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Developments in energy markets are reflected, sometimes only after a while, in the cases that are submitted to the European Union courts in Luxembourg. Provisions of the Treaty on the Functioning of the European Union (TFEU), such as the rules governing State aid or environmental protection, may have to be interpreted in light of new policy objectives. Furthermore, the validity of new EU legislative measures (regulations or directives) may be challenged, e.g. on the ground that a proper legal basis in the TFEU is lacking. This is one of the reasons why many disputes brought before the European Union courts have an institutional dimension, raising questions about the division of competences between the European Union and its Member States, about the balance of power between EU institutions (Parliament, Council, and Commission), or, more specifically, about the dividing line between the powers of the legislator and those of the energy regulator or between the powers of the European regulator and those of the national regulator in each Member State.
This chapter is organised as follows. It begins with the topic of energy solidarity (§2), followed by a discussion of several rulings relating to the internal market (§3). Subsequently, in §4, I will focus on appeals against decisions by the Agency for the Cooperation of Energy Regulators (ACER). Next, it addresses a few cases concerning EU competition law (§5) and the EU rules concerning State aid (§6). In §7, the focus will be on investment arbitration under the Energy Charter Treaty (ECT).
Adopted in May 2023, the European Union (EU) Carbon Border Adjustment Mechanism (CBAM) is representative of a paradigmatic shift in European climate policy, entailing use of unilateral measures to address the intersection of international trade and climate change. Following decades of theoretical discussion of border carbon adjustments (BCAs) as a policy to level the economic playing field in a world of uneven climate action, the CBAM imposes carbon costs on certain categories of imported goods equivalent to those faced by domestic producers under the EU Emissions Trading System (EU ETS). It is thus primarily aimed at preventing carbon leakage – where economic activity and the associated emissions shift to countries with less stringent climate policies – while trying to maintain the competitiveness of European industry.
Despite its conceptual appeal and compelling rationale, the evolution of the CBAM from design to implementation has been characterised by political, legal, and economic challenges. Its trajectory to date underscores the EU commitment to ambitious climate action amidst geopolitical tensions and a fragmented, highly competitive global economy, influenced by factors such as the persistent asymmetry of domestic climate efforts under the Paris Agreement, the unsteady participation of the United States in international climate cooperation, and the recent escalation on global trade conflicts. This chapter traces the legislative history of the CBAM (§2), offers a legal assessment of its adopted design (§3), and identifies a number of implementation challenges (§4), concluding with brief takeaways on an instrument of EU climate policy that has spurred international debate like few others (§5).
On 16 March 2023, the European Commission (the Commission) adopted the Critical Raw Materials Act (CRMA), which following the ordinary legislative procedure entered into force on 23 May 2024 with the European Parliament and Council reaching a provisional agreement after only a few months of negotiations. While the EU recognises that access to critical raw materials (CRMs) is essential to both the clean energy transition, as well as Europe's open strategic autonomy, and it has set ambitious goals in this respect, many legal and policy questions remain. For example, what prompted the EU to adopt this Regulation and what is the main objective of the CRMA? What are the opportunities, as well as the challenges of the CRMA? What problems can the CRMA contribute to solving, and which issues will remain? The aim of this chapter is threefold: to provide the geopolitical dynamics, context and existing obstacles that led to the adoption of the CRMA in the first place; to present the Act's core features; and, finally, to address some challenges of the CRMA both within the EU legal orders, as well as in its interaction with international trade law, including broader EU trade policy in the critical raw materials sector. Section 2 will first cover the context of reassessing the strategic dependencies that Europe has developed over the past decades. Section 3 will present the core features of the Act. Section 4 will then critically reflect on the opportunities, as well as the challenges of the Act, also considering potential tension with core World Trade Organization (WTO) rules. The conclusion will recap our main points.
The third Energy Package entered into force in 2009 and aims at further liberalising the EU electricity and gas markets. In addition, it obliges ENTSO-E, ENTSOG, and ACER to develop network codes and guidelines, meant to harmonize the more technical aspects of the European internal energy market. To ensure fairness to various Member States, for instance with regard to different maturity of energy markets, regional specificities may be taken into account.
At the same time, the key objective of the Energy Community (EnC) Treaty is to extend the EU internal energy market rules and principles6 to countries in Southeast Europe, the Black Sea region and beyond, on the basis of a univocal, legally binding framework. The harmonised legal framework on both sides of the border – in Member States of the European Union (EU) and in Contracting Parties to the EnC – is the pre-requisite for energy market integration, and for ensuring a level playing field for market participants.
