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Reinforcing Energy Governance under the EU Energy Diplomacy: A Proposal for Strengthening Energy Frameworks in Africa

Published online by Cambridge University Press:  24 May 2018

Matteo BARRA  and
Martin SVEC
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Abstract

This article, initially discussed at a conference organised in March 2017 by the Belgian Commission for Electricity and Gas Regulation (CREG) on the new governance structures in the EU energy sector, deals with energy governance structures in the EU energy and climate diplomacy and in development cooperation between the EU, its member states and third countries.

It is understood that, at large, the existing tools of EU energy and climate diplomacy create governance structures: bilateral partnerships, trade agreements, regional and multilateral orders are per se instruments to govern the underlying relationship between the EU, its member states and third countries. The focus in this paper revolves around those instruments of EU energy and climate diplomacy which aim at reinforcing energy governance structures (referred to also as institutional and normative energy frameworks) and promoting solid transparent frameworks in the field of energy in partner countries.

In particular, the paper aims at identifying – among the existing tools of the energy and climate diplomacy –instruments and opportunities in favour of African countries which contribute to strengthening those institutional and normative energy frameworks and facilitate investment towards universal energy access and energy transition. To do so, the paper reviews the existing policy and legal instruments of EU external energy action in general and in Africa and concludes proposing policy recommendations on further development cooperation and energy diplomacy initiatives in favour of African countries.

The first section reviews the principles of EU energy and climate diplomacy and their alignment with development objectives, including the emphasis on strengthening institutional and normative frameworks in the energy sector. The second section considers the internal coordination between the EU and its member states which is necessary to carry out the external energy and climate diplomacy as well as development cooperation. The third section describes the existing tools of the EU energy diplomacy that aim to strengthen energy institutions and frameworks in partner countries. The fourth section reviews a selection of existing EU initiatives in favour of African countries and brings forward a proposal for EU action to reinforce energy governance structures of partner countries in Africa.

Type
Articles
Information
European Journal of Risk Regulation , Volume 9 , Issue 2 , June 2018 , pp. 245 - 267
Copyright
© Cambridge University Press 

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Footnotes

*

Matteo Barra, senior expert international energy investment, PhD International Law and Economics (Bocconi) and LLM International Energy Law and Policy (CEPMLP). Martin Svec, PhD Candidate and Lecturer in International Law (Masaryk University, Brno). This paper is an improved version of the presentation given at the conference on “New governance structures in the EU energy sector” organised by the Belgian Commission for Electricity and Gas Regulation (CREG) in Brussels on 24 March 2017.

References

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6 ibid.

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8 ibid.

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12 “Mirroring security sector reform efforts, energy and environmental sector reform policies can assist partner countries along a path of energy transition and climate action. Through such efforts, we will encourage energy liberalisation, the development of renewables, better regulation and technological transfers, alongside climate change mitigation and adaptation. We will also support governments to devise sustainable responses to food production and the use of water and energy through development, diplomacy and scientific cooperation.” See A Global Strategy for the European Union’s Foreign And Security Policy, supra, note 9, 27.

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14 “A quantum leap in European investment in Africa is also needed to support sustainable development. We will build stronger links between our trade, development and security policies in Africa, and blend development efforts with work on migration, health, education, energy and climate, science and technology, notably to improve food security.” See A Global Strategy for the European Union’s Foreign And Security Policy, supra, note 9, 36.

15 New Consensus on Development, supra, note 11, at § 46: “46. The scale of financial investment needed to bring about universal access to safe and clean energy services requires the engagement of many actors. The EU and its Member States will increase their cooperation with all relevant stakeholders, including the private sector, on energy demand management, energy efficiency, renewable energy generation and clean technology development and transfer. They will support the improvement of regulatory frameworks conducive to a competitive and sustainable energy sector and to leveraging private finance. They will crowd in additional funds, including from the private sector and through innovative financing initiatives and instruments. Supporting Africa and the EU’s neighbourhood in this energy transition will be a part of the enabling framework for the EU’s Energy Union.”

