Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 33rd meeting of the Energy Charter Conference
Date: 2022-10-05
Institutions: Directorate-General for Energy, European Commission
Subjects: ECSC, EU energy policy, European Energy Charter, energy cooperation, environmental policy, international charter, multilateral agreement, revision of an agreement

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 5.10.2022  COM(2022) 521 final 2022/0324 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the 33rd meeting of the Energy Charter Conference  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  the  Union’s 
behalf in the 33rd meeting of the Energy Charter Conference in connection with the envisaged 
adoption of proposed amendments to the Energy Charter Treaty (CC 760) and the approval of 
(i)  proposed  modifications  and  changes  to  the  Annexes  to  the  Energy  Charter  Treaty  (CC 
761), (ii) proposed changes to Understandings, Declarations and Decisions (CC 762), and (iii) 
a  decision  regarding  the  entry  into  force  and  provisional  application  of  amendments  to  the 
Energy Charter Treaty and changes/modifications to its Annexes (CC 763). The adoption of 
the amendments  to  the Energy Charter Treaty and the additional approvals  are to  be passed 
simultaneously by the Energy Charter Conference. 

The Energy Charter Treaty 

The Energy Charter Treaty (ECT) is a multilateral trade and investment agreement applicable 
to the energy sector that was signed in 1994 and entered into force in 1998. The ECT contains 
provisions on investment  protection, trade and transit in  energy materials and products,  and 
dispute  settlement  mechanisms.  The  ECT  also  sets  up  a  framework  for  international 
cooperation in the energy field between its 54 Contracting Parties. The European Union is a 
party  to  the  ECT1,  together  with  Euratom,  26  EU  Member  States2,  as  well  as  Japan, 
Switzerland,  Turkey  and  most  countries  from  the  Western  Balkans  and  the  former  USSR, 
with the exceptions of Russia3 and Belarus4.  

The Energy Charter Conference 

The  Energy  Charter  Conference  is  the  governing  and  decision-making  body  for  the  Energy 
Charter process and was established by the ECT. All states or Regional Economic Integration 
Organisations (such as the EU) who have signed or acceded to the ECT are members of the 
Conference,  which  meets  on  a  regular  basis  to  discuss  issues  affecting  energy  cooperation 
among the ECT's signatories, to review the implementation of the provisions of the ECT and 
the  Protocol  on  Energy  Efficiency  and  Related  Environmental  Aspects,  and  to  consider 
possible  new  instruments  and  joint  activities  within  the  Energy  Charter  framework.  In 
particular,  the  Energy  Charter  Conference  adopts  texts  of  amendments  to  the  ECT  and 
approves modifications of, and technical changes to, the Annexes to the ECT. When voting on 
proposed  amendments  to  the  text  of  the  ECT,  the  Energy  Charter  Conference  passes  a 
decision to  adopt  the amendments by unanimity  vote  of the  Contracting  Parties present  and 
voting.  The  EU  has  a  number  of  votes  equal  to  the  number  of  its  Member  States  that  are 
Contracting Parties to the ECT, provided that the EU shall not exercise its right to vote if its 
Member States exercise theirs, and vice versa.  

1 

2 
3 

4 

Council  and  Commission  Decision  98/181/EC,  ECSC,  Euratom  of  23  September  1997  on  the 
conclusion,  by  the  European  Communities,  of  the  Energy  Charter  Treaty  and  the  Energy  Charter 
Protocol on energy efficiency and related environmental aspects (OJ L 69, 9.3.1998, pp. 1-116). 
All but Italy that unilaterally withdrew in 2015. 
The  extraordinary  Energy  Charter  Conference  of  24  June  2022  withdrew  the  observer  status  of  the 
Russian Federation. 
The extraordinary Energy Charter Conference of 24 June 2022 withdrew the observer status of Belarus 
and the provisional application of the ECT by Belarus. 

EN 

1 

  EN 

 
 
                                                 
The decisions to be taken at the Energy Charter Conference 

On 22 November 2022, during its 33rd meeting, the Energy Charter Conference is to take four 
decisions  related  to  the  modernisation  of  the  ECT.  These  decisions  will  be  taken 
simultaneously and their purpose is to:  

– 

– 

– 

– 

adopt the proposed amendments to the text of the ECT (CC 760); 

approve  the  proposed  modifications  and  changes  to  the  Annexes  to  the  ECT  
(CC 761); 

approve  the  proposed  changes  to  Understandings,  Declarations  and  Decisions  
(CC 762); and 

approve  the  decision  regarding  the  entry  into  force  and  provisional  application  of 
amendments  to  the  text  of  the  ECT  and  changes/modifications  to  its  Annexes  
(CC 763). 

