Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Energy Charter Conference
Date: 2024-03-01
Institutions: Directorate-General for Energy, European Commission
Subjects: EU energy policy, European Energy Charter, energy cooperation, environmental policy, fossil fuel, international charter, investment protection, multilateral agreement, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 1.3.2024  COM(2024) 104 final 2024/0057 (NLE)  Proposal for a COUNCIL DECISION on  the  position  to  be  taken  on  behalf  of the European Union in the Energy Charter Conference  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

This proposal concerns the decision on the position to be taken by the Member States in the 
Energy  Charter  Conference  in  connection  with  the  envisaged  adoption  of  proposed 
amendments to the Energy Charter Treaty and the approval of (i) proposed modifications and 
changes  to  the  Annexes  to  the  Energy  Charter  Treaty,  (ii)  proposed  changes  to 
Understandings, Declarations and Decisions, and (iii) a decision regarding the entry into force 
and  provisional  application  of  amendments 
the  Energy  Charter  Treaty  and 
changes/modifications to its Annexes. The adoption of the amendments to the Energy Charter 
Treaty  and  the  additional  approvals  are  to  be  passed  simultaneously  by  the  Energy  Charter 
Conference. 

to 

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 Contracting Parties. The European Union is a party 
to the ECT1, together with Euratom and most EU Member States, as well as Japan, the United 
Kingdom, Switzerland, Turkey and most countries from the Western Balkans and the former 
USSR, with the exception of Russia2 and Belarus3. On 7 July 2023, the European Commission 
tabled  a  proposal  for  a  Council  Decision  withdrawing  the  European  Union  from  the  ECT. 
This proposal is currently under consideration in the Council.  

The Energy Charter Conference 

The  Energy  Charter  Conference  is  the  governing  and  decision-making  body  for  the  Energy 
Charter  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 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 

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3 

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). 
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. 

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Decisions to be taken at the Energy Charter Conference 

Following  the  33rd  meeting  of  the  Energy  Charter  Conference  on  22  November  2022,  it  is 
expected that the Conference will retable in the course of 2024 the proposal to the Contracting 
Parties to take four decisions related to the modernisation of the ECT. These decisions will be 
taken simultaneously to:  

– 

– 

– 

– 

adopt the proposed amendments to the text of the ECT; 

approve the proposed modifications and changes to the Annexes to the ECT; 

approve the proposed changes to Understandings, Declarations and Decisions; 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. 

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. 

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 
decisions  
revision.  Thereafter, 
then 
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.  

underwent 

legal 

draft 

final 

the 

a 

The decisions related to the modernisation of the ECT will be subject to a unanimity vote. If 
the  vote  is  successful,  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. 
In  line  with  this  decision,  the  modernisation  is  expected  to  be  provisionally  applied  by  all 
Contracting  Parties  automatically  at  a  fixed  date  following  the  adoption.  Moreover,  any 
Contracting Party may deliver to the depositary (Portugal) 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. 

The present proposal for a decision under Article 218(9) TFEU seeks to establish the position 
to be taken by the Member States in the Energy Charter Conference, to be expressed either at 
a  meeting  or  in  a  written  procedure,  as  the  case  may  be,  regarding  the  decisions  described 
above. 

At  the  same  time,  the  Commission  is  proposing  the  adoption  of  an  agreement  between  the 
European  Union,  Euratom,  and  the  Member  States  on  the  interpretation  of  the  ECT.  That 

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agreement should include, in particular, a confirmation that a clause such as Article 26 ECT 
could  not  in  the  past,  and  cannot  now  or  in  the  future  serve  as  a  legal  basis  for  arbitration 
proceedings  initiated  by  an  investor  from  one  Member  State  concerning  investments  in 
another  Member  State,  and  that  the  sunset  clause  provided  for  in  Article  47(3)  ECT  cannot 
extend,  and  was  not  intended  to  extend,  to  such  proceedings.  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  and was not 
meant to 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 
judgment4. 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  under  customary  international  law  as  codified  in  the  Vienna  Convention  on  the 
Law of Treaties. 

While  that  agreement  will  codify  the  interpretation  of  the  EU  and  its  Member  States  in  a 
separate  instrument  of  public  international  law  (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  

The  Commission  proposes  that  the  Member  States  that  are  parties  to  the  Energy  Charter 
Treaty take the positions described in points 1 to 4 below at the meeting of the Energy Charter 
Treaty or in a written procedure, as the case may be.  

Regarding the adoption of the proposed amendments to the text of the ECT 

The  proposed  amendments  to  the  text  of  the  ECT  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. UNCITRAL5). 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. 

In particular, the amended ECT contains:  

– 

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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 
against climate change; Only investors with real economic interest will be protected, 
with no protection being afforded to mailbox companies6; 

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

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– 

– 

– 

– 

– 

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  and 
the  clean  energy  transition  and  providing  an  actionable  mechanism  in  case  of 
misalignment, in a way that was never achieved  before in  a multilateral investment 
treaty; 

integration 
the  EU  secured  provisions  for  regional  economic 
In  addition, 
organisations  (such  as  the  EU),  expressly  confirming  that  it  was  not  and  it  is  not 
possible to bring intra-EU investment arbitration under the ECT7, in  line with 
the case law of the Court of Justice of the EU8;  

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 EU9; 

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  to  align 
investment protection in the EU with the EU’s 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 that the Member States take the position at the Energy 
Charter Conference not preventing the adoption of the proposed amendments to the ECT.  

Regarding the approval of the proposed modifications and changes to the Annexes 

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 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:  

– 

– 

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Exclusion  of  protection  for  all  new  investments  in  fossil  fuels  in  the  EU  at  a 
specified  date  following  the  adoption,  with  a  transition  period  for  hydrogen/low-
carbon  gas-ready  gas  power  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;  

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. 

