EU Energy Law Research Articles

Research Handbook on EU Energy Law and Policy, 2nd edition (Introduction)

Research Handbook on EU Energy Law and Policy, 2nd edition (Introduction)

Unbundling of the Electricity Distribution System Operator (DSO): Refining and Extending the EU Law Regime

The Clean Energy Package laid the foundations of a more sophisticated unbundling regime for distribution system operators (DSO’s) for electricity. In this article, I propose a systematic analysis of this new regime. I first distinguish vertical from horizontal unbundling. The latter is then further divided in those activities explicitly governed by EU energy law, and a residual category. This residual category amounts to a core business test on behalf of the DSO. Moreover, I propose to extend the EU unbundling regime for DSO in two ways. First, the scope should also cover entities in the same corporate group. Second, it should apply to specific financial burdens on the grid infrastructure for goals other than distribution activities. EU energy law, distribution system operator (DSO), electricity, unbundling, flexibility services, electromobility, energy storage, core business test

Evolution of the EU legal framework for promoting RES-E: A market compatible paradigm shift?

EU energy law has long been challenged to reconcile respective instruments for decarbonisation and liberalisation. This trade-off appears particularly pronounced in promoting renewable energy-sourced electricity (RES-E), given that promotional mechanisms may contradict EU law on the internal electricity market. Alongside support schemes by Member States, EU law also puts in place promotion measures to remove economic and non-economic barriers to deploying RES-E. The debate on EU top-down steering to align national support schemes for renewable electricity with the internal electricity market has been intense. However, the role of Union-level promotional mechanisms in prompting a regime shift towards market compatibility has not received the attention it deserves. Focusing the analytical lens on the evolution of the supranational legal framework for promoting RES-E, this article examines how it keeps evolving to add coherence to EU energy law. Our findings demonstrate that its different evolutionary stages vary in the degree of reconciling with electricity market legislation and the legal approaches to pursuing such consistency. The analysis further sheds light on the general trends in the evolution of EU law on promoting RES-E, the lessons learned and the remaining challenges.

Energy Justice and the Principles of Article 194(1) TFEU Governing EU Energy Policy

AbstractRecent geopolitical and environmental events have created a new urgency for a just energy transition and a socially inclusive modernization of the energy sector. This article critically evaluates the extent to which Article 194(1) of the Treaty on the Functioning of the European Union (TFEU), as the competence provision of EU energy law, is congruent with the energy justice framework emerging from social sciences. It establishes the substantive scope and justiciability of Article 194(1) TFEU, including the legal principles and so-called ‘guiding principles’ of the provision relating to the internal market, environmental protection, and energy solidarity. The article analyzes the potential and shortcomings of Article 194(1) TFEU in contributing to more equitable decision-making processes in EU energy law. It concludes by evaluating the provision as a regulatory instrument that facilitates the (re)balancing of competing interests of the energy sector. This research further concludes that social considerations of energy justice cannot be sufficiently addressed through Article 194(1) TFEU.

Case T-295/20 Aquind: Clarifying the Division of Powers in the EU Energy Sector

Treaty law imposes several limitations on the use of the European Union’s (EU’s) powers in the energy sector. While many of these energy-specific competence restrictions have been analysed in EU legal scholarship, the scope and interpretation ofEUcompetences in the area of trans-European energy infrastructures have remained unexplored. Addressing this gap in the literature, the article examines the division of powers in the EU energy sector in the light of the recent Aquind ruling. The analysis demonstrates that the Aquind case not only clarifies the division of powers with regard to EU energy law and the development of trans-European energy infrastructures but also highlights how Member States’ territorial sovereignty interacts with the development of those infrastructures and thus impacts the development of the internal energy market. T-295/20 Aquind, competence, projects of common interest, trans-European infrastructures, sovereignty, internal market

Microgrids and EU law: Three Microgrid models to solve one regulatory puzzle

Microgrids are decentralised electricity systems that can operate independently of the main electricity network, and which have the potential to contribute to the energy transition towards a more sustainable energy mix. However, the integration of the system in the EU electricity market is not regulated and the resulting uncertainty discourages the system's development. This article provides the first step towards increased legal certainty for microgrid users and initiators by developing a regulatory approach based on three different microgrid ownership and operation models. If the existing rules in EU energy law allow for some flexibility to include electricity household consumers under the provisions of Closed Distribution Systems and allow for Citizens Energy Communities to manage part of the distribution system, the legal framework does offer possibilities to regulate microgrids. Nevertheless, many legal questions remain, in particular regarding responsibilities of active customers, consumption management, and regulation of flexibility services. In addition, the regulatory approach towards microgrids depends on EU Member States granting energy communities the right to manage part of the distribution network, which now depends on the discretion of the Member States. This discretionary nature should be reconsidered given the significant potential for local initiatives to contribute to the energy transition.

