This short memo deals with the legal basis that the EU can rely upon in the revision of the Energy Taxation Directive (ETD).
It will first discuss two cases of the CJEU (C-626/18 & C-482/17) that have dealt with the question of the applicable legal basis within the context of the revision of EU directives.
It will then proceed to outline the legal reasoning to rely on in order to promote the adoption of the ordinary legislative procedure in the revision of the ETD. As assessed in details below, we believe that:
– Both cases C-626/18 & C-482/17 resulted in negative outcomes for the applicants and confirmed the consistency in EU case law in relation to the legal basis of EU measures.
– A legal basis can be found in both article 192(1) and (3) TFEU. However, the most compelling argument would find its base in article 192(1) TFEU, according to which the revision of the ETD is predominantly inspired by environmental concerns and as a consequence, the ordinary legislative procedure should be applied as the environmental objectives listed in article 191 TFEU are being pursued.