1 Introduction
A number of years ago, one of the authors was asked by an economic consultancy to investigate possible fundamental rights implications of proposed new rules on third party access to infrastructure and stranded costs in the water sector.(1)A. Johnston, ‘Human Rights dimensions of possible stranded costs situations’ (unpublished, July 2002) (the substance of its analysis has been published elsewhere in later pieces, which will be referred to below where relevant). This was stimulated by an earlier NERA report: R. Hern et al. ‘Access Pricing in the UK Water Industry: TheEfficient Component Pricing Rule – Economics and the Law’ (March 2001) (availableat: http://www.nera.com/extImage/3694.pdf). This was - to his shame - the first time that he had given serious consideration to the possibility that fundamental rights law might have an impact upon the substance of the law concerning utilities in general, and in the energy field in particular. Naturally, various questions of procedure (access to justice,(2)See, e.g., A. Johnston, ‘Maintaining the Balance of Power: Liberalisation, Reciprocity and Electricity in the European Community’ (1999) 17 Journal of Energy and Natural Resources Law 121, at 135 (esp. the reference to Case 222/86 UNECTEF v. Heylens [1987] ECR 4097 (ECLI:EU:C:1987:442) in light of missing dispute settlement provisions which might cover claims of lack of reciprocity between national systems in the free trade context). rights of the defence, fair trial, etc.) were always presumptively relevant to the energy sector, and were an area where fundamental rights had long acted to shape the design and development of legislation and case law at European and national levels. Yet on closer inspection, and in spite of some high profile fundamental rights cases relating to the energy sector - such as that of the European Court of Human Rights in the Yukos case,(3)Application no. 14902/04, OAO Neftyanayu Kompaniya Yukos v. Russia (ECtHR, judgment of 31 July 2014); Russia’s application to transfer the case to the Grand Chamber was subsequently rejected, rendering the earlier judgment definitive: ECtHR, ‘Grand Chamber’s Panel decisions’ (Press Release, ECHR 377 (2014), 16 December 2014). For discussion, see C. Gibson, ‘Yukos v. The Russian Federation: A Classic Case of Indirect Expropriation’ (Suffolk University Law School, Legal Studies Research Paper 15-10, 20 February 2015; http://ssrn.com/abstract=2567784). awarding the very large sum(4)Which pales rather when compared with the US$50 billion award under the Energy Charter Treaty 1994: Hulley Enterprises and others v. The Russian Federation (Awards of 18 July 2014, available at: http://www.pca-cpa.org/showpage.asp?pag_id=1599). An appeal against this award was lodged on 28 January 2015 (‘Russia has appealed arbitration court ruling in Yukos case’, Reuters, 6 February 2015; http://in.reuters.com/article/2015/02/06/russia-yukos-court-idINL6N0VG46D20150206): for details, see the Russian Ministry of Finance’s Press Release (6 February 2015; http://old.minfin. ru/en/news/index.php?id_4=24358), where Russia alleges that the tribunal: lacked jurisdiction; violated its mandate; failed to give adequate reasons; and had shown “partiality and prejudice towards the Russian Federation”. of €1.8 billion to Yukos's former shareholders for breach of property rights under Article 1 of Protocol 1 to the ECHR - there have actually been relatively few direct references to fundamental rights considerations in much of EU Energy Law, at least not until relatively recently.
A related question, which will not be discussed further here, is whether access to energy as such may be considered a fundamental right. As emphasised in the preamble to Electricity Directive (EU) 2019/944, energy services are fundamental to safeguarding the well-being of the EU's citizens.(5)Para (59) of the preamble to the Directive. Rather, we will in the following focus on aspects where fundamental rights may provide legal argument for restricting the requirements following from EU energy market legislation. In this respect, the Electricity Directive emphasises that it respects the EU Charter of Fundamental Rights and that the Directive should be interpreted and applied in accordance with its rights and principles.(6)Para (91) of the preamble to the Electricity Directive (EU) 2019/944.
The present contribution does not seek exhaustively to examine the nature and scope of the EU law fundamental rights relevant to the energy sector; rather, it first seeks to map out key areas where issues in Energy law in the EU have been, and/or are likely to be, affected by fundamental rights considerations. Then, some of those areas will be examined in more detail, highlighting the implications of fundamental rights for their analysis and development. Finally, some tentative conclusions will be offered.