At the beginning of March, the Commission plans to present its legislative package to secure the supply of critical raw materials. The pressure is on: The EU must respond not only to the supply shortages that have arisen as a result of the pandemic and Russia’s attack on Ukraine – but also to the US Inflation Reduction Act. “The Act will be a top priority for the Swedish presidency in the coming months,” Swedish Minister for Energy, Business and Industry Ebba Busch said right at the start of the Presidency. Leonie Düngefeld analyzes what to expect from the Critical Raw Materials Act.
“Paris hasn’t had a watershed moment yet,” says Jana Puglierin of the European Council on Foreign Relations. Macron, she says, has tended to stay on his course even after Feb. 24, 2022. But Germany is not setting a good example in security policy either – at least from the perspective of the EU countries in Central and Eastern Europe. In an interview with Nana Brink and Viktor Funk, the researcher talks about the old and new roles of the member states, the EU’s defense capabilities, and the close understanding between Chancellor Scholz and US President Biden.
The EU energy platform was the subject of intense wrangling. The Commission presented the corresponding regulation on Oct. 18, but the EU energy ministers did not adopt it until two months later. Now there are further disputes, this time with a legal background: The European Court has withdrawn a preliminary decision that would have delayed the EU’s joint gas purchasing. Manuel Berkel has the background.
The pressure is on, especially for Internal Market Commissioner Thierry Breton: After the supply bottlenecks caused by the pandemic and war, the EU now also has to react to the US Inflation Reduction Act (IRA) – and has meanwhile brought forward the deadline for the Critical Raw Materials Act several times. The end of November was the deadline for the public consultation, and now the Commission is working in parallel on the impact assessment and the draft. According to the current agenda, it intends to present the draft on March 8.
“The law will be a top priority for the Swedish Presidency in the coming months,” Swedish Minister for Energy, Business and Industry Ebba Busch announced at a press conference to kick off the presidency – at the Kiruna mine, where mining company LKAB was at the same time effectively staging an announcement of a gigantic rare earth find.
What is known is that the Commission is planning a package of legislative and non-legislative initiatives based on four pillars: Defining strategic priorities, monitoring and risk management, strengthening the value chain within the EU, and leveling the playing field. Environmental and social standards are also to be strengthened, but the overriding objective remains the security of supply.
Peter Handley, head of the Energy Intensive Industries, Raw Materials and Hydrogen Unit in the responsible DG GROW, said, “Our goal is to ensure a resilient supply chain and improve our security of supply for the things we need for our green and digital transformation.”
According to its call for evidence, the Commission intends the legislative package to address problems such as the lack of investment in projects in the EU, limited public acceptance, and social and environmental impacts, in addition to the low diversification of supply sources.
A network working with the relevant national agencies is to be set up to exchange information in good time and enable monitoring measures, such as the development of early warning mechanisms, the implementation of stress tests for critical supply chains and the mapping of strategic mineral resources. The establishment of a government commodity agency based on the model of JOGMEG in Japan is mooted as an idea.
Strategically important projects in the EU and other partner countries are to receive a special label. “Together with our member states and partners, we are giving a label to projects that are strategically important for a certain critical raw material,” Commission Vice President Maroš Šefčovič said in an interview with Europe.Table. The EU would then help with the respective feasibility studies and, in return, demand that environmental and social standards be met.
To ensure access to finance for raw materials projects, Germany and France proposed in a non-paper in the Council the establishment of a public-private investment fund for raw materials projects. This idea also met with approval from the industry.
The Commission also plans to simplify permits for projects in the EU. One obstacle here will be the public acceptance of mining projects. Representatives of civil society, meanwhile, are calling for the Commission to involve them more closely in the preparations for the legislative package so that the measures enjoy broader approval.
A sustainable level playing field should be created throughout the EU single market through the following possible measures:
An alliance of four NGOs, including the European Environmental Bureau (EEB) and PowerShift, called for an overall EU-wide material footprint reduction target in their response to the consultation. It said the Commission must “not only focus on responding to changes on the supply side but also actively influence the demand side.”
