Too Weak to Be Controlled: Judicial Review of ACER Soft Law

23 Pages Posted: 5 Sep 2018 Last revised: 21 Oct 2018

See all articles by Oana Andreea Stefan

Oana Andreea Stefan

King's College London – The Dickson Poon School of Law; King's College London

Marina Petri

Bocconi University, International Law and Economics, Students

Date Written: February 19, 2018

Abstract

The 2009 third energy package puts in place a hybrid system, delegating regulatory and enforcement powers to public national regulators and to private transmission system operators. These bodies are organized in networks which are coordinated and monitored by the EU Agency for the Cooperation of Energy Regulators (ACER). ACER acts mainly through instruments deprived of legally binding force, or soft law. These instruments, enacted ‘outside the legislative arena of democratic politics’ (Eberlein: 2008), potentially escape accountability, transparency, and legitimacy checks. Moreover, the legal effects of such instruments are uncertain, and vary from instrument to instrument, thus creating clarity concerns. ACER’s soft law instruments range from practically binding (the framework guidelines that form the basis of network codes) to particularly weak forms of soft law such as the non-binding guidance on the definitions set out in the REMIT Regulation. In this context, and in the absence of case law in this regard, the present paper offers a doctrinal analysis of all the categories of soft law instruments issued by ACER and of their potential for justiciability. It argues that soft law issued by ACER can have in practice important effects, and that, in the absence of clear judicial oversight from the European Courts, it can have a negative impact from a rule of law perspective. The discussion will be placed against the background of the recent Winter Package, and the proposals to strengthen the role of the Agency will be evaluated in order to draw broader conclusions as to the link between increased powers and accountability.

Keywords: energy, ACER, accountability, justiciability, soft law, Winter Package

JEL Classification: K23, K41

Suggested Citation

Stefan, Oana Andreea and Petri, Marina, Too Weak to Be Controlled: Judicial Review of ACER Soft Law (February 19, 2018). Forthcoming, Yearbook of European Law; Bocconi Legal Studies Research Paper No. 3238700; King's College London Law School Research Paper No. 2018-26. Available at SSRN: https://ssrn.com/abstract=3238700

Oana Andreea Stefan (Contact Author)

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

King's College London ( email )

School of Law
Strand
London, WC2R 2LS
United Kingdom

Marina Petri

Bocconi University, International Law and Economics, Students ( email )

Milano
Italy

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