HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"EN
27.10.2012 Official
Journal
of
the
European
Union L
299/13
DECISIONS
DECISION No 994/2012/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 October 2012
establishing an information exchange mechanism with regard to intergovernmental agreements
between Member States and third countries in the field of energy
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
energy supply, and undermines its potential benefits to
EUROPEAN UNION,
European consumers and industry. A high degree of
transparency with regard to agreements between
Having regard to the Treaty on the Functioning of the European
Member States and third countries in the field of
Union, and in particular Article 194 thereof,
energy would allow the Union to take coordinated
action, in the spirit of solidarity, in order to ensure
that such agreements comply with Union law and effec
Having regard to the proposal from the European Commission,
tively secure energy supply. Such transparency would
also be of benefit in achieving both closer intra-Union
cooperation in the field of external energy relations and
After transmission of the draft legislative act to the national
the Union’s long-term policy objectives relating to
parliaments,
energy, climate and security of energy supply.
Having regard to the opinion of the European Economic and
Social Committee ( 1 ),
(4) A
new
information
exchange
mechanism
should
therefore be established. It should cover only intergovern
After consulting the Committee of the Regions,
mental agreements having an impact on the internal
energy market or on the security of energy supply in
the Union as the two issues are intrinsically linked. The
Acting in accordance with the ordinary legislative procedure ( 2 ),
initial assessment as to whether an intergovernmental
agreement, or another text to which an intergovern
Whereas:
mental agreement refers explicitly, has an impact on
the internal energy market or the security of energy
supply in the Union, should be the responsibility of
(1) The
European
Council
has
asked
Member
States
to
Member States; in case of doubt, Member States should
inform the Commission as of 1 January 2012 of all
consult the Commission. In principle, agreements that
their new and existing bilateral agreements with third
are no longer in force or are no longer applied do not
countries in the field of energy. The Commission
have an impact on the internal energy market or on the
should make this information available to all other
security of energy supply in the Union and should
Member States in an appropriate form, having regard
therefore not be covered by this information exchange
to the need for protection of commercially sensitive
mechanism. The information exchange mechanism
information.
should comprise in particular all intergovernmental
agreements which have an impact on the supply of
(2) Article
4
of
the
Treaty
on
European
Union
(TEU)
requires
gas, oil or electricity through fixed infrastructure or
Member States to take all appropriate measures to ensure
which have an impact on the amount of energy
fulfilment of the obligations arising out of the Treaties or
imported into the Union.
resulting from the acts of the Union institutions. Member
States should therefore avoid or eliminate any incompati
bility between Union law and international agreements
(5) Intergovernmental
agreements
which
must
be
notified
in
concluded between Member States and third countries.
their entirety to the Commission on the basis of other
Union acts should be excluded from the information
exchange mechanism. However, that exemption should
(3) The
proper
functioning
of
the
internal
energy
market
requires that the energy imported into the Union be
not apply to intergovernmental agreements with third
fully governed by the rules establishing the internal
countries which have an impact on the development
energy market. An internal energy market that does
and use of gas infrastructure and gas supplies and
not function properly puts the Union in a vulnerable
which must be communicated to the Commission in
and disadvantageous position with regard to security of
accordance with point (a) of Article 13(6) of Regulation
(EU) No 994/2010 of the European Parliament and of
the Council of 20 October 2010 concerning measures to
( 1 ) OJ C 68, 6.3.2012, p. 65.
safeguard security of gas supply ( 3 ). Such agreements
( 2 ) Position of the European Parliament of 13 September 2012 (not yet
published in the Official Journal) and decision of the Council of
4 October 2012.
( 3 ) OJ L 295, 12.11.2010, p. 1.

