Energy law (European Union)

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This article concerns aspects of the European Union's political system that may have changed as a result of the Lisbon Treaty on December 1, 2009.

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The energy law of the European Union is a relatively young communityized sub-area (Art. 194 TFEU). In contrast to the old legal situation (Nice), according to Art. 4 Para. 2 lit i) TFEU there is now a separate competence (competence). Above all, the Commission is directing the Community's energy policy towards finding solutions to the Union's growing dependence (...) on a few regions in the world and to the problem of climate change .

definition

The term " energy law " itself does not have a clearly defined meaning. Depending on the focus, only thematically closely related areas (e.g. the legal rules for generation, distribution, transport, consumption and saving of energy) or other related topics such as environmental protection , consumer law , general business law , energy law, commercial law , competition law , state aid law , traffic law , mining law , protection of workers , coal, mine decommissioning, research and development , etc. understood.

Energy law itself as a legal area such as B. labor law, social law, tenancy law etc. do not exist in the EU member states either. Energy Law is a very extensive cross-cutting (such. As well as the food law , sports law , media law , etc.).

According to the definition used here, European energy law primarily includes the standards that offer a coherent legal framework for technical generation / conversion, distribution, consumption and energy saving and are secondarily supported or supplemented by other legal areas. Energy law is the comprehensive law for the generation, trading and consumption of energy in a modern market economy for the benefit and protection of people.

Historical development

The need for a "transnationally coordinated energy policy" gave European integration important impetus from the start. Nevertheless, the energy policy was (contractually) separated according to the type of energy .

Coal and Steel Community ( ECSC )

A partially integrative energy policy in the European Community was implemented with the establishment of the first supranational community, the Coal and Steel Community, in 1952.

The energy policy of the time (especially the coal industry ) was clearly characterized by the economic ties between the German, on the one hand, and the Belgian, Luxembourg, Dutch and French coal and steel industries, on the other, in order to secure and unite peace in Europe in the long term to make another war between these states materially impossible. The coal and steel union was not given comprehensive competence to regulate the energy policy or energy law of the member states. However, it should not be overlooked that about 80% of the energy policy in the founding period of the coal and steel industry concerned the coal industry, which was the main source of energy in the states mentioned at that time.

Within the framework of the coal and steel union, diverse and varied legal acts were passed that belong to European energy law in the narrower sense.

However, the energy policy requirements and objectives of the ECSC Treaty were overtaken relatively quickly. The scarcity economy that existed at the time the coal and steel industry was founded was soon replaced by a surplus economy, coal was largely replaced by the primary substitute product crude oil and natural gas, and joint coal extraction was uneconomical in relation to imported coal and the current transport costs. As early as 1973, solid fuels accounted for only 22.6% of the total primary energy supply in the Community. Downward trend. Within 20 years, the energy policy (and thus the energy industry law) of the ECSC lost much of its importance and influence.

With the establishment of the European Economic Community and the European Atomic Energy Community on January 1, 1958, energy policy in the nuclear energy sub-area was sectorally and partially communitized. In the economic community, it was envisaged that common policies would be introduced in the fields of agriculture and transport. In the area of ​​energy, however, only general regulatory provisions were provided which oblige the Member States to coordinate.

European Economic Community (EEC)

The E (W) G Treaty, which, in contrast to the ECSC Treaty and the Euratom Treaty, is a framework agreement, originally did not contain any special provisions on the energy sector. The contract of March 25, 1957 is based on various preliminary drafts. The foreign ministers of the ECSC member states decided at the Messina Conference on June 1 and 2, 1955, on the basis of the Benelux memorandum of May 20, to adopt a resolution to revive the idea of ​​Europe and thus a government committee chaired by Paul-Henri Spaak instructed to work out appropriate proposals for an economic and nuclear community.

In the end, however, no policy field on conventional or renewable energies was added to the EEC Treaty , but only a sectoral treaty on nuclear energy (European Atomic Energy Community).

