The strange case of the missing EU guidelines

Berlaymont building

On 5 November last year with typical fanfare the EU Commission issued six documents under the main title of “Delivering the internal electricity market and making the most of public intervention”. The 200-page package is (or perhaps was) intended to provide guidance on national interventions in the electricity market in addition to existing rules.

An overall “communication” and five “staff working documents” were the result of more than a year’s work by EC staff. This work included also an earlier communication, a public consultation exercise and 27 country reports. All documents can be found on this Commission web-page (for as long as the page exists).

In the run-up to launching the papers on 5 November something about the draft “communication” was bugging me. As you see below, the document was given a C number rather a COM number, which for a communication is a mistake.

Screenshot 2014-03-31 at 8.39.22 PM

Officials I have since spoken with claim that there is no error. Though, as I hope to explain below, I think such responses act only as a cover to avoid embarrassment. (EC document classifications are summarised here and the specific registry entry is here.)

Perhaps last year’s ‘old news’ can be set aside? No. There are two reasons why I think this still matters today; one about the past and one about the future.

First the past. Final versions of EU public documents that have some lasting legal or other reference value, including all communications, are all either published in the EU Official Journal (OJ) or are otherwise added to the EurLex database.

Thousands of laws and other reference texts on all subjects are routinely catalogued, archived and so are searchable in one location in any EU language by anyone. By imposing such order, clarity and accountability of EU policies are strengthened.

The risk is that misclassified or unclassified documents can fall out of this system, which is what I think has happened in this case.

The main document that began its drafting as a communication (or COM document, with a specific template) was I think, part-way through, reclassified as a C document (decision, or other act, with a different template) but without the necessary thought or changes to the form the new text was intended to take.

Thus the main document has fallen into a void between two categories, none of the six documents have appeared in OJ or EurLex and only one of the six documents was translated.

Consequently the validity and use of the package by national administrations and others is open to question and any legal certainty for market participants is eroded not gained.

In contrast, guidelines from DG Competition on state aids are published in the OJ in full and so translated into all official languages. (e.g. 2008 environment guidelines here.)

The second reason is about the future.

On 22 January the Commission in its 2030 “framework” communication announced what it calls a “new governance system”. (cf blog 11 February.) While such a concept has yet to be explained or elaborated, the Commission will meet with national administrations next week (10 April) to discuss the idea further. (Invite, agenda).

While I personally don’t expect much to come from this process, whatever its final outcome, it is important that the provisions of a new regime are formed according to how EU rule-making normally works, with final texts translated and published, treaty provisions respected and where appropriate legislation is agreed between all institutions. A continuation of sloppy careless drafting by DG Energy would help no one.

There are recently some signals that DG Energy, perhaps under new leadership since 1 January, is already aware what is at stake and will not repeat past mistakes. Let’s hope for all of us that this turns out to be so.

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