Anchoring the energy transition with legal certainty in EU law
| Date | 01 August 2020 |
| Author | Kaisa Huhta |
| DOI | 10.1177/1023263X20932056 |
| Published date | 01 August 2020 |
| Subject Matter | Articles |
Article
Anchoring the energy transition
with legal certainty in EU law
Kaisa Huhta*
Abstract
This article examines the principle of legal certainty in the context of low-carbon investment in the
electricity sector. It analyses the interpretation and functions of legal certainty as a constitutional
principle of EU law and explores how they operate in the low-carbon transition. The analysis is
conducted in the context of conflicting roles of law in the energy transition. On the one hand, the
low-carbon transition requires new investment, which demands stable and predictable legal fra-
meworks. On the other hand, the energy transition calls for the continuous development of legal
frameworks to respond to the evolving energy sector. This continuous change is detrimental to
the investment needed to finance the transition. This article argues that the principle of legal
certainty can function as a means of anchoring these evolving and sometimes turbulent legal
developments and reconcile the conflicting roles of law required by the energy transition, on the
one hand, and investment certainty, on the other.
Keywords
Energy transition, EU energy law, founding principles, investment, legal certainty
1. Introduction
The European Union (EU) energy sector is undergoing structural changes that are referred to as the
energy transition.
1
The definitions of the transition vary, but the key drivers are the same: energy
* UEF Law School and the Centre for Climate Change, Energy and Environmental Law, University of Eastern Finland,
Joensuu, Finland
Corresponding author:
Kaisa Huhta, UEF Law School and the Centre for Climate Change, Energy and Environmental Law, University of Eastern
Finland Yliopistokatu 2 Joensuu, 80101 Finland.
E-mail: kaisa.huhta@uef.fi
1. G. Verbong and D. Loorbach (eds.), Governing the Energy Transition: Reality, Illusion or Necessity? (Routledge, 2012);
F. Sioshansi (ed.), Evolution of Global Electricity Markets: New Paradigms, New Challenges, New Approaches
(Elsevier Science & Technology, 2013).
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(4) 425–444
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20932056
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production and usage must become sustainable while simultaneously remaining accessible and
available to members of society. This complex and consequential global phenomenon requires
technological, economical, political and legal efforts.
In the EU, driving the energy transition has involved the establishment and continual develop-
ment of an extensive legal framework since the 1990s. The origins of the legal framework are to be
found in the first and second energy packages, which concentrated on liberalizing the energy
markets through sector-specific rules.
2
This evolution of the energy sector has continued not only
in the third energy package, adopted in 2009,
3
but also in the legal measures that followed it
between 2011 and 2017.
4
The most recent legal instruments concerning the internal electricity
market only entered into force in July 2019 and form part of the fourth, so-called Winter Package
that promises clean energy for all Europeans.
5
Furthermore, the constitutional backbone of EU
energy law was enhanced by the energy-specific primary law provisions adopted through the 2009
2. The first energy package entered into force in 1997 and the second in 2003. See, for example, Directives 96/92/EC of the
European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in
electricity, [1997] OJ L 27/20 and 2003/54/EC of the European Parliament and of the Council of 26 June 2003 con-
cerning common rules for the internal market in electricity and repealing Directive 96/92/EC, [2003] OJ L 176/37. K.
Talus, ‘Decades of EU Energy Policy: Towards Politically Driven Markets’, 10 The Journal of World Energy Law &
Business (2017), p. 388.
3. See, for example, Directives 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning
common rules for the internal market in electricity and repealing Directive 2003/54/EC, [2009] OJ L 211/55 (hereinafter
the ‘2009 Electricity Directive’) and Directive 2009/28/EC of the European Parliament and of the Council of 23 April
2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives
2001/77/EC and 2003/30/EC, [2009] OJ L 140/16.
4. Including, but not limited to Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25
October 2011 on wholesale energy market integrity and transparency, [2011] OJ L 326; Directive 2012/27/EU of the
European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC
and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC, [2012] OJ L 315/1; Regulation (EU) No 347/
2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infra-
structure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 714/2009
and (EC) No 715/2009, [2013] OJ L 115/39; Commission Delegated Regulation (EU) 2016/89 of 18 November 2015
amending Regulation (EU) No 347/2013 of the European Parliament and of the Council as regards the Union list of
projects of common interest, [2016] OJ L 19; Regulation (EU) 2017/1938 of the European Parliament and of the Council
of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No 994/
2010, [2017] OJ L 280.
5. Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee, the Committee of the Regions and the European Investment Bank, Clean Energy For All Europeans,
COM(2016) 860 final. Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the
internal market for electricity, [2019] OJ L 158/54 (hereinafter the ‘Recast Electricity Regulation’); Directive (EU)
2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for
electricity and amending Directive 2012/27/EU, [2019] OJ L 158/125 (hereinafter the ‘Recast Electricity Directive’);
Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of
the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European
Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and
2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and
repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council, [2018] OJ L 328/1 (hereinafter
the ‘Energy Union Governance Regulation’); Directive (EU) 2018/2001 of the European Parliament and of the Council
of 11 December 2018 on the promotion of the use of energy from renewable sources, [2018] OJ L 328/82 (hereinafter
‘RED II’). In this article, these legal instruments are collectively referred to as the ‘Winter Package’.
426 Maastricht Journal of European and Comparative Law 27(4)
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