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The Essent Joined Cases (C-204 to C-208): The Belgium Essent Case (Thesis Proposal Sample)

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RESEARCH PROPOSAL FOR THE ESSENT JOINED CASES (C-204 TO C-208/12)

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RESEARCH PROPOSAL FOR THE ESSENT JOINED CASES (C-204 TO C-208/12)
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Table of Contents
 TOC \o "1-3" \h \z \u  HYPERLINK \l "_Toc410050683" Abstract 3
Introduction 3
The Belgium Essent Case 4
Background of the Study 6 Distinctly and Indistinctly Applied Measures 9 Famous Cases that established Measures equivalent to Quantitative Restrictions 9 Research Questions 15 Rationale 15 Literature Review 15 The Facts of the Essent Double Case 16
Case Law and Key Doctrines- The Ålands Vindkraft and Preussen Electra Cases 18 Comparison of the Essent Belgium, Ålands Vindkraft, and PreussenElectra Cases 23
Methodology 27
Critique of the Court Ruling in the Essent Double Case (and the Ålands Vindkraft Court Ruling by Extension) 27
Conclusion 31 Bibliography 34



Abstract
This paper will evaluate the consistency of European Court of Justice case rulings in regards to renewable energy promotion within the framework of the free movement of products within the EU. It will also seek to establish the implications of such European Court of Justice case rulings for European programs of renewable energy subsidies. In all EU member states, the providers of renewable energy sources have greatly benefited from the collective failure of EU member states to establish a single European market in regards to the usage of electricity. As documented in past case studies, the European Court of Justice has ensured that EU members continue to benefit from renewable programs of energy subsidies. The judgments made by the ECJ in regards to renewable programs of energy subsidies, though, do not adequately address certain legal issues. For instance, the European Court of Justice’s rulings in cases such as those of Essent do not fully address the circumstances in which the discrimination of imports could be allowed for the sake of environmental protection. This means that EU member states are given a broad leeway to carry out their own assessments in regards to aspects like renewable programs of energy subsidies.
Introduction
In case law, it is an established fact that EU sanctioned fundamental freedoms can only be restricted for reasons that have to do with protecting public interests. In the Essent case, the rulings of the ECJ were somewhat inconsistent with this fact, though. The EU policy of free movement of goods was severely tested in the Essent case which had to do with the provision of green certificates for the generation of renewable electricity. The European Court of Justice ruled that the Flanders green certificate scheme was in keeping with EU law inspite of the fact that it put assorted limitations on the generation of renewable electricity in regions outside Belgium’s borders. Under this arrangement, electricity suppliers outside Flanders are constrained to provide a stipulated amount of green certificates to the existing regulatory authority on an annual basis or be faced with a fine. The certificates are acquired from the suppliers when they provide the proof that the electricity they trade is acquired from renewable energy sources like solar and wind.
The Belgium Essent Case
In the European nation of Belgium, the generation of electricity from various renewable sources is something that is susually conducted via a quota system that is run through the trade trading in certificates. The utilization of renewable energy is actually an issue that is ususally left to various regions or states. It is only energy sources like hydropower and off-shore wind energy that are subject to national regulations. In regards to the national promotion of cooling and heating, corporations are eligible for deductions in tax on their total investment costs. In Belgium, the main support scheme that is used in major sectors such as that of transport is renewable energy that is based on the quota system.
In Belgium, the acquisition of electricity from sources of renewable energy is a function that is regulated by general energy legislation. In this system, it is mainly electricity that is acquired from renewable energy sources that is benefits from first prority in regards to the use of the national grid. Belgium’s government has passed several policies which are tasked with the promotion and usage of renewable energy installations. The public authorities in the nation usually make changes through a public energy service institution in ways that are meant to sponsor and create energy saving projects in the nation’s public buildings. In the region of Brussels, the generation of electricity from sources of renewable energy is promoted through the use of green certificates and energy subsidies. The generation of electricity from sources of renewable energy is also promoted through the provision of investment assistance for energy corporations and the activity of net-metering. The utilization of renewable electricity in this region is controlled by the distribution grid code in Brussels, and the electricity market ordinance that operates within the region.
It is normal for renewable electricity to be given priority in regards to the use of the grid as well as connection. The region of Flanders supports the generation of renewable energy through quota systems, a scheme for net-metering, and an ecological premium. It is the responsibility of municipalities and grid operators in this region to create premium schemes; with access to renewable electricity being controlled by the Flemish Electricity and Gas Regulator (VREG) and basic Flemish laws on operations in the energy market.
In the Essent case, Essent, a Belgian domestic supplier of electricity, was attempting to utilize certificates obtained from overseas to fill up the local quota. The Belgian branch of a Dutch utility, known as Essent, provided Flemish regulators with certificates that had been acquired by generating green electricity in Sweden, Denmark, Norway, and the Netherlands. The authorities in Flanders refused to receive the certificates; claiming that a certificate could only be provided for electricity that had been generated in Belgium. Furthermore, Essent was slapped with a fine of €1.5 million. Essent immediately claimed that this decision was in contravention of the EU policy of free movement of goods, and logged the complaint with a Belgian national court which would turn over the case to the European Court of Justice. The latter would uphold the ruling made by the Flemish authorities in stating that the Renewable Energy Directive of the EU did not compel member states to facilitate national support schemes for foreign-based renewables.
Background of the Study
The ‘Treaty on the Functioning of the EU’ has different legal policies that address different aspects of trade between European Union member states, according to its Article 34. The ‘Treaty on the Functioning of the EU’ stipulates that the internal market has four essential freedoms which are grounded on the European Economic Community’s founding policy, and function as the internal market’s driving forces. One of these freedoms, according to Article 23 of the Treaty on the Functioning of the European Union, has to do with the free movement of goods within EU member states. Article 23 also prohibits any kind of indirect or direct discrimination to any nation state’s fundamental freedoms. The Treaty on the Functioning of European Union’s Article 18 also prohibits any kind of discrimination in matters regarding internal trade. These two freedoms regarding the prohibition of discrimination and free movement of goods are strengthened by harmonization measures that have been ratified. Under Article 115 and 114 of the Treaty on the Functioning of the European Union, member states of the EU are constrained to amend their legislation to observe these principles with no exceptions.
According to the Treaty on the Functioning of the European Union’s Article 34, quantitative measures and restrictions do...
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