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Renewable Energy Sources: EU policy and law in light of integration - LLM in Natural Resources and International Environmental Law – Małgorzata Alicja Czeberkus Faculty of Law School of Social Sciences Aðalheiður Jóhannsdóttir May 2013 HÁSKÓLI ÍSLANDS Table of contents 1 Introduction ............................................................................................................................... 6 1.1 1.2 Background ............................................................................................................................. 6 The aim of this study and research questions .......................................................................... 7 1.3 Method and outline .................................................................................................................. 8 2 The EU’s energy policy and law ............................................................................................. 10 2.1 Development of EU´s energy policy and law – an overview ................................................ 10 2.1.1 2.1.2 From the beginning of integration 1951 until the Single European Act 1987 ............... 10 From the Single European Act until Lisbon 2007 ......................................................... 12 2.2 Reasons for transition towards new energy sources .............................................................. 14 2.2.1 2.2.2 2.2.3 Energy Security and the EU .......................................................................................... 15 The EU as a leader in the global climate change battle ................................................. 17 Climate change, energy security and the role of RES ................................................... 18 2.3 2.4 Current Treaty framework and EU competence .................................................................... 19 Conclusions ........................................................................................................................... 21 3 The EU´s competence in the fields of environmental protection and energy ..................... 22 3.1 3.2 3.3 3.4 3.5 3.6 Introduction and objective ..................................................................................................... 22 The principle of conferred powers ........................................................................................ 22 EU´s competence in the fields of environment and energy ................................................... 23 Decision-making processes in the fields of environment and energy ................................... 25 Adoption of more stringent measures .................................................................................... 27 Legal basis for renewable energy sources ............................................................................. 27 3.6.1 3.6.2 3.6.3 Adoption of RES measures – legal basis ....................................................................... 27 Two different legal bases ............................................................................................... 28 TFEU´s environmental provisions ................................................................................ 29 3.7 Conclusions ........................................................................................................................... 30 4 The principle of environmental integration .......................................................................... 32 4.1 4.2 4.3 General issues and legal foundation ...................................................................................... 32 Historical aspects ................................................................................................................... 34 Interpretation of the current version ...................................................................................... 36 4.3.1 4.3.2 General remarks............................................................................................................. 36 Interpretational questions .............................................................................................. 37 4.3.2.1 What is environmental integration?
........................................................................... 38 4.3.2.2 Rationae personae – to whom is provision directed?

................................................ 41 4.3.2.3 Rationae temporis – when does Article 11 apply?
.................................................... 41 4.4 4.5 Enforcement of Article 11 TFEU .......................................................................................... 42 Concluding remarks .............................................................................................................. 43 5 Environmental Protection Requirements under the Lisbon Treaty ................................... 44 5.1 5.2 5.3 General remarks .................................................................................................................... 44 Environmental policy of the EU - Introduction ..................................................................... 44 Article 191 TFEU – a source of environmental protection requirements ............................. 46 5.3.1 5.3.2 Environmental objectives .............................................................................................. 47 Environmental Principles .............................................................................................. 48 5.3.2.1 High level of protection ............................................................................................. 48 5.3.2.2 Precautionary principle .............................................................................................. 49 5.3.2.3 Prevention principle................................................................................................... 50 5.3.2.4 Source principle ......................................................................................................... 50 5.3.2.5 Polluter pays .............................................................................................................. 51 5.3.3 Environmental criteria ................................................................................................... 52 5.4 Concluding remarks .............................................................................................................. 52 6 Ratio legis of integration – the concept of Sustainable Development ................................. 54 6.1 6.2 6.3 6.4 6.5 Opening remarks ................................................................................................................... 54 Definition and interpretation ................................................................................................. 54 Sustainable development in European Union law ................................................................. 56 Renewed EU sustainable development Strategy ................................................................... 58 Conclusions ........................................................................................................................... 60 7 Renewable Energy in the Energy Policy of Europe .............................................................. 61 7.1 7.2 7.3 7.4 7.5 7.6 7.7 Opening remarks ................................................................................................................... 61 The importance of RES for Europe ....................................................................................... 62 New policy framework .......................................................................................................... 64 New legislative frameworks .................................................................................................. 65 Recent policy developments .................................................................................................. 67 Renewable energy policy and environmental protection ...................................................... 68 Conclusions ........................................................................................................................... 70 8 The legal framework RES – the RES Directive .................................................................... 73 8.1 8.2 Introduction ........................................................................................................................... 73 General remarks and definition ............................................................................................. 74 8.3 Mechanisms adopted under the 2009 RES Directive ............................................................ 77 8.3.1 Binding targets .............................................................................................................. 77 8.3.2 Monitoring the progress – national renewable action plans .......................................... 79 8.3.3 8.3.4 8.3.5 Flexible mechanisms ..................................................................................................... 80 Simplification of administrative procedures, guarantee of origin and access to grid .... 82 Use of biofuels ............................................................................................................... 86 8.4 Conclusions ........................................................................................................................... 88 9 Conclusions .............................................................................................................................. 90 9.1 9.2 9.3 9.4 The first research question..................................................................................................... 90 The second research question ................................................................................................ 91 The third research question ................................................................................................... 93 Final conclusion .................................................................................................................... 94 Bibliography ........................................................................................................................................ 96 1 Introduction 1.1 Background The energy and environmental sectors within the European Union (EU) are inseparably connected.
All manners of producing and consuming energy have an environmental impact.

Although the temptation is to overlook any concern for the environment during times of economic difficulty, the challenges of both producing and using our energy resources in a sustainable way and protecting our natural environment do present an opportunity to effect sustainable economic growth.1 Over the decades, the EU has been facing a growing number of challenges related to the energy sector.
The ever-changing global energy market and emerging issues of the environment and climate change created new tests for European energy policy.

Ever since the EU introduced the ―triad‖ of energy policy objectives, the relationship between environmental protection and the energy sector has been widely discussed.

The insertion of an environmentally benign use of energy right next to the issues of energy security and competitiveness made it a matter of the highest priority.
In 1998 the European Commission recognized a need to integrate environmental aspects into the booming energy sector.2 Since then, more and more attention began to focus on the already existing Treaty law principle of environmental integration and its practical insertion into the field of energy.
The turn of the 21st Century brought about an expansion of EU energy legislation, and new concerns about sustainability and climate change pushed the Member States (MS) to revise their energy policies in order to create ―greener‖ solutions.

There is general agreement on the fact that environmental concerns relating to the energy chain have been among the most powerful factors to have influenced EU´s energy policy.
Process of integrating environment and energy policies has provided the EU with tools to address pressing concerns about the impact of global warming.

The problem of climate change has been crucial in motivating the EU to debate its energy policy from a more practical perspective; indeed it is the connection between environmental and energy policies that has steadily transformed Europe's energy policy.3 In many ways the objectives in both the energy and environmental fields run alongside one another.
In particular, there exists a clear strategic importance in renewable energy 1 See further the Commission´s webpage on environmental integration into energy sector: http://ec.europa.eu/ environment/integration/energy/index_en.htm (visited on 30.04.2013).

2 Communication from the Commission, Strengthening Environmental Integration within Community Energy Policy, Brussels, 14.10.1998, COM(l998) 571 final.

sources being built into EU's new energy policy.


Increasing the energy contribution of sustainable renewable sources in the energy mix can indeed reduce the overall environmental and climatic pressures when compared with other types of energy.

1.2 The aim of this study and research questions The broad aim of this study is to introduce and discuss the principle of environmental integration and its relation to law-making in the energy sector within the EU.
The principle, even though one of the fundamental and general principles of EU law is not clearly defined in EU law and its meaning raises interpretational doubts.

Naturally, analyzing and discussing environmental matters relating to the whole range of European energy law and policy would be impossible in such a short study.

Therefore this study concentrates on integration of environmental concerns into, regarded as inherently environmentally-friendly, sector of renewable energy.
In order to properly address this broad objective, three more precise research questions have been specified, which are the following: - What is the role and scope of the principle of environmental integration in the law of the European Union?

- What is the competence of the EU in energy matters, how did it develop, and why does it matter how the competence is divided between the EU and Member States?

- How does renewable energy policy and law correspond with environmental sustainability requirements?
The need to insert environmental issues into all activities and policies of the EU found its way over time into EU´s primary law as one of the principles of general application.

Despite TFEU4 Article 11 fairly soft law nature, this constitutional principle suggests that it has a substantial responsibility for governing the procedures in place across the various fields of policy.
However, much disagreement remains over how the general concept of environmental integration and specifically how Article 11 should be interpreted.

Therefore further assessment is necessary of what the practicalities of environmental integration entail in 3 F. Morata, I. Solorio Sandoval, European Energy Policy An environmental approach, Edward Elgar 2012, p. 4.
4 Article 11 TFEU, Cconsolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ C 83/47 (30.3.2010), under this study TFEU refers to the Treaty on the Functioning of the European Union and TEU to the Treaty on European Union.

Article 11 TFEU will be subject to further discussions in Chapters 4, 5 and 6. particular EU settings, such as the energy policy sector.
An attempt to answer the first research question will shed some light on these issues and on environmental integration in general.

Energy is regarded as a strategic sector of primary importance; naturally, therefore, the MS are reluctant to transfer their powers in this field to a supranational organization like the EU.

According to the TFEU the competence in this area has been set up as shared between the EU and the MS.

This does not mean, however, that energy policy did not exist before 2009.
In the process of answering the second research question, explanations will be provided as to how European energy policy was shaped prior to 2009 and how it corresponded with environmental protection provisions.

It will also explain how the adoption of the TFEU influenced law-making in both sectors.

Finally, the third research question concerns the practical application of the principle of integration and the implementation of environmental issues in one particular field of energy production.
The renewable energy sector started to be prioritized in the EU in the turn of the 21st Century, therefore to achieve the overall goal of sustainable development, assessment in terms of the compliance of renewables with the environmental protection requirements became essential.
1.3 Method and outline The sources that dominate this study are official EU documents, such as primary (Treaty) law, case law, strategies in the fields of environment and sustainable development, energy policies, both general and those relating to renewable energy sources, and finally the renewable energy sources framework Directive (RES Directive).5 The research method is probably best described as a critical analysis of legal sources.
The core of the method used is to apply the problem of environmental integration in the field of renewable energy to existing documents and literature.

Therefore an essential part of this study is an analysis and critique of these legal sources.

The examination of these documents will be supported by the elaborations of prominent researchers in the field of European environmental and energy law.
Their viewpoints will be particularly important when attempting to analyze primary law, as it is inherently brief and as a rule does not offer broad and comprehensive definitions.

The 5 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 and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L 140/16 (5.6.2009), further referred to as the RES Directive.
answers, especially to the first and the second research questions, will be based on the findings of renowned experts in the field of European environmental law.

This study is divided into nine chapters.

Preceded by this brief introduction, Chapter 2 introduces the development of EU energy policy from the beginning of the European integration.

It also provides a general overview of the reasons why the EU turned its policy in the direction of renewable energy.
Finally it delivers an overview of the new Article 194 TFEU6, under which energy objectives have been placed.

Chapter 3 presents and discusses EU competence in energy and environmental matters.

The aim is to show how the choice of legal basis and the EU competence in the field of energy and environmental protection can influence the development of renewable energy law.
The chapter is based on the analysis of primary law and general principles of the European Union and it will attempt to answer the second research question.

The principle of integration as formulated in Article 11 TFEU is closely analyzed in Chapters 4, 5 and 6.

Chapter 4 will introduce the legal foundation and issues relating to the interpretation of the principle.
Chapter 5 will relate to the Treaty-based environmental provisions, as they constitute the ―environmental protection requirements‖ established under the principle of integration.

Chapter 6 will shed some light on the concept of sustainable development, which is also an essential part of the principle of integration and causes interpretational difficulties.

Reference to sustainability is made repeatedly in different EU policies but the definition and status of the principle remains vague.
These three chapters will try to provide an answer to the first research question.

Chapters 7 and 8 concentrate on renewable energy policy and law in light of environmental integration.

The objective of the Chapter 7 is to introduce the renewable energy policy of the EU as reflected in a number of strategic documents, and elaborates on their compliance with the policies on environmental protection and sustainability.
Chapter 8 introduces mechanisms adopted under the RES Directive and discusses their compatibility with environmental protection requirements.

These two chapters aim to provide an answer to the third research question.

Finally, Chapter 9 summarizes the presented material, answers the research questions raised above, and provides some overall conclusions on the issue of environmental integration into renewable energy law and policy.

6 Article 194 TFEU, supra note 4.


This article will be subject to further discussions in Chapters 2 and 3.
2 The EU’s energy policy and law 2.1 Development of EU´s energy policy and law – an overview For the purpose of this study, the history of the development of EU energy policy is divided into three periods: The first period began in 1951 with the beginning of European integration and lasted until 1986 (with a turning point in 1973 – the first international oil crisis); the second lasted from 1986 to 2007/2008 (with a turning point in 1992 – the signing of the Maastricht Treaty) and the third from 2007/2008 is still on-going.
The third period is the subject of the following chapters where it will be described and analysed in details.

However to provide the necessary background the first two periods will be briefly outlined.
2.1.1 From the beginning of integration 1951 until the Single European Act 1987 First attempts to integrate the European States after World War II had the character of sectorial integration.7 Western European States did not attach much importance to the issue of common energy policy during the period 1951-1973.
The establishment of the European Coal and Steel Community (ECSC) in 19518 was basically aimed at linking French and German key economic sectors in order to avoid potential armed conflict.9 By that time, coal had been satisfying most of the energy needs, while the energy sources such as oil and especially natural gas did not yet play a significant role in the global economy.10 Six years later, six European States signed the Treaty of Rome establishing the European Economic Community, (EEC Treaty)11 and the Treaty establishing European Atomic Energy Community12 (EURATOM).
For more than 20 years from the establishment of the ECSC the interest of the MS in energy regulation was limited to the scope and objectives of the ECSC and the EURATOM.

The predecessor of the EU, the European Economic Community (EEC), did not 7 See further: P.J.G.

Kapteyn, A.M. McDonnel, K.J.M.

Mortelmans, C.W.A.

Timmermans, The Law of the European Union and the European Communities, Kluwer Law International BV 2008, pp.

1-8.
1-8.

8 Treaty establishing the European Coal and Steel Community, http://eur-lex.europa.eu/en/treaties/dat/11951 K/tif/TRAITES_1951_CECA_1_EN_0001.tif (visited on 30.04.2013).

The Treaty is no longer in force – it was adopted for 50 years period.

9 J.G.

Kapteyn,A.M.

McDonnel, K.J.M.

Mortelmans, C.W.A.

Timmermans , supra note 7, p. 4.

10 World Economic Forum, Energy Vision 2013 Energy transitions:Past and Future, http://www3.weforum.org/ docs/WEF_EN_IndustryVision.pdf (visited on 30.04.2013).
11 Treaty establishing the European Economic Community, 25/03/1957 Rome, http://eur-lex.europa.eu/en/ treaties/dat/11957E/tif/TRAITES_1957_CEE_1_EN_0001.tif (visited on 30.04.2013).

12 Treaty establishing the European Atomic Energy Community (Consolidated version 2012), OJ C 327 (26.10.2012).

10 directly include any energy related matters in the text of the EEC Treaty.
Only occasionally there were attempts to regulate certain selected issues.13 The 1973 oil crisis14 ended careless consumption of oil in most Western States.

The Council of the European Communities, under the counter effects of the deepening crisis, decided in 1973 to establish a Special Energy Committee.
Its task was to prepare draft Council documents on energy policy and to monitor their implementation in the MS. A year later, the European Commission (Commission) presented a communication Towards a new energy policy strategy for the Community15 and the Council adopted a resolution concerning a new energy policy strategy for the Community.16 Renewable energy sources (RES) at that time did not play any visible role in EEC policy.
It was not until the 1980s when some MS began to recognize RES as an alternative to conventional, non-renewable energy sources.

Even the oil crisis of 1973 did not lead to any change in development of RES at the European Communities level.

By that time energy concerns (traditionally oil, gas and electricity) remained issues of exclusive national competence.

It can be said, however, that the oil crisis was the first impetus that pushed forward programs indirectly contributing to the evolution of RES.
Even though a common European policy did not exist at the time, some MS, in order to secure their supplies, were forced to look for sources of energy other than fossil fuels.

They individually turned their energy policies mainly in the direction of their own coal and gas supplies and the development of nuclear energy.

To a lesser extent, however, some of the MS began to emphasise national development programs supporting the use of RES, and investing in research, development and demonstration programs.
Pioneers in wind energy, Germany and 13 In 1964, the EC MS signed the first document on the matter of energy - the protocol of specific actions aimed at developing a common energy policy.

The governments of EC Member States expressed the hope of creating a common energy market.

However, there have been no concrete steps for the development of the idea of a common energy policy in the Communities in this period.
The only exceptions were: the adoption of the Directive on the approximation of the laws of the Member States relating to gas meters and two directives on compulsory stocks of crude oil.

See: http://www.europedia.moussis.eu/books/Book_2/6/19/01/?all=1 (visited on 30.04.2013), Council Directive 71/318/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to gas volume meters, OJ L 202/21 (6.09.1971).
14 In 1973, members of Organization of Arab Petroleum Exporting Countries proclaimed an oil embargo, which caused immediate economic effects - the price of oil quadrupled.

http://www.iea.org/media/1ieahistory.pdf (visited on 30.01.2013).

15 Communication and proposals from the Commission to the Council, Towards a new energy policy strategy for the Community, COM(74) 550 final/2 (26.06.1974).
16 Council Resolution of 17 December 1974 on a Community action programme on the rational utilization of energy, OJ C 153 (9.07.1975), pp.

1-2.

11 Denmark, developed the first wind energy programs in the mid 70s.

It took another two decades however before RES were given priority in the EU.

From the Single European Act until Lisbon 2007 2.1.2 It was not until the adoption of the Single European Act (SEA)17 when stronger; however still an indirect, legal base for European energy policy was introduced.
The SEA established the objective to complete the creation of the internal market by 1992.

With that objective, the Commission began to use internal market provisions as a legal basis for legislative initiatives in the gas and electricity sectors.18 Another important change brought to the scene by the SEA was the introduction of particular environmental objectives into EU law.
In line with this, Article 130r (now Article 193 TFEU) stipulated, inter alia, a prudent and rational utilization of natural resources and this objective ―has proved over time to be particularly significant for the adoption of energy efficiency and other energy-related legislation and programs.‖19 The second half of the 80s also brought changes in the renewable energy field.
In 1986 the Council adopted a resolution, in which renewables were for the first time announced among policy objectives (the objective that ―new and renewable energy sources in place of conventional fuels should be substantially increased, thereby enabling them to make a significant contribution to the total energy balance‖).20 Concerns of the MS were however mostly still related to issues on energy security.
Two years later, the Council adopted a recommendation on developing the exploitation of renewable energy sources in the Community, reaffirming the need for changes in policy and legislation in the field of energy.21 In the 1980s however the development of energy policy in the EU has still not provided for the RES as an independent domain.
The Maastricht Treaty of 199222 extended the area of Community action on energy (Article 3t), and introduced a new title: Trans-European Networks (Article 129b).23 The 17 Single European Act, OJ L 169 (29.06.1987).

18 M.M.

Roggenkamp, A. Rønne, C. Redgwell, I. del Guayo, Energy Law In Europe, EU and International Law and Institutions, Oxford University Press 2007, p. 228.

19Ibid., p. 228.
19Ibid., p. 228.

20 Council Resolution, concerning new Community energy policy objectives for 1995 and convergence of the policies of the Member States, OJ C 241 (25.9.1986), pp.1-3.

21 Council Recommendation of 8 November 1988 to promote cooperation between public utilities and auto- producers of electricity, 88/611/EEC, OJ L 335/29 (7.12.1988).

22 Treaty Establishing the European Community, OJ C 224 (31.08.1992), in this study referred to as the Maastricht Treaty.
23 Development of Trans -European Networks has been regarded as one of key elements for the creation of the Internal Market.

This development included the interconnection and interoperability of national networks as well as access to such networks and applies to the fields of transport, energy and telecommunications.
See: S.Andoura, L.Hancher, M. van der Woude, Towards a European Energy Community A Policy Proposal, 12 Treaty also strengthened the legal basis for the environmental protection by adding into general provisions the integration principle.

However, no separate chapter on energy was included in the Treaty at this time.
In the field of policy, the 1995 White Paper on Energy Policy for the European Union introduced a triangle (triad) of energy policy objectives, representing an overall, long term objectives of EU energy policy: environmental benign use of energy, security of energy supply, and improved competitiveness.24 In the White Paper, the Council confirmed that legislation in the field of energy was not extensive and partially outdated and recognized considerable gaps in the Community‘s instruments.25 The first decade of the 21st century, however, brought about an expansion of EU energy legislation.
According to the Commission, legislation on energy more than doubled from 2000 to 2005.26 Currently EU legislation in the energy field consists of over 160 acts, both general and sectorial.27 New concerns about sustainability and climate change pushed the MS to revise their energy policies in order to create ―greener‖ solutions.
Few pioneering countries introduced feed-in tariffs long before the adoption of the framework RES directive.28 In 1993, the Multiannual programme for the promotion of renewable energy sources in the Community (Altener) was introduced, with the objective of reducing carbon emissions through the promotion of renewable energy.29 The Altener program aimed to double the share of renewables from 4% in 1991 to 8% in 2005, triple the production of electricity generated by RES, and increase the share of biofuels to 5% of vehicle fuel consumption.30 The program also introduced some targets, but could not be regarded as a general policy on RES.
What did not happen in 1993 happened four years later.

The 1997 White Paper Energy for the future: Renewable Sources of Energy can be considered as the birth of the EU‘s RES http://www.eng.notre-europe.eu/media/europeanenergycommunity-andoura-hancher-vanderwoude-ne-march10 .pdf (visited on 31.04.2013).

24 Commission of the European Communities, White Paper An Energy Policy for the European Union, Brussels, COM(95) 682 final (13.12.1995).
It is worth mentioning, that in 1995 three, strongly focused on environmental protection States joined the EU: Austria, Finland and Sweden.

25 Ibid., p.14 26 M.M.

Roggenkamp, A. Rønne, C. Redgwell, I. del Guayo, supra note 18, p. 230.

27 Overview of the secondary EU legislation (directives and regulations) that falls under the legislative competence of DG ENER and that is currently in force, http://ec.europa.eu/energy/doc/energy_legislation _by_policy_areas.pdf (visited on 30.04.2013).
28 See further: J.P.M.

