key: cord-0057559-xxo2wwac
authors: Szegedi, László
title: The Role of the Court of Justice of the European Union in the Reformulation of Hungarian Energy Policy
date: 2020-07-17
journal: From Economic to Energy Transition
DOI: 10.1007/978-3-030-55085-1_14
sha: 4348a0617c1cc016d3b024d6b71256cdd7e9d7c6
doc_id: 57559
cord_uid: xxo2wwac

Hungary as a state of the CEE region tries to reconcile the realities of its energy sector built up during the Communist period with EU requirements of free-market principles and the interconnected internal market. Recent changes in this sector included strong state intervention, enhanced competences for regulatory authority, some deprioritization of free market principles, and the plan to build new nuclear reactors in the Paks 2 project. The Court of Justice of the European Union (CJEU) concluded that the standing rights of interested parties regarding networks, energy and environmental sectors needs to be broadened. At the same time the Paks 2 project and sector-specific measures have also been challenged before the CJEU, which might have a substantial impact on Hungary’s energy policy in the future.

The Court of Justice of the European Union (ECJ as a pre-Lisbon Treaty term, and CJEU as a post-Lisbon Treaty term) has always been a key player within the institutional landscape of the European Union (EU). It even shaped the course of European integration by concluding judgments that had a great impact on the integration itself as well as on member states. However, the CJEU cannot be exclusively considered as a main enforcement actor of EU law, since courts of member states as courts/judges of EU law are primarily in charge of implementing EU legislation (indirect implementation). Therefore, CJEU judgments occasionally have different impacts on member states, though their legal binding force is a pivotal element and one of the main differences compared to other supranational tribunals. The Central and Eastern European (CEE) region has a strategic geopolitical position as being the link between "older" EU countries and the Russian Federation, which is still serving as one of the major energy suppliers of the EU. Nevertheless, CEE countries as post-Communist new member states have a rather delicate and controversial relationship with their eastern neighbour as former satellite states of the Soviet empire. These countries have had to reconcile their energy sectors built up during the Communist period with the legal and economic EU requirements on free-market principles and interconnected visions of the internal market. This challenge is not only sector-specific but also refers to basic market principles like the role of the state as regulator. Therefore, this chapter focuses on administrative judicial review court cases on energy market issues, authorization procedures, and access to the internal market. These can reveal how impartial and independent the state or state-owned/influenced actors, former incumbents act under the circumstances of the internal market. The chapter also examines what kind of national energy policy is being formulated and followed by some CEE countries with special emphasis on Hungary, which is trying to find a balance between formal commitment to EU energy and climate policy goals while seemingly rebuilding tighter relations with the Russian Federation in the last decade.

This chapter examines the role of the CJEU in the reformulation of national energy policy. The CJEU's judgments have a clear indicator role in shaping the policymaking of member states. Firstly, there are mechanisms to ensure protection of individual rights guaranteed by EU law before the CJEU; however, the primary level of legal protection is still at the level of the member states. Therefore, cases and judgments concluded by the CJEU in most of the cases have already been decided by national courts. CJEU judgments could reflect on the general framework of indirect implementation and on the daily practice of the enforcement at the national level. Secondly, these cases refer not only to the EU law as "law in books", but provide reflections on the systematic factors influencing the implementation of EU provisions. One of these identified in this chapter is the impairment of rights doctrine determining the access to courts (standing rights) in this region, which can be considered as a major compliance pattern in the CEE region's administrative judicial review cases. Thirdly, a broader link could also be identified in this way, as the judgments and cases based on the case-law approach of the CJEU might have a cross-sectoral impact. Energy policy implies various other policy areas from environmental policy to competition law, while the identification of the systematic factors such as the impairment of rights doctrine makes the analysis of this chapter also relevant in a regional context. Finally, the CJEU has several mechanisms to ensure uniform application of EU law, while it takes decisions in administrative judicial review cases as the highest instance, which necessarily includes energy policy-related cases and litigation. Therefore, it is inevitable to reflect on how access to courts (in concreto standing rights) are guaranteed at the level of the CJEU within the unique system of legal protection of individual rights in the EU.

As for the methodology, this chapter analyses the CJEU's case-law to identify the common patterns and incentives regarding the approach of the CJEU, which might have been decisive in concluding various decisions related to energy policy. However, the territorial scope of countries concerned and the focus of the targeted policy areas is somewhat broader than described. This chapter deals with the energy policy in a broader context with an emphasis on environmental as well as state aid cases, while the cross-border context, namely the potential impact of diverse court decisions on other member states, will be also taken into account.

The following section gives an overview on the relationship between the EU and the formulation of national energy policies with a main emphasis on the role of courts both at national and EU level. Section 3 deals with the Hungarian energy policy in general, describing the main characteristics of the regulatory framework, while it also elaborates on recent policymaking. The same section also examines the CJEU's case law in relation to Hungarian (and regional) energy policy. Section 4 draws conclusions and discusses what the main incentives of the CJEU might be in the reformulation of national energy policy in the cross-sectoral and regional context, while also analysing the concerns related to litigation before the CJEU. (2) TFEU has not departed from the previous approach of recognizing member states' sovereignty over their energy mix (Roggenkamp et al. 2016) . Articles 4-6 of TFEU mention three main categories of competences, where the EU has exclusive, shared, and supporting competencies. Energy policy belongs to shared competences between the EU and the member states; however, it is also connected to other areas including competition policy (state aid), internal market (financial issues, transparency, and taxation), Trans-European Energy networks, environment and climate change. Last but not least, nuclear energy is covered by the separate Euratom Treaty. Therefore, a broader scope of policy areas needs to be evaluated when analysing national energy policies considering related CJEU case-law.

