Decision (EU) 2017/684 of the European Parliament and of the Council of 5 April 2017 on establishing an information exchange mechanism with regard to intergovernmental agreements and non-binding instruments between Member States and third countries in the field of energy, and repealing Decision No 994/2012/EU (Text with EEA relevance. )

12.4.2017

EN

Official Journal of the European Union

L 99/1

(1)

The proper functioning of the internal energy market requires that the energy imported into the Union be fully governed by the rules establishing the internal energy market. Transparency and compliance with Union law represents an important element in ensuring the energy stability of the Union. An internal energy market that does not function properly puts the Union in a vulnerable and disadvantageous position with regard to security of energy supply, and undermines its potential benefits to European consumers and industry.

(2)

In order to safeguard the Union’s energy supply, it is necessary to diversify energy sources and build new energy interconnections between Member States. At the same time, it is essential to increase cooperation with regard to energy security with the Union’s neighbouring countries and with strategic partners.

(3)

The objective of the Energy Union Strategy, as adopted by the Commission on 25 February 2015, is to give consumers secure, sustainable, competitive and affordable energy. Pursuing energy, trade and external policies in a coherent and consistent manner will contribute significantly to achieving that objective. More precisely, the Energy Union Strategy emphasises that full compliance of agreements related to the buying of energy from third countries with Union law is an important element in ensuring energy security, building on the analysis already carried out in the European energy security strategy of 28 May 2014. In the same spirit, the European Council in its conclusions of 19 March 2015 called for full compliance with Union law of all agreements related to the buying of gas from external suppliers, notably by reinforcing transparency of such agreements and compatibility with Union energy security provisions.

(4)

The European Parliament, in its resolution of 15 December 2015 entitled ‘Towards a European Energy Union’, stressed the need to enhance the coherence of the Union’s external energy security policies and greater transparency in energy-related agreements.

(5)

Decision No 994/2012/EU of the European Parliament and of the Council (3) has been useful for receiving information on existing intergovernmental agreements and for identifying problems posed by them in terms of their compatibility with Union law.

(6)

However, Decision No 994/2012/EU has proved to be ineffective in terms of ensuring the compliance of intergovernmental agreements with Union law. That Decision has mainly relied on the assessment of intergovernmental agreements by the Commission after they were concluded by the Member States with a third country. Experience gained in the implementation of Decision No 994/2012/EU has demonstrated that such an ex-post assessment does not fully exploit the potential for ensuring the compliance of intergovernmental agreements with Union law. In particular, intergovernmental agreements often contain no appropriate termination or adaptation clauses which would allow Member States to eliminate any non-compliance within a reasonable period of time. Furthermore, the positions of the signatories have already been fixed, which creates political pressure not to change any aspect of the agreement.

(7)

A high degree of transparency with regard to agreements between Member States and third countries in the field of energy will be of benefit in achieving both closer intra-Union cooperation in the field of external energy relations and the Union’s long-term policy objectives relating to energy, climate and security of energy supply.

(8)

In order to avoid any non-compliance with Union law and to enhance transparency, Member States should inform the Commission of their intention to enter into negotiations with regard to new intergovernmental agreements or amendments to intergovernmental agreements as soon as possible. The Commission should be kept informed regularly of the progress of the negotiations. Member States should have the possibility to invite the Commission to participate in the negotiations as an observer. The Commission should be able to request to participate in the negotiations as an observer.

(9)

During the negotiation of an intergovernmental agreement, the Commission should have the possibility to advise the Member State concerned on how to avoid incompatibility of that agreement with Union law. In that framework, the Commission should also have the possibility to draw the attention of the Member State concerned to the relevant Union energy policy objectives, solidarity between Member States and Union policy positions adopted in Council or European Council conclusions. However, this should not form part of the legal assessment of the Commission of the draft intergovernmental agreement or amendment.

(10)

In order to ensure compliance with Union law, and with due regard to the fact that intergovernmental agreements and amendments in the area of gas or oil currently have the largest relative repercussions on the proper functioning of the internal energy market and on the security of energy supply of the Union, Member States should, on an ex-ante basis, notify draft intergovernmental agreements relating to gas or oil to the Commission before they become legally binding on the parties. In a spirit of cooperation, the Commission should support the Member State in identifying compliance issues of the draft intergovernmental agreement or amendment. The Member State concerned would then be better prepared to conclude an agreement that complies with Union law.

