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УПРАВЛЕНИЕ РАЗВИТИЕМ ИНТЕГРИРОВАННЫХ ЭКОНОМИЧЕСКИХ
СИСТЕМ
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Косински Э.
ОСОБЕННОСТИ РЕГУЛИРОВАНИЯ СЕКТОРА ПРИРОДНОГО ГАЗА В ПОЛЬШЕ НА БАЗЕ ЭНЕРГЕТИЧЕСКОГО ПАКЕТА ЕВРОПЕЙСКОГО СОЮЗА
Kosinski E.
THE PROCESS OF TRANSPOSITION OF EUROPEAN UNION LAW IN THE AREA OF NATURAL GAS SECTOR REGULATION IN POLAND
Ключевые слова: энергетический пакет, экономическое регулирование в газовом секторе, энергетический пакет Европейского союза
Keywords: power package, economic regulation in gas sector, a power package of the European union, small energy tri-pack
Аннотация: В работе рассматриваются особенности применения энергетического пакета Европейского союза для регулирования газового сектора в Польше. Приводятся поправки к энергетическому пакету и возможности применения Закона от 26 июля 2013 и рассматриваются экономические инструменты для процесса регулирования.
Abstrakt: In work features of application of a power package of the European union for regulation of gas sector in Poland are considered. Amendments are provided to a power package and possibility of application of the Law of July 26, 2013 and economic tools for regulation process are considered.
Introduction. The amendment of Energy Law Act by the Act Amending Energy Law Act and Other Acts of 26 July 26 2013 (the so-called "small energy tri-pack")
The new EU gas directive was adopted by the European Parliament and the Council on 13 July 2009. Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC1 is a third generation legal act (so-called "third energy package"). Previously, natural gas sector has been regulated by Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC2 of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas .
Moreover, the EU natural gas sector is also regulated by other legal acts, as inter alia, Regulation (EC) no. 713/2009 of the European Parliament and of the Council of 13 July 2009 Establishing an Agency for the Cooperation of Energy Regulators4, Regulation (EC) no. 715/2009 of the European Parliament and of the Council of 13 July 2009 on Conditions for Access to the Natural Gas Transmission Networks and Repealing Regulation (EC) no. 1775/20055 and Regulation (EU) no. 994/2010 of the European Parliament and of the Council of 20 October 2010 Concerning Measures to Safeguard Security of Gas Supply and Repealing Council Directive 2004/67/EC6.
Pursuant to Article 55 of the Directive 2009/73/EC it entered into force on the twentieth day following its issuing, that is on September 3 2009. Article 54 (English and French title: Transposition, German: Umsetzung and Polish correct should be: Wdrozenie) stipulates that member states undertake to transpose all measures required for the performance of the provisions of the directive by March 3 2011. Only the provisions concerning the certification of natural gas transmission system operators owned or controlled by person or persons from a third countries (not from the EU), i.e. Article 11 of Directive 2009/73/EC, should be applied in accordance with Article 54 of the directive from March 3 2013.
Polish government commenced the works on the new regulations directed at the
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transposition of the Directive 2009/73/EC (and electro-energetic
Directive 2009/72/EC7)
practically in 2010. However, the effects of these Works became visible in 2011. The first bill of the Act on Gas Law (as well as: Act on Energy Law regulating energetic sector, Act on Renewable Energy Sources, and acts enforcing Act on Energy Law so-called energy four-pack)
о
has been posted in 2011 on the website of Ministry of Economy . The most important bills were dated on: December 21 2011 and September 9 2012. As we can see, all of them are dated after the deadline for obligatory transposition of energetic directives.
The aim of new laws was to order and simplify the regulations within the energy sector and to regulate the matters concerning natural gas and renewable energy sources outside the Act on
1 EU Official Journal, no. 211, 14 Sept. 2009, p. 94-136.
2 EU Official Journal, no. 176, 15 Jul. 2003, p. 57-78.
3 EU Official Journal, no. 204, 21 Jul. 1998, p. 1-12.
4 EU Official Journal, no. 211, 14 Sept. 2009, p. 1-14. Agency for the Cooperation of Energy Regulators replaced in November 2003 its predecessor European Regulators Group for Electricity and Gas, established with the Commission Decision 2003/796/EC of November 11 2003 on Establishing the European Regulators Group for Electricity and Gas (EC Official Journal no. 296, Nov. 14 2003, p. 34-35). See Commission Decision of May 16 2011 on repealing Decision 2003/796/EC on establishing the European Regulators Group for Electricity and Gas (EU Official Journal, no. 129, May 17 2011, p. 14).
