Case ECS-09/16: FYR of Macedonia / third package

summary of the case

registered:  ex officio 2016

The Third package legal acts were incorporated in the Energy Community acquis communautaire by Decision 2011/02/MC-EnC of the Ministerial Council of the Energy Community of 6 October 2011. Following the adoption of Decision 2011/02/MC-EnC, the Secretariat initiated activities to plan the phases of transposition of the Third Energy Package in a timely and structured manner. A detailed Implementation Plan, outlining the different preparatory activities to be taken by the Contracting Parties as well as the institutions was adopted by the Permanent High Level Group on 14 December 2011.

Article 3(1) of Decision 2011/02/MC-EnC requires the Contracting Parties to bring into force the laws, regulations and administrative provisions necessary to comply with the Third Energy Package and to apply them as from 1 January 2015. Article 3(2) Ministerial Council Decision 2011/02/MC-EnC also requires the Contracting Parties to communicate to the Energy Community Secretariat the text of the main provisions of national law which they adopt in the field covered by Decision 2011/02/MC-EnC. Article 6 of the Treaty imposes upon the Parties the general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty. Article 89 of the Treaty requires Parties to implement Decisions addressed to them in their domestic legal system within the period specified in the Decision.

Despite numerous invitations and constant reminders issued by all Energy Community institutions and the assistance offered by the Secretariat and other organizations, former Yugoslav Republic of Macedonia evidently has not taken the measures necessary to comply with its obligations. At the date of submitting this Reasoned Request, the draft Energy Law meant to transpose the Third Energy Package is still pending adoption. It is undisputed that former Yugoslav Republic of Macedonia to date has not adopted the measures necessary to implement Decision 2011/02/MC-EnC.

On 14 October 2016, the Ministerial Council decided on the failure by the former Yugoslav Republic of Macedonia to comply with its obligations under the Treaty related to the adoption and application of the laws, regulations and administrative provisions necessary to comply with Directive 2009/72/EC, Directive 2009/73/EC, Regulation (EC) 714/2009 and Regulation (EC) 715/2009 by 1 January 2015 pursuant to Article 3(1) of Ministerial Decision 2011/02/MC-EnC. With the adoption of Decision 2016/08/MC-EnC, the procedure under Article 91 of the Treaty in Case ECS-09/16 is closed. On 12 October 2017, the Secretariat initiated Case ECS-09/16S  by submitting a Reasoned Request to the Ministerial Council under Article 92 of the Treaty.