The administrative judicial review cases and the EU's competence have a special status compared to that of the classic categorization. Implementing EU law has always been the responsibility of national courts and authorities, while national autonomy in respect to the organizational issues and of general rules of administrative procedure still applies today (indirect implementation). Moreover, the implementation deficit of EU law at national level was identified long ago as a major concern in creating a well-functioning harmonized internal market as a cornerstone of the integration (Duina 1997; Börzel 2000) . Even though the EU has no direct competence to regulate the administrative procedural/judicial review requirements, several sector-specific provisions have been enacted by the EU's secondary legislation in relation to the role of national regulatory authorities as well as to the (procedural) rights to be guaranteed in certain policy areas. This sector-specific approach necessarily has an (indirect) impact on the general administrative codes and on the regulation of the administrative judicial review systems (Götz 2002) . At the same time, CJEU case-law elaborated the principles of equivalence and effectiveness. These obliged member states to meet minimum requirements on how to apply EU norms in the framework of national procedural provisions (Hofmann 2014) . The right to an effective remedy has also been enacted into the EU primary law as part of the EU Charter of Fundamental Rights (Article 47). Additionally, the Charter of Fundamental Rights also requires EU bodies as well as member states to ensure the right to good administration and related procedural guarantees (Article 41) when implementing EU legislation. The evolution of these rights and guarantees is mainly based on CJEU case-law (Saurer 2014) .

The secondary legislation on energy policy has recently been substantially broadened. This included legislative acts on common rules for electricity and natural gas internal markets (Directive 2009/72/EC concerning electricity-E-Directive; Directive 2009/73/EC concerning natural gas-G-Directive), which have relevance in related CJEU caselaw. Additionally, several other areas are relevant for energy policy; also other secondary as well as primary sources of EU law are part of this analysis; secondary environmental legislation or the state aid rules of the TFEU.

Choosing the CJEU's cases and judgments as the subject matter of this chapter is based on their indicator role, since most of the legal disputes are to be settled at national level within the European system of legal protection. In this multi-layered system of judicial enforcement the CJEU has a leading role as some kind of final forum at EU level; however, most of the cases are decided at national level. National judges/courts are obliged to apply EU law as judges/courts of the Union. There are certain mechanisms which have been introduced to refer cases to the CJEU. As a result, having standing rights (locus standi) to enforce the rights guaranteed by EU law is a matter of utmost importance, even if the member states theoretically have their autonomy in regulating procedural matters. The CJEU (and formerly the ECJ) has been facilitating a broader access to justice for individuals (even NGOs) before national courts since the beginning of the integration, in order to enforce the Community law against the not necessarily loyal national administrations (De Witte 2013). Therefore, the EU uses the wider access to justice of citizens before national courts as a tool to facilitate the enforcement of the EU law concerning several policy areas (Wegener 2000) .

In contrast, the access to justice is determined by the impairment of rights doctrine in the CEE region. In these jurisdictions, the judicial review is primarily intended to protect subjective (own) rights. Therefore, the dilemma arises from the fact that-in principle-NGOs acting to protect (more) collective rights/interests cannot initiate legal action before national courts in the absence of any violation of their (own) subjective rights. A similar problem occurs when the mere economic interest of affected parties could be considered as the impairment of right, especially in the case of network industries, in which the EU requires a guarantee access to the network for certain private parties (ACA Europe 2020). Not only national judges/courts, but also national authorities are obliged to apply EU law in their function as "bodies of the Union" (cases Costanzo C-103/88, Ciola C-224/97, CIF C-198/01; see Appendix together with all other cases referred to in this text). Regardless of the mechanisms and diverse process types which guarantee the uniform application of EU rules and the protection of individuals' rights, the CJEU/ECJ has elaborated several different doctrines during the first period of European integration, on how the national judges/courts (or even authorities) should deal with the collision of EU norms and national provisions (collision doctrines). The ECJ thus followed a clearly activist approach in shaping the fundamental issues of EC/EU law. These are supporting national judges by providing instructions how to deal with such collisions when applying EU law. As a result, there is a supremacy of EU law over national provisions (Costa E.N.E.L-6/64). The direct effect of EU law obliges national judges to set aside national provisions in case of collision (Van Gend and Loos-26/62), while the indirect effect requires the interpretation of national law in light of EU law provisions (Von Colson-14/83). Therefore, it could be relevant whether the same activist approach could be identified in relation to energy policy.

The organizational structure of the CJEU consists of two different judicial entities: the Court of Justice (referred to as the Court) functioning as highest and final court of appeal and the General Court (referred to as the GC) as the lower level forum inside CJEU. The Court has one judge per member state, assisted by eleven advocate generals who provide influential but legally non-binding opinions on the matters concerned, while the GC has two judges per member state. The CJEU ensures that EU law is applied in the same way in all EU member states, that legal disputes are settled between EU institutions and the member states, and that the rights of individuals are protected against acts of EU bodies (or against their potential failure to act). The preliminary rulings procedure is the most relevant mechanism to ensure the uniform application of EU law, as national judges/courts submit a question to the CJEU asking for clarification on the interpretation (or even validity) of EU provisions before the case can be settled at national level (preliminary nature). The infringement proceeding might be initiated by the European Commission or by another member state, if the national government fails to meet the EU requirements, with a resulting fine imposed against the member state. The actions for annulment are the most relevant tools to ensure the protection of individuals' rights, as the Union's acts could be the subject of such actions initiated by (non-addressee) private individuals (besides EU institutions/bodies and member states), if the contested EU act is of direct and individual concern (or in case of special normative acts at least of direct concern). These are laid down nowadays by TFEU 263(4), however these preconditions for the actions have been elaborated in the so-called Plaumann test, established by the ECJ in 1963. This approach, based on the standing rights of individuals (as well as of NGOs), at the level of the CJEU, remained surprisingly restrictive over the time, compared to the identified activism followed by the Court at national level, which is the subject of our analysis. The CJEU has further competences to act if the EU fails to act or if damage has been caused by EU institutions/bodies/staff members, or if the disputes are to be settled with EU officials and civil servants of the EU.

