Energy Law in Europe: National, EU and International Regulation (2nd edn)

Transcription

1 97 BOOKS Energy Law in Europe: National, EU and International Regulation (2nd edn) Martha M Roggenkamp, Catherine Redgwell, Iñigo Del Guayo and Anita Rønne (eds) Oxford: Oxford University Press, 2007: cxxi pp; 240 (hardback) ISBN The first edition of this work appeared in 2001 under the leadership of the current editors (from the Netherlands, the United Kingdom, Spain and Denmark) and soon established itself as a standard text for students, academics and practitioners alike in the field of energy law, both within Europe and, for readers such as the present reviewer, beyond. This welcome new edition not only serves to update the volume to take account of policy and accompanying legal changes in this dynamic area of the law, but also expands the coverage of the volume. New contributions in this volume include a chapter on energy law in Poland (to complement the coverage of Denmark, France, Germany Italy, the Netherlands, Norway, Spain and the United Kingdom) and a chapter on standard contracts used in the European energy trading and derivatives market. This new edition, like its predecessor but perhaps more so, is a massive and authoritatively written volume. The book is divided into four parts: a very short introduction, a second part dealing with the international and European regulation of the energy sector, a third (and by far the longest) part dealing with the national regulation of the energy sector in nine European countries, and a fourth and shorter concluding section. The volume is written by some 33 authors in addition to the four editors. While some of the chapters appear under the name of a single author (eg, the international chapter by Redgwell, the chapter on the EU s external energy policy (Belyi) and the national chapters on Denmark (Rønne), Netherlands (Roggenkamp), Spain (Del Guayo) and the United Kingdom (Dow)), many of the chapters benefit from the contributions of multiple authors including the chapters on Italy and Norway (each with five coauthors) and the chapter on EU energy law (six co-authors). Contributors are drawn from leading academics as well as practitioners, thereby assuring the reader of both practical information as well as analysis and reflection. Each of the chapters is supported by the usual footnote references but typically

2 98 Journal of Energy & Natural Resources Law Vol 27 No also by a select bibliography and a list of useful websites. Some of these bibliographies are quite lengthy (eg, chapter 12 on Norway) and will prove useful to the researcher interested in dipping into particular topics more deeply. Others, however, are confined to website references (eg, chapter 5 on EU law). Each of the chapters makes use of the full range of available sources (both law and policy and primary and secondary materials) and the resulting analytical depth will distinguish these contributions from some of the more general and pedestrian works in the field including the volumes on EU Energy Law published by Claeys and Casteels, or Energy Law and Regulation in the European Union, published through Sweet and Maxwell (although the latter does provide coverage of additional European jurisdictions). The value of the volume to the researcher is undoubtedly enhanced both by the efforts of the editors to provide an integrated analysis of the domestic jurisdictions in the final concluding chapter, but also by the efforts of the Press. Oxford has included a detailed table of contents, a ten-page table of cases, a 50-page table of legislation and a very detailed and useful index covering 130 pages. The introduction sets the scene by describing the different sources of energy and consumption data (by fuel) for each of the EU states, as well as a tabular presentation of the primary energy supplies for each of the nine countries for which the volume provides detailed national accounts. The primary energy table is particularly useful since it serves to draw attention to the diversity of the various countries covered in this volume. For example, of the nine countries, only five rely to any extent on nuclear (France, Germany, Netherlands, Spain and the United Kingdom) with France of course as the clear leader with some 41.6 per cent of its primary energy being nuclear based. One of the themes pursued in the volume is the declining importance of coal but here the table serves to remind that coal in 2004 still provided 58.6 per cent of primary energy in Poland and 24.6 per cent in Germany. The diversity of the countries is also reflected in their different resource endowments. Thus, most of the countries covered are significant importers of energy (a key exception would be Norway) while one country (the United Kingdom) is transitioning between the position of net exporter and net importer and along the way becoming far more concerned with energy security than it needed to be in the past. The implications of this are fully examined in the strong country chapter by Dow. The editors also use the introduction to explore the nature of energy law as an academic discipline. It is apparent both from this discussion and the contents of the subsequent chapters that the editors take a broad view of the field of energy law. Thus, the volume covers the field, from upstream development of energy resources (non-renewable and renewable)

