Opinion of Advocate General Saugmandsgaard Øe in Anie and Others v Italy – End of the Road for intra-EU ECT Arbitration?

Abstract

On 29 October 2020, Court of Justice of the European Union (CJEU) Advocate General (AG) Saugmandsgaard Øe delivered his opinion on Joined Cases C-798/18 and C-799/18 regarding the compatibility of Italian measures reducing incentives in the renewable energy sector with the Charter of Fundamental Rights of the European Union (the Charter) and the Energy Charter Treaty (the ECT). These cases emerged from two questions referred by the Regional Administrative Court of Lazio, Italy to the CJEU. In his opinion, the ag suggests that the Italian measures are compatible with both the Charter and the ECT and recommends that the CJEU issue a preliminary ruling to that effect. In a noteworthy footnote, the AG also expresses his opinion on the consequences of the 2018 Achmea decision for ECT arbitration between EU Member States (intra-EU ECT arbitration). This case note recalls and comments on the arguments of the AG, with a focus on its significance in the debate on the future of intra-EU investment disputes based on the ECT.