The CJEU Case-Law on Hungarian and Regional Energy Policy

Major changes were made regarding the decision-making and regulatory framework of the Hungarian energy policy. In the following section we mainly focus on such changes, which are related to the case-law of the CJEU. The Hungarian Energy and Public Utility Regulatory Authority (HEPURA) is in charge of market regulation and supervision, including price regulations and consumer protection (Act No. XXII of 2013 on Hungarian Energy and Public Utility Regulatory Authority). Under the Act No. XLIII of 2010 (on central organs of state administration and the legal status of members of the Government and State Secretaries) the HEPURA can be considered as autonomous regulatory authority with relative independence from the central administration and from the government. Act No. XXIX of 2011 on amendment of certain laws related to the energy sector granted new competences for the HEPURA.

To reduce household energy prices in the gas and electricity sector, regulated rates were cut in recent years (Act No. LIV of 2013 on executing the reduction of utility rates). New taxes and levies have also been imposed on energy companies (a tax on financial transactions, and tax connected to the distribution system), while it was prohibited to pass on these costs to the consumers (Act No. CLXVIII of 2012 and Act No. XII of 2013). Although most of these special taxes have been cancelled recently, they have already been challenged before the CJEU. Sector-specific programmes which are mostly relevant to national energy policy are as follows: National Energy Strategy until 2030 (NES 2030), National Renewable Energy Action Plan until 2020, National Energy Efficiency Action Plan until 2020, National Building Energy Performance Strategy, and National Climate Change Strategy (2008) (2009) (2010) (2011) (2012) (2013) (2014) (2015) (2016) (2017) (2018) (2019) (2020) (2021) (2022) (2023) (2024) (2025) . The newest plan in this regard is the National Energy and Climate Plan (NECP) with the main policy goals of strengthening energy sovereignty and energy security, preserving the achievement of affordable prices, and the decarbonization of the energy supply by keeping the balance between renewable and nuclear sources (ITM 2020).

Considering the NECP, the future perspectives on the Hungarian energy mix have become highly debated in recent years. The NECP keeps the decisive market share of the nuclear energy, as the Paks 2 project is the most substantial policy choice on the (future) energy mix. This project is based on the bilateral agreement signed with the Russian Federation and included the construction of two further nuclear units next to existing ones near the Hungarian town of Paks (Ratification Act No. II of 2014-Agreement between the Government of the Russian Federation and the Government of Hungary on cooperation on peaceful use of nuclear energy). The project is a clear step towards decarbonization, which might also have a truly positive impact on the national economy. Nevertheless, Paks 2 can also be considered as a clear step to keep a tight relationship with the Russian partner, instead of moving towards diversification of energy sources. Moreover, Hungary has agreed to sign a contract with Russia for a e10 billion loan to finance the project. Also, it is not yet clear whether the whole project can be efficient in terms of avoiding overproduction during the overlap period between the old and the new reactors and what kind of alternatives could have been taken into account (Clean Air Action Group 2015; Rotschild Financial Consulting 2015; Sáfián 2015) . The longer the delay to begin the construction of the new reactors, the lower the likelihood might be for any overlap period. The project has also been investigated in an infringement case by the European Commission, which dropped the case. However, Austria challenged the Commission's decision before the CJEU, and this will be analysed later in the chapter.

Several scholars concluded that Hungary has greater potential in the use of renewables (Kiss et al. 2016; Antal 2019) . The policy choices on renewable energy sources (RES) seem to be incoherent to a certain degree in recent years. An environmental protection fee has been imposed on solar panels in 2015, by which the manufacturers and distributors are expected to pay for the costs of handling solar panels at the end of their lifecycle-this measure has been criticized even by the Hungarian President János Áder (Keszthelyi 2015) . New installations of wind turbines in the country have been restricted in different ways: (i) within a 12kilometre radius of populated areas; (ii) the wind turbine shaft should not exceed a given height and capacity shall not exceed 2 MW. These preconditions are difficult to comply with Hungary's geographical situation and the physical characteristics of available wind turbines on the market (Antal 2019; IEA 2017). Geothermal energy, for which Hungary has a strong geological endowment, remains underdeveloped as only a few investors have demonstrated interest in exploiting the resource to date (IEA 2017). According to the NECP the role of solar power is clearly on the rise (ITM 2020). While these policy choices in this regard became contested, other issues have also occurred before the CJEU.

