The Energy Regulation and Markets Review: European Union
The European energy markets are regulated primarily by a substantial body of European Union secondary legislation. Beyond the secondary legislation, which is comprised of regulations (directly applicable in Member States), directives (subject to transposition into domestic law), decisions (directly applicable and binding on the addressee), recommendations, opinions and atypical acts (i.e., communications, guidelines, white and green papers), European energy market regulation needs to be understood in the greater context of a number of bilateral and multilateral treaties.
These include the European Union treaties, namely the Treaty on the European Union, the Treaty on the Functioning of the European Union, the Treaty establishing the European Atomic Energy Community and the Charter of Fundamental Rights of the European Union. Other treaties include the Energy Charter Treaty, the Energy Community Treaty, the United Nations Framework Convention on Climate Change and the Paris Agreement, as well as bilateral investment treaties and bilateral project-specific agreements, such as pipeline or interconnector projects.
The 1994 European Charter Treaty, which builds on the 1991 European Energy Charter, is an unprecedented multilateral framework for international energy cooperation. It addresses four areas:
- non-discriminatory conditions for trade and provisions on reliable cross-border energy transit;
- protection of direct foreign investment and protection against key non-commercial risk;
- a dispute resolution system between participating states and between investors and host states; and
- the promotion of energy efficiency.
The Energy Community is an international organisation joining the European Union with a number of countries from the south-east Europe and Black Sea regions, with the primary aim of extending the European acquis communautaire on energy, environment, competition and renewables to the parties. The Energy Community Treaty additionally sets up a regulatory mechanism for the regional network energy markets. The implementation of the European internal energy market in contracting states is a measure that facilitates potential membership of the European Union, as demonstrated by Bulgaria and Romania in 2007 and Croatia in 2013.
The Paris Agreement has been ratified by 189 of the 197 parties to the United Nations Framework Convention on Climate Change, reaching its threshold to enter into force in October 2016. It sets ambitious targets for the parties to mitigate and adapt to climate change and contribute to the decarbonisation of the global economy, and imposes obligations on all EU Member States.
The cornerstone of the European energy policy is the internal energy market, which aims to achieve three primary objectives: affordable and competitively priced energy, environmental sustainability and energy security. EU competition law has an essential and complementary role in achieving these objectives, with free market provisions being enforced in coordination with energy regulators.
The Energy Union was introduced by the Juncker Commission (2014–2019) and 'A Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy' was adopted in February 2015. The European Commission set itself the priority of establishing the Energy Union as a grand strategy for European energy policy, which was to go beyond the concept of the internal energy market. Five key 'dimensions' were set out:
- energy security, solidarity and trust;
- a fully integrated European energy market;
- energy efficiency contributing to moderation of demand;
- decarbonising the economy; and
- research, innovation and competitiveness.
In November 2016, the European Commission published the proposal for the Clean Energy for All Europeans package (formerly known as the Winter Package), a legislative package that largely updates the Third Energy Package and other key EU environmental legislation. This was fully enacted in June 2019 and consists of the following legislation:
- Energy Performance in Buildings Directive;
- recast Renewable Energy Directive;
- amendment to the Energy Efficiency Directive;
- new Regulation on the Governance of the Energy Union;
- recast Electricity Directive;
- recast Electricity Access Regulation;2
- recast ACER Regulation;3 and
- a new Regulation on Electricity Sector Risk-Preparedness.
Following the entry into force of the individual directives, EU Member States have a period of one to two years to transpose them into national law. The ACER Regulation and the Regulation on Electricity Sector Risk-Preparedness entered into force on 4 July 2019 and the Regulation on the Governance of the Energy Union and the Electricity Access Regulation will enter into force on 1 January 2021.
On 11 December 2019, the European Green Deal was introduced by the current von der Leyen Commission (2019–2024). This elaborates on the Energy Union and sets a clear focus on climate, sustainability and biodiversity conservation for all policy areas of the Commission. The main aim of the Green New Deal is to achieve no net emissions of greenhouse gases by 2050.
It is clear that there is a substantial body of legislation regulating the European energy markets. For the purposes of this chapter, the main provisions of key secondary energy legislation are presented.
II EUROPEAN ELECTRICITY AND GAS REGULATORY SYSTEM
The Third Energy Package is a legislative package comprised of three regulations and two directives designed to create the internal market for electricity and gas. These are the ACER Regulation,4 the Electricity Directive,5 the Gas Directive,6 the Electricity Access Regulation7 and the Gas Access Regulation.8 The Clean Energy Package has resulted in the revision of the Electricity Access Regulation and the ACER Regulation, whereby the Electricity Directive will remain in force until the end of 2020, on which the last part of the new electricity market rules will apply.9 The regulatory system for the European energy markets is effectively divided into the national and European Union level.