Sijm, The Performance of Feed-in Tariffs to Promote Renewable Electricity in European Countries,2002, ftp://ecn.nl/pub/www/library/report/2002/c02083.pdf (visited on 30.04.2013) 29 Council Decision of 13 September 1993 concerning the promotion of renewable energy sources in the Community (Altener programme) 93/500/EEC, OJ L 235, (18.9.1993), pp.

41-44.

30 Ibid.
41-44.

30 Ibid.

13 policy framework.31 Preceded by the 1996 Green Paper on Renewable Sources of Energy32 and 1995 White Paper on Energy Policy33, the document was the first comprehensive framework initiative for renewable sources policy.

The strategy did not however contain any legal or regulatory provisions, but included an indicative target.
Since 1997, the EU has been working towards a renewable energy supply equivalent to 12% of the EU‘s total energy consumption by 2010: ―the strategy and action plan in this White Paper therefore, are directed towards the goal of achieving a 12% penetration of renewable in the Union by 2010 - an ambitious but realistic objective.‖34 Significant changes in the EU´s legislative framework for RES began with the beginning of the new century.
In 2001, a framework directive on the promotion of electricity produced from renewable energy sources in the internal energy market was accepted.35 This directive provided indicative targets for 2010 and proposed several principles for national support systems.
In 2003 the framework for RES was supplemented with a Directive on the promotion of the use of biofuels or other renewable fuels for transport.36 However, in 2009 a Directive on the promotion of the use of energy from renewable sources37 (RES Directive) amended and subsequently repealed both former directives, thus a new EU regulatory framework had entered into force.

The current legal framework for RES will be analysed and discussed in detail in Chapters 6 and 7.
2.2 Reasons for transition towards new energy sources According to Zillman, Redgwell, Moore and Barrera-Hernandez, there are at least five reasons why the shift towards alternative energy sources was needed: (1) climate change, (2) security of supply, (3) increasing demand for energy, (4) investments needed for maintenance, and (5) the needs of the undeveloped world.38 Because environmental sustainability (including climate change) and energy security are two of three European long term 31 Communication from the Commission, Energy for the Future: Renewable Sources of Energy White Paper for a Community Strategy and Action Plan, COM (97) 599 final (26/11/1997).
32 Communication from the Commission, Energy for the future: renewable sources of energy Green Paper for a Community Strategy COM(96)576 (20.11.1996).

33 Communication from the Commission, supra note 24.

34 Communication from the Commission, supra note 31, p.9.

35 Directive 2001/77/EC of the European Parliament and of the Council on the promotion of electricity produced from renewable energy sources in the internal market, OJ L 283/33 (27.10.2001).
36 Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the use of biofuels or other renewable fuels for transport OJ L 123/42 (17.5.2003).

37 Directive 2009/28/EC, supra note 5.

38 See further: D.N.

Zillman, C. Redgwell, Y.O.

Moore, and L.K.

Barrera-Hernandez, Beyond the Carbon Economy, Energy Law in Transition, Oxford University Press, New York, 2008, p. 6.
14 objectives in the energy field, they are discussed (in the European context) in further detail below.

The other reasons include a substantial increase in global energy demand, due to the higher needs of not only Europe but, above all, the emerging economies such as China and India.

In addition to a significantly increased energy demand, an even bigger problem may be the magnitude of investments required for the maintenance of existing energy supply facilities in all sectors and for meeting new demands.
According to the International Energy Agency (IEA), the lower level of investment is required to finance the alternative policy than to maintain existing.39 Finally, one-third of the population lacks access to modern energy services and a lack of energy supply precludes development.
Alternatives must be introduced to satisfy the energy needs of all regions of the world.40 2.2.1 Energy Security and the EU Energy security can be considered as the primary cause which led European countries into cooperation in the field of energy.
Europe‘s interest in securing its energy supply has both internal and external aspects.41 With rising energy prices, a decline of energy production within Europe (-14% 1999-2009, thus growing energy dependency), a fragmented internal market on one side and political instability in energy producing regions, emerging economies that increase global demand, Russia‘s political use of its energy sources and simply the threat of another crisis on the other side, Europe has been forced to work out a wise and more comprehensive policy that will secure the healthy development of its Member States.42 As Behrens outlines, energy supplies are considered secure when they are delivered on an ―adequate, reliable and affordable basis‖.43 The EU‘s overall energy dependency is estimated at 53, 9%, its dependency on oil supplies at 83, 5%, and on gas 64, 2%.
These figures indicate Europe's heavy reliance on external supplies, and especially that the share of oil and gas in the overall European energy mix amounts to more than 60%.44 With such a high degree of 39 IEA presented Alternative Policy Scenario, in opposition to Reference Scenario, See: D.N.

Zillman, C. Redgwell, Y.O.

Moore, L.K.

Barrera – Hernandez, supra note 38, pp.

4-5.

40 Ibid., p.4.


41 See further: P. Belkin, The European Union’s Energy Security Challenges, CRS Report for the Congress, Congressional Research Service 2008, pp.

1-2.

42 Behrens divides the risks to energy security between: physical, technical, economic, political and environmental.

See: A. Behrens, The Role of Renewables in the Interaction between Climate Change Policy and Energy Security in Europe, Renewable Energy Policy and Law Review, 1/2010, p.7.

43 A. Behrens, supra note 42, p. 12.


In one of the directives, the EU defines security of electricity supply as ― the ability of an electricity system to supply final customers with electricity‖, see: Article 2(b) of the Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of electricity supply and infrastructure investment, OJ L 33/22 (4.2.2006).
44 Eurostat, Energy, transport and environment indicators, Eurostat Pocketbooks 2011 Edition, pp.

24-31.

15 dependence on supplies from third countries Europe is exposed to either reductions in or the cutting off of supplies, as well as significant price leaps.

That clashes with the definition of security of supply.
In order to improve energy security the 1973 oil embargo highlighted three main needs of the EU MS. Firstly, it exposed a need for increased energy policy collaboration among European countries and between Europe and the energy exporters.

Secondly, that institutional mechanisms for increased coordination in the event of future supply disruptions were essential.
Thirdly, that Europe should prepare strategies to prevent it from becoming the victim of future attempts by exporting nations to use energy as a political or economic weapon.45 Apart from undertaking internal efforts to work towards energy policy, Europe concerned about security of supplies worked for international instruments of cooperation.
From the initiative of a self- insufficient and conscious Europe, international organizations and instruments such as the International Energy Agency and the Energy Charter Treaty have been developed.
The International Energy Agency was created in 1974 and it was Europe‘s primary instrument for monitoring and analyzing the global energy market.46 The concept of the Energy Charter was born in the beginning of the 90s, when European countries expressed an interest in cooperating in the field of energy with Eastern Europe, and especially the USSR.

In 1991 the Energy Charter Declaration was signed to promote energy cooperation and diversify Europe's energy supply.
It was, however, a purely political document and did not bind the parties.

States continued working towards a binding document, and finally in 1994 the Energy Charter Treaty (ECT) was signed.47 The ECT covers broad range of energy – related issues, with the objective of establishing a legal framework to promote long-term energy cooperation and to ensure an open, non-discriminatory market for the parties.
Its principal provisions regulate energy-investment, trade and transit issues.48 Fifty one European States signed the Treaty, however Russia and Norway failed to ratify it.

This 45 See further: P. Belkin, supra note 41, p. 3.

46 See: Inetnational Energy Agency official webpage, http://www.iea.org/aboutus/history/ (visited on 30.04.2013).
47 Energy Charter Secretariat, The Energy Charter Treaty and Related Documents, http://www.encharter.org/ fileadmin/user_upload/document/EN.pdf (visited on 30.04.2013), see also: 98/181/EC, ECSC, Euratom: Council and Commission Decision of 23 September 1997 on the conclusion, by the European Communities, of the Energy Charter Treaty and the Energy Charter Protocol on energy efficiency and related environmental aspects, OJ L 69 (9.3.1998).

48 See further M.M.
48 See further M.M.

Roggenkamp, A. Rønne, C. Redgwell, I. del Guayo, supra note 18, p. 149.
16 fact significantly weakens the importance of the Treaty, which was to be directed towards improving relations with exporters of energy.49 It is worth mentioning at this point that since the signing of Energy Charter Treaty and the changes brought about by the Maastricht Treaty, the European Commission, using its competence in competition, environment and consumer protection, tried to shape a policy in the field of energy in a variety of ways: promoting the internal market of gas and electricity, encouraging the development of alternative energy supplies or pushing a more cooperative approach to external relations.50 The EU developed its internal policies on energy, but at international level, despite working on agreements with suppliers, has not yet succeeded on the level that would secure the energy supply.
Russia remains the main supplier of oil and gas to European markets.51 The gas crisis of 200652 only reinforces the conviction that alternative ways of securing Europe‘s energy supplies need to be developed.

2.2.2 The EU as a leader in the global climate change battle Currently, apprehensions related to energy security are complemented by climate change concerns.

The 1992 Rio Conference and signing of the UN Framework Convention on Climate Change started the global battle against global warming.
As already mentioned, the year 1992 was crucial for the development of environmental policy in the European Union.

Since the Maastricht changes, as well as the Earth Summit, the EU increasingly established itself as an international leader in global environmental governance – most prominently in the area of climate change.

In the Kyoto Protocol the EU committed itself to an 8% cut in greenhouse gas emissions by 2012.
Even though no specific global goals were set for the energy sector during the Johannesburg Summit in 2002, disappointed Europe, together with other States, formed a group of "pioneer countries" that established ambitious national/regional goals.

Despite the failure of the Copenhagen Conference in 2009, and the non-binding character of the Copenhagen Accord, the EU internally made a binding commitment of 20% cuts until 2020.
On the international level, the 20% binding target has been confirmed recently in 2012 Doha Amendment to the Kyoto Protocol, where the EU European Union repeated its ―conditional 49 A. Konoplyanik; T. Wälde, Energy Charter Treaty and its Role in International Energy, Journal of Energy & Natural Resources Law Vol.

24 No.

4 2006, pp.

523–558.

50 See: P. Belkin, supra note 41, pp.

3-4.

51 Eurostat, supra note 44, p.38.


52 On 1 January 2006, due to Russian-Ukrainian conflict, Russia cut off all gas supplies passing through Ukrainian territory, simultaneously causing a significant reduction of supplies to the Member States.
17 offer to move to a 30 per cent reduction by 2020 compared to 1990 levels, provided that other developed countries commit themselves to comparable emission reductions and developing countries contribute adequately according capabilities.‖53 to their responsibilities and respective The EU´s leadership in the climate change battle is manifested in both internal and external aspects.
Internationally, since the beginning of discussion about climate change, Europe has presented not only ambitious targets for itself, but has also been calling for an international legally binding agreement to cut global emissions.

From the beginning of the 1990s the EU has systematically improved climate and energy strategies, trying to close the so-called ―credibility gap‖.54 It must also be mentioned that in Europe, public support for environmental policy is relatively strong.
This further confirms the EU as the world leader and an ambassador of the fight against climate change, which means, above all, the introduction of ―greener‖ energy.55 2.2.3 Climate change, energy security and the role of RES It can be concluded that the EU´s policies in the second half of the 20th Century in the field of energy security and climate change were clashing, not to say mutually exclusive.
In 2007 the International Panel on Climate Change (IPCC) linked temperature increases with the growing level of global greenhouse gas emissions.
Since 80% of Europe‘s emissions are related to the energy sector, a significant change in this field has to be achieved to stabilize global warming within the level of +2°C.56 This would require developed countries to reduce their emissions by 25–40 % by 2020 and 80–95 % by 2050 in comparison to 1990 levels.57 The above mentioned factors have driven the EU to concentrate on making policy that promotes energy efficiency and develops RES and clean technologies, in order to reduce overall greenhouse gas emissions.
53 Doha Amendment to the Kyoto Protocol, Doha, 8 December 2012, C.N.718.2012.TREATIES-XXVII.7.c.

54 See further: S. Oberthur and C. Roche Kelly, EU Leadership in International Climate Policy: Achievements and Challenges, The International Spectator: Italian Journal of International Affairs, Volume 43, Issue 3, 2008, p. 39.

55 Ibid.
55 Ibid.

56 This average is considered the level that would prevent dangerous anthropogenic (i.e., human) interference with the climate system, not causing irreversible environmental balance.

IPCC Fourth Assessment Report: Climate Change 2007, http://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_ synthesis_report.htm (visited on 30.04.2013).

57 A. Behrens, supra note 42, pp.

5-6.


18 The Climate and Energy Package adopted in 200958 is the foundation of a strategy aimed at fighting against climate change and shifting the European energy mix.

The package will be discussed in detail in the following chapters, with an emphasis on the RES directive.
By establishing a binding target of 20% use of RES in the EU energy mix until 2020, Europe is trying to raise its share of domestic energy production without increasing greenhouse gas emissions, thus reducing the EU‘s import dependence in the long term.

However, the promotion of RES is not the only alternative to heavy fuels.
Europe is also expanding energy efficiency policies (also part of the package) and developing innovative technologies such as carbon capture and storage (CCS).59 Despite the controversy that arises in some countries, nuclear energy also remains a strong alternative to fossil fuels across Europe.
2.3 Current Treaty framework and EU competence The changes that were introduced by the Lisbon Treaty tackle, inter alia, the energy issue.60 Included in the Treaty on the Functioning of the European Union61 (TFEU) under Title XXI, ―Energy‖ consists of one, relatively short but important Article 194.62 Energy policy objectives have been identified, while stressing that any action should be undertaken in a spirit of solidarity between Member States and with regard for the need to preserve and improve the environment.
The four goals in the field of energy are as follows: - ensuring the functioning of the energy market; - ensuring the security of energy supplies in the Union; - promoting energy efficiency and energy saving and the development of new and renewable forms of energy; - promoting the interconnection of energy networks.63 The general procedure for the adoption of measures on energy is the ordinary legislative procedure.
Additionally, Article 194(3) TFEU stipulates that the EU has competence to adopt measures necessary to achieve objectives that are primarily of a fiscal nature through a special 58OJ L 140, 5.6.2009, See further: Chapter 6.

59 CCS Directive is also part of a Climate and Energy Package, see further: Chapter 6.

60 A new chapter on energy has been introduced already in the Constitutional Treaty of 2005; however the Treaty did not enter into force after its rejection in the referendums by Dutch and French.
61TFEU, supra note 4.

62Article 194 of TFEU, supra note 4.

63 Ibid.

19 legislative procedure – one requiring the Council´s unanimity and consultation of the Parliament.

Before the Lisbon changes the EU had shaped its energy policies by using its competence in other fields, mainly: competition, environment and competences with regard to the internal market.

TFEU introduced a new legal basis.


The introduction of the legal basis in Article 194 TFEU allows the EU to establish measures relating to EU energy policy.

Energy became one of the issues subject to the principle of shared competences (see further Article 4 TFEU and Chapter 2) between the EU and the MS.

In short, shared competence means that both the EU and MS are competent to adopt binding acts in the field of energy.
However, the MS can only exercise their competence in so far as the EU has not exercised its or has decided not to exercise its own competence.64 It can be stated that the basic control of energy policy has partly been relocated from Member States to the EU level.
However, as stated in Article 194(2), measures taken by the EU Institutions cannot affect a MS‘ choice to determine the conditions for exploiting its energy sources, its choice between different energy sources, or the general structure of its energy supply.

The insertion of the reservation helps to define the boundaries between Member States and the EU‘s competence.
It makes it clear that MS retain sovereignty over national energy resources and have the right to determine their energy mix and the structure of their energy supply.

The TFEU reinforced the EU commitment to environmental and sustainability issues.

That is why the reservation that is established in Article 194(2) is limited by the provisions of Article 192 concerning action which may be undertaken by the EU institutions to achieve environmental objectives.
In addition to Article 194, the TFEU includes some elements contributing to the enhancement of solidarity between states.

In response to the gas supply crisis in 2006, some of the MS (mainly Poland) insisted on inclusion into the Treaty ―solidarity obligation".
According to Article 122 the Council can decide in a spirit of solidarity on measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.65 It is not yet clear, what appropriate measures will mean in practice and what difference the obligation introduced will make.

However it confirms Europe‘s concern about energy dependency and underlines the EU cooperation in the energy field.
Another reference to the 64 Division of competences within the European Union, http://europa.eu/legislation_summaries/institutional_ affairs/treaties/lisbon_treaty/ai0020_en.htm (visited on 30.04.2013).

65 Article 122 TFEU, supra note 4.

20 energy sector in the Treaty is made in Articles 170-172.
The TFEU reiterates the provisions of the Maastricht Treaty concerning trans-European networks.66 It can be said that rather than being an attempt to increase the competence of the EU in energy field, the amended articles represent an acknowledgement of the growing importance of energy as an economic as well as a political issue.

New provisions do not constitute a major change – the Treaty does not alter already existing routes of shaping energy policy, but rather adds new, direct ones.
The objective of promoting renewable energy and energy efficiency became an aim of EU policy on its own, instead of being just a means of achieving other objectives.

2.4 Conclusions This chapter introduced the development of EU energy policy from the beginning of European integration up until now.

Energy policy in the European Union developed basically from the 1970‘s, but a rapid expansion can be observed from the turn of the 21st Century.
RES began to play a significant role in EU Policy since the rise of the problems of energy dependence and international concerns about climate change.

The EU positioned itself as a world leader and an ambassador of the fight against climate change, which resulted in pressure to introduce a consistent and ―green‖ energy policy internally.
With the change of the Treaties in 2007 energy finally became regarded as a shared competence between the EU and MS, and energy objectives have been placed under Article 194 TFEU.

Since the adoption of the Lisbon Treaty, EU institutions do not have to justify the action taken in the field of energy as an effort to achieve objectives in other sectors.

The development of renewable energy sources is now a separate objective of the European Union.
In the next chapter the competence of the EU in the fields of environmental protection and energy will be introduced.

Primary law will be analyzed in order to answer the question of how environmental issues should be entwined into the law and policy of renewable energy sources.

66 See: Articles 170-172 TFEU, supra note 4.


21 3 The EU´s competence in the fields of environmental protection and energy 3.1 Introduction and objective When considering the issues of energy and the environment in the EU, it is necessary to bring up the subject of the EU´s competence in these areas, as well as the choice of legal basis for taking actions and adopting any measures.
These issues are basically regulated by Treaty law, and the Court of Justice has also ruled on them more than once.67 The aim of this chapter is to show how the choice of legal basis and the EU‘s competence in the field of energy and environmental protection can influence the development of renewable energy law.

This chapter is based on an analysis of primary law and general principles of the European Union such as principle of conferred powers, shared competence, subsidiarity and proportionality.
Their proper application, in combination with Articles 191- 194 TFEU, form a legal basis for the adoption of legal measures in the field of renewable energy.

3.2 The principle of conferred powers According to the principle of conferred powers, EU institutions shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.
68 Basically it means that the EU does not have unlimited competence and has to justify any legal action and to reason why the action could not have been undertaken by the Member States (MS).69 Moreover, if a MS decides to bring an action against any institution, based on the argument that the legal act was not adopted on the correct legal basis, the Court of Justice, according to Article 264 TFEU, shall declare the act void.
According to Jans and Vedder, the choice of legal basis in relation to the environment is particularly important for three reasons, as it will determine (1) the competence of the EU concerning the matter or how extensive the powers are in a given field; (2) the decision- 67 These issues will be further discussed in the chapter, See, e.g., Cases: C-300/89, Judgment of the Court of 11 June 1991,Commission of the European Communities v Council of the European Communities, European Court Reports 1991, I-02867 and C-178/03, Judgment of the Court of 10 January 2006, Commission of the European Communities v European Parliament and Council of the European Union, European Court Reports 2006, I-107.
68 Article 13(2) TFEU, supra note 4.

69 J.H.

Jans, H.H.B.

Vedder, European Environmental Law, Fourth Edition, Europa Law Publishing, Groningen 2012, p.13 22 making process the measure is adopted, and 3) if the Member States can adopt more stringent measures.70 In the coverage below and taking into account the above principles, the legal bases for environmental and energy matters and the relationship between them will be discussed.
Articles 191-193 of the TFEU provide the objectives and principles for EU´s activities in the field of environmental protection and Article 194 is now the basis for EU action in the field of energy.

3.3 EU´s competence in the fields of environment and energy The TFEU, under Article 2, introduces and defines three types of competencies of the EU: (1) exclusive, (2) shared and (3) supporting.

Exclusive competence identifies the EU as the only legislator in the given field (e.g.
customs), a supporting competence enables the EU ―to carry out actions to support, coordinate or supplement the actions of the Member States‖ without however taking over the competence of the MS in the field (e.g.

tourism).71 Both the environment and energy are situated in the area of shared competence and, while in the field of environment such provision is not a novelty, energy is a new area falling within the area of shared competence.
As noted in Chapter 2, before the Lisbon changes the EU had shaped its energy policies by using its competence in other fields, mainly: competition, environment and competences with regard to internal market.72 A good example of such a solution is the legal basis of the RES Directive.73 The directive is based on Article 175(1) EC (now Article 192(1) TFEU), and internal market Article 95 EC (now Article 114(1) TFEU).

Details of this solution will be further described in a later section of this chapter.
Article 2 TFEU explains that under shared areas of competence, MS and the EU are jointly responsible for developing the policy and law.

However, the MS: shall exercise their competence to the extent that the Union has not exercised its competence.

The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.74 70 Ibid.

71 See further Article 2, 3 and 6 TFEU, supra note 4.

72 See further: Chapter 2.


73 See: RES Directive, supra note 5.

74 Article 2 TFEU, supra note 4.

23 Shared competence allows the EU to choose between number of available at the EU instruments when adopting the measure.75 Choosing the instrument must however be carried out in line with the general principles of EU law, namely: subsidiarity and proportionality.

The principle of subsidiarity is established under Article 5(3) TEU.
It stipulates that: in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, (…), but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
76 Justification with regard to the principle of has to be provided for any adopted measure and, as presented by Jans and Vedder, ―legislation to date in general provides justification in this respect.‖77 As rightly noted by these authors, the examination of EU law leads to the conclusion that ―probably not one environmental directive or regulation would fail‖ to comply with the subsidiarity requirements due to the wide scope of most environmental problems.78 Regarding RES, and especially the 20% minimum target, the conclusion can be drawn that when the ambition of the EU measure is sufficiently high, the EU action can be justified because to achieve the ambitious target, harmonized actions in the fields of, e.g., administrative procedures, information and training need to be undertaken.79 ―Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties‖80 The principle laid down in Article 5(4) TFEU stipulates that the European legislature must choose measures which leave the greatest degree of freedom for national decisions, and the national legal systems should be respected.
In this regard, the minimum standards, framework directives and non- binding instruments should be applied as much as possible.81 In the case of renewable energy a new framework directive has been adopted.