The extension of the ‘acquis communautaire’ on energy (hereafter energy acquis) to the EnC Contracting Parties presumes the transposition of the European network codes and guidelines (NC & GLs) for gas and electricity in the national legal framework of these countries. Electricity NC & GLs pertaining to markets, adapted for use in the jurisdictions of the Contracting Parties, were adopted by the Ministerial Council of the Energy Community on 15 December 2022,7 and transposition in the Contracting Parties is currently ongoing. While this decision was adopted by EnC, this Chapter will solely focus on the implementation of the electricity NC & GLs.
The European Union has established very ambitious climate goals. The ultimate aim is to be carbon neutral and energy independent in 2050. In order to achieve this goal, all Member States have been required to submit to the European Commission their national energy and climate plans (NECP) and once approved, Member States need to meet the goals they have set themselves. When drafting these NECPs, Member States will make use of the resources and instruments that are available to them. Whereas hydropower will be an obvious choice in mountainous areas, this is obviously not the case in most countries bordering the North Sea. These countries will make use of other renewable sources like solar and wind. As wind speeds are higher in the North Sea and public opposition offshore is mostly absent, North Sea states are focussing on developing offshore wind and other renewable energy sources. However, production and transport of renewable energy sources at sea is a relevant new development. Whereas a legal framework governing oil and gas exploration and production onshore as well as offshore has been in place since the 1970s, such framework is relatively new with regard to production of renewable electricity offshore. Moreover, each coastal state has been drafting such framework individually in the absence of a harmonising EU law. Consequently, each coastal state has drafted its own permitting regime for the development of offshore wind energy and park-to-shore cables, which means that electricity has been transported to shore via ‘national’ electricity cables with either an offshore or onshore connection to the electricity transmission system.
The editors are very pleased to present the European Energy Law Report XV. The European Energy Law Report is an initiative taken by the organisers of the European Energy Law Seminar (EELS) which has taken place on a regular basis in the Netherlands since 1989. The aim of this seminar is to present an overview of the most important legal developments in the field of international, EU and national energy and climate law. Whereas the first seminars concentrated on the developments at (then) European Community level, which were the results of the establishment of an Internal Energy Market, the focus has gradually expanded to developments affecting the energy sector such as climate change and security of supply. Likewise the focus extended to developments at the national level following the implementation of the EU directives on the internal energy market, the promotion of renewable energy sources, the mitigation of climate change and the reinforcement of security of supply. This approach can also be found in the present volume.
Similar to the previous European Energy Law Reports, this book includes chapters based on papers presented at the preceding EELS, which normally takes place on an annual basis. Due to the Covid-19 pandemic and the necessary adjustments to the annual organisation of EELS, this book gathers – in four thematic parts – the main central topics discussed at the EELS of 2022 and 2023. First, it presents in Part I some legislative and judicial developments regarding the Internal Energy Market and climate change mitigation.
614. BELGIUM – Contrary to the more general remarks in the previous Chapter, the recommendations made in this Chapter focus on Belgian law (see also no. 540). Some points might be relevant for the UK or third countries, but that will not be the case for all of the recommendations. Many of them depend upon the specificities of the Belgian legal system and are therefore difficult to generalise for other jurisdictions. The recommendations also build upon the Belgian legal system as it is at this moment in time. For the reasons mentioned above (see no. 109), abstraction will be made of possible future reforms of the Belgian system, including the new Criminal Code.
615. CRIMINAL LAW – As noted above (see no. 543), we do not recommend introducing administrative measures such as TPIMs in Belgium. Therefore, the recommendations will only cover criminal law. There is no need to introduce administrative measures in the Belgian system as Belgian criminal law is sufficiently equipped to deal with the issue and administrative measures tend to be difficult to reconcile with Article 5 ECHR.
616. THE NEED FOR REFORM – It is clear that the current Belgian criminal law framework to counter terrorism lacks coherence. It has been added to without first analysing whether the expansion of the offences was needed, and how new offences would fit into the framework.
25. Goal of Part I – This Part of the book aims to establish the evaluative and normative framework. As was explained in the introduction (see nos 12–13), the focus of this book is on measures that directly impact the physical liberty of people. Within the framework of the ECHR, this means that Article 5 ECHR, which protects the right to liberty and security, is of paramount importance. However, this is not the only relevant Article. Article 2 of the Fourth Protocol to the ECHR protects the freedom of movement and also directly relates to people's physical liberty.
