1999. évi XXXV. törvény
az Európai Energia Charta Konferencia Záróokmánya, az Európai Energia Charta Egyezmény, Döntések az Energia Charta Egyezmény tekintetében, valamint az Energiahatékonyságról és a kapcsolódó környezeti vonatkozásokról szóló Energia Charta Jegyzőkönyv kihirdetéséről1
1. § Az Országgyűlés az Európai Energia Charta Konferencia Záróokmányát, az Európai Energia Charta Egyezményt, Döntéseket az Energia Charta Egyezmény tekintetében, valamint az Energiahatékonyságról és a kapcsolódó környezeti vonatkozásokról szóló Energia Charta Jegyzőkönyvet e törvénnyel kihirdeti.
(A Magyar Köztársaság ratifikációs okmányának letétbe helyezése a Portugál Köztársaság Kormányánál 1998. április 7-én megtörtént, ennek megfelelően a hatálybalépés napja a Magyar Köztársaság vonatkozásában 1998. július 7.)
2. § Az Európai Energia Charta Konferencia Záróokmánya, az Európai Energia Charta Egyezmény, Döntések az Energia Charta Egyezmény tekintetében, valamint az Energiahatékonyságról és a kapcsolódó környezeti vonatkozásokról szóló Energia Charta Jegyzőkönyv angol nyelvű szövege és azok magyar nyelvű fordítása a következő:
„FINAL ACT OF THE EUROPEAN ENERGY CHARTER CONFERENCE
I. The final Plenary Session of the European Energy Charter Conference was held at Lisbon on 16-17 December 1994. Representatives of the Republic of Albania, the Republic of Armenia, Australia, the Republic of Austria, the Azerbaijani Republic, the Kingdom of Belgium, the Republic of Belarus, the Republic of Bulgaria, Canada, the Republic of Croatia, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Communities, the Republic of Finland, the French Republic, the Republic of Georgia, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, the Republic of Iceland, Ireland, the Italian Republic, Japan, the Republic of Kazakhstan, the Republic of Kyrgyzstan, the Republic of Latvia, the Principality of Liechtenstein, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the Republic of Moldova, the Kingdom of the Netherlands, the Kingdom of Norway, the Republic of Poland, the Portuguese Republic, Romania, the Russian Federation, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the Republic of Tajikistan, the Republic of Turkey, Turkmenistan, Ukraine, the United Kingdom of Great Britain and Northern Ireland, the United States of America and the Republic of Uzbekistan (hereinafter referred to as „the representatives”) participated in the Conference, as did invited observers from certain countries and international organisations.
Background
II. During the meeting of the European Council in Dublin in June 1990, the Prime Minister of the Netherlands suggested that economic recovery in Eastern Europe and the then Union of Soviet Socialist Republics could be catalysed and accelerated by co-operation in the energy sector. This suggestion was welcomed by the Council, which invited the Commission of the European Communities to study how best to implement such co-operation. In February 1991 the Commission proposed the concept of a European Energy Charter.
Following discussion of the Commission’s proposal in the Council of the European Communities, the European Communities invited the other countries of Western and Eastern Europe, of the Union of Soviet Socialist Republics and the non-European members of the Organisation for Economic Co-operation and Development to attend a conference in Brussels in July 1991 to launch negotiations on the European Energy Charter. A number of other countries and international organisations were invited to attend the European Energy Charter Conference as observers.
Negotiations on the European Energy Charter were completed in 1991 and the Charter was adopted by signature of a Concluding Document at a conference held at The Hague on 16-17 December 1991. Signatories of the Charter, then or subsequently, include all those listed in Section I above, other than observers.
The signatories of the European Energy Charter undertook:
- to pursue the objectives and principles of the Charter and implement and broaden their co-operation as soon as possible by negotiating in good faith a Basic Agreement and Protocols.
The European Energy Charter Conference accordingly began negotiations on a Basic Agreement - later called the Energy Charter Treaty - designed to promote East-West industrial co-operation by providing legal safeguards in areas such as investment, transit and trade. It also began negotiations on Protocols in the fields of energy efficiency, nuclear safety and hydrocarbons, although in the last case negotiations were later suspended until completion of the Energy Charter Treaty.
