Request for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 10 March 2021 – Republiken Italien v Athena Investments A/S (formerly Greentech Energy Systems A/S), NovEnergia II Energy & Environment (SCA) SICAR, NovEnergia II Italian Portfolio SA

(Case C-155/21)

Language of the case: Swedish

Referring court

Svea hovrätt

Parties to the main proceedings

Appellant: Republiken Italien

Respondent: Athena Investments A/S (formerly Greentech Energy Systems A/S), NovEnergia II Energy & Environment (SCA) SICAR, NovEnergia II Italian Portfolio SA

Questions referred

Is the ECT 1 to be interpreted as meaning that the arbitration clause in Article 26 2 thereof, by which a Contracting Party gives its consent to the international arbitration of a dispute between a Contracting Party and an investor of another Contracting Party concerning an investment by the latter in the former's area, also governs a dispute between an EU Member State, of the one part, and an investor from another EU Member State, of the other?

If Question 1 is answered in the affirmative, are Articles 19 and 4(3) TEU and Articles 267 and 344 TFEU to be interpreted as precluding the arbitration clause in Article 26 ECT or the application of that clause where an investor from an EU Member State may, on the basis of Article 26 ECT, in the event of a dispute concerning an investment in another EU Member State, initiate proceedings against the latter Member State before an arbitral tribunal whose competence and decision that Member State is bound to accept?

If Question 2 is answered in the affirmative, must EU law, in particular the principle of the primacy of EU law and the requirement of its effectiveness, be interpreted as precluding the application of a provision of national law which provides for a time-bar, such as Paragraph 34, second subparagraph, of the SFL, if the consequence of such application is that a party to an appeal may not raise the objection that there is no valid arbitration agreement on the ground that the arbitration clause in or the proposal in accordance with Article 26 ECT is invalid or not applicable as it runs counter to EU law?

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1 Council and Commission Decision 98/181/EC, ECSC, Euratom, of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects (OJ 1998 L 69, p. 1).

2 Final Act of the Conference on the European Energy Charter - Annex 1: The Energy Charter Treaty - Annex 2: Decisions with respect to the Energy Charter Treaty (OJ 1994 L 380, p. 24, Special edition in Swedish: Chapter 12 Volume 003 p. 75).