FULLTEXT01

Marine Sigot
Masters Programme in Environmental Law

Stockholm University
Master Thesis –
Energy Security and the EU: between independency priorities,
strategic vulnerabilities and sustainability needs
Supervised by:
Prof. Jonas Ebbesson
June, 2013.
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TABLE OF CONTENTS:
1-INTRODUCTION
1.1 The growing concern for energy security: emerging issues and trends
1.2 The relationship between energy security, environmental protection and sustainability
1.3 The multifaceted concept of energy security
1.4 The role of law
2- RESEARCH QUESTIONS, METHOLOGY, SCOPE

2.1 Objective and Research Questions
2.2 The present study: Methodology
2.3 Scope and Delimitations
EXPLANATORY PRE-CHAPTER – COMMON EU ENERGY POLICY:

 Enforcing EU energy policy: a priority of the Lisbon Treaty
 Collective Energy Policy: providing energy security through an integrated energy market
 Treaty rules for the good functioning of the EU energy market
3- HARMONIZING EU LEGISLATION: GUARDING SUPPLY THROUGH INTERNAL AND

EXTERNAL ENERGY POLICIES:
3.1 Securing an internal integrated market: the third energy market package
3.1.1 EU gas and electricity market policies: safeguarding long-term integration
3.1.2 Short-term security of supply initiatives: building on energy solidarity in the EU
3.2 Achieving a sustainable, competitive and secure external energy policy
3.2.1 External energy policy and cooperation at a regional level
3.2.2 Bilateral agreements: potential impediment to secure external energy policy?
3.3 Security of supply in the light of EU market principles and treaty rules
4- STRATEGIES FOR COMPETITIVE SUSTAINABLE AND SECURE ENERGY: THE EU 2020

EFFICIENCY INITIATIVE
 Foreword – Abiding efficient uses of energy: the relevance of sustainable development
4.1 Energy efficiency and infrastructure
4.2 Energy efficiency towards low-carbon technologies
5- IMPROVING ENERGY OF SUPPLY THROUGH DIVERSIFICATION OF RESOURCES:

5.1 Promoting indigenous energy supplies: the EU 2020 Energy Goals insufficient
5.1.1 The paradox of coal production: legal prospects assisted by R&D
5.1.2 Regulatory energy security implications of nuclear energy: safety and cost-effective low-
carbon technologies
5.1.3 An orientation towards renewables sources up to 2020: the RES Directive
5.2 Going beyond the 2020 targets for renewable energy
5.2.1 Possible scenarios and impact assessment
5.2.2 Is further cooperation in EU schemes needed?
5.2.3 Renewables are not all the same: the case of biofuels
6- CONCLUSION
ABBREVIATIONS
LIST OF REFERENCES

2
1-INTRODUCTION
1.1 The growing concern for energy security: emerging issues and trends
From the two main treaties forming the foundation of the EU1, energy was only observed
through the angle of competition law, without creating a title dedicated to this theme. 2 During the
period 1950-1970, the EU countries saw their needs in petroleum highly increase while the needs for
coal were slowing down. EU reliance on energy soon made clear the importance of energy security.
Firstly identified with military necessities, it became an international as well as a national concern after
the first petroleum crisis in 1973, when the OPEC countries decided to quadruple the price of oil. The
EU really became aware of the necessity of a common energy policy. 3
Since the 1990s, common action has majorly been placed upon the objective of market
liberalisation. In 2000 though, the European Commission launched the ‘Green Paper’ on Energy
Security, which sets up a holistic strategy to strengthen the security of supply to the next 20 or 30 years,
while stressing EU’s structural weaknesses, and draws attention on environmental shortcomings, in
particular as regards EU’s commitments in the Kyoto Protocol.4 It also draws priorities in order to
elaborate a European energy policy to regulate demand and supply, diversify import sources and
develop an EU integrated market while putting an emphasis on the dialogue with producing countries.5
With the Lisbon Treaty6, energy policy in Europe obtains an autonomous legal stand, policies in
relation to energy being added to article 194 of the TFEU. This means that while the EU used to
intervene in this domain only on the basis of the flexibility clause of article 308 TFEU, energy is from
now part of shared competences.7
According to a 2008 report of the EU Council, a decrease of European production means that by
2030 75% of oil and gas will have to be imported. Thus the permanent needs in energy have direct
effects on all EU economic sectors. If no measure is taken to improve EU competitiveness of energy by
2020-2030, the dependence on energy imports will grow from 50% to 70%.8
Hence the EU has made of energy security of supply one of its strategic priorities in order to
maintain a certain margin of independence and reduce its vulnerabilities. Even though a common energy
policy is now legally in place, the law is still looking for increased visibility and sustainability. Indeed
in 2001, the UN Commission on Sustainable Development concluded: “Current patterns of energy
production, distribution and utilization are unsustainable”. 9 This dynamic energy equilibrium questions
also the resilience of the legal system to conflicts and shocks, and the environmental protection
dimension has been increasingly considered while examining energy security issues.
In addition we observe a shift from the age of petroleum to the age of a more diversified energy
package (natural gas, renewables in particular). Energy security is no longer simply a question of oil
supplies or geopolitics for viable transportation routes. For the last decade, emphasis has been placed in
policymaking for issues such as energy efficiency, deregulation and climate change. 10 In line with this
approach the EU Commission early made several suggestions departing from the 2000 Green Paper,
aiming at several targets: completion of the internal market, access to external supplies, energy
efficiency, dissemination of new technologies, diversification plans and less polluting energy sources. 11

1
Treaty of Paris 1951 CECA; the EURATOM Treaty 1957 CEEA.
2
Energy Security, Managing Risk in a Dynamic Legal and Regulatory Environment (2004) p.3
3
Ibid
4
COM(2000) 769 final European Commission, Green Paper” Towards a European strategy for the security of energy supply,
p.47-49
5
ibid p.69-74
6
Treaty of Lisbon, 2007 available at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML accessed on
05.05.2013
7
Article 308 TFEU flexibility clause; Article 4 TFEU shared competences
8
S407/08 p.5
9
Decision 9/1, para 2, UN Doc E/CN.17/2001/19 (2001).
10
See footnote 2, p.4
11
COM(2000)769 final European Commission, Green Paper” Towards a European strategy for the security of energy supply

3
1.2 The relationship between energy security, environmental protection and sustainability
The relationship between energy security and environmental protection first lies in the balance
of the diverse energy market competitors and sustainable energy policy, meaning if energy security
considerations are permitted to prevail over environmental ones. 12 According to the IEA, an
improvement in energy security is achieved by reducing the vulnerability of economic activity in a
country to potential disruptions of energy supply. Energy security can be improved by replacing more
vulnerable supplies with more stable sources.13
Second environmental protection through the prism of energy security has widely been oriented
under pollution and climate change protection. Climate change protection risks depend upon many
factors that are only now becoming well understood, showing that the relationship between
environmental protection and energy security is dynamic. The 2007 Intergovernmental Panel on Climate
Change Assessment report is now more certain about the role that fossil fuels play in global climate
change than previously, but there remains considerable uncertainty about the relative importance of both
anthropomorphic and natural sources in total greenhouse gas (GHG) concentration levels. Similarly, the
precise relationship between GHG concentration and more detailed climatic change impacts is being
actively researched.14 In this regard, the law is necessarily a step behind scientific research regarding
environmental protection.
Third in the long run, sustainable development has become the driving force for the law to
reconcile economic matters with environmental protection. As Spring and Noe observed, while
economic considerations tend to drive energy policy, it is important not to forget the well-accepted legal
principles of sustainable development that take into account elements of governance, and value
environmental, social and cultural factors besides economic concerns.15
Sustainable development’s legal definition was articulated in 1987 by the Brundtland
Commission, and apprehends two notions that encompasses both needs and limitations: “Development
that meets the needs of the present without compromising the ability of future generations to meet their
own needs”.16 Furthermore, the emerging notion of ‘sustainable energy development’ 17 shows how to
grasp the opportunity to combine sustainable development with lasting energy security, by examining
the latter in a broader context of human and environmental rights and needs.
Looking at the needs, the human-centred notion of future generations can be directly related to
the right of people to an adequate standard of living, including a healthy environment, economic and
social development. Several instruments have expressed it explicitly, such as the Universal Declaration
of Human Rights, 18 the 1972 Stockholm Declaration” 19 or the UN Declaration on the Right to
Development. 20 In this sense, energy can be understood as an essential need for the realization of a
fundamental standard of living. In this respect the 2002 World Summit on Sustainable Development’s
Plan of Implementation specifically calls on states to improve access to reliable and affordable energy
services as one means of achieving the UN Millennium Declaration goal of halving the proportion of the
world’s people in poverty by 2015. 21
Regarding environmental rights, reconciling environment protection and economic development
through the application of sustainable development is not new; already the UN Conference on

12
See footnote 2, p.470
13
IEA(2007), World Energy Outlook 2007
14
IPCC Climate Change 2007: Synthesis Report, Summary for Policymakers
15
See footnote 2 p.431
16
World Commission on Environment and Development; Our Common Future (1987) 43.
17
L.Price and M.D Levine, ‘Production and Consumption of Energy’ in Stumbling Toward Sustainability (2002) p. 63
18
UDHR, Article 25(1), Dec 10 1948, GA Res 217A, UN GAOR, 3rd sess, Pt I, Resolutions, at 71, UN Doc A/810.
19
Stockholm Declaration, principle 1(1972)
20
UN Declaration on the Right to Development, Article 1(1), Dec 4 1986
21
World Summit on Sustainable Development Plan of Implementation (2002) available at www.johannesburgsummit.org.

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Environment and Development in Rio de Janeiro in 1992, in particular in article 4,22 sought to accord
both aspects.
In practice however, the complementary relation between environmental regulation and energy
security is not always very clear. Indeed environmental law can have chilling effects on energy security.
Lucas R. Alistair 23 observed through the example of Kyoto-related investments, that when the law
discourages companies from investing in coal production or when it discourages nuclear power
construction, the effects are less favourable on energy security. On the other hand, he reminds that
sustainable development’s main purpose is not to halt development, but making sound development
choices that can collaborate in harmony with security policy. This requires once again the recognition of
both sustainable energy needs, but also principles and practices, such as these presented in the
Brundtland Commission.24
Moreover there is a significant degree of international regulation for environmental protection
that has indirect impact on energy security issues. As Pring and Noe noted, the risk that in
environmental matters energy security will prevail over all other considerations find very few cases
where it is given a status by law.25
Firstly substantive treaty obligations, such as the obligation to protect and preserve the
environment, biodiversity or natural/cultural heritage, are generally not subject to treaty derogations for
security purposes except in extreme cases or fundamental change of circumstances.26 For example, the
UNCLOS article 192 27 declares that “States have the obligation to protect and preserve the marine
environment ». At the domestic level, enforcement of international environmental standards, public
participation and international treaty obligations are also directly linked to security issues in energy
matters. 28
Secondly long-term energy security concerns will undoubtedly be shared through national
implementation of 1992 UNFCCC29 and the 1997 Kyoto Protocol. The latter targets focus on the
reduction of GHGs to approximately 1990 levels within the target period 2008-2012.30Although the
1997 Protocol, which contains the specific commitments on Annex I (developed countries) to reduce
GHGs, is not yet into force, a number of states and the EU are taking steps towards implementation
some of which will be explored in this study.
Finally policy discussions can sometimes emphasize that a single technology, such as ethanol or
gasoline conservation, can provide both energy security and environmental protection at the same time.
31
This two-for-one appeal is attractive, but it can distract policy from the pursuit of a combination of
options that could carry out the same effects. For Turton, optimal policy can be achieved by pricing both
energy security and environmental measures to the point where its additional cost is equal to the
marginal benefits achieved in both dimensions.32
1.3 The multifaceted concept of energy security
Energy security is a diffuse concept and its legal definition is still in process. However, Barry
Barton, Catherine Redgwell, Anita Ronne and Donald N.Zillman have contributed to that process of
definition by providing a working definition of energy security as « a condition in which a nation and

22
Article 4 Rio Declaration 1992
23
24
UN document Our Common Future, Chapter 2: Towards Sustainable Development (2002), from A/42/427, 2.I,
http://www.un-documents.net/ocf-02.htm#I accessed on 05.05.2013
25
See footnote 2, p.431-435 and 454-456
26
Ibid
27
UNCLOS (1982) http://www.un.org/Depts/los/convention_agreements/texts/unclos/part12.htm accessed on 05.05.2013
28
See footnote 2, p. 433
29
UNFCCC (1992) available at http://unfccc.int/resource/docs/convkp/conveng.pdf accessed on 05.05.2013
30
Kyoto Protocol (1998) Article 3.1 http://unfccc.int/resource/docs/convkp/kpeng.pdf accessed on 05.05.2013
31
Farrell, Plevin, Turner, Jones, O’Hare, Kammen (2006) “Ethanol Can Contribute to Energy and Environmental Goals,”
p.506- 508.
32
Turton, Hal and Barreto (2006), Long-term Security of Energy Supply and Climate Change, p.2232–2250.

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all, or most, of its citizen and businesses have access to sufficient energy resources at reasonable prices
for the foreseeable future free from serious risks of major disruption of service ». 33 However this
definition excludes energy security from the often-large resident alien populations that inhabit many
nations, developed and developing alike. Moreover this human-focused definition fails at taking into
account the environmental or sustainability perspective or even resilience concerns; indeed access to
resource is different from sustainable use. Hence it seems to be a narrow approach to energy security
expelling long-term and sustainable development conditions.
Still, access to uninterrupted and affordable energy has become essential to the functioning of
modern economies.34However, the uneven distribution of energy supplies among countries has led to
significant vulnerabilities. Opportunities for energy efficiency may exist over wide geographical areas,
for example through the use of renewable energies, in contrast to other energy sources, which are
concentrated in a limited number of countries. 35
Hence if no strict legal definition has been agreed upon, it becomes important to analyse the crucial
characteristics constituting energy security. In this respect, William Martin, Ryukichi Imai and Helga
Steeg, have identified three facets of energy security.36 The first involves limiting vulnerability to
disruption given the rising dependence on imported oil from an unstable Middle East. The second
concerns the provision of adequate supply for rising demand at reasonable prices (energy efficiency)
and the third, related to environmental challenges, needs to operate within the constraints of sustainable
development, however uncertain and long term.
Building on these facets, we can observe that these crucial elements of access, supply, reliability
and sustainability vary at different times and places. Indeed today energy needs balance with the
management of complex infrastructures, a highly increased market competition, a well-developed
energy trade and environmental constraints. They also vary depending on which energy source is
concerned. For example, within the EU, renewables are on the rise with a target of 20% of the share of
energy by 2020 set by the Directive 2009/28/EC on renewable energy.37 The share of renewables was
only of 4% in 1990.38Hence energy security is not a static concept: primarily related to oil, it now
implicates a wide range of problems that imply different national, regional and international regulatory
responses. Indeed the IEA, originally concerned with oil security at its creation in 1974 now deals with
the three Es (energy efficiency, energy security and environmental protection). 39
These examples highlights the complex interactions of the sectorial, temporal and spatial
dimensions of the drafting and interpretation of energy security legislation that need to be taken into
account and which will be examined in this thesis.
1.4 The role of Law
The increased complexity of energy understanding makes the law a more significant factor in
energy security among other means of governance, in particular economic tools. EU energy policy now
focuses on an array of issues directly related to energy security, such as energy supply, integration of the
EU market and economic competitiveness and for the Union as a whole. The energy related provisions
in the Lisbon Treaty have been central to this shift.40 The law has the capacity to arbitrate energy
security in an array of other aspects: EU law can intervene in the trade sphere and in complex market

33
See footnote 2, p.5
34
IEA available at http://www.iea.org/topics/energysecurity official website, accessed on 05.05.2013
35
IEA (2012), Energy Technology Perspective, Available at http://www.iea.org/Textbase/npsum/ETP2012SUM.pdf
36
Trilateral Commission, Maintaining Energy Security in a Global Context, April 1996 available at
http://www.trilateral.org/download/doc/maintaining_energy_security1.pdf accessed on 05.05.2013
37
Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy
from renewable sources http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32009L0028:EN:NOT
38
EU Commission, Key figures (2011) http://ec.europa.eu/energy/observatory/countries/doc/key_figures.pdf accessed on
26.02.13
39
IEA Shared Goals, official website available at http://www.iea.org/aboutus/whatwedo/sharedgoals accessed on 05.05.2013;
See Ministerial Action on EIA Shared Goals, 4 June 1993, IEA/GB(93)41 and Annex I
40
ibid

6
competition arrangements and public duties for social and economic well-being, by facilitating or
restricting imports and exports of energy, especially in relation to the freedom of goods, capital and
services. Moreover by creating mechanisms and procedures, by governing the use and taxation of
energy, the law can for example create incentives to enhance the share of both renewable and non-
renewables. It can also configure cooperation measures in regulatory instruments and lay down precise
short and long term binding targets. On the other hand it can also set up non-binding tools used as
guidelines for areas of focus to be improved. Finally law can allocate responsibilities and follow up with
planning, monitoring and implementation of measures. 41
As explained in the previous section, energy security is multi-faceted and differs between countries
and the sector of energy considered at a given time. Moreover neither are the difficulties exclusively
legal in character, nor, is their solution. Finally it is important to also draw the limits to what the law can
achieve and how much the law can adapt to changes compared to other governance tools.
Redgewell quoted that the IEA’s poor regulatory design could be a cause of energy insecurity.42
Indeed the legal framework of many countries and the EU as a whole could be improved. In the
twentieth century, energy law focused mostly on natural gas regulation and oil, and is now slowly
expanding to indigenous sources. For instance in countries such as Germany, Spain and Norway, the
tension between energy security and the application of competition law in a liberalized energy market is
sensible.43 In this context the law can apprehend formally energy security legal prospects.
From this analysis, we can draw several challenges for energy security law in the EU: first the law
needs to consider new uses of energy and the increasing pace of trade in energy as well as its integration
within sustainable development requirements. Market competition shall invite profit-seeking behaviour
of corporations for further cooperation and integration in the EU internal and external markets,
especially in relation to environmental and sustainability constraints.44 In addition, modern energy
security also includes efficiency concerns, with the management of complex infrastructures; integrating
such networks in relation to fuel supplies, as well as ensuring short-term reliability and the ability to
withstand transitory damage are crucial concerns. In this respect, an overview of legal provisions facing
long-term energy targets, and more particularly in the EU context, of imminent disturbances, will
provide an assessment of the resilience of the EU energy legal infrastructure. Moreover, the law need to
envisage how to accommodate environmental targets with energy diversification needs.
Energy policies are not only determined by market prices, and increasingly respond to changing
perceptions to externalities associated with the energy system.45 In that spirit, this study explores the
parallels between the EU energy security policy at present and the legal gaps to assist future European
energy security goals. The role of law becomes crucial not only to assist long and short–term planning
or the understanding of urgent energy security issues, but optimally, the law should be flexible enough
to adapt to changes (for example regarding energy on grounds of scientific or technological findings)
while maintaining room for goal implementation. Indeed, as Groome quoted, “at a time when the EU is
struggling to develop a coherent strategy to tackle deep financial problems, efforts to enhance closer
unity in the energy security arena and forge a coherent "single voice" approach in the energy sector
when dealing with international partners, have gathered considerable momentum”. 46 As mentioned
earlier, it is also important to separate inspirational legal objectives from what can possibly be achieved
by law, notably in comparison to other tools of governance. To illustrate, long-term disequilibria due to
structural mismatch between supply and demand, are difficult to predict with sufficient accuracy to
assess future prices, whereas investments to respond to potential future shortages or high prices have to
be decided now.47