The European Commission’s next foresight study on critical raw materials would also need to develop scenarios that take into account the reduced demand for raw materials. The Raw Materials Act could then be a political signal that the Commission needs to set a target for reducing overall demand for raw materials in its next mandate.
According to the Commission, the priorities and objectives of EU action could be determined by identifying strategic critical raw materials. This year, in line with the three-year cycle, it is also revising the list of critical raw materials in parallel. It has not yet announced a date for this. The latest version of 2020 contains thirty raw materials.
How “critical” a raw material is, has so far been assessed on the basis of economic criteria: the importance to the European economy and the risk of supply disruption, based on the concentration of primary raw materials in producing countries, taking into account their governance performance and trade aspects.
Environmental and human rights risks are also crucial for mining, says Tobias Kind-Rieper of WWF. Environmental disasters and human rights abuses in mining regions affect the resilience of supply chains just as much as economic factors. “The issue of raw material security must go hand in hand with such a risk assessment. The list of critical raw materials would then look different.”
“We see the need for a directive not only on ‘critical raw materials,’” says Daniel Quantz of the Wirtschaftsvereinigung Metalle. “Rather, other metals such as copper and aluminum must also be considered by the Commission.”
Ms. Puglierin, Germany was setting the tone in the EU on relations with Russia until Feb. 24, 2022, bouncing off warnings from Poland and the Baltic states. Now Berlin seems driven. How have the past eleven months changed the power structure in the EU?
On Feb. 24 of last year, the Germans lost the authority to interpret the EU’s Russia policy. In contrast, countries in Central Europe, i.e. Poland, the Baltic states, and the Czech Republic now see themselves strengthened. For years, they were seen as Russophobic, almost hysterical countries that were exaggerating. Their fears were not taken seriously. Now Germany is actually facing the bankruptcy of its recent Russia policy. We have not seen many developments in Russia…
Or have not wanted to see them…
Or both. Depends on who the actor was on the German side. The shock after the start of the war was deep. The Central and Eastern Europeans then strongly determined the narrative in the European response to the war. They quickly launched initiatives and set the pace of the response in a way that had been unthinkable before.
Did they feel vindicated?
Yes, after the war began, they had a moment of moral superiority. The debate about the visa ban for Russian citizens, for example, shows how Central and Eastern European states began to set the European agenda. Germany found itself more in the role of the brakeman here, as well as in the debate about the exclusion of Russian banks from the Swift system.
France has also been reserved in its reactions to Russia’s invasion. At the same time, there are disagreements between Paris and Berlin 60 years after the signing of the Élysée Treaty. Will this lead to a loss of power for the old big players and a gain in power for Central and Eastern Europe?
Poland, the Baltic states or the Czech Republic did not look to France when it came to Russia in the past either. Our Coalition Explorer data from 2020, which we used to “measure”, so to speak, how countries perceived each other, showed that relations between France and Central and Eastern Europe were quite difficult. That’s why they then didn’t look to Paris when war broke out in their neighborhood. Instead, they set the dynamics themselves. After years of the dominance of the Franco-German tandem, I found this quite refreshing for a change. To what extent there will be a lasting shift of power from Paris and Berlin to Central and Eastern Europe remains to be seen.
Who has benefited most from this?
Well, a year ago, Poland was still the EU’s grubby child. There was a conflict with the Biden administration, with Berlin, with the EU Commission in Brussels. Today there is no way around Warsaw, it is a very central country for supporting Ukraine. Moreover, Warsaw perceives itself as a central player in the defense of Western values. Likewise, Estonians and Lithuanians see themselves in this role. But the whole thing also has a dangerous twist because Poland is a problematic actor in many areas, such as the question of migration and the rule of law.
And France?
Paris has not yet had a watershed moment. Macron has rather continued on his course. And the French find the close understanding between Scholz and Biden difficult, especially when it comes to armaments policy and procurement for the Bundeswehr. The French would like to see more investment in the European defense industry and greater Europeanization of special assets, while Germany is currently buying a great deal off the shelf in the United States. This was clear when Germany opted for the US F-35 jets. France – and Poland, for that matter – are not part of the European Sky Shield air defense initiative.
