summary of the case
| status: | opened under Article 91 |
| registered: | ex officio |
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The subject matter of this case is the non-compliance with the rules of the Large Combustion Plants Directive (LCPD) on limited lifetime derogation in Montenegro. The Secretariat preliminarily concluded that TPP Pljevlja, the only large combustion plant operating in the Contracting Party has failed to respect the opt-out rules under Article 4(4) of LCPD. Even though the plant has reached its limit of 20,000 operational hours by end of 2020, it neither complied with the stricter standards of the Industrial Emissions Directive, nor ceased its operations, as required by Energy Community law. LCPD took effect in the Energy Community on 1 January 2018, requiring operators of large combustion plants to significantly reduce the emissions of the air pollutants. Opt-out is a time-barred implementation alternative to comply with the provisions of the directive. |
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REFERENCE DOCUMENTS
procedural history
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20 April 2021: Opening letter
Case
On 20 April 2021, the Secretariat sent an Opening Letter to Montenegro to address the non-compliance with the opt-out rules stipulated in Article 4(4) of Directive 2001/80/EC (the Large Combustion Plants Directive).
Reasoning
In the Opening Letter, the Secretariat takes the view that Montenegro failed to comply with the Directive’s provisions on limited lifetime derogation which stipulate that a plant subjected to Article 4(4) can only remain in operation if it does not operate more than 20,000 operational hours after 1 January 2018. Based on the provisions of Ministerial Council Decision 2013/06/MC-EnC, the plant can also operate further if it complies with the stricter emission standards of the Industrial Emissions Directive. In the case of TPP Pljevlja, none of these options are the case.
Procedure
By sending the Opening Letter, the Secretariat initiated a preliminary procedure, the purpose of which is to give Montenegro the opportunity to react to the allegation of non-compliance with Energy Community law within two months and to enable the Secretariat to establish the full background of the case.
According to Articles 7 and 17 of the Rules of Procedure for Dispute Settlement, interested parties may be granted access to the case file and may submit written observations on the present case to the Secretariat during the preliminary procedure. All requests for information on this case should be addressed to the Deputy Director and Legal Counsel at [email protected] or +43 1 535 2222 24 and should refer to the case number ECS-15/21.
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9 February 2023: Reasoned Opinion
Steps taken
On 9 February 2023, the Energy Community Secretariat submitted a Reasoned Opinion in Case ECS-15/21 against Montenegro for its failure to comply with the limited lifetime derogation obligations in the case of TPP Plevlja. Having taken into account the reply of the Ministry of Capital Investment to the Opening Letter, the Secretariat considers that the argumentation provided therein does not change the findings of the Secretariat in the Opening Letter.
Procedure
A Reasoned Opinion is the second step in a dispute settlement procedure initiated by the Secretariat under Article 90 of the Energy Community Treaty. Depending on the reply of the Contracting Party, the Secretariat may submit the case to the Ministerial Council for a decision on the compliance of Montenegro with Energy Community law.
Montenegro is now requested to rectify the identified issues of non-compliance within a time limit of two months.
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13 July 2023: Reasoned Request
After carrying out a preliminary procedure, on 13 July 2023, the Secretariat submitted a Reasoned Request to the Ministerial Council in Case ECS-15/21, following the failure of Montenegro to rectify the breach identified by the Secretariat.