prompt:
you are cocoo’s competition in house solicitor. cocoo’s goal is to find liability , whether strict liability or non strict liability in the spanish government and the relevant ministry, for the many arbitral awards against spain arising from companies harmed by Spain’s decisions regarding the ECT. Therefore, we need to argue that Spain, as a nation, is distinct from the government, that is an Agent of Spain. When Agents are reckless or negligent in their conduct they should be found liable and pay compensation to victims, not only under contract law (as in the ongoing arbitration proceedings against Spain) but also under Tort, because under Tort, we are able to seek damages for tort victims of the government’s decisions, for example for harmed consumers, competitors, and the wider public interest. Your job, as in house solicitor, is to read the files attached and extract ALL information to help us build a strong case against the spanish government and relevant ministry for their decisions in connection with the ECT, build a strong case against the Spanish government and relevant ministries for liability under Tort law arising from arbitral awards related to the Energy Charter Treaty (ECT):
### **1. Legal Basis for Tort Liability**
Under Spanish Tort law (Article 1902 of the Civil Code), liability arises from acts or omissions causing harm due to negligence or recklessness. Key elements to establish:
– **Duty of Care**: The government owed a duty to investors, consumers, and the public to regulate responsibly, ensuring compliance with international obligations (e.g., ECT) and avoiding foreseeable harm.
– **Breach of Duty**: Reckless regulatory changes destabilized the renewable energy sector, violating ECT protections (e.g., fair treatment, legitimate expectations).
– **Causation**: The regulatory changes directly caused financial harm (e.g., arbitral awards, legal costs) and public detriment (diverted climate/energy poverty funds).
– **Damages**: Quantifiable losses (€1.2B+ in awards, €101M in legal fees) and broader societal harm (undermined energy transition, inequitable burden on taxpayers).
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### **2. Evidence of Governmental Negligence/Recklessness**
#### **a. Failure to Foresee Legal Consequences**
– The TNI report highlights Spain’s retroactive regulatory changes post-2008 crisis, which tribunals consistently deemed a breach of ECT obligations (21/27 cases lost). This indicates the government failed to conduct adequate legal risk assessments despite being an ECT signatory.
– The BIT with the Philippines (Art. 3-4) mirrors ECT protections (fair treatment, expropriation). Spain’s pattern of breaching similar treaty obligations suggests systemic negligence.
#### **b. Disregard for International Law**
– Tribunals in cases like *Canepa v. Spain* (ICSID Case No. ARB/19/4) rejected Spain’s jurisdictional objections (e.g., “lack of investment,” “abuse of process”), confirming the measures violated ECT standards. This underscores the government’s failure to align domestic policies with international commitments.
#### **c. Mismanagement of Public Funds**
– The TNI report notes Spain spent €101M on arbitration costs (average €4M/case) and faces €3B+ in pending claims. These funds were diverted from climate action and energy poverty alleviation, harming public interest.
– Spanish courts upheld the regulatory changes domestically, but tribunals found them internationally unlawful. This discrepancy shows the government prioritized short-term fiscal goals over long-term legal and financial risks.
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### **3. Broader Harm to Public Interest**
– **Discriminatory System**: The ECT enabled foreign investors (89% financial speculators) to claim compensation, while domestic SMEs/cooperatives (75% of renewable investments) lacked recourse. This skewed the energy transition toward profit-driven entities, harming local stakeholders.
– **Climate Obstruction**: The TNI report warns the ECT protects €8B in Spanish fossil fuel assets. Future phase-out measures could trigger new claims, chilling climate policies (e.g., *Achmea* intra-EU objections ignored in ECT cases).
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### **4. Overcoming Sovereign Immunity**
– **Commercial Exception**: If Spain’s regulatory acts are deemed commercial (e.g., managing energy markets), sovereign immunity may not apply.
– **Tortious Conduct**: Sovereign immunity does not shield intentional/reckless harm. Spain’s disregard for ECT obligations and taxpayer costs could meet this threshold.
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### **5. Legal Strategy**
#### **a. Tort Claims Against Ministries**
– Target the **Ministry of Ecological Transition** and **Ministry of Industry** for designing/implementing reckless policies. Cite their awareness of ECT risks (e.g., prior arbitrations, EU directives against retroactive changes).
– Use the TNI report’s data on legal costs and awards to quantify damages.
