Amended proposal for a COUNCIL DECISION ON THE SIGNING OF THE EUROPEAN ENRGY CHARTER TREATY AND ITS PROVISIONAL APPLICATION BY THE EUROPEAN COMMUNITY
Date: 1994-11-28
Institutions: European Commission
Subjects: EU Member State, energy law, energy policy, international meeting, signature of an agreement, third country

ÎSI 

COMVIISSION  OF  THE  EUROPEAN  COMVIUNITIES 

COM(94) 557 final 
Brussels, 28.11.1994 

94/0214  (CNS) 

Amended  proposal  for a 

COUNCIL DECISION 

94/0214  (CNS) 

ON THE SIGNING OF 

THE EUROPEAN ENERGY CHARTER TREATY 

AND ITS PROVISIONAL APPLICATION 

BY THE EUROPEAN COMMUNITY 

(PRESENTED BY THE COMMISSION. CONFORMING TO 

ARTICLE 189A. PARAGRAPH 2 OF THE EC TREATY) 

Amended  proposal  for  a 

COUNCIL  DECISION 

ON THE SIGNING OF 

THE EUROPEAN  ENERGY CHARTER TREATY 

AND ITS PROVISIONAL APPLICATION 

BY THE EUROPEAN ATOMIC ENERGY COMMUNITY 

(PRESENTED BY THE COMMISSION. CONFORMING TO 

ARTICLE 119. SUBPARAGRAPH 2 OF THE CEEA TREATY ) 

4 

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Commission  Communication 
to the  Council  and  the European  Parliament 

on the  signing  of  the European  Energy  Charter  Treaty  and  its  provisional  application 
by  the European  Communities 

Amendment  of the Commission's* proposals in  accordance with  the  second  paragraph 
of  Article  189a of  the EC  Treaty  and the  second  paragraph  of  Article  119 of  the 
EAEC  Treaty 

1. 

3. 

On  21  September,  the  Commission  adopted  a  Communication  on  the  European 
Energy  Charter  Treaty  and 
its  provisional  application  by  the  European 
Communities  together  with  a  proposal  for  a  Council  Decision  based  on  the  EC 
Treaty  and  a  draft  Council  and  Commission  Decision  based  on  the  ECSC  and 
EAEC  Treaties* 

The  Commission  had  proposed  basing  the  Council  Decision  on  Articles  73c(2), 
113  and  235  of  the  EC  Treaty  in  conjunction  with  the  second  sentence  of 
Article  228(2)  and the  first  subparagraph  of  Article 228(3). 

When the Communication was discussed by the Council, one delegation  requested 
the  inclusion  of  additional  legal  bases  in  order  to  lay  the  foundations  for  other 
secondary  provisions  of  the  Treaty.  Given  the  parallels  with  the  debate 
concerning  the  Uruguay  Round  agreements,  it  was  agreed  that  the  discussions 
should be suspended pending the Court of Justice's ruling on this matter (Opinion 
No  1/94).  The Court  ruled  on  15 November. 

While the implications of Opinion No  1/94  call for  detailed  study, it is necessary 
to take  a position  as  soon  as possible  since the European  Energy  Charter  Treaty 
is due to be  signed  on  17 December. 

5. 

The main legal bases cited in the Commission's Communication* of 21  September 
are not  disputed,  and  should  therefore  be  maintained. 

However,  Opinion  No  1/94  prompts 
that 
Article  54(2), the last  sentence  of  Article  57(2)  and  Articles  66 and  100a should 
also  be  cited  in  view  of  the  reciprocity  clauses  contained  in  the  Community 
legislation  applying  to the  areas covered  by  these  Articles. 

the  Commission 

to  consider 

*COM(94)405  final,  COM(94)405  final/2  (EN  only),  and  COM(94)405  final/3  (other 
languages). 

1 

6. 