Negotiations on the Energy Charter Treaty and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects were successfully completed in 1994.
The Energy Charter Treaty
III. As a result of its deliberations the European Energy Charter Conference has adopted the text of the Energy Charter Treaty (hereinafter referred to as the „Treaty”) which is set out in Annex 1 and Decisions with respect thereto which are set out in Annex 2, and agreed that the Treaty would be open for signature at Lisbon from 17 December 1994 to 16 June 1995.
Understandings
IV. By signing the Final Act, the representatives agreed to adopt the following Understandings with respect to the Treaty:
1. With respect to the Treaty as a whole
a) The representatives underline that the provisions of the Treaty have been agreed upon bearing in mind the specific nature of the Treaty aiming at a legal framework to promote long-term co-operation in a particular sector and as a result cannot be construed to constitute a precedent in the context of other international negotiations.
b) The provisions of the Treaty do not:
(i) oblige any Contracting Party to introduce mandatory third party access; or
(ii) prevent the use of pricing systems which, within a particular category of consumers, apply identical prices to customers in different locations.
c) Derogations from most favoured nation treatment are not intended to cover measures which are specific to an Investor or group of Investors, rather than applying generally.
2. With respect to Article 1(5)
a) It is understood that the Treaty confers no rights to engage in economic activities other than Economic Activities in the Energy Sector.
b) The following activities are illustrative of Economic Activity in the Energy Sector:
(i) prospecting and exploration for, and extraction of, e.g., oil, gas, coal and uranium;
(ii) construction and operation of power generation facilities, including those powered by wind and other renewable energy sources;
(iii) land transportation, distribution, storage and supply of Energy Materials and Products, e.g., by way of transmission and distribution grids and pipelines or dedicated rail lines, and construction of facilities for such, including the laying of oil, gas, and coal-slurry pipelines;
(iv) removal and disposal of wastes from energy related facilities such as power stations, including radioactive wastes from nuclear power stations;
(v) decommissioning of energy related facilities, including oil rigs, oil refineries and power generating plants;
(vi) marketing and sale of, and trade in Energy Materials and Products, e. g., retail sales of gasoline; and
(vii) research, consulting, planning, management and design activities related to the activities mentioned above, including those aimed at Improving Energy Efficiency.
3. With respect to Article 1(6)
For greater clarity as to whether an Investment made in the Area of one Contracting Party is controlled, directly or indirectly, by an Investor of any other Contracting Party, control of an Investment means control in fact, determined after an examination of the actual circumstances in each situation. In any such examination, all relevant factors should be considered, including the Investor’s
a) financial interest, including equity interest, in the Investment;
b) ability to exercise substantial influence over the management and operation of the Investment; and
c) ability to exercise substantial influence over the selection of members of the board of directors or any other managing body.
Where there is doubt as to whether an Investor controls, directly or indirectly, an Investment, an Investor claiming such control has the burden of proof that such control exists.
4. With respect to Article 1(8)
Consistent with Australia’s foreign investment policy, the establishment of a new mining or raw materials processing project in Australia with total investment of $A 10 million or more by a foreign interest, even where that foreign interest is already operating a similar business in Australia, is considered as the making of a new investment.
5. With respect to Article 1(12)
The representatives recognize the necessity for adequate and effective protection of Intellectual Property rights according to the highest internationally-accepted standards.
6. With respect to Article 5(1)
The representatives’ agreement to Article 5 is not meant to imply any position on whether or to what extent the provisions of the „Agreement on Trade-Related Investment Measures” annexed to the Final Act of the Uruguay Round of Multilateral Trade Negotiations are implicit in articles III and XI of the GATT.
7. With respect to Article 6
a) The unilateral and concerted anti-competitive conduct referred to in Article 6(2) are to be defined by each Contracting Party in accordance with its laws and may include exploitative abuses.
b) „Enforcement” and „enforces” include action under the competition laws of a Contracting Party by way of investigation, legal proceeding, or administrative action as well as by way of any decision or further law granting or continuing an authorization.
8. With respect to Article 7(4)
The applicable legislation would include provisions on environmental protection, land use, safety, or technical standards.
