Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Ministerial Council of the Energy Community on the appointment of the Director of the Energy Community Secretariat
Date: 2021-10-12
Institutions: Directorate-General for Energy, European Commission
Subjects: Energy Community, appointment of staff, energy cooperation, energy policy, joint body (EU), managing director, secretariat of an Institution

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   EUROPEAN COMMISSION  Brussels, 12.10.2021  COM(2021) 643 final 2021/0333 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Ministerial Council of the Energy Community on the appointment of the Director of the Energy Community Secretariat    
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This proposal concerns the decision establishing the position to be taken on the Union's behalf 
in  the  19th  Ministerial  Council  of  the  Energy  Community  on  25  November  2021  in 
Belgrade/Serbia  in  connection  with  the  envisaged  adoption  of  the  Procedural  Act  of  the 
Ministerial Council of the Energy Community on the appointment of the next Director of the 
Energy Community Secretariat (EnCS). 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Energy Community Treaty 

The  Treaty  establishing  the  Energy  Community  Treaty  (‘ECT’)  aims  to  create  a  stable 
regulatory and market framework and a single regulatory space for trade in network energy by 
implementing agreed parts of the EU acquis on energy in the non-EU Parties. The Agreement 
entered into force on 1 July 2006. The European Union is a Party to the ECT.1 The ECT refers 
to the non-EU Parties as ‘Contracting Parties’. 

2.2. 

The Ministerial Council of the Energy Community 

The Ministerial Council  of the Energy Community ensures that the objectives set out in the 
ECT are attained. It provides general policy guidelines, takes Measures and adopts Procedural 
Acts.  Each  Party  has  one  vote  and  the  Ministerial  Council  acts  by  different  voting  rules 
depending  on  the  subject  matter.  The  EU  is  one  of  the  ten  Parties  and  has  one  vote,  also 
depending on the subject matter concerned. 

The  Ministerial  Council  of  the  Energy  Community  appoints  the  Director  of  the  Energy 
Community Secretariat on a proposal from the European Commission for a fixed renewable 
term of three years. The Procedural Act is adopted by simple majority. The Commission has 
the exclusive right to propose a candidate for the Director post and shall distribute its proposal 
to the Energy Community Contracting Parties. 

2.3. 

 The envisaged Procedural Act of the Ministerial Council  

The current Director of the EnCS, Mr Janez Kopac, was appointed for the first time in 2012. 
His mandate was renewed in 2015 and in 2018. It is due to expire on 30 November 2021. 

On  23  February  2021,  the  Commission  launched  an  open  selection  procedure  for  the  next 
Director  of  Energy  Community  Secretariat  as  of  1  December  2021  (COM/2021/20055).  
There  were  92  applications  for  this  post.  The  selection  phase  has  been  carried  out  in 
compliance with existing rules and implementing guidelines. 

The  Commission’s  pre-selection  panel  examined  the  applications  against  the  eligibility  and 
selection criteria as set out in the vacancy notice and shortlisted candidates for the next phase 

1  OJ L198 of 20.7.2006, p. 15. 

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of the procedure. Following the comparative assessment of the candidates by the Consultative 
Committee  on  Appointments  (CCA)  and  interviews  by  Commissioner  Kadri  Simson,  the 
Commission  considers  that  Mr.  Artur  Lorkowski  has  proven  to  have  the  best  mix  of 
managerial,  leadership,  communication,  representation  and  language  skills,  technical 
proficiency,  international  experience  and  knowledge  about  the  European  Union  in  order  to 
carry out the functions of director of the Energy Community Secretariat. 

Consequently, the Commission decided to propose Mr. Artur Lorkowski as the next Director 
of  the  Energy  Community  Secretariat,  as  reflected  in  the  Commission  Decision  of  24 
September  2021  on  establishing  a  proposal  to  be  submitted  by  the  Commission  to  the 
Ministerial Council of the Energy Community for a Procedural Act of the Ministerial Council 
on the appointment of the Director of the Energy Community Secretariat, C(2021) 7021 final. 
The  Commission  submitted  this  proposal  on  24  September  2021  to  the  Energy  Community 
Contracting Parties.  