41
See footnote 2 p.8
42
Ibid p.28 to 34
43
Ibid p.461
44
Commission Green Paper of 8 March 2006: "A European strategy for sustainable, competitive and secure energy"
COM(2006) 105
45
Dominique Finon, From Energy Security to Environmental Protection: Understanding Swings in the Energy Policy
Pendulum, The Berkeley Electronic Press (1994)
46
Dr Frank Groome, Journal of Energy Security; From contradiction to cooperation : A New Legal and Diplomatic
Foundation for Energy Policy in the EU (2012)
47
Security of Energy Supply in Europe, Natural Gas, Nuclear and Hydrogen, (2010) p.296

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2- RESEARCH QUESTIONS, METHOLOGY, SCOPE
2.1 Objective and Research Questions
This study intends to analyse the recent legal development and implementation of international
legal mechanisms for energy security at a regional level, in the light of the EU market, in relation to
energy supply and efficiency, energy diversification and environmental considerations. Focusing on EU
law, this study will review both soft and hard-law instruments.
When referring to energy security, this study apprehends two aspects of energy security: firstly
sustainable and efficient uses of energy, secondly the promotion of legal resilience of the energy system,
understood as the capacity to threshold shocks and conflicts and to maintain a high level of consistency
of behavioural structure in the face of a dynamic environment of external and internal change.48 Legal
scholars have used terms like resilience to describe positive qualities of a legal system.49 Indeed, to the
extent that resilience is a desired quality, it may pose trade-offs with other normative goals of a legal
system. It may be possible to have too much resilience. If, for example, a legal system is highly resilient
to changes, but is producing outcomes that are no longer normatively acceptable, its resilience is a
problem, not a virtue. In such cases, it may require an extreme external disturbance or internally
initiated system reformation to change the highly resilient but undesirable regime. Extending this
reasoning further, it is important to distinguish between resilience of the legal system and resilience of
other natural and social systems the law is aimed at addressing.50 This study will focus on how law
promote resilience of the EU energy system, and the EU energy system as whole – integrity of
networks, reliability of sources, ability to adapt and withstand intentional and unintentional damage –
not simply its elements, must be considered.
Understanding the development of energy security in the EU is necessary because first, studies
that follow up on the overall situation of this region in relation to energy security denounce energy
dependency.
Second, there is a growing need to understand to what extent the law can assist sustainable
development policies, energy uses, long-term supply, and promote resilience to disturbance. On the
legal and institutional development of this region when dealing with energy security matters,
particularly in light of the European Road Map 2020 and 2050 and the Lisbon Treaty, collaboration and
collective measure draw the future of energy diversification and harmonization of policies. The
assessment and feasibility of collective action, including future needs, can only be made if economical,
political and policy changes through an integrated energy market also affect EU infrastructures.
Third, the promotion of new energy resources as well as legal instruments assisting conservation
and recovery are extremely relevant to the field of resilience to vulnerabilities. Furthermore, this study
fulfils an urgent research need in the area of environmental law that will grow in the coming years, as
the energy market drives most of other European economic sectors.
Thus, this thesis will intend to answer the following questions:
• To what extent does the existing legislation make a difference between long-term and short-
term legal energy security targets?
• How has/can the EU legal framework design and promote resilience so the energy system is
best able to withstand disruptions?
• What are the shortcomings, if any, of the law with regard its capacity to regulate the EU energy
market?
• How does the law regulate uses of energy in order to guarantee long-term supply and
efficiency?
• Are the current EU legal instruments satisfactory to regulate, promote and foresee
diversification of energy sources?

48
Ruhl, J.B, General design principles for resilience and adaptative capacity in legal systems – with application to climate
change adaptation, 2011, p.1379 available at http://www.nclawreview.org/documents/89/5/ruhl.pdf accessed on 03.03.2013
49
Joni S. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an
Enigma, 25 Geo. Wash. J. Int’L L. Eco. 71, 104 (1992) (referring to “the flexibility and resilience of the international legal
system”)
50
Footnote 48 p. 1382

8
2.2 The present study: Methodology
Energy security legal issues are intertwined. This thesis gives a possible option for looking at
their interplay in terms of energy policy. The study will analyse EU law using both soft law (quasi-legal
instruments without any legally binding force) and hard-law (binding instruments and laws). Combining
both legal instruments for the analysis is indispensable because soft law instruments can have a major
impact in the development of future hard-law instruments and they serve different purposes.
Soft laws in the form of international codes, principles, protocols and action plans, though
without the binding force of traditional law, are pertinent since they represent various attempts at
regulating practices and behaviours. This has however not annihilated the call for imposition of hard
laws and sanctions. These instruments will be interesting to look at in regard of cross-cutting issues that
will be studied throughout the entire thesis, such as climate change targets, sustainability and resilience,
for example implied in the EU 2020 and 2050 Roadmaps, and which do not always include binding
targets. Moreover, international soft law may impact on the conduct of EU law, for example through the
implementation of action plans such as Agenda 21 related to sustainable development.
Cross-border energy investment, trade, financing are becoming subject to an increasing number
of different forms of "soft-law" international and EU standards, guidelines, action plans and
recommendations, which will help understanding the functioning of the internal energy market as well
as the cooperation mechanisms developed towards external energy supply. For example, the European
Commission has been proactive at presenting communications and reports on the drive of energy policy,
such as the Green Paper on the security of energy supply in 2000 or “towards a secure, sustainable and
competitive European energy network” in 2008.
Soft-law can serve to guide nations on how to implement international and EU laws
domestically. In this respect the European Commission has also formulated regular communications on
the different energy sectorial pieces. These provide not only guidelines for Member States to implement
EU energy targets but also expertise in order to build long-term visibility and trust in the Community.
They also clarify the interrelation of intersected issues such as energy efficiency, diversification of
sources and supply.
Analysing hard-law instruments is also relevant because it serves to understand the obligations
European states have in developing and delegating national laws on energy security at the EU level but
also shows that bilateral agreements are still into force between many EU countries. Hard-law can also
serve as a tool to pursue States to abide to their EU obligations on energy security. Moreover it reflects
the level of commitment Member States are willing to make when dealing with a specific issue. Energy
security related hard laws include directives and regulations, such as the 2009 Renewable Directive or
the Regulation (EC) 663/2009 of the European Energy Programme for Recovery, but also jurisprudence
of EU case law.
Instead of departing from a security of supply viewpoint, which constitutes the original concern
of the Green Paper, this paper will firstly focus in an explanatory pre-chapter, on the enforcement of
Energy Law in Europe and the harmonization of EU policy through the construction of an
interconnected and integrated EU energy market. The third package of Directives related to the gas and
electricity markets, will contribute to such progress, as well as relevant ECJ cases. Since this thesis
takes a regional perspective of energy security, this approach will provide a better understanding of the
legal infrastructure and energy policy challenges, and will give a stable groundwork for the analysis of
further related issues. In this first part attention be given to the role of the Lisbon Treaty in energy and
environmental policy enforcement.
Recalling EU treaty principles and EU competences through the completion of an
interconnected market will enable the understanding of the first part of this essay, focusing on security
of supply. By examining the question of internal and external supply and the application of legal
policies in this domain, in particular towards oil, electricity and gas, this part will analyse the respective
directives for each of the mentioned sector and their relevance in the EU interconnected market in
relation to energy security. In line with this approach will also be legally assessed short-term energy
crisis management, and future developments and improvements through cooperation mechanisms, as
well as potential impediments to the construction of an integrated market facing EU Treaty and free
movement rules.

9
The question of supply will lead to the study of demand management and energy efficiency,
through the examination of EU infrastructure, technologies and energy saving. An emphasis will be
drawn on the very recent Efficiency Directive.
The latter partly introduces the cause for the need for energy diversification. This chapter will
determine and assess the EU legal options to reach the EU 2020 targets towards the promotion of less-
polluting energies. In this regard an analysis of the potential growth of coal and the feasibility of new
technologies is necessary (for example ‘clean coal’), as well as potential legal prospects for nuclear
energy. In this respect the Euratom Treaty and the CCS directive will be studied. Finally an emphasis on
renewables through the 2009 Renewable Directive as well as potential options for the post 2020 period
will assess the long-term visibility of the law.
To conclude soft and hard law are also complementary for the achievement of short term and
long term European energy security policy. For example hard–law instruments such as treaties may
suggest commitments periods, as seen with the Kyoto Protocol to which the EU is a party. Soft law may
be relevant to follow up with these commitments, such as the Copenhagen accords and more recently
the 2012 United Nations Climate Change Conference in Doha. The law needs also to be capable of
adaptation over time, while maintaining certain goals of implementation. Balancing hard and soft law
instrument may add to this flexibility vs. rule of law approach.
Although it may seem that only hard-law instruments may serve to achieve improvements, or
enhancement of a specific situation, it is important to recall the impact that soft law mechanisms have
had in the development of EU energy law where states have been reluctant to commit to many
initiatives, in particular when trying to balance the environment against economic goals. It is also
important in the field of international economics law and international sustainable development law,
both related to the present topic.
2.3 Scope and Delimitations
The purpose of this study is primarily based on the fact that the concept of energy security is not
well known and little has been written regarding legal issues. Rather, the existing literature focuses on
specific aspects of energy security, such as energy efficiency and conservation, investments and politics
of oil, gas or nuclear safety.
The reason for choosing the EU and to take a regional perspective also lies in the will to
question energy security facing its geographic advantage or disadvantage, the adequacy of its resources
and access to resources, the EU wealth and the remaining role of members’ governments. In this sense
this thesis speaks from the perspective of the developed work, studying the European aspects of energy
security, which constitutes at the time a regional and a broad approach of the issue. Taking the EU prism
is also interesting because energy security issues involve sub-national governments, while at the same
time many other energy security issues such as climate or sectorial concerns (nuclear, gas..etc.) are
partially or wholly governed by international law, be it through customary international law, bilateral,
regional or multilateral agreements.
This study also aims at looking at the interrelation of different picked energy security factors
which are relevant for the purpose of this study, taking a broad-picture approach rather than assessing
energy sectors separately.
For this purpose and to respect the conciseness of this essay only selected main European legal
instruments attached to each sector or theme will be analysed, potentially missing out of elements that a
sectorial expertise would have provided. Having analysed the correlative legal and institutional changes
in the region, the study will help identifying existing drawbacks and legal gaps in the development of
energy security in Europe.
The division between long-term and short-term legal challenges comes from European Law
regulations and directives. It is clear that the EU has set up short-term objectives through documents
such as ‘EU 2020’, and has started to plan for the period beyond with ‘the Energy Roadmap 2050’.

10
EXPLANATORY PRE-CHAPTER – COMMON EU ENERGY POLICY:
The vitality of the energy sector as well as its effects on economic and political decisions bring
the energy issue at the centre of EU policies. In the enlarged EU, the national interests and the
approaches toward new initiatives are diversified, preventing sometimes the EU from “speaking with
one voice” and there is no consensus for the creation of a common energy policy as explained earlier.
As energy security considerations have risen to the forefront of the EU agenda, debate over
energy market liberalization has increased, initiated at first by the publication of a Commission Working
Document on the internal energy market.51 In this paper the EU emphasized the need to reform market
integration and liberalization as energy security relies on forging network connectivity, EU-wide
interdependence and diversifying supply sources.52
This chapter aims at providing an understanding of EU legal energy infrastructure; for this
purpose, a review of the major and minor effects of the rules on energy, mostly through the study of the
Lisbon Treaty, and how these considerations have been inserted in the institutional architecture in this
policy area, will clarify the role of the EU as a coherent actor in energy security matters. Second, a short
review of the EU policy rules in regard of the integrated market will weigh the pros and cons of
harmonization, which will be addressed in the next chapter regarding supply concerns.
 Enforcing EU energy policy: a priority of the Lisbon Treaty
The treaty of Lisbon amended various ECT provisions and introduced major challenges in the
governance of the energy sector. Prior to it, the EU had already drawn paths for further codification,
highlighting the strong concerns surrounding energy security. The Lisbon Treaty offers a legal
infrastructure for harmonization of EU energy rules, and a step towards enhanced cooperation between
Members States.
Before the advent of the Lisbon Treaty, Europe did not ignore the energy security issue, in
regard of supply in particular. The EU, in limited areas, has been shaping the energy sector through its
competencies with regard to the internal market, competition policy, and environment.53In fact some
scholars argue that the Lisbon Treaty does not constitute a change in the direction of EU energy policy,
but rather codifies the policy-process that preceded it54.
On December 1st 2009, the Treaty of Lisbon entered into force, amending the previous TEU,
TEC and TFEU Treaties. While the main principles and objectives of EU environmental policy remain
largely unchanged, the treaty reinforces EU’s commitment to sustainable development, the fight against
climate change, and the development of renewable energy sources. 55
But one of the most significant changes introduced was expressed in the provision on energy,
with article 194 Title XXI in the consolidated TFEU, title XX with article 176A in the Lisbon Treaty,56
providing a strong footing to tackle energy security challenge “with a common voice”.57 Indeed the new
article 194 relates to EU’s push toward a harmonized common energy policy by making it a shared
competence. 58 Energy therefore remains subject to the subsidiarity principle: 59 the EU may only
intervene if it is capable of acting more effectively than Members States. Thus member states are free to
act in the same area as long as they do not enact legislation conflicting with EU laws or principles. 60
Specific provisions to achieve energy security targets also include article 122, establishing EU’s

51
COM(88)238 final
52
Barsch, Tilford and Wanlin, The Lisbon Scorecard VII - Will Globalization Leave Europe Stranded? 2007.
53
See footenote 2, p.89
54
Vooren B, V, “Legal and institutional obstacles to an EU External Policy Post Lisbon” (2011)
55
The impact of the Lisbon Treaty on climate and energy policy - an environmental perspective, ClientEarth(2010)
56
Lisbon Treaty, available at http://www.lisbon-treaty.org/wcm/
57
Vooren, B,V“ Legal and Institutional Obstacles to an EU External Energy Policy Post Lisbon, SIEPS Report, p.1
58
See footnote 6, Article194 TFEU
59
Ibid Article 5 TEU
60
Ibid Article 2(2) of the TFEU

11
competence to undertake measures guaranteeing security of energy supply.61 The treaty, while enabling
Member States to decide on their own national energy mix at the domestic level 62 , introduced
competence to the EU to establish derogations that might affect that freedom in practice. Indeed article
192(c) TFEU reads that in accordance with the EU’s objectives (192 (a)), derogations can be taken for
measures significantly affecting a Member State's choice between different energy sources and the
general structure of its energy supply (see chapter III).63 Indeed harmonisation measures serve as a legal
root for EU’s legislation on the functioning of the internal market as its object64 and international
agreements in respect to EU’s external energy policy65.
Further, articles 170-172 empowers the EU to act in respect of developing trans-European
networks inter alia in the field of energy infrastructure, which will be studied in chapter IV. 66
In addition the Lisbon Treaty enhances the legitimacy of the EU Commission and other EU
institutions to abate climate change, while providing a legal ground for energy security of supply,
efficiency and for the promotion of renewable energy plans (see chapter V). 67
Finally the Treaty makes also specific reference to the “spirit of solidarity”, 68to be taken into
account by Member States in the implementation of European energy policy. The solidarity will prove
to be important, in particular in times of crisis (see chapter VI): if one of more Member States face a cut
in supply, they could then rely on a supply of energy from other Member States.
However the Lisbon Treaty does not provide any legislative framework to pursue EU’s energy
policy objectives, and leaves ample room for both the EU and the Member States to frame the policy
and discuss ways of its implementation.69 One can argue that for efficient enforcement of EU energy
law, such margin of manoeuvre from Member States, enhanced by the shared competence, may impede
the good implementation of EU laws (see 3.3).70Yet the EU has encouraged its Member States to take
action, primarily through the creation of an integrated market and in particular in regards of energy
supply concerns (see 3.2 and chapter III). In reality, the deployment of a common energy policy
highlights the intervention of the EU in several areas beyond energy regulation itself, such as the
common market, the free movement of goods, capital, services and persons, the environment, etc.71
 Collective Energy Policy: providing energy security through an integrated energy market
Similarly, seeds of cooperation prior to the Lisbon Treaty were materialized in particular in the
creation of an integrated market, stressed in soft law instruments, such as in the 1995 “White Paper on
Energy Policy for the EU”, 72 where the Commission emphasised that energy policy must form part of
the general aims of EU economic policy based on market integration and deregulation, and limited to
what was strictly necessary to safeguard for the EU’s interest, sustainable development. The following
Green Papers on Energy of supply in 2000,73on Energy Efficiency in 200574 and for a European Strategy
for Sustainable, Competitive and Secure Energy in 2006 add also to this trend. 75

61
Ibid Article 122 TFEU “in a spirit of solidarity between States (..) if severe difficulties arise in the supply of certain product,
notably in the area of energy” available at (see footnote 65)
62
Ibid Article 194(2) and 192(2)(c) TFEU
63
Katinka Barysch (ed), ‘Green, safe, cheap: Where next for EU energy policy? CER report, (2011)
64
See footnote 6 Article 114 TFEU
65
Ibid Article 216-218 TFEU
66
67
Maria da Graca, C, “EU Energy and Climate Change Strategy”, (2012) Vol. 40 Energy J, p.19-22 at p.20
68
See footnote 6 Article 122(1) TFEU
69
Between Energy Security and Energy Market Integration, Guidelines for the future development of the EU’s external energy
policy in Europe’s neighbourhood, (2011) Warsaw, p.19
70
71
Manuel Ballbé & Carlos Padrós, Competitive State and European Harmonization (Ariel Barcelona 1997) (Esp.).
72
COM(95)682 final European Commission White paper “An Energy Policy for the European Union”
73
COM(2000)769 European Commission, Green Paper” Towards a European strategy for the security of energy supply
74
COM (2005)265 European Commission Green Paper “Energy Efficiency - Doing More With less”, 22 June 2005
75
COM(2006)105 “Green Paper- A European Strategy for Sustainable, Competitive and Secure Energy”

12
Hence in 2007, the EU adopted a third package of legislative proposals aimed at achieving a
“true market” open to competition, in addition to security of supply, creating a European Agency to
foster cooperation, while amending directives and regulations on natural gas and electricity. 76
Implementation of an internal and external integrated market finds also grounds under EU’s existing
legislation, with article 114 TFEU77 on harmonisation measures and articles 216-218 TFEU78 on the
conclusion of international agreements, relevant with regard to several energy projects of European
interest, such as Nabucco West’s project for the distribution of gas within Central Europe. 79
The development of a single European energy market has two implications: first the broader the
European market the less grounds for national security measures; second a market framed by common
reliable legal tools provides for stronger national legislation pre-emption. The two phenomena are self-
reinforcing.80 Indeed concentrating on market freedom and integration without providing a proper
regulatory framework could weaken Europe’s overall Energy Security, in particular regarding
supplies.81
In this approach the Lisbon Treaty leaves unaltered the shared competence between the EU and
Member States. Article 194(1) establishes the goals of energy policy, but article 194(2) reminds that
measures shall not affect a Member’ right to determine conditions for exploiting its energy resources,
the choice of energy and the general structure of its supply, without prejudicing article 192(2)(c) on
unanimity rule.82
European energy policy aims, in a more integrated way, at securing affordable energy supplies,
respect market mechanisms, promote energy efficiency and protect the environment. Indeed in 2012, the
Commission presented a Communication assessing the state of play of the internal market, to be
completed by 201483, encouraging Member States for further action. As progress toward a liberalized
European energy market continues, discussion on energy security is expected to enhance the focus on
the internal market’s ability to deliver energy supplies through interconnected pipelines and electricity
grids and to provide infrastructure security and emergency supply.84 Implementation of directives and
regulations in regards to internal and external markets will be further analysed in regards of the question
of supply, as well as their resilient ability to face disturbances; their purpose consist in achieving both
positive integration (EU legislation) and negative integration (prohibition of given norms).85
 Treaty rules for the good functioning of the EU energy market:
This part aims at providing a brief reminder of EU’s treaty rules in regards of the EU market, and will
serve as a base for further analysis in the chapter on energy of supply.
In regards of energy supply, the Lisbon Treaty makes explicit reference to compliance with treaty
rules and reads: 86
1. The Union shall adopt measures (…)ensuring the functioning of the internal market(…).
2. The internal market (…)in which the free movement of goods, persons, services and capital is ensured
(…).

