The principle of energy solidarity : Germany v. Poland

Abstract

The integration of European energy law and policy has proved a difficult balancing exercise. On the one hand, ever since the establishment of the European Coal and Steel Community, energy law and policy in what is now the European Union has expanded into a (legally and physically) interconnected system in which no Member State can decide on its energy policy completely unencumbered by Union energy legislation. Almost any such decision has some effect on other Member States. On the other hand, Member States have been determined to hold on to some degree of “energy sovereignty”, given how fundamental energy is to almost any economic activity. The increasingly pressing need to rapidly decarbonize the energy sector across the EU in order to mitigate the worst consequences of climate change and to follow through on the EU’s ambitious international emissions reductions commitments, have added additional complexity to the question of how and to what degree the EU can coordinate the energy decisions of its Member States. Since the Treaty of Lisbon came into force, this tension between the need to collaborate to achieve Union-wide energy objectives and to confront the climate crisis on the one hand, and the reluctance of Member States to give more power to the European level on the other, has been encapsulated in the primary law foundation of European energy law. Article 194 TFEU guarantees each Member State’s right to determine the sources and structure of its energy supply, but it also stipulates that overarching objectives of EU energy policy must be pursued in “a spirit of solidarity” between Member States.