EU ENERGY LAW: IS IT A SOURCE OF UNCERTAINTY?

Transcription

1 EU ENERGY LAW: IS IT A SOURCE OF UNCERTAINTY? Ana Stanič English Solicitor Advocate Honorary Lecturer at Centre of Energy, Petroleum and Mineral Law and Policy at Dundee University

2 Scope of Presentation 1. Objectives of EU Energy Policy SECURITY OF SUPPLY, COMPETITIVENESS AND SUSTAINABILITY 2. Security of Supply: Lessons from the Southern Gas Corridor 3. Internal market: Exemptions for Major Infrastructure + Certification of TSO 4. Energy Infrastructure: TEN Regulation 5. Competition Law 6. What s next? 7. EU energy law as a source of uncertainty 1

3 2. Security of Supply Diversification of sources and routes key to achieving security of supply [45 to 90 bcma by 2020 from SGC] and lower gas prices ISSUES TO CONSIDER: Shah Deniz will bring 10 bcm to the EU by 2019 at earliest Having most advanced legal framework in place + Commission support is no guarantee a project will succeed Nabucco Classic exemption granted under SEP: first section to be in operation by 31/12/2016 Commerciality of a project key to its realisation LNG prices at Polish Terminal higher than Gazprom prices, and linked to oil Will lessons be learned? Parliament called EU on 11/9/2013 to consider the establishment of a joint gas purchase agency 2

4 3. Internal Market in Gas 2014 deadline for completion of internal market in gas Currently there are infringement proceedings against 8 Member States ( MS ) ISSUES TO CONSIDER Lack of level playing field: Art. 9 (6) of GD ISO and ITO options Exemptions as a major new interconnector: Interconnector is defined as a transmission system line which crosses or spans a border between Member States for the sole purpose of connecting the national transmission systems of those Member States gas pipelines which span the borders of (at least) two MS, regardless as to whether the territory of an non-eu MS is crossed in between Albania granted TAP an exemption under TEP which not yet law in Albania South Stream?; OPAL exemption 3

5 3. Internal Market for Gas If a TSO is controlled by a non-eu company certification will be refused if IT HAS NOT BEEN DEMONSTRATED that: Entity complies with unbundling requirements Certification will not put at risk the security of energy supply of MS and Community ISSUE TO CONSIDER - Certification of TSOs Socar purchase of DESFA 4

6 4. Energy Infrastructure Energy infrastructure one of the three no-regrets options in the Energy Roadmap 2050 Euro 200 bn of investments in energy infrastructure needed by 2020 ISSUES TO CONSIDER - TEN Regulation Jan study of projects did not even consider TAP Projects proposed by TSO; ranked by regulators and TSO Key issues relating to coordination of cross-border EIA not addressed Public interest deeming provision may be counterproductive 5

7 5. Competition Law Formal investigation against Gazprom started 4/9/2012 for breach of Article 102 TFEU on account that it may have: hindered the free flow of gas in MS by dividing the market prevented diversification of supply of gas in MS imposed unfair prices on its customers by linking price of gas to prices of oil In addition, Commission is still informally investigating potential breaches of Article 101 TFEU by Gazprom and the incumbents in certain MS ISSUES TO CONSIDER Long Term Contracts Take - or - Pay Clauses Oil - indexation 6

8 6. What can we expect going forward? 1. Increased powers will be granted to ACER 2. Adoption of 4 th Energy Package [?] 3. Revision of state aid rules 4. Parliament has called for exemptions to be subject to review 5. Commission ( EC ) is seeking further mandate to negotiate IGAs re. infrastructure projects of strategic importance MS have submitted to EC all existing IGA in field of energy for assessment of compatibility with EU law + New IGA to be submitted to EC MS have submitted to EC all BITs and FTAs for assessment of compatibility with EU law + Going forward, as a general rule EC to negotiate BITS and FTAs 7

9 7. EU law increasingly a source of uncertainty EU law IS NOT THE SAME AND, IN FACT, MAY BE INCOMPATIBLE with rights accorded to investors under Bilateral Investment Treaties ( BITs ) Although, international treaty takes primacy over EU law, ECJ will only examine the validity of secondary Community legislation with regard to an international agreement where the nature and broad logic of the latter do not preclude this, and, in addition, the treaty s provisions appear, as regards their content, to be unconditional and sufficiently precise Increase number of claims being brought against MS under BITs and ECT in respect of changes in energy law both at national and EU level Increasingly questions raised as to whether actions are politically motivated and legally unjustifiable RULE OF LAW, LEVEL PLAYING FIELD, TRANSPARENCY AND ACCOUNTABILITY KEY TO SUCCESSFUL ENERGY POLICY 8

10 7. EU law increasingly a source of uncertainty WAYS TO MINIMISE RISK 1. Host Government Agreements/Project Support Agreements will remain THE KEY mechanism Stabilisation / Change of Law Clauses Governing Law Arbitration as a mechanism of Dispute Resolution Seat of Arbitration 2. Structure investments to take advantage of investment rights granted to investors under BITs and Energy Charter Treaty ( ECT ) 9