EUROPEAN COMMISSION

Brussels, 31.1.2024

COM(2024) 44 final

2024/0022(NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union within the EU-UK Specialised Committee on Energy established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, on the adoption of the guidance on frameworks for cooperation

EXPLANATORY MEMORANDUM

1.Subject matter of the proposal

This proposal concerns the decision establishing the position to be taken on the Union's behalf in the EU-UK Specialised Committee on Energy (hereafter ‘Specialised Committee’) set up under the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (hereafter the ‘Agreement’).

It proposes that the Union supports the adoption by the Specialised Committee of a decision on the guidance to be given to energy operators for the elaboration of frameworks for cooperation between energy operators in the EU and in the United Kingdom.

Those frameworks for cooperation are more specifically foreseen between:

(a)the European Network of Transmission System Operators for Electricity (ENTSO-E) and the United Kingdom transmission system operators for electricity,

(b)the European Network of Transmission System Operators for Gas (ENTSOG) and the United Kingdom transmission system operators for gas, and

(c)the Agency for the Cooperation of Energy Regulators (ACER) and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement.

2.Context of the proposal

2.1.The EU-UK Trade and Cooperation Agreement

The Agreement aims at establishing cooperation between the EU and the UK inter alia in the area of energy. The Energy Title VIII of Heading One of Part Two (Trade, Transport, Fisheries and other Arrangements) includes commitments on the adoption of three frameworks for cooperation.

In accordance with Article 317(1) of the Agreement, the first and second frameworks are to be established for the cooperation between the ENTSO-E as established by Regulation (EU) 2019/943 and ENTSOG as established by Regulation (EC) No 715/2009, on the one side, and the transmission system operators for electricity and gas in the United Kingdom, on the other.

Article 317(1) of the Agreement requires the frameworks for cooperation:

(a)to cover at least the following areas:

i. electricity and gas markets;

ii. access to networks;

iii. the security of electricity and gas supply;

iv. offshore energy;

v. infrastructure planning;

vi. the efficient use of electricity and gas interconnectors; and

vii. gas decarbonisation and gas quality

(b)not to confer to the transmission system operators in the United Kingdom a status comparable to membership of ENTSO-E or ENTSOG.

In accordance with Article 318 of the Agreement, the third framework is to be established between ACER as established by Regulation (EU) 2019/942 and the regulatory authority in the United Kingdom designated in accordance with Article 310.

Article 318 of the Agreement requires the framework for cooperation:

(a)to cover at least the following areas:

i. electricity and gas markets;

ii. access to networks;

iii. the prevention of market abuse on wholesale electricity and gas markets;

iv. the security of electricity and gas supply;

v. infrastructure planning;

vi. offshore energy;

vii. the efficient use of electricity and gas interconnectors;

viii. cooperation between transmission system operators; and

ix. gas decarbonisation and gas quality

(b)not to confer to the regulatory authority in the United Kingdom designated in accordance with Article 310 a status comparable to participation in ACER.

The Specialised Committee on Energy shall agree on guidance on the frameworks for cooperation for dissemination to the transmission system operators and the regulatory authorities.

2.2.The EU-UK Specialised Committee on Energy 

The EU-UK Specialised Committee on Energy, established by Article 8(1), point (l) of the Agreement, addresses matters covered by Title VIII on Energy 1 of Heading One of Part Two (Trade, Transport, Fisheries and other Arrangements).

As provided by Article 8(4), points (a) and (c) of the Agreement, the Specialised Committee has the power to monitor and review the implementation and ensure the proper functioning of the Agreement in its area of competence. It has the power to adopt decisions, including any amendments, and recommendations in respect of all matters where the Agreement so provides or for which the Partnership Council has delegated its powers to that Committee pursuant to Article 7(4), point (f) of the Agreement. This power is further specified in Title VIII on Energy of Heading One of Part Two of the Agreement, which provide that this specific Specialised Committee is, inter alia, tasked to agree on guidance on the frameworks for cooperation pursuant to Articles 317 and 318 of the Agreement.

Article 8(7) of the Agreement provides that Specialised Committees (including the one on Energy) are co-chaired by a representative of the Union and a representative of the United Kingdom. As provided for in Article 10(2) of the Agreement, the decisions and recommendations of a Committee are taken by mutual consent of the Parties.

2.3.The envisaged act of the Specialised Committee

The Specialised Committee is to adopt a Decision regarding the adoption of a guidance on frameworks for cooperation between, respectively, i) ENTSO-E and the United Kingdom transmission system operators for electricity, ii) ENTSOG and the United Kingdom transmission system operators for gas, and iii) ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement (‘the envisaged act’).

