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

there are various definitions of the principle of proportionality by the CJEU. 104 However, some
would say that in order to meet the proportionality principle, three main elements of the principle
must be met, i.e. the tests of (1) effectiveness or suitability, (2) necessity or subsidiary and, (3)
proportionality stricto sensu. The first test includes that an act or measure must be suitable (or
effective) to achieve the aims pursued. 105 Furthermore, the act or measure must not go beyond
what is necessary for that purpose (necessity or subsidiary test). 106 The last test balances the
negative effects (losses) of a measure against the positives effects (benefits) of it, for instance:
will the benefits for public health be larger than the losses to person’s/undertakings rights and
interests 107 In the case of the transmission context it implies that the benefits of the different
treatment of similar system users by the TSO must equal out the losses of such treatment. In this
particular case the test would, however, make no sense as this leads to a regime in which a TSO
is allowed to refuse access to system users who would not ‘add’ anything in the first place. Now,
it can be stated that a TSO must meet the following two elements if it treats similar system users
differently on the basis of objective criteria that serves one or more of the objectives of the TGD
and SGR:
1. The different treatment of similar system users must be suitable to achieve the pursued
aims;
2. There are no less restrictive means capable of producing the same results as the applied
different treatment.
§7. Case study: Is a TSO allowed to treat its system users differently based on their
creditworthiness
This paragraph applies the non-discriminatory TPA rule in practice by examining whether or not
it is in line with the non-discriminatory TPA principle if a TSO treats its system users differently
based on their creditworthiness.
104 CRAIG, P. (2006) EU Administrative Law. Oxford; New York: Oxford University Press, p. 681 and TRIMIDAS,
T. (2006) The general principles of EU law. Oxford; New York: Oxford University Press., p.137.
105 Clean Car Auto service (Case C-350/96,) (1998), paragraph 34 and Radlberger Getränkegesellschaft mbH & Co.
(Case C-309/02) [2004], paragraph. 79.
106 Ibid.
107 ABNA (Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04) [2005], paragraphs 82-83.
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