summary of the case
| status: | closed by Ministerial Council Decision / not complied after Art.91 MC Decision |
|---|---|
| registered: | ex officio 2016 |
The Third package legal acts were incorporated in the Energy Community acquis communautaire by Decision 2011/02/MC-EnC of the Ministerial Council of the Energy Community of 6 October 2011. Following the adoption of Decision 2011/02/MC-EnC, the Secretariat initiated activities to plan the phases of transposition of the Third Energy Package in a timely and structured manner. A detailed Implementation Plan, outlining the different preparatory activities to be taken by the Contracting Parties as well as the institutions was adopted by the Permanent High Level Group on 14 December 2011.
Article 3(1) of Decision 2011/02/MC-EnC requires the Contracting Parties to bring into force the laws, regulations and administrative provisions necessary to comply with the Third Energy Package and to apply them as from 1 January 2015. Article 3(2) Ministerial Council Decision 2011/02/MC-EnC also requires the Contracting Parties to communicate to the Energy Community Secretariat the text of the main provisions of national law which they adopt in the field covered by Decision 2011/02/MC-EnC. Article 6 of the Treaty imposes upon the Parties the general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty. Article 89 of the Treaty requires Parties to implement Decisions addressed to them in their domestic legal system within the period specified in the Decision.
The time limit for Bosnia and Herzegovina to take measures necessary to comply with Article 3 of Decision 2011/02/MC-EnC as well as Articles 6 and 89 of the Treaty expired on 1 January 2015. Bosnia and Herzegovina to date has not adopted the measures necessary to implement Decision 2011/02/MC-EnC.
On 14 October 2016, the Ministerial Council decided on the failure by Bosnia and Herzegovina to comply with its obligations under the Treaty by failing to adopt and apply the laws, regulations and administrative provisions necessary to comply with Directive 2009/72/EC, Directive 2009/73/EC, Regulation (EC) 714/2009 and Regulation (EC) 715/2009 by 1 January 2015 pursuant to Article 3(1) of Ministerial Decision 2011/02/MC-EnC. With the adoption of Decision 2016/07/MC-EnC, the procedure under Article 91 of the Treaty in Case ECS-06/16 is closed. On 12 October 2017, the Secretariat initiated Case ECS-06/16S by submitting a Reasoned Request to the Ministerial Council under Article 92 of the Treaty.
procedural history
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13 May 2016: Reasoned Request
Case
The Reasoned Request is against Bosnia and Herzegovina, Kosovo*, Moldova and FYR of Macedonia which failed to transpose the Third Energy Package by 1 January 2015 and failed to forthwith notify those measures to the Secretariat. These Contracting Parties failed to comply with Articles 6 and 89 of the Energy Community Treaty as well as Article 3(1) and (2) of Ministerial Council Decision 2011/02/MC-EnC.
Procedure
Under the Dispute Settlement Rules as amended in October 2015 (PA 2015/04/MC-EnC), the Ministerial Council abolished the preliminary procedure in dispute settlement proceedings for non-transposition. Hence, the Secretariat is obliged to submit a Reasoned Request to the Ministerial Council directly, without performing a preliminary procedure.
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14 October 2016: Ministerial Council Decision on failure
Steps taken
On 14 October 2016 the Ministerial Council took a decision on the failure by Bosnia and Herzegovina and FYR of Macedonia to comply with certain obligations under the Treaty. The Ministerial Council declared the existence of a breach by these two Contracting Parties of their obligations to transpose the Third Energy Package by 1 January 2015 and to forthwith notify those measures to the Secretariat. These Contracting Parties failed to comply with Articles 6 and 89 of the Energy Community Treaty as well as Article 3(1) and (2) of Ministerial Council Decision 2011/02/MC-EnC.
In Article 2 of the Decisions, the ministers urge Bosnia and Herzegovina and FYR of Macedonia to "take all appropriate measures to rectify the breaches identified in Article 1 and ensure compliance with Energy Community law, in cooperation with the Secretariat, by December 2016".
Procedure
Bosnia and Herzegovina and FYR of Macedonia 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