---

L 299/14
EN
Official Journal of the European Union
27.10.2012
should be notified according to the rules laid down in
(11) In order to ensure more transparency and to avoid
this Decision. To avoid duplication, a notification
potential conflicts with Union law, Member States
submitted in accordance with this Decision should be
should have the option of informing the Commission
considered to fulfil the obligation set out in point (a)
of a new intergovernmental agreement with a third
of Article 13(6) of Regulation (EU) No 994/2010.
country before or during the negotiations thereof.
Where a Member State, which has negotiated an inter
governmental agreement, has informed the Commission
(6) Intergovernmental
agreements
concerning
matters
within
before the closure of negotiations accordingly and has
the purview of the Treaty establishing the European
submitted the draft intergovernmental agreement to it,
Atomic Energy Community should not be covered by
the Commission should have the possibility to inform
this Decision.
that Member State of its opinion on the compatibility
of the negotiated agreement with Union law. The
(7) This
Decision
does
not
create
obligations
as
regards
Commission has the right to launch infringement
agreements between commercial entities. However, it
proceedings in accordance with Article 258 of the
does not prevent Member States from communicating
Treaty on the Functioning of the European Union
to the Commission, on a voluntary basis, commercial
(TFEU), where it considers that a Member State has
agreements that are referred to explicitly in intergovern
failed to fulfil its obligations under the TFEU.
mental agreements. Furthermore, as it is possible that
commercial agreements contain regulatory provisions,
commercial operators negotiating commercial (12) All
final,
ratified
intergovernmental
agreements
covered
agreements with operators from third countries should
by this Decision should be transmitted to the
have the possibility to seek guidance from the
Commission in order to enable all other Member States
Commission in order to avoid potential conflicts with
to be informed.
Union law.
(13) The
Commission
should
make
all
information
it
receives
(8) Member
States
should
submit
to
the
Commission
all
available to all other Member States in secure electronic
existing intergovernmental agreements, whether they
form. The Commission should respect requests from
have entered into force or are being applied provisionally
Member States to treat information submitted to it as
within the meaning of Article 25 of the Vienna
confidential. Requests for confidentiality should,
Convention on the Law of Treaties, and all new inter
however, not restrict access of the Commission itself to
governmental agreements.
confidential information, as the Commission needs to
have comprehensive information for its own assessments.
(9) More
transparency
with
regard
to
future
intergovern
The Commission should be responsible for guaranteeing
mental agreements that will be negotiated or that are
the application of the confidentiality clause. Requests for
being negotiated between Member States and third
confidentiality should be without prejudice to the right of
countries in the field of energy could contribute to
access to documents as provided for in Regulation (EC)
consistency in Member States’ approaches to such agree
No 1049/2001 of the European Parliament and of the
ments, to compliance with Union law, and to the security
Council of 30 May 2001 regarding public access to
of energy supply in the Union. Therefore, Member States
European Parliament, Council and Commission docu
should have the option of informing the Commission of
ments ( 1 ).
negotiations with regard to new intergovernmental
agreements or amendments to existing intergovernmental
agreements. Where Member States choose that option,
(14) If a Member State considers an intergovernmental
the Commission should be kept informed regularly of
agreement to be confidential, it should provide the
the progress of the negotiations. Member States should
Commission with a summary of it for the purposes of
have the possibility to invite the Commission to
sharing that summary with the other Member States.
participate in the negotiations as an observer.
(15) A
permanent
exchange
of
information
on
intergovern
The Commission should also have the possibility to
mental agreements at Union level should enable best
participate as an observer at its own request, subject to
practices to be developed. On the basis of those best
the approval of the Member State concerned. Member
practices, the Commission, where appropriate in
States should also have the possibility to request the
cooperation with the European External Action Service
Commission to assist them during their negotiations
(EEAS) as regards the Union’s external policies, should
with third countries. In that case, the Commission
develop optional model clauses to be used in intergov
should have the possibility to provide advice on how
ernmental agreements between Member States and third
to avoid incompatibility with Union law, and to draw
countries. The use of such model clauses should aim to
attention to the Union’s energy policy objectives and the
avoid conflicts of intergovernmental agreements with
principle of solidarity between Member States.
Union law, in particular competition law and internal
energy market rules, and conflicts with international
(10) The Commission should assess the compatibility of
agreements concluded by the Union. Their use should
existing intergovernmental agreements with Union law.
be optional, and it should be possible to adapt their
In the event of incompatibility, Member States should
content to any particular circumstance.
take all necessary steps to find a suitable solution to
eliminate the incompatibility identified.
( 1 ) OJ L 145, 31.5.2001, p. 43.

