*Post Dr. Georgios Anthrakefs
3nd sequel
IV. The interplay between Primary and Secondary EU Law in respect of Hydrogen Regulation Hydrogen regulation in the European Union must be understood against the constitutional background of primary EU law, namely the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
These Treaties define the scope, objectives and limits of Union action and therefore structure the legal foundations upon which hydrogen-specific legislation is built. The development of a regulatory framework for hydrogen, including market design, infrastructure governance and decarbonisation measures, is not autonomous; it derives its legitimacy and direction from the constitutional architecture established by the Treaties.
At the centre of this framework lies Article 194 TFEU, which for the first time explicitly established an EU competence in the field of energy. Introduced by the Lisbon Treaty, this provision transformed energy policy from an area indirectly regulated through internal market provisions into a distinct field of shared competence.19 Hydrogen regulation is anchored in this legal basis. Article 194(1) sets out the core objectives of EU energy policy: ensuring the functioning of the energy market, safeguarding security of energy supply, promoting energy efficiency and the development of new and renewable forms of energy, and
promoting the interconnection of energy networks.20 Each of these objectives directly informs the structure and substance of hydrogen legislation. Rules on hydrogen network access, tariff regulation and unbundling derive from the objective of ensuring a functioning energy market.
Measures supporting renewable and low-carbon hydrogen production reflect the Treaty mandate to promote new and renewable energy sources. Infrastructure planning and crossborder hydrogen corridors are grounded in the objective of promoting interconnection, while diversification through hydrogen contributes to long-term security of supply. It should be underlined that until 2009, EU legislative interventions, in the absence of a specific provision, were mainly based on internal market and free competition provisions.
That said, the provisions of Article 194 of the TFEU are also of primary importance for the EU’s legal order system because, from the perspective of primary law, the express provision of a legal basis provides a clear criterion for reviewing acts of secondary EU law.21 Further, Article 194 of the TFEU not only explicitly establishes a shared sectoral competence for the EU to conduct energy policy but also, and more importantly, paragraph 1 sets out the pillars for the formulation of EU energy policy.22 Hence, the EU legal order comprises a complex web of provisions, at both the level of primary law and the level of secondary legislation, which extensively regulate the energy sector.23 Furthermore, when harmonisation measures are adopted at the EU level on issues related to fundamental choices that also affect the energy mix, this recognises the discretion of EU Member States on the relevant issues.
For example, the European Directive 2009/31/EC24, considering the controversial nature of carbon, capture and storage (CCS) technologies, Article 4 (1) provides that Member States shall retain the right to determine the areas selected for storage sites, pursuant to the requirements of this Directive. This includes the right of Member States to not allow any storage in parts or in the whole of their territory. In this way, wide discretion is recognised even for the prohibition of the technology concerned by the Member States.
However, in recent years, as evidenced by the 2018-2019 Clean Energy Package and in particular Regulation (EU) 2018/199925, the combination of EU competence with other provisions of the EU Treaty conferring competence to establish EU secondary legislation has created a particular dynamic, tending towards a multiplication of EU competences in the energy sector. Given that the Commission has the power under the above-mentioned Regulation to intervene in national energy and climate plans, the importance of Article 194 of the TFEU is much greater than might be assumed, since it essentially establishes the possibility of pursuing a pan-European energy policy as a horizontal competence. The creation of bodies such as the European Clean Hydrogen Alliance and the Clean Hydrogen Partnership reflects an effort to overcome fragmentation between Member States, industries, and research institutions.26
Instruments of secondary EU Law, such as directives and regulations, must always identify the source of the competence on which they are based. Member States are not allowed to adopt legal Acts that conflict with EU law, nor are they allowed to adopt Acts that endanger the functioning of the internal market. Thus, within the framework of a system of open and competitive markets, action by the Union shall aim to promote the interconnection and interoperability of national networks as well as access to such networks. It shall take into account in particular the need to link island, landlocked and peripheral regions with the central regions of the Union.27
The introduction of guarantees of the state sovereignty of EU Member States into primary EU law against the exploration of EU competences in the field of energy is understood in light of the establishment of an EU energy policy that is now imbued with the principle of solidarity and specifically also provided for in primary law.28 Despite these guarantees of state sovereignty in the energy sector, the EU has gradually developed its energy policy through secondary law rules, in which energy solidarity plays an increasingly important role.
This is also valid in the context of the Commission’s strategy to achieve the EU’s energy transition, which forms the basis for the adoption of the recent EU rules on the natural gas market.29
Continued…