Sustainable Energy Law Notebook

The General Court of the European Union   concluded in the case T-201/11 Si. mobil telekomunikakcijske storitve v Commission on 17 December 2014 that the Commission was entitled to reject a complaint when a national competition authority was already dealing with the case .   This is a landmark judgment as the decision represents the first interpretation of Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition law laid down in Articles 81 [EC] and 82 [EC] (now Articles 101 and 102 TFEU) on that topic. One of the objectives of the Regulation is to ensure that cases are dealt with by the most appropriate authorities within the European Competition Network .  

  Ofgem, the UK Office of Gas and Electricity Markets , announced on 15 December 2014 that it has  launched an investigation against UK Capacity Reserver Limited (UKCR) which is suspected of having submitted " false or misleading information to National Grid (the Delivery Body) regarding whether it had planning consent for some Capacity Market Units (CMUs) ."  

  The Transport, Telecommunications and Energy (TTE) Council met on 9 December 2014 to discuss energy issues. The following matters were on the agenda: policy debate on the follow-up to the 2030 climate and energy framework completion of the internal energy market policy debate on the mid-term review of the Europe 2020 strategy recent developments in the field of external energy relations , including with the US, Ukrain, Energy Community, Energy Charter Treaty, Mediteranean countries (among others). indirect land-use change for biofuels (adoption of position at first reading on draft Directive on ILUC)   The two first points are reviewed below.

  The law proposal on energy transition for green growth is currently going through the legislative procedure in France. While the lower house of the parliament, the National Assembly (Assemblée Nationale), voted on the text on 14 October , the upper house, the Senate, will discuss the text starting on 9 February 2015 . The debate in plenary session will follow the debates in committees, which will take place during the week of 19 January (Committee for Economic affairs and Committee for Sustainable Development). Committees will already hold a hearing with the minister in charge on 26 November 2014 . The French Ministry of Ecology and Energy has confirmed now the date, during a press meeting on the 2014 Environmental Conference.   Once adopted, the new law is tabled to enter into force in late 2015.   For a review of the provisions of the law proposal, I refer to my article  published by  Energy and Climate webmagaz...

    The International Energy Agency (IEA) has a long tradition for assessing the energy policies of IEA countries, including most recently the ones of the European Union. On 1 December, the IEA will release its latest review of the energy policies of the EU . Of particular interest are the recommendations the IEA will provide as to target achievement under the new 2030 climate and energy strategy adopted by the heads of state and government on 23 October 2014 (see analysis in previous post here ).

Economic resilience to better serve energy markets and tackle climate change   In the aftermaths of a financial and budgetary crisis, faced with a slow economic recovery and forced to respond quickly to geopolitical and natural resources challenges of global character, the representatives from governments and central banks of the Group of the Twenty major economies (so-called G20 ) decided to put "resilience" at the heart of their action during their last meeting in Australia, 15-16 November 2014 .  " Strengthening the resilience of the global economy and stability of the financial system are crucial to sustaining growth and development ." (para. 12)  " Strong and resilient energy markets are critical to economic growth. " (para. 17) We should better get used to the concept of resilience , because it is now used extensively, lately by the newly appointed European Commission ( " resilient energy union with a forward-looking climate ch...

    On 13 November 2014, media reported that EU Member States and the European Commission decided not to follow-up the proposal consisting in establishing a mandatory gas-purchasing body at EU level . This was confirmed by K.D. Borchardt, European Commission's director in charge of the internal energy market. The idea was proposed as part of the concept for Energy Union ahead of an EU summit on EU energy dependence in June. It was promoted by Donald Tusk, former Polish PM and forthcoming president of the European Council, but also relayed by the European Commission in its May 2014 Communication on a European Energy Security Strategy .   In a comment, I referred to the idea as an "EU contradiction" . After receiving questions on that qualification, I hereafter give the reasons why.  

The news came through the international press (e.g., in BloombergBusinessweek) which revealed last week that several Russian companies have started legal proceedings before the General Court of the Court of Justice of the European Union. The applications have been submitted to the Court in early October 2014, and challenge the EU sanctions adopted this year.   At least 6 Russian companies affected by the EU sanctions have taken the decision to sue the European Council : the oil Company Rosneft (T-715/14, submitted 9.10.2014), Gazprom Neft, and 4 banks under control of the Russian state (Sberbank in case T-732/14, VTB Bank in case T-734/14, Vnesheconombank in case T-737/14 and Prominvestbank in case T-739/14). The text of the applications is not available.

