The need for a preliminary ruling
31. The dispute in the main proceedings raises the question whether the ECT, which forms part of the EU legal order, must be interpreted as meaning that Article 26 [thereof] also governs a dispute between one EU Member State and an investor from another Member State concerning an investment in the former made by the latter.
32. Furthermore, if Article 26 ECT governs those disputes, the question arises as to whether EU law precludes such an interpretation of that article in an internal EU relation or [Or. 11] its application in an internal EU dispute. The principles and positions developed by the Court in the judgment in Achmea originated in a bilateral investment treaty applicable between two EU Member States. The ECT is a multilateral investment treaty and, unlike the bilateral treaty at issue in the Achmea case, the ECT has a number of contracting parties which neither are nor have been members of the European Union. A further difference from the bilateral treaty lies in the fact that the ECT was concluded by both the European Communities, now the European Union, and by its Member States. Furthermore, in accordance with the ECT, an applicant may choose between initiating arbitration proceedings and bringing proceedings before the national courts for the settlement of disputes. As regards the ECT, therefore, the European Union participated in the creation of that treaty and accepted the dispute settlement mechanism provided for in Article 26, by being a party to that treaty.
33. In that regard, even taking into account the positions defined by the Court in the judgment in Achmea, the manner in which EU law must be interpreted does not emerge either clearly or as having been clarified.
34. Lastly, the question arises in the case before the hovrätten (Court of Appeal) as to the effect which EU law, in particular the principle of the primacy of EU law and of the requirement of effectiveness, has on the application of the time-bar rule laid down in Paragraph 34, second subparagraph, of the SFL, namely whether EU law precludes a party to the appeal proceedings from being able to raise the objection that the manner in which the arbitration agreement came into being or the arbitration agreement itself is contrary to EU law. In that regard, the hovrätten (Court of Appeal) notes that, in Case T 1569-19, the Swedish Högsta domstolen (Supreme Court) decided to make a reference to the Court for a preliminary ruling and that the Court's preliminary ruling, in so far as can now be assessed, may also be relevant to the case before the hovrätten. In any event, pending an answer from the Court, the interpretation of EU law in that regard is not clear and has not been clarified.
35. In those circumstances, the hovrätten (Court of Appeal) regards it as necessary to request a preliminary ruling from the Court of Justice on all the above points.
[Or. 12] Request for a preliminary ruling
The hovrätten (Court of Appeal) requests the Court of Justice, by a preliminary ruling, to answer the following questions.
1. Is the ECT to be interpreted as meaning that the arbitration clause in Article 26 thereof, by which a Contracting Party gives its consent to the international arbitration of a dispute between a Contracting Party and an investor of another Contracting Party concerning an investment by the latter in the former's area, also governs a dispute between an EU Member State, of the one part, and an investor from another EU Member State, of the other?
If Question 1 is answered in the affirmative:
2. Are Articles 19 and 4(3) TEU and Articles 267 and 344 TFEU to be interpreted as precluding the arbitration clause in Article 26 ECT or the application of that clause where an investor from an EU Member State may, on the basis of Article 26 ECT, in the event of a dispute concerning an investment in another EU Member State, initiate proceedings against the latter Member State before an arbitral tribunal whose competence and decision that Member State is bound to accept?
If Question 2 is answered in the affirmative:
3. Must EU law, in particular the principle of the primacy of EU law and the requirement of its effectiveness, be interpreted as precluding the application of a provision of national law which provides for a time-bar, such as Paragraph 34, second subparagraph, of the SFL, if the consequence of such application is that a party to an appeal may not raise the objection that there is no valid arbitration agreement on the ground that the arbitration clause in or the proposal in accordance with Article 26 ECT is invalid or not applicable as it runs counter to EU law?
Energy Charter Treaty, ECT, Arbitration, Svea hovrätt (Sweden), Italy