Too Weak to Be Controlled: Judicial Review of ACER Soft Law

Abstract

The 2009 third energy package puts in place a hybrid system, delegating regulatory and enforcement powers to public national regulators and to private transmission system operators. These bodies are organized in networks which are coordinated and monitored by the EU Agency for the Cooperation of Energy Regulators (ACER). ACER acts mainly through instruments deprived of legally binding force, or soft law. These instruments, enacted ‘outside the legislative arena of democratic politics’ (Eberlein: 2008), potentially escape accountability, transparency, and legitimacy checks. Moreover, the legal effects of such instruments are uncertain, and vary from instrument to instrument, thus creating clarity concerns. ACER’s soft law instruments range from practically binding (the framework guidelines that form the basis of network codes) to particularly weak forms of soft law such as the non-binding guidance on the definitions set out in the REMIT Regulation. In this context, and in the absence of case law in this regard, the present paper offers a doctrinal analysis of all the categories of soft law instruments issued by ACER and of their potential for justiciability. It argues that soft law issued by ACER can have in practice important effects, and that, in the absence of clear judicial oversight from the European Courts, it can have a negative impact from a rule of law perspective. The discussion will be placed against the background of the recent Winter Package, and the proposals to strengthen the role of the Agency will be evaluated in order to draw broader conclusions as to the link between increased powers and accountability.