What legal bases for a common energy policy

(B2) Looking at the two current treaties (EC and EU), a "normally constituted" lawyer can find the appropriate legal basis for a given policy action in energy matters, whether internal or external, if necessary by combining several bases. Demonstration...

If the word "common energy policy" does not exist as such (*), it is simply because the energy policy in 1950 was Coal and Atoms (provided for in two other ECSC treaties today now defunct and Euratom). But the general objectives of the European Community (EC) do mention action by the EC to "establishment and development of trans-European networkss" and "measures in the fields of energy" (article 3). Whereas under the European Union (EU), one can conduct a common foreign and security policy which includes a reinforced energy security policy (as explained in the conclusions of the last European Council of December 11 and 12).

The basics of the EC Treaty

• L'harmonization of the internal market. This general basis allows "the approximation of the laws, regulations and administrative provisions of the Member States which have as their object the establishment and functioning of the internal market (article 95 qualified majority) or "a direct bearing on the establishment or functioning of the common market" (article 94 unanimity). A good old basis which has been used many times, particularly... on waste.

• the economic difficulties or supply difficulties. "The Council may decide on measures appropriate to the economic situation, in particular if serious difficulties arise in the supply of certain products" (article 100 unanimity). "I'financial assistance" is also provided. Nb: If the energy is not expressly mentioned (no product is mentioned elsewhere), it is not excluded.

• The trans-european networks. The EC"contributes to the establishment and development of trans-European networks in the sectors... of energy", which includes in particular "the interconnection and interoperability of national networks as well as access to these networks" (article 154 EC qualified majority), by means of "directions", from "any action necessary", For"supports, loans, and financings" and of "cooperation with third countries" (Article 155 EC).

• The environmental policy and "prudent and rational use of natural resources" (article 174 qualified majority), including "measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply" (article 175 EC unanimously).

You can also use additional databases such as: customs policy (Article 27 provides in particular for monitoring the "needs for the supply of the Community with raw materials and semi-finished products") or the research policy (article 164 and following...).

The basics of the EU Treaty

• the common foreign and security policy (CFSP). Energy remains a weapon. And its perpetuation a condition of security. So why not use the PESC instruments. This allows you to define "the principles and general guidelines of the common foreign and security policy" (article 13). Thus the common security strategy, reviewed in the light of the Solana report adopted at the last European Council on 12 December, expressly devotes a chapter to the measures to be taken in terms of "energy security". This gives a general framework for now determining joint action as authorized by the EU Treaty: "The Council adopts common actions. These relate to certain situations where operational action by the Union is deemed necessary. They set their objectives, their scope, the means to be made available to the Union, the conditions relating to their implementation and, if necessary, their duration." (article 14 EU unanimously).

(NGV)

(*) Explicitly mentioned in a protocol (No. 14)... on the import of refined petroleum products in the Netherlands Antilles. We are talking about a revision of these provisions when there is "a common energy policy", proof a contrario that this is likely to exist in the other provisions.