The Decision of the Specialised Committee gives guidance to the relevant operators in the European Union and in the United Kingdom on the parameters which they should take into account when developing their frameworks for cooperation.

The Specialised Committee should adopt the envisaged act as soon as possible, either at its next meeting or by means of a written procedure set out in Annex I to the Agreement, whichever is sooner.

3.Position to be taken on the Union's behalf

Decision of the Specialised Committee on Energy on the guidance on frameworks for cooperation Through the proposed decision, the Specialised Committee would adopt three sets of guidance, respectively for i) the working arrangements between ENTSO-E and the United Kingdom transmission system operators for electricity; ii) the working arrangements between ENTSOG and the United Kingdom transmission system operators for gas and iii) the administrative arrangements between ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement. Both the regulatory authority for Great Britain (GEMA) and the regulatory authority for Northern Ireland (Utility Regulator) would have to act jointly as part of a unique delegation representing the regulatory authority in the United Kingdom.

Each guidance is detailed in the corresponding annexes to the Decision and builds on the relevant provisions of Articles 317(1) and 318 of the Agreement. Each guidance follows the same approach of requesting the relevant operators to develop and implement the necessary arrangements for cooperation, listing the areas of cooperation which should preserve decision making autonomy of each side, requesting the operators in the United Kingdom to act jointly, prohibiting granting to the operators in the United Kingdom a status equivalent to membership and asking that the proposed arrangements be submitted to the consideration of the Specialised Committee.

The proposed position to be taken on behalf of the Union in the Specialised Committee is therefore to support the adoption by the Specialised Committee of the Decision.

4.Legal basis

4.1.Procedural legal basis

4.1.1.Principles

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) establishes that ‘The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’ (emphasis added)

4.1.2.Application to the present case

The EU-UK Specialised Committee on Energy is a body established by the EU-UK Trade and Cooperation Agreement.

The act which the Specialised Committee on Energy is called upon to adopt constitutes an act having legal effects since Article 10 of the Agreement provides that the Decisions adopted by the Specialised Committee “shall be binding on the Parties” and it discharges the obligations agreed upon by the Parties in Articles 317(1) and 318 to the Agreement.

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU and the Council must adopt a decision establishing the position to be adopted on the Union’s behalf.

4.2.Substantive legal basis

4.2.1.Principles

The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.

4.2.2.Application to the present case

The main objective and content of the envisaged act relate to the area of energy. Therefore, the substantive legal basis of the proposed decision is Article 194(1) TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 194(1) TFEU, in conjunction with Article 218(9) TFEU.

2024/0022 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of the European Union within the EU-UK Specialised Committee on Energy established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, on the adoption of the guidance on frameworks for cooperation

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 194(1), in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)On 29 April 2021, the Council adopted Decision (EU) 2021/689 2  on the conclusion of Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part 3  (the ‘Agreement’). It applies since 1 January 2021. 

(2)Pursuant to Article 8(4), point (c) of the Agreement, the Specialised Committee on Energy (the ‘Specialised Committee’) may adopt decisions and recommendations in respect of all matters where this Agreement or any supplementing Agreement so provides or for which the Partnership Council has delegated powers to it, on issues related to its area of competence. Pursuant to Article 10(2) of the Agreement, a Committee shall adopt decisions and make recommendations by mutual consent.

(3)Article 317(1) of the Agreement requires each Party to ensure that transmission system operators develop working arrangements that are efficient and inclusive in order to support the planning and operational tasks associated with meeting the objectives of the Title on Energy of the Agreement, including frameworks for cooperation between the European Network of Transmission System Operators for Electricity established in accordance with Regulation (EU) 2019/943 (‘ENTSO-E’) and the European Network of Transmission System Operators for Gas established in accordance with Regulation (EC) No 715/2009 (’ENTSOG’), on the one side, and the transmission system operators for electricity and gas in the United Kingdom, on the other.

(4)Those frameworks should not involve or confer a status comparable to membership in ENTSO-E or ENTSOG by United Kingdom transmission system operators.

(5)Article 318 of the Agreement requires each Party to ensure that the Agency for the Cooperation of Energy Regulators and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Agreement develop contacts and enter into administrative arrangements as soon as possible in order to facilitate meeting the objectives of this Agreement.

(6)This framework should not involve or confer a status comparable to participation in the Agency for the Cooperation of Energy Regulators by the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Agreement.

(7)The Specialised Committee is to adopt a Decision on a guidance for the frameworks for cooperations referred to under both Article 317(1) and Article 318 as soon as practicable. The Specialised Committee is to adopt the Decision either during its next meeting, or by written procedure, whichever is sooner, following the completion of domestic procedures by each Party.

(8)It is appropriate to establish the position to be taken on the Union's behalf in the Specialised Committee, as the Decision will be binding on the Union.

