European Energy Law Report X

The European Energy Law Report IX presents an overview of the most important legal developments in the field of EU and national energy and climate change law as discussed at the 25th European Energy Law Seminar in 2021. Part one presents an analysis of EU case law on the second energy package as well as a judicial interpretation of the legal limits on government intervention in energy pricing in liberalized markets. Part two focuses on transparency and design challenges in the energy and carbon markets. It examines the new EU Regulation on Wholesale Energy Market Integrity and Transparency (REMIT) and the impact it has on the upstream gas market. Thereafter it discusses the options for including end-users in carbon emissions trading schemes. The third part concentrates on energy infrastructure development in the EU. First, it discusses obstacles to infrastructure development and the European Commission's proposal to overcome them. Then, it considers potential legal difficulties and solutions with the construction of offshore electricity grids. The final part deals with energy security. One chapter reviews the global expansion of unconventional gas exploitation, and identifies the challenges for further growth of this sector. The final chapter examines both the proposal by Russia for a new energy convention on supply security, and how it relates to the Energy Charter Treaty. With contributions by Halvor Aurmo, Sylvia Elisabeth Beyer, Anatole Boute, Graham Coop, Anne-Sophie Corbeau, Jeppe Dano, Thomas Deruytter, Berend Jan Drijber, Martha Roggenkamp, Suryapratim Roy, Sergey Seliverstov, Frederik Vandendriessche, Odd-Harald Wasenden, Edwin Woerdman and Olivia Woolley."

Foreword List of Abbreviations List of Authors and Editors Introduction (Martha Roggenkamp and Henrik Bjornebye) Part I. EU Energy Law - Case Law and Infrastructure Developments Chapter I: EU Case Law Applying to the Energy Sector and the Protection of Consumers, Environment and Investments: A Review (Berend Jan Drijber) 1. Introduction 2. Consumer Protection 2.1. RW E Vertrieb/Verbraucherzentrale Nordrhein-Westfalen e.V. 2.2. Egbringhoff 3. Environmental Protection 3.1. Air Transport Association of America a.o./Secretary of State for Energy and Climate Change 3.2. Iberdrola a.o./Administracion des Estado 3.3. Poland/Commission 4. Investment Protection 4.1. Budapesti Eromu/Commission 4.2. Other Decisions on the Hungarian Electricity Market 5. Conclusion Chapter II EU Law and the Financing of New Energy Infrastructure - EU and National Funding and the Balance Between the Level Playing Field and Energy Goals (Hans Vedder) 1. Introduction 2. Infrastructure Construction and the Internal Market 2.1. Introduction 2.2. Infrastructure Construction as an Economic Activity 3. Different Forms of Public Intervention for Energy Infrastructure Construction 3.1. Member State Funding of Energy Infrastructure 3.1.1. Public Funds 3.1.2. Selective Advantage 3.1.3. Effect on Competition and Trade 3.1.4. Compatibility with the Internal Market 3.2. EU Funding of Energy Infrastructure 4. Conclusions: A Level Playing Field? Chapter III: Unbundling in the EU Energy Sector - The Commission's Practice in Assessing the Independence of Transmission System Operators for Electricity and Gas (Nicolaas Bel and Ruben Vermeeren) 1. Introduction 2. Unbundling and Certification of Transmission System Operators 2.1. Three Unbundling Models 2.2. Derogations and Exemptions 2.3. Third Country Clause 2.4. The Certification Procedure 3. The Commission's Practice in the Certification Procedure 3.1. The Ownership Unbundling Model 3.1.1. Introduction 3.1.2. The Case of Financial Investors 3.1.3. Separation within the