LAW AND POLICY OF EU NATURAL GAS MARKETS STATE OF PLAY AND FUTURE TRENDS
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1 LAW AND POLICY OF EU NATURAL GAS MARKETS STATE OF PLAY AND FUTURE TRENDS Energy Week, Vaasa, Finland, Ioanna Mersinia, Attorney in Law (LL.M.)
2 Contents EU Energy Law / 3 rd Energy Package (2009): What was the goal and what was back then introduced? Applicable regulatory framework Unbundling Third Party Access & Exemptions from regulated regime Natural gas sector: today s figures Regulation 994/2010: progress made with Security of Supply & concerns Latest regulatory developments Feb 2016: The Commission proposes a new security of supply regulation: What does this proposal consist of? What is new? 2
3 Third Energy Package Directive 2009/72/EC on the electricity internal market Directive 2009/73/EC on the natural gas internal market Regulation (EC) No 714/2009 on conditions for access to the network for cross-border exchanges in electricity Regulation (EC) No 715/2009 on conditions for access to the natural gas transmission networks Regulation (EC) No 713/2009 (ACER) What was the goal? energy market = fully effective single EU gas and electricity market keep prices as low as possible increase standards of service and security of supply How was this supposed to be achieved? Effective unbundling of energy production and supply interests from the network Increased transparency of retail markets and strengthening of consumer protection rules More effective regulatory oversight by independent market watchdogs (NRAs) Establishment of ACER to ensure effective cooperation between NRAs and to take decisions on cross-border issues Better cross-border collaboration and investment 3
4 Why did we need unbundling of transmission networks? The rules on unbundling aim at preventing companies which are involved both in transmission and in production and/or supply of energy from using their privileged position as operators of a transmission network to prevent or obstruct access of their competitors to this network. Unbundling requires the effective separation of activities of energy transmission from production and supply interests. Options for MS Full Ownership Unbundling (OU) If a MS decides to impose full ownership unbundling, all integrated energy companies would have to sell off their gas and electricity grids. Independent Transmission Operator (ITO) The supply company can own and operate the network. The management of the network must be done by a subsidiary of the parent company, which can make all financial, technical and other decisions independently from the parent company. A supervisory body is in charge of preserving the financial interest of the mother company without being involved in the day-to-day business. Independent System Operator (ISO) The supply company can still own the physical network, but it has to leave the entire operation, maintenance and investment to an independent company. 4
5 Third party access principle In order to have effective competition the operators of transmission networks must: comply with specific rules on unbundling apply regulated tariffs so as to avoid any abuse of dominance and allow any electricity or gas supplier non-discriminatory access to the transmission network to supply customers. The conditions of access to the networks are regulated by NRAs. Exemptions from regulated regime Possible for new gas or electricity infrastructure. Under the conditions listed in the Third energy package, the competent NRA may grant an exemption (full or partial) from certain obligations, including from the obligation of TPA, regulated tariffs and unbundling, if: the level of risk attached to the investment is such that the investment would not take place unless an exemption was granted. the infrastructure enhances competition the exemption itself is not be detrimental to competition. 5
6 What is the role of gas in the EU's energy mix? Natural gas represents around ¼ of the EU's overall energy consumption EU's gas demand today is around 400 bcm It is projected to remain relatively stable in the coming years The expected decline in domestic gas production also has an impact on gas imports. However further policies designed to achieve 2030 energy and climate targets may lead to a reduction in gas usage, particularly due to energy efficiency improvements in heating and industry. Domestic gas production Accounted for 34% of gross inland consumption in Largest producers of natural gas: The Netherlands (47%) UK (25%) Germany (6.7%) Romania (6.5%) 6
7 To what extent does the EU depend on gas Imports? The gas import dependency of the EU was at about 65% in 2013, increasing from 43.3% in 1995 (a 50% increase of gas dependency over the period). In 2013, imports came from: 39% Russia, 30% Norway 13% Algeria Overall energy import dependency According to Eurostat the least energy import dependent MS in 2014 were: Estonia (8.9%) Denmark (12.8%) Romania (17.0%) Poland (28.6%) Czech Republic (30.4%) Sweden (32.0%) the Netherlands (33.8%) Bulgaria (34.5%) The highest energy import dependency rates were registered in: Malta (97.7%) Luxembourg (96.6%) Cyprus (93.4%) Ireland (85.3%), Belgium (80.1%) Lithuania (77.9%) 7
8 Regulation 994/2010: monitoring obligation of art :Commission drew a report outcome: much is done in both preparation and mitigation MS make full risk assessments, they draw up preventive and emergency plans, but SoS can and must be further improved! The most serious concerns raised refer to: Cooperation between MS Application of the supply standard to protected customers Application of the infrastructure standard Gas supply contracts between natural gas companies and non- EU suppliers not being sufficiently transparent and stand in the way of an effective response at times of crisis. 8
9 New Commission proposal for a new security of supply regulation Release The specific package on security of supply includes: a legislative proposal a strategy for LNG and gas storage a strategy on heating and cooling The package supports the first pillar of the Energy Union The focus is set on energy security, solidarity and trust among MS. The Joint Research Center carried out extensive analyses, modelling for the impact assessment accompanying the regulation and two strategies and provided background information. 9
10 What is new in this proposal? solidarity principle introduced for the 1 st time Proposal for a shift from a national approach to a regional approach when designing security of supply measures reinforces cooperation with EU neighbours: Energy Community countries will be involved additional transparency measures for certain SoS relevant contracts which will have to be automatically notified by the natural gas companies to the Commission and the MS upon their conclusion or modification 10
11 Which are the main novelties for MS and natural gas companies? Member States will have to: prepare Risk Assessments, Preventive Action Plans and Emergency Plans at regional level and update them every four years. Common templates will be used agree on the technical, legal and financial arrangements to apply the solidarity principle and include them in the Emergency Plans jointly decide on the construction of bidirectional capacity (reverse flows) at each cross-border interconnection point and involve other MS potentially concerned along the supply corridor in the decision. Under duly justified circumstances, MS may request natural gas companies to provide additional information before potential emergencies, in order to assess the security of supply situation at national, regional or EU level Natural gas companies will have to notify MS and the Commission about some security of supply relevant contracts upon their conclusion or modification. 11
