A.The concept of Third Party Access

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Third Party Access (TPA) right is defined as the legally enforceable right of economically independent undertakings to access and use, in certain circumstances, various energy network facilities owned by other companies. TPA is granted to market players both in the gas production industry and the electricity production industry. As these markets are considered as natural monopolies, TPA is essential in order to allow new market players to use the existing network systems, which belong to other companies, for the transportation, delivery and trade of their product. The network operator has then a duty to grant access to third parties. 

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However TPA is limited only to eligible customers and thus the granted access to the energy network facilities is not unrestricted. “Eligible customer” is defined in Art. 2 para. 28 as a customer who is free to purchase gas from the supplier of his choice, within the meaning of Article 37. 

B. Importance of TPA for trade of gas as a commodity

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The TPA does promote the trade of gas as a commodity, as it allows new players to enter the market. This enhances competition, and is beneficial to consumers in terms in particular in terms of prices.

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

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The aim of the Directive is to lay down the rules relating to the organisation and functioning of the natural gas sector, access to the market, the criteria and procedures applicable to the granting of authorisations for transmission, distribution, supply and storage of natural gas and the operation of systems. 

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Due to the nature of the gas sector, TPA rights are essential when network owners or operators maintain strong relations with energy producers and suppliers (subsidiary companies or not), and avoid granting access to third parties. To that extent TPA is the main means of achieving the opening of the market. Absence of these TPA rights would prevent the energy producers from reaching the final consumers. Moreover, as explained the infrastructure (ie grid etc) cannot be replicated due to high economic, environmental and social costs.

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However for a TPA to be more effective, some authors suggest that there should be a concurrent requirement of ownership unbundling.
In this manner there would be created an open and non-discriminatory access to energy-network infrastructure. So although TPA is a strong means towards achieving the goals set out by the Directive, it needs to be supported by further regulation of the gas sector.

As the strongest incentive to refuse is the usual relation between a network operator and an affiliated competitor in downstream market, EU has implemented the ownership unbundling as a means to succeed effective TPA and open and non-discriminatory access to energy network infrastructure.
This is confirmed in the Directive 2009/73/EC itself, in its Recital 6; ‘Without effective separation of networks from activities of production and supply (effective unbundling), there is a risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated undertakings to invest adequately in their networks. In conclusion, TPA is a valuable means which supports the efforts to open the energy sector in general, and the gas sector in particular, to third parties, thereby promoting competition.

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