At the national level, the Electricity and Gas directives require Member States to designate national regulatory authorities (NRAs), independent bodies that are primarily responsible for setting national transmission or distribution tariffs, cooperating with other NRAs on cross-border issues, monitoring the investment plans of national transmission system operators (TSOs) and ensuring the transparency of consumption data for consumers.
At the European Union level, the ACER Regulation provides for the establishment and legal status of the Agency for the Cooperation of Energy Regulators (ACER), a European forum for the cooperation of NRAs. It defines its tasks, in particular those regarding NRAs, cross-border infrastructure access conditions and operational security, obligations on consultations and transparency, monitoring and reporting obligations on the electricity and natural gas sectors, organisational structure and its budget. The recast ACER Regulation includes provisions on new tasks and restructuring to reflect the enhanced role ACER is to play in the Energy Union, and allowing ACER to establish local offices in Member States. The recast ACER Regulation entered into force on 4 July 2019.
ACER and the NRAs form the core of the European electricity and gas regulation system and are supported by a number of other bodies, as described below.
As part of the Clean Energy Package, a new Regulation on the Governance of the Energy Union and Climate Action10 was introduced, which centralises governance and reporting provisions for the entire EU energy sector, including provisions on integrated national energy and climate plans; long-term low emission strategies; Commission assessment of national plans and EU target achievement; national and EU systems on greenhouse gas emissions and removals by sinks; and cooperation and support between Member States and the European Union. The Regulation entered into force in December 2018, with provisions on the establishment and operation of registries to account for the nationally determined contributions and minor amendments to related legislation applying from 1 January 2021.
i Electricity Directive
The Electricity Directive focuses specifically on establishing the European internal market for electricity. In particular, it sets out public service obligations for electricity undertakings and customer protection obligations, the monitoring of security of supply by Member States, technical rules and the promotion of regional cooperation of Member States and NRAs. As regards new generation capacity, it establishes an authorisation procedure and a tendering option.
Furthermore, transmission systems and TSOs must be unbundled; however, Member States may instead opt to designate an independent system operator. Unbundling provisions include the designation and certification of TSOs by NRAs, their tasks, ownership unbundling, dispatching and balancing, and confidentiality, as well as defining decision-making powers of TSOs regarding the connection of new power plants.
Distribution system operators (DSOs) must also be unbundled. The Directive provides for their designation by Member States, their tasks and confidentiality obligations, and provisions on optional closed distribution systems. For both TSOs and DSOs, the unbundling process includes the transparency of their accounts to Member States or any designated authority.
The Directive further regulates transmission and distribution system access, notably on the freedom of third-party access, market opening and reciprocity, and direct lines to all eligible customers.
As discussed in Section II, the Directive establishes NRAs, including their objectives, duties and organisational structure, and includes provisions on retail markets, as well as safeguard measures in response to a sudden energy market crisis, and the non-discriminatory nature of the Directive's implementation.
The recast Electricity Directive sets out provisions on further developing market-based pricing with an option for public intervention for vulnerable consumers, the expansion of consumer rights, the expansion of the tasks of NRAs regarding regional cooperation on cross-border matters, clarification of the roles of TSOs regarding energy storage and regional coordination centres, and clarification of the role of DSOs regarding energy storage and recharging points for electric vehicles. The recast Electricity Directive has been in force since June 2019 and is to be implemented into national law by 1 January 2021.
ii Electricity Access Regulation
The Electricity Directive is coupled with the Electricity Access Regulation, which establishes the European Network of Transport System Operators for Electricity (ENTSO-E), a European forum for the cooperation of TSOs, which is tasked with monitoring national TSOs and their EU-wide network development plans. The Regulation designates tasks for ENTSO-E and monitoring obligations for ACER.
The Regulation furthermore establishes network codes (see Section III.iii), regulates network access charges, the provision of information by TSOs, general principles of congestion management and special provisions on new interconnectors.
The recast Energy Access Regulation sets out provisions on core market principles, in particular:
- that electricity prices are formed based on demand and supply and forbidding caps or floors on wholesale prices;
- the introduction of rules on balancing markets;
- the non-discriminatory and market basis of power generation and demand-response dispatching;
- the introduction of a definition of bidding zone borders; and
- the introduction of a European cooperation platform for DSOs.
