Regulatory flaws in Clean Energy Package, part 2: Can bad legislation deliver good regulation?

(EurActiv, 18 Feb 2019) New rules on the internal electricity market, part of the Clean Energy Package (CEP), will soon be adopted. Volume, time pressure, complexity, and political weight took a toll on legislative quality – possibly leading to cumbersome implementation, writes Juliusz Kowalczyk.

Juliusz Kowalczyk is the Specialist-Coordinator at PSE – Polskie Sieci Elektroenergetyczne.

In the previous article, I discussed a specific aspect of the electricity market design rules (bidding zones). In this article, we take a general look on the legislative side – the way in which policy ideas were turned into legal text.

My work at PSE involves responding to “Are we allowed to do A? Can the regulator sanction us for not doing B?” etc. Whether my task is easy or hard often depends on how the relevant rules are drafted. That’s why good legislation is one of prerequisites for rule of law – citizens and businesses can follow it only if they understand their rights and obligations.

The principles of good drafting, also called rules of legislative technique, are really no rocket science. They are neatly summarised in the EU law drafting guide – we can use it as a lens through which to assess the draft IEM regulation (REG) and directive (DIR).

The general rule is that the drafting of a legal act must be: clear, easy to understand and unambiguous; simple and concise, avoiding unnecessary elements; precise, leaving no uncertainty in the mind of the reader.  Does the current REG Article 13 meet this? Doubtfully.

Furthermore, the characteristic of good legislative style is the succinct expression of the key ideas of the text. Illustrative clauses, intended to make the text clearer for the reader, may give rise to interpretation problems. In fact, both REG and DIR use illustrative cases often pretty much exhausting the topic (e.g. alternatives to generation units – storage, demand response… what other alternatives are there? Not using electricity?).

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EurActiv, 18 Feb 2019: Regulatory flaws in Clean Energy Package, part 2: Can bad legislation deliver good regulation?