BIBLIOGRAPHY : Rapport d’information de la délégation pour l’Union européenne de l’Assemblée nationale, n° 886, mai 2008, XIIIème législature, 123 p.

Le troisième paquet de libéralisation du marché de l’énergie

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The "third energy package", presented by the European Commission in September 2007 (see No. 4-2007Concurrences, Regulations column, pp. 135-137), constitutes a new stage in the liberalisation of the internal energy market. This new wave of Community texts is part of a process that deserves to be briefly recalled. Lacking its own competences in energy matters, the European Commission initially extended its power of initiative on the basis of its competences in the internal market and competition. The first directives were adopted in 1996 for electricity (96/92/EC) and in 1998 for gas (98/30/EC). Further liberalisation followed with Directives 2003/54/EC and 2003/55/EC of June 2003. These first two "packages" organised the opening of the energy market by providing for the free choice of supplier for consumers, freedom of establishment for producers and the right of access under objective, transparent and non-discriminatory conditions for all users of the transmission and distribution networks. In its "third energy package", following directives adopted in 1996-1998 and again in 2003, the European Commission proposes to take a further step in the liberalisation of the internal energy market. In January 2008, building on its shared competences in the environment sector, the Commission presented an "energy-climate package", in which the European Commission merely recommends new provisions that it believes will promote such a development (see No. 2-2008Concurrences, Regulations column, pp. 172-173). Aiming to achieve the ambitious targets that Europe has set itself in terms of reducing greenhouse gas emissions - 20% by 2020 - the package proposes measures, particularly with regard to the revision of the EU Emissions Trading Scheme, biofuels and the sharing of effort between Member States to develop renewables. This "energy package" thus brings together four proposals for regulations and one proposal for a directive: the proposal for a Regulation on conditions for access to the natural gas transmission networks (E 3642); the proposal for a Directive concerning common rules for the internal market in natural gas (E 3643); the proposal for a Regulation establishing an Agency for the Cooperation of Energy Regulators (E 3644); the proposal for a Regulation on conditions for access to the network for cross-border exchanges in electricity (E 3645); and the proposal for a Regulation on conditions for access to the natural gas transmission networks (E 3646).

In fact, in this third energy package’, it is mainly a question of implementing two types of measures, which are the subject of both parts of the parliamentary report. In the first part, the report considers it appropriate to strengthen the regulation of energy transmission networks and the coordination of the operators of these networks. In particular, it wishes to improve regional cooperation and to preserve the sovereign powers of the countries of the European Union. The first measures aimed at strengthening regulation and coordination appear necessary and timely. The discussions prompted by the presentation of the "third energy package" focused above all on the problem of separation of assets. However, the European Commission’s proposals contain another, less political and perhaps more technical aspect, aimed at better regulating the energy market and making its operation more transparent and more efficient. In the second part, the report considers that the Commission’s proposal to impose the so-called ownership unbundling’ of integrated companies as a single model, with the aim of separating transmission system operators (TSOs) from production or distribution activities, is disproportionate. It supports the alternative proposal drawn up by eight Member States (including France) to strengthen the independence of TSOs and to promote investment. According to the rapporteur, by focusing solely on the issue of ownership, the Commission is leaving aside the key concerns of European consumers, namely security of supply and energy prices.

Promoting security of supply and sustainable development, ensuring competitive prices and a high level of service are the objectives of the internal market for electricity and gas. The Commission believes that progress will be made by offering real freedom of choice to all consumers in the Union, individuals and businesses, by creating new business opportunities and by increasing cross-border trade. However, the Commission does not believe that it is currently possible to guarantee the right of all companies in the Community to sell electricity and gas in any Member State on equal terms and without discrimination or disadvantage. Two essential measures are identified to address this problem: to establish a comparable level of regulatory supervision in each Member State, and to organise non-discriminatory access to the network. To meet the latter objective, the Commission has a solution: ownership unbundling. The rapporteur is clearly critical of this option. By imposing ownership unbundling of integrated companies as the sole model, these measures "clearly constitute a disproportionate reform which, by focusing solely on the question of ownership, leaves aside the key concerns of European consumers, namely security of supply and energy prices".

This instructive parliamentary report thus offers a critical analysis of certain aspects of the liberalisation of the internal energy market. The European Commission is not the only target. The French executive - which is responsible for holding the French presidency of the EU in the second half of 2008 - is implicitly "alerted" by the National Assembly’s delegation for the European Union. A dossier linked to the fight against climate change, European energy policy is one of the other priorities of the French EU Presidency. The Council of Energy Ministers of 6 June 2008 reached a compromise between the position of the European Commission and that of the blocking minority, leaving the States free to choose whether or not to opt for full "unbundling". However, the European Parliament, which examined the package on 18 June 2008, stuck to the Commission’s initial proposal. In parallel with the European decision-making process, the meeting of the Climate Convention and the Kyoto Protocol to be held in Poznan (Poland) in December 2008 will be an important step towards reaching an agreement at the Copenhagen conference in 2009. The European Union’s credibility on the international stage will depend very much on its ability to reach an agreement on the energy-climate package. The implementation of a common energy policy is one of the ambitions of the European Union in the 21st century.

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  • University of Paris I Panthéon-Sorbonne


Beligh Nabli, Le troisième paquet de libéralisation du marché de l’énergie, December 2008, Concurrences N° 4-2008, Art. N° 22099, p. 190

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