The recast Electricity Access Regulation has been in force since June 2019.
iii Network codes
Network codes11 are technical rules designed to address key priorities specified by the European Commission.12 These aim to develop and harmonise specific aspects of the European energy networks, including capacity allocation, balancing supply and demand, requirements of generators and transmission networks, and security of supply.
The electricity network codes are grouped into three categories:
- connection codes, which set requirements for the connection of both generators and large customers to the transmission grids;
- operational codes, designed to regulate the operation of the transmission systems and the security of supply, and to ensure that supply and demand of electricity within and between transmission systems is balanced; and
- market codes, which encourage a transparent and competitive pan-European marketplace for electricity and capacity in all timescales, and stimulate generator diversification and infrastructure optimisation.
To date, eight – and thereby all the originally planned electricity network codes – have entered into force. The network code on capacity allocation and congestion management (CACM)13 sets out methods for allocating capacity in day-ahead and intra-day timescales, and designates nominated electricity market operators as coupling operators, and sets out their tasks as well as tasks for TSOs relating to single day-ahead and intraday coupling. The CACM includes detailed provisions on terms, conditions and methodologies on capacity allocation and congestion income distribution.
The network code on forward capacity allocation14 sets out methods for allocating capacity in the forward markets and aims to:
- promote effective long-term cross-zonal trade with long-term cross-zonal hedging products for market participants;
- optimise the calculation and allocation of long-term cross-zonal capacity;
- provide non-discriminatory access to long-term cross-zonal capacity;
- ensure fair and non-discriminatory treatment of TSOs and market participants; and
- enhance the transparency and reliability of information.
The network code on electricity balancing15 sets out:
- provisions on terms and conditions or methodologies of TSOs and their approval;
- roles and responsibilities of TSOs in the electricity balancing market;
- the establishment of European platforms for the exchange of balancing energy from:
- replacement reserves, frequency restoration reserves with manual activation; and
- frequency restoration reserves with automatic activation;
The network code on emergency and restoration16 sets out:
- provisions on regional coordination;
- the development of a system defence plan and a restoration plan;
- the development of rules and procedures for the suspension and restoration of market activities;
- information exchange between TSOs; and
- compliance testing with obligations under the code.
The network code on demand connection17 sets out requirements for the grid connection of transmission-connected demand facilities, transmission-connected distribution facilities, distribution systems and demand units as used by a demand facility or closed distribution system to provide demand-response services.
The network code on high voltage direct current connections18 sets out requirements for long-distance direct current connections, links between different synchronous areas and direct current-connected power park modules, such as offshore wind farms.
The network code on requirements for generators19 provides requirements for newly constructed generators, notification procedures and compliance provisions.
The network code on system operation20 sets out:
- provisions on operational security requirements;
- data exchanges between different market participants;
- compliance with system operator provisions;
- the development of training programmes on and certification of real-time system operation, operational planning, operational security analysis, outage coordination and control area adequacy analysis;
- the availability and provision of ancillary services;
- the implementation and operation of an ENTSO-E operational planning data environment; and
- load-frequency control and reserves.
iv Proposal for risk preparedness
The Commission published the Regulation on Risk-Preparedness in the Electricity Sector in the Official Journal of the European Union on 14 June 2019. This new Regulation proposes measures for risk assessments and risk preparedness, and the management of any electricity crisis situations in the Union, in particular setting out methodologies to assess electricity security of supply and to identify crisis situations at the level of both Member States and their regions. This Regulation has been in force since 4 July 2019.
IV NATURAL GAS
i Gas Directive
The Gas Directive is the natural gas counterpart to the Electricity Directive, setting up a similar regulatory structure for the internal market for natural gas. In doing so, it sets out public service and customer protection obligations for gas undertakings, authorisation procedures, the monitoring of security of gas supply, regional solidarity, the promotion of regional cooperation and technical rules.
The Directive includes provisions on the unbundling of transmission systems and TSOs, their designation and certification by NRAs, their certification in relation to third countries, the unbundling of transmission system owners and storage system operators, and the designation of storage and LNG system operators, as well as duties for these entities. As an alternative to unbundling, Member States may opt to establish independent system operators.
DSOs must be unbundled. The Directive regulates the designation of DSOs, their tasks and the option for Member States to designate closed distribution systems.
The Directive further regulates system access, specifically third-party access, access to storage, access to upstream pipeline networks, refusal of access, new infrastructure, market opening and reciprocity, and the possible designation of direct lines. It includes provisions on retail markets, safeguard measures and the level playing field.
