Investing in EU Energy Security

Name: Investing in EU Energy Security | Exploring the Regulatory Approach to Tomorrow's Electricity Production
Brand: Kluwer Law International
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Exploring the Regulatory Approach to Tomorrow's Electricity Production

Henrik Bjørnebye(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 27. August 2010

480 Seiten

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978-90-411-3769-2 (ISBN)

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Beschreibung

The author of this timely and sharply focused book shows that, in the light of our current knowledge, ensuring new investments - and the right investments - in electricity generation constitutes an urgent energy policy challenge facing the EU over the coming decades. He accordingly makes the case for a serious reconsideration of the market facilitation and market intervention rules under electricity market legislation in the EU. In the first detailed legal analysis of the EU's internal electricity market framework for investments in electricity generation facilities from the perspective of security of supply, this book cover such legal issues as the following in precise detail: applicability of the Treaty on the Functioning of the European Union (TFEU); security of supply as a ground for exemption on the basis of public security; justifications of public intervention; the applicability of EU State aid provisions to investments in energy security; requirements imposed by EU law on Member States for ensuring cost-efficient investments in European supply security; facilitation of renewable energy sources and cogeneration in the environmental interest; the Court of Justice's approach to Member State interventions; the Court's decisions on restrictions on free movement in the environmental interest; Member States' right to launch tendering procedures for new generation capacity; Member States' right to impose public service obligations in the general economic interest on certain undertakings; and relationship between the provisions of the TFEU and those of the Euratom Treaty in relation to investments in nuclear power generation. Throughout the study, in addition to his analysis of the decisions of the Court of Justice and the Court of First Instance, the author takes into account legal literature and Union reports, preparatory works, and working papers. The book demonstrates convincingly that today's energy supply challenges must be based on a broader balancing of security, competitiveness and sustainability interests. It suggests that the internal electricity market provisions of the Electricity Directive and the Security of Electricity Supply Directive would benefit from focusing more intensely on requiring investments in technologies and primary energy sources that will help mitigate climate change and reduce European energy import dependency, and less on the need for ensuring cost-efficient investments through market-based means

