Читать книгу Derecho de la energía y el clean energy package - Elisenda Malaret García - Страница 25

Taking into account all of the above, one can draw the following conclusions regarding the EU Energy Policy:

1. This is an area in which, first and foremost, political decisions –on the basis of which it is determined each time what, when and with what content will be regulated– take into account not only legal criteria, but also economic and technical ones. These political decisions are taken by the European Council, which is the body which, according to the Treaty on European Union “shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities there of…” (article 15 (1) TEU). These political decisions, which reflect the positions of the Member States, are generally taken unanimously (unless otherwise provided in the Treaties, Article 15 (4) TEU) and lead to legal provisions both under primary and secondary European Law.

The European Council had a crucial role in defining EU energy policy, especially since the Maastricht Treaty (1990/1992), which introduced, for the very first time in the European Treaties, provisions which were directly or indirectly linked to energy. Such provisions that are indirectly linked to energy may be found in the Treaty provisions regarding the protection of the environment.

The role of the European Council during the period 2006-2014, was particularly important. During this period, this supreme political body adopted decisions which, according to their nature, were addressed, to the EU legislator of secondary law (including the Commission which, according to the Treaties, is vested with powers to initiate legislative proposals) and which concerned, for instance, legislation on internal security of supply of oil, gas and electricity, the legislation of in the fields of integration of the internal market of natural gas and electricity, the legislation on energy efficiency and the development of renewable energy sources etc. Secondly, these decisions regarded the Treaties, for instance, in relation to the four objectives of the European Energy policy (Article 194 TFEU) or of the solidarity clause in the context of difficulties arising in energy supply (Article 122 TFEU). Thirdly, these decisions were addressed to the Commission as guidelines for the exercise of political action and the implementation in practice of these general guidelines, such as, for instance, the encouragement of neighbouring countries, through which e.g. oil or gas pipelines pass, to adopt similar institutions and regulations in the energy sector, etc.

What is also characteristic of the European Council’s decisions is the European Energy policy’s economic target concerning the competitiveness of the European economy, a broader concept than that of competitive domestic energy market, but also the economic incentive to accelerate national investment licensing procedures or the invitation addressed to the European Investment Bank to grant loans (at a low interest rate) to finance PPP programs in the field of development of new energy technologies, in an effort for “decarbonisation”, as well as the political incentive for the diversification of energy sources (eg natural gas), producers – suppliers and transit routes, in order to reduce the EU’s dependence on imports, and finally, the political position that the EU must support the goal of external security supply (imports) with its foreign policy.

Finally, of great importance is the decision of the European Council of 12 December 2019 by which, following the proposals of the new Commission on “European Green Deal” of 11 December 2019, it endorsed the objective of achieving a climate-neutral EU by 2050, in line with the objectives of the Paris Agreement. This unanimous decision of the Member States, translated into EU law, means that they voluntarily committed, inter alia, to increase the participation of the Renewable Energy Sources up to 50% of the energy mix, thus limiting their exclusive right, according to Article 194 (2) TFEU, to determine this percentage themselves. This was of course preceded by an agreement of Member States on the determination of a participation rate of renewables amounting to 20% in 2020 and to 27% in 2030.

2. The energy policy has been present from the first day of the creation of the European Communities, i.e. the European Coal and Steel Community (1952), the European Atomic Energy Community and the European Economic Community (1958). With regard to its content, we can distinguish six (6) phases in the evolution of the energy policy and energy law:

a) the phase of the creation of the three Communities,

b) the common policy phase from 1964 onwards (attempt to coordinate policies within the three European Communities),

c) the phase of the reaction of the European Communities to the oil crisis of 1973 and 1979 (effort to reduce the dependence on oil),

