Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL setting up an information exchange mechanism with regard to intergovernmental agreements between Member States and third countries in the field of energy
Date: 2011-09-07
Institutions: European Commission
Subjects: EU Member State, disclosure of information, energy distribution, intergovernmental cooperation (EU), international agreement, single market, third country

EUROPEAN COMMISSION 

Brussels, 7.9.2011 
COM(2011) 540 final 

2011/0238 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

setting up an information exchange mechanism with regard to intergovernmental 
agreements between Member States and third countries in the field of energy 

 
 
  
 
EXPLANATORY MEMORANDUM 

The  European  Council  of  4  February  2011  concluded  that  there  is  a  need  for  better 
coordination of Union and Member States' activities with a view to ensuring consistency and 
coherence  in  the  EU’s  external  energy  relations  with  key  producer,  transit,  and  consumer 
countries.  The  Council  therefore  invited  Member  States  to  inform  from  1  January  2012  the 
Commission of all their new and existing bilateral energy agreements with third countries.1 

This  proposal  transforms  the  conclusions  of  the  European  Council  into  a  mechanism  with 
detailed  procedures  for  the  exchange  of  information  between  Member  States  and  the 
Commission  with  regard  to  intergovernmental  agreements,  i.e.,  legally  binding  agreements 
between  Member  States  and  third  countries  which  are  likely  to  have  an  impact  on  the 
operation  or  the  functioning  of  the  internal  market  for  energy  or  on  the  security  of  energy 
supply in the Union. 

The proposal accompanies the Commission Communication on security of energy supply and 
international  cooperation  -  "The  EU  Energy  Policy:  Engaging  with  Partners  beyond  Our 
Borders."2 

1. 

POLICY OBJECTIVE 

The  share  of  imported  energy  in  the  Union  is  constantly  rising.3  The  Member  States  and 
energy  companies  consequently  seek  new  energy  sources  outside  of  the  EU.  Negotiations 
with  powerful  energy  suppliers  in  third  countries  typically  demand  political  support  in  the 
form  of  the  conclusion  of  intergovernmental  agreements  between  Member  States  and  third 
countries.  These  intergovernmental  agreements  are  normally  negotiated  bilaterally  and  are 
often the basis for more detailed commercial contracts. 

Following  the  liberalisation  of  the  electricity  and  gas  markets  in  the  European  Union,  in 
particular  with  the  implementation  of  the  Third  Energy  Package4,  the  Member  States  have 
introduced  significant  changes  in  their  energy  legislation.  Complying  with  these  legislative 
changes is not always in the commercial interest of third country energy suppliers. Facing a 
possible  supply  shortage,  Member  States  are  under  increasing  pressure  to  accept  regulatory 
third  countries  which  are 
concessions 
incompatible with Union energy law. Such regulatory concessions threaten the operation and 
proper functioning of the Union internal market for energy. 

intergovernmental  agreements  with 

their 

in 

For  example,  when  an  intergovernmental  agreement  is  concluded  to  support  a  specific  gas 
pipeline project, it should not include any clauses that reserve the right of a particular shipper 
to contract for the full capacity or part of the capacity of the pipeline, unless such a clause is 
allowed under Union law subsequent to a favourable decision taken by the relevant authorities 
at national and Union level concerning an exemption from the third party access requirements 
of  the  Union  energy  legislation  and  subject  to  conditions  specified  in  this  legislation. 

1 

2 
3 
4 

This  conclusion  was  confirmed  by  the  Energy  Council  of  28  February  2011:  "Improved  and  timely 
exchange  of  information  between  the  Commission  and  Member  States  including  Member  States 
information to Commission on their new and existing bilateral energy agreements with third countries". 
COM(2011) 539 
According to scenarios for 2030, total imports of energy from third countries may reach 57%. 
OJ L 211, 14.8.2009 

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Otherwise,  the  agreement  will  be  contrary  to  Union  law  and  as  a  result  it  will  not  provide 
legal certainty for investors. Furthermore, the pipeline project will not be eligible for possible 
EU  funding.  As  Member  States  cannot  simply  unilaterally  modify  intergovernmental 
agreements  concluded  with  third  countries  in  case  certain  provisions  therein  are  found  to 
infringe internal market rules, intergovernmental agreements that contain unlawful provisions 
put Member States into a situation of conflicting legal obligations and threaten the operation 
and  proper  functioning  of  the  Union  internal  market  for  energy.  Such  agreements  shall 
therefore not be signed by the Member States. 