What does all this mean for the EU’s defense capability?
For the Europeans on the eastern flank in particular, it looks as if only America can bail them out in case of doubt. They realize that Ukraine would no longer exist if the US had not acted so quickly. They also perceive that although the Ramstein conference is taking place in Germany, the Americans are organizing it. I think this war shows very strongly how central the role of NATO, specifically US involvement, is to European defense capabilities. I think it is a pity that the Europeans are not at the same time using this momentum to push European defense cooperation even further.
Now Chancellor Olaf Scholz said before the Ramstein conference that Leopard tanks will not be sent until the US sends its Abrams.
In principle, Germany always waits for the Americans and does not want to go ahead courageously with European partners only. A European Leopard 2 initiative would provide that opportunity, but without the US it doesn’t seem to work here either. We talk about becoming the primary guarantor of European security, but we often don’t act that way. And we have lost a lot of trust from our eastern partners in the last eleven months. Poland is now forming a large army, investing in it, while we are still only talking about it.
The already complicated power structure in the EU has also been influenced by Erdoğan’s government at least since the war in Syria and Brussels’ refugee pact with Ankara in 2016. Did Europe make itself susceptible to blackmail with the deal at the time or also now as a self-proclaimed mediator in the Russian-Ukrainian war?
In any case, now would be the wrong moment to cut the tablecloth with Turkey. Turkey is a good example of the strengthening of the middle powers. It can be clearly seen, for example, that it supplies drones to Ukraine on the one hand and is accepted by Russia as an interlocutor on the other. The EU is grateful that Erdoğan was able to broker the grain deal. Ankara is deliberately playing the dependencies, as can be seen in the poker game over the admission of Sweden and Finland to NATO. Of course, this has to do with the presidential “election” in Turkey this year.
Jana Puglierin is Senior Policy Fellow at the European Council on Foreign Relations and Head of the Berlin Office of ECFR, and is a member of the extended board of Women in International Security Germany (WIIS).
The European Court of Justice has withdrawn a preliminary ruling that would have delayed the EU’s joint gas procurement. Previously, the “Handelsblatt” had reported on the initially successful lawsuit filed by the Munich-based company Enmacc against the Commission. The company operates an energy trading platform and wanted to apply for a tender for an IT platform with which the Commission would like to organize joint gas purchasing.
Through the energy platform, the member states want to fulfill 15 percent of their storage obligations and prevent an excessive increase in gas prices like last summer. The Commission presented the corresponding regulation on Oct. 18, but the EU energy ministers did not adopt it until Dec. 19. Several states had delayed it as a bargaining chip for the introduction of the gas price cap.
The Commission had not publicly announced the award procedure but had chosen a so-called emergency award. On Nov. 30, it shared the tender with a limited number of bidders, according to the two decisions available to Europe.Table. Accordingly, the Commission had hoped to be able to conclude a contract before the end of January.
“Much of this tender is not very concrete,” Enmacc Managing Director Jens Hartmann told Handelsblatt. “It would be all the more important for different applicants to be able to present their concept of a trading platform to the Commission. We have tried in vain to achieve constructive cooperation. Unfortunately, the only last option left to us was legal action.” Enmacc applied for interim legal protection and a halt to the award on Jan. 4.
Just one day later, the European General Court initially issued a positive ruling but withdrew it again on Jan. 18. The court cited the Commission’s opinion of Jan. 16 as justification. In it, “the Commission underlines the extremely exceptional circumstances of this case,” the second ruling states. “In particular, the Commission emphasizes the fact that a continued suspension under the Jan. 5 order would jeopardize the timely implementation of a very important part of the European Union’s response to the current energy crisis.”
According to Handelsblatt, however, the plaintiff argues that the Commission has been working on bundling gas requirements since March. Since then, it could have taken care of a tender.
