The Impact of the EU Energy Policy on Member States’ Legal Orders: State of Art and Perspectives of Renewable Energy in Italy and Great Britain

Recently, the European Union has adopted the “Climate and Energy Packet” (Directives 2009/28/EC, 2009/29/EC, 2009/31/EC) and the “Third Energy Packet” (Directives 2009/72/EC, 2009/72/EC, 2009/92/EC), aimed to create a whole competitive energy market, based on both the principle of perfect competition and that of high environmental sustainability. The environment, in fact, has become one of the elements that sensibly influence the EU policy, which for some time seems to have decisively shifted towards pursuing green economy objectives. However, moving from the assumption that the effectiveness of the European legislation can be tested just when it is transposed in the Member States’ legal orders, the article analyzes how Italy and Great Britain have complied with the above mentioned Directives. In so doing, it gives account of both the state of art and perspectives of the renewable energy policies in those Countries, looking for convergences and divergences, and concludes that sometimes the effective fulfilment of the European tasks could require, above all, a shift of perspective by Member States.

This is also true for renewable energies, to which -for several years -Europe has devoted a great attention, as they are considered like a step to reach the goal of a sustainable development (Note 13).
Nevertheless, the effective fulfilment of such a task depends also on the Member States' inclination to meet the standards settled at EU level (Note 14).Thus, the present article is aimed to analyze how some of the most recent normative acts, adopted by the European institutions in the renewable energy field, have been performed by Member States.More specifically, the article compares the Italian and the British way to cope with the European requirements and by the way it gives account of both state of art and perspectives of the renewable energy policies in those Countries.

Europe towards Green Economy Objectives in the Energy Sector
Getting to the core of the subject in the light of the aforementioned considerations, it is possible to affirm that today all sources of energy, including renewable ones -and with the sole exception of nuclear energy -are considered in general provisions within the European Treaties (Note 15).Here, in fact, the main points of the EU energy policy are clarified, amongst which are the promotion of energy saving; the energy efficiency; and the development of new and renewable energies (Note 16).
Therefore, as in other sectors (e.g., waste) (Note 17), also in this case at a certain point the demand linked to the development of the single market has met those related to the "need to preserve and better the environment" (Note 18).Thus -according to the doctrine -here more than anywhere else the environment has become one of the elements which sensibly influence the EU policy (Note 19), which for some time seems to have decisively shifted towards pursuing green economy objectives (Note 20).
Following this purpose, since the early 1990s, a series of measures (Note 21) devoted to renewable energies have been adopted, amongst which was last introduced the "Climate and Energy Packet" of 2009.This, composed of several documents, such as three relevant directives (Note 22), should be read in combination with the provisions of the Third Energy Packet -directives 2009/72/EC, 2009/73/EC and 2008/92/EC (Note 23) -as all of those legislative measures are aimed to create a whole energy market, based on both the principles of perfect competition and that of high environmental sustainability (Note 24).
Nevertheless, as it usually occurs, also in this case the effectiveness of the European legislation is tested when it is transposed to the legal orders of the Member States and, consequently, when it is applied to the everyday scenario (Note 25).In fact, among the domestic systems, there are often political, economic or substantial differences that are likely to undermine not only the homogeneity of the European legislation, but also its effectiveness (Note 26).
As far as renewable energies are concerned, for example, it has been noted that substantial progress has been made exclusively in those countries where the economic, environmental and social advantages linked to these kinds of energy have been included in such a way that a real will to support new forms of energy was instigated both at political and at social levels (Note 27).

