A Critique of the EU Commission's Proposal Concerning Intergovernmental Energy Agreements

摘要

The EU imports 90 per cent of the crude oil it consumes and 60 per cent of its natural gas from third countries. When the importation of these crucial resources requires the construction of long-term and complex infrastructure projects, such as oil or gas pipelines, receiving and transiting EU Member States and producing third countries frequently conclude intergovernmental agreements (IGAs). It is these IGAs that supply the legal framework for operating such infrastructure projects. IGAs containing detailed provisions concerning the use and ownership of critical pipelines and connectors necessarily engage EU norms relating to energy security and the functioning of the internal energy market. In the wake of the EU's Third Energy Package and in order to better understand the relationship between the terms of the Member States' IGAs and the EU's contemporary energy norms the European Parliament and the Council issued Decision 994/2012 (the 2012 Decision) which established an "information exchange mechanism with regard to intergovernmental agreements in the field of energy". Roughly four years later, in early 2016, a review of the effectiveness of the 2012 Decision carried out by the EU Commission revealed that the 2012 Decision failed to meet the Commission's expectations. The information exchange mechanism of the 2012 Decision led to the notification of 124 energy related IGAs and enabled the Commission to identify that a certain number of IGAs do not currently comply with EU law. However, the 2012 Decision did not facilitate the actual transformation of non-compliant IGAs into compliant ones. Against this background and in light of the geopolitical developments in the Ukraine the Commission proposed to repeal and to replace the 2012 Decision with a novel decision (the 2016 Proposal) in February 2016. Most importantly, the 2016 Proposal is designed to rectify the alleged shortcomings of the 2012 Decision by introducing a mechanism that authorises the Commission to assess the compliance of IGAs with EU law before (ex ante) they are concluded by Member States and third countries.