(11)

The Commission should have sufficient time for such an assessment in order to provide for as much legal certainty as possible while avoiding undue delays. The Commission should consider shortening the periods that are provided for its assessment if appropriate, in particular if a Member State so requests or has kept the Commission informed in sufficient detail during the negotiations phase, and having regard to the extent to which the draft intergovernmental agreement or amendment is based on model clauses. In order to benefit fully from the Commission’s support, Member States should refrain from concluding an intergovernmental agreement relating to gas or oil, or an intergovernmental agreement relating to electricity where a Member State has chosen to request ex-ante assessment by the Commission, until the Commission has informed the Member State of its assessment. The Member States should take all necessary steps to reach a suitable solution to eliminate any incompatibility identified.

(12)

In light of the Energy Union Strategy, transparency with regard to past and future intergovernmental agreements continues to be of upmost importance and is an important element in ensuring the Union’s energy stability. Therefore, Member States should continue notifying to the Commission existing and future intergovernmental agreements, whether they have entered into force or are being applied provisionally within the meaning of Article 25 of the Vienna Convention on the Law of Treaties, and new intergovernmental agreements.

(13)

The Commission should assess the compatibility with Union law of intergovernmental agreements that are in force or apply provisionally on the date of entry into force of this Decision, and inform the Member States accordingly. In the event of incompatibility, Member States should take all necessary steps to reach a suitable solution to eliminate the incompatibility identified.

(14)

This Decision should apply to intergovernmental agreements. Intergovernmental agreements express, in particular in their content, and regardless of their formal designation, the intention of the parties that the agreement should have binding force, entirely or in part. Only intergovernmental agreements that concern the purchase, trade, sale, transit, storage or supply of energy in or to at least one Member State, or the construction or operation of energy infrastructure with a physical connection to at least one Member State should be notified. Where in doubt, Member States should consult the Commission without delay. In principle, agreements that are no longer in force or are no longer applied should not be covered by this Decision.

(15)

It is the legally binding force of an instrument, or of parts thereof, not its formal designation, that qualifies it as an intergovernmental agreement or, in the absence of legally binding force, as a non-binding instrument for the purposes of this Decision.

(16)

Member States establish relations with third countries not only by concluding intergovernmental agreements, but also in the form of non-binding instruments, which are often formally designated as memorandums of understanding, joint declarations, ministerial joint declarations, joint actions, joint codes of conduct, or similar terms. Because they are not legally binding, Member States cannot be legally required to implement such instruments, including where such implementation is incompatible with Union law. Even if they are not legally binding, such instruments can be used to set out a detailed framework for energy infrastructure and energy supply. In the interest of greater transparency, Member States should be able to submit to the Commission non-binding instruments, namely arrangements between one or more Member States and one or more third countries which are not legally binding and which set out the conditions for energy supply or for the development of energy infrastructures, including by containing interpretations of Union law in this respect, or amendments to such non-binding instruments, including any annexes thereto. If a non-binding instrument or an amendment refers explicitly to other texts, the Member State should also be able to submit those other texts.

(17)

Intergovernmental agreements and non-binding instruments which need to be notified in their entirety to the Commission on the basis of other Union acts or which concern matters that fall within the scope of the Treaty establishing the European Atomic Energy Community, should not be covered by this Decision.

(18)

This Decision should not create obligations as regards agreements between undertakings. However, Member States should be free to communicate to the Commission, on a voluntary basis, such agreements that are referred to explicitly in intergovernmental agreements or non-binding instruments.

(19)

The Commission should make information it receives on intergovernmental agreements available to all other Member States in secure electronic form, in order to enhance coordination and transparency between Member States, thus leveraging their negotiation power vis-à-vis third countries. The Commission should respect requests from Member States to treat information submitted to it as confidential. Requests for confidentiality should, however, not restrict access of the Commission itself to confidential information, as the Commission needs to have comprehensive information for its own assessments. The Commission should be responsible for guaranteeing the application of the confidentiality clause. Requests for confidentiality are without prejudice to the right of access to documents as provided for in Regulation (EC) No 1049/2001 of the European Parliament and of the Council (4).

