Today the Energy Community Secretariat published its first Opinion on the certification of a transmission system operator under the Third Energy Package. The Opinion agrees with certification of TAP AG now and invites ERE, the Albanian regulatory authority, to open a new certification procedure once TAP becomes operational.
The certification of TAP AG relates to a rather untypical unbundling case: different from operators of already existing infrastructure, TAP AG’s unbundling regime is based on an earlier regulatory decision exempting the project from certain provisions of the Third Package, including from ownership unbundling. Instead, an independent transmission operator (ITO) model was imposed on TAP.
In the Secretariat’s opinion, ERE was correct in following a “rule of reason” approach in the interpretation of the GAS Directive’s ITO rules at a point in time when the pipeline is still under construction and the risk of conflicts of interests between TAP AG’ transmission activities and its shareholders’ activities in gas production and supply is low. For reasons of legal certainty, the Secretariat invites ERE to verify TAP AG’s compliance with the ITO rules again in the course of a new certification procedure once TAP’s situation has changed significantly, namely after construction and the start of operation.
In its Opinion, the Secretariat took into account the Opinion issued by the European Commission on the corresponding certification decision issued by the Greek and Italian regulatory authority, as well as the Opinion issued by the Energy Community Regulatory Board.