d) the phase of the creation of a real internal energy market, in which the Treaty of Maastricht (1992/1993) added to the objectives of the EC Treaty (TEC) as a new Community objective, “measures in the area of energy” (Article 3, point u) TEC) and introduced new provisions on Τrans-European Νetworks in the area, among others, of energy infrastructures (Articles 154 to 156 TEC) and the protection of the environment as such (Articles 174 to 176 TEC), where two provisions with regard to energy were included: first, article 174 (1) TEC referred to “prudent and rational utilisation of natural resources”, and, second, article 175 (2) c) TEC, referred to the adoption by the Council, acting unanimously, of measures significantly affecting a) “a Member State’s choice between different energy sources” and b) “the general structure of its energy supply”. The provision of Article 100 TEC on severe difficulties in the supply of certain products is closely related. Finally, the area of energy was also subject to the so-called horizontal provisions of the EC Treaty.

e) the phase of the Lisbon Treaty (2007/2009), which, on the one hand, preserves the EU’s competence in the area of energy as a shared competence expressly defined in article 4 (2), i) TFEU, and, on the other hand, introduces into the TFUE for the first time a special chapter on a Union energy policy (Article 194 TFEU), while maintaining the other provisions in the area of energy. Indeed, pursuant to Article 194(1) TFEU, the EU energy policy sets the following four (4) objectives: a) ensure the functioning of the energy market, b) ensure the 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.

Furthermore, Article 194 (2) sub-paragraph (b) TFEU, specifies that the adoption of legislative measures by the Union aiming to achieve the four objectives mentioned in paragraph 1 TFEU shall not affect [a] a Member State’s right to determine the conditions for exploiting its energy resources, [b] its choice between different energy sources and [c] the general structure of its energy supply. In this way the Lisbon Treaty recognizes another exclusive right for Member States, in addition to the other two already recognized by the Maastricht Treaty.

f) The sixth phase, in which we entered at the beginning of 2015, is marked, due to the climate change, by a definitive change of direction in order to link the protection of the environment with the renewable sources of energy (“transition to a law-carbon economy” or “decarbonisation”). Since 2015/2016, the fight against climate change is a primary concern of the European bodies. Thus, the European Commission adopted the “Energy Union Package”, based, among others, on the goals (“dimensions”) of decarbonising the economy, of encouraging private investment in new infrastructure and technologies and of setting an EU target of at least 27% energy savings by 2030 and of at least 27% for the share of renewable energy consumed in the EU in 2030.

For its part, the European Council, on one side, laid down the “directions” of the “energy transition” (“decarbonisation”) of the EU and, on the other side, welcomed the signing and the enforcement of the Paris Agreement on climate change (2015/2016), according to which the Parties agreed to undertake ambitious efforts to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low carbon future (“decarbonisation”).

Finally, the next step in policy-making is the proposal of the new Commission, chaired by the Commission President Ursula von der Leyen, known as the “European Green Deal”, which was presented in December 2019. This is a new growth strategy, which will define the way in which Europe will become the first climate-neutral continent by 2050.

3. By applying the provisions of the Maastricht (1992/1993) and Lisbon Treaties (2007/2009) and the decisions of the European Council, the EU legislator has adopted at the level of the secondary law significant legal acts. These acts concern: a) the functioning of the energy market, b) security of supply, c) energy efficiency, d) renewable energy sources and e) greenhouse gas emission allowance trading.

More particularly, with regard to the functioning of the energy market, the EU legislator adopted the legal acts in three stages, in 1996/1998, 2003 and 2009. These acts are called the “three packages”. The result of these three packages has been the liberalisation of the market in terms of the production of electricity and the importation of natural gas as well as in terms of the distribution of the two sources of energy to undertakings and households. The latter now have the right to choose their supplier.

On the other hand, the level of energy transport continues to be a natural monopoly. However, the legislation introduces the rule of third-party access to the system in return for payment. This rule is specified in each particular case by each competent national regulator. A new body, the Agency for the Cooperation of Energy Regulators (“ACER”), is responsible for cooperation between the national regulators. This body may also, among other things, take binding decisions. These decisions may be attacked by an act for annulment before the General Court of the EU.