Italy and Great Britain: A Comparison
The cases of Italy and Great Britain are a good example of the aforementioned statements, since their history in the energy sector, together with large differences (Note 28), also presented surprising similarities.
Concerning Italy, it has to be pointed out that the European legislation has had an impact mainly on the regulatory aspect (Note 29), in order to modify the monopolistic system created by the Act 6 December 1962 no.1643 (Note 30), which gave the service of production, shipment and supply of electric energy to a public entity, namely ENEL.In other words, the EU law prompted the national legislator to open the energy sector to the market, and therefore to the competition (Note 31).It is on this profile that also the doctrine has primarily focussed its attention (Note 32).Moreover, it is in this direction that the legislative decree 1 June 2011 no.93 (Note 33) attempts to move, as it was adopted for the purpose of receiving the "Third Energy Packet" directives, by which the European institutions would win the resistance of those Member States, including Italy, to warrant a full competitive structure to the energy markets (Note 34).However, it has been noted that, in practice, the Italian legislator has mainly focussed his attention on the security of networks and supplies, neglecting the real market competitiveness (Note 35).This is probably due to the issue (crucial to the Italian reality) of public services' liberalization, and therefore more broadly to choices of domestic policy (Note 36).In any case, the national legislator's self-restraint shows that, in Italy, the process of liberalization in the energy market is still in progress, although it begun in the mid-1990s (Note 37).
Furthermore, being primarily absorbed by the search for a prospective equilibrium between the pro-competitiveness requests made by the EU and the internal resistances, only recently the Italian legislator has begun to look at renewable energies.The latter, in fact, have received a complete discipline only in 2003 by the legislative decree no.387 (Note 38) (which has long remained "orphan" of an essential integrative element that are the guidelines, arrived only in 2010 (Note 38), when the Ministry Decree 10 September 2010 was adopted), today replaced by the legislative decree n. 28/2011, by which Italy has transposed the directive 2009/28/EC.Nevertheless, a first exam of these provisions shows the lack of a systematic legal framework capable of acting as a platform for the development of the energy sector (Note 40).In particular, two weaknesses emerge: a too complex permission system for the construction of installations and insufficient public policies for incentives.
With regards to the former point, it is first and foremost observed that the different institutional levels that are competent to the adoption of legislative (Note 41) and administrative (Note 42) decisions in this matter, result in a too complex bundle (Note 43), which even the Italian Constitutional Court (Note 44) sometimes does not seem to be able to unravel.For instance, it must be taken into account that the grant of not only administrative (already regulated by the legislative decree no.112/1998) (Note 45), but also legislative and regulatory competences to the Regions gives rise to strongly different local energy policies (Note 46).And this leads also to undermine a homogeneous distribution of renewable energies across the national territory.Furthermore, it has been highlighted that recently the Article 12 of the legislative decree no.28/2011, -regarding the grant of permissions -despite its accelerative purpose, in practice seems to notably lengthen the time for an authorization to be given (Note 47), in clear contrast with the principle of simplification ex Article 4 of the legislative decree no.28/2011 (Note 48).Moreover, even though for different reasons, similar criticisms can be made regarding the "procedura abilitativa semplificata" (PAS) regulated by Article 6 of the legislative decree no.28/2011 (Note 49).
Moving to the latter point, that is the incentives (Note 50), the Italian legislator has established that since 2013 the new installations should be subject to different regimes according to their dimension (Note 51).While for the smaller installations Article 24, p. 3, of the legislative decree n. 28/2011 has established a fixed incentive, to the installations of greater size the system of "aste a ribasso" ex Article 24, p. 4, of the legislative decree n. 28/2011 should be applied.However, in both cases the definition of the concrete operational rules of these incentive systems has been demanded to inter-ministerial decrees that should be adopted in the near future.This means that, in practice, a large part of the legislative reform has been put in the hands of the public administration, the discretion of which is likely to be an obstacle to investments as it does not guarantee the certainty of law (Note 52).
To testify the validity of this statement, it is sufficient to pay attention to the inter-ministerial decree 5 May 2011 about the "Incentivazione della produzione di energia elettrica da impianti solari fotovoltaici" (Quarto Conto Energia).In fact, this decree, showing a clear preference for the small photovoltaic installations (Note 53), has given rise to an unjustified treatment disparity amongst the operators of the energy sector (Note 54) at the expense of greater installations.That is of those economic subjects that have made relevant investments in the renewable energy sector and whose businesses risk to be jeopardized by the lack of economic support to the production (Note 55).
In conclusion, (also) with reference to incentives, the crucial problem remains the absence of a far-sighted policy, that is of the strategic direction fixed by the legislator to promote investments on renewable installations.Just in this way it will be possible to follow a virtuous path for the growth of renewable energies in national consumptions from now until 2020 (Note 56).