5 EU Official Journal, no. 211, 14 Sept., p. 36-54.
6 EU Official Journal, no. 295, 12 Nov. 2010, p. 1-22. The Regulation repealed previous Council Directive 2004/67/EC of Apr. 25 2004 on measures to safeguard security of natural gas supply, EU Official Journal, no. 127, 26 Apr. 2004, p. 92-96 (Polish special edition Chapter 12 Volume 03, p. 19-23).
7 Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC. EU Official Journal No. 211, Aug. 14 2009, p. 55-93.
8 www.mg.gov.pl
Energetic Law of April 10 19979, introducing market-oriented solutions (market opening, liberalisation) and consumer protection mechanisms (particularly vulnerable customers), ensuring a better security of energy supplies (including natural gas supplies in compliance with Regulation (EU) no. 994/2010 of the European Parliament and of the Council of 20 October 2010).
The above objectives of the authors of the Project have not been accomplished. As a consequence, the Polish parliament has been forced to adopt an amendment of the Act on Energy Law of April 10 1997 by enacting Act Amending the Act on Energy Law and Other Acts of July 26 2013 (so-called small energy tri-pack10; which further in this work will be referred to as the 2013 amendment).
The objectives of Directive 2009/73/EC
The Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009
concerning common rules for the internal market in natural gas and repealing Directive
2003/55/EC fulfils all the regulatory standards which should be met by up-to-date provisions
relating to infrastructure and networking sector11. First of all, the directive introduces a set of
complex instruments towards the stimulation (activation) of competition in natural gas market(s)
on various trading stages (retail, wholesale, transmission, distribution, delivery, storage,
liquefaction, regasification, etc.). In the case of inability to stimulate the competition in the short-
and mid-term perspective, the aim of regulations is to create mechanisms replacing as if the
actions of the competition and its simulation. Such defined Aims may be collectively categorised
as pro-economic objectives (the implementation of free market economic principles and 12 • • , consumer welfare ). Secondly, Directive 2009/73/EC introduces the instruments for the
protection of (households, including so-called vulnerable customer) consumers and final
consumers of common goods (e.g. collective, protective and social welfare goods). Thirdly,
except for the Regulation (EU) no. 994/2010 of the European Parliament and of the Council of
20 October 2010 concerning measures to safeguard security of gas supply and repealing Council
Directive 2004/67/EC, the directive also introduces instruments ensuring the security of natural
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gas supplies. It is also the element of energy security in a broader sense . Fourthly, the directive along with several other EU acts ensures the protection of natural environment.
Considering the level of state intervention in the energy sector, including natural gas sub-sector, the attention should be drawn to the notion of "welfare idea"14 as a contemporary aim of the state to interfere in particular sectors of economy. Intervention aiming at total welfare consists of elements focusing on consumer protection and instruments established for the benefit of entrepreneurs and economy markets (possibly all markets). There are positive effects for the whole society (the welfare of all members of society equally...15). Welfare seen in this perspective seems to be the ideal objective. It includes the essence of all vital tasks associated with nowadays' infrastructure and network sector regulations.
9 That is Journal of Laws 2012, position 1059 as amended.
10 Compare e.g. „Czysta Energia", no. 2(138)/2013, „Z duzej chmury.... mafy trojpak energetyczny". See the above periodical: Urszula Wojciechowska, Od redaktora. Nie jest dobrze!, p. 3. See also inter alia: Dariusz Ciepiela, Trojpak energetyczny: postqp czy krok wstecz ?, http://energetvka.wnp.pl/troipak-energetvcznv-postep-czy-krok-wstecz,185883 1 0 0.html; and: http://www.lex.pl/czvtai/-/artvkul/malv-troipak-energetvcznv-ma-bvc-uchwalonv-przed-wakaciami.
11 Broadly in: Eryk Kosinski, Cele i prawne instrumenty regulacji sektora gazu ziemnego w Unii Europejskiej, print in preparation to monograph Konkurencja na rynku gazu. Uwarunkowania prawne, Wydawnictwo UAM, Poznan 2014.
12 Broadly on consumer welfare in: Eryk Kosinski, Daniel Wojtczak, Prawna dopuszczalnosc i srodki relatywizacji zakazu naduzyciapozycji dominujqcej w Polsce, RPEiS 2012, z. 4, p. 111, p. 117-118.
13 On energetic security, including its subjective scope, see broadly in: Miroslaw Pawelczyk, Publicznoprawne obowiqzki przedsiqbiorstw energetycznych jako instrument zapewnienia bezpieczenstwa energetycznego w Polsce, Torun 2013, p. 25 i n.
