The Treaty Freedoms in the Energy Sector: Overview and State of Play

Abstract

ABSTRACT Both energy and free movement have been at the very heart of European economic integration from the start. Consequently, the close interaction between the two seems to have followed naturally from the beginning of this process. Despite the regulatory developments and the market-driven approach adopted by applying competition law provisions, the growing number of questions relating to free movement law that have been referred to the Court of Justice of the European Union reveals that free movement law has still a foothold in the energy sector. This chapter offers an overview of the cases in which the free movement provisions have been invoked in the context of EU energy markets and how the Court has interpreted and applied free movement provisions to the energy sector. INTRODUCTION AN OVERVIEW OF THE HISTORICAL DEVELOPMENT OF THE INTEGRATION OF THE EU (ENERGY) MARKET Two of the three founding Treaties of what is today known as the European Union (EU) focused specifically on energy. The Treaty establishing the European Coal and Steel Community (ESCS Treaty), signed in 1952, was the main tool used to ensure peace and reconstruct post-war Europe by establishing a common market in coal (the main energy product at the time) and steel. In addition, a supranational High Authority was placed in charge of market supervision and of ensuring that the rules governing competition and price transparency were respected. The Treaty establishing the European Atomic Energy Community (Euratom) was initially created to coordinate the Member States’ research programmes with a view to ensuring the peaceful use of nuclear energy. Despite the fact that the early treaties regulated the peaceful exploitation of these energy sources, the Treaty establishing the European Economic Community (EEC Treaty), which was the general instrument for achieving European economic integration, contained not a single word on energy policy. In addition to the peace-driven purpose of the very first founding treaties, economic integration was seen as the way to promote (welfare) growth in Europe in which respect establishment of the free movement provisions played a crucial role. The Spaak Report, published in 1956, laid the basis for the EEC Treaty. The primary objectives of the EEC Treaty were to establish a common market, bring about the approximation of Member States ‘ economic policies and promote harmonious development of economic activities throughout the Community.