EC’s Koopman careless with EU treaties

Being ‘the Guardian of the Treaties’ isn’t just a slogan applied to the European Commission when it feels OK to do so. The saying reflects a set of requirements laid down in the primary law.

For example, Article 13 TEU* obliges all the Union’s institutions to “ensure the consistency, effectiveness and continuity of its policies and actions“. Article 17 TEU goes further, requiring the Commission in particular to:

  • promote the general interest of the Union and take appropriate initiatives to that end
  • ensure the application of the Treaties, and of measures adopted pursuant to them {emphasis added}
  • oversee the application of Union law under the control of the Court of Justice
  • execute the budget and manage programmes;
  • exercise coordinating, executive and management functions, as laid down.

So it’s a matter of concern that Gert-Jan Koopman (pictured) EC’s deputy director general for competition and in charge of state aid control takes such a careless approach to his duties as as one important guardian of the law.


When I asked him yesterday during a panel about his department’s on-going assessment the UK’s 35-year multi-billion so-far-tender-free subsidy offer for two (and potentially up to 12) huge new nuclear power plants (regarded by many as a test case for the future – or not – of Europe’s internal energy market) Koopman managed to drop the ball on several important points of law.

First he offered in reply ‘the Euratom fudge’. Citing a treaty that hardly anyone has read is often a good get-out-of-jail-free card, as wrapping an issue in a cloak of mystery means few can argue back. However Euratom in fact contains no provision bypassing the rules in the main treaties that would allow for investment and/or operating aid for new nuclear. (If anyone sees it differently, share the reference in comment box below.)

Second, there was ‘the climate benefit fudge’. Koopman claimed that, where the EU has harmonised rules such as the greenhouse gas emissions trading scheme (ETS) for cost-effective abatement from power plants, that this does not then exclude additional unilateral subsidies in support of the same objective. Wrong again. For shared competences such as climate (environmental) protection Article 2.2 TFEU states:

  • Member States shall exercise their competence to the extent that the Union has not exercised its competence. 

What does this mean in the Hinkley example? Europe’s climate ambition is now (for the most part, as there remains for now exceptions elsewhere) a Union-level competence. Under harmonised ETS rules (and unless a member state were to destroy ETS allowances, which the UK has no plans to do) aiding new nuclear generating capacity will not yield any climate benefits by way of emissions reductions. Rather, unused ETS tickets would be used elsewhere, depressing the carbon price and so slowing or stalling other mitigation actions. Burning coal in old Polish power plants, e.g., would become cheaper, and Europe’s total net emissions, at least in the sense of ETS annual allocations, would not change.

Finally, there was ‘the supply security fudge’, where Koopman claimed there are some derogations from normal free-market rules for supply security purposes. Though the basic claim was valid (since of course no one wants to see blackouts) Koopman failed to understand or acknowledge that specific rules already exist in the second electricity directive and have done so since 2003. In practice, what this means is that, if the UK finds the power system on its territory at risk of imbalance due to under supply of capacity, it may then hold a tender to purchase new capacity. This is instead of deciding (as it did last year unlawfully) which company (EDF) and what technology (nuclear) should be picked as the winner. Koopman did mention in passing public procurement rules, but mixed-up the rules for companies with those for countries.

Europe is founded on the rule of law (because its better than the rule of war). The internal market is a key part part of our constitutional make-up. If though carelessness, laziness or worse we abandon these principles then it is only a matter of time before we slide back into chaos. At the very least, if for electricity any member states can buy any amount of anything it wants for no good reason, then there is no more an internal market and the treaty and the institutions have failed.

Based on what we heard yesterday from Koopman on the Hinkley test case, Europe’s rule of law and its internal market for electricity, gas and carbon are I believe not in safe hands. Large investors in energy systems we all rely on, and all citizens generally, deserve a greater level of confidence than that.


  • * TEU = Treaty on European Union
  • ** TFEU = Treaty on the Functioning of the European Union

3 thoughts on “EC’s Koopman careless with EU treaties

  1. Indeed a lot more has to be done in the area of EU competition law protection – especially also when the volume of state aid of 55 bn EUR (2010) as notified by the Member States is actually double the amount in todays’ reality! As this is also recognized by the Commission, the underlying principle of the announced “new doctrine” on competition policy must therefore be a return to the Commisisons role of Guardian of the Treaty, instead of it turning into the marionette of Member States and industries as recently shown during the decision on state aid guidelines in the field of energy.

  2. Find blog Mark: raising the question – who pushes the “enforcers”?
    Koopmans, apparently, likes to be taken very seriously. I have forwarded the link to my DG Comp contacts. I have no doubts they will be sniggering behind his back.

  3. Hey! This is my first visit to your blog! We are a collection of volunteers and starting
    a new initiative in a community in the same niche.

    Your blog provided us valuable information to work on. You have
    done a outstanding job!

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s