As a part of the 6th phase of the EU Energy Policy, and in view of the Paris Agreement on climate change (signed on 12 December 2015 and entered into force on 4 November 2016), by virtue of which the Parties, including the EU and its Member States, agreed to undertake ambitious efforts to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low carbon future (“decarbonisation”), the Commission presented, in November 2016, 8 legislative acts (4 Regulations and 4 Directives), under the title “Clean energy for all Europeans package”, which were adopted by the European legislator in 2018 and 2019.

All Regulations have already entered into force, and EU countries have 1-2 years to transpose the new Directives into national law. The changes will bring considerable benefits from a consumer perspective, environmental perspective, and from an economic perspective.

4. The cases that have been brought before the Court of Justice of the EU (General Court and Court of Justice) may be divided into eight categories: a) interim measures, b) liberalisation of the gas and electricity markets at production and distribution level, c) ACER (concerning the application and interpretation of the Regulation 713/2019 establishing the ACER), d) cartels and abuse of dominant positions (Articles 101 and 102 TFEU), e) control of concentrations (Regulation 4064/89 and Regulation 139/2004 of the Council), f) state aid (articles 107, 108 TFEU), g) energy and taxation, and h) energy and the environment (i. Energy efficiency, ii. promotion of the use of energy from renewable sources, iii. Greenhouse gas emission allowance trading).

5. The lawyers in the European Union have an important role to play and it is for this reason that some of us took the initiative to establish national associations for energy law. Since 2017, the European Federation of Energy Law Associations (EFELA) has been established to promote the exchange of ideas and views among practitioners, academics, and undertakings operating in different Member States.

Finally, the European Court of Justice (the General Court and the Court of Justice) will be the institution which will resolve any kind of legal problems that might arise from the application of the recent energy legislation and I am confident that it will offer the necessary legal certainty, as it has done until today! I am sure that the president of the Portuguese Association for Energy Law Prof. José Luís da Cruz Vilaça who was the first president of the General Court (Court of First instance at that time) and member of the Court of justice will confirm that.

1. Prof. Dr. Constantinos Iliopoulos is judge at the General Court of the European Union, honorary president of the EFELA (European Federation of Energy Law Associations) and president of the HAEL (Hellenic Association of Energy Law). This article is the written version of Prof. Dr. Iliopoulos’ presentation at the Conference on “Energy Law in transition”, organized by the “Asociación Española de Derecho de la Energía” (AEDEN) in Madrid, on 17th and 18th September 2019. It has been updated to reflect as closely as possible the state of the law as of 31 December 2019. All views expressed are strictly personal and should not be considered as reflecting the position of the Court of Justice of the EU, of the “Hellenic Energy Law Association” or of the EFELA.

2. According to article 174 (1) TEC, “Union policy on the environment shall contribute to pursuit of the following objectives: – …, – …, – prudent and rational utilisation of natural resources, – promoting measures at international level to deal with regional or worldwide environmental problems”, according to article 174 (2) TEC, “Union policy on the environment … shall be based on [a] the precautionary principle and on the principles that preventive action should be taken, that [b] environmental damage should as a priority be rectified at source and that [c] the polluter should pay…”. According to article 174 (4) TEC, “…the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned which shall be negotiated and concluded in accordance with article 300”. Finally, while according to article 175 (1) TEC, the European Parliament and the Council shall decide what action is to be taken in order to achieve the aforementioned objectives in accordance with the ordinary legislative procedure, article 175 (2) TEC provides that “the Council acting unanimously … shall adopt: a) …, b) …, c) measures significantly affecting [i] a Member State’s choice between different energy sources and [ii] the general structure of its energy supply” (underlining added).

3. The numbering of all the above provisions is the numbering given by the Treaty of Nice (2000/2003) to the provisions of the EEC Treaty (1957/1958), as the latter was amended by the Maastricht Treaty (1990/1992) and Treaty of Amsterdam (1997/1998).