This measure is considered appropriate and in line with the principle of proportionality, as it 75 Regulations, directives, decisions, recommendations and opinions as listed in Article 288 TFEU, supra note 4.

76 Article 5(3) TEU, supra note 4.

77 J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 14.


78 See further: ibid., pp.

14-17.

79 D. Foquet, J.V.

Nysten, A. Johnston, Potential areas of conflict of a harmonized RES support scheme with European Union Law, August 2012, http://www.res-policy-beyond2020.eu/pdf/Potential%20areas%20of%20 conflict%20with%20EU%20law%20(beyond2020%20-%20D3-1).pdf, p.31.

(visited on 30.04.2013) 80 Article 5(4) TEU, supra note 4.

81 See further: J.H.

Jans, H.H.B.

Vedder, supra note 69, pp.

17-20.


24 defines the objectives while leaving the implementation and the choice of measures to the MS.82 Therefore, it can be concluded that Articles 5(3) and (4) establish a ―threefold test‖83 stating that a) MS will not be able to take action sufficient to meet the objective of the measure; b) the objective can be better achieved on the EU level because of the scale of the effects of the measure; c) the EU cannot go beyond what is necessary to achieve the objective.
3.4 Decision-making processes in the fields of environment and energy The Treaty basis for decision-making on environmental issues has found its place in Article 192 and on energy issues in Article 194 (2) and (3).

In both cases the law-making is based on the ordinary legislative procedure that requires cooperation of the Commission, the European Parliament and the Council.84 Both articles also provide exceptions to this basic rule, in case of ―sensitive‖ issues.
These exceptions raise questions of interpretation, because while they seem to be similar in meaning and task, they are not identical.

Under environmental provisions, Article 192(2)(c) is essential in relation to the energy sector.
It states that in case of ―measures significantly affecting a Member State‘s choice between different energy sources and the general structure of its energy supply‖ the Council should act unanimously, after consulting other institutions.85 Article 194(2) provides for derogation from the ordinary procedure, without however leaving the door open for unanimity.
It stipulates that measures necessary to achieve energy objectives, ―shall not affect a Member State‘s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply‖.

What are the implications of such solutions?

The scope of both provisions is debatable.
First of all, as has been noted, while Article 192(2)(c) stipulates unanimity when adopting ―measures significantly affecting‖ a MS‘s rights to choose between different energy sources and the general structure of its energy supply, Article 194(2) does not allow any actions on EU level that could affect ―Member State‘s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general 82 D. Foquet, J.V.
Nysten, A. Johnston, supra note 79, p. 32.

83 See further: P. Craig, G. de Burka, EU Law: Text, Cases and Materials, Fifth edidtion, Oxford University Press 2011, p.94.

84 See Articles 192(2) and 194(2) TFEU, supra note 4.

85 It is worth mentioning at this point, that the procedure has not yet been applied in practice.

See: D. Foquet, J.V.

Nysten, A. Johnston, supra note 79, p. 13.

25 structure of its energy supply‖.


Therefore under Article 194 of the scope of the EU‘s activities in the field of energy is much more limited.

Theoretically speaking, in accordance with Article 192(2)(c), only measures that are ―significantly affecting‖ MS choice will need to be subject to unanimity, while those ―affecting‖ will be subject to the ordinary legislative procedure.

In accordance with Article 194(2), no measures having any effect on the MS rights mentioned can be adopted.
However, as rightly noted by Foquet, Nysten and Johnston, measures from Article 194(2), as an exception to the basic ordinary procedure, need to be understood in a narrow sense as it is questionable ―whether there is any matter in the field of energy that can be regulated by the EU without having an effect on the Member State‘s right in the fields of Article 194(2)(2)‖.86 The Court of Justice has not had so far the opportunity to comment on the matter.87 Another interpretational issue is the question of whether Article 194(2) ―serves as an indication of exclusive competence of the Member States in the areas mentioned‖88 or rather as a possibility to ―opt out of the national application of an EU legislative measure passed according to the procedure specified in that provision.‖89 Foquet, Nysten and Johnston suggest that the derogation from Article 194(2) was included as a result of a compromise, because the MS were not ready for the transfer of competence in such a strategic sector as that of energy.90 Thus, such measures should be left to the MS to decide without any interference from the EU.
On the other hand, it is still possible for a measure to be adopted by unanimity based on Article 192(2)(c).

A different approach represented by some authors is that a MS can ―opt out‖ of the application of the measure at a national level, but it cannot ―veto‖ the adoption of the measure at the EU level.
Until now the Court of Justice did not express its views on this issue, however, the literature seems to confirm the idea that such measures should not at all be adopted at EU level.91 86 See further: D. Foquet, J.V.

Nysten, A. Johnston, supra note 79, p. 17.


87 See: M. Ballesteros, The Impact if the Lisbon Treaty on climate and energy policy – an environmental perspective, Client Earth legal briefing January 2010, p. 12. http://www.clientearth.org/reports/clientearth- briefing-lisbon-treaty-impact-on-climate-and-energy-policy.pdf (visited on 30.04.2013).

See also Chapter 2.3.

88 Ibid., p. 16.

89 Ibid., p.17.

90 Ibid.

91 See further: M. Ballesteros, supra note 81, p. 11 and D. Foquet, J.V.
Nysten, A. Johnston, supra note 79, p. 17.
26 3.5 Adoption of more stringent measures Under Article 193 TFEU the MS have the right of ―maintaining or introducing more stringent protective measures‖ in the field of environmental protection, as long as such measures are in line with the Treaties and the Commission is notified.92 According to Jans and Vedder, the ―impact of Article 193 on national law should not be overestimated‖ as the MS hardly make any use of their powers.93 In relation to energy, TFEU does not provide for such solution.
When considering the issue from this perspective, e.g., targets for energy savings or energy from renewable sources, the lack of such provision could result in an impossibility of committing to higher targets.

On the other hand, the Treaty does not exclude the possibility of inserting such a provision directly in the act adopted under energy legal base.
And as can be seen in the example of the Energy Efficiency Directive, adopting ―more stringent measures‖ is made possible by putting relevant provision directly into the text of the directive.94 3.6 Legal basis for renewable energy sources What is the significance of these deliberations in the case of renewable energy sources?
They provide assistance when trying to answer three basic questions that help to understand how environmental protection requirements can be integrated, from the formal point of view, into renewables policy.

The questions are as follows: 1) What is the legal basis for adopting RES measures?

2) Can a RES measure be based on two different legal bases?

3) Can a measure regulating use of renewables be based on environmental chapter provisions?
3.6.1 Adoption of RES measures – legal basis As has been mentioned already, before the Lisbon Treaty came into force, energy law had been adopted by the EU on the legal bases relating to other fields, mainly: competition, environment and the internal market.

However, with the inclusion of Article 194 into the TFEU, and the objective to ―promote energy efficiency and energy saving and the 92 Article 193 TFEU, supra note 4.

93 J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 106.

94 See e.g.


Article 1 of the Energy Efficiency Directive, Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC, OJ L 315/1, 14.11.2012.
27 development of new and renewable forms of energy‖, it became a lex specialis for the given objective and excludes the application of the other legal bases.95 3.6.2 Two different legal bases While the main rule is that one measure is based on one legal basis, the EU law allows exceptions.
According to the Court of Justice, if the act ―simultaneously pursues a number of objectives or has several components that are indissociably linked, without one being secondary and indirect in relation to the other, such an act will have to be founded on both legal bases‖96 Moreover, to adopt such measure, the decision-making procedures cannot be incompatible with each other and the use of two legal basis cannot weaken the rights of the European Parliament.97 Thus, if a legislator decides to adopt a measure based jointly upon Article 194 and the other relevant provision, the following conditions must be met: - decision-making procedures must be compatible (e.g.
ordinary legislative in both cases); - there is no predominant or more specific legal base and there is no hierarchy between norms; - the participatory right of the European Parliament is not diminished.

The RES Directive is an example of adopting a measure based on two legal bases.

It must be noted however, that it was adopted before the Lisbon Treaty came into force.
The Directive is based on Article 175(1) EC (now Article 192(1) TFEU) for its largest part, and when it comes to Articles 17-19 of the Directive on sustainability criteria for biofuels, it is based on Article 95 EC (now Article114(1) TFEU).
The legislator justified the choice of two legal bases in Recital 94 by stating: [s]ince the measures provided for in Articles 17 to 19 also have an effect on the functioning of the internal market by harmonising the sustainability criteria for biofuels and bioliquids for the target accounting purposes under this Directive, and thus facilitate, in accordance with Article 17(8), trade 95 D. Foquet, J.V.

Nysten, A. Johnston, supra note 79, p.19.

96 See Case: C-178/03, supra note 67.

97 J.H.

Jans, H.H.B.


Vedder, supra note 69, p.72.

28 between Member States in biofuels and bioliquids which comply with those conditions, they are based on Article 95 of the Treaty.98 3.6.3 TFEU´s environmental provisions Finally, in light of the above considerations, a question must be raised: whether under the current shape of the Treaty, the legal measure concerning renewable energy sources can be adopted on the basis of environmental Article 192.
It seems that Article 194, as a lex specialis for the energy field, will exclude the use of Article 192 as a single legal basis.

The case of the new Energy Efficiency Directive seems to confirm this view.99 However, as mentioned in a previous section, the Court of Justice confirmed the possibility of adopting a legal measure based on two legal bases exceptionally under certain conditions.
Some authors support such a direction in the case of renewable energy and the choice of legal basis, stating that Article 194 is not exhaustive, especially when it comes to measures adopted to combat climate change.100 Therefore, the condition of predominance of Article 194 cannot be applied.
Others are giving more attention to the wording of the objective to ―promote energy efficiency and energy saving and the development of new renewable forms of energy‖, stating that ―development of new and renewable forms of energy in EU terms normally refers to technological development, not to increased deployment‖.101 While the second observation seems a little far-fetched, the first one requires a bit of elaboration.
The objectives of EU environmental policy will be further explained in Chapter 5; it must however be noted here that they include, inter alia., ―prudent and rational utilization of natural resources‖ and ―promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change‖.102 Ballesteros argues that ―the best interpretation would be that EU measures responding to purely energy considerations would be based on energy chapter provisions and the requirement to preserve and improve the environment.‖103 However, this cannot exclude using environmental provisions of the EU Treaty if measures were adopted with the aim of achieving environmental objectives such as, inter alia, ‗prudent and rational utilization of natural resources‘ or ‗combating climate change‘.
98 Recital 94 of the RES Directive, supra note 5.

99 Energy Efficiency Directive, supra note 94 100 M. Ballesteros, supra note 87, pp.

14-15.

101 D. Foquet, J.V.

Nysten, A. Johnston, supra note 79, p. 12.

102 Article 191 TFEU, supra note 4.

103 M. Ballesteros, supra note 87, p. 14.
29 Moreover, this author suggests that even though the objective of combating climate change is mentioned in an international context, ―this objective cannot be achieved without action and measures at EU level and the legislator would certainly not aim at excluding internal measures‖.104 Article 194 TFEU is relatively young and it will take some time to observe and assess in which direction the EU will go, in terms of the choice of legal basis for renewable energy sources.
As mentioned before, the example of Energy Efficiency Directive shows that, despite the theoretical possibility of the application of Article 192 TFEU, Article 194 TFEU is the only legal basis.

Similar solutions should be expected in the case of measures adopted in the future aimed at the development of renewable energy sources.
The above conclusion raises yet another question: how to ensure that environmental objectives and principles will be taken into account when adopting a renewable energy measure under only one legal basis – article 194?

The answer has been given under article 11 TFEU which will be the subject of next chapters.
At this stage it should only be mentioned that the article establishes the principle of environmental integration, ordering that ―environmental protection requirements‖ are included when actions in other sectors are being undertaken.

3.7 Conclusions The chapter introduced several issues relating to EU´s competence and the choice of legal basis in the fields of environmental protection and energy.
These issues are regulated under the TFEU, Articles 191-194 and have to be read with consideration for the general principles of the EU, such as the principle of conferred powers, shared competence, subsidiarity and proportionality.

It has been presented that with the introduction of Article 194, objectives of EU energy policy have been inserted directly into the Treaty.
This means that the article became a lex specialis in energy matters and other articles should not be used as a legal basis to adopt energy related measures.

All the same EU law provides an exception to this rule, stating that when one measure is aimed at achieving several objectives, introduced under different TFEU chapters, a dual legal basis is permissible under certain conditions.
These considerations are particularly important in the case of adopting measures in the sphere of renewable energy sources, because they are relocating the previously used legal base from Article 192 TFEU to the new Article 194 TFEU.

This raises the question of the application of the goals and principles of environmental protection in the law and policies surrounding 104 Ibid., p.15.

30 renewable energy sources.


One solution is to use two legal bases, which could be possible when one measure is to achieve several objectives.

This solution should however be used as an exception.

The other solution will be further described in Chapter 3.

EU law provides for the principle of integrating environmental concerns into other policy areas.

This is a principle of general application, thus valid when adopting measures concerning renewable energy sources.
31 4 The principle of environmental integration 4.1 General issues and legal foundation Environmental integration is one of the general principles of EU law.

In brief, it indicates that environmental protection requirements cannot be viewed in isolation as a specific policy sector alone, and should be considered when adopting policies and laws in other areas.

Therefore, renewable energy policy and law should be consistent with the objectives of the principle of integration.
Some scholars define the principle as an operational principle to implement and institutionalize the idea of sustainable development.105 The two fundamental concepts of environmental integration and sustainable development are closely linked, both of which are reflected in the text of Article 11 TFEU.
This chapter will introduce the legal foundation and issues relating to the interpretation of the principle, followed by a brief historical background to introduce the views of several scholars on key matters regarding the integration principle.

A good understanding of the principle is crucial when it comes to the evaluation of how it has been applied in renewable energy policies.

The integration principle is one of the general principles of EU law.
It is fundamental when it comes to the protection of the environment under EU law and, according to Article 11 TFEU, it reads as follows: Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.106 The principle calls for a continuous „greening‖ of EU policies, in order to prevent damage to the environment being caused by other policies or laws including, for example, policies on transport energy, or the internal market.
As rightly noted by Krämer: ―it seems rather old- fashioned to classify a specific measure as belonging to a specific policy: Art.

6 TFEU […] contributes to progressively overcoming this artificiality‖.107 Collier recognizes three main goals of the environmental policy integration: ―to achieve sustainable development and prevent environmental degradation; to remove contradictions 105 See further A. Lenschow, Environmental Policy Integration.

Greening Sectoral Policies in Europe,Earthscan 2002, p. 21.
106 Article 11 TFEU, supra note 4.

107 L. Krämer, EC Enviromental Law, Fifth Edition, Sweet&Maxwell, 2003, p. 20.

32 between policies and to shape mutually supportive policies; to acknowledge mutual benefits.‖108 This suggests that the point of integration is not just to remove inconsistencies and friction between the EU policies, but that integration is also focused upon achieving well- functioning and mutually supportive policies.
Moreover, further integration must be achieved if the EU is to address its most pressing environmental problems successfully.

The importance of the integration principle was at first stressed in the international forum.

It was introduced and reaffirmed in the most important international environmental declarations adopted in Stockholm (1972) and Rio de Janeiro (1992).
Principle 13 of the Stockholm Declaration of the United Nations Conference on the Human Environment states: In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.109 Adopted 20 years later, the Rio Declaration on Environment and Development reaffirmed the integration idea in its Principle 4: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.110 Since its creation, European environmental law, including the integration principle, has been following international findings in the field and has built upon them.
The insertion of the integration principle into the EU's primary law will be briefly described in the following section.

However, it is the current wording and interpretation that is essential for the purposes of this study.

Therefore, the interpretation of the principle, including the standpoints of several scholars, is the main point of this chapter.
A proper understanding of the principle is necessary to assess whether and how it is incorporated into the European energy policy and law on renewable energy sources.

108 U. Collier 1994, Energy and Environment in the European Union, Aldershot, Evebury, p. 36.

109 Stockholm Declaration of the United Nations Conference on the Human Environment, Report of the United Nations Conference on the Human Environment, UN Doc.A/CONF.48/14, at 2 and Corr.1 (1972).
110 Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, UN Doc.

A/CONF.151/26 (Vol.

I), 12 August 1992, Annex I.

33 4.2 Historical aspects The idea of integration has been present in the EU´s environmental policy from the beginning.111 First indications can be traced back as far as a Communication from the Commission on EC environmental policy from 1971.
There it was stated that the protection of the environment had to receive a place beside economic and social objectives.

This was both a guarantee and a condition for the harmonious development of economic activities.112 It was, however, not until the SEA that integration found its place in the Treaty among other environmental provisions, and until the Amsterdam changes113 that it gained the status of a general principle of EU law.
In the SEA a chapter dedicated to environmental policy was inserted into the Treaty114 and with it the integration idea was given a definite status.

In the version adopted in SEA Article 130r stated that environmental protection requirements should be a component of the Community´s other policies.115 While the SEA ―gave birth to the integration principle as we now know it‖116 its wording was rather vague.
Moreover, the principle did not have a status of a general principle under the EU regime, as it was situated under the title of Environment.

The phrase ―shall be a component‖ suggested that integration was looked upon as a guideline rather than a legally binding obligation.
The 1990s brought further developed of international and EU environmental law and policy.117 The Fifth Environmental Action Programme118 placed greater emphasis on linking environmental integration and other EU policies and sustainable development.

Moving towards sustainable development required a fundamental approach that focused on preventing 111 Beginning of the European environmental law can be dated back to the beginning of 1970‘s.

In detail on European Environmental Law development: see further J.H.
Jans, H.H.B.

Vedder, supra note 69, pp.

3-9.

112 First Communication of the Commission About the Community's Policy on the Environment, SEC(71) 2616 final, (22.7.1971).

113 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts, OJ C 340 (10.11.1997).

114 Article 130r introduced, inter alia, environmental objectives, principles and criteria.

See Article 130r of SEA, supra note 17.

115 Ibid.

116 J.H.
115 Ibid.

116 J.H.

Jans, Stop the Integration Principle?, Fordham International Law Journal, 2011, Volume 33/Issue 5, p. 1537.
117 See, inter alia, the Rio Declaration on Environment and Development, supra note 110, United Nations Framework Convention on Climate Change, adopted 9.5.1992, 1771 UNTS 107, Convention on Biological Diversity, adopted 5.6.2992, 1760 UNTS 79, the Maastricht Treaty, supra note 22, and the 5th Environmental Action Programme: Towards Sustainability, A European Community programme for policy and action in relation to the environment and sustainable development, OJ C 138, (17.5.1993).
118 5th Environmental Action Programme: Towards Sustainability, A European Community programme for policy and action in relation to the environment and sustainable development, OJ C 138, 17.5.1993.

34 environmental damage rather than remedying it.


It resulted in strengthening the wording of the integration principle in the Maastricht Treaty, where Article 130r stipulated that: Environmental protection requirements must be integrated into definition and implementation of other community policies.119 The Maastricht version used the more forceful expression of ―must be integrated‖.

This suggested the legislators‘ attempt to move integration from a guideline to a principle.
Nevertheless, the provision remained under the environmental title of the Treaty and referred only to policies.

Lastly, very important amendments to the principle were made with the adoption of the Treaty of Amsterdam.

The principle had been moved from the title ―Environment‖ to the opening chapter of the Treaty as Article 6 (now Article 11 TFEU).
This transfer gave the integration principle the status of a general principle of EU law, applicable not only to environmental activities but to all of the EU´s policies and activities.
Accordingly, Article 6 stated: Environmental protection requirements must be integrated into definition and implementation of the Community policies and activities referred to in article 3, in particular with a view to promoting sustainable development.120 The current version of the integration principle, or Article 11 TFEU, remained almost unchanged.

Since the EU´s policies and activities are not listed under Article 3 anymore, the current text of Article 11 does not include a reference to Article 3.
As can be observed above, with every amendment of the Treaties, the integration principle has developed and is now applicable to all EU policy areas.

According to Jans, ―the integration principle in its Amsterdam version was at its peak.

After the Treaty of Amsterdam, the legal status of the integration principle became blurred.‖121 This happened for three reasons.
The author argues that while there are no changes in the text of Article 11 TFEU, as compared to the Amsterdam version, the principle has lost its status as being one of the general principles of EU law and that it has become a ―provision having general 119 Article 130r of the Maastricht Treaty, supra note 22.

120 Article 6 of the Amsterdam Treaty, supra note 113.

121J.H.

Jans, supra note 116, p. 1538.


35 application‖.122 Moreover, the Charter of Fundamental Human Rights (that has been given the same legal value as the TEU and TFEU123) under Article 37 repeats the principle, but not to the letter.124 The Charter, instead of referring to environmental protection requirements, refers to a high level of protection and improvement in the quality of the environment.

Moreover, Article 37 refers only to the Union's policies and not its activities.
The scope of Article 37 of the Charter is therefore narrower.

This can be viewed as weakening the principle, causing interpretational problems and making the ―already difficult task of the European legislator to balance sometimes conflicting interests (…) even more complex.‖125 Finally, the Lisbon Treaty introduced a few more integration principles, causing a ―true proliferation‖ and a situation in which environmental integration becomes just one of many.

Jans views are certainly valid.


It must be noted, however, that with each change of the Treaty the principle of integration has been strengthened, with the intention of paying more attention to environmental issues.

Taking into account the current determination of the European Union to combat climate change and improve the environment, at least in the field of energy, these theoretical considerations may not lead to any legal significance.
4.3 Interpretation of the current version 4.3.1 General remarks There is still little agreement on what environmental integration actually means.

It has been defined, inter alia, as a concept, principle, strategy, duty or process, with different interested parties interpreting it differently.

Article 11 suggests however what integration is intended to do and how this should be done.
It is intended to contribute to sustainable development, by including environmental requirements in other activities and policies of the EU.126 In Lenschow‘s opinion, the principle of environmental integration may be considered a core application of the concept of sustainable development.
According to the author, the idea bhind sustainable development is that environmental protection, economic growth and social development are mutually compatible, rather than conflicting objectives.127 The inclusion of sustainable development into the text of the integration principle can also be interpreted as a 122 See: Title II of TFEU, supra note 4.

123 Article 6 of TEU, supra note 4.


124 Article 37 stipulates: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

Charter of Fundamental Rights of the European Union, OJ C 83 (30.3.2010).