3 Books 99 and state licensing of those activities, to downstream activities including transportation and marketing. Along with that broad sweep of activities comes engagement with a variety of doctrinal areas of law including international law, constitutional law, property law (ownership of the resource), contract law, environmental law, administrative law, investment law, competition law and trade law. And it is this very range of subject matter that makes the writing and editing of such a volume, interesting and ambitious and at the same time, daunting. As noted above, Part 2 of the volume covers the international and European regulation of the energy sector and comprises five chapters. The first is Redgwell s account of the body of international law that is relevant to the regulation of energy activities. Beginning with general coverage of subjects and sources, Redgwell then turns her attention to more specific subject areas including maritime transport, nuclear, and energy security, as well as a series of energy and topics: environment, human rights, trade and investment. Redgwell provides a comprehensive survey here, limited only by considerations of space. One senses that there was a lot more that could have been said in the various sections of this chapter. For example, the section on energy and human rights might have discussed the limits on the right of states to authorise energy and resource activities in the traditional territories of indigenous peoples, and the section on investment law might, in addition to the excellent discussion of expropriation, have dealt with the fair and equitable treatment standard that has been so prominent in recent international investment arbitrations. But no doubt we can look forward at some point to a free-standing volume from Redgwell on international energy law in which she will have the space to explore some of these additional questions. Discussion of international investment and trade law provides a nice introduction to the next chapter in this section which focuses (Bamberger and Wälde) on the Energy Charter Treaty as one important and specific example of an international instrument in the energy law area. Since the first edition of this volume we have seen the first arbitrations under the terms of this Treaty and the chapter provides useful thumbnail sketches of the three decisions (Nykomb, Petrobart and Plama Consortium the latter on jurisdiction) that would have been available to the authors at the time of writing. The authors also provide an account of the major provisions of the Treaty and the key outstanding issues and challenges facing the parties, including the conclusion of a transit protocol and the related question of Russian ratification (and, in the meantime, provisional application) of the Treaty. Chapters 4 and 5 within this Part turn from international law to European law and policy looking first (chapter 4, Belyi) to the EU s External Energy Policy and then, in the longest chapter in the book (167pp), to EU energy law itself

4 100 Journal of Energy & Natural Resources Law Vol 27 No (chapter 5). The chapter by Belyi identifies three different dimensions to the EU s external energy policy: energy security, the EU s role within international lawmaking, and the EU s political links to energy producing regions. Not surprisingly, EU relations with Russia features in each of these dimensions. Chapter 5 offers a wonderfully authoritative account of the legal order applying to the European internal energy market. This book length chapter begins with an account of the basic Treaty framework before tackling the general rules on free movement, competition and state aid. The chapter then turns to EU efforts to strengthen interconnection and interoperability of national energy networks before discussing a series of issues (statistics and reporting, energy efficiency, energy security, environmental protection, etc) covering more than one energy sector. The balance of the chapter deals with the crucial EU Directives on hydrocarbons, the electricity and gas Directives (and Regulations) and the Directives on renewables, including biofuels and the Cogeneration Directive (2004), as well as noting the relevance of consumer protection legislation in the energy sector. This chapter serves as essential background to the discussion of the energy policies of the individual Member States and their efforts to implement the various Directives. Part 2 concludes with an excellent new chapter on the private standard form agreements used in the European energy markets. This chapter provides an important and exceedingly practical complement to the public law orientation of not only this part, but the entire volume. The focus of this chapter is energy trading and the management of counterparty risk through the terms of standard form contracts. The main forms discussed are those of the European Federation of Energy Traders (EFET) although reference is also made to the forms of the International Swaps and Derivatives Association (ISDA) and the International Emissions Trading Association (IETA). Part 3 of the book comprises the nine national chapters. To a great extent the chapters follow a common framework. Thus, each chapter begins with a description of the energy mix of the country and provides necessary legal context such as the constitution, federal or unitary state, organisation of the government and the role of regions and local governments. This is generally followed by successive sections dealing with particular sectors of the energy industry (where relevant to that jurisdiction) including the upstream oil and gas (or petroleum) sector, the natural gas distribution sector, the electricity sector, and sections on renewables and the energy/environment interface. Some chapters have separate sections on coal (eg, the United Kingdom) some on nuclear (eg, Germany, Poland), and some on heat supply (eg, Denmark), whereas in other cases these particular subjects are bundled together under some other more general heading. While a more consistent approach might be desirable in the interests of a more systematic and comparative analysis,

