Bernhard Painz, Head of Gas Department, E-Control
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1 Unbundling: Status and Consequences Bernhard Painz, Head of Gas Department, E-Control
2 Agenda Liberalization of Energy Markets / Unbundling Distribution System Operator (DSO) New Corporate Identity Transmission System Operator (TSO) Cases Consequences Penalties / Offences , Vienna Vienna Forum on Energy Law 2
3 Liberalization of Energy Markets Unbundling 3
4 (Un-)Bundling? 4 4
5 Unbundling! Before Liberalization: After Liberalization in 2001: All from one source One undertaking Vertically Integrated Undertaking (VIU) Supplier = selectable TSO/DSO Monopolist Independent Prod./Supply Production VIU Supply Grid (transmission and distribution system operator TSO/DSO) , Vienna Vienna Forum on Energy Law 5
6 Unbundling for DSO 6
7 Unbundling: DSO (Art 26) Legal Unbundling Independent legal body Functional Unbundling Effective decision making rights Independent Necessary human, technical, physical, financial resources (3rd Package!) Separate corporate identity (3rd Package!) Fully independent compliance officer Unbundling of Accounts Separate accounts No cross-subsidies , Vienna Vienna Forum on Energy Law 7
8 New Corporate Identity (DSO and ITO) 8
9 New Corporate Identity Art 17, 26 Directive 2009/72/EC, 2009/73/EC shall not [ ] create confusion Criteria: Trade Mark Law - Company name - Company Logo - Color of the brand - Etc. No possibility of confusion!!!! Average customer!!!! , Vienna Vienna Forum on Energy Law 9
10 Cases ITO / TSO: DSO: , Vienna Vienna Forum on Energy Law 10
11 Unbundling for TSO
12 Unbundling: TSO (Art 9) From Options: Ownership Unbundling ISO: Independent d System Operator ITO: Independent Transmission Operator ITO+: more effective independence of the TSO than ITO Standard Model
13 Ownership Unbundling TSO is owner of the transmission system VIU is not owner under company law of the TSO (only minority shares but without any rights ) Independence of the TSO No decisive influence No rights (e.g. power to exercise voting rights) Exemptions Member State / Public Body Truly separated No commercially sensitive information New Infrastructure Tariff Regulation Third Party Access Ownership Unbundling Temporary / limited Vienna Forum on Energy Law VIU TSO System Owner & System Operator 13
14 Independent System Operator (ISO) System Owner is not the System Operator System Owner shall not be responsible for granting TPA, investment planning System Owner shall cooperate with ISO Legal Unbundling of System Owner Designation of an ISO necessary human, technical, physical, financial resources responsible for granting TPA, collecting access charges, operating, maintaining Outsourcing possible but not to VIU or System Owner ISO System Operator VIU TSO System Owner , Vienna Vienna Forum on Energy Law 14
15 Independent Transmission Operator (ITO) ITO is the System Owner necessary resources and personnel own corporate identity VIU No rendering of services (and leasing of personnel) from VIU Core business (Operation, Maintenance, Development, etc.) No sharing of IT-systems, premises Compliance Officer & Programme NRA Independence of the Management Cooling-on, -off, no business relationship, no shares Independence of the Supervisory Body No influence to day to day activities and 10- ITO years-investmentplan System Owner+ 50 % -1 member shall be independent independent System Operator , Vienna Vienna Forum on Energy Law 15
16 Cases
17 Cases in Austria Ownership Unbundling: Vorarlberger Übertragungsnetz GmbH (V ZER 02/11) Nabucco Gas Pipeline International GmbH (V ZER G 04/12) ITO: Austrian Power Grid GmbH (V ZER 02/11) Gas Connect Austria GmbH (V ZER G 01/12) Baumgarten-Oberkappel GasleitungsgesmbH (V ZER G 02/12) New Procedure: V ZER G 01/14 ITO; Completion Q2 / 2014 ISO: Trans Austria Gasleitung GmbH (V ZER G 03/12) New Procedure: V ZER G 04/13 ITO; Completion Q2 / , Vienna Vienna Forum on Energy Law 17
18 Principles Assets owned by TSO (e.g. APG, GCA, VÜN, BOG) But: pipe-in-pipe (e.g. GRTGaz/MEGAL) ownership of the transmission system assets is shared between two TSOs, where these TSOs have joint control over the transmission assets and where they have rights of use and disposal over a part of the transmission system that are equivalent to those of an owner (Eigentümergleiche Verfügungsbefugnis), and which allow them to operate their part and develop it independently and without being hindered, the certification of such TSOs should in principle not be withheld as regards compliance with Article 9(1)(a) of the Directive Core activities within TSO (e.g. APG, GCA, BOG) But: outsourcing possible at OU, ISO (e.g. Vorarlberger Übertragungsnetz GmbH as OU) , Vienna Vienna Forum on Energy Law 18
19 Principles Prohibition of services provided to the ITO by other parts of the VIU But: telecommunication services (e.g. APG) derogation could only be envisaged in exceptional circumstances. Such derogation should be construed narrowly and should not go beyond what is strictly necessary to protect overriding interests, such as the security and the reliability of the transmission system. Only in exceptional cases, where the services concerned are strictly necessary to protect overriding interests as referred to above, and where no other service provider except for the VIU could provide these services to the ITO, could a derogation possibly be considered justified. Such derogation should also in principle be of a transitional nature, limited in time. ITO remains part of the VIU (e.g. GCA, APG) But: in respect of outsourcing of tasks (e.g. BOG) certified ITO should not be considered as ordinary "other part" of the VIU it diminishesi i the possibilities for a conflict of interest t Still, assessment will be needed 19
20 Consequences
21 Consequences simultaneous participation in a TSO and in generation, production and/or supply activities THE COMMISSION'S PRACTICE IN ASSESSING THE PRESENCE OF A CONFLICT OF INTEREST INCLUDING IN CASE OF FINANCIAL INVESTORS Cases: In-depth analysis Case-by-casey Swedegas (Sweden): Waste disposal company generating electricity in neighbor country National Grid (UK): under control of National Grid USA , Vienna Vienna Forum on Energy Law 21
22 Consequences 50 Hertz Transmission (Germany): IFM Global Infrastructure Fund several participations in generation/supply Società Gasdotti (Italy): Eiser Global Infrastructure Fund participation in generation TAG (Austria): Cassa Depositi e Prestiti participation in ENI ( Separate Account Regime power of guidance of Ministry) , Vienna Vienna Forum on Energy Law 22
23 Penalties / Offences
24 Penalties Art 37 (4) (d) Directive 2009/73/EC; Art 41 (4) (d) Directive 2009/73/EC Effective Proportionate Dissuasive Administrative Penalties No Application for Certification EUR ,-- Repellent decision EUR ,-- Fail to comply with Unbundling Rules EUR ,--000 to EUR ,-- Discrimination and finable Offences 10 % of the annual turnover , Vienna Vienna Forum on Energy Law 24
25 Contact Bernhard Painz , Vienna Vienna Forum on Energy Law 25
26 , Vienna Vienna Forum on Energy Law 26
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