The uniform “white certificates” scheme at the European Union level should not be expected in the foreseeable perspective.
The general legislative direction
The European Commission’s plans and intentions were ambitious when it comes to this topic (see ‘Proposal for new energy efficiency Directive – mandatory requirements for electricity generation installations’) the final text of the draft new energy efficiency directive (hereinafter referred to as the ‘Directive’) allows, however, for setting a clear conclusion – as regards energy efficiency the determination of the measures appropriate for the implementation of the generally outlined framework is the competence of each Member State – not the European Union.
As the recitals in the preamble to the Directive explain, “an assessment of the possibility of establishing a "white certificate" scheme at Union level has shown that, in the current situation, such a system would create excessive administrative costs and that there is a risk that energy savings would be concentrated in a number of Member States and not introduced across the Union. The latter objective could better be achieved, at least at this stage, by means of national energy efficiency obligation schemes for energy utilities or other alternative policy measures that achieve the same amount of energy savings. It is appropriate for the level of ambition of such schemes to be established in a common framework at Union level while providing significant flexibility to Member States to take full account of the national organisation of market actors, the specific context of the energy sector and final customers' habits.”
The recitals also unambiguously state that it is appropriate for Member States to determine, on the basis of objective and non-discriminatory criteria, which energy distributors or retail energy sales companies should be obliged to achieve the end-use energy savings target set by the Directive (with the exception of small energy distributors, small retail energy sales companies and small energy sectors which should be exempted to avoid disproportionate administrative burden).
Outwardly strict Article 6
As a matter of fact the Directive contains the provision on the energy efficiency obligation schemes that seems to have a strict character but this is outwardly only.
The said provision is Article 6 which requires that each Member State set up an energy efficiency obligation scheme.
Pursuant to the Directive that scheme must ensure that obligated energy distributors and/or retail energy sales companies operating in each Member State's territory achieve a cumulative end-use energy savings target by 31 December 2020.
That target must be at least equivalent to achieving new savings each year from 1 January 2014 to 31 December 2020 of 1.5% of the annual energy sales to final customers of all energy distributors or all retail energy sales companies by volume, averaged over the most recent three-year period prior to implementation date of the Directive. The sales of energy, by volume, used in transport may be partially or fully excluded from this calculation.
Furthermore Member States are granted the competence to decide how the calculated quantity of new savings referred to above will be phased over the period.
Here is also an important link between energy efficiency and climate legislation inserted consisting in exclusion from the said calculations all or part of the sales, by volume, of energy used in industrial activities covered by EU ETS (listed in Annex I to the Emissions Trading Directive (2003/87/EC)).
The key fact is that as an alternative to the establishing energy efficiency obligation scheme Member States may opt to take other policy measures to achieve energy savings among final customers, provided they meet certain criteria set out in the Directive and the annual amount of new energy savings achieved through this alternative approach is equivalent to the amount of new energy savings required.
Provided that equivalence is maintained, Member States may also combine obligation schemes with alternative policy measures, including national energy efficiency programmes.
Pursuant to the Directive the policy measures referred to above may include, but are not restricted to, the following policy measures or combinations thereof:
1) energy or CO2 taxes that have the effect of reducing end-use energy consumption;
2) financing schemes and instruments or fiscal incentives that lead to the application of energy efficient technology or techniques and have the effect of reducing end-use energy consumption;
3) regulations or voluntary agreements that lead to the application of energy efficient technology or techniques and have the effect of reducing end-use energy consumption;
4) standards and norms that aim at improving the energy efficiency of products and services, including buildings and vehicles, except where these are mandatory and applicable in Member States under EU law;
5) energy labelling schemes, with the exception of those that are mandatory and applicable in the Member States under EU law;
6) training and education, including energy advisory programmes, that lead to application of energy-efficient technology or techniques and have the effect of reducing end-use energy consumption.
The general conclusion of the above remarks is that in the context outlined, in order to establish what rules and regulations apply to the particular energy efficiency measures at issue, we should first and foremost refer to the national legislation of the given Member State and not the Acquis.