The Commission  therefore  proposes to amend the first  citation  of its proposal  for 
a Council  Decision  on the signing of the European Energy  Charter Treaty  and its 
provisional  application  by the European  Community  to  read  as  follows: 

"Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in 
particular  Article  54(2),  the  last  sentence  of  Article  57(2),  Articles  66,  73c(2), 
100A,  113  and  235  thereof,  in  conjunction  with  the  second  sentence  of 
Article  228(2)  and  the  first  subparagraph  of  Article  228(3)  thereof". 

7. 

The  Commission  originally  proposed  basing  the  draft  Council  and  Commission 
Decision  (ECSC  and  EAEC)  on  the  first  paragraph  of  Article  95  of  the  ECSC 
Treaty  and  the  second  paragraph  of  Article  101 of the  EAEC  Treaty. 

However,  it can be inferred  from  point 27 of Opinion No  1/94  that the European 
Energy  Charter's  provisions  aimed  at  liberalizing  trade  in  energy  products 
(including  coal)  may  be  covered  by  Article  113 of  the EC  Treaty. 

However,  point 24 of Opinion  No  1/94  suggests that the same conclusion  cannot 
be  applied  to  the  EAEC  Treaty,  since  its  provisions  on  supplies  (Articles  53 
et seq.)  cannot  be  equated  to a  simple trade arrangerrient. 

Consequently,  the  draft  Council  and  Commission  Decision  should  apply  only  to 
nuclear  products  and  materials  since  coal  is  covered  by  the  draft  EC  Decision. 

The first citation  of the draft  Council  and Commission  Decision  should  therefore 
be  deleted.  All  other  references  to the  ECSC  should  also  be  removed  from  the 
title  and  provisions  of  the  draft  Decision,  which  should  be  based  solely  on  the 
provisions  of  the Euratom  Treaty. 

Conclusion 

10. 

The  Commission  therefore  hereby  submits  to  the  Council  and  the  European 
Parliament  an  amendment  to  its  initial  proposals  set  out  in  its  Communication 
COM(94)405  final  to  COM(94)405  final/3  as  indicated  in  paragraphs  6  and  9 
above. 

The  full  versions  of  both  amended  proposals  are  attached. 

Amended  proposal  for a 

94/0214 (CNS) 

COUNCIL DECISION 

ON THE  SIGNING  OF 

THE  EUROPEAN  ENERGY  CHARTER  TREATY 

AND  ITS PROVISIONAL  APPLICATION 

BY  THE  EUROPEAN COMMUNITY 

PRESENTED  BY  THE  COMMISSION/CONFORMING  TO 

ARTICLE  189A. PARAGRAPH  2 OF THE  EC  TREATY 

THE  COUNCIL  OF  THE EUROPEAN  UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community  and  in  particular 
Article  54(2),  the  last  sentence  of  Article  57(2),  Articles  66,  73c(2),  100a,  113 and  235 
thereof,  in  conjunction  with  the  second  sentence  of  Article  228(2)  and  the  first 
subparagraph  of  Article  228(3)  thereof, 

Having  regard  to  the proposal  from  the  Commission, 

Having  regard to the  opinion  of the European  Parliament, 

Whereas the European Energy Charter was signed on 17 December  1991 by the European 
Community  and  its Member  States; 

Whereas the signatories to the European Energy Charter undertook to draw up a European 
Energy  Charter  Treaty  in  order  to  provide  a  secure  and  binding  international  legal 
framework  for  the principles  and  objectives  set out in that  Charter; 

Whereas implementation  of  the European  Energy  Charter  is of  fundamental  importance 
to  Europe's  future,  allowing  the  CIS  States  and  the  countries  of  Central  and  Eastern 
Europe to  develop  their  energy  potential,  while  helping  to improve  security  of  supply; 

Whereas  it  is  necessary  to  consolidate  the  initiative  and  the  central  role  of  the 
Community,  to enable the latter to participate fully  in the implementation  of the Treaty; 