9. With respect to Articles 9, 10 and Part V
As a Contracting Party’s programmes which provide for public loans, grants, guarantees or insurance for facilitating trade or Investment abroad are not connected with Investment or related activities of Investors from other Contracting Parties in its Area, such programmes may be subject to constraints with respect to participation in them.
10. With respect to Article 10(4)
The supplementary treaty will specify conditions for applying the Treatment described in Article 10(3). Those conditions will include, inter alia, provisions relating to the sale or other divestment of state assets (privatization) and to the dismantling of monopolies (demonopolization).
11. With respect to Articles 10(4) and 29(6)
Contracting Parties may consider any connection between the provisions of Article 10(4) and Article 29(6).
12. With respect to Article 14(5)
It is intended that a Contracting Party which enters into an agreement referred to in Article 14(5) ensure that the conditions of such an agreement are not in contradiction with that Contracting Party’s obligations under the Articles of Agreement of the International Monetary Fund.
13. With respect to Article 19(1)(i)
It is for each Contracting Party to decide the extent to which the assessment and monitoring of Environmental Impacts should be subject to legal requirements, the authorities competent to take decisions in relation to such requirements, and the appropriate procedures to be followed.
14. With respect to Articles 22 and 23
With regard to trade in Energy Materials and Products governed by Article 29, that Article specifies the provisions relevant to the subjects covered by Articles 22 and 23.
15. With respect to Article 24
Exceptions contained in the GATT and Related Instruments apply between particular Contracting Parties which are parties to the GATT, as recognized by Article 4. With respect to trade in Energy Materials and Products governed by Article 29, that Article specifies the provisions relevant to the subjects covered by Article 24.
16. With respect to Article 26(2)a)
Article 26(2)a) should not be interpreted to require a Contracting Party to enact Part III of the Treaty into its domestic law.
17. With respect to Articles 26 and 27
The reference to treaty obligations in the penultimate sentence of Article 10(1) does not include decisions taken by international organizations, even if they are legally binding, or treaties which entered into force before 1 January 1970.
18. With respect to Article 29(2)a)
a) Where a provision of GATT 1947 or a Related Instrument referred to in this paragraph provides for joint action by parties to the GATT, it is intended that the Charter Conference take such action.
b
) The notion „applied on 1 March 1994 and practised with regard to Energy Materials and Products by parties to GATT 1947 among themselves” is not intended to refer to cases where a party to the GATT has invoked article XXXV of the GATT, thereby disapplying the GATT vis-a-vis another party to the GATT, but nevertheless applies unilaterally on a de facto basis some provisions of the GATT vis-a-vis that other party to the GATT.
19. With respect to Article 33
The provisional Charter Conference should at the earliest possible date decide how best to give effect to the goal of Title III of the European Energy Charter that Protocols be negotiated in areas of cooperation such as those listed in Title III of the Charter.
20. With respect to Article 34
a) The provisional Secretary-General should make immediate contact with other international bodies in order to discover the terms on which they might be willing to undertake tasks arising from the Treaty and the Charter. The provisional Secretary-General might report back to the provisional Charter Conference at the meeting which Article 45(4) requires to be convened not later than 180 days after the opening date for signature of the Treaty.
b) The Charter Conference should adopt the annual budget before the beginning of the financial year.
21. With respect to Article 34(3)m)
The technical changes to Annexes might for instance include, delisting of non-signatories or of signatories that have evinced their intention not to ratify, or additions to Annexes N and VC. It is intended that the Secretariat would propose such changes to the Charter Conference when appropriate.
22. With respect to Annex TFU(1)
a) If some of the parties to an agreement referred to in paragraph (1) have not signed or acceded to the Treaty at the time required for notification, those parties to the agreement which have signed or acceded to the Treaty may notify on their behalf.
b) The need in general for notification of agreements of a purely commercial nature is not foreseen because such agreements should not raise a question of compliance with Article 29(2)a), even when they are entered into by state agencies. The Charter Conference could, however, clarify for purposes of Annex TFU which types of agreements referred to in Article 29(2)b) require notification under the Annex and which types do not.