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The Electricity Transmission System Operator Understanding EU Energy Policy - ebook/pdf
The Electricity Transmission System Operator Understanding EU Energy Policy - ebook/pdf
Autor: Liczba stron: 209
Wydawca: C. H. Beck Język publikacji: polski
ISBN: 978-83-255-4200-9 Data wydania:
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Currently, the key element upon which EU energy policy is focused is the implementation of the so-called Third Liberalisation Package. This policy is based on a mechanism of far reaching regulation. Transmission system operators (TSOs) are at the heart of regulation of the single European energy market, because of their fundamental significance to the structure and operation of the energy sector. It is believed that the future of the European energy market and European energy security will to a large extent depend on TSOs. The study focuses on different legal issues which impact on the status of TSOs under EU law (unbundling, corporate governance, public tasks and financial management).

In the light of the fact that EU energy regulation has made unbundling a key legal instrument in the achievement of Energy Policy Goals, the author gives analysis of the whole concept of regulatory framework and overview of selected legal systems. This book is a way forward in this complicated and still not well implemented issue in the practice of EU single market and of EU Member States.
professor Hana Horak, University of Zagreb, Department of Law, Jean Monnet Chair

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Filip Grzegorczyk The Electricity Transmission System Operator Understanding EU Energy Policy The Electricity Transmission System Operator Understanding EU Energy Policy I dedicate this book to my children, Julia and Adrian Filip Grzegorczyk The Electricity Transmission System Operator Understanding EU Energy Policy Wydawnictwo C.H.Beck Warsaw 2012 The Electricity Transmission System Operator Understanding EU Energy Policy Scientific review: Prof. dr sc. Hana Horak, Sveučilište u Zagrebu [University of Zagreb], Katedra za pravo [Department of Law], Jean Monnet Chair Prof. JUDr. Mária Patakyová, PhD., Univerzita Komenského v Bratislave [Comenius University in Bratislava], Katedra obchodného, finančného a hospodárskeho práva [Department of Commercial, Financial and Economic Law] Prof. dr hab. Paweł Chmielnicki, Wyższa Szkoła Informatyki i Zarządzania w Rzeszowie [University of Technology Information and Management in Rzeszow], Katedra Teorii Prawa [Department of the Theory of Law] Translated by Jasper Tilbury MA MCIL MITI (tilbury@kr.onet.pl) Publikacja dofinansowana przez Fundację Instytut Studiów Wschodnich Publisher: Anna Wieczorek Editing: Dominika Drygas Cover by: Przemysław Olczak Photo: © shutterstock Copyright © Wydawnictwo C. H. Beck 2012 Wydawnictwo C. H. Beck Sp. z o. o. ul. Bonifraterska 17, 00–203 Warszawa Typesetting: Wydawnictwo C.H. Beck Printing and binding: Elpil, Siedlce ISBN 978-83-255-4199-6 ISBN e-book 978-83-255-4200-9 Table of Contents VII Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX Chapter I. EU Energy Regulation (Policy) and the Role of the Transmission System in its Implementation . . . . . . . . . . 1 . Main Determinants of EU Energy Regulation (Policy) . . . 2 . Goals of EU Energy Regulation (Policy) . . . . . . . . . . . . . . . 3 . Importance of the Electricity Transmission Network . . . . Chapter II. TSO Unbundling and its Models in Directive 2009/72/EC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Concept and Significance of Unbundling . . . . . . . . . . . . . . 2 . Structure of Regulation of TSOs . . . . . . . . . . . . . . . . . . . . . . 3 . Supervision and Designation of TSOs . . . . . . . . . . . . . . . . 4 . Ownership Unbundling Model . . . . . . . . . . . . . . . . . . . . . . 5 . TSO-ISO Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . TSO-ITO Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 . TSO-ITO+ Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter III. Structure of TSO Bodies . . . . . . . . . . . . . . . . . . . . 1 . Structure of TSO Bodies in the Ownership Unbundling and TSO-ISO Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 . Structure of TSO Bodies in the TSO-ITO Model . . . . . . . . Chapter IV. TSO Tasks and Financial Management . . . . . . . 1 . Overview of TSO Tasks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 . TSO Tasks in the TSO-ISO Model . . . . . . . . . . . . . . . . . . . . 3 . TSO Tasks in the TSO-ITO Model . . . . . . . . . . . . . . . . . . . . 4 . Overview of TSO Financial Management . . . . . . . . . . . . . . 5 . TSO Financial Management in the TSO-ISO Model . . . . . 6 . TSO Investment Tasks in the Context of Security . . . . . . . Chapter V. TSOs in Selected Legal Systems . . . . . . . . . . . . . . 1 . Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 . Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 5 10 15 17 23 24 28 33 36 40 41 43 46 51 53 56 58 60 65 70 75 77 79 81 83 86 87 V Table of Contents 7 . United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 89 93 95 1 . Impact of EU Energy Policy on the Legal Status of TSOs 2 . Impact of Unbundling on the Legal Status of TSOs . . . . . 