In  the  absence  of  any  substantial  update  of  the  ECT  since  the  1990s,  the  ECT  became 
increasingly  outdated.  It  also  became  one  of  the  most  litigated  investment  treaties  in  the 
world, with EU Member States being the principle target of claims by investors, most of them 
based in other EU countries. As a result, a modernisation process was initiated in November 
2018.  The  Energy  Charter  Conference  first  approved  a  list  of  topics  for  discussion,  chiefly 
concerning provisions related to investment protection. The EU then proposed the removal of 
protections  for  investments  in  fossil  fuels,  in  order  to  bring  the  ECT  in  line  with  the  Paris 
Agreement. 

After  15  rounds  of  multilateral  negotiations  held  between  July  2019  and  June  2022,  an 
“agreement  in  principle”  to  close  negotiations  was  reached  at  the  extraordinary  Energy 
Charter Conference of 24 June 2022 in Brussels. The revised text of the ECT and its Annexes 
then  underwent  a  legal  revision  until  mid-August.  Thereafter,  the  final  draft  decisions  
(CC  760,  CC  761,  CC  762  and  CC  763)  containing  the  revised  texts  were  shared  on  19 
August  2022  with  all  Contracting  Parties,  including  the  EU,  Euratom,  and  all  EU  Member 
States that are Contracting Parties to the ECT.  

At the 33rd meeting of the Energy Charter Conference on 22 November 2022, the decisions 
related  to  the  modernisation  of  the  ECT  will  be  subject  to  a  unanimity  vote.  If  the  vote  is 
successful, i.e. if no Contracting Party raises an objection, the decisions for the modernisation 
of  the  ECT  will  be  considered  “adopted”  by  the  Energy  Charter  Conference.  This  adoption 
will  trigger  subsequent  processes  for  the  ratification,  provisional  application,  and  eventual 
entry into force of the various elements of the reform package.  

The  provisional  application  of  the  amendments  to  the  ECT  and  the  other  elements  of  the 
modernisation will be governed by the decision regarding the entry into force and provisional 
application of amendments to the text of the ECT and changes/modifications to its Annexes 
(CC  763).  In  line  with  this  decision,  the  modernisation  will  be  provisionally  applied  by  all 
Contracting Parties automatically as of 15 August 2023. However, any Contracting Party may 
deliver to the depositary (Portugal) before 23 February 2023 a declaration that it is not able to 
accept  the provisional  application of the  amendments to  the ECT, effectively  allowing each 
Contracting  Party  to  opt  out  from  provisional  application.  The  ECT  Secretariat  will  make 
such declarations public. Even if a Contracting Party initially makes such a declaration, it may 
at any time withdraw the declaration again, allowing it to apply the modernisation of the ECT 
provisionally at a later point in time. 

EN 

2 

  EN 

The present proposal for a decision under Article 218(9) TFEU seeks to establish the position 
to  be  adopted  on  the  Union’s  behalf  at  the  33rd  meeting  of  the  Energy  Charter  Conference 
regarding the decisions (CC 760, CC 761, CC 762 and CC 763) described above. 

At  the  same  time,  the  Commission  is  proposing  the  adoption  of  a  subsequent  agreement, 
within  the  meaning  of  Article  31(3)(a)  of  the  Vienna  Convention  on  the  Law  of  Treaties 
(VCLT), between the European Union, Euratom, and the Member States on the interpretation 
of  the  ECT.  That  agreement  should  include,  in  particular,  a  confirmation  that  the  ECT  has 
never, does not and will not apply intra-EU, that the ECT cannot serve as a basis for intra-EU 
arbitration proceedings, and that the sunset clause does not apply intra-EU. It should also set 
out  the  obligations  of  the  Member  States  in  the  event  that  they  are  involved  in  arbitration 
proceedings pursuant to a request based on Article 26 ECT. 

It  has  been  the  consistent  interpretation  of  the  EU  that  the  ECT  does  not  apply  to  disputes 
between a Member State and an investor of another Member State concerning an investment 
made by the latter in the first Member State. This interpretation was specifically confirmed by 
the Court of Justice of the European Union (CJEU) in its  Komstroy judgment5. Yet, arbitral 
tribunals  have  held  and  continue  to  hold,  that  they  are  not  bound  by  the  judgments  of  the 
CJEU. In order to prevent tribunals from continuing to accept jurisdiction in such disputes, it 
is  necessary  to  reiterate,  expressly  and  unambiguously,  the  authentic  interpretation  of  the 
ECT. The most appropriate way to do so is by means of an agreement within the meaning of 
Article 31(3)(a) VCLT. 

