The interface between EU climate and energy law

This paper is a contribution to the 2nd edition of Craig and de Burca, The Evolution of EU Law. It highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been – and still is – in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectoral setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access. As for substantive law, EU electronic communications law, since 2002, presents the best – albeit not complete – example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ. As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

This chapter highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been—and still is—in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic, and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative, and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectorial setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access. As for substantive law, EU electronic communications law, since 2002, presents the best—albeit not complete—example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ. As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

Europeanization of energy law and policy beyond the Member States: The case of Georgia

The countries of Central and Eastern Europe (CEE) have commonly been regarded as climate and energy policy laggards blocking more ambitious EU decarbonization targets. Although recent literature has increasingly acknowledged the differences in national positions on energy and climate issues among these states, there has been little comprehensive evidence about their positioning on EU climate and energy policies and the domestic interests which shape government preferences. The article addresses this gap by tracing the voting behavior of six CEE countries (Poland, Hungary, Czech Republic, Slovakia, Bulgaria, and Romania) on EU energy-related legislation in the Council of Ministers between 2007–2018. The article shows that the contestation of energy policies, particularly of climate-related legislation, in the Council of Ministers has increased over time and that these six CEE countries have indeed most often objected to the adoption of EU legislation. The CEE states do not, however, have a common regional positioning on all EU energy policies. Voting coalitions among the six CEE countries differ substantially across energy policy areas. The lack of a common regional position and changing national preferences have enabled the adoption of a relatively ambitious EU Energy and Climate Package for 2030. The differences in national voting patterns are explained by the evolving interests and the ability of key domestic political and economic actors to adapt to and explore benefits from the ever-expanding EU energy and climate policies.

Interest in hydrogen as a carbon-neutral energy carrier is on the rise around the globe, including in Europe. In particular, power-to-gas as a technology to transform electricity to hydrogen is receiving ample attention. This article scrutinises current updates in the energy law framework of the EU to explain the legal pre-conditions for the various possible applications of power-to-gas technology. It highlights the influence of both electricity and gas legislation on conversion, storage and transmission of hydrogen and demonstrates why ‘green’ hydrogen might come with certain legal privileges under the Renewable Energy Directive attached to it, as opposed to the European Commission’s so-called ‘clean’ hydrogen. The article concludes by advocating for legal system integration in EU energy law, namely merging the currently distinct EU electricity and gas law frameworks into one unified EU Energy Act.

The biggest challenge we are facing this century is essentially this: how can we live and prosper together in this planet – within the constraints of what one earth can provide? How, by the year 2050, do we ensure continued economic growth, eradicate poverty and feed 9 billion people without continuing and exacerbating current patterns of environmental degradation and resource depletion? We all know business as usual is not an option. But how do we move away from our usual business – and how do we do it quickly enough?

Designing Information Obligations in EU Consumer and Energy Law: Behavioural Research and Legal Design as ‘Best Available Evidence’ This article argues that behavioural and legal design insights should become of pivotal importance in the preparation of information obligations in European Union consumer law. Such insights should be considered as ‘relevant’ and ‘best available’ evidence in the sense of the Better Regulation Guidelines and Toolbox because these provide invaluable insights into how consumers process information. Even more than the amended Enforcement and Modernisation Directive, the current revision of the Energy Efficiency Directive illustrates that the inclusion of both behavioural and legal design insights lead to information obligations that are shorter, more accessible and thus potentially more effective.

While the European Union's (EU) historic inward-looking energy policy is rapidly shifting through extending the application of energy law to non-EU countries, there has not been much academic focus on this phenomenon yet. Most of the scholarly work is still related to the developments at the European level and does not include the wider extraterritorial effect of EU energy acquis in neighbouring countries. The underlying objective of this paper is to address this deficit by analysing the domestic impact that the EU energy law has outside its bounds. The case of Georgia is referred in this context to enrich the paper with practical examples and study the consequences of EU energy normative power within the eastern Europeanisation framework.

Integrating increasing shares of renewable electricity generation within the European Union electricity market requires that the electricity system is capable of withstanding intermittency. One of the principal means of achieving this is by activating the demand side in such a way as to enable a more flexible balance between demand and supply. In practice, initiatives and technological solutions to activate the demand side are well exemplified by smart meters, which collect and communicate information on electricity consumption. The existing legal framework and the 2016 legislative proposals for the electricity sector recognise that significant opportunities exist to utilise consumer data collected via smart metering and that these are of fundamental importance in creating more flexibility in the electricity market. However, the extensive utilisation of this data also raises questions concerning data privacy and data protection. This article examines the interface between data protection and energy law in the EU. The focus of the legal analysis is on the General Data Protection Regulation (GDPR) and the proposed rules contained in the Winter Package, which are systematically analysed to determine the conditions under which smart metering data can be utilised to further the objectives of EU energy law. The underlying argument of the article is that there is an apparent conflict between the objectives embedded in EU data protection law and those embedded in EU energy law. EU energy law addresses smart metering and the resulting data as means of achieving a more sustainable electricity system that benefits the final consumer. Conversely, EU data protection rules focus on the protection of a fundamental right and perceive the collection and processing of data as a risk to the very same consumer that is considered to benefit from smart metering data under EU energy law. This article demonstrates how this apparent conflict can be reconciled through interpretation of the relevant rules of EU law.

