A draft text of the Energy Efficiency Directive, produced by Denmark and released yesterday, has no binding targets, nor any “meaningful review” in 2014 which could have triggered legal action.
It does contain a voluntary imperative on member states to force their energy companies to make a total of 1.5% energy savings each year.
The Danish presidency is steering through the legislation and has made it the top priority of its six month tenure.
The issue will be on the agenda of the European Energy Council in Brussels on 14 February, which is to consider the contribution of energy efficiency and renewable energy to growth and jobs.
At this meeting, the Presidency will report on progress of negotiations over the draft Directive, and during lunch Ministers will discuss potential areas of concern in terms of scope, requirements and implementation, and how they can be best addressed, before negotiations begin with the European Parliament.
In advance of the meeting, Energy Minister Charles Hendry has issued a statement saying, "We support the general level of ambition in the draft Directive although we have concerns over the level of prescription. We are pleased with the direction of discussions in Council, which reflects these concerns."
If "prescriptive" is an interpretation of "legally binding", then this stance is in contrast to former Energy Secretary Chris Huhne's previous line, which indicated support for the Directive's target to be enshrined in law.
As Ed Davey's energy efficiency team gets down to work, getting the correct wording of the Directive is likely to be high on his agenda, as UK industry will have concerns over any unilateral investments in energy saving it would have to make that could give it competitive disadvantage in Europe as a whole.
The timing is tight, since, following next week's meeting, the Parliament committee on Industry, Research and Energy (ITRE) votes on the Energy Efficiency Directive on 28 February, with the whole European Parliament plenary vote taking place a month later.
The draft text says that the 1.5% savings would have to accumulate each year, in contrast to existing legislation, such as the Energy Service Directive (2006), which allows member states to count savings from the previous decade towards their annual targets.
However, the text includes an option for member states to count savings from the energy transformation sector towards the target.
This point was criticised by the campaign group Climate Action Network-Europe. “This particular target was meant to trigger savings at the end use, not in the transformation sector,” said spokeswoman Erica Hope.
"Europe's GDP will be higher if the 20% savings target is met, according to the Commission's Impact Assessment accompanying the EED," she continued. "This is besides the other benefits listed in the energy efficiency plan such as, for example, two million new jobs and €1,000 annual savings on energy bills."
The European Commission had asked for a 2014 review to be built into the Energy Efficiency Directive, at which point, if certain criteria had not be met, mandatory national targets would be introduced.
The Danish text fails to include this, instead introducing weaker assessment points in 2013 and 2015 deadline, which would simply determine whether the European Union is on track to achieve its 20% by 2020 energy efficiency target.
The Danish draft takes account of the previous, Polish presidency’s concerns, that a directive would be costly to their coal-dependent energy regime, by curbing industry interference over how member states' individual targets are distributed.
The draft represents a victory for the lobbying power of conservatives such as Business Europe and German Liberal members of the European Parliament, who oppose binding targets and argue that market forces, rather than regulators, should dictate policies.
A grouping of Conservative politicians had called for the 20% target to be achieved either through a cut in primary energy use of 368 million tonnes of oil equivalent (Mtoe) or by a cut in EU energy intensity.
But this would be unacceptable to Europe's more coal-dependent, less rich nations, while richer ones like Germany are already closer to the target.
"An energy intensity target is a lose-lose situation," said Brook Riley, climate justice and energy campaigner for Friends of the Earth. "It might not provide an adequate incentive to improve further."
The UK is well placed to meet the concerns of the EED already. Buildings consume 40% of total final energy in the EU, and improvements in their performance will form a core part of the Directive.
The Green Deal and consequent expansion of the use of Energy Performance Certificates will be crucial to achieving reductions.
Financing the measures
On the issue of financing the Directive's measures, an amendment to the draft Energy Efficiency Directive being considered would mandate the set aside of 1.4 billion emission allowances (EUAs).
This would, according to a submission by oil company Shell, push up the EU-ETS carbon price to around €23/tCO2.
Since this could also generate extra revenues for governments, which could be invested in low-carbon technology, the extra value created by the increase in price is expected to be more than the value of the allowances that would be set aside.
The amendment is intended "to restore the price mechanism to levels envisaged in the impact assessment on which basis [the energy efficiency directive] was agreed".
Fifteen companies and lobby groups, including Dong Energy, Alstom, Vestas and Shell, wrote to the president of the EU Commission in support of the amendment.
The Commission has so far shied away from interfering in the carbon credits market, although policymakers said yesterday that carbon prices should rise to no higher than 30 euros through a one-off market intervention, while another coalition of industrial high carbon emitters urged European Parliamentarians to reject any proposal to give the European Commission the power to slash the supply of carbon permits.