Legal provisions of COM(2016)53 - Establishing an information exchange mechanism on intergovernmental agreements and non-binding instruments between Member States and third countries in the field of energy

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dossier COM(2016)53 - Establishing an information exchange mechanism on intergovernmental agreements and non-binding instruments between Member ...
document COM(2016)53 EN
date April  5, 2017


Article 1

Subject matter and scope

1. This Decision establishes a mechanism for the exchange of information between Member States and the Commission with regard to intergovernmental agreements in the field of energy as defined in Article 2, in order to ensure the functioning of the internal energy market and enhance the security of energy supply in the Union.

2. This Decision does not apply to intergovernmental agreements which are already, in their entirety, subject to other specific notification procedures under Union law.

Article 2

Definitions

For the purposes of this Decision the following definitions apply:

(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:

(a)the purchase, trade, sale, transit, storage or supply of energy in or to at least one Member State; or

(b)the construction or operation of energy infrastructure with a physical connection to at least one Member State;

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.

Article 3

Notification obligations with respect to intergovernmental agreements

1. When a Member State intends to enter into negotiations with a third country or an international organisation in order to amend an intergovernmental agreement or to conclude a new intergovernmental agreement, the Member State shall inform the Commission in writing of its intention at the earliest possible moment before the envisaged opening of the negotiations.

The Member State concerned should keep the Commission regularly informed of the progress of the negotiations. The information provided to the Commission shall include an indication of the provisions to be addressed in the negotiations and the objectives of the negotiations in accordance with Article 8.

2. As soon as an agreement has been reached by the parties on all the main elements of a draft intergovernmental agreement relating to gas or oil or an amendment to an intergovernmental agreement relating to gas or oil, but before the closure of formal negotiations, the Member State concerned shall notify to the Commission the draft agreement or amendment, including any annexes thereto, for ex-ante assessment in accordance with Article 5.

Where that draft agreement or amendment refers explicitly to other texts, the respective Member State shall also submit those other texts in so far as they contain elements which concern the purchase, trade, sale, transit, storage or supply of gas or oil in or to at least one Member State or the construction or operation of gas or oil infrastructure with a physical connection to at least one Member State.

3. Where a Member State negotiates an intergovernmental agreement or amendment relating to electricity and has been unable, on the basis of its own assessment, to reach a firm conclusion as to the compatibility of the intergovernmental agreement or amendment under negotiation with Union law, it shall notify to the Commission the draft agreement or amendment, including any annexes thereto, for ex-ante assessment in accordance with Article 5, as soon as an agreement has been reached by the parties on all the main elements of that draft, but before the closure of formal negotiations.

4. Member States may avail themselves of the first and second subparagraphs of paragraph 2 for intergovernmental agreements or amendments relating to electricity.

5. Upon ratification of an intergovernmental agreement or of an amendment to an intergovernmental agreement, the Member State concerned shall notify the intergovernmental agreement or amendment, including any annexes thereto, to the Commission. Where the Commission has issued an opinion pursuant to Article 5(2), and the Member State concerned has departed from the Commission's opinion, that Member State should, without undue delay, explain to the Commission in writing the reasons underlying its decision.

Where the ratified intergovernmental agreement or amendment to the intergovernmental agreement refers explicitly to other texts, the Member State concerned shall also submit those other texts in so far as they contain elements which 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.

6. The obligation to notify to the Commission pursuant to paragraphs 2, 3 and 5 does not apply in respect of agreements between undertakings.

Where a Member State is in doubt as to whether an agreement constitutes an intergovernmental agreement and thus whether it is to be notified in accordance with this Article and Article 6, the Member State shall consult the Commission without delay.

7. All notifications pursuant to paragraphs 1 to 5 of this Article and to Article 6(1) and (2) shall be made through a web-based application provided by the Commission. The periods referred to in Article 5(1) and (2) and Article 6(3) shall start to run on the date when the complete notification file has been registered in the application.

Article 4

Assistance from the Commission

1. Where a Member State gives the Commission notice of negotiations pursuant to Article 3(1), the Commission services may provide it with advice on how to avoid incompatibility with Union law of the intergovernmental agreement or of the amendment to an intergovernmental agreement under negotiation. Such advice may include relevant optional model clauses and guidance that the Commission develops in consultation with Member States in accordance with Article 9(2).

The Commission services may also draw the attention of the Member State concerned to the relevant Union energy policy objectives, including on the Energy Union.

That Member State may also request the assistance of the Commission in those negotiations.

2. At the request of the Member State concerned, the Commission may participate in the negotiations as an observer. The Commission may request to participate in the negotiations as an observer where it considers this to be necessary. The Commission's participation shall be subject to the written approval of the Member State concerned.

3. Where the Commission participates in the negotiations as an observer, it may provide the Member State concerned with advice on how to avoid incompatibility with Union law of the intergovernmental agreement or amendment under negotiation.

Article 5

Assessment by the Commission

1. The Commission shall, within 5 weeks of the date of notification of the complete draft intergovernmental agreement or amendment, including any annexes thereto, pursuant to Article 3(2), inform the Member State concerned of any doubts it may have as to the compatibility with Union law of the draft intergovernmental agreement or amendment. In the absence of a response from the Commission within that period, the Commission shall be deemed not to have any such doubts.

2. Where the Commission informs the Member State concerned pursuant to paragraph 1 that it has doubts, it shall provide the Member State concerned with its opinion on the compatibility with Union law, in particular with internal energy market rules and Union competition law, of the draft intergovernmental agreement or amendment within 12 weeks of the date of notification referred to in paragraph 1. In the absence of an opinion from the Commission within that period, the Commission shall be deemed not to have raised any objections.

