Non-discriminatory Third Party Access to the Gas Transmission ...

Commission adopts the codes through the comitology procedure. With regard to the codes; it is
determined that they must contribute to non-discrimination, effective competition and the
efficient functioning of the market in areas as rules regarding network connection rules and TPA
services rules. 69
With regard to compliance of the TSOs with the obligation to provide non-discriminatory TPA,
NRAs play a key role on national level. 70 NRAs have the duty to ensure compliance of TSOs
with the obligation concerning non-discriminatory TPA rules under the TGD and other relevant
community legislation as well as national law. 71 Article 40 (1a-1h) TGD clarifies the general
objectives of the NRA. The following objectives are interesting in the context of nondiscriminatory
TPA: NRAs must take all reasonable measures (such as a penalty) in pursuit of
(1a) helping to achieve developing competitive and properly functioning regional markets, (1b)
eliminating restrictions on trade in natural gas between MS, (1c) the development of secure,
reliable and efficient non-discriminatory systems, (1e) facilitating access to the network for new
production capacity, in particular removing barriers that could prevent access for new market
entrants and of gas from renewable sources. 72 ACER has the task to coordinate the action of the
NRAs. 73
§5. What is meant by discrimination in the context of the non-discriminatory TPA rules
The rules as stated above describe the non-discriminatory rules for TSOs, but do not answer the
question of what is meant by ‘discrimination’ in the context of the rules. The TGD and the SGR
do not provide an answer to this question and neither does jurisprudence of the Court of Justice
of the European Union (CJEU) given the lack of case law on the subject in this context. However,
69 Articles 4 and 6 Directive 2009/73/EC. According to Article 8 (6) SGR, the network code covers the following
areas that, amongst other things, must contribute to non-discrimination: (a) network security and reliability rules, (b)
network connection rules, (c) TPA services rules, (d) data exchange and settlement rules, (e) interoperability rules,
(f) operational procedures in an emergency, (g) capacity-allocation and congestion-management rules, (h) rules for
trading related to technical and operational provision of network access services and system balancing, (i)
transparency rules, (j) balancing rules including network-related rules on nominations procedure, rules for imbalance
charges and rules for operational balancing between transmission system operators’ systems, (k) rules regarding
harmonised transmission rate-structures, and (l) energy efficiency regarding gas networks.
70 Recital 30 Regulation 715/2009 and Article 41 (1b) Directive 2009/73/EC.
71 Article 41 Directive 2009/73/EC. Article 41 TGD notes twenty-one (21) duties and powers of the National
regulatory authorities.
72 Ibid, at Article 40 (1a-1e).
73 Article 1 Regulation No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an
Agency for the Cooperation of Energy Regulators.
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