Explanatory Memorandum to COM(2024)44 - EU position within the EU-UK Specialised Committee on Energy established by the Trade and Cooperation Agreement with the United Kingdom on the adoption of the guidance on frameworks for cooperation - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2024)44 - EU position within the EU-UK Specialised Committee on Energy established by the Trade and Cooperation Agreement with the ... |
|---|---|
| source | COM(2024)44 |
| date | 31-01-2024 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the EU-UK Specialised Committee on Energy (hereafter ‘Specialised Committee’) set up under the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (hereafter the ‘Agreement’).
It proposes that the Union supports the adoption by the Specialised Committee of a decision on the guidance to be given to energy operators for the elaboration of frameworks for cooperation between energy operators in the EU and in the United Kingdom.
Those frameworks for cooperation are more specifically foreseen between:
(a) the European Network of Transmission System Operators for Electricity (ENTSO-E) and the United Kingdom transmission system operators for electricity,
(b) the European Network of Transmission System Operators for Gas (ENTSOG) and the United Kingdom transmission system operators for gas, and
(c) the Agency for the Cooperation of Energy Regulators (ACER) and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement.
2. Context of the proposal
2.1. The EU-UK Trade and Cooperation Agreement
The Agreement aims at establishing cooperation between the EU and the UK inter alia in the area of energy. The Energy Title VIII of Heading One of Part Two (Trade, Transport, Fisheries and other Arrangements) includes commitments on the adoption of three frameworks for cooperation.
In accordance with Article 317(1) of the Agreement, the first and second frameworks are to be established for the cooperation between the ENTSO-E as established by Regulation (EU) 2019/943 and ENTSOG as established by Regulation (EC) No 715/2009, on the one side, and the transmission system operators for electricity and gas in the United Kingdom, on the other.
Article 317(1) of the Agreement requires the frameworks for cooperation:
(a) to cover at least the following areas:
i. electricity and gas markets;
ii. access to networks;
iii. the security of electricity and gas supply;
iv. offshore energy;
v. infrastructure planning;
Contents
vii. gas decarbonisation and gas quality
(b) not to confer to the transmission system operators in the United Kingdom a status comparable to membership of ENTSO-E or ENTSOG.
In accordance with Article 318 of the Agreement, the third framework is to be established between ACER as established by Regulation (EU) 2019/942 and the regulatory authority in the United Kingdom designated in accordance with Article 310.
Article 318 of the Agreement requires the framework for cooperation:
(a) to cover at least the following areas:
i. electricity and gas markets;
ii. access to networks;
iii. the prevention of market abuse on wholesale electricity and gas markets;
iv. the security of electricity and gas supply;
v. infrastructure planning;
vi. offshore energy;
vii. the efficient use of electricity and gas interconnectors;
ix. gas decarbonisation and gas quality
(b) not to confer to the regulatory authority in the United Kingdom designated in accordance with Article 310 a status comparable to participation in ACER.
The Specialised Committee on Energy shall agree on guidance on the frameworks for cooperation for dissemination to the transmission system operators and the regulatory authorities.
2.2. The EU-UK Specialised Committee on Energy
The EU-UK Specialised Committee on Energy, established by Article 8(1), point (l) of the Agreement, addresses matters covered by Title VIII on Energy1 of Heading One of Part Two (Trade, Transport, Fisheries and other Arrangements).
As provided by Article 8 i, points (a) and (c) of the Agreement, the Specialised Committee has the power to monitor and review the implementation and ensure the proper functioning of the Agreement in its area of competence. It has the power to adopt decisions, including any amendments, and recommendations in respect of all matters where the Agreement so provides or for which the Partnership Council has delegated its powers to that Committee pursuant to Article 7 i, point (f) of the Agreement. This power is further specified in Title VIII on Energy of Heading One of Part Two of the Agreement, which provide that this specific Specialised Committee is, inter alia, tasked to agree on guidance on the frameworks for cooperation pursuant to Articles 317 and 318 of the Agreement.
Article 8(7) of the Agreement provides that Specialised Committees (including the one on Energy) are co-chaired by a representative of the Union and a representative of the United Kingdom. As provided for in Article 10(2) of the Agreement, the decisions and recommendations of a Committee are taken by mutual consent of the Parties.
2.3. The envisaged act of the Specialised Committee
The Specialised Committee is to adopt a Decision regarding the adoption of a guidance on frameworks for cooperation between, respectively, i) ENTSO-E and the United Kingdom transmission system operators for electricity, ii) ENTSOG and the United Kingdom transmission system operators for gas, and iii) ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement (‘the envisaged act’).
The Decision of the Specialised Committee gives guidance to the relevant operators in the European Union and in the United Kingdom on the parameters which they should take into account when developing their frameworks for cooperation.
The Specialised Committee should adopt the envisaged act as soon as possible, either at its next meeting or by means of a written procedure set out in Annex I to the Agreement, whichever is sooner.
3. Position to be taken on the Union's behalf
Decision of the Specialised Committee on Energy on the guidance on frameworks for cooperation Through the proposed decision, the Specialised Committee would adopt three sets of guidance, respectively for i) the working arrangements between ENTSO-E and the United Kingdom transmission system operators for electricity; ii) the working arrangements between ENTSOG and the United Kingdom transmission system operators for gas and iii) the administrative arrangements between ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement. Both the regulatory authority for Great Britain (GEMA) and the regulatory authority for Northern Ireland (Utility Regulator) would have to act jointly as part of a unique delegation representing the regulatory authority in the United Kingdom.
Each guidance is detailed in the corresponding annexes to the Decision and builds on the relevant provisions of Articles 317(1) and 318 of the Agreement. Each guidance follows the same approach of requesting the relevant operators to develop and implement the necessary arrangements for cooperation, listing the areas of cooperation which should preserve decision making autonomy of each side, requesting the operators in the United Kingdom to act jointly, prohibiting granting to the operators in the United Kingdom a status equivalent to membership and asking that the proposed arrangements be submitted to the consideration of the Specialised Committee.
The proposed position to be taken on behalf of the Union in the Specialised Committee is therefore to support the adoption by the Specialised Committee of the Decision.
4. Legal basis
4.1. Procedural legal basis
4.1.1. Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) establishes that ‘The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’ (emphasis added)
4.1.2. Application to the present case
The EU-UK Specialised Committee on Energy is a body established by the EU-UK Trade and Cooperation Agreement.
The act which the Specialised Committee on Energy is called upon to adopt constitutes an act having legal effects since Article 10 of the Agreement provides that the Decisions adopted by the Specialised Committee “shall be binding on the Parties” and it discharges the obligations agreed upon by the Parties in Articles 317(1) and 318 to the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU and the Council must adopt a decision establishing the position to be adopted on the Union’s behalf.
4.2. Substantive legal basis
4.2.1. Principles
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
4.2.2. Application to the present case
The main objective and content of the envisaged act relate to the area of energy. Therefore, the substantive legal basis of the proposed decision is Article 194(1) TFEU.
4.3. Conclusion
The legal basis of the proposed decision should be Article 194(1) TFEU, in conjunction with Article 218(9) TFEU.