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

European energy policy is characterized by a complex allocation of authority between the European
Union and its Member States which results in an intricate interplay of regulatory competence.
Knowing the difficulties European countries face in coordinating and proposing common solutions in
the area of energy, there is the urgent need to question the legal foundations underlying the decisionmaking
process. Institutional paralysis, low reactivity to events and changes as well as systematic
political horse-trading across all questions call for an alternative framework allowing some pioneering
Member States to promote ad hoc common policies escaping the formal and procedural requirements
of EU law. Our paper assesses the legal feasibility of short-run differentiation by means of partial
international agreements inspired by the Schengen regime, namely entirely outside the EU framework.
The key challenge from a legal point of view is to assess the substantive compatibility of such
agreements in energy with the existing rules of the Union. Short run differentiation in energy cannot
indeed be assessed at a high level of generalities. We therefore take two areas where legally-binding
coordination at the sub-Union level is often called for: nuclear policy and gas security of supply. The
possible substantive content of such cooperation is derived from the economic and political literature
before legal feasibility is assessed. Our findings suggest that the scope for such agreements is limited
for security of gas supply whereas it could be an improved cooperation device in certain areas of
nuclear policy.