A. The concept of "third party access"  

1

Art. 32 of the Directive 2009/72/EC establishes the obligation of Member States to implement a system of Third-party access (TPA) to the transmission and distribution systems. The Directive itself does neither develop a definition of TPA in Art. 2 (definitions) nor does it develop it in Art. 32. Therefore, in order to understand the concept it is necessary to point out the elements in Art. 32 para. 1 as follows:

• Member states should ensure the implementation of a system of third party access

• The system applies to the transmission and distribution systems, where according to Art. 2 para. 3 "transmission means the transport of electricity on the extra high-voltage and high-voltage interconnected system with a view to its delivery to final customers or to distributors, but does not include supply" and "_distribution" _means the transport of electricity on high-voltage, medium-voltage and low-voltage distribution systems with a view to its delivery to customers, but does not include supply, Art. 2 para. 5.

• The system is based on published tariffs.

• Tariffs are applicable to all eligible customers which according to Art. 2 para. 12 comprises customers who are free to purchase electricity from the supplier of their own choice within the meaning of Art. 33 para. 1.

• To be applied objectively and without discrimination between system users who are defined as those natural or legal persons supplying to, or being supplied by, a transmission or distribution system, Art. 2 para. 18.

• Tariffs and methodologies underlying the calculation of themselves shall be approved prior to their entry into force in accordance with Art. 37 which determines the duties and powers of the regulatory authority, who according to the Directive 2009/72/EC is in charge of approving such tariffs and methodologies.

• Tariffs and the methodologies (for the case that the tariffs are not approved and only the methodologies are) should be published before their entry into force.

2

Third-party access means that independent enterprises or legal persons that operate in the energy sector (in the case of the Directive applied to Electricity sector) have a legal enforceable right to access and use energy network facilities which are owned by other companies. That means that a third-party alien to the network has the right to access and use the infrastructure built by another company, whereas the owner of the network cannot prevent the third-party to access his network.

3

As explained by author Aleksander Kotlowsky, the Internal Energy Directives do not give a concrete definition of Third-party access but as he says “the underlying concept is embodied in the text of the Directives.“

4

The TPA is an important element when organizing access to the existing energy infrastructure system of Europe, as it allows the opening of the Union´s internal market and therefore it seeks to promote competition which is one of the main goals of the Directive (see Art. 1 regarding subject matter and scope).

5

In principle there are two different forms of Third-party access:

• Regulated Third Party Access (rTPA): it assumes bilateral contracts between market subjects for energy retail on condition of regulated prices. There is a regulatory authority that designates prices in non-liberalized segments.

• Negotiated Third Party Access (nTPA): provides access to the networks on condition of negotiated prices.

  

  
  

B. Importance of TPA for the trade of electricity as a commodity

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It is possible to say that TPA promotes trade of electricity as a commodity, as it allows consumers and suppliers to access and use the network facilities owned by energy utilities and therefore offer electricity as a commodity. These means that according to Art. 32 para. 1 electricity consumers and suppliers (as third parties) have the right to access whatever transmission and distribution networks are necessary for them to receive the contracted electricity supplies from their chosen commercial partner. The purpose of the Directive is to promote competition through the access of a non-discriminatory, transparent and fairly priced network access.

7

ECJ Case C-239/07 Julius Sabatauskas and Others clarifies “that transmission and distribution do not include the supply of electricity and, second, eligible customers must be able to freely choose their suppliers and those suppliers must be able to access the systems” these means that for “eligible customers, the right to access the systems is exercised through a supplier whom customers must be able freely to choose”.

Therefore, as suppliers have access to the system through the TPA the customers are also being benefit by the TPA and electricity is traded as a commodity. As explained by Alexander Kotlowsky the “TPA right corresponds with an obligation to contract and a duty to perform on the side of the undertaking in control of the energy transmission system. From the legal point of view, the TPA right is not to stand-alone, autonomous right; it is related to and results d´from an underlying energy supply contract“.

8

In ECJ Case C-439/06 Citiworks AG, the Court remarks that a fully open market must enable all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers. It also establishes that “ in order for customers to be able to choose freely their suppliers, it is necessary that suppliers should have the right to access the different transmission and distribution systems which carry electricity to the customers”.
 The Citiworks case also points out that open Third-party access to transmission and distribution systems constitutes one of the essential measures which Member States are required to implement in order to bring about the internal market in electricity.

9

As one of the main obstacles avoiding a fully operational and competitive internal market on electricity relates to problems of access to the network, taxification issues and unequal degrees of market opening between members.

C. TPA as a means for meeting the objectives of the Directive

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The cross-border trade was to be stimulated by introducing the TPA regime and to establish protection mechanisms to ensure that vertically integrated energy utilities would not discriminate against other market participants. Nevertheless, the extend to which TPA aim at meeting the objectives of the Directive provided by Art. 1 depend on the implementation and put into force by the authority in charge of setting the tariffs and methodologies.

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