Legal experts believe Enmacc has a good chance of success. European public procurement law sets high legal hurdles for state demands if they want to resort to emergency awards in exceptional cases, says public procurement law expert Mario Kreutzer of Bird & Bird: “The cause of the current supply shortage in the gas market is indisputably an unforeseeable event. However, this alone is not sufficient to be allowed to dispense with Union-wide competition.”
“At first glance, it does not make sense why the EU Commission did not immediately prepare a call for tenders at the time or, most recently, at least resorted to the instruments of accelerated award procedures with shortened deadlines as a milder means,” says Kreutzer.
Christopher Marx of Heuking Kühn Lüer Wojtek takes a similar view, but also believes that the EU Commission still has a chance: “The courts regularly set high standards for emergency awards, which is why these proceedings are often successfully challenged. However, that is not certain here. It can be seen from the second decision that the court attaches great importance to the security of supply.“
A final decision in the proceedings is still pending.
Do you know the Mundat Forest? An ordinary German forest, you might think. But it has a special history – especially a certain section of the forest that belongs to the Upper Mundat Forest. This 680-hectare area is administered by the French Office National des Forêts and managed according to French law.
The Upper Mundat Forest covers a total of 40 km² and is located on the French-German border, near the Alsatian town of Wissembourg. And here, a short historical review is absolutely necessary to properly enjoy this real German-French treat:
In the Middle Ages, the forest and the town of Wissembourg belonged to the Holy Roman Empire of the German Nation. Centuries later, both were incorporated into France through the conquests of Louis XIV. Much later, in 1815, Napoleon lost at Waterloo and France signed with the victors the Second Peace of Paris, which curtailed its borders.
By this treaty, Wissembourg remained in France, while the Mundat Forest was divided between France and the Kingdom of Bavaria. And this is where the problem has its roots: Wissembourg is in fact one of the main owners of the Upper Mundat Forest; and due to the not-easy Franco-German relations – at that time, mind you -the town had difficulties using its forest on the German side, especially after World War I. The forest contains water sources that supply the city of Wissembourg.
A confusing back and forth ensued: The city of Wissembourg lost its rights to the forest on the German side. The French state got it back in the meantime before selling it to the German state on Dec. 16, 1937 for 1.35 million Reichsmark. After 1945, the Upper Mundat Forest belonged to the French occupation zone. Shortly thereafter, in 1948, a committee including the United States, the United Kingdom, the Netherlands, Belgium, Luxembourg and France discussed the possibility of revising Germany’s western borders.
As a consequence, France finally got the forest area back.
But beware: for the committee that approved this rectification, it was only provisional. Only a treaty between the French state and the German state – which did not exist at that time – could make this annexation legally binding, with the necessary approval of the Americans and the British. This point was settled with the foundation of the Federal Republic of Germany. Ten years later, the process of reconciliation between the French and the Germans began.
In this context, on July 31, 1962, an agreement was signed by which the FRG recognized that the area of the Upper Mundat Forest belonged to France. But in the FRG the deputies of the Bundestag refused to ratify the agreement. To whom did these 680 hectares belong now? Neither the French, who hold on to this historically grown forest in Wissembourg, nor the Germans, who lost many territories after the war, seemed willing to let go. It was not until the 1980s, an idyllic time for the “Franco-German couple,” that the situation changed. At the height of their honeymoon, the former enemies actually tried to settle their old quarrels.
So the case of the Upper Mundat Forest came to the table, and it was the then French Foreign Minister Claude Cheysson who finally proposed to separate the question of sovereignty from the question of ownership. Therein lies the subtlety. On May 10, 1984, France promised to repeal the decree annexing the 680 hectares to France, and Germany undertook to recognize France’s ownership of the forest, together with its rights to the water sources and hunting.
Article B of the agreement states: “Free access to the forest and to the sources for the personnel in charge of their care and use.” Concretely, this means that the personnel of the Office National des Forêts, employed under French law, can cut wood in Germany and bring it to France and sell it with French VAT.
In fact, therein lies the originality of the agreement: Frenchmen are allowed to manage German territory. Although the part of the forest belongs to Germany, French law applies there. Is the Upper Mundat Forest, therefore, German or French? It is probably both – and that is quite charming.
