Alessandro Consonni (Italy)
The rise of renewable sources within the European Union’s energy policy
The energy sector falls within the shared competence - defined by article 4 paragraph 2 of the TFEU - in which both the Union and the Member States are authorized to adopt binding acts but the latter can exercise their power only in an ancillary and complementary manner. In other words, just to put it more simply, Member States can only intervene when the EU itself has not exercised or has decided to decline its authority. Sure enough, the adoption of a legislative act by the EU in an area of shared competence necessarily entails a certain harmonization of the national legislation, thereby relieving the Member States of their national competencies. The definition of clean energy understood as a source not subject to running out deals with the interpretation of article 2 paragraph 1 point 1 of Directive (EU) 2018/2001. According to this provision energy from renewable sources means energy from renewable non-fossil sources, namely wind, solar - solar thermal and solar photovoltaic -, geothermal energy, ambient energy, tide, wave and other ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogas.
The European legislator has always been particularly active and attentive to the regulation of the energy sector, since the time of the founding Treaties of the ECSC and Euratom, however, it was necessary to wait until the introduction of Title XXI in the TFEU to see the promotion of clean energy among the primary goals of EU’s energy policy. Thanks to the signing of the Lisbon Treaty on 13 December 2007, it was possible to dedicate an entire title of the TFEU - made up of the sole article 194 - to energy. In line with paragraph 1, Union policy on energy, about the need to preserve and improve the environment, shall aim in primis to ensure the security of energy supply in the Union, to promote energy efficiency as well as energy saving but above all the development of new and renewable forms of energy. Nevertheless, this provision must be read in the light of the idea behind the Single Market - which must always be stoutly defended by the European Court of Justice - as the cornerstone of European construction, dear to Jacques Delors, in which competition stimulates, cooperation strengthens and solidarity unites.
The strong relationship between energy and the environment is, since the dawn of time, irrefutable even within the EU regulatory framework, so much so that different academics hold to be true that the ascent at the European level of energy policy in the renewable field is due essentially to its explicit reference to the purposes, of a European and international dimension, of environmental sustainability and security of energy supply. Evidence for this is provided by Article 191 TFEU - placed at the beginning of Title XX - where paragraph one states that, when it comes to environmental policy, the Union has to contribute to the pursuit, first and foremost, of the objectives of “prudent and rational utilization of natural resources” and “promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change”. The European Parliament and the Council, according to the following article 192, acting under the ordinary legislative procedure with prior consultation of the Economic and Social Committee and the Committee of the Regions, are responsible for the actions that must be undertaken by the Union to achieve the aims set out in article 191 and to adopt the general action programs which contain the priority objectives to be achieved.
The European legislator, through the drafting of these two provisions, has not only adopted what has been enshrined in the Kyoto Protocol but has also developed its legislation to ensure effective implementation. Hence, the community intervention in the green energy sector plunges its roots into the urgent need to limit and reduce the considerable dependence of Member States on non-EU energy as well as the fear of the dispersion of toxic substances in the ecosystem. The greater use of energy from renewable sources, as underlined by the introductory remarks to the directive (EU) 2018/2001, can play a significant role in the challenge of guaranteeing sustainable energy at affordable prices and fostering technological development. At the same time, this sector will have a big role in the creation of numerous jobs as well as in regional growth, especially in rural and isolated areas with low population density or subject to partial deindustrialization.