Furthermore, as was demonstrated during the gas dispute between the Russian Federation and 
Ukraine in January 2009, when the internal market is not functioning properly, the EU is more 
vulnerable to security of supply risks. Therefore it is important that the Member States and the 
Commission are aware of the amount and sources of energy imported. 

To address these  problems,  it  is  important to improve the exchange of information between 
Member  States  and  between  Member  States  and  the  Commission  on  existing,  provisionally 
applied  and  future  intergovernmental  agreements.  This  will  facilitate  the  coordination  at 
Union level and the effective implementation of the energy policy of the Union. In addition it 
will enhance the negotiating position of individual Member States vis-à-vis third countries to 
ensure security of supply, the proper operation and functioning of the Union internal energy 
market  and  create  legal  certainty  for  investment  decisions  and  make  possible  potential  EU 
funding  of  the  project.  Improved  transparency  with  regard  to  intergovernmental  agreements 
will also ultimately increase consistency and coherence, in a spirit of solidarity, in the Union's 
external  energy  relations  and  allow  Member  States  to  better  benefit  from  the  political  and 
economic  weight  of  the  Union  and  the  expertise  of  the  Commission  with  respect  to  Union 
law.  For  this  reason  it  is  foreseen  that  Member  States  may  request  assistance  from  the 
Commission  during  the  negotiations.  The  new  instrument  will  therefore  allow  the 
Commission to support the Member States effectively. 

2. 

POLICY OPTIONS AND CONSULTATIONS WITH INTERESTED PARTIES 

Given  the  limited  economic  and  social  impacts  of  this  proposal,  it  was  not  considered 
necessary  to  carry  out  a  formal  impact  assessment.  Taking  into  account  the  stated  policy 
objectives, the Commission nevertheless evaluated a number of options to achieve the proper 
transposition  of  the  European  Council  conclusions.  A  public  consultation  on  the  external 
dimension of the EU energy policy took place between 21 December 2010 and 7 March 2011. 
The  consultation  raised  questions  concerning  the  need  for  coordination  between  Member 
States and the Commission with regard to intergovernmental agreements to ensure security of 
supply and the proper operation and functioning of the Union internal energy market. In total, 
over  90  replies  were  received.  The  responses  received  highlighted  the  important  role  of  the 
Union in promoting a reliable legal and institutional framework in order to achieve mutually 
advantageous  relations  with  its  main  energy  suppliers  and  transit  countries.  A  meeting  with 
energy experts was also held on 6 April 2011 in Brussels. 

The status quo 

The  Commission  is  currently  not  aware  of  most  intergovernmental  agreements  between 
Member  States  and  third  countries  as  no  obligation  exists  to  inform  the  Commission 

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comprehensively  about  these  agreements.5  The  Commission  very  roughly  estimates  that 
around  30  intergovernmental  agreements  may  exist  between  Member  States  and  third 
countries on oil and around 60 on gas.6 These are likely to relate either to the volumes of oil 
or gas imported into the Union from third countries or to the conditions for the supply of these 
volumes  through  fixed  infrastructure.With  regard  to  intergovernmental  agreements  between 
Member  States  and  third  countries  on  electricity,  the  total  number  is  estimated  to  be  lower. 
These  agreements  include  the  so  called  BRELL  RING  agreement  between  Belarus,  Russia, 
Estonia,  Lithuania  and  Latvia)  on  operating  and  use  of  the  networks  in  the  Baltic  States. 
Similar agreements are likely to exist also with Balkan countries where the networks of third 
countries  are  synchronously  connected  with  the  Union  Member  States.  A  precise 
approximation  on  how  regularly  these  intergovernmental  agreements  are  modified  or  how 
many new ones may be concluded is not possible. The Member States also lack a mechanism 
to  keep  abreast  of  developments  in  the  27  Member  States  in  this  field.  While  some 
transparency  requirements  have  already  been  adopted,7  these  only  relate  to    the  gas  sector 
(existing  intergovernmental  agreements  and  new  agreements  when  concluded)  and  to 
information exchange between the Commission and the Member States (no exchange between 
the  Member  States  themselves)  and,  already  for  these  reasons,  fall  short  of  transposing  the 
European Council conclusions. The status quo is therefore unsatisfactory and the Commission 
considers it necessary to suggest the establishment of a new more detailed and comprehensive 
information exchange mechanism. 