The interface between EU climate and energy law

This article critically discusses the interface between EU climate and energy law. It argues that legal scholarship should explore and expose the interrelationships between these legal disciplines through shared understanding and evaluation of both the disparities and synergies found. It maps the origins of EU climate and energy law to demonstrate how they have evolved side by side, guided by separate legal rationales and distinct legislative developments yet sharing partially overlapping objectives and instruments. By comparing EU climate and energy law as legal disciplines, the article identifies dynamic and static attributes that characterize the interface between EU climate and energy law. These attributes, combined with the evolution of EU climate and energy law, are key elements in facilitating disciplinary convergence. As an outcome of the analysis, the article calls for critical legal scholarship that acknowledges the climate and energy law interface, allowing disciplinary convergence to develop between them.

EVOLUTION OF EU ENERGY LAW AND POLICY: А BIG COMEBACK OF ENERGY SECURITY IN 2022?

The armed conflict in Ukraine in 2022 and subsequent worsening of relations between Western countries, including the EU and its Member States, and the Russian Federation, have deeply shaken the existing EU energy law and policy foundations. During the past decades, the EU attempted to develop a comprehensive energy policy based on three pillars – competitiveness and internal market principles, security of supply, sustainability and environmental protection. Starting in the 1990s, liberalization efforts dominated the electricity and natural gas markets. It did not take long for energy security and environmental protection to gain attention. Enlargement of the European Union and occasional problems with external suppliers prompted new measures regarding the security of supply, while a growing body of legislation is also present in the field of environmental protection. The three objectives of the EU energy policy are not always complementary, and some tension and even confliction between them can’t be excluded. Although the European Union and its institutions attempt to embrace all three pillars under the sustainability umbrella, this hasn’t brought a desirable outcome yet. We are witnessing the big comeback of energy security in 2022, including the adoption of some measures by the Member States that are not in line with decarbonization efforts, at least in short term.

Designing Information Obligations in EU Consumer and Energy Law

Designing Information Obligations in EU Consumer and Energy Law

Benefits of cross-border citizen energy communities at distribution system level

One challenge of the EU energy transition is the integration of renewable electricity generation in the distribution system. EU energy law proposes a possible solution by introducing “citizen energy communities” (Directive 2019/944/EU) which may be open for “cross-border participation”. This article proposes an innovative way of implementing such cross-border communities by linking distribution systems via a “switchable element”, a generation, storage, or consumption asset with a connection to each country. An optimization model has been developed to calculate the system cost savings of such a connection. Linking regions with complementary characteristics regarding electricity generation and demand via a switchable element leads to more efficient system utilization. Findings are relevant for the transposition of “citizen energy communities” in national laws.

C-718/18 Commission v. Germany: Critical Reflections on the Independence of National Regulatory Authorities in EU Energy Law

EU energy law requires that national regulatory authorities (NRAs), which carry out key tasks in the energy sector, be independent. Such independence is considered essential to ensure that NRAs’ performance of their tasks is protected from shortterm political pressure, enabling the achievement of the EU’s long-term objectives in the energy sector. However, it also means that there is less oversight over what the NRAs do and how they perform their tasks, which underlines the need for a robust legal framework to ensure their legitimacy and accountability. This article critically assesses the NRAs’ independence requirement in the light of the Court of Justice of the European Union’s (CJEU’s) recent ruling in C-718/18 Commission v. Germany and utilizes the NRAs’ power to fix or approve energy network tariffs or tariff methodologies as an illustrative example of the powers they enjoy in EU Member States. EU energy law, national regulatory authority, independence, network tariffs, electricity, Electricity Directive, Electricity Regulation, legal reasoning

THE SCOPE OF STATE SOVEREIGNTY UNDER ARTICLE 194(2) TFEU AND THE EVOLUTION OF EU COMPETENCES IN THE ENERGY SECTOR

AbstractThis article analyses the European Union's competences in the energy sector. It focuses on Article 194(2) of the Treaty on the Functioning of the European Union, which affords EU Member States the right to determine the conditions for exploiting their energy resources, the choice between different energy sources and the general structure of their energy supply. This article traces the constitutional development of EU competences in the energy sector to demonstrate the relevance of Article 194(2) TFEU in the current constitutional, international and sector-specific contexts of EU energy law. It analyses the recent case law of the Court of Justice of the European Union, which shows that the scope of Article 194(2) TFEU is considerably narrower in practice than its wording implies. The article concludes by evaluating the implications of this narrow interpretation on the future development of EU energy law and, in a broader context, on the reach of EU energy and climate policy.

