It should be noted that the agreement was not a flash of clear skies, but the culmination of a trial launched by the European Commission in 2018 following the ECJ ruling in Achmea. Given the length and intensity of the negotiations and the exclusion of the Ect from its scope, it is quite surprising that the agreement is still not unified: five Member States have given up on signing the termination contract. At Masdar Solar in Spain, the first decision to follow Achmea, the Tribunal correctly pointed out that the Court of Justice had not addressed the issue of the applicability of ECT. The reasoning was presented in Foresight Luxembourg Solar in Spain and CEF Energia against Italy. The Vattenfall court has issued a detailed decision on the issue of Achmea (already under discussion here). In determining the normal meaning of Article 26 of ARTICLE 26 of T.A.C., the Vattenfall court found no indication, in the wording, in the context or purpose and purpose of this provision, that intra-community disputes should be excluded. He also stressed that the ESTK does not contain a “separation clause” guaranteeing that the provisions contained in the joint agreements apply only to third parties and not to EU Member States. The Cube Infrastructure Tribunal in Spain has added to the interpretation a historical justification of the nature of the CEC. In LBBW in Spain, the Tribunal also gave priority to the contract from which it derived its jurisdiction, the ESTK, over the primary law of the EU in the event of a conflict. The Tribunal rejected Spain`s argument. The Tribunal found that the declaration of the 22 Member States did not constitute a subsequent agreement within the meaning of Article 31, paragraph 3, point b) of the VCLT.
According to the Tribunal, the statement was too “fragile to reach an agreement between the contracting states of the ECT that Article 26 means something completely different from what it seems to be saying. The Tribunal found that the declaration was not unanimous within the EU and did not feel the practice and reputation of the various non-EU countries vis-à-vis the ECT. Such a declaration could not alter treaty obligations or put them out of the legend, many of which are not EU Member States and are not bound by the declaration.