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

With respect to option (A), the idea behind this is that if there are relevant differences between
system users, the system users require different handling by the TSO. The question that arises is:
when is a situation different and when is it similar To reveal discrimination it is necessary to
determine whether or not situations/system users are alike or rather ‘equivalent’ in the words of
the non-discrimination principle. This requires a comparison of the system users, taking their
relevant characteristics into account. If option A is true, then a TSO is required to take the
‘creditworthiness’ of system users into account by determining whether or not system users are
alike and whether or not they must be treated the same. However, Article 14 (3) SGR can also
mean that system users, in spite of their creditworthiness, are the same and must be treated as
such (option B). In that case, Article 14 (3) SGR provides a justification rule. The TGD and the
SGR and the documents of the Commission however do not mention the purpose of the
‘creditworthiness provision’. Furthermore, EU Electricity law cannot help in understanding the
creditworthiness provision, as it does not contain a rule similar to Article 14 (3) SGR. For this
reason the creditworthiness provision will be explained in light of the concept of nondiscriminatory
TPA as developed in this paper.
By looking at Article 14 (3) SGR, at first sight it seems to be based on option B, given the
conditions ‘where appropriate’ and ‘appropriate guarantees’. The reason for thinking this is that
the concept of justification is based on the principle of proportionality and the conditions ‘where
appropriate’ and ‘appropriate guarantees’ both imply a test similar to the proportionality test as
mentioned in paragraph 6.2. In spite of this, option B however, is not in line with ‘the concept of
non-discriminatory TPA’ 108 since equal treatment of system users with different creditworthiness
does not contribute to the objectives of the internal market in natural gas as required by the
purpose of non-discriminatory TPA. Moreover, there is a possibility that equal treatment of
system users with different creditworthiness (poor and sufficient) is in conflict with one of the
objectives of an internal market in gas, because of a financial insecure system, users may not
meet their intended transport obligations which may have a negative effect on security of supply.
In contrast, an equal treatment of new- and existing system users does contribute to the
108 Equality of system users to the extent necessary to achieve the objectives of the internal market in natural gas,
unless there are objective reasons for unequal treatment.
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