept of 
‘investment’ broadly, such that any asset controlled or owned by an investor may 
come within that concept. The electricity financing transaction from which 
Energoalians’ claim arises is indeed a transaction ‘associated with an economic 
activity in the energy sector’, within the meaning of Article 1.6 of the ECT, 
because it enabled power to be supplied to Moldtranselectro. 
26 Derimen’s involvement, combined with Moldtranselectro’s obligation to pay to 
Derimen the amounts owed in respect of the energy supply, is an integral 
component of the investment transaction consisting in the supply of energy to 
Moldova. 
2. The identity of the investor 
27 (a) The Republic of Moldova submits that that investment was not made by 
Energoalians itself. An investor cannot submit for arbitration a dispute relating to 
an investment which he himself has not made, since the expression ‘making an 
investment’ is defined in Article 1.8 of the ECT. 
28 It claims that, by acquiring Derimen’s claim, Energoalians did not acquire an 
‘existing investment’ within the meaning of the ECT. Since the British Virgin 
Islands, being the place where Derimen is registered, are not a Contracting Party 
to the ECT, that company cannot enjoy the status of investor within the meaning 
of the ECT, and its assets cannot therefore constitute ‘investments’ within the 
meaning of that Treaty. That conclusion is consistent with the adage nemo plus 
juris ad alium transferre potest quam ipse habet (no one can transfer to another 
more rights than he himself has). 
29 (b) The respondent replies that the Republic of Moldova is attempting to add 
to the ECT a condition which does not exist, namely that, in order to benefit from 
the protection of the ECT, an investor must acquire the investment from a 
company which is itself ‘protected’ by that Treaty. The existence of an investment 
may be inferred from ownership of an asset associated with an economic activity 
in the energy sector, regardless of the manner in which that investment was 
acquired. It is irrelevant whether or not Energoalians made the investment since it 
controls it. 
30 The respondent also observes that only the French-language version of Article 26 
of the ECT states that the investment must be ‘réalisé’ (‘made’) by the investor. 
However, the Russian-language version of the ECT was the authentic language 
version between the parties in the arbitral proceedings. 
3. The criterion of territoriality 
31 (a) The Republic of Moldova points out that Article 26(1) includes a criterion 
of territoriality, which makes the jurisdiction of the arbitral tribunal subject to the 
condition that the investment was made by an investor ‘in the area’ of the host 
REPUBLIC OF MOLDOVA 
 
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State, within the meaning of Article 1.10 of the ECT. It submits that no 
investment was made ‘in the area’ of Moldova, since the electricity was supplied 
before the border with Moldova and the companies Energoalians and Derimen 
were not carrying out any economic activity in the energy sector on Moldovan 
territory. It adds that the acquisition of an enforceable claim cannot itself be 
regarded as constituting an investment made ‘in the area’ of Moldova by 
Energoalians and Derimen, since the only consideration paid by Energoalians for 
that acquisition had to be paid to Derimen, an entity located in the British Virgin 
Islands. 
32 (b) The respondent contends in response that the condition of territoriality is 
satisfied. There are a very significant number of territorial connecting factors to 
Moldova. Its claim over Moldtranselectro has its origin in the supply of electricity 
on the territory of Moldova, and the complex investment operation is solely 
concerned with the supply of electricity to Moldtranselectro, a Moldovan public 
company. 
33 It further states in response that the investment claimed by Energoalians is the 
claim held over Moldtranselectro and not the underlying contract for the supply of 
electricity, and that the connection to the area of Moldova cannot be excluded 
solely on the basis of the presence of the DAF term in the contract for the supply 
of electricity. 
VII. Succinct presentation of the reasoning in the reference for a 
preliminary ruling 
34 The Cour d’appel de Paris takes the view that the outcome of the dispute depends 
on the interpretation of the concept of ‘investment’ within the meaning of 
Article 1.6 of the ECT and, where necessary, of the words ‘make investments’ or 
‘making of investments’ within the meaning of Article 1.8 of the ECT. 
35 With regard to territoriality, it takes the view that the question raised is whether 
the claim, which arose from a contract for the sale of electricity, can constitute an 
investment made in the area of another Contracting Party within the meaning of 
Article 26(1) of the ECT, in the absence of any economic activity undertaken by 
the holder of the claim within the territory of that Contracting Party. 
36 It considers that the ECT is a mixed agreement, concluded by the European Union 
and the Member States with third parties, and that the Court of Justice has 
jurisdiction, under Article 267 TFEU, over questions of interpretation raised by 
that Treaty. The Cour d’appel de Paris, which has to apply the provisions of the 
ECT in order to assess the jurisdiction of the arbitral tribunal, is entitled to refer 
such questions of interpretation to the Court of Justice in order to ensure the 
uniform application of EU law.