At the beginning of March, the Commission plans to present its legislative package to secure the supply of critical raw materials. The pressure is on: The EU must respond not only to the supply shortages that have arisen as a result of the pandemic and Russia’s attack on Ukraine – but also to the US Inflation Reduction Act. “The Act will be a top priority for the Swedish presidency in the coming months,” Swedish Minister for Energy, Business and Industry Ebba Busch said right at the start of the Presidency. Leonie Düngefeld analyzes what to expect from the Critical Raw Materials Act.
“Paris hasn’t had a watershed moment yet,” says Jana Puglierin of the European Council on Foreign Relations. Macron, she says, has tended to stay on his course even after Feb. 24, 2022. But Germany is not setting a good example in security policy either – at least from the perspective of the EU countries in Central and Eastern Europe. In an interview with Nana Brink and Viktor Funk, the researcher talks about the old and new roles of the member states, the EU’s defense capabilities, and the close understanding between Chancellor Scholz and US President Biden.
The EU energy platform was the subject of intense wrangling. The Commission presented the corresponding regulation on Oct. 18, but the EU energy ministers did not adopt it until two months later. Now there are further disputes, this time with a legal background: The European Court has withdrawn a preliminary decision that would have delayed the EU’s joint gas purchasing. Manuel Berkel has the background.
The pressure is on, especially for Internal Market Commissioner Thierry Breton: After the supply bottlenecks caused by the pandemic and war, the EU now also has to react to the US Inflation Reduction Act (IRA) – and has meanwhile brought forward the deadline for the Critical Raw Materials Act several times. The end of November was the deadline for the public consultation, and now the Commission is working in parallel on the impact assessment and the draft. According to the current agenda, it intends to present the draft on March 8.
“The law will be a top priority for the Swedish Presidency in the coming months,” Swedish Minister for Energy, Business and Industry Ebba Busch announced at a press conference to kick off the presidency – at the Kiruna mine, where mining company LKAB was at the same time effectively staging an announcement of a gigantic rare earth find.
What is known is that the Commission is planning a package of legislative and non-legislative initiatives based on four pillars: Defining strategic priorities, monitoring and risk management, strengthening the value chain within the EU, and leveling the playing field. Environmental and social standards are also to be strengthened, but the overriding objective remains the security of supply.
Peter Handley, head of the Energy Intensive Industries, Raw Materials and Hydrogen Unit in the responsible DG GROW, said, “Our goal is to ensure a resilient supply chain and improve our security of supply for the things we need for our green and digital transformation.”
According to its call for evidence, the Commission intends the legislative package to address problems such as the lack of investment in projects in the EU, limited public acceptance, and social and environmental impacts, in addition to the low diversification of supply sources.
A network working with the relevant national agencies is to be set up to exchange information in good time and enable monitoring measures, such as the development of early warning mechanisms, the implementation of stress tests for critical supply chains and the mapping of strategic mineral resources. The establishment of a government commodity agency based on the model of JOGMEG in Japan is mooted as an idea.
Strategically important projects in the EU and other partner countries are to receive a special label. “Together with our member states and partners, we are giving a label to projects that are strategically important for a certain critical raw material,” Commission Vice President Maroš Šefčovič said in an interview with Europe.Table. The EU would then help with the respective feasibility studies and, in return, demand that environmental and social standards be met.
To ensure access to finance for raw materials projects, Germany and France proposed in a non-paper in the Council the establishment of a public-private investment fund for raw materials projects. This idea also met with approval from the industry.
The Commission also plans to simplify permits for projects in the EU. One obstacle here will be the public acceptance of mining projects. Representatives of civil society, meanwhile, are calling for the Commission to involve them more closely in the preparations for the legislative package so that the measures enjoy broader approval.
A sustainable level playing field should be created throughout the EU single market through the following possible measures:
An alliance of four NGOs, including the European Environmental Bureau (EEB) and PowerShift, called for an overall EU-wide material footprint reduction target in their response to the consultation. It said the Commission must “not only focus on responding to changes on the supply side but also actively influence the demand side.”