The Directive requires Member States to establish NRAs and sets out their objectives, duties and organisational structures.
The European Commission proposed an amendment to the Directive in November 2017, to be implemented by Member States by 23 May 2019. This amendment has extended the rules set out under the former Gas Directive to gas transmission infrastructure running between Member States and third countries.
ii Gas Access Regulation
The Gas Access Regulation establishes the European Network of Transmission System Operators for Gas (ENTSOG), the sister organisation of ENTSO-E, which cooperates in the same manner with ACER.
As with the Electricity Access Regulation, the Gas Access Regulation establishes network codes (see Section IV.iii). In addition, it establishes the free and non-discriminatory access of third parties to gas transmission networks on the European natural gas markets, thereby enforcing the principle of free competition.
The Regulation in particular provides for the transparency of tariffs and calculation methodologies for access to networks, third-party access services, the principles of capacity-allocation mechanisms and congestion management procedures, transparency requirements, balancing rules and imbalance charges, trading of capacity rights, guidelines on the minimum degree of harmonisation, compliance of regulatory authorities and reporting obligations from Member States to the Commission.
iii Network codes
The network code on capacity allocation mechanisms (CAM)23 was recast in March 2017, updating the previous regulation to include the offer of incremental capacity and removing provisions on tariffs that have been included in a separate network code. The CAM regulates the principles of cooperation between TSOs in adjacent EU Member States and the allocation of firm capacity. Allocation provisions are divided into allocation methodology, standard capacity products and capacity auction systems over different time frames. It further regulates the bundling of cross-border capacity, incremental capacity, interruptible capacity and capacity booking platforms.
The network code on gas balancing in transmission networks24 sets out detailed provisions for a gas balancing system, trade notifications and allocations, operational balancing procedures, and on nomination and renomination procedures. The balancing procedures include provisions on short-term standardised products and the establishment of a trading platform for their procurement, and incentives for TSOs to undertake efficient balancing actions.
The network code on interoperability and data exchange25 regulates interconnection agreements, providing that adjacent TSOs mutually agree on rules for flow control, measurement principles for gas quantity and quality, rules for gas quantity allocation and communication procedures in the case of exceptional events. It further provides for a dispute resolution system, and sets out a common set of units and provisions for gas quality and odorisation.
The network code on tariff harmonisation26 aims to homogenise gas transmission tariffs within the European Union, promoting fair and objective tariffs, providing methodologies on reference prices, reserve prices, clearing prices and payable prices, provisions on reconciliation of revenues, pricing of bundled capacity and capacity at virtual interconnection points, consultation and publication requirements, and tariff principles for incremental capacity.
Congestion management procedures27 are fundamentally guidelines that address third-party access services concerning TSOs, the principles of capacity-allocation mechanisms and congestion management procedures, and their application in the event of contractual congestion. They also set out the technical information necessary for network users to gain effective access to the system.
Further priority areas include network security and reliability rules, network connection rules, third-party access rules, data exchange and settlement rules, emergency operational procedures and transparency. These are currently under consideration by ACER.
iv Gas Security of Supply Regulation
The Gas Security of Supply Regulation28 aims to prevent a disruption of natural gas supply to the European Union and to ensure a coordinated response if necessary. Its fundamental principle is that security of gas supply is the shared responsibility of natural gas undertakings, Member States and the Commission.
It provides for:
- the establishment of a Gas Coordination Group;
- the development of a robust infrastructure network across the European Union;
- the development of a gas supply standard to ensure that vulnerable consumers have a supply under certain extreme circumstances;
- the performance of a regular risk assessment by ENTSOG and coordinators of regional cooperation Member State groups;
- the establishment of preventive action plans and emergency plans, different supply crisis levels, regional and Union emergency responses;
- the solidarity principle whereby, in a severe crisis, neighbouring Member States are to help ensure that gas supplies to households and essential social services receive a continued supply of gas;
- information exchange, and handling of confidential information by various market participants and authorities; and
- cooperation with the Energy Community Contracting Parties.
i Oil and Gas Licensing Directive
The Oil and Gas Licensing Directive29 sets out common rules that aim to ensure competitive and non-discriminatory access to third parties to prospect, explore and produce hydrocarbons within the territories of the Member States.
Authorisations must be granted in a transparent and non-discriminatory manner to all interested parties. The evaluation of authorisations is based on criteria relating to the technical and financial capabilities of the applicant and the manner in which it proposes to exploit the area.
The boundaries of authorisation areas must be determined in such a way that the entity can act in the most efficient manner from economic and technical points of view. This is intended to encourage the most efficient means of exploitation, as in some cases several entities can do so more effectively than single entities.
