tso certification: specific issues
TRANSCRIPT
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Certification of TSOs
Opinions of the European Commission
Brief overview
Disputed issues
Thomas Starlinger
Content
Background
General
Definition of the VIU
Core tasks of a TSO
Outsourcing
Service provision of the VIU to the ITO
Definition of VIU – production assets
ITO
Independence of the board members
Participation in another transmission system
Ownership
ITO
ISO
Thomas Starlinger, 14.3.2014 3
Background
Third Energy Package 2009
Unbundling of TSOs OU
ISO
ITO
ITO +
Deadline 03.03.2012
77 opinions issued from November 2011 until December 2013
• Nordeuropäische Erdgasleitung: 3 September 2009
• Scottish Transmission companies: ITO+
Thomas Starlinger, 14.3.2014 4
Nordeuropäischen Erdgas-Leitung (NEL), C(2013) 7019, 18.10.2013, Nr. 74. TSOs in Scotland: C(2012) 3284, 14.5.2012, Nr. 14.
Definition of the VIU
Art 2 (20) Directive 2009/73/EC (Art 2 (21) Directive 2009/72/EC identical)
a VIU is “a natural gas undertaking or a group of natural gas undertakings
where the same person or the same persons are entitled, directly or
indirectly, to exercise control, and where the undertaking or group of
undertakings perform at least one of the functions of transmission,
distribution, LNG or storage, and at least one of the functions of production
or supply of natural gas”.
“Open Grid Europe GmbH”
Part of the VIU is every associated entity regardless of
the scope of their business
Thomas Starlinger, 14.3.2014 5
Open Grid Europe GmbH, C(2013) 6444, 30.9.2013, Nr. 71.
Core tasks of a TSO
Art 13 (1) (a) Directive 2009/73/EC (Art 12 (1)
(a) Directive 2009/72/EC
Each TSO shall “operate, maintain and develop under economic
conditions secure, reliable and efficient transmission […] facilities
to secure an open market, with due regard to the environment,
ensure adequate means to meet service obligations”
outsourcing?
Thomas Starlinger, 14.3.2014 6
Outsourcing?
OU
“Vorarlberger Übertragungsnetze GmbH”
no sub-contracting of core tasks
should carry out „administration of the transmission system“
and „control room services“ itself
“Premier Transmission Limited”
“… have sufficient resources to oversee, control and provide
instructions to the subcontractor. Only entities which meet the
unbundling requirements for gas transmission system operation
should be eligible to provide such services.”
Thomas Starlinger, 14.3.2014 7
Vorarlberger Übertragungsnetze GmbH, C(2012) 2244, 29.3.2012, Nr. 9. Premier Transmission Limited, C(2013) 4657, 16.7.2013, Nr. 64.
Outsourcing?
“Premier Transmission Limited”
“either if the transmission system is operated jointly as part of a
wider transmission system or
if a fully resourced transmission system operator makes an
independent commercial decision to sub-contract services on
efficiency grounds.”
Addition according to the opinion on the “Moyle Interconnector”:
“Only other TSOs which meet the unbundling requirements …
can provide this joint operation. … However it remains important
that each … continues to have the necessary powers and
resources both to develop their own system and satisfy
themselves that the operation of their system is being carried out
in a non-discriminatory way.”
Thomas Starlinger, 14.3.2014 8
Premier Transmission Limited, C(2013) 4657, 16.7.2013, Nr. 64. Moyle Interconnector Limited, C(2013) 4398, 8.7.2013, Nr. 63.
Outsourcing?
ISO
„responsible“ for third party access, operation,
maintenance and development of the pipeline
system
“TAG”
supervision and independence of the subcontractor
not in a way that owner is exercising core tasks
Thomas Starlinger, 14.3.2014 9
Trans Austria Gasleitung GmbH, C(2013) 649, 4.2.2013, Nr. 43.
Outsourcing?
ITO
“Only if the ITO has employed a sufficient number of
staff members for day-to-day handling of these
activities may it, in specific circumstances and by way
of exception, conclude contracts with third-party
service providers for legal, IT, or accountancy
services. The same applies to specific services
relating to, for example, the development and repair
of the network” (Interpretative Note)
Thomas Starlinger, 14.3.2014 10
Outsourcing?
ITO
“BOG“
“… must have all the necessary resources to ensure that it can
adequately fulfill its tasks as an ITO independently. In the present
case, the Commission observes that key functions are not
exercised by BOG. De facto, the operation of WAG is split over
BOG and GCA.”
“Thyssengas“
“The Commission furthermore agrees that the aforementioned
services are to be carried out by the TSO itself as the assessment
and decisions regarding investments and infrastructure projects
constitute a core task of a TSO and should be taken without being
potentially influenced by undertakings with supply or production
interests”.
