Summary

Source: icsid.worldbank.org

I. Introduction

1. On 24 February 2021, the European Commission (the "Commission") submitted an Application for Leave to Intervene as a Non-Disputing Party in the present arbitration (the "Commission's Application" or the "Application").

2. On 26 February 2021, the Tribunal requested the Parties to submit their comments regarding the Commission's Application by 3 March 2021.

3. On 3 March 2021, the Tribunal received the Parties' communications with their observations to the Commission's Application.

II. The Commission's Application

4. The Commission notes that, pursuant to the terms of Rule 37(2) of the ICSID Arbitration Rules, the Tribunal may, after consulting both parties, allow a non-disputing party to file a written submission regarding matters within the scope of the dispute. The non-disputing party should set out the extent to which: first, its submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; second, its submission would address a matter within the scope of the dispute; and third, the non-disputing party has a significant interest in the proceeding.

5. The Commission argues that it complies with those conditions for the reasons summarized in the following paragraphs.

6. In the view of the Commission, the submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties.

7. According to Article 17 of the Treaty on European Union ("TEU"), the Commission has a special role for ensuring compliance of European Union (the "EU" or the "Union") Member States, such as the Italian Republic, with the law of the European Union ("Union law" or "EU law"). Articles 258 and 260 of the Treaty on Functioning of European Union ("TFEU") provide for the power of the Commission to launch an infringement proceeding before the Court of Justice of the EU ("CJEU") against EU Member States that violate Union Law. Additionally, in accordance with Article 351(2) TFEU, if the Tribunal was to find that it has jurisdiction, it would result in an open conflict between Union law and the ICSID Convention and the Commission would have to ensure that EU Member States took the steps prescribed in the referred provision to remove such conflict.

8. The Commission considers, at this stage, that the ICSID Convention and the EU Treaties are not in conflict with each other, if they are properly interpreted and applied in line with generally and widely recognized principles of public international law. The Commission underlines its participation in all preliminary ruling procedures before the CJEU, providing a legal analysis that represents the general interest of the Union.

9. According to Article 17 TEU, the Commission "shall ensure the Union's external representation".

For this purpose, the Commission negotiates international agreements on behalf of the Union, i.e., the Energy Charter Treaty (the "ECT"), and also represents the Union before international courts and tribunals, as well as before the courts and tribunals of third countries.

10. The Commission further argues that it played an essential role during the proposition and the negotiation of the ECT on behalf of the Union. Therefore, the Commission has a unique perspective as well as knowledge of the inside drafting history and common understanding of the contracting parties during the negotiations. In addition, the Commission represents the Union in all on-going negotiations regarding the ECT,10 and, from those negotiations, the Commission has gained particular knowledge and insight on techniques on the application of different clauses.

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V. Decision

44. Pursuant to Rule 37(2) of the ICSID Arbitration Rules, the Tribunal decides:

a. To accept the Commission's request to participate in this arbitration as a non-disputing party.

b. The Commission may file a written submission of no more than 15 pages, with no annexes or additional documents, by 2 April 2021 with the Secretary of the Tribunal at nsequeira@worldbank.org (the "Submission"). The Submission shall be limited in scope to the Commission's "perspective, particular knowledge or insight" regarding solely the interpretation of the ECT and EU law related to the two issues of jurisdiction addressed in section 22 of its Application and set out in paragraph 13 above.

c. The Submission shall be presented in English.

d. The Commission shall not have access to the record of this arbitration, nor to the Parties' pleadings.

e. The Commission shall not attend or observe any hearings.

f. The Parties may comment on the Submission in their subsequent submissions, as appropriate.

g. The Commission's participation as a non-disputing party in this arbitration is conditional upon the Commission providing a written undertaking to the Tribunal, on or before 2 April 2021, stating that it will comply with any decision on costs ordered by the Tribunal in connection with the intervention of the Commission in these proceedings as per paragraph (h) hereunder.

h. The Commission shall bear its costs incurred regarding its participation in the proceeding as a non-disputing party. The Tribunal reserves the right to decide on any further question on costs, including whether the Commission shall reimburse any of the Parties' reasonable and properly documented costs in relation to this Application or the Submission, at the appropriate time.

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Footnotes omitted