Supranational actors and differentiated implementation of EU energy policy

EU legislation has traditionally been implemented by the member states that may ‘customize’ regulatory decisions to the national context, resulting in patterns of differentiated implementation not captured by EU compliance research (Thomann, 2019; Thomann & Zhelyazkova, 2017). However, a more recent observed trend is stronger involvement of EU-level actors such as the Commission, EU agencies and regulatory networks in implementation processes (Scholten 2017). What impact does this reconfiguration have for how EU policies are implemented? Does it affect the extent to which member states can customize implementation, and thus also whether EU implementation becomes more uniform or differentiated across Europe? We investigate why and how supranational actors seek to shape member states’ implementation of EU rules. Energy is a policy area where member states are sensitive to concerns for sovereignty, especially on issues related to energy provision. Moreover, electricity systems remain nationally oriented and there are technical and regulatory differences across member states. As a result, EU electricity market rules have often included flexible provisions that allowed member states to customize implementation. However, recent EU rules entail involvement of EU actors in member states’ implementation. Empirically, the paper examines the implementation of a rule introduced by the 2019 Electricity Regulation: the 70% rule required member states to make at least 70% of the capacity on cross-border electricity networks available for trade by 2020. While seemingly technical, this EU rule triggered massive controversy due to its impact on member states’ management of their internal electricity system, and indirectly also on electricity prices. On the one hand, the 70% rule gives leeway for the member states to choose different actions towards attaining the 70% target. It offers temporary derogations from the 2020 deadline – either via a reasoned application to the national regulatory authority for a two-year postponement, or via a national action plan to the Commission for how the member state will achieve the target by 2025. Thus, member states could choose to apply for derogations, and if so, fill the national action plan with means tailored to the national context. With heterogeneous preferences across member states and EU flexibility, differentiated implementation could be expected. On the other hand, the EU got engaged in the implementation of the 70% rule: the EU energy agency ACER adopted recommendations for how to operationalize the 70% rule, is monitoring member states’ progress, and has adopted contested decisions that oblige member states to take specific steps towards achieving the 70% rule. The Commission too has opportunities to interfere by requiring specific remedial action (limiting flexibility) in the course of the implementation period for the action plan. Thus, involvement of supranational actors could push member states towards uniform implementation.