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

Objective of this study
Article 13 (1b) Third Gas Directive 1 (TGD) requires the operator(s) of the national Transmission
System of Gas (TSOs) to refrain from discriminating amongst the users of the transmission
system (system users 2 ) and classes of system users, particularly in favour of its related
undertakings. Article 14 (1a) Second Gas Regulation 3 (SGR) more or less repeats this rule. It
requires TSOs to offer TPA services to all network users 4 . For the purpose of this study, both
requirements fall, within the concept of non-discriminatory third party access (TPA). In this
study non-discriminatory TPA is described as:
The TSOs obligation to refrain from discriminating amongst system users/network users (who are
either seeking -or have gained- access to the transmission system) in the terms and conditions of
services offered or provided.
The two primary questions of this study are: (1) what is meant by discrimination in the context of
Article 13 (1b) TGD and Article 14 (1a) SGR and (2) does a TSO act contrary to the TGD and
the SGR if it treats system users/network users differently, based on their creditworthiness The
choice to focus on creditworthiness was primarily inspired by the fact that most TSOs asses the
creditworthiness of system users by which they conclude agreements. If the system user is
insufficient in his creditworthiness, TSOs may refuse to provide TPA services or require
* Ph.D.-Researcher at the University of Groningen and staff member of the Groningen Centre of Energy Law. My
research focuses on the content and application of the principle of non-discrimination contained in EU gas law.
Article 13 (1b) Third Gas Directive requires Transmission System Operators (TSOs) to refrain from discriminating
between users of the transmission system. I examine how TSOs in the Netherlands, Germany and the United
Kingdom carry out this obligation and what the implications are. The question whether or not discrimination between
system users can be justified is an important part of my research. Within the context of my PHD research, this
contribution to the third annual conference of CRNI belongs to that series of studies I perform to clarify whether or
not TSOs are allowed to discriminate between system users and to what extent. Thanks to Hans Vedder, Martha
Roggenkamp, Marijn Holwerda, Nichola Cho and Erik Gottschal for the helpful suggestions; the usual disclaimer
applies. Thanks also to De Nederlandse Vereniging voor Energierecht, Energy Delta Institute and NV Nederlandse
Gasunie for providing me with the opportunity to conduct research on this topic.
1 Directive 2009/73/EC of the European Parliament and the Council of 12 July 2009 concerning common rules for
the internal market in natural gas.
2 Ibid, at Article 2 (23) is worded as follows: ‘system user’ means a natural or legal person supplying to or being
supplied by, the system. In this context, also see Article 2 (1.13): ‘system’ refers to transmission networks owned
and/or operated by a natural gas undertaking, including linepack and its facilities supplying ancillary services and
those of related undertakings necessary for providing access to transmission.
3 Regulation 715/2009 of the European Parliament and the Council of 28 September 2005 on conditions for access to
the natural gas transmission networks.
4 Ibid, at Article 2 (11), is worded as follows: ‘network user’ means a customer or a potential customer of a TSO, and
TSOs themselves in so far as it is necessary for them to carry out their functions in relation to transmission. The
terms ‘system users’ and ‘network users’ are used interchangeably in this study. Network users and system users are
persons (mostly undertakings) who are either seeking, or have gained, access to the transmission network.
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