This chapter maps and analyses the specific position of regional authorities in view of EU climate and energy law. It specifically focuses on the role taken by such authorities in the light of the transition towards a society increasingly employing renewable energy. Section 2 discusses the potential influence exerted by regional authorities through the Committee of the Regions on the development and content of EU climate and energy legislation. Section 3 examines how the Renewable Energy Directive may influence local renewable energy policies, and will particularly point at the need for national governments to set up clear policies for rewarding ambitious local action. Section 4 highlights the specific authorization role regional governments might play in renewable energy projects. Section 5 concludes and gives an outlook on European practice and related research questions.

Ireland’s climate legislation mandates greenhouse gas (GHG) reductions consistent with the Paris Agreement, implemented through legally binding carbon budgets (CBs) targeting a 51% reduction by 2030, relative to 2018, and climate neutrality by 2050. As an EU Member State, Ireland must also meet obligations under European climate and energy legislation, including the Emissions Trading Scheme (ETS), the Energy Efficiency Directive (EED), and the Effort Sharing Regulation (ESR). The extent to which national policy frameworks, such as Ireland’s domestic CBs, align with EU obligations is underexplored.
This study assesses the alignment of Ireland’s energy system decarbonisation pathways – developed using the TIMES-Ireland Model (TIM) and aligned with approved and adopted national CBs - with EU climate and energy targets for 2030 and 2040. The analysis focuses on a composite “TIM-CBaligned” pathway, representing the weighted average of scenarios underpinning Ireland’s third and fourth CB proposals, alongside current and planned policy scenarios. 
Results show that TIM-CBaligned outperforms the 2030 EU ETS target in power and industry sectors by 24% and exceeds the indicative EU-2040 benchmark for energy emissions by 68%. ESR compliance is achievable only with significant agricultural mitigation; otherwise, non-compliance persists even with use of flexibilities. Final energy consumption in 2030 falls 6% short of the EED target, although low energy demand scenarios help to close the gap.
These findings confirm that ambitious, CB-aligned energy pathways can deliver strong coherence between national and EU climate goals, in line with literature on multilevel climate governance. However, they also highlight the persistent risk that underperformance in non-energy sectors undermines overall compliance, which is particularly pertinent for countries with a high share of emissions from agriculture. Policy coherence requires sustained investment, accelerated demand reduction, and integrated planning across all sectors. This study contributes a novel, quantitative example of national–EU target alignment, addressing a recognised gap in the literature and providing evidence to inform both domestic and EU policy debates.

The book deals with topical issues in the ongoing process of harmonisation in the fields of environmental and energy law. Applying critical perspectives, the contributors address a broad array of issues ranging from more general concepts and processes of harmonisation to more specific applications with regard to the domains of environmental and energy law.

In the pursuit of its energy policy objectives, the EU has endeavoured to extend the application of internal energy law to non-EU countries. Until now the application of EU law has. in this context, focused on specific provisions of private law, but the latest proposals from the Commission have the intention to give EU energy law wider extraterritorial effect. The objective of this Article is to examine the risks that would entail from international law, if EU energy law is extended extraterritorially to non-EU countries. For one, the United Nations Convention on the Law of the Seas (UNCLOS) establishes a number of rights to marine pipelines. More generally, the international trade rules of the WTO apply also to trade in energy goods and consequently create a number of rights and obligations. These aspects are discussed in relation to various territories that export natural gas to the EU via pipeline.

The article examines the international legal aspect of the EU's cooperation with Norway regarding the supply of natural gas. It was investigated that this cooperation is regulated by legal acts related to different legal order. These are: 1. Bilateral and multilateral international treaties concluded by the EU and the member states with Norway; 2. Agreements concluded by the EU with Norway; 3. Acts of EU law and joint bodies with the participation of the EU and Norway; 4. Norwegian legislation and EU member states; 5. Private gas contracts concluded between the legal entities of Norway and the EU member states. The key in this sense is the Norwegian legislation, the obligations of the parties under the Agreement on the European Economic Area (EEA) and the rules of secondary and primary law of the EU. As part of its commitment to the SES, Norway has adopted most of the EU primary energy law rules for energy in 1994, but Norway's renewal of legislation in line with the further liberalization of the European energy market is slow. So far, Norway has only included in its legislation the norms from the acts of the Second EU energy package (2003), but the latest trends in the EU energy law - from the Third Energy Package (2009) - have not yet been implemented.

Europe is divided on how to construct and exploit pipelines importing Russian gas to the EU. The division evinces two opposing models, which I label (1) the Overcapacity and Exemption-Based Model and (2) the Optimal Capacity and Regulatory-Based Model. As those labels suggest, these models are premised on different assumptions as to the number and capacity of such pipelines that the EU requires, and as to how far those pipelines should be subject to EU energy law. The struggle between these models is not merely a legal one. More fundamentally, it is an economic and geopolitical one involving a wide range of stakeholders: public and private. This article evaluates the two models. By describing the legal disputes concerning OPAL and Nord Stream 2 and analysing their wider legal, economic and geopolitical implications, it argues that the second model (Optimal Capacity and Regulatory-Based) is clearly superior in today’s context. It is fully aligned with the objectives and provisions of EU energy law. In particular, it is consistent with that law’s aim of diversifying the external suppliers, sources and routes of gas supplies available to the EU. This article concludes that this latter model must win in the OPAL and Nord Stream 2 disputes, and, moreover, that it must be implemented with respect to all eastern import pipelines and connected pipelines before any further pro-competitive or pro-integrative reforms to the EU’s energy law and policy.