In most of the CEE member states the function of the administrative judicial review was historically characterized by the impairment of rights doctrine. These jurisdictions have also restricted the personal scope of potential plaintiffs before national courts and declared the violation of subjective rights as a prerequisite to that. The restrictive rule of the "impairment of rights" doctrine also applies, if the violation only relates to the mere economic interest of the applicant (plaintiff ). The CJEU started to acknowledge the legal status as plaintiff based on the economic interest of certain parties of network industries, which directly goes back to the Hungarian E.ON Földgáz case (C-510/13). E.ON had requested long-term capacity allocation, however the related network code has been amended by the regulatory authority (HEPURA) denying the requests of E. . In the judicial phase of the proceeding the locus standi of E.ON has not been acknowledged since the Hungarian regulation restricted the locus standi by requiring not only economic, but also legal interest in relation to the proceeding (based on related regulation in force at the time of the proceeding, namely Act No. III of 1952 on the Code of Civil Procedure and Act No. CXL of 2004 laying down general rules relating to administrative procedures and services). In this case the potential plaintiff had no existing contract, just a gas transmission authorization related to the network. Therefore a preliminary ruling proceeding was initiated by the Curia (Supreme Court) of Hungary, in order to decide which EU directive was to be applied in this case (before the transposition deadline of the G-Directive) and what kind of standing right E.ON had.

The CJEU concluded that the G-Directive was not to be applied to an action against the decision of a regulatory authority as this directive's transposition deadline did not expire at that time. However, the CJEU recently set a broader time frame in the GRDF (Gaz Réseau Distribution France) case (C-236/18) as it was in conformity with the G-Directive to apply its rules to a regulatory authority decision on a contract concluded by the parties before the emergence of their dispute.

As for the standing right issue, the Curia of Hungary followed a cross-sectoral approach in the wording of its preliminary ruling question by referring to the application of broader locus standi requirements of CJEU telecommunication judgments (Austrian preliminary ruling proceeding Tele2 Telecommunication C-426/05; German preliminary ruling proceeding Arcor C-55/06) to the energy (gas transmission). By using an analogy referring to the Tele2 Telecommunication judgment, the CJEU revealed that the related EU law is to be interpreted as constituting protective measures adopted in the interests of users wishing to gain access to the network and therefore capable of conferring rights on them, which included new entrants as well as those who potentially have their rights infringed. E.ON as holder of a gas transmission authorization on the network was to be regarded as a network user, therefore it was also irrelevant that it had a concluded contract, as the related EU law acknowledged users as potential customers as well. Finally, the CJEU also referred to the limits of national autonomy over procedural regulation. As a result, EU law requires, in light of "the principles of equivalence and effectiveness, that the national legislation should not undermine the right to effective judicial protection, as provided for in Article 47 of the Charter of Fundamental Rights" (para. 50). This approach has been acknowledged by the Curia of Hungary in its later decision in principle on the locus standi of the (potential) plaintiffs to be guaranteed based on their economic interests (EBH2016. K.8.).

A further (still pending) infringement case before the CJEU (Commission vs. Hungary, de gaz naturel C-771/18) deals with the broader scope of procedural rules and with the administrative judicial review system. Under related EU regulations, the principle is that tariffs for the use of networks must be cost-benefited (Article 14(1) of Regulation No. 714/2009 ). However, the Hungarian laws on electricity and on natural gas do not allow the national regulatory authority (HEPURA), when setting tariffs for the use of networks, to take into account all the costs actually incurred by system operators, such as excise duty on energy networks and commission costs related to banking operations, which were introduced as sector-specific taxes and levies. Additionally, the E-Directive and G-Directive require member states to ensure suitable mechanisms under which a party affected by a decision of a regulatory authority has a right to appeal to a body independent from the parties involved and from governments. According to the Commission, Hungary failed to establish a suitable mechanism guaranteeing the right to appeal against the decisions of HEPURA. However, this case is yet to be decided in the upcoming years.

The Aarhus Convention-related case law of the CJEU is a clear modification of the impairment of rights doctrine. The Aarhus Convention guarantees the right of access to information, public participation, and access to justice in environmental matters (The UN Economic Commission for Europe Convention on access to information, public participation and access to justice in environmental matters). It covers a comprehensive set of procedural rights, while it had to be transposed by EU norms as well as by national legislation as mixed agreement. Formally Article 9(2) of the Convention contains that member states (Parties under the Convention) shall ensure that NGOs as members of the "public concerned" have access to a review procedure before a court of law or another independent and impartial body established by the law (transposed into EU law by Article 11 of Directive 2011/92/EU as codified version of former environmental impact assessment (EIA) and Article 25 of Directive 2010/75/EU on industrial emissions). The CJEU made it clear in a preliminary ruling proceeding initiated by a German court, called Trianel (C-115/09), that member states have no discretion in determining the criteria such as impairment of the rights to restrict access to justice of an NGO. In the main proceeding at national level Trianel intended to construct and operate a coal-fired power station, in which the standing right of the NGO was to be decided on. As a result of this ruling the locus standi requirements of German administrative law had to be modified in environmental cases.

Certain provisions of the Aarhus Convention have not been transposed into the EU's secondary law. Article 9(3) of the Convention guarantees an even broader access to justice, not just for the public concerned, but for the whole public. Moreover, judicial procedures, acts and omissions by public authorities as well as by private persons can be challenged. As not being transposed into the EU acquis, the direct effect of such an agreement was a cornerstone of related litigation on the side of the NGOs. The CJEU made it clear in the Slovak bears case (C-240/09) that Article 9(3) of the Convention has no direct effect in EU law (para. 52), given that it does not contain a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. However, the CJEU expressed in the Slovak bears case in a clearly activist way that the national courts are required to interpret the national procedure rules (indirect effect ) in conformity with the Convention (para. 50) (therefore safeguarding the objective of effective judicial protection of the rights conferred by EU law), regardless of the lack of transposition of Article 9(3) into the EU law.

