The Treaty establishing the Energy Community in Articles 90-93 creates a dispute settlement mechanism which bears certain resemblance to the European Community’s infringement procedure without, however, providing for a judicial decision in the last instance. Under these rules, a Party to the Treaty, the Regulatory Board and the Secretariat – upon complaint or on its own motion – may bring a case of non-compliance by a Party with Energy Community law to the attention of the Ministerial Council. The Ministerial Council may determine the existence of a breach by a Party of its obligations by way of a decision. In cases of serious and persistent breaches, certain of the rights deriving of the application of the Treaty to the Party concerned may be suspended by the Ministerial Council.
In a decision taken on 27 June 2008 in Brussels, the Ministerial Council adopted more detailed rules on dispute settlement for the Energy Community. These rules build on the framework set by Articles 90 et seq., structure the procedure and further define the roles of all participants in the procedure.
Most notably, these dispute settlement rules introduce a preliminary procedure preceding the submission of a case of non-compliance to the Ministerial Council. This preliminary procedure will normally be managed by the Secretariat as an independent institution being in a position to clarify the factual and legal circumstances of each case. Under such circumstances, the Secretariat will initiate a case by way of an Opening Letter to be followed, as the case may be, by a Reasoned Opinion and Reasoned Request to the Ministerial Council. In the course of this three-step procedure, the Party concerned will have extensive opportunity for making its arguments heard, to comply of its own accord with the requirements of the Treaty or, if appropriate, to justify its position.
The dispute settlement rules further flesh out the right of private bodies to submit complaints to the Secretariat, thereby making an important contribution to the enforcement of Energy Community law. In this respect, it needs to be mentioned that interested third parties may access the case file and/or submit written observations to the Secretariat provided they substantiate substantiate their legitimate interest.
Another important feature of the dispute settlement rules is the creation of an Advisory Committee composed of three senior lawyers appointed by the Ministerial Council. The Advisory Committee and, in certain cases; the Regulatory Board, will deliver an opinion on cases of alleged non-compliance once it has been submitted to the Ministerial Council.
The dispute settlement procedure constitute an important milestone in the enforcement of Energy Community law, enhancing legal certainty and, ultimately, make investments in the Energy Community more reliable.
