Energy Law

Experienced in financial and regulatory aspects of the energy sector with a tradition of representing sponsors. Specialises in project financing and leasing.
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Nctm Studio Legale Associato fields a full-service energy group, but with the distinction that nearly all its lawyers have strong litigation and public law backgrounds.
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Despite the long investment lead-in times, the size of the investments and the administrative hurdles to be overcome, the energy market is continuously evolving. Nctm has expertise in financing, in contracts, in administrative law and in the regulation of the energy sector. We provide highly specialised and comprehensive advice to the biggest and most innovative energy and financing companies in this sector.

Nctm has particular expertise in renewable energies as well as in innovate and complex energy structures. Our expertise in this field includes:

  • Negotiation of bilateral and multilateral agreements for the supply of gas and other fuels
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  • Drafting and negotiation of tolling agreements
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16/03/2017

The UK is nothing if not pragmatic. The pragmatism has sometime been referred to as perfidiousness: perfidious Albion. What is sure is that the UK will approach the divorce with the EU in a very pragmatic fashion. It will seek to develop bi-lateral relations with its direct trading partners. It will seek to revive the trade pre erences in the Commonwealth. It will seek independent influence in all international bodies.

27/09/2016

Brexenergy:  a roadblock for the  European Energy Market ? 

Increasing interconnectivity with Continental Europe will necessarily require co-operation between UK and EU Internal Energy Market in any Brexit scenario. If the UK is permitted to participate in the Energy Union following Brexit, it would need to negotiate an appropriate partnership with EU and adopt – and comply with – the relevant European law.

The questions to be addressed are: can the UK continue to participate in the liberalisation of the European Energy Market (EEM), can the EEM continue the liberalisation process without the UK ? 

It’s important to underline the extent to which EU and UK energy policies are closely aligned: in many respects, the UK has taken the lead in shaping EU energy policy, with its focus on open and transparent markets, energy security, low carbon energy sources, energy efficiency and high levels of environmental protection. If the UK was to stay within European Economic Area (EEA) as a Member of the European Free Trade Associatiobn (EFTA), most of these objectives and constraints would remain.

Given to the UK’s liberalised energy policy, we expect that the UK will continue to implement and be supportive of many aspects of the EU’s Third Energy package (an EU legislative package with the central aim of liberalising European gas and electricity markets).  For example, the ownership unbunding requirements, which require the separate ownership and operation of electricity/gas transmission systems for any generation, production and supply interests; the level playing field; and the standards transparency. The UK Government also appears committed to market-based interventions in energy markets and supports EU initiatives such as market coupling. We therefore consider that business should plan to continue to comply with these requirements.

Consequently, if the UK remains part of the EEA, the EU State Aid rules will continue to apply to the energy infrastructure and support schemes as today, since the EEA Agreement contains a similar prohibition. However, any subsidy will also need to comply with the WTO subsidy regime which is similar in its intentions to the EU State aids rules. The WTO regime disciplines the use of subsidies and regulates the actions which WTO members can take to counter the effects of subsidies.

From a legal point of view, one of the most important question needing a quick answer is how the UK would join the EEA Agreement given its more advanced implementation of EU Law. The answer will only be known as part of the Brexit negotiations, after the triggering of the famous Article 50 of the Treaty of Lisbon. In fact, the exact nature of the exit and the future UK-EU relationships is still to be negotiated and it is expected that the United Kingdom will attempt to extract favorable terms in a a new trading arrangements that still provides the country access to a single market[1], while the European Union will resit such an arrangement. 

As this is the first time that a Member State has left the “28-Countries Club”, there are many significt uncertainties over substance, process and timelines. In the interim period and while negotiations are ongoing, the legal status of the EU-UK relationship (and all attendant rules and regualtions) will remain unchanged. But there will be political changes: the UK will not participate in the next European Councils and Councils of Ministers. Over the near term, uncertainty will be the defining feature of the direct and indirect impacts on energy markets. Nonetheless, it is possible to begin to outline some of the impacts on the energy system.

The Brexit impact on Energy Markets .

