Your letter of 15 September 2021 - dispute of the Kingdom of the Netherlands against RWE AG, pending at the Oberlandesgericht Köln with case number 19 Sch 15/21
1. The Commission acknowledges receipt of your letter of 15 September 2021, in which you have informed the Commission of intra-EU investment arbitration proceedings brought by RWE AG against the Kingdom of the Netherlands under Article 26 of the Energy Charter Treaty. You have also informed the Commission that RWE AG relies on the procedural rules of the ICSID Convention.
2. You have drawn the attention of the Commission to proceedings brought by the Kingdom of the Netherlands before the Higher Regional Court of Cologne in Germany. Those proceedings aim at a declaration, by that court, based on § 1032(2) of the German Code of Civil Procedure, that there is no arbitration agreement between RWE AG and the Kingdom of the Netherlands.
19. Should the Higher Regional Court of Cologne reach the opposite result, i.e. that the ICSID Convention constitutes an obstacle to proceedings brought on the basic of § 1032(2) of the German Code of Civil Procedure and cannot be interpreted in conformity with Union law, it would have to disapply the ICSID Convention. That is because its application would result in a violation of its duty of loyal cooperation vis-à-vis the Kingdom of the Netherlands, as well as a violation of Articles 19(1) TEU, 267 and 344 TFEU and the principles of mutual trust and autonomy of Union law. In fact declining the admissibility of proceedings brought on the basic of § 1032(2) of the German Code of Civil Procedure would enable RWE AG to opt out of the Union legal system. That is precisely what the Court of Justice held to be impermissible under Union law in République de Moldavie v Komstroy.
20. Should the Higher Regional Court of Cologne have any doubts as to questions of interpretation and application of Union law raised before it, it may be in the interest of an efficient administration of justice that it makes use of its possibility to refer those matters to the Court of Justice pursuant to Article 267 TFEU.