Evaluating the Formal Independence of National Regulatory Authorities in the European Union’s Energy Sector and Beyond

Abstract

European Union’s energy law stipulates numerous obligations with the intention of achieving a desired level of independence of national regulatory authorities. This article offers an insight into the said obligations as well as into their development and their evaluation. The latter is carried out via two sound benchmarks, i.e. via Gilardi’s test and via the new comprehensive independence test. The new test learns from its antecedents, particularly from the methodological point of view. However, it advocates stricter requirements and, consequently, higher independence standards as developed in the most recent regulatory practice and theory. The evaluation of the past and present supranational legal framework in the field of energy reveals a decent progress on the subject of the formal independence of national regulatory authorities but unfortunately also a significant untapped potential which must be considered when drafting the new supranational rules. Moreover, it can be considered when transposing the new Electricity Directive in the national legal system since in the discussed field the directive in question ‘merely’ aims to achieve a minimal harmonization. And last but not least, lessons learned from the discussed case are transferable to other economic sectors, in particular to (other) utilities sectors.