La mutation des frontières dans l’espace européen de l’énergie

Frédérique Berrod, Antoine Ullestad

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Frédérique Berrod was formerly known for her work on the "systematics of community lawsuits" (F. Berrod, La systématique des voies de droit communautaires, Nouvelle bibliothèque de thèses, vol. 21, Paris, Dalloz, 2003). It was she who, together with Dominique Ritleng (D. Ritleng, Pour une systématique des contentieux au profit d’une protection juridictionnelle effective, in Mélanges en hommage à Guy Isaac, 50 ans de droit communautaire, Tome 2, Toulouse, Presses de l’Université des Sciences sociales de Toulouse, 2004), introduced this rather curious, but now widespread, term for the "systematics" of legal remedies in EU law, which in fact denotes their complementarity. It was in fact up to the case law of the Court of Justice and doctrine to specify the relationship that the various means of redress had to maintain between them, in the silence of the Treaties.

After having contributed to a major advance in Union law on the procedural side, by advocating complementarity between the means of redress, in parallel with the development of case law in this direction, Frédérique Berrod is now looking, with Antoine Ullestad (doctoral student at the Centre for International and European Studies at the University of Strasbourg), at another subject which allows us to question once again the foundations of the projects of the European Communities and Union(s), namely the European Energy Area.

The book consists of three parts: legal interconnections in the European Energy Area, resetting the European Energy Area through solidarity between Member States, and internationalisation of the European Energy Area. The authors conclude with the idea that the materialisation of energy solidarity between the States of the Union cannot avoid strengthened governance, explaining that energy has a major impact on the political-institutional structure of the States, as well as on the governance of the Union (p. 362).

Frédérique Berrod and Antoine Ullestad recall how energy policy is inseparable from national sovereignty. As such, "energy is undoubtedly a condition for the re-enchantment of European integration" (p. 16). This is an optimistic vision. On the contrary, one might think that the European Union project should have started with the gradual establishment of a common culture going beyond historical heritage and de facto solidarity, which would have been perfectly compatible with respect for multilingualism and regional specificities. (One could, for example, consider the Europeanisation of the media, which could be disseminated in several languages, but with identical content - with the exception of local or regional media. Only one television channel of this type exists to date, [Euronews], as well as only one other bi-national channel in the whole of Union [Arte]. Furthermore, intra-European cultural protectionism could be outlawed, for example with regard to the dissemination of literary and artistic works. Aid for translation should be granted, for its part, in application of the principle of non-discrimination[, for example, by granting a substantially equal number of grants for translation from or into French)]. Admittedly, "energy is almost automatically detached from any national and territorial attachment" (p. 38), the "de facto solidarity" referred to by Robert Schuman in his declaration of 9 May 1950 has already shown its limits in terms of re-enchantment and popular support. However, it is still the technique of small sectoral advances that the Energy Union (and, even more recently, the Security Union), which is based on the existing treaties, intends to perpetuate.

The book presents the European Energy Space as an "interconnected space, i.e. legally linked by compatible or equivalent standards that allow for decision-making and coordination of national actions" (p. 39). In addition to the case law of the Court of Justice of the European Union, the majority of sources used are the soft law adopted by the European Commission. One very useful source has not been used, namely parliamentary questions, although these too are to some extent part of soft law. For example, in parliamentary question E-015866-15, Dutch MEP Auke Zijlstra of the Europe of Nations and Freedoms Group asks, with regard to Article 194 TFEU (which states "the right of a Member State to determine the conditions of exploitation of its energy resources, its choice between different energy sources and the general structure of its energy supply" and which constitutes the legal basis for determining the so-called energy "mix"), about Article 194 TFEU: "At the European Parliament’s plenary sitting on 15 December 2015, a vote was taken on the report, ’Towards a European Energy Union.’ The report proposes that the EU’s energy policy should be conducted by an Energy Union. Prime concerns expressed in it are combating warming of the climate and promoting the use of sustainable energy carriers. To what extent is determination of the energy mix (sustainable energy carriers) by the Energy Union compatible with Article 194 TFEU, which reserves for the Member States the power to determine the energy mix? To what extent is the Energy Union’s climate objective compatible with its second objective of ensuring a reliable and affordable (competitive) energy supply for members of the public and industry in the EU? Can the Commission supply financial figures demonstrating that, under the Energy Union regime, energy costs will be less for each EU citizen than in the present situation, in which Member States themselves determine their energy policies?"