On 5 November 2014, I was commenting the New Guidelines on State Aid for Environmental protection and energy (2014-2020) which have been adopted by the European Commission in April 2014, and apply from 1 July 2014 until the end of 2020.   The organisers of the event were the Confederation of Norwegian Enterprise (Næringslivets Hovedorganisasjon, NHO) and Energy Norway (Energi Norge)   Full programme available here . The presentations from the seminar are available here .   Take contact for further information.

Late in the night came the news of an agreement between the EU heads of state and government on a new climate and energy framework for 2030 . A need for mid-term commitments An agreement on post-2020 EU climate and energy strategy was deemed necessary in order to ensure predictability for energy technology investors, developers and industrial operators as regards mid-term commitments. Indeed, the Renewable Energy Directive 2009/28/EC may foresee a post-2020 roadmap in 2018, stakeholders have been repeatedly asking for clarification as to the situation after 2020 as soon as possible. 

After the European Parliament rejected the first appointed candidate to the position of the Commission Vice-President for Energy Union , Ms. Alenka Bratu še k (Slovenia), a new candidate has been proposed, Mr. Maroš Šefčovič (Slovakia). The European Parliament will be proceeding to the confirmation hearing of Mr. Šefčovič today (20 October) at 19.00 Brussels time . The hearing can be watched live here . The new Mission Letter to the Vice-President-Designate can be accessed here .   A quick look at his CV  makes clear that he is an experienced EU politician and administrator. It will now be interesting to know more about his stances on EU energy policy and what a "resilient EU energy policy" (the new motto of the forthcoming Commission) should induce.   References : Press release, "The Juncker Commission: Maroš Šefčovič proposed as Vice-President for Energy Union, Violeta Bulc as Transport Commissioner ", IP/14/1163, 15.10.2014. Hearing...

Report 3/2014 The Norwegian Climate Foundation ( Norsk Klimastiftelse ) published a new report on the current energy transition processes experienced by the European countries and EU climate policy. The report is available here.   As part of the report, I published an article on the currently debated Law proposal on energy transition for green growth in France , reviewing the terms of the debate and the core provisions of the proposal. An extended version of the article is available here (in Norwegian).   References : Klimapolitikk i krysspress , Rapport nr. 3/2014, Norsk Klimastiftelse. Die Energiewende made in France: la transition énergétique , av Catherine Banet, 14 October 2014, Energi og Klima nettmagasin.

  Sirkulær økonomi og norsk energisystemet er tema til mitt innlegg i Energi og Klima Nettmagasinet under tittelen:   "Sirkulær økonomi: Snart på dagsorden også i Norge?"   " Norge har andre behov for energiomlegging enn mange andre land, men må likevel følge med i timen når det handler om utviklingen av et mer ressurseffektivt samfunn – en sirkulær økonomi.  De fleste land som har startet en prosess for energiomlegging ... " les resten av saken her ENGLISH VERSION   Circular economy and the Norwegian energy system are the topics of a chronicle I wrote for the Norwegian webmagazine Energy & Climate. I question when and how the concept of circular economy can be introduced in Norway. Read the full teks (in Norwegian) here .

On 6 October 2014 , the European Parliament will be hearing the Vice-President designate for Energy Union . The two committees responsible for the hearing are the ENVI and ITRE. You can watch the hearing online  here . The session will start at 14.30 Brussels time . The Energy Union portfolio has been offered to Alenka Bratu š e k , former Slovenian Prime Minister. In his mission letter to the appointed candidate, Commission president-elect Juncker gave her the following areas of responsibility (emphasis added):

Finnish prime minister, Alexander Stubb, paid an official visit to France this week (3 October 2014). Energy was among the topics discussed between the French and Finnish heads of state and government. Both nations have a high share of nuclear power in their electricity production , France with approximately 75 percent and Finland with 30 percent. Both countries are concomitantly pushing for the development of the sector for renewable energy .  This similarity in energy mix is motivating the two countries to submit a joint declaration ahead of the European Council scheduled on 23-24 October  to defend their vision of the diversification of energy sources and reduced reliance on foreign energy supplies .

  On 1 October 2014 , the European Parliament will hold the confirmation hearing of the Commissioner-designate for Climate Change and Energy, Miguel Arias Cañete (from Spain).   The hearing will be broadcasted live on the following website ( here ) at 18:00 Brussels time .   The website contains his CV, declaration of financial interests, as well as his answer to the written questions from the Parliament.   The nomination of the proposed Commissioner has been heavily commented. I recommend the following article from Euractiv to get a rapid overview. The European Parliament has also published an infographic on the nomination process for the new college of the European Commission ( here ).

