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Policy Brief / Energy Law & Policy

Legal Feasibility of Schengen-like Agreements in European Energy Policy: the Case of Nuclear Cooperation and Gas Security of Supply

Author(s): AHNER Nicole, GLACHANT Jean-Michel, DE HAUTECLOCQUE Adrien

Editor(s): GLACHANT Jean-Michel, MICHETTI Emanuela

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ABSTRACT

– The recent declarations of some European leaders demon­strated a new political impetus towards the Europeanisation of energy policy. Nevertheless, the complex allocation of regula­tory competences between the EU and its Member States works against coordination and harmonisation

– A possible solution could entail some Member States to pro­mote ad hoc common policies through Schengen-like agree­ments, i.e., binding international law agreements outside the EU legal framework and thus escaping its formal and proce­dural requirements

– Schengen-like agreements must however comply with the prin­ciple of supremacy of Union Law in order to be legally feasible

– The compliance with the supremacy principle can be assessed on the grounds of three operational criteria: pre-emption, pri­macy of EU law and subsidiarity

– The legal feasibility assessment conducted in the two areas of nuclear policy and security of gas supply shows that in the for­mer area several of the most important licensing issues could be fruitfully integrated in a Schengen-like agreemen