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This article examines the robustness of the architecture of European energy and climate governance and the instruments developed to execute climate governance based on EU-wide targets and the ambition of ‘net-zero’ by 2050. Its primary focus is on the quality of the European energy and climate governance process.The Commission’s primary task is to monitor closely national efforts to achieve the EU’s binding targets for example on energy efficiency, greenhouse gas (GHG) emission reduction and renewables production, to report regularly on progress or lack thereof. Although a considerable literature on climate governance has now evolved its focus is primarily on the tools available to the Commission to realize the Union’s climate and energy governance strategy in the absence of legally binding national targets. Many important and central questions about this governance process remain largely unanswered and unresolved. Legally binding union-wide climate targets are embraced by the new EU Climate Law of 2021, and various measures to promote renewable energy, energy efficiency and emission reduction are expressed to be ‘legally binding’ on the European institutions. But what does this mean in practice – especially in the current ‘energy emergency’ situation? Are there any effective legal constraints if the Commission’s actions or its failure to act is likely to imperil the timely realization of these ‘binding’ European wide targets. The first part of this article analyses the climate and energy governance and assesses the Commission’s role and responsibilities. Two additional and inter-related instruments of European ‘net zero governance’ are dealt with in the second and third parts. These are the reliance on delegated acts (part two) and the use of state aid control (part three). The scope of the Commission’s discretion when drawing up delegated rules has become an essential element of the ‘net zero’ governance process. An assessment of the application of the Treaty state aid rules to national schemes to support fossil fuels provides useful legal as well as policy insights. It serves as an important testing ground for policy coherence and continuity in pursuing the Union’s climate goals. This assessment contributes to a practical appraisal of the quality of governance from the perspective of this article – in terms of the scope of discretion open to the Commission to continue to approve such subsidies even in the light of the Climate Law’s binding targets.

La regulación es un elemento definitorio de cualquier sistema de organización social; consecuentemente, mediante la presencia de reglas y del esfuerzo por aplicarlas reconocemos la existencia de un orden social. Con independencia de que la cuestión sea el control de la moralidad sexual, la autorización de drogas o la imposición de un impuesto, el centro de la actividad regulativa permanece constante

This chapter considers the application of the Treaty state aid rules to scrutinize funding of national capacity remuneration mechanisms. State aid control has been a key instrument to ensure national financial support to ensure generation adequacy does not frustrate the over-riding objective of completing the internal energy market. The Commission’s has used its powers to launch a sector- wide inquiry into support for CRMs, and has subsequently adopted detailed ‘soft law’ guidelines to assess the compatibility of national support measures to promote generation adequacy and reliability. Since 2014, it has adopted several controversial decisions—some of which have now been subject to challenge before the CJEU. The role of the guidelines to harmonize national approaches to the need for CRMs have to some extent been overtaken by legislation but many open questions remain—even following the recent adoption of a new set of guidelines at the end of 2021.

First published online: 13 Feb 2019 This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way. This contribution investigates the form and content of a new and updated European Union (EU) legal framework intended to regulate third-country import pipelines for gas, including the ‘upstream’ component of the Nord Stream 2 pipeline. The article will first set the scene and examine the essential features of the current legal regime regulating import pipelines in the EU and explore its extraterritorial dimension, including the discussion of the allocation of competences between the EU and its Member States. Subsequently, the paper will explore the newly proposed EU legal framework for import pipelines as set out in the Commission’s proposal to amend the 2009 Gas Directive. It will focus on three crucial, interlinked dimensions: (1) the proposed form of such legislation; (2) the applicability of the framework to existing and new pipelines entering the EU (scope); and (3) a potential derogation and exemption regime for import pipelines.

First published online: 15 September 2020 The continual availability of energy is economically and socially essential, but is primarily reliant on private operators and investments to be maintained and developed. Investments in the energy sector are typically highly capital intensive and require long payback periods. This in turn calls for legal and regulatory stability for such investments by the legislator. While changes to laws are inevitable, such changes should be implemented prospectively and take into account the legitimate expectations attached to existing investments. In this article we analyse the recent practice of the EU to retrospectively apply legal rules in the energy sector. Our research shows that it has been common practice of the EU to grant transitional periods and grandfathering rights to allow market participants to adapt to the 'new rules of the game'. However, while this represents common practice, our research shows that this practice is applied with discretion and can even be misused in the pursuit of political objectives, violating established legal principles including legitimate expectations and legal certainty.

This article explores the impact of an important ruling from the ECJ in Baltic Cable AB v Energimarknadsinspektionen on 11 March 2020 in which that court narrowly avoids giving the referring Swedish court a green light to interpret a key provision of the EU internal energy market legislation contra legem. Invoking instead the principle of non-discrimination, the ECJ relies on a classic remedy to recognise that a company owning and operating an electricity interconnector should be entitled to earn a reasonable profit. Although the interconnection of energy networks is an objective enshrined in Article 194(1) TFEU, the realisation of this objective has spawned a dense and highly technical web of regulation. This article explains the Court’s reasoning and its potential legal as well as economic impact in this complex and evolving regulatory space. We explain that while valuable progress has been made on technical harmonisation, classic fundamental principles of EU law, such as the non-discrimination principle, remain pivotal for resolving modern and central issues of electricity market integration.

