Encavis and others v Italy - ICSID Case No. ARB/20/39 - Decision on the European Commission's Application for Leave to Intervene As Non-Disputing Party - 15 June 2022
1. THE COMMISSION'S APPLICATION
7. The European Commission ["Commission"] has requested leave to intervene in the present proceeding as a non-disputing party and file a written submission, in accordance with Rule 37(2) of the ICSID Arbitration Rules1. The Commission explains that it would like to make a written submission on the following point2:
"Article 26 of the Energy Charter Treaty, properly construed, does not apply intra-EU in general, and in the relationship between the Italian Republic and the Federal Republic of Germany, in particular, so that the Arbitral Tribunal lacked jurisdiction."
8. Although the Commission is not privy to the Parties' submissions in this arbitration, the Commission assumes that the Italian Republic has objected to the jurisdiction of this Tribunal, pursuant to the declaration "On the Legal Consequences of the Judgment of the Court of Justice in Achmea on Investment Protection in the European Union" [the "Declaration"] signed by 22 Member States on 15 January 2019, and the most recent judicial developments pertaining to the Tribunal's jurisdiction under the ECT (including the judgments of the Court of Justice of the European Union ["CJEU"] in Slovak Republic v. Achmea GV ["Achmea Judgment"] and Moldova v. Komstroy ["Komstroy Judgment"])3.
9. The Commission understands that the present dispute may involve two issues of EU law: first, the measures contested by Claimants transpose into Italian law an European Union ["EU"] Directive on renewable energy; second, the measures contested by claimants may constitute State aid4.
10. The Commission considers that the requirements of Rule 37(2) of the ICSID Arbitration Rules are met. First, the Commission avers that it can assist the Arbitral Tribunal in determining the intra-EU legal issue, which is related to these proceedings and within the scope of this dispute5, by showing that the Achmea and Komstroy Judgments preclude the intra-EU application of Art. 26 of the Energy Charter Treaty ["ECT"]6.
11. Second, the Commission submits that it will bring a perspective, particular knowledge or insight that is different from that of the Parties7, thanks to its threefold position: as the "driving force" behind the negotiations and drafting of the ECT8, the "guardian of the Treaties" including the ECT9, and the "external representative of the Union" in all CJEU preliminary rulings proceedings10. The Commission also notes that it is an independent international law subject from Italy11.
12. Finally, the Commission avers that it has a significant interest in this arbitration brought by investors of EU Member States against Italy, another Member State. As the "guardian" and "external representative" of the EU, the Commission must see to the correct interpretation and application of EU law12. Furthermore, the Commission must prevent conflict between EU Treaties including the ECT and the ICSID Convention13.
13. Therefore, the Commission requests that the Arbitral Tribunal14:
- (i) Grant the Commission leave to intervene in the present proceedings as a non-disputing party;
- (ii) Set a deadline for the Commission to file a written submission;
- (iii) Allow the Commission to access documents filed in the case, to the extent necessary for its intervention in the proceedings; and
- (iv) Allow the Commission to attend hearings to present oral arguments and reply to the questions of the Tribunal.
57. In sum, the Tribunal decides:
- To grant the Commission's request for leave to file a written submission as a non-disputing party on the EU law issues concerning the Tribunal's jurisdiction, to focus solely on the Respondent's intra-EU objection;
- To set the date for the Commission's submission to 1 July 2022;
- To reject the Commission's request to access the case file, subject to the possibility of accessing the Parties' main written submissions (as provided in para. 50 supra) and requesting specific documents in the future;
- To reject, pro tem, the Commission's request to attend and present oral arguments at the hearing;
- To reject, pro tem, Claimants' request to order the Commission to bear the costs associated with its participation in this arbitration.
President of the Arbitral Tribunal
Date: 15 June 2022
Members of the Tribunal
Prof. Juan Fernández-Armesto, President
Ms. Wendy Miles, Arbitrator
Mr. Alexis Mourre, Arbitrator