5 Books 101 I suspect that this would be unattainable, both because of the limits on the authority of the editors, but also, and more significantly, because of the different resource endowments of the countries covered here. These different endowments (and indeed different energy policies) also explain how the authors of the individual chapters allocate their allotted coverage (approximately 90 pages). For example, it is hardly surprising that the chapter on Norway has very strong sections dealing with the upstream oil and gas sector, pipelines and hydro and electricity marketing generally, but has nothing to say on coal or the other network-bound industry, natural gas distribution, and very little to say on renewables (beyond hydro). Similarly, it is hardly surprising that the chapter on France offers a particularly detailed account of the regulation of the nuclear sector. But even if the chapters are not organised in precisely the same way, the key themes and concerns are apparent throughout, driven of course in large part by the European Union and in particular the Directives on hydrocarbon licensing (1994) and the electricity and gas Directives (2003) but also more global concerns such as Kyoto implementation and energy security. The only non-member State covered here is Norway, but, as a party to the European Economic Area Agreement (along with Iceland and Lichtenstein), Norway is obliged to implement the main Directives dealing with the petroleum and electricity sectors. There are as well, and as one would expect in an edited volume, stylistic differences between the chapters but these generally add to the interest of the volume rather than detract from it. For example, the chapter on Spain enlivens the discussion of the electricity supply sector with a more detailed account of the Endesa takeover (at ), while the UK chapter provides a more abstract and reflective account (at 1232) of the lessons to be learned from the UK experience with liberalised electricity markets. Other stylistic differences are less positive. For example, it would aid in comparison if all of the authors used the same units of energy in describing their national jurisdictions (they do not), and while most of the volume is written in gender neutral language one learns that in the United Kingdom only men can serve as Ministers of the Crown, regulators and operators. The overall quality of the writing is strong with perhaps the weakest chapter being the chapter on Italy. The focus throughout Part 3 of the volume is inevitably on public law and regulation rather than private law. That said, some of the contributions do contain some discussion of private law issues but typically only where the state exercises some overview or supervision of private contractual relations in the industry. For example, the chapter on Norway provides a surprisingly rich account of standard form construction and supply contracts in the industry,

6 102 Journal of Energy & Natural Resources Law Vol 27 No and both this chapter and the UK chapter make some reference to standard form operating agreements in use in the upstream petroleum sector. The volume ends with a lengthy concluding chapter from the editors. This is far more than the superficial account that frequently brings an edited volume to a close. Instead, this chapter provides a sophisticated reflection on the individual country chapters (it does not go back and revisit the international and European material from Part 2) offering in part a comparative analysis of the manner in which Member States have implemented the various EU Directives, but also discussing such issues as unbundling (accounts, legal and functional), the various methods of liberalising electricity markets (sales into a pool, versus bilateral trading) and the different measures that the various countries have used to encourage the adoption of renewables. In light of the ambitious nature of this undertaking and the inevitable constraints of space (notwithstanding the 1350 pages of text), any weaknesses in the volume are minor. There is inevitably some duplication and overlap. In some cases this is both understandable and useful. For example, it is important to be aware of the different ways in which Member States have chosen to implement EU Directives, and in the course of expanding upon that the authors inevitably need to reprise the main elements of those Directives. Duplication within the same chapter is perhaps less understandable (eg, the introductory sections of the UK chapter). There is also a balance to be struck in terms of the detail of the referencing in a volume of this nature. A volume such as this needs to operate at a fairly high level of generality so as to facilitate comparisons between jurisdictions and to stay within a reasonable length. And yet at the same time the reader wants access to the references that will allow further exploration of a particular topic. While the authors and editors for the most part achieved this balance, there were several occasions when this reviewer would have preferred to have seen some additional references. In sum, this is an excellent volume. It will appeal to both practitioners and academics and will, as the authors hope, provide invaluable material to support the teaching of energy law courses both within and beyond Europe. But it will also prove its worth for scholars of comparative law and policy makers, especially those interested in the way in which different jurisdictions handle key challenges such as deregulation, privatisation, marketing of electricity (through a pool or through bilateral arrangements), policies to encourage the adoption of renewables, and, more generally, Kyoto implementation options. Energy law is a dynamic field. It is hardly surprising that the editors and their publisher saw the need to revisit their first edition of this significant work after only six years, and we can anticipate that the field will prove to be

7 Books 103 just as dynamic in the coming decade as both European and non-european countries grapple with Kyoto and post-kyoto implementation as well as issues of energy security. We can expect the debate on nuclear energy to intensify, and coal seems to offer many states, with domestic supplies or locations close to tidewater, increased energy diversity and therefore energy security so long as it is possible to capture and dispose of the increased carbon emissions. And, as the editors themselves recognise in the final pages of the volume, the process of liberalising the European energy market is far from over and we now need to grapple with the third package of legislative proposals (see the discussion of some aspects of the third package in the article by Ryan in this volume). Nigel Bankes Professor of Law, The University of Calgary; JENRL Editor