4. Namely, the six Community freedoms including the free movement of goods, the free movement of workers, the freedom of establishment of natural and legal persons, the freedom to provide services, the free movement of capital and the free movement of payments, as well as the provisions about the competition between undertakings, including state-owned companies and public utility companies in combination with the provision on services of general economic interest as well as the provisions on state aids, the provisions concerning the common commercial policy and the provision on the conclusion of international agreements.

5. On the one hand, in the 4rth objective of the Union policy on the environment (“promoting measures at international level to deal with regional or worldwide environmental problems”) was added “in particular combating climate change”, article 191 (1) TFEU, ex article 174 (1) TEC. On the other hand, while in the provision of the TEC about the arrangements for cooperation between the Union and the Member States with third countries and with the competent international organisations is expressly foreseen that these arrangements should be the subject of agreements according to article 300 TEC (ex article 174 (4) TEC), article 191 (4) TFEU makes no reference to article 218 TFEU, which is the equivalent of article 300 TEC. There is no doubt, however, that article 218 TFEU does apply. Finally, according to article 192 (2) TFEU, the Council acting unanimously … shall adopt: a) …, b) …, c) measures significantly affecting [i] a Member State’s choice between different energy sources and [ii] the general structure of its energy supply. This means that the previous wording of ex article 175 (2) TEC, dedicated formally to “Title XX environment” has not changed, but article 194 (2), dedicated to “Title XXI Energy” has effectively added a third right for Member States, namely, “the right to determine the conditions for exploiting its energy resources…”.

6. The sentence “notably in the area of energy” was added to the text of article 122 TFEU, which is the equivalent of ex article 100 TEC.

7. Namely, the six Community freedoms, including the free movement of goods (articles 28-29 TFEU), the free movement of workers (articles 45 to 48 TFEU), the freedom of establishment of natural and legal persons (articles 49 to 55 TFEU), the freedom to provide services (articles 56 to 62 TFEU), the free movement of capital and the free movement of payments (articles 63 to 66 and article 67 TFEU), as well as the provisions about the competition between undertakings (articles 101 to 103 TFEU), including state-owned companies and public utility companies (article 106 TFEU) in combination with the provision on services of general economic interest (article 32 TFEU) as well as the provisions on state aids (articles 107 to 109 TFEU), the provisions concerning the common commercial policy (articles 206 to 207 TFEU) and the provision on the conclusion of international agreements (article 218 TFEU).

8. See below, footnotes n° 13, 14 and 15.

9. Regulation (EU) 2017/1938 of the European parliament and of the Council of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing Regulation (EU) N° 994/2010 of the European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC.

10. Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products, Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings and Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC amended by Council Directive 2013/12/ EU of 13 May 2013 adapting Directive 2012/27/EU of the European Parliament and of the Council on energy efficiency, by reason of the accession of the Republic of Croatia.

11. Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC.

12. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC. Latest consolidated version: 8 April 2018.

13. Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity and Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas.

14. Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC – Statements made with regard to decommissioning and waste management activities, Regulation (EC) N° 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity, Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, Regulation (EC) N° 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks, Commission Decision 2003/796/EC of 11 November 2003 on establishing the European Regulators Group for Electricity and Gas.

15. Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, Regulation (EC) N° 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) N° 1228/2003, Regulation (EC) N° 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) N° 1775/2005, Regulation (EC) N° 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators.

16. See, among others, orders of 17 February 2011, Gas Natural Fenosa SDG/Commission, T-484/10 R, not published, EU:T:2011:53; Iberdrola/Commission, T-486/10 R, not published, EU:T:2011:54; Endesa and Endesa Generación/Commission, T-490/10R, not published, EU:T:2011:55; judgements of 21 July 2017, Pologne/Commission, T-883/16 R, EU:T:2017:542; PGNiG Supply & Trading/Commission, T-849/16 R, EU:T:2017:544; Polskie Górnictwo Naftowe i Gazownictwo/Commission, T-130/17 R, EU:T:2017:541.