#### **b. Public Interest Litigation**
– Argue harm to consumers (higher energy prices due to diverted funds) and competitors (unfair advantage to foreign investors). Reference the €1.2B awards as funds misallocated from Spain’s 2021 energy poverty budget (€242M).
#### **c. Precedent**
– While rare, cases like *Urgenda Foundation v. Netherlands* (climate negligence) show courts can hold governments liable for policy failures. Spain’s ECT mismanagement similarly jeopardized public welfare.
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### **6. Key Documents Supporting the Case**
1. **TNI Report (2022)**:
– Spain’s 77% loss rate in ECT cases (21/27 awards).
– €1.2B+ in compensation, €101M in legal costs.
– Investors’ speculative nature (89% financial firms; 50% fossil fuel ties).
2. **Canepa v. Spain (ICSID, 2020)**:
– Tribunal’s dismissal of Spain’s jurisdictional objections, affirming ECT violations.
– Recognition of claimants’ investments despite Spain’s “shell company” arguments.
3. **Spain-Philippines BIT**:
– Illustrates Spain’s treaty obligations (fair treatment, expropriation), breached similarly under ECT.
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### **Conclusion**
The Spanish government acted recklessly by enacting retroactive regulatory changes without mitigating ECT risks, causing direct financial harm and public detriment. A Tort case can hold ministries liable for negligence, seeking compensation for arbitral losses and broader societal damages. This approach shifts liability from the state (principal) to its agents (government bodies), leveraging tribunal findings and public financial data to prove recklessness.
The EU has taken the final step to exit the Energy Charter Treaty (ECT), a multilateral trade and investment agreement applicable to the energy sector, which is not compatible with the EU’s climate and energy goals under the European Green Deal and the Paris Agreement.
Two written notifications have been sent by the Council and Commission to the Government of Portugal, which is the official depositary of the Treaty, notifying respectively the withdrawal of the European Union and Euratom. The withdrawals will take effect in one year. These notifications follow the agreement between EU Energy Ministers last month on the Commission’s proposals to pursue the withdrawal and Treaty modernisation in parallel.
This week, the Union and its Member States have also reached a formal agreement to put an end to the continuation of intra-EU arbitration proceedings under the ECT that are contrary to Union law. More specifically, the agreement is aimed at clarifying, for the benefit of courts and arbitral tribunals, that the arbitration clause provided in the ECT does not apply – and never has – in the relations between an EU investor and an EU country.
The agreement follows the Komstroy judgment, in which the Court of Justice held that the arbitration clause of the ECT must be interpreted as not applicable to disputes between a Member State and an investor from another Member State concerning an investment made by the latter in the first Member State. In other words, under Union law, within that framework, arbitration awards are invalid and as such unenforceable anywhere in the Union.
This judgment binds all Member States and their domestic courts. However, the clear case law of the Union courts has not always been respected by arbitral tribunals, which have continued to accept jurisdiction and hand down awards in intra-EU proceedings. The Member States, the EU and Euratom therefore decided to negotiate an agreement under public international law to settle this matter. The agreement clarifies, for the benefit of courts and arbitral tribunals, that the arbitration clause provided in the ECT does not apply in the relations between an EU investor and an EU Member State.
The Member States and the Union further agreed to accompany the closing of negotiations on the agreement with a Declaration on the legal consequences of the Komstroy judgment. That Declaration was signed on 26 June. The Declaration is effective as of its signature and will be later published in the Official Journal of the European Union. The inter se agreement is now subject to internal procedures leading to its signature and entry into force. For the Union and Euratom, the Commission is preparing the necessary proposals to authorise signature and adoption of the agreement.
Both texts reflect the case law of the Court of Justice of the European Union and are entirely in line with the established position of the Union as expressed on numerous occasions including in open court in third country jurisdictions. The Energy Charter Treaty Secretariat has been informed of this agreement.
Background
The Energy Charter Treaty is a multilateral trade and investment agreement applicable to the energy sector that was signed in 1994 and entered into force in 1998. The European Union is a Contracting Party to that Treaty, together with Euratom, 22 EU Member States (as of 26 June 2024), as well as Japan, Switzerland, Turkey and most countries from the Western Balkans and the former Union of Soviet Socialist Republics, with the exception of Russia and Belarus. In terms of the EU Member States, Italy unilaterally withdrew in 2015. France, Germany, Poland and Luxembourg have already exited the ECT. Slovenia, Portugal and Spain have also initiated a procedure of withdrawal.
