Opinion on:

- the proposal for a Council Regulation repealing Regulation No 388/75/EEC on notifying the Commission of exports of crude oil and natural gas to third countries,

- the proposal for a Council Regulation repealing Regulation No 1055/72 (EEC) on notifying the Commission of imports of crude oil and natural gas,

- the proposal for a Council Regulation repealing Regulation No 1038/79/EEC on Community support for a hydrocarbon exploration project in Greenland,

- the proposal for a Council Decision repealing recommendation 79/167/ECSC, EEC, Euratom on the reduction of energy requirements for buildings in the Community

(96/C 18/19)

On 20 October 1995, the Council of the European Union, acting in pursuance of Article 198 of the Treaty establishing the European Community, decided to consult the Economic and Social Committee on the above-mentioned proposals.

The Committee instructed Mr von der Decken, acting as Rapporteur-General, to prepare its work on the matter.

At its 329th Plenary Session (meeting of 26 October 1995), the Economic and Social Committee adopted (by a majority vote with one abstention) the following Opinion.

1. Introduction

1.1. The proposals under consideration are part of the review of EU legislation in the energy sector and constitute a first step on the road towards a reduction, simplification and, where necessary, an updating of legislation in this field. The proposals are accompanied by a Commission Report reviewing Community energy legislation.

1.2. It should however be noted that this review is not complete. The Commission's appraisal will initially be confined to rational use of energy and oil. Furthermore the appraisal will take in only part of the relevant legislation, namely 17 basic legal instruments, the majority of which were adopted in 1972 and 1976, 15 by the Council and two by the Commission.

1.3. The Commission's conclusions have led it to recommend that ten of the instruments be repealed and that the others remain in force, three of them on a temporary basis.

1.3.1. Council action will be required in the case of eight of the ten instruments to be repealed. As the Economic and Social Committee was consulted under the legislative procedure for four of the instruments, consultation of the Committee is likewise required if they are to be repealed. Consultation is not required in the case of the four other proposals submitted to the Council. The eight proposals concerned are set out in a Communication accompanying the Commission's Report.

1.3.2. The Commission justifies the proposed repeal of these instruments - seven of which concern the rational use of energy, while three relate to the field of oil - mainly on the grounds (a) that they no longer have any practical value, or (b) that they have been superseded by the development of the legislative process.

1.4. Council endorsement of the Commission's conclusions would also involve the repeal of four implementing Regulations, one of which was issued by the Council and three by the Commission.

1.5. In this same report, the Commission proposes that implementing Decision No 77/190/EEC and the subsequent amendments to this Decision be simplified, along with Directive 76/491/EEC of 4 May 1976 with regard to a Community information and consultation procedure in respect of the price of oil and oil-based products in the Community.

1.6. Two Council Resolutions on the rational use of energy are also regarded as being superfluous as, in the meantime, their provisions have been incorporated in a binding legal instrument. As it is not possible to repeal measures which are not themselves legislative instruments, the Commission proposes that in future no further reference be made to these Resolutions in legislation and that they no longer be published.

1.7. The Report under review, and the accompanying proposals to repeal legislation, constitute the Commission's initial response to the request made by the Energy Council on 29 November 1994 that the Commission submit (a) a report assessing Community instruments in the Energy Sector and (b), where necessary, proposals designed to simplify and reduce Community legislation. At the same time the Council Presidency drew up an initial list of legislative instruments to be reviewed and it is precisely these very acts which are covered by the Report.

1.7.1. In taking this action, the Commission has also fulfilled the commitment which it made, notably at the European Council in Brussels in December 1993, not only to review the whole body of Community legislation from the point of view, in particular, of conformity with the subsidiarity principle, but also, where appropriate, to propose that legislation be made less onerous and simplified in order a) to remove the unnecessary or excessive regulatory constraints on the European economy, b) ensure that the legislation concerned serves a practical purpose and, thereby, c) enhance the effectiveness of the legislation and render it more comprehensible.

1.7.2. This commitment followed on from the calls made at the European Councils in Lisbon in June 1992 and in Edinburgh in December 1992 for action to prune and simplify Community legislation.

1.8. In tandem with the proposals under consideration and as part of the same review, the Commission proposes that Council Regulation 1056/72/EEC, as amended by Regulation 1215/76/EEC be revamped and simplified with a view to rendering the Regulation more readily comprehensible and to deriving the maximum possible benefit from the data compiled. The Regulation concerns notification to the Commission of investment projects of interest to the Community in the petroleum, natural gas and electricity sectors.

