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

1998 11 . Both Directives require Member States (MS) to gradually remove restrictions on the
movement of goods, services and capital in their monopolised energy markets. 12 A new package
of liberalisation Directives was adopted and became operational on July 1, 2004 for Electricity 13
and July 1, 2006 for Gas 14 . These Directives require MS to remove restrictions on free trade step
by step, leading to a liberalised EU energy market on July 1, 2007. The date when all customers
are free to choose their energy suppliers. 15 In order to realise such free trade in energy within and
across the MS, for two reasons non-discriminatory access to infrastructure services is a major
issue in the liberalisation process. 16 First, supply undertakings 17 cannot carry out their business
without access to energy infrastructure and for that reason they are dependent on whether or not
the system operators of the infrastructure provide access to them (services). 18 Second, supply
undertakings run the risk of being discriminated by a system operator. Since the focus of this
paper lies on transmission infrastructure, reasons for and categories of discriminatory behaviour
of TSOs of natural gas are discussed in paragraph 2. The dependency on TSOs and the risk of
discriminatory behaviour by them makes that equal competition between gas supply undertakings
is only possible in the first place, if non-discriminatory TPA to infrastructure is ensured. Such
competition is necessary to make it possible for customers to choose their energy supplier and
ultimately lower the prices and provide more choice and differentiated services for consumers
which are all objectives that the internal energy market aims to deliver since 1999. 19
11 Directive 98/30/EC of the European Parliament and the Council of 22 of June 1998 concerning common rules for
the internal market in natural gas.
12 Recitals 1 Directive 98/30/EC and Directive 96/92/EC.
13 Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules
for the internal market in electricity.
14 Directive 2003/55/EC.
15 Article 23 Directive 2003/55/EC and Article 21 Directive 2003/54/EC.
16 See for instance (gas): Recitals 11 and 22 and Articles 7(2) and 13-17 Directive 98/30/EC, recitals 2, 6-10, 13, 15
and 21 and Articles 8(1b),9, 13, 18 and 21 Directive 2003/55/EC, recitals 4,6,8,23,31 and Articles 9, 13(1b), 23, 35
Directive 2009/73/EC, recitals 6,10,14 and Articles 1 and 4(1a) Regulation 1775/2005 and recitals 7, 11 and 28 and
Articles 1 and 14(1a) Regulation 715/2009.
17 Article 2 (7 and 8) Directive 2009/73/EC: ‘Supply’ means in case of gas: the sale, including resale, of natural gas,
including LNG, to customers and ‘supply undertaking’ meaning any natural or legal person who carries out the
function of supply. Article 2 (18 and 19) Directive 2009/72/EC: ‘Supply’ means, in case of electricity: the sale,
including resale, of electricity to customers.
18 In this respect, the energy industry is characterised as a network industry. For information about competition issues
in network industries see NEWBERY, D.M. (1999) Privatization, Restructuring, and Regulation of Network
Utilities. Cambridge: The MIT Press and GERADIN, D. (2000) The Liberalization of State Monopolies in the
European Union and Beyond. London: Kluwer Law International.
19 Recitals 1 Directive 2009/73/EC and Directive 2009/72/EC: The internal market in natural gas/electricity, which
has been progressively implemented throughout the Community since 1999, aims to deliver real choice for all
consumers of the European Union, be they citizens or businesses, new business opportunities and more cross-border
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