97 101 3 . Recapitulation: The Legal Status of TSOs . . . . . . . . . . . . . 104 4 . Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 VI Abbreviation ACER . . . . . . . . . . . . . Agency for the Cooperation of Energy Regu- lators Art . . . . . . . . . . . . . . . . Article CCS . . . . . . . . . . . . . . Carbon Capture and Storage CRE . . . . . . . . . . . . . . Commission de régulation de l’énergie EDF . . . . . . . . . . . . . . Électricité de France EEA . . . . . . . . . . . . . . European Economic Area ENTSO-E . . . . . . . . . European Network of Transmission System Operators for Electricity EU . . . . . . . . . . . . . . . European Union GMS . . . . . . . . . . . . . . General Meeting of Shareholders ISO . . . . . . . . . . . . . . . Independent System Operator ITO . . . . . . . . . . . . . . . Independent Transmission Operator OJ . . . . . . . . . . . . . . . . Official Journal REE . . . . . . . . . . . . . . Red Eléctrica de España RTE . . . . . . . . . . . . . . Réseau de Transport d’Électricité TFEU . . . . . . . . . . . . . Treaty on the Functioning of the European TSO . . . . . . . . . . . . . . Transmission System Operator UCTE . . . . . . . . . . . . . Union for the Coordination of the Transmis- Union sion of Electricity VII Introduction For several years, the author has researched various is- sues connected with the energy industry from both a theo- retical and practical perspective. Very often, one of the key elements in this research was the electricity transmission system operator (TSO), whose role is of fundamental signif- icance to the structure and operation of the energy sector . For this reason, the TSO is itself the subject of analysis in this study . It is worth noting that in recent years TSOs and the energy sector as a whole have undergone radical changes, and this process is still awaiting completion . These changes, and the economic importance of the energy industry for the Europe- an economy as a whole, mean that an examination of the le- gal status of the TSO is not a purely theoretical undertaking; on the contrary, it provides an excellent example of the direct feedback loop that exists between the quality of legal instru- ments used and the level of economic – or even civilizational – development . For this reason, the author’s analysis at times goes beyond purely legal argument, for it is only by seeking a holistic approach that we can properly describe the issues surrounding TSOs . It appears that, to date, no monograph exists on the subject of the legal status of the TSO in either European or Polish le- gal literature. In Poland, this state of affairs explains the rel- atively recent academic interest in energy law . We should mention here the pioneering commentary by A . Walaszek- Pyzioł and W. Pyzioł (1998) and the „Energy and Law” mon- ograph by A. Walaszek-Pyzioł (2002). Later commentaries (Czarnecka Ogłódek 2009; Swora Muras 2010) have not placed particular emphasis on the TSO . IX The functions currently performed by entities with the le- gal status of TSO have been performed for decades, if not since the establishment of the very first electricity systems. However, EU regulations, and the regulations introduced by individual EU Member States which followed in their wake, have led to the separation of these entities under public law . In European Union Member States, electricity networks are managed by public undertakings, but the public character of these undertakings is determined not only by the nature of the tasks they perform; it is also evidenced by the use of or- ganisational forms unknown in commercial law, by the par- ticular system of enterprise financing and dividend policy, by the possibility to pursue economic activity solely on the basis of authorisations granted by public authorities, by the legal and/or de facto impossibility of bankruptcy, and by the specific nature of corporate bodies. Likewise, the multiplicity of functions currently imposed on TSOs requires thorough analysis . On the one hand, these include transmission functions within national electrici- ty systems; on the other, TSOs are perceived to have major competencies in regard to the functioning of the EU’s inter- nal market . The economic importance of the functions per- formed by TSOs has also not been fully appreciated, which provides further justification for this choice of subject. It would seem that a thorough analysis of the legal status of TSOs could also provide valuable conclusions for other un- dertakings operating within infrastructure sectors . For sure, research in this area is exceptionally important, since it could directly contribute to the optimal use of scarce resources, which is especially significant in the context of the growing world economic crisis . A preliminary analysis of the issues regulated under Direc- tive 2009/72/EC shows that the adopted method of regulat- ing energy law issues in the European Union, particularly in the context of the EU’s energy policy goals, is imperfect and X Introduction Introduction requires decisive action to change it . The solutions adopted under the Third Liberalisation Package should therefore be treated as a stage on a long