Members of the European Parliament (MEPs) meet in committees this week (22-28 September 2014). Two issues of interest for energy are on the agenda.

" La boucle est bouclée " one can say, at least for the moment. The Court of Justice of the European Union has delivered on 11 September 2014 its judgment in the joined Cases C-204/12 to C-208/12 involving Essent Belgium NV . The case is a reference for preliminary ruling from a Belgium first instance Court to the Court of Justice. It involves questions on the free movement of goods (electricity) , the existence of barriers to that free movement due to territorial restrictions (only regional generation qualifies to support), and interaction between green certificates and guarantees of origin under that support scheme.

The difference in tax regime for electricity generation between Norway and Sweden has been heavily discussed the last few years, and in particular after the start of the joint green certificates market in January 2012. A new legal argument is now supporting the idea of a rapid review of the Swedish regime, based on a survey ordered by industry associations. The Swedish tax exemption regime for self-produced wind power A legal note ordered by the Swedish District Heating Association and Energy Norway (Energi Norge) concludes that the current tax exemption regime applicable in Sweden to self-generated wind power is in breach with EU state aid rules.

I published a detailed comment on the Åland Vindkraft decision of the EU Court of Justice (C-573/12) for ECOHZ . Read the full article on ECOHZ website here . " The EU Court of Justice rules in favour of Sweden in the Åland Vindkraft case: no mandatory opening of national support schemes for the time being. Read Catherine Banet's comment on the EU Court of Justice decision. In a landmark decision delivered on 1 July, the Court of Justice of the European Union deems the Swedish green certificates scheme conform to EU law. It confirms that, based on the Renewable Energy Directive 2009/28/EC and the Treaties, national governments can continue restricting access to their support schemes to renewable electricity generated on their territory. ... " 

  The Norwegian business newspaper Dagens Næringsliv ( www.dn.no ) asked for my first reaction after the release of the European Court of Justice decision in the Åland Vindkraft case on 1 July 2014 (see previous post).   Read the interview here .   Reference: " Kan puste lettet ut ", Dagens Næringsliv, 2 July 2014.

The Court of Justice of the European Union has delivered on 1 July 2014 its decision in the Åland Vindkraft Case (C-573/12) . The Court rules in favour of Sweden , and deems the Swedish national support scheme, a green certificates scheme, conform to EU law, although it constitutes a measure having equivalent effect to a quantitative restriction. Because the measure aims to promote renewable energy sources and act on greenhouse gases emissions that the EU and its Member States are internationally committed to reduce, the Court confirms that Member States can maintain territorial restrictions to access their national support schemes as long as the measure is proportional.   For a background of the case, see previous post here ( Eligibility of Foreign Produced Renewable Electricity to National Support Scheme: Advocate General Deems a Provision of the Renewables Directive Invalid (Preliminary Ruling) )   The full text of judgement is available on Curia he...

The newly adopted Guidelines on state aid for environmental protection and energy (2014-2020) have now been published in the Official Journal of the European Union (OJEU) of 28 June 2014, C/200, p.1.   Access the full document here .

On 30 April 2014, the World Trade Organization (WTO) received a request for consultations from the Russian Federation against the European Union and its legislation regarding the Third Energy Package and implementing legislation by Member States. See previous post .   The text of the request as submitted by Russia is now available on the WTO website here .

On 5 May 2014 , I will be discussing legal issues related to the licensing, permitting and contracting of wind power projects at Norway Wind Development Forum (Radisson Blu Hotel Nydalen, Oslo). My own presentation will focus on Grid connection rules for onshore wind power in Norway .   More on the event:   here .

The World Trade Organization (WTO) has now published a press release confirming the request for consultations put forward by Russia before the Organization as regards the EU Third Energy Package (see previous post ).

According to Russian media, the Russian government has decided to sue the European Union over the Third Energy Package before the World Trade Organization (WTO) .   The news was reported by the press agency ITAR-TASS on 30 April 2014 ( link 1 and link 2 ). According the source, Russia has sent a note to the EU Mission to the WTO after having notified the WTO Secretariat that it wanted to launch the law suit against the EU (normal procedure). More official press releases are not yeat available, neither from the European Commission nor the WTO.

