Does article 194 TFUE impede direct effect of 28/2009/EC?
Last week I wrote a spanish post on article 194 of the TFEU. Some people thought that article 194 TFUE might impede us from invoking Directive 2009/28/EC directly against RDL14/2010. I do not think so.
This is the article we are talking about:
1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;
(b) ensure security of energy supply in the Union;
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
C 115/134 EN Official Journal of the European Union 9.5.20082. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.
Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature." [I highlighted the essential sentences in bold]
I resume the argument in a nutshell:
This "override" is allowed if one of the following three issues is a stake:
1. [The content of the Directive] affect[s] a Member State's right to determine the conditions for exploiting its energy resources,
2. its choice between different energy sources and
3. the general structure of its energy supply
Upfront I can tell you that RDL14/2010 does not intent to make a choice between different energy sources, or modify the general structure of its energy supply. The feed-in-tariff for Photovoltaic energy is severely lowered, but its production volume i.e. penetration is not. Neither changes in sources nor modifications of the general energy supply structure are found in RDL14/2010.
We are left with point 1: The right of the Member State to determine the conditions for exploiting its energy resources. The first question here is: Does RDL14/2010 determine conditions for exploiting its energy resources? The answer is affirmative. The following question is: Does Directive 2009/28/EC impede RDL14/2010 to do so? The answer is negative; Directive 2009/28/EC does not impede this at all. Let's dig this out this a bit more.
The directive has a twofold structure:
1. It sets general policy goals for the penetration of renewable energies, and
2. It gives us a set of practical operational rules regarding the involved administrative issues.
At no point does the directive impose any conditions on the member states regarding the exploitation of their energy resources, neither does it affect the right of the member states to determine the conditions for the general structure of its energy supply. The Directive "merely" affects the Member State's choice between different energy sources (Between renewable and others) But as said before, this is not at stake here, since RDL14/2010 does not pretend to do so.
Non discrimination is a rule, and price is a condition
Rules and conditions are not synonymous terms, they are two very different things. A rule gives an abstract framework of general application, or regulation, whereas a condition is specific for a concrete situation. A rule would be the prohibition to discriminate applicants, and a condition would be that Photovoltaic energy shall be paid for 0,46€/Kwh in Spain.
The key issue here is that any Member State can perfectly determine the conditions for exploiting its energy resources and the general structure of its energy supply without infringing the Directive. The Directive does not impose any conditions.
Article 194 is not a Carte Blanche
The design of the directive is such that the Member State can decide not to meet its goals established in the directive, alleging its free choice between different energy sources and the general structure of its energy supply. But if the Member State does make an effort in meeting its goals, all its efforts in meeting these goals will be governed by the rules of this directive, the second part of its twofold structure. Even if the Member State were to limit the Share of Renewable Energy Penetration, this limitation would still be governed by the Directive. Article 194 TFEU does not give the Member States a carte blanche to violate the rules of the Directive 2009/28/EC.
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