A legal instrument or voluntary measures 

Only  clear  obligations  with  regard  to  exchange  of  information  on  intergovernmental 
agreements between the Member States and between the Member States and the Commission 
are capable of ensuring the necessary transparency required for coordination at Union level. 
While  the  proposed  mechanism  also  incorporates  soft  law  elements  such  as  the  joint 
development of standard clauses, voluntary measures on their own have so far not proven to 
be  sufficient  to  guarantee  the  type  of  exchange  of  information  necessary  to  ensure  that 
agreements  concluded  between  Member  States  and  third  countries  are  lawful  and  do  not 
threaten  the  proper  operation  and  functioning  of  the  Union  internal  energy  market.  A  legal 
instrument  for  mandatory  exchange  of  information  is  therefore  the  only  option  that  will 
guarantee  that  the  stated  policy  objectives  are  met,  most  appropriately  in  the  form  of  a 
Decision.8 

5 

6 

7 
8 

The only obligation which exists so far is foreseen in Article 13 (6) of Regulation (EU) No 994/2010 of 
the  European  Parliament  and  of  the  Council  of  20  October  2010  concerning  measures  to  safeguard 
security  of  gas  supply  and  repealing  Council  Directive  2004/67/EC  (Security  of  Gas  Supply 
Regulation), OJ 295, 12.11.2010, p. 1 - 22. That provision imposes on Member States the obligation to 
notify intergovernmental agreements in the area of gas to the Commission. Existing intergovernemtal 
agreeements only need to be notified before 3 December 2011. 
Taking into account the few known IGAs between the Member States and third countries, for example 
concerning  the  South  Stream  gas  pipeline,  this  very  conservative  assessment  is  made  under  the 
assumption  that  a  number  of  Member  States  have  such  IGAs  with  main  suppliers  of  oil  and  gas,  in 
particular when the oil or gas is delivered through pipelines. 
See Article 13 (6) of the Security of Gas Supply Regulation. 
Although both a Regulation and a Decision appear possible, a Decision is deemed more appropriate as 
the legal instrument will not have direct effect on individuals but is exclusively addressed to Member 
States. 

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Scope 

In  order  to  accurately  transpose  the  Council  conclusions,  it  is  proposed  that  the  Decision 
covers  all  existing,  provisionally  applied  and  new  intergovernmental  agreements  which  are 
likely to have an impact on the operation or the functioning of the internal market for energy 
or on the security of energy supply in the Union as these two issues are intrinsically linked. It 
is particularly important that the Decision comprises all intergovernmental agreements which 
have  an  impact  on  the  supply  of  gas,  oil  or  electricity  through  fixed  infrastructure  (such  as 
pipelines and networks) or on the overall amounts of energy imported into the EU. 

Appropriate timing for exchange of information 

Early  information  to  the  other  Member  States  and  to  the  Commission  on  future 
intergovernmental  agreements  appears  to  be  crucial.  Full  knowledge  of  the  content  of  the 
intergovernmental  agreements  already  in  force  is  also  necessary.  It  is  therefore  considered 
pertinent  that  Member  States  first  of  all  inform  the  Commission  of  their  intention  to  open 
negotiations  and  communicate  the  ratified  version  of  the  intergovernmental  agreement.  The 
Commission should have a central role in promptly disseminating this information to the other 
Member States taking into account requests of Member States for confidential treatment. 