1.8.1. This latter proposal, on which the Committee has also been consulted, together with an explanation of the reasons for its submission, is set out in a separate Commission document (COM(95) 118 final).

1.9. Finally it should also be noted that the Commission intends to continue this review of energy legislation and to extend it to other sectors not covered by the present Report.

2. General comments

2.1. The Commission's review of Community legislation in the energy field is an exercise which is both useful and timely. In the interests of greater transparency, it would have been preferable for the Commission to have indicated who drew up the list of instruments to be reviewed, how the list was drawn up and why the measures concerned were selected.

2.2. The Committee would also like to see a brief description given of the energy-policy background to this review and subsequent reviews.

2.3. The Committee warns against the danger of EU energy policy being called into question should this review, under the guise of a drive to prune and simplify legislation, lead to a wholesale repeal in some areas of Community legislation in the energy field. The Committee emphasizes the fact that such a review will be fully meaningful only if it seeks to make Community action in this field more relevant, consistent and effective, for the purposes, in particular, of attaining the energy policy objectives last laid down by the European Union in 1986 ().

2.4. The Committee has taken due note of the reasons for the proposed repeal of the legislation in question, as set out in the Commission's communication; it endorses the proposals, in particular, those on which it has been formally asked to deliver an Opinion. The Committee has no specific comments to make with regard to the individual proposals.

2.5. From the general point of view, the Committee would point out first of all that the repeal of the instruments in question smacks more of an exercise in 'tidying up' legislation than of a measure which will help to genuinely simplify existing Community legislation. The fact that most of the instruments in question are already obsolete serves to confirm this interpretation, if such confirmation were necessary.

2.6. By way of example, attention is drawn to the fact that in the field of rational use of energy, the areas covered by the five recommendations to be repealed came within the scope of Directive 93/76/EEC of 13 September 1993, which seeks to limit carbon dioxide emissions by improving energy efficiency (SAVE) ().

2.6.1. In the light of this case, the Committee would urge that, wherever appropriate, all instruments should include provisions repealing existing legislation which is thereby rendered obsolete.

2.6.2. The Committee further deplores the inadequacy of the Commission's reasons for proposing that Recommendation 77/713/EEC () and Directive 78/170/EEC () remain in force, as this makes it difficult to weigh up the case for retaining these measures. The Commission's report does not contain any evidence whatsoever to substantiate the view that the instruments in question remain relevant to the goal of securing a rational use of energy and the pursuit of the specific objectives which they are designed to achieve. The fact that they have been only partially superseded by the development of the legislative process is not in itself an adequate reason for retaining them.

2.6.3. This applies in particular to Directive 78/170/EEC; the Commission itself has drawn attention to the original shortcomings in the Directive and its subsequent patchy implementation by the Member States.

2.6.4. The Committee has no doubt that the Commission has of course assessed the extent to which it would be both useful and advisable to keep the instruments concerned in force in the light of both the EU's energy objectives and the specific objectives of the instruments themselves. There is therefore no reason for failing to make reference, if only briefly, to both the substantive and administrative reasons behind the Commission's decision. Such a step would also have fully met the need for transparency which should, in the Committee's view, be the prime consideration in any review of current Community legislation.

2.6.5. The Committee therefore calls upon the Commission to continue its review of legislation in the field of rational energy use and to issue a report on the extent to which Member States are in practice implementing the instruments listed below - including the implementing provisions - and to review the relevance and the advisability of (a) maintaining these measures, (b) replacing them by more binding EU provisions, (c) revising them, or, (d) repealing them:

- Council Regulation No 76/494/EEC of 4 May 1976 on the rational use, through better driving habits, of energy consumed by road vehicles ();

- Council Recommendation No 76/495/EEC of 4 May 1976 on the rational use of energy in urban passenger transport ();

- Council Recommendation No 77/714/EEC of 25 October 1977 on the creation in the Member States of Advisory Bodies or Committees to promote combined heat and power production and the exploitation of residual heat ();

- Council Recommendation No 82/604/EEC of 28 July 1982 concerning the encouragement of investment in the rational use of energy ().

2.7. In the field of oil legislation, the Committee notes that the Commission is recommending that several instruments be kept on the statute book on a temporary basis, even though they have largely ceased to serve any practical purpose. All of the measures concerned are designed to enable the European Union to cope with supply problems in respect of oil and derivative products, until such time as the Council adopts new emergency legislation in this field.

