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Definition.........................................................................4
Third energy Package.......................................................6
Harmonization on the EU side?..........................................6
Third Country...................................................................7
Conclusion.......................................................................... 15
Bibliography.......................................................................16
Jurisprudence......................................................................16
Legislation..........................................................................16
Doctrine............................................................................16
Annexes............................................................................. 18
Introduction
1 Roadmap of the EU-Russia Energy Cooperation until 2050, Progress report July 2011, Expert papers,
29th july 2011, p. 1.
2 Unkown author, Paying the piper, The Economist, 4 january 2014.
3 Commission opens proceedings against Gazprom , 4 September 2012, Commission Press Release,
IP/12/937.
In other words, under the Third Country clause, companies from outside the EU would be subject
to the same rules as domestic investors, ie, firms with generating businesses would not be
permitted to own transmission businesses unless they set up genuinely independent system
operators. So the third liberalization package extends the idea to third countries.
This would automatically exclude companies such as Gazprom whose main businesses are
extraction and generation. But countries could obtain an exemption from this rule if they had
signed an international agreement with the EU in which they promised to observe the rules on
independence of transmission system operators. Foremost in the Commission's mind was the
attempt to get Russia to sign the energy charter.
9 See for the understanding of vertically integrated energy undertaking, Note of DG Energy &
Transport on Directives 2003/54/EC and 2003/55/EC on the Internal Market in electricity and natural Gas,
The Unbundling Regime, 16 January 2004.
Thus, the Third energy liberalization Package sets forth provisions for the prevention of control of
transmission systems or their owners by companies from non-members of the European Union
until they satisfy certain requirements. In order to regulate the open gas markets and ensure
security of supply, Article 11 sets the certification requirements for a transmission system operator
from third countries. The clause addresses concerns that ownership unbundling would lead to the
acquisition of strategic EU energy transmission assets by foreign companies. 11 National regulators
have the right to refuse certification of a transmission system operator controlled by an individual
or group of individuals from a third country if the said company fails to comply with the
requirements stated in the articles 9 and 11 of the Directive (unbundling and security of energy
supplies).
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11
12
37 Antitrust: Commission opens proceedings against Gazprom, http://europa.eu/rapid/press-release_IP12-937_en.htm, Brussels, 4 September 2012
38 Presidential Decree to help Gaprom in Standoff with European Commission, ITAR-TASS, 12
September 2012, http://www.itar-tass.com/en/c39/518529.html, consulted on 22 May 2013.
13
14
Conclusion
The European Commission attempts to curb the risks of its growing gas import dependency by the
promotion of rules (such as the Gazprom clause) and market-based multilateral energy
governance. Internally, attempts to establish fully competitive gas and electricity markets are
intended to enhance European energy security and to yield increased energy solidarity, forming the
basis for a common external energy policy vis--vis Russia. Externally, the European Commission
has coherently attempted to apply its rules logic to gas relations with Gazprom in order to create a
level playing field.
Indeed, even if Russia and Europe are very dependent from each other, the Commission has
decided to open proceedings against Gazprom and also to insert the Gazprom clause in the last
directive.
After having analyzed WTO law, it doesnt seem to be a problem for Europe to take such actions.
But Russia, now that it is a member of the UN organization, can always decide to take the case in
front of the Dispute Settlement body.
But still, Europe couldnt find a way to speak univocally to the Federation of Russia and the hopes
for an energy single market are disappearing. No single market for energy is feasible. Alexandre
Dumas wanted the musketeers to be one for all, all for one but Europe is acting by the motto, set
forth in Gerard Ourys 1971 film La Folie des Grandeurs, of one for all, every man for
himself.
Gazprom and the Kremlin are facing new challenges and opportunities. So they are adapting their
policies.
15
Bibliography
Jurisprudence
- Cases COMP/C-3/37.792, Microsoft ; T-201/04 Microsoft v. Commission ; T-167/08 Microsoft v.
Commission.
Legislation
- Directive 1998/30/EC of the European Parliament and of the Council concerning the Common
Rules for the Internal Market in Natural Gas, OJ 1998 L204.
- Directive 2003/55/EC of the European Parliament and of the Council concerning the Common
Rules for the Internal market in Natural Gas and Repealing Directive 1998/30/EC, OJ 2003
L176/57.
- Directive 2009/73/EC of the European Parliament and of the Council concerning the Common
Rules for the Internal Market in Natural Gas and Repealing Directive 2003/55/EC, OJ 2009
L211/94.
- Presidential Decree to help Gaprom in Standoff with European Commission, ITAR-TASS, 12
September 2012, http://www.itar-tass.com/en/c39/518529.html, consulted on 22 May 2013.
Directive 2004/67/CE to facilitate the coordination group of supply measures
Doctrine
- BOUSSENA (C.) AND LOCATELLI (C.), Energy institutional and organisational changes in EU
and Russia: Revisiting gas relations, Energy Policy, Philadelphia, Elsevier, Volume 55, 2013, pp.
180189.
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Annexes
18
19