125 See further: Jans, supra note 116.

126 European Environment Agency, Environmental policy integration in Europe.
State of play and an evaluation framework, EEA Technical report No 2/2005, p. 12-13.

127 See further: A. Lenschow, supra note 105, p. 19.

36 clarification of the content of Article 11 TFEU: environmental integration is not a goal in itself, but rather a means of achieving the overall goal – sustainable development.

However TFEU does not answer the question of what sustainable development is.

The definition, aim and presence of this rule in EU law and policy will be shortly discussed in Chapter 5.
It is generally accepted that the expression ―environmental protection requirements‖ refers to Article 191 of TFEU.128 While the objectives and principles of Article 191 (1) and (2) must be integrated, criteria from (3) should not be a priori excluded, but taken into account.129 Such interpretation of the integration principle leads to an obligation on the European institutions, while adopting other policy, to ―pursue these objectives, be based on these principles and take account of these criteria.‖130 In the following section several questions relating to the interpretation of the integration principle will be raised.
For the purposes of this study these questions will be answered following opinions of several experts on the topic.

Given the importance of Article191 TFEU for the principle of integration, it will be discussed in more detail in the next chapter.

Due to the lack of a legal definition, interpretational issues of sustainable development and its significant relation to the principle of integration, this rule will also be shortly discussed in the following separate chapter.
As mentioned before, a proper understanding of the principle of integration is necessary to assess whether and how it is incorporated into European energy policy and law on renewable energy sources.
4.3.2 Interpretational questions Beside the issues of sustainable development and environmental protection requirements, there are several questions that need further clarification: - What is environmental integration – is it a legally binding obligation, is it a procedural or substantive rule, what is the character of the command and what, if any, is the sanction?

- Who is the addressee of Article11 TFEU?

- When does it apply and to which activities?

128 Article 191 of TFEU, supra note 4.

129 J.H.


Jans, H.H.B.

Vedder, supra note 69, p.17.

130 N. Dhondt, Integration of Environmental Protection into other EC Policies, Legal Theory and Practice, Europa Law Publishing, Groningen 2003, p. 93.

37 An attempt to answer these questions will be based upon, but not limited to, the publications of two experts on the topic.

N. Dhondt is the author of a comprehensive analysis of the principle of integration under the Amsterdam Treaty.
This analysis remains in a large part actual and helpful since, as mentioned above, the wording of the principle has not changed much since 1999.

J. H. Jans is one of the leading specialists in European environmental law, and has also published on the principle of integration.

4.3.2.1 What is environmental integration?


According to Persson, the literal meaning of integration is ―forming, coordinating, or blending into a functioning or unified whole; uniting with something else or incorporating into a larger unit‖.131 Following this definition one can understand environmental policy integration as: combining environmental policy into the other sectorial policy (e.g.

energy) in such a way that it becomes fully a part of that policy.
In an attempt to provide the answer to what the principle of environmental integration is, Dhondt presents and analyses three interpretations: - weak – under which the EU Institutions would be obliged to consider environmental requirements and ―take them into account‖ when adopting other policies;132 - strong – under which integrating environmental protection requirements is an obligation of the EU Institutions;133 - very strong – which not only obligates the EU Institutions to integrate environmental requirements into other policies, but also gives a priority to environmental requirements when adopting other policies.134 According to a weak interpretation, environmental protection requirements should be only taken into account when adopting other policies.
It means that the Institutions would have to assess whether measures adopted under this other policy are in line with environmental requirements.

However, such assessment would not necessarily entail any consequences.

The Institutions would have wide discretionary powers in deciding whether the conclusions of 131 See further: A. Persson, Environmental Policy Integration: An Introduction, Stockholm Environment Institute, 2004, p.10.

132 See further: N. Dhondt, supra note 130, pp.

90-92.

133 Ibid., pp.


93-98.

134 Ibid., pp.

86-89.

38 such assessments should result in any changes in the policy.

As a result, this interpretation would probably result in a ―low degree of integration in practice‖.

In the case of a conflict between environmental requirements and other policies, the EU would not be under any obligation to take any actions apart from performing the assessment.135 It must be noted again that over the years the wording of the principle has been changing.
The phrase: ―shall be a component of‖, as stipulated in the SEA version has changed into a more forceful formulation of the phrase: ―must be integrated into‖ according to Article 11 TFEU.

This suggests that interpreting the integration principle as ―taking into account‖ is an insufficient approach and is not reflecting the current text of the TFEU.

A strong interpretation implies that mere compliance assessment of the policy measures with environmental requirements is not satisfactory.
According to this interpretation, an application of the integration principle is reflecting an obligation to actively pursue the environmental objectives and principles, in the context of other policy areas.
According to Veinla, the ―must‖ in Article 11 TFEU stipulates that the integration principle does not merely enable, but commands relevant authorities to restrict activities if necessary for achieving a high level of protection.136 Strong interpretation does not however give the environmental objectives any priority over other policy areas.

This approach raises the rather obvious question: what if measures adopted under specific policy and environmental requirements are not in line?
The Court of Justice has provided a solution in case of such conflicts.

The solution is to balance the competing objectives involved against each other.
In the ADBHU case, the Court ruled that restrictions in other areas, namely trade, are permissible as long as the restrictions are not discriminatory and are proportional (do not go beyond what is necessary for environmental protection).137 As further explained by Jans, where it is possible, priority should be given temporarily to one of them, without closing the possibility to achieve the other objective or to protect other interests in the long run.
Moreover, in a conflict situation, it would be important to pursue the least environmentally damaging solution.138 135 Ibid., p. 92.

136 See further: H. Veinla, Scope and Substance of the Integration Principle in EC Law and Its Application in Estonia, Juridica International, XV/2008, p. 7.

137 Case 240/83, Judgment of the Court of 7 February 1985, Procureur de la République v Association de défense des brûleurs d'huiles usagées (ADBHU), European Court Rreports 1985 I-531.

138 See further: J.H.


Jans, H.H.B.

Vedder, supra note 69, p. 24.

39 In summary, a strong interpretation commands the EU Institutions to integrate environmental requirements, but it does not mean that the environmental objectives and principles should prevail in all instances.

A single action would have to effect two kinds of objectives: both environmental and policy specific.
According to Dhondt, controlling energy demand for the purpose of achieving the security of energy supply is a clear illustration of this kind of integration.139 According to a very strong interpretation environmental considerations prevail in case of a conflict with other competing policy areas.
However, following the ratio legis of the integration principle, namely sustainable development, one must observe that favoring one policy area over another could disturb the balance that sustainable development strives to maintain.

As will be explained in Chapter 6, the role of sustainable development is to find common ground for social, economic and environmental aspects.
According to Persson, to find such common ground, trade-offs are inevitable.140 In Dhondt´s view, integration is designed to ensure that the environment is at least taken into consideration.

Conflicts between objectives should be solved not by putting the environment first, but in respect of the principles of equal treatment and proportionality.141 Jans and Vedder reflect the same argument, stating that environmental protection is not a sole objective to be attained by the EU.
Therefore it is necessary to balance the environmental protection requirements against the requirements of the other EU policies, and conflicts have to be resolved on case by case basis.142 Therefore it can be concluded that in the opinion of the above mentioned scholars, a strong interpretation is the most reasonable, given the wording of Article 11 TFEU.
The application of this interpretation should lead to the adoption of more environmentally friendly legislation than the application of a weak interpretation.

It gives the EU Institutions not only the right but also the obligation to integrate environmental objectives and principles into other policies.

However it does not always put environmental requirements in a privileged position, leaving room for compromise where necessary.
However, a strong interpretation would make it necessary for policy-specific objectives to be restated, if possible, in a way that protects the environment, or otherwise in a way that is 139 See: N. Dhondt, supra note 130, pp.

96-97.

140 See further: A. Persson, supra note 131, p.1 141 See: J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 142 Ibid., p. 18.

40 least environmentally damaging.


Achieving this might even require a policy-specific objective to be abandoned in its entirety for environmental reasons.143 Rationae personae – to whom is provision directed?

4.3.2.2 Article 11 TFEU is solely directed at EU Institutions and concerns the actions of the European Union.144 Case law and theory seems to confirm that view.
In the Peralta case, the Court of Justice ruled that Article 130r (now Article 191 TFEU) defined the general objectives of the EU and placed the responsibility for deciding what actions should be taken on the Council.

Member States, however, were allowed to apply more stringent measures.145 In the case, Attorney General Lenz's opinion was more resolute.
He stated that Article 130r was ‖generally speaking, incapable of affording any criterion for action by the Member States‖146 However, following Dhondt‘s argument, it seems incorrect to state that Article 11 TFEU is incapable of affecting Member States‘ policies.

It is in fact natural that national policies will be confronted with the EU legislation using the principle of loyalty stipulated in what is now Article 4(3) of the TEU.
The principle of loyalty places the obligation on the Member States to refrain from actions that might go against the achievement of the EU´s environmental objectives.147 Moreover, the Member States, due to the obligation to transpose EU secondary legislation into their national legal systems, will be required to observe a certain degree of integration.148 Nevertheless, even in areas that have not been harmonized, it is possible to distinguish an obligation for Member States on the basis of Article 11 and this is in conjunction with the principle of loyalty under Article 4.3 TEU.149 4.3.2.3 As Article 11 TFEU stipulates, environmental protection requirements must be integrated into Rationae temporis – when does Article 11 apply?
the definition and implementation of the Union policies and activities.

Collier distinguishes 143 See: N. Dhondt, supra note 130, p. 98.

144 See further: J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 28.

145 See further Case: C-379/92, Judgement Of The Court, 14 July 1994 Reference to the Court under Article 177 of the EEC Treaty by the Pretura Circondariale di Ravenna for a preliminary ruling in the criminal proceedings Matteo Peralta, European Court Reports 1994 I-3453, para.
57-58; See further comments on the case in: N. Dhondt, supra note 130, p. 31.

146 Opinion of Advocate General Lenz delivered on 11 May 1994, on the Case C-379/92, supra note 146.

147 See: N. Dhondt, supra note 130, p. 34.

148 Ibid., So called integration through implementation.

149 Under Article 4(3) of the Treaty on the European Union, „the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union‘s tasks and refrain from any measure which could jeopardise the attainment of the Union‘s objectives.‖ TEU, supra note 4.

41 three stages of environmental policy integration.
According to this author environmental protection requirements should be integrated into policy formulation, translated into policy measures and implemented by governments and other actors.150 This principle should be present from beginning to end in EU policies, e.g.

when political priorities are identified and discussed, general policy choices are formulated and their accompanying programs developed.
However, it is not simply sufficient to give consideration to the environmental requirements at the point of preparing decisions/measures.

The requirements must also be taken account of in the resulting outcomes of the policy or activity that is adopted.
The principle is also relevant at the stage where the policies and activities are implemented, in the context of a Member State's national legislation, further Community acts, or in the ―simple‖ application of the principle in case by case decisions/judgments?.

This also includes the methods that are used to enforce the implemented policies.

4.4 Enforcement of Article 11 TFEU Finally, when addressing the issue of environmental integration, the question of its legal enforceability has to be raised.
Jans and Vedder, after analyzing a few cases before the Court of Justice, came to the conclusion that ―the application of the integration principle is amenable to judicial review, but the extent of that review is limited and may differ from one case to the next.‖151 In Cases C-62/88 (Chernobyl I Case) and C-300/89 (TiO2 Case) the Court ruled on the choice of legal basis, stating that the fact that a specific measure must satisfy the requirements of environmental protection does not mean that this measure has to be adopted with an environmental legal basis.152 In the above mentioned cases the Court contemplated matters of common commercial policy, and the area of public procurement with relation to environmental protection.
It is arguable whether without the principle of integration such deliberations and any environmental considerations within these policies would even be justified.153 Another question is whether the validity of an EU legal act outside the environmental field can be ―questioned on the grounds that the decision has infringed the environmental 150 See further: M.Nilsson, K.Eckerberg, Environmental Policy Integration in Practice.

Shaping Institutions for Learning, Earthscan, 2007.

151 J.H.

Jans, H.H.B.


Vedder, supra note 69, p. 27.

152 Cases: C-62/88, Judgment of the Court, 29 March 1990, Hellenic Republic v. Council of the European Communities, European Court Reports 1990 I-1527 and C-300/89, supra note 67.

153 J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 25.

42 objectives of the Treaty‖154.
The Betatti case (C-341/95) showed that ―in view of the need to strike a balance between certain of the objectives and principles mentioned in Article 130r (now Article 191 TFEU) and of the complexity of the implementation of those criteria, review by the Court must necessarily be limited to the question of whether the Council, by adopting the Regulation, committed a manifest error of appraisal regarding the conditions for the application of Article 130r of the Treaty.‖155 Therefore, following the Court‘s ruling, it must be concluded that when questioning the legality of the measure, on the ground that it has infringed the environmental objectives, conclusions will lead to the annulment of the act only in very exceptional cases.
4.5 Concluding remarks This chapter introduced and discussed the place and importance of the integration principle in EU Treaty law, as well as its interpretation.

It has been explained that, according to Article 11 TFEU, environmental issues need to be considered when adopting policies in other areas.

Consideration should take place as early as possible and continue during implementation.
Following leading experts on the subject, it has been established that the principle constitutes an obligation laid upon the European institutions to adopt laws in different policy areas, which are always in line with environmental protection requirements.

This does not mean that the environment will not necessarily ―come out on top‖ in every policy that is adopted and implemented, but the overall trend should certainly be in the direction of sustainable development.
The Court of Justice review confirms the general application of the principle when justifying ―environmentally friendly‖ legislation adopted under other than environmental legal bases, leaving however the possibility of an annulment of the measure, based on Article 11 TFEU, in very exceptional cases.

The principle naturally applies to renewable energy policy and law, and the connection between these two areas is the objective of this study and will be further elaborated.
In the next chapter, however, the essential expression of the integration principle ―environmental protection requirements‖ will be further explored and explained.

154 Ibid., p. 26.

155 Case C-341/95 Judgment of the Court, 14 July 1998, Gianni Bettati ν.

Safety Hi-Tech Srl, European Court Reports 1998 I – 4359.

43 5 Environmental Protection Requirements under the Lisbon Treaty 5.1 General remarks Article 11 TFEU does not indicate what environmental protection requirements exactly are.
While to general principles governing environmental policy one can include sustainable development, integration, subsidiary and proportionality,156 the TFEU under Title XX (Articles 191-193) formulates the legal foundations of EU policy on the environment.

Article 191 TFEU provides the objectives, principles and criteria of the EU's environmental policy.

Article192 sets out procedures for decision-making in environmental matters.

Finally, Article 193 allows MS to maintain or take more stringent measures.
The objective of this chapter is to present what stands behind the term ―environmental protection requirements‖.

It is accepted by the doctrine that the expression from Article 11 TFEU refers exactly to provisions of Article 191 TFEU; therefore this article will be a subject for further explanation.
Such interpretation of the integration principle leads to an obligation on the European institutions, while adopting other policy, to ―pursue these objectives, be based on these principles and take account of these criteria.‖157 When discussing RES in light of integration in Chapters 6 and 7, the principles and objectives of Article 191 TFEU will be taken into account.
Under this chapter, the analysis of Article 191 TFEU will be preceded by a preface on the principle of integration and place of renewable energy sources in the EU strategic documents concerning environmental protection – Environmental Action Programmes.

5.2 Environmental policy of the EU - Introduction Since 1973, the European Union's policy on the environment is defined in the environmental action programs (EAP) established for several-year periods.
These strategic documents are the basic directions of activity and inspiration for legislative action.

The integration principle first appeared in the 3rd EAP and has been further elaborated in each subsequent program.158 Currently preparations on the 7th EAP are in the final stage.
It had been evident since the 5th EAP that the EU started to put greater emphasis on issues of integration and sustainable development.159 The 5th EAP, called ―Towards Sustainability‖, focused not only on environmental protection per se, but also on selected issues of major 156 More on general principles: J.H.

Jans, H.H.B.

Vedder, supra note 69, pp.

13-31.

Integration principle and sustainable development are discussed in this study in Chapters 4 and 6.
Principles of subsidiarity and proportionality were shortly discussed in Chapter 3.

157 N. Dhondt, supra note 130, p. 93.

158 A. Persson, supra note 131, p.5.

159 5th EAP, supra note 118.

44 importance related to the environment, such as: climate change or the urban environment.
Energy policy had been recognized as a key factor in the achievement of sustainable development, and it had been confirmed that the achievement of practical results in the field of energy requires a strategic perspective and a move towards a less carbon-intensive energy structure including, in particular, renewable energy options.

The 6th EAP160 was a continuation of a previous action program aimed at protecting the environment and achieving sustainable development.
This document promoted a full integration of environmental protection requirements into all EU policies and activities.

Reference to RES was made under the climate change priority area (Art.

5).
5).

The EU tasks concerning the development of RES included ―encouraging renewable and lower carbon fossil fuels for power generation; encouraging the use of renewable energy sources, including the use of incentives, at the local level‖.161 The 7th EAP162 Living well, within the limits of our planet promotes a transition to the low-carbon economy.
The Commission proposes to focus action on nine priority objectives, under which both green, competitive (including RES) and environmental integration have been emphasized.163 According to the document, any action low-carbon economy should be performed with respect to the following environmental principles: polluter-pays, precaution, prevention, and the principle of rectifying pollution at source.

The 7th EAP puts more stress on linking energy and climate change issues with environmental concerns.
While fully implementing the EU Climate and Energy Package is essential for building a competitive, low-carbon economy by 2050, environmental concerns ―such as biodiversity conservation and water protection should be also fully taken into account in decisions relating to renewable energy‖.164 Moreover, the document addresses the issue of energy infrastructure (transport networks, including offshore infrastructure) calling for the incorporation of ―green infrastructure‖ into related plans and programs.
In the Commission‘s opinion, it can help to ―overcome fragmentation of habitats and preserve or restore ecological connectivity, enhance ecosystem 160 Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002, laying down the Sixth Community Environment Action Programme, OJ L 242/1 (10.9.2002).

161 Ibid.

162 On November 29th 2012, the Commission put forward a proposal for the 7th EAP that will guide the EU environmental policy up to 2020.
Proposal for a Decision of the European Parliament and of the Council on a General Union Environment Action Programme to 2020, Living well, within the limits of our planet, Brussels, COM(2012) 710 final (29.11.2012).

163 7th EAP Proposal, supra note 162, Article 2.

164 Ibid., para.

21 and 30.


45 resilience and thereby ensure the continued provision of ecosystem services, including carbon sequestration and climate adaptation, while providing healthier environments and recreational spaces for people to enjoy‖.165 The program suggests that developing renewable energy, as well as maintaining environmental integrity, will also produce accompanying benefits to society, which accords with the principle of sustainable development.
The Commission states that Europe's renewable energy industry is on its own expected to create over 400,000 new jobs by 2020.166 As for the integration objective, it has been endorsed that it should help to ensure that ―difficult trade-offs are managed early on, rather than in the implementation phase, and that unavoidable impacts can be mitigated more effectively‖.
The roles of the Strategic Environmental Assessment167 and Environmental Impact Assessment directives168 have been underlined, noting that if correctly applied, they are effective tools for environmental integration.169 It will take time to fully assess the assumptions of the 7th EAP.

However, it should be noted that in comparison to the earlier EAPs, the 7th program puts more emphasis on linking energy and environmental issues.
5.3 Article 191 TFEU – a source of environmental protection requirements It must be noted that Article 191 TFEU is almost a literal repetition of environmental Article 174 under the Treaty of Amsterdam.170 As has been mentioned in the previous chapter, an environmental title has been inserted into Treaty in the SEA version and, just like the integration principle, has been evolving since.

However, the current version of environmental provision 191 TFEU is relevant to the objectives of this study.
Therefore, historical aspects will not be subjected to further analysis.171 165 Ibid., para.

51.

166 Ibid., para.

29.

167 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, OJ L 197, (21.7.2001).
168 Directive 2011/92/EE of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26/1, (28.1.2012).

169 Para.

83 of the Annex to the 7th EAP Proposal, supra note 162.

170 Article 174 of the Treaty of Amsterdam, supra note 113.

171 More on the development of environmental provisions under the EU treaties: J.H.

Jans, H.H.B.

Vedder, supra note 69, pp.

3-12.


46 5.3.1 Environmental objectives The TFEU distinguishes four objectives of European environmental policy under Article 191(1).

As mentioned above, the objectives are an exact repetition of the Amsterdam provision, with the exception of the last one, where the reference to combating climate change has been added.
The objectives of Article 191(1) include: - preserving, protecting, and improving the quality of the environment; - protecting human health; - prudent and rational utilization of natural resources; - promoting measures at an international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

The first objective is fairly general, since the Treaty does not define any of its terms.
While such a solution lends flexibility in one way, in another way this makes it harder to assess and apply.

Protecting human health is a wide objective, but relates solely to humans.

A loophole is not produced by this limiting factor due to the fact that the protection of flora and fauna is covered under paragraph 1.

Prudent and rational use of natural resources is a condition for effecting sustainable development, and is closely linked with the major topics of this study, namely integration and RES.
European law does not provide a definition of 'natural resources'; instead the definition given in Art.2 of the Stockholm Declaration is commonly used: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.172 In this case, managing natural resources will notably include considerations relating to nature conservation, soil protection, the disposal of waste, urban area policies, coastal and mountainous areas/regions?, disaster policies, water management, environmentally-friendly agricultural policies, and conserving energy.173 172 Principle 2 of Stockholm Declaration on the Human Environment, supra note 109.
173 J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 37.

47 Regional and worldwide environmental problems are not particularly part of this analysis.

However, as noted in Chapter I, the EU is one of the leading pioneers battling against climate change.

The 6th EAP acknowledged the EU's positive and constructive role when it comes to working to protect the global environment.174 Since the EU has its own legal personality it has also signed up to many international conventions.
Consequently, according to Jans, there has to be a rejection of any interpretation of Art 191 that would draw the EU into conflict with its international law obligations.175 5.3.2 Environmental Principles According to Article 191(2), EU environmental policy should ―aim at a high level of protection‖ and ―shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.‖176 Therefore, the above mentioned provision sets out the following principles of EU environmental policy: 1) the principle of high level of protection; 2) the precautionary principle; 3) the prevention principle; 4) the source principle; 5) the polluter pays principle.
5.3.2.1 High level of protection Besides Article 191(2), the high level of protection principle was included in one of the general objectives of the EU, under Article 3 TEU.

