The controversial issue of the intra-EU applicability of the ECT and the compatibility of the ISDS mechanism provided therein with EU law after Moldova v. Komstroy

Master Thesis
Συγγραφέας
Palla, Eleftheria
Πάλλα, Ελευθερία
Ημερομηνία
2025Προβολή/ Άνοιγμα
Λέξεις κλειδιά
Energy Charter Treaty ; Intra-EU Investment Arbitration ; Investor-State Dispute Settlement ; Komstroy judgment ; ModernizationΠερίληψη
The present dissertation investigates the controversial issue of intra-EU applicability of
the Energy Charter Treaty (ECT) and the compatibility of the investor-State dispute
settlement (ISDS) mechanism enshrined in Article 26 ECT with EU law, focusing on
the legal developments that have unfolded following the Court of Justice of the
European Union (CJEU) landmark ruling in Republic of Moldova v. Komstroy LLC
(Case C-741/19). While Slovak Republic v. Achmea ruling (Case C-284/16) laid the
conceptual groundwork by declaring intra-EU Bilateral Investment Treaty (BIT)
arbitration incompatible with the EU legal order, it is Komstroy that solidified a
decisive shift in investment arbitration jurisprudence with direct implications for
multilateral agreements such as the ECT.
The central research aim of this thesis is to determine how the cumulative legal
developments -relevant jurisprudence, the 2020 Termination Agreement, the
modernization process of the ECT and the EU’s coordinated withdrawal- have impacted
the structural tensions between international investment arbitration and the EU’s
principles of autonomy, primacy and exclusive competence. To address this inquiry,
the analysis proceeds through three substantive chapters.
Chapter 1 sets the legal and institutional foundation. It introduces the ECT and the
constitutional principles of EU law -autonomy, primacy and exclusive competencebefore
outlining the structural tensions that arise from the ECT’s operation within the
EU’s legal order.
Chapter 2 analyzes the evolution of intra-EU ISDS jurisprudence following Komstroy,
tracing how arbitral tribunals, EU and Member State courts as well as enforcement fora
within and beyond the Union, have responded to the growing conflict between intra-
EU ISDS and EU constitutional law. It also includes an assessment of post-Brexit
enforcement practice before UK courts, which, detached from the CJEU’s authority,
continue to uphold the enforceability of ICSID awards under the ECT.
Chapter 3 analyzes the EU’s responses to Achmea and Komstroy. It evaluates the EU’s
initial attempt to eliminate intra-EU ISDS through the 2020 Termination Agreement. It
considers the agreement’s legal foundations under international law, its mechanisms
for terminating intra-EU BITs and the unresolved controversies surrounding retroactive
consent withdrawal and sunset clauses. The Chapter then turns to the ECT
modernization process and the EU’s subsequent withdrawal. It assesses the legal effect
of the newly introduced Article 24(3), which excludes intra-EU ISDS, the implications
of provisional application and the legal uncertainty surrounding inter se agreements at
neutralizing the sunset clause within EU.
Through doctrinal legal analysis, treaty interpretation, and policy review, this
dissertation argues that Komstroy marks a turning point in the EU’s approach to
investment protection. Rather than resolving the intra-EU ISDS dilemma, it initiated a
systemic reconfiguration. The result is an incomplete but ongoing transformation of the
EU’s investment protection architecture -one marked by disconnection from traditional
ISDS and a contested reassertion of constitutional authority.


