MarIus

4 Conclusions

The above discussion has given an overview of a range of areas of EU Energy law where fundamental rights have been, or seem likely to be, relevant. There emerges from the analysis in this paper a clearer idea of the roles played by fundamental rights in energy law and policy developments in the EU. Three broad roles can be discerned.

First, fundamental rights are helping - whether alongside or as a limit upon competition and free movement law - to define an acceptable range within which the EU and its Member States can pursue certain energy-related goals and policies. The unbundling discussion offers a nice illustration, showing acceptable 'bands' for regulatory intervention, safeguarding a degree of business and contractual freedom and autonomy, while acknowledging the justifiable trade and competition goals pursued by challenging the pre-existing structures. Similarly, the UK cases concerning damages claims for attempts retrospectively to change the rules concerning renewable energy show that care must be taken when designing such regimes. Ex ante, this should bring greater care to how the system should be set up and thought should be given to including transitional mechanisms within the scheme from the outset; a need has also been established, during the ongoing management of such schemes, for the protection of the interests of the very private investors which it was hoped would be incentivised to facilitate renewables deployment.

Second, the fundamental rights arguments have often brought a clearer focus and stronger analysis to address particular issues more coherently. Thus, policy consistency and reliability has been shown to be crucial to encouraging investment, whether in renewables, grid and network infrastructure or 'ancillary' services like smart metering: an acknowledgment that those who invest in such property and businesses have interests worthy of protection helps to concentrate the policy-maker's mind on such questions of consistency, coherence, predictability and dependability. Meanwhile, an appreciation of the privacy dimensions of smart metering serves to improve the design of such meters and the systems that will use them, as well as to reassure the consumer that their data will not be used or disseminated in ways unacceptable to them, without their rights being respected. This is key to building consumer trust in the system.

Finally, and for the proper fundamental rights lawyer utterly unsurprisingly, the examples discussed in this paper reinforce the traditional role for fundamental rights of securing and enhancing the accountability of the State and government in its activities where the exercise of public power affects individual rights and interests, including those of businesses operating under their legal system.