obdri^qlov=i^t= THE LIBERALIZATION OF THE EUROPEAN ELECTRICITY MARKET AND THE CONTROVERSIAL IMPLEMENTATION OF THE FRENCH SYSTEM

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1 obdri^qlov=i^t= THE LIBERALIZATION OF THE Céline Ide November 2009 In view to implementing a fully functional single market where fair competition prevails, the European Parliament and the European Council issued several years ago two Directives (Directives n 2003/54 and n 2003/55 of June 26, 2003) 1 aimed at fully liberalizing the electricity and gas markets to the benefit of European consumers. Directive n 2003/54 lays down common rules for the generation, transmission, distribution and supply of electricity. It defines the rules relating to the organization and functioning of the electricity sector, the access to the electricity market, the criteria and procedures applicable to calls for tenders and to the granting of authorizations as well as the operation of systems. In France, the liberalization of the electricity market, initiated in July 2004 for business consumers, was finalized on July 1, 2007 with the entry into force of the Law of December 7, 2006 relating to the energy sector (the 2006 Law ). 2 The 2006 Law completes the transposition of the aforementioned Directives and lays down the rules governing electricity tariffs in France. The French legislation enacted in this context poses certain difficulties and generates criticisms from the European Commission and several electricity suppliers that claim that the regulated electricity tariffs are to be considered as a State aid, which is a violation of EU competition rules and principles. 1. Electricity tariffs under the 2006 Law 1.1. Electricity tariffs on the free market: Since July 1, 2007, any business or household electricity end-user is free to choose its electricity supplier for each of its consumption sites (Article 22, as amended, of the Law of February 10, 2000). 3 1 Directive 2003/54/EC of the European Parliament and of the Council of June 26, 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC Directive 2003/55/EC of the European Parliament and of the Council of June 26, 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC 2 Lawi n of December 7, 2006 relating to the energy sector 3 L Law n of February 10, 2000 on the modernization and development of the public electricity service 1

2 Pursuant to Article 1 of the Decree n of May 29, 2000 on eligibility of consumers, electricity consumption site means the establishment, identified through its number of registration with the register of companies and establishments, as defined in the aforementioned Decree of March 14, 1973, or, for sites that are not registered and have no registration number, the place where electricity is consumed. Buying electricity on the free market is not mandatory. Companies that choose to do so enter into an electricity supply contract at a price negotiated with the supplier of their choice. Tariffs on the free market are determined according to market prices. Before the 2006 Law, companies that chose the free market were not entitled to return to the regulated market Prolongation of regulated tariffs: The liberalization of the European electricity market has not entailed the end of regulated tariffs fixed by the French State. Pursuant to Article 3.2 of Directive 2003/54/EC, Member States may impose public services obligations upon electricity suppliers. These obligations may take the form of a regulation of the electricity tariffs. This possibility is, however, subject to several conditions. They must notably be clearly defined, transparent, non discriminatory, verifiable and shall guarantee equality of access for EU electricity companies to national consumers. As such, Article 4-I, as amended, of the Law of February 10, 2000 stipulates that consumers that have not chosen to purchase their electricity on the free market continue to be supplied at a regulated tariff by EDF or by their local public distributor, without having to take any actions or to make any amendment to their electricity supply contract The so-called TaRTAM or return tariffs: In order to cope with the significant increase in the price of electricity between 2003 and 2006, and considering the difference between the regulated tariffs (about 35 Euros per MWh) and the tariffs applied on the free market (about 70 Euros per MWh), the 2006 Law introduced the TaRTAM scheme (tarifs réglementés transitoires d ajustement du marché or provisional regulated tariffs for market adjustment ) that allows eligible consumers that opted for a market-based electricity tariff to switch back to a regulated tariff called return tariff. 2

3 Under the TaRTAM scheme, these consumers can ask to benefit temporarily from a return tariff fixed by the State, i.e. a standard regulated tariff increased by 10% to 23% (depending on the global features of the electricity end-user s site) but still lower than market-based tariffs. The implementation of this scheme requires only a change in the electricity supply contract clause that deals with electricity pricing. It does not impact the other clauses of the contract that remain in full force and effect. Until the Law for the Modernization of the Economy of August 4, 2008 (the 2008 Law ), 4 the TaRTAM scheme applied to the electricity supply contracts entered into by consumers that opted for the free market before July 1, It applied for a period of two years. Article 166 of the 2008 Law extended the period of application of the TaRTAM scheme up to July 1, 2010 and softened the eligibility criteria, thereby increasing the number of consumers benefiting therefrom. At the expiration of the extended period, the TaRTAM scheme will automatically be terminated and beneficiaries will have to negotiate a new tariff on the free market. 2. The stand of the European Commission with regard to the French regulated and return tariffs and the possible reform of the French system The European Commission considers that the prolongation of the regulated tariffs after July 1, 2007 is in contradiction with the objective to achieve a liberalized electricity market. It believes the regulated tariffs hamper competition and should remain an exception and even be eventually suppressed. Faced with the prolongation of the regulated tariffs in France, several electricity suppliers claim that the 2006 Law maintains or even re-creates a monopoly that prevents consumers from benefiting from a liberalized market. Such suppliers, therefore, requested the European Commission to further examine the issue. In this context, on June 13, 2007, the European Commission opened an in-depth investigation on the regulated tariffs and TarTAM tariffs applicable to companies classified as large and middle-sized electricity consumers. 4 Law n of August 4, 2008 for the Modernization of the Economy 3

4 Because of the extended application of the TaRTAM scheme provided for by the 2008 Law, the European Commission, concerned by the fact that the low French tariffs appear to give an economic advantage to large companies and distort competition in the EU Single Market, decided to widen the scope of the investigation launched in Fully aware that the prolongation of the regulated tariffs has created difficulties and that the TaRTAM scheme is not a viable solution in the long term, the French government is working on an alternative that would be acceptable by Brussels as well as by electricity suppliers and consumers that jointly call for a long-term vision. A reform of the organization of the French electricity market is currently debated. Following the publication in April 2009 of a report authored by the Commission chaired by Mr. Paul Champsau 5 that questioned the application of regulated tariffs to business consumers, the French Government issued a press release on September 15, This release set forth the principal objectives of the reform. The underlying idea is to favor competition through a system allowing all suppliers in the market to tap into EDF's "historic" nuclear power capacity at market conditions. This provisional system would be implemented in 2010 so as to enable all competing electricity suppliers to get their electricity from EDF at market price. Brussels welcomed the French reform proposals. Market dynamics that is expected to result from this new provisional system should lead to the removal of regulated tariffs for large customers in For the time being and despites the critics, regulated tariffs remain applicable in France and open to business consumers. 5 Commission charged with making recommendations to organize the electricity market that strike a balance between consumer protection, developing competition, and financing the capital expenditures necessary to produce electricity, develop the networks and encourage energy savings 4

5 Click here to consult the e-newsletter You can also copy this link: Articles published in Soulier s November 2009 Corporate Law: Transfer of (family) businesses by Guillaume Gascoin Labor and Employment: Non-competition clauses and non-solicitation of clientele clauses: companies must now treat them identically by Véronique Vincent Regulatory Law: The liberalization of the European electricity market and the controversial implementation of the French system by Céline Ide Business Immigration: The connection between business immigration and labor law by Sandra Vreedenburgh International Perspective: Competition Amendment Act signed into Law contribution authored by Webber Wentzel Competition Practice Group Soulier s e-newsletters are available on our website 5

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