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

In view of the open and competitive selection procedure carried out by the Commission, the 
position  to  be  taken  on  behalf  of  the  Union  in  the  Ministerial  Council  of  the  Energy 
Community  should  be  to  approve  the  draft  Procedural  Act  of  the  Ministerial  Council 
appointing Mr. Artur Lorkowski as the Director of the Energy Community Secretariat as of 1 
December  2021,  in  accordance  with  the  Commission  Decision  of  24  September  2021  on 
establishing a proposal to be submitted by the Commission to the Ministerial Council of the 
Energy Community for a Procedural Act of the Ministerial Council on the appointment of the 
Director of the Energy Community Secretariat, C(2021) 7021 final. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’2. 

2 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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4.1.2.  Application to the present case 

The  Ministerial  Council  is  a  body  set  up  by  an  agreement,  namely  the  Energy  Community 
Treaty. 

The  envisaged  Procedural  Act,  which  the  Ministerial  Council  of  the  Energy  Community  is 
called  upon  to  adopt,  constitutes  an  act  having  legal  effects,  because  it  regulates 
organisational  issues  of  the  Energy  Community  and  has  binding  force  at  least  on  the 
institutions  of  the  Energy  Community  in  accordance  with  Article  86  of  the  Energy 
Community Treaty.  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relates to energy.  

Therefore, the substantive legal basis of the proposed decision is Article 194 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  194  TFEU,  in  conjunction  with 
Article 218(9) TFEU. 

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2021/0333 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Ministerial Council of 
the Energy Community on the appointment of the Director of the Energy Community 
Secretariat  

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 194, in conjunction with Article 218(9) thereof, 

Having  regard  to  Council  Decision  2006/500/EC  of  29  May  2006  on  the  conclusion  by  the 
European Community of the Energy Community Treaty, 

Having  regard  to  the  Treaty  establishing  the  Energy  Community  Treaty,  and  in  particular 
Articles 69 and 88 thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The  Treaty  establishing  the  Energy  Community  Treaty  (the  ‘Agreement’)  was 
concluded  by  the  Union  by  Council  Decision  2006/500/EC  of  29  May  20063  and 
entered into force on 1 July 2006.  

Pursuant  to  Articles  69  and  88  of  the  Agreement,  the  Ministerial  Council,  on  a 
proposal  of  the  European  Commission,  may  adopt  a  Procedural  Act  appointing  the 
Director of the Secretariat of the Energy Community. 

The  third  mandate  of  the  current  Director  of  the  Energy  Community  Secretariat,  Mr 
Janez Kopac, is due to expire on 30 November 2021.  
The  Ministerial  Council  of  the  Energy  Community,  during  its  19th  meeting  in 
Belgrade,  Serbia  on  25  November  2021,  is  to  adopt  a  Procedural  Act  on  the 
appointment of the next Director of the Energy Community Secretariat. 

On  23  February  2021,  the  Commission  published  a  vacancy  notice  for  an  open 
selection  procedure  for  the  next  Director  of  Energy  Community  Secretariat  as  of  1 
December 2021.  

The Commission assessed the candidates’ skills and experience in accordance with the 
pre-established selection criteria set out in the vacancy notice. The selection phase has 
been carried out in compliance with existing rules and implementing guidelines. The 
Commission  considers that  Mr. Artur  Lorkowski has  proven to  have the best  mix of 
managerial,  leadership,  communication,  representation  and  language  skills,  technical 

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OJ L198 of 20.7.2006, p. 15. 

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proficiency,  international  experience  and  knowledge  about  the  European  Union  in 
order to carry out the functions of director of the Energy Community Secretariat.  

HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in the 19th meeting of the Ministerial Council 
of the Energy Community shall be the following: 

to  approve  the  draft  Procedural  Act  of  the  Ministerial  Council  appointing  Mr.  Artur 
Lorkowski  as  the  Director  of  the  Energy  Community  Secretariat  as  of  1  December  2021  in 
accordance with the Commission proposal adopted by Commission Decision of 24 September 
2021,  C(2021)  7021  final,  and  submitted  on  the  same  day  to  the  Ministerial  Council  of  the 
Energy Community. 

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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