Thomas Starlinger, 14.3.2014 11
Baumgarten-Oberkappel Gasleitungsges. m. b. H, C(2013) 963, 15.2.2013, Nr. 47. Thyssengas GmbH, C(2013) 570, 30.1.2013, Nr. 42
Service provision of the VIU to the ITO
Art 17 (1) (c) Directives 2009/72(73)/EC
General prohibtion
“exceptional circumstances“
Such derogation should be
construed narrowly,
not go beyond what is strictly necessary to protect
overriding interests,
no other service provider,
transitional nature and
transactions occur at arm’s length.
Thomas Starlinger, 14.3.2014 12
Service provision of the VIU to the ITO
Open Grid Europe GmbH
• Assessment depends on the relation of the task to
the TSO activities
• “In principle however, tasks that are not closely related
to the transmission activity raise less of a concern,
because in such cases the risk of compromising the
independent network operation is small.”
Thomas Starlinger, 14.3.2014 13
Open Grid Europe GmbH, C(2013) 6444, 30.9.2013, Nr. 71.
Definition of VIU – production assets
Geographic scope
E.g. participations located in the US
(Swedegas (OU), 50 Hertz (OU), National Grid (OU))
Significance
Swedegas: waste treatment company – limited
quantities of electricity as a by-product, pre-
established prices (similar 50 Hertz)
Red Eléctrica (OU): regulated framework, small size
(0.1375%)
Thomas Starlinger, 14.3.2014 14
Swedegas AB, C(2012) 3009, 30.4.2012, Nr. 13. 50 Hertz Transmission GmbH, C(2012) 6260, 6.9.2012, Nr. 21.
National Grid Companies, C(2012) 2735, 19.4.2012, Nr. 10. Red Eléctrica de España, S.A.U., C(2012) 3526, 24.5.2012, Nr. 15.
Potential for discrimination?
Participation in storage facilities, activities in
exchanges
• Energinet.dk (OU): “ownership and operation of a gas
storage facility falls outside of the scope of relevant
activities listed in Article 9(1)b(ii) juncto Article 9(3)”
• Operation of power and gas exchanges cannot be
qualified as “supply”
Thomas Starlinger, 14.3.2014 15
Energinet.dk, C(2012) 88, 9.1.2012, Nr. 6
ITO - Independence of the
Management/Supervisory Board
Art 19 (3) Directive 2009/72(73)/EC – cooling on 3
years
Austrian Gas Act 2011, German EnWG: only applicable
to appointments after March 3, 2012
Commission: not in line with the Directive, independence
has to be ensured
German EnWG interests in VIU can be kept by the
management until March 31, 2016
Commission: not in line with Directive, financial interests
should at least be given in the hands of a trusteeThomas Starlinger, 14.3.2014 16
Participation of an ITO in another
transmission system?Objective of unbundling?
Effective and efficient separation of networks from
activities in production and supply
“BOG” in corporate law terms, the ITO remains part of the
VIU, therefore the ITO-model can be chosen
with regard to the prohibition of the rendering of
services the shareholder GCA as effectively
unbundled ITO should not be considered as ordinary
“other part” of the VIU; the possibility of a conflict of
interest is minimized
Thomas Starlinger, 14.3.2014 17
Baumgarten-Oberkappel Gasleitungsges. m. b. H, C(2013) 963, 15.2.2013, Nr. 47.
ITO - Ownership of network
„Bruchteilseigentum“
• Co-ownership is possible, if co-owner has the same
degree of independence as the TSO which co-owns.
• Bundesnetzagentur: TSO has to be able to act both
legally and de facto in a manner comparable to that
of an owner.
Pipe-in-Pipe concept (jordgas, GRTgas)
• Pipeline is virtually splitted into several pipelines
• Joint control and rights of use and disposal
equivalent to those of an owner
• Independent operation and development
jordgas Transport GmbH, C(2012) 6255, 6.9.2012 , Nr. 27. Open Grid Europe GmbH, C(2013) 6444, 30.9.2013, Nr. 71
GRTgaz Deutschland GmbH, C(2012) 6257, 6.9.2012, Nr. 26 Thyssengas GmbH, C(2013) 570, 30.1.2013, Nr. 42
Gasunie Deutschland Transport Services GmbH, C (2012) 9102, 3.12.2012, Nr. 37
Thomas Starlinger, 14.3.2014 18
ISO - Partial ownership of the
transmission system
„Transelectrica“ and „Transgaz“
• Transmission system partially owned by the state
and by the TSO
• „not the typical background for which the ISO
model was established“
• Conclusion that ISO-model is not appropriate for
such a situation
• Preference of the OU-model
Thomas Starlinger, 14.3.2014 19
Companiei Naţionale de Transport al Energiei Electrice “Transelectrica” S.A. , C(2013) 6891, 14.10.2013, Nr. 73.
Societatea Națională de Transport Gaze Naturale Transgaz S.A., C(2013) 8485, 25.11.2013, Nr. 76.
Thomas Starlinger
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