Why is it so urgent that the United States of America ratifies the Convention on Biological Diversity?

3 hét 6 nap ago

Introduction

The Convention on Biological Diversity (hereinafter: “CBD”, or “the Convention”) is an international convention signed in Rio de Janeiro, dedicated to promoting sustainable development. It seeks to conserve the diversity of life on Earth at all levels – genetic, population, species, habitat and ecosystem – and to ensure that this diversity continues to maintain the life support system of the biosphere overall[1]. The Convention recognizes that biological diversity is about more than plants, animals and micro-organisms and their ecosystems – it also is about how dependent people are on a healthy environment and that we need nature in our lives.

The Convention was opened for signature on 5 June 1992 at the Rio Earth Summit and entered into force in December 1993. With 196 parties to date, it enjoys almost universal participation, with the notable exception of the United States.[2] To be specific, the United States has signed but not yet ratified this international treaty, whose signature is a common interest all over the world in order to protect species and habitats, and which could mitigate the significant and irreversible changes that are currently occurring to the natural world.  Only four member states of the United Nations are not Parties to the CBD, namely: Andorra, South Sudan, the United States of America and the Holy See (the Vatican).

In my blog, first of all, I would like to point out the main reasons why it is so important for every state to submit to this legally binding Convention.

Secondly, I will discuss why the ratification by the U.S. would mean a milestone for the whole world that is actually quite urgent. After discussing the importance of these impacts, through the example of the worst environmental disaster for the U.S. - the 2010 Gulf Oil Spill - I will sum up its consequences and the current situation: that is, how they still refuse to make the effort that they should. 

What specific steps must Parties to the Convention take to protect biodiversity?

The conservation of biological diversity is a common interest under the Convention; on the other hand, the biodiversity located within the territory of each country is part of the national wealth of the respective countries. Consequently, only the state itself can decide on the exploitation of the components of biodiversity and, above all, the benefits of natural resources also belong to them. Therefore, the Convention establishes – and this is considered an essential requirement – that individual countries cannot cause damage to biodiversity outside their borders through their activities on their territory.[3] Biodiversity is inseparable from sustainable development, as it provides essential goods for economic recovery, social well-being and an adequate quality of life: for example, for food production, carbon sequestration and regulation of the water cycle. In addition to climate change, the loss of biodiversity is the most critical global environmental threat, resulting in significant material and well-being losses. At the international level, the EU is a strong advocate for the protection of biodiversity and the sustainable use of natural resources. It spends more than €350 million a year supporting biodiversity in developing countries, through programs focused on biodiversity and programs that integrate biodiversity in other areas. For example, in 2018, the EU funded 66 protected areas in 27 countries in sub-Saharan Africa.[4]

The Contracting Parties undertake to establish a system of protected areas to ensure the protection of natural habitats, maintain viable populations of species, develop regulations for the conservation of endangered species and populations, and ensure their compliance. The section of the Convention concerning management related activities applies to in situ conservation of ecosystems and the maintenance and recovery of viable populations of species in their natural surroundings; also, that the measures should include the reinforcement of terrestrial, marine and aquatic protected area systems. On the other hand it implements ex situ measures as well, preferably in the source country.

Another important step is that research that contributes to the conservation of biological diversity will be supported and encouraged, and the Parties will work together to use the results of scientific research and develop methods for the conservation and sustainable use of biological resources. “Special attention should be given to the development and strengthening of national capabilities by means of human resource development and institution-building, including the transfer of technology and/or development of research and management facilities.”[5]

To protect and exploit genetic resources, the Convention establishes that States can exercise sovereign rights over genetic resources. The Convention lists the general provisions to guarantee access to biological resources in areas under national jurisdiction and beyond. The Parties undertake to share fairly and equitably the benefits derived from the commercial and other utilization of genetic resources. The dissemination of technologies for the exploitation of biological resources, including biotechnology, to developing countries under the Convention will be subject to the most-favored-nation principle in the future. The economic benefits of biotechnological processes must also be shared fairly and equitably. The extent of this must be agreed upon between the interested parties.

According to the convention, the parties must develop an appropriate strategy for the protection of biological diversity. Special attention should also be paid to this issue in environmental impact assessments. The convention describes the general principles and requirements for conducting environmental impact assessments. An important objective of the Convention is to achieve the sustainable use of natural resources. To this end, it contains requirements for the development of scientific knowledge in this regard and for the development of a global monitoring system and information systems to support data exchange.

To protect biodiversity, the Convention recognizes the need for developed countries to help developing countries financially, through technological know-how and the transfer of tools and procedures. This assistance should not be included in existing development aid, but should be seen as an additional source to it. Under the Convention, the Conference of the Parties will periodically review, inter alia, the situation of countries with economies in transition in relation to the Convention. These countries can be included in a list to be attached to the Convention, temporarily exempting them from the obligation to provide financial assistance.

For what reasons would it be a milestone if the U.S. ratified the Convention?

The U.S. has a huge environmental footprint, and the protection of nature requires international cooperation and coordination. Their leadership is needed to protect domestic and global biological resources.  The absence of the U.S. makes this harder for several reasons. The U.S. is home to some of the world’s best conservation researchers and tools, including those used for monitoring wildlife populations. Another key reason for them to join the agreement is that the U.S. could help other countries develop conservation strategies that don’t come at the expense of Indigenous people and local communities, which has been the case historically.[6]

They also are guilty of harming native populations for the sake of protecting wildlife (most famously when creating Yellowstone National Park.)

In addition, the U.S. possesses transparent laws, dispenses significant foreign aid, and embodies a tradition of public engagement that leads to greater biodiversity-related protection and enforcement than most countries. The U.S. has also been a good international partner in other environmental agreements and treaties such as the Convention on International Trade in Endangered Species (“CITES”), the Ramsar Convention on Wetlands, and the Montreal Protocol on Substances that Deplete the Ozone Layer. The interests of the United States stand to benefit greatly from such multilateral cooperation and the continued ability to access biological diversity from other countries across the globe.[7]

To what extent would U.S. ratification change its international obligations regarding protection of the Gulf’s biological diversity? 