---

EN
27.10.2012 Official
Journal
of
the
European
Union L
299/15
(16) Given the existence of the internal energy market and the
communicated to the Commission pursuant to point (a) of
objectives of Union energy policy, Member States should
Article 13(6) of Regulation (EU) No 994/ 2010.
take due account of those objectives when negotiating
intergovernmental agreements in the field of energy that
Article 2
have an impact on Union energy policy.
Definitions
(17) The
improved
mutual
knowledge
of
existing
and
new
For the purposes of this Decision the following definitions
intergovernmental agreements should allow for better
apply:
coordination in energy matters between Member States
and between Member States and the Commission. Such
improved coordination should enable Member States to
(1) ‘intergovernmental agreement’ means any legally binding
benefit fully from the political and economic weight of
agreement between one or more Member States and one
the Union and enable the Commission to propose
or more third countries having an impact on the operation
solutions for problems identified in the area of intergov
or the functioning of the internal energy market or on the
ernmental agreements.
security of energy supply in the Union; however, where
such a legally binding agreement also covers other issues,
only those provisions that relate to energy, including
(18) The
Commission
should
facilitate
and
encourage
coor
dination between Member States with a view to
general provisions applicable to those energy-related provi
enhancing the overall strategic role of the Union
sions, shall constitute an ‘intergovernmental agreement’;
through a strong and effective coordinated approach to
producer, transit, and consumer countries.
(2) ‘existing intergovernmental agreement’ means an intergov
ernmental agreement which entered into force or is applied
(19) The information exchange mechanism, including
provisionally prior to the entry into force of this Decision.
assessments to be made by Member States in imple
menting it, is without prejudice to the application of
Article 3
the Union rules on infringements, State aid and
competition.
Exchange of information between Member States and the

Commission
(20) The Commission should assess whether this Decision is
1. By
17
February
2013
Member
States
shall
submit
to
the
sufficient and effective in ensuring compliance of inter
Commission all existing intergovernmental agreements,
governmental agreements with Union law and a high
including annexes and amendments to those agreements.
level of coordination between Member States with
Where those existing intergovernmental agreements refer
regard to intergovernmental agreements in the field of
explicitly to other texts, Member States shall also submit to
energy.
the Commission those other texts, in so far as they contain
elements which have an impact on the functioning of the
(21) Since the objective of this Decision, namely the exchange
internal energy market or on the security of energy supply in
of information between Member States and the
the Union. However, that obligation shall not apply in respect
Commission with regard to intergovernmental
of agreements between commercial entities.
agreements in the field of energy, cannot be sufficiently
achieved by the Member States but can rather, by reason
Existing intergovernmental agreements which have already been
of the effects of this Decision, be better achieved at
communicated to the Commission in accordance with point (a)
Union level, the Union may adopt measures, in
of Article 13(6) of Regulation (EU) No 994/2010 at the date of
accordance with the principle of subsidiarity as set out
entry into force of this Decision shall be considered as having
in Article 5 TEU. In accordance with the principle of
been submitted for the purposes of this paragraph, provided
proportionality as set out in that Article, this Decision
that that communication meets the requirements of the first
does not go beyond what is necessary in order to achieve
subparagraph of this paragraph. By 17 February 2013
this objective,
Member States shall inform the Commission whether any part
of such intergovernmental agreements is to be regarded as
HAVE ADOPTED THIS DECISION:
confidential and whether the information provided may be
shared with other Member States.
Article 1
Subject matter and scope
Where, pursuant to this paragraph, a Member State submits
existing intergovernmental agreements also falling within the
1.
This Decision establishes a mechanism for the exchange of
scope of point (a) of Article 13(6) of Regulation (EU) No
information between Member States and the Commission with
994/2010 to the Commission, it shall be considered to have
regard to intergovernmental agreements in the field of energy as
complied with the communication obligation set out in that
defined in Article 2, in order to optimise the functioning of the
Article.
internal energy market.
2. Where
following
its
first
assessment,
the
Commission
has
2. This
Decision
shall
not
apply
to
intergovernmental doubts as to the compatibility with Union law of agreements
agreements which are already, in their entirety, subject to
submitted to it under paragraph 1, in particular with Union
other specific notification procedures under Union law.
competition law and internal energy market legislation, the
Commission shall inform the Member States concerned
Notwithstanding the first subparagraph, this Decision shall
accordingly within nine months of the submission of those
apply to intergovernmental agreements which are to be
agreements.