76
Carlos Padros Endrius E. Cocciolo, Security of Energy Supply: When could national policy take precedence over European
Law? Energy Law Journal, Vol. 31:31, p.39
77
See footnote 6 Article 114 TFEU
78
79
Nabucco project official website, information available at http://www.nabucco-
pipeline.com/portal/page/portal/en/pipeline/overview accessed on 03.03.2013
80
81
Ibid p.39
82
Ibid Article 194 and 192 TFEU
83
COM/2012/663 Communication “Making the internal market work”
84
Ibid
85
86
Ibid Article 26 TEU

13
Economic freedoms are established in the EC Treaty: articles 28-30 define the scope and content of
the principle by prohibiting unjustified restrictions on intra-EU trade. Nowadays the internal market
goes beyond these three Treaty articles. Free movement of goods in particular has helped building an
internal market benefiting EU citizens and businesses, as a strong platform in an open, diverse and
competitive environment. Indeed around 75% of intra-trade is in goods. Hence a properly functioning
internal market for good through harmonised legislation is a critical element for the current and future
prosperity of the energy sector.87
The main Treaty provisions governing the free movement of goods, capital and services are: article
34 TFEU, which relates to intra-EU imports and prohibits ‘quantitative restrictions and all measures
having equivalent effect’ between Member States;88article 35 TFEU, which relates to exports from one
Member State to another and similarly prohibits ‘quantitative restrictions and all measures having
equivalent effect’;89article 36 TFEU, which provides for derogations to the internal market freedoms of
Articles 34 and 35 TFEU that are justified on certain specific grounds;90the Treaty chapter on the
prohibition of quantitative restrictions between Member States contains, also in Article 37 TFEU, rules
on the adjustment of state monopolies of a commercial character. 91
The major restrictions on free movement have now been removed, along with the introduction of
the single EU market in 1993. However, the high EU standards may prevent both the internal and
external market of functioning smoothly; for instance enterprises may have difficulties in coping with
the different national rules, technical requirements that are not yet harmonised at the internal level;
moreover at the external level, market access may be complicated by different regulations, with which
businesses in other States are not familiar with.92Moreover innovative new products and technological
advances pose new challenges: a national regulatory environment that does not keep pace with such
developments can soon hamper cross-border trade. On the other hand, modern information technologies
facilitates cross-border trade and increases the demand for quick and easy transfer of goods from one
Member State to another. As a result, trade restrictions in certain areas that were not apparent in the past
are now coming to light.93

87
Free movement of goods, Guide to the application of Treaty provisions governing the free movement of goods, European
Commission, p.8, (2010)
88
See footnote 6 Article 34
89
Article 35 (ibid)
90
Article 36 (ibid)
91
Article 37 (ibid)
92
See footnote 84, p.8-21
93
ibid

14
3. HARMONIZING EU LEGISLATION: GUARDING SUPPLY THROUGH INTERNAL AND

EXTERNAL ENERGY POLICIES:
Behind EU’s agenda on energy security, energy supply has been the oldest concern initiating
policy-making.94In this line the internal market has been the backbone for the coordination of internal
and external supply and a concern in diversification of overall energy sources, suppliers and transport
routes and methods. 95 Indeed according to the Commission a secure energy supply requires a
combination of internal and external policies.96
The European Energy market is still currently under construction. In this complex process
Member States have traditionally retained the power to secure each State’s energy supply as a matter of
national security. The legitimate right of Member States to pursue their own external relations for
ensuring security of energy supply and to choose their internal energy mix is not in question.97
In order to enhance action at the EU level, the Commission called for “An energy policy for
Europe” and a prioritised Action Plan to be adopted at its 2007 spring meeting,98 in order to increase
cooperation between Member States,99 and once again affirmed that: « the point of departure for a
European energy policy is threefold: combating climate change, limiting the EU’s external vulnerability
to imported hydrocarbons and promoting growth and jobs, thereby providing secure and affordable
energy to consumers…Europe needs to act now, together, to deliver sustainable, secure and competitive
energy... ». Today an examination of the development of a coherent and focussed EU energy policy,
drawing on the full range of EU internal and external policies to ensure the good functioning of the EU
market, will assess the relevance of the law in regards of short-term and long-term targets of energy
security of supply. This chapter aims at clarifying the correlation between energy policy, the EU market
and security of supply.
Lastly, an analysis of EU treaty principles in the light of EU legislation and case law will give
the opportunity to assess to which extent these principles might assist or impede energy security policy
enforcement. In this respect the Commission has recalled that the freedoms which the Treaty guarantees
the citizens of the Union — inter alia, the free movement of goods, the freedom of establishment and the
freedom to provide services — are achievable only in a fully open market, which enables all consumers
freely to choose their suppliers and all suppliers freely to deliver to their customers.100 The ECJ has also
issued several judgments in which national policies are declared to be in breach of core EU principles
such as free movement of capital, goods and freedom of establishment. Looking at these examples will
explore the risks of adopting a negative integration approach (limiting the right of Member States),
without a clear European regulatory framework (positive integration).101 Indeed dismantling national
regulatory controls without providing a true European alternative can result in a critical precedence of
free market over national administrative law102 .
3.1 Securing an internal integrated market: the third energy market package
Member States have committed to complete the integration and liberalization of the internal
European energy market by 2014,103 notably by promoting the interconnection of electric grids and
natural gas pipelines; boosting energy efficiency; and better coordinating external energy policies.

94
95
Yergin, D, “Ensuring Security” (2006) Vol 85:2 Foreign Affairs p.76
96
An external policy to serve Europe’s energy interests, S160/06 (2006)
97
Ibid
98
COM (2007)1 final "An energy policy for Europe", Taking Work forward, on energy security and external dimension
99
Beyond our Border, The energy and market grabsprooted by the new EU energy policy, Antonio Tricarico, (2012)
100
Directive concerning common rules for the internal market in natural gas, Preamble (3)
101
Michael Blauberger, From Negative to Positive Integration?, (2008)
102
103
Europe’s Energy Security: Options and Challenges to Natural Gas Supply Diversification, Michael Ratner, Paul Belkin, Jim
Nichol, Steven Woehrel (March 2013), p.6 available at http://www.fas.org/sgp/crs/row/R42405.pdf

15
Legal intervention with the aim of establishing or ensuring the functioning of the internal
market of the Union lies in article 26(1) of the Lisbon Treaty.104Article 27 also highlights the need to set
up a flexible legislation according to the need and capacities of the EU economies,105 while ensuring
that these provisions do not disturb the functioning of the market. Moreover reference to energy supplies
through an integrated market, as well as limitations can be found in article 194(1)(2)(3).106
The various legislative initiatives reviewed below, are illustrations of a controlled liberalized
market: that is gradual opening up of the market accompanied by protective measures.107 Regarding the
supply question, EU regulation has put an emphasis on oil, gas and electricity markets. Further and on
grounds of the articles mentioned above, the Commission launched some legislative measures
concerning measures to safeguard security of supply in cases of shortage and crisis, which enhances
resilience of the EU energy legal infrastructure.
3.1.1 EU gas and electricity market legislation and policies:
During the 1990s, when most of the national electricity and natural gas markets were still
monopolised, the EU and the Member States decided to gradually open these markets to competition.108
After the adoption of the first liberalisation directives in 1996 (electricity)109 and 1998 (gas)110 ,
and the second liberation directives in 2003, the Commission still denounced the inadequacy of
measures laid in the 2003 Directive in regards of the completion of a functioning internal market, as
expressed in the 2007 Communications « Prospects for the internal gas and electricity market »111and
« Sector inquiry into the gas and electricity markets ».112 The third liberalisation package was deemed to
strengthen the existing regulations for the internal electricity and gas market while ensuring reasonable
prices, allowing all enterprises access to the market and contributing to securing security of supply. The
two electricity and gas directives are based on a balanced approach concerning long-term access to the
systems, public service obligations and competition rules as well as concern the broad application of the
subsidiarity principle.113
Is the EU on the right track to meet a European supply security policy? Is the current
architecture on which the EU gas and electricity security of supply strategy is built able to deliver those
responses needed to meet growing risks and changing supply realities?
-a) Directive 2009/73/EC – gas: increasing integration through effective unbundling, transparency
and access to the system
Natural gas is the cleanest fossil fuel hence a vital component of the EU's energy mix to meet its
2020 targets.114 Gas is also not concerned by scarcity, resources being spread among all continents and
remaining abundant.115 Today, roughly half of the EU’s gas consumption comes from only three
countries (Russia, Norway, Algeria). On current trends, the Green Paper on energy security predicts that

104
See footnote 6 Article 26(1) TEU
105
Ibid Article 27 TEU
106
Ibid Article 194(1); Article 194(2) –choice of the energy mix; 193(3) - unanimity rule on fiscal matters
107
108
European Commission, official website - Energy and Environment, Overview available at
http://ec.europa.eu/competition/sectors/energy/overview_en.html accessed on 28.02.2013
109 Directive 96/92/EC (repealed by Directive 2003/54/EC) concerning common rules for the internal market in electricity
110 Directive 98/30/EC (repealed by Directive 2003/55/EC) concerning common rules for the internal market in natural gas
111
COM(2006) 841 Communication “Prospects for the internal gas and electricity market »
112
COM(2006)851 Communication to the Council and Parliament, 10 January 2007 "Inquiry pursuant to Article 17 of
Regulation (EC) No 1/2003 into the European gas and electricity sectors
113
Europedia, official website, EU Electricity and gas markets available at
http://www.europedia.moussis.eu/books/Book_2/6/19/02/01/?lang=en&all=1&s=1&e=10 accessed on 24.03.2013
114
European Commission, Quarterly Report on European Gas Markets, (2012)
115
IEA information paper, Contribution of Renewables to Energy Security, April 2007, p5-6

16
by 2020 up to 70% of EU’s gas consumption will be imported and demand will be set to overtake oil as
the leading energy source.116 Domestic suppliers cannot totally meet the growing gas demand in the EU.
The rise in the gas consumption and the decrease in the production capacities of the gas fields
complicate the energy security issue and threaten the security of energy supply in the union.117
Hence security of gas supply must apprehend long-term visibility. According to the IEA, policy
for gas supply includes the capacity to mobilise investment to develop supply and infrastructure as well
as the insurance to ensure reliable supply.118Gas security challenge in the EU also has an external and an
internal dimension.119 The internal dimension of gas security of supply treated in this chapter is linked to
the liberalisation of gas sector in the EU internal market. The risks attached to this dimension have also
been majorly concerned by EU’s policy efforts in the last decade.120
Indeed over the past years, the Commission has increased efforts to promote EU guidelines to
determine ownership and access to electricity grids, pipelines, and emergency energy storage facilities.
The implementation of Directive 98/30/EC121 gave the first input for the reorganisation of the gas sector
and, in particular, towards the opening of several activities, to the competition rules in Europe.122The
liberalisation process has been accelerated with the implementation of Directive 2003/55/EC, 123
Regulation 1775/2005/EC,124and Directive 2004/67/EC.125 In particular the 2003 gas directive has made
a significant contribution towards the creation of an internal market in natural gas; it broadened market
access of third parties to transmission and distribution systems to increase fair competition, and set up
cooperative measures between Member States (which have been maintained in the new Directive
2009/73/EC),126 that aimed at introducing common rules for the transmission, distribution, supply and
storage of natural gas.127 However several Commission Communications in 2006 and 2007 showed that
the present rules were not providing the necessary framework for achieving the objectives of a well-
functioning internal market. The adoptions of new rules were required.128
In the preamble of the new 2009/73/EC Gas Directive, the Commission highlights potential
obstacles to the sale of gas on equal terms and without discrimination. In particular, non-discriminatory
network access, investment and an equally effective level of regulatory supervision in each Member
State do not yet exist, thus preventing effective unbundling of the TSO and DSO (activities of
production and supply).129 Ownership unbundling, which implies the appointment of the network owner
as the system operator and its independence from any supply and production interests, is clearly an
effective and stable way to solve the inherent conflict of interests and to ensure security of supply.130
Hence the 2009/73/EC Directive focuses on three major points: unbundling in order to increase power
and independence of national regulators; market transparency and the creation of an EU regulator as
well as an agency for cooperation; and access to the system. 131
First regarding ownership unbundling, Member States should therefore be required to ensure
that the operation of gas transmission network from supply and generation undertakings are separated,
removing any conflict of interests between producers, suppliers and transmission system operators in

116
COM(2000)769, II,A - European Commission, Green Paper” Towards a European strategy for the security of
energy supply
117
EIA, International Energy outlook 2013, with projections to 2040, p5, 27, 76
118
IEA urges to overcome investment uncertainties, cost increases and delays in natural gas markets to maintain security of
supply (2008)
119
Nso, S. (2008), “Searching for Coherence Between the so Called ‘External Dimension of the European Energy Policy’ and
Europe’s Historical and New Foreign Relations”, IAEE Energy Forum, Third Quarter.
120
Energy Studies Institue,“Are We Entering a Golden Age for Gas?” Dr. Fatih Birol,(2011)
121
Directive 98/30/EC concerning common rules for the internal market in natural gas
122
Stern, J. (2002), Security of European Natural Gas Supplies. The Impact of Import Dependence and Liberalization
123
124
Regulation 1775/2005/EC (2005) on conditions for access to the natural gas transmission networks
125
Directive 2004/67/EC concerning measures to safeguard security of natural gas supply
126
127
Riley, A. (2008), “Ownership Unbundling. A Logic Outage for the Anti-Energy Liberalisers?”, CEPS Commentary
128
COM(2007) 1 final 4.13.2 on the internal energy market; COM(2006) 841 final ; COM(2006)851
129
Directive 2009/73/EC concerning common rules for the internal market in natural gas, preamble (4)
130
Ibid, preamble (8)
131
Ibid article 1(1)

17
order to create incentives and guarantees for the necessary investments under a transparent regulatory
regime.132 For that reason, TSO have to be certified and designated by a national regulatory authority,
the list of operators being published in the Official Journal of the EU.133 Similar rules apply to DSO.
134
Member States may also impose on undertakings operating in the gas sector public service
obligations that cover issues of security of supply, regularity and quality of service, price, environmental
protection and energy efficiency.135
Second to prevent a lack of transparency that would impede the market’s proper functioning,136
the directive ensures that customers receive relevant consumption.137 In addition, Member States shall
designate operators responsible for operating, maintaining and developing transmission systems, storage
and/or LNG facilities with due regard to the environment. To fight against discrimination and increase
access of isolated regions, these operators shall also ensure non-discrimination between system users;
provide information to any other transmission/distribution system, storage, LNG operator; ensure the
interconnection of the transmission and storage of natural gas; and provide system users with the
information they need to access the system.138
Third Member States or the competent regulatory authorities shall define the conditions for
access to facilities. 139 In this respect the directive reiterates the right of third parties to non-
discriminatory access to transmission/distribution systems and LNG facilities.140 Finally the competent
regulatory authorities of individual Member States shall ensure that eligible customers can obtain access
to upstream pipeline networks. However gas undertakings may refuse access to the system for lack of
capacity or when access to the system would compromise the performance of their public service
obligations. Again to guarantee non-discrimination and transparency, substantiated reasons shall be
given for any such a refusal.141
Indeed the opening-up of national gas markets set out in Directive 2009/73/EC enhances the
completion of a truly competitive internal gas market within the EU, by imposing stricter unbundling
rules for gas for TSOs, DSOs and transparency. These should be independent in their legal form as for
their organization and decision-making.142 The directive also states that they shall be clearly designed,
transparent, non-discriminatory and verifiable and that as means of carrying out these public service
obligations, members can implement long-term planning.143 Moreover since March 2011, the Decision
2010/685/EU on the conditions for access to the natural gas transmission networks applies and sets up
detailed guidelines on the content and format of the information the TSOs need to provide to the
network users to guarantee their efficient access to the grid.144 However, several articles provide for
special treatment, which may limit the full opening of a competitive interconnected market. For example
third party access shall not prevent the conclusion of long-term contracts as far as they comply with
Community competition rules.145
-b) Directive 2009/72/EC- electricity : facilitating network security and generating capacity
The 2007 Communications also emphasise the inadequate framing of the rules and measures in

