EN Official Journal of the European Union CE 84/921

(2004/C 84 E/1018)

WRITTEN QUESTION E-0951/04

by Angelika Niebler (PPE-DE) to the Commission

(29 March 2004)

Subject: Interpretative notes relating to the transposition into national law of the Directives on the electricity and gas markets in the European Union

On 22 January 2004, and after the text had undergone a series of revisions, the Energy and Transport DG published on the Internet interpretative notes for the transposition into national law of the Directives on the electricity and gas markets in the European Union. Those interpretative notes lay down the procedures for the transposition by the Member States of Directives 2003/54/EC (1) and 2003/55/EC (2) into national law. They include some very detailed and far-reaching requirements which exceed those laid down in the Directives. For example, the role and actions of national regulatory authorities are specified in detail, and that restricts the Member States' room for manoeuvre originally laid down. There is a danger that, in the final analysis, the interpretative notes will contribute to legal uncertainty and create effects which were not intended by the bodies which participated in the legislative process.

1. In the Commission's view, what role should the interpretative notes play in the transposition process?

2. Does the Commission share the view that the possibility cannot be excluded that the interpretative notes may lead to the creation of a de facto binding effect?

3. In the Commission's view, how will the interpretative notes guarantee that the Member States have the requisite room for manoeuvre when they transpose the Directives referred to above?

4. In the Commission's view, can the possibility be excluded that the interpretative notes will be used as a yardstick for the assessment of national transposition measures and/or that they will be attributed a specific role in any actions brought before the European Court of Justice in connection with such transposition?

5. Do the interpretative notes simply reflect the opinion of the Energy and Transport DG, or does the Commission as a body approve the notes and their content?

6. The Directives referred to are the outcome of a common legislative process. That being the case, should not the interpretative notes have been mutually agreed by the bodies which participated in the legislative process?

Answer given by Mrs de Palacio on behalf of the Commission

(30 April 2004)

Directives 2003/54/EC (3) and 2003/55/EC (3) of the European Parliament and of the Council of 26 June 2003 on the internal markets in electricity and gas lay down a general framework for implementation. The interpretive notes for the transposition of the Directives are intended to explain and clarify various Articles in the Directives in order to assist the Member States with transposition, and draw their attention to certain points.

The interpretive notes represent no commitment on the part of the Commission, as explicitly mentioned in the title of the Internet document. They are guidelines and often suggest different options which leaves the Member States some room for manoeuvre, particularly as they are non-binding.

The Commission will base its analysis of the effectiveness of Member States' transposition of the Directives on a series of criteria, including the points mentioned in its interpretive notes. As indicated, the notes do not prejudice the final decision of the Commission or the Court of Justice. They reflect the opinion of the Energy and Transport DG, although several other DGs were consulted and account was taken of their opinions.

The draft interpretive notes were sent out to the energy administrations in the Member States and accession countries. These had an opportunity to comment either at the two special meetings held to examine the notes, or in writing. Subsequent meetings were held with industry, which also had a chance to comment. The Energy and Transport DG took account of the majority of observations made in the course of the consultations. In this context, Eurelectric thanked the Energy and Transport DG by letter of 5 February 2004 for taking account of the industry's views.

(1) OJ L 176, 15.7.2003, p. 37.

(2) OJ L 176, 15.7.2003, p. 57.

(3) OJ L 176, 15.7.2003.