12 Reverse flows: what it is and what is new about it? Reverse Flow or backhauling is the transportation of gas apparently in the reverse direction to the main flow of the pipeline. This is usually achieved by swap arrangements rather than by physical movements. Virtual Reverse Flow: This is where it is technically not possible to physically transport gas through a pipeline in both directions. However, it is still possible for a TSO to offer capacity as a 'counter flow' on a 'virtual' basis in the other direction. The gas is not actually moving in the opposite direction, but the gas flow requested in the opposite direction is subtracted from the gas flowing in the forward direction. VRF is an interruptible product only available when sufficient gas is physically flowing in the opposite direction from the desired virtual flow. MS are already today obliged to enable bidirectional capacity (reverse flows) at each cross-border interconnection point, as one of the fastest ways to ensure gas can flow to where it is needed most, including from the west to the east in the case of a gas crises. Under the new rules such decisions can no longer be taken unilaterally. Instead, all decisions, including exemptions from the obligation to build reverse flow capacity, will have to be jointly adopted by MS at both sides of the interconnection point. other MS potentially concerned by the reverse flow along the gas supply corridor will also have to be involved in the joint decision. The joint decision will have to be scrutinised by ACER. the Commission may adopt a decision requesting amendments to the joint decision. 12
13 The key role of the Commission: overall coordination of the security of gas supply: ensure that measures adopted do not hamper the functioning of the internal market or the developments of national markets, given the central importance of functioning markets as a reliable instrument in ensuring secure supplies in a cost-efficient manner; organise a peer review of the Preventive Action Plans and Emergency plans prepared at regional level; review new non-market based preventive measures, before they enter into force, to assess their compliance with the EU's internal market rules or their impact on the SoS of other MS; continue to chair and coordinate the work of the Gas Coordination Group as the key forum for the discussion of SoS policies with experts responsible for the design and implementation of this policy area. 13
14 What impact will the new rules have on the EU's neighbouring countries? The proposed Regulation covers all the countries in the European Economic Area. The EU has a vital interest in expanding the common regulatory space between the EU and the Energy Community Contracting Parties by creating a functioning regulatory framework in the field of SoS. A common approach would help to ensure that the principles of the internal energy market are fully adhered to in times of a supply crisis, plus it would also allow for: better risk assessment more efficient crisis management, at EU level Therefore the Regulation proposes that some of its measures (e.g. cross-border consistency of Risk Assessments, Preventive Action Plans and Emergency Plans) also apply between the EU Member States and the EnC CPs. As the Regulation seeks to limit the impacts of supply disruption and better prepare Europe for such disruptions, suppliers from non-eu countries will have less room to exert pressure as a dominant seller. With the continuation of a well-functioning market and fair rules for all stakeholders Europe will continue to be an attractive market for selling gas. 14
15 What else does this package consist of? A decision on Intergovernmental Agreements in energy The EU needs to ensure that intergovernmental agreements signed by its MS with third countries and relevant to EU gas security are more transparent and fully comply with EU law. This reason why, it introduces an exante compatibility check by the Commission. This ex-ante assessment makes it possible to check compliance with competition rules and internal energy market legislation before the agreements are negotiated, signed and sealed. The MS will have to take full account of the Commission's opinion ahead of signing the agreements. LNG and gas storage strategy Europe is the biggest importer of natural gas in the world. Europe's overall LNG import capacity is significant currently it is enough to meet around 43% of total current gas demand (2015). However, significant regional disparities as regards access to LNG remain. The Commission sets a LNG strategy that will improve access of all MS to LNG as an alternative source of gas. The central elements of this strategy are building the strategic infrastructure to complete the internal energy market and identifying the necessary projects to end singlesource dependency of some of the MS. Heating and Cooling strategy The heating and cooling of buildings and industry consumes half of the EU's energy. Further, it is 75% powered by fossil fuels. The proposed Heating and Cooling strategy focuses on removing barriers to decarbonisation in buildings and industry. It also stresses that increased energy efficiency and use of renewables will have an impact on energy security. Looking into this sector more strategically is crucial as the EU wants to improve its interdependence from external suppliers. 15
16 Concluding Remarks: The proposed update of the SoS regulation aims to help prevent and respond to potential supply disruptions and strengthen the Security of Gas Supply Regulation of The Regulation: creates a common indicator to measure serious threats to gas security known as N-1. This indicator refers to a situation in which a very important national gas installation such as a production facility or pipeline falls out of operation; defines a supply standard that EU countries must prepare to meet even in the case of a disruption such as N-1. This standard means that countries must be able to supply at least 30 days' worth of gas to private households and other vulnerable consumers like hospitals; requires EU countries to designate an authority specifically responsible for the gas supply; requires the authority to create a Preventive Action Plan which assesses supply risks and proposes preventative measures such as investment in new pipelines; requires the authority to prepare Emergency Plans for dealing with a crisis. These plans should include specific procedures that come into effect during a disruption and ways to coordinate with other national authorities; sets up a Gas Coordination Group to coordinate actions and exchange information between national authorities and industry Procedure wise: Ordinary legislative procedure (ex-codecision procedure) - Awaiting Committee (Industry, Research & Energy) decision 16
17 Contact: 17
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