132
Ibid Article 9(1)
133
Ibid Article 10(2)
134
Ibid Article 12
135
Ibid Article 3(2)
136
Ibid, Preamble (36) and Article 16(3),
137
Ibid Article 3(6) and Annex I(h)
138
Ibid Article 13
139
Ibid Article 33
140
Ibid Article 32(1)
141
Ibid Article 35
142
See footnote 2, p.101; and Nies, S. (2008), Oil and Gas Delivery to Europe.
143
See footnote 126, Article 3(3)
144
Commission Decision of 10 November 2010 on conditions for access to the natural gas transmission networks
145
See foonote 6, Article 32(3); and Footnote 2, Energy Security, Managing Risk in a Dynamic Legal and Regulatory
Environment, p.101

18
force relating to the internal electricity market. The Commission noted that it is important to amend the
current rules with a view to ensuring fair competition and supplying electricity at the lowest possible
price in order to complete the internal market in energy.146
According to the European Parliament and Council,147 security of electricity supply refers to “the
ability of an electricity system to supply final customers with electricity”. In particular, there are two
aspects attached to electricity security of supply in the process of market liberalisation: operational
network security and demand-supply balance (or adequate generating capacity).148
To achieve these goals, electricity has been considered by the EU with similar legal responses as
for gas. Indeed the first Electricity Directive 96/92/EC sets out general rules of the sector with a view of
achieving a competitive market in electricity,149 followed by the 2003 Directive which lays down rules
for increased market transparency and customer protection, 150 as well as for the monitoring and
reporting of supply issues.151 Yet the process of liberalisation of the European electricity market was far
from complete. In this line the Third Energy Liberalisation Package has been proposed, with the
launching of the Directive 2009/72/EC.
The 2009 Directive has prioritised unbundling measures, transparency and network access and
capacity.152 As for the gas directive, Member states shall impose rules clearly designed, transparent, non-
discriminatory and verifiable and are invited to use long-term planning with specific focus on the
separation of ownership of transmission assets from supply activities.153They shall define technical
safety criteria to ensure the integration of their national markets at one or more regional levels.154 In
addition, the national regulatory authorities are to cooperate with the Agency for the cooperation of
Energy to guarantee the compatibility of regulatory frameworks between regions.155
The European Commission considered also to re-define rules and measures applying to the
market with regard to consumer protection and to ensure fair competition. Indeed the directive lays
down rules giving the opportunity for consumers to get clear information about the electricity
market156 and to be able to choose their electricity supplier and/or to change supplier easily, with the
operator’s assistance.157An interesting new element of this directive concerns electricity suppliers, who
are obliged to inform final customers about the contribution of each energy source,158the environmental
impact caused,159 and their rights in the event of a dispute.160Member States shall also put in place an
independent mechanism (energy ombudsman or consumer body) to manage complaints or disputes
efficiently.161
Finally competent regulatory authorities shall define criteria for the construction of generating
capacity in their territory,162 taking account of aspects such as the protection of the environment; the
security and safety of electricity networks; the contribution made towards the Commission’s 20-20-20
objectives, and of generating capacity to reducing emissions.163 Moreover the regulator shall facilitate
access to the network for generation capacity and remove barrier of electricity from renewables, giving

146
COM(2012)663 final Communication “Making the internal market work”
147
Directive 2005/89/EC concerning measures to safeguard security of electricity supply and infrastructure investment
148
De Vries, L. and R. Hakvoort (2004), The Question of Generation Adequacy in Liberalised Electricity Markets, INDES
Working Paper No. 5, CEPS, Brussels, March.
149
Article 3(1) Directive 96/92/EC; Footnote 2, Energy Security in a Dynamic Legal and Regulatory Environment, p.95
150
Article 3(3) Directive 2003/54/EC concerning common rules for the internal market in electricity
151
Ibid Article 4 on monitoring of supply; Article 25 on reporting
152
Directive 2009/72/EC concerning common rules for the internal market in electricity
153
Ibid Article 3(2)
154
Ibid Article 5
155
Ibid
156
Ibid Article 3(5)b
157
Ibid Article 3(5)a
158
Ibid Article 3(9)a
159
Ibid Article 3(9)b
160
Ibid Article 3(9)c and (12)
161
Ibid Article 3(13)
162
Ibid Article 7
163
Ibid 7(a,c, j)

19
priority to the latter while dispatching generating installations combining heat and power.164
The Electricity Directive has adopted a similar approach to security of gas supply concerns.
Indeed both legislations provide that all consumers have a choice to buy electricity or gas from different
suppliers, with numerous requirements for power and gas companies for supply, transmission and
distribution. The main changes concern effective unbundling through long-term planning for the system
to meet reasonable demand with due regard to the environment. Besides, Member states must have an
independent electricity regulator for electricity and gas, in order to ensure competitive, secure and
environmentally sustainable internal market, and ensure consumer protection. In addition a new
European « Agency for the Cooperation of Energy Regulators » is established, with competence to
oversee many parts of the legislation.165 EU countries may impose on gas and electricity companies
public service obligations (PSO) relating to security of supply, quality and price of supplies and
environmental protection, including energy efficiency, energy from renewable sources and climate
protection.166 The latter has been particularly effective in the field of electricity, as regards of energy
diversification.
3.1.2 Short-term security of supply initiatives: building on energy solidarity in the EU
The Lisbon Treaty makes explicit the need for energy solidarity between Member States
regarding energy supplies.167It does not increase the power of the EU to build a truly single energy
market but introduces cooperation and transparency and potentially resilience in confronting
hypothetical energy crisis while promoting network interconnectivity as a safety valve against potential
crises. Taken together, these measures represent the first steps towards a truly single energy market.
- a) Directive 2009/119/EC: enhancing cooperation to secure EU oil stocks
The dramatic price rises experienced in recent years, and heightened awareness of the role of
hydrocarbon combustion to global environmental change, have returned petroleum to the centre of
political and policy debate. Within the EU market, petroleum remains a predominant energy source in
the domestic production and consumption, especially for transport, and plays indeed a crucial role in
energy security. 168 However the large gap between production and consumption stresses the EU’s
dependency on oil imports to meet its growing demand.169The EU only produces 48% of its energy
needs, dependency on oil imports reaching 83,5% in 2009 from very few suppliers (mainly Russia,
Norway, the OPEC).170
Energy security risks are also associated with unstable oil supply, mainly due to oil transport
disturbances, the increasing competition for oil resources, fluctuation in oil prices and possible fuel
replacement.171 According to the Commission in 2002, national laws with regard to the security of oil
supplies were insufficiently harmonized and coordinated at EU level and may lead to distortions in the
internal market in petroleum products.172
Hence the primary energy security threat stems from access to oil and the EU shall take steps to
ensure that domestic resource production is secured and developed, both offshore and onshore.173 Today

164
Ibid Article 15(3)(4)
165
Regulation (EC) No 713/2009 establishing an Agency for the Cooperation of Energy Regulators
166
Article 3 in both directives
167
See footnote 6 Article 122(1) Lisbon Treaty
168
Mark Finley,The Oil Market to 2030—Implications for Investment and Policy (2012)
169
IEA (2008), The European Union, Energy Policies Review, OECD/IEA, Paris.
170
Market Observatory for Energy, Key figures, June 2011
171
Arianna Checchi Arno Behrens Christian Egenhofer, Long-term Energy Security Risks for Europe, A Sector-Specific
Approach, January 2009, p.9
172
COM(2002) 488 final The internal market in energy: Coordinated measures on the security of energy supply
173

20
the EU focuses on securing oil supplies for Europe and making the oil market more transparent, fair and
competitive.174For this purpose, the 2007/2009 Action Plan includes the role of the EU to improve oil
data transparency and review oil supply infrastructures and stock mechanisms, taking into account the
primary responsibility of Member States regarding their domestic demand.175 Practically the current
Council Directive 2009/119/EC 176 imposes an obligation on Member States to maintain minimum
stocks of crude oil and/or petroleum products in the event of a supply crisis to replace all or part of the
shortfall, through reliable and transparent mechanisms based on solidarity amongst Member States.177
The Directive sets up an emergency procedure for the safeguard of oil stocks: Member States
must maintain a total level of oil stocks corresponding to at least to 90 days of average daily net imports
or 61 days of average daily inland consumption. 178 The directive provides also for calculation
methods. 179 Moreover Member States have an obligation to ensure that stocks are available and
physically accessible and shall take all necessary measures to prevent all obstacles and encumbrances
that could hamper the availability of emergency stocks and specific stocks.180In this regard, they are
responsible for putting in place arrangements for the identification, accounting and control of these
stocks through the use of a register, a summary copy being sent to the Commission once a year.181
In order to mitigate a supply crisis, the EU has also revised the oil stockholding system, in the
form of a non-profit making body or service, and shall maintain oil stocks (including acquisition and
management of these stocks).182 stockholding systems and Member States may delegate part of the
management of stocks to another Member State with stocks on its territory, to the stockholding system
set up by the said Member State or to economic operators. 183 This revision concerns enhancing
cooperation of the system, bringing it into line with the existing rules of the IEA and optimising
administrative obligations in Member States.184
To conclude EU’s limited oil reserves and high-level consumption increase EU’s dependency to
external oil suppliers. However energy security is no longer simply a question of oil supplies. Indeed, as
a much-traded commodity in a global web of suppliers, routes, and consumers that does not depend on
networks like natural gas or electricity, oil presents fewer security issues than other fuels. 185
Nevertheless oil still occupies a special place in the discussions of energy security, at least for the next
two-three decades to come, and the EU has largely anticipated risks so far, making the legal system
fairly resilient to potential disruptions.186Moreover the predictions that are made periodically about the
looming oil crisis do not seem likely to come true in a way that justifies immediate policy corrections,
even though long-term supplies are by no means guaranteed.187
-b) Regulation 994/2010: a first legislative framework to safeguard security of gas supply
The IEA defines the security of gas supply as “the capability to manage, for a given time,
external market influences which cannot be balanced by the market itself”.188This is linked to increasing

174
European Commission, Oil website page, available at http://ec.europa.eu/energy/oil/index_en.htm
175
COM/2008/781 final, 2.3, Second Strategic Energy Review, An EU Energy Security and Solidarity Action Plan
176
Council Directive 2009/119/EC imposing an obligation on Member States to maintain minimum stocks of crude oil and/or
petroleum products,
177
Ibid Article 1
178
Ibid Article 3(1)1
179
Ibid Article 4
180
Ibid Article 5(1)
181
Ibid Article 6
182
Ibid Article 7(1)
183
Ibid Article 7(3)
184
185
Barry Barton, ibid p.4
186
Jesse, J.H. and C. van der Linde (2008), Oil Turbulence in the Next Decade.
187
Barry Barton, see footnote 2, p.4
188
International Energy Agency (2004), Security of Gas Supply in Open Oil Markets, OECD/IEA, Paris.

21
import dependence from external suppliers.189 Indeed besides organizing long-term targets to secure gas
supply in an internal market, gas policies must also apprehend the resilience of the legal system, to
allow for a certain degree of counteraction to potential gas disruptions. According to the IEA,190in the
short term, “security of gas supply covers the adequacy of supply and capacity to avoid unforeseen
interruptions of customers” under rare and extreme events.
In this respect the EU has designed some legislative measures aiming at safeguarding security of
natural gas supplies, first with the Council Directive 2004/67/EC, establishing a common framework for
Member States to define transparent, solidarity-based, non-discriminatory and consistent security of
supply policies in accordance with the requirements of a single market in gas. 191 Moreover the
2009/73/EC Directive, for issues related to the balance of supply and demand on the national market,
envisage that Member States have to maintain networks and establish measures to be taken in the event
of supply problems.192 Regional or international cooperation may be put in place to ensure security of
supply.193
In the context of the 2009 Russian-Ukrainian gas crisis, regulation 994/2010194establishes for
the first time an EU legal framework to safeguard security of gas supply, demonstrating that the
provisions of the previous directive and their uneven implementation by the EU countries was not
sufficient to prepare for, and to respond to a supply disruption.195 It provides much more specific rules
ensuring both prevention and coordinated response in the event of a gas disruption, security of supply
being a shared responsibility of natural gas undertakings, the EU countries and the Commission.196
On grounds of a risk assessment, updated every two years, taking into account the various
scenarios of demand and disruptions,197 the correlation of risks with other EU countries and other
relevant circumstances,198the competent authority shall adopt, make public and notify the Commission
of a preventive and an emergency action plan.199This initiative is designed to manage crisis in the
internal markets and ensure uninterrupted energy flow across Member States.
The prevention action plan is designed to remove or mitigate the risk identified,200notably for
customers whose gas supplies have to be protected, such as households, small and medium-sized
enterprises and essential social services and/or district heating installations.201In addition the regulation
ensures supply standards for protected customers in the event of a seven-day temperature peak and for at
least 30 days of high demand, as well as in the case of an infrastructure disruption under normal winter
conditions.202 It also aims at financing projects geared towards interconnecting gas systems through
infrastructure standards, where Members States must be able to satisfy total gas demand during a day of
exceptional high gas demand, with a possibility of bi-directional capacity on all cross-border
interconnections between Member States. 203 Moreover a Gas Coordination Group can facilitate
coordination of security of gas supply measures, and may be consulted by the Commission.204
The emergency plan contains measures to be taken to remove or mitigate the impact of a gas
supply disruption, 205 defining three main crisis levels: early warning, alert and emergency. 206 The

189
COM(2000)769 European Commission, Green Paper” Towards a European strategy for the security of energy supply
190
Ibid
191
Council directive 2004/67/EC concerning measures to safeguard security of natural gas supply
192
Directive 2009/73/EC concerning common rules for the internal market in natural gas, Article 5
193
Ibid Article 6(2)
194
Regulation 994/2010 concerning measures to safeguard security of gas supply
195
Tönjes, C. and, J. de Jong (2007), Perspectives on Security of Supply in European Natural Gas
196
Footnote 191 Article 3(1)
197
Ibid Article9(1)c
198
Ibid Article 9(1)d
199
Ibid Article 4
200
Ibid Article 4(1)a
201
Ibid Article 2a,b
202
Ibid Article 8(1)a,b and c
203
Ibid Article 6(1)and(5)
204
Ibid Article 12(1)and(2)
205
Ibid Article 4 (1)b
206
Ibid Article 10 (3)a,b and c.

22
Commission plays an important role with regard to the declaration of EU or regional emergency, being
able to declare an emergency if it has received such request from at least two competent authorities.207
During an emergency, the natural gas undertakings concerned shall also make available transparent
information to the competent authority on a daily basis.208
Finally the EU has introduced market-based incentives for private companies to invest in
infrastructure necessary to secure energy supply.209 Member states are obliged to take the necessary
measures against gas disruption based on a clear definition of the roles and responsibilities of the
various market players. The policies of the regulation contribute to the completion of a fully operational
internal market for gas.
-c) Directive 2005/89/EC: safeguarding electricity supplies through network capacity
In the context of blackouts in both the EU and US,210the European Parliament and the Council
have highlighted the need to define clear operational standards for transmission networks and for correct
maintenance and development of the network with Directive 2005/89/EC.211 The directive establishes
three types of measures through general, transparent and non-discriminatory policies on security of
electricity supply, compatible with the requirements of a competitive single market for electricity.212
First in order to ensure an adequate level of generation capacity, Member States shall set
minimum operational rules and obligations on network security.213The network operators must set and
meet quality of supply and network security performance objectives. Also curtailment of supply in
emergency situations must be based on predefined criteria and relevant measures taken in consultation
with other transmission system operators concerned.214
The Directive secondly provides for specific measures necessary to maintain the balance
between electricity demand and available generation capacity, to prevent Member States from taking
more interventionist measures which are incompatible with competition.215 They will need to have a
clear policy in place to maintain the balance between supply and demand.216
Third, network investment has appeared crucial for appropriate level of interconnection between
Member States to develop the internal market, for competition and the future security of electricity
supply in the EU. Member States must lay down a framework for providing information to TSOs and
DSOs which facilitates investment,217 notably that provides investment signals to develop networks in
order to meet foreseeable demand from the market, facilitates maintenance and, where necessary,
renewal of their networks, in close cooperation between relevant transmission system operators.218 In
order to stabilize investment climate, 219Member States are also to take into account the importance to
ensure continuity of electricity supplies (2.a), the study of the internal market and the possibilities for
cross-border cooperation in relation to security of electricity supply (2.c), the renew transmission and
distribution networks to maintain performance (2.d), the introduction of a degree of diversity in
electricity generation(3.a), the importance to reduce the long-term effects of growth of electricity
demand(3.b) and the promotion of efficiency and the use of new technologies(3.c)

207
Ibid Article 11(1) ; Haghighi, S, S, n24 at p.478
208
Ibid Article 13(2)
209
Ibid Preamble (14)
210
Europa, official website - security of supply of electricity available at
http://europa.eu/legislation_summaries/energy/external_dimension_enlargement/l27016_en.htm accessed on 04.04.2013
211
Directive 2005/89/EC concerning measures to safeguard security of electricity supply and infrastructure investment
212
Ibid Article 1(2)
213
Ibid Article 4(1)
214
Ibid Article 4 (4)
215
Proposal for a Directive concerning measures to safeguard security of electricity supply {SEC(2003) 1368}
216
Footnote 208Article 5
217
Ibid Article 6
218
Ibid Article 7(1)a, b and (2)
219
Ibid Article 3(2)

23
However, this Directive does not offer explicit mechanisms and leaves ample room to Member
States to decide on the tools to ensure a high level of security of electricity supply. Yet, the verification
of implementation measure is satisfactory: indeed Member States may decide that rules and obligations
to ensure continuous operation of the transmission must be approved by the competent authorities and,
where appropriate, also respected by the TSO.220Further Member States or competent authorities shall
provide a report on security of supply.221 This report must contain information on operational network
security, projected balance of supply and demand, prospects for security of supply within the medium
term and investment intentions of TSOs as regards provision of cross-border interconnection capacity.
To conclude this directive sets up a scheme based on prevention that is deemed to be an
adequate measure for dealing with crises. It enhances energy structure and efficiency, as well as
cooperation between Member States. However, the only reference to emergency supplies in article 4(4)
is left to consultation. Moreover in a liberalized market the actors will not necessarily maintain overall
responsibility for maintaining a balance between supply and demand as provided by article 5. 222
3.2 Achieving a sustainable, competitive and secure external energy policy
External policy is a constitutive part of EU’s foreign policy in regards of diversification of energy
supply, competitiveness in the internal markets and climate change.223EU’s emphasis has “traditionally
been on international measures to improve the functioning of energy markets and resilience.”224The
2006 Green Paper, calling for a response to energy challenges in the EU, including climate change
issues to realize a ‘sustainable, competitive and secure energy,’225 introduced a “coherent external energy
policy” as one of the six energy policy pillars.226The Commission states that energy security can be
achieved through the extension of its own markets including its neighbours “with a common regulatory
area with shared trade, transit and environmental rules.”227
According to Barysch, the main issue in the EU’s external security policy is natural gas. While oil is
a more fungible commodity that is traded on world markets, Europe’s gas supplies are dominated by
long-term bilateral agreements that govern the market flow. In this respect as studied previously, the
creation of an internal gas market may help to contravene supply disruptions; however strengthening the
legal requirements of market liberalization can also weakens the power of large outside suppliers.228
3.2.1 External energy policy and cooperation at a regional level:
Prior to the Lisbon Treaty, a first attempt to increase security of energy supply, with the
development of a common external policy through dialogue between Members States and partners, was
part of the three strategic objectives prepared by the Commission in “An Energy Policy for
Europe”.229 To follow up on this strategy, a second Energy Review released in 2008, recalled the need to
increase external energy relations as part of shared rules derived from EU internal energy policy”.230
As a result, the European Commission launched a 2011 Communication “on the security of
energy supply and international cooperation – EU energy policy: engaging with partners beyond our

