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The legal challenges of an uncoordinated exit from the ECT

Mathilde Dupré, 19 July 2023

[English] [français]

The European Commission recommends a coordinated exit of the EU, its member states and Euratom from the Energy Charter Treaty (ECT).

The political debates around this proposal raise a number of complex legal questions, which we have tried to answer with the help of various experts.

1. If some member states refuse to leave the ECT, what might be the consequences in terms of their liability after an EU exit from the treaty?
PowerShift, Climate Action Network Europe, Friends of the Earth Europe, European Trade Justice Coalition and the Veblen Institute have commissioned a study to Paolo Palchetti, full professor of international law at the Université Paris 1 Panthéon-Sorbonne, and Luca Pantaleo, assistant professor of European Union law at the University of Cagliari. Both authors conclude that an EU member state remaining a party to the ECT would most likely assume international responsibility for its violations of this treaty, even if these violations result from the implementation of EU binding acts.

ECT withdrawal and MS responsibility

"the current legal framework suggests that an EU Member State that will remain in the Energy Charter Treaty will most likely bear international responsibility for its breaches of that Treaty, even if those breaches result from the implementation of binding EU acts. The risk of incurring into international responsibility for implementing acts of the EU is a factor that the Member States should take into account when considering whether to remain parties to the ECT after the withdrawal of the EU. In particular, the existence of such risk appears to be a relevant factor in support of the Commission’s proposal for a coordinated withdrawal from the ECT."

2. Would an EU exit from the ECT force member states to do the same?
See Mémo on the Legal Consequences of a Withdrawal of the EU from the Energy Charter Treaty on Member States.

3. How can the effects of the survival clause, which prolongs the effects of the treaty for 20 years after an exit, be neutralised between exiting countries?
See Baldon’s Mémo on the possibility of adopting an inter se agreement between the States parties withdrawing from the ECT.

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