The Slovak bears judgment had a clear impact on the case-law of neighbouring countries. The Federal Administrative Court of Germany (Bundesverwaltungsgericht ) referred to this judgment even before the required legislative changes of Trianel to guarantee wider access to justice for NGOs, just like in the case of the Czech Republic (BVerwG judgment "Luftreinhalteplan Darmstadt" of 5 September 2013, No. 7 C 21.12 para. 48; Nejvyšší správní soudČeské republiky judgment of 13 October 2010 No. 6 Ao 5/2010). In contrast to that, the Supreme Administrative Court of Austria (Verwaltungsgerichtshof ) seemed rather reluctant to follow the activist approach and focused rather on the lack of direct effect of the Convention's Article 9(3) (VwGH judgment of 27 April 2012 No. 2009/02/0239). Even so that the Aarhus related case law of the CJEU (Gruber C-570/13) broadened the access to justices in case of Austria as well, however, not in the case of NGOs, but of neighbours as affected parties. In the case of Hungary the interpretation of the "environmental case" led to non-compliance concerns but without formal CJEU proceedings.

In the courts' practice it had to be decided in which kind of cases the NGOs' standing rights are to be guaranteed restricting their access to environmental cases in the stricter sense (e.g. nature protection) or in a rather broader sense accepting their access in all of environmentally relevant cases (Law Unification Decision of the Administrative Department of the Curia of Hungary No. 4/2010.). Nevertheless, the salami-slicing also led to concerns by separating the whole chain of permitting procedures and treating only a certain part of the project as environmentally relevant. As a result CJEU case-law requires that the cumulative effect of the project must be taken into account (recently CJEU Brussels Hoofdstedelijk Gewest C-275/09). Consequently, some legal scholars ask the question in light of the broad interpretation framework of CJEU caselaw, whether there is any issue within environmental law in which the member state would be allowed to legislate regardless of the EU law (Berkemann 2011; Gombos 2014) .

Some decisions such as EIA, and the construction permit of a nuclear power plant (NPP)-even if having an individual character-might have a potential impact on the future energy policy of a whole country. These cases are relevant not only related to the Aarhus requirements, but due to the involvement of neighbouring countries' NGOs also to the Espoo Convention (The United Nations Economic Commission for Europe Convention on EIA in transboundary context), however the CJEU-related case law is much less elaborated compared to that of the Aarhus requirements. It must be noted that the Aarhus Convention has an additional enforcement mechanism. If a state does not comply with the provisions of the Convention, a communication can be submitted to the Aarhus Convention's Compliance Committee (ACCC), which may give a legally non-binding recommendation to ensure compliance with the Convention. The main role of the Compliance Committee is to interpret the requirements of the Aarhus Convention. An outstanding Hungary-related example is that NGOs submitted a communication to the ACCC regarding the Paks 2 project, however no recommendations (findings) have been concluded yet (ACCC/C/2014/105 Hungary).

The CJEU's case-law related to the nuclear industry covers a wide range of different issues. Including that whereas the Council Directive 96/29/Euratom has introduced safety standards, it was cleared in caselaw that "their uniformity does not mean that more stringent protection may not be allowed" (Commission vs. Belgium C-376/90, para. 19). The ECJ in Commission vs. Council case (C-29/99) even paved the way for an enhanced range of Euratom competences by annulling former reservations of the Council to implement the Convention on Nuclear Safety (Roggenkamp et al. 2016 ). This was a pivotal step for Euratom having substantial competences over the safety of nuclear installations, which was further elaborated in the related case-law. In Land Oberösterreich vs.ČEZ case (C-115/08) the region concerned and other private parties from Austria initiated civil proceeding before an Austrian court related to an order of interdiction of the operation of the Czech NPP Temelín at the territory of the Czech Republic. However, the Court ruled that "the mere fact that the Czech power plant was designed and operated in accordance with an approved framework under Council Directive 2009/71/Euratom prevented the court in other member states from making any such order" (Roggenkamp et al. 2016, p. 317) . The role of Austria in cross-border context might also be relevant in other CJEU cases with a focus on nuclear installations. Austria following a rather anti-nuclear agenda filed actions for annulment in two relevant and similar cases, which might reveal the CJEU reformulation approach in energy policy and energy mix on nuclear installations, even if the GC has only taken a decision in UK's Hinkley Point C nuclear power station case. This has been challenged in an appeal proceeding (Austria vs. Commission, Hinkley Point C RefNo. T-356/15. and appeal case before the Court C-594/18 P), while Paks 2 case (Austria vs. Commission, Paks2 T-101/18) is yet to be decided by the GC in the upcoming years. In both cases the Commission's approval decisions are providing state aid for construction and operation of NPPs challenged by Austria with somewhat parallel pleas, though there are obvious differences in the two cases as well (Fouquot 2019) .

In the Hinkley Point C case financial aid was granted to support the installation and operation of new nuclear units, which included guaranteed compensation for the Nuclear New Build Generation Company (a subsidy of EDF Energy) in case of early shutdown of the plant as well as credit guarantee. The GC confirmed the Commission's decision on approval of the aid (para. 226). As for the facts regarding the Paks 2 project, the Commission has launched infringement proceedings examining different aspects of the project proposal at the end of 2015. In the Commission's view, the direct award of the Paks 2 project did not comply with the EU legislation on public procurement, as the bilateral agreement ratified by Hungary excluded other economic operators to have the fair chance to participate in a call for tender and to win the contract.