---

L 299/16
EN
Official Journal of the European Union
27.10.2012
3. Before
or
during
negotiations
with
a
third
country
on
an
Article 4
intergovernmental agreement or on the amendment of an
existing intergovernmental agreement, a Member State may
Confidentiality
inform the Commission in writing of the objectives of, and
1. When
providing
information
to
the
Commission
in
the provisions to be addressed in, the negotiations and may
accordance with Article 3(1) to (6), a Member State may
communicate any other relevant information to the
indicate whether any part of the information, be it commercial
Commission. Where the Member State gives the Commission
or other information the disclosure of which could harm the
such notice of negotiations, the Member State concerned shall
activities of the parties involved, is to be regarded as
keep the Commission regularly informed of the progress of the
confidential and whether the information provided can be
negotiations.
shared with other Member States. The Commission shall
respect those indications.
The Member State concerned shall indicate to the Commission
whether information submitted under the first subparagraph
may be shared with all other Member States. Where the
2. Requests
for
confidentiality
under
this
Article
shall
not
Member State concerned has indicated that the information
restrict access of the Commission itself to confidential
may be shared, the Commission shall make the information
information. The Commission shall ensure that access to the
received accessible to all Member States in secure electronic
confidential information is strictly limited to the Commission
form, with the exception of any confidential parts identified
services for which it is absolutely necessary to have the
in accordance with Article 4.
information available.
4. Where
a
Member
State
gives
the
Commission
notice
of
Article 5
negotiations pursuant to paragraph 3, the Commission may
Assistance from the Commission
provide it with advice on how to avoid incompatibility of the
intergovernmental agreement or of the amendment to an
Where a Member State gives the Commission notice of negoti
existing intergovernmental agreement under negotiation with
ations pursuant to Article 3(3), that Member State may request
Union law.
the assistance of the Commission in those negotiations.
5. Upon
ratification
of
an
intergovernmental
agreement
or
of At the request of the Member State concerned, or at the request
an amendment to an intergovernmental agreement, the Member
of the Commission and with the written approval of the
State concerned shall submit the intergovernmental agreement
Member State concerned, the Commission may participate in
or the amendment, including any annexes to the agreement or
the negotiations as an observer.
the amendment, to the Commission.
Where the intergovernmental agreement or the amendment to
Where the Commission participates in the negotiations as an
the intergovernmental agreement refers explicitly to other texts,
observer, it may provide the Member State concerned with
Member States shall also submit those other texts in so far as
advice on how to avoid incompatibility of the intergovern
they contain elements which have an impact on the functioning
mental agreement or amendment under negotiation with
of the internal energy market or on the security of energy
Union law.
supply in the Union. However, that obligation does not apply
in respect of agreements between commercial entities.
Article 6
6. Without
prejudice
to
paragraph
7
of
this
Article
and
Compatibility assessment
Article 4, the Commission shall make the documents which it
1. Where
a
Member
State
is
negotiating
an
intergovern
has received under paragraphs 1 and 5 accessible in secure
mental agreement or an amendment to an existing intergovern
electronic form to all other Member States.
mental agreement and it has been unable, on the basis of its
own assessment, to reach a firm conclusion as to the compati
7. Where
a
Member
State
instructs
the
Commission,
in bility of the intergovernmental agreement or amendment under
accordance with Article 4, not to make an existing intergovern
negotiation with Union law, it shall inform the Commission
mental agreement, an amendment to an existing intergovern
thereof before the closure of the negotiations and submit the
mental agreement or a new intergovernmental agreement
draft agreement or amendment together with any annexes to it.
accessible to other Member States, it shall make available a
summary of the information submitted. That summary shall
contain at least the following information regarding the
2. The
Commission
shall,
within
four
weeks
of
the
date
of
agreement or amendment in question:
receipt of the draft agreement or amendment, including annexes
thereto, inform the Member State concerned of any doubts it
(a) the subject matter;
may have as to the compatibility of the draft intergovernmental
agreement or amendment with Union law. In the absence of a
(b) the aim and the scope;
response from the Commission within that period, the
Commission shall be deemed not to have any doubts.
(c) the duration;
3. Where the Commission informs the Member State
(d) the contracting parties;
concerned pursuant to paragraph 2 that it has doubts, it shall
inform the Member State concerned of its opinion on the
(e) information on the main elements.
compatibility with Union law of the draft agreement or
amendment concerned within 10 weeks of the date of receipt
The Commission shall make the summaries accessible in elec
referred to in paragraph 2 (the examination period). With the
tronic form to all other Member States.
approval of the Member State concerned, the examination

