June 6, 2008
Another big issue is the review clause that the European Commission will have to produce five years after the directive comes into force. Under the current draft, the review would address “the extent to which the unbundling requirements [of the directive] have been successful in ensuring full and effective independence of transmission system operators”.
For the UK, the review should be made as stringent as possible and focus mainly on whether the ‘Third Way’ option has delivered. “The review clause needs to be tightened up,” said a British official, stressing that its main focus should be on “measuring the success of the third option.” According to the official, the clause should make clear that “the main principle of the directive is ownership unbundling”.
However, those claims are roundly rejected by France. “We are in favour of a strong regulatory system but the criteria should apply to all options in the same manner,” the French official stressed.
According to him, focusing the review only on the ‘Third Way’ would introduce an in-built bias in favour of one option. “We have to depart from this ideological debate where one solution is necessarily ‘good’ and the other is derogatory,” the official said.
In short, the directive’s ultimate objective should not be ownership unbundling, the French official insisted. “If the ‘Third Way’ works, why change it?,” he asks, adding that in this case, there would be “no reason to change the system even in ten or fifteen years”.
Suggestions that unbundling could be introduced after a transition period were also rejected as “a non-starter”, the official said, using Shakespeare’s language.
Under pressure, it seems the UK has begun a U-turn. “The review clause can be broadened” to also include ‘ownership unbundling’, the British official conceded. “But it should make clear that the third option receives special attention.”
‘Gazprom clause’: Towards a middle way
Finally, a reciprocity clause on investment, also dubbed the ‘Gazprom clause’, is causing concern among some EU countries. Under the clause, foreign companies would need to comply with the same unbundling requirements at home before making acquisitions in the EU. The deal would need to be signed in a bilateral agreement between the European Commission, on behalf of the whole EU, and the partner country.Supporting the clause are former Soviet satellite states such as Poland, which are pushing for a strong approach at EU level to protect their strategic energy transmission assets from acquisitions by Russian companies.
At the other end are countries like the UK, which worry about “a burdensome procedure” that would involve all 27 EU member states mandating the Commission to sign a bilateral investment deal that would have to be returned to the Council for approval.
British diplomats also worry that the clause would give the Commission new “creeping powers”. “The UK thinks it can deal with this without the EU,” one said.
From EurActivAuthor : EMI