summary of the case
On 23 September 2014 the Ministerial Council adopted Decision 2014/03/MC-EnC in Case ECS-09/13 establishing a breach of Energy Community law by declaring that the Republic of Serbia failed to comply with certain obligations under the Treaty by failing to implement the requirement of legal unbundling of its transmission system operator Srbijagas from other activities not relating to transmission, by failing to ensure the independence of its transmission system operator Srbijagas in terms of its organization and decision-making from other activities not relating to transmission and by failing to ensure the independence of its transmission system operator Yugorosgaz Transport in terms of its organization and decision-making from other activities not relating to transmission.
Since the Republic of Serbia had made no progress to ensure the full and proper unbundling of Srbijagas and Yugorosgaz Transport, on 10 August 2016 the Secretariat submitted a Reasoned Request to the Ministerial Council initiating Case ECS-09/13S under article 92 of the Treaty.
By its Decision 2016/17/MC-EnC of 14 October 2016, the Ministerial Council established a serious and persistent breach of the Energy Community law by declaring that the Republic of Serbia had failed to implement Decision 2014/03/MC-EnC, but postponed the adoption of measures under Article 92 of the Treaty to 2017. At the same time, the Secretariat was invited to request measures under Article 92 of the Treaty if Serbia failed to implement commitments made under the Government’s 2016 Action Plan and to rectify the breaches identified in Ministerial Council Decision 2014/03/MC-EnC.
In the aftermath of Decision 2016/17/MC-EnC, the Secretariat reminded the Republic of Serbia several times of its obligations and recalled the necessary implementation measures in order to rectify the breach. Moreover, despite the negative opinion of the Secretariat, the Energy Agency of the Republic of Serbia (AERS) certified Yugorosgaz Transport under the ISO model.
Since the Republic of Serbia did not take any measures to rectify the breach identified in Decision 2016/17/MC-EnC and the situation as regards the compliance of Serbia with the unbundling of natural gas transmission systems operators remained in breach of the acquis communautaire, on 12 October 2017, the Secretariat submitted a Request for Measures under Article 92 of the Treaty to the Ministerial Council.
In its Reasoned Request, the Secretariat submitted that the Republic of Serbia continued to breach Article 1 of Decision 2014/03/MC-EnC and provisions of Directive 2003/55/EC to which this Article refers, and thus persistently fails to implement Decision 2016/17/MC-EnC. The non-implementation of a Ministerial Council Decision under Article 91 or 92 of the Treaty by the Party concerned in itself constitutes a breach of Energy Community law and requests measures against the Republic of Serbia to be taken.