As indicated by Krämer, the Treaty does not specify what the high level of protection means.
However, the author adopts the interpretation that ―high level‖ can probably best be determined by ―looking at environmental standards which Member States that normally have a high standard of environmental protection has set‖.177 Jans and Vedder underline that ―high level of protection‖ does not mean the highest possible level of protection, and that the principle ―does not preclude the Union legislature, (…), to achieve a degree of balance between, on the one hand, environmental protection and, on the other hand, legitimate 174 6th EAP, supra note 160.
175 See further: J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 41.

176 Article 191(2) TFEU, supra note 4.

177 L. Krämer, supra note 107, p.11.

48 economic interests.‖178 They also note that the high level of protection principle cannot be enforced in court as it refers to the environmental policy as a whole and not to the individual measure adopted under the policy.179 5.3.2.2 The consequences of actions and decisions cannot always be fully anticipated.
The Precautionary principle precautionary principle requires proof from institutions or persons intending to take specific action that the impact of what they plan to do does not threaten the environment.

In a case where the party cannot demonstrate the absence of environmental danger, it becomes necessary to implement measures in order to protect the environment.
One example of this stipulation being applied is in the provisions for releasing genetically modified organisms (GMO) out into the environment.180 Rules on how to apply the precautionary principle have been prepared by the European Commission and published in the Communication from 2000.181 They represent the way in which the principle is understood and applied by the Commission and indicate – in the form of non-binding guidelines – how this principle should be interpreted by other entities.
Where action is deemed necessary, measures based on the precautionary principle should be: proportional to the chosen level of protection, non-discriminatory in their application, consistent with similar measures already taken, based on an examination of the potential benefits and costs of action or lack of action (including, where appropriate and feasible, an economic cost/benefit analysis), subject to review, in the light of new scientific data,182 and capable of assigning responsibility for producing the scientific evidence necessary for a more comprehensive risk assessment.
In relation to the precautionary principle Jans recalls the guidance function of the integration principle.

In his opinion, environmental integration „is an important factor in justifying the application of the precautionary principle outside of the environmental sphere.‖183 178 See further: J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 42.

179 Ibid.

180 On GMO law and policy in the EU see the EC webpage: http://ec.europa.eu/food/food/biotechnology/index_ en.htm (visited on 30.04.2012).
181 Communication from the Commission on the precautionary principle, COM(2000) 1 (02.02.2000).

182 Ibid.

Subject to review in the light of new scientific data, means measures based on the precautionary principle should be maintained so long as scientific information is incomplete or inconclusive, and the risk is still considered too high to be imposed on society, in view of chosen level of protection.

Measures should be periodically reviewed in the light of scientific progress, and amended as necessary.
183 J.H.

Jans, supra note 116, p. 1541.

49 5.3.2.3 Preventive rather than repressive measures are most widely utilized in environmental law.

Prevention principle Prevention under environmental law answers a crucial question - whether it is preferable to repair environmental damage, or to prevent it from occurring by eliminating it at the very source that may cause such damage.
Delaying any intervention until the environmental damage actually takes place may cause a situation whereby implementing measures to repair the damage will cost more than if than if actions applying the prevention principle had been followed from the outset.
A good example of the prevention principle is provided by the law that governs environmental impact assessments.184 This principle implies that there is a need to consider the potential consequences of particular actions and to take the relevant preventive measures as a result of doing so.
The prevention principle is both confirmed and reinforced by every one of the Environmental Action Programmes and is given priority meaning in numerous environmental protection legislative acts.185 According to Krämer, the principles of precaution and prevention should be used synonymously since EU action cannot be taken under one and not the other; the principles are always used together.186 The Court of Justice in the Case Artegodan v. Comission, underlined the importance of both the precautionary and prevention principles, stating that in order to achieve a high level of protection, the precautionary principle must be applied and uncertain risks must be prevented.187 5.3.2.4 The principle of rectifying any harm to the environment at the source of the damage means Source principle that this damage should be eliminated at the earliest stage of production rather than at the end of the process.
This principle generally applies to all regulations that establish emission standards in air and water legislation.

According to Krämer, this is however ―wishful thinking rather than reality‖.188 184 See further: the EIA Directive, supra note 168.

185 3rd Environmental Action Programme adopted in 1982 focused mainly on the principle of prevention.

See: A. Persson, supra note 131, p. 5.

186 L. Krämer, supra note 107, p.23.

187 H. Veinla, supra note 136, p.7.


188 As an example, Krämer uses pollution from cars: ―to rectify environmental damage from cars – air pollution, land use, noise, traffic congestion, waste generation etc.
– at source would mean that cars would have to be abolished or at the very least absolute priority be given to public transport, the price of fuel be increased in order to reduce the use of cars, restriction on making cars – maximum fuel consumption, maximum speed and so on – 50 Nevertheless, the Court of Justice used the source principle in the reasoning of their judgment in the case C-422/92 Commission v Germany concerning failure to bring into force all the measures needed for the transposition of several waste directives.
The Court declared a German provision that required that disposal of waste takes place in Germany to be compatible with the Treaty.
According to the Court, the provision ―reflects the pursuit of an objective which is in conformity with the principle laid down in Article 130r(2) of the Treaty that environmental damage should, as a priority, be rectified at source.‖189 5.3.2.5 According to this principle, any perpetrator causing or threatening environmental damage Polluter pays should be responsible for the costs of the damage or for those associated with reducing its risk.
The polluter pays principle arises mostly from the Environmental Liability Directive (ELD)190 and from elements of the criminal law that serve to protect the environment.

According to Krämer the polluter represents the concept that the cost of environmental impairment, damage and clean-up should not be borne via taxes on society, but by the person who caused the pollution.191 However, it is not always easy to identify the direct polluter.
In all Member States and at the EU level, ―the clean-up‖ after pollution is considered to be a task of public authorities whether a polluter can be identified and asked to pay for pollution or not.

Moreover, in cases such as forest decline, soil erosion, desertification, climate change, smog in urban areas or pollution from past activities; the identification of the liable polluter is often impossible.
According to Krämer, the principles of Article 191(2) constitute general guidelines for EU environmental policy, but not binding rules of law which apply to each individual measure, nor do they contain an obligation to take specific measures in favor of the environment.

Therefore they could only be enforced by the Court of Justice in very extreme cases where a systematic disregard of the principles in the policy is demonstrated.
Jans and Vedder share the opinion of Dhondt, stating that ―only in exceptional cases would a measure be susceptible to annulment because the environmental principles of Article 192(2) TFEU be imposed or other measures taken.

This would have implications on production, employment and investments for which no country in the world seems to be prepared.‖ L. Krämer, supra note 107, p. 24.
189 See Cases: C-422/92, Judgement of the Court, 10 May 1995, Commission v Germany, European Court Reports 1995, I-1097 para.34; also: Walloon Waste case, C-2/90, Judgment of the Court of 9 July 1992, Commission of the European Communities v Kingdom of Belgium, European Court Reports 1992, I-4431.

190 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143 (30.4.2004).
191 See further L. Krämer, supra note 107, p. 25.

51 were not sufficiently taken into account.‖192 However, as has been mentioned above, both the Court of Justice and the European Commission made several attempts to discuss the importance of these principles.
5.3.3 Environmental criteria In preparing its policy on the environment, the Union shall take account of: — available scientific and technical data, — environmental conditions in the various regions of the Union, — the potential benefits and costs of action or lack of action, — the economic and social development of the Union as a whole and the balanced development of its regions.193 In EU practice, the role of the four conditions is a mere subordinate one, and since they are not deemed to have legal consequence in relation to the integration principle, they will not be elaborated upon any further.
EU environmental policy should take account of these criteria, but policy is in this context understood as a whole, not as distinctly individual measures.

Moreover, it is rare for the criteria from Article 191(3) to be mentioned, even in the preambles; they are more often used in explanatory memorandums for legislative proposals - which further highlight their function within EU law.

Their impact in law is barely measurable.


5.4 Concluding remarks This chapter discussed the place and the meaning of environmental protection requirements under Article 11 TFEU.

It has been explained that this expression is thought by scholars to include the objectives, principles and criteria for environmental policy in the EU as stipulated in Article 191 TFEU.

An understanding of this article is needed when assessing the level of environmental integration in renewable energy policy.
As developed by the doctrine, objectives and principles are particularly important.

Linking ―environmental protection requirements‖ with Article 191 TFEU implies that rules adopted under energy policy must be in line with principles such as precaution and prevention, rectifying environmental damage at source, or polluters pay.
However, these principles constitute rather general guidelines for EU environmental policy and they do not contain an obligation to take specific measures in favor 192 See further: J.H.

Jans, H.H.B.

Vedder, supra note 69, p. 41.

193 Article 191(2) TFEU, supra note 4.

52 of the environment outside of the environmental policy.

While their importance has also been emphasized by the Court of Justice, it remains questionable whether they could constitute a stand-alone basis to void the legal act.
In the next chapter, the last interpretational issue of the integration principle, namely the principle of sustainable development, will be explained.

The principle, despite its uncertain legal status, is aimed at linking environmental concerns with economic and social issues, and therefore fits into the context of lawmaking in the field of energy in general as well as that of renewable energy sources.
53 6 Ratio legis of integration – the concept of Sustainable Development 6.1 Opening remarks Sustainable development is not decisively defined.

Over the years, a number of definitions have been created, the concept has been subject to competing interpretations and it is ―notoriously difficult to pin down‖.194 It can be interpreted as an attempt to reconcile the needs and aspirations of social and economic development while maintaining a high-quality environment for the sake of future generations‘ needs.
Since the late 60's the international community has held an interest in how economic and social developments affect the environment.

However, it took until the early 90‘s for the idea of sustainable development to become integrated into systems of international, European and national law.

Since the beginning of the 21st century the European Community experienced the continuous development of the concept through the implementation of laws at various levels.
However, it is not clear whether the principle of sustainable development can be regarded as a rule of law, or rather a political concept representing only a program of action and movement in the development of the law.

The objective of this chapter is to introduce the concept of sustainable development and its importance in European law and policy making.
The principle is an essential part of the environmental integration which, as explained in previous chapter, has been adopted with ―the view to promote sustainable development‖.

Reference to sustainability is made repeatedly in energy law and policies.

Despite the fact that sustainability is a goal of the European Union in both internal and external policy, the definition and status of the principle is still not clear.

This chapter is aimed at clarifying several important issues relating to this concept.
6.2 Definition and interpretation In science, the concept of sustainability can be traced as far back as the 18th century.
It is derived from forestry and is the type of forest management where only as many trees can be harvested as can re-grow, enabling the reproducibility of forest resources.195 Some authors, however, believe that the concept of balancing accompanied mankind since the time of ancient civilizations, citing the example of the irrigation system of the ancient civilization of 194 See: M. Lee, Sustainable Development in the EU: The Renewed Sustainable Development Strategy 2006, Environmental Law Review, 9 (2007), p.41.
195 Hans Caqrl von Carlovitz used such meaning in his work from 1713.

See: U. Grober, Deep roots – A conceptual history of für (Nachhaltigkeit), Wissenschaftszentrum Berlin Sozialforschung (WZB), February 2007, www.skylla.wzb.eu/pdf/2007/p07-002.pdf (visited on 30.04.2013) ‘sustainable development’ 54 Sri Lanka.196 Undoubtedly, however, the last two decades of the 20th century created the modern concept of sustainable development, which is widely discussed, interpreted and implemented around the world.
Probably the most famous definition and one of the first is the one included in Our Common Future from 1987 (known also as Brundtland Report), stating that: Sustainable development seeks to meet the needs and aspirations of the present without compromising the ability to meet those of the future.197 Although there is currently not a single, widely accepted legal definition of sustainable development, the various definitions feature certain solid elements, which are referred to as the pillars of sustainable development.
These include: environmental protection, economic growth and social development.

The idea behind the concept is the balancing of these three fundamental systems that shape the future of humanity, in order that none of these elements may be harmful to others.

Just like in the case of the integration principle, interpretations vary on whether the environmental pillar has or should have the priority over other elements or not.
Bosselmann developed two models of sustainable development: strong and weak, represented by two diagrams showing the relationships between the three pillars.198 The strong concept represents the non-anthropocentric idea of sustainable development, meaning that human needs (economic and social) do not have priority over the needs of other beings.
On the contrary, the environment is given priority and all efforts to improve the economic and social development cannot violate the limits imposed by environmental policy.

The main idea is therefore to strive for consistency of economic and social policy with environmental protection.199 The weak concept represents the anthropocentric approach and assumes that there is a need to find common ground for social, economic and environmental aspects.
It stipulates that the need to compromise and optimize profits is built into this idea of sustainability.
This 196 See further: Judge Weeramantry in his separate opinion in the case concerning dispute between Slovakia and Hungary on a large trans boundary barrage project on Danube, Gabcikovo – Nagymaros, International Court of Justice, Judgment of 25 September 1997, GabCikovo-Nagymaros Project (HungarylSlovakia), ICJ Reports 1997, p. 7, http://www.icj-cij.org/docket/files/92/7383.pdf s.95 (visited on 30.04.2013) 197 World Commission on Environment and Development, Our Common Future, Oxford University Press, New York 1987, p. 43.
198 See further: K. Bosselmann, The Concept of Sustainable Development, p. 89 [in]: K. Bosselmann, D. Grinlinton, Environmental Law for a Sustainable Society, Auckland 2002.

199 Ibid.
199 Ibid.

55 model does not give priority to any of the pillars of the concept and accepts the fact that sometimes concessions in one sector are needed to achieve improvements in the other.200 Bosselmann notes that from the beginning of the discussion on sustainable development (from the Brundtland Report of 1987 and the Rio Conference of 1992), the anthropocentric model has been promoted.
The author considers this approach to be focused solely on development in a material sense, which is, from an environmental point of view, unfair.

It seems however that the Court of Justice adopts the same anthropocentric interpretation, which will be mentioned in the next paragraphs.

6.3 Sustainable development in European Union law Just like in the case of the integration principle and environmental protection provisions, the first texts of the Treaties did not relate to sustainable development.
The principle was introduced in the Maastricht version and has been evolving since.201 Currently, sustainable development is the goal of the European Union, both in domestic and external policies, and it occurs both in primary and secondary law.
Article 3 TEU indicates the goals of the European Union in both internal and external affairs: The Union (…) shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.

[…] the Union (…) shall contribute to peace, security, the sustainable development of the Earth.
202 For the purpose of this study, the more important point is however that the principle has been included in Article 11 TFEU establishing sustainable development as a rationale of the principle of integration.

While there is no legal definition of sustainable development relating to the whole of European law, the policy on the topic - Renewed EU Sustainable Development Strategy - adopted the Brundtland version.203 200 Ibid.
201 Maastricht version referred to ―sustainable and non-inflationary growth respecting the environment‖, see: Article 2 of the Maastricht Treaty, supra note 22.

202 Article 3 TEU.

203 Renewed EU Sustainable Development Strategy, 10917/06, 26 June 2006, p. 2.

56 When looking at secondary legislation it becomes clear that the term sustainable development is mostly used to convey general principles and objectives early on, in the preamble and opening articles of the acts.
Krämer lists five main areas of secondary legislation where sustainable development is, or at least should be, crucially involved, which are: fisheries, regional policy, development policy, energy and environmental protection.
However Krämer asserts that EU efforts to implement the sustainable development principles do not play a significant role and did not effect changes that were noticeable and intentional.204 Turning to case law, the Court of Justice has so far only referred to sustainable development as an EU objective in fairly general ways.
In the Cases Viking Line (C-438/05) and Laval (C-341/05) the Court recognized that sustainability is a platform for the EU's development; one that integrates the numerous aspects and pillars and even reaches beyond the scope of environmental protection.205 Both cases involved the freedom to provide services and protection of workers' rights.
In both cases, the Court held that a restriction on the freedom to provide services is permissible if it is necessary to ensure the protection of the overarching objectives of the Community.

Importantly, the matter did not concern the protection of the environment, but the two remaining pillars of sustainable development; economic and social.
It shows a proper approach of the Court of Justice towards the principle of sustainable development, as it considers it not as an environmental principle, but as a general principle of European Union law.

In addressing what the place of environment is in sustainable development, Advocate General Léger Philip's opinion on case C-371-98206 is worth mentioning.
Under sustainable development, this Advocate General's view is that environmental protection does not necessarily take priority over other EU policy interests being implemented.

On the contrary, he emphasizes how balance is essential between the varying interests that are at times antagonistic; a situation which requires compromises to be made.
Léger's opinion also makes reference to the Brundtland report, which states the importance of not pitting development 204 L. Kramer, Sustainable Development in EC Law, [in]: H. Ch.

Bugge, Ch.

Voigt, Sustainable Development in International and National Law, Groningen 2008, p. 393.
205 See Cases: C-438/05, Judgment of the Court of 11 December 2007, International Transport Workers‘ Federationand Finnish Seamen‘s Union v Viking Line ABP and OÜ Viking Line Eest, European Court Reports 2007 I-10779; C-341/05, Judgment of the Court 18 December 2007, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and Others, European Court Reports 2007, I-11767.
206 Opinion in the Case C-371/98, Judgment of the Court, 7 November 2000,The Queen v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd., European Court Reports 2000, I – 9249.

57 against the environment, but quite the opposite - to enable improvements in (both of) them in a coordinated way.
According to the Advocate General, it is specifically for this purpose - the reconciling of varying interests in a sustainable development context – that the principle of integration was established.207 6.4 Renewed EU sustainable development Strategy The Renewed EU Strategy for Sustainable Development208 (SDS) is, at the moment, the most important EU policy document on the subject.
It is ―a single, coherent strategy on how the EU will more effectively live up to its long-standing commitment to meet the challenges of sustainable development‖209.

The document was adopted in 2006, following a review of the first Sustainable Development Strategy of the European Union adopted in 2001 in Gothenburg.210 Despite the fact that the Strategy is not an act of law, and does not bind the Member States, it has an impact on the creation and interpretation of EU law.
Moreover, national courts should, according to the principle of loyalty, rule according to the principles of EU law, and documents such as strategies can be considered as part of this law, even though they do not relate directly to the Member States.211 The SDS puts sustainable development in the place of a primary objective of the EU, repeats the Brundtland Report‘s definition, and determines the specific directions of interest for the EU to attempt to reconcile the three pillars of sustainable development.
The strategy is based on ten policy guiding principles, one of which is the policy integration principle.212 Among others the SDS also lists two environmental principles, namely the polluter pays principle and the precautionary principle.213 207 Ibid.

208 Renewed EU Sustainable Development Strategy, supra note 203.

209 Ibid.

210 The European Council in June 2001 (in Gothenburg) adopted the European Strategy of sustainable development, as part of the Lisbon Strategy adopted a year before.
The Lisbon Strategy is a long-term plan for the development of the European Union, but generally refers to two pillars- economic and social.

After its adoption, the European Council decided that it is necessary to supplement the strategy with environmental aspect– the Gothenburg strategy had served that purpose.

See: http://ec.europa.eu/environment/eussd/ (visited on.
30.04.2013) 211 In the, Grimaldi v Fonds (C-322/88, Judgment of the Court of 13 December 1989, Salvatore Grimaldi v Fonds de smala di es professionnelles, European Court Reports 1989, I-04407), the Court of Justice took the view that, in accordance with the principle of loyalty, national courts should rule in accordance with the principles of Community law.
212 Promote integration of economic, social and environmental considerations so that they are coherent and mutually reinforce each other by making full use of instruments for better regulation, such as balanced impact assessment and stakeholder consultations.

Renewed EU Sustainable Development Strategy, supra note 203, p.5.

213 Ibid.

58 There are seven key challenges addressed in the Strategy, to which overall objectives, targets and actions are assigned.
In relation to renewable energy two challenges are of special importance: climate change and clean energy, and the conservation and management of natural resources.

Meeting Kyoto Protocol targets, integration, and RES targets (including the transport sector) are set as operational objectives.
Energy policy in general should be ―consistent with the objectives of security of supply, competitiveness and environmental sustainability.‖214 In relation to RES, specific actions have been outlined, inter alia, regarding an analysis being put together of how targets for renewables can be met, how further renewable energies can be promoted effectively, promoting the use of biomass in order to diversify the EU's sources of fuel supply, reducing greenhouse gas emissions and creating new revenue and more jobs, providing maximized support to research and development concerning 2nd generation biofuels.
Member States' specific characteristics should be taken account of while the studies are underway, as should the requirement for flexibility in how they develop their energy mix and the added difficulties of islands or areas that are significantly isolated from the EU's energy market.215 Despite their good intentions, a comprehensive report published by Eurostat in 2009 showed that the EU has a long way to go in terms of achieving sustainable development.
According to the report, the worst (so far) are the efforts to protect natural resources.

Moreover, the reduction of CO2 emissions and the use of renewable energy sources - the main objectives in the fight against climate change - are not growing sufficiently to achieve the ultimate goal.216 The Commission admitted that ―despite considerable efforts to include action for sustainable development in major EU policy areas, unsustainable trends persist and the EU still needs to intensify its efforts.
As the example of climate change shows, taking actions 214 Ibid., p. 8.

215Ibid., p. 9.

216 Eurostat, Sustainable development in the European Union.

2009 monitoring report of the EU sustainable development strategy, European Communities, 2009.
59 early brings more and earlier benefits at lower costs as acting later.‖217 Since 2009, no further conclusions have been published.218 According to Lee, even though it would be easy to criticize the SDS for many omissions, it does confirm the certainty of sustainable development in the EU.
The broad scope of the principle, as well as the influence of sustainable development on many sectors, means that the real test of the SDS ―will be in its effect on the meaning attributed to sustainable development in any particular decision-making process‖.219 6.5 Conclusions This chapter introduced the concept of sustainable development.

Although the concept is widely known and used, the meaning is rather vague and open to interpretation.
For the purposes of this study the three pillars of sustainable development (economic, social and environmental) and the relationship between them were presented.

Sustainable development also found its place in the law of the European Union, both primary and secondary.

Moreover it is the subject of a Strategy in which, under the theme of coherence, the EU attempts to integrate key issues such as, inter alia, energy with environmental protection principles.
Assessment of the implementation of the Strategy shows, however, that efforts to achieve the goal of sustainability have not been sufficient so far.

The next chapter will address some issues of the EU´s energy policy with a focus on renewable energy sources and the inclusion of the integration principle.
217 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Mainstreaming sustainable development into EU policies: 2009 Review of the European Union Strategy for Sustainable Development, Brussels, COM(2009) 400 final (24.7.2009).

218 See the Commission‘s webpage on Sustainable Development Strategy, http://ec.europa.eu/environment /eussd/ (visited on 19.04/2013).