26. Article 5 ECHR – Article 5 of the ECHR reads:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person aft er conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fl eeing aft er having done so;
286. PARLIAMENTARY RESEARCH COMMITTEE NUMBERS – In one of its reports the Parliamentary research committee on the Brussels terrorist attacks lists the following numbers concerning pre-trial detention:
SECTION II. INITIAL DEPRIVATION OF LIBERTY
287. DEPRIVATION OF LIBERTY BEFORE CONVICTION – The aforementioned criminal offences can lead to a deprivation of liberty in the form of a conviction to a prison sentence or electronic monitoring. However, within the criminal justice system, deprivations of liberty before a final conviction are possible as well. Suspects can be taken into pre-trial detention, which can also take the form of imprisonment or electronic monitoring.1441 Electronic monitoring in this context means the suspect has to stay at a specific address the whole time, unless they are explicitly granted the right to leave for certain reasons, and this house arrest is enforced with an electronic tag. Furthermore, a provisional release from pre-trial detention is possible too, meaning suspects are released but have to observe conditions. Posting a bail sum can be one of the conditions imposed. It is up to the judge to decide which conditions they deem appropriate. However, the conditions need to relate to the reasons for absolute necessity for the public security (see no. 294). Furthermore, the preparatory works state that the conditions cannot amount to custodial measures, such as 24 hour house arrest.
541. BELGIAN VS. UK CRIMINAL LAW – In the introductions to Parts II and III, some general observations are made and basic rules explained with regard to Belgian and UK law. Comparing these two introductions, many small differences immediately catch the eye. However, none of these differences are so marked as to make comparison impossible. Even so, a few points have to be kept in mind. In terms of criminal law, both jurisdictions in principle require actus reus and mens rea for an offence to exist, but the UK also has strict liability offences and a system of defences, which depend on the specific offence. This system does not exist in Belgium and sometimes makes the construction of the elements of the offence more complicated in the UK, as the defence can be a form of mens rea for which the burden of proof is shift ed. Regarding sentencing, Belgian criminal law provides lower maximum sentences for inchoate offences than for the actual offence, which is not the case in the UK. At first glance, UK criminal law allows judges more leeway when sentencing in general, because it only provides for (oft en relatively high) maximum sentences and no minima. However, this first reading is deceptive. Belgian judges are authorised to lower the sentences well below the minimum sentence when applying attenuating circumstances, which is something that very frequently happens.
252. TRAVELING FOR TERRORIST PURPOSES – When the issue of foreign terrorist fighters took the foreground, the UN Security Council stated in a resolution ‘that all States shall ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute and to penalize in a manner duly refl ecting the seriousness of the offence: (a)their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training.’ Aft er this resolution, the Council of Europe included a similar provision in an additional protocol to the Convention on the Prevention of Terrorism. The EU also included a comparable provision in its Directive on Combating Terrorism. However, on top of outbound travel, the Directive also covers inbound travel. With regard to inbound travel the Member States have two options: to criminalise inbound travel as the mirror image of outbound travel or to criminalise preparatory acts undertaken by a person entering the Member State with the intention to commit or contribute to the commission of terrorism sensu stricto.
101. OVERVIEW OF PART II – As explained in the methodology (see no. 18), in this Part we discuss the Belgian framework of preventive restrictions of physical liberty in a counter-terrorism context. Since Belgium has no administrative measures depriving or limiting the liberty of people to prevent terrorism, this Part is solely focussed on criminal law. The rest of this introduction briefl y outlines the Belgian criminal justice system and the country's context of terrorism. Chapters I through XII answer research question 2.1, while Chapter XIII answers research question 2.2. We will commence with a Chapter which focusses on the different possibilities for limitations to the right to liberty in Belgium. This Chapter is followed by nine other ones which each discuss one Article of the Belgian Criminal Code containing terrorist offences. Chapter II covers terrorism sensu stricto and chapters III to X cover the offences of terrorism sensu lato (for the difference, see no. 7). In Chapter III the offences pertaining to terrorist groups are discussed. Some authors put these offences in the same category as the offences in Article 137 CC (terrorism sensu stricto). However, the offences pertaining to terrorist groups are also based on a preventive rational. It is not required that the group has already committed terrorism sensu stricto.
520. ANALYSING THE EXISTING LEGISLATION – Throughout the first two Chapters of this Part, the UK legislation has been described in detail. The UK uses both criminal justice and administrative law to try to counter terrorism. Within the criminal justice system, we see terrorism offences sensu stricto as well as a large amount of terrorism offences sensu lato. In addition to this description, criticism sections highlighted the most important criticism on the legal framework. As was the case for the Belgian Part (see no. 310–327), the final Chapter of this Part will serve as a summary of the most important of these issues. This analysis is, however, relatively short as it just seeks to touch upon the main points of the UK legislation and the main criticisms. A thorough and more detailed analysis will be included in the next Part of this book, which compares the Belgian and UK legal frameworks and aims to answer the main research question of this book.
SECTION II. THE RIGHT TO LIBERTY IN THE UK
521. DOMESTIC INTERPRETATION OF ARTICLE 5 ECHR – In their interpretation of Article 5 ECHR, the UK domestic courts largely follow the case law of the ECtHR. However, several commentators argue that a domestic recalibration of Article 5 took place, narrowing its scope.This became clear in the control order case law, as UK courts put more focus on the paradigm element of deprivations of liberty.