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union's behalf in the Specialised Committee on Energy shall be based on the draft act of the Specialised Committee attached to this Decision.

Article 2

This Decision is addressed to the Commission.

Done at Brussels,

(1)    With the exception of Chapter 4 and Article 323 of the Agreement, and of Annex 27 to the Agreement.

(2)    OJ L 149, 30.4.2021, p.2.

(3)    OJ L 149, 30.4.2021, p. 10.

EUROPEAN COMMISSION

Brussels, 31.1.2024

COM(2024) 44 final

ANNEX

to the

Proposal for a COUNCIL DECISION

on the position to be taken on behalf of the European Union within the EU-UK Specialised Committee on Energy established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, on the adoption of the guidance on frameworks for cooperation

ATTACHMENT

Decision No. x/202x

of the Specialised Committee established by Article 8(1)(l) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part

of [date]

on the guidance on frameworks for cooperation between, respectively, ENTSO-E and the United Kingdom transmission system operators for electricity, ENTSOG and the United Kingdom transmission system operators for gas, and ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement (GEMA and Utility Regulator)

The Specialised Committee,

Having regard to the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (the ‘Trade and Cooperation Agreement’), and in particular Article 317(1) and Article 318(1) thereof,

Whereas:

(1)Pursuant to Article 8(4), point (a) of the Trade and Cooperation Agreement, the Specialised Committee on Energy (the ‘Specialised Committee’) has the power to monitor and review the implementation and ensure the proper functioning of the Agreement in its area of competence. Pursuant to Article 8(4), point (c), it has the power to adopt decisions and recommendations in respect of all matters where the Trade and Cooperation Agreement so provides or for which the Partnership Council has delegated its powers to that Specialised Committee pursuant to Article 7(4), point (f) of the Trade and Cooperation Agreement.

(2)Article 317(1) of the Trade and Cooperation Agreement sets a commitment for each Party to ensure that transmission system operators for gas and electricity of the Union and of the United Kingdom develop working arrangements, including frameworks for cooperation, that are efficient and inclusive in order to support the planning and operational tasks associated with meeting the objectives of Title VIII (Energy) of the Trade and Cooperation Agreement. It sets out the scope and conditions for the working arrangements in particular that they do not involve, or confer a status comparable to, membership in ENTSO-E or ENTSOG for United Kingdom transmission system operators.

(3)Pursuant to Article 317(1), third subparagraph of the Trade and Cooperation Agreement, the Specialised Committee shall agree on guidance on the working arrangements and frameworks for cooperation for dissemination to transmission system operators as soon as practicable.

(4)Article 318(1) of the Trade and Cooperation Agreement sets a commitment for each Party to ensure that the Agency for the Cooperation of Energy Regulators (‘ACER’) and the regulatory authority in the United Kingdom designated in accordance with Article 310 develop contacts and enter into administrative arrangements as soon as possible in order to facilitate meeting the objectives of the Trade and Cooperation Agreement and it sets out the scope and conditions for the administrative arrangements. Article 318(2) sets out in particular that such administrative arrangements shall not involve, or confer a status comparable to, participation in ACER by the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement.

(5)Pursuant to Article 318(1), second subparagraph of the Trade and Cooperation Agreement, the Specialised Committee shall agree on guidance on the administrative arrangements for such cooperation for dissemination to regulatory authorities as soon as practicable.

(6)The Specialised Committee should agree on a guidance for the working arrangements referred in Article 317(1) and for the administrative arrangements referred to in Article 318(1) as soon as practicable, building as much as possible on the work already accomplished by the TSOs, regulatory authorities, ENTSO-E, ENTSOG and ACER since 2021.

HAS ADOPTED THIS DECISION,

Article 1

The guidance of the Specialised Committee as set out in Annex I is hereby adopted as the guidance for working arrangements between ENTSO-E and the United Kingdom transmission system operators for electricity. The Specialised Committee requests the Parties to disseminate it to them without delay.

Article 2

The guidance of the Specialised Committee as set out in Annex II is hereby adopted as the guidance for working arrangements between ENTSOG and the United Kingdom transmission system operators for gas. The Specialised Committee requests the Parties to disseminate it to them without delay.

Article 3

The guidance of the Specialised Committee as set out in Annex III is hereby adopted as the guidance for administrative arrangements between ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement (GEMA and Utility Regulator). The Specialised Committee requests the Parties to disseminate it to them without delay.

Article 4

This Decision shall enter into force on the date of its adoption.

