Is EU Law International? Case C-741/19 Republic of Moldova v Komstroy LLC and the Autonomy of the EU Legal Order

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1255-1268 | European Forum Insight of 23 December 2021 | (Table of Contents) I. Introduction. - II. Background. - III. Jurisdiction. - III.1. Multilateral agreement argument. - III.2. EU law interpretation argument. - IV. Intra-EU application of the ECT. - IV.1. Does an ECT tribunal interpret EU law?. - IV.2. Autonomy of the EU Legal order. - V. Conclusion. | (Abstract) In case C-741/19 Republic of Moldova v Komstroy LLC ECLI:EU:C:2021:655, the Grand Chamber of the Court of Justice of the European Union found that the acquisition of a claim arising from a contract for the supply of electricity does not constitute an "investment" within the meaning of the Energy Charter Treaty (ECT). Yet the impact of the case goes far beyond this finding. In coming to this conclusion, the Court found that i) it has jurisdiction to give a preliminary ruling in a dispute that has little or no connection to the EU legal order and ii) the intra-EU application of the ECT's investor-state dispute settlement mechanisms is incompatible with EU law. The Court thus answered the question, debated in academia and before arbitral tribunals, whether the reasoning in its 2018 Achmea judgment applied in relation to the ECT's dispute settlement provisions. Whereas arbitral tribunals have approached the issue through the lens of public international law, in particular the law of treaties, the EU Court approaches the question as one about the autonomy of the EU legal order. Like Achmea, the effects of Komstroy outside the EU legal order are likely to be limited.

Keywords

• art. 267 tfeu
• international agreements
• achmea
• jurisdiction
• energy charter treaty
• autonomy