Press release: 21 November 2022

EU rejection of reformed Energy Charter Treaty ‘historic moment’ for climate action

The Council of the European Union late on Friday failed to reach an agreement on the reforms to the controversial Energy Charter Treaty (ECT), in a moment hailed as historic by environmental lawyers.

A vote was due to take place to determine the common position that the EU was set to take at the upcoming ECT annual conference on November 22nd  where all 53 parties to the treaty will decide to adopt or reject the ‘modernised’ agreement.

However, the vote was dropped after it appeared there would not be enough support to provide the European Commission with a mandate to endorse the reforms. As a result, the Commission will now ask for modernisation to be removed from the conference agenda tomorrow.

Amandine Van Den Berghe, ClientEarth lawyer, said: “This is a historic moment in the fight to protect our planet from the fossil fuel giants whose business has been protected by the Energy Charter Treaty.

“By voicing their opposition on Friday, France, Spain, Netherlands and Germany have shown real climate leadership in refusing to let this dangerous treaty obstruct climate action in the critical years to come.

“This is a great victory, but not the end of the fight. Member states that have signalled their withdrawal, or those that have withdrawn, represent around 75% of the EU population: they should now pressure the Commission to urgently design a plan to leave the ECT and solve the current political and legal confusion.

“Neither the European Union nor the member states can adopt the new ECT, and they cannot remain a party to an agreement that fundamentally conflicts with EU law. The Commission is left with no choice but to propose a full EU withdrawal.

"Now Frans Timmermans is back from COP27, he must show leadership as Executive Vice-President of the Commission and do what is in the best interest of the EU’s unity and climate transition.”

ClientEarth lawyers said that the Commission must now facilitate and coordinate the departure with other member states and negotiate an ‘inter-se’ agreement that neutralises the sunset clause.

This way, EU countries can avoid the application of the ECT among themselves for an additional 20 years. The Commission should drive this process, building on its existing proposal for an inter se agreement that applies to claims between EU investors and EU governments, and open this agreement to countries outside the bloc.

Van Den Berghe added: “Other ECT members, such as the UK and Switzerland, must follow in the EU’s lead and quit the agreement. Staying in this outdated treaty will only make their transition harder, slower, and more expensive. The EU’s withdrawal is an opportunity for them to get out.”

“The urgent messages from people on the climate frontline heard during COP27 are a stark reminder of why governments must accelerate the energy transition. On top of the ECT, there are still thousands of bilateral investment agreements with investor-state dispute settlement systems (ISDS) that can be used to stifle climate action.

“The end of the ECT should be the beginning of a complete rethinking of EU’s investment policy – because yes, there are alternatives.”


Notes to editors:
  • Ahead of Friday's vote, NGOs wrote to Frans Timmermans urging he put forward a coordinated withdrawal of the EU. The letter can be accessed here.
About ClientEarth

ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.