On 7 October 2011, the Secretariat sent Opening Letters to Albania, Montenegro and Serbia in accordance with Article 12 of the Rules of Procedure for Dispute Settlement. The Secretariat takes the preliminary view that these Contracting Parties failed to fulfill their obligations under the Energy Community Treaty by allocating capacity on electricity interconnectors in a discriminatory manner.
The principle of non-discrimination is a fundamental and overriding principle of Energy Community law as reflected throughout the acquis communautaire. This principle has been applied and further defined by the Court of Justice of the European Union on several occasions, most notably, in the context of the present cases, in the VEMW case of 2005. In that case, the Court came to the conclusion that granting preferential access to interconnection capacity amounts to discrimination and violates the acquis on electricity.
In case ECS-9/11, the Secretariat requests Albania to change the market rules and its transmission system operator’s allocation rules, under which 50% of the capacity available is reserved for imports by the distribution system operator, another 25% for imports by the state-owned wholesale public supplier, and the remaining 25% for so-called “qualified suppliers”.
In case ECS-10/11, the Secretariat challenges the practice by the transmission system operator of Montenegro to give priority, in the allocation procedure, to suppliers to domestic customers over “transitters”, i.e. users of the transmission network for the purpose of electricity transits through Montenegro.
In case ECS-11/11, the Secretariat addresses the transmission system operator’s allocation rules, under which the latter may allocate, as a priority, a part or the entire cross-border capacity available if it is aimed at supply of tariff customers in the Serbia or at the achievement of the energy balance. The transmission system operator may also restrict the right to use cross-border capacity already allocated in order to maintain the security of supply of tariff customers.
In the preliminary view of the Secretariat, all three cases constitute discrimination under the provisions of Directive 2003/54/EC and Regulation 1228/2003, as well as under the rules of the Treaty itself. By sending an Opening Letter, the Secretariat initiates a preliminary procedure, the purpose of which is giving the Party concerned the possibility, within two months, to react to the allegation of non-compliance with Energy Community law, and enabling the Secretariat to establish the full background of the case.
According to Articles 6 and 16 of the Rules of Procedure for Dispute Settlement, interested parties may be granted access to the case file and may submit written observations on the present case to the Secretariat within one month from today. All requests for information on this case should be addressed to the Legal Counsel at dirk.buschle@energy-community.org or +43 1 535 2222 24 and should make reference to the case number ECS-9/11, ECS-10/11 or ECS-11/11.
