On Tuesday, I wrote about the speech by EU Commissioner Almunia of Monday. I mentioned Article 194, and wrote:
He may also want to take a look at Article 194 of the Treaty on the Functioning of the European Union. That Article guarantees “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”.
Mark Johnston kindly looked at that post and stated that he disagrees. On Twitter, he said:
A194 clearly says EU energy rules without prejudice to other EU laws e.g. on pollution control, subsidy control & internal market.
That is true. Article 194, Paragraph 2 says:
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.
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, without prejudice to Article 192(2)(c). (Emphasis mine, the part in bold is what Johnston is referring to).
Let’s go through the three areas Johnston mentions one by one.
“Pollution control” probably refers to what the Treaty calls “Union policy on environment” (Articles 191 to 193). Those articles don’t give the Commission any power to overrule Germany on the feed-in tariff.
Especially Article 192 is relevant here, since there is also a reference to that Article in Article 194.
Paragraph 1 gives the European Parliament and the Council a competence to act in accordance with ordinary legislative procedure to achieve the policy objectives listed in Article 191. It does not give the Commission any power.
Paragraph 2 limits the power under Paragraph one. In the areas listed here, an unanimous decision of the Council is required, protecting the rights of the Member States to decide on these issues themselves. One of the areas protected against a power grab by the European Union is:
(c) measures significantly affecting a Member State’s choice between different energy sources and the general structure of its energy supply.
Again, just as in Article 194, we see that the Treaty wants to respect the right of Member States to decide on energy matters, and frowns upon the idea that EU institutions may be able to decide on the Member States’ energy mix.
Next up in Johnston’s tweet is the area of subsidy control. In that area, the Commission does have powers under Article 108 of the Treaty.
As far as feed-in tariffs are concerned, those powers depend on the question if feed-in tariffs are subsidies under EU law, which in the opinion of the European Court of Justice in PreussenElektra they are not.
I’ll skip discussing internal market rules in detail and just conclude that they don’t give the Commission the power to overrule Germany on feed-in tariffs either.
So, again, I think it is none of the Commission’s business how Germany reforms the Law on Priority for Renewable Energy until next spring. That is for the coalition between CDU and SPD to decide.
And as far as Article 194 is concerned, for the very least that Article wants to keep some decisions about energy in the competence of the Member States, as does Article 192. Trying to work around that by declaring feed-in tariffs to be subsidies would be not compatible with that basic decision.
The Commission has outlined its ideas on renewable energy support policy in a Communication of November 5, which calls for abolishing feed-in tariffs, a very bad idea in my opinion. Therefore, I don’t trust the Commission at all with these policy decisions. That is one reason for me to fiercely oppose any power grab by the Commission.
But the more important reason is that of basic democratic values. Again, nobody in Germany voted for Almunia in the latest election. He has no democratic legitimacy to decide these issues unilaterally.