However,  without  exchange  of  information  already  during  the  course  of  the  negotiations,  it 
will  be  difficult  to  influence  future  intergovernmental  agreements  towards  conformity  with 
the  Union  energy  legislation  and  the  Union  policy  on  security  of  supply.  Importantly,  there 
would be a missed opportunity to provide the necessary legal certainty concerning the status 
and  validity  of  intergovernmental  agreements  for  major  energy  projects  and  consequent 
funding.  This  would  be  detrimental  for  Union  investments  and  therefore  Union  security  of 
energy supply. 

The  existing  ex-post  control  mechanism  in  the  form  of  infringement  procedures  does  not 
address  this  problem  in  the  most  efficient  way.9  This  is  because,  once  intergovernmental 
agreements  have  been  signed  and  even  more  once  they  are  ratified,  Member  States  cannot 
unilaterally  modify  them  in  case  certain  provisions  therein  are  found  to  infringe  internal 
market rules  but would need to  renegotiate the intergovernmental agreements with the third 
countries  in  question.  Continuous  contacts  and  exchange  of  information  during  the 
negotiations  and  the  possibility  for  a  compatibility  check  on  request  of  the  Member  State 
concerned  or  of  the  Commission  before  the  intergovernmental  agreement  is  signed  is 
therefore considered essential. In addition, it is proposed that the Member States may request 
the  assistance  of  the  Commission  services  during  the  negotiations.  The  experience  gained 
through  these  exchange  mechanisms  should  enable  the  joint  development  of  voluntary 
standard clauses that Member States can use in future intergovernmental agreements. The use 
of  such  standard  clauses  would  help  preventing  conflicts  of  intergovernmental  agreements 
with Union law. 

Mandatory ex-ante control or more flexible compatibility check 

It is not proposed to create an exhaustive mandatory ex-ante control mechanism applicable to 
all relevant intergovernmental agreements as such a mechanism would put a too heavy burden 

9 

It should be noted that the notification of existing intergovernmental agreements would not prevent the 
Commission from starting infringement procedures if necessary, i.e., if it can be shown in a given case 
how a particular agreement infringes the internal market rules. 

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on Member States and would delay the conclusion of all future intergovernmental agreements 
by at least a few months. 

Instead, it is considered sufficient to provide a more flexible compatibility control mechanism 
where  the  Commission,  on  its  own  request  or  on  request  of  the  Member  State  that  is 
negotiating  the  intergovernmental  agreement,  assesses  the  compatibility  of  the  negotiated 
agreement with Union law before the agreement is signed. In case a compatibility check has 
been done on request of the Member State concerned or of the Commission, in order not to 
unduly delay the negotiation, in the absence of an explicit opinion by the Commission within 
four months, the Commission would be deemed not to have raised objections. 

The proposed option will significantly increase the ability of the Union to maintain the proper 
operation  and  functioning  of  its  internal  energy  market  and  safeguard  security  of  energy 
supply  and  the  realisation  of  major  energy  projects  through  a  coordinated  and  therefore 
efficient  use  of  the  Union  bargaining  power.  In  this  respect,  the  positive  impacts  of  the 
proposal outweigh the rather limited extra burden in terms of transparency obligations put on 
Member States when negotiating intergovernmental agreements with third countries. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

The aim of this proposal is to transform the 4 February 2011 European Council conclusions 
into a mechanism with detailed procedures for the exchange of information between Member 
States and the Commission with regard to intergovernmental agreements in order to facilitate 
coordination at Union level to ensure security of supply, the proper operation and functioning 
of the Union internal energy market and create legal certainty for investment decisions. 

On an individual level, it is difficult for Member States to ensure that these policy objectives 
are  met.  Member  States  do  currently  not  have  sufficient  information  to  judge  the  overall 
implications of their intergovernmental agreements on the security of supply situation in the 
EU.  Member  States'  own  assessments  concerning  the  proper  implementation  of  the  Union 
energy  rules  in  relation  to  these  intergovernmental  agreements  also  do  not  bring  sufficient 
legal certainty for investors. Union coordination will on the other hand benefit all the stated 
objectives.  As  the  proposed  exchange  of  information  will  increase  the  Member  States' 
negotiating position vis-à-vis third countries, it will ensure the proper implementation of the 
Union  rules  and  policies.  It  will  allow  taking  the  perspective  of  the  collective  security  of 
supply situation in the EU, instead of a national perspective. The use of commonly developed 
standard clauses and the proposed compatibility check will furthermore provide investors with 
increased  legal  certainty  as  regards  the  likely  compatibility  of  the  intergovernmental 
agreement with EU legislation. The proposal is therefore justified on grounds of subsidiarity. 
The proposal also respects the proportionality principle as the voluntary alternatives examined 
do not guarantee that sufficient exchange of information takes place to ensure that the policy 
objectives are met. 