Member States are obliged to submit information pertaining to the authorisation for publication in the Official Journal of the European Union. This information includes the duration of the authorisation, the specific area and selection criteria. Furthermore, Member States are obliged to submit an annual report on the areas opened, authorisations granted, details of entities holding the authorisations and information regarding the reserves available in their territory.
ii Oil Stockholding Directive
The Oil Stockholding Directive30 sets out rules to mitigate an oil supply crisis in the European Union. It also sets out obligations for Member States to maintain emergency stocks, including a methodology for calculating stock levels, and to ensure the availability and accessibility of stocks. Member States must maintain a register of emergency stocks and submit an annual report to the Commission. Member States may set up a central stockholding entity to provide support in meeting these obligations.
The Directive imposes regulations on economic operators and permits Member States to maintain and manage a minimum level of specific oil stocks, providing methodologies to calculate summaries of stocks. Furthermore, the Directive sets up a coordination group for oil and petroleum products, permits the Commission to review emergency preparedness and stockholding, and requires that Member States have emergency procedures in place in case of a major supply disruption.
VI TRANS-EUROPEAN ENERGY INFRASTRUCTURE REGULATION
The Trans-European Energy Infrastructure Regulation (TEN-E)31 complements the aims of the Third Energy Package, establishing the concept of projects of common interest (PCIs). These are infrastructure projects that would significantly contribute to the development of the internal market and the achievement of the European Commission's 2020 goals, namely a 20 per cent cut in greenhouse gas emissions (from 1990 levels), achieving 20 per cent of EU energy from renewables and a 20 per cent improvement in energy efficiency by 2020.
TEN-E regulates in particular the selection, implementation and monitoring of PCIs, as well as permit granting procedures, public participation, the regulatory treatment of PCIs, financing eligibility criteria and guidance for the awards criteria of financial assistance.
PCIs may benefit in a number of ways, including through accelerated and more efficient permit granting procedures, improved regulatory treatment on the national level, streamlined environmental assessment procedures, increased public participation via consultation and access to grants from the Connecting Europe Facility.
A list of PCIs is established by the European Commission every two years; the third PCI list was published in November 2017.32 It includes 173 projects, of which 110 are electricity and smart grids projects, 53 are gas projects and six are oil projects. A total of €1.6 billion is available in grants to PCI projects for works and studies. Receiving PCI status increases the attractiveness of a project to external investors.
An applicant project must meet a series of criteria to be considered a PCI, in that it has to have significant benefits for at least two Member States, contribute to market integration and further competition, enhance security of supply for the European Union and reduce carbon dioxide emissions.
TEN-E grants the Commission the ability to nominate PCIs by means of delegated acts and sets out the conditions of its exercise. TEN-E further sets out obligations regarding reporting and evaluating PCIs, and information and publicity obligations.
VII RENEWABLE ENERGY DIRECTIVE
The Renewable Energy Directive (RED)33 is a key directive for the European Union's commitment to renewable energy generation and consumption, setting out the specific aim of fulfilling at least 20 per cent of its total energy needs with renewable source energy by 2020, and a mandatory target of a 10 per cent share of energy from renewable sources in the transportation sectors of Member States by 2020.
The Directive requires Member States to set mandatory national overall targets and measures for the use of energy from renewable sources, and to adopt national renewable energy action plans. To achieve these targets, the Directive provides for statistical transfers, joint projects between Member States or third countries and joint support schemes between Member States.
Member States are required to provide information and training on support measures and details on the benefits, costs and energy efficiency of renewable source energy to consumers, builders, architects and equipment suppliers.
One important aspect of the Directive is the establishment of guarantees of origin of electricity, heating and cooling produced from renewable energy sources, which is a system to ensure that the origin of electricity produced from renewable energy sources can be guaranteed.
The Directive furthermore regulates the access to and operation of the transmission and distribution grids, the sustainability criteria for biofuels and bioliquids and verification of their compliance, and specific provisions relating to energy from renewable sources in transport. The Commission is additionally required to monitor and report the origin and effects of biofuels.
Member States are required to regularly report the progress of the promotion and use of renewable source energy, and the Commission is required to establish an online public transparency platform to facilitate and promote cooperation between Member States.