220
Ibid Article 4(1)
221
Ibid Article 7
222
See footenote 2, p.96-100
223
Kusku, E “Enforceability of a Common Energy Supply Policy in the EU: An Inter-governmentalist Assessment” (2010)
p.145-158 at p.147.
224
Malcom W, « Energy Security : A National Challenge in a Changing World »(2009), p90.
225
COM (2006) 105 final “Green Paper- A European Strategy for Sustainable, Competitive and Secure Energy”,
226
CEPS Task Force, “Energy Policy for Europe, Identifying the European Added-Value” (2007) p.23.
227
European Union Commission, “An External Policy to Serve Europe‟s Energy Interests”, (2006)
228
Katinka Barysch, The EU and energy security, Centre for European Reform, March 2013
229
COM(2007)1 final "An energy policy for Europe", 4.Taking Work forward, on energy security and external dimension
230
COM(2008) 781 final Second Strategic Energy Review, An EU Energy Security and Solidarity Action Plan

24
borders”.231 The paper sets out for the first time a comprehensive strategy for the EU’s external relations
in energy, with the objective to strengthen collaboration in external relations through competition,
safety, network-access and in particular in regards of security of supply.232The Commission has focused
on two major correlated points: strengthening EU’s external energy policy and expanding cooperation
with third countries.
Firstly about EU’s external policy, the Commission proposed to set up an information exchange
mechanism prior and after negotiations for intergovernmental agreements in the field of energy between
Member States and third countries; the Commission may provide an opinion on the conformity of these
agreements with EU law and with the EU security of supply objectives 233 Practically, it will extend and
complement the notification procedure already applicable to gas agreements to all forms of
energy.234 This proposed mechanism allows Members States to strengthen their negotiating position
facing third countries, by creating legal certainty for investment, increasing the functioning of the
internal market while securing energy supply.235
Secondly external cooperation is also vital for security of supply because EU’s neighbours in
South Eastern Europe and North Africa have significant oil and gas reserves.236The EU has engaged
itself through “energy dialogue, trade liberation, infrastructure development and networking”.
237
However the EU requires proper alignment of its interest and those of suppliers through a structured
cooperation.238In this approach, cooperative mechanisms need to back up on correlated EU policy
frameworks. As regards the European Neighbourhood Policy Partners,239the EU’s “aim to achieve an
integrated energy market with all countries of its neighbourhood based on regulatory convergence”,
relies on negative policies.240
For example the EU and Russia agreed in 2011 on a 2050 Cooperation Roadmap aiming at
enhancing market reforms, improving investment for EU energy companies in Russia and coordination
of energy infrastructure projects. 241 Other regional papers demonstrate the EU’s commitment in
enforcing external market integration, such as the ‘Strategy Paper for central Asia 2007-2013.242An
additional area to be taken into account is the impact of the EU proposing new partnerships on
renewable energy projects with the Southern Mediterranean countries, such as Desertec. 243 About
nuclear energy, the EU will also advocate for international legal binding nuclear safety standards,
aiming at extending nuclear safety assessments to EU neighbouring countries.244
The purpose of these is to ensure legal certainly in the long-term with external partners. The
progressive extension of EU’s energy regulatory scope provides more effective implementation of its
objectives, while giving concrete and attractive assistance to reform these markets.245

231
COM/2011/539 final Communication of the European Commission - The EU Energy Policy: Engaging with Partners
beyond Our Borders
232
Balázs Mellar, Stela Nenova, Energy Policy: General Principles (2012); see also Oliver Geden, Clemence Marcelis, Andreas
Maurer, Perspectives for the European Union’s External Energy Policy, Working Paper, December 2006
233
See footnote 229, Buidling up the External Dimension of the EU Internal Energy Mrket
234
Margarida Vasconcelos: The Commission is seeking control over Member States’energy deals with third countries, 2011
235
beyond Our Borders
236
Gawdat B “Europe’s Energy Security: Challenges and Opportunities”, (2006) p 961-975 at p.964.
237
European Commission, “External Energy Policy, Key institutional Decisions 2006-2008
238
CEPS Task Force, n 58 CEPS, “Energy Policy for Europe, Identifying the European Added-Value”, (2007) p.3
239
European Neighbourhood Policy Partners, Information available at http://ec.europa.eu/world/enp/index_en.htm accessed on
23.03.2013
240
Nso, S. (2008), “Searching for Coherence Between the so Called ‘External Dimension of the European Energy Policy’
241
Roadmap EU-Russia Energy Cooperation until 2050, March 2013
242
European Commission, Strategy Document, Regioal Programming for Asia, 2007-2013
243
beyond Our Borders
244
Ibid
245
Youngs, R. (2007), Europe’s External Energy Policy: Between Geopolitics and the Market, CEPS Working Document

25
3.2.2 Bilateral agreements: potential impediment to secure external energy policy?
For Van Tompuy, the main challenge is to reconcile the freedom to conclude bilateral supply
contracts with third countries with membership of one single market.246Some Member States have
entered into long-term supply contracts with other non-EU suppliers.247 Despite EU competition policy
(notably on gas market), existence of such agreements largely counter market liberalisation rules that
are critical to EU’s energy security of supply.248
According to Cohen,249 Russia has been consolidating its grip on oil and gas in Europe utilizing
long-term contracts with European countries by locking demand. By dealing separately with countries
rather than a group, it has discriminated countries on prices by prohibiting resale to another country.250
This also goes against TFEU rules251prohibiting territorial restrictions that counter EU’s policy of a
liberalized market.252
On the other hand Youngs argues that the EU’s bilateral energy agreements with various
countries aim at extending principles of the 1994 Energy Charter to different energy sources as a
solution to energy security concerns.253 Indeed the Energy Charter’s focus on the rule of law and the role
of governments provides a robust framework for foreign investment in the energy sector.254
To conclude, it is apparent that much of EU’s external energy policy remains to be created and
coordinated. However the Lisbon Treaty has legitimised EU’s position to negotiate on behalf of its
Member States in regards of energy projects with third parties in order to sustain and/or diversify
supply.255 However, security of energy supply might not be attainable by simply looking at external
energy policy alone; indeed the combination with a functioning competitive internal energy markets will
also broaden the energy mix and secure energy. The diverse directives initiated above give ample
margin of manoeuvre to Member States to derogate from their general requirements in the interests of
maintaining energy security of supply. However, as the terms of the directives make clear and explicit,
any such derogation must comply with the Treaty rules (article194).
3.3 Security of supply in the light of EU market principles and treaty rules:
The ECJ’s judicial decisions operate between the construction of Europe and the respect for
national government’s legitimate efforts to safeguard energy security.256The purpose of increasing the
integration of the EU market may indeed face obstacles due to conflicting legal interests.
The study of the two gas and electricity directives makes clear that the measures laid down
leave ample room for Member States to derogate from their general requirements regarding free
movement principles in the interests of maintaining security of supply. However as the terms of the
third package directives make clear, these derogations must comply with the Treaty rules, not to
frustrate fair competition in the market.257 Moreover the Lisbon Treaty makes explicit reference to
security of supply.258 Hence approving national measures too frequently may limit free movement
principles. Until recently, the ECJ jurisprudence tended to give Member States the discretion to deviate
from EU principles in the interest of public security. This notion however, may be evolving in line with

246
Herman Van Rompuy, “Developments in European Governance and Europeance Energy Policy” (May-June 201) p6
247
IEA, “ European Union is Leading on Climate Change and Energy Policies, but needs to increase Funding for energy
research and Development”(2008)
248
Alan Riley, “Energy Security, Gas Market Liberalisation and Our Energy Relationship with Russia” (2006)
249
Cohen, Ariel, Europe’s Strategic Dependence on Russian Energy, 2007.
250
Vooren V, V, “Legal and institutional obstacles to an EU External Policy Post Lisbon” SIEPS Report
251
Article 101 TFEU See footnote 6
252
Ibid footnote 248
253
Youngs, R “Europe’s External Policy: between Geopolitics and the market” (2007)
254
Ibid
255
Haghighi S, S, Energy Security and the Division of Competences between the EC and its Member States”(2008) p.461
256
257
Preamble (3) (19) for Directive Gas 2009/73/EC and (3)(22) for Directive Electricity 2009/72/EC
258
Lisbon Treaty Article 194(1)b see footnote 6

26
efforts to comply with EU free movement principles and environmental targets.259 Moreover the EU
Treaty rules may impede the complete functioning of such EU market, the ECJ holding a predominant
role to balance competing legal interests. According to Hancher: « It is now increasingly clear that
Community action on energy cannot be limited to market integration and the removal of national
obstacles to free movement of goods alone. A number of these same obstacles may be justified on either
environmental protection or security of supply grounds. In other words, the Commission has gradually
been forced to abandon its purely market-driven approach to creating a single energy market. »260
Regarding freedom of goods, derogations from article 36 TFEU, including public security, has
been used by the ECJ to refuse restrictions in regards of energy of supply, interpreted as an overriding
mandatory requirement, which may justify certain limitations of the principle of free movement of
goods.261In the case Preussen Elektra, the Court has justified the obligation for electricity suppliers to
buy imported electricity produced from renewable energy source from within a limited supply area.262
Moreover in the event of a supply crisis, the gas electricity and oil directives provide the
possibility for Member States to take safeguard measures, albeit subject to Commission supervision. In
the case Campus Oil, a Member State ordered petrol importers to purchase up to 35 % of their petrol
requirements from a national petrol company at prices fixed by the government. The ECJ held that the
measure was clearly protectionist and constituted a breach of Article 34 TFEU. However, it justified it
on the grounds of public security, for maintaining a viable oil refinery to meet supply in times of
crisis.263 Thus given the current concern over capacity availability, it is not at all unlikely that export
restrictions may be imposed on these sectors to deal with national shortages.264
In two of the 1997 Electricity cases,265 the Court concluded that the conferral of exclusive rights
were contrary to article 37 TFEU and had the effect of restricting exports and establishing a different in
treatment between domestic trade and export trade, in such way to provide a special advantage for the
French and Italian domestic market. While the conferral of exclusive rights is not longer permissible
following the adoption of third package directives, 266 this may not preclude Member States from
adopting measures restricting exports upon article 30 EC, for goods in transit.267Moreover, the Court
ruled that this type of discrimination can be justified by article 106 TFEU268 if the tasks assigned
to undertakings entrusted with the operation of services of general interest can be achieved only through
the grant of exclusive rights and provided that the development of trade is not affected to an extent
contrary to the interests of the Union.269
Concerning freedom of capital, and considering its considerable importance regarding the
concept of energy supply and the scope for legitimate public intervention, the ECJ has been the platform
for a series of rulings with reference to ‘golden-shares’ or special arrangements which Member States
hold in respect of certain undertakings with a view to ensure certain public security objectives,270and
over free movement of capital,271 as in Commission v. France.272 Yet in Commission v. Portugal,273the
ECJ rules that a Member State cannot invoke a golden share merely to prevent a foreign company

259
Ibid footnote 254
260
Lee Hancher, A Single European Energy Market: Rhetoric or Reality? 11 ENERGY L.J. 217, 218 (1998).
261
262
Case C-379/98 (2001) ECJ Case PreussenElektra AG v Schhleswag AG
263
Case 72/83(1984) ECJ Campus Oil Limited and Others vs. Minister for Industry and Energy for others
264
265
Case C-158/94 ECJ Commission v France C-159/94 and Commission v Italy
266
Preamble (17) Directive 2009/73/EC concerning common rules for the internal market in natural gas; Preamble(20)
Directive 2009/72/EC concerning common rules for the internal market in electricity
267
Footnote 2, p.111
268
Europedia, official website, Electricity and Gas markets available at
269
Cases C-157/94 ECJ Commission of the European Communities v Kingdom of the Netherlands, C-158/94 ECJ
Commission of the European Communities v Italian Republic and C-160/94 ECJ Commission of the European Communities v
Kingdom of Spain
270
Ibid
271
See footnote 264
272
C-483/99 ECJ Commission of the European Communities v French Republic,
273
C-367/98 ECJ Commission of the European Communities v Portuguese Republic

27
acquiring an interest in a strategic national firm. Finally further guidance as to the scope of the right of a
Member State to take measures to guarantee security of supply may be derived from three 1997 cases on
the foot of Article 31EC.274 These cases involved exclusive rights of import or export that resulted in
certain undertakings enjoying monopoly privileges. If these arrangements have been removed in the
2009 directives, remains the possibility to confer forms of exclusive rights at the distribution level, as
long as they are transparent and non-discriminatory.275
More recently in Open Third-Party Access, 276 the German electricity company Citiworks
challenged the monopoly supply arrangements at Leipzig airport by FLH. Citiworks argued that the
German provisions derogating from the principle of open third-party access to energy supply systems
was contrary to EU objectives. Directive 2003/54/EC concerning common rules for the internal market
in electricity leave Member States free to determine in what situations (form and methods) to implement
such system and is silent on the situation where they may derogate from that principle.277 On the
opposite, the German government argued that the airport system was neither a transmissions or
distribution system, but a site network (a private network that supplies the owner of the infrastructure or
identified end-customers). Therefore, it did not affect competition. The ECJ held that the exemption, in
German domestic law, from third-party access requirements for the operators of site networks was not
an authorised exemption within the scope of the 2003/54/EC Directive, since that margin of discretion
does not, however, authorize Member States to depart from that principle except in those cases where
Directive lays down exceptions or derogations.278
Regarding the respect of the EU’s binding laws, the European Commission has the power to
take legal action against any EU country that fails to comply with and can refer them to the ECJ.279To
illustrate the Commission recently sent an additional reasoned opinion to Ireland urging it again to fully
transpose the Electricity Directive of the third energy package, 280 which should have been fully
transposed by the Member States by 3 March 2011. In autumn 2011 the Commission launched
infringement proceedings against 19 Member States for non-transposition of the Third Package
Electricity and Gas Directives.281At the end of 2012 and in the beginning of 2013 a number of Member
States (Poland, Slovenia, Finland, Bulgaria, Estonia, the UK and Romania) were referred to Court.282
To conclude, against a background of major global developments it comes as no surprise that a
‘greening’ of the free movement principles has taken place in recent years, underlining the fact that
certain grounds for justification may be viewed differently over time. It is thus a constant task, when
applying EU law, to reconcile different, sometimes competing goals and to ensure that a balanced,
proportionate approach is taken.283However the EU and the ECJ have in certain cases abated the
Member States’ capacity to guarantee security of supply. The adoption of measures based exclusively
on free movement entails a weakening of the their jurisdictional authority without creating a new
European legal corpus (positive integration).284 However recent cases tend towards the reverse practice.

274
C-157/94 ECJ Commission of the European Communities v Kingdom of the Netherlands; C-347/88 ECJ Commission of the
European Communities v Hellenic Republic; C-393/94 ECJ Municipality of Almelo and others v NV Energiebedrijf Ijsselmij
275
Footnote 264; also see Article 3(6) Directive 209/72/EC and Article 49(8) Directive 2009/73/EC concerning common rules
for the internal market in natural gas (for isolated markets)
276
Case C-439/06 ECJ Energy management proceedings citiworks AG
277
Article 20(1) Directive 2003/54 concerning common rules for the internal market in electricity, in accordance with Article
249 EC
278
279
Article 258 and 260 TFEU see footnote 6
280
European Commission, official website - Enforcing EU energy law, available at
http://ec.europa.eu/energy/infringements/index_en.htm accessed on 24.05.2013
281
Table of infringement procedures open for non-communication of national transposition measures, February 2013
282
See footnote 73
283
284

28
4. STRATEGIES FOR COMPETITIVE SUSTAINABLE AND SECURE ENERGY: THE EU

2020 EFFICIENCY INITIATIVE
Alongside the Green Paper 2000, energy efficiency has also become a milestone of the EU’s
energy security policy. Later in 2005, the Green Paper on Energy Efficiency recognizes that actions on
the demand side are as crucial as supply-side initiatives to pursue the three EU energy policy objectives:
competitiveness, security of supply and environmental protection.285 Further the Energy Policy for
Europe’s Action plan (2007-2009) makes also energy efficiency one of the three pillars of the 2020
policy targets. However, the 2020 efficiency goals are not binding.286
Looking at internal markets, building common structures and information networks for
collective access to energy or developing innovation for low-carbon technologies are examples of
specific policies directed at improving security of supply.
The strengthening of external infrastructure also stresses the need to ensure supply between
different geographical areas based on EU regulatory framework, “as a means of transcending the so far
partial technical cooperation pursued separately with individual partner states”.287
Indeed long-term challenges involve energy policy-making and debate on how to make the
energy system more sustainable, resilient and fulfil rising demand in energy. On the other hand, short-
term challenges are to be addressed facing the current financial situation of Europe but also in regards of
resilience, with feasible diversification, conservation and recovery plans. Long and short-term aspects
are both directly linked to energy efficiency, which law can help to regulate.
 Foreword – Abiding efficient uses of energy: the relevance of sustainable development
As studied in the introduction, sustainable development encompasses both needs and

limitations. The UN Commission on Sustainable Development considered that “the challenge (…) is
how to meet the growing demand for energy while mitigating the impact of energy supply and use on
the environment and this guarantee the long term quality of our habitat”.288
From that assertion, two elements of energy efficiency may be drawn: the need for best
infrastructures and networks, to assist the growing energy demand; and the development of research and
technology to impact on the choice of the energy mix, uses and to facilitate the EU in reaching climate
change targets through low-carbon technologies.
In this regard, the EU is aiming for a 20% cut in Europe's annual primary energy consumption
by 2020.289In the longer term, the 2011 Energy Road Map 2050290commits the EU to reducing GHG
emissions to 80-95% below 1990 levels by 2050. The Commission believes that the well-being of the
EU citizens, competitiveness of EU industries, and the overall functioning of society are dependent on
safe, secure, sustainable and affordable energy. The Energy Roadmap 2050 is considered as the
foundation for developing a long-term European framework together with all stakeholders.291