Intergovernmental agreements are defined as all legally binding agreements between Member 
States  and  third  countries  which  are  likely  to  have  an  impact  on  the  operation  or  the 
functioning of the internal market for energy or on the security of energy supply in the EU. 

To  avoid  duplication,  intergovernmental  agreements  for  which  a  specific  notification  to  the 
Commission  is  already  foreseen  in  other  acts  of  Union  legislation  are  excluded  from  the 
proposal, except intergovernmental agreements which must be submitted to the Commission 

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according  to  the  Security  of  Gas  Supply  Regulation.10  It  is  also  proposed  that  the  new 
mechanism  shall  not  concern  agreements  between  commercial  operators  except  and  only  as 
far as the intergovernmental agreement explicitly refers to these commercial agreements. 

Member States shall send all existing and provisionally applied intergovernmental agreements 
between them and third countries to the Commission at the latest three months after the entry 
into  force  of  the  proposed  Decision.  The  Commission  shall  also  be  informed  as  early  as 
possible of their intention to open negotiations on future intergovernmental agreements or to 
amend existing intergovernmental agreements. The Commission shall be regularly informed 
on  the  negotiations.  On  request,  the  Commission  shall  participate  as  an  observer  to  the 
negotiations.  In  this  context,  Member  States  also  have  the  right  to  ask  the  Commission  for 
assistance during their negotiations with third countries. 

Once  the  intergovernmental  agreement  is  ratified,  the  ratified  text  shall  be  sent  to  the 
Commission.  Intergovernmental  agreements  shall  be  submitted  in  their  entirety,  including 
their  annexes,  other  texts  they  refer  to  and  all  amendments  thereto.  The  Commission  will 
make all information received available to the Member States via a database. When providing 
information  to  the  Commission,  a  Member  State  may  indicate  whether  any  part  of  the 
information in the agreements submitted is to be regarded as confidential. 

The  Commission  shall  facilitate  the  coordination  among  Member  States  with  a  view  to 
reviewing  developments  in  relation  to  intergovernmental  agreements,  identifying  common 
problems and solutions, and developing standard clauses that Member States can use in future 
intergovernmental agreements. 

In addition, the Commission shall, on its own initiative at the latest within four weeks after it 
has been informed that negotiations have been closed, or on request from the Member State 
which  has  negotiated  the  intergovernmental  agreement,  have  the  right  to  assess  the 
compatibility  of  the  negotiated  agreement  with  Union  law  in  order  to  ensure  that  the 
agreement  is  lawful.  In  this  case,  Member  States  have  to  submit  the  fully  negotiated 
intergovernmental  agreement  to  the  Commission  before  the  intergovernmental  agreement  is 
signed.  The  Commission  has  an  assessment  period  of  four  months.  If  such  compatibility 
check  has  been  requested,  in  the  absence  of  an  opinion  of  the  Commission  within  this 
examination period, the Commission is deemed not to have raised any objections. 

The Commission shall prepare a report on the application of the proposed Decision four years 
after its entry into force. 

The proposed decision will enter into force 20 days following its publication in the Official 
Journal. 

4. 

BUDGETARY IMPLICATIONS OF THE PROPOSAL 

The proposal has no implication for the Union budget. The limited additional administrative 
burden for the European Commission does not imply any additional costs. 

10 

Duplications are as well avoided in the case of the Securitry of Gas Supply Regulation as a notification 
in accordance with the more detailed rules foreseen in this proposal would fulfil the requirements set 
out in the Security of Gas Supply Regulation. 

