Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on establishing an information exchange mechanism with regard to intergovernmental agreements and non-binding instruments between Member States and third countries in the field of energy and repealing Decision No 994/2012/EU
Date: 2016-02-16
Institutions: Directorate-General for Energy, European Commission
Subjects: EU Member State, energy cooperation, energy supply, exchange of information, intergovernmental cooperation (EU), international agreement, self-sufficiency in energy, single market, third country

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   EUROPEAN COMMISSION  Brussels, 16.2.2016  COM(2016) 53 final 2016/0031 (COD)   Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on establishing an information exchange mechanism with regard to intergovernmental agreements and non-binding instruments between Member States and third countries in the field of energy and repealing Decision No 994/2012/EU (Text with EEA relevance) {SWD(2016) 27 final} {SWD(2016) 28 final}  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  Energy  Union  Strategy  (COM  (2015)80)  indicates  that:  "an  important  element  in 
ensuring energy (and in particular gas) security is full compliance of agreements related to 
the  buying  of  energy  from  third  countries  with  EU  law".  In  the  same  spirit,  the  European 
Council in its conclusions of 19 March 2015 also called for "full compliance with EU law of 
all  agreements  related  to  the  buying  of  gas  from  external  suppliers,  notably  by  reinforcing 
transparency of such agreements and compatibility with EU energy security provisions". 

An  information  exchange  mechanism  with  regard  to  intergovernmental  agreements  (IGAs) 
between  Member  States  and  third  countries  in  the  field  of  energy  was  established  by  a 
Decision  adopted  by  the  Parliament  and  Council  on  25  October  2012,  which  entered  into 
force on 17 November 2012 (the IGA Decision)1. The main feature of this mechanism is that 
the  Commission  carries  out  compliance  checks  of  IGAs  after  a  Member  State  and  a  third 
country have concluded such agreements. 

Since 2012, the Commission has gained significant experience in the implementation of this 
mechanism.  In  general,  as  analysed  in  the  Impact  Assessment  on  the  revision  of  the  IGA 
Decision and in the report to the European Parliament and to the Council on the application of 
the IGA Decision, the Commission's assessment is that while the current system is useful for 
receiving information on existing IGAs and for identifying problems posed by them in terms 
of  their  compatibility  with  EU  law,  it  is  not  sufficient  to  solve  such  incompatibilities.  In 
particular,  as  stated  in  the  Energy  Union  Strategy:  "in  practice,  we  have  seen  that 
renegotiating such agreements is very difficult. The positions of the signatories have already 
been fixed, which creates political pressure not to change any aspect of the agreement". 

Therefore,  Commission's  involvement  before  a  Member  State  and  a  third  country  have 
concluded  such  agreements  would  provide  an  essential  added  value  by  resolving  potential 
conflicts between obligations of Member States under international treaty law and EU law. 

In this context the revision of the IGA Decision has two main objectives: 

(1)  Ensure  the  compliance  of  IGAs  with  EU  law  to  ensure  the  proper  functioning  of  the 
internal market and enhance the EU's energy security; and 

(2) Enhance the transparency of IGAs in order to increase the cost effectiveness of the EU's 
energy supply and solidarity between Member States. 

Consistency with existing policy provisions in the policy area 

This  proposal  is  consistent  with  a  number  of  measures  adopted  at  EU  level  to  improve  the 
functioning of the EU energy market and to increase the EU's energy security.  

The review of the current IGA Decision forms part of the deliverables of the Energy Union 
Strategy  adopted in  February  2015,  which  sets  the  overall context  and governance structure 
for a renewed EU energy policy.  

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Decision  994/2012/EU  establishing  an 
to 
intergovernmental agreements (IGAs) between Member States and third countries in the field of energy 

information  exchange  mechanism  with 

regard 

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The  Energy  Union  Strategy  foresees  in  its  Action  Plan  a  number  of  actions  to  increase  the 
energy  security  of  the  EU.  This  proposal  should  therefore  be  seen  in  the  context  of  other 
initiatives  including  the  revision  of  the  Security  of  Gas  Supply  Regulation2.  The  IGA 
Decision  is  closely  linked  to  the  Security  of  Gas  Supply  Regulation,  but  the  scope  of  the 
information exchange mechanism it establishes is wider. The IGA Decision defines IGAs as 
"legally  binding  agreements  between  one  or  more  Member  States  and  one  or  more  third 
countries having an impact on the operation or the functioning of the internal energy market 
or  on  the  security  of  supply  in  the  Union".  The  IGA  Decision  thus  applies  to  all  energy 
commodity related supply and infrastructure IGAs, in particular gas, oil and electricity. Only 
IGAs concerning matters within the purview of the Euratom Treaty are not covered. For these 
IGAs Article 103 of the Euratom Treaty provides for a specific ex-ante procedure. 

The scope of the IGA Decision excludes commercial contracts between commercial entities3. 
This proposal does not extend the scope of the IGA decision to commercial contracts related 
to  IGAs  since,  as  indicated  in  the  Energy  Union  Strategy,  this  issue  is  covered,  for 
commercial gas supply contracts, by the proposal for a review of the Security of Gas Supply 
Regulation. 

Consistency with other Union policies 

The  proposal  does  not  only  contribute  to  the  EU  energy  policy.  By  ensuring  compliance  of 
IGAs with EU law, it also contributes to policies in other areas of Union law such as internal 
market, competition and public procurement. 

2. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  objectives  of  this  proposal,  mentioned  above,  are  in  line  with  the  following  EU  Treaty 
goals: 

 

 

To ensure security of energy supply in the Union (Article 194(1) (b) TFEU); 

To  establish  a  functioning  internal  energy  market,  in  the  spirit  of  solidarity 
between the Member States (Article 3(3) TEU; Article 194(1) TFEU). 

Article 194 TFEU is therefore the legal basis for the proposed revised IGA Decision, as it was 
for the current IGA Decision adopted by the Parliament and Council on 25 October 2012. 

Subsidiarity (for non-exclusive competence)  

Necessity of EU action: The legal  basis for the revision of the IGA Decision is  Article  194 
TFEU.  The  IGA  Decision  was  adopted  in  2012  on  this  basis,  respecting  the  subsidiarity 
principle. However, the introduction of an obligatory ex-ante check by the Commission would 
change the IGA Decision. This change would represent a shift of tasks from Member States to 
the  EU.  As  explained  above,  experience  shows  that  assessment  by  Member  States  is  not 
sufficient  and  satisfactory  to  ensure  compliance  of  IGAs  with  EU  law  and  creates  legal 
uncertainty. The Commission's ex-ante involvement would provide an essential added value 

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Regulation  of  the  European  Parliament  and  of  the  Council,  concerning  measures  to  safeguard  the 
security of gas supply and repealing Regulation (EU) No 994/2010 (ref XXX) 
Recital  7  of  the  IGA  Decision  stresses  that  this  Decision  does  not  create  obligations  as  regards 
agreements  between commercial  entities.  This  recital  makes  also  clear  that  Member  States  may,  on a 
voluntary basis, communicate to the Commission commercial agreements that are explicitly referred to 
in IGAs. 

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for  resolving  problems  (notably  conflicts  between  obligations  of  Member  States  under 
international treaty law and EU law). 

EU  added-value:  The  progressive  integration  of  energy  infrastructure  and  markets,  the 
common  reliance  on  external  suppliers,  the  need  to  ensure  solidarity  in  times  of  crisis,  all 
imply  that  fundamental  political  decisions  on  energy  should  not  be  taken  exclusively  at 
national level without involvement of neighbouring countries and the EU. The IGA Decision 
stands  at  the  cross-roads  of  the  external  dimension  (as  it  involves  agreements  with  third 
countries) and of the internal market (as non-compliant provisions such as destination clauses 
have a negative impact on the free flow of energy products within the internal market). There 
is therefore a clear added value to reinforce the cooperation and transparency at EU level in 
the framework of this proposal. 

Proportionality 

The objectives of this proposal are to: 

(1)  Ensure  the  compliance  of  IGAs  with  Union  law  to  ensure  the  proper  functioning  of  the 
internal market and enhance the EU's energy security; and 

(2)  Enhance  the  transparency  of  IGAs  to  increase  the  cost  effectiveness  of  the  EU's  energy 
supply and solidarity between Member States. 

To reach these objectives it is proposed essentially a mix of optional model clauses and an ex-
ante assessment of the IGAs before their signature. As explained in the Impact Assessment on 
the  revision  of  the  IGA  Decision,  keeping  the  current  system  would  not  be  efficient.  In 
particular, none of the IGAs identified by the Commission as problematic has been terminated 
so far.  

Similarly, the Impact Assessment concludes that the option of developing mandatory model 
clauses could help Member States avoiding incompatibility with Union law but that the wide 
range of situations and business models under the scope of the IGA Decision will, however, 
not  allow  developing  model  clauses  precise  enough  in  order  to  provide  legal  certainty  and 
substitute an in-depth ex-ante assessment of a final draft text. Furthermore, depending on the 
position  and  bargaining  power  of  the  third  country,  Member  States  might  not  succeed  in 
including particular model clauses in an IGA. 

The Impact Assessment therefore concluded that the compulsory ex-ante control option is the 
least stringent approach to avoid non-compliant IGAs. 

Choice of the instrument 

The existing legislation in the area is the IGA Decision. This proposal aims at reinforcing and 
enhancing  measures  and  procedures  provided  for  in  the  existing  Decision.  Therefore  it  was 
appropriate to  choose a  Decision  as an instrument. Given the amount  and scope of the new 
elements,  the  draft  Decision  proposes  a  repeal  and  replacement  of  the  current  Decision  No 
994/2012/EU instead of a modification of the current provisions.  

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3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

This proposal builds on the experience that the Commission has gained on the implementation 
of  the  IGA  Decision  since  it  entered  into  force  on  17  November  2012  and  which  has  been 
analysed  in  the  evaluation  report  annexed  to  the  Impact  Assessment  on  the  revision  of  the 
IGA  Decision  and  in  the  Report  to  the  European  Parliament  and  to  the  Council  on  the 
application of the current IGA Decision. 

These  reports  conclude,  as  regards  the  effectiveness  of  the  IGA  Decision,  that  its  current 
provisions (in particular the ex-post nature of the compatibility check set out therein) have not 
resulted in the transformation of concluded non-compliant IGAs into compliant ones and have 
not directly impacted Member States' negotiations with third countries. In particular, no draft 
IGA has ever been submitted to the Commission on a voluntary basis for an ex-ante check. 
Therefore the IGA Decision in its present form is not considered effective. 

They  also  conclude  that  overall  the  costs  associated  with  the  current  IGA  Decision  are 
justified  by  the  benefits  it  provides  as  it  safeguards  the  functioning  of  the  internal  energy 
market  and  contributes  to  security  of  supply.  However,  the  IGA  Decision  could  be  more 
efficient if the compatibility checks it establishes were done ex-ante (instead of ex-post as at 
present).  This  would  considerably  enhance legal  certainty  and  avoid  costs  for  both  Member 
States and the Commission. 

Furthermore, these reports make clear that IGAs will continue to play a key role in the EU's 
energy  sector.  The  IGA  Decision  is  therefore  relevant  but  needs  to  adapt  to  the  changing 
nature of energy supplies and routes. They also underline that there is a clear EU-added value 
to the IGA Decision, as it reinforces cooperation and transparency at EU level and contributes 
to security of supply and the functioning of the internal energy market. 

Overall,  therefore,  these  reports  conclude  that  the  procedures  laid  down  by  the  current IGA 
Decision are not fully appropriate, with the main procedural issue in this regard being the ex-
post nature of the compatibility check under the current system, which was the result of tough 
inter-institutional negotiations when the IGA Decision was adopted in 2012. 

This proposal addresses the detected deficiencies. 

Stakeholder consultations 

A public consultation was organized between 28 July and 22 October 2015. The Commission 
received  some  25  responses  from  stakeholders,  including  Member  States  and  several 
associations  (regulatory  and  industry),  and  the  level  of  response  to  the  consultation  can  be 
considered satisfactory. 

All  respondents  underlined  the  importance  of  IGAs  to  security  of  energy  supply  and  the 
proper functioning of the internal energy market. As regards the need to strengthen the system 
established  by  the  IGA  Decision  and  the  way  in  which  this  could  best  be  done,  opinions 
among the respondent were divided: 

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A full report on the outcome of this public consultation is annexed to the Impact Assessment 
on  the  revision  of  the  IGA  Decision  and  the  non-confidential  answers  published  on  the 
Commission's website4. 

Collection and use of expertise 

Information related to the implementation of the IGA Decision is partly confidential, both due 
to  some  of  the  provisions  of  the  IGA  Decision  itself  (Article  4  –  Confidentiality)  or  due  to 
certain exceptions set out in Regulation 1049/20015 on public access to European Parliament, 
Council and Commission documents (Article 4 (1) (a), 3rd indent - Protection of international 
relations, Article 4 (5)  - Request by a Member State not to  disclose a document originating 
from that Member State without its prior agreement or Article 4 (2), 2nd indent - Protection of 
court proceedings and legal advice). Inter alia for these confidentiality reasons, it was decided 
not to develop an external study on the implementation of the current IGA Decision. 

Impact assessment 

All proposed measures were supported by the Impact Assessment. The positive opinion of the 
Regulatory Scrutiny Board was delivered on 4 December 2015. 

Five policy options have been considered in the Impact Assessment: 

Option  1:  Baseline:  The  IGA  Decision  remains  unchanged  but  the  infringement  policy  is 
strengthened 

Option 2: Model clauses for inclusion in IGAs which do not infringe EU law/guidelines 

Option 3: Obligatory ex-ante assessment of IGAs by the Commission 

Option 4: Obligatory participation of the Commission as an observer in IGAs negotiations 

Option 5: Commission to negotiate EU agreements in the field of energy 

The  Impact  Assessment  concluded  that  the  most  cost  effective,  efficient  and  proportionate 
option was option 3. 

Regulatory fitness and simplification 

The proposal will cause a limited increase in administrative burden. 

Fundamental rights 

Not applicable 

4. 

BUDGETARY IMPLICATIONS 

The proposal does not have implications on the EU budget. 

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https://ec.europa.eu/energy/en/consultations/consultation-review-intergovernmental-agreements-
decision  
OJ L 145, 31.5.2001, p.43 

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5. 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  IGA  Decision  contains  a  review  clause  in  its  Article  8.  This  article  requires  the 
Commission to prepare a report by 1 January 2016 and every three years thereafter. 

In addition to the evaluation report in annex to the Impact Assessment on the revision of the 
IGA decision, a first report to the European Parliament and to the Council accompanies this 
proposal for a review of the IGA Decision. 

For  the  future,  the  Commission  intends  to  produce,  as  requested  in  Article  8  of  the  IGA 
Decision, a subsequent report by 1 January 2020. 

Finally, the Commission, in its role as guardian of the Treaties, will pursue when necessary 
the  procedure  set  out  in  Article  258  of  the  Treaty  in  the  event  any  Member  State  fails  to 
respect its duties concerning the implementation and application of Union law. 

Explanatory documents (for directives) 

Not applicable. 

Detailed explanation of the specific provisions of the proposal 

The revised Decision contains the following elements: 

1. 

Notification obligations with regard to intergovernmental agreements: 

 

 

 

 

 

 

 

 

Obligation  of  Member  State  to  inform  the  Commission  of  its  intent  to  enter 
into  negotiations  with 
regarding  conclusion  of  new 
intergovernmental agreements or amending existing ones; 

third  country 

Commission should be kept informed once such notice of negotiation is given; 

Commission services may provide Member State with advice on how to avoid 
incompatibility  of  the  intergovernmental  agreement  with  Union  law  or  Union 
policy  positions  adopted  in  Council  or  European  Council  conclusions  where 
Member State gives Commission notice of negotiations; 

Obligation of Member State to notify to Commission a draft intergovernmental 
agreement  or  amendment  with  all  accompanying  documents  as  soon  as 
agreement  has  been  reached  in  the  negotiations  by  the  parties  on  all  main 
elements, for Commission's ex-ante assessment; 

Obligation  of  Member  State  to  notify  to  Commission  intergovernmental 
agreement or amendments with all accompanying documents upon ratification; 

Obligation  of  Member  State 
to  Commission  all  existing 
to  notify 
intergovernmental  agreements  or  amendments  with  all  accompanying 
documents; 

Agreements between undertakings are not covered by notification obligations, 
but may be submitted on voluntary basis; 

Obligation of Commission to share information and documents it has received 
with other Member States in accordance with confidentiality provisions. 

2. 

Assessment by the Commission: 

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 

 

Obligation  of  Commission 
to  perform  ex-ante  assessment  of  draft 
intergovernmental agreements or amendments and to inform Member State of 
possible  doubts  it  may  have  as  to  the  compatibility  with  Union  law,  in 
particular  with  internal  energy  market  legislation  and  Union  competition  law 
within six weeks; 

Obligation  of  Commission  to  inform  Member  State  of  its  opinion  on 
compatibility  of  intergovernmental  agreement  or  amendment  with  Union  law 
within 12 weeks of date of notification; 

  Member  State  shall  not  conclude  proposed  intergovernmental  agreement  or 
amendment  until  Commission  informed  Member  State  of  any  doubts  and  its 
opinion.  When  concluding  the  proposed  intergovernmental  agreement  or 
amendment, Member State shall take utmost account of Commission's opinion; 

 

Obligation  of  Commission  to  perform  ex-post  assessment  of  existing 
intergovernmental agreements or amendments and to inform Member States in 
case  of  doubts  as  to  the  compatibility  of  these  agreements  with  Union  law 
within nine months of notification. 

3. 

Notification  obligations  and  assessment  by  the  Commission  with  respect  to  non-
binding instruments: 

 

 

 

Obligation of Member State to submit to Commission existing and future non-
binding instruments with all accompanying documents; 

Commission  may  perform  ex-post  assessment  of  submitted  non-binding 
instruments  and  inform  Member  State  accordingly  if  it  considers  measures 
implementing the non-binding instrument could conflict with Union law; 

Obligation  of  Commission  to  share  documents  it  has  received  with  other 
Member States in accordance with confidentiality provisions. 

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2016/0031 (COD) 

Proposal for a 

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on establishing an information exchange mechanism with regard to intergovernmental 
agreements and non-binding instruments between Member States and third countries in 
the field of energy and repealing Decision No 994/2012/EU 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 194 (2) 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 Committee6,  

Having regard to the opinion of the Committee of the Regions,  
Acting in accordance with the ordinary legislative procedure, 7 

Whereas: 

(1) 

(2) 

The proper functioning of the internal energy market requires that the energy imported 
into the Union be fully governed by the rules establishing the internal energy market. 
An  internal  energy  market  that  does  not  function  properly  puts  the  Union  in  a 
vulnerable and disadvantageous position with regard to security of energy supply, and 
undermines its potential benefits to European consumers and industry. 

The  objective  of  the  Energy  Union  Strategy,  as  adopted  by  the  Commission  on  25 
February 20158, is to give consumers secure, sustainable, competitive and affordable 
energy. More precisely, the Energy Union Strategy emphasizes that full compliance of 
agreements related to the buying of energy from third countries with Union law is an 
important element in ensuring energy security, building on the analysis already carried 
out  in  the  European  Energy  Security  Strategy  of  May  20149.  In  the  same  spirit,  the 
European Council in its conclusions of 19 March 2015 called for full compliance with 
Union  law  of  all  agreements  related  to  the  buying  of  gas  from  external  suppliers, 
notably by reinforcing transparency of such agreements and compatibility with Union 
energy security provisions. 

6 
7 
8 
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OJ C , , p. . 
OJ C , , p. . 
COM(2015)80 
COM (2014)330 

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(3) 

(4) 

(5) 

(6) 

(7) 

Decision  No  994/2012/EU  of  the  European  Parliament  and  of  the  Council  10  was 
useful  for  receiving  information  on  existing  intergovernmental  agreements  and  for 
identifying problems posed by them in terms of their compatibility with Union law. 

However,  Decision  No  994/2012/EU  proved  ineffective  in  terms  of  ensuring 
compliance  of  intergovernmental  agreements  with  Union  law.  That  Decision  mainly 
relied  on  the  assessment  of  intergovernmental  agreements  by  the  Commission  after 
they were concluded by the Member States with a third country. Experience gained in 
the  implementation  of  the  Decision  994/2012/EU  demonstrated  that  such  an  ex-post 
assessment  does  not  fully  exploit  the  potential  for  ensuring  compliance  of 
intergovernmental  agreement  with  Union  law.  In  particular,  intergovernmental 
agreements  often  contain  no  appropriate  termination  or  adaptation  clauses  which 
would allow Member States to bring the intergovernmental agreement in compliance 
with Union law within a reasonable period of time. Furthermore, the positions of the 
signatories have already been fixed, which creates political pressure not to change any 
aspect of the agreement. 

In  order  to  avoid  any  incompliance  with  Union  law  and  enhance  transparency, 
Member States should inform the Commission of their intent to enter into negotiations 
with  regard  to  new  intergovernmental  agreements  or  amendments  to  existing 
intergovernmental  agreements  as  soon  as  possible.  The  Commission  should  be  kept 
informed regularly of the progress of the negotiations. Member States should have the 
possibility to invite the Commission to participate in the negotiations as an observer. 

During the negotiations the Commission should have the possibility to advice on how 
to avoid incompatibility with Union law. In particular, the Commission could develop, 
together with Member States, optional model clauses or  guidelines. The Commission 
should have the possibility to draw attention to the Union’s energy policy objectives 
and  the  principle  of  solidarity  between  Member  States  and  Union  policy  positions 
adopted in Council or European Council conclusions. 

In order to ensure compliance with Union law, Member States should notify the draft 
intergovernmental agreement to the Commission before it becomes legally binding for 
the  parties  (ex-ante).  In  a  spirit  of  cooperation,  the  Commission  should  support  the 
Member  State  in  identifying  compliance  issues  of  the  draft  intergovernmental 
agreement or amendment. The respective Member State would then be better prepared 
to  conclude  a  Union  law  compliant  agreement.  The  Commission  should  have 
sufficient time for such an assessment in order to provide for as much legal certainty 
as  possible  while  avoiding  undue  delays.  In  order  to  fully  benefit  from  the 
Commission's  support  Member  States  should 
from  concluding  an 
intergovernmental agreement until the Commission has informed the Member State of 
its  assessment.  The  Member  States  should  take  all  necessary  steps  to  find  a  suitable 
solution to eliminate the incompatibility identified. 

refrain 

(8) 

In  light  of  the  Energy  Union  Strategy,  transparency  with  regard  to  past  and  future 
intergovernmental  agreements  continues  to  be  of  upmost  importance.  Therefore, 
Member  States  should  continue  notifying  to  the  Commission  existing  and  future 
intergovernmental  agreements,  whether  they  have  entered  into  force  or  are  being 
applied provisionally within the meaning of Article 25 of the Vienna  Convention  on 
the Law of Treaties, and new intergovernmental agreements.  

10 

OJ L 299, 27.10.2012, p. 13. 

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(9) 

The Commission should assess the compatibility with Union law of intergovernmental 
agreements that entered into force or are applied provisionally prior to the entry into 
force  of  this  Decision  and  inform  the  Member  States  accordingly.  In  the  event  of 
incompatibility,  Member  States  should  take  all  necessary  steps  to  find  a  suitable 
solution to eliminate the incompatibility identified. 

(10)  This Decision should only apply to intergovernmental agreements that have an impact 
on the internal energy market or the security of energy supply in the Union. In case of 
doubt,  Member  States  should  consult  the  Commission.  In  principle,  agreements  that 
are no longer in force or are no longer applied do not have an impact on the internal 
energy market or on the security of energy supply in the Union and should therefore 
not be covered by this Decision. 

(11)  Member  States  establish  relations  to  third  countries  not  only  by  concluding 
intergovernmental agreements, but also in the form of non-binding instruments. Even 
if legally non-binding, such  instruments can  be used  to  set out  a  detailed framework 
for  energy  infrastructure  and  energy  supply.  In  this  respect  non-binding  instruments 
can  have  similar  impacts  on  the  internal  energy  market  as  intergovernmental 
agreements as their implementation might result in a violation of Union law. In order 
to ensure greater transparency regarding all measures applied by Member States that 
can have an impact on the internal energy market and energy security, Member States 
should  therefore  submit  to  the  Commission,  ex  post,  also the  respective  non-binding 
instruments.  The  Commission  should  assess  the  submitted  non-binding  instruments 
and, if appropriate, inform the Member State accordingly. 

(12) 

Intergovernmental agreements or non-binding instruments which need to be notified in 
their entirety to the Commission on the basis of other Union acts or concern matters 
such  as  within  the  purview  of  the  Treaty  establishing  the  European  Atomic  Energy 
Community should not be covered by this Decision. 

(13)  This  Decision  should  not  create  obligations  as  regards  agreements  between 
undertakings.  However,  Member  States  should  be  free  to  communicate  to  the 
Commission,  on  a  voluntary  basis,  such  agreements  that  are  referred  to  explicitly  in 
intergovernmental agreements or non-binding instruments. 

(14)  The  Commission  should  make  information  it  receives  available  to  all  other  Member 
States  in  secure  electronic  form.  The  Commission  should  respect  requests  from 
Member  States  to  treat  information  submitted  to  it  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 assessments. The Commission should be responsible for guaranteeing the 
application  of  the  confidentiality  clause.  Requests  for  confidentiality  should  be 
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 Council11. 

(15) 

If  a  Member  State  considers  an  intergovernmental  agreement  to  be  confidential,  it 
should provide the Commission with a summary of it for the purposes of sharing that 
summary with the other Member States. 

(16)  A permanent exchange of information on intergovernmental agreements at Union level 
should enable best practices to be developed. On the basis of those best practices, the 

11 

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  (OJ  L 299, 
27.10.2012, p. 13). 

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11 

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Commission,  where  appropriate  in  cooperation  with  the  European  External  Action 
Service  as  regards  the  Union’s  external  policies,  should  develop  optional  model 
clauses to be used in intergovernmental agreements between Member States and third 
countries.  The  use  of  such  model  clauses  should  aim  to  avoid  conflicts  of 
intergovernmental  agreements  with  Union  law,  in  particular  internal  energy  market 
rules  and  competition  law,  and  conflicts  with  international  agreements  concluded  by 
the  Union.  Their  use  should  be  optional,  and  it  should  be  possible  to  adapt  their 
content to any particular circumstance. 

(17)  The  improved  mutual  knowledge  of  existing  and  new  intergovernmental  agreements 
and  non-binding  instruments  should  allow  for  better  coordination  in  energy  matters 
between  Member  States  and  between  Member  States  and  the  Commission.  Such 
improved coordination should enable Member States to benefit fully from the political 
and  economic  weight  of  the  Union  and  enable  the  Commission  to  propose  solutions 
for problems identified in the area of intergovernmental agreements. 

(18)  The Commission should facilitate and encourage coordination between Member States 
with a view to enhancing the overall strategic role of the Union through a strong and 
effective coordinated approach to producer, transit, and consumer countries. 

(19)  Since  the  objective  of  this  Decision,  namely  the  exchange  of  information  between 
Member States and the Commission with regard to intergovernmental agreements and 
non-binding instruments in the field of energy, cannot be sufficiently achieved by the 
Member States but can rather, by reason of the effects of this Decision, applicable in 
all Member States, be better achieved at Union level, the Union may adopt measures, 
in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on 
European Union. In accordance with the principle of proportionality as set out in that 
Article,  this  Decision  does  not  go  beyond  what  is  necessary  in  order  to  achieve  this 
objective. 

(20)  The provisions of this Decision should be without prejudice to the application of the 
Union  rules  on  infringements,  State  aid  and  competition.  In  particular,  the 
Commission  has  the  right  to  launch  infringement  proceedings  in  accordance  with 
Article 258 of the Treaty on the Functioning of the European Union (TFEU), where it 
considers that a Member State has failed to fulfil its obligations under the TFEU. 

(21) 

In  2020,  the  Commission  should  assess  whether  this  Decision  is  sufficient  and 
effective in ensuring compliance of intergovernmental agreements with Union law and 
that  a  high  level  of  coordination  exists  between  Member  States  with  regard  to 
intergovernmental agreements in the field of energy. 

(22)  Decision No 994/2012/EU should be repealed. 

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 
and non-binding instruments in the field of energy as defined in Article 2, in order to 
optimise the functioning of the internal energy market. 

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2. 

This  Decision  shall  not  apply  to  intergovernmental  agreements  and  non-binding 
instruments which are already, in their entirety, subject to other specific notification 
procedures under Union law. 

Article 2 

Definitions 

For the purposes of this Decision the following definitions shall apply: 

(1) 

(2) 

(3) 

‘intergovernmental agreement’ means any legally binding agreement between one or 
more  Member  States  and  one  or  more  third  countries  having  an  impact  on  the 
operation  or  the  functioning  of  the  internal  energy  market  or  on  the  security  of 
energy supply in the Union; however, where such a legally binding agreement also 
covers  other  issues,  only  those  provisions  that  relate  to  energy,  including  general 
provisions applicable to those energy-related provisions, are deemed to constitute an 
‘intergovernmental agreement’; 

‘existing  intergovernmental  agreement’  means  an  intergovernmental  agreement 
which  entered  into  force  or  is  applied  provisionally  prior  to  the  entry  into  force  of 
this Decision; 

‘non-binding  instrument’  means  a  legally  non-binding  arrangement  between  one  or 
more  Member  States  and  one  or  more  third  countries,  such  as  a  memorandum  of 
understanding,  joint  declaration,  ministerial  joint  declaration,  joint  action  or  joint 
code of conduct, which contains interpretation of Union law, sets the conditions for 
energy  supply  (such  as  volumes  and  prices)  or  the  development  of  energy 
infrastructures; 

(4) 

'existing  non-binding  instrument'  means  a  non-binding  instrument  signed  or 
otherwise agreed prior to the entry into force of this Decision. 

1. 

2. 

Article 3 

Notification obligations with respect to intergovernmental agreements 

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.  

Where  the  Member  State  gives  the  Commission  such  notice  of  negotiations,  the 
Member  State  concerned  should  keep  the  Commission  regularly  informed  of  the 
progress of the negotiations. 

intergovernmental  agreement  or  an  amendment 

As soon as an agreement has been reached by the parties on all the main elements of 
a  draft 
to  an  existing 
intergovernmental  agreement,  but  before  the  closure  of  formal  negotiations,  the 
Member  State  concerned  shall  notify  to  the  Commission  this  draft  agreement  or 
amendment together with any annexes thereto for ex-ante assessment in accordance 
with Article 5. 

Where  the  draft  intergovernmental  agreement  or  amendment  to  an  existing 
intergovernmental agreement refers explicitly to other texts, the respective Member 
State shall also submit those other texts in so far as they contain elements which may 

EN 

13 

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3. 

4. 

5. 

1. 

2. 

3. 

1. 

have an impact on the functioning of the internal energy market or on the security of 
energy supply in the Union. 

Upon  ratification  of  an  intergovernmental  agreement  or  of  an  amendment  to  an 
intergovernmental  agreement,  the  Member  State  concerned  shall  notify  the 
intergovernmental  agreement  or  the  amendment,  including  any  annexes  thereto,  to 
the Commission.  

the 

ratified 

intergovernmental  agreement  or  amendment 

Where 
the 
intergovernmental  agreement  refers  explicitly  to  other  texts,  the  Member  State 
concerned shall also submit those other texts in so far as they contain elements which 
may  have  an  impact  on  the  functioning  of  the  internal  energy  market  or  on  the 
security of energy supply in the Union. 

to 

The obligation to notify to the Commission according to paragraphs 2 and 3 does not 
apply in respect of agreements between undertakings. 

All notifications pursuant to paragraphs 1 to 3 of this Article, Article 6(1) and (2) and 
Article 7(1) and (2) shall be made through a web-based application provided by the 
Commission.  The  periods  referred  to  in  Article  5(1)  and  (2)  and  Article  6(3)  shall 
start to run on the date when the complete notification file has been registered in the 
application.  

Article 4 

Assistance from the Commission 

Where  a  Member  State  gives  the  Commission  notice  of  negotiations  pursuant  to 
Article  3(1),  the  Commission  services  may  provide  it  with  advice  on  how  to  avoid 
the  incompatibility  of  the  intergovernmental  agreement  or  of  the  amendment  to  an 
existing  intergovernmental  agreement  under  negotiation  with  Union  law.  That 
Member  State  may  also  request  the  assistance  of  the  Commission  in  those 
negotiations. 

At the request of the Member State concerned, or at the request of the Commission 
and with the written approval of the Member State concerned, the Commission may 
participate in the negotiations as an observer. 

Where the Commission participates in the negotiations as an observer, it may provide 
the Member State concerned with advice on how to avoid the incompatibility of the 
intergovernmental agreement or amendment under negotiation with Union law. 

Article 5 

Assessment by the Commission 

The Commission shall, within six weeks of the date of notification of the complete 
draft  intergovernmental  agreement  or  amendment,  including  annexes  thereto, 
pursuant  to  Article  3(2),  inform  the  Member  State  concerned  of  any  doubts  it  may 
have as to the compatibility of the draft intergovernmental agreement or amendment 
with  Union  law,  in  particular  with  internal  energy  market  legislation  and  Union 
competition  law.  In  the  absence  of  a  response  from  the  Commission  within  that 
period, the Commission shall be deemed not to have any such doubts. 

2. 

Where the Commission informs the Member State concerned pursuant to paragraph 1 
that it has doubts, it shall inform the Member State concerned of its opinion on the 

EN 

14 

   EN 

3. 

4. 

compatibility  with  Union  law,  in  particular  with  internal  energy  market  legislation 
and Union competition law, of the draft intergovernmental agreement or amendment 
concerned within 12 weeks of the date of notification referred to in paragraph 1. In 
the absence of an opinion from the Commission within that period, the Commission 
shall be deemed not to have raised any objections. 

With  the  approval  of  the  Member  State  concerned,  the  periods  referred  to  in 
paragraphs 1 and 2 may be extended. The periods referred to in paragraphs 1 and 2 
shall be shortened in agreement with the Commission if circumstances so warrant. 

The  Member  State  shall  not  sign,  ratify  or  agree  to  the  draft  intergovernmental 
agreement  or  amendment  to  an  existing  intergovernmental  agreement  until  the 
Commission  has  informed  the  Member  State  of  any  doubts,  in  accordance  with 
paragraph  1,  or,  where  applicable,  has  issued  its  opinion  in  accordance  with 
paragraph 2, or, in the absence of a response or opinion from the Commission, until 
the periods referred to in paragraphs 1 or, where applicable, 2, have elapsed. 

When  signing,  ratifying  or  agreeing  to  an  intergovernmental  agreement  or 
amendment,  the  Member  State  concerned  shall  take  utmost  account  of  the 
Commission's opinion referred to in paragraph 2. 

Article 6 

Notification obligations and assessment by the Commission with respect to existing 
intergovernmental agreements 

1. 

By  [3  months  following  the  entry into  force  of  this  Decision]  at  the latest  Member 
States  shall  notify  to  the  Commission  all  existing  intergovernmental  agreements, 
including annexes and amendments thereto. 

Where the existing intergovernmental agreement refers explicitly to other texts, the 
Member State concerned shall also submit those other texts in so far as they contain 
elements which may have an impact on the functioning of the internal energy market 
or on the security of energy supply in the Union. 

The  obligation  to  notify  to  the  Commission  according  to  this  paragraph  does  not 
apply in respect of agreements between undertakings. 

Existing  intergovernmental  agreements  which  have  already  been  notified  to  the 
Commission in accordance with Article 3(1) or (5) of Decision No 994/2012/EU, or 
point (a) of Article 13(6) of Regulation (EU) No 994/2010 at the date of entry into 
force of this Decision shall be considered as having been notified for the purposes of 
paragraph 1 of this Article, provided that the notification meets the requirements of 
that paragraph. 

The  Commission  shall  assess  intergovernmental  agreements  notified  in  accordance 
with  paragraph  1  or  2.  Where,  following  its  first  assessment,  the  Commission  has 
doubts as to the compatibility of those agreements with Union law, in particular with 
internal energy market legislation and Union competition law, the Commission shall 
inform  the  Member  States  concerned  accordingly  within  nine  months  of  the 
notification of those agreements.  

2. 

3. 

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Notification obligations and assessment by the Commission with respect to non-binding 
instruments  

Article 7 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

Upon  adopting  a  non-binding  instrument  or  an  amendment  to  a  non-binding 
instrument, the Member State concerned  shall notify the non-binding instrument or 
the amendment, including any annexes thereto, to the Commission.  

Where the non-binding instrument or the amendment to the non-binding instrument 
refers  explicitly to  other texts, the Member State concerned shall also submit those 
other  texts  in  so  far  as  they  contain  elements  which  may  have  an  impact  on  the 
functioning of the internal energy market or on the security of energy supply in the 
Union.  

By  [3  months  following  the  entry  into  force  of  this  Decision]  at  the latest  Member 
States shall notify to the Commission all existing non-binding instruments, including 
annexes and amendments thereto.  

Where  the  existing  non-binding  instrument  refers  explicitly  to  other  texts,  the 
Member State concerned shall also submit those other texts in so far as they contain 
elements which may have an impact on the functioning of the internal energy market 
or on the security of energy supply in the Union.  

The obligation to notify to the Commission according to paragraphs 1 and 2 does not 
apply in respect of agreements between undertakings. 

4.  Where,  following  its  first  assessment,  the  Commission  considers  that  the 
measures implementing the non-binding instrument notified to it under paragraphs 1 
and  2  could  conflict  with  Union  law,  in  particular  with  internal  energy  market 
legislation  and  Union  competition  law,  the  Commission  may  inform  the  Member 
State concerned accordingly. 

Article 8 

Transparency and confidentiality 

When  providing  information  to  the  Commission  in  accordance  with  Article  3(1)  to 
(3), Article 6(1) and Article 7(1) and (2), a Member State may indicate whether any 
part of the information, be it commercial or other information the disclosure of which 
could harm the activities of the parties involved, is to be regarded as confidential and 
whether the information provided can be shared with other Member States.  

A Member State shall make such an indication with regard to the existing agreements 
referred  to  in  Article  6(2)  by  [3  months  following  the  entry  into  force  of  this 
Decision] at the latest. 

Where  a  Member  State  has  not  identified  the  information  as  confidential  in 
accordance with paragraph 1, the Commission shall make that information accessible 
in secure electronic form to all other Member States. 

intergovernmental  agreement,  an  amendment 

Where a Member State has identified as confidential in accordance with paragraph 1 
an  existing 
to  an  existing 
intergovernmental agreement, a new intergovernmental agreement, an existing non-
binding  instrument,  an  amendment  to  an  existing  non-binding  instrument  or  a  new 
non-binding  instrument,  that  Member  State  shall  make  available  a  summary  of  the 
information submitted.  

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That  summary  shall  contain  at  least  the  following  information  regarding  the 
intergovernmental agreement, non-binding instrument or amendment in question: 

(a) 

(b) 

(c) 

the subject matter; 

the aim and the scope; 

the duration; 

(d) 

the parties; 

(e) 

information on the main elements. 

4. 

5. 

This  paragraph  shall not  apply  to information submitted in accordance with  Article 
3(1) and (2). 

The Commission shall make the summaries referred to in paragraph 3 accessible in 
electronic form to all other Member States. 

Requests  for  confidentiality  under  this  Article  shall  not  restrict  the  access  of  the 
Commission  itself  to  confidential  information.  The  Commission  shall  ensure  that 
access to the confidential information is strictly limited to the Commission services 
for which it is absolutely necessary to have the information available. 

Article 9 

Coordination among Member States 

The  Commission  shall  facilitate  and  encourage  coordination  among  Member  States  with  a 
view to: 

(a) 

(b) 

(c) 

(d) 

1. 

2. 

reviewing  developments  in  relation  to  intergovernmental  agreements  and  non-
binding  instruments  and  striving  for  consistency  and  coherence  in  the  Union’s 
external energy relations with producer, transit, and consumer countries; 

identifying common problems in relation to intergovernmental agreements and non-
binding  instruments  and  considering  appropriate  action  to  address  those  problems 
and, where appropriate, proposing solutions; 

on  the  basis  of  best  practices  and  in  consultation  with  Member  States,  developing 
optional model clauses, which, if applied, would significantly improve compliance of 
future intergovernmental agreements and non-binding instruments with Union law; 

supporting,  where  appropriate,  the  development  of  multilateral  intergovernmental 
agreements  or  non-binding  instruments  involving  several  Member  States  or  the 
Union as a whole. 

Article 10 

Reporting and review 

By  1  January  2020  at  the  latest,  the  Commission  shall  submit  a  report  on  the 
application of  this  Decision  to  the European  Parliament,  the  Council, the  European 
Economic and Social Committee and the Committee of the Regions. 

The  report  shall,  in  particular,  assess  the  extent  to  which  this  Decision  promotes 
compliance  of  intergovernmental  agreements  and  non-binding  instruments  with 
Union  law  and  a  high  level  of  coordination  between  Member  States  with  regard  to 
intergovernmental  agreements  and  non-binding  instruments.  It  shall  also  assess  the 
impact  that  this  Decision  has  on  Member  States’  negotiations  with  third  countries 

EN 

17 

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and  whether  the  scope  of  this  Decision  and  the  procedures  it  lays  down  are 
appropriate. 

Decision No 994/2012/EU is repealed.  

Article 11 

Repeal 

Article 12 

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 13 

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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