EU Energy Efficiency Laws and States’ Rights

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EU Regulations


The European Union regulates the energy efficiency of new electrical appliances and cars. Citizens of less progressive member states should probably welcome this intervention if it means a slow move forward instead of no action at all.

But the way that the EU works, member states can lose any right to legislate. One might hear comments of this kind:

‘We’d love to move faster on [insert name of product or appliance here]. But we can’t; the EU’s in charge. Still, the next set of EU standards were issued three years ago, so not too long to wait; they should be law in another two years’.


States’ Rights


Under the concept of ‘states’ rights’, the United States sometimes appears to allow its 50 states more powers than the EU does. California announced in 2009 that it would legislate on the energy efficiency of new TVs. The allowed electricity consumption of TVs sold in 2013 was half that of those sold in 2009. US states can sometimes get permission to set standards above the federal minimum, with the legislation of the more innovative states being copied later at federal level.

I think that it would be a positive step for environmental protection if the EU would allow member states to set higher energy efficiency standards than the EU-wide ‘lowest common denominator’ level. No member state would have to do more than meet the bare minimum EU energy efficiency standard for a car, television, refrigerator or other product. But if it wanted to, it could.

To avoid anomalies, member states would probably have to ask the Commission for permission to set a higher standard. But the statutory deadline for the Commission to respond should be short. Also, if it objects, the burden of proof should be on it to demonstrate that the proposed legislation would substantially obstruct free trade.


A Legal Precedent?


Roughly a decade after Denmark joined the EU, it wanted to regulate standard sizes of glass containers and to increase its customary use of returnable glass bottles for beer and soft drinks. Reusable bottles save large amounts of energy and CO2 emissions compared to the use of aluminium or steel cans, plastic bottles or glass bottles recycled in bottle banks.

But Denmark was up against the might of the EU Commission. The Commission alleged that regulating the type of container used was an unlawful barrier to free trade. ‘OK’, said Denmark, ‘See you in the Court of Justice’.

Denmark subsequently won its case on most points. As far as I know, no other member states have since stood up to the Commission in this way but I cannot see how allowing member states to set higher energy efficiency standards on some manufactured goods constitutes a fundamental threat to free trade. Surely a few member states might occasionally like the right to do what the USA’s 50 states may do?





[1] The legislation had the support of its privately-owned electricity suppliers.


[3] US states and the federal government are regulated by the 10th amendment to the constitution. States may legislate on a topic without reference to the federal government if that power is not reserved to the federal government. After the federal government has legislated in an area, states may well be free to add to the impact of the existing federal law but not to detract from it.