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2011/0238 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

setting up an information exchange mechanism with regard to intergovernmental 
agreements between Member States and third countries in the field of energy 

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL  OF  THE  OF  THE  EUROPEAN 
UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 194 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee11, 

Having regard to the opinion of the Committee of the Regions12, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The  European  Council  has  asked  Member  States  to  inform  from  1  January  2012  the 
Commission  on  all  their  new  and  existing  bilateral  energy  agreements  with  third 
countries.  The  Commission  should  make  this  information  available  to  all  other 
Member  States  in  an  appropriate  form,  having  regard  to  the  need  for  protection  of 
commercially sensitive information. 

Union-law  requires  Member  States  to  take  all  appropriate  measures  to  ensure 
fulfilment of the obligations arising out of the Treaties or resulting from the acts of the 
institutions  of  the  Union.  Member  States  should  therefore  avoid  or  eliminate  any 
incompatibilities between Union law and international agreements concluded between 
Member States and third countries. 

The proper functioning of the internal energy market requires that the energy imported 
into  the  Union  from  third  countries,  is  fully  governed  by  the  rules  establishing  an 
internal energy market. An internal energy market that is not functioning properly puts 
the  EU  in  a  vulnerable  position  with  regard  to  security  of  energy  supply.  A  high 
degree  of  transparency  with  regard  to  agreements  between  Member  States  and  third 
countries in the field of energy would allow the Union to take coordinated action, in a 

11 
12 

OJ C, p. . . 
OJ C, p. . . 

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(4) 

(5) 

(6) 

spirit  of  solidarity,  in  order  to  ensure  that  such  agreements  are  in  accordance  with 
Union legislation and effectively secure the supply of energy. 

The  new  information  exchange  mechanism  should  only  cover  intergovernmental 
agreements which are likley to have an impact on the internal market for energy or on 
the  security  of  energy  supply  as  these  two  issues  are  intrinsically  linked.  It  should 
comprise in particular all intergovernmental agreements which have an impact on the 
supply of gas, oil or electricity through fixed infrastructure or which have an impact 
on the amount of energy imported into the Union from third countries. 

Intergovernmental  agreements  which  need  to  be  notified  in  their  entirety  to  the 
Commission on the  basis  of  other Union acts such  as [Regulation (EU) No …/… of 
the  European  Parliament  and  of  the  Council  of  …  establishing  transitional 
arrangements  for  bilateral  investment  agreements  between  Member  States  and  third 
countries13] should be excluded from the information exchange mechanism established 
by this Decision. 

The  exemption  from  the  notification  obligation  mentioned  should  not  apply  to 
intergovernmental  agreements  which  must  be  submitted  to  the  Commission  in 
accordance  with  Article  13(6)  of  Regulation  (EU)  No  994/2010  of  the  European 
Parliament and of the Council of 20 October 2010 concerning measures to safeguard 
security  of  gas  supply  and  repealing  Council  Directive  2004/67/EC.14  Such 
intergovernmental  agreements  with  third  countries  which  have  an  impact  on  the 
development  and  use  of  gas  infrastructure  and  gas  supplies  should  henceforth  be 
notified  according  to  the  rules  laid  down  in  this  Decision.  To  avoid  duplication,  a 
notification submitted in accordance with this Decision should be considered to fulfil 
the notification obligation set out in Regulation (EU) No 994/2010. 

(7) 

This Decision should not concern agreements between commercial entities, except and 
only  as  far  as  the  intergovernmental  agreements  refer  explicitly  to  such  commercial 
agreements. Commercial operators negotiating commercial agreements with operators 
from third countries may nevertheless seek guidance from the Commission in order to 
avoid potential conflicts with Union law. 

(8)  Member  States  should  submit  to  the  Commission  all  existing,  provisionally  applied 
the  Vienna  Convention15  and  new 

the  meaning  of  Article  25  of 

within 
intergovernmental agreements. 

(9)  Member  States  should  already  notify  the  intention  to  open  negotiations  to  the 
Commission  with  regard  to  new  intergovernmental  agreements  or  amendments  to 
existing  intergovernmental  agreements.  The  Commission  should  be  kept  informed 
regularly  on  the  ongoing  negotiations.  It  should  have  the  right  to  participate  as  an 
observer in the negotiations. Member States may also request the Commission to assist 
them during their negotiations with third countries. 