285
European Commission, 2005, Doing More With Less, Green Paper on Energy Efficiency, Brussels.
286
COM(2006)545 final Action Plan for Energy Efficiency : Realising the Potential
287
Youngs, R, “Europe’s External Energy Policy: Between Geopolitics and the Market”, (2007) CEPS Working Document No
278, Available at SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1337975
288
UN Commission on Sustainable Development, available at ?
289
Europa, official website- energy efficiency, available at http://ec.europa.eu/energy/efficiency/index_en.htm accessed on
04.04.2013
290
Communication ‘Energy Roadmap 2050’ 2011/885
http://ec.europa.eu/energy/energy2020/roadmap/doc/com_2011_8852_en.pdf
291
COM(2011) 885/2

29
4.1 Energy efficiency and infrastructure
Energy policies may be of critical importance in improving security of supply as ad hoc policies
directed specifically at efficiency objectives. Deciding on a mechanism for collective access to security
reserves, building new grid connections and creating an information network are directed at improving
security of supply through efficiency. Moreover energy efficiency increases the flexibility of the whole
energy chain and services and thereby provides an additional margin for security.292
Yet as Engenhofer noted, the strong projected growth of energy demand in developing and
transition countries is expected to level-off any possible energy efficiency improvement in the EU, both
from a security of supply and a CO2 emissions perspective.293For this reason, a proactive cooperation
between the EU and key third countries is necessary. The International Framework agreement on
Energy Efficiency could be a first step in this direction.294The proposal was endorsed by the European
Council on 8 March 2007295 to develop a multilateral partnership for energy efficiency involving, at first,
member countries of the OECD with a possible future enlargement to other partners. The development
of external relations through projects such as Desertec may assist the EU in this course.296
However as none of the energy policy objectives can be reached without adequate grid
connections, the Commission has also proposed a 2011 Regulation on Trans-European Energy
Infrastructure Guidelines.297 It addresses infrastructure challenges to ensure true interconnection in the
internal market, integration of energy from variable renewable sources and enhanced security of supply.
In this respect, the 2009 electricity and gas package directives studied above already provide better
network and generate capacity as well as enhance collective cooperation mechanisms through
transparency and regulated access to the grids.
With regard of enhancing resilience of the energy system it is crucial to introduce a scheme for
the effective recovery of energy losses from electricity and industrial production.298In the context of the
financial and energy crises which affected the European economy in 2008, targeted measures have been
adopted in 2009, through the European Energy Programme for Recovery (EEPR), introducing a
Regulation granting financial assistance to the Community to projects in the field of energy (59 so
far).299 These projects cover three broad fields: 44 gas and electricity infrastructure projects optimising
or developing the capacity and integration of networks and securing diverse and reliable energy
sources;300 9 offshore wind projects with innovative features, contributing to the improvement of current
infrastructures;301and 6 CCS projects demonstrating an ability to capture at least 80 % of CO2 in
industrial installations.302This Regulation also establishes a financial instrument,303the aim of which is to
support initiatives related to energy efficiency and renewable energy, participating indeed to making
energy supplies more reliable and help reducing GHG emissions, while boosting Europe’s economic
recovery.
At the heart of the EU energy efficiency initiatives also lies the Energy Efficiency Action Plan
(EEAP) presented by the European Commission in 2011,304 which aims at controlling and reducing
energy demand to save 20% of annual energy consumption of primary energy by 2020. In an effort to
address the economic potential of unrealised energy savings, the Commission proposed to member

292
Egenhofer, C. and T. Legge (2001), Security of Energy Supply, A Question for Policy or the Markets?CEPS
293
Ibid
294
United Nations Foundation, Improving Energy Efficiency, available at http://www.unfoundation.org/what-we-
do/issues/energy-and-climate/improving-energy-efficiency.html accessed on 24.02.2013
295
European Council (2007), Presidency Conclusions, Brussels, 2 May, 72241/1/07 REV 1 Concl 1 ; also see A. Behrens, C.
Egenhofer, Energy Policy for Europe- Identifying the European Added-Value CEPS Task Force Report (2008), p.10
296
Desertec Foundation, information available at http://www.desertec.org
297
COM/2011/658 final Proposal for a Regulation on guidelines for trans-European energy infrastructure
298
Directive 2004/8/EC on the promotion of cogeneration based on a useful heat demand in the internal energy market
299
Regulation 663/2009 establishing a programme to aid economic recovery by granting Community financial assistance to
projects in the field of energy
300
Ibid, Annex I,A for eligibility criteria
301
Ibid I, B
302
Ibid, I,C
303
Ibid, detailed in Annex II
304
COM (2011)109, Energy Efficiency Plan 2011

30
Member States to adopt an overall national indicative energy savings target of 9% by 2016.305 This
target, which translates into savings of at least 1% of energy each year (starting from 2008), will be
reached thanks to energy services and infrastructure measures,306 and must comply with the requirements
of the Directive on the emission allowance trading scheme 307 and the Directive on industrial
emissions.308 However the Commission’s assessment for the Energy Efficiency Plan showed that with
the policies and measures then in place, the EU was on track to achieve only about half of its 20%
energy efficiency target for 2020.309
Based on these elements, the EU launched the Energy Efficiency Directive,310which establishes
a common framework of measures for the promotion of energy efficiency within the Union in order to
ensure the achievement of the Union’s 2020 20 % headline target on energy efficiency and to pave the
way for further energy efficiency improvements beyond that date.311 It lays down rules designed to
remove barriers in the energy market and overcome market failures that impede efficiency in the supply
and use of energy, and provides for the establishment of indicative national energy efficiency targets for
2020.312 First the Directive aims at using the visibility of public buildings and the power of public
spending to drive market transformation and promote innovative financing, for renovation of the
buildings owned by public bodies 313 and on public purchasing. 314 Second it ensures that new or
strengthened policy tools triggering energy savings among final consumers are established through
energy efficiency obligation schemes.315Third it arranges energy audits to provide information and
trigger action mainly in large companies,316and gives consumers the tools they need to choose more
efficient energy use through access to transparent information. 317 About cogeneration the directive
promotes sustainable energy transformation solution whose share in electricity generation has remained
unchanged since 2004.318 Finally it aims at increasing efficiency from the management of energy
infrastructure. 319 Yet the Commission Services have already carried out a preliminary, desk-based
analysis of the impact of the text of the Directive as it appears in the Council version of 4 April
2012.320 This analysis is the bed for further developments; indeed it questions the scope of article 4,
reduced to buildings owned and occupied by central government; moreover behavioural savings as well
as building renovation should be counted. Article 5 is essentially non-binding (“shall encourage” rather
than “shall”) and only applies to the largest contracts (above €130 000). Article 6 (energy efficiency
obligations) is considered to have low ambitions in regards to targets and article 10 on cogeneration has
also become an obligation to carry out cost benefit analysis rather than an obligation, in appropriate
circumstances, to develop cogeneration.
To conclude, the Energy Action Plan and in the same line the Energy Efficiency Directive
constitute apparent attempts to regulate uses of energy in the EU, firstly through the implementation of
saving measures, but also through the choice of infrastructure investment that may determine such uses
even further. Indeed policies regarding energy supply and diversification in the EU have clearly been
oriented towards an increased network capacity for gas and electricity, but also with regard to
renewables. Increasing energy efficiency in such sectors directly affects their potential in the EU energy
share.

305
Commission Staff Working Paper, National Energy Efficiency Action Plans: COM(2011) 109 final, SEC/2011/0276 final
306
Ibid
307
Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community
308
Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control)
309
Commission Staff Working Document Impact Assessment SEC/2011/0277 final,
310
Directive 2012/27/EU on energy efficiency
311
Ibid Article 1(1)
312
Ibid Article 1(2)
313
Ibid Article 4
314
Ibid Article 5
315
Ibid Article 6
316
Ibid Article 7
317
Ibid Article 8
318
Ibid Article 10
319
Ibid Article 12
320
Non-paper of the services of the European Commission of Energy Efficiency Directive, 2012

31
4.2 Technology policy for efficient and diverse energy: towards low carbon- technologies and
energy saving:
If infrastructure and network policies deliver greater energy efficiency, it would be misleading
to only focus on them, as energy supply is also affected by other public policies such as environmental
and climate change challenges and technical and innovation initiatives. The more energy is saved, the
more adequate will be the existing storage capacity as well as the margins of installed capacity over
demand, and the lower will be the import dependence; reducing the addiction of the economy to energy
is the most obvious way to reduce dependence on imports and the concomitant risk of supply security.321
As reminded by the IEA in 2011, fossil fuels remain dominant and demand continues to grow,
locking in high-carbon infrastructure. 322 In its ‘Energy Technology Perspective 2012’ 323 The EIA
demonstrates how energy efficiency and accelerated deployment of low-carbon technologies can help
cut government expenditure, reduce energy import dependency and lower emissions. Hence
technologies can and must play an integral role in transforming the energy system. Thus the investments
made today will determine the energy system that is in place in 2050; therefore, the lack of progress in
clean energy is alarming.324
At the EU level, the 2007 Strategic Energy Technology Plan (SET-plan) 325 constitutes a
technology pillar of EU’s energy and climate policy,326by establishing a technology policy for Europe. It
aims at accelerating knowledge development, technology transfer and up-take, maintaining EU
industrial leadership on low-carbon energy technologies, drawing on science to achieve the 2020 Energy
and Climate Change goals and contributing to worldwide transition to a low carbon economy by
2050.327 The SET-Plan has two major timelines: 2020 to accelerate the development and deployment of
cost-effective low carbon technologies; 2050 to contribute to limiting climate change to a global
temperature rise of 2°C, by reducing EU GHG emissions by 80-95%, lower the cost of low-carbon
energy and put the EU’s energy industry at the forefront of the rapidly growing low-carbon energy
technology sector.328
Building on the SET-plan, and in regards of the technological development of renewable
energy, the 2009/28/EC RES Directive329 allows Member States to operate support schemes and apply
measures of cooperation.330 Based on national renewable energy action plans, the support systems put in
place by Member States and the continuous investment in R&D, Europe's renewable energy sector has
developed much faster than foreseen at the time of drafting the Directive. Indeed renewable energy
producers are becoming significant players in the energy market.331
Moreover in a Communication projected for 2013, the Commission will provide information as
to energy technology and innovation policy, intending to give a European energy technology policy
perspective in the follow-up to the Energy Roadmap 2050.332
According to the IEA, nine out of ten technologies that hold potential for energy and CO2
emissions savings are failing to meet the deployment objectives needed to achieve the necessary
transition to a low-carbon future. Some of the technologies with the largest potential are showing the
least progress. Low-carbon electricity is at the core of a sustainable energy system, having benefits
beyond the electricity sector: indeed it can also enable deep reductions of CO2 emissions in the

321
Rainer Bruderle, “The best energy is the energy we don’t consume”, May-June 2011, p10-11
322
EIA Energy Technology Perspectives 2012, p.12
323
Ibid
324
EIA, The World Energy Outlook 2011, p.67
325
COM92007)723 - A European strategic energy technology plan (SET-plan) - 'Towards a low carbon future'
326
Ibid
327
COM(2007)723; Europa, SET Plan, available at
http://europa.eu/legislation_summaries/energy/european_energy_policy/l27079_en.htm accessed on 24.04.2013
328
Ibid
329
Directive 2009/28/EC Article 1
330
Ibid Articles 3, 6 to 9
331
COM(2012) 271 Renewable Energy: a major player in the European energy market
332
Report of the public consultation on the communication on energy technology and innovation, April 2013

32
industry, transport and buildings sectors.333In its technology report 2012, the IEA examined that the lack
of progress in CCS technology is critical, as it could account for up to 20% of cumulative CO2
reductions by 2050.334
The IEA in 2012 reflects on the credible orientation of energy efficiency policies and
technologies that must interact, be developed and deployed together, with credible and transparent
targets for investors. A low-carbon energy system featuring more diverse energy sources also means
that the new system must be more integrated and complex, and will rely more heavily on distributed
generation. So far EU policies are constructing in this direction, but such policies underpinning the
targets must adequately address and alleviate the financial risks associated with new
technologies.335 Indeed real-world examples demonstrate that decisive policy action is a catalyst for
progress. The success of some renewable energy technologies provides evidence that new, emerging
technologies can break into and successfully compete in the market place. Solar PV has averaged 42%
annual growth globally over the last decade; onshore wind has averaged 27%.336
To conclude, notwithstanding the Commission’s attention to energy efficiency, it will most
likely improve less than expected, for a number of reasons. First of all, while the 2020 targets for the
reduction of CO2 emissions and the increase in renewable energy production are binding, the energy
efficiency target is not.337Moreover since the directives aimed at promoting energy saving do not always
capture the full energy efficiency potential, the non-binding nature of the energy efficiency target raises
concerns about whether it will eventually be met.338Moreover smarter networks can reduce user demand
at short notice, as well as diversity in power generation can do much to improve short-term and long-
term security of supply. However, it must be remembered that a more energy-efficient system may be
less flexible: in case of emergency there will be fewer types of inefficient consumption that can be
curtailed. 339 Accordingly, a Commission’s study on future Scenarios on Energy Efficiency and
Renewables reports that, even assuming the full application of the existing EU directives on energy
efficiency, in 2030, Europe’s import dependency will be higher than in 2000, i.e. 65.5% vis-à-vis
47.2%. 340 Consequently, other energy supply measures need to be considered, such as energy
diversification, in particular looking at renewables.

333
EIA Energy Technology Perspectives 2012, p.3
334
Ibid p.4
335
Ibid
336
Ibid p.5
337
Bart Wesselink, Robert Harmsen, Wolfgang Eichhammer, Ecofys, Energy Savings 2020, How to triple the impact of energy
saving policies in Europe, 2010
338
IEA (2008), The European Union, Energy Policies Review, OECD/IEA, Paris.
339
Jean-Michel Glachant, CESSA Policy Brief on EU Energy Security of supply, 2008
340
European Commission, European Energy and Transport, Scenarios on Energy Efficiency and Renewables, 2006

33
5. IMPROVING ENERGY OF SUPPLY THROUGH DIVERSIFICATION OF SOURCES:
While efforts to develop a coherent external energy policy remain a priority for the EU,
broadening indigenous supply could also mitigate EU’s dependence on fossil fuel’s few suppliers.
However the mix of energy supply in Members States is still largely determined by national
governments or energy companies and varies widely, influenced by factors ranging from resource cost,
availability to legislative or political factors.341
Nonetheless, EU and international agreements to reduce GHG and carbon emissions
increasingly influence decisions regarding national energy mix. Under the 1997 Kyoto Protocol, the EU
was obligated to reduce its carbon emissions by 8% of 1990 levels by 2012.342 In order to achieve this
collective target, Member States have agreed to individual National Renewable Energy Action Plans
that make the bridge between ambition and reality. Member states are expected to take a similar
approach to realizing the EU’s most imminent target of reducing emissions by 20% of 1990 levels by
2020.343
Specifically the EU has taken steps to increase Europe energy diversification and production,
however binding the EU community up to 2020. Renewables are also believed to contribute to security
of supply due to their domestic availability, and production solutions are adaptable to each Member
States. Legal pathways are currently being drawn on the post-2020 period, alongside with the
development of new technologies and the opening of new markets.
Indeed the larger the extension of energy markets, the more they are able to absorb disruptions
because more resources are available for supply. Besides this short-term resilience effect through
improvement of supply reliability, wider markets also provide more diversity of primary fuel sources,
and therefore ensure a better long-term resilience in security of supply.344
5.1 Promoting indigenous energy supplies: the EU 2020 Energy Goals insufficient
In January 2008, the Commission launched a series of coherent, comprehensive measures part
of the « energy and climate change » package, to achieve objectives for 2020 in respect of climate
change and renewable energies. It emphasized the need for a 20% reduction in EU GHG emissions from
1990 levels and a rise of 20% of EU share of energy consumption produced from renewable sources,345
necessary to keep the average global temperature rise below 2 degrees Celsius, above which climate
change is thought to be unmanageable.346
The 2050 Roadmap347also clarifies that global GHG emissions must decrease by 80% until
2050. The current energy mix of the EU-27, however, is still largely characterised by carbon-intensive
fossil fuels that made up 79% of Gross Inland Consumption in 2005.348 Policy efforts have so far been
concentrated on ‘clean coal’ technologies, nuclear energy safety and the increase in renewable energy
share.
5.1.1 The paradox of coal production: legal prospects assisted by R&D
On the global scale, coal is currently the fastest-growing fossil energy carrier with an expected
73% increase between 2005 and 2030, and indeed continues to be the second most important fossil fuel,
slowly closing the gap with oil.349 In Europe however, while demand is expected to remain roughly

341
The European Union’s Energy Security Challenges, Paul Belkin. January 30, 2008, p.20-21
342
Kyoto Protocol article 3(1)
343
Directive 2009/28/EC RES Directive; COM(2010) 2020 final, Europe 2020: A strategy for smart, sustainable and inclusive
growth, l p.11
344
Jean-Michel Glachant, CESSA Policy Brief on EU Energy Security of supply, 2008
345
COM/2008/0030, 20 20 by 2020 - Europe's climate change opportunity
346
COM(2007) 2 final Limiting global climate change to 2° C – The way ahead for 2020 and beyond
347
Roadmap 2050, A practical guide to prosperous low-carbon Europe, p.3
348
, COM(2008)13 final, Supporting Early Demonstration of Sustainable Power Generation from Fossil Fuels
349
IEA(2007), World Energy Outlook 2007, OECD/IEA, Paris

34
constant up to 2030,350the volume of domestic production is expected to decrease, making the EU ever
more dependent on imports.351The Commission figures suggest352that the coal market is thus more
regionally diversified and open than natural gas imports, imports not being dominated by a single
supplier such as OPEC,353and proven reserves being supposedly sufficient for another 133 years at the
current global rate of production.354 Finally, coal is relatively safe to transport and store. All these factors
contribute to the assessment that EU’s import dependency does not pose an elevated risk to its
uninterrupted supply of coal in the long-term.
However, there may be some risks in the short-run. Indeed the global coal market remains
vulnerable to temporary supply disruptions, has confirmed in early 2008, when disruptions in three of
the five major exporting countries led to record global coal prices.355There are also environmental risks
associated with the extraction and combustion of coal, responsible for large amounts of soil erosion,
water pollution, impacts on local biodiversity and the release of large amounts of methane, a GHG.356
Many of these effects can be kept to a minimum with modern mine management methods, posing only a
limited direct threat to the EU in the future.357 However, they need to be taken into consideration
reflecting the long-term responsibilities associated with European coal consumption but also the
technological infrastructures of exporting coal countries which may not reach EU’s environmental
safety standards.
A far greater long-run risk is climate change. Indeed, the use of coal in electricity production
causes far more GHG emissions than the use of any other energy carrier.358 To put this into perspective,
with 28% in 2008 coal was the second largest source of electricity generation in the EU, just behind
nuclear.359 In view of EU’s ambitious energy and climate change targets, clean coal technologies must be
developed quickly.
A 2008 Commission’s communication 360 identifies the possibility for sustainable energy
production from fossils and the provision of a legal framework for CCS technology,361 with a view of
increasing research and development with projects applicable in the coming ten to fifteen years. The EU
in 2013 has also stressed that in this respect carbon capture and geological storage may constitute
significant and efficient options for eliminating harmful gas emissions. 362
For Checchi, Behrens and Egenhofer, the success of the CCS technology will largely depend on
the EU-ETS and the price of CO2 as well as the speed of adopting a secure EU legal framework.363
Under the SET plan, the CCS Directive provides a comprehensive legal framework for this
technology364 and for environmentally safe geological storage and associated capture and transport
activities, contributing to tackling climate change.365The Directive applies to the geological storage of
CO2 within the territory of the Member States, their EEZ and continental shelves,366storage beyond, or
in a water column not being permitted.367 This is consistent with requirements under the London368and

