Opinion of the Economic and Social Committee on:

- the 'Second Commission Report on the review of Community energy legislation`, and - the 'Communication from the Commission to the European Parliament and the Council concerning the repeal of several Community legislative texts in the field of energy policy` () (97/C 66/11)

On 22 October 1996, the Council decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on the above-mentioned report and communication.

The Section for Energy, Nuclear Questions and Research, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 12 November 1996. The rapporteur was Mr von der Decken.

At its 340th Plenary Session held on 27 and 28 November 1996 (meeting of 27 November 1996), the Economic and Social Committee adopted the following opinion by 106 votes to three, with two abstentions.

1. Introduction

1.1. The Commission document constitutes the second phase of the review of Community energy legislation launched by the Commission in 1995 (COM(95) 391 final of 26 July 1995). The object of the exercise is to streamline, simplify and where necessary update legislation in this sector.

1.2. The first phase of the review was confined to the rational energy use and oil sectors and covered only part of the relevant legislation, viz. 17 basic legislative acts adopted for the most part between 1972 and 1976 (15 by the Council and two by the Commission).

1.3. As a result of this review the Commission proposed the repeal of ten of these acts, basically because they were no longer of any practical value or had been overtaken by legislative developments; the other acts were to be retained, three for the time being. Consultation of the Committee was required for the repeal of four of these acts and its approval given on 26 October 1995 ().

1.4. At the same time and as part of this exercise, the Commission proposed a revision and simplification of the regulation on notifying the Commission of investment projects of interest to the Community in the petroleum, natural gas and electricity sectors (). The Committee also gave its opinion on this proposal on 26 October 1995 () and the new regulation was adopted on 22 April 1996 ().

1.5. With the present report, the Commission (i) continues its review of legislation in the two sectors already covered by its first report and (ii) extends it to the natural gas and electricity sectors. Thus it examines 18 basic legislative acts adopted for the most part between 1968 and 1980; six concern the oil sector, one natural gas, three electricity and seven rational use of energy. In addition there is a general regulation on providing the Commission with information on the state of the Community's energy supplies.

1.6. The conclusions which the Commission draws from this review lead it to recommend the repeal of only five acts; the others should be retained, either for the time being (7), or subject to a subsequent report justifying them (6). The proposals for repeal of the relevant acts are contained in the communication accompanying the Commission's report. Formal consultation of the Committee is required for only three of these acts as it was not consulted when the other two were first adopted.

1.7. The Commission considers that this second report completes the review of Community energy legislation based on the EC Treaty, at least in its present form. It announces its intention of drawing up a third report reviewing secondary legislation based on the ECSC and Euratom Treaties.

1.7.1. As far as future action is concerned, the Commission has already announced that it intends to make regular analyses of Community energy legislation and to publish its findings in the reports on energy policy which it has pledged to produce every two years.

2. General comments

2.1. In accordance with its previous opinion, the Committee warmly welcomes the presentation of this second report which fulfils an undertaking made by the Commission in its first review of Community energy legislation. The Committee is pleased to note that this report deals not only with the sectors that were not tackled during the previous review, but also rounds off the analysis of Community legislation in the two sectors covered by the first report.

2.1.1. This action is in line with a request that the Committee made to the Commission in its earlier opinion, which gave examples of various other pieces of legislation that were also worth examining.

2.2. Equally, the Committee particularly welcomes the follow-up given to a number of its comments and recommendations. Reference is made to several of these in this opinion.

2.3. The Committee notes that the presentation in December 1995 of the White Paper on an energy policy for the European Union (COM(95) 682 final) helped to clarify the energy policy background against which this review of Community legislation is taking place. In its opinion on the first Commission report, the Committee had regretted the absence of such a background. It would again stress that a review exercise is only fully meaningful if it goes beyond a simple legal 'tidying-up operation` and helps to increase the relevance, coherence and effectiveness of Community action in the energy field, not least with regard to the aims and guidelines set out in the Council resolutions of 23 November 1995 () and 8 July 1996 ().

2.4. The Committee notes that the Commission has not come to any final conclusion as regards six of the 18 acts under consideration. It does, however, propose to maintain these acts, subject to subsequent reports justifying them. In these circumstances, the Committee is unable at this stage to assess the case for maintaining the legislation in question.

2.4.1. The Committee regrets that, contrary to its recommendations, the Commission has not taken advantage of the twelve months between the two reviews to draw up the above reports in order to submit their conclusions to the various institutions concerned at this second review stage.

2.4.2. The Committee would recall that its earlier opinion called on the Commission to report, inter alia, on Member States' implementation of Council Recommendations 76/495/EEC and 82/604/EEC.

2.4.3. The opinion also highlighted the inadequacy of the Commission's reasons for proposing that Recommendation 77/713/EEC of 25 October 1977 on the rational use of energy in industrial undertakings () remain in force. The inadequate nature of the reasons given made it difficult to weigh up the case for maintaining the legislation. The Commission now plans to draw up a report justifying its maintenance.

2.4.4. The Committee is pleased that the Commission has adopted its point of view. However it considers, contrary to the Commission, that the review of Community energy legislation will not be complete until these reports have been presented and their conclusions assessed.

2.4.4.1. The Committee has been informed that the Commission expects these reports to be completed by mid-1997, and it very much hopes that this timetable will be respected. It would, however, have welcomed a clear commitment on this matter from the Commission in the report under consideration.

2.4.5. The Committee notes, once more, the limited scope of the Commission's review exercise. The Commission's proposals for the repeal of legislation are, here again, more a legal 'tidying-up operation` - since the acts in question have become obsolete or are no longer justified - than a real contribution to reducing and simplifying Community legislation.