The European Commission’s next foresight study on critical raw materials would also need to develop scenarios that take into account the reduced demand for raw materials. The Raw Materials Act could then be a political signal that the Commission needs to set a target for reducing overall demand for raw materials in its next mandate.
According to the Commission, the priorities and objectives of EU action could be determined by identifying strategic critical raw materials. This year, in line with the three-year cycle, it is also revising the list of critical raw materials in parallel. It has not yet announced a date for this. The latest version of 2020 contains thirty raw materials.
How “critical” a raw material is, has so far been assessed on the basis of economic criteria: the importance to the European economy and the risk of supply disruption, based on the concentration of primary raw materials in producing countries, taking into account their governance performance and trade aspects.
Environmental and human rights risks are also crucial for mining, says Tobias Kind-Rieper of WWF. Environmental disasters and human rights abuses in mining regions affect the resilience of supply chains just as much as economic factors. “The issue of raw material security must go hand in hand with such a risk assessment. The list of critical raw materials would then look different.”
“We see the need for a directive not only on ‘critical raw materials,’” says Daniel Quantz of the Wirtschaftsvereinigung Metalle. “Rather, other metals such as copper and aluminum must also be considered by the Commission.”
Ms. Puglierin, Germany was setting the tone in the EU on relations with Russia until Feb. 24, 2022, bouncing off warnings from Poland and the Baltic states. Now Berlin seems driven. How have the past eleven months changed the power structure in the EU?
On Feb. 24 of last year, the Germans lost the authority to interpret the EU’s Russia policy. In contrast, countries in Central Europe, i.e. Poland, the Baltic states, and the Czech Republic now see themselves strengthened. For years, they were seen as Russophobic, almost hysterical countries that were exaggerating. Their fears were not taken seriously. Now Germany is actually facing the bankruptcy of its recent Russia policy. We have not seen many developments in Russia…
Or have not wanted to see them…
Or both. Depends on who the actor was on the German side. The shock after the start of the war was deep. The Central and Eastern Europeans then strongly determined the narrative in the European response to the war. They quickly launched initiatives and set the pace of the response in a way that had been unthinkable before.
Did they feel vindicated?
Yes, after the war began, they had a moment of moral superiority. The debate about the visa ban for Russian citizens, for example, shows how Central and Eastern European states began to set the European agenda. Germany found itself more in the role of the brakeman here, as well as in the debate about the exclusion of Russian banks from the Swift system.
France has also been reserved in its reactions to Russia’s invasion. At the same time, there are disagreements between Paris and Berlin 60 years after the signing of the Élysée Treaty. Will this lead to a loss of power for the old big players and a gain in power for Central and Eastern Europe?
Poland, the Baltic states or the Czech Republic did not look to France when it came to Russia in the past either. Our Coalition Explorer data from 2020, which we used to “measure”, so to speak, how countries perceived each other, showed that relations between France and Central and Eastern Europe were quite difficult. That’s why they then didn’t look to Paris when war broke out in their neighborhood. Instead, they set the dynamics themselves. After years of the dominance of the Franco-German tandem, I found this quite refreshing for a change. To what extent there will be a lasting shift of power from Paris and Berlin to Central and Eastern Europe remains to be seen.
Who has benefited most from this?
Well, a year ago, Poland was still the EU’s grubby child. There was a conflict with the Biden administration, with Berlin, with the EU Commission in Brussels. Today there is no way around Warsaw, it is a very central country for supporting Ukraine. Moreover, Warsaw perceives itself as a central player in the defense of Western values. Likewise, Estonians and Lithuanians see themselves in this role. But the whole thing also has a dangerous twist because Poland is a problematic actor in many areas, such as the question of migration and the rule of law.
And France?
Paris has not yet had a watershed moment. Macron has rather continued on his course. And the French find the close understanding between Scholz and Biden difficult, especially when it comes to armaments policy and procurement for the Bundeswehr. The French would like to see more investment in the European defense industry and greater Europeanization of special assets, while Germany is currently buying a great deal off the shelf in the United States. This was clear when Germany opted for the US F-35 jets. France – and Poland, for that matter – are not part of the European Sky Shield air defense initiative.