Moreover, the Directorate-General for Competition has also initiated an investigation into the investment as Hungary accepted a lower return on investment than a private investor would have done (European Commission 2015a, b) . In 2017 the European Commission decided to drop the cases in light of Hungary's commitments to meet the related EU requirements. These commitments related to the issue of state aid included: (i) potential profits earned by Paks 2 is to be used to pay back Hungary for its investment or to cover normal costs for the operation of Paks 2, while it cannot be used to reinvest in the construction or acquisition of additional generation capacity, (ii) separation of Paks 2 from the operator of the Paks NPP (the incumbent MVM Group), (iii) Paks 2 will sell at least 30% of its total electricity output on the open power exchange, while the rest of Paks 2's total electricity output will be sold by Paks 2 on objective, transparent, and non-discriminatory terms by way of auctions (European Commission 2017). This decision on approval of the aid was challenged by Austria before the CJEU in 2018.

According to Article 107(3) TFEU the state aid may be declared compatible with the internal market if it is aimed at the development of an activity that constitutes a public-interest objective and it is appropriate, necessary, and not disproportionate. The GC made it clear in the Hinkley Point C judgment that EU state aid rules are to be applied in evaluation of measures related to the area of nuclear energy (para. 77). In the context of the application of those rules, it is necessary to consider the provisions and objectives of the Euratom Treaty.

According to the plea of Austria in Paks 2 case, there is the lack of an "objective of common interest" and no common interest, which would be required for authorization of the aid (Second plea in law). In Hinkley Point C the GC concluded in this regard, that the Euratom Community's goal is facilitating investment in the nuclear field, while each member state has the right to choose between the different energy sources based on Treaties (para. 97). Nevertheless, development of nuclear energy could be a public interest objective as one of public interests and what is required is not being solely an objective in the aid beneficiary's private interest. Additionally, it is not required that this objective is shared by all member states. As for the necessity, the Austrian plea of the Paks 2 case refers to the assumption relating to the existence of a separate market for nuclear energy, while GC concluded in the Hinkley Point C case that state intervention was necessary (paras. 238-239) due to substantial risk related to investments in nuclear energy in light of the lack of marketbased financial instruments or other types of contracts to mitigate that risk (para. 156).

Regarding the test of disproportionate nature, Austria claims in the Paks 2 case that the negative effects outweigh the positive effects (Fourth plea in law). The GC rather referred in the Hinkley Point C case to the manifest error in weighing up the positive and negative effects in general. It concluded that wind energy cannot be regarded as an alternative, given its intermittent nature. The GC also made references to the free choices of energy mix by member states, while the Hinkley Point C project could also be justified by preventing a drastic fall in nuclear energy's contribution to overall electricity needs.

Further considerations in relation to appropriateness and other market-based issues have significant differences as pleas in the Paks 2 case mention the creation of dominant market position, wholesale market liquidity, and other type of risk. Both cases had a definition issue related to the nature of subsidy, which has been confirmed in the Hinkley Point C judgment, but Austria still argued that Hungary defined the extent of the aid in an inadequate manner.

Even when having two different cases, some conclusions can be drawn, and these highlight the relatively broad interpretation of the "objective of common interest" just like the necessity and proportionality requirements analysed in light of the free choice regarding the national energy mix. Additionally, the GC will presumably use its reasoning on the alternative choice and intermittent nature of RES, while the market circumstances and the potential distortion of competition could only be elaborated on a case-by-case basis. Further substantial differences can be found in the case of Paks 2 in relation to Russian project financing, and the wider involvement of state-actors (MVM Group). Nevertheless, the Court as appeal instance also has the right to overrule the original decision of the GC in the Hinkley Point C case as well. Advocate General Hogan concluded in his recent opinion that the Court should reject Austria's appeal in the UK Hinkley Point C case clarifying, i.e. that nuclear power cannot be subordinated to other objectives of EU law, such as the protection of the environment.

Discussions on Cross-Sectoral, Regional, and Multi-layered Levels

The energy as a policy area of substantial cross-sectoral relevance could be seen as some kind of a "somewhere in between" constellation, as it relates to a wide range of different types of diverse issues, policy areas, and consequently to a wider range of CJEU judgments as well. Therefore, identifying common patterns and incentives in the CJEU's willingness of reformulating the energy policy of the member states requires a thorough analysis.

In the case of economic issues, which lie at the heart of European integration, the related legislation on networks is rather detailed. In the network industries, such as gas transmission, by using the analogy of judgments related to telecommunications, the EU's secondary legislation prescribes the duties and obligations of member states, in order to ensure the proper functioning of the related segment on the internal market. Obvious violation of such EU obligations could even lead to the U-turn of related national requirements on locus standi in case of having mere economic interest as plaintiff. In these cases, the network and the related EU regulation as cross-sectoral elements also have some concretising effect on potential plaintiffs. Additionally, infringement of rights guaranteed by EU law, in concreto the violation of a fundamental right with special focus on the effective judicial protection laid down by the Charter of Fundamental Rights has a pivotal role in case-law of CJEU. As for the cross-sectoral relevance of the effective judicial protection related to this region, the CJEU has recently referred to this right in a Slovak data protection case, originally interpreted in relation to environmental protection (Puškár C-73/16).

The "neighbouring" policy areas of energy regulation such as environmental policy and legislation might have a different position, where the more activist approach from the side of the CJEU could be even more relevant to fight against implementation deficit of EU law. Broader standing rights in environmental cases is rather not a policy-specific issue, but it is a general objective to empower Union citizens (NGOs as well) to enforce EU requirements before national courts. The latter could be highly relevant in environmental cases, in which the logic of the impairment of rights doctrine hinder the litigation due to the collective nature of the interest to be protected such as the environment per se. This kind of nature could also be found in relation to consumers' rights or in the fight against the distortion of competition. It also seems that the CJEU tends to give effect to international agreements concluded by the EC/EU considering its judgments on the Convention on Nuclear Safety and on the Aarhus Convention. However, it was rather reluctant to ignore the provisions of the Treaties considering the prioritization of the member states' free choice regarding national energy mix, or territorially recognizing the lawful use of orders issued in the Land Oberösterreich vs.ČEZ case. Therefore, the basic framework of the Treaties regarding national regulatory autonomy or territorial sovereignty is rather respected in case-law.

