Resumen de The Autonomy of the EU Legal Order: the Case of the Energy Charter Treaty
The autonomy of EU law is what makes the EU legal order what the Court of Justice of the European Union (CJEU) claims it to be, namely a domestic legal order that allows the EU to be an international actor in its own right. Investor-State-Dispute-Resolution (ISDS) mechanisms have recently been examined by the CJEU as to their compatibility with the jurisdictional normative autonomy of EU law and the regulatory autonomy of the EU institutions (Achmea, Opinion 1/17, Komstroy). The EU is only party to one international agreement in force that contains an ISDS mechanism. It is also the most litigated investment treaty in the world: the Energy Charter Treaty (ECT). In 2022, the negotiations between the Contracting Parties to the ECT have led to an ‘agreement in principle’ on a reformed treaty text. This Article examines the compatibility of the current ECT and of its reformed text with the normative and regulatory autonomy of the EU. It also argues that the Commission’s actions in the period between the agreement in principle on the revised text of 24 June 2022 and the adoption of a resolution of the European Parliament calling on the EU to withdraw from the ECT on 23 November 2022 demonstrate the dark, undemocratic side of vesting the EU with external regulatory autonomy vis-à-vis the Member States. It highlights in particular that greater external regulatory autonomy of the EU may lead to an usurpation of executive powers and comes at the price of parliamentary control.