The 2010 Gulf Oil Spill was the worst environmental disaster in U.S. history. Studies indicate that it will take parts of the Gulf, such as deep ocean ecosystems, decades to recover. However, unfortunately the legal landscape governing offshore drilling is still unchanged from before the spill. The U.S. still outsources drilling safety and spill cleanup to the industry, which has proven far more adept at extracting oil than protecting the environment. In my opinion, the possible outcome of the U.S. ratifying the Convention – the increased protection of the law of the sea and of biological diversity – would be more aligned with their obligations than the objective of setting a new record of oil production, like they did in 2019.[8] Americans are still not serious enough about reducing their nation’s dependence on fossil fuels and accelerating the transition to clean energy. This failure stands out as the continuing tragedy of the spill. The preamble of the Convention states that “the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components…(and) also of the importance of biological diversity for evolution and for maintaining life sustaining systems in the biosphere.” The CBD further affirms “that the conservation of biological diversity is a common concern of humankind,” Consequently, by ratifying the Convention, it would apply to the U.S., so they would be required to reduce fossil fuels and to develop clean energy, besides many other obligations. In 2012 the Congress passed the RESTORE Act in response to the spill, but only to ensure that the responsibility to restore the environment would be shared among Gulf coastal states. The laws in the U.S. were too silent about drilling safety and future oil spills. They are still more focused on their income from oil than on protecting biodiversity and making sure it is not going to happen again. In terms of new regulations, the Obama administration enacted new safety rules. Many of these had unfortunately been reversed by the Trump administration. President Trump also expanded offshore drilling. However, while the oil industry is more committed to protecting the sea these days than it was in 2010, without the U.S. ratification to the Convention, their promise is still not an enforceable obligation. BP paid an enormous amount to the harmed states, but the U.S. is still not addressing its responsibility for the disaster sufficiently. Many people have hopes that the Biden administration – which has already reversed many actions of the Trump administration for the better – may ratify the Convention. By doing that, they would have a much greater obligation regarding the creation of new domestic rules – such as to protect the sea and biological diversity, and to help address impacts of global warming, unstable weather patterns, and other abrupt changes caused by stressed ecological systems - to stop being as harmful on the environment as they are in the present. 

The three objectives of the Convention – conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the use of biological and genetic resources – would apply naturally to the U.S. so their obligation would be much more extensive. The Member States, in accordance with the Charter of the United Nations and the principles of international law, have to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.[9]

The United States is already in full accordance with the substantive terms of the CBD, which provide discretion and flexibility based upon national circumstances. No new legislation at either the federal or state level is necessary for the United States to ratify and implement the CBD immediately, and future legislative and administrative amendments would not be precluded.[10]

If the U.S. participated in the Convention, besides these obligations, it would also save them money in the long run. Financial resources would be used more efficiently by helping coordinate federal agencies with other international agreements. They could also keep their sovereignty on all issues, with no exceptions. 

Closing thoughts and consequences

Protecting biodiversity maximizes the resilience of ecosystems and large regions – and indeed, the entire world – so that the use of land, water and air is done sustainably. This is good for food and water security, overall global well-being, and the long-term maintenance of biodiversity’s many economically beneficial services. The CBD is the one legal tool that brings these important issues together. It should be ratified by the U.S. Senate in short order because it is without legal controversy, it will benefit the people of the United States, and it will make the world a better place for all its inhabitants.[11]

For a list of references, click HERE.
Source for the image used: https://www.undp.org/press-releases/world-wildlife-day-highlights-import...

 

Author: Beáta Bella Szutor
law student, University of Debrecen Faculty of Law

[1] https://www.cbd.int/gbo1/chap-02.shtml

[2] https://www.iisd.org/articles/biological-diversity-protecting-variety-life-earth 06.08.2021.

[3] Dr. Bándi Gyula, Dr. Faragó Tibor and Dr. Lakosné Horváth Alojzia – Környezetvédelmi és Területfejlesztési Minisztérium – 2004. – Nemzetközi Környezetvédelmi és Természetvédelmi Egyezmények – 39.

[4] Action against biodiversity loss, nature conservation and the nature protection strategy of the European Union - https://ec.europa.eu/info/sites/default/files/biodiversity_hu.pdf 06.08.2021.

[5] Rio summit page 215, C, international and regional cooperation and coordination

[6] The US must show leadership on biodiversity | Edward Norton | The Guardian 06.08.2021.

[7] William J. Snape, Joining the Convention on Biological Diversity: A legal and scientific overview of why the United States must wake up https://www.biologicaldiversity.org/publications/papers/SDLP_10Spring_Snape.pdf 06.10.2021.

[8] https://theconversation.com/bp-paid-a-steep-price-for-the-gulf-oil-spill-but-for-the-us-a-decade-later-its-business-as-usual-136905 06.08.2021.

[9] art. 15.1 (“Recognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments.”)

[10] id. https://www.biologicaldiversity.org/publications/papers/SDLP_10Spring_Snape.pdf 9., 06.10.2021.

[11] id. https://www.biologicaldiversity.org/publications/papers/SDLP_10Spring_Snape.pdf 11., 06.10.2021

Kategória: Environmental protectionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
kutatocsoport5

All Eyes on Warsaw – Locked in a Legal Battle with the EU over the Legitimacy of Judicial and Constitutional Reforms

2 hónap 1 hét ago

Poland has got its last seven days in court – with a bouquet of rulings in Warsaw and at the European Court of Justice (ECJ) in Luxembourg that could have far-reaching implications for the European Union’s (EU’s) legal order. We will unpack what these rulings are about and how they fit into Poland’s clash with the EU.

 

I. ’Forever Tainted’? – the Opinion of Advocate General Bobek in Getin Noble Bank

An Important Milestone in a Long-standing Dispute

The Opinion of Advocate General (AG) Michal Bobek in Getin Noble Bank (C-132/20) is another important milestone in the long-standing dispute between Poland and the EU over the Member State’s judicial reform intended to rid the Polish judiciary of its communist legacy. AG Bobek delivered his Opinion on 8 July 2021, advising the ECJ to rule that the circumstances of appointment of judges during Poland’s communist regime are not an element capable, in and of itself, of casting doubts on their current independence and impartiality under Article 19 (1) of the Treaty on European Union (TEU) and Article 47 of the Charter of Fundamental Rights of the European Union (Charter).

