This post was originally published on EU Law Live.
Simon Vanhove*
Photo credit: DLR,
CC-BY 3.0
The European Union’s ambition to decarbonise its energy system has
elevated renewable hydrogen to a strategic priority. For sectors that cannot
easily electrify—such as steelmaking, chemicals, and heavy transport—renewable
hydrogen and its derivatives (ammonia, methanol) are widely viewed as
indispensable. Yet the Union’s regulatory architecture is characterised by a
striking tension: strict supply‑side criteria for renewable fuels of non‑biological
origin (RFNBOs) coexist with ambitious demand‑side quotas in the Renewable Energy Directive (RED III). This mismatch is not
merely technical. As the European Court of Auditors’ Special
Report 11/2024 noted, the framework is mostly in place. Still, complexity, delays, and
weak investment signals threaten the ramp‑up required to meet the targets by
the regulatory deadlines. The legal instruments used are not helping to provide
legal certainty, either.
Policy Backdrop
Hydrogen entered the Union’s canon with the 2020 Hydrogen Strategy (COM/2020/301). That Communication
anchored hydrogen in the European Green Deal’s decarbonisation pathway,
prioritising renewable production and mapping a phased scale‑up of
electrolysers (6 GW by 2024; 40 GW by 2030). In 2022, Russia’s aggression
against Ukraine super‑charged hydrogen’s political salience. The REPowerEU Plan (COM/2022/230) endorsed the now‑familiar
twin target of 10 million tonnes of domestic renewable hydrogen and 10 million
tonnes of imports by 2030, knitting energy security narratives to decarbonisation.
The legal linchpin for hydrogen sits in RED III: binding RFNBO uptake in
industry and transport, plus a framework of technical rules that define what
qualifies as “renewable” hydrogen.
From Delegated Acts to Q&A Documents
Two 2023 delegated acts do the heavy lifting. Delegated Regulation (EU) 2023/1184 elaborates the ‘additionality’
and spatio‑temporal correlation requirements linking hydrogen electrolysis to
renewable electricity. Delegated Regulation (EU) 2023/1185 sets the greenhouse‑gas
(GHG) accounting methodology and the 70% savings threshold. To further
operationalise intricate RFNBO criteria, the Commission published web‑based Q&A documents, first in September 2023,
and again in March 2024. They are explicitly styled as “living tools,”
disclaiming binding effect and reserving freedom to argue otherwise before the
Court of Justice. Crucially, they are not adopted in a formal procedure, not
published in the Official Journal, and earlier versions are not systematically
archived for comparison. Matching them with the legal acts listed in Article 288 TFEU is difficult, especially
since these documents are clearly not Commission communications, such as the
related Guidance on targets for the consumption
of RFNBOs of September 2024.
Still, these Q&As influence behaviour, because market actors treat
them as signals of how authorities will read compliance. That mix—de facto
steering, de jure disclaimers—sits uneasily with transparency and legal
certainty. It also tangles with the doctrine of legitimate expectations. The
Court protects expectations only where assurances are ‘precise, unconditional
and consistent,’ and even then expects recipients to stay ‘prudent and alert,’
as the Court indicated in Falqui v. Parliament (C‑391/21 P, paras 105-106).
Recitals as Implicit Carve-Outs
Legal uncertainty does no stop there. Two recitals of RED III are used
as stopgaps in the EU’s hydrogen policy.
‘(62) The Union’s hydrogen strategy, […] recognises
the role of existing hydrogen production plants retrofitted to reduce their
greenhouse gas emissions in achieving the increased 2030 climate ambition. In
light of that strategy, and within the framework of the call for projects
organised under the Union’s Innovation Fund […], early movers have taken
investment decisions with a view to retrofitting pre-existing hydrogen
production facilities based on steam methane reforming technology with the aim
of decarbonising hydrogen production. For the purpose of calculating the
denominator in the contribution of renewable fuels of non-biological origin
used for final energy and non-energy purposes in industry, hydrogen produced in
retrofitted production facilities based on steam methane reforming technology
for which a Commission decision with a view to the award of a grant under the
Innovation Fund has been published before the date of entry into force of this
Directive and that achieve an average greenhouse gas reduction of 70 % on an
annual basis, should not be taken into account.’