---

EN
27.10.2012 Official
Journal
of
the
European
Union L
299/17
period may be extended. In the absence of an opinion from the
2. The
report
shall,
in
particular,
assess
the
extent
to
which
Commission within the examination period, the Commission
this Decision promotes compliance of intergovernmental
shall be deemed not to have raised any objections.
agreements with Union law and a high level of coordination
between Member States with regard to intergovernmental agree
4. The time periods referred to in paragraphs 2 and 3 shall
ments. It shall also assess the impact that this Decision has on
be shortened in agreement with the Commission if circum
Member States’ negotiations with third countries and whether
stances so warrant.
the scope of this Decision and the procedures it lays down are
appropriate.
Article 7
Coordination among Member States
3. After submission of the first report referred to in
The Commission shall facilitate and encourage coordination
paragraph 1 of this Article, the Commission shall report every
among Member States with a view to:
three years to the European Parliament and the Council on the
information received pursuant to Article 3, having due regard to
(a) reviewing developments in relation to intergovernmental
the confidentiality provisions of this Decision.
agreements and striving for consistency and coherence in
the Union’s external energy relations with producer, transit,
and consumer countries;
Article 9
Entry into force
(b) identifying common problems in relation to intergovern
mental agreements and considering appropriate action to
This Decision shall enter into force on the twentieth day
address those problems and, where appropriate, proposing
following that of its publication in the Official Journal of the
solutions;
European Union.
(c) on the basis of best practice and in consultation with
Member States, developing optional model clauses, which,
Article 10
if applied, would significantly improve compliance of future
Addressees
intergovernmental agreements with Union law;
This Decision is addressed to the Member States.
(d) supporting, where appropriate, the development of multi
lateral intergovernmental agreements involving several
Member States or the Union as a whole.
Done at Strasbourg, 25 October 2012.
Article 8
Reporting and review
For the European Parliament
For the Council
1. By
1
January
2016,
the
Commission
shall
submit
a
report
on the application of this Decision to the European Parliament,
The President
The President
the Council and the European Economic and Social Committee.
M. SCHULZ
A. D. MAVROYIANNIS

---

Document Outline

• �

---