(20)

If a Member State considers an intergovernmental agreement to be confidential, it should provide the Commission with a summary containing its subject matter, aim, scope, duration, the parties thereto, and information on its main elements for the purposes of sharing that summary with the other Member States.

(21)

A permanent exchange of information on intergovernmental agreements at Union level should enable best practices to be developed. On the basis of those best practices, the Commission, in cooperation with Member States, and where appropriate in cooperation with the European External Action Service as regards the Union’s external policies, should develop optional model clauses to be used in intergovernmental agreements between Member States and third countries, as well as guidance, including a list of examples of clauses that do not respect Union law and should not therefore be used. The use of such model clauses should aim to avoid conflicts between intergovernmental agreements and Union law, in particular internal energy market rules and Union competition law, and conflicts with international agreements concluded by the Union. Such model clauses or guidance should serve as a tool of reference for the competent authorities and will thus benefit increased transparency and compatibility with Union law. The use of such model clauses should be optional, and it should be possible to adapt their content to any particular circumstance.

(22)

The improved mutual knowledge of existing and new intergovernmental agreements should allow for enhanced transparency and better coordination in energy matters between Member States and between Member States and the Commission. Such improved coordination should enable Member States to benefit fully from the political and economic weight of the Union and enable the Commission to propose solutions for problems identified in the area of intergovernmental agreements.

(23)

The Commission should facilitate and encourage coordination between Member States with a view to enhancing the overall strategic role of the Union in the field of energy through a well-defined and effective coordinated approach to producer, transit and consumer countries.

(24)

Since the objective of this Decision, namely the exchange of information between Member States and the Commission with regard to intergovernmental agreements in the field of energy, cannot be sufficiently achieved by the Member States but can rather, by reason of the effects of this Decision, applicable in all Member States, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Decision does not go beyond what is necessary in order to achieve that objective.

(25)

The provisions of this Decision should be without prejudice to the application of the Union rules on infringements, State aid and competition. In particular, the Commission has the right to launch infringement proceedings in accordance with Article 258 of the Treaty on the Functioning of the European Union (TFEU), where it considers that a Member State has failed to fulfil its obligations under the TFEU.

(26)

The Commission should assess whether this Decision is sufficient and effective in ensuring compliance of intergovernmental agreements with Union law and a high level of coordination between Member States with regard to intergovernmental agreements in the field of energy.

(27)

Decision No 994/2012/EU should therefore be repealed,

(1)

‘intergovernmental agreement’ means any legally binding agreement, regardless of its formal designation, between one or more Member States and one or more third countries, or between one or more Member States and an international organisation, which concerns:

however, where such a legally binding agreement also covers issues other than those referred to in points (a) and (b), only the provisions relating to those points and the general provisions applicable to those energy-related provisions, are deemed to constitute an intergovernmental agreement;

(2)

‘existing intergovernmental agreement’ means an intergovernmental agreement which is in force, or applies provisionally on 2 May 2017;

(3)

‘non-binding instrument’ means an arrangement between one or more Member States and one or more third countries which is not legally binding, such as a memorandum of understanding, joint declaration, ministerial joint declaration, joint action or joint code of conduct, and which sets out the conditions for energy supply, such as volumes and prices, or for the development of energy infrastructures;

(4)

‘existing non-binding instrument’ means a non-binding instrument signed or otherwise agreed prior to 2 May 2017.

(a)

its subject matter;

(b)

its aim and the scope;

(c)

its duration;

(d)

the parties thereto;

(e)

information on the main elements thereof.

(a)

reviewing developments in relation to intergovernmental agreements and striving for consistency and coherence in the Union’s external energy relations with producer, transit, and consumer countries;

(b)

identifying common problems in relation to intergovernmental agreements and considering appropriate action to address those problems and, where appropriate, proposing guidance and solutions;

(c)

supporting, where appropriate, the development of multilateral intergovernmental agreements involving several Member States or the Union as a whole.