While  that  agreement  will  codify  the  interpretation  of  the  EU  and  its  Member  States  in  a 
separate treaty (something that is possible because of the bilateral nature of the obligations), 
the ECT modernisation will embed in the text itself and via a “for greater certainty” clause, 
the understanding of all Contracting Parties that its Article 26 does not apply intra-EU. Both 
elements will help to remove any ambiguity and eliminate present or future risks of intra-EU 
arbitration under the ECT with the necessary degree of legal certainty. 

Position to be taken on the Union’s behalf 

The Commission proposes to take, on behalf of the Union, at the 33rd meeting of the Energy 
Charter Conference on 22 November 2022, the positions described in points 1 to 4 below.  

Regarding the adoption of the proposed amendments to the text of the ECT (CC 760) 

The  proposed  amendments  to  the  text  of  the  ECT  (CC  760)  consist  of  substantial 
improvements that will effectively bring the ECT in line with modern standards of investment 
protection and EU positions in other fora (e.g. UNCITRAL6). The amendments will also bring 
the ECT  in  line with  the EU’s  approach to investment  protection in  its  recently  agreed free 
trade and investment agreements, as well as with EU energy and climate objectives, including 
the Paris Agreement. 

In particular, the amended ECT contains:  

– 

New  investment  protection  provisions,  in  line  with  modern  standards  and  EU 
positions,  reaffirming  the  right  of  Contracting  Parties  to  take  measures  to  achieve 
legitimate  policy  objectives  (“right  to  regulate”),  including  as  regards  the  fight 

5 
6 

Case C-741/19 Republic of Moldova v. Komstroy LLC, 2 September 2021. 
United Nations Commission on International Trade Law. 

EN 

3 

  EN 

                                                 
– 

– 

– 

– 

– 

against climate change; Only investors with real economic interest will be protected, 
with no protection being afforded to mailbox companies7; 

New  provisions  on  dispute  settlement,  protecting  Contracting  Parties  from 
frivolous  claims,  foreseeing  security  for  costs,  and  introducing  a  high  level  of 
transparency to the proceedings; 

New  provisions  on sustainable  development,  in  particular  on  climate  change,  the 
clean  energy  transition  and  the  Paris  Agreement,  effectively  incorporating  the 
commitments  of  the  Paris  Agreement  into  the  ECT,  and  providing  an  actionable 
mechanism  in  case  of  misalignment,  in  a  way  that  was  never  achieved  before  in  a 
multilateral investment treaty; 

In  addition, 
integration 
the  EU  secured  provisions  for  regional  economic 
organisations (such as the EU), expressly confirming that it is not possible to bring 
intra-EU investment arbitration under the ECT8, in line with the case law of the 
Court of Justice of the EU9;  

Substantial clarifications regarding to transit-related provisions  to  factor in  the 
requirements of integrated energy markets with third party access rights, such as in 
the EU, without creating new obligations for the EU10; 

An updated definition of economic activity in the energy sector, which, together 
with Annexes EM/EM I, EQ/EQ I and NI (see point 2 below), allows the EU to align 
investment protection in the EU with the EU’s energy and climate objectives. 

The  adoption  of  the  amendments  to  the  text  of  the  ECT  does  not,  in  principle,  have  legal 
effects. Under international law, it is not equivalent to a signature but to the initialling of the 
negotiated text. 

As a result, the Commission proposes to take a position on behalf of the Union at the Energy 
Charter  Conference  supporting  the  adoption  of  the  proposed  amendments  to  the  ECT  
(CC 760).  

