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

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   EUROPEAN COMMISSION  Brussels, 1.3.2024  COM(2024) 105 final 2024/0058 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of Euratom in the Energy Charter Conference  
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

This  proposal  concerns  the  Council’s  approval  of  the  Commission  decision  establishing  the 
position  to  be  taken  by  the  Member  States  as  regards  matters  falling  under  the  Euratom 
Treaty,  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  to  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. 

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 ECT, together with Euratom1 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  exceptions  of  Russia2  and  Belarus3.  On  7  July  2023,  the  European 
Commission  tabled  a  proposal  for  a  Council  Decision  withdrawing  the  Euratom  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  and  Euratom)  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 and Euratom  have a number of  votes equal  to  the number of  their Member 
States  that  are  Contracting  Parties  to  the  ECT,  provided  that  the  EU  and  Euratom  shall  not 
exercise their right to vote if their Member States exercise theirs, and vice versa.  

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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:  

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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 
then  underwent  a  legal  revision.  Thereafter,  the  final  draft  decisions  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.  

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 the Council’s approval of a Commission decision under Article 101 
of the Euratom Treaty seeks to establish the position to be adopted 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.  

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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 
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  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 
judgment . 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 VCLT. 

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, as regards matters falling under the Euratom Treaty, at the meeting of the Energy 
Charter Conference  or in  a written procedure as the case may be, the positions  described in 
points 1 to 4 below.  

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. UNCITRAL4). 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 companies5; 

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 is not possible to bring 
intra-EU investment arbitration under the ECT6, in line with the case law of the 
Court of Justice of the EU7;  

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 EU8; 

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  theposition,  as  regards 
matters falling  under the Euratom Treaty, 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  (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:  

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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). 
Nuclear energy, which is included in the current scope of the Treaty, remains so after changes 
to the Annexes, in particular Annex NI, without any modification or change.  

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,  the 
European Atomic Energy Community”), 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 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:  

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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);    

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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 the date specified in the Conference  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,  as  regards 
matters falling  under the Euratom Treaty, at  the  Energy Charter Conference, 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. 

Bearing in mind that the European Commission put forward proposals for a 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 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 

Principles  

The  Euratom  Treaty  contains  no  provision  equivalent  to  Article  218(9)  TFEU  for  Council 
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. When a body set 
up by an agreement concluded by Euratom, such as the ECT, adopts acts having legal effects, 
the procedures provided in Articles 101 of the Euratom Treaty apply.  

Article 101 paragraph 1 of the Euratom Treaty provides that: ‘The Community may, within the 
limits  of  its  powers  and  jurisdiction,  enter  into  obligations  by  concluding  agreements  or 
contracts with a third State, an international organisation or a national of a third State’. 

Article 101 paragraph 2 of the Euratom Treaty provides that: ‘Such agreements or contracts 
shall be negotiated by the Commission in accordance with the directives of the Council; they 
shall be concluded by the Commission with the approval of the Council, which shall act by a 
qualified majority.’ 

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Application to the present case 

The  Energy  Charter  Treaty  is  an  international  agreement  to  which,  inter  alia,  Euratom  is  a 
party.  

On  22  November  2022,  the  Energy  Charter  Conference  will  be  called  upon  to  adopt  acts 
having legal effects. These acts will be binding under international law. As a result, pursuant 
to Article 101 paragraph 2 of the Euratom Treaty, they shall be subject to the approval of the 
Council under qualified majority.  

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 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. 

Therefore, the procedural legal basis for the proposed decision is Article  101 paragraph 2 of 
the Euratom Treaty as the Euratom Treaty contains no provision equivalent to Article 218(9) 
TFEU for decisions establishing the positions to be adopted on the Union’s behalf in a body 
set up by an agreement.  

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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2024/0058 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of Euratom in the Energy Charter Conference 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Atomic  Energy  Community,  and  in 
particular Article 101 paragraph 2 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  European  Atomic 
Energy Community (‘the Euratom’) 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 
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 Euratom and the Member States. 

In  parallel,  the  European  Commission  has  tabled  proposals  for  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 and Euratom competence, the Member States cannot remain Contracting Parties 
to the Energy Charter Treaty once the Union and the Euratom have withdrawn unless 
they are authorised to do so by the Union and Euratom. Hence, once the withdarwal of 
the Union and the Euratom from the Energy Chartery Treaty take effect and absent an 
authorisation  by  the  Union  and  Euratom  to  remain  Contracting  Parties,  the  Member 

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States wil have to withdraw from the Energy Charter treaty within a reasonable period 
of time. 

HAS ADOPTED THIS DECISION:  

Article 1 

The  following  position  to  be  taken  by  Member  States  that  are  Contracting  Parties  to  the 
Energy Charter Treaty at the Energy Charter Conference, as regards matters falling under the 
Euratom Treaty, is hereby approved by the Council:  

(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. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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