summary of the case
| status: | closed by Ministerial Council Decision / complied after Art.92 MC Decision |
|---|---|
| registered: | ex officio 2013 |
Directive 1999/32/EC aims to reduce emissions of SO2, a substance harmful to human health and the environment, resulting from combustion of heavy fuel oils and gas oils. The Directive sets maximum thresholds for the sulphur content in these fuels of 1.00% and 0.10% respectively, and requires frequent sampling and analysis in each Contracting Parties. Directive 1999/32/EC is part of the Energy Community environmental acquis communautaire. The deadline for the implementation of the Directive in the Contracting Parties expired at the end of 2011 and upon the assessment of the domestic legal situation, the Secretariat decided to open dispute settlement procedures against the Contracting Parties the domestic legislation of which was not in line with Energy Community law.
The case against Ukraine was initiated by the Secretariat for the lack of national provisions transposing the 1.00% threshold for heavy fuel oil and the 0.10% threshold for gas oil.
On 14 October 2016, the Ministerial Council decided on the failure by Ukraine to comply with its obligations under Articles 3(1) and 4(1) of Directive 1999/32/EC in conjunction with Article 16 of the Treaty and the Protocol concerning the Accession of Ukraine to the Treaty. With the adoption of Decision 2016/05/MC-EnC, the procedure under Article 91 of the Treaty in Case ECS-05/13 is closed. On 12 October 2017, the Secretariat initiated Case ECS-05/13S by submitting a Reasoned Request to the Ministerial Council under Article 92 of the Treaty.
procedural history
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11 February 2013: Opening Letter
Case
On 11 February 2013, the Energy Community Secretariat sent Opening Letters to Ukraine, as well as to Albania, Bosnia and Herzegovina, FYR of Macedonia and Serbia in accordance with Article 12 of the Rules of Procedure for Dispute Settlement. The Secretariat, acting under Article 90 of the Treaty, notes that these five Contracting Parties have not yet transposed and implemented the requirements of Directive 1999/32/EC as required by Article 16 and Annex II of the Treaty.
Procedure
With the present Opening Letters, the Secretariat initiated preliminary procedures, the purpose of which is giving the aforementioned Contracting Parties the possibility to react to the allegation of non-compliance with Energy Community law, and enabling the Secretariat to establish the full factual and legal background of the case. The Contracting Parties have been given the possibility until 12 April 2013 to comply of their own accord with the requirements of the Treaty, or to justify their position.
According to Articles 6 and 16 of the Rules of Procedure for Dispute Settlement, interested parties may be granted access to the case file and may submit written observations on the present case to the Secretariat within one month from 11 February 2013.
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21 December 2015: Reasoned Opinion
Steps taken
On 21 December 2015, the Secretariat submitted four Reasoned Opinions as the next step in the dispute settlement cases against Bosnia and Herzegovina, FYR of Macedonia, Serbia and Ukraine. For Ukraine, non-compliance involves the lack of a binding national law to ensure that the sulphur content of liquid fuels does not exceed the limits set by Directive 1999/32/EC.
Procedure
With the present Reasoned Opinions, the Parties involved were requested to rectify the identified issues of non-compliance within a time limit of two months.
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13 May 2016: Reasoned Request
Steps taken
After carrying out a preliminary procedure, the Secretariat submitted a Reasoned Request on the cases ECS-2/13; ECS-4/13 and ECS-5/13 on the failure of Bosnia and Herzegovina, Serbia and Ukraine respectively to timely and correctly transpose the Directive 1999/32/EC on sulphur content of liquid fuels.
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14 October 2016: Ministerial Council Decision on failure
Steps taken
On 14 October 2016, the Ministerial Council took decisions on the failure by Bosnia and Herzegovina, Serbia and Ukraine to comply with certain obligations under the Treaty. Article 3(1) of the Sulphur in Fuels Directive requires a legally binding threshold on the sulphur content of heavy fuel oil of 1.00%, while Article 4(1) sets a 0.10% the sulphur content of gas oil. In the case of Ukraine, the Ministerial Council declared the existence of a breach by the Contracting Party of its obligations to transpose Articles 3(1) and 4(1) by 31 December 2011. Ukraine also failed to comply with Article 16 of the Energy Community Treaty as well as the referred articles of the Sulphur in Fuels Directive.
In Article 2 of the Decisions, the ministers urge Bosnia and Herzegovina, Serbia and Ukraine "to rectify the breaches identified in Article 1 and ensure compliance with Energy Community law immediately ".
Procedure
Bosnia and Herzegovina, Serbia and Ukraine are asked to report to the Secretariat and the Permanent High Level Group about the measures taken. The ministers invited the Secretariat to initiate procedures under Article 92 of the Treaty if the breaches are not rectified.