He received the following answer on March 9, 2016 (there is no French translation):

"The European Parliament’s Energy Union report recalls the Commission’s Framework Strategy on the Energy Union which sets out how its five dimensions (energy security, internal energy market, energy efficiency, decarbonising the economy and research, innovation and competitiveness) can be more rapidly and efficiently attained by cooperation across the EU through common and better coordinated policies. The implementation of the Energy Union is fully compatible with Article 194 TFEU. Article 194 (2) TFEU has to be understood in the context of the objectives enshrined in the first paragraph of that article, which establishes the duty of the EU to develop policies and establish measures enshrined in the five dimensions of the Energy Union.

2. The Commission refers to its proposal for the 2030 Framework for energy and climate (COM(2014)0015 final) and the accompanying Impact Assessment (SWD(2014)0015 final), both of which assess the interaction between energy and climate objectives and the implications of various levels of emission reductions for competitiveness and security of supply.

3. The completion of the internal energy market is at the core of the Energy Union. The benefits of a European integrated energy market could be rather significant. A study commissioned by the EC estimated that the net benefits stemming from a fully integrated energy market up to 2030 would be of EUR 30 billion per year in the gas market and from EUR 12.5 billion to EUR 40 billion per year in the electricity market."

These elements are at the heart of the analysis proposed in this book, which provides an excellent introduction to the subject. Indeed, neither the general public nor even the vast majority of European lawyers are yet familiar with the Energy Union project. It is a set of general guidelines for the Union’s legislator which already have consequences for the whole area of competition law.

Some elements of the analysis are questionable. For example, the authors write: "It is commonly understood that the internal energy market concerns gas and electricity, the other raw materials being already subject to the provisions of various other Treaties. Nuclear energy is subject to the rules laid down in Article 53 of the Euratom Treaty, oil is subject to the Common Customs Tariff, while the import of coal is subject to the rules of Article 72 of the ECSC Treaty before the latter was included, when it expires in 2002, in the general provisions of the Union on the free movement of goods’ (p. 46).

Article 53 of the Treaty establishing the European Atomic Energy Community (Euratom) deals with the role of the Euratom Supply Agency. The Agency has a right of option on ores, source materials and special fissile materials produced in the territories of the Member States, as well as the exclusive right to conclude contracts for the supply of ores, source materials or special fissile materials from inside or outside the Community (Article 52(2) of the Euratom Treaty). Consequently, within the Euratom Community, the Supply Agency has only a right of option. It is not certain that the supply of nuclear energy is exclusively governed by the provisions on the Supply Agency because of the subsidiary application of certain provisions of the other Treaties to the Euratom Community. Thus, according to the prevailing analysis, the rules on the control of State aid in the nuclear sector are, in the silence of the Euratom Treaty, those laid down in the Treaty on the Functioning of the European Union.

The Energy Union "is a term that covers more assertive and cross-cutting political priorities than those known by the Union up to now" (p. 198). It is therefore a vast field of analysis open to EU legal practitioners and researchers.

[The opinions expressed in this review are personal and do not engage the author’s institution.]

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Athanase Popov, La mutation des frontières dans l’espace européen de l’énergie, February 2017, Concurrences N° 1-2017, Art. N° 83485, pp. 258-259

Publisher Larcier

Date 26 January 2016

Number of pages 200

Visites 324

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