Lynn Boylan (Sinn Fein)
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I take it the Minister, Deputy Eamon Ryan, will not be here to respond to my matter either. This is not my first time questioning the Government and being unable to address the Minister responsible.

I again ask about the Government's position regarding the Energy Charter Treaty. I was disappointed by the response I received the last time that Ireland is happy to continue to throw its lot into a reform process that is going nowhere and that fails to address the core problems in the treaty.

Putting aside the fact that change to the treaty requires unanimity and Japan has ruled out any changes to it, the proposals brought forward by the EU Commission fall way short of what is needed. The EU amendments will lock in protections for gas plants, biomass and biogas. There are no proposals for a climate carve-out from investor protections. The EU is leaving the tribunal process, the lack of transparency, the conflicts of interest of the arbitrators and the high awards to the parallel process of reform being undertaken by the UN for which again there is no consensus internationally.

Since I last raised this matter in the House, the European Court of Justice has confirmed what those of us who follow these matters expected which is that following the earlier Achmea ruling, investor state dispute tribunals are not compatible with EU law. Does Ireland still want to continue to spend the critical time we should be using for climate action on negotiating changes to the Energy Charter Treaty?

To date, the investor-state dispute settlement, ISDS, tribunals have ignored the previous European Court of Justice rulings and dismissed member states' claims that the tribunals have no jurisdiction on intra-EU disputes. Since the earlier Achmea ruling, despite an agreement by all EU governments to object to ISDS in intra-EU disputes, 48 ISDS cases have been taken against Spain and it is facing €880 million in compensation awards from renewable energy firms. The Netherlands is facing multi-billion-euro compensation claims by EU investors including RWE which is currently investing in the energy sector in Ireland. Law firms are chomping at the bit to exploit Brexit so that companies can bypass the intra-EU ruling.

Surely it is time for Ireland to follow Italy and leave the Energy Charter Treaty. It has a 20-year zombie clause that ties governments to its provisions even after they leave, but Italy is now five years into its 20-year sunset clause while we are shackling our wagon to a reform process that is going nowhere and losing critical time to act on climate change. All the reports from the reform process suggest that there is no progress. France and Spain have called for withdrawal to be considered and are looking for support from their EU counterparts. I cannot understand why the Minister, as a member of the Green Party, which is completely opposed to ISDS, is not leading the charge for Ireland to leave the Energy Charter Treaty.

The nationwide smoky coal ban was delayed because of legal threats on behalf of foreign investors by the Matheson law firm, despite approximately 1,300 people dying prematurely every year as a result of air pollution. I believe the treaty was used to delay that action. While the ban will now be introduced because it has been extended to other fuels, the truth of the matter is that the treaty had a chilling effect on the Government's right to regulate.

I ask the Minister to outline what Ireland’s position is following the ruling of the European Court of Justice this month. Has it changed? Will it support leaving the treaty?

Norma Foley (Kerry, Fianna Fail)
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I thank the Senator for raising the issue. The Energy Charter Treaty is a political declaration on international energy co-operation with 53 signatories and contracting parties, including all EU member states, except Italy. It was signed in 1994 and entered into legal force in 1998. I regret that the Minister, Deputy Eamon Ryan, is not present, but I read into the record for the Senator's benefit the reply he has issued.

The treaty's provisions focus on four broad areas: the protection of foreign investments, based on the extension of national treatment or most-favoured nation treatment, whichever is more favourable, and protection against key non-commercial risks; non-discriminatory conditions for trade in energy materials, products and energy-related equipment based on World Trade Organization, WTO, rules, and provisions to ensure reliable cross-border energy transit flows through pipelines, grids and other means of transportation; the resolution of disputes between participating states, and in the case of investments between investors and host states; and the promotion of energy efficiency, and attempts to minimise the environmental impact of energy production and use.

The treaty is, therefore, designed to promote energy security through the operation of more open and competitive energy markets, while respecting the principles of sustainable development and sovereignty over energy resources.

Negotiations to modernise the treaty are currently under way, led by the European Commission, primarily to align with Paris Agreement objectives by reforming the protections provided by the treaty to carbon-intensive energy infrastructure.

The recent ruling by the Court of Justice of the European Union referenced by the Senator has since determined that the arbitration system under the treaty cannot be used to claim compensation in intra-EU disputes.

The court confirmed that despite the multilateral character of the treaty, and the fact that it also governs relationships with non-EU countries, "the preservation of the autonomy and specific character of EU law precludes the Energy Charter Treaty from being able to impose the same obligations on the Member States among themselves".

Since the ruling would likely not preclude the use of the treaty arbitration process for intra-EU cases heard elsewhere in the world, there have been further calls from several member states for a co-ordinated withdrawal from the treaty. It should be noted, however, that there is a 20-year sunset clause under which treaty terms would continue to apply. A co-ordinated withdrawal would, therefore, need to manage this risk.

Ireland's position remains to support the Commission's efforts to negotiate meaningful reform of the treaty in the first instance, while reserving the option to support a co-ordinated withdrawal should these efforts fail and if considered appropriate by Government to achieve our national renewable energy and climate ambitions.

Lynn Boylan (Sinn Fein)
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I thank the Minister. I say this with no disrespect to her - I appreciate she came in to read the statement - but it is deeply disappointing that Ireland will continue to push ahead with the reform process that is going nowhere. Japan is not for moving and change requires unanimity. The European Commission's proposals, which are supported by the EU Council, meaning that our Minister would have been part of those proposals, do not address Article 16 of the Energy Charter Treaty, which clearly states that irrespective of other international agreements to which a country may be party, including the Paris agreement, the provisions of the treaty, if they are more favourable to the investor, are the provisions that must apply. When it comes to intra-EU disputes, arbitration has dismissed those rulings. Brexit presents an opportunity for investors to set up in Britain and bypass the intra-EU process. Every minute that we spend on a modernisation process, which does not even address the systemic issues in the Energy Charter Treaty, is a minute that is wasted and lost to climate action. I appeal to the Government to show the leadership we need on climate action and to leave the treaty.

Norma Foley (Kerry, Fianna Fail)
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I again thank the Senator. The issue she has raised will be communicated to the Minister, Deputy Eamon Ryan. I appreciate the points she has raised and the conviction with which she delivered them. I have every confidence that the Minister will revert to her in due course.