17. See, among others, judgements of 19 March 2015, E.ON Földgáz Trade, C-510/13, EU:C:2015:18; of 7 September 2016, ANODE, C-121/15, EU:C:2016:637; of 26 October 2017, Balgarska energiyna borsa, C-347/16, EU:C:2017:816, and of 10 September 2019, Pologne/Commission, T-883/16, EU:T:2019:567 (Appeal: case before the Court C-848/19 P).

18. See, for example, judgement of 29 June 2017, E-Control/ACER, T-63/16, not published, EU:T:2017:456; of 20 September 2018, Mondi/ACER, T-146/17, not published, EU:T:2018:570; of 24 October 2019, E-Control/ACER, T-332/17, not published, EU:T:2019:761, and of 24 October 2019, Austrian Power Grid und Vorarlberger Übertragungsnetz/ACER, T-333/17, not published, EU:T:2019:760.

19. Cartels: Judgements of 29 June 2012, E.ON Ruhrgas et E.ON/Commission, T-360/09, EU:T:2012:332 and of 12 June 2012 GDF Suez/Commission, T-370/09, EU:T:2012:333. Abuse of dominant position: judgements of 11 September 2003, Altair Chimica, C-207/01, EU:C:2003:451, of 20 September 2012, DEI/Commission, T-169/08, EU: T: 2012: 448, of 17 Juli 2014, Commission/DEI, C-553/12P, EU: C: 2014: 2083, of 15 December 2016, T-169/08 RENV, EU:T:2016:733 and judgements of 20 September 2012, DEI/Commission, T-421/09, EU: T: 2012: 450, of 17 Juli 2014, Commission/DEI, C-554/12P and of 15 December 2016, T-421/09 RENV, not published, EU:T:2016:748.

20. Judgement of 21 September 2005, EDP/Commission, T-87/05, EU:T:2005:333; judgement of 2 June 2005, Commission/Italie, C-174/04, EU:C:2005:350, judgement of 14 July 2006, Endesa/Commission, T-417/05, EU:T:2006:219, order of 30 April 2007, EnBW Energie Baden-Württemberg/Commission, T-387/04, EU:T:2007:117, order of 1st October 2007, US Steel Košice/Commission, T-27/07, not published, EU:T:2007:302, judgement of 6 March 2008, Commission/Espagne, C-196/07, not published, EU:C:2008:146, judgement of 12 October 2011, Association belge des consommateurs Test-Achats/Commission, T-224/10, EU:T:2011:588, judgement of 12 December 2012, Electrabel/Commission, T-332/09, EU:T:2012:672 (Appeal: proceedings before the Court C-84/13 P – judgement of 3 July 2014, Electrabel/Commission, C-84/13 P, not published, EU:C:2014:2040). Interim proceedings: order of 11 October 2012, EDF/Commission, T-389/12 R, not published, EU:T:2012:542 (C-551/12 P(R) – order of the vice-president of the Court of 7 March 2013, EDF/Commission, C-551/12 P(R), EU:C:2013:157).

21. See, among others, judgements of 13 March 2001, Preussen Elektra, C-379/98, EU:C:2001:160; of 17 July 2008, Essent Netwerk Noord e.a., C-206/06, EU:C:2008:413; of 11 February 2009, Iride et Iride Energia/Commission, T-25/07, EU:T:2009:33 (Appeal: case before the Court C-150/09 P); of 19 December 2013, Association Vent De Colère! e.a., C-262/12, EU:C:2013:851; of 11 December 2014, Autriche/Commission, T-251/11, EU:T:2014:1060; of 12 September 2019, Achemos Grupė et Achema/Commission, T-417/16, not published, EU:T:2019:597 (Appeal: case before the Court C-847/19 P), and of 20 September 2019, FVE Holýšov I e.a./Commission, T-217/17, not published, EU:T:2019:633 (Appeal: case before the Court C-850/19 P); judgement of 14 April 2005, AEM et AEM Torino, C-128/03 and C-129/03, EU:C:2005:224, judgement of 13 September 2006, British Aggregates/Commission, T-210/02, EU:T:2006:253 (Appeal: proceedings before the Court C-487/06 P, – then judgement of 22 December 2008, British Aggregates/Commission, C-487/06 P, EU:C:2008:757), judgement of 7 March 2012, British Aggregates/Commission, T-210/02 RENV, EU:T:2012:110, judgement of 13 September 2017, ENEA, C-329/15, EU:C:2017:671.