State 3.2. The Independent Transmission Operator (ITO ) 3.2.1. Introduction 3.2.2. Adequate Resources of the ITO 3.2.3. Outsourcing of (Essential) Services to the VIU 3.2.4. Separation of Premises and IT Systems 3.2.5. Separation of Auditors 3.2.6. Powers and Independence of the Management Board 3.2.7. Powers and Independence of the Supervisory Body 3.2.8. Independence of Staff and Compliance Officer 3.2.9. Corporate Identity and Branding 3.3. The Independent System Operator (ISO) 4. Final Remarks Chapter IV: The Grid Connection Code as an EU Internal Market Measure (Henrik Bjornebye) 1. Introduction 2. The Network Code Process 3. The Legal Basis for the Adoption of the Grid Connection Code 3.1. Overview 3.2. Article 114 TFEU 3.3. The Electricity Regulation 3.4. The Framework Guidelines 3.5. The Draft RfG Code 4. Article 194 TFEU as an Alternative Legal Basis 5. Conclusion Part II. Internal Gas Market Developments - Security and Safety Chapter V: Harmonizing Gas Quality: Obstacles and Challenges in an Internal Market (Daisy G. Tempelman) 1. Introduction 2. Gas Quality 3. Internal Gas Market 3.1. Challenges 3.2. European Gas Markets in the Pre-Liberalization Era 3.3. Towards an Internal Gas Market 3.4. G as Trade and Gas Quality 3.5. Free Movement of Goods 3.5.1. The Treaty 3.5.2. Quantitative Restrictions and Measures of Equivalent Effect 3.5.3. Can Gas Quality Standards Be Objectively Justified? 3.5.3.1. Justifications for Restricting Imports, Exports and Transit of Gas 3.5.3.2. Do Gas Quality Standards Pass the Proportionality Test? 3.5.3.3. G as Appliances Directive 4. Harmonization of Gas Quality 4.1. The Proposals 4.2. Common Business Practices 4.3. CEN-Mandate 4.4. Network Code on Interoperability and Data Exchange 5. Obstacles and Challenges 6. Conclusion Chapter VI: The EU Legal and Regulatory Framework Applicable to Shale Gas Developments (Cecile Musialski and Laure-Anne Nyssen) 1. Introduction 1.1. Specificities of Shale Gas Extraction 1.2. Shale Gas in the EU 1.3. Purpose and Structure of this Chapter 2. Early Project Siting 2.1. Introduction 2.2. Early Project Siting under the Environmental Impact Assessment Directive 2.2.1. Scope of Application of the Directive 2.2.2. Criteria Subject to Scrutiny under the Directive 2.3. Early Project Siting under the Mining Waste Directive 2.3.1. Scope of Application of the Directive 2.3.2. Siting of Waste Facilities (including Wells) under the Directive 3. Well Design and Construction 3.1. Introduction 3.2. General Requirements under the Mining Waste Directive 4. Hydraulic Fracturine 4.1. Introduction 4.2. Water Protection 4.3. U se of Chemicals 4.4. Waste Water Management 4.5. Emissions Resulting from Hydraulic Fracturing 5. Move to Large Scale Exploitation 5.1. Introduction 5.2. Scope of Application of the Industrial Emissions Directive 5.3. Selected Additional Requirement under the Industrial Emissions Directive 6. End of Activities 7. Conclusions Chapter VII: Offshore Safety: The European Commission's Legislative Initiatives (Greg Gordon) 1. Introduction 2. The EU's Initial Response to Deepwater Horizon 2.1. Call for a Moratorium on Deep Water Drilling 2.2. Commission Communication: Call for a Restraint and the Formation of the EU Offshore Oil and Gas Authorities Group 2.3. Commission Communication: Concerns over Regulatory Orientation 2.4. Goal-setting as a Pre-existing Feature of EU Safety Law 2.5. Public Consultation 3. The Proposal for a Regulation 3.1. Discussion at the Berlin Fossil Fuels Forum 3.2. The Proposal's Underlying Rationale 3.3. Criticisms of the Original Proposal 4. The Move to a Directive 4.1. The EU's Acceptance of the Need for a Change of Legislative Form 4.2. The Process of Amendment 4.3. The