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Inhalt

Intro
Half Title
Title Page
Copyright
Summary of Contents
Table of Contents
Preface
Abbreviations
Part I: Introduction
Chapter 1. On the Market-Based Path to Optimal Investments
1.1. Topic
1.2. Exploring the Regulatory Approach to the Twin Dimensions of Electricity Production
1.3. The Primary Research Object: Internal Electricity Market Legislation
1.4. The Relationship to the Provisions of the TFEU
1.5. Methodological Questions
1.6. Context and Scope
1.7. Reading Guide
Part II: Background: Investment Challenges and Regulatory Objectives
Chapter 2. Introduction
Chapter 3. The Internal Electricity Market at a Glance
Chapter 4. The Challenges of Energy Import Dependency and Climate Change
4.1. The 1973-1974 Oil Crisis: The Geopolitical Challenges Revealed
4.2. The Re-emergence of Import Dependency Concerns
4.3. The Growing Acknowledgement of the Climate Challenge
4.4. EU Policy Priorities: On the Path to Sustainable Energy Security
Chapter 5. The Market Challenges Involved in Attracting Adequate Investments
5.1. Electricity Market Liberalization: From Central Planning to Competition
5.2. Ensuring Optimal Investments in a Competitive Electricity Market
5.2.1. The Problem: Defining the Role of Regulation
5.2.2. The Particular Attributes of Electricity Markets
5.3. The Complexity of Investment Regulation
Chapter 6. Defining the Regulatory Objectives
Part III: The Treaty Context
Chapter 7. Introduction
Chapter 8. The Relationship between Security of Supply Objectives and the Fundamental Objectives of the TFEU
8.1. Introduction
8.2. Security of Supply and Competitiveness
8.3. Security of Supply and Environmental Protection
8.4. Security of Supply, Integration and Member State Solidarity
8.5. Conclusions
Chapter 9. Justification for Measures Restricting the Free Movement of Electricity
9.1. Introduction
9.2. The Starting Point: Campus Oil
9.3. Relationship with Existing EU Measures
9.4. Security of Supply as a Ground for Exemption on the Basis of Public Security
9.4.1. The Campus Oil Approach: Defining the Relationship between Security of Petroleum Supplies and Public Security
9.4.2. Subsequent Case Law: Extending the Scope of the Concept of Public Security to New Energy Products - and New Situations?
9.5. An Alternative Approach: Security of Supply as a Public Health Interest
9.6. Proportionality and Review Intensity
9.7. The Relationship to Justifications in the Environmental Interest
9.8. Legal Implications of the Choice of Ground for Justifying Exemption: A Comparison of Environmental and Security of Supply Interests
Chapter 10. Security of Supply Obligations in the General Economic Interest
10.1. Introduction
10.2. An Introduction to Article 106(2) TFEU
10.3. Security of Supply and Environmental Tasks as Services of General Economic Interest
10.4. The Application of Article 106(2) TFEU as an Exemption Ground for Free Movement Restrictions
Chapter 11. Establishment of the Internal Electricity Market
11.1. Introduction
11.2. The EU's Competence to Adopt Electricity Market Measures
11.2.1. The Principle of Conferral of Powers and the Different Legal Bases
11.2.2. Article 114 TFEU: Establishment of an Internal Electricity Market
11.2.2.1. The Boundaries of Article 114(1) TFEU
11.2.2.2. Article 114(1) TFEU as Legal Basis for the Adoption of Security of Electricity Supply Measures
11.2.2.3. Subsidiarity and Proportionality
11.2.3. Article 192 TFEU: Environmental Measures
11.2.4. The New Energy Provision in Article 194 TFEU: Plugging a Hole in the Dam?
11.3. EU Internal Electricity Market Measures
11.3.1. The First Steps towards Establishing an Internal Electricity Market
11.3.2. The Electricity Directive
11.3.3. The Relationship to the Electricity Regulation
11.3.4. The Security of Electricity Supply Directive
11.4. Environmental Measures: The Promotion of Renewable Energy Sources and Cogeneration
Chapter 12. Concluding Remarks
Part IV: Market Facilitation of Investments
Chapter 13. Introduction
Chapter 14. Defining Roles and Responsibilities in Electricity Generation Investment Decisions
14.1. Introduction
14.2. The Role of the State: The Independent Regulator and Its Relationship to Other Regulatory Authorities
14.2.1. The Principal Functions of the Member State in Generation Capacity Investment Decisions
14.2.2. The Independence of the National Regulatory Authority
14.2.3. The Objectives and Tasks of the Regulatory Authority
14.2.4. Is There a Need for Politically Independent Regulatory Authorities?
14.3. The Role of Producers and Suppliers
14.4. The Role of TSOs
14.4.1. Introduction
14.4.2. The Security of Supply Obligations of TSOs
14.4.3. The Environmental Obligations of the TSOs
14.4.4. The TSOs Responsibility for Balancing and Ensuring an Appropriate Level of Reserve Generation Capacity
14.4.4.1. Balancing Services
14.4.4.2. Reserve Capacity Margins
14.5. The Obligation to Define Roles and Responsibilities in the Security of Electricity Supply Directive
14.6. Concluding Remarks
Chapter 15. The Authorization Procedure for the Construction of New Electricity Generating Capacity
15.1. Introduction
15.2. Facilitation of and Barriers to Market Access
15.2.1. The Economic Rationale for the Promotion of Market Access
15.2.2. The Approach under EU Law
15.2.3. Discourse: Is an Open Market Rationale Realistic in the Electricity Sector?
15.3. The Procedure under Article 7 of the Directive
15.4. The Principle of Non-discrimination and the Choice of Primary Energy Sources
15.4.1. Introduction
15.4.2. A Brief Introduction to the Substance of the Non-discrimination Requirement
15.4.3. The Choice of Primary Energy Sources in Electricity Generation
15.4.3.1. The Situation
15.4.3.2. The VEMW Decision
15.4.3.3. The Comparability of Authorization Procedures at Different Points in Time
15.5. Facilitation of Renewable Energy Sources and Cogeneration in the Environmental Interest
15.6. Conclusions
