S.2.1. Third Energy Package

D.2.1. Third Energy Package

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EC refers Member States to Court of Justice of the EU for failure to comply with EU energy market rules

Thursday, July 25, 2019

In July, the EC published its infringement package, which indicates a number of Members States have been referred to the Court of Justice of the EU either for failure to timely and correctly implement the EU electricity and gas market rules contained in the 2009 third energy package, or for failure to transpose into national legislation the 2012 European Energy Efficiency Directive (EED).

In October 2014, the EC sent a Letter of Formal Notice opening infringement proceedings against Belgium, which was followed by a Reasoned Opinion in February 2016. The EC, considering that Belgium has not addressed all the issues has now referred the case to the CJEU.

Belgium is accused of incorrectly transposing rules on the powers of the national regulator by requiring government decisions on proposals instead of allowing the regulator to take decisions that are binding on electricity and gas undertakings. The EC also claims that “the conditions for connection to the electricity and gas networks are set by the government rather than by the regulator, as required by EU law”. Finally, the EC argues that “Belgian law does not ensure that TSOs actually control the whole of the electricity or gas network for which they are responsible, so they may not be in a position to fully ensure non-discriminatory access of electricity or gas suppliers to the grid”.

Italy was also referred by the EC to the CJEU for failing to transpose EU rules on protection against radiation. More specifically, Italy is claimed to have failed to transpose the revised basic safety standards for protection against the dangers arising from exposure to ionising radiation (Council Directive 2013/59/Euratom). In December 2013, “Member States agreed to transpose the Directive by 06 February 2018 and to communicate to the EC the measures and provisions adopted in national law”, however, Italy failed to meet this deadline and in May 2018 the EC started an infringement procedure by sending a Letter of Formal Notice, followed in January 2019 by a Reasoned Opinion. To date, the Italian authorities have not transposed or informed the EC of a transposition of the Directive.

The EC also sent Reasoned Opinions to Austria, Germany, Slovakia, Spain, Sweden, and the United Kingdom, requesting the timely and correct transposition of the 2012 EU energy efficiency rules into national law and their proper implementation. The six Member States each now have until the end of September 2019 to respond to the EC’s arguments and to inform it of the measures taken. Failure to do so may prompt the EC to refer these countries to the CJEU as well.

The recent adoption of the “Clean Energy for All Europeans” Package (CEP), brought about amendments to the Energy Efficiency Directive (EED 2012/27/EU) through the new EED and new Energy Performance of Buildings Directive (EPBD). Accordingly, the aforementioned Member States must swiftly implement the outstanding measures of the 2012 EED and proceed with a timely implementation of the amendments under the CEP.

Romania also received a Reasoned Opinion requesting it to remove barriers to exports of natural gas. This is the second Reasoned Opinion sent to Romania concerning the failure to eliminate restrictions on trade in natural gas, which is a requirement both under the 2009 third energy package (Directive 2009/73/EC) and under the Treaty on the Functioning of the European Union (TFEU). Romania had amended its legislation following a July 2014 Reasoned Opinion yet the EC still found that “an obligation to sell natural gas with priority on the Romanian market is maintained and, consequently, this violates EU law”. If Romania fails to comply by the end of September, the Member State could be referred to the CJEU.