219 See further: M. Lee, supra note 175, p. 45.


60 7 Renewable Energy in the Energy Policy of Europe 7.1 Opening remarks As has been mentioned in previous chapters, attempts to develop renewable energy had been undertaken by individual MS as a response to the oil crisis.

Therefore, these first attempts did not have anything to do with minimizing the negative effects of the energy sector on the environment and were focused solely on ensuring energy security.
At the EU level an ambitious, comprehensive and forward-looking EU RES policy began as early as 1997 through the first White Paper on RES220, followed by two important Directives in 2001221 and 2003222, and finally by the Climate and Energy Package that included the 2009 RES Directive223 which is currently in force.

The EU´s energy policy is described in a number of both long and short-term strategies.
By building a forward-looking policy the EU is preparing the ground to face 21st Century global challenges such as climate change and the quickly rising energy demand.224 According to the Commission, at the moment the EU has the powers and instruments needed to implement an energy policy geared towards: - - securing Europe‘s energy supplies; ensuring that energy prices do not make Europe less competitive; - protecting the environment and in particular combating climate change; and finally - improving energy grids.225 According to Morata and Solorio Sandoval, the fact that energy policy goals are now laid down also in the Lisbon Treaty is aimed at facilitating an advancement towards policy coherence.226 However, as rightly noted by these authors, European energy policy is still far from being a common policy, and should be described rather as a ―work in progress‖ whose final outcome remains uncertain.
For now it is a coordinated action of both the EU and of its 220 Communication from the Commission, supra note 31.

221 Directive 2001/77/EC, supra note 35.

222 Directive 2003/30/EC supra note 36.

223 Directive 2009/28/EC (the RES Directive), supra note 5.

224See further: F. Morata, I. Solorio Sandoval, supra note 3, p. 2.

225The European Commission, The European Union Explained.
Sustainable, secure and affordable energy for Europeans, http://europa.eu/pol/ener/flipbook/en/files/energy.pdf (visited on 30.04.2013).

226 See F. Morata, I. Solorio Sandoval, supra note 3, p. 3.

61 MS that defines the European energy policy, and its governance essentially relies on the cooperation between the EU and its MS.227 Renewable energy resources sit in a special place within EU policies and strategies.
The Commission has noted how the EU is compelled by various factors to establish a framework that promotes renewables: in the most part they can be produced within Member States, they are not reliant upon speculative projections about future fuel availability levels, and their decentralized nature makes them less of a threat to society.228 According to Bechberger, RES promotion should be seen as the only strategic option for rapidly reducing greenhouse gas emissions and the energy import dependency of the EU.
In this sense, renewable energy can avoid much of the costs, which would be much higher in total than the financial support needed for a massive deployment of RES.229 In line with above, the objective of this chapter is to introduce the renewable energy policy of the EU as reflected in a number of strategic documents.

Naturally, elaboration on the whole energy policy under this study would be both impossible and unnecessary.
Therefore only the current EU documents that are relevant to the promotion of RES will be presented.
7.2 The importance of RES for Europe Analysis of current policies and strategies in the field of RES should begin from the two long term energy strategies for Europe: Energy Roadmap 2050230 and A Strategy for Competitive, Sustainable and Secure Energy: Energy 2020.231 Both documents relate to energy policy as a whole and both provide for a transition to renewable energy sources and their dominance in the energy mix of Europe in the next decades.
A requirement of the Energy 2020 strategy is that investments in the electricity generation sector result in almost two thirds of the electricity being produced originating from low carbon sources ―by the early 2020‘s‖.

From this angle, then, generating energy from renewable sources should be prioritized.

According to the document, Europe has just taken the first step implementing the policy by introducing a legislative framework designed to 227 Ibid., p.3.
228 Communication from the Commission to the Council and the European Parliament, Renewable Energy Road Map.

Renewable energies in the 21st century: building a more sustainable future, Brussels, COM(2006) 848 final (10.1.2007), p.3.

229 M. Bechberger, Foreword to F. Morata, I. Solorio Sandoval, supra note 3 ,p. ix.
230 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Energy Roadmap 2050, Brussels, COM(2011) 885 final (15.12.2011).

231 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Energy 2020.

A strategy for competitive, sustainable and secure energy, Brussels, COM(2010) 639 final (10.11.2010).
62 promote the achievement of the 20% target for renewable energy in 2020.
Ensuring that the legislation is fully implemented should be the next step, as investors need the confidence to invest in new production, transport and storage options for renewable sources.232 The Energy 2020 strategy additionally demands an acceleration in those projects involved in the development and demonstration of the main technologies, which include, for example ―second generation biofuels, smart grids, smart cities and intelligent networks, Carbon Capture and Storage, electricity storage and electro-mobility, next generation nuclear, renewable heating and cooling‖.233 As there is inadequate direction as to what should follow the 2020 agenda, the EU adopted the Energy Roadmap 2050, which is the basis for developing a long-term European energy framework.
The EU recognizes that the overall functioning of society depends on safe, secure, sustainable and affordable energy and is committed to reducing greenhouse gas emissions to 80-95% below 1990 levels by 2050.234 The Roadmap presents the current trend scenarios and decarbonization scenarios, in which a major role is played by renewable energy sources, and argues that decarbonization of the energy system is possible in few different ways.
These scenarios include high energy efficiency, diversified supply technologies and strong support for renewable energy technologies.

The Roadmap 2050 does not exclude nuclear energy and technologies aimed at minimizing the negative impacts of fossil fuels, like carbon capture and storage (CCS).
Moreover, the costs of transforming the energy system do not differ substantially from the current trend scenario.235 The share of renewable energy rises substantially in all decarbonization scenarios and the largest share of energy supply technologies in 2050 comes from renewables.236 The Roadmap lists challenges that Europe will come across when switching to renewables, such as bringing down the costs of renewable energy, development of technologies, more efficient policies and support schemes and incentives.
According to the document, storage technologies and improved infrastructure for integration across Europe remain critical.237 232 Ibid.

233 Ibid, p.15 234 Energy Roadmap 2050, supra note 230, p. 2.

235 Ibid., p.4.

236 See: Ibid., p. 7.

The share of RES in electricity consumption reaches 64% in a High Energy Efficiency scenario and 97% in a High Renewables Scenario that includes significant electricity storage to accommodate varying RES supply even at times of low demand.
237 Energy Roadmap 2050, supra note 230, p. 10.

63 While concentrating on the development of technology and market-based incentives, the Roadmap neither lists environmental aspects as a challenge to rapid and significant rises in energy from RES, nor provides for any reference to the protection of the environment or the principle of integration, apart from a land use concern in relation to biomass and biofuels.
Biomass has been recognized as the main option for the transport sector as well as for heating and cooling.

―Work to ensure sustainability (e.g.

on indirect land use changes) is ongoing.

The market uptake of new bio energy, which reduces demand for land necessary for food production and which increases the net greenhouse gas savings (e.g.
biofuels based on waste, algae, forest residues), should continue to be promoted.‖238 While the Roadmap 2050 refers to sustainable and secure energy it does not pay any attention to environmental integration.

It must be noted that it is only a 20 page document considering strategies for the next 40 years; therefore it can be neither detailed nor accurate.

The absence of any reference to the protection of the environment can be however considered as an omission.
7.3 New policy framework The debate over new energy strategies that would effectively tackle climate change and show the EU‘s strong commitment to meet the Kyoto Protocol began in 2006.239 In 2007, in relation to renewables, which were put in the center of the new strategy, the Renewable Energy Road Map presented and introduced the renewable energy sector as ―the one energy sector which stands out in terms of ability to reduce greenhouse gas emissions and pollution, exploit local and decentralized energy sources, and stimulate world-class high-tech industries.‖240 The Road Map sets up key points that should be included in the new RES Directive, argues that previous efforts and legislation proved to be less than sufficient at meeting targets and causing a green shift in energy policy.
Therefore, it proposed a 20% mandatory target by the year 2020 for the renewable energy share of the EU's energy use,241 explained why this is necessary, and established a pathway for mainstreaming renewables into the EU energy 238 Ibid., p. 11.

239 F. Morata, I. Solorio Sandoval, supra note 3, p.8.

240 2007 Renewable Energy Road Map, supra note 228, p. 3.
241 The Commission believes that an overall legally binding EU target of 20% of renewable energy sources in gross inland consumption by 2020 is feasible and desirable.

Such a share would be fully in line with the level of ambition expressed by the European Council and by the European Parliament 64 market.
It must be noted here that to large extent the RES Directive (that will be subject of the Chapter 8) followed the Road Map and its findings.242 The Renewable Energy Road Map is based on some key principles for RES development including, inter alia, long term mandatory targets and stability of the policy framework, flexibility in target setting across sectors, comprehensiveness, efforts to remove unwarranted barriers to renewable energy deployment, and finally taking into consideration environmental and social aspects.243 Apart from the sustainability of biofuels, reference to environmental protection is made only in terms of positive air quality benefits that come from replacing fossil fuels with renewables.244 As will be shown below, the EU managed to put the key principles into legally binding provisions rather quickly, by adopting the Climate and Energy Package along with the RES Directive.245 7.4 New legislative frameworks The 2008 Communication 20 20 by 2020: Europe’s Climate Opportunity246 proposed a set of mutually supportive measures to ―turn political direction into action‖247.
The document laid out a strategy aimed at leading Member States into a situation whereby their combined greenhouse gas emissions are reduced by a minimum of 20%; their renewable energy share is increased to 20% of total energy use, and energy efficiency is increased by 20% by 2020.248 After some intense intergovernmental negotiations, that took place in the shadow of the massive economic crisis not only in Europe but worldwide, the Climate and Energy Package became EU law in June 2009.
The main elements of the package were published in the OJ L 140, 5.6.2009 and include: - The Renewables (RES) Directive;249 - The EU Emission Trading Scheme (ETS) Directive;250 242 See further recitals 8-10 of the RES Directive, supra note 5.

This applies, inter alia, to the binding character of RES targets (Article 3), national action plans (Article 4) or 10% target for biofuels (Article 3(4)).

243 2007 Renewable Energy Road Map, supra note 228, p. 9.

244 Ibid., p. 14.

245 See further: Chapter 8.


246 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 20 20 by 2020 Europe's climate change opportunity, Brussels, COM(2008) 30 final (23.1.2008).

247 Ibid., p. 3.

248 Ibid.

249 RES Directive, supra note 5.
65 - The Fuel Specification Directive251 - The Carbon Capture and Storage (CCS) Directive;252 - The Passenger Car Regulation;253 - The Effort-sharing decision.254 The package makes RES the center of attention, calling the 21st Century the ―new era for renewable energy‖.255 The RES legislation will be the subject of Chapter 7 below; at this point however it must be mentioned that the Climate and Energy Package managed to ―mainstream climate change considerations into a range of sectors, which is necessary given the multitude of activities and actors that must be engaged to effectively mitigate negative climate effects.‖256 In relation to the issue of environmental integration, Kulovesi, Morgera and Munoz argue that the very fact that the EU decided to adopt the package of legislative measures that jointly address climate change and energy clearly shows the intention of adopting a comprehensive and highly integrated approach.
In many respects the package includes innovative legal measures that support not only climate change mainstreaming, but also the environmental sustainability of proposed climate change measures.257 Therefore, the implementation of ambitious goals should lead to positive results.

Pushing through the adoption of the package, particularly in such a difficult economy, can indeed be regarded as a success of the European Union.
Under this study, the 250 Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, OJ L 140/63 (5.6.2009).
251 Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 98/70/EC as regards the specification of petrol, diesel and gas-oil and introducing a mechanism to monitor and reduce greenhouse gas emissions and amending Council Directive 1999/32/EC as regards the specification of fuel used by inland waterway vessels and repealing Directive 93/12/EEC, OJ L 140/88 (5.6.2009).
252 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, OJ L 140/114 (5.6.2009).
253 Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community‘s integrated approach to reduce CO2 emissions from light-duty vehicles, OJ L 140/1 (5.6.2009).
254 Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community‘s greenhouse gas emission reduction commitments up to 2020, OJ L 140/136 (5.6.2009).

255 See: Energy and Climate Package Communication, supra note 246, p.7.
256 K. Kulovesi, E. Morgera, M. Munoz, The EU‘s Climate and Energy Package: Environmental Integration and International Dimensions, Edinburgh Europa Paper Series 2010/07, p. 38.

257 Ibid., p. 9.

66 environmental implications of the package as a whole will not be evaluated.
The authors cited above, however, make such an analysis and come to the conclusion that the package represents an innovative and comprehensive approach, aiming to integrate climate change considerations into various economic sectors and activities within the EU, while at the same time ensuring that climate change mitigation is compatible with other environmental objectives.‖258 7.5 Recent policy developments In relation to renewables, the solutions adopted in the Climate and Energy Package are essential.
However, the EU does not stand still and prepares and adopts new strategies and forecasts designed to improve actions for the development of RES.

One such document is found in a Communication from 2012: Renewable Energy: a major player in the European energy market.259 The Communication aims to explain the amalgamation into the single market of renewable energy.
In addition, it provides an amount of guidance on the current framework until 2020 and sets out the potential options for policy reaching further forward than 2020, in order to guarantee the continuity and stability needed to allow the expansion of European renewable energy production as far as 2030 and beyond.260 The Commission reaffirms the importance of RES in the energy policy of Europe and promises more reports and evaluations of the current solutions, especially on issues regarding sustainability of biomass.261 However, it is hard to find any new solutions or proposals in this document when comparing it with the RES Road Map adopted in 2007 or the Energy 2020 strategy.
It seems that the EU wanted to turn the attention to its RES-related actions, in the context of the Rio+20 Conference that was held at the same time to debate over the issues of developing a ―green economy‖.262 Another document relating to the energy policy as a whole has recently been introduced by the Commission.

The Green Paper 2030 framework for climate and energy 258 Ibid., p. 41.
259 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Renewable Energy: a major player in the European energy market, Brussels, 6.6.2012, COM(2012) 271 final.

260 Ibid, p. 3.

261 See: ibid., p. 11.

262 United Nations Conference on Sustainable Development Rio +20 took place in Rio de Janeiro on 20-22 June 2012.
The Conference will focus on two themes: a green economy in the context of sustainable development poverty See: for the http://www.uncsd2012.org/index.php?menu=62 (visited on 30.04.2013).

development.

institutional eradication; sustainable framework and 67 policies263 discusses progress that has been made in order to achieve the 2020 targets and presents some key issues that, based on progress already made and the experiences and views of stakeholders, need to be consulted.
These key issues include: coherence of policy instruments, fostering the competitiveness of the EU economy, and acknowledging the differing capacity of Member States.

Environmental issues were not included in the document, which focuses mostly on aspects of economic development and the limits of Member States.
Importantly, the EC engaged in discussion on the binding character of targets.264 7.6 Renewable energy policy and environmental protection Not long after the first White Paper on Renewable Energy Sources and the signing of the Kyoto Protocol (1997), the Commission prepared a Communication on strengthening environmental integration within Community energy policy.265 The Kyoto Protocol played a major role in focusing the discussion over the development of energy in the direction of environmental issues, namely the climate change that was associated with emitting harmful air pollutants such as carbon dioxide and greenhouse gases.
Recent Amendment to the Protocol adopted in Doha only confirmed international focus on climate change.

As has been mentioned in Chapter 2, the EU positioned itself as the leader in the fight against climate change, but in order to rise to this challenge a regulatory framework was needed on the EU level to implement the international obligations and policies already in place.
The 1998 Communication elaborates on the ―environmental dimension of energy measures‖, expressing the need for the integration of the environment into energy policy and related EU actions.

Given the important impact of energy on the environment, environmental integration cannot be achieved without adapting energy policy to take into account environmental objectives.266 263 The European Commission, Green Paper, A 2030 framework for climate and energy policies, Brussels, 27.3.2013, COM(2013) 169 final.
264 See further: A 2030 framework for climate and energy policies, supra note 34, p.7.

A debate on obligatory character of targets can be regarded as a step backwards when it comes to the development of renewable energy sources.

Binding targets of the share of renewables in the electricity, heating/cooling and transport will be further described in Chapter 7.

265 Communication from the Commission, supra note 2.

266 Ibid., p.1.
68 While it was confirmed in the document that MS have a ―central role to play‖ in energy- related matters, the Commission argued that actions at the EU level in the field of energy are necessary to pursue the objective of completing the internal market, and to ensure compatibility with other EU objectives.267 Therefore, the Commission in its Communication from 1998, a decade before the adoption of the Lisbon Treaty, was alarmed that the action of Member States was insufficient and suggested, though not literally, that to effectively achieve the objective of sustainable development, the energy sector should fall within the area of shared competence.
While the central role in energy policy was still played by MS, actions at the EU level were needed to provide the most efficient solutions and to ensure a ―successful integration of sustainability‖.268 According to the Commission, sustainability should be centralized as a general principle of EU energy policy.
A direct reference to the three pillars of sustainable development has been provided in the document: It is essential to adopt sustainability as a general principle in developing future Energy Policy and this Communication seeks to support this approach.

It is nonetheless important to ensure that energy policy is balanced, realistic and flexible.
A long-lasting balance needs to be found between the need to protect the environment and the economic and social needs of human beings.269 The communication sets three basic rules, in relation to the integration of environmental concerns into energy policy, which remained adequate up until now, namely: complementarity, realism and flexibility.
Other objectives of energy policy: competitiveness and security, need to be taken into account and balanced with environmental concerns to fulfill the complementarity requirement; integration needs to be ―based on facts and analysis‖ to be realistic; and maximum flexibility should be provided due to rapidly changing energy markets and the dynamic development of new technologies.270 In relation to renewable energy, the Communication confirms that the local, regional and global impacts of energy production and consumption are significant and recognizes priority actions towards integration where, besides energy efficiency and cleaner fossil fuels, the development of renewable energy is given major attention.271 267 Ibid., p.6.
268 Ibid., p.6.

The Commission defined the participation of EU Institutions as a ―complementary role‖.

269 Ibid., p.2.

270 Ibid., p.6.

271 Ibid.

pp.2-5.

69 The Commission is dedicated to promoting the development of renewable energy sources on the European market, as a substantial increase in the use of renewable energy sources will significantly contribute to reducing greenhouse gas emissions, while at the same time securing energy supplies.
Technological progress associated with the development of renewable energy was another boost for the promotion and development of renewables.
As the competence in the energy sector stayed with MS, the Commission called for a development of national strategies to promote the wide use of renewable energies.272 An important point is that increasing the share of the production and use of renewable energy sources has been identified as one of the ―specific environmental objectives (…) for integrating the environmental dimension.‖ Another two of these objectives are promoting energy efficiency/saving, and reducing the environmental impact of the production and use of energy sources.273 This means that renewable energy from the beginning was treated not only as a tool to increase the energy independence of the EU, but mainly as an instrument to minimize the negative impact of the energy sector on the environment.
The document may be regarded as a major step in the direction of integration.

Unfortunately, it referred to the environmental issues as being exclusively linked to climate change, leaving out other aspects and objectives of EU environmental policy, such as, e.g.

nature and biodiversity or water protection.


Back then environmental objectives were already established under the primary law of the EU and these issues were considered as important and as requiring special attention and coordination.274 7.7 Conclusions This chapter introduced the current EU energy policy in relation to the promotion of renewable energy sources.
It seems that in the long run, the EU foresees a significant jump towards the development of RES and sets renewables as the main supplier of electricity in the EU.

There are a number of documents relating to renewable energy sources that generally consider RES to be an important element for the development of EU energy policy (the Energy 2020 strategy or Energy Roadmap 2050) and, more specifically, focus solely on the development of renewables.
A coherent renewable energy policy for Europe was established with the adoption of the White Paper of 1997, but it was the first decade of the 21st Century that brought about the policy development that led to the adoption of innovative and 272 Ibid., p.9.

273 Ibid., p.7.

274 See further: the European Commission webpage on environment and main policies: http://ec.europa.eu/ environment /policies _ en.htm 70 comprehensive legislation on RES.
The Climate and Energy Package set three objectives, in line with the EU‘s international obligations, current environmental concerns, and issues of EU energy security.

Significant development of renewable energy within the EU constitutes one of these objectives and substantially participates in the achievement of another, namely energy-related emissions cuts.
In sum, it can be said that the European Union has equipped itself with policies not only allowing, but preferring the development of renewable energy sources rather than other alternatives.

At this point conclusions on the integration of environmental protection requirements into the energy policy of Europe should be drawn.

From the documents presented above, it seems as if the EU has policies in place to integrate environmental considerations into a renewable energy policy.
These policies may be criticized for focusing almost exclusively on issues of climate change and for ignoring other ―environmental protection requirements‖ defined in Article 191 TFEU.

The principle of integration seeks to integrate all environmental objectives into other policies, rather than just one of them.

Focus on climate change, however, is connected with ongoing intensive international negotiations on the matter and with the European Union‘s leadership position in these negotiations.
In summary, climate change considerations can be regarded as a good starting point for integration, but the policy integration should be deepened to achieve the overall goal of sustainable development.

In addition, the significance of the development of renewables has been highlighted in environmental policy documents.

As has been mentioned in previous chapters, the 7th Environmental Action Programme places more emphasis on linking energy and climate change issues with environmental concerns.
The 7th EAP, however, goes further than energy policies by reaching beyond the concern of climate change when linking energy and environmental policies.

While fully implementing the EU Climate and Energy Package is essential for building a competitive, low-carbon economy by 2050, environmental concerns such as biodiversity conservation or water protection should be also fully taken into account in decisions relating to renewable energy.
Finally, the Renewed Sustainable Development Strategy is considered to be a coherent strategy on how the EU will more effectively live up to its long-standing commitment to meet the challenges of sustainable development.

Within one document this strategy balances both environmental and energy issues, with a clear focus on renewable energy since this is regarded as clean energy.
In summary, the analysis of policies in the field of environment and energy leads to the conclusion that they are in compliance with the principle of integration, especially when it comes to the objective of combating climate change.

The goals of both policy areas intertwine 71 and renewable energy sources are a common feature of both policies.

Finally, both environmental and energy policies accepted sustainable development as a general principle.
In the following chapter, one particular legislative part of the Climate and Energy Package will be discussed in light of environmental integration.

The currently in force 2009 RES Directive serves as a framework for the promotion of renewable energy sources, and introduces binding obligations with the goal of achieving the objectives of energy security, technology innovation and environmental sustainability.
72 8 The legal framework RES – the RES Directive 8.1 Introduction In 2005, renewable energy accounted for 8.6% in EU´s final energy consumption compared to the 6.3% share in 1991.275 In 2010 the EU reached 12.7%.276 This impressive leap demonstrates the commitment and determination of both the EU and its individual Member States.