The Advocate General’s opinion came in response to an unnamed Supreme Court (Sąd Najwyższy) judge’s request for a preliminary ruling from the ECJ relating to the status of a judge originally appointed by a political body within the executive branch of the People’s Republic of Poland before the fall of communism in 1989. The case comes in the context of a ruling by a court (Court of Appeal, Sąd Apelacyjny we Wrocławiu), where such a ’communist-era’ judge sits – identified by the initials ’FO’ in the Opinion – and where that court had carried out an ex officio assessment of contractual terms under Article 7 (1) and (2) of the Unfair Terms Directive, in a case related to a mortgage payment dispute involving the Polish Getin Noble Bank.

The Examination of Admissibility

In his Opinion, AG Bobek first examines the arguments, raised by the Rzecznik Praw Obywatelskich (Ombudsman, Poland), concerning the alleged inadmissibility of the request for a preliminary ruling. The Ombudsman argued that the order for reference was submitted by a judge whose own recent appointment to judicial office has been made under such circumstances as to cast doubts on his independence – as he/she has been accused of being illegally appointed by the Law and Justice (PiS) party –, therefore he/she does not meet the independence criteria for the purposes of Article 267 of the Treaty on the Functioning of the European Union (TFEU). Although AG Bobek also notes that ’his judicial office is heavily contested’ and allegedly ’irregular and vitiated by a flagrant breach of national law’, he advised that the reference should be declared admissible. He pointed out that, within Article 267 TFEU, the concept of ‘court or tribunal’ has a functional nature: it requires looking at ‘the body itself, and not in relation to the individuals who sit in the body which made the request’. Such functional holistic assessment of the body itself is present in Banco de Santander (C-274/14), wherein the bonds of the Spanish administrative tribunals with the Spanish Ministry of Finance jeopardise independence and impartiality.

Acknowledging that the Ombudsman did raise serious concerns, however, AG Bobek notes that his view held as long as the appointment in question ‘did not have repercussions on the overall functioning of the national body to which the judges belong’; and as long as the entire judicial institution has not been ‘hijacked’ and can therefore no longer be considered a court, with the result that requests for preliminary rulings by a supreme court of a Member State should not result in automatic inadmissibility. It should be noted that AG Bobek’s decision concerning access to the preliminary reference procedure was itself criticised. Laurent Pech, a law professor and expert on Poland’s rule of law disputes at the Middlesex University London, called the aforementioned reasoning ’seriously flawed’, as the request ’is just part of an attempt by fake judges to legitimize themselves while trying to further justify a purge’ of judges appointed during the communist regime.

Turning to the Analysis of Independence

On the merits, the Opinion of AG Bobek seems quite convincing; AG Bobek examines the questions as covering generally the assessment of compliance with the principle of judicial independence, flowing from Article 19 (1) TEU, read in conjunction with Article 2 TEU and Article 47 of the Charter. He recalls that it is ‘still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges.’ Therefore, a national court must consider all relevant elements, and in that context, both formal, institutional, and case-specific elements may be relevant, depending on the characteristics of the case in question and the EU provision(s) that is/are applicable.

He reasons that, concerning the circumstances relating to the first appointment of the judge concerned under Poland’s communist regime, there is scarce evidence as to who would be currently capable of exerting undue pressure over him and the reasons for him to be inclined to yield to that pressure. AG Bobek also said he was ’puzzled’ by both the starting point and conclusions of the reference, which provided no information as to the identity, motive, or even influence of the persons or institutions capable of influencing the judge in question. More generally, AG Bobek also casts doubts on the applicability of rules and standards under Article 19 (1) TEU and/or Article 47 of the Charter to judicial appointments in Poland before 1989.

As a consequence, he reasons that, although the appointment of the judge during the Communist era in Poland did not meet the standard of judicial independence, today there is no evidence that this judge cannot perform his duties independently without bowing to external pressure. In connection with this, AG Bobek underlines that ’The referring court appears to be laboring under the assumption that judges appointed during the Communist era are by definition ‘forever tainted’, simply by virtue of association with the previous regime.’ He also notes that Poland, like other former communist European countries, chose to keep in place its judges even though they had been appointed under the communist regime for the sake of continuity. ’Subsequently, judges appointed under the previous regime in Poland have benefited from a double layer of acceptance, at both national and EU level,’ AG Bobek said.

Similarly, according to his Opinion, the fact that some members of the composition of the court which delivered the contested judgment were appointed to that court basis on resolutions adopted by the National Council of the Judiciary (Krajowa Rada Sądownictwa) in a composition resulting from legislation subsequently declared unconstitutional by the Constitutional Court (Trybunał Konstytucyjny), is also not such as to cast doubts on the independence and impartiality of any national judges.

Additional Thoughts

Concerning this, Ricardo García Antón, Assistant Professor of Tax Economics at Tilburg University notes that AG Bobek put the focus on the functioning of the body, regardless of the specific circumstances related to the appointment of its members. Consequently, in case there are doubts of independence regarding the appointment of a judge, they cannot be removed ipso facto. Judicial bodies cannot be subject to any hierarchical constraint or subordinated to any other body in performing its duties. In this regard, Antón remarks that putting the stress on how the judicial functions are performed, and not on how judges were appointed may yield some inconsistencies with recent jurisprudence of the European Court of Human Rights (ECtHR). In the landmark case Xero Flor w Polsce sp. z o.o. v Poland (application no. 4907/18), the ECtHR found that the appointment of judges by the Polish National Council of Judiciary caused a violation of Article 6 (1) of the ECHR.

Finally, AG Bobek notes that the principle of irremovability of judges does not preclude national courts from verifying that an irregularity vitiating a procedure for the appointment of a judge could lead to an infringement of rights conferred by EU law, about ‘the ongoing retention of judges that are subject to political, personal, or other forms of pressure strikes’ taking place in Poland.

It should also be highlighted that AG Bobek’s opinion is not binding on the ECJ, but serves as legal guidance to the Court, as these opinions often function as the legal basis for the Court's judgments.