350
Ibid
351
IEA(2008), The European Union, Policies Review ; see also European Commission, Coal Market Outlook, 2005; Coal: a
Clean Source for the Future? Euractiv.com, June 2006
352
COM(2008)13 final Supporting Early Demonstration of Sustainable Power Generation from Fossil Fuels
353
Approach, 2009, p.25
354
BP (2008), BP Statistical Review of World Energy, BP, London
355
See footnote 345
356
357
World Coal Institute website, Environmental Impacts of Coal Mining
358
Ibid footnote 351
359
See footnote 348
360
COM(2008)18 final on the geological storage of carbon dioxide
361
COM(2206)843, Sustainable Power Generation from Fossil Fuels: Aiming for Near-Zero Emissions from Coal after 2020
362
COM/2013/0169 final, Green Paper :A 2030 framework for climate and energy policies,
363
Ibid footnote 348, p26
364
Directive 2009/ 31/EC on the geological storage of carbon dioxide
365
Ibid Article 1(1)
366
Ibid Article 2(1)
367
Ibid Article 1(3)(4)
368
London Convention on the prevention of Marine pollution by dumping of wastes and other matter, 1972, Article 4 available

35
OSPAR Convention 369 that injection of CO2 in offshore areas must be into a sub-soil geological
formation, to avoid dumping or leakage. Member States also retain the right to determine which areas
may be selected for storage sites,370under the condition that there is no significant risk of leakage and no
significant environmental or health risks existing.371
Moreover use of storage sites is controlled and relies on the delivery of a 5 to 10 year-long
permit,372applications being sent to the competent authority of each Member State with determinant
information.373The authority verifies that the information provided match with the requirements of other
EU legislation,374may also organize routine inspections375 and may withdraw storage permits in case of
leakages, irregularities, non-compliance, on the bottom of scientific and technological findings or
progress.376
To conclude, the CCS Directive offers strong guarantees and check-ups on the environmental
impact of storage sites. This regulatory initiative also strengthens the need for emission performance
technologies, accordingly to the 2020 and longer-term 2050 targets, as market mechanisms have so far
not delivered decarbonisation.377However for Stephen Tindale, regulations could have gone further, by
setting a cap on the amount of GHG permitted per unit of electricity generated and thus blocking the
construction of new coal power stations without CCS (known as emissions performance standard).378
Under current technological conditions, CCS processes can capture around 85% of the CO2 emitted, but
these processes reduce efficiency of plants,379 increasing the need for coal inputs. 380 Moreover according
to the EIA long-term liability and risk-management procedure for stored CO2381may also be an issue,
although the directive establishes transfers of responsibility.382If the directive also presents financial
mechanisms with estimation of the costs,383 CCS viability384 may still be questioned, its high cost
potentially hindering its competitiveness compared to other technologies. 385 Moreover there exist
technical issues related to the isolation of reservoirs and the potential long-term leakage of CO2.386 In
this regard public awareness and acceptability are important factors, partially covered by the directive
giving transparent information to the public.387
For Fulvio Conti, Chief Executive Officer ENEL,388energy R&D should be refocused and
receive priority in EU budget to be devoted to highest carbon reductions. Likewise, the Emissions
Trading Scheme, together with the implementation of consistent policies to accelerate the development
of the most promising low-carbon technology are the enablers to meet emissions reduction targets.389

at http://www.gc.noaa.gov/documents/gcil_lc.pdf
369
OSPAR Convention for the protection of the marine environment of the North-East Atlantic, 1992, 1992, Annex II, Article
3, Preamble (19), available at http://www.ospar.org/html_documents/ospar/html/ospar_convention_e_updated_text_2007.pdf
370
Directive 2009/31/EC on the geological storage of carbon dioxide Article 4(1)
371
Ibid Article 4(3)
372
Ibid Article 6 and 11(e)
373
Ibid Article 7
374
Ibid Article 11(3)
375
Ibid Article 15
376
Ibid Article 16
377
Stephen Tindale, How to expand renewable energy after 2020, Center of European Reform, 2012, p.3
378
Ibid
379
International Energy Agency (2008), The European Union, Energy Policies Review
380
The Global Status of CCS 2010, legal and regulatory developments
381
International Energy Agency, CCS and Regulatory Review
382
383
Ibid Article 20
384
International Energy Agency, Clean Coal Centre; Coal in an Enlarged European Union; 2004
385
H. Holger Rogner, M. Howells, Energy Security and Carbon Capture and Storage, Working Paper Series, Royal Institute of
Technology KTH, 2012 p.9
386
Ibid p.6
387
388
Fulvio Conti, Electricity: Facing the challenge of the right mix, p. 34-35, 2011
389
Ibid

36
5.1.2 Regulatory energy security implications of nuclear energy: safety and cost-effective low-
carbon technologies
Nuclear power plants are cleaner than conventional fossil fuel power plants and could represent
an interesting share in EU energy mix. Energy policies of EU members vary significantly as of January
2010, 14 out of 27 countries have nuclear reactors,390 France having 58 nuclear power plants in
operation by January 2013, Slovenia one. 391Indeed nuclear energy does not however belong to the
competence of the EU, members choosing their own energy mix.392 So far, regulations have focused on
long-term safety measures, transparency and more recently on potential low-carbon technologies as well
as the implementation of stress tests to assess resilience of the system.
When Members States opt for the use of nuclear power, they should then strictly comply with
the high level of nuclear safety priorities set by the 1957 EURATOM Treaty,393 the legal basis for the
majority of nuclear activities. Nuclear facilities must be decommissioned in accordance with agreed safe
and environmentally sound practice at the end of their operating lives, and high standards are required in
the transport of radioactive materials. 394 The accidents of the past, in particular with the recent
Fukushima Daiichi accident in Japan, have shown that it is indispensable to raise the technological,
organizational and regulatory conditions for energy security. It is also indispensable to provide accurate
and transparent information to the public.395 Currently, the nuclear industry is still supplying 1/3 of the
EU's electricity.396
In case of a radiological emergency, the EU will trigger its ECURIE alert system,397which
immediately notifies all national authorities of an impending nuclear hazard. In the light of Fukushima’s
accident, the European Commission is finally now proposing a stress test398for all nuclear power plants
in Europe, to prove if nuclear fleet can withstand shocks and assess indeed its resilience.399Tests are also
proposed for countries near the EU that make use of nuclear power.400
The Commission's SET plan401for the acceleration of the development and deployment of cost-
effective low carbon technologies also mentions the "sustainable nuclear initiative" 402 to develop
Generation IV reactors as one of the research priorities of the EU. One promising alternative may be
found in the International Thermonuclear Experimental Reactor (ITER) program. The EU has joined the
United States and several other nations in an effort to produce electrical power from nuclear fusion that
unlike current nuclear power does not generate dangerous waste. The first facility will be constructed in
France but initial results are not expected for at least 15-20 years.403
Practically deployment of nuclear capacity and electricity from nuclear power plants has been
largely flat over the last years. Given the nuclear policy reviews following the recent major incident at
Fukushima, such as Germany that has permanently shut down eight of its reactors and pledged to close
the rest by 2022,404 or Switzerland and Spain that have banned the construction of new reactors,405it is
uncertain to predict the legal prospect in the upcoming years. To conclude there is no common approach

390
International Atomic Energy Agency, Power reactor systems, 2010
391
European Nuclear Society, Nuclear power plants in Europe, 2013
392
COM/2006/0105 final Green Paper 2006- A European Strategy for Sustainable, Competitive and Secure Energy, 2.3,
393
European Commission, Nuclear energy, the EURATOM Treaty
394
Ibid Article 24,25,37, 79
395
Public Acceptance and Participation in Decision Making, Chapter 5 available at
http://www.kntc.re.kr/openlec/policy/part1/part1_chapter5.htm
396
European Commission, Market Observatory for Energy, Key figures,June 2011
397
Council Decision 87/600/Euratom on Community arrangements for the early notification and exchange of information in the
event of a radiological or nuclear emergency, Article 1
398
Technical summary on the implementation of comprehensive risk and safety assessments of nuclear power plants in the
European Union, SWD(2012) 287 final, 2012, p7-8
399
European Parliament, Nuclear safety in the EU, 2011
400
Ibid
401
COM(2007)723 "A European strategic energy technology plan (SET Plan) - Towards a low carbon future"
402
Ibid
403
COM(2010) 226 final, ITER status and possible way forward
404
Annika Breidthardt, German government wants nuclear exit by 2022 at the latest, 2011
405
Henry Sokolski, Nuclear Power goes rogue, 2011

37
about the use of nuclear power: nuclear security is mainly confined within the priorities set for nuclear
waste and decommissioning. In regards of the need for diversification of energy sources and the
uncertainty concerning ‘clean coal’ and nuclear prospect, the EU has rather oriented its policy towards
renewables resources.
5.1.3 An orientation towards renewables sources up to 2020: the RES Directive
In recent years the EU has introduced a range of programmes and policies designed to
accelerate and ensure the development and use of renewable energy. Renewables include wind, solar,
hydro-electric and tidal power as well as geothermal energy and biomass. In 2011, energy from
renewable sources was estimated to have contributed 13.0% of gross final energy consumption in the
EU27, compared with 7.9% in 2004.406
The high priority placed on renewables was primarily recognised through their potential to
achieve several long-term benefits-, including decreasing climate-damaging fossil fuel dependency and
improving energy security. Renewables indeed present structural and technical advantages, for instance
scarcity not being a concern for many renewables sources (solar, geothermal sources) unlike fossil fuels
and uranium, adding to security of energy supply viewpoint in the long and short run.407 Second,
regarding energy efficiency and reliability, renewable energy technologies are flexible in scale and type
of use. For example electricity or heat supplied using renewable energy is less prone to fuel fluctuations
than in the case of fossil fuel plants.408Finally increasing renewables share can improve energy prospects
for rural and isolated regions.409
Today, environmental concerns, and this sector’s suitability in energy diversification debate are
added to the energy security perspective. 410 Indeed, without impeding sustainability (for most
renewables), prioritising renewable energy expansion certainly enables the EU to encourage GHG
emissions cut-down.411
The 2006 Renewable Energy roadmap,412 including a binding target of 20% renewable energy
share in total energy consumption to reach by 2020, with 10% for transport, confirms the EU Member
States ambition to generate a significant share of their energy supply with renewable energy
sources.413As part of the “Energy and Climate” package, this target was later consigned in the RES
Directive, 414 establishing a common framework for the production and promotion of energy from
renewables sources and mandating Member States to produce a pre-agreed specific quota, (at least 5.5
per cent of its energy) based on the Member States' different starting points, renewable energy potential
and economic performance.415
Why set up targets? As energy is the fuel of Europe´s economic engine, the law is far from
being the only source for governance. Europe's demand for energy is increasing in an environment of
high and unstable energy prices, hence economical tools are a primary factor to look at. Renewables
also still not as cheap as fossil fuels, and the price of carbon created by the ETS is not yet enough to
make renewables sufficiently attractive by 2020. Hence targets in energy policy are vital, because it
allows to give long-term certainty to investors.416

406
Eurostat, News Release, Renewable energy- 2013
407
IEA, Contribution of Renewables to Energy Security 2007
408
Egenhofer, C. and J. Jansen (2006), “A Timetable for harmonisation of support schemes for renewable electricity in the
EU”, European Review on Energy Markets, Vol. 1, No. 2, p. 57-83.
409
Jansen, J., K. Gialoglou and C. Egenhofer (2005), Market Stimulation of Renewable Electricity in the EU. What Degree of
harmonization of Support Mechanisms is Required?, CEPS Task Force Report
410
Claire Dupont, Institute for European Studies, Policy Brief, EU 2020 Goals are Insufficient, p.1, 2012
411
Ibid
412
COM(2006) 848 Renewable Energy Road Map Renewable energies in the 21st century: building a more sustainable future
413
Market observatory for Energy, Europe’s energy position: market and supply, p.69, 2010
414
Directive 2009/28/EC on the promotion of the use of energy from renewable sources
415
Directive 2009/28/EC Annex I
416
Stephen Tindale, December How to expand renewable energy after 2020, 2012, p.2

38
The RES Directive also includes arrangements to encourage the trading of renewable energy
between Member States, and between Member States and countries outside the EU.417For instance, the
renewable energy produced in one Member State can count towards the target of another.418During the
negotiations prior to its adoption, some environmental groups campaigned against this concept, arguing
that targets should count energy produced in the country to which the target applies, because it could
help speeding up the energy system transformation.419However, one can argue that from a climate
change point of view, little matters where renewable production is located. In practice the RES
cooperative arrangements have not been widely used and receives little support from the EU organs to
promote it. According to the Commission, only Luxembourg and Italy indicated an intention to use the
cooperation mechanisms to meet their 2020 renewable targets. 420 To overcome this difficulty, the
Commission has drawn guidelines to facilitate cross-border trade with renewable energy. More
convergence, including common joint support schemes, would lead to cost reductions as well as be
more consistent with the single market.421
In June 2012, the Commission committed itself to driving forward the integration of renewable
energy in the internal market and addressing incentives for electricity generation investment.422 It also
intends to prepare guidance on best practice for cost effective and consistent renewable energy support
schemes, to provide further guidance for the use of cooperation mechanisms to achieve renewable
energy targets at lower cost and to work on improved regulatory framework for energy cooperation with
third countries.
Moreover the RES directive requires NREAP,423establishing pathways for the development of
renewable sources (including bioenergy). These must take into account the effects of other energy
efficiency measures on final energy consumption (the higher the reduction in energy consumption, the
less energy from renewable sources will be required to meet the target). They also establish procedures
for the reform of planning and pricing schemes and access to electricity networks promoting energy
from renewable sources.424 Hence the RES directive creates cooperation mechanisms towards reaching
EU’s targets cost effectively. In addition it establishes measures to remove administrative barriers,
accelerate authorisation procedures and reinforce renewable energy integration into the energy system
with a better exploitation of biomass resources in particular.425Finally Member States should build the
necessary infrastructures for energy from renewable sources in the transport sector.426
The European Commission plays an important role in ensuring that Member States fully stay on
track with their indicative trajectories an their 2020 targets, evaluating their NREAPs, notably the
adequacy of the measures in relation to reaching the 2020 targets, and may issue a recommendation in
response to a NREAP.427Member States which would not have met their indicative target have also to
submit an amended national action plan to the Commission by 30 June of the following year, setting up
measures to re-join the indicative trajectory.428Finally infringement proceedings before the ECJ can be
launched from 2010 onwards for failure to implement all aspects of the directive, producing a credible
national action plan, having deviated significantly from a trajectory or for valid complaints from any EU
citizen regarding incorrect implementation or enforcement by Member States.429
To conclude, The EU forecasts to surpass its 20% target if Member States fully implement their
national renewable energy action plans and if financing instruments are improved.430In addition the

417
Directive 2009/28/EC Article 6 to 12
418
Ibid Article 6(1)
419
Footnote 411
420
COM(2012)271
421
Ibid
422
COM(2012)271
423
424
Ibid Article 11
425
Ibid Article 13
426
Ibid Article 16
427
Ibid Article 4(5)
428
Ibid Article 4(4)
429
Ibid Article 27
430
COM(2013)175 final, 2013

39
cooperation mechanisms put into place by the RES were mostly not used to achieve the 2020 goals.431
Hence one may argue that the 2020 targets could have been more ambitious. Claire Dupont refutes the
arguments that have outlined the fact that such an assessment cannot take into consideration current
high investment costs for renewable. According to her, the extreme urgency of the climate problem, and
the fact that GHG emissions ought to peak between 2015 and 2020 and then decrease if we are to
achieve the 2°C target, supports the idea of taking more action now in preparation for the future.432Still,
the RES directive constitutes a sound basement for a sustainable energy future for the EU.433
5.2 Going beyond the 2020 targets for renewable energy:
Since the direction towards energy diversification has been emphasized on renewable resources,
and from the assumptions made previously, it is interesting to look at potential pathways EU policies
could take in the long-run. Moreover, the EU has clearly associated the increase in renewable share with
its climate targets throughout its policies. In this respect, all renewables are not all the same in regards
of their environmental impact, and some may be preferred in the way towards diversification. Three
specific areas will be discussed more thoroughly: the expansion of biofuels, the cooperation between
Member states and the existing plans for providing significant parts of renewable electricity from
external EU supplies.
5.2.1 Possible scenarios and impact assessment
Under the RES Directive, the Commission is not supposed to make proposals for the post-2020
period until 2018.434 Currently, apart from Denmark, which made the ambitious and progressive target
and obtaining 100 per cent of its energy from renewables by 2050,435 there is no common commitment
that the EU will be moving to a totally renewable-based economy.
More alarming, there is no definite objective at all beyond 2020: from a climate change
perspective, goals are only set up to 2028436with a modest annual reduction in the cap on carbon
emissions in the ETS (1.74 per cent each year from 2021), the cap-and-trade system for GHG, as well as
an aspirational non-binding 2050 target for an 80-95 per cent reduction in GHG emissions.437
This Energy Roadmap 2050, looking at cost-efficient ways to make the European economy
more climate-friendly and less energy-consuming,438suggests that renewable energies will probably
make up the largest share in energy supply.439 If, however, current policy initiatives are not adequate to
achieve EU long-term energy and climate policy objectives, as the 2050 Roadmap suggests, renewable
energy annual growth would slump from 6% to 1%.440 Indeed it is crucial to consider diverse policy
options for concrete 2030 milestones.
These options are: first a decarbonisation without renewable energy targets option, relying on
the carbon market and a revised ETS; the continuation of the current regime, with binding renewable
energy, emissions reductions and energy efficiency targets; or a more harmonised and cooperative
management of the EU whole energy sector with an EU renewable energy target.441
In its 2012 Communication on Renewable Energy, the Commission did not express any

431
European Renewable Energy Council, EU Roadmap, Mapping Renewable Energy Pathways towards 2020, 2011 p.12
432
Claire Dupont, Institute for European Studies, Policy Brief, EU 2020 Goals are Insufficient, p.2 2012
433
Footnote 426, p.24
434
Directive 2009/28/EC Article 23(9)9
435
Footnote 426, p.40
436
European Commission, Climate action, Auctioning (2013)
437
Capital Carbon Credits, EU ETS backloading plan buys for phase IV battle
438
COM/2011/0112 final, Roadmap for moving to a low-carbon economy in 2050
439
Ibid Energy
440
COM/2012/0271 final « Renewable Energy : a major player in the European energy market »
441
Ecofys, EU policy options for climate and energy beyond 2020, 2013

40
preferences for a certain option.442It also states that specific 2030 renewables milestones can only be
designed after reflection on the state of post-2020 climate policy, the degree of competition in Europe's
electricity, heating and cooling and transport fuel markets, and the degree of energy diversity and
technology innovation expected by 2020.443
To boost economic opportunities, increase the internal integration of renewables and maintain
substantial trade, the Commission also discourages polices that hinder investments in renewables, in
particular by phasing out fossil fuel subsides, promoting a well-functioning carbon market and properly
designed energy taxes.444For instance, photovoltaic systems and onshore wind production are expected
to be competitive in several EU markets by 2020.445
Whatever form the post 2020 renewable energy milestones take, they shall ensure effective
support where necessary and maintain EU’s research and industrial leadership, to continue to develop
renewable energy resources in a cost effective manner and grasp the associated competitiveness
necessary for security of energy. For this reason, the Commission will also soon launch proposals for a
renewable energy policy regime for the post 2020 period.446
5.2.2 Is further cooperation in EU schemes needed?