Among other things, achieving ambitious targets required, and still requires, an aggressive policy, consistent legislative framework and significant infrastructure investments.
Forecast documents, submitted by MS, present that the result for 2020 renewable energy consumption should slightly exceed its 20% target.277 As explained in the previous chapter, in the first decade of the 21st Century policies and programs supporting the development of RES were already in place; however a clear regulatory framework that would significantly stimulate the integration of renewables into the energy market was missing.
Intensive work to develop a framework directive that would significantly strengthen the promotion of RES was finalized in 2007, and the current RES Directive was adopted as part of the Climate and Energy Package in 2009.
Before 2009, two important directives that promoted the use of renewable energy sources already existed: Directive 2001/77/EC278 on the promotion of electricity produced from renewable energy sources and Directive 2003/30/EC279 on the promotion of the use of biofuels or other renewable fuels for transport.

Both directives set indicative 2010 targets for all Member States and required actions to improve the growth, development and access of renewable energy.
However, on January 1st 2012, Directive 2009/28/EC280 (the RES Directive) abrogated these two and some of the provisions were repealed even before that date.

The new RES Directive had to be transposed by December 5th 2010.

The objective of this chapter is to introduce the mechanisms adopted under the RES Directive and to discuss their compatibility with environmental protection requirements.
Special attention will be given to the sustainability criteria for biofuels laid down in the RES Directive, as these provisions are considered by Kulovesi, Morgera and Munoz to be ―one of 275 European Environment Agency, Energy and environment report 2008, Copenhagen No 6/2008, p.44.

276 The European Commission, Green Paper, A 2030 framework for climate and energy policies, Brussels, COM(2013) 169 final (27.3.2013), p.7.
277The Summary of the Member States‘ forecast documents can be found on: http://ec.europa.eu/energy/ renewables/action_plan_en.htm (visited on: 30.04.2013).

278 Directive 2001/77/EC supra note 35.

279 Directive 2003/30/EC supra note 36.

280 RES Directive, supra note 5.

73 the most innovative features of the package‖281, and are specifically aimed at avoiding negative environmental impacts when developing biofuels.
8.2 General remarks and definition The RES Directive on the promotion of the use of energy from renewable sources entered into force on June 25th 2009 as part of the EU Climate and Energy Package.

As mentioned in the previous chapter, the package identifies three targets: 20% reduction of CO2 emissions, 20% energy savings and 20% share of energy from renewable sources.282 The RES Directive is associated with the third objective and significantly contributes to the achievement of the first.
It establishes a legal definition of renewable sources and addresses jointly electricity, heating and cooling and transport; these being the three sectors that are taken into account when calculating the gross final consumption of energy from renewable sources.283 Also for the first time, each EU Member State has a legally binding renewable target along with clear path to follow.
The Directive provides a framework for promoting renewable energy throughout Europe, stipulates the targets that Member States must meet regarding the overall renewable energy share in gross final consumption, and for the proportion of energy arising from renewable sources in the transport sector.
Furthermore, the Directive establishes rules surrounding statistical transfers between MS, projects undertaken jointly with other MS and third countries, guarantees of origin, administration procedures, provisions on information and training, and access to the electricity grid for energy from renewable sources.

Finally, it establishes sustainability criteria for biofuels and bioliquids.284 The RES Directive contains 29 operative articles and 97 recitals.
Unlike the operative provisions, recitals are not legally binding but are used to interpret the articles.

They provide political reassurance and specify the reasons for adopting measures under operative part.

The 29 articles of the Directive will therefore be interpreted in light of the 97 recitals.285 Recital 44 relates directly to the integration principle, stating that coherence between the objectives of this Directive and the EU environmental legislation should be ensured.
Energy from renewable sources has been described as having, compared to non-renewable sources, an overall high sustainable and environmental beneficial quality.

Therefore Member States 281 K. Kulovesi, E. Morgera, M. Munoz, supra note 256, p. 31.

282 See further on the package coverage in Chapter 7.

283 RES Directive, supra note 5, Article 5.

284 Ibid., Article 1.

285 See further: J.M.

Jankowski, A European Legal Perspective on Wind Energy, Journal of Energy & Natural Resources Law, Vol.
28 No 2 2010, p. 279.

74 should take these benefits into account when applying administrative rules and when planning structures and legislation.286 As has been mentioned in Chapter 3, the RES Directive is an example of adopting a measure based on two legal bases.

It was adopted before the TFEU came into force, and thus before energy objectives were introduced as a separate provision.
This is why the Directive is based on environmental Article 175(1) EC (now Article 192(1) TFEU) in its larger part, and, when it comes to Articles 17-19 on sustainability criteria for biofuels, it is based on internal market Article 95 EC (now Article114(1) TFEU).
The legislator justified such choice by stating that: Since the measures provided for in Articles 17 to 19 also have an effect on the functioning of the internal market by harmonising the sustainability criteria for biofuels and bioliquids for the target accounting purposes under this Directive, and thus facilitate, in accordance with Article 17(8), trade between Member States in biofuels and bioliquids which comply with those conditions, they are based on Article 95 of the Treaty.287 Energy from renewable sources has been listed under Article 2(a) and includes wind, solar, aerothermal, geothermal, hydrothermal and ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogases.288 Here, therefore, the EU for the first time addressed jointly all forms of renewable energy.
It must be noted at this point that while renewable energy sources are considered to be much less environmentally damaging than conventional energy, and the RES Directive has even been regarded as ―energy specific environmental legislation‖289, renewables are not entirely environmentally neutral.
Studies show that while wind, solar or hydro power indeed cause significantly less air pollution than energy from fossil fuels, they cause other effects on 286 Recital 42 of the Preamble to the RES Directive, supra note 5.

―The coherence between the objectives of this Directive and the Community‘s other environmental legislation should be ensured.
In particular, during the assessment, planning or licensing procedures for renewable energy installations, Member States should take account of all Community environmental legislation and the contribution made by renewable energy sources towards meeting environmental and climate change objectives, in particular when compared to non-renewable energy installations.‖ 287 Recital 94 of the RES Directive, supra note 5.

288 Ibid, Article 2(a).

289 See further Chapter 6.


75 the environment, which must be taken into account when assessing their compliance with environmental requirements.290 Development of RES in the EU was initiated as a means to fight climate change and increase energy independence.

Certainly, renewable energy is a great way to minimize harmful GHG 291emissions; however improvements in technology and land use must be made to eliminate other RES-connected environmental issues.
As an example, wind energy can be mentioned in terms of environmental implications other than emissions cuts, as the biggest share of renewable energy in the EU come from this source.292 Generating electricity from wind power guarantees minimal toxic pollution or global warming emissions.

It is an abundant and inexhaustible source, therefore provides a good alternative to fossil fuels.
While there is undisputed environmental benefit in clean energy generation, there are some environmental impacts associated with wind power that should be eliminated.

Two concerns requiring special attention are the impacts of wind turbines on wildlife, mostly on birds and bats, and their impacts on public health based on the level of noise they produce.293 Further technological improvements can however help with overcoming these issues and making wind energy even more environmentally-friendly.
To sum up, with the entry into force of the RES Directive, a legal framework for the development of renewable energy within the EU has been established.

The Directive implements the findings of the 2007 Renewable Energy Road Map and is one of the major instruments of the Climate and Energy Package.

It provides a number of new solutions such as, inter alia, legally binding targets or sustainability criteria for biofuels, both of which will be analyzed below.
The RES Directive was adopted before the entry into force of the Lisbon Treaty, therefore Articles 175 (now 192 TFEU) and 95 (now 114 TFEU) serve as a legal basis and the choice of dual legal basis has been justified, since the harmonizing criteria for biofuels can influence the functioning of the internal market.

Because the Directive was adopted under an environmental legal basis, it is clear that it has to follow environmental objectives and principles.
In fact, the Directive is often regarded as an energy-specific piece of environmental legislation, but mostly in the context of climate change and air pollution.

It 290 See further: N.Dhondt, supra note 130, pp.

382-386; Environmental Impacts of Renewable Energy Technologies, http://www.ucsusa.org/clean_energy/our-energy-choices/renewable-energy/environmental- impactsof.html (visited on 30.04.1013).

291 Ibid.

292 EEA, Energy and Environment, supra note 275, p. 44.
293 See further: Environmental Impacts of Wind Power http://www.ucsusa.org/clean_energy/our-energy- choices/renewable-energy/environmental-impacts-wind-power.html (visited on 30.04.2013) 76 must be noted, however, that renewable energy sources can also cause other environmental problems related e.g.

to wildlife and habitats or to harmful noise levels.
8.3 Mechanisms adopted under the 2009 RES Directive From the preamble of the RES Directive three main objectives can be identified: environmental sustainability, energy security and technology innovation.294 The overall legal framework supporting achievement of these objectives and target for renewable energy includes five elements: - obligatory national targets for 2020; - national renewable energy action plans; - flexible mechanisms allowing for cross-financing between Member States for the achievement of the EU target; administrative and regulatory reforms; - - biofuels sustainability criteria.295 Since that directive seeks to achieve a variety of objectives, some of the mechanisms‘ main focus is on areas other than the protection of the environment.
However, regardless of the main objective of the given instrument, all provisions should be consistent with the principle of integration established under Article 11 TFEU, and should prefer environmentally-friendly or at minimum the least environmentally unfriendly solutions.

As the objective of this chapter is to introduce and discuss the EU‘s current RES legislation, these five mechanisms will be further explained and elaborated.
8.3.1 Binding targets At the EU level, the RES Directive sets an overall target of at least 20% share of energy from renewable sources in the EU‘s energy consumption by 2020.296 Since options for developing renewable energy vary from one Member State to another, the goal of increasing energy production from RES has been differentiated.

Annex I297 sets mandatory national targets for the share of energy from renewable sources in gross final consumption of energy in 2020, 294 See: RES Directive, supra note 5.
295 Ibid.

296 The phrase ―at least‖ was added by the Parliament, because of its ambition to reach higher percentage.

See: J.M.

Jankowski, supra note 285, p. 279.

297 Annex I on the national overall targets for the share of energy from renewable sources in gross final consumption of energy in 2020, the RES Directive, supra note 5.

77 which are consistent with the overall EU target of at least 20 %.
The Commission based calculations for each MS on its share of renewable energy in 2005, modulated in order to reflect the efforts that each has already made.298 Targets range from 10% in the case of Malta, to 49% for Sweden.299 The diversification of targets corresponds with the principles of realism and flexibility established under the Communication from 1998300, and takes into account ―environmental conditions in various regions of the Union‖ as established under environmental criteria from Article 191(3) TFEU.
Regardless of the starting point, in Part B of Annex I the uniform indicative trajectory has been set.

Also, while the final target for the share of energy from renewable sources in gross final consumption of energy varies significantly, for most of the MS it will mean at least a 10% increase compared to values from 2005.

301 The main purpose of binding targets is to provide the long-term stability that is needed for investors to make rational sustainable investments in the RES sector.
Mandatory targets are expected to encourage continuous development and to boost the use of new technologies that generate energy from RES.302 However, as has been mentioned in the previous chapter, lately the Commission engaged in a discussion about the need for binding targets, which is a step towards undermining this provision.303 Another problem with targets appears in connection with the long-term EU energy policy goals.
The Roadmap 2050 presented decarbonization scenarios and all of them suggest growing shares of renewables of around 30% in gross energy consumption by 2030.304 In the scenario of ―high renewable energy sources‖ the share of renewables the Roadmap assumes that the share of RES in gross energy consumption will reach is 75% by 2050.305 With reference to these numbers it should be noted that 20% until 2020 will not be sufficient to reach the 2050 target, and much investment in renewables is required to speed up the development of RES.
In this context, the discussion on whether targets should be legally binding or not is dangerous, because investors can lose the stability required for financing the development of new technologies, meaning that renewables development may be inhibited as a result of losing on the market to other alternatives.

298 See further: Article 5 of the RES Directive, supra note 5.

299 Annex I of the RES Directive, supra note 5.

300 See: Chapter 7.

301 See further: Annex I of the RES Directive, supra note 5.
302 J.M.

Jankowski, supra note 285, p. 280.

303 See further: Green Paper 2013, supra note 276.

304 Roadmap 2050, supra note 230, p. 10.

305 Ibid.
305 Ibid.

78 Regardless of the 20% share of renewables in final energy consumption, the Directive sets the goal for the renewable energy share in all forms of transport by 2020.306 This goal is the same for all MS and shall reach at least 10 % of the final consumption of energy in every Member State.307 It has to be also mentioned that there is no direct penalty mechanism included in the directive for failing to reach the target.
The Commission has a right to initiate infringement proceedings if a MS does not take appropriate measures to reach the target, but the directive leaves the decision over whether take legal action to the Commission‘s discretion.308 From an environmental point of view, the binding character of targets contributes to meeting the objective of combating climate change and promotes a prudent and rational utilization of natural resources.
The diversification of targets complies with the environmental criteria set out in Article 191(3) TFEU, namely the ―environmental conditions in the various regions of the Union‖ and ―the economic and social development of the Union as a whole and the balanced development of its regions‖.309 As mentioned above, the Commission in the latest Green Paper discusses and questions the need for binding targets.
From an economic point of view such discussion is indeed justified, however from an environmental point of view a return to indicative targets could have negative consequences.
The economic and social development of Member States varies significantly and, while among the group of States with a high environmental awareness a change to the indicative target would not significantly reduce the effort to pursue the target, in other Member States such transformation could result in turning to, rather than RES, widely available, cheaper but not necessarily environmentally-friendly energy sources.
8.3.2 Monitoring the progress – national renewable action plans Under the RES Directive MS have an obligation to adopt the National Renewable Action Plans.

The minimum requirements of such action plans have been provided in a template adopted by the Commission.310 Plans give the Member States flexibility to decide how they 306 Article 3(4) of the RES Directive, supra note 5.
307 These 10% represent the percentage of the country‘s ―final‖ consumption in transport of only: (a) patrol; (b) diesel; (c) biofuels consumed in road and rail transport; (d) electricity in transport.

Article 3.4 of the RES Directive, supra note 5.

308 J.M.

Jankowski, supra note 285, p. 287.

309 Art 191(3) TFEU, supra note 4.

310 The template was published on 15.07.2009.


See: Commission Decision 2009/548/EC, of 30 June 2009 establishing a template for National Renewable Energy Action Plans under Directive 2009/28/EC of the European Parliament and of the Council OJ, L 182/33, (15.7.2009).

79 want to meet national targets.

Moreover, they create investor security and help to mobilize private capital by setting clear goal and mechanisms at a national level.
These action plans set out a particular target for each one of the three fields of industry that hold an interest in renewable energy generation: electricity, heating and cooling and transport.
Also detailed within them are the measures that should be employed to meet these sectorial targets; for example, ensuring the cooperation of the various national, regional, and local authorities and national policies in developing the biomass resources that are already in place.311 The European Commission had to be notified of the action plan by 30 June 2010.312 Also, the Directive lays down a number of reporting obligations to ensure that the established long-term plans are carried out.313 In the event a Member State fails to complete its National Action Plan on time, the Commission can commence infringement proceedings.
The principle of proportionality stands behind this measure.

While the framework establishing objectives has been adopted at the EU level, it is for the MS to decide how to achieve the goals set by the EU.

The template for National Renewable Energy Action Plans refers to environmental protection only once, requiring the MS to describe the general objectives of the policy (including environmental) and the main strategic lines of action.
More points refer to sustainability criteria for biofuels, as the issue is widely described in the directive.

8.3.3 Flexible mechanisms Flexible mechanisms under the RES Directive are the rules for cooperation between Member States and third countries.
They are considered as a cost-effective means of achieving the overall target as the available RES base and the relevant overall costs are significantly differentiated among the Member States While the main purpose of such actions is to meet the national target, they also help to strengthen the EU renewable energy internal market.314 In all cases, the Commission has to be notified of such operations.

Cooperation can be carried out 311 Ibid.

312 In June 2010, most action plans had not been received.
See: http://ec.europa.eu/energy/renewables/action _plan_en.htm (visited on: 30.04.2013) 313 Member States had to publish a forecast document, six months before its national renewable energy action plan was due.

In February 2010, the Commission had received all Member States‘ forecast documents.

Each Member State shall submit a report to the Commission on progress in the promotion and use of energy from renewable sources by 31 December 2011, and every two years thereafter.
The Directive specifies what information should be included in the report concerning inter alia sectorial share of RES in preceding years, support schemes, progress in adjustment of administrative procedures and other development of mechanisms concerning use of RES (including biofuels) in evaluating period.

See: http://ec.europa.eu/energy/renewables /action _plan_en.htm (visited on: 30.04.2013).

314 See further: J.M.

Jankowski, supra note 285, p. 284.


80 through: statistical transfers between two MS and joint projects between two MS or MS and a third country.
Member States can also participate in joint support schemes.315 Statistical transfer between two Member States316 means that, based on the agreement, a specified amount of energy from renewable sources may be transferred from one Member State to another.317 Two or more Member States may cooperate in all types of joint projects relating to the production of electricity, heating or cooling from renewable energy sources.

Such cooperation may involve private operators.


The proportional amount of energy produced from renewable sources in a Member State participating in the joint project can count towards the overall national target of another Member State.318Analogously, one or more Member States may cooperate with one or more third countries in all types of joint projects regarding the production of electricity from renewable energy sources.

Member States may also join or partly coordinate their national support schemes.
In such cases, a certain amount of energy from renewable sources produced in the territory of one participating Member State may count towards the overall national target of another participating Member State if certain conditions are fulfilled.319 From the summary of the forecast documents provided by the MS it is clear that less than half of the MS are interested in flexible mechanisms.320 According to the Commission, 315 Sweden and Norway were the first States that introduced joint support scheme on January 1st 2012.
See: http://ec.europa.eu/competition/state_aid/modernisation/centeno-lopez_en.pdf.

(visited on 30.04.2013) 316 Article 6 of the RES Directive, supra note 5.

317 The transfer however, cannot affect the achievement of the national target of the Member State that is transferring the energy.

Based on Summary of the Member State Forecast Documents, seven Member States expressed an interest in using the statistical transfer instrument to meet their RES targets.
See further: http://ec.europa.eu/energy/renewables/transparency_platform/doc/dir_2009_0028_article_4_3_forecast_by_ms_ symmary.pdf (visited on 30.04.2013) 318 Articles 7-8 of the RES Directive, supra note 5.

319 Ibid., Article 11.

Support schemes have been defined in the RES directive under art.
2.9 as any instrument, scheme or mechanism applied by a Member State or a group of Member States, that promotes the use of energy from renewable sources by reducing the cost of that energy, increasing the price at which it can be sold, or increasing, by means of a renewable energy obligation or otherwise, the volume of such energy purchased.
This includes, but is not restricted to, investment aid, tax exemptions or reductions, tax refunds, renewable energy obligation support schemes including those using green certificates, and direct price support schemes including feed-in tariffs and premium payments.

320 See further: ―Whilst eleven Member States, if they consider using cooperation mechanisms, focus on joint projects, seven also express an interest in using the statistical transfers‘ instrument.
Four Member States (France, Greece, Italy, and Spain) note specifically that they may use cooperation mechanisms to develop renewable energy in third countries (either in the context of the Mediterranean Solar Plan or in the western Balkan countries).

Italy is a particularly interesting case as it is the only country anticipating a relatively large deficit in reaching its 2020 target and intending to meet the deficit through joint projects with third countries.
It 81 flexibility mechanisms will not however play a key role in meeting the RES target since only five MS are not expected to meet their targets exclusively with domestic sources, and only 1% of energy is expected to be traded between MS or third countries.321 These measures contribute though to the achievement of the environmental objective of promoting measures at international level to deal with climate change.
Provisions concerning flexible mechanisms are constructed similarly to those of the Kyoto Protocol, Implementation.322 These establishing Clean Development Mechanisms and Joint mechanisms under Kyoto have three goals: - - - to stimulate sustainable development through technology transfer and investment; to help countries with Kyoto commitments to meet their targets by reducing emissions or removing carbon from the atmosphere in other countries in a cost-effective way; to encourage the private sector and developing countries to contribute to emission reduction efforts.
323 The same goals can be applied in the case of flexible mechanisms under the EU's RES Directive.
Moreover, they correspond to the environmental criteria set out in Article 191(3) and take into account the different needs as well as the environmental, economic and development conditions of individual MS. 8.3.4 Simplification of administrative procedures, guarantee of origin and access to grid The RES Directive contains specific measures to remove barriers to renewable energy development such as excessive administrative controls.
National rules concerning authorization, certification and licensing procedures must be in compliance with the principles of objectivity, transparency, proportionality and non-discrimination.
This means, inter alia, that comprehensive information will be given and made available at the appropriate administrative level, coordination and clear definition of respective responsibilities of national, regional and local administrative bodies will be provided, transparent timetables for determining planning and building applications will be set, and simplified authorization procedures for smaller projects and for decentralized renewable devices will be given.
mentions developing plants and connections with Switzerland, Albania, Montenegro and Tunisia.‖ Summary of the Member State Forecast Documents, supra note 317, p. 3.
321See further: Renewable energy: forecasts show EU on track to meet 20% target, press release IP/10/265, Brussels, 11 March 2010, http://europa.eu/rapid/press-release_IP-10-265_en.htm (visited on 30.04.2013) 322 See: Articles 6 and 12 of Kyoto Protocol to the United Nations Framework Convention on Climate Change Kyoto, 11 December 1997, United Nations, Treaty Series , vol.

2303, p. 148.
2303, p. 148.

323 See: United Framework Convention on Climate Change, Kyoto Protocol webpage, http://unfccc.int/kyoto_ protocol/ mechanisms /items/1673.php.
(visited on 30.04.2013) 82 However, as noted by Jankowski, it is one of the main failures of the Directive that it does not promote a ―one-stop-shop‖ by requiring the establishment of a single administrative body that would coordinate all necessary authorizations at the various levels of governance.324 Guarantee of origin is another instrument aimed at the promotion of renewable energy.
It is ―an electronic document which has the sole function of providing proof to a final customer that a given share or quantity of energy was produced from renewable sources.‖325 Finally, the directive seeks to address the problem of integrating renewable energy into the EU electricity market by requiring MS to ensure that transmission (TSO) and distribution (DSO) system operators provide either priority access or guaranteed access to the grid system of electricity produced from RES.326 This rule is aimed at ensuring that all renewable electricity gets onto the market.
To secure the further development of electricity production from RES, Member States may take appropriate measures regarding the development of transmission and distribution in grid infrastructures, intelligent networks, storage facilities and the electricity system.