What does all this mean for the EU’s defense capability?
For the Europeans on the eastern flank in particular, it looks as if only America can bail them out in case of doubt. They realize that Ukraine would no longer exist if the US had not acted so quickly. They also perceive that although the Ramstein conference is taking place in Germany, the Americans are organizing it. I think this war shows very strongly how central the role of NATO, specifically US involvement, is to European defense capabilities. I think it is a pity that the Europeans are not at the same time using this momentum to push European defense cooperation even further.
Now Chancellor Olaf Scholz said before the Ramstein conference that Leopard tanks will not be sent until the US sends its Abrams.
In principle, Germany always waits for the Americans and does not want to go ahead courageously with European partners only. A European Leopard 2 initiative would provide that opportunity, but without the US it doesn’t seem to work here either. We talk about becoming the primary guarantor of European security, but we often don’t act that way. And we have lost a lot of trust from our eastern partners in the last eleven months. Poland is now forming a large army, investing in it, while we are still only talking about it.
The already complicated power structure in the EU has also been influenced by Erdoğan’s government at least since the war in Syria and Brussels’ refugee pact with Ankara in 2016. Did Europe make itself susceptible to blackmail with the deal at the time or also now as a self-proclaimed mediator in the Russian-Ukrainian war?
In any case, now would be the wrong moment to cut the tablecloth with Turkey. Turkey is a good example of the strengthening of the middle powers. It can be clearly seen, for example, that it supplies drones to Ukraine on the one hand and is accepted by Russia as an interlocutor on the other. The EU is grateful that Erdoğan was able to broker the grain deal. Ankara is deliberately playing the dependencies, as can be seen in the poker game over the admission of Sweden and Finland to NATO. Of course, this has to do with the presidential “election” in Turkey this year.
Jana Puglierin is Senior Policy Fellow at the European Council on Foreign Relations and Head of the Berlin Office of ECFR, and is a member of the extended board of Women in International Security Germany (WIIS).
The European Court of Justice has withdrawn a preliminary ruling that would have delayed the EU’s joint gas procurement. Previously, the “Handelsblatt” had reported on the initially successful lawsuit filed by the Munich-based company Enmacc against the Commission. The company operates an energy trading platform and wanted to apply for a tender for an IT platform with which the Commission would like to organize joint gas purchasing.
Through the energy platform, the member states want to fulfill 15 percent of their storage obligations and prevent an excessive increase in gas prices like last summer. The Commission presented the corresponding regulation on Oct. 18, but the EU energy ministers did not adopt it until Dec. 19. Several states had delayed it as a bargaining chip for the introduction of the gas price cap.
The Commission had not publicly announced the award procedure but had chosen a so-called emergency award. On Nov. 30, it shared the tender with a limited number of bidders, according to the two decisions available to Europe.Table. Accordingly, the Commission had hoped to be able to conclude a contract before the end of January.
“Much of this tender is not very concrete,” Enmacc Managing Director Jens Hartmann told Handelsblatt. “It would be all the more important for different applicants to be able to present their concept of a trading platform to the Commission. We have tried in vain to achieve constructive cooperation. Unfortunately, the only last option left to us was legal action.” Enmacc applied for interim legal protection and a halt to the award on Jan. 4.
Just one day later, the European General Court initially issued a positive ruling but withdrew it again on Jan. 18. The court cited the Commission’s opinion of Jan. 16 as justification. In it, “the Commission underlines the extremely exceptional circumstances of this case,” the second ruling states. “In particular, the Commission emphasizes the fact that a continued suspension under the Jan. 5 order would jeopardize the timely implementation of a very important part of the European Union’s response to the current energy crisis.”
According to Handelsblatt, however, the plaintiff argues that the Commission has been working on bundling gas requirements since March. Since then, it could have taken care of a tender.