II. What Comes after the ’First Step over the Rubicon’

The Ruling of the ECJ in Commission v Poland

The ECJ ruled in Commission v Poland (C-791/19) that Poland’s controversial disciplinary procedure for judges violates European Union law – in other words, according to the ECJ, the Member State had failed to fulfill its obligations and upheld complaints about the judicial reforms by the European Commission – on 15 July 2021, a week after AG Bobek had delivered his Opinion under review.

As indicated above, the ruling PiS party has brought in sweeping changes to the judiciary over the past six years, in particular, in February 2020, Poland created a ’disciplinary chamber’. The ECJ concluded that this chamber lacks guarantees of ’independence and impartiality’; moreover, disciplining Polish judges for referring to the ECJ in preliminary rulings undermines the EU’s system of judicial cooperation. ’The disciplinary system allows that the content of the judicial decisions adopted by the judges of the ordinary courts can be qualified as a disciplinary offense’, the Court said. The Court also ruled that the system in question’... could thus be used for the purposes of political control of judicial decisions or of pressure on judges in order to influence their decisions and undermine the independence of the courts concerned’. In this regard, Jakob Jaraczewski, a researcher coordinator at Democracy Reporting International, sharing the view of the ECJ, noted that ’as the disciplinary proceedings against judges, in particular, the disciplinary proceedings against judges over the content of their decisions could lead to a chilling effect’. Whatever Poland’s response to the ruling may be, the Member State is bound to comply with the judgment and may face financial penalties if it does not.

The Ruling of the Polish Constitutional Tribunal

The ruling comes a day after the ECJ issued a separate order directing Poland to ’immediately suspend the application of national provisions relating (…) to the powers of the disciplinary chamber of the Supreme Court’ , following a similar interim measure issued in April. Hours later, on 14 July 2021, the Polish Constitutional Tribunal declared that applying ECJ interim measures about Poland’s judicial changes is unconstitutional, the Member State does not have to obey orders from the EU’s top court relating to its contested judicial overhaul. The Tribunal was asked to rule on whether such orders were compatible with Poland’s constitution by the aforementioned disciplinary chamber.

The dispute comes as the Polish Constitutional Tribunal is separately considering a motion from Polish Prime Minister (PM) Mateusz Morawiecki to review the constitutionality of parts of the EU Treaties, but a scheduled court session of 15 July to continue an ongoing examination of the issue has been postponed to 3 August. Last month, EU Justice Commissioner Didier Reynders asked the Polish authorities in a letter to withdraw Morawiecki’s motion, as it ’appears to contest fundamental principles of EU law, in particular the principle that EU law has primacy over national law’ and ’contests the authority of the Court of Justice when interpreting the EU Treaties,’ as well as it ’goes against the duty of loyal cooperation in that it actively seeks a declaration of the Constitutional Tribunal to deny the authority of the interpretation of the key principles of EU law.’ The letter described the Commission as ’concerned about the consequences of such action also for the respect of the rule of law,’ while the Commission is deeply concerned by the aforementioned decision of the Polish Constitutional Tribunal as well, as a spokesperson said that ’the EU has primacy over national law and all decisions by the European Court of Justice – including orders for interim measures – are binding on member states’ authorities and national courts.’

Nothing New Under the Sun?

It should be highlighted that Poland is not unique in challenging the ECJ. The abovementioned letter came hours after the Commission launched the first step of legal proceedings against Germany over a 2020 ruling by the Member State’s constitutional court, which delayed the government’s approval of a European Central Bank (ECB) bond-buying program, even though it had already been approved by the ECJ, nevertheless, argued that the ECJ had acted beyond its remit in a case relating to European Central Bank bond-buying; therefore some officials interpreted the gesture as an effort to dissuade governments in countries such as Poland from challenging the ECJ’s authority. The Commission said Germany’s decision to declare the ECJ as going beyond its powers (ultra vires) had ’deprived a judgment of the European Court of Justice of its legal effect in Germany, breaching the principle of the primacy of EU law’.

About the possible threats, Didier Reynders concluded that:’What is the risk if we don’t take care of this? It is that we will destroy the Union itself.’ The EU was based on rules being applied consistently across its Member States, so if this ceased to be the case the bloc could be undermined. ’When we have a problem in one Member State, the risk is a spillover effect, that you will have in all the member states, or in some member states, a tendency to challenge the primacy of EU law and the exclusive competence of the Court of Justice,” he said. ’If you don’t stop that, you will have more and more possibilities for different member states to challenge the primacy of EU law and the competence of the ECJ,’ Reynders added.

However, it should be noted that, as Kim Lane Scheppele, a professor of law at Princeton argued, there was a fundamental difference between the Polish challenges and the one launched in Germany. The Karlsruhe Court challenged the way the ECJ had done its job in assessing the validity of bond-buying by the ECB; the Polish cases questioned whether EU law applied to Poland. ’The German Court just said we need the EU to apply its law. That is not an anti-rule of law argument. For Poland, the argument is, we have our own rules and we are going to do things our own way’, she summarised the main aspects. It is also noteworthy that, in France, the government appealed to the Conseil d’État (France’s highest administrative court), to strike down an October 2020 ECJ ruling that collection of data by the security services breached privacy rules. Subsequently, Paris was partly rebuffed by the French court’s ruling in April 2021.

Too Little, Too Late? – the Chances of the ’Legal Polexit’

It is widely expected that the Commission will launch infringement proceedings against Poland, however, it is unclear how Warsaw would respond to such a situation, as over the past five years, the Commission has challenged multiple aspects of Poland’s judicial system. Even so, some legal scholars have strongly criticised the Commission for not acting swiftly and robustly in connection with Poland, moreover, critics say it was also too slow to take action to force Warsaw to comply with previous ECJ rulings. Reynders answered the criticism very catchy: ’We don’t have the same timelines as Twitter.’

The competing court decisions already examined, have accelerated concerns about whether Warsaw will remain part of the European legal order, prompting fears of a ’legal Polexit. In connection with this question, Jaraczewski noted that even if certain actions give the impression that the Member State is gradually moving away from the EU, that is not what the Polish people want. ’There is no broader will in Polish society to quit the European Union, and I believe that many people who support the Law and Justice party over its economic and social policies, at the same time are very keen to stay in the EU to enjoy freedom of movement, to enjoy the common market and so on,’ he said.