Concerning the Direct Impact , as evidenced in the immediate reaction to the Brexit vote, and because the status quo will remain in place on the regulatory and trade front, the direct impact on energy markets in the short term will be supposely “..limited to the volatility of commodity prices, most prominently the orice of crude oil”[2].

The Indirect Impact on Energy Markets is perhaps more significant in the near and medium term than the direct impacts and moderated through the effect the British referendum will have on global economic growth. An example of indirect impact is the cost of access to credit. The risk premium on investments will likely rise, both in the UK and elsewhere, but “investors will remain risk averse until the long term is more predictable, and this will likely stiffen investments and rescricts the flow of capital even further across global markets”[3].

There is also the possibility of Uncertain Impact on Energy Markets. Going forward, much of impact on energy markets will be determined by the future contours of the UK relationship with the European Union and even more on the shape of the Union itself, which will be determined in the months ahead by a complex web of political and technical factors. There are three major areas of uncertainty when it comes to the Brexit’s impact on energy and climate policy that will be influenced by these negotioations: the future of climate policy, the future of British access to the EU market, and additional potential EU exits.  These areas are by far most consequential for energy markets and policy, but are by no means the only areas of uncertainty.

Climate Policy and multilateral agreements

When it comes to multilateral climate policy, the United Kingdom – the European Union’s second largest emitter of CO2 – has partecipated in UN climate negotiations as part of the broader EU bloc, and its climate commitment to the recent Paris Treaty was submitted as part of the broader European commitment. What will happen to the EU target – will it need to be resubmitted, and would any submission need to be more or less stringent without the united Kingdom –  remains to be seen. Likewise, whether they will submit a new climate pledge, and the shape and scope of that pledge, is also up in the air. However, the United Kingdom is on the path to cut emissions by 2030 under a domestic law. The broader EU negotiating dynamic on climate moving forward may also change. The United Kingdom is often credited with both pushing for more stringent climate targets and for the adoption of market-based mitigation (rather than top-down-wide stadards and goal setting). How the European approach to climate negotiations may change without the presence of the British remains to be seen.

Access to EU Market : the Framework

A considerable impact of a potential Brexit for energy markets will be determined by the shape of the future EU-UK economic relationship (as well as the political future of the United Kingdom itself). There are, essentially, five possibilities for the relationship: 1) status quo – the United Kingdom does not leave the European Union and remains part of the common market; 2) the United Kingdom leaves the Union but retains full access to the EU single market (the Norway model); 3) the United Kingdom has restricted but significant access to the common market on a bilateral basis (the Swiss model); 4) the United Kingdom does not have acces to the common market but negotiates a separate free trade agreement with the Union (the Canada model); 5) the United Kingdom and the European Union are not able to negotiate preferential trading terms, and access to the common market would be premised on the World Trade Organization rules.

Access to EU Energy Markets

While it would make economic sense for the United Kingdom to remain part of Europe’s internal markets for electric power and natural gas (50% of UK imported gas comes through the Union), that outcome remains to be negotiated. What is less clear, however, is whether the United Kingdom would drop some specific European measures, such as imposed renewable energy targets and Europe’s Industrial Emissions Directive, which controls emissions on power plants. The regulatory upheavel could be significant for energy development in the United Kingdom, with energy regulations currently set by the European Union likely to be the subject of future negotiations. Moreover, the status of access to the common market is also likely to impact the decision of whether the UK continues to participate in the EU emission trading system, which regulates greenhouse gas emissions.

Finally, the broader energy market impacts may be determined by the future of the European Union itself. The British vote to leave the Union is likely to propt other anti-EU forces in other EU countries to hold similar referenda. If the Union were to break apart – either marginally or more substantially, or dissolve altoghether – the consequences for energy markets could be profound.

It is uncertain how the outcome of the referendum will affect political fragmentation across the European Union. A number of countries, including Poland and Hungary, have incumbent euroskeptic governments, while many other member states have growing ranks of opposition parties to current governments who share a skeptical view of the European Union as an institution. If there are other referenda or movements toward exit aming these member states, it is likely to have major impacts on global economic growth and confidence in the markets in general, which in turn would have severe effects on energy markets.

The contents of this article is meant for informative purposes only and cannot be considered as

professional advice.

