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Samuel Furfari: The EU’s Green Deal Has A Legal Problem

Samuel Furfari, European Scientist

The EU’s Green Deal seems to be in contradiction with the EU’s Energy Charter Treaty (ECT)

Despite COVID-19, many in Brussels – including a green recovery alliance in the EU Parliament and 13 EU Environment Ministers – are pressuring the European Commission (EC) to pursue the rapid implementation of its Green Deal strategy. The EC’s vice-president is insisting in various international newspapers that the COVID-19 crisis demonstrates the necessity to change our society to its Green Deal blueprint.

The EU Green Deal And Carbon Neutrality: A Sheer Utopia?

Let us recall briefly that the EU Green Deal imposes a drastic decrease of CO2 emissions by 2030 and a ‘carbon neutrality’ by 2050. Behind this expression, there is the hope that most of the energy used in 2050 will be renewable and that the as-tiny-as-possible use of natural gas emissions will be trapped and stored underground by a carbon-and-capture technology. Therefore, what the EU is planning is to reach near-zero emissions in the next 30 years. The drawback is that, although intermittent renewable energies have been strongly promoted by international organisations and countries for almost 50 years (since the first oil crisis), they only account for 3.1% worldwide and 2.5% of the EU primary energy demand. It does not take an expert to understand that moving to 100% is not just a challenge but a sheer utopia. Only a partial cut will be possible and at a high cost.

Past economic models and the current crisis show that degrowth can indeed cut energy consumption and contribute to reducing CO2 emissions. After the confinement period imposed to resist COVID-19, it is likely that such a degrowth-based path will not be the accepted way to achieve the Green Deal. The history of energy clearly shows that nuclear power has made a major contribution to the reduction of CO2 emissions; even the UN-IPCC recognises that nuclear power is a valid solution for decarbonation. Yet the EU does not mention nuclear energy at all in its green strategy. 

Francois Mitterand and Article 194

In the past there was no question of impinging on the sovereignty of Member States regarding primary energy sources. When the Maastricht Treaty was negotiated, Italy, Belgium and the EC, proposed the introduction of a chapter on energy in the new treaty. However, arriving in Maastricht, François Mitterrand, president of the French Republic at the time, had this chapter removed from the draft treaty, arguing that there was no question of leaving the decision on the French nuclear power future to Brussels officials. Subsequently, particularly following the gas crises between Russia and Ukraine in 2006 and 2009, attitudes changed and an inter-ministerial conference succeeded in introducing an article on energy into the Lisbon Treaty.

Article 194(1) of the current EU treaty authorises a series of energy policy provisions such as the promotion of renewable energies and energy efficiency, the creation of a single energy market and the development of interconnected energy infrastructures. But still in the spirit of François Mitterrand, Article 194(2) states clearly that the choice of energy mix remains the responsibility of Member States.

A Green Deal in contradiction with Energy Charter Treaty?

Conversely, renewable energy is and will be strongly promoted by all means and all EU Institutions. The European Investment Bank announced that it intends to support EUR 1 trillion of investment in climate action and environmental sustainability – read “renewable energy” – in the period from 2021 to 2030. The next Multiannual Financial Framework will significantly contribute to climate action – read “renewable energy” again. The EC announced that its forthcoming proposals will aim at facilitating EUR 100 billions of investment through the “Just Transition Mechanism”. These efforts must continue after 2030 to one aim : supporting renewable energy.

This indeed imposes – even if it is not de jure – renewable energies. Is this, ultimately, not imposing de facto the choice of the energy mix? Is this compatible with Article 194(2) of the Lisbon Treaty?

Furthermore, the Energy Charter Treaty (ECT) signed in 1994, also by the EU and Euratom, aims at protecting foreign fossil fuel investments. It promote energy efficiency but not the use of renewable energy. By far, not all the 53 Signatories are interested in the Green Deal and its aim to abandon the use of fossil fuels. Therefore, the Green Deal seems to be in contradiction with the ECT. This is one more legal difficulty and the simple solution would be for the EU and its member states to collectively withdraw from the ECT. This will have strong consequences for many countries, including former Soviet Union Republics exporting oil and gas. Clearly, this is a legal imbroglio. 

Everything with the Green Deal is so rapidly decided. Would it be useful to take a pause in order to allow legal scholars not belonging to the EU institutions to verify that the implementation of the Green Deal complies with the Lisbon Treaty and to properly weight a potential ECT withdrawal? 

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