A large number of national provisions on the production, trade and import of energy products hinder and still hinder the free movement of goods and services in the common market or the internal market . The Council already stated in the “Protocol to an Agreement on the Energy Question” that it was “ convinced of the necessity of realizing a common energy market within the framework of the common market ”. The establishment of the common market also necessitated the harmonization of the energy law provisions and the energy policy of the member states. The different economic systems of the member states were a major obstacle to harmonization and the voluntary renunciation of national, conflicting regulations, also in the energy sector.

European Atomic Energy Community (EAG)

The Euroatom Treaty as a sectoral treaty should enable the European Communities and in particular the economy to become or remain competitive through the newly controllable primary energy form of nuclear energy. In the first reason for the movement of the preamble to the Euratom Treaty, for example, “ nuclear energy is an indispensable source of assistance for the development and stimulation of the economy and for peaceful progress ”.

While the steel sector was also included in the framework of the ECSC in addition to coal, the Euratom Treaty according to Art 2 lit. d WEEE treaty only applied to ores and nuclear fuels . Particularly regulated by the physical specifics of the nuclear fuel are the provisions for the protection of the environment, the population and employees from ionizing radiation and the improper use of fissile products for military purposes. The Community has no powers under the EAEC Treaty in the area of ​​the safety of nuclear installations . To this extent, it has acted exclusively in a coordinating manner on the basis of general provisions under primary law between the member states.

The great hope of the nuclear industry was the construction of the fast neutron breeder reactor " Superphénix ". This was started in 1976. The current efforts of the nuclear industry are now directed towards the technically reliable and operationally safe research and use of nuclear fusion.

Current status

The Maastricht Treaty in Art 3 Para. 1 lit. n and t EGV added provisions on Community energy law are not regulated by implementing or detailed provisions in the further text of the EC Treaty . Therefore, the energy law of the European Union is currently limited to a few provisions, in particular from the coal and steel union and the nuclear community.

To this day, a functioning, uniform and common European energy policy and its implementation in a uniform European energy law has failed due to national resentment. The Community's measures are essentially proposals for energy saving measures, efficiency increases, specifications and promotion of renewable energies, support programs (e.g. ALTENER , SAVE , CARNOT , ETAP etc.) and proposals for the future development of energy policy.

Cross-border trade and the transport of energy are therefore subject to the general rules on the free movement of goods, general import and export regulations, the prohibition of discrimination and the possibility of joint embargo and boycott measures. On this basis, the European Community can act and, over the past 15 years, has ensured the liberalization of various energy sectors (e.g. electricity and gas) in order to create an efficient internal energy market without hindrances.

The change of the partially existing or still largely existing national monopoly or oligopoly structures into a competitive relationship is, however, associated with major economic changes and also psychological difficulties.

In the political guidelines of the new Commission President , Jean-Claude Juncker , dated July 15, 2014, it is planned to reform and restructure Europe's energy policy and create a new European Energy Union.

Competition versus public service obligations

The EU member states often impose public service obligations on national companies in the respective energy market for historical or social reasons. On the one hand, companies (especially previous monopoly companies) are obliged to open up to market-based competition, and at the same time they are to continue to assume public service obligations. This seems to contradict each other. Theoretically, free-market competition is characterized by the fact that companies remain active in the market as long as there are profit prospects and, if these no longer exist, limit themselves or seek other markets. The public service obligation binds companies to the markets in order to guarantee a certain security of supply, regularity, quality, price stability and environmental protection requirements transparently and in the long term in the general interest. The Commission endeavors to avoid the problems that may arise from the imposition of public service obligations (in particular distortions of competition). In order to objectify the tension, all public service obligations must therefore be reported to the Commission, communicated to the other Member States and published. These public service obligations must be clearly defined, transparent, traceable and non-discriminatory.