In a broader sense, there can be other compliance patterns with crosssectoral, as well as regional relevance in light of the modification of the impairment of rights doctrine by the CJEU case-law (see CJEU judgments in E.ON Földgáz or Trianel cases). Additionally, cross-sectoral and regional relevance was also obviously related to network industries (see CJEU judgments in E.ON Földgáz or Tele2 and Arcor cases). As for the impairment of rights doctrine this can be considered as the "product" of an era when the whole system of administrative judicial review was created based on a vision of the relationship between the state and its citizens. In the second half of the nineteenth century the administrative judicial review with its orientation towards the protection of subjective rights characterized the fundamental approach of the German Kaiserreich and the Austro-Hungarian Monarchy. "These legal systems, balancing between democracy and monarchy has recognised the legal status of the individual, but only to the extent as the citizen would have enforced his/her own interests" (Masing 1997, p. 219) . This fundamental approach remained decisive regardless of two world wars and further regime changes in the CEE region (Szegedi 2019) . According to some scholars, the post-socialist new member states from the CEE might follow a different compliance culture based on their compliance performance, which could be identified as some kind of Eastern problem (Börzel and Buzogány 2010; Sedelmeier 2008; Börzel and Schimmelfennig 2017) . However, sector-and region-specific factors such as relations towards Russia, the level of nuclear power lock-in, and state intervention regarding the energy sector also need to be taken into account (Ćetković and Buzogány 2020). Based on Aarhus Conventionrelated CJEU case-law, the Eastern problem could not be inevitably identified, as the German and Austrian (being "older" member states) implementation of the Aarhus Convention also led to substantial implementation concerns in relation to the wider access to justice for NGOs and private parties (Trianel C-115/09; Gruber C-570/13). However, more data and case-law analysis would also be required to provide a comprehensive conclusion on compliance culture of the region. Nevertheless, finding such systematic factors like the impairment of rights doctrine (which also links the legal systems of this region), could positively influence not only the researchers of political sciences and of the Europeanization theories, but also the law enforcement and legislation of the EU. The prior consideration of such systematic factors might also result in a better compliance performance of the member states with the EU requirements.

There is one more level of the discussion, which might be relevant in relation to the enforcement of energy policy requirements, even if not at national level, but before the CJEU. In the Union's system of legal protection, the preliminary rulings do not necessarily serve the individuals' interests as there is no legal obligation for national judges to initiate such procedure upon the request of the parties. Moreover, initiating preliminary rulings might be problematic in certain member states (Kovács and Barabás 2019) . Consequently, it is of utmost importance how other process types before the CJEU could guarantee the protection of rights laid down by EU law (protection of individuals' rights as well as of NGOs' rights).

As previously analysed, the actions for annulment are the most relevant tools to ensure the protection of individuals' rights. However, the CJEU (more precisely the Court) has maintained its well-known Plaumann test (1963) elaborated in its case law. The test was meant to serve as a basis to restrict the direct standing rights of individuals as plaintiffs before the ECJ by requiring direct and individual concerns as standing requirements. Individual concern meant in context of Plaumann (and of the related case-law):

Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. (Plaumann & Co. v Commission of the European Economic Community, C-25/62, EU:C:1963, p. 17) Even if the Court of First Instance (today the GC) tried to reinterpret the related standing requirements in UPA (C-50/00 P) and Jégo Quéré (C-263/02 P) cases, its attempt remained unsuccessful, due to the reluctance of the Court. The TFEU newly enacted Article 263(4) has broadened standing rights to a certain extent by requiring private applicants to have direct concern in case of certain regulatory acts or direct and individual concern in general. However, the direct judicial review for individuals remained restrictive in general.

There are several theories why the test remained integral part of the European system of legal protection. This includes the objective of the CJEU to keep most of the matters at national level, as the level of the formalized legal protection should be connected to the level of the implementation and enforcement of the EU acquis (Pilafas 2006; Rasmussen 1980) . In view of some scholars, the EU Treaties still resemble the characteristics of international law treaties, which do not necessarily acknowledge the status of the individual to act as a plaintiff (Harlow 1992) . However, this consideration does not take the above-mentioned collision doctrines like direct effect providing rights for individuals, the mechanism of preliminary rulings, and in general the unique nature of EU law into account. According to the policy-specific reasoning, the CJEU/ECJ is rather activist in economy/competition-related cases, where the preliminary procedure with involvement of the Commission, especially in competition cases made it possible to identify third parties as potential plaintiffs (Whish and Bailey 2010) . Interestingly, Austria also seeks annulment related to the unlawfulness of competition (state aid) decisions in the nuclear projects mentioned above, even so that other member states' standing rights are not restricted by the test. Based on more detailed analysis it can be confirmed that the ECJ has started to adopt a more flexible approach concerning competitionrelated cases due to the preliminary administrative procedure concerned (Szegedi 2019) . However, the restrictive approach still followed by the Court in the environmental-related case-law, also has relevance regarding energy policy. In the Greenpeace International case (C-321/95 P) the ECJ refused to acknowledge the legal standing of a certain environmental NGO and several individuals who had initiated a review procedure against the decision of the Commission, which had financially supported the construction of two coal power plants in the Canary Islands. In its judgment the ECJ clearly referred to the Plaumann test by stating that "individuals as applicants could not be taken into consideration in the adoption of the act, which concerned them in a general and abstract fashion and, in fact, like any other person in the same situation, the applicant was not individually concerned by the act, which precluded the acknowledgement of the NGOs as plaintiff " (para. 28). Aiming the protection of environmental rights, the Court added that the aforementioned were fully protected by the national courts which could have referred a question to the Court for a preliminary ruling, if this would have been necessary. This multi-layered system of the protection of individuals' rights has already been criticized by the Court of First Instance in UPA (Unión de Pequeños Agricultores) and Jégo Quéré. The ratification of the Aarhus Convention led to the Aarhus Regulation, which originally kept the restrictive approach as NGOs could challenge EU acts based mainly on the infringement of their procedural rights-which regulation is currently under review.