Changing Architecture of Georgian Renewable Energy Normative System: The Dos and Don’ts from the European Union

In quest of its energy policy intertwined with national climate strategy, Georgia has endeavoured to modernize the energy normative framework with the special focus on renewables as the fastest growing source of energy in the country. On the flip side, the European Union, as a ‘regulatory superpower’ urges the third countries to intensify their efforts alongside the EU and expands internal energy law and policy application to non-Member States. In this natural affinity, the EU-Georgia energy and climate partnership comes as no surprise cooperation anchored by the so-called EU’s conditionality policy. This article offers a bird’s eye view of Georgia’s energy sector emphasizing on the emergence of new renewable energy legal regime that is designed in response to the EU course. The article also displays some of the future trends zooming in on a flagship European Green Deal initiative and examines its possible implications for the country. In a nutshell, legal impact analysis aiming to record and explain how a particular law or rather a group of subject-linked laws (EU energy law) works within a certain geographical setting (in this case Georgia). Energy law, EU law, renewable energy, climate change, Europeanization, European Green Deal, Clean Energy Package, Georgia

The EU energy law implementation within the Serbin sustainable development policy

The states implementing the European Union (“EU”) law in the spheres of energy and sustainable development within the frameworks of the Energy Community (“EC”) are faced with a crucial lack of time otherwise needed to harmonise their legislation. Issues surrounding the difficulties of interpreting the provisprovis of various directives, regulations and current implementation practice have proven to be notable barriers. Companies such as Serbian vertically integrated undertaking (“VIU”) Yugorosgas (“YRG”) and transmission system operator (“TSO”) YugorosgasTransport (“YRGT”) are obliged to make changes to local regulations and their organizational structure, from which they are encencencing great difficulties. There are often situations when companies, government agencies and institutions of international organizations hold very different attitudes and stances towards the application of a certain law. These legal deficiencies and inconsistencies in the positions of various parties can lead to disruptions in the activities of the largest energy companies engaged in gas supply and other important functions in the energy sector, as well as to significant economic expenses - Serbian (at least) national sustainable development becomes threatened. At the same time, we recoginize the importance of the law implementation.

Locality in EU Energy Law

This article identifies ‘locality’ as an overarching concept in EU energy law. This has two consequences. First, it highlights the need for coherent law-making on EU level, specifically by avoiding multiplication of similar-but-not-identical concepts. Second, I argue locality can be considered a specific expression of subsidiarity. To support these claims, this article takes Belgium as a case study for diverse interpretations of this locality concept in Member State law. This is done by an analysis of both regional legislation and the regulator’s decision practice. Furthermore, I revisit theory on the EU constitutional principle of subsidiarity. Finally, a counter-example is offered: the second generation of network codes and guidelines will increasingly impact ‘local’ aspects of the electricity markets. In conclusion, locality serves a double theoretical role: it offers a descriptive classification for EU energy law and provides a substantive hermeneutic tool for subsidiarity assessments. EU energy law, Clean Energy Package, subsidiarity, locality, proximity, single market, integration, harmonization, network codes and guidelines

Clean or renewable – hydrogen and power-to-gas in EU energy law

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 Polluter Pays Principle in EU Climate Law: An Effective Tool Before the Courts?

The polluter pays principle (PPP) is often thought of as an aspirational or guiding principle rather than one that is justiciable by courts. While the principle features in many international conventions in varying formulations, it has not been recognized as a principle of customary international law. The legal status of the PPP in EU law is different. The PPP enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) enshrines the principle among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the PPP in EU law, in the case-law of the Court of Justice of the European Union (CJEU) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the PPP has been most influential to date: first, cases concerning the EU ETS and emissions; second, cases concerning EU energy law; and third, cases concerning EU state aid law. Some reflections are offered in conclusion about the potential role of the PPP in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.

The Polluter Pays Principle in EU Climate Law: an Effective Tool before the Courts?

In EU law the polluter pays principle (ppp) enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (tfeu) enshrines it among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the ppp in EU law, in the case law of the Court of Justice of the European Union (cjeu) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the ppp has been most influential to date: first, cases concerning the EU ets and emissions; second, cases concerning EU energy law; and third, cases concerning EU state-aid law. The conclusion reflects on the potential role of the ppp in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.

Congestion displacement in European electricity transmission systems – finally getting a grip on it? Revised safeguards in the Clean Energy Package and the European network codes

During the last three decades, the European Union has worked on creating a pan-European internal market for electricity, aiming to establish an ‘Energy Union’ of unrestricted cross-border electricity trade. Under the ‘Clean Energy for all Europeans Package’ and the European network codes, the legal framework for the electricity sector has recently received a comprehensive update. However, electricity trade between the Member States is still severely limited due to insufficient transmission capacity on cross-border interconnectors. One reason is that network operators restrict cross-zonal capacity in order to relieve congestion inside the domestic grids, effectively pushing congestion to the border. This practice entails partial market foreclosure and is of vast practical significance, but has only received limited attention from energy law scholars. Since the borders between the Member States remain obstacles to the free trade of electricity despite political endeavours and extensive regulation of the electricity sector, one might ask whether the legal framework on congestion management in electricity networks provides sufficient incentives to relieve congestion where it occurs, that is, within the congested network. To answer this question, this study will scrutinise the pertinent provisions of EU energy law – with a particular focus on recent revisions under the Clean Energy Package and the European network codes – against the background of several case studies. The objective is to identify relevant legal, economic and political contributing factors and assess whether EU energy law addresses them adequately.

Smartening up while keeping safe? Advances in smart metering and data protection under EU law

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.