This paper focuses on the long-term consequences for EU regulatory governance of the growing recourse to litigation strategies aimed at challenging EU policies in national or international fora. This is one aspect of the more general debate about the interaction between the EU and global policy regimes. Depending on the presence of internal and external factors, the EU can be an exporter or an importer of policies, standards and rules. In an increasing number of settings, the EU legally is being held legally accountable for its failure to comply with international obligations or to enforce them against Member States. Relatedly, Member States may face litigation because they comply with EU obligations but not with international obligations.
The paper uses the following four examples in the energy and climate sector as empirical evidence to document these developments:
1) WTO challenges from Russia and China to the EU liberalization policy and to EU renewable energy policy;
2) Energy Charter Treaty challenges to the EU (and Member States’) renewable energy policy;
3) Aarhus Convention challenges to EU energy policy;
4) Urgenda Dutch judgement on Member State’s liability for failure to reduce greenhouse gas emissions.
Although featuring different characteristics, these examples point to the existence of external constraints which may prompt two opposite reactions: a) a retreat to more hierarchical regulatory governance mechanisms, aimed at shielding EU internal policies from external pressures; b) an attempt to address rising external pressures with more innovative (experimental/reflexive/responsive) regulatory governance mechanisms. The paper reflects on how each reaction might affect EU energy policy and more generally EU’s role as a global player and a model for other projects of regional integration.