Exceptions to the market economy principle, which are provided for in the Community legal acts in this regard, may only be used to the extent that they would prevent the fulfillment of the public service obligations by the companies concerned " de jure and de facto , and insofar as the development of trade is not in one place Extent that is contrary to the interests of the community. "

The internal energy market

The EU pursues the goal of ensuring the functioning of the energy market and the “promotion of the interconnection of energy networks” ( Art. 194 (1) TFEU) “in the spirit of solidarity between the Member States in the context of the implementation or functioning of the internal market” . The free, non-discriminatory cross-border trade in energy is therefore the basic idea of ​​the EU regulations for the internal energy market.

It is only through this trade that the internal market can actually be realized and transparent market-economy structures can be built up and expanded and a polypole system can replace the previously existing oligopolies and monopolies. At the moment , the degree of organization, transparency, market access and the freedom to set prices on the internal energy market have not yet been optimally implemented and in some areas have not even started properly or undesirable developments are already visible.

One possibility of using the trading structures in the internal energy market for a market economy is offered by trading on a futures and spot market. Since 2000, various power exchanges have established themselves and gained considerable influence: EEX and the later merged with LPX in Germany, APX in the Netherlands, Nord Pool in Scandinavia , EXAA in the control areas of Germany and Austria and the like. a.

outlook

It will take some time until a fully liberalized internal energy market is achieved and various EU regulatory measures and interventions will be required. If the market opening in the energy sector is seen in relation to the previous duration of the creation of the common market / internal market, it will still be a long time before the competitive function in the energy sector functions independently, smoothly and without complaint, if the same resistance (especially tendencies towards isolation) as in the creation of the Internal market are to be expected.

In particular, national influences and the risk of distortion of competition through the formation of oligopoly and cartels will remain virulent.

However, the current situation is already a huge step forward compared to the level of the internal energy market 20 years ago.

The elimination of national monopolies and oligopolies and the creation of politically relatively independent companies and market-based competition will have a long-term impact on the structure of the European internal market, political decision-making, security of supply and environmental protection . Energy policy will also have to "make a contribution to the EU's climate protection policy".

Whether or not this liberalization will lead to a “ win-win ” situation for all parties is not yet foreseeable. In an area that is as sensitive as energy supply, also in terms of security policy, it is imperative for the community and the nation states to be able to intervene early, effectively and in a coordinating manner if market forces fail. On the other hand, these interventions must be kept to a minimum and implemented carefully so that free competition is not disturbed as far as possible.

literature

See also

Individual evidence

  1. ↑ COM (2004) 366 final of May 26, 2004, summary, point 1.
  2. ↑ Michael Lippert in “Energiewirtschaftsrecht”, p. 9, speaks figuratively of “a rugged landscape”.
  3. ↑ See also the definition in § 1 of the Electricity and Gas Supply Act (German Energy Industry Act) of April 24, 1998, dBGBl. I., p. 730.
  4. ↑ Geiger / Khan / Kotzur, EUV / AEUV, Commentary, 5th edition 2010, Art. 194, Rn. 1, p. 655.
  5. ↑ Geiger / Khan / Kotzur, EUV / AEUV, Commentary, 5th edition 2010, Art. 194, Rn. 1, p. 655.
  6. ↑ European Coal and Steel Community, signed on April 18, 1951, entered into force on July 25, 1952.
  7. ↑ Article 81 of the ECSC Treaty in conjunction with Annex I states: hard coal , hard coal briquettes , coke, hard coal coke, lignite briquettes , raw lignite and lignite coke. Other lignite products and peat are subject to the EC Treaty.
  8. ↑ OJ. 69/64 / EEC of April 30, 1964, p. 1099.
  9. ^ Jean-Claude Juncker, Political Guidelines, p. 6.
  10. ↑ Art 3 Paragraph 8 of Directive 2003/54 / EC or Art 3 Paragraph 3 of Directive 96/92 / EC
  11. ^ Oppermann / Classen / Nettesheim, Europarecht, 4th edition Munich 2009, p. 445, Rn. 34.