Whereas the  signature  and  application  of the Energy  Charter  Treaty  will  help  attain  the 
objectives  of  the  Community;  whereas,  for  some  of  the  measures  provided  for  in  that 
Treaty,  the  Treaty  does  not  provide  for  powers  other  than  those  of  Article  235  for  the 
adoption  of this Decision; 

Whereas  the  Treaty  should  therefore  be  signed  on  behalf  of  the  European  Community, 
subject to subsequent  approval,  and applied  on a provisional basis, in accordance with its 
provisions,  without  prejudice  to  the  procedure  required  for  its  subsequent  approval, 

HAS DECIDED AS FOLLOWS: 

Article 1 

1. 

2. 

The European Energy Charter Treaty shall be signed by the European Community^ 
subject to its subsequent approval. 

The  President  of  the  Council  is  hereby  authorized  to  designate  the  person  or 
persons empowered to sign the Treaty. 

3. 

The text of the Treaty is attached to this Decision. 

Article 2 

The European Energy Charter Treaty shall apply on a provisional basis from  the time of 
signature thereof 

Done at Brussels, 

4 

Amended  proposal  for a 

COUNCIL  DECISION 

ON THE  SIGNING  OF 

THE  EUROPEAN  ENERGY  CHARTER  TREATY 

AND  ITS  PROVISIONAL  APPLICATION 

BY  THE  EUROPEAN  ATOMIC  ENERGY  COMMUNITY 

PRESENTED  BY  THE  COMMISSION.  CONFORMING  TO 

ARTICLE  119. SUBPARAGRAPH  2 OF THE CEEA  TREATY 

THE COUNCIL  OF  THE  EUROPEAN  UNION, 

Having  regard  to the  Treaty  establishing  the European  Atomic Energy  Community,  and 
in  particular  the  second  paragraph  of  Article  101 thereof, 

Having  regard  to  the  draft  Council  Decision  submitted  by  the  Commission, 

After  consulting  the European  Parliament, 

Whereas the European Energy Charter was signed on  17 December  1991 by the European 
Community  and  its Member  States; 

Whereas the signatories to the European Energy Charter undertook to draw up a European 
Energy  Charter  Treaty  in  order  to  provide  a  secure  and  binding  international  legal 
framework  for  the  principles  and  objectives  set out  in  that  Charter; 

Whereas  implementation  of the  European  Energy  Charter  is of  fundamental  importance 
to  Europe's  future,  allowing  the  CIS  States  and  the  countries  of  Central  and  Eastern 
Europe to  develop  their  energy  potential,  while  helping  to improve  security  of  supply; 

Whereas  it  is  necessary  to  consolidate  the  initiative  and  the  central  role  of  the 
Community,  to  enable  the later  to  participate fully  in the implementation  of the  Treaty; 

Whereas the  signature  and  application  of the Energy  Charter  Treaty  will  help  attain  the 
objectives  of  the EAEC; 

5" 

Whereas the Treaty  should therefore be signed on behalf of the European  Atomic Energy 
Community,  and  applied  on  a provisional  basis,  in  accordance  with  its  provisions, 

HAS DECIDED  AS  FOLLOWS: 

Article 1 

1. 

The  signing  of  the  European  Energy  Charter  Treaty  by  the  Commission  of  the 
European  Communities  for  and  on  behalf  of  the  European  Atomic  Energy 
Community  is  hereby  approved. 

2. 

The text  of the Treaty  is attached  to this  Decision. 

Article 2 

The European Energy  Charter Treaty  shall  apply on a provisional basis from  the time of 
signature  thereof. 

Done at Brussels, 

ISSN 0254-1475 

COM (94) 557 final 

DOCUMENTS 

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oi  n  12 

Catalogue number : CB-CO-94-580-EN-C 

ISBN 92-77-83088-3 

Qffîce for Official Publications of the European Communities 

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