In December 2018, the recast Renewable Energy Directive (REDII)34 entered into force. It is to be implemented by Member States as of 1 July 2021, on which date the Renewable Energy Directive is to be repealed. REDII includes provisions on a minimum target of 32 per cent for the share of energy from renewable sources in the Union's gross final consumption of energy in 2030, the opening up of support schemes to projects in other Member States (permitting Member States to support renewable generators in other Member States), new qualifications for accounting for guarantees of origin issued to supported generators, extending the use of guarantees of origin to non-renewable projects, and the right of consumers generating their own electricity (known as renewables self-consumers) to sell any excess while retaining their rights as consumers.
VIII ENERGY EFFICIENCY
i Energy Efficiency Directive
The Energy Efficiency Directive35 aims to promote energy efficiency across the European Union to meet the European Union 2020 goal of 20 per cent target on energy efficiency, thereby removing barriers that limit efficiency in the supply and use of energy.
The Directive requires Member States to set national energy efficiency targets and a strategy to mobilise investment for improving the energy efficiency of buildings, whereby public bodies are to have an exemplary role. It regulates public procurement with regard to energy efficiency, requires Member States to set up energy efficiency obligation schemes and sets out a number of consumer obligations.
Member States are required to encourage the use of energy audits and energy management systems for final consumers, to provide final consumers with meters, cost-free access to metering and billing information and information on energy, and to implement a consumer empowerment programme.
Member States are additionally required to perform a comprehensive assessment of the potential for the application of high-efficiency cogeneration and efficient district heating and cooling, and to ensure that, in the performance of their duties, NRAs take account of energy efficiency measures. The Directive provides for a system of qualification, accreditation and certification schemes for providers of energy services, energy audits, energy managers and installers of energy-related building elements should the Member State consider itself not to have the required technical competence.
Furthermore, Member States are required to promote energy services markets for small and medium-sized enterprises, and are permitted to set up an energy efficiency national fund and other financing and technical support to increase energy efficiency in different sectors.
In December 2018, the amended Energy Efficiency Directive36 entered into force, and the amendments to the current Energy Efficiency Directive are to be made by Member States by 25 June 2020 (with some provisions to be implemented by 25 October 2020). The amendment sets out a binding 32.5 per cent minimum energy efficiency target for 2030, building on that of 20 per cent for 2020, updates the energy savings obligation for Member States and extends consumer rights, in particular regarding billing and energy consumption information through smart metering systems.
ii Energy Performance in Buildings Directive
The Energy Performance in Buildings37 Directive aims to promote the improvement of the energy efficiency of buildings within the European Union.
The Directive sets out a common general framework to develop:
- a methodology to calculate the energy performance of buildings and building units;
- minimum requirements on the energy performance of new and existing buildings;
- a national plan for increasing the number of nearly zero-energy buildings;
- rules on energy certification of buildings or building units; and
- rules on independent control systems for energy performance certificates and inspection reports.
The amended Energy Performance in Buildings Directive38 entered into force in December 2018, with an implementation deadline of 10 March 2020. The amended Directive introduces an obligation for Member States to establish a long-term renovation strategy and develops requirements for residential and non-residential buildings, such as installing recharging points for electric vehicles, and details on heating systems and air-conditioning systems.
i Emissions Trading Directive
The European greenhouse gas emissions allowance trading scheme (the Emissions Trading Scheme) was established by the Emissions Trading Directive39 with the aim of significantly reducing greenhouse gas emissions through a cap-and-trade scheme.
The Emissions Trading Directive notably regulates:
- greenhouse gas emissions permits and their application procedure;
- notification obligations for installation operators;
- the development of a national allocation plan;
- allocation methods for allowances;
- the transfer, surrender and cancellation of allowances throughout the European Union;
- the validity of allowances;
- guidelines for monitoring and reporting of emissions; and v
- verification of reports submitted by operators.
Allowance allocation decisions are to be made available to the public, and Member States must establish allowance registries; Member States are further subject to reporting obligations. The Commission is required to designate a central administrator that is to maintain an independent transaction log, recording the issue, transfer and cancellation of allowances.
The Emissions Trading Directive is supported by additional legislation,40 such as the Registry Regulation,41 which sets up the registries system and regulates the creation, deletion and suspension of accounts, verification of emissions and compliance, the performance of transactions, permissible allowances, trading mechanisms, general technical requirements, and links with other greenhouse gas emission trading schemes.
X THE CARBON CAPTURE AND STORAGE DIRECTIVE
The Carbon Capture and Storage Directive42 provides a legal framework for the environmentally safe geological storage of carbon dioxide, regulating the selection of storage sites, conditions on exploration permits and storage permits, and operation obligations. These operating obligations include:
- the composition of carbon dioxide streams and their acceptance procedure;
- the monitoring of storage facilities;
- reporting obligations of the storage operator;
- inspections of the facilities;
- closure and post-closure obligations;
- the provision of financial security by operators for storage permits; and
- a financial mechanism for the competent authority.