What is more, despite deepening tensions over the independence of Poland’s judiciary and the country’s willingness to apply European law, Poland is still relying on the ECJ to safeguard some of its interests. The ECJ ruled that the Commission violated the principle of energy solidarity by issuing a decision on the OPAL gas pipeline and sided with Poland in the dispute on 15 July 2021. The verdict strengthens Poland’s energy security and may be important for the further fate of the Nord Stream 2 project.

***

Having examined our chapter in this thrilling EU law series, in times of growing frustration in Brussels about the bloc’s struggle to address concerns of rule-of-law backsliding in some Member States, the pending cases to be solved will surely add more food for thought and challenges for judicial dialogue in Europe.

 

For a list of references, click HERE.

 

Author: dr. Petra Ágnes Kanyuk

Ph.D. Student at the Géza Marton Doctoral School of Legal Studies of the University of Debrecen

 

Source of the picture:

Poland Escalates Fight With Europe Over the Rule of Law. 15th July 2021. Nytimes.com. https://www.nytimes.com/2021/07/15/world/europe/poland-hungary-europe.html (15 July 2021)

Kategória: European UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
kutatocsoport5

Scientific Cooperation in Times of Pandemic. Conference on Recent Challenges in Financial Regulation

2 hónap 4 hét ago

The Department of Financial Law and Public Management of the Faculty of Law of the University of Debrecen has had a scientific relationship with the Institute of Financial Law of the Polish Katolicki Uniwersytet Lubelski for several years. Thanks to the established network of contacts, several joint tax law research projects and professional events took place over the years. The Faculty of Law of the University of Debrecen is also involved in the CEEPUS mobility cooperation titled “KULTAX Financial and Tax Law in Central Europe”, initiated by the Polish partner university. The most recent conference, held on 21 May 2021, discussed a topical issue, “Financial Regulation in the Times of the COVID-19 Pandemic”. The event took place online, but this did not detract from its quality due to the professionalism of the speakers and the well-organized and structured programs developed by the Polish organizers.

The diversity of the event is evidenced by the fact that the speakers came from several countries that are also involved in the aforementioned cooperation, such as Poland, the Czech Republic, Albania, Hungary, Bosnia and Herzegovina. The COVID-19 pandemic has affected our lives in many ways, which can also be experienced in the legislative activity of individual countries and the European Union in the field of tax law. Recognizing this, a conference was organized where speakers presented the changes brought about by the new situation in a number of areas. These included the diversity of taxpayers' rights in the Bosnian tax process, the changes affecting these rights in Czech law, the changes in Albanian personal income tax rules and their implications for the budgets of families. The Department of Financial Law of the University of Debrecen was also represented in the event, where Assistant Professor Péter Bordás presented the topic of changes affecting local government expenditures and revenues in Hungary as a result of the epidemic, while her colleague, Assistant Lecturer Dóra Lovas highlighted the role of energy taxation in achieving the European Union's climate goals in her presentation titled “The Role of Energy Taxation in Terms of Achieving Climate Neutrality”. It is already clear from these few key issues that financial law professionals consider it important to provide a more complex picture of the tax implications of the COVID-19 pandemic. It seems to be clear that regulation is changing dynamically as a result of the pandemic, leading to tax cuts and reducing administrative burdens in some countries.

Do we need to address this issue? The answer is clearly yes, as these changes will also have a long-term impact on the post-pandemic period. We should thank the Polish organizers for recognizing this situation and providing a complex picture of the changes in financial law with the involvement of professionally qualified speakers from several countries.

 

Kategória: Public LawEuropean UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
Kutatócsoport2

Three new cases: State aid for airlines - were they justified in view of the impact of the pandemic or not?

3 hónap ago

In view of the economic difficulties caused by the COVID-19 pandemic, it was unthinkable for the European Commission not to ease restrictions on State aid. As such, the European Commission approved unprecedented forms of State aid to save the epidemic-struck European economy.

In this context, the governments of the member states have poured billions of euros into the airline industry, which has been hit particularly hard by virus-related restrictions and lockdowns.

According to Ryanair, State aid given to national airlines constitutes unfair competition; as such, the airline has filed 16 lawsuits against the Commission for allowing the provision of State aid to individual airlines.

On 19 May, the General Court has delivered three judgments, deciding to uphold Ryanair’s actions for the annulment of Commission State aid decisions in respect of TAP and KLM, but dismissed the action concerning Spain.

The measures at issue and the actions brought by the airline Ryanair

The airlines at issue were provided with government-backed loans. Last year, the Commission cleared a 3.4 billion euro Dutch bailout for the airline KLM, a 1.2 billion euro Portuguese rescue loan for Transportes Aereos Portugueses (TAP), and a 10 billion euro Spanish recapitalisation scheme for strategic companies.

In its decisions, the Commission declared the measures at issue to be compatible with the internal market.

The airline Ryanair brought actions for the annulment of these decisions. According to Ryanair, the cases of aid for selected airlines at issue create an unfair advantage and support only their national flag carriers, and as such, they will help these airlines to emerge stronger at the expense of competitors.

Findings of the General Court

The General Court examined the compatibility with the internal market of the State aid scheme adopted to address the consequences of the COVID-19 pandemic in the light of Article 107(3)(b) or (c) TFEU.

The General Court annulled the Commission’s decision to approve the financial aid of the Netherlands for the airline KLM amid the COVID-19 pandemic on the grounds of inadequate reasoning. It also pronounced the same verdict in the case of Portugal and TAP.

However, the Court rejected Ryanair’s challenge to the Spanish fund for virus-hit companies approved by the European Commission, because that measure complied with EU law.

KLM and TAP cases

Ryanair alleged, inter alia, a breach by the Commission of the duty to state reasons.

According to the findings of the General Court, in both cases, the Commission failed to set out, in a sufficiently clear and precise fashion, all the relevant matters of fact and law to be taken into account in order to assess a complex situation. Consequently, the General Court ruled that the Commission failed to provide reasons for the contested decisions to the requisite legal standard, and, for this reason, required that they be annulled.