Regarding the approval of the proposed modifications and changes to the Annexes (CC 761) 

Article 34(3)(m) of the ECT provides for a simplified procedure empowering the Conference 
to adopt modifications to the Annexes of the ECT. The proposed changes to the Annexes to 
the  ECT  (CC  761)  bring  about  an  essential  change  to  the  current  Treaty:  the  exclusion, 
through  Annex  NI,  of  certain  Energy  Materials  and  Products  and  activities  from  the 
scope of investment protection under Part III of the ECT. As a result, the EU obtained the 
right to carve out investment protection in the EU as follows:  

– 

7 

8 

9 

10 

Exclusion of protection for all new investments in fossil fuels in the EU as of 15 
August 2023, with a transition period for hydrogen/low-carbon gas-ready gas power 

Mailbox companies are companies that  have a business address in an ECT Contracting  Party  without 
having  any  actual  economic  activity  in  such  a  Contracting  Party,  only  seeking  protection  under  the 
ECT. 
Such claims represented the overwhelming majority of claims against EU countries in the last decade, 
despite  the  position  of  the  Commission,  confirmed  by  the  Court  of  Justice  of  the  EU,  that  EU  law 
precludes intra-EU investment arbitration.  
Case  C‑284/16 Slovak Republic v. Achmea BV, 6 March 2018, and C-741/19  Republic of Moldova v. 
Komstroy LLC, 2 September 2021. 
Importantly, new commitments related to third-party access, capacity allocation mechanisms and tariffs 
are “best endeavour” commitments, which are “subject to” the laws and regulations of the EU, and thus 
would  only  have  to  be  respected  if  they  do  not  impinge  upon  the  EU  legal  framework  and  the  EU’s 
international commitments. 

EN 

4 

  EN 

                                                 
plants  and  infrastructure  emitting  less  than  380  gCO2/kWh  –  until  31  December 
2030 by default or until 15 August 2033 if they replace a coal, peat or oil shale-fired 
facility;  

Exclusion of protection for all existing investments in fossil fuels in the EU as of 
10 years after the entry into force (or entry into provisional application) of the 
amendments to the ECT, and by 31 December 2040 at the very latest;  

Protection for renewable and low-carbon hydrogen and synthetic fuels only;  

Exclusion of protection for activities in carbon capture, utilisation and storage. 

– 

– 

– 

The proposed changes also bring the scope of the ECT into line with the new landscape of 
renewable  and  low-carbon  technologies  required  for  the  green  energy  transition.  This 
will  be  achieved  through  changes  to  Annex  EM/EMI  (adding  new  energy  materials  and 
products, e.g., hydrogen and derivative fuels such as ammonia and methanol, biomass, biogas 
and  synthetic  fuels)  and  Annex  EQ/EQ  I  (adding  new  energy  equipment,  e.g.,  various 
insulation materials, as well as multiple-walled insulating glass).  

In  addition,  new  Annexes  have  been  created  to  implement  the  principle  of  reciprocity, 
according  to  which  Contracting  Parties  cannot  be  forced  to  protect  investments  from  other 
Contracting Parties if such investments have been excluded by the latter in Annex NI, either 
by  not  applying  the  investor-state  dispute  settlement  mechanism  in  Article  26  of  the  ECT 
(new Annex IA-NI) or the entirety of Part III on investment protection (new Annex NPT).  

As a result, the Commission proposes to take a position on behalf of the Union at the Energy 
Charter Conference that approves the adoption of the proposed changes and modifications to 
the Annexes to the ECT (CC 761).  

Regarding  the  approval  of  the  proposed  changes  to  Understandings,  Declarations  and 
Decisions (CC 762) 

Changes  introduced  to  Understandings,  Declarations  and  Decisions  (CC  762)  concern 
corrections of obsolete provisions (e.g., replacing “European Communities” with “European 
Union”), as well as additional clarifications for the text of the ECT (e.g., the clarification that 
“subsidy”  includes  “State  aid”  as  defined  in  EU  law).  The  approval  of  such  changes  to 
Understandings, Declarations and Decisions will bring further clarity and precision to the text 
of the ECT. 

As a result, the Commission proposes that the position to be taken on behalf of the Union at 
the  Energy  Charter  Conference  on  this  matter  is  to  approve  the  proposed  changes  to 
Understandings, Declarations and Decisions (CC 762).  

Regarding the approval of the decision on the entry into force and provisional application of 
amendments to the text of the ECT and changes/modifications to its Annexes (CC 763) 

The  Conference  will  approve  a  decision  that  provides  for  the  following  modalities  of  entry 
into  force  and  provisional  application  of  the  proposed  amendments  to  the  ECT  and  the 
changes to its Annexes (CC 763):  

– 

The  amendments to  the  text of the  ECT will  enter into force in  accordance  with 
Article 42(4) of the ECT. This means that the amendments will enter into force once 
three-fourths  of  Contracting  Parties  have  ratified  them.  In  addition,  the  decision 
provides  that  the  amendments  will  be  provisionally  applied  by  default  by  all 
Contracting  Parties  as  of  15  August  2023,  unless  they  lodge  a  declaration  by  23 
February 2023 that they are not able to do so;  