Recital 62 acknowledges early movers: fossil hydrogen plants retrofitted
with carbon capture, often with Innovation Fund support. It suggests that
hydrogen produced there (meeting a 70% GHG reduction) should be excluded from
the denominator when computing industrial RFNBO uptake, significantly relieving
pressure on governments to achieve those targets. Thus, pre-existing investments
(and subsidies) may be salvaged.
Recital 63, then, recognises the specific challenges in integrated
ammonia facilities.
‘(63) Moreover, it should be acknowledged that the
replacement of hydrogen produced from the steam methane reforming process might
pose specific challenges for certain existing integrated ammonia production
facilities. It would necessitate the rebuilding of such production facilities,
which would require a substantial effort by Member States depending on their
specific national circumstances and the structure of their energy supply.’
In contrast to the preceding recital, this recital does not suggest an
approach to accommodate those ‘specific challenges’, let alone any criteria or
conditions for support. A Commission
statement recorded in Council minutes upon final voting of the
RED III indicates that these facilities could be exempted, essentially on
case-by-case discretion of the Commission. Amortisation and final investment
decisions may be relevant considerations in that respect. The Commission thus
pulls itself up by its own bootstraps, installing an ad hoc
grandfathering regime based on a single recital, that, at best, acknowledges
economic hardship.
As guardian of the Treaties, the Commission oversees implementation and
may adopt delegated or implementing acts where empowered to do so. There is,
however, no general executive prerogative to carve out obligations when not duly
authorised by the co‑legislators. In the case of recital 62 of RED III, the
conditions for exclusion appear only in the preamble – not the provisions of
the Directive. A lawful derogation would require an explicit empowerment under Article 290 TFEU and respect for the ‘essential
elements’ doctrine. Absent that mandate, guidance cannot rewrite targets by
administrative interpretation. The same caution applies to recital 63, where
the wording is even more nebulous. If transitional flexibilities are
politically necessary, the correct path is to legislate them—be it by amending
RED III or by a narrow implementing act where authorised. Anything less is
convenient in the short run but comes at the expense of legal certainty and
equal treatment.
The politics are intelligible: early investments and hard‑to‑retrofit
facilities pose transition dilemmas. The legal technique is more problematic.
Recitals have interpretative value; they do not, however, derogate from
operative provisions. Nor can unilateral declarations in Council minutes alter
the legal nature of a directive. The Court’s long‑standing guidance—famously in
Antonissen (C‑292/89, para. 18)—makes clear
that such declarations cannot drive interpretation where the text is silent. If
the legislator wants exemptions, they belong in the articles. Where there is no
legal mandate, it is difficult to argue for Commission discretion at all.
Could Q&A documents or Council statements generate protected
expectations? Sometimes—if the assurance is precise, unconditional, consistent,
and within the administration’s discretion. Where a Q&A simply explains how
the Commission will conduct its own assessments, reliance may be reasonable.
However, where it delivers an interpretation of EU law, even inadvertently, the
disclaimer and the Court’s interpretive monopoly cut the other way. The
question then remains what those Q&A documents bring to the table.
Why This Matters: Climate Governance by Law
Governing through Q&As, recitals, and unilateral declarations may
buy flexibility in a fast‑moving technological field, but it blurs lines of accountability
and invites uneven implementation across Member States. The better course is to
anchor exemptions and obligations in law, with explicit delegations,
consultation, impact assessment, and judicial review. That path is slower. It
is also the one most likely to reassure investors, safeguard equal treatment,
and maintain the rule of law as the green transition’s backbone rather than its
afterthought.
The EU’s hydrogen economy will not be built by ambition alone. It
requires a legally coherent framework that reconciles tight production rules
with credible uptake trajectories, robust certification, bankable support
schemes, and predictable enforcement. The toolkit already exists: RED III sets
the targets and the 2023 delegated acts define what counts as renewable.
Ultimately, legality depends on the separation of instruments: laws in the
articles; context in the recitals; implementation via empowered acts;
explanation in guidance; and politics in press lines.
*Dr.
Simon Vanhove
is a postdoctoral researcher in energy law at Tilburg University, where he is
affiliated with both the Law School’s department on Technology, Law and Society
(TILT) and the Academic Collaborative Centre on Energy and Climate. He
acknowledges funding of the Belgian federal Ministry of economic affairs under
the Energy Transition Fund’s project MuSe (Molecules at Sea) 2023-2025.