However, given that the cause of these annulments is the inadequacy of the statement of reasons and that the immediate calling into question of the aid measures would have had particularly damaging consequences for the economies of the Netherlands and Portugal, the Court suspended the effects of the annulments (including the cancellation of the aid and the order to repay) pending the adoption of new decisions by the Commission. Thus, the Commission gets a chance to re-examine the cases and fix any procedural flaws.

The Spanish case

Ryanair submitted that the contested decision infringes the principle of non-discrimination and also the freedom to provide services and the freedom of establishment.

The General Court found that the restriction of the scheme at issue to non-financial undertakings which are of systemic or strategic importance for the Spanish economy and which are established in Spain, is both appropriate and necessary in order to achieve the objective of remedying the serious disturbance in the Spanish economy.

The General Court confirmed that the objective of the aid scheme at issue satisfies the requirements of the derogation laid down in Article 107(3)(b) TFEU and that the conditions for granting the aid do not go beyond what is necessary to achieve that objective. Thus, that scheme does not infringe the principle of non-discrimination, or the freedom to provide services and the freedom of establishment.

According to the Court, the measure at issue, intended for the adoption of recapitalisation measures, constitutes a State aid scheme but is proportionate and non-discriminatory. So the solvency support fund for strategic Spanish undertakings experiencing temporary difficulties due to the impact of the Covid-19 pandemic is compatible with EU law.

*

At the beginning of the pandemic, the Commission adopted the State aid Temporary Framework to support the economy and to avoid as much as possible the negative economic consequences of the crisis. Since the adoption of the framework, the Commission has approved numerous national State aid measures.

Now the General Court annulled two decisions on the basis of the above-mentioned reasons. The illegality that has been found is a failure to state reasons and not a substantive error.  It seems, according to the General Court, that the objective of the measures can be justified due to the pandemic. In fact, in these cases, the Court gave the Commission the chance to re-examine the cases and fix any procedural flaws.

*

Author: Krisztina Széles, PhD student, University of Debrecen, Faculty of Law

Reference:

https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-05/cp21008...

https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-05/cp21008...

https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-05/cp21008...

https://www.bloomberg.com/news/articles/2021-05-19/ryanair-scores-first-...

https://www.reuters.com/article/eu-ryanair-hldgs-stateaid-idCNL2N2N611C https://www.reuters.com/business/aerospace-defense/eu-court-backs-ryanai...

https://www.brusselstimes.com/news/belgium-all-news/170198/state-aid-rya...

https://www.dw.com/en/ryanair-wins-eu-legal-challenge-to-airline-state-a...

Kategória: State SubsidiesEuropean UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
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Safeguarding consumer interest in EU energy markets

3 hónap 1 hét ago

Introduction[*]

The right to have access to public services (in EU terminology ’services of general interests’, SGIs and ‘services of general economic interests’, SGEIs) is of crucial importance for citizen. It has also been confirmed by the Charter of Fundamental Rights of the European Union.[i] This right involves the requirement for establishing an effective consumer protection regime both at the national and the EU level.

Due to the evolution of the legal framework, the EU is an important supranational actor in the regulation of public services today. The paper analyses the evolution of consumer protection in this field from the very beginning stage of the European integration until today, with a special focus on secondary legislation of the European Union aiming at liberalization in the energy sector. In doing so, our analysis focuses on the content of universal services, the scope of social protection granted to consumers with special needs, as well as the ‘market-based’ consumer rights in the selected regulatory areas. In this context, we also examine the role and degree of discretionary powers left to national authorities in defining the underlying concepts and ‘appropriate’ measures needed to take to protect the interests of consumers. Finally, we examine on the basis of some examples from the electricity and gas sectors, whether the relevant European and national rules are able to grant a real safeguard for consumer interests in any case.

1 The concept of the consumer and services of general interests

In EU consumer law documents[ii] the 'consumer' is generally defined as a private, human person who purchases goods or services for purposes outside their trade, business or profession. Therefore, at the very beginning stage of the European integration, the ‘consumer’ has fallen outside the realm of SGI regulation, since these sectors (telecommunications, railways, postal services, electricity and gas) were traditionally operated under the ownership, control or strong oversight of the state and public bodies (Johnston, 2016: 93). It means that there was a quite clear distinction between ‘citizens’ as recipients of public services and consumers as equivalent category in other sectors operating under normal market rules. Such a distinction is a logical consequence of the fact that, before the adoption of the Single European Act (SEA) of 1986, the matter of public service provision was not at the heart of the European integration process. In line with the principle of subsidiarity under Article 5 of the Treaty of European Union (hereinafter TEU), a consensus has been reached between the Member States that each country has the competence to organize and finance its basic public services (Bauby, 2014, 99). The "Europeanization of public services"[iii] started only in the mid-eighties with the entry into force of the Single European Act. The SEA, together with the Commission's white paper on reforming the common market, set the objective of the creation of a single market by 31 December 1992. As the national markets in transport and energy have become integrated with this conception, public service obligations have been obstacles to market creation (Opinion of AG Colomer in case C-265/08 Federutility;[iv] Prosser 2005, 121).

2 Consumer protection in the energy sector

The process of liberalization of energy services started in the mid-nighties. While the liberalization was extensive, for instance, in electronic communications, the energy market remained dominated by the presence of natural monopolies, where the specific public service grounds (universal service obligation, security of supply, environmental concerns) gave the Member States more opportunities to derogate from market liberalization (Prosser 2005, 174 and 192–194; Hancher and Larouche, 2011).

Measures for liberalization were adopted both in the electricity and the gas sectors. Consumer rights have gradually been extended in subsequent „energy packages”, i. e. in the amendments of the first electricity and gas directives. The first directives permitted Member States to impose on undertaking operating in the electricity/gas sector public service obligations „which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, energy from renewable sources and climate protection.”[v] As we can see, public service obligations formulated this way are wideranging and universality of service provision is not the key to these PSOs (Sauter, 2014, 199). The second electricity directive already contained a separate provision on universal services, an identical clause, however, was missing from the second and also from the third gas directive. The USO provision remained essentially unchanged in the (currently applicable) third electricity directive obliging Member States to ensure that all household customers, and, where Member States deem it appropriate, small enterprises (namely enterprises with fewer than 50 occupied persons and an annual turnover or balance sheet not exceeding EUR 10 million), enjoy universal service. The fourth electricity directive (which has to be transposed by 31st December 2020 into Member States’ legislation) slightly modified the USO clause by repealing the ’small enterprises’ classification thresholds (related to the number of occupied persons and the annual turnover/balance sheet).

