Long-term Upstream Supply Contracts and EU Energy Law: Regulating Contracts in Times of Security of Supply Crisis
24 Pages Posted: 12 Oct 2017
Date Written: November 1, 2015
How have contracts been regulated in the energy sector since the EU has pursued the creation of integrated and competitive gas and electricity markets in the late 1990s? Has the EU multilevel systems of law cast its net toward private ordering, and then reshaped the parties’ free and informed consent by restricting the default rules domain? To answer these questions, we might take a leaf from Javier Marias’s book: Keep thinking and keep looking beyond the purely necessary, even when you have the feeling that that’s all been thought or seen. Some scholars still argue that the EU lacks the competence to encroach on the boundaries of contract law, which are still embedded in national legal systems. By contrast, European regulatory private law goes beyond this textual interpretation by claiming that, while lacking competence in the Treaties, the EU may intervene in national contract law through public ordering by the Community in the fields of competition and industrial policy. Taking the latter realistic approach to law, instead of the formalistic one, as a primary assumption, we might pause to ask how regulatory instrumentalism, which is highly prevalent in the activities of the Community, could to some extent regulate contracts by either establishing hard mandatory rules or by softly affecting the parties’ reasonable expectations. Following what Javier Marias suggests, my thesis is dedicated in the first place to investigating whether, and if so how, the EU has interfered through hard or soft means in the private ordering governance of contract law in energy markets. To test this paradigm, instead of starting by looking into the substantive law customarily referred to as EU energy law, which consists of a series of directives and regulations that have continuously approved advanced modes of sectoral governance, I will take contracts as my primary subject and starting point.
Keywords: EU private law, energy law, contract law, long-term contracts, gas markets
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