There are certain obligations imposed on TSO and DSO to provide transparency and non-discrimination when accessing the grids.
Where appropriate, MS may also require system operators to bear, in full or in part, the costs of technical adaptation.327 According to Jankowski, the fact that the EU did not adopt a clear deadline for MS to meet their obligations to review and improve their administrative procedures and legislation for the promotion of RES can be seen as another failure or omission.
According to this author, administration barriers constitute the main problem when developing RES and they should be removed in the first instance.328 Administrative simplification and guaranteed access to grid are the tools aimed at encouraging a faster development of energy projects.

In many MS (e.g.

Poland) at the time of the adoption of the RES directive, the sector of renewable energy was in its initial phase.
Therefore, stable, predictable and preferential solutions had to be provided to boost its development in order to meet the 2020 challenge.

324 See: J.M.

Jankowski, supra note 285, p. 288.

325 Article 2(j) of the RES Directive, supra note 5.

326 Article16 of the RES Directive, supra note 5.

Priority access means that generators of electricity from renewable energy sources will be able to sell and transmit their electricity at all times, whenever the source becomes available.
Moreover, TSOs, when dispatching electricity generating installations, give priority to generating installations using renewable energy sources in so far as the secure operation of the national electricity system permits and based on transparent and non-discriminatory criteria.

327 Article 16(3) of the RES Directive, supra note 5.

328 See further: J.M.

Jankowski, supra note 285, pp.

290-291.


83 While the overall objective of these provisions is the development of RES technologies and not environmental sustainability, it must be noted that removing administrative barriers cannot be at the expense of the environment.
In this context, two instruments contributing to the incorporation of environmental issues into the process of planning RES projects are substantial: the environmental impact assessment329, and public access to environmental information and public participation in decision-making.330 Both instruments are essential when it comes to environmental protection in the EU.

They are included in the separate EU Directives and are the subject of many studies and analyses.
For the purpose of this study they are only mentioned in reference to the RES Directive and the development of renewable energy sources.
The Environmental Impact Assessment (EIA) is regulated under the EIA Directive, and it is an instrument widely used to ensure that the environmental implications of decisions are taken into account before the decisions are made.331 Many renewable energy projects are subject to this directive and need to be examined in terms of their negative and positive impacts on the environment.
The EIA directive includes a list of projects which, subject to a screening for significant impacts, may be assessed with regard to their environmental impacts.
The list contains, inter alia, - - industrial installations for the production of electricity, steam and hot water; installations for the harnessing of wind power for energy production (wind farms).332 This means that the legislator, in relation to RES, expressed the need for the screening of a main source of renewable energy – wind farms, but did not exclude other sources like, e.g., biogas facilities, biomass-based power plants and hydro power plants.333 329 See further: The Commission webpage on Environmental Impact Assessment http://ec.europa.
eu/environment /eia/home.htm (visited on 30.04.2013) 330Recital 90 of the RES Directive, supra note 5.
The implementation of this Directive should reflect, where relevant, the provisions of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, in particular as implemented through Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information 331 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26/1 (28.1.2012) See further: http://ec.europa.eu/environment/eia/home.htm.
332 Annex II to the EIA Directive, supra note 162.
333 S. Vammen Larsen Climate Change in Environmental Impact Assessment of Renewable Energy Projects, Conference Paper, IAIA12 Energy Future – The Role of Impact Assessment, 27 May – 1 June 2012 Porto, http://www.iaia.org/conferences/iaia12/uploadpapers/Final%20papers%20review%20process/ Portugal, p.2, 84 Recently published by the European Commission, Guidance on Integrating Climate Change and Biodiversity into Environmental Impact Assessment334 provides some further explanation on the importance of integrating these two major environmental issues into industrial plans, projects and installations.
While in relation to climate change renewable energy projects have an ―inherently positive effect‖335, the Guidance lists key biodiversity concerns that are relevant when planning renewable energy projects.336 Another instrument adopted under the RES Directive that is in line with European environmental law is the availability of information on the development of RES.
The EU is a party of the Aarhus Convention that established the rights of individuals relating to the environment.337 The Convention provides for: - access of individuals to environmental information which is available to the authorities; - the right to participate in environmental decision-making, e.g., to participate in proposals for projects, plans and programs affecting and relating to the environment; - access to justice in environmental matters, which is the right to challenge public decisions that have been made without respecting the right of access to information or participation, or environmental law in general.338 To satisfy the conditions set by the Aarhus Convention, the RES Directive provides rules on access to information, which are included, e.g., in Article 14: Member States, with the participation of local and regional authorities, shall develop suitable information, awareness-raising, guidance or training programmes in order to inform citizens of the benefits and practicalities of developing and using energy from renewable sources.339 Vammen,%20Sanne.%20%20Climate%20Change%20in%20EIA%20of%20Renewable%20Energy%20Projects.
pdf (visited on 30.04.2013).

334 European Commission, Guidance on Integrating Climate Change and Biodiversity into Environmental Impact Assessment, European Union, 2013, http://ec.europa.eu/environment/eia/pdf/EIA%20Guidance.pdf.

335 S. Vammen Larsen, supra note 333, p.1.

336 European Commission, supra note 334, pp.31-32, e.g.

direct impacts, for example birds colliding with power lines or wind turbines.
337 http://ec.europa.eu/environment/aarhus/legislation.htm (visited on 30.04.2013) 338 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, United Nations, Treaty Series, vol.

2161, p. 447.

339 Article 14(6) of the RES Directive, supra note 5.

85 One more example is provided under Article 21, which requires information on biofuel components to be made available at sales points.
This matter will be described in the next section.

8.3.5 Use of biofuels Sustainability criteria are the only provisions under the RES Directive where the legislator decided to use Article 95 (now 114 TFEU) as a legal basis, since harmonizing the criteria can have an effect on the functioning of the internal market.

Justification for such a solution has been provided in the Preamble.
Therefore, these provisions should take into account environmental protection requirements according to the principle of integration.

According to Kulovesi, Morgera and Munoz, there are many controversies surrounding using biofuels as a renewable source with minimum negative environmental impact.
These concerns include inter alia food security, adverse environmental impacts and deforestation, additional pressure on decreasing land and water resources, potential negative effects on indigenous and local communities and small-holder farmers, as well as the introduction and spread of genetically modified organisms or of invasive alien species.340 To address these concerns, the EU introduced sustainability criteria for bioufuels, which were considered to be ―one of the most innovative features of the package‖.341 This comprehensive set of rules specifies land-related limits when producing biofuels and imposes monitoring/reporting obligations on both the Member States and the European Commission.
It is designed to minimize the negative impact of biofuels on the environment, biodiversity and local communities.

The Directive contains sustainability criteria related to greenhouse gas savings, land with high biodiversity value, land with high carbon stock and agro-environmental practices.342 Under the RES Directive, biofuels and bioliquids made from raw material obtained from land with a high biodiversity value or high carbon stock are considered to be unsustainable.
In this way primary forests, designated protection areas and highly biodiverse grasslands are being protected, as the biofuels obtained using raw materials from these areas do not count against the national RES targets.

340 See K. Kulovesi, E. Morgera, M. Munoz, supra note 256, p.31.

In addition, the debate still continues on whether the use of biofuels reduces greenhouse gases and to what extent if the whole lifecycle analysis is considered.

341 Ibid.
341 Ibid.

342 Article 2 of the Communication from the Commission on the practical implementation of the EU biofuels and bioliquids sustainability scheme and on counting rules for biofuels, OJ C 160/8 (19.6.2010).

86 The same rule applies to land with high carbon stock.

The reasoning behind this is explained in the Preamble.
In the process of cultivating the raw materials for biofuels or bioliquids some of the stored carbon will generally be released into the atmosphere, leading to the formation of carbon dioxide.

As a result, the proportion of CO2 saved to CO2 released can be negative.

These criteria apply both to the biofuels from raw materials originating within the EU and outside it.

The ones originating within the EU will have to fulfill additional agricultural and environmental requirements and standards.
These include inter alia the protection of ground and surface water quality as well as social requirements.343 The monitoring of compliance with the sustainability of biofuels is quite extensive and is based on MS reports submitted to the Commission and the reports that the Commission regularly submits to the Council and the European Parliament.344 Additionally, in 2012 the EC adopted the Communication on the practical implementation of the EU biofuels and bioliquids sustainability scheme, in order to guide Member States and economic operators in how to implement the sustainability criteria and the RES Directive's counting rules for biofuels in practice.345 In the transport sector, the RES directive also provides that public information on the use of biofuels is available when the percentage of biofuel blended in oil exceeds 10% by volume.
In this case, Member States shall require this to be indicated at the sale point.346 This provision remains consistent with the principle of transparency and public participation.
Moreover, in the Communication, the EC encouraged MS to make biofuel sustainability information public.347 As rightly noted by Kulovesi, Morgera and Munoz, apart from broader land issues the final version of the RES directive did not include other environmental or social matters in the sustainability criteria.348 However, the Directive leaves an open door authorizing the Commission to propose corrective action if evidence shows other significant impacts of biofuels – especially on food prices as well as on air, soil and water protection.349 Such provisions remain in line with the precautionary principle, and are justified by the possible availability of new scientific data in the field of biofuels‘ impact on the natural environment and society.
343 K. Kulovesi, E. Morgera, M. Munoz, supra note , 256, p. 33.

344 See: Articles 17-19 of the RES Directive, supra note 5.

The first reports had to be submitted in 2012.

345 See: Article 1 of the Communication, supra note 342.

346 Article 21(1) of the RES Directive, supra note 5.

347 See: Article 6 of the Communication, supra note 342.

348 K. Kulovesi, E. Morgera, M. Munoz, supra note 256, p.34.

349 Articles 17(7) and 18(9) of the RES Directive, supra note 5.
87 In summary, the RES Directive introduced an innovative set of rules aimed at minimizing the unsustainable use of biofuels, where sustainability is understood not only in an environmental context (e.g.

biofuels made from raw material obtained from land with a high biodiversity value), but also in the context of taking social considerations into account through the obligation of the Commission to monitor the impact of biofuel production on, inter alia, food prices.
By including the provisions on public information the RES directive also complies with the environmental obligations described in the previous section.
Finally, however, the potential of biofuels can be seen as overestimated, at least in the short term, as the sustainability of first generation biofuels has been widely contested and, most probably, the production of second generation biofuels will not be advanced enough to produce important results by 2020.350 8.4 Conclusions This chapter introduced a legal framework for renewable energy sources in the EU, established under Directive 2009/28/EC.
The RES Directive introduced ambitious targets motivated by the need to ensure energy security and meeting international commitments to mitigate climate change.

To live up to the objectives set under the Directive (environmental sustainability, energy security and technology innovation) some mechanisms have been established and legally binding obligations have been imposed on Member States and the European Commission.
The volume of investments required by the implementation of the RES Directive is impressive.

Therefore, solving administrative problems should be a priority.

A stable and predictable environment will boost investors‘ confidence and support long term investments.

An analysis of the relationship between the RES Directive‘s provisions and environmental protection requirements leads to positive conclusions.
In fact, environmental integration, as established under Article 11 TFEU, is in the case of the Directive, at least on paper, significant.

A binding 20% target provides investment stability, while the decision on how to meet the target has, according to the principle of proportionality, been left to the Member States.
Other tools adopted, such as flexible mechanisms or administrative measures and simplifications, remain in line with environmental objectives and correspond to environmental obligations set under European (e.g.

EIA Directive) and international law (e.g.

Aarhus Convention, Kyoto Protocol).


Finally, the EU decided to tackle the environmentally 350 IPA Energy + Water Economics, Study on the Implementation of the New EU Renewables Directive in the Energy Community, Final Report to Energy Community Secretariat, June 2010, p.21.

http://www.energy- community.org/pls/portal/docs/644177.PDF (visited on 30.04.2013).
88 questionable aspect of biofuel production, and introduced innovative provisions on sustainability criteria for biofuels and bioliquids that aim to eliminate the negative environmental and social impacts of this renewable source.
In relation to considerations on the legal basis and competence made in Chapter 2, it should be noted that although the RES Directive was adopted on the basis of Articles 175 and 95 EC (now 192 and 114), after the entry into force of the Treaty of Lisbon, such a solution should not be expected again in law-making relating to RES.
However, this does not change the strong position of environmental protection in the renewables legislation; firstly, because it has been set as the objective of renewable energy policy, and secondly, because the principle of integration established under Article 11 TFEU is applicable here.

In the end it should be remembered that the RES Directive is relatively young (it had to be transposed by December 5th 2010) and it will take time to fully assess its impacts on the environment and energy sectors.
At this stage it is important to prevent delays in the implementation of the Directive.

The development of renewable energy sources is considered, next to energy efficiency, to be the most ―environmentally-friendly‖ energy sector, therefore the slow and difficult development and implementation of this policy area will significantly hinder environmental integration.
89 9 Conclusions At the beginning of this study, the following three research questions were posed: - What is the role and scope of the principle of environmental integration in the law of the European Union?

- What is the competence of the EU in energy matters, how did it develop, and why does it matter how the competence is divided between the EU and Member States?

- How does renewable energy policy and law correspond with environmental sustainability requirements?
By analysis of the sources of European law in the fields of environment and energy, supported by the opinions of experts in these matters and the author‘s own opinions, this study sought to answer these questions in order to outline the relationship between environmental protection and energy in the European Union.

Below are some overall conclusions.

9.1 The first research question Chapters 4, 5 and 6 tackled the role and scope of the principle of environmental integration under EU law.
According to article 11 TFEU, environmental integration has the status of a principle of general application, but even so, it is not free of interpretational doubts and general terms, and therefore its status and scope are not entirely clear.

The same can be said for another important particular term used in Article 11 TFEU – sustainable development, which, despite its wide application, remains difficult to pin down.
The role of the principle of integration, however, seems to be quite clear: environmental issues need to be considered when adopting policies in other areas.

Several issues, however, needed to be clarified.

These included: the character of an obligation, the addressee of the principle, the stage at which the principle should apply, the interpretation of the term ―environmental protection requirements‖ and, finally, what stands behind the term sustainable development.
Even though there are many studies of prominent scholars covering these issues as well as findings of the Court of Justice, not all of these matters can be unambiguously resolved.

It has been established that in general the principle of integration constitutes an obligation laid upon the European institutions to adopt laws in different policy areas, which are always in line with environmental protection requirements.
Consideration should take place as early as possible in the planning phase and continue during implementation.

This does not mean 90 that environmental protection has some kind of principled priority in every policy that is adopted and implemented, but the overall trend should certainly be in the direction of sustainable development.
While the wording of the principle suggests this strong obligation, the Court of Justice confirmed that an annulment of the measure, based on Article 11 TFEU, would be possible only in very exceptional cases.

It has been explained that environmental protection requirements refer to objectives, principles and criteria for environmental policy in the EU as stipulated in Article 191 TFEU.
Linking the term environmental protection requirements from Article 11 TFEU with Article 191 TFEU implies that rules adopted under other policy areas (including energy) must be in line with principles such as precaution and prevention, rectifying environmental damage at source, or polluters pay.
However, these principles constitute rather general guidelines for EU environmental policy and while their importance has also been emphasized by the Court of Justice, it remains questionable whether they could constitute a stand-alone basis to void the legal act.

The biggest doubts, however, are probably associated with the concept of sustainable development.
Although it has found its place in both primary and secondary European law it has not been defined under European law, but can be interpreted as an attempt to reconcile the needs and aspirations of social and economic development while maintaining a high-quality environment for the sake of future generations‘ needs.

Therefore, the principle of integration could be regarded as an operative principle established with a view to achieving sustainable development.
Both concepts are inseparably linked and are supposed to contribute to the improvement of the quality of the environment in the EU.

In summary, in order to try to answer the first research question it must be stated that while the role of the principle of integration is fairly clear, its scope and legal significance is not so obvious and must be subject to further assessment and, preferably, the Court of Justice‘s review.
Without a doubt, however, it serves as a general guideline when considering the adoption of other policies and measures, and helps to raise the EU institutions‘ awareness about environmental issues when deciding on actions that need to be undertaken to meet their objectives in different areas.

9.2 The second research question Chapters 2 and 4 introduced several issues relating to the EU´s competence and the choice of legal basis in the fields of environmental protection and energy.
This relates to the second research question, which can actually be broken down to three parts: (1) what is the 91 competence of the EU in energy matters; (2) how is this competence developed and (3) why does it matter how the competence is divided between the EU and Member States?

By the adoption of the Lisbon Treaty and introduction of Article 194 TFEU the EU established the objectives of the energy policy and rules of law-making in the field.
Energy became one of the issues subject to the principle of shared competences between the EU and the Member States.

As has been presented, this means that both the EU and MS are competent to adopt binding acts in the field of energy.

However, the MS can only exercise their competence in so far as the EU has not exercised its powers or has decided not to exercise its own competence.
It can be stated that with this change in EU´s primary law the basic control of energy policy has partly been relocated from MS to the EU level.

However, article 194 TFEU provides reservations which help to define the boundaries between the MS and the EU‘s competence.

It makes it clear that MS retain sovereignty over national energy resources and have the right to determine their energy mix and the structure of their energy supply.
The fact that the area of energy was not included in the Treaties before Lisbon does not mean, however, that energy policy did not exist before 2009.

Until the adoption of the Lisbon Treaty the EU had shaped its energy policies by using its competence in other fields, mainly: competition, environment and competences with regard to the internal market.

A good example of such a solution is the legal basis of the broadly discussed under this study 2009 RES Directive.
The directive is based on environmental Article 175(1) EC (now Article 192(1) TFEU), and internal market Article 95 EC (now Article 114(1) TFEU).

After inclusion into TFEU, Article 194 became, however, lex specialis and should be considered as the only and the obvious legal basis to adopt energy-related measures.

As has been presented this rule is not absolute, as the Court of Justice provides, in exceptional circumstances, for the adoption of a measure based on two legal bases.
Why does the issue of competence matter?

The answer has probably been hinted at above.

According to the principle of conferred powers, the EU can act only within the limits imposed by the Treaty and according to other general principles of EU law like subsidiarity and proportionality.

In this sense, the insertion of the chapter on energy policy into the TFEU gives the EU authority in order to achieve energy objectives.
The objective of promoting renewable energy and energy efficiency became an aim of EU policy on its own, instead of being just a means of achieving other objectives.

Perhaps one more question can be raised based on these conclusions, namely: what is the significance of these considerations in the case of renewable energy sources?

Basically they are relocating the previously used legal basis from environmental Article 192 TFEU to the 92 new Article 194 TFEU.
This, on the other hand, raises the question of how the goals and principles of environmental protection in the law and policies on renewable energy can be guaranteed and protected.

From a formal point of view, there are two solutions: firstly, the measure can still be adopted under two legal bases, if it is designed to achieve several objectives; secondly, EU law under Article 11 TFEU provides the principle of integrating environmental concerns into other policy areas.
This principle, as explained in this study, is one of general application, and thus is valid when adopting measures concerning renewable energy sources.

9.3 The third research question The answer to the question of how renewable energy policy and law corresponds with environmental sustainability requirements has been provided in chapters seven and eight.

Chapter seven concentrated on general energy policies and specific policies relating to renewable energy sources.
The analysis of policies in the field of energy led to the conclusion that they are in compliance with the principle of integration, especially when it comes to the objective of combating climate change.

The goals of policies in the fields of energy and environment intertwine, and renewable energy sources are a common feature of both areas.

Moreover, energy policies accepted sustainable development as a general principle.
It has been presented that, from the analysis of the current EU energy policy in relation to the promotion of renewable energy sources, it seems that in the long run the EU foresees a significant jump towards the development of RES and sets renewables as the main supplier of electricity in the EU.
A renewable energy policy for Europe was established almost two decades ago, but it was the recent years that brought about the policy development that led to the adoption of innovative and comprehensive legislation on RES.

The most significant document in this regard is the Climate and Energy Package which set three objectives, all of which included 20% targets.

In relation to RES the binding target requires a 20% share of energy from renewable sources in gross final consumption of energy in 2020.
From the performed analysis of related documents, it seems as if the EU has policies in place to integrate climate change considerations into a renewable energy policy.

These policies may however be criticized for focusing almost exclusively on issues surrounding climate change and for ignoring other ―environmental protection requirements‖ as defined in Article 191 TFEU.
Climate change considerations can indeed be regarded as a good starting point for integration, but the policy integration should be deepened and expanded to other pressing environmental issues in order to achieve the overall goal of sustainable development.

93 The RES directive, discussed in chapter eight, introduced ambitious targets to meet the objectives of environmental sustainability, energy security and technology innovation.
Under the Directive some mechanisms have been established and legally binding obligations have been imposed on the MS as well as the European Commission.

The volume of investments required by the implementation of the Directive is quite impressive; therefore administrative issues should be faced as priority, in order to provide a stable and predictable environment capable of boosting investors‘ confidence to support long-term investments in renewables.
An analysis of the relationship between the RES Directive‘s provisions and environmental protection requirements performed under this study leads to positive conclusions.

In fact environmental integration as established under Article 11 TFEU is in the case of the RES Directive, at least on paper, significant.

A binding 20% share of the RES target provides investment stability, while respecting the principle of proportionality and leaving the decision on how to meet the target to the Member States.
Other tools adopted, such as flexible mechanisms or administrative measures and simplifications, remain in line with environmental objectives and correspond to environmental obligations set under European (e.g.

the EIA Directive) and international law (e.g.

the Aarhus Convention and the Doha Amendment to the Kyoto Protocol).
Finally, the EU decided to tackle the environmentally questionable aspect of biofuel production, and introduced innovative provisions on sustainability criteria for biofuels and bioliquids that aim to eliminate the negative environmental and social impacts of this renewable source.

It can therefore be concluded that the renewable energy policy and law provides a high level of environmental integration.
9.4 Final conclusion In conclusion, it can be stated that this study has shown a rather positive picture of the integration of environmental protection requirements into the European energy policy.

It must be remembered, however, that the study is based on an analysis of the renewable energy sector, which is inherently regarded as environmentally-friendly.
It can be said that the EU has equipped itself with policies not only allowing, but preferring the development of renewable energy sources rather than other alternatives.

Nevertheless, the next few years, and particularly the implementation efforts of the RES Directive and its effects in 2020, will show how effective the established policy can actually be.

A slow and difficult development and implementation of this policy area would significantly hinder environmental integration.
If the European Union does not fail on the way and indeed steers energy policy in the direction of 94 renewable energy and energy savings, there is a chance that it will manage to achieve all of the long–term objectives referred to as the energy triad.

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