Done at Brussels and London, [date]

I.VALERO    P. KOVACS        M. SKRINAR

Annex I to Decision No. x/202x

Guidance for working arrangements between ENTSO-E and the United Kingdom transmission system operators for electricity

Considering Article 317 of the Trade and Cooperation Agreement which requires the Parties to ensure that transmission system operators develop working arrangements, including a framework for cooperation between ENTSO-E on the one hand and the UK transmission system operators (TSOs) for electricity on the other hand,

1.ENTSO-E and the UK TSOs for electricity are asked to develop and implement, as soon as possible, efficient and inclusive working arrangements to ensure their effective cooperation.

2.The working arrangements should cover the following areas of cooperation and closely related aspects thereof:

–Electricity markets

–Access to networks

–Security of electricity supply

–Infrastructure planning

–Offshore energy

–Efficient use of electricity interconnectors

–Gas decarbonisation

The working arrangements should be limited to technical and administrative matters, including exchange of information, while maintaining full decision-making autonomy of each side with respect to their policy-making functions respectively in the Union and in the United Kingdom.

3.UK TSOs for electricity should act jointly and need to establish their own forms of coordination to engage with ENTSO-E having due regard to the relevant competition rules.

4.The working arrangements shall not involve or confer to UK TSOs for electricity a status comparable to membership of ENTSO-E, nor provide for the participation of the UK TSOs for electricity in the meetings of ENTSO-E.

5.The working arrangements should be developed as soon as possible and prior to its conclusion, be submitted to the Specialised Committee for its consideration. Following its conclusion, the working arrangements should be communicated appropriately to the relevant market participants.

Annex II to Decision No. x/202x

Guidance for working arrangements between ENTSOG and the United Kingdom transmission system operators for gas

Considering Article 317 of the Trade and Cooperation Agreement which requires the Parties to ensure that its transmission system operators develop working arrangements, including a framework for cooperation between ENTSOG on the one hand and the UK transmission system operators (TSOs) for gas on the other hand,

1.ENTSOG and the UK TSOs for gas are asked to develop and implement, as soon as possible, efficient and inclusive working arrangements to ensure their effective cooperation.

2.The working arrangements should cover the following areas of cooperation and closely related aspects thereof:  

–Gas markets

–Access to networks

–Security of gas supply

–Infrastructure planning

–Offshore energy

–Efficient use of gas interconnectors

–Gas decarbonisation and gas quality, including aspects of methane emissions reduction in natural gas

The working arrangements should be limited to technical and administrative matters, including exchange of information, while maintaining full decision-making autonomy of each side with respect to their policy-making functions respectively in the Union and in the United Kingdom.

3.UK TSOs for gas should act jointly and need to establish their own forms of coordination to engage with ENTSOG, having due regard to the relevant competition rules.

4.The working arrangements shall not involve or confer to UK TSOs for gas a status comparable to membership of ENTSOG, nor provide for the participation of the UK TSOs for gas in the meetings of ENTSOG.

5.The working arrangements should be developed as soon as possible and prior to its conclusion, be submitted to the Specialised Committee for its consideration. Following its conclusion, the working arrangements should be communicated appropriately to the relevant market participants.

Annex III to Decision No. x/202x

Guidance for administrative arrangements between ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement (GEMA and Utility Regulator)

Considering Article 318 of the Trade and Cooperation Agreement which requires the Parties to ensure that the Agency for the Cooperation of Energy Regulators (ACER) and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement develop contacts and enter into administrative arrangements in order to facilitate meeting the objectives of the Agreement,

1.ACER and the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement (GEMA and Utility Regulator) are asked to develop and implement, as soon as possible, administrative arrangements to ensure their effective cooperation. 

2.The administrative arrangements should cover the following areas of cooperation and closely related aspects thereof:

–Electricity and gas markets

–Access to networks

–Detection and prevention of market abuse, including appropriate exchange of information

–Security of electricity and gas supply

–Infrastructure planning

–Offshore energy

–Efficient use of interconnections

–Cooperation between transmission system operators

–Gas decarbonisation and gas quality

The administrative arrangements should be limited to technical and administrative matters, including exchange of information, while maintaining full decision-making autonomy of each side with respect to their policy-making functions respectively in the Union and in the United Kingdom.

3.The UK GEMA and the Utility Regulator should act jointly and will need to establish their own forms of coordination to engage with ACER as part of a unique delegation.

4.The administrative arrangements shall not involve or confer to the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement a status comparable to participation in ACER, nor provide for the participation in the meetings of ACER of the regulatory authority in the United Kingdom designated in accordance with Article 310 of the Trade and Cooperation Agreement.

5.The administrative arrangements should be developed as soon as possible and prior to its conclusion, be submitted to the Specialised Committee for its consideration. Following its conclusion, the administrative arrangements should be communicated appropriately to the relevant market participants.