Legal experts believe Enmacc has a good chance of success. European public procurement law sets high legal hurdles for state demands if they want to resort to emergency awards in exceptional cases, says public procurement law expert Mario Kreutzer of Bird & Bird: “The cause of the current supply shortage in the gas market is indisputably an unforeseeable event. However, this alone is not sufficient to be allowed to dispense with Union-wide competition.”
“At first glance, it does not make sense why the EU Commission did not immediately prepare a call for tenders at the time or, most recently, at least resorted to the instruments of accelerated award procedures with shortened deadlines as a milder means,” says Kreutzer.
Christopher Marx of Heuking Kühn Lüer Wojtek takes a similar view, but also believes that the EU Commission still has a chance: “The courts regularly set high standards for emergency awards, which is why these proceedings are often successfully challenged. However, that is not certain here. It can be seen from the second decision that the court attaches great importance to the security of supply.“
A final decision in the proceedings is still pending.
Do you know the Mundat Forest? An ordinary German forest, you might think. But it has a special history – especially a certain section of the forest that belongs to the Upper Mundat Forest. This 680-hectare area is administered by the French Office National des Forêts and managed according to French law.
The Upper Mundat Forest covers a total of 40 km² and is located on the French-German border, near the Alsatian town of Wissembourg. And here, a short historical review is absolutely necessary to properly enjoy this real German-French treat:
In the Middle Ages, the forest and the town of Wissembourg belonged to the Holy Roman Empire of the German Nation. Centuries later, both were incorporated into France through the conquests of Louis XIV. Much later, in 1815, Napoleon lost at Waterloo and France signed with the victors the Second Peace of Paris, which curtailed its borders.
By this treaty, Wissembourg remained in France, while the Mundat Forest was divided between France and the Kingdom of Bavaria. And this is where the problem has its roots: Wissembourg is in fact one of the main owners of the Upper Mundat Forest; and due to the not-easy Franco-German relations – at that time, mind you -the town had difficulties using its forest on the German side, especially after World War I. The forest contains water sources that supply the city of Wissembourg.
A confusing back and forth ensued: The city of Wissembourg lost its rights to the forest on the German side. The French state got it back in the meantime before selling it to the German state on Dec. 16, 1937 for 1.35 million Reichsmark. After 1945, the Upper Mundat Forest belonged to the French occupation zone. Shortly thereafter, in 1948, a committee including the United States, the United Kingdom, the Netherlands, Belgium, Luxembourg and France discussed the possibility of revising Germany’s western borders.
As a consequence, France finally got the forest area back.
But beware: for the committee that approved this rectification, it was only provisional. Only a treaty between the French state and the German state – which did not exist at that time – could make this annexation legally binding, with the necessary approval of the Americans and the British. This point was settled with the foundation of the Federal Republic of Germany. Ten years later, the process of reconciliation between the French and the Germans began.
In this context, on July 31, 1962, an agreement was signed by which the FRG recognized that the area of the Upper Mundat Forest belonged to France. But in the FRG the deputies of the Bundestag refused to ratify the agreement. To whom did these 680 hectares belong now? Neither the French, who hold on to this historically grown forest in Wissembourg, nor the Germans, who lost many territories after the war, seemed willing to let go. It was not until the 1980s, an idyllic time for the “Franco-German couple,” that the situation changed. At the height of their honeymoon, the former enemies actually tried to settle their old quarrels.
So the case of the Upper Mundat Forest came to the table, and it was the then French Foreign Minister Claude Cheysson who finally proposed to separate the question of sovereignty from the question of ownership. Therein lies the subtlety. On May 10, 1984, France promised to repeal the decree annexing the 680 hectares to France, and Germany undertook to recognize France’s ownership of the forest, together with its rights to the water sources and hunting.
Article B of the agreement states: “Free access to the forest and to the sources for the personnel in charge of their care and use.” Concretely, this means that the personnel of the Office National des Forêts, employed under French law, can cut wood in Germany and bring it to France and sell it with French VAT.
In fact, therein lies the originality of the agreement: Frenchmen are allowed to manage German territory. Although the part of the forest belongs to Germany, French law applies there. Is the Upper Mundat Forest, therefore, German or French? It is probably both – and that is quite charming.
