Case

On 11 February 2013, the Energy Community Secretariat sent Opening Letters to Bosnia and Herzegovina, as well as to Albania, FYR of Macedonia, Serbia and Ukraine in accordance with Article 12 of the Rules of Procedure for Dispute Settlement. The Secretariat, acting under Article 90 of the Treaty, notes that these five Contracting Parties have not yet transposed and implemented the requirements of Directive 1999/32/EC as required by Article 16 and Annex II of the Treaty.

Procedure

With the present Opening Letters, the Secretariat initiated preliminary procedures, the purpose of which is giving the aforementioned Contracting Parties the possibility to react to the allegation of non-compliance with Energy Community law, and enabling the Secretariat to establish the full factual and legal background of the case. The Contracting Parties have been given the possibility until 12 April 2013 to comply of their own accord with the requirements of the Treaty, or to justify their position.

According to Articles 6 and 16 of the Rules of Procedure for Dispute Settlement, interested parties may be granted access to the case file and may submit written observations on the present case to the Secretariat within one month from 11 February 2013. 

Steps taken

On 21 December 2015, the Secretariat submitted four Reasoned Opinions as the next step in the dispute settlement cases against Bosnia and Herzegovina, FYR of Macedonia, Serbia and Ukraine.

• for FYR of Macedonia, the only remaining issue is the missing sampling and analysis of the fuels as required by Energy Community law.
• for Ukraine, non-compliance involves the lack of a binding national law to ensure that the sulphur content of liquid fuels does not exceed the limits set by Directive 1999/32/EC.
• In Bosnia and Herzegovina and Serbia, non-compliance is triggered by a combination of both issues.

Procedure

With the present Reasoned Opinions, the Parties involved were requested to rectify the identified issues of non-compliance within a time limit of two months.

Steps taken

After carrying out a preliminary procedure, the Secretariat submitted a Reasoned Request on the cases ECS-2/13; ECS-4/13 and ECS-5/13 on the failure of Bosnia and Herzegovina, Serbia and Ukraine respectively to timely and correctly transpose the Directive 1999/32/EC on sulphur content of liquid fuels.

Steps taken

On 14 October 2016, the Ministerial Council took decisions on the failure by Bosnia and Herzegovina, Serbia and Ukraine to comply with certain obligations under the Treaty. Article 3(1) of the Sulphur in Fuels Directive requires a legally binding threshold on the sulphur content of heavy fuel oil of 1.00%, while Article 4(1) sets a 0.10% the sulphur content of gas oil. In the case of Bosnia and Herzegovina, the Ministerial Council declared the existence of a breach by the Contracting Party of its obligations to transpose Articles 3(1) and 4(1) by 31 December 2011. Bosnia and Herzegovina also failed to comply with Article 16 of the Energy Community Treaty as well as the referred articles of the Sulphur in Fuels Directive.

In Article 2 of the Decisions, the ministers urge Bosnia and Herzegovina, Serbia and Ukraine "to rectify the breaches identified in Article 1 and ensure compliance with Energy Community law immediately ".

Procedure

Bosnia and Herzegovina, Serbia and Ukraine are asked to report to the Secretariat and the Permanent High Level Group about the measures taken. The ministers invited the Secretariat to initiate procedures under Article 92 of the Treaty if the breaches are not rectified.