By Torbjørg Jevnaker
The EU’s energy agency may get new tasks as proposed in the winter package on the energy union. It might escape standardization, but not controversy.
Recently, the European Commission presented a jumbo-package of legislative proposals for the Energy Union along with supporting documents. The so-called “Winter Package” on the energy union spans from renewables, energy efficiency, energy markets including retail markets, transport to research and development. Within the market part of the package was a proposal that envisages a greater role for the Agency for the Cooperation of Energy Regulators (ACER).
Does this mark a step towards greater alignment of ACER to the “Common Approach” on EU regulatory agencies? In 2012, Commission, the Council and the European Parliament sought to rein in and standardize the EU regulatory agencies that had multiplied over the course of a few years on a case-by-case basis. A “Common Approach” was needed to these agencies, which here were referred to as “decentralized agencies” to make them less controversial
All the while the Commission has agreed to apply common standards to EU agencies, including for ACER, it now highlights special features and thus the accompanying need for retaining deviations from the common approach: The distinction – as presented by the Commission – lies in that ACER is to coordinate national energy regulators rather than execute delegated acts i.e. decisions adopted by the Commission together with a committee of member state representatives, i.e. comitology. Thus, National regulators hold an extensive role within ACER, being organized within the Board of Regulators instead of having something like a more common Management Board.
This role of national energy regulators within the EU agency stems back to resistance of member states against delegating powers to the EU level in energy matters (Eikeland 2011, Jevnaker 2015). The pattern of member states emphasizing national sovereignty over the sector has been observed at repeated Council and particularly European Council meetings. Even after three successive energy market packages (adopted in 1996, 2003 and 2009), energy markets in Europe remain predominantly nationally regulated (Commission 2016).
Nevertheless, cross-border trade has increased over time, with additional interconnectors on the way and market coupling projects proceeding. The energy transition from fossil fuel-based electricity to renewables moreover raises the need for coordination between national energy regulators to tackle a more fluctuating energy production.
ACER was initially set up to coordinate national energy regulators, including due to the controversy surrounding the establishment of a EU energy regulator. The Commission acknowledges this in the recent Winter Package, where it explicitly notes that centralization was discarded. Moreover, the Commission made the case that changing the balance between actors at the current stage “might risk jeopardising” implementation of initiatives and thereby also energy market integration in general.
Thus, energy remains special. While parts of the literature on EU agencification has emphasized the role of functional need or pre-existing networks as important factors driving agencification in the EU, politics still matter. The national-supranational conflict line still weighs heavy on EU policymaking, even though actors are likely to position themselves differently along that axis depending on what policy-area is up for discussion. In the coming rounds in Council and the European Parliament, we are likely to witness this dimension coming forth in discussions. However, placing this issue – the role of an EU agency – within a larger package could stimulate compromise deals that enable greater change than if each piece were to be negotiated in isolation, as a package allows a give and take that enable parties to get above the least common denominator. This has been observed for the EU’s climate and energy packages for 2020 and 2030 (Skjærseth et al. 2016).
Torbjørg Jevnaker is a PhD candidate in the Department of Political Science at the University of Oslo, and studies the EU’s Climate and Energy policy. She is also a Research Fellow at the Fridtjof Nansen Institute.