The aforementioned competent authority is to be designated by the Member State to fulfil its duties under the Directive, and to facilitate trans-boundary cooperation and maintain a registry of permits and closed storage sites.
The Directive further regulates third-party access to transport network and storage sites, and requires Member States to provide information to the public regarding storage operations and regular updates to the Commission on the implementation of the Directive.
XI ENERGY MARKETS
Following the global financial crisis of 2008–2009, the European Union adopted a number of legislative instruments to stabilise the financial markets, to limit price volatility of commodities and to ensure that markets have sufficient capital. It is not the aim of this chapter to discuss financial regulations; however, while not energy-specific, it should be kept in mind that the energy market is affected by European financial markets legislation.43
With the Third Energy Package (and the respective amendments and additions brought through the Clean Energy Package) and REMIT,44 this legislation has introduced additional obligations for energy markets, including reporting obligations, transparency requirements, the treatment of certain types of energy or emissions allowances as financial instruments or derivatives, organisational requirements for markets, the introduction of new trading venues, the mandatory use of regulated markets for certain products and a clearing obligation for certain trades.
XII FUTURE DEVELOPMENTS
Two main external factors are likely to direct European Union energy policy in the future: the need to diversify and secure energy supply, and the Paris Agreement (including its implementation through successive conferences of the parties to the United Nations Framework Convention on Climate Change).
The European Green Deal, which was introduced in December 2019 under the current von der Leyen Commission, elaborates on the Energy Union introduced by the Juncker Commission and seeks to transform the European Union into the first climate-neutral continent.
The European Union has already set mandatory targets to increase the share of renewable source energy in the European energy mix, which are in line with the target of the Paris Agreement. Following the ratification of the Paris Agreement, the Clean Energy for All Europeans package reinforced by the European Green Deal makes an increased commitment from the European Union and its Member States to decarbonise the economy.
On 29 March 2017, the United Kingdom triggered Article 50 of the Treaty on the European Union following the result of the Brexit referendum in June 2016. This started a negotiation window for the European Union and the United Kingdom to agree on the terms of UK withdrawal and potentially the EU–UK cooperation mechanism. On 24 January 2020, the European Union, the European Atomic Energy Community and the United Kingdom signed the 'Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community' (the Withdrawal Agreement). The Withdrawal Agreement provides for the formal withdrawal of the United Kingdom from the European Union on 31 January 2020 at 23:00 GMT and a transition period until 31 December 2020 (subject to any agreed extension) during which the United Kingdom remains subject to EU law, the jurisdiction of the Court of Justice of the European Union and remains within the single market. However, the United Kingdom is not involved in the EU legislative procedure during the transition period unless invited by the Member States. If no final agreement is reached by 31 December 2020 and the transition period has not been extended, a no-deal Brexit will be the default outcome.
Of possible relevance to the energy sector, the Withdrawal Agreement provides at a high level for the movement of goods placed on the market prior to the end of the transition period and for continuing customs procedures. Neither the Withdrawal Agreement nor the current status of negotiations, however, provide any clarity as to the effects of Brexit on the energy sector.
Notwithstanding the effects of Brexit on the UK energy sector, the regulatory landscape in the European Union is likely to remain largely unchanged; however, certain issues may arise as part of the proceedings. These may include the adaptation of the Emissions Trading Scheme to account for the withdrawal of the EU's second-largest emitter, and issues involving connection to the newly established UK energy sector. The exact nature of any possible effects of Brexit on the EU energy sector remains unclear; however, because of the Withdrawal Agreement, any such effects will be delayed until 31 December 2020.
1 Andreas Gunst, Natasha Luther-Jones and Michael Cieslarczyk are partners at DLA Piper International.
2 Regulation (EU) 2019/943, replacing Regulation (EC) No. 714/2009.
3 Regulation (EU) 2019/942 recasting Regulation (EC) No. 713/2009.
4 Regulation (EC) No. 713/2009 establishing an Agency for the Cooperation of Energy Regulators.
5 Directive 2009/72/EC concerning common rules for the internal market in electricity.
6 Directive 2009/73/EC concerning common rules for the internal market in natural gas.
7 Regulation (EC) No. 714/2009 on conditions for access to the network for cross-border exchanges in electricity.
8 Regulation (EC) No. 715/2009 on conditions for access to the natural gas transmission networks.
9 Directive (EU) 2019/944, replacing Directive (2009/72/EC).
10 Regulation (EU) 2018/1999 on the Governance of the Energy Union and Climate Action.
11 As established for the electricity market by the Electricity Access Regulation.
12 Network codes are initiated as non-binding 'framework guidelines' set out by ACER, outlining the aims and content to be achieved. Through consultation with stakeholders and the public, ENTSO-E drafts network codes based on these framework guidelines. These are subsequently evaluated by ACER to ensure their adherence to the framework guidelines. The draft network codes are then accepted through the process of comitology and are finally published by the European Commission, commonly as binding regulations.
