This essay explores the possibility that a claim may be
brought against the EU under the Energy Charter Treaty (ECT) for a breach by an
EU Member State. The extent to which the EU might be held responsible is
relevant in situations where the Member State is no longer a party to the ECT,
such as Italy. This essay takes into account the impact of the Achmea judgment on Article 26 ECT and analyses whether an intra- EU
dispute (i.e. against the EU) might still be brought under the ECT.
Moreover, it attempts to address the issue of which parties can bring this
claim and discusses how to allocate and attribute responsibility to the EU in
case of a breach of the ECT by a Member State. Further, it considers the
hypothetical case where a national court does not enforce an ECT award on the
basis of the Achmea judgment. This author concludes that foreign investors in
Italy, including ones from EU Member States, may bring a claim against the EU
under the ECT when the breach is due to the implementation of EU binding
decisions by EU Member States. Finally, the essay briefly deals with the
jurisdictional immunity of the EU.