This paper explores how EU competition law enforcement might be affected by the COVID-19 pandemic. Each section of this paper reviews how various components of EU competition law are impacted. The paper evaluates the state of play and, where relevant, it makes policy proposals for how competition law might develop. It suggests that the Commission’s state aid policy is unprecedentedly lax but more tightening up might be welcomed to ensure state funds are not misspent. In the field of antitrust it recommends that competition authorities should be watchful of excessive prices and price discrimination, using interim measures more boldly. Collusion should remain an enforcement priority but a procedural pathway to review agreements that may be in the public interest is proposed, drawing on practices developed in the US in the aftermath of major natural disasters. In merger control, the Commission’s strict interpretation of the failing firm defense is appropriate but, in general, a more skeptical attitude towards mergers may be warranted during this period. Advocacy plays a key role: competition agencies can both point to existing regulations that limit competition and monitor proposed emergency legislation that would harm competition for no good reason.

In maart 2019 is het wetsvoorstel ongewenste zeggenschap telecommunicatie ingediend bij de Tweede Kamer. Dit wetsvoorstel introduceert een investeringstoets in de telecommunicatiesector. Het is een aanvulling op het bestaande wet- en regelgevend kader dat veelal is ingevoerd ten tijde van de privatisering en liberalisering van vitale infrastructuursectoren. Dit kader biedt volgens de regering niet langer afdoende bescherming tegen nationale veiligheidsrisico’s die in de huidige tijd door buitenlandse overnames en investeringen in de vitale infrastructuur kunnen ontstaan. De investeringstoets behoort tot een nieuw soort instrumentarium (de zogenaamde “tweede generatie instrumenten”) met een grotere reikwijdte en breder toepassingsbereik dat in steeds meer EU-lidstaten zijn intrede doet. Hoewel het recentelijk vastgestelde EU-screeningskader aanzienlijke ruimte laat aan EU-lidstaten om screening van investeringen vorm te geven, moet de wijze waarop deze ruimte wordt ingevuld in overeenstemming zijn met de fundamentele Europese vrij verkeer bepalingen. Dit artikel concludeert, dat het wetsvoorstel in de huidige vorm een ongerechtvaardigde belemmering van het vrij verkeer vormt en herbezinning behoeft.

This chapter discusses EU law on public services. It begins by explaining the meaning of the term ‘public services’ and the related term used by the EU, ‘services of general economic interest’ (SGEIs). It then considers the rules on commercial monopolies set out in Article 37 TFEU and the rules on state aid in Articles 107 and 108 TFEU. This is followed by case studies on the following public services: utilities, social services, and health care.

This special edition of the European Journal of Risk Regulation deals with a highly topical, complex and controversial subject matter – the reform of the regulation of medical devices in the European Union.At first sight, and as further detailed in the following articles, there appears to be a general consensus about the need to improve the EU (and indeed the US) regulatory framework on medical devices, especially for high-risk categories of devices. Stakeholders including representatives of the industry, patient and consumer organizations, national authorities, healthcare professionals, agree that there is a need for change. However, opinions differ on what needs to be changed and how. Three alternatives for reform of the current EU systemof regulation have been debated over the past years: the adoption of a pharmastyle system of pre-market authorisation; maintaining the status quo but strengthening implementation and supervision in the Member States; or finally, introducing common technical specifications together with specific guidelines for certain high-risk devices.

With three waves of internal energy market legislation already adopted and a fourth just tabled, a key question is “do we have an institutional structure that can effectively deliver the ambitious goals of the EU energy and climate change policy?”. To answer this question, the chapter employs a benchmark comparison, using general EU competition law as a benchmark for an effectively enforced EU policy. It compares the current as well as the emerging institutional structure of EU energy market regulation with that of EU competition law, to assess the extent to which there is a ‘competition law-ization’ of energy market institutions. The chapter finds that the Third Package of 2009 created an institutional structure that shares a number of features with competition law, hence laying the grounds for an effective institutional structure. The new ‘Winter’ package unveiled in November 2016 builds on the institutional acquis. However, there are also new trends – in particular a shift to relying on tools that require more Member State co-operation with the Commission. This trend might limit the effectiveness of competition law-ization unless such co-operation concerns aspects that are complementary to the core subject matter of competition law.

In the pharmaceuticals sector there is an inherent tension between intellectual property rights and antitrust. This paper examines this tension over the past 10 years since modernisation of EU competition law. It looks at three types of problems: (i) restrictions on parallel imports; (ii) abuse of administrative procedure; and (iii) pay for delay cases. This overview shows that the European Commission is now especially active in areas (ii) and (iii) and generally relies on a more formalistic approach of finding restrictions by object instead of using economic arguments to demonstrate restrictions by effect. The by object approach is supported by the EU Courts. Also, the molecule (active ingredient) is often regarded as the relevant product market, facilitating a finding of dominance. Some national competition authorities have followed in the footsteps of the Commission but on the whole they are less active, for instance on pay for delay. This may be because the EU Courts have yet to rule on this type of case. For pharmaceutical companies the net result is that they cannot assume their intellectual property rights will stand in the way of a finding of antitrust infringement and their behaviour will be scrutinised closely.

With an increasing regulatory framework being introduced under European Community law, Member States may gradually lose their ability to organise their electricity and gas sectors. Different levels...

Under Europe's recent Directive on competition in electricity, Member States retain immense autonomy to set the competitive agenda within their borders. The result may well be a distinctly skewed—and far from open—trade in electricity, and little opportunity for even large customers to make a meaningful choice of suppliers.