2.4.5.1. For this reason, the Committee stresses the importance that should also be given to the consolidation of existing legislation in the energy sector, which it calls for the Commission to carry out where appropriate.

2.5. Nevertheless, the Committee welcomes the repeal proposals contained in the Commission Communication, including those on which it is being formally consulted.

2.5.1. The Committee is especially pleased that the Commission now recognizes the need to repeal 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 (), whereas in the first review it had concluded that this Decision needed to be maintained for the time being.

2.5.1.1. The Commission has thus espoused the view taken by the Committee in its earlier opinion. The Opinion expressed justifiable doubts concerning the compatibility of this Decision with the Treaty provisions in respect of the internal market, and called for it to be repealed.

2.5.2. The Committee also notes that the Commission is now proposing that Directive 75/339/EEC obliging the Member States to maintain minimum stocks of fossil fuel at thermal power stations () be repealed, whereas the first report had argued that it would be better to maintain this act on a temporary basis until new crisis measures had been adopted.

2.5.2.1. The Committee warmly welcomes this change in direction, having itself called for the repeal of this Directive as there was no evidence to suggest that it was worth maintaining.

2.5.2.2. More generally, the Committee considers that the review confirms its previously voiced view that the fact that a piece of legislation has only partly been overtaken by legislative developments, or has not been replaced by more appropriate provisions, is not in itself sufficient reason to maintain it in force, even temporarily.

2.5.2.3. Given the objectives of a review of this type, the Committee would emphasize that the - even temporary - maintenance of an act can only be justified, first and foremost, in terms of its Community added value.

3. Specific comments

3.1. Legislation on oil and crisis measures

3.1.1. The Committee deplores the fact that no political progress has been made in this area during the last twelve months. It now notes the renewed commitment on the part of the Commission to present a communication in 1997 on the measures to be taken in the event of a supply crisis, with particular regard to oil stocks and their coordinated management.

3.1.1.1. The Committee would stress that the legislation governing this area of energy policy dates back a long way. A special effort is therefore needed to bring it up to date, rationalize it, and adjust it to the new European and international context.

3.1.1.2. The Committee would recall the comments which it made on this matter in its opinion on the first Commission report, and in particular its view that the adoption of new crisis instruments would make a substantial contribution to the pruning and simplifying of Community legislation in this area. The effectiveness of Community action would certainly be stronger as a result.

3.1.1.3. Consequently, the Committee very much hopes that this Communication will not only be supported by new proposals, but that they will also take the directions that have been outlined above.

3.1.2. Turning to Directive 76/491/EEC of 4 May 1976 regarding a Community procedure for information and consultation on the prices of crude oil and petroleum products in the Community (), the Committee notes that the Commission intends to propose the adoption of new provisions that will lead to the repeal of this Directive.

3.1.2.1. The Committee points out that this proposal contradicts the conclusions of the first report, which stated that the Directive should be maintained and that its implementing procedures merely needed to be simplified.

3.1.2.2. The Committee notes that the Commission justifies this new approach by 'changes in the structure of the market`. Regrettably, no indication is given as to what these changes are, so it is impossible to assess the merit of this new policy. The Committee would reiterate the dissatisfaction that it expressed with regard to the first report, namely that this situation is not conducive to the transparency which is essential in any review of current Community legislation.

3.1.2.3. Furthermore, the Committee notes that there is no mention of a date for the presentation of this new proposal for a directive.

3.2. Legislation on energy efficiency

3.2.1. The Committee regrets, once again, that no indication is given of when the Commission will present its proposal for a directive to replace Directive 79/531/EEC on the labelling of the energy consumption of electric ovens ().

3.2.2. The Committee takes good note of the reasons which lead the Commission to recommend maintaining Recommendation 76/495/EEC of 4 May 1976 on the rational use of energy in urban passenger transport (), subject however to the submission of a report justifying it.

3.2.2.1. In this connection, the Committee would draw the Commission's attention to the comments and recommendations which it made in its Opinion of 30 May 1996 on the Commission Green Paper on the Citizens' Network - Fulfilling the potential of public passenger transport in Europe (COM(95) 601 final) ().

3.2.3. In its opinion on the first report, the Committee particularly emphasized the inadequacy of the Commission's reasons for proposing to retain Directive 78/170/EEC of 13 February 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 ().

3.2.3.1. In the Committee's view the Commission's analysis provided no evidence that the Directive was still relevant to the objective of rational energy use and to the specific aims that it set out to achieve, particularly since the Commission itself drew attention to the original shortcomings of the Directive and its subsequent patchy implementation by the Member States.

3.2.3.2. The Committee regrets that in this second report the Commission has not supplied additional information that would enable it to pass judgement with full knowledge of the facts.

3.2.3.3. It therefore calls on the Commission to present a report justifying the implementation of this Directive and - if its maintenance is merited in terms of Community added value - to present proposals ensuring that it is applied uniformly in all Member States.

4. Additional comments

4.1. The Committee welcomes the Commission's intention to make a study of existing Community legislation every two years.

4.2. In order to make this exercise as useful and relevant as possible, the Committee would however also suggest that any new proposal be backed up by an impact form, following the example of what is done for SMEs.

4.2.1. Here the Committee would recall that it has also already suggested that, where appropriate, all new legislation should include provisions repealing existing legislation which is thereby rendered obsolete.

4.3. As well as helping to rationalize Community legislation (and this is the aim of these reviews), such a move would also make Community activity in the energy field clearer and more consistent.

Brussels, 27 November 1996.

The President of the Economic and Social Committee

Tom JENKINS

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