16 “All Parties should cooperate to enhance the capacity of developing country Parties to implement this Agreement”: Art 11.3 of the Paris Agreement (adopted on 12 December 2015, entered into force on 4 November 2016) UN Treaty Collection 54113. See also Sustainable Development Goal 17 “Strengthen the means of implementation and revitalise the global partnership for sustainable development” under target 17.9 “Enhance international support for implementing effective and targeted capacity-building in developing countries to support national plans to implement all the sustainable Development goals, including through North-South, South-South and triangular cooperation.”

17 Council conclusions on strengthening the external dimension of the EU energy policy, supra, note 1.

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19 Council conclusions on EU Energy Diplomacy of 29 July 2015, supra, note 10.

20 TFEU, Art 4(3): “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.”

21 TFEU, Art 4(2)(i) and Art 194.

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24 See TFEU, Art 194(2). Radel, N, “The EU External Energy Policy and the Law: Does the EU Really Matter?” in L Squintani, H Vedder, M Reese, B Vanheusden, Sustainable Energy United in Diversity – Challenges and Approaches in Energy Transition in the European Union (European Environmental Law Forum Book Series, Volume 1 2014) 237–249 Google Scholar; Craig and De Búrca, supra, note 22, 342–343.

25 TFEU, Art 4.2(e) and Art 191. According to TFEU, Art 192(2)(c), the carve-out clause on a Member State’s sovereignty over the energy mix does not apply, and a unanimous decision by the Council in the field of the environment may affect a “Member State’s choice between different energy sources and the general structure of its energy supply”.

26 94/69/EC: Council Decision of 15 December 1993 concerning the conclusion of the United Nations Framework Convention on Climate Change OJ L 33, 7.2.1994, p 11–12.

27 2002/358/EC: Council Decision of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfillment of commitments thereunder OJ L 130, 15.5.2002, p 1–3.

28 Council Decision (EU) 2016/1841 of 5 October 2016 on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change. OJ L 282, 19.10.2016, p 1–3.

29 TFEU, Art 4(4) and Art 208.

30 TFEU, Art 209.

31 TFEU, Art 210; Emphasis on effectiveness, transparency and joint action. See Commission (EU), COM(2011) 637 final: Increasing the impact of EU Development Policy: an Agenda for Change, available at <ec.europa.eu/europeaid/sites/devco/files/agenda_for_change_-_com2011_637_final.pdf> accessed 15 April 2017.

32 TFEU, Art 3(1)(e) and Art 207.

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83 ibid.

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89 Clean Energy Regulator Initiative. Clean Energy Ministerial/ Clean Energy Solutions Center, available at <cleanenergysolutions.org/ceri> accessed 20 October 2017.

90 International Smart Grid Action Network. Clean Energy Ministerial, available at <www.cleanenergyministerial.org/Our-Work/Initiatives/Smart-Grid/index.html> accessed 20 October 2017.

91 The 21st Century Power Partnership. Clean Energy Ministerial, available at <www.21stcenturypower.org> accessed 20 October 2017.

92 Total contributions from the EU and its member states to support developing countries it the implementation of the Paris Agreement, including reduction of greenhouse gas emissions as well as adaptation to impacts of climate change, amounted to €20.2 billion in 2016. Council conclusions on Climate Finance as well as Council conclusions on the Paris Agreement and preparations for the UNFCCC meetings confirmed EU’s determination to scale up climate finance to address the needs and support of the poorest and particularly vulnerable developing states. In line with the Paris Agreement, the EU puts great emphasis on the mobilisation of international climate finance as part of the collective developed countries’ goal to jointly mobilise USD 100 billion per year by 2020 through to 2025 for mitigation and adaptation purposes. See Commission (EU), Climate finance: EU and member states’ contributions up to €20.2 billion in 2016, Press Release of 17 October 2017, available at <www.consilium.europa.eu/en/press/press-releases/2017/10/17/climate-finance-eu/> accessed 20 December 2017; Council of the European Union (EU), Council Conclusions Implementing the EU Global Strategy – strengthening synergies between EU climate and energy diplomacies and elements for priorities for 2017 of 6 March 2017, available at <data.consilium.europa.eu/doc/document/ST-6981-2017-INIT/en/pdf> accessed 10 February 2017. See Council of the European Union (EU), Council conclusions on Climate Finance, 13 October 2017, available at <www.consilium.europa.eu/en/press/press-releases/2017/10/13/conclusions-paris-agreement-and-unfccc-meetings/pdf>; Council of the European Union (EU), Council conclusions on the Paris Agreement and preparations for the UNFCC meetings of 13 October 2017, available at <www.consilium.europa.eu/en/press/press-releases/2017/10/13/conclusions-paris-agreement-and-unfccc-meetings/pdf> accessed 20 March 2017.

