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Published online by Cambridge University Press: 05 August 2019
Some EU agencies have been recently entrusted with enforcement powers, which imply a crucial extension of their regulatory reach. However, other comparable agencies did not receive such powers. This paper explores the case of energy regulation as an instance of these “negative” cases, and suggests that the lack of enforcement powers may have been partially determined by business interest groups. To illustrate this argument, this article firstly relies on official documentation to show that key interest groups were consistently opposed to the option of granting enforcement powers to the EU agency in charge (ACER). Secondly, it is suggested that these interest groups, which have been largely incorporated in regulatory networks during the prehistory of the agency, had access to, and exerted influence in, the governance of EU energy policy, and could plausibly have been able to concretise their preferences. A systematic examination of the representation of interest groups in the European network of energy regulators (CEER/ERGEG) during the period 2004–2011 is undertaken to corroborate this point. The conclusion draws attention to the fact that, although interest groups are less visible than other actors and their presence is less formalised, they could be very influential on decision-making processes within European networks and agencies.
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10 DB Truman, “The Governmental Process: Public Interests and Public Opinion” (New York, Alfred A Knopf 1951) p 264.
11 Baumgartner et al, supra, note 4.
15 Greenwood, supra, note 13, p 28.
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20 Scholten and Scholten, supra, note 1.
21 See for instance Ofgem stakeholder consultation, from whom it appears that enforcement is increasingly perceived as a matter of national competency: Ofgem, Consultation Decision. Review of Ofgem’s Enforcement Activities – Decision Strategic Vision, Objectives and Decision Makers, 2013.
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30 Bennett and Checkel, supra, note 23.
31 It is worth noting that comparative evidence on the dynamics at work with respect to other agencies would be needed to cross-validate the proposition; eg by showing that ceteris paribus a lower preponderance of business interest groups is associated with the positive attribution of enforcement powers to another agency. However, comparable longitudinal data on external stakeholder participation to the policy process within networks were not available for other, similar cases. The present research strategy has to be intended as instrumental for an exploratory study pointing to an emerging question that deserves to be examined more systematically with cross-sectoral analysis.
34 Report on the proposal for a regulation of the European Parliament and of the Council establishing an Agency for the Cooperation of Energy Regulators (COM(2007)0530 – C6-0318/2007 – 2007/0197(COD)).
36 Common Position (EC) 10/2009 of the Council, OJ 2009 C 75E/1.
38 Cf namely Art 13 of Regulation (EU) No 1227/2011 of 25 October 2011 on wholesale energy market integrity and transparency; Safeguarding the independence of regulators Insights from Europe’s energy regulators on powers, resources, independence, accountability and transparency CEER report; ACER Public Consultation on Recommendations to the European Commission as regards the records of wholesale energy market transactions according to REMIT,.Evaluation of Responses
39 ACER Recommendations to the Commission as regards the records of wholesale energy market transactions, including orders to trade, and as regards the implementing acts according to Art 8 of Regulation (EU) No 1227/2011, Public Consultation Document, 21 June 2012.
40 ACER’s Annual Report on its Activities under Regulation (EU) No 1227/2011 on Wholesale Energy Market Integrity and Transparency (REMIT) in 2014, prepared by ACER, Market Monitoring Department September 2015.
41 European Parliament, EPRS, New rules for the Agency for the Co-operation of Energy Regulators (ACER), Briefing, EU Legislation in Progress, May 2018, p 7.
42 It should be noted that the public sector is also included into these figures because some energy firms and facilities are partially state-owned. However, in these cases, these actors still represent the interests of energy producers, and not of consumers or of the civil society at large.
43 Coen (2007), supra, note 16.
44 Culpepper, supra, note 4.
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