14 See Pinar Akkman, The Concept of Abuse in EU Competition Law. Law and Economic Approaches, Oxford and Portland, Oregon, 2012, 30 i n.
15 Ibidem.
III. Instruments for the realisation of pro-economic objectives
One of the main objectives of infrastructure and network sector regulations are to stimulate to the maximum degree the competition, eventually replacing its mechanisms in case of natural monopoly in a given market (usually occurring on the part of infrastructure or technical network owners'). It results from the fact that previously these sectors were state-owned (as an outcome of post-war widespread nationalisation throughout the Europe)16 and, in one way or another, they
17
were subjected to public monopoly (either legally or factually) . Thus, state influence on
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particular economy sectors originated from ownership relationships (private law). Currently, due to a common demonopolisation, liberalisation and privatisation of public service sectors it is essential to ensure their maximum optimisation. The above mentioned (post-monopolistic, postpublic) specific situation of the public service markets determines the need for the introduction of specific legal mechanisms. At the same time, they need to correlate with the fulfilment of previously established objectives of state's social policy, primarily on ensuring a free access to common goods in order to satisfy the demand for them and to maintain a proper quality and a moderate (available) price.
The first of the main19 pro-economic and strongly pro-competitive mechanism (realising consumer welfare principle) is a broadly understood obligation to separate (or obligation to split or unbundle) certain activities from the organisations which carry them out. In the first place it is required to separate performance of the state's administrative functions (regulating functions) from conducting economic activities. An undertaking conducting economic activities in the energy sector cannot be granted regulatory competences at the same time (as previously was the case with for example: British Central Electricity Generating Board until the privatisation in 1990's). The obligation to separate functions results directly from the obligation to establish independent regulatory authorities in the energy sector, including natural gas sector, in all EU member states2 . According to the Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC regulatory authority (Polish: organ regulacyjny, French: autorité de régulation nationale, German: Regulierungsbehorde) shall have a guarantee of independence in order to ensure that it exercises its powers impartially and transparently (Article 39 Paragraph 4 of the Directive 2009/73/EC). In order to do so, the regulatory authority should be legally distinct, functionally and politically independent from any other private or public entities, and its board members could be dismissed only on the impartial grounds provided for in the directive (Article 39 Paragraph 4 and 5). Subjective or political grounds are excluded from this category.
Some of the tasks of the regulatory authority are: promoting a competitive, secure and environmentally sustainable internal market in natural gas within the Community, as well as effective market opening for all Community customers and suppliers, and ensuring appropriate conditions for the effective and reliable operation of gas networks (Article 40 Point a of the Directive 2009/73/EC).
16 On the nationalisation after 1945 in Great Britain see broadly in: William A. Robson, Nationalized Industry and Public Ownership, Revised Second Edition, London 1962, p. 29 i n.
17 Compare Bent Ole Gram Mortensen in: Bent Iversen, Pernille Wegner Essen, Bent Ole Grant Mortensen, Michael Stenicke, Karsten Engsig S0rensen, Regulating competition in the EU, 2nd Edition, Copenhagen 2012, p. 536.
18 Ibidem.
19 A detailed catalogue of regulatory instruments differs depending on the author in particular area of regulatory law. See for example: M. Pawelczyk, Publicznoprawne obowiqzki przedsiqbiorstw energetycznych jako instrument zapewnienia bezpieczenstwa energetycznego w Polsce, op. cit., p. 309 i n. (Chapter 3 Instrumenty ochrony konkurencji w sektorze energetycznym zapewniajqce bezpieczenstwo energetyczne).
20 Energy directives lack an equivalent of Article 22 of postal directive, ordering to separate a regulator conducting economic activity from regulatory authority. Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, EU Official Journal no. 15, 1st Jan. 1998, p. 14-25; Polish special edition: Chapter 06 Volume 03, p. 71-82.
Second of all, certain parts of undertakings, traditionally integrated vertically, should be separated. First of all this is the entity managing the network infrastructure which should be separated first. Pursuant to Article 9 Paragraph 1 of the Directive 2009/73/EC member states
ensure from March 3rd 2012 that transmission system operators (system owners) are separated
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from entities producing or supplying natural gas . This separation shall take place in four dimensions: organisational (the separation of legal entities), functional (personal, concerning top management: it is prohibited to hold positions both in transmission system operator governing bodies and in undertakings operating in the sector; the independence of the employees and management of the operator of transmission system), accounting (the separation of bookkeeping), and ownership structure. The aim of the above separation is to avoid the discrimination in the usage of the whole network and to stimulate network investments (see Point 6 and 7-9 of the Preamble to the Directive 2009/73/EC).