While the measures of the first energy package did not contain any social provisions, their subsequent amendments brought significant changes in this respect as well. The second electricity[vi] and gas[vii] directives empowered Member States to take special measures for vulnerable costumers, including the protection of final customers in remote areas. The third energy package elaborated this authorisation further by providing that „each Member State shall define the concept of vulnerable customers which may refer to energy poverty and, inter alia, to the prohibition of disconnection of electricity to such customers in critical times”.[viii] Additionally, in the gas sector, the lack of USO provision has been compensated by broader consumer protection instruments by obliging Member States to take measures on the formulation of national energy action plans that provide social security benefits to ensure necessary gas supplies to vulnerable customers and to address energy poverty, ‘including in the broader context of poverty’. Thus, the general social security system instead of a specific universal service obligation is preferred here (Sauter, 2014, 200). (An identical provision was also included by the third electricity directive, it has, however, a less significant role due to the existence of a separate USO clause in this directive.) The fourth electricity directive devotes a separate provision to vulnerable costumers. The new Article 28 adds a further element to the existing concept (see above) by saying that „The concept of vulnerable customers may include income levels, the share of energy expenditure of disposable income, the energy efficiency of homes, critical dependence on electrical equipment for health reasons, age or other criteria.”

As regards other rights granted to users, EU energy legislation also introduced an extensive consumer protection regime. The second electricity and gas directives already contained detailed provisions on consumer protection measures (both directives in a separate Annex A). One is that consumers have a right to a contract with specified elements laid down in Annex A, and the service provider must communicate in advance, to consumers, the specific information to be included in the contract. Moreover, service providers must publish information about tariffs and terms/conditions applicable in their relations with clients and a wide choice of payment methods must be granted. Customers must also be warned about their rights regarding the provision of the universal service (Nihoul, 2009). Furthermore, a dispute settlement mechanism was introduced, authorizing the regulatory authority to take decisions on complaints against transmission or distribution system operators, in the framework of „transparent, simple and inexpensive procedures”. This set of rights was supplemented by further ones in the third electricity and gas directives such as the right to be able to switch their energy contracts within three weeks. The electricity directive also laid down a general objective that at least 80% of the consumers must be equipped by intelligent metering systems by 2020. The fourth electricity directive went even further by inserting a separate chapter on consumer empowerment and protection.[ix] It includes, among others, the right to join a citizen energy community, the right to a dynamic price contract (based on prices in the spot or day-ahead market) and the right to request the installation of a smart meter within 4 months.

3 The impact of energy packages on national legislation: The challenges of price regulation

Although we can see in all the three sectors that subsequent measures developed into a more and more extensive and detailed regulation of consumer’s rights, it remains a question, whether the specific provisions are able to grant a real safeguard for consumer interests in any case.

As was already mentioned, ensuring access to basic public services at affordable prices is an essential element of a universal service obligation. The question is, first and foremost, whether the requirement for granting affordable consumer prices is able to be met in a liberalized market, without any public intervention. In the early 2000s, central regulation of energy prices still existed in the majority of EU Member States, often explained by the rising oil prices on the international markets and therefore the need to prevent consumers from paying the increased cost of the raw material. The European Commission, in its communication of 2007 summarising the experiences after adoption of the second energy package, established that intervention in gas (and electricity) pricing was simultaneously one of the causes and one of the effects of the current lack of competition in the energy sector. The Commission saw, on the one hand, ‘regulated prices preventing entry from new market players’ among the main obstacles in the transposition of the second energy and gas directives. On the other hand, it also highlighted that, as a result, ‘incumbent electricity and gas companies largely maintain their dominant positions’, which had ‘led many Member States to retain tight control on the electricity and gas prices charged to end-users’.

With the aim of reconciling the interest of liberalization and the need to ensure access for consumers to public services, the possibility of intervention in the price of supply is contemplated in the electricity and gas directives as well. From the adoption of the second energy package onwards, Member States are expressly permitted to impose public service obligations on undertaking operating in the electricity and gas sectors, which may in particular concern „the price of supplies”. In this context, it is also emphasized that „public service requirements can be interpreted on a national basis, taking into account national circumstances […]”. In addition, the gas directive authorizes Member States to take „appropriate measures” to protect final costumers, especially vulnerable ones, and to ensure high levels of consumer protection. Such an authorisation is inherent in the universal service obligation provided by the electricity directive, including the obligation to protect the right of consumers to be supplied with electricity at reasonable prices.

Though certain forms of price regulation (cutting utility fees etc.) might be among the most serious interventions into market trends, the CJEU interprets the scope of the above authorizations quite broadly. In the Federutility case, Italy adopted a Decree Law in 2007 (just a few days before 1 July, which was the deadline for completing the liberalization of the gas market under the second gas directive) which allocated to the national regulatory authority the power to define ’reference prices’ for the sale of gas to certain costumers. The reference prices had to be incorporated by distributors and suppliers into their commercial offers, within the scope of their public service obligations. The CJEU established that the second gas directive did not preclude national legislation of this kind provided that certain conditions (aiming at safeguarding competition on the gas market) defined by the Court were met.[x] In its ANODE judgment of 2016 (issued in a case concerning regulated gas prices in France), the CJEU extended the application of the principles set out in the Federutility ruling to the third gas directive too.

Although the Federutility judgment is generally seen as largely reducing Member States’ powers in price regulations, some notes should be taken in this regard. Firstly, the CJEU has not defined its position on the legality of the Italian legislation but left the final decision to the national court (submitting the request for preliminary ruling). As a result, the Italian regime survived the CJEU procedure and remained, with some modification, in force (Nagy, 184; Cavasola–Ciminelli [2012] 114.). Secondly, it is doubtful, whether the Federutility ruling encompasses only general industry-wide price regulation or it extends also to prices secured through a universal service provider (Nagy, 184). The question is crucial since, although natural gas is not considered to be an EU universal service, quite a few Member States characterize it as such (Nagy, 184) as the gas directive neither contains a prohibition to do this. Finally, the ’Federutility test’ seems rather to be able to filter obvious breaches of the above principles only (like in the Commission v Poland case) and not to address complex or structural problems which might be hidden behind well-formulated national provisions.