22. Judgements of 10 September 2014, Holger Forstmann Transporte, C-152/13, EU:C:2014:2184; of 13 July 2017, Vakarų Baltijos laivų statykla, C-151/16, EU:C:2017:537; of 7 September 2017, Hüttenwerke Krupp Mannesmann, C-465/15, EU:C:2017:640; of 20 September 2017, Elecdey Carcelen e.a., C-215/16, C-216/16, C-220/16 and C-221/16, EU:C:2017:705, and of 7 March 2018, Cristal Union, C-31/17, EU:C:2018:168.

23. Concerning indication by labelling of the consumption of energy, see judgements of 3 April 2014, Rätzke, C-319/13, EU:C:2014:210 and of 8 November 2018, Dyson/Commission, T-544/13 RENV, EU:T:2018:761.

24. See, in particular, judgements of 1st July 2014, Ålands Vindkraft, C-573/12, EU:C:2014:2037; of 11 September 2014, Essent Belgium, C-204/12 to C-208/12, EU:C:2014:2192; of 26 September 2013, IBV & Cie, C-195/12, EU:C:2013:598, and of 26 November 2014, Green Network, C-66/13, EU:C:2014:2399.

25. See, in particular, judgements of 16 December 2008, Arcelor Atlantique et Lorraine e.a., C-127/07, EU:C:2008:728; of 21 December 2011, Air Transport Association of America e.a., C-366/10, EU:C:2011:864; of 17 October 2013, Billerud Karlsborg et Billerud Skärblacka, C-203/12, EU:C:2013:664; of 17 October 2013, Iberdrola e.a., C-566/11, C-567/11, C-580/11, C-591/11, C-620/11 and C-640/11, EU:C:2013:660; of 26 February 2015, ŠKO-Energo, C-43/14, EU:C:2015:120; of 29 April 2015, Nordzucker, C-148/14, EU:C:2015:287; of 28 April 2016, Borealis Polyolefine e.a., C-191/14, C-192/14, C-295/14, C-389/14 and C-391/14 to C-393/14, EU:C:2016:311; of 9 June 2016, Elektriciteits Produktiemaatschappij Zuid-Nederland EPZ, C-158/15, EU:C:2016:422; of 28 July 2016, Vattenfall Europe Generation, C-457/15, EU:C:2016:613; of 8 September 2016, Borealis e.a., C-180/15, EU:C:2016:647; of 26 October 2016, Yara Suomi e.a., C-506/14, EU:C:2016:799; of 19 January 2017, Schaefer Kalk, C-460/15, EU:C:2017:29, and of 8 March 2017, ArcelorMittal Rodange et Schifflange, C-321/15, EU:C:2017:179.

26. A Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy COM(2015) 080 final, 25 February 2015.

27. It appears obvious that the term “energy security” (of supply) refers to the second objective of article 194 (1) TFEU. The term does refers to both external security (ensuring energy import) and internal security (ensuring energy to the end consumer of, e.g., electricity or gas, that this source of energy will be available all day and all year long). The term “solidarity” refers to article 194 (1) TFUE, according to which the Union’s energy policy has four (4) objectives, “in a spirit of solidarity between Member States”, as well as to article 122 (1) TFEU, according to which, “the Council, […], may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy”. In general, regarding the principle of solidarity, see the other two articles provided for in the Treaties, namely, article 42 (7) TEU (armed aggression on a Member State territory) and article 222 TFEU (terrorist attack or natural or man-made disaster). By “trust” reference is made to the consumers’ confidence in a system that ensures energy security, both external and internal.

