Utilities Law Review - Volume 20 - Issue 4

Directive 2014/61/EU - an effective tool in facilitating deployment of high-speed electronic communications networks within the EU?
Paul Edgar Micallef
Senior Visiting Lecturer, University of Malta

The editorial discusses Directive 2014/61/EU published in May 2014, the purpose of which is to facilitate the deployment of high-speed electronic communications networks within the EU. Whilst the overall purpose is laudable, there are various issues that Member States will need to address in effectively implementing the various measures set out in the Directive. The editorial focuses on the requirement to have in place an independent dispute settlement forum which is conversant with the wide-ranging issues that complement access to the physical infrastructures of the different utilities network providers. In so doing the editorial highlights some of the difficulties faced and possible solutions.

The Time has come for a European Energy Union. A comment on the EU Council's 'Conclusions on 2030 Climate and Energy Policy Framework'
Professor Valeria Termini
Commissioner of the Italian Regulatory Authority for Electricity, Gas and Water, Rome

After the appointment of the new European Commission, the long-awaited European Council in October ended in a set of policy conclusions focusing on the 2030 European Climate and Energy Policy. They reaffirmed the centrality of a sustainable energy sector to foster the industrial growth urgently needed after half a decade of economic crisis. However, the October Council meeting failed to define clear strategic lines for a common energy policy. The set of objectives, tools and implementation procedures proposed shows that, once again, the shortcomings of the EU governance remain an obstacle to achieving an effective and cohesive industrial and energy policy. This suggests that the time has come for the Member States to invest in a European Energy Union. It requires the willingness of national governments to devolve a degree of national sovereignty for the mutual benefit of all Member states, with much the same political generosity and forward-looking vision that was shown two decades ago for the EU monetary policy.

Private Competition Enforcement in the EU: How Utilities are Affected by Recent Developments
Richard Pike
Constantine Cannon LLP, London

Businesses in Europe are increasingly turning to the courts to seek damages and other remedies for breach of competition law. Utilities need to be aware of what is happening because they are both potential victims and beneficiaries of this surge in private enforcement. Richard Pike, an English competition litigator, discusses the current state of play and the content of high-profile reforms enacted at the EU level and in the United Kingdom over the last year. With the new provisions including lengthy extensions of limitation periods and the creation of the first opt-out class action in the United Kingdom, it is no exaggeration to say that the reforms are ground-breaking. Thoughts are provided on how utilities are likely to be affected and what utilities may wish to do, practically, in response to the latest developments.

Articles 30 and 110 TFEU as Limitations to Member States' Renewable Energy Promotion
Juliane Steffens ~
Researcher, Enreg Institute of Energy and Regulatory Law, Berlin

To promote electricity generation from renewable sources, Member States widely use schemes that fall under European State Aid law. In designing those schemes Member States are, however, not only bound by substantive State Aid law in Article 107 TFEU, but also by Articles 30 and 110 TFEU. Those provisions forbid charges having equivalent effect to customs duties and discriminatory internal taxation. Charges financing aid measures are included in the State Aid assessment procedure - the Commission also has to determine a measure's compatibility with Articles 30 and 110 TFEU. The Commission's assessments of renewable energy promotion schemes started with a rather insecure application of the PreussenElektra judgment. As schemes matured, however, new challenges regarding Articles 30 and 110 TFEU have sprung up. In several cases, Member States have redesigned their financing mechanisms or compensated for alleged discrimination under Article 110(1) TFEU. Latest CJEU judgments in Essent Netwerk and Vent de Colere! further elucidate the interaction of Articles 30 and 110 TFEU with substantive State Aid law, particularly the state test. Once found to include a charge, measures are readily taken to stem from state resources. Moreover, the court readily applies the imputability test laid down in Stardust Marine to a legislative framework.

Book Review
Law and Policy of the European Gas Market