The Commission has negotiated a modernisation of the ECT on behalf of the EU to bring it in line with the Union’s climate and energy goals, and its investment protection framework. However, due to a lack of majority support from the Member States, the EU has not yet voted for the modernisation of the ECT. The Commission has subsequently proposed for the EU, Euratom and the Member States to withdraw from the unmodernised Treaty, mostly due to concerns over protection of fossil fuels investments. Under the Belgian Presidency of the EU, last month an agreement was found with Member States to proceed with the withdrawal and the modernisation process in parallel.
At the same time, the Commission has been engaged with the Member States for years to clarify the legal context for disputes under the ECT. In October 2022, the Commission sent a Communication to the Council, the European Parliament and the Member States setting out its intention to open negotiations on an agreement between the Union, Euratom and the Member States in relation to the interpretation of the Energy Charter Treaty that would include, in particular, a confirmation that the Energy Charter Treaty does not apply intra-EU and therefore, it cannot serve as a basis for arbitration proceedings.
The Union joined the Energy Charter Treaty with partner countries around the world as part of its external energy policy. The offer to arbitrate disputes contained in that Treaty was never intended to supplant the system of judicial protection set up under the EU Treaties. In its Komstroy judgment, the CJEU recognised that this was the only proper way to interpret the Energy Charter Treaty.
For More Information Energy Charter Treaty
The UK AND SPAIN confirm withdrawal from the Energy Charter Treaty after efforts to agree vital modernisation fail.:
Civil society organisations and parliamentarians from all political parties have been clear that the Energy Charter Treaty is an out-of-date agreement and undermines our efforts to tackle climate change. We welcome the UK’s decision to leave, which will strengthen global efforts to roll out cheap, clean renewable energy. Today, the UK joins 9 EU member states, including France, Spain and the Netherlands, in withdrawing from the treaty. The decision will support the UK’s transition to net zero and strengthen its energy security. Minister of State for Energy Security and Net Zero, Graham Stuart, said:
The Energy Charter Treaty is outdated and in urgent need of reform but talks have stalled and sensible renewal looks increasingly unlikely.
Remaining a member would not support our transition to cleaner, cheaper energy, and could even penalise us for our world-leading efforts to deliver net zero.
With £30 billion invested in the energy sector just since September, we continue to lead the world in cutting emissions, attracting international investment and providing the strongest legal protections for those who invest here
cocoo has o2:
1/scout all ec.cma.cnmc.doj decis >> extract evidence.findings >> FOC4dams4.bsd (same case, different party/ies)
2/ 3PINT.JR + COMPLAINT (2 ec.cma.cnmc.reg.member) V (privco/PUS/CMA/EC/reg/cnmc/Members) for their own decisions, or for failing to challenge others’ decisions, when such decision is (pot) either :
-UV decis (by cma.ec.cnmc.reg), becos enforces CLP, in a manner that is beyond the statutory powers delegated (by 1leg) to that reg/pus
-UNLAWFUL decis (by cma.ec.cnmc.reg), becos violates EULAW (Treaties…)
– unlawful undertaking agreement or conduct between direct or indirect competitors
3/complaint2 (euomb/ukparlomb) Omb decis is only a recommendation. no teeth.EX: COMPLAINT V THE EC.CMA.SOSBT… DECIS on any of my complaints listed
-EX: (case:proSpain): cocoo complaints (to EC+cnmc) against the ECT agreement, and any related decisions that harm the signatories, like Spain. the ECT agreement IS CONTRARY TO CLP and eulaw, and promotes stealth.cons and cartel behaviour by the smaller fish that circle the sharks..COCOO: cocoo: some ect rules are incompatible with eulaw. consecuently, eu members that are also ect members, becos of the ect rules they must follow, sometimes are forced to commit uv/illegal decis. the claimants are privcos,little fish, that, to thrive, behave as a de-facto cartel ( an implied sust.ua that fails at least 1 of the 4Exempt.Conds.) + stealth.consolid. driver >> COCOO: IF EC ALLOWS ECT, EC WOULD BE ACTING U.V./ILLEGAL
-EX: (case:proGoogle): cocoo complaints against ad.rivals: ECJ DECIS: gd.pdf.ecj.decis.24nov.vgoogle
The ECT:
Energy Charter Treaty provides a multilateral framework for energy cooperation that is unique under international law. It is 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. The Energy Charter Treaty was signed in December 1994 and entered into legal force in April 1998. Currently there are fifty-three Signatories and Contracting Parties to the Treaty. This includes both the European Union and Euratom. 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 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;
- the promotion of energy efficiency, and attempts to minimise the environmental impact of energy production and use
The Competition & Consumer Organisation Party Limited (The COCOO). UK Companies House Registration Number: 15466919. Address: 23 Village Way, Beckenham. Postcode: BR33NA.United Kingdom. Email: contact@cocoo.uk
06.01.2025
Letter of complaint
This Complaint pertains to state aid concerns related to compensation awarded under the Energy Charter Treaty (ECT). The Energy Charter Treaty (ECT) is a multilateral agreement designed to promote and protect energy investments across borders. Below are the full details of the treaty: Date of Signature: December 17, 1994. Entry into Force: April 16, 1998.
