{"id":7127,"date":"2023-08-10T09:25:04","date_gmt":"2023-08-10T06:25:04","guid":{"rendered":"https:\/\/sites.uef.fi\/kmru\/?p=7127"},"modified":"2023-10-10T10:00:34","modified_gmt":"2023-10-10T07:00:34","slug":"what-is-energy-solidarity-a-view-from-the-eu-and-the-energy-crisis","status":"publish","type":"post","link":"https:\/\/sites.uef.fi\/cceel\/what-is-energy-solidarity-a-view-from-the-eu-and-the-energy-crisis\/","title":{"rendered":"What is energy solidarity? A view from the EU and the energy crisis"},"content":{"rendered":"\n

By Leonie Reins<\/a><\/strong>, Professor of Public Law and Sustainability, Rotterdam Erasmus School of Law<\/a> and Kaisa Huhta<\/strong>, Associate Professor of European Law, especially Energy Law, UEF Law School<\/a>. This\u00a0Blog\u00a0has also been published as a\u00a0Blog\u00a0on the\u00a0GreenDeal-NET website<\/em><\/a>.<\/em><\/p>\n\n\n\n

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The recent two years have been tumultuous for the European energy sector. The Russian invasion of Ukraine in early 2022 led to dramatic spikes in energy prices, undermining Europe\u2019s energy security and threatening its economy. The EU responded by adopting several legal instruments<\/a> in quick succession. Those instruments rely heavily on the idea of solidarity. Interestingly, just a year before the crisis, the Court of Justice of the European Union (CJEU) decided the case of OPAL<\/em><\/a>, where it held that energy solidarity is a legally binding principle that should inform the decisions of the EU institutions and Member States.<\/p>\n\n\n\n

This post is based on a recent article<\/a> published in International and Comparative Law Quarterly that explores energy solidarity in EU law. It first describes the status of energy solidarity in EU constitutional law and then explores the legal instruments that have been adopted in the aftermath of the Russian invasion of Ukraine and the role and meaning of solidarity within these legal instruments.<\/p>\n\n\n\n

Energy solidarity in EU constitutional law<\/h2>\n\n\n\n

The EU treaties make two references to solidarity in an energy-specific context. Articles 122 and 194 of the Treaty on the Functioning of the European Union (TFEU) both allow the EU to adopt legally binding for legislation in the energy sector. Article 122 empowers the Council to decide on legislative measures that are \u2018appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy\u2019. These measures must reflect the \u2018spirit of solidarity between Member States\u2019. Before 2022, Article 122 had served as the legal basis for only two directives on minimum oil stocks in 2006 and 2009 and for one directive on the security of the gas supply in 2004.[i]<\/a> All three instruments refer to solidarity but do not define it.<\/p>\n\n\n\n

The scope of Article 122 is general. However, in the context of energy, it is lex specialis<\/em> that only applies in supply shocks and has therefore been the key legal basis for adopting legislation in the energy crisis. In contrast, Article 194 is the general legal basis for all measures on energy policy. It is intended to guarantee the smooth functioning of the energy market and the security of the EU energy supply, to promote energy efficiency and innovation, and to enhance the interconnection of energy networks. These objectives are pursued \u2018in a spirit of solidarity between Member States\u2019. Article 194 was introduced by the Treaty of Lisbon in 2009. Before the first OPAL<\/em> judgment<\/a> in 2019, the legal relevance of solidarity under Article 194 TFEU was seriously questioned. For instance, it was argued that it would have \u2018limited judicial impact\u2019[ii]<\/a> and that it lacked \u2018a concrete definition\u2019.[iii]<\/a> After the CJEU affirmed the General Court\u2019s findings in OPAL<\/em>, it became clear that solidarity was central to EU energy policy, yet its legal meaning still suffered from definitional ambiguity. The adoption of the emergency instruments concretizes the meaning of solidarity in an energy policy context.<\/p>\n\n\n\n

Solidarity in the EU\u2019s response to the energy supply shock<\/h2>\n\n\n\n

The dramatically increased energy prices have raised well-founded concerns about energy security and resilience in Europe. As a response, the EU has adopted a political strategy (the REPowerEU Communication<\/a> and the REPowerEU Plan<\/a>) and several specific legal instruments to minimize the adverse effects of the Russian invasion of Ukraine on the energy sector and the economy.<\/p>\n\n\n\n

So far, five energy-specific legislative measures have emerged from the EU\u2019s political strategy:<\/p>\n\n\n\n