When evaluating the impact of subsequent energy packages and relevant CJEU case-law from a consumer perspective, one must consider the development of retail electricity and gas markets in recent years. A high number of suppliers and low market concentration is viewed as the indicators of a competitive market structure. CEER (Council of European Energy Regulators) data of 2014 show that retail electricity and gas markets for households were still highly concentrated in more than 2/3 of the EU Member States and the situation has remained largely unchanged in the last few years. In 2019, Hungary, Lithuania, Croatia and Luxembourg recorded the highest values (between 95% and 100% concentration rate). Figure 1 illustrates the number as well as the cumulative market shares of main natural gas retailers[xi] to final (not only household) costumers for 24 EU Member States and the United Kingdom in 2018. As we can see, in the majority of Member States, the retail natural gas market is dominated by a limited number of main retailers, while the market coverage of non-main companies is below 40% in almost all the countries (except of Croatia, Italy and Germany).

Figure 1. Number of main natural gas retailers to final customers and their cumulative market share, 2018

Source: Eurostat

According to data from 2019, public price intervention still exists in certain Member States, both in the electricity and the gas sectors. 80% of these countries reported that the reason for intervention in the price setting is the protection of consumers against price increases. The long-term market impact of these measures may even be detrimental to consumers themselves. The ability of users to effectively make choices between suppliers is one of the key indicators for a well-functioning energy retail market. Such an ability is often measured by switching rate which is calculated by dividing the number of consumers who switched suppliers in a given period by the total number of consumers on the market. In line with the Commission’s observation quoted above, today it is also true that countries with regulated retail prices tend to have lower levels of retail competition as regulated prices discourage entry and innovation, increase suppliers’ uncertainty regarding long term profitability levels and reduce consumers’ incentive to switch supplier. CEER data of 2016 show a clear correlation between the share of household customers under regulated prices and the average number of suppliers per citizens. It is also indicated that switching rates in Member States that have either deregulated or had a minority share under regulated prices are substantially higher than in markets where a majority of households are under regulated prices, both in the electricity and the gas sectors. According to the ACER (European Union Agency for the Cooperation of Energy Regulators) Market Monitoring Report of 2019, regulated prices are in the first place among regulatory barriers of switching.

In sum, the above analysis suggests that interventionist measures taken by Member States for the protection of consumers rather strengthen a way towards fragmentation than integration of energy retail markets. Moreover, the gradually extension of Member States’ power to deviate from the general rules of the energy directives on the basis of the social legitimacy of such measures (as laid down by the directives themselves) may hide further dangers for the functioning of the internal market. In particular, the objective of consumer protection may be (mis)used to hide the initial aim of certain forms of public intervention (like price regulation having the effect of excluding targeted actors from the market).

Conclusions

At the beginning stage of the European integration, the ‘consumer’ has fallen outside the realm of SGI regulation at the EU level, since public services sectors were traditionally organized and financed by states or public entities without being open to competition in international markets. This approach has changed in the mid-eighties, with an extensive liberalization process engaged by the Single European Act which also extended to significant economic sectors of public services such as electricity, gas, water supply or waste management. The ‘paradigm shift’ has also changed the position of the consumer from a mere ‘user’ to be supplied to a relevant market actor. Initially, the liberalization program was based on the presumption that the interests of consumers could best be served via the processes of market opening and competition, unless the pursuit of other legitimate objectives beyond competition and free trade was in itself justifiable (Johnston, 2016, 95). Over time, the scope and significance of these ‘other objectives’ increased. This is particularly true for the energy sector, where the protection of consumers (especially vulnerable ones) gradually received a higher rank in the legislative packages. In this line, Member States’ power to safeguard consumer interest by measures deviating from the general rules of sector liberalization has also been extended.

The examples analysed in the paper have also shown that the interest of consumer protection is able to legitimize not only the promotion of liberalization (as was stated by the above mentioned authors) but also the extension of national regulatory competences in the field of public services. The relevant European legislative framework also supported this line of evolution or at least it did not raise any serious obstacles to enhance Member States’ powers, even to the detriment of consumers.

 

For a list of references, click HERE.

Author: Ildikó Bartha, Senior Research Fellow, MTA-DE Public Service Reserch Group; Associate Professor, University of Debrecen, Faculty of Law

[*] The study was made under the scope of the Ministry of Justice’s program on strengthening the quality of legal education.

[i] See Article 36. Charter of Fundamental Rights of the European Union.

[ii] See for instance Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L 171, 7.7.1999, pp. 12-16, Art. 1(2)(a)

[iii] Term borrowed from Bauby and Similie (2016a, 27).

[iv] ECLI:EU:C:2009:640

[v] Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity, OJ L 27, 30.01.1997 pp. 20–29, Art. 3(2); Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas, OJ L 204, 21.7.1998, pp. 1–12

[vi] Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC, OJ L 176, 15.7.2003, pp. 37–56

[vii] Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, OJ L 176, 15.7.2003, pp. 57–78

[viii] Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC, OJ L 211, 14.8.2009, pp. 55–93, Art. 7(3); Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, OJ L 211, 14.8.2009, pp. 94–136, Art. 3(3)

[ix] Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU, OJ L 158, 14.6.2019, pp. 125–199, Art. 10–29

[x] These conditions are the following: the intervention constituted by the national legislation (1) pursues a general economic interest consisting in maintaining the price of the supply of natural gas to final consumers at a reasonable level; (2) compromises the free determination of prices for the supply of natural gas only in so far as is necessary to achieve such an objective in the general economic interest and, consequently, for a period that is necessarily limited in time; and (3) is clearly defined, transparent, non-discriminatory and verifiable, and guarantees equal access for EU gas companies to consumers.

[xi] Retailers are considered as "main" if they sell at least 5% of the total natural gas consumed by final customers.

Kategória: European UnionBrexit Eng: Fogyasztóvédelem: Consumer Protection: 16th Anniversary: 
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