After a vote in the Council of the EU for the proposed reform of the Energy Charter Treaty failed last November, the European Commission appears to have radically shifted its strategy. According to a recently leaked non-paper, the Commission now prefers a coordinated withdrawal of the EU, Euratom, and all EU member states from the treaty without prior adoption of the proposed reform. In the eyes of the Commission, a partial withdrawal of some member states, or a withdrawal with prior adoption of the reform, would have serious implications for an EU harmonized approach to energy and investment policy. It would also likely fail due to the lack of consent by the European Parliament that such a step would require.
Meanwhile, seven member states have either announced or already notified their withdrawal, including Germany, France, Spain, the Netherlands, Luxemburg, Poland, and Slovenia. Italy already withdrew from the treaty in 2016. Discussions in the Council on how to limit the adverse effects of the treaty’s 20-year sunset clause through a so-called inter se agreement among withdrawing states are currently ongoing. A draft of this inter se agreement was published last year.