Thomas Starlinger presents at the Vienna Forum on European Energy Law, 2013

1. LET´S GET TO THE POINT.

2. The impact of unbundling
Who can invest in what in the future?
Dr. Thomas Starlinger

3. Who has to be unbundled?

4. Directive 2009/73(72)/EC
Distribution System Operators (DSOs)
Storage System Operators
Transmission System Owners
Transmission System Operators (TSOs)

5. DSOs, Storage System Operators and
transmission system owners
Article 15 (1) and 26 (1) Directive 2009/73/EC and
Article 14 (1) and 26 (1) Directive 2009/72/EC
“… shall be independent at least in terms of its
[their] legal form, organisation and decision
making …”
Legal unbundling
Management unbundling

6. TSOs
 Ownership Unbundling, Article 9
 Independent System Operator, Article 14 (13)
 Independent Transmission System Operator,
Article 17 seqq

7. Ownership Unbundling
Investor
Production & Supply TSO
indirectly indirectly
“control” or “rights”

8. “control” or “rights”
in particular:
 voting rights
 appointment rights
a majority share

9. Commission Opinions on TSO
certification

10. “co-ownership”/”pipe-in-pipe-concept”
Thyssengas (ITO)
Thyssengas
Thyssengas Service
Macquarie
ITO
Aggerenergie GmbH
Pipeline
Only certified TSOs shall share
their ownership!1
No TSO!
1 see also i.a. jordgas, GRTgaz DE

11. Public bodies (ISO)
Latvia
Pipeline
LET
LEGeneration &
Supply
AST
ISO
owner
Independence!
See also Sweden

12. Public bodies
TAG (ISO) and Terna (OU)
Terna/TAG
CDP
MEF
Generation
& Supply
others
TSO
70%
Enel/ENI

13. Further elements elaborated by the
Commission
 Geographic scope
• E.g. participations located in the US
(Swedegas (OU), 50 Hertz (OU), National Grid (OU))
 Potential for discrimination
• 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%)
 Participation in storage facilities, activities in
exchanges
• Energienet.dk (OU)

14. Gasdotti (SGI), Italy - OU
SGI
TSO Eiser
• regulated price
• Spain
Generation of
solar energy
• Small size
• UK
• in another part of Italy
• electricity as by-product
• partial regulated price
• small size
Waste management
company
Waste management
company

15. Participations of management
members and employees

16. Art 19 (5) Directive 2009/73(72)/EC
 management and employees of the ITO shall hold no interest in
any part of the VIU
 German EnWG: shares in the VIU acquired by the management
before 3 March 2012 must be sold only by 31 March 2016
 no requirement for non management staff
 Commission Opinion i.a. Nowega:
• non-compliance with Directive
• sell their financial interests in the VIU as soon as possible
• or give them in the hands of an independent trustee

17. Financial committment of the
transmission system owner

18. ISO
 Article 14 (5) b Directive 2009/73/EC and
Article13 (5) b Directive 2009/72/EC
 The transmission system owner shall:
• finance the investments decided by the ISO and approved
by the regulatory authority
• or give its agreement to financing by any interested party
including the ISO
• financing arrangements are subject to approval by the
regulatory authority

19. ITO
Article 17 (1) d Directive 2009/73(72)/EC
• Financial resources for investments shall be made
available by the VIU
Article 18 (6-8) Directive 2009/73(72)/EC
• Financial relations  market conditions
 notice/approval to/of the regulatory authority

20. Cost-control
 by Regulatory Authority
 in tariff-setting procedure
 only financing at market conditions will be
taken into account
 only projects approved in the investment
plan?

21. Investment duties of TSOs

22. Investment duties of TSOs
 Article 13 2009/73/EC and
 Article 12 2009/72/EC
 Development of the transmission system
 Artcle 22 (7) 2009/73 (72)/EC
 Enforcement of investments to be taken by
the ITO in accordance with the network
development plan

23. Dr. Thomas Starlinger
A-1060 Wien, Am Getreidemarkt 1
Telefon: +43 1 582 580
Telefax: +43 1 582 582
E-Mail: t.starlinger@fplp.at