(10)  The  Commission  should,  on  its  own  initiative  or  on  request  from  the  Member  State 
which  has  negotiated  the  intergovernmental  agreement,  have  the  right  to  assess  the 

13 
14 
15 

[COM 2010 (344) final, not yet adopted] 
OJ L 295, 12.11.2010, p. 1 
Vienna Convention on the Laws of the Treaties 1969 

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compatibility  of  the  negotiated  agreement  with  Union  law  before  the  agreement  has 
been signed. 

(11)  All  final,  ratified  agreements  covered  by  this  Decision  should  be  transmitted  to  the 
Commission in order to allow for full information of all other Member States. 

(12)  The Commission should make all received information available to all other Member 
States  in  electronic  form.  The  Commission  should  respect  requests  from  Member 
States  to  treat  information,  in  particular  commercial  information,  submitted  as 
confidential.  Requests  for  confidentiality  should  however  not  restrict  access  of  the 
Commission  itself  to  confidential  information  as  the  Commission  needs  to  have 
comprehensive  information  for  its  own  assessment.  The  requests  for  confidentiality 
are without prejudice to the right of access to documents as provided for in Regulation 
(EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 
regarding  public  access 
to  European  Parliament,  Council  and  Commission 
documents.16 

(13)  A permanent exchange of information on intergovernmental agreements at Union level 
should  allow  to  develop  best  practices.  On  the  basis  of  those  best  practices  the 
Commission  should  recommend  standard  clauses  for  the  use  in  intergovernmental 
agreements between Member States and third countries. The use of these non-binding 
standard clauses should exclude conflicts of intergovernmental agreements with Union 
law. 

(14)  The  improved  mutual  knowledge  of  existing  and  new  intergovernmental  agreements 
should allow for a better co-ordination in energy matters between the Member States 
themselves and between the Member States and the Commission. Such improved co-
ordination  should  enable  Member  States  to  fully  benefit  from  the  political  and 
economic weight of the Union. 

(15)  The mechanism for the exchange of information provided for in this Decision should 
be  without  prejudice  to  the  application  of  the  Union  rules  on  infringements  and 
competition. 

HAVE ADOPTED THIS DECISION: 

Article 1 
Subject matter and scope 

1. This Decision establishes a mechanism for the exchange of information between Member 
States and the Commission with regard to intergovernmental agreements. 

2. Intergovernmental agreements which are already in their entirety subject to other specific 
notification  procedures  under  Union  law,  except  for  intergovernmental  agreements  which 
shall be submitted to the Commission in accordance with Article 13(6) of Regulation (EU) No 
994/2010, shall not be covered by this Decision. 

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Article 2 
Definitions 

For the purposes of this Decision the following definitions apply: 

(1) "intergovernmental agreements" means any legally binding agreements between Member 
States  and  third  countries  which  are  likely  to  have  an  impact  on  the  operation  or  the 
functioning of the internal market for energy or on the security of energy supply in the Union; 

(2) "existing intergovernmental agreements" means intergovernmental agreements which have 
entered into force prior to the entry into force of this Decision. 

Article 3 
Exchange of information between Commission and Member States 

1.  Member  States  shall  submit  all  existing  and  provisionally  applied  intergovernmental 
agreements  between  them  and  third  countries  in  their  entirety,  including  their  annexes  and 
other texts they refer to explicitly and all amendments thereto to the Commission at the latest 
three  months  after  the  entry  into  force  of  this  Decision.  The  Commission  shall  make  the 
received  documents  accessible  in  electronic  form  to  all  other  Member  States.  Existing  or 
provisionally applied intergovernmental agreements which have already been communicated 
in accordance with Regulation (EU) No 994/2010 to the Commission at the date of entry into 
force  of  this  Decision,  which  are  fulfilling  the  requirements  of  this  paragraph,  shall  be 
considered as communicated for the purposes of this Decision. 