`
Member-states operate different renewable subsidy schemes. In its consultation document on
the post-2020 renewable strategy, the Commission447 considered whether a single renewable energy
subsidy across the EU is necessary or whether national schemes should be more closely coordinated.
Indeed Member States deviations from their own national renewable energy action plans reflect that
policy changes reduce clarity and certainty for investors, increasing their exposure to regulatory risk.
According to the Commission, increasing the share of renewables and their internal integration
will also facilitate international cooperation on renewable energy development by enabling full use of
the cooperation mechanisms, meanwhile developing renewables in the Southern Mediterranean.448In
this line, the private sector Desertec foundation is already a good illustration of this cooperative
mechanism, providing renewable energy to Europe from the Middle East and North Africa.449
In the longer term, the Commission wishes to ensure a level playing field between the producers
of electricity from conventional energy and those of renewable energies, which also means that the latter
are to contribute to the stability and security of the grid.450
According to Tindale, a harmonised EU renewable support scheme could deliver greater
regulatory stability. In practice, however, each country has a different potential for renewable energy.
The Commission should therefore drop the EU-scheme option and focus instead on greater coordination
of Member-State schemes.451The Commission has recently published guidelines on the structure of
renewable support schemes in March 2013, 452 and considered in particular Member States'
implementation of biofuels schemes, studied in the following section.

442
Directive 2009/29/EC to improve and extend the GHG emission allowance trading scheme of the Community
443
Ibid
444
COM/2012/0271 final
445
Ibid p.3
446
Ibid
447
Ibid
448
Ibid p.13
449
Desertec foundation http://www.desertec.org/fileadmin/downloads/DESERTEC-WhiteBook_en_small.pdf
450
CEP Policy Brief EU Communication, Renewable Energy beyond 2020,(2012)
451
Stephen Tindale, How to expand renewable energy after 2020 (2012)p.4
452
European Commission, Renewable energy progress report, COM(2013) 175 final

41
5.2.3 Renewables are not all the same: the case of biofuels
In its 2012 Communication the Commission argues that not everything called renewable is
desirable, and that the EU should adopt mandatory standards to improve the climate impact of
bioenergy.
Indeed the 2009/28/EC RES Directive already imposes requirements that biofuels should meet
certain sustainability criteria. These criteria also apply to bioliquids for heat and power, but not to other
forms of renewable energy such as solid biomass.453These cover the GHG emissions savings from using
the fuels, and the types of land that may be converted to biofuels production. There are also conditions
on European feedstock production on cross-compliance with agricultural sustainability rules.454
Concerning GHG, the RES Directive sets minimum thresholds for carbon savings compared to
fossil fuel that must be achieved by a biofuel to be eligible for support under Member State renewable
energy policies;455 biofuels and bioliquids should also contribute to a reduction of at least 35 % of GHG
emissions in order to be taken into account. From 1 January 2017, their share in emissions savings
should be increased to 50 %.456 Finally, the directive sets out a criteria to guarantee origins of biofuels.
457
The Commission's scrutiny of Member States' transposition of the biofuel sustainability criteria
shows that there exist some gaps, and legal proceedings have begun to ensure that effective
sustainability regimes are in place in all Member States.458 In addition, key export countries (Argentina,
Brazil, Indonesia, and Malaysia) have adopted new regulatory measures to improve their environmental
practices in biofuels related areas.459
Finally the Commission has just made a proposal for a Biofuel Directive,460 aiming at limiting
the contribution that conventional biofuels make towards attainment of the targets in the RES Directive.
I also aims at improving their GHG performance by raising the saving threshold for new installations by
1st July 2014; it encourages a greater market penetration of advanced biofuels by allowing them to
contribute more to the RES Directive targets and improves the check-ups of GHG emissions by obliging
Member States and fuel suppliers to report the estimated indirect land-use change emissions of
biofuels.461

453
Directive 2009/28/EC Article 17, 18 and 23
454
Ibid Article 17(6) and 19
455
Ibid Annex V
456
Article 17(2)
457
Article 15
458
COM/2013/0175 final
459
Ibid
460
Proposal for a Directive relating to the quality of petrol and diesel fuels 2012/0288 (COD), p.3
461
Ibid p.3

42
6- CONCLUSION
The concept of energy security has several interpretations, making its definition elusive. Viewed
at first as a strictly political and economical matter, the role of law has been gradually enhanced to
explain the challenges as well as the strategies and solutions dealing with energy security in the EU.
Identically, environmental considerations have been increasingly recognized. Given the relevance of all
these approaches in determining the current picture of EU’s energy security, this thesis has taken into
account the interaction between the law, energy and climate with the political-economic tie.
Six major interconnected factors have been identified as characteristics to EU energy security:
energy supply, efficiency, the integration of an EU energy market, sustainability, diversification of
sources and legal resilience, understood as the capacity to maintain a high level of consistency of
behavioural structure in the face of a dynamic environment of external and internal change.
Yet, their combination, their possible impacts, as well as their future probability differs from
sector to sector (renewables, gas, nuclear, coal...etc.). Accordingly, this thesis has adopted a resource-
specific approach to analyse and evaluate existing and potential EU energy and climate change
concerns.
The role of the internal EU market has been enhanced with the adoption of the Lisbon Treaty
and through the integration of electricity and gas markets. Both sectors rely on operational network
security and adequate generating capacity. Yet potential shortcomings of the law to regulate the EU
market are encountered facing TSOs and DSOs’ difficulties to maintain safe and efficient transmission
grids. Also the incompleteness of the internal market does not always provide adequate support to long-
term supply issues, even though the third gas and electricity package provides a very complete legal
basis for future developments. Moving forward in the liberalisation process is the precondition to
overcome the challenges posed by a system in transition.
Moreover short-term supply initiatives are legally well supported in the EU, enhancing the
short-term legal resilience of the energy supply system. However, these initiatives only concern a few
energy sources (oil, gas, electricity), which do not assist the expansion of EU’s energy mix. Regarding
oil, the widening gap between Europe’s demand for oil and its domestic production, the impact of oil
price volatility and oil transport risks have urged the planning of emergency responses and
infrastructures to facilitate transport. Notwithstanding these risks, oil is expected to remain of critical
importance for Europe in the next two-three decades, especially for the transport sector. The 2005
electricity blackouts and the 2009 cut in gas supplies from the East have also exposed EU’s dependency
on these sectors’ imports, generating a quick comprehensive EU legal response through Directive
2005/89/EC and Regulation 994/2010 of these low-probability events.
Speaking with one voice in foreign energy matters may be a first step to increasing EU’s energy
security but only few projects have been implemented. In addition, an EU foreign energy policy is not
credible unless the EU has a functioning common market for electricity and gas.
Moreover the EU Treaty rules may impede the complete functioning of such EU market, the
ECJ holding a predominant role to balance competing legal interests. The perception of treaty principles
with regard of energy security is dynamic, and the ECJ rulings has shown that national obstacles to free
movement of goods may be justified on either environmental protection or security of supply
grounds.462
Energy efficiency has also become a cornerstone of EU’s energy policy. The Commission
recognises actions on the demand side as crucial as supply-side initiatives to pursue, among others,
energy security objectives. In addition to the regulation of uses of energy through supply, energy
savings and the facilitation of measures towards efficient infrastructures and networks participate to this
current. Yet the non-binding nature of the energy efficiency targets set for 2020 downplay its already
limited potential to increase EU’s energy security. As Engenhofer noted, even assuming the full
application of the existing EU directives on energy efficiency, in 2030, Europe’ import dependency will
anyway be higher than today. Moreover, the beneficial impacts of EU energy efficiency measures (with
CCS in particular) on CO2 emissions underplay the negative effects of projected energy demand growth
in developing countries where energy efficiency standards remain modest. However, the promising

462

43
future of EU’s low-carbon technologies and infrastructures combined with enhanced cooperation with
third-countries may palliate this trend.
With regard to energy diversification, EU policies are oriented towards an increased integrated
market in gas and electricity and share in renewable energy, but are also looking at other anthropogenic
solutions. The increasing competition for fossil fuel resources could also become irrelevant if the EU is
able to engage in an aggressive climate change policy and energy diversification. Indeed coal, nuclear
and renewable energies all contribute to determining the security of supply of electricity. Unlike oil and
gas, coal does not seem to pose serious energy security threats to the EU. What the EU has to be
concerned about are the environmental challenges caused by coal combustion. In order to achieve
Europe’s ambitious climate change targets, clean coal technologies must therefore be developed for coal
to continue to be extensively used. The EU should therefore encourage massive investment in CCS
technologies as well as further research and cooperation in this field.
The strong contribution of nuclear energy to EU’s security of supply, and its low-carbon content
have again directed attention on this controversial energy source. Yet, given its numerous drawbacks,
high costs as well as safety, perception, waste and proliferation risks, producing electricity from nuclear
energy remains a divisive issue among EU countries. However and in the light of the recent
Fukushima’s accident, the future development of nuclear energy in the EU will highly depend on the
political prospect, the price of substitute fuels as well as the evolution of still unsettled low-risk
technologies.
Although the contribution of renewable sources to EU total energy consumption is currently on
its way towards the indicative target of 20% by 2020, the European Commission is strengthening its
efforts to encourage the use and production of alternative energies. Their main benefits lie in reducing
GHG emissions, but renewables are also believed to contribute to security of supply due to their
domestic availability. However, some renewable energy sources are intermittent (e.g. wind, solar PV)
and may thus cause supply disruptions if they are not linked to more reliable renewables (such as large
hydro or bioenergy) or to backup capacity provided by fossil fuels. Second, the competitive potential of
renewables is reduced by its high cost, as well as some renewables are more polluting than others
(biofuels). A further technological boost as well as an EU framework encouraging investment in
developing second-generation biofuels is therefore necessary.
Sustainability has been approached in the light of climate change and emission-reduction and in
particular through the Renewable Directive targets and obligations. Looking at the future of EU energy,
the predicted increase in renewable share drives towards a positive path increasingly combining
economic, political and environmental concerns. Concerning resilience, short-supply legal initiatives
seem complete; in the long-term however, efficiency, supply and diversification measures are still
looking for more consistency, yet EU law is responsive to dynamic external and internal challenges.
Finally, existing legislation draws a difference between 2020 targets and longer-term
challenges. Yet considering the lack of binding EU targets beyond 2020, and given that energy accounts
for about 80% of all GHG emissions in the EU, climate change policy will require profound changes to
European energy systems. Climate change thus plays an ever-increasing role in energy policy and the
value of considering interactions between global warming and energy security is increasingly
recognised, especially in areas such as better efficiency, renewables, nuclear and technological
innovation. As well as mitigating GHG emissions, the European energy sector will also need to adapt to
changing climatic conditions – both on the supply and the demand side. To date, impacting on climate
change has been the object for future Commission’s proposals regarding the increase of the share of
renewables in EU’s energy production, of cooperation and integrated schemes, technology and research
as well as wise choices concerning the energy mix, to reach the goal of a clean, secure and sustainable
energy system.

44
ABREVIATIONS:
CCS - Carbon Capture and Storage

DSO - Distribution System Operator
ECJ – European Court of Justice
ECSC Treaty- Treaty establishing the European Coal and Steel Community
ECT – Energy Charter Treaty
ECURIE – European Community Urgent Radiological Information Exchange (implementation of the
EEA – European Environment Agency
EEPR – European Energy Programme for Recovery
EEZ – Exclusive Economic Zone
EU ETS - the European Union Emissions Trading Scheme
EU – European Union
EURATOM – The European Atomic Energy Community
GHG- Green House Gas
IEA – International Energy Agency
IPCC - Intergovernmental Panel on Climate Change
ITER - International Thermonuclear Experimental Reactor
LNG- liquefied natural gas
NEEAP – National Energy Efficiency Action Plan
NREAP – National Renewable Energy Action Plan
OECD – Organisation for Economic Cooperation and Development
OPEC – Organization of the Petroleum Exporting Countries
OSPAR - The Convention for the Protection of the Marine Environment of the North-East Atlantic
PV – Photovoltaic power generation
R&D – Research and Development
RES Directive or Renewable Directive –Directive 2009/28/EC of 23 April 2009 on the promotion of the use of energy from
renewable sources
SET Plan - Strategic Energy Technology Plan
TEC Treaty establishing the European Community
TEU – Treaty of European Union
TFEU – Treaty of Functioning of European Union
TSO – Transmission System Operator
UN – United Nations
UNCLOS – United Nations Convention on the Law of the Sea
UDHR – United Nations Declaration on Human Rights
UNFCC – United Nations Framework Convention on Climate Change

45
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47
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48
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49
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Marine Sigot

Masters Programme in Environmental Law

2- RESEARCH QUESTIONS, METHOLOGY, SCOPE

EXPLANATORY PRE-CHAPTER – COMMON EU ENERGY POLICY:

3- HARMONIZING EU LEGISLATION: GUARDING SUPPLY THROUGH INTERNAL AND

4- STRATEGIES FOR COMPETITIVE SUSTAINABLE AND SECURE ENERGY: THE EU 2020

5- IMPROVING ENERGY OF SUPPLY THROUGH DIVERSIFICATION OF RESOURCES:

1.3 The multifaceted concept of energy security

1.4 The role of Law

2- RESEARCH QUESTIONS, METHOLOGY, SCOPE

2.1 Objective and Research Questions

2.2 The present study: Methodology

2.3 Scope and Delimitations

EXPLANATORY PRE-CHAPTER – COMMON EU ENERGY POLICY:

 Enforcing EU energy policy: a priority of the Lisbon Treaty

 Treaty rules for the good functioning of the EU energy market:

3. HARMONIZING EU LEGISLATION: GUARDING SUPPLY THROUGH INTERNAL AND

3.1.1 EU gas and electricity market legislation and policies:

3.1.2 Short-term security of supply initiatives: building on energy solidarity in the EU

- a) Directive 2009/119/EC: enhancing cooperation to secure EU oil stocks

-c) Directive 2005/89/EC: safeguarding electricity supplies through network capacity

3.2 Achieving a sustainable, competitive and secure external energy policy

3.2.1 External energy policy and cooperation at a regional level:

3.2.2 Bilateral agreements: potential impediment to secure external energy policy?

4. STRATEGIES FOR COMPETITIVE SUSTAINABLE AND SECURE ENERGY: THE EU

 Foreword – Abiding efficient uses of energy: the relevance of sustainable development

As studied in the introduction, sustainable development encompasses both needs and

4.1 Energy efficiency and infrastructure

5. IMPROVING ENERGY OF SUPPLY THROUGH DIVERSIFICATION OF SOURCES:

5.1.1 The paradox of coal production: legal prospects assisted by R&D

5.1.3 An orientation towards renewables sources up to 2020: the RES Directive

5.2 Going beyond the 2020 targets for renewable energy:

5.2.1 Possible scenarios and impact assessment

5.2.2 Is further cooperation in EU schemes needed?

CCS - Carbon Capture and Storage

LEGISLATION AND POLICY-RELATED DOCUMENTS:

CEP Policy Brief EU Communication, Renewable Energy beyond 2020,(2012) available at

available at http://aei.pitt.edu/9530/2/9530.pdf accessed on 10.05.2013

Europa, EU web portal, official website - security of supply of electricity, available at

Europa, EU web portal, official website- energy efficiency, available at http://ec.europa.eu/energy/efficiency/index_en.htm

Europa, EU web portal, SET Plan, available at

European Commission, Climate action, Auctioning (2013) available at

European Commission, Energy and Environment, Competition, Overview , available at

European Commission, Enforcing EU energy law, available at http://ec.europa.eu/energy/infringements/index_en.htm accessed

European Commission, Key figures (2011) available at http://ec.europa.eu/energy/observatory/countries/doc/key_figures.pdf

European Commission, Nuclear energy, the EURATOM Treaty, available at

Europedia, official website - Electricity and Gas markets, available at

Internal Energy Agency, Energy Technology Perspective (2012), available at

International Energy Agency, CCS and Regulatory Review, available at

International Energy Agency, The World Energy Outlook 2011

Kyoto Protocol (1998) http://unfccc.int/resource/docs/convkp/kpeng.pdf

Rio Declaration, June 1992, available at http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

Stockholm Declaration, 16 June 1972 available at

Treaty of Lisbon, December 2007 available at http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:EN:HTML and

Treaty on the European Union, available at http://eur-

UN Declaration on the Right to Development, Dec 4 1986, available at http://www.un.org/documents/ga/res/41/a41r128.htm

UNCLOS (1973) http://www.un.org/Depts/los/convention_agreements/texts/unclos/part12.htm accessed on 12.05.2013

UNFCCC (1992) available at http://unfccc.int/resource/docs/convkp/conveng.pdf accessed on 12.05.2013

United Nations Foundation, Improving Energy Efficiency, available at http://www.unfoundation.org/what-we-

World Coal Institute website, Environmental Impacts of Coal Mining, available at

World Commission on Environment and Development, Our Common Future (1987)

LITERATURE AND ARTICLES:

BP (2008), BP Statistical Review of World Energy, BP, London available at

Cohen, Ariel, Europe’s Strategic Dependence on Russian Energy, 2007.