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

discrimination. 83 It matters little which description is used; the ‘principle of equal treatment’ or
the ‘principle of non-discrimination’. 84 They are simply two tag-names for a single general
principle of EU law, which prohibits both treating similar situations differently and treating
different situations in the same way, unless there are objective reasons to do so. 85 The general
principle of equal treatment means that there should be ‘no discrimination’ whatsoever, either
directly or indirectly. 86 Non-discriminatory TPA as a specific expression of the principle of
equality must not be interpreted too strictly in the view of the general principal of equality/nondiscrimination.
It should not go any further than necessary for achieving the true purpose of nondiscriminatory
TPA. As mentioned before, non-discriminatory TPA aims to create competition
between gas supply undertakings in order to ultimately deliver lower prices, more choice and
differentiated services for consumers as the internal energy market aims to deliver. The latter
implies the following: as long as treating similar system users differently and treating different
system users in the same way is not contrary to the objectives of the internal market in natural
gas, it is not forbidden. Following from this is that the TGD and the SGR do not strive to reach
absolute equality of system users. Non-discriminatory TPA aims at equality of system users to
the extent necessary to achieve the objectives of the internal market in natural gas. Applying the
foregoing within the EU gas transmission context it means that the concept of non-discriminatory
TPA involves:
Treating similar system users similar and treating different system users different to the
extent necessary in order to achieve the objectives of the internal market in natural gas,
unless there are objective reasons for unequal treatment.
83 Cityworks (Case C-439/06) [2008], paragraph 42, VEMW and Others (Case C-17/03) [2005], paragraphs 42 to 46.
84 Ibid.
85 Ibid.
86 P. v S. (Case C-13/94) [1996], paragraph 17 and Dimossia Epicheirissi Ilektrismou (Case C-147/95) [1977],
paragraphs 25-29, Kathleen Hill and Ann Stapleton (Case C-243/95) [1996], paragraph 44 and De Weerd (Case C-
343/92) [1994], paragraph 33. Nonetheless, sometimes indirect discrimination can be objectively justified.
Distinguishing between direct and indirect discrimination is only of importance in the case of non-discrimination
rules where the objectives are laid down explicitly in the non-discrimination rule itself (i.e. non-discrimination on the
basis of nationality as far as employment is concerned). In the case of nationality discrimination, the CJEU has
consistently held that the equal treatment rule prohibits not only overt/direct discrimination by reason of nationality
but also all covert/indirect forms of discrimination which, by the application of other distinguishing criteria, lead in
fact to the same result. It is otherwise only if those provisions are justified by objective considerations independent of
the objective of the non-discrimination rule itself (i.e. nationality of the workers), and if they are proportionate to the
legitimate aim pursued. See: Sotgiu (Case 152/73) [1974] and O’Flynn (Case C-237/94) [1996], paragraph 19). Since
the objectives of the non-discriminatory TPA rule are not laid down explicitly in the non-discrimination rule itself;
all forms of discrimination are contrary to EU gas law.
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