2.  When  a  Member  State  intends  to  enter  into  negotiations  with  a  third  country  in  order  to 
amend  an  existing  intergovernmental  agreement  or  to  conclude  a  new  intergovernmental 
agreement,  the  Member  State  shall  inform  the Commission  in  writing  of  its  intention  at  the 
earliest  possible  moment  before  the  envisaged opening  of  the  negotiations.  The  information 
provided  to  the  Commission  shall  include  the  relevant  documentation,  an  indication  of  the 
provisions  to  be  addressed  in  the  negotiations,  the  objectives  of  the  negotiations  and  other 
relevant information. In case of amendments to an existing agreement, the provisions that are 
to  be  renegotiated  shall  be  indicated  in  the  information  provided  to  the  Commission.  The 
Commission shall make the received information accessible to all Member States in electronic 
form.  The  Member  State  concerned  shall  keep  the  Commission  informed  regularly  of  the 
ongoing  negotiations.  On  request  of  the  Commission  or  the  Member  State  concerned,  the 
Commission may participate as an observer in the negotiations. 

3.  Upon  ratification  of  an  intergovernmental  agreement  or  of  an  amendment  to  an 
intergovernmental agreement, the Member State concerned shall submit the agreement or the 
amendment  of  the  agreement,  including  their  annexes  and  other  texts  these  agreements  or 
amendments refer to explicitly, to the Commission which shall make the received documents, 
with  the  exception  of  confidential  parts  identified  according  to  Article  7,  accessible  to  all 
other Member States in electronic form. 

Article 4 
Assistance from the Commission 

When  a  Member  State  informs  the  Commission  pursuant  to  Article  3(2)  of  its  intention  to 
enter  into  negotiations  in  order  to  amend  an  existing  intergovernmental  agreement  or  to 

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conclude a new intergovernmental agreement, the Member State may request the assistance of 
the Commission in the negotiations with the third country. 

Article 5 
Ex-ante compatibility control 

The Commission may on its own initiative until four weeks after it has been informed of the 
closure  of  the  negotiations  at  the  latest  or  on  request  from  the  Member  State  which  has 
negotiated  the  intergovernmental  agreement,  assess  the  compatibility  of  the  negotiated 
agreement with Union law before the agreement has been signed. In case the Commission or 
the  Member  State  concerned  ask  for  such  an  ex-ante  assessment  of  the  negotiated 
intergovernmental  agreement  with  Union  law,  the  negotiated  but  not  yet  signed  draft 
intergovernmental  agreement  shall  be  submitted  to  the  Commission  for  examination.  The 
Member State concerned shall refrain from signing the agreement for a period of four months 
following  the  submission  of  the  draft  intergovernmental  agreement.  In  agreement  with  the 
Member State concerned, the examination period might be prolonged. When a compatibility 
control  has  been  requested,  in  the  absence  of  an  opinion  by  the  Commission  within  the 
examination period, the Commission shall be deemed not to have raised objections. 

Article 6 
Coordination with Member States 

1. The Commission shall facilitate the coordination among Member States with the view to: 

(a) review developments in relation to intergovernmental agreements; 

(b)  identify  common  problems  in  relation  to  intergovernmental  agreements  and  to  consider 
appropriate action to address these problems; 

(c) on the basis of best practice, develop standard clauses the use of which would ensure full 
compliance of future intergovernmental agreements with Union energy legislation. 

Article 7 
Confidentiality 

When  providing  information  to  the  Commission  in  accordance  with  Article  3,  the  Member 
State may indicate whether any part of the information, in particular commercial information, 
is  to  be  regarded  as  confidential  and  whether  the  information  provided  can  be  shared  with 
other  Member  States.  The  Commission  shall  respect  these  indications.  Requests  for 
confidentiality do not restrict access of the Commission itself to confidential information. 

Article 8 
Review 

1.  Four  years  after  its  entry  into  force,  the  Commission  shall  submit  a  report  on  the 
application  of  this  Decision  to  the  European  Parliament,  the  Council  and  the  European 
Economic and Social Committee. 

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2.  The  report  shall  in  particular  assess  whether  this  Decision  provides  for  a  sufficient 
framework  in  order  to  ensure  full  compliance  of  intergovernmental  agreements  with  Union 
law and a high level of coordination between Member States with regard to intergovernmental 
agreements. 

Article 9 
Entry into force 

This Decision shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 10 
Addressees 

This Decision is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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