A theoretical approach on the European energy security
The European Union has
its roots in energy, given that the ECSC and EURATOM treaties were two of the
three first texts on which the European alliance was founded. The European
Union is almost 50% dependent on imports for its energy consumption and it will
be 70% in about 15 years. A large part of its oil and gas imports will come increasingly
Security of energy
supply is a cornerstone of European energy policy. It receives specific mention
both in the Constitution Treaty and in the Lisbon Treaty. Of course, energy and
energy-generated revenues are vital for
Taking the interdependency as a point of departure the present paper answers the following questions: What are the differences and the similarities in the European and the Russian approaches towards security of energy supply? Is their understanding of energy security so different? What are the current legal instruments guiding interaction in this sphere? What are the actual trends that could give some indication of how the situation may develop in the future? – While the concepts of “security of energy supplies” or of “energy security” are theoretical in nature, the ways the concepts are understood and the legal framework for them directly influences the way they are applied in practice.
Many energy security
issues in Europe take a strong east-west slant for geographic reasons:
The political documents
of the EU contain a vast variety of measures aimed at securing stable and
affordable energy supplies to the
The most significant are:
measures and agreements aimed at creation of the single European energy space;
interaction and cooperation with the largest consumer states, inter alia within the framework of the development policy;
improvement of the access of the European companies to global energy resources;
improvement of the investment conditions in the international projects;
use of the financial instruments to increase the security of supplies;
elaboration and promotion of an energy efficiency agreement.
At present, the legal basis for cooperation in the energy sector in general, are the following international instruments: Agreement on Partnership and Cooperation (PCA) Energy Charter Treaty (ECT) and political agreements within the framework of EU-Russia Energy Dialogue. Each of the said mechanisms has its own strong and weak points.
The Partnership and Cooperation Agreement
(PCA) with Russia was the first one entered into by the
European Community. Other PCAs with the former
With respect to freedom of transit it is necessary to bear in mind the exceptions from that principle contained in the article 19 of the PCA. These exceptions provide that the Agreement shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security and also on grounds of protection of natural resources. The representatives of the European Union have repeatedly expressed concern over the obstacles for the natural gas transit from Middle Asia through the Russian Unified System of Gas Supply to the European market. However, these concerns have never been taken to formal dispute resolution under the rules of international law. It would suggest that the exception for the purposes of protection of natural resources may serve as a valid legal basis for the limitation of freedom of transit. In my opinion in such a situation the requirements of the last passage of the PCA Article 19 stating that the limitations in question shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between the Parties would not be violated. It is therefore clear that the rules of the PCA cannot guaranty the security of energy supply to European Union by means of diversification of supply and transportation from Middle Asia countries that do not have common frontier with the EU.
Article 65 of the PCA, specifically dedicated to
energy, refers to cooperation in such areas as formulation of energy policy,
improvement in management and regulation of the energy sector, introduction of
institutional, legal and fiscal conditions necessary to encourage increased
energy trade and investment, promotion of energy saving and modernization of
energy infrastructure including interconnection of gas supply and electricity
networks. Cooperation in the area of improvement of the quality and security of
energy supply in an economic and environmentally sound manner is stated as the
main priority. It is worth noting that Article
65 of the PCA with
At present the relations
The roots of the Energy
Charter date back to a political initiative launched in
The Energy Charter Treaty therefore plays an important role as part of an international effort to build a legal foundation for energy security, based on the principles of open, competitive markets and sustainable development. The Energy Charter Treaty and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects were signed in December 1994 and entered into legal force in April 1998. To date, the Treaty has been signed or acceded to by fifty-one states, the European Community and Euratom (the total number of its members is therefore fifty-three).
The Treaty was developed on the basis of the 1991 Energy Charter. Whereas the latter document was drawn up as a declaration of political intent to promote energy cooperation, the Energy Charter Treaty is a legally-binding multilateral instrument.
The fundamental aim of the Energy Charter Treaty is to strengthen the rule of law on energy issues, by creating a level playing field of rules to be observed by all participating governments, thereby mitigating risks associated with energy-related investment and trade.
Energy Dialogue was adopted during the EU-Russia summit
in 2000 to establish a strategic partnership in the energy sector which was
later called the Energy Dialogue. The reason for that was basically the refusal
Apart from this, the new Energy Dialogue could serve as a basis for bilateral cooperation. The underlying reasons were to ensure stable energy markets, reliable and growing imports and exports, to address the need to modernize the Russian energy sector and to improve energy efficiency.
establishing the Energy Dialogue, the parties put forward five major topics of
common interest. Those topics included ensuring the security of energy supplies
of the European continent, the development of the potential of the Russian
economy, in particular
energy supply in
From the legal standpoint, the Energy Dialogue represents a permanent consultative mechanism aimed at the development of international relations in the energy sector.
In general the level of
legal formalization of the security of energy supplies from
It is proposed to extend
the basic principles of the EU law, particularly the rules of competition, free
movement of goods and services, freedom of access to the energy infrastructure,
to the markets of the energy exporting countries. Such measures aimed at energy
prices reducing and establishing common requirements common for producing and
consuming countries to reduce the amount of the natural rent received by
producers. This can hardly coincide with the economy guidelines and the energy
security of the
In order to adopt and
implement an agreement which would be legally binding and effective, the
strategic interests of the
None of these countries, including
EU-Russia Energy Dialogue, Synthesis Report, Brussels/Moscow, September 2001
Konoplyanik, Andrei A. – The Energy Charter Treaty – A Russian Perspective
Youngs, Richard - Energy security: Europe's new foreign policy challenge, Routlege, 2009
Hancher, Leigh – Shared Competences and Multi-Faceted Concepts – European Legal Framework for Security of Supply
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