93 “A quantum leap in European investment in Africa is also needed to support sustainable development. We will build stronger links between our trade, development and security policies in Africa, and blend development efforts with work on migration, health, education, energy and climate, science and technology, notably to improve food security.” See A Global Strategy for the European Union’s Foreign And Security Policy, supra, note 9, 36.

94 “The scale of financial investment needed to bring about universal access to safe and clean energy services requires the engagement of many actors. The EU and its Member States will increase their cooperation with all relevant stakeholders, including the private sector, on energy demand management, energy efficiency, renewable energy generation and clean technology development and transfer. They will support the improvement of regulatory frameworks conducive to a competitive and sustainable energy sector and to leveraging private finance. They will crowd in additional funds, including from the private sector and through innovative financing initiatives and instruments. Supporting Africa and the EU’s neighbourhood in this energy transition will be a part of the enabling framework for the EU’s Energy Union.” See New Consensus on Development, supra, note 11, § 46.

95 “The Council stresses the importance of ownership in partner countries of reinforced governance for meeting the needs in sustainable energy and for promoting an appropriate and transparent regulatory framework for the energy sector. The Council further stresses the importance of an enabling environment to overcome market distortions, financing obstacles and regulatory barriers that impede private sector engagement, including micro, small and medium enterprises (MSMEs). (…) The Council recognises the importance of technical assistance for reforming energy policy and institutional and legal frameworks.” See Council conclusions: Energy and Development of 28 November 2016, supra, note 13.

96 Commission (EU), Budget Support: Trends and Results, available at <ec.europa.eu/europeaid/sites/devco/files/budget-support-trends-results-2017_en.pdf> accessed 20 December 2017.

97 Commission (EU), COM(2016) 581 final: Strengthening European Investments for jobs and growth: Towards a second phase of the European Fund for Strategic Investments and a new European External Investment Plan, available at <eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016DC0581> accessed 20 November 2017; European Council (EU), Conclusions of 28 June 2016. EUCO 26/16, available at <www.consilium.europa.eu/media/21645/28-euco-conclusions.pdf> accessed 20 November 2017; Regulation (EU) 2017/1601 of the European Parliament and of the Council of 26 September 2017 establishing the European Fund for Sustainable Development (EFSD), the EFSD Guarantee and the EFSD Guarantee Fund. OJ L 249, 27.9.2017, p. 1–16; Commission (EU), EU External Investment Plan: investing together in creating jobs and development, available at <ec.europa.eu/commission/external-investment-plan_en> accessed on 20 November 2017; Commission (EU), Your guide to the EU External Investment Plan, available at <ec.europa.eu/commission/sites/beta-political/files/external-investment-plan-guide-nov17_en.pdf> accessed 20 December 2017.

98 Commission (EU), Your guide to the EU External Investment Plan, available at <ec.europa.eu/commission/sites/beta-political/files/external-investment-plan-guide-nov17_en.pdf> accessed 20 December 2017.

99 Commission (EU), COM(2016) 581 final: Strengthening European Investments for jobs and growth: Towards a second phase of the European Fund for Strategic Investments and a new European External Investment Plan, available at <eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016DC0581> accessed 20 November 2017.