Detailed terms and standards concerning the independence of transmission system operators are regulated by Articles 17-19 of the Directive 2009/73/EC. The supervision of the fulfilment of these requirements is conferred upon a supervisory board (Polish: organ nadzoruj^cy, French: Organe de surveillance, German: Aufsichtsorgan) functioning within the transmission system operator. This organ is responsible for decisions having significant influence on the value of the assets of the shareholders of the transmission system operator, in particular for the decisions approving annual and long-term financial plans, the level of indebtedness of the transmission system operator and the amount of dividend received by shareholders. The activities of supervisory board cannot influence the day to day operations of the transmission system operator and the management of the network (Article 20 Paragraph 1).
Moreover, the supervision of the fulfilment of the separation is much easier due to the compliance programme (Polish: program zgodnosci, French: programme d'engagements, German: Gleichbehandlungsprogramm). Transmission system operators are obliged to introduce it following the approval by the regulatory authority (Article 21 Paragraph 1 of the Directive 2009/73/EC). Programme's main objective is to exclude any discrimination by the operator. Supervisory board appoints a compliance officer (Polish: inspektor do spraw zgodnosci, French: le cadre chargé du respekt des engagement, German: Gleichbehandlungsbeauftragter). The officer is approved by the regulatory authority and monitors the implementation of the compliance programme, submits relevant reports and notices to the operator's supervisory board and regulatory authority (Article 21 Paragraph 3 of the directive).
Apart from designating transmission system operators, member states shall also designate storage system and LNG operators (Article 12 of the Directive 2009/73/EC), as well as distribution system operators (Article 24)22. Pursuant to Article 25 Paragraph 1 of the Directive 2009/73/EC distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas, and for operating, maintaining and developing under economic conditions a secure, reliable and efficient system in its area, with due regard for the environment and energy efficiency.
The objective of all system operators is to ensure the operation, maintaining and development of secure, reliable and efficient transmission and storage facilities and LNG installations under economic conditions. These objectives shall secure open market with due regard to the environment and ensure adequate means and supplies to meet service obligations (Article 13 Paragraph 1 Point a of the Directive 2009/73/EC). The elimination of discrimination between all system users (in particular in favour of an operator's related undertaking, Article 13
21 Only the first gas directive 98/30/EC (EU Official Journal no. 204, 21 Jul. 1998, p. 1-12; Polish special edition: Chapter 12, Volume 02, p. 28-39), unlike electro-energetic directive 96/92/EC (EU Official Journal no. 27, 30 Jan. 1997, p. 20-29), did not contain provisions concerning the designation of transmission network operators; whereas, the subsequent directive (the second one) 2003/55/EC, like the electro-energetic directive, did contain such provisions. See B.O.G. Mortensen, op. cit., p. 626-627.
22 The obligation to designate distribution system operators appeared already in the second gas directive in 2003. See ibidem, p. 626.
Paragraph 1 Point b) is also an important objective.
The next equally important natural gas regulatory instrument, after the obligatory separation, is the guarantee of a third party access (TPA) to network and infrastructure. This right relates to essential facilities23 or bottleneck facilities24 doctrine, defined as monopolised
25
input, necessary both for the owner and consumers, in the final product market .
Gas Directive 2009/73/EC grants the right of access to the transmission system26, distribution system, LNG facilities (Article 32 Paragraph 1), to storage facilities and linepack (Article 33 Paragraph 1), as well as to upstream pipeline networks (Article 34 Paragraph 1). The right of access to network and facilities is not absolute and may be limited inter alias for technical reasons, lack of capacity or connection, or public service obligations imposed on the gas undertakings (Article 35 Paragraph 1 and 2).
The access to transmission and distributions systems and to LNG facilities is charged based on published tariffs approved by the regulatory authority (Article 32 Paragraph 1).
The third pro-economic instrument is the right to supply and to receive natural gas supplies via direct lines (Polish: gazoci^gi bezposrednie, French conduites directes, German
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Direktleitungen)27. Direct lines are direct connections between producers or suppliers and final customers. They run outside the existing transmission and distribution networks due to network by-passes. In fact they enable to stir natural monopolies of the network owners. They constitute a
serious alternative for the third parties right of access to network and facilities (TPA). In Europe
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a real development of direct lines has been noted mainