COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the Proposal for a Directive amending Directive (EU) 2018/2001 of the European Parliament and of the Council, Regulation (EU) 2018/1999 of the European Parliament and of the Council and Directive 98/70/EC of the European Parliament and of the Council as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652
Date: 2021-07-14
Institutions: Directorate-General for Energy, European Commission
Subjects: EU energy policy, energy consumption, energy efficiency, energy production, energy saving, greenhouse gas, pollution control measures, reduction of gas emissions, renewable energy, renewable resources

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 14.7.2021  SWD(2021) 620 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the Proposal for a Directive amending Directive (EU) 2018/2001 of the European Parliament and of the Council,  Regulation (EU) 2018/1999 of the European Parliament and of the Council and Directive 98/70/EC of the European Parliament and of the Council  as regards the promotion of energy from renewable sources, and repealing Council Directive (EU) 2015/652 {COM(2021) 557 final} - {SEC(2021) 657 final} - {SWD(2021) 621 final} - {SWD(2021) 622 final}  
 
 
Subsidiarity Grid 

-  As proposed by the Committee of the Regions with guidance in blue  

-  Obviously, the answers to the questions below, the explanatory memorandum and – if 

applicable – the impact assessment should be consistent. This may require some iterations.  

-  Please try to stay under 10 pages.  

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

Article  194(2)  of  the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  which  provides  the 
legal basis for proposing measures to develop new and renewable forms of energy, one of the goals 
of the Union’s energy policy, set out in Article 194(1)(c) TFEU. REDII, which will be amended by this 
proposal, was also adopted under Article 194(2) TFEU in 2018. Article 114 TFEU, the internal market 
legal  base,  is  added  in  order  to  amend  Directive  98/70/EC  on  fuel  quality,  which  is  based  on  that 
Article.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of renewable energy policy, the Union’s competence is shared. 

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

The  Inception  Impact  Assessment  (Roadmap)  was  published  for  feedback  from  3  August  to  21 
September  2020  and  374  replies  were  received,  from  stakeholders  from  21  Member  States  and  7 
non-EU countries. Most responses came from companies or business associations, followed by NGOs, 
anonymous  and citizens. In addition, the Commission launched an online  public consultation (OPC) 
on 17 November 2020 for 12 weeks, in line with the Commission Better Regulation rules. It contains 
multiple choice and open questions covering a wide range of issues on the revision of REDII. 39,046 
replies were received in total. Stakeholder views were also gathered in two workshops, the first one 
was  held  on  11  December  2020  (close  to  400  participants)  and  the  second  one  was  on  22  March 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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2021 (close to 1000 participants). 

The explanatory memorandum and the impact assessment both contain a section on the principle of 
subsidiarity and address this issue in the context of the options analysed, where appropriate. 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

The need for EU action 
A cost-efficient accelerated development of sustainable renewable energy within a more integrated 
energy system cannot be sufficiently achieved by Member States alone. An EU approach is needed to 
provide  the  right  incentives  to  Member  States  with  different  levels  of  ambition  to  accelerate,  in  a 
coordinated way, the energy transition from the traditional fossil fuel based energy system towards a 
more  integrated  and  more  energy-efficient  energy  system  based  on  renewables-based  generation. 
Taking into account the different energy policies and priorities among Member States, action at EU 
level  is  more  likely  to  achieve  the  required  increased  deployment  of  renewables  than  national  or 
local action alone.  
EU added value. 
EU  action  on  renewable  energy  brings  added  value  because  it  is  more  efficient  and  effective  than 
individual Member States’ actions, avoiding a fragmented approach by addressing the transition of 
the  European  energy  system  in  a  coordinated  way.  It  ensures  net  reduction  of  greenhouse  gas 
emissions  and  pollution,  protects  biodiversity,  harnesses  the  benefits  of  the  internal  market,  fully 
exploits the advantages of economies of scale and technological cooperation in Europe, and it gives 
investors certainty in an EU-wide regulatory framework. The achievement of an increased share of 
renewable  energy  in  final  EU  energy  consumption  depends  on  national  contributions  from  each 
Member State. These will be more ambitious and cost-effective if driven by an agreed common legal 
and policy framework. 

In the impact assessment, chapter 3 explains the need for EU action and its added value. 

Taking into account the different energy policies and priorities among Member States, action at EU 
level  is  more  likely  to  achieve  the  required  increased  deployment  of  renewables  than  national  or 
local  action  alone.  This  collective  effort  is  also  more  likely  to  succeed  in  reaching  Union  climate 
targets,  as  can  be  seen  by  the  2020  renewable  energy  target,  with  some  Member  States    likely to 
deliver below their national contribution but others  above, so that in total the contributions exceed 
the Union target. 

By acting at EU-level in combination with action at Member State level, several barriers to public and 
private  investments  can  be  tackled  and  this  will  effectively  supplement  and  reinforce  national  and 
local action. Addressing the lack of coordination between various bodies at national level as well as 
improving  administrative  and  technical  capacity  will  incentivise  cost-optimal  deployment  of 
renewables  at  city  and  community  level,  where  issues  such  as  heating,  cooling  and  hot  water  use 
remain key and are not decarbonising rapidly enough with more details under the assessment of the 
measures.  Simply  setting  targets  at  EU  levels  and  leaving  Member  States  complete  freedom  as  to 
how to achieve them would however not be an effective way to achieve the agreed targets, as has 
been recognised by the  co-legislators when they agreed the specific measures in the current REDII 
and  the  reporting  and  governance  structure  set out  in  Regulation 2018/1999.   It  also  risks  causing 
distortions to the internal market, and would lead to a less effective preservation and improvement 
of the environment, one of the specific aims of Article 194 TFEU. 

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2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

Not effectively. 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The issue of cross-border cooperation on support schemes for renewable energy and for offshore 
renewable energy, in particular joint offshore energy capacity planning per sea basin, are both 
considered in detail in the impact assessment and the impacts have been quantified to the extent 
possible. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

In accordance with Article 194(1) TFEU, one of the aims of Union energy policy shall be to promote 
the development of new and  renewable  forms of energy. If no action were  taken at level this aim 
would be jeopardised.  

In its Conclusions of 10 and 11 December 2020, the European Council endorsed a binding EU target 
of a net domestic reduction of at least 55% in greenhouse gas emissions by 2030 compared to 1990. 
Reaching this target without additional action regarding the deployment of renewable energy at EU 
level would not be cost efficient (see the detailed analysis included in the Impact Assessment).  

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Member States have shown, in their transposition and implementation of the first renewable energy 
Directive, that they can enact appropriate measures to reach the goals of the Directive. The text of 
REDII as agreed by the co-legislator, contains a number of measures binding and optional measures 
which will give Member States a sufficient range of possibilities.  

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

The  need  to  increase  the  use  of  renewable  energy  as  one  of  the  ways  to  reduce  greenhouse  gas 
emissions is a global issue. Some Member States have, historically, a greater reliance on fossil fuels, 
others use more biomass and others use more solar or wind energy. This does not change the nature 
of the problem, but rather the possible solutions to it. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The problems addressed by this initiative are widespread across the EU. 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No, the qualitative and quantitative analysis of the impacts of the planned policies on the Member 
States,  in  particular  the  economic  and  social  impacts,  do  not  point  to  the  conclusion  that  the 
Member States are overstretched (section 6 of the Impact Assessment). 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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differ across the EU? 

Member States will have sufficient room of manoeuvre in the implementation of the Directive 
considering also the availability of different renewable resources available at national, regional or 
local level.  

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

Yes, the objectives of the proposed action are better achieved at Union level. 

(a)  Are there clear benefits from EU level action?  

Yes,  it  sets  a  clear  and  common  framework  for  the  Member  States  and  increases  the  chances  of 
reaching the Union’s climate ambition. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The coordinated action of the EU and the Member States allows for cost-efficient achievement of the 
agreed targets, economies of scale in development and deployment of the necessary technologies as 
well as better functioning of the internal energy market by fostering cross-border cooperation. 

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

A coordinated action across the Member States aims at increasing cost-efficiency of the achievement 
of  the  agreed  climate  target  and  of  the  necessary  deployment  of  renewable  energy.  It  allows  for 
effective  tackling of existing barriers, and for increasing the integration of the  energy system, thus 
avoiding fragmentation and the related negative impacts. It also increases predictability of the policy 
framework for investors across the EU. 
A  specific  example  is  that  the  transport  target  will  now  be  expressed  in  terms  of  GHG  intensity 
reduction,  rather  than  leaving  Member  States  the  choice  between  the  GHG  and  energy  based 
approaches, and this will simplify reporting and allow better comparisons. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

Yes, as presented in the Impact Assessment accompanying the initiative (section 6). 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes.  Because  of  the  fairly  recent  adoption  of  REDII,  only  those  provisions  directly  linked  to  the 
achievement  of  the  Green  Deal  and  the  Climate  Target  Plan  are  being  amended.  Regarding  the 
provisions that are being amended, these have been simplified and aligned with other, linked, Union 
legislation.  For  example,  the  provisions  on  renewable  energy  in  buildings  have  been  grouped  in  a 
single Article and aligned to the extent possible with the Energy Performance of Buildings Directive.  

3.  Proportionality: How the EU should act 

3.1  Does  the  explanatory  memorandum  (and  any  impact  assessment)  accompanying  the 
Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal  and  a  statement  allowing  appraisal  of  the  compliance  of  the  proposal  with  the 

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principle of proportionality? 

The Impact Assessment includes an analysis regarding proportionality of the proposal (section 7.5). 
The preferred package of policy options is considered proportionate and builds to the extent possible 
on current policy design. Several options set a target or a benchmark to be achieved, but leave the 
means to achieve those targets up to the Member States.  The balance between obligations and the 
flexibility left to the Member States on how to achieve the objectives is considered appropriate given 
the imperative of achieving climate neutrality. 

3.2 Based  on  the  answers  to  the  questions  below  and  information  available  from  any  impact 
assessment,  the  explanatory  memorandum  or  other  sources,  is  the  proposed  action  an 
appropriate way to achieve the intended objectives? 

Yes.  The  problem  to  be  tackled  is  not  limited  to  individual  Member  States  but  is  Union-wide.  
Increasing  the  level  of  renewable  energy  in  order  to  reduce  GHG  emissions  and  achieve  climate 
neutrality cannot be achieved by action at national level alone. The measures proposed are a mix of 
Union  level  targets  and  action  at  Member  State  level  which  is  considered  proportionate  and  cost-
effective.  The  individual  situations  of  Member  States  have  been  taken  into  account  to  the  extent 
possible. The costs are commensurate with the objectives. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes, various levels of the scope and intensification of the measures have been analysed (sections 5 
and 6 of the Impact Assessment). The measures chosen fulfil the proportionality principle. Reducing 
GHG emissions and achieving climate neutrality cannot be achieved by action at national level alone.  

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

Yes.  This  proposal  is  for  an  amending  Directive. Given  its  relatively  recent  adoption,  this  review  of 
REDII is limited to what is considered necessary to contribute in a cost-effective way to the Union’s 
2030  climate  ambition.  As  a  Directive,  it  leaves  flexibility  to  Member  States  to  choose  how  to 
implement its provisions so as to achieve the agreed goal. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

Member States are left as much scope as possible, but given the critical importance of increasing the 
use of renewable energy in order to reduce GHG emissions and tackle the climate emergency, some 
measures are stringent. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The impacts related to the costs of the initiative have been analysed where appropriate and possible 
(section 6 of the Impact Assessment). The analysis shows that the costs are commensurate with the 
objectives. 

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(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

Yes.  For  example,  the  indicative  ‘top-ups’  to  increase  the  use  of  renewables  in  the  heating  and 
cooling  sector  are  based  on  GDP  and  cost-effective  per  each  Member  State.  Member  States  with 
outermost regions may derogate from certain sustainability criteria for biomass. 

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