For further information please contact giovanni.moschetta@nctm.it

_____________________________________________________________________

[1] See and read in following pages: Norvegian Model, Swiss Model etc.

[2] Andrew Stanley, Centre for Strategic Studies.

[3] Global Fossil Energy and Climate Change mitigation, in Climate Change, May 2016, volume 136, Issue 1, pp. 69-82

In this issue, we explore the new “Project Review” rule provided for by Article 202 of Italian Legislative Decree No. 50/2016, which allows the State to revoke funding previously granted for projects which – upon later and more in-depth review – are found no longer to meet the cost benefit ratio. What will the impact of this new rule be on port infrastructure projects in Italy? Are we at the beginning of a new era? We come back to the Italian port reform issue, this time to examine the ordinance power vested in the President of the Port System Authority. Analysing a judgment of the Regional Administrative Court of Liguria, we note how case law anticipated the reform when recognising the ordinance power of the President of the Port Authority even in the absence of an express statutory provision. We then deal with the need for prior review by the EU Commission of State funding projects involving upgrade works on EU ports. On 23 January 2017 the new EU Regulation on port governance was approved. We give a first insight on the main issues covered by the Regulation: financial transparency and the provision of port services. We examine the request to amend Directive 2009/13/EC, aimed at delivering better working conditions to seafarers in accordance with the amendments made in 2014 to the Maritime Labour Convention (MLC / 2014). We also provide some updates on maritime employment agencies. We then focus on a recent decision of the European Commission on State aid, which further helps improve the general understanding of the criteria to be met in order for State aid in port and airport matters to be deemed compatible with EU law. Finally, we draw our attention to an interesting decision of the Consiglio di Stato regarding the interruption of airport handling services, which is forbidden when deemed detrimental to the public interest in operation of scheduled air transport services.] We want to thank our colleagues at Nctm Brussels’s office for their contributions highlighting the most significant actions taken by EU institutions in the international shipping and trade sector. You will also find a list of our events taking place at our Milan and Rome offices, in addition to the usual update on our firm’s activities over the past two months.

As we settle into 2017 the drama of Brexit and Trump seem to have eased somewhat. While the drama might have lifted it doesn’t mean that the complexities that these two phenomena have introduced and are introducing into the practice of law have gone away. In fact, the more we reflect on what needs to be done to achieve Brexit the less clear the situation is. This week President Trump will outline what he means by the Wall and taxes on imports of goods. From a WTO law point of view it can only be disruptive and even destructive. The drama might have gone but the work is only beginning. In this issue we have a range of contributions covering how the Russian constitutional court has reacted to the European Court of Human Rights rulings in favour of the owners of Yukos, the OECD’s review of its own bribery rules, the EU’s new proposed ePrivacy Regulation, how the European Court of Auditors confirms our understanding of the responsibilities and obligations of Port Authorities in relation to concessionaires. We explain the new Italian Save the Banks decree and show how the EU Commission has a strong role in every step of the process and look at how the Commission proposes disciplining insurance distribution agents.

Trade features significantly in this first edition of Across the EUniverse for the year 2017. It cannot be otherwise. US President Trump has said that he will change US trade policy building barriers to market access and forcing US companies to manufacture at home. China President Xi has said that China promotes barrier free trade so long as the barriers are in third countries (not in China). The EU is in the process of reforming its trade defence instruments and digesting how a post Brexit world will look.

 

This change in trade is evidence of wider change that is taking place around us and which is likely to continue into 2017. There will be federal elections in Germany and national elections in France. If Italy gets to change its electoral law there may well be an election in Italy. Will the forces that backed President Trump in the US win in the EU as well. The country most likely to change is the Netherlands, once a bastion of openness but now toying with the idea of giving the most votes to an anti-Islam party.

 

In this issue we look at the legal debate concerning an Italian exit from the Euro; a comparison between Trump and Xi approach on the concept of trade; some consequences of the excessive length of court proceeding; we also examine the advantages of the new italian “rent to buy” agreement; as well as the Multilateral Investment Court; an overview of the service sector; a further examination of the trade consequences of Brexit and finally the advantages or disadvantages of enhancing the bilateral framework between EU and US in the field of energy.

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