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Energy, Article 194 TFEU

The EU has a long history of taking measures within the area of energy policy. However, it was only through the Treaty of Lisbon that energy got its own legal basis. According to Article 194 TFEU, the Union policy on energy shall aim to ensure the functioning of the energy market, ensure security of energy supply in the Union, promote energy efficiency and energy saving and the development of new and renewable forms of energy, and promote the interconnection of energy networks.

Without prejudice to the application of other provisions of the Treaties, the EP and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve these objectives/4 The measures shall be taken in the context of the establishment and functioning of the internal market and with regard to the need to preserve and improve the environment. However, there is an important caveat, namely that such measures shall not affect a Member State’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources, and the general structure of its energy supply/5 The provisions of Article 194 are also without prejudice to Article 192(2)(c), which allows for such measures to be adopted as part of the environmental policy and in accordance with a special legislative procedure under which the Council acts unanimously and only needs to consult the EP.

Before the introduction of Article 194 TFEU energy-related measures could be adopted within other policy areas. The directive on the energy performance of buildings was adopted as part of the environmental policy.[1] [2] [3] [4] [5] That such measures shall now be adopted based on Article 194 is clear from the fact that a recast of the directive on energy performance of buildings has been adopted based on that article.77 The Court of Justice has found that an act which, as regards its aim and content, may be considered necessary to achieve the objectives of the Union policy on energy must be based on Article 194(2) TFEU/8

Article 194 does not generally authorise the Member States to introduce or maintain more environmentally stringent measures. The new directive on the energy performance of buildings (Directive 2010/31/EU) is, however, explicit about only laying down minimum requirements (Art 1). There are also legal acts based on the energy policy competence that aim for full harmonisation/9

  • [1] This caveat has generated considerable uncertainty as to the actual scope of the Union’s competence in this area. See, inter alia, A Johnston and E van der Marel Ad Lucem? Interpreting the New EUEnergy Provision, and In Particular the Meaning of Article 194(2) TFEU’ (2013) 22 European Energyand Environmental Law Review 181—99.
  • [2] 76 Directive 2002/91/EC of the European Parliament and of the Council on the energy performance of buildings [2003] OJ L 1/65.
  • [3] Directive 2010/31/EU of the European Parliament and of the Council on the energy performance of buildings [2010] OJ L 153/13.
  • [4] Case C-490/10 Parliament v CouncilECLI:EU:C:2012:525, para 73.
  • [5] Regulation (EU) No 994/2010 of the European Parliament and of the Council concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC [2010] OJ L 295/1.
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