28. It is obvious that the term “interconnectors” refers to the fourth objective of Article 194 (1) TFUE (“interconnection of energy networks”), i.e., the development of Trans-European Networks, which aim at promoting the interconnection and interoperability of national networks (see article 170 TFEU).

29. It is obvious that the terms “energy efficiency” and “moderation of demand” refer to the third objective of Article 194 TFEU, and in particular to the two individual objectives (out of a total of three), which are energy efficiency and energy saving. The phrase “in order to reduce pollution and preserve domestic energy sources” refers generally to the provisions of the Lisbon Treaty on the Protection of the Environment (Articles 191-193), as well as to Article 191 para. 1, 3rd indent, TFEU, according to which one of the four objectives of the environmental policy lies in the “prudent and rational utilisation of natural resources”.

30. The use of the term “global deal for climate change” and the indirect reference to the Paris Agreement is in fact a reference to the Treaty provisions on Environment, and in particular to the provision of Article 191 (1), fourth indent, TFUE, which was first introduced in the Treaty by the Treaty of Lisbon, and according to which “ Union policy on the environment shall contribute to pursuit of the following objectives:… – promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change” (emphasis added). It should also be noted that the very provision of Article 194 TFEU, which sets out the four objectives of the European Energy Policy, does so “with regard for the need to preserve and improve the environment”. The indirect reference to the Paris Agreement is also made in view of the forthcoming signing of this Agreement in 2015. The phrase “encouraging private investment in new infrastructure and technologies” conceals the most important economic challenge for the energy sector, and more specifically for the field of the development of new and renewable energy sources, a development, which constitutes (together with energy efficiency and energy saving), the third objective of the European Energy Policy, as per article 194 (1) TFUE. The mentioning of the 27% target is linked, from a legal point of view, to the third target of article 194 TFEU, and, in particular, with the third individual target (out of a total of three), namely the development of Renewable Energy Sources.

31. The reference to the support of research and innovation (breacktrhoughs) in low carbon technologies as well as in clean energy technologies is a de facto specialization in the energy sector enshrined in the general provisions of the Lisbon Treaty on “Research and Technological Development and Space” in these sectors (see Articles 179-190 TFEU), a field in which the Union is competent to take action without the exercise of that competence impeding the exercise of the powers of the Member States (Article 4 (3) TFEU). This issue is relevant but not identical to the aforementioned issue of investment in these sectors and in the sector of renewable energy sources, since it is a prerequisite for these investments. EU competitiveness (should) be the result of research and innovation, but, in reality, it is all about the competitiveness of Member States’ companies (both public and private) and not about EU competitiveness as a whole (e.g., Airbus). However, from an economic and political point of view, the term competitiveness incorporates this main goal of the European Energy Policy, as defined by the European Council (see European Council conclusions of 23 / 24 March 2006, mentioned above, under Annex III.). This term cannot however be found in provisions relating to energy, but it is the result, notably, of the completion of the internal single energy market, which is one of the four objectives under Article 194 (1) TFEU.

32. State of the Energy Union 2015 of 18 November 2015, COM(2015) 572 final, Second Report on the State of the Energy Union of 1st February 2017, COM(2017) 53 final, Third Report on the State of the Energy Union of 23 November 2017, COM(2017) 688 final, Fourth Report on the State of the Energy Union of 9 April 2019, COM (2019) 175 final.

33. The Kyoto Protocol was adopted in Kyoto in Japan on 11 December 1997 at the 3rd Conference of Parties to the Convention (COP 3) and entered into force on 16 February 2005, “on the ninetieth day after the date on which not less than 55 Parties to the Convention, incorporating Parties included in Annex I of the Convention which accounted in total for at least 55% of the total carbon dioxide emissions for 1990 of the Parties included in Annex I, had deposited their instruments of ratification, acceptance, approval or accession”.

