The Energy Regulation and Markets Review - Stikeman Elliott

Germany
requirements (see Section II.ii, infra). The BNetzA shall then inform the Commission
and, as the case may be, the BMWi in order to reassess its validity. As a consequence, the
BNetzA may revoke, amend or impose conditions on the certification. Further, as regards
the certification in relation to third countries, the BMWi may revoke its assessments on
the security of energy supply in Germany and the EU.
Another specific regulatory reporting obligation exists in case of a (full or partial)
transfer of an energy supply network or the merger of different energy supply networks
under the network tariff regime of incentive regulation. In such scenario, the BNetzA
must be informed in order to transfer the original revenue caps for each energy supply
network to the acquiring network operator, or, in case of a merger, to combine the
different revenue caps into one single revenue cap.
III
TRANSMISSION/TRANSPORTATION and DISTRIBUTION
SERVICES
i Vertical integration and unbundling
Under the EnWG, full ownership unbundling is only required if the vertically integrated
energy supplier chooses not to set up an ISO or ITO model. Both the ISO and the ITO
models may only be implemented under the condition that the transmission network
belonged to a vertically integrated undertaking on 3 September 2009. However, as the
ITO model imposes the least structural requirements, it has in fact been chosen by all
vertically integrated energy suppliers in Germany; in contrast, the ISO model is of no
practical relevance in Germany. However, if the transmission network was acquired by
investors (e.g., infrastructure or pension funds) the option of full ownership unbundling
may also be appropriate.
In both the full ownership unbundling and the ITO model, the TSO remains as the
direct or indirect (through shareholding in another company) owner of the transmission
network assets; co-ownership is sufficient. In principle, the ownership requirement no
longer allows for the lease of infrastructure assets that German TSOs have historically
practised to a great extent. However, in its guidelines on the certification process the
BNetzA indicates that it will accept a lease model under certain circumstances if:
a the lessee exerts an influence over the leased assets that is comparable with the
position of the owner of such assets;
b part of the transmission network is leased from another TSO, which itself is
subject to unbundling requirements; and
c the leased objects do not constitute a significant part of the entire transmission
system, but rather play a subordinate role.
While under the ITO model the TSO may remain part of the vertically integrated
energy utility, the respective subsidiaries in charge of the transmission operation need
to be legally independent, operating under its own brand name and be organised under
a strictly autonomous management. Hence, vertically integrated energy suppliers are
obliged to ensure that the ITO is granted effective decision-making rights, independent
from the vertically integrated undertaking, with respect to assets necessary to operate,
maintain and develop the transmission network.
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