13 Commission Regulation (EU) 2015/1222 establishing a guideline on capacity allocation and congestion management.
14 Commission Regulation (EU) 2016/1719 establishing a guideline on forward capacity allocation.
15 Commission Regulation (EU) 2017/2195 establishing a guideline on electricity balancing.
16 Commission Regulation (EU) 2017/2196 establishing a network code on emergency and restoration.
17 Commission Regulation (EU) 2016/1388 establishing a network code on demand connection.
18 Commission Regulation (EU) 2016/1447 establishing a network code on requirements for grid connection of high-voltage direct current systems and direct current-connected power park modules.
19 Commission Regulation (EU) 2016/631 establishing a network code on requirements for grid connection of generators.
20 Commission Regulation (EU) 2017/1485 establishing a guideline on electricity transmission system operation.
21 As established for the gas market by the Gas Access Regulation.
22 The development process for natural gas network codes is identical to that for electricity; however, ENTSOG is tasked with performing the stakeholder consultations and drafting of the network code based on the framework guidelines.
23 Commission Regulation (EU) 2017/459 establishing a network code on capacity allocation mechanisms in gas transmission systems.
24 Commission Regulation (EU) No 312/2014 establishing a Network Code on Gas Balancing of Transmission Networks.
25 Commission Regulation (EU) 2015/703 establishing a network code on interoperability and data exchange rules.
26 Commission Regulation (EU) 2017/460 establishing a network code on harmonised transmission tariff structures for gas.
27 Commission Decision (EU) 2015/715 amending Annex I to Regulation (EC) 715/2009 on conditions for access to the natural gas transmission networks.
28 Regulation (EU) 2017/1938 concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No. 994/2010.
29 Directive 94/22/EC on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons.
30 Directive 2009/119/EC imposing an obligation on Member States to maintain minimum stocks of crude oil and/or petroleum products.
31 Regulation (EU) No. 347/2013 on guidelines for trans-European energy infrastructure.
32 https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32018R0540 (last accessed 29 April 2020).
33 Directive 2009/28/EC on the promotion of the use of energy from renewable sources.
34 Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources.
35 Directive 2012/27/EU on energy efficiency.
36 Directive (EU) 2018/2002 amending Directive 2012/27/EU on energy efficiency.
37 Directive 2010/31/EU on the energy performance of buildings.
38 Directive (EU) 2018/844 amending Directive 2010/31/EU on the energy performance of buildings.
39 Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community.
40 Since its adoption, the Emissions Trading Directive has undergone a series of amendments: (1) Directive 2004/101/EC amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol's project mechanisms; (2) Directive 2008/101/EC amending Directive 2003/87/EC to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community; (3) Regulation (EC) No. 219/2009 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny; (4) Directive 2009/29/EC amending Directive 2003/87/EC to improve and extend the greenhouse gas emission allowance trading scheme of the Community; (5) Decision No. 1359/2013/EU amending Directive 2003/87/EC clarifying provisions on the timing of auctions of greenhouse gas allowances; and (6) Regulation (EU) No. 421/2014 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions.
41 Commission Regulation (EU) No. 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC and Decisions No. 280/2004/EC and No. 406/2009/EC.
42 Directive 2009/31/EC on the geological storage of carbon dioxide.
43 These include Directive 2014/65/EU on markets in financial instruments (MiFID II), Regulation (EU) No. 600/2014 on markets in financial instruments (MiFIR), Regulation (EU) No. 648/2012 on OTC derivatives, central counterparties and trade repositories (European Market Infrastructure Regulation – EMIR), Regulation (EU) No. 596/2014 on market abuse (Market Abuse Regulation – MAR), Directive 2014/57/EU on criminal sanctions for market abuse (Market Abuse Directive – MAD) and Directive 2013/36/EU on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms (Capital Requirements Directive – CRD IV).
44 Regulation (EU) No. 1227/2011 on wholesale energy market integrity and transparency.