Great Britain
Moving now to the analysis of Great Britain's energy policy, first of all it can be noticed that for a certain period of time this was characterized by events -mutatis mutandis -similar to those that have characterized the energy sector in Italy.
Essentially, this is in reference to an initial phase when the functions related to electricity service were thought to have to be locally allocated (Note 57).But also to a second phase -the beginning of which coincides with the end of the World War II -when the energy sector was the object of a nationalization process (Note 58).In particular, the labour government that took the reins of the Country in 1945 rendered energy nationalization a key element in the precincts of a greater restoration plan of the public sector and more broadly of the whole national economy (Note 59).So, in 1947 the Electricity Act passed the powers and the structures that until then belonged to a plurality of scattered subjects to a single industry owned by the central State.While, ten years later, the Central Electricity Generating Board was established, with the purpose of creating a single system for the production and the supply of energy across the entire British territory.
However, towards the end of the 1970s, Italy and Great Britain took different directions.In fact, while in Italy the monopolistic system created in 1963 was still solid and would start to weaken only several years later under the external pressure of the EU (Note 60), in Great Britain internal factors moved the Nation towards a radical reform (Note 61).Thus, already in 1979 the government promoted neo-liberalist policies, aimed to realize a highly competitive energy market.While, officially, the privatization occurred with both the British Gas Act of 1986 and the Electricity Act of 1989 (Note 62).Particularly the latter, together with starting the unbunding process (Note 63), gave local authorities the opportunity to contribute to the energy supply by using eco-sustainable sources (Note 64).
Since then Great Britain has officially discovered renewable energies.Nevertheless, experiencing this "Copernican revolution" over a decade prior to Italy, was not enough to make of Great Britain a real front-runner in this field, as the latter was unable to avoid a number of shortcomings quite similar to those above mentioned with regard to Italy.
On this point, the doctrine agrees that Great Britain was not able to put in place public policies useful to better take advantage of its enormous potentialities (especially those linked to wind power and biomasses) (Note 65).In particular, the "systemic problems" (Note 66) seem to concern the incentives, and more in general the actions aimed to improve the development of renewable energies (Note 67); the licensing procedure, often blocked by the Nimby effect (Note 68), and also the network access.
With special regard to incentives, most of the criticisms have been focussed on the Renewables Obligation system (Note 69).This, in fact, introduced in 2002, has not given the expected outcomes over the last ten years.According to the majority, this was due to the fact that this instrument was not thought specifically to reduce the economic risk that investors have to stand, but to increase the competition among technologies and, as a consequence, minimize final consumers' costs.Nevertheless, neither the last mentioned task has been reached, as the Renewables Obligation has several shortcomings which factually have delayed the development of new projects for the production of energy from renewable sources.In fact, as it has been pointed out, "the mechanism was designed to be technology neutral -in other words, no single technology would be preferred" (Note 70)and this prevents the "surfacing" of new forms of renewable energy as well as the development of start up projects, which risk to be excluded from energy market (Note 71).In sum, there is no a competitive market because there are no subjects provided for the competition.
Therefore, in the light of the aforementioned reasons, it is possible to posit that nowadays also the Great Britain seems to struggle in pursuing the European tasks for the use of renewable energy into 2020.Nevertheless, the most recent movements -even at legislative level (Note 72) -show that the awareness of the opportunity of adopting new policies, clearly oriented to guarantee a better balance between the market and the protection of the environment, is increasing among the British institutions.And this could be sufficient to instil a bit of optimism, even if -of course -it is necessary to wait for and verify the concrete goals that such policies will be capable to gain in the near future.

Final Remarks
In conclusion, if it is true that from immemorial time energy represents a sort of "fuel" for both the development and the growth of the European economy (Note 73), likewise it is true that today these objectives cannot be pursued separately from the protection of the environment and, consequently, from the safeguard of future generations (Note 74).The Directives which compose the "Climate and Energy Packet", along with the "Third Energy Packet"'s provisions, clearly show the EU will of pushing the Member States towards such a direction, that is (as much as possible) a sustainable development (Note 75).
But, what is the impact of those provisions on the national legal orders?Or, in other words, are national legislators complying with the requirements settled in the last European directives by adopting ad hoc policies in the energy sector?
To answer this question, the article has analyzed how some of the most recent normative acts, adopted by the European institutions in the renewable energy field, have been performed by Italy and Great Britain.In so doing, the article has given account of both the state of art and perspectives of the renewable policies in those Countries, showing that, together with large differences, they also presented several similarities.In particular, it has been observed that nowadays both Italy and Great Britain are struggling in pursuing the European tasks for the use of renewable energy into 2020.Nevertheless, while in Italy the energy sector seems to be "trapped" because of the lack of a far-sighted policy, clearly oriented to pursuing a fair balance between market and environment, in Great Britain a new "wind" is starting to blow.In fact, the British institutions are increasingly pointing out the opportunity of adopting new energy policies, aimed to reach the goal of a sustainable development according to the green economy's standards settled by the EU.
Thus, those considerations seem to strengthen the initial assumption that the effectiveness of the European law is tested when it is transposed in the national legal orders and that, therefore, the effective fulfilment of the requirements settled at EU level mainly depends on the Member States' inclination to meet them.Moreover, they also confirm that often it could require a shift of perspective to understand in depth (and appreciate) all the potentialities linked to the green economy policy pursued by the EU.As we tried to point out in the previous paragraph, this is exactly the case of the Great Britain, which recently seems to have understood the renewable energy's potentialities especially with regards to both the environment and the economy.
In other words, the European Union has tried to spread a message, that is the principle of sustainable development entails to looking for a real balance between market and environment, also as far as the energy sector is concerned (Note 76).Now it is the time of Member States, which have to show they have got onto that idea.