journey towards creating a single energy market in the European Union . This study – which I now commend to the reader – com- prises five chapters, each of which addresses a different legal issue which impacts on the status of TSOs under EU law; it is the outcome of thoughts and reflections, some of which have been employed in earlier studies by the author . Acknowledgements My heartfelt words of gratitude go to professor Anna Walaszek-Pyzioł who greatly contributed to my understand- ing of the mechanisms of energy law . I also want to extend my sincere thanks to Ms. Joanna Strzelec-Łobodzińska for her kind assistance in exploring the complexities of energy market . Cracow, September 2012 Filip Grzegorczyk XI Chapter I EU Energy Regulation (Policy) and the Role of the Transmission System in its Implementation 1. Main Determinants of EU Energy Regulation (Policy) Energy has always been important to human beings . To- day, it is no less important, although certain changes have occurred in the course of historical development . People are no longer able to meet their energy needs by themselves and have become dependent upon energy suppliers . Moreover, at the present stage of civilisation, requirements as to the security of energy supply and energy quality have signifi- cantly increased (Mombaur 2008, p . 2) . Thus, energy contin- ues to be an important determinant of growth (Haider 2005, p. 105). The scientific importance of energy issues is all the greater given that energy presents regulatory and business challenges (Grassani 2007, p . 3) and that Europe is no longer as abundant in natural resources . Already in the 1950s, the European energy sector was seen to be in need of a common policy and coordinated action . Measures were slowly introduced, both through legislation and programmes – the White Paper “An Energy Policy for European Union” (Cross 2007, pp. 227–234) being one exam- ple – culminating in the Third Liberalisation Package, whose terms are binding today . It is worth noting that nowadays energy policy enjoys a high formal status – it appears in var- ious treaties, for instance article 4(2)(i) of the TFEU1, which 1 Treaty on the Functioning of the European Union (TFEU): Treaty of Lisbon amending the Treaty on European Union and the Treaty estab- lishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306 of 17.12. 2007, consolidated versions of the Treaty on Europe- 3 Chapter I. EU Energy Regulation (Policy) and the Role... identifies energy as one of the competencies that is shared between the EU and its Member States . A new title, XXI – “Energy”, has been introduced into Part Three of the TFEU (Elżanowski et al. 2010, pp. 128-130). Besides the internal market, transport and trans-European networks, energy is currently one of several areas of shared competence between the EU and its Member States . Accord- ing to the literature, common policies constitute the third pillar of the internal market, since their purpose is both to guarantee the provision of services in the general econom- ic interest and to achieve other goals that remain at least in- directly linked to the establishment of the internal market (Jurkowska Skoczny 2010, p . 4) . Currently, the key element upon which EU energy poli- cy is focused is the implementation of the so-called Third Liberalisation Package, which comprises legislation on the natural gas and electricity subsectors2 . This policy is based on a mechanism of far reaching regulation . It seems clear that, in the context of the structure of the energy market, on- ly far reaching regulation will aid the “liberalisation” of this market (Walaszek-Pyzioł, p. 2). Historically, individual EU states have created their own national monopolies based on the principle of electricity networks being a natural monop- oly . These monopolies have included entities representing the entire energy value chain – from fuel extraction, through generation and sale, to transmission and distribution (Mo- an Union and the Treaty on the Functioning of the European Union, OJ C 83 of 30 March 2010. 2 Third energy package: Regulation (EC) No 713/2009 of the Europe- an Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators; Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on condi- tions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No . 1228/2003; Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Direc- tive 2003/54/EC – published in OJ L 211 of 14 August 2009 . 4 2. Goals of EU Energy Regulation (Policy) towidlak 2010, p . 210) . To break these powerful monopolies will require equally strong regulation at the EU level3 . 2. Goals of EU Energy Regulation (Policy) The goals of EU energy regulation determine the legal sta- tus of TSOs. These goals therefore need to be discussed first of all in order to place the TSO in a broader context . They in- clude three main aspects, i .e ., energy security, the creation and operation of a competitive market, and environmental protection4, although it should be noted from the outset that the relationship between these goals is complex (Bulteel Capros 2009, p. 2). Achieving them requires many different challenges to be met (D’haeseleer 2005, p . 