34. Paris Agreement, United Nations, 2015, signed in Paris on 12 December 2015 during the COP 21 (21st «Conference of Parties» of the United Nations Framework Convention on Climate Change (UNFCCC)).

35. 1) Proposal for a directive of the European Parliament and of the Council on common rules for the internal market in electricity (recast) – COM/2016/0864 final/2 – 2016/0380 (COD);

2) Proposal for a regulation of the European Parliament and of the Council on common rules for the internal market in electricity (recast) – COM/2016/0861 final/2 – 2016/0379 (COD);

3) Proposal for a regulation of the European Parliament and of the Council on Srisk-preparedness in the electricity sector and repealing Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of the electricity supply and infrastructure investment COM/2016/0862 final – 2016/0377 (COD);

4) Proposal for a directive of the European Parliament and of the Council amending Directive 2012/27/EU on energy efficiency – COM/2016/0761 final – 2016/0376 (COD);

5) Proposal for a directive of the European Parliament and of the Council amending Directive 2010/31/EU on the energy performance of buildings COM/2016/0765 final – 2016/0381 (COD);

6) Proposal for a directive of the European Parliament and of the Council on the promotion of the use of energy from renewable sources (recast) – COM/2016/0767 final/2 – 2016/0382 (COD);

7) Proposal for a regulation of the European Parliament and of the Council on governance of the Energy Union amending Directive 94/22/EC, Directive 98/70/EC, Directive 2009/31/EC, Regulation (EC) No 663/2009, Regulation (EC) No 715/2009, Directive 2009/73/EC, Council Directive 2009/119/EC, Directive 2010/31/EU, Directive 2012/27/EU, Directive 2013/30/EU and Council Directive (EU) 2015/652, and repealing Regulation (EU) No 525/2013 – COM/2016/0759 final/2 – 2016/0375 (COD);

8) Proposal to amend the Regulation of the European Parliament and of the Council establishing an Agency for the Cooperation of Energy Regulators (ACER) 30.11.2016 COM(2016) 863 final 2016/0378 (COD).

These proposals are accompanied of a important number of documents such as communications, memoranda, surveys and best practices.

36. Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018 amending Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency, OJ L 156, 19.6.2018, p. 75-91.

37. Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources, OJ L 328, 21.12.2018, p. 82–209; Directive (EU) 2018/2002 of the European Parliament and of the Council of 11 December 2018 amending Directive 2012/27/EU on energy efficiency, OJ L 328, 21.12.2018, p. 210–230; Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) N° 663/2009 and (EC) N° 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/ EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) N° 525/2013 of the European Parliament and of the Council, OJ L 328, 21.12.2018, p. 1-77.

38. Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity, OJ L 158, 14.6.2019, p. 54–124; Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU, OJ L 158, 14.6.2019, p. 125–199; Regulation (EU) 2019/941 of the European Parliament and of the Council of 5 June 2019 on risk-preparedness in the electricity sector and repealing Directive 2005/89/ EC, OJ L 158, 14.6.2019, p. 1–21 and Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators, OJ L 158, 14.6.2019, p. 22-53.

39. Islands Aran, (Eire), Cres-Lošinj (Croatia), Sifnos (Greece), Culatra (Portugal), Salina,(Italy) and La Palma (Espagne).

40. Political declaration on Clean Energy for EU Islands, Valletta, 18 May 2017.

41. Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, “The European Green Deal”, Brussels, 11.12.2019 COM(2019) 640 final.

42. Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee, the Committee of the Regions and the European Investment Bank “A Clean Planet for all”, A European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy, of 28 November 2018, COM/2018/773 final.

43. Information from the Energy Union Package, page 15 for 20% by 2020 and point 13, page 21 for 27% by 2030.

44. Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee, the Committee of the Regions and the European Investment Bank, “A Clean Planet for all” A European strategic long-term vision for a prosperous, modern, competitive and climate neutral economy, Brussels, 28.11.2018 COM(2018) 773 final, page 5.

45. Idem.