EN 

5 

  EN 

– 

– 

– 

Changes to Section C of Annex NI, which notably contains the rules providing for 
the transition period of 10 years to phase out the protection of existing investments in 
fossil fuels in the EU, and changes to other Annexes: these changes will enter into 
force  when  the  amendments  to  the  ECT  enter  into  force  (see  above).  Section  C  of 
Annex NI and changes to other Annexes will be provisionally applied by default by 
all Contracting Parties unless they make a contrary declaration by 23 February 2023 
(see above);    

Changes to Section B of Annex NI, which notably contains the rules providing for 
the exclusion of new investments in fossil fuels from protection in the EU, will enter 
into force automatically on 15 August 2023 without any further ratification;  

Changes  to  Understandings,  Declarations  and  Decisions  will  enter  into  force  on 
22  November  2022  as  far  as  they  concern  corrections  of  obsolete  references.  The 
remaining changes will enter into force when the amendments to the ECT enter into 
force.  In  the  meantime,  they  will  apply  provisionally  in  the  same  way  as  the 
amendments to the ECT. 

The modalities of entry into force and provisional application of the amendments to the ECT 
and  of  Section  C  of  Annex  NI,  as  well  as  the  changes  to  other  Annexes,  are  in  conformity 
with the provisions of the original ECT as regards entry into force and provisional application. 
In addition, the EU achieved that Section B of Annex NI enters into force automatically as of 
15  August  2023,  further  securing  the  date  of  entry  into  force  of  the  EU’s  carve-out  for 
investments in fossil fuels regarding new investments. 

As a result, the Commission proposes that the position to be taken on behalf of the Union at 
the Energy Charter Conference on this matter is to approve the decision regarding the entry 
into  force  and  provisional  application  of  amendments  to  the  text  of  the  ECT  and 
changes/modifications to its Annexes (CC 763). 

The  subject  matter  of  the  envisaged  decisions  concern  an  area  for  which  the  Union  has 
exclusive  external  competence  by  virtue  of  Article  3(1)  TFEU,  namely  the  common 
commercial  policy.  The  envisaged  decisions  concern  rules  on  trade  and  the  protection  of 
foreign direct investment, which fall within this area of exclusive Union competence. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Procedural legal basis  

Principles 

Article 218(9) TFEU provides for decisions establishing “the positions to be adopted on the 
Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts 
having  legal  effects,  with  the  exception  of  acts  supplementing  or  amending  the  institutional 
framework of this agreement”.   

The concept of “acts having legal effects” includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  “capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature”11. 

Application to the present case 

11 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

EN 

6 

  EN 

                                                 
The Energy Charter Conference is a body set up by an agreement, namely the Energy Charter 
Treaty.  

The acts which the Energy Charter Conference is called upon to adopt constitute acts having 
legal effects. These acts will be binding under international law. 

The  decisions  to  be  adopted  by  the  Energy  Charter  Conference  to  approve  the  proposed 
modifications  and  changes  to  the  Annexes  to  the  ECT  (CC  761),  as  well  as  to  approve  the 
proposed  changes  to  Understandings,  Declarations  and  Decisions  (CC  762),  constitute  acts 
having  binding  legal  effects  under  international  law.  This  is  because  the  ECT  grants  the 
Energy  Charter  Conference  the  power  to  amend  the  Annexes,  Understandings,  Declarations 
and Decisions to the ECT without the need for any subsequent ratification by the Contracting 
Parties. Under Article 48 of the ECT, the Annexes and Decisions are an integral part of the 
Treaty. 

The  decision  to  be  adopted  by  the  Energy  Charter  Conference  to  approve  the  decision 
regarding  the  entry  into  force  and  provisional  application  of  amendments  to  the  text  of  the 
ECT  and  changes/modifications  to  its  Annexes  (CC  763)  constitutes  an  act  having  binding 
legal effects under international law because it obliges the Contracting Parties to provisionally 
apply the amended text of the ECT and the changes to certain sections of its Annexes as of 15 
August 2023, if no contrary declaration is lodged before 23 February 2023. 