The requirement for NGOs having own rights (substantive, procedural, or the rights of members) infringed is still followed by the case-law, which precludes the protection of more collective interests before the CJEU. In the relatively recent European Renewable Energies Federation (EREF) case (T-694/14) the standing right of the EREF, which defends the interests of independent power, fuel, and heat production from RES and promotes non-discriminatory access to the energy market, has not been acknowledged based on the same reasoning. Due to the locus standi requirements, the strategic litigation opportunities of NGOs (even in cases of major energy projects) are still rather weak before the CJEU (recently case Greenpeace Energy C-640/16 P). This makes it obvious why the Aarhus Compliance Committee could be considered as an alternative forum guaranteeing wider access; even if no legally binding judgment but only a soft law-like recommendation can be expected before this forum.

The Hungarian energy sector is determined by the legacy of the Communist period, as the country is highly dependent on Russian energy sources. As for decarbonization and climate-change policy, the soft lawlike strategies and plans of Hungary have incorporated the elements which might be required to meet the requirements of the EU. The energy sector has been recently characterized by the enhanced role of the state combined with deprioritization of free market principles. The future of Hungarian energy policy is skewed towards RES, especially solar power, as wind power has been deprioritized. The planned nuclear reactors in Paks 2 NPP will help to achieve the country's decarbonization goals, however, the project maintains dependence on Russian nuclear technology and does not support RES targets. The CJEU followed a rather activist approach at national level in influencing some policy choices of the Hungarian regulators. As a result, the circle of potential plaintiffs related to energy networks (but also network industries in general) had to be reconsidered in light of the CJEU's case-law. Moreover, the recently enacted new taxes and levies on the transmission system have also been challenged before the CJEU. This case is yet to be decided, together with the case examining compatibility of state aid provided for Paks 2, which could have a major impact on the future of the Hungarian energy mix. The tendencies of the reformulation approach can thus be evaluated only on the basis of already taken decisions in similar policy areas. In cases directly related to network industries the CJEU followed a clearly activist approach by reformulating the whole concept of legal protection in the CEE region. On the other hand, the CJEU respected the framework of the Treaties regarding free choice of energy mix or regarding acts intended to have extraterritorial effect in favour of environmental protection. Nevertheless, the CJEU itself still restricts the access to justice of private plaintiffs (NGOs as well) in its actions for annulment, which also hinders the further EU-level strategic litigation in energy policy-related cases. It is therefore the question of the future, in which direction the CJEU will influence the reformulation of national energy as well as economic policies, and whether it can reconcile the main goals of our times towards greening and the need for the redynamization of economic growth in the post-Covid-19 virus period. 

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Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky

GRDF SA v Eni Gas & Power France SA and Others

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on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies

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How the Regime Hampered a Transition to Renewable Electricity in Hungary

Die unionsrechtliche Umweltverbandsklage des EuGH-Der deutsche Gesetzgeber ist belehrt "so nicht

Why There is No "Southern Problem"?-On Environmental Leaders and Laggards in the European Union

Governing EU Accession in Transition Countries: the Role of Non-State Actors

Coming Together or Drifting Apart? The EU's Political Integration Capacity in Eastern Europe

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State Aid: Commission Opens in-Depth Investigation into Hungarian Investment Support for Paks II Nuclear Power Plant

Commission Clears Investment in Construction of Paks II Nuclear Power Plant in Hungary

Nuclear Policy in the EU from a Legal and Institutional Point-of-View

The Methods of Judicial Protection in the European Union

Europarechtliche Vorgaben für das Verwaltungsprozessrecht

Towards a Theory of Access for the European Court of Justice

General Principles of EU Law and EU Administrative Law

Budapest: Ministry for Innovation and Technology

Cabinet Stands by Plan to Tax Solar Panels

Issues and Solutions Relating to Hungary's Electricity System

Az előzetes döntéshozatali eljárások, mint a bírói függetlenség fokmérője a közigazgatási ítélkezésben

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Individualrechtschutz durch Nichtigkeitsklage nach EGRecht-Unter besonderer Berücksichtigung des Wettbewerbsrecht

Why Is Article 173 Interpreted Against Private Plaintiffs?

Energy Law in Europe: National, EU and International Regulation

Economic Analysis of the Paks II Nuclear Power Project

Paks II nélkül a világ

Der Einzelne im europäischen Verwaltungsrecht

After Conditionality: Post-Accession Compliance with EU Law in East Central Europe

Közigazgatási bírói jogvédelem uniós átalakulás alatt-Eltérő jogvédelmi mércék az EU jogának uniós és tagállami végrehajtása során

Rechtsschutz für gesetzlich geschützte Gemeinwohlbelange als Forderung des Demokratieprinzips?

Competition Law