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Chapter II - EU Case Law and the Energy Sector
- from PART I - Developments In The EU and EU Energy Law
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- By Berend Jan Drijber, Advocate General at the Hoge Raad, the Dutch Supreme Court. Until 1 October 2017 he was a partner with Pels Rijcken & Droogleever Fortuijn N.V. in The Hague, The Netherlands.
- Edited by Martha M. Roggenkamp, Catherine Banet
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- Book:
- European Energy Law Report XII
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 20 November 2018, pp 43-62
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Summary
INTRODUCTION
This contribution reviews the case law of the Luxembourg-based European Court of Justice (ECJ or the Court) regarding the energy sector from mid-2016 to the turn of 2017/18. Most decisions are preliminary rulings at the request of a national court of one of the EU Member States (Article 267 of the Treaty on the Functioning of the European Union (TFEU)). The ECJ also hears cases brought by the European Commission (the Commission) against one or more Member States (Article 258 TFEU), as well as appeals against rulings of the General Court on points of law (Article 263 TFEU). The General Court hears at first instance the administrative law appeals against decisions of EU institutions and EU agencies.
The chapter is organised as follows. It starts by discussing cases concerning certain internal market rules (section 2). It goes on to look at two cases involving a dispute on capacity allocation (section 3). The next topic is a series of cases regarding free CO 2 emission allowances (section 4). Subsequently, the chapter discusses cases relating to renewables that reflect the energy transition from fossil sources to renewable energy (section 5). Finally, it deals with disputes involving the rules on State aid, which is an area of growing importance for the energy sector (section 6).
INTERNAL MARKET
ANODE
In a liberalised market, prices are set by the free play of supply and demand in the market. For social reasons a Member State may wish to protect certain categories of end users, such as households, against increases in energy prices.
This French case concerns the regulation of prices for the supply of natural gas to consumers in order to protect security of supply and territorial cohesion. Energy suppliers have a statutory obligation to apply tariffs calculated in accordance with cost-based criteria drawn up by public authorities. ANODE, an association of suppliers operating at retail level, challenged the compatibility of this tariff regulation with the public service provisions in Article 3 of the Directive 2009/73, the Third Gas Directive and the general provision on services of general economic interest laid down in Article 106(2) TFEU. In essence, ANODE argued that these rules do not provide a proper justification for rules restricting the free play of market forces.
Chapter II - EU Case Law and the Energy Sector
- from Part I - EU Energy and Climate Law: Policy and Jurisprudence
-
- By Berend Jan Drijber, Partner, Pels Rijcken & Droogleever Fortuijn, The Hague, the Netherlands.
- Edited by Martha M. Roggenkamp, Catherine Banet
-
- Book:
- European Energy Law Report XI
- Published by:
- Intersentia
- Published online:
- 29 September 2018
- Print publication:
- 27 November 2017, pp 29-46
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- Chapter
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Summary
INTRODUCTION
An overview of the case law of the EU Courts in Luxembourg in the energy sector looks like a patchwork. There is by definition no one overarching theme since all depends on which cases are submitted to the Courts in the relevant period. Some cases involve institutional matters. Sector specialists need to be aware of the importance of the EU institutional framework and the general rules and principles of EU law, since these principles apply regardless of the industry sector and therefore also apply to the energy sector. Other cases relate very much to sector-specific issues, such as disputes concerning the EU Emissions Trading System (ETS).
Traditionally, most cases concern requests for a preliminary ruling from a national court to the European Court of Justice (known as the ‘ECJ’ or ‘the Court ’) about the interpretation or the validity of a provision of EU law (Article 267 of the Treaty on the Functioning of the European Union (TFEU)). Other cases involve direct appeals by companies against a decision of the Commission (Article 263, 4th paragraph TFEU). Member States may also directly challenge other binding measures, such as regulations or directives (Article 263(1) TFEU). Such appeals must be brought before the General Court, which hears all direct appeals at first instance. A last category of cases are infringement proceedings brought by the Commission, in its role of ‘ guardian of the Treaty’, against one or more Member States (Article 258, 2nd paragraph TFEU). These cases are exclusively brought before the ECJ. The ECJ also hears appeals against rulings of the General Court, but only on points of law (Article 256(1), 2nd paragraph TFEU).
Case law is always somewhat lagging behind policy. New policies are laid down in legislative measures and it is only after a while that these new measures start generating legal disputes, some of which may end up in the ECJ. An increasing number of cases feature issues that mark the transition to renewable energy sources, such as the compatibility of subsidy schemes with the EU state aid rules, and the compatibility of schemes on guarantees of origin with EU legislation and with the fundamental freedoms enshrined in the TFEU.