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

With respect to question (B), when is a guarantee appropriate, the following can be stated. A
guarantee is appropriate if the guarantee alters the fact of a system user not being economically
strong enough with respect to its intended transport obligations and thereby meets the conditions
with regard to furnishing financial securities. Furthermore, according to Article 14 (3) SGR, the
guarantee (i) shall not constitute undue market-entry barriers and shall be (ii) non-discriminatory,
(iii) transparent and (iv) proportionate. Regarding point (i), the purpose of a guarantee is to
furnish financial security and not to make it more difficult to enter the market. If particular
undertakings cannot meet the guarantee requirements (i.e. with a small capacity request)
compared to other third parties (i.e. with a large capacity request) the guarantee requirement
might include market-entry barriers for particular undertakings. Furthermore, the guarantee
must be non-discriminatory. This probably means that system users (equal to in the meaning of
the same risk category) must furnish equal financial securities. With respect to (c), TSOs must
operate in a transparent manner. According to Article 18 SGR, TSOs are required to make
detailed information regarding the services it offers and the relevant conditions applied public,
together with the technical information necessary for system users to gain effective network
access. It follows from ‘the relevant conditions applied’ that a TSO must make public detailed
information about the creditworthiness requirements that the TSO applies with respect to
offering/providing TPA services concerning:
- The creditworthiness requirements;
- How the analysis of the creditworthiness of a system user is performed;
- The possible outcome of the analysis (risk categories);
- The financial securities (guarantee) that must be furnished by risk category;
- The consequences of being not creditworthy and/or not able to furnish financial securities
through a guarantee.
The final requirement for a guarantee being appropriate is that the guarantee must be
proportionate. The financial securities that must be provided by a system user in the case of
‘poor’ creditworthiness must not go further than necessary to furnish financial security similar to
the test whether a system user is creditworthy enough: the decision of the TSO concerning the
requested financial securities through a guarantee is only justified if it pursues (a) an aim of EU
(Gas) law (e.g. security of supply), in (b) an effective way to its purpose (e.g. suitable
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