28) . A key element of EU energy policy is the issue of security . It would appear that security of energy supply is problematic5 . The concept of security is not uniformly defined in the leg- islation . In art . 2 p . (b), Directive 2005/89/EC6 speaks of “se- curity of electricity supply”, which means the ability of an electricity system to supply final customers with electrici- ty. On the other hand, art. 2 p. (c) defines “operational net- work security” as the continuous operation of the transmis- sion and, where appropriate, the distribution network under foreseeable circumstances7 . 3 Other solutions to this problem are indicated in the literature, too; see Littlechild (2009, pp. 1–7). 4 For more about the goals of EU energy policy, see: Kosior Möge- lin (2006, p . 14) . 5 See, for instance, Keppler (2007, pp . 3–4) . 6 Directive 2005/89/EC of the European Parliament and of the Council of 18 January 2006 concerning measures to safeguard security of elec- tricity supply and infrastructure investment, OJ L 33 of 4 February 2006, pp . 22–27 . 7 For more, see Mielczarski (2009, p . 6) . 5 Chapter I. EU Energy Regulation (Policy) and the Role... In the 2006 Green Paper8, various meanings of the term se- curity are used. For instance, it refers to “network security”, “security and reliability”, and “secure availability”. Some authors see reliable electricity supply as having four aspects9: security, flexibility, adequacy, and strategic energy policy . In this instance, security means the ability of existing generation and transmission capacities to meet actual energy demand in real time . It would seem that the most precise and therefore most appropriate definition is the one used by the UCTE (Un- ion for the Coordination of the Transmission of Electricity) – a branch organisation of European TSOs. The UCTE defini- tions take as their point of departure the notion of reliability, which is a general term that encapsulates all aspects of sys- tem capacity expressed in numeric values10 . Despite the importance of the energy security issue, no sin- gle definition has been developed in EU legislation. What is more, the notion of security is used in various contexts . This state of affairs is criticised in the literature. Given that there is a consensus as to the importance of security, the prevalent view is that it would be good to define this concept clearly and thus remove any ambiguity . Furthermore, given that Di- rective 2005/89/EC imposes specific obligations on Member States, it would be wise to define those obligations in precise terms. Likewise, not without significance would be the intro- duction of specific security parameters to make it possible to measure progress in this area objectively11 . From the logical point of view, this is the minimum requirement . 8 Green Paper: A European Strategy for Sustainable, Competitive and Secure Energy, COM (2006) 105 final. 9 For more, see Pérez-Arriaga (2007, p . 7) . 10 UCTE System Adequacy Forecast 2005–2015, www .ucte .org; see also the discussion of these issues in Mielczarski (2009, p . 29) and Mielczarski (2007, pp . 3–4) . 11 A similar view is expressed by Mielczarski (2007, pp . 4–5) . 6 2. Goals of EU Energy Regulation (Policy) Unfortunately, the notion of security of electricity supply is at present poorly defined. It encompasses various regu- lations and actions with differing timescales. Their ultimate purpose, however, is to supply electricity that meets given technical parameters to final customers (Pérez-Arriaga 2007, p . 2) . It is worth adding that the problem of security of ener- gy supply is not imaginary . Indeed, it is rather that we are suffering under the delusion that all is well with the trans- mission infrastructure in the European Union . Numerous blackouts provide evidence to the contrary12 . The second goal of EU energy policy is the creation of a single energy market . This market is certainly a variable category: it is more a process than a stable end-state . Taking into account the political, institutional and economic condi- tions in Europe, it is hard to say with any degree of certain- ty that the current pace of change will be maintained13 . The purpose of the Third Liberalisation Package is to prevent stagnation in this regard (Glachant et al . 2006, p . 1) . The ongoing reform of the European energy sector is shak- ing the foundations of traditional energy markets in Member States by, among others, attempting to overcome the domi- nance of entrenched monopolies . Observable trends signal a transition from strictly controlled markets to freer ones, from exclusive rights to regulated competition, from nation- al markets to international markets . A key problem for the EU is the different way in which Member States understand the internal energy market . To be sure, the market is far from operating perfectly, and the first and second generation en- ergy directives were unable to complete the process of estab- 12 Ladoucette (2006, p. 5) lists the following: France 1999, London 2003, Denmark and Sweden 2003, Italy 2003, Greece 2004, Spain 2004, Germany 2004, Western Europe 2006 . 13 For more on the liberalisation of the EU energy market, see Nowak (2006, pp . 2–10) . 7
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