CJEU confirms strict reading of energy unanimity requirement in legal basis case.

I reviewed Mengozzi AG’s Opinion in C-5/16 Poland v EP and Council here. The CJEU today confirmed his reading. Firstly (at 41), aim and content of the measure determines its legal basis. Not its actual effects after entry into force for that would require speculation. Further (at 43 ff) Article 191 TFEU mandates the EU to take measures to tackle climate change. The measures taken to that end necessarily affect the energy sector of Member States. A broad interpretation of point (c) of the first subparagraph of Article 192(2) TFEU would risk having the effect of making recourse to the special legislative procedure, which the Treaty FEU intended as an exception, into the general rule.

At 61: the MSR is a one-off intervention on the part of the legislature for the purpose of correcting a structural weakness of the ETS that could prevent the scheme from fulfilling its function of encouraging investment with a view to reducing carbon dioxide emissions in a cost-effective manner and being a driver of low-carbon innovation contributing to the fight against climate change. At 62 and in conclusion: it does not follow from the analysis of the aim and content of the contested decision that the first outcome pursued by that decision is significantly to affect a Member State’s choice between different energy sources and the general structure of its energy supply.

(In the remainder of the judgment the Court rejects arguments based on proportionality etc.).

This is an important day for the legal basis of EU environmental policy.

Geert.

 

 

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