100 Commission (EU), Meeting of the Strategic Board of the European Fund for Sustainable Development (EFSD) of 28 September 2017, available at <ec.europa.eu/commission/publications/meeting-strategic-board-efsd-28th-september-2017_en>.

101 Commission (EU), Africa Investment Facility 2016 Operational Report, available at <ec.europa.eu/europeaid/sites/devco/files/afif_report2016_web.pdf> accessed 20 December 2017.

102 Commission (EU), COM(2011) 637 final: Increasing the impact of EU Development Policy: an Agenda for Change, available at <ec.europa.eu/europeaid/sites/devco/files/agenda_for_change_-_com2011_637_final.pdf> accessed 15 April 2017; Commission (EU), “Energising Development”: Commission’s new initiative to help achieve energy access for all by 2030. Press Release, available at <http://europa.eu/rapid/press-release_IP-12-372_en.htm> accessed 20 December 2017.

103 Commission (EU), The European Union’s Technical Assistance Facility for the Sustainable Energy for All, available at <ec.europa.eu/europeaid/sites/devco/files/leaflet-taf-2015_en.pdf> accessed 20 December 2017.

104 Commission (EU), The ACP-EU Energy Facility, available at <ec.europa.eu/europeaid/sites/devco/files/publication-acp-eu-energy-facility-ec-2009_en.pdf> accessed 20 December 2017.

105 The ACP-EU Energy Facility improves access to energy services for the poor in rural and peri-urban areas (2009). See Commission (EU), The ACP-EU Energy Facility, available at <ec.europa.eu/europeaid/sites/devco/files/publication-acp-eu-energy-facility-ec-2009_en.pdf> accessed 20 December 2017.

106 Commission (EU), The European Union’s Technical Assistance Facility for the Sustainable Energy for All, available at <ec.europa.eu/europeaid/sites/devco/files/leaflet-taf-2015_en.pdf> accessed 20 December 2017.

107 Commission (EU), EU Energy Initiative Partnership Dialogue Facility, available at <www.euei-pdf.org/en/about-us> accessed 20 December 2017.

108 AEEP. Africa-EU Energy Partnership Status Report Update: 2016, available at <www.africa-energy.com/sites/default/files/AEEP-2016-final-web.pdf> accessed 20 March 2017; Africa-EU Strategic Partnership. The Joint Africa-EU Strategy, available at <www.africa-eu-partnership.org/sites/default/files/documents/eas2007_joint_strategy_en.pdf> accessed 20 March 2017.

109 Africa-EU Energy Partnership. Africa-EU Renewable Energy Cooperation Programme, available at <www.africa-eu-renewables.org/about-recp/how-we-work/> accessed 20 December 2017.

110 RECP. Market Information, available at <www.africa-eu-renewables.org/market-information/> accessed 20 December 2017.

111 The AfDB has developed in 2016 a new strategy for energy in Africa, “A New Deal for Energy in Africa”, which is built on five inter-related and mutually reinforcing principles: (i) raising aspirations to solve Africa’s energy challenges; (ii) establishing a Transformative Partnership on Energy for Africa; (iii) mobilising domestic and international capital for innovative financing in Africa’s energy sector; (iv) supporting African governments in strengthening energy policy, regulation and sector governance; and (v) increasing African Development Bank’s investments in energy and climate financing. See AfDB. A New Deal on Energy for Africa – Power, Potential and Partnership, available at <www.afdb.org/en/news-and-events/a-new-deal-on-energy-for-africa-power-potential-and-partnership-15310/> accessed 20 December 2017.

112 ICER, “Regulatory approaches to managing investment uncertainty”, available at <www.icer-regulators.net/portal/page/portal/ICER_HOME/publications_press/ICER_Reports/Reports_2012-2015/I14-SC-25-06_ICER%20VWG2%20Report_final_FOR%20PRINT.pdf> accessed 24 March 2017.