2.7.1. The Committee would point out that the Commission's current arsenal of laws for coping with energy crises is not confined to the three Decisions reviewed in the Commission Report. A number of other instruments also figure in the list, including the following:

- Council Directive No 68/414/EEC of 20 December 1968 requiring the EEC Member States to maintain minimum stocks of crude oil and/or petroleum products ();

- Council Directive No 68/416/EEC of 20 december 1968 on the conclusion and implementation of specific intergovernmental agreements on the obligation for Member States to maintain minimum stocks of crude oil and/or petroleum products ();

- Council Directive No 73/238/EEC of 24 July 1973 on measures to mitigate the effects of difficulties in the supply of crude oil and petroleum products ();

- Council Directive 75/405/EEC concerning the restriction of the use of petroleum products in power stations ().

2.7.2. The Committee calls for the swift adoption of a new set of laws in this field which would (a) meet the needs of the internal market, (b) take full account of the structural changes in the oil market over the last twenty years and (c) tie in closely with the measures provided for within the framework of the International Energy Agency. In the Committee's view the adoption of such legislation should make a significant contribution to pruning and simplifying Community legislation in this area.

2.7.3. It is thus a matter or regret that the Council has so far been unable to reach any agreement on such measures; the Commission's latest proposals in this field go back as far as April 1992. In this context, the Committee notes the statement made by the Commission in the Report that it had started to look at this field with a view to putting forward new proposals as soon as possible.

2.7.4. The Committee draws attention to the urgent need to act in order to equip the European Union with the essential, appropriate instruments to cope with any energy supply difficulty without delay and to manage such situations effectively.

2.7.5. The Committee nonetheless does ask itself whether there is a case for keeping laws on the statute book - albeit on a temporary basis - on the sole grounds that they have yet to be replaced by measures which are more appropriate and accord better with the rules set out in the Treaties and secondary legislation.

2.7.6. In this context, the first point which needs to be highlighted is that, as the Commission acknowledges, the reasons for introducing the three instruments in question are, for the most part, no longer applicable.

2.7.7. Furthermore, it would appear that doubts may legitimately be cast on the compatibility of at least one of the instruments in question with the Treaty provisions in respect of the internal market. Council Decision 77/186/EEC of 14 February 1977 on the exporting of crude oil and petroleum products from one Member State to another in the event of supply difficulties (), stipulates that such exports shall be subject to a system of licences. Such a provision cannot easily be reconciled with the current level of European integration and, in particular, the removal of border controls.

()2.7.8. This being the case, the Committee wonders whether consideration should not be given to the repeal of these three instruments too, since to keep them in force temporarily is unwarranted, in terms of benefit to the Community.

2.8. Finally, the Committee would point out that it fully endorses the Commission's intention to extend its review of Community legislation in the energy field to sectors not covered by the present Report.

2.8.1. With this aim in view, the Committee urges that future reports presented by the Commission explicitly state not only why it proposes to repeal some of the instruments which it has reviewed but also why it is recommending that other instruments remain on the Statue Book.

Done at Brussels, 26 October 1995.

The President

of the Economic and Social Committee

Carlos FERRER

() See OJ No C 241, 25. 9. 1986, p. 1.

() See OJ No L 237, 22. 9. 1993, p. 28.

() Council Recommendation of 25. 10. 1977 on the rational use of energy in industrial undertakings - OJ No L 296, 18. 11. 1977, p. 3.

() Council Directive of 13. 2. 1978 on the performance of heat generators for space heating and the production of hot water in new or existing non-industrial buildings and on the insulation of heat and domestic hot-water distribution in new non-industrial buildings - OJ No L 52, 23. 2. 1978, p. 32.

() OJ No L 140, 28. 5. 1976, p. 14.

() OJ No L 140, 28. 5. 1976, p. 16.

() OJ No L 295, 18. 11. 1977, p. 5.

() OJ No L 247, 23. 8. 1982, p. 9.

() OJ No L 308, 23. 12. 1968, p. 14.

() OJ No L 308, 23. 12. 1968, p. 19.

() OJ No L. 228, 16. 8. 1973, p. 1.

() OJ No L 178, 9. 7. 1975, p. 26.

() OJ No L 61, 5 .3. 1977, p. 23.