    På Påskeferie i Oslo , og letter etter faglig påfyll for hele familien? Jeg anbefaler å ta seg en tur til Teknisk Museum, på Kjelsås, hvor man kan får med seg to faste utstillinger: Olje og Gass , rett ved siden av Energi og Elektrisitet .   If you are spending the Easter break in Oslo , and are eager to get some energy-related activities for all the family, I strongly recommend to visit the Norwegian Museum of Science and Technology , at Kjelsås (north of Oslo), where you can discover two permanent exhibitions: Oil and gass , next to Energy and Electricity . All explanations in Norwegian and English.   Website: http://www.tekniskmuseum.no/  

The European Commission has adopted today, 9 April 2014, the new Environmental and Energy State Aid Guidelines (EEAG) . The new EEAG will replace the former 2008 Guidelines, and will cover the period 2014-2020.

Today, 9 April 2014, the European Commission will adopt its new State Aid Guidelines on Energy and Environmental Aid .   You can follow the press conference given by Commissioner in charge of Competition, Joaquín Almunia, on EBS Live ( link ) et 12.30   Last on the topic, the Committtee of the Regions adopted a Draft Opinion on the forthcoming guidelines (check press release, 04.04.2014, by the CoR here ).

The Norwegian Petroleum and Energy Department has launched today a public consultation as to the draft regulation concerning the transport of carbon dioxide and the use of subsea reservoirs on the continental shelf for its storage .    The consultation papers, including the draft regulation (in Norwegian), are available on the website of the Ministry .   Deadline to submit contribution : 25 May 2014   See previous note on the entry into force and deadline for transposition of Directive 2009/31/EC on the geological storage of carbon dioxide ( CCS Directive ) into the national legislation of the EEA countries on 1 June 2013 .

Commission Regulation (EU) No 312/2014 of 26 March 2014 establishing a Network Code on Gas Balancing of Transmission Network has been published in the EU Official Journal (OJEU L 91 of 27.03.2014, p.15). The text of the regulatuin is available on EUR-Lex.   The Commission Regulation will rapidly be commented on this blog.

Three new public procurement directives are published in today's Official Journal of the European Union (OJEU L 094 of 28.03.2014). These new directives form the new legal basis for EU public procurement and concession contracts legislation (link included): Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC Directive 2014/25(EU of the European Parliament and of the COuncil of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC The new rules have been formally approved on 15 January 2014  after that an agreement was reached in June 2013. More on the review process which conducted to the adoption of the new rules on the European Commission website .

I answered some questions on the possible effects of the draft EU state aid guidelines for energy and environment (document leaked a couple of days before) on the green certificates scheme in Norway and Sweden. The article (in Norwegian) was published on 20 March 2014 by Montel. Article: "EU-forslag vil neppe berøre elsertmarkedet" , Montel, 20.03.2014, available for free here .

    Read my comment on the recent state aid practice of the European Commission in the energy sector in Montel article "State-aid rules to give Brussels new muscles" . Available on http://www.montel.no/  (only for Montel subscribers for the moment).

The Norwegian magazine Teknisk Ukeblad asked for my opinion on the conclusions delivered by Advocate General Bot in Case Ålands Vindkraft AC vs. Energimyndighten ( Case C-573/12 ), which relates to access to national support schemes in favour of renewable energy generation. For a review of the conclusions, see previous post on that blog. The article (in Norwegian) is available online HERE . (" Alle nasjonale støtteordninger for fornybar energi kan være ulovlige, ifølge EU-domstolen ", 11.03.2014)

The European Commission made public yesterday its antitrust decision in two cases involving European power exchanges . The first decision is adopted against two of the major spot power exchanges in Europe: Nord Pool Spot (Norway) and EPEX Spot (EPEX, France) . The two exchanges have been fined € 5 979 000 in total (€ 2 328 000 for Nord Pool Spot, € 3 651 000 for EPEX) for having agreed not to compete with one another for their spot electricity trading services in the European Economic Area (EEA) in the period 2011-2012 in the relation to the establishment of a joint IT system platform for cross border trading . The second decision concerns the Romaninan Power Exchange OPCOM which has been fine € 1 million for abusing its dominant position in the Romaninan market by putting extra-barriers for foreign traders for entering the market. ons in

The European Commission has adopted on 25 February 2014  Commission Regulation (EU) 176/2014 which allows for back-loading the EU ETS by amending Regulation (EU) No 1031/2010 on the timing, administration and other aspects of auctioning of greenhouse gas (GHG) emission  allowances pursuant to the EU ETS Directive 2003/87/EC. The full text of the amending Regulation has been published in the Official Journal of the EU on 26 February 2014 and is available here . The regulation enters into for on 27 February 2014, is entirely binding and directly applicable in all Member States.   The calendar for back-loading of the EU ETS is put in Annex IV to the Regulation "Adjustments to the volumes of allowances (in million) to be auctioned in 2013-2020 ..."                                   2013  ...