Complainant:
The Competition & Consumer Organisation Party Limited (The COCOO). UK Companies House Registration Number: 15466919 Address: 23 Village Way, Beckenham. Postcode: BR33NA. United Kingdom. Email: contact@cocoo.uk Phone: 07716601277
Identity and legal standing:
• Type: limited company
• Representation: The Competition & Consumer Organisation Party Limited (The COCOO). UK Companies House Registration Number: 15466919 Address: 23 Village Way, Beckenham. Postcode: BR33NA. United Kingdom. Email: contact@cocoo.uk Phone: 07716601277
Our constitutional mandate is to quality-control, ex-officio, decisions by competition authorities, public bodies or firms, that could deter synergies and positive externalities, or harm competition, investment, consumer welfare or the public interest
Explain effect on competitive position:
The compensation awards granted under the ECT disproportionately favor specific investors in the energy sector, creating an uneven playing field. This distorts competition, affecting the broader European market and harming other energy companies that must comply with stricter regulatory frameworks without equivalent compensation.
5. Information regarding the Member State granting the aid
• Country: Spain
• Granting body: Central government of Spain
6. Information regarding the alleged aid measure
a) The alleged aid involves compensation payments to investors under ECT arbitration awards, funded through public resources. These payments provide financial benefits to specific companies in the renewable and fossil fuel sectors.
b) Purpose: To compensate for regulatory changes, including the repeal of favorable energy tariffs and incentives under Spain’s feed-in tariff system.
c) Amount: Estimated at €8 billion in total claims, with over €1.2 billion awarded so far.
d) Beneficiaries: Specific energy sector investors (e.g., E.ON, Antin, and others) who filed arbitration claims under the ECT.
e) Dates: Awards were issued between 2015 and 2024.
f) State aid notification: According to our knowledge, the state aid was not notified to the European Commission.
7. Grounds of complaint
a) Public resources: Compensation is paid from Spain’s state budget, directly involving public funds.
b) Selectivity: The awards benefit only specific investors in the energy sector, providing a selective advantage to those who pursued arbitration under the ECT.
c) Economic advantage: The compensation shields investors from losses due to regulatory changes, giving them an unfair financial benefit compared to competitors who did not receive similar compensation.
d) Distortion of competition: By providing selective compensation, the awards distort competition in the EU energy market, favoring specific investors over other energy producers, including those operating in compliance with Spain’s new regulations.
e) Effect on trade: These awards impact intra-EU trade by giving foreign investors competitive advantages in the Spanish and broader EU energy markets, undermining fair competition principles.
8. Compatibility of the aid
The aid is incompatible with the EU internal market because:
• It undermines the objectives of EU climate policies, including the European Green Deal, by preserving fossil fuel investments.
• It violates the principle of a level playing field by granting selective economic advantages.
9. Infringement of other EU rules
The awards infringe upon:
• Articles 107 and 108 TFEU (state aid rules).
• EU climate policy goals, such as the Paris Agreement and the European Green Deal.
• Achmea and Komstroy judgments, which deem intra-EU arbitration under the ECT incompatible with EU law.
10. Supporting documents
• Copy of the ECT.
• Text of Law 7/2021 (Climate Change and Energy Transition Act).
• Relevant arbitration awards and case summaries (e.g., E.ON v. Spain, Antin v. Spain).
• CJEU rulings in Achmea and Komstroy.
Declaration
LONDON, 06 JANUARY 2025
SIGNED: OSCAR MOYA LLEDO
DIRECTOR
THE COCOO