ClientEarth responds to the Commission’s decision on the interpretation of the Energy Efficiency Directive

Attempts to weaken the Energy Efficiency Directive (EED) have been blocked by a Commission decision which matches ClientEarth’s legal analysis. The Commission confirmed that the EED’s temporal scope is limited to the defined period of 2014-2020. This means early action in the context of EED Article 7 is already accounted for once and thus cannot be repeated within the context of the contested Article 7.7.c.

This ‘verdict’ (without prejudice to the Court of Justice’s case law, of course) confirms that ClientEarth’s interpretation has prevailed over the alternative pursued by the UK with some alleged support from DG Energy officials. The decision has been heralded as great news amongst energy savings proponents and environmental NGOs, as it avoided a significant weakening of the Directive.

The fiercely negotiated Directive, concluded under the Danish Presidency in the early summer of 2012, was given the green light only after a backroom ‘gentlemen’s agreement’ was apparently concluded between the UK and high-ranking Commission officials. This apparently assured the UK that an interpretation favourable to them, i.e. allowing the UK to count early action schemes twice, would prevail if they signed up to the directive.

This led to vehement protests from other Member States – some of which also had already implemented energy saving schemes without complaint – as well as from the energy savings and environmental community. The effect of the UK’s interpretation would have meant that an already compromised and watered-down directive would achieve even fewer savings than the envisaged 10.5%, making the 2020 20% energy efficiency target even more unreachable.

Following the entrance into force of the EED, ClientEarth wrote a prompt and apt response to the dispute which can be found here. The gentlemen’s agreement was then put to the legal test when DG Energy sent the EED for analysis by the Commission’s Legal Service. Their response, outlined last month in the Commission’s interpretative notes, was then subject to inter-service consultation.

The final decision means ClientEarth’s interpretation has prevailed, an interpretation which is both in line with the law and blocks a further watering down of the EED. The directive is one of the key measures in the long battle to achieve the EU’s 2020 20% energy savings target. Without it, there is little hope of a transition to a carbon-neutral economy by 2050.

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