The  decision  to  be  adopted  by  the  Energy  Charter  Conference  to  adopt  the  proposed 
amendments  to  the  text  of the ECT  (CC 760)  constitutes, in  the particular circumstances of 
the case, an act having binding legal effects under international law because it is to be adopted 
simultaneously with the decision regarding the entry into force and provisional application of 
amendments  to  the  text  of  the  ECT  (CC  763  –  see  above),  which  obliges  the  Contracting 
Parties  to  provisionally  apply  these  amendments  as  of  15  August  2023  if  no  contrary 
declaration is lodged before 23 February 2023. 

The envisaged decisions do not supplement or amend the institutional framework of the ECT. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.  

Substantive legal basis 

Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged decisions in respect of which a position is taken on 
the Union's behalf. If the envisaged decisions pursue two aims or have two components and if 
one of those aims or components is identifiable as the main one, whereas the other is merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

With  regard  to  envisaged  decisions  that  simultaneously  pursues  a  number  of  objectives,  or 
that has several components, which are inseparably linked without one being incidental to the 
other,  the  substantive  legal  basis  of  a  decision  under  Article  218(9)  TFEU  will  have  to 
include, exceptionally, the various corresponding legal bases. 

Application to the present case 

The envisaged decisions pursue objectives and have components in the area of energy and the 
common commercial policy. These elements of the envisaged decisions are inseparably linked 
without one being incidental to the other. 

Therefore,  the  substantive  legal  basis  of  the  proposed  decision  comprises  the  following 
provisions: Articles 194(2) and 207 TFEU. 

EN 

7 

  EN 

Conclusion  

The legal basis of the proposed Council decision should be Articles 194(2) and 207 TFEU, in 
conjunction with Article 218(9) TFEU. 

Publication of the envisaged acts 

As the decisions of the Energy Charter Conference will amend the Annexes to the ECT, it is 
appropriate to publish them in the Official Journal of the European Union after their adoption. 

EN 

8 

  EN 

 
 
2022/0324 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the 33rd meeting of the 
Energy Charter Conference 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 194(2) and 207, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

The Energy Charter Treaty (‘the Agreement’) was concluded by the Union by Council 
and Commission Decision 98/181/EC, ECSC, Euratom of 23 September 1997 on the 
conclusion,  by  the  European  Communities,  of  the  Energy  Charter  Treaty  and  the 
Energy Charter Protocol on energy efficiency and related environmental aspects (OJ L 
69, 9.3.1998, pp. 1-116) and entered into force on 16 April 1998. 

Pursuant to Article 34 of the Agreement, the Energy Charter Conference adopts texts 
of  amendments  to  the  Agreement  and  approves  modifications  of,  and  techhnical 
changes to, the Annexes to the Agreement. 

The Energy Charter Conference, during its 33rd meeting on 22 November 2022, is to 
adopt  the  proposed  amendments  to  the  Energy  Charter  Treaty  (CC  760)  and  to 
approve  (i)  the  proposed  modifications  and  changes  to  the  Annexes  to  the  Energy 
Charter  Treaty  (CC  761),  (ii)  the  proposed  changes  to  Understandings,  Declarations 
and  Decisions  (CC  762),  and  (iii)  the  decision  regarding  the  entry  into  force  and 
provisional  application  of  amendments 
the  Energy  Charter  Treaty  and 
to 
changes/modifications to its Annexes (CC 763). 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union's  behalf  in  the 
Energy Charter Conference, as the abovementioned acts will be binding on the Union. 

In  the  absence  of  any  substantial  update  of  the  Agreement  since  the  1990s,  the 
Agreement became increasingly outdated. It is appropriate to amend the Agreement to 
bring it into alignment with the principles of the Paris Agreement, the requirements of 
sustainable development and the fight against climate change, as well as with modern 
standards of investment protection. 

HAS ADOPTED THIS DECISION:  

Article 1 

The  position  to  be  taken  on  the  Union’s  behalf  in  the  33rd  meeting  of  the  Energy  Charter 
Conference shall be the following:  

(a) 

to support the adoption by the Conference of the proposed amendments to the 
Energy Charter Treaty (CC 760); 

EN 

9 

  EN 

(b) 

(c) 

(d) 

to  approve  the  proposed  modifications  and  changes  to  the  Annexes  to  the 
Energy Charter Treaty (CC 761); 

to  approve  the  proposed  changes  to  Understandings,  Declarations  and 
Decisions (CC 762); and 

to  approve  the  decision  regarding  the  entry  into  force  and  provisional 
application  of 
and 
changes/modifications to its Annexes (CC 763). 

the  Energy  Charter  Treaty 

amendments 

to 

This Decision is addressed to the European Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

EN 

10 

  EN