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

discrimination TPA. If there are relevant differences between system users in this sense, the
system users require different handling by the TSO. This requires a comparison of the system
users, taking their relevant characteristics into account. The issue of comparability of system
users acquires particular importance in cases in which there are no grounds for justification of
different treatment, because in those cases only the argument of non-comparability presents any
possibility to avoid a finding in which different treatment constitutes discrimination. 91
The question is whether all system users of the transmission system must be treated as one group
to avoid violation of the non-discriminatory TPA principle or whether the system users can
possibly be divided into more groups. The TGD and the SGR do not provide a clear answer to the
previous questions. The TGD does, however, state that TSOs must refrain from discriminating
amongst system users or classes of system users, particularly in favour of their related
undertakings. 92 The part ‘classes of system users’ leaves room for TSOs to divide system users in
different groups. This possibility is confirmed in a communication from the Commission 93 : ‘Such
rates may be divided into objective classes of customers, providing that this does not result in
discrimination.’ Nevertheless, whether or not TSOs have the possibility to divide system users in
different groups depends on how national law transposes this possibility. As mentioned above,
you cannot tar everyone with the same brush. If there are relevant differences between system
users, they require different handling. This paper does not seek after what all relevant differences
between system users can be in order to nail down when system users require equal or different
handling. It does, however, seek after one characteristic of system users, namely their
creditworthiness. Perhaps that creditworthiness of system users is a relevant characteristic a TSO
can take into account in determining whether system users/network users are similar or not and,
thus, should be treated equally or not. This will be further examined in paragraph 7.
§6.2 When is different treatment of similar system users justified
91 Ibid.
92 Article 13 Directive 2009/73/EC.
93 EUROPEAN COMMISSION (2001) Completing the internal energy market: Communication from the European
Commission to the Council and the European Parliament (COM (2001) 125 final). Brussels.
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