Too Weak to Be Controlled: Judicial Review of ACER Soft Law

Energy is an area of shared competences between the EU and its Member States. With Member States retaining large powers, regulation was, for a long time, left to informal networks of stakeholders who played a key role in coordinating policies. Following the introduction of Article 194 of the Treaty on the Functioning of the EU (TFEU) in the Lisbon Treaty, the third energy package builds on these informal arrangements and delegates regulatory and enforcement powers to public national regulators and to private transmission system operators (TSOs). These are organized in networks coordinated by the Agency for the Cooperation of Energy Regulators (ACER). ACER carries out tasks meant essentially to enhance cooperation between the different public and private players, while also having a monitoring function, and decision-making power in technical areas. Given the complexities of regulation briefly hinted to above, energy has been an excellent terrain for the development of various non-legally binding tools— or soft law. The literature has already shown the many ways in which soft law has been prominent in the energy sector, and has taken a stance against such instruments, arguably enacted ‘outside the legislative arena of democratic politics’. This paper is concerned more specifically with soft law issued by ACER, which is a good case study for an underlying tension regarding the Meroni doctrine. According to a strict application of this doctrine, ACER has been delegated very limited decision-making powers, but issues a wide variety of soft law instruments, mostly in technical areas. However, under the guise of their ‘technical’ nature, some of these instruments can contain normative rules. This is especially problematic given that soft law has an unclear legal status and, as a consequence, ACER often escapes judicial oversight, potentially undermining accountability and the balance of powers. The analysis is placed in the wider context of the debates concerning the Energy Union, and the institutional developments introduced in the recent Winter Package. The paper will offer an overview on delegation in the energy sector and discuss the role of ACER before delving into the analysis of specific soft law instruments developed by the Agency and their justiciability.