Notes
Note 1. See, amplius, Tesauro, G. (2010).Diritto dell'Unione europea, Padova, Cedam.Note 2. At that time (after the II World War), in fact, the energy sector was considered as a key element for the development of the European industry and, more in general, for the upswing of the European economy as a whole.
Note 5. Quadri, S. (2011).L'evoluzione della politica energetica comunitaria con particolare riferimento al settore dell 'energia elettrica rinnovabile,in Riv. it. dir. pubbl. comunit.,[3][4]839.Note 6. See Article 235, p. 1, TEEC: "If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament".Note 7. Introduced in the EEC Treaty in 1986 by the Single European Act (SEA), they have constituted an ad hoc title with regard to the Environment.See Craig, P., &De Burca, G. (2011). EU Law. Text, cases andmaterials (2011), Oxford, OUP;de Leonardis, F. (2010).Le trasformazioni della legalità nel diritto ambientale.In G. Rossi (Ed.), Diritto dell'ambiente (p. 117). Torino, Giappichelli;Stetter, S. (2001).Maastricht, Amsterdam and Nice: The Environmental Lobby and Greening the Treaties.EELR, 150 -159;Tesauro, G. (2010).Diritto dell'Unione europea, Padova, Cedam.Note 8. See, in particular, Article 3, lett.t) of the European Community Treaty.Furthermore, see also Article 3, lett.n) and 129, lett.b), c) and d).Among scholars, see Cameron, D. (2009) Note 10.Cfr.Article 4, p. 2, lett.i) of the TFEU.More specifically, Article 4 provides: "1.The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6. 2. Shared competence between the Union and the Member States applies in the following principal areas: (...) (e) environment; (...) (i) energy; (...)".Note 11.Title XXI of the TFEU that contains just one article, that is Article 194.This provides: "1.In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to: (a) ensure the functioning of the energy market; (b) ensure security of energy supply in the Union; (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and (d) promote the interconnection of energy networks.2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1.Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).3.By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature".Note 12. Inter alia, see Ammannati, L. (2011).L'agenzia per la cooperazione tra i regolatori dell'energia e la costruzione del mercato unico dell 'energia. Riv. it. dir. pubbl. comunit., 3-4, 675;Bruti Liberati, E. (2009).La regolazione dei mercati energetici tra l'Autorità per l'energia elettrica e il gas e il governo.Riv. trim. dir. pubbl. comunit., 435-475;Bruti Liberati, E. (2010), La nuova governance europea dei mercati energetici, in AA., VV., La regolazione dei mercati energetici nel "terzo pacchetto" comunitario (p.64).Milano, Vita e pensiero; Craig., P. (2009).Shared Administration and Networks: Global and EU Perspectives.Legal Research Paper Series, Oxford, OUP, 6;dell'Agli, L. (2007).L'accesso all'energia elettrica come diritto fondamentale per la dignità della persona umana.Riv. giur. amb. 5,713.With regards to the jurisprudence see, inter alia, CGUE 20 aprile 2010, AEEG, C-265/08, for a comment to which it may be seen Feliziani, C. (2011).Il rapporto tra liberalizzazione e regolazione al vaglio della Corte di Giustizia.Foro amm.CdS 3 2011, 786.
Note 13.The principle of sustainable development , introduced by the Amsterdam Treaty, is settled in Articles 3 of the EU Treaty and 11 of the TFEU even if here it is not expressly well-defined.However, according to scholars (Kramer, L. (2011).EU Environmental Law, London, Sweet & Maxwell) it can be described as "a development which meets the needs of the present without compromising the ability of future generations to meet their own needs".Note 40.Inter alia, see di Cristina, F. (2011).L'attuazione del "terzo pacchetto" e il nuovo assetto dei mercati energetici.Giorn. dir. amm. 9, 925;Ragazzo, M. (2011).Le politiche sull'energia e le fonti rinnovabili.Torino, Giappichelli.
Note 41.Marzanti, A. (2012).Semplificazione delle procedure e incentivi pubblici per le energie rinnovabili.Riv. giur. amb.,5,361, observes that the difficulty is due to the fact that the subject is regulated by several kinds of provisions: international and European Union provisions as well as those adopted at both national and regional level.