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Towards a European Principle of Independence: The Ongoing Constitutionalisation of an Independent Energy Regulator

open-access


Saskia Lavrijssen

DOI https://doi.org/10.21552/cclr/2022/1/6



This article analyses recent case law of the European Court of Justice in which the European requirements concerning the political independence of national regulatory authorities in the energy sector were interpreted in a broad way. These judgements were delivered in a time in which a strong independent authority plays a crucial role in the acceleration of the energy transition by safeguarding fair market access to new entrants offering innovative energy services. At the same time, the European developments towards a politically independent regulatory authority with discretionary, regulatory, powers is at odds with the way the democracy principle and the legality principle have traditionally been interpreted in several Member States, such as in the Netherlands and Germany. However, it is argued that the latter principles do offer scope for a different interpretation than the more traditional one of the principle of legislative supremacy. A condition, however, is that accountability mechanisms must be improved to provide citizens a legal guarantee that they can have a say and that the regulatory authority can be held accountable by the courts.

Saskia Lavrijssen is Professor of Economic Regulation and Market Governance of Network Industries at Tilburg University and affiliated with the Tilburg Institute for Law and Technology and the Tilburg Institute for Law and Economics. This article is based on a Dutch Preadvice written for the Dutch Association of Energy Law. For Correspondence: <S.A.C.M.Lavrijssen@tilburguniversity.edu>

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