Directive's Key Provisions in Outline 4.3.1. Licensing and Permissioning 4.3.2. Safety and Environmental Protection 4.3.3. The Competent Authority 4.3.4. Transboundary Effects 4.3.5. Financial Liability for the Prevention and Remediation of Environmental Damage 4.3.5.1. Background: The Limitations of the Environmental Liability Directive in its Original Form 4.3.5.2. The ELD Regime Following Amendment by the Offshore Safety Directive 5. Commentary and Conclusions Part III. Greening EU Energy Markets - Promoting and Trading Renewables Chapter VIII: Electricity Market Reform in Great Britain - A European Perspective (Silke Goldberg and Xanthe Woodhead) 1. Introduction 1.1. Overview 1.2. Aims of this Chapter 2. Carbon Price Support 2.1. Introduction 2.2. Challenges Relating to Carbon Price Support 2.3. Carbon Price Support Proposal 2.4. Responses to the Legislation 2.5. Key Issues 3. Emissions Performance Standard 3.1. Introduction 3.2. Outline of Proposal 3.3. Grandfathering 3.4. Exemptions 3.5. Governance 3.6. U K-wide Legislation 3.7. Key Issues 4. Feed-in Tariffs and Contracts for Difference 4.1. Introduction 4.2. Contracts for Difference 4.3. Next Steps 5. Capacity Mechanism 5.1. Overview 5.2. Capacity Mechanism Models 5.3. Timing 6. Electricity Market Reform in a European Context 6.1. Introduction 6.2. Carbon Floor Price 6.3. Capacity Mechanisms 6.4. State Aid Questions 6.5. Emission Limits 7. Conclusion Chapter IX: The Norwegian-Swedish Electricity Certificates Market (Olav Boge) 1. Introduction 2. The Renewables Directive 3. How Does the Electricity Certificates System Work? 3.1. Supply and Demand for Electricity Certificates 3.2. Trade in Electricity Certificates 4. The Agreement between Norway and Sweden 4.1. Goal of the Agreement 4.2. Eligible Production 4.3. The Quota Obligation 4.4. Other Provisions 5. Transposition into Norwegian Legislation 5.1. Introduction 5.2. Provisions Concerning Supply and Demand for Electricity Certificates 5.3. Provisions Concerning Trade in Electricity Certificates and Other Issues 6. Concluding Remarks Chapter X: Greening the Electricity Sector - Developing Markets for Trading Biomass (Lolita Eremeichvili) 1. Introduction 2. Biomass for Renewable Energy Generation 2.1. What is Biomass? 2.2. Biomass' Characteristics and Quality Specifications 2.3. Sustainability Criteria for Biomass 2.3.1. What is Sustainability? 2.3.2. Sustainability in the Context of Biomass 2.4. EU Policy on the Sustainability of Biomass 2.4.1. Sustainability Criteria for Bioliquids 2.4.2. Sustainability Criteria for Solid and Gaseous Biomass 2.5. Policies of the EU Member States on the Sustainability of Biomass 2.5.1. The Netherlands 2.5.2. Belgium 2.5.3. The United Kingdom 3. The Verification of Sustainable Biomass: Certification Systems and Standards 3.1. Introduction 3.2. The Certification Systems 3.2.1 Introduction 3.2.2. Voluntary Certification Systems 3.2.3. Mandatory Certification Systems 3.3. The Standards 3.3.1 Introduction 3.3.2. The European Committee for Standardization (CEN) and the International Standardization Organization (ISO) 3.3.2.1. European Committee for Standardization (CEN) 3.3.2.2. International Standardization Organization (ISO) 3.3.2.3. CEN on the Sustainability and Quality Specifications of Biomass 3.3.2.4. ISO on the Sustainability and Quality Specifications of Biomass 3.3.3. The Certification of Compliance 4. Trade in Biomass 4.1. The Biomass Market for Energy Generation 4.2. Trading Instruments 4.2.1. Introduction 4.2.2. Bilateral Trade 4.2.3. Standard Agreements in Bilateral Trade 4.2.3.1. GA FTA 201, 202, 203 4.2.3.2. SCoTA 4.2.3.3. CO2Sense 4.2.3.4 Individual Biomass Contract (IBC) 4.2.4. Trade on an Exchange 5. Conclusion