The Council has decided today, 24 February 2014, not to object the proposal put forward by the European Commission to back-load the EU Emissions Trading System (EU ETS) , i.e. to postpone the auctioning of 900 million GHG allowances for a couple years to address the oversupply in the market .   The back-loading of allowances will not reduce in itself the number of allowances to be issued, but will postpone the moment of their release on the market . As estimated in the proportionate impact assessment of the risks of carbon leakage for particular industrial sectors, the idea is that the " back-loading can rebalance supply and demand in the transition to phase 3 and reduce price volatility without any significant impacts on competitiveness " (access document here ).    Back-loading has consequently for purpose to address the surplus of emission allowances existing on the EU ETS, a surplus which has, among other things, depreciated the value of th...

A  Commission Recommendation on minimum principles for the exploration and production of hydrocarbons such as shale gas by high-volume hydraulic fracturing has been published in the Official Journal of the EU (OJEU L 39, 8.2.2014, p.72). It is meant to help Member States who wish to carry out such activities by defining procedures, while ensuring a minimum level of protection for public health, climate and environmental protection. Background   This Recommendation forms part of the  Commission package published on 22 January 2014 which included a Communication on the same topic . It also follows up the different calls made by both the Council (Conclusions of 22.5.2013) and the European Parliament (Resolution of 21.11.2012) to assess the recourse to shale gas in EU countries and set harmonised provisions for the protection of human health and the environment.  

Focus on electricity disclosure and renewables   The Council of European Energy Regulators (CEER) has opened a public consultation on "green" electricicty . The contributions, once collected and reviewed, will serve as direct input to the draft CEER's recommendation on the manner electricity is produced, also known as "electricity disclosure" , and in particular renewable electricity disclosure. Electricity dislosure can take several forms, including by contract, statistics or certificates (so-called guarantees of origin under European law). The purpose of the recommendations is to make disclosure of "green" electricity "more transparent, resistant to fraud , reliable and consistent."  

Advocate General Yves Bot delivered on 28 January 2014 his conclusions in case Ålands Vindkraft AC vs. Energimyndighten  ( Case C-573/12 ). The conclusions are clearly in favour of the removal of barriers to the eligibility of foreign produced electricity to national support scheme for renewables , as this is currently  backed in Directive 2009/28/EC on the promotion of the use of energy from renewable sources (RES Directive).  

Hereafter are reproduced the parts of the State of the Union Speech hold by U.S. president Obama on 28 January 2014 which are related to energy and climate change issues.        

Energy efficiency is simple but demanding, because it requires changing our own behaviour . When we are constantly incited to consume more by using new electronic tools, the simplier remains often the better. In addition, consumer have obtain rights that should be exercised. The Norwegian news website KraftNytt published recently a list of 9 simple actions to cut your electricity bill . They are translated below into English. Switch your electricity supplier Read your meter Reduce room temperature Ventilate correctly Use wood-firing when it is cheaper Decrease temperature in the rooms which are not used Insulate better, in particular windows areas Take a shower and avoid bath Limit the use of washing machines and drying drums Read the full article on KraftNytt website here .  

The European Commission has announced on 23 January 2014 that it is referring Ireland to the Court of Justice of the European Union for lack of transposition of Directive 2009/28/EC on the promotion of the use of energy from renewable sources (RES Directive) . Member States had to adopt national transposition measures by 5 December 2010 .

Can climate change still be integrated as an environmental concern in energy and industrial policy, or is competitiveness the strongest argument for decision-makers?   We will soon have an answer by the very fact that agendas and calendars are merging . Rumours are now saying that, in addition to the concomittant presentation of the climate and energy policy and a new industrial policy on 22 January 2014 , EU governments have now announced to merge two consecutive meetings on energy prices (planned in February) and climate policy (planned in March) into one single joint European Council meeting on 20-21 March . The news service Energy Post is reporting in detail on that news. Beside the positive reduction of costs of holding one single meeting instead of two, this reflects the pressure the economic reality of high energy costs (for most EU Member States) is putting on environmental policy, hereby climate policy.   That there is a need for coherence, it is obviou...