Chapter 16. The Facilitation of a Stable Investment Climate
16.1. Introduction
16.2. The Concept of a Stable Investment Climate: Promotion of Investor Certainty
16.3. The Establishment of Liquid Wholesale Markets
16.3.1. Overview
16.3.2. Electricity Wholesale Markets: Physical and Financial Trade
16.3.3. The Requirements Imposed on Member States
16.4. Transparent and Stable Regulatory Framework
16.5. Is the Stable Investment Climate Obligation Suitable for the Promotion of Internal Electricity Market Functioning?
Chapter 17. Concluding Remarks
Part V: Public Intervention
Chapter 18. Introduction
Chapter 19. Electricity Generation Tenders in the Security of Supply Interest
19.1. Introduction
19.2. The Internal Market Effects of Launching Tendering Procedures
19.3. The Concept of Security of Supply in Article 8 of the Electricity Directive
19.3.1. Uninterrupted Electricity Supplies to Customers
19.3.2. Supply Interruptions and Electricity Prices
19.4. Market-Based Measures Not Sufficient to Ensure Security of Supply
19.4.1. Introduction
19.4.2. Public Intervention to Reduce the Impact of Interruptions in Primary Fuel Supplies
19.4.2.1. Overview
19.4.2.2. The Necessity of a Diversified Energy Mix
19.4.2.3. The Necessity of Launching a Tendering Procedure
19.4.3. Public Intervention to Avoid Risks of Inadequate Electricity Generation Capacity
19.4.4. Public Intervention to Ensure Sufficient Reserve Capacity Margins
19.4.4.1. Introduction
19.4.4.2. The Distinction between 'Normal' Capacity and Reserve Capacity
19.4.4.3. The Relationship to Equivalent Procedures
19.4.4.4. The TSOs as Reserve Electricity Producers?
19.5. The Relationship to Electricity Imports and Interconnector Investments
19.5.1. Export Restrictions and the Reliance on Electricity Imports
19.5.2. The Relationship with Interconnector Investments
19.6. Appraisal and Concluding Remarks
Chapter 20. Tenders in the Environmental Interest
20.1. Introduction
20.2. Article 8(2) of the Electricity Directive: Tenders in the Environmental Interest
20.3. The Lack of Sustainable Investment Requirements in Internal Electricity Market Legislation
Chapter 21. Electricity Generation Investments as a Service of General Economic Interest
21.1. Introduction
21.2. Restrictions on the Member States' Rights to Impose Public Service Obligations
21.3. The Concept of Public Service Obligations in the General Economic Interest
21.3.1. Introduction
21.3.2. Public Service Obligations and Services of General Economic Interest: One or Two Concepts?
21.3.3. Defining the General Economic Interest: Security of Electricity Supply - At Reasonable Prices?
21.3.4. Defining the Public Service Obligation: Investments in New Electricity Generation Capacity
21.3.5. A brief Look at the Non-discrimination Principle as a Basis for the Imposition of Public Service Obligations
21.4. Conclusions
Chapter 22. Exemptions from the Electricity Directive in the General Economic Interest
22.1. Introduction
22.2. The Relationship between the Exemption Grounds in Article 3(14) of the Electricity Directive and Those in Article 106(2) TFEU
22.3. The Principle of Proportionality Inherent in Article 3(14)
22.3.1. The Problem: Are Exemptions from the Directive Necessary to Pursue Public Service Means or Public Service Ends?
22.3.2. The Commission's Approach - Irish CADA
22.3.3. The Necessity of Exemptions from the Directive for the Performance of Security of Supply Obligations
22.3.4. The Criterion Concerning the Development of Trade and the Interests of the Union
22.3.4.1. The Criterion as a Separate Proportionality Requirement
22.3.4.2. Development of Trade
22.3.4.3. Interests of the Union
22.4. The Relationship between Public Service Obligation Procedures and Tendering Procedures
22.5. Conclusions
Chapter 23. Concluding Remarks
Part VI: State Aid to Electricity Generation Investments
Chapter 24. Introduction
Chapter 25. Overview of the TFEU State Aid Regime
25.1. A Brief Introduction to the TFEU State Aid Regime
25.2. The Relationship between the State Aid Provisions of the Treaty and the Internal Electricity Market Legislation
Chapter 26. The Boundaries of Article 107(1) TFEU
26.1. Introduction
26.2. Aid Granted by a Member State or through State Resources in Any Form Whatsoever
26.2.1. The Concept of Aid
26.2.2. Granted by a Member State or through State Resources
26.2.2.1. Introduction
26.2.2.2. Investment Subsidies Induced by State Conduct
26.2.2.3. Advantages Granted by TSOs: State Resources and Imputability
26.2.3. Concluding Remarks: The Relationship of State Aid to the Requirements of the Electricity Directive
26.3. Compensation for the Performance of Public Service Obligations
26.3.1. Overview of the Altmark Criteria
26.3.2. The Relationship between the Altmark Criteria and the Requirements in the Electricity Directive
26.3.3. The Relationship with Article 106(2) TFEU
26.3.4. Four Legal Bases: A Single Legal test?
Chapter 27. State Aid Declared Compatible with the Internal Market under Article 107(3) TFEU
Chapter 28. The Application of the TFEU to Investments in Coal and Nuclear Power
28.1. Introduction
28.2. TFEU State Aid Provisions Applied to Coal Power Investments
28.3. The Relationship between the Provisions of the TFEU and the Euratom Treaty
28.3.1. Background
28.3.2. The Applicability of EU State Aid Provisions to Investments in Nuclear Power
28.3.3. The Relationship between the Euratom Treaty and Internal Electricity Market Legislation
Part VII: Conclusion
Chapter 29. Towards Sustainable Energy Security Investments
29.1. The Fundamentals
29.2. Market Facilitation: The Wrong Approach to the Right Ideas
29.3. Market Intervention: Defining the Indefinable to Avoid the Inevitable
29.4. Off the Beaten Path: Towards Sustainable Energy Security
Bibliography
Table of Cases (In Chronological Order)
Table of Community Legislation
Community Documents (In Chronological Order)
Other Documents

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