Chapter 5 Regulation & Standards

5.1 Intro Regulation

We will start by understanding how policy and legal documents evolved until today.

Then we will introduce to some basic concepts of different legal documents and how they related to each other, so as its dependencies.

We will move on to scope, or answering the question “what are these documents trying to achieved?” How they related to connected areas, as building codes, environment and urban planning.

Afterwards we will introduce the main legal documents, or the cornerstones of most national regulations and lastly, how they related and set the tone for national frameworks.

Looking to the evolution and overall History, or how it evolved to its current shape.

We can trace from the 50´s.

5.1.3 “Soft Law”

Lack of features (vs “hard law” such as:

  • obligation,

  • uniformity,

  • justiciability,

  • sanctions,

  • and/or an enforcement staff

In the discussion of new governance in the European Union, the concept of “soft law” is often used to describe governance arrangements that operate in place of, or along with, the “hard law” that arises from treaties, regulations, and the Community Method. These new governance methods may bear some similarities to hard law. But because they lack features such as obligation, uniformity, justiciability, sanctions, and/or an enforcement staff, they are classified as “soft law” and contrasted, sometimes positively, sometimes negatively, with hard law as instruments for European integration.

“Soft law” is a very general term, and has been used to refer to a variety of processes. The only common thread among these processes is that while all have normative content they are not formally binding.

In his definition, Snyder describes soft law as “rules of conduct which in principle have no legally binding force but which nevertheless may have practical effects.” In recent years there has been an increase in interest in soft law in the EU.

There are several examples of “Soft Law”:

  • Industry standards (as ISO´s, ..);

  • Market costumes and practices;

  • Recommendations and opinions;

They may have asimilar strength of hard law, still are not enforceable. For example the “Best Available Techniques (BAT´s), like stated in Industrial Emissions Directive and IPPC Directive, concerning mitigation and prevention mechanics.

Source: http://eippcb.jrc.ec.europa.eu/reference/

http://www.cres.gr/greenbuilding/PDF/prend/set4/WI_29_TC-approval_version_prEN_15459_Data_requirements.pdf

5.1.4 Scope and Articulation between EU, National Frameworks and International Standards

The use of the commons and property rights (Coase) it´s a well studied case of where externalities, such as pollution, if not internalized, individuals will have an incentive to over exploit (commons), so several schemes try to internalize such externalities or mitigate public interest with private interest, by setting trade offs.

When analyzing the legal system, using the classical distinction between:

Private Law - applies to relationships between individuals (and companies) in a legal system (e.g. Contract Law)

Public law applies to the relationship between an individual (and Companies) and the Government. (e.g., Administrative Law)

We can see conflicting areas

  • Energy and Environmental;
  • Property Rights (Real Estate) and Urban Planning;

For example:

Property rights are delimited by Administrative Law provisions (when you need a permit to construct) or when environmental provisions cap use and access to natural resources (for example, when is required Environmental Impact Study, for starting operating large combustions plants, or by limiting the type and capacity of energy generation for self-consumption.

To close, it is important to understand how each document relates to each other. Or how Directives, National Regulation and other reference documents interconnect with each other.

We already know that Directives, in principle, do not have a direct effect and Member States have to fulfill internally those guidelines.

Directives are approved, and Member States have a certain period to transpose these Directives into national Law. Usually there is some freedom for adaptation, because each country has its own realities and system. EU states a goal, MS have to, internally, with their own legal tools, produce the mechanics to fulfill these goals.

Parliaments, can either decide to incorporate all definitions and procedures into a single piece of legislation or, attribute competence and authorization to a certain governmental entity, for fulfilling the details. A typical case is regulations to fulfill a certain piece of legislation. These entities are also mandated to execute, regulate, de application of such regulations.

Technical standards, they can either be incorporated into legislation and regulations or, a certain law or legislation sends the interpretation to these technical standards produced by industry or professional peers. So these documents even not having originate features of hard law, they end having similar strength due to being used by enforceable legal pieces of legislation or regulation.

A typical example would be:

EU set a Directive to improve EE, Parliament transpose Directive into national law and mandates a regulatory agency to execute the attributions within this law. The regulatory agency, writes a regulation that uses as standards an international standard to define what EE means and how its measure.

5.1.5 EU regulation

5.1.5.1 EU Directives

  • Energy Performance in Buildings Directive (2002/91/EC,2006/32/EC, 2010/31/EU)

  • Energy Efficiency (2012/27/EU)

  • Renewables Energy Directive (2009/21/EU)