3. With the approval of the Member State concerned, the periods referred to in paragraphs 1 and 2 may be extended. The periods referred to in paragraphs 1 and 2 shall be shortened in agreement with the Commission if circumstances so warrant, in order to ensure that the negotiations are concluded in due time.

4. The Member State shall not sign, ratify or agree to the draft intergovernmental agreement or amendment until the Commission has informed the Member State of any doubts, in accordance with paragraph 1, or, where applicable, has issued its opinion in accordance with paragraph 2, or, in the absence of a response or opinion from the Commission, until the period referred to in paragraph 1 or, where applicable, that referred to in paragraph 2, has elapsed.

Before signing, ratifying or agreeing to an intergovernmental agreement or amendment, the Member State concerned shall take utmost account of the Commission's opinion referred to in paragraph 2.

Article 6

Notification obligations and assessment by the Commission with respect to existing intergovernmental agreements and to new intergovernmental agreements relating to electricity

1. By 3 August 2017 Member States shall notify to the Commission all existing intergovernmental agreements, including any annexes and amendments thereto.

Where the existing intergovernmental agreement refers explicitly to other texts, the Member State concerned shall also submit those other texts in so far as they contain elements which 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.

The obligation to notify to the Commission laid down in this paragraph does not apply in respect of agreements between undertakings.

2. Existing intergovernmental agreements which have already been notified to the Commission in accordance with Article 3(1) or (5) of Decision No 994/2012/EU, or with point (a) of Article 13(6) of Regulation (EU) No 994/2010 of the European Parliament and of the Council (5) on 2 May 2017 shall be considered to have been notified for the purposes of paragraph 1 of this Article, provided that the notification meets the requirements of that paragraph.

3. The Commission shall assess intergovernmental agreements notified in accordance with paragraph 1 or 2 of this Article, as well as intergovernmental agreements relating to electricity notified in accordance with Article 3(5). Where, following its first assessment, the Commission has doubts as to the compatibility of those agreements with Union law, in particular with internal energy market rules and Union competition law, the Commission shall inform the Member States concerned accordingly within 9 months of the notification of those agreements.

Article 7

Notification with respect to non-binding instruments

1. Before or after the adoption of a non-binding instrument or an amendment to a non-binding instrument, the Member States may notify the non-binding instrument or the amendment, including any annexes thereto, to the Commission.

2. Member States may also notify to the Commission existing non-binding instruments, including any annexes and amendments thereto.

3. Where the non-binding instrument or the amendment to a non-binding instrument refers explicitly to other texts, the Member State concerned may also submit those other texts in so far as they contain elements which set out the conditions for energy supply, such as volumes and prices, or for the development of energy infrastructures.

Article 8

Transparency and confidentiality

1. When providing information to the Commission in accordance with Article 3(1) to (5), Article 6(1) and Article 7, a Member State may indicate whether any part of the information, be it commercial or other information the disclosure of which could harm the activities of the parties involved, is to be regarded as confidential and whether the information provided can be shared with other Member States.

A Member State shall make such an indication with regard to the existing agreements referred to in Article 6(2) by 3 August 2017.

2. Where a Member State has not identified the information as confidential in accordance with paragraph 1, the Commission shall make that information accessible in secure electronic form to all other Member States.

3. Where a Member State has identified as confidential in accordance with paragraph 1 an existing intergovernmental agreement, an amendment thereto or a new intergovernmental agreement, that Member State shall make available a summary of the information submitted.

That summary shall contain at least the following information regarding the intergovernmental agreement or amendment:

(a)its subject matter;

(b)its aim and the scope;

(c)its duration;

(d)the parties thereto;

(e)information on the main elements thereof.

This paragraph shall not apply to information submitted in accordance with Article 3(1) to (4).

4. The Commission shall make the summaries referred to in paragraph 3 accessible in electronic form to all other Member States.

5. Requests for confidentiality under this Article shall not restrict the access of the Commission itself to confidential information. The Commission shall ensure that access to the confidential information is strictly limited to the Commission services for which it is absolutely necessary to have the information available. Commission representatives shall handle sensitive information about negotiations relating to intergovernmental agreements, which is received during such negotiations in accordance with Articles 3 and 4, with due confidentiality.

Article 9

Coordination among Member States

1. The Commission shall facilitate and encourage coordination among Member States with a view to:

(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.

2. By 3 May 2018, the Commission shall, on the basis of best practices and in consultation with Member States, develop optional model clauses and guidance, including a list of examples of clauses that do not respect Union law and should therefore not be used. Such optional model clauses and guidance would, if applied correctly, significantly improve compliance of future intergovernmental agreements with Union law.

Article 10

Reporting and review

1. By 1 January 2020, the Commission shall submit a report on the application of this Decision to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

2. The report shall, in particular, assess the extent to which this Decision promotes compliance of intergovernmental agreements with Union law, including in the field of electricity, and a high level of coordination between Member States with regard to intergovernmental agreements. It shall also assess the impact that this Decision has on Member States' negotiations with third countries and whether the scope of this Decision and the procedures it lays down are appropriate. The report shall be accompanied, if appropriate, by a proposal to revise this Decision.

Article 11

Repeal

Decision No 994/2012/EU is repealed with effect from 2 May 2017.

Article 12

Entry into force

This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 13

Addressees

This Decision is addressed to the Member States.