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– 

– 

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 that the Member States take the position at the Energy 
Charter  Conference  of  not  preventing  the  approval  of  the  proposed  changes  and 
modifications to the Annexes to the ECT.  

Regarding  the  approval  of  the  proposed  changes  to  Understandings,  Declarations  and 
Decisions 

Changes  introduced  to  Understandings,  Declarations  and  Decisions  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 Member States take the position at the Energy 
Charter  Conference  on  this  matter  not  preventing  the  approval  of  the  proposed  changes  to 
Understandings, Declarations and Decisions.  

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 

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:  

– 

– 

– 

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, unless they lodge a declaration that they are not able to do so;  

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 (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 

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into force automatically on the date specified in the Conference decision without any 
further ratification;  

– 

Changes  to  Understandings,  Declarations  and  Decisions  will  enter  into  force  on 
the  date  of  adoption  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  on 
the date specified in the Conference decision, 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 Member States take the position at the Energy 
Charter Conference on this matter not preventing the approval of the decision regarding the 
entry  into  force  and  provisional  application  of  amendments  to  the  text  of  the  ECT  and 
changes/modifications to its Annexes. 

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. Bearing 
in mind that the European Commission put forward proposals for a Council Decision on the 
withdrawal  of,  respectively,  the  EU  and  Euratom  from  the  ECT,  it  is  expected  that  the 
European Union and Euratom, while still being Contracting Parties to the ECT at the time of 
vote  on  the  above-mentioned  decisions  of  the  Energy  Charter  Conference,  will  neither  be 
present  nor voting. Therefore, this  proposal sets  out  to  establish  the position  to  be taken by  
the  Member  States  that  remain  Contracting  Parties  to  the  ECT  either  at  the  meeting  of  the 
Energy Charter Conference, should they decide to participate, or in a written procedure, as the 
case may be. This is without prejudice to the division of competences between the Union and 
its Member States. 

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”10. 

10 

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, 

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Application to the present case 

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,  as  well  as  to  approve  the  proposed 
changes to  Understandings, Declarations and Decisions, 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 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 on an agreed date, 
if no contrary declaration is timely lodged. 

The  decision  to  be  adopted  by  the  Energy  Charter  Conference  to  adopt  the  proposed 
amendments to the text of the ECT 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  (see  above),  which  obliges  the  Contracting  Parties  to 
provisionally apply these amendments on an agreed date if no contrary declaration is timely 
lodged. 

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. 

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

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. 

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2024/0057 (NLE) 

Proposal for a 

COUNCIL DECISION 

on  the  position  to  be  taken  on  behalf  of the European Union in 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) 

(6) 

(7) 

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. 

In  the  absence  of  any  substantial  update  of  the  Agreement  since  the  1990s,  the 
Agreement became increasingly outdated. 

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

The  Energy  Charter  Conference  is  to  adopt  the  proposed  amendments  to  the  Energy 
Charter  Treaty  and  to  approve  (i)  the  proposed  modifications  and  changes  to  the 
Annexes  to  the  Energy  Charter  Treaty,  (ii)  the  proposed  changes  to  Understandings, 
Declarations  and  Decisions,  and  (iii)  the  decision  regarding  the  entry  into  force  and 
provisional  application  of  amendments 
the  Energy  Charter  Treaty  and 
changes/modifications  to  its  Annexes.  It  is  expected  that  the  Conference  will  retable 
the proposed amendments for adoption in the course of 2024, either in a meeting or by 
a written procedure, as the case may be.  

to 

It  is  appropriate  to  establish  the  position  to  be  taken  by  the  Member  States  who  are 
Contracting  Parties  to  the  Energy  Charter  Treaty.  This  is  without  prejudice  to  the 
division of competences between the Union and the Member States. 

In parallel, the European Commission has tabled proposals for Council Decisions on 
the withdrawal of the EU and of Euratom from the Agreement that are to be adopted 
jointly with this proposal. 

As  the  areas  covered  by  the  Energy  Charter  Treaty  fall  largely  under  the  exclusive 
Union  competence,  the  Member  States  cannot  remain  Contracting  Parties  to  the 
Energy Charter Treaty once the Union has withdrawn unless they are authorised to do 
so  by  the  Union.  Hence,  once  the  withdrawal  of  the  Union  from  the  Energy  Charter 
Treaty  takes  effect  and  absent  an  authorisation  by  the  Union  to  remain  Contracting 

EN 

9 

  EN 

Parties,  the  Member  States  will  have  to  withdraw  from  the  Energy  Charter  Treaty 
within a reasonable period of time. 

HAS ADOPTED THIS DECISION:  

The  position  to  be  taken  by  the  Member  States  that  are  Contracting  Parties  to  the  Energy 
Charter Treaty at the Energy Charter Conference shall be the following:  

Article 1 

(a) 

not to prevent the adoption by the Conference of the proposed amendments to 
the Energy Charter Treaty; 

(b)  not  to  prevent the approval  of  the proposed modifications and  changes to  the 

Annexes to the Energy Charter Treaty; 

(c) 

not  to  prevent  the  approval  of  the  proposed  changes  to  Understandings, 
Declarations and Decisions; and 

(d)  not  to  prevent  the  approval  of  the decision regarding  the entry into force and 
provisional  application  of  amendments  to  the  Energy  Charter  Treaty  and 
changes/modifications to its Annexes. 

Article 2 

This  Decision  is  addressed  to  the  Member  States  that  are  Contracting  Parties  to  the  Energy 
Charter Treaty. 

Done at Brussels, 

For the Council 
The President 

EN 

10 

  EN