Saturday, 17 January 2009

EU Law: Energy and solidarity

Without heating in the middle of the winter! Freezing Europeans in the 21st century!

The supply of gas interrupted by the conflict between Russia and Ukraine has done as much to convince citizens of the European Union of the need for more Europe as the financial sector turmoil and the economic recession, with efforts at concerted action and the Eurozone somewhat sheltered from the worst effects.

The EU Treaty of Lisbon reflects the growing realisation that the European Union needs effective tools to improve the energy markets internally and to act decisively on the international arena.

Compared with the stranded Constitutional Treaty, the new Energy Title of Lisbon Treaty evokes a much needed spirit of solidarity between the member states.

In addition, energy is at the heart of mankind’s efforts to combat climate change. Without the European Union as lead player, the global efforts would be even more inadequate than at present. This challenge calls for global solidarity.

We look at the new treaty level provision on energy.

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TEC


There is no Title on energy and no specific Article in the current Treaty establishing the European Community (TEC). Cf. the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E.

This does not mean that the European Community has not become active, but in the absence of a specific legal base legislative measures depend on competence in related policy areas or on the so called flexibility clause, Article 308 TEC, which requires unanimous Council decisions and relegates the European Parliament to being only consulted.

In other words, not the most promising setting for effective action.


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Draft Constitution

Mindful of the need, the European Convention proposed a new Article III-157 on energy in 2003.


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Constitutional Treaty

The proposed provision was taken over by the intergovernmental conference in 2004. But Article III-256 of the Constitutional Treaty became one of the casualties of the stalled ratification processes and the prolonged wait for a new treaty.
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Original Lisbon Treaty (ToL)

Article 2, point 147 inserted a new Title XX Energy and a new Article 176a (OJEU 17.12.2007 C 306/88):

ENERGY

147) Title XX shall be replaced by the following new Title and new Article 176 A:

‘TITLE XX
ENERGY

Article 176 A

1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:

(a) ensure the functioning of the energy market;

(b) ensure security of energy supply in the Union; and

(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and

(d) promote the interconnection of energy networks.

2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.

Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 175(2)(c).

3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.’.



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Renumbering the Treaty of Lisbon (ToL)

The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XX Environment in the TFEU (ToL) was renumbered Title XXI Energy in the consolidated version of the Lisbon Treaty.

Article 176a TFEU (ToL) was renumbered Article 194 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).


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Lisbon Treaty consolidated

Article 194 TFEU

After renumbering the Article and the referral, Article 193 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):

TITLE XXI
ENERGY

Article 194 TFEU

1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:

(a) ensure the functioning of the energy market;

(b) ensure security of energy supply in the Union;

(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and

(d) promote the interconnection of energy networks.
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.

Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).

3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.


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Improvements by the Lisbon Treaty

The Lisbon Treaty added the guiding principle ‘in a spirit of solidarity between Member States’, a spirit much in demand at the moment.

But noble thoughts are more easily put into practice if the tools for effective decision-making are in place. The ordinary legislative procedure is adopted by the Lisbon Treaty, in line with the draft Constitution and the Constitutional Treaty.

At the end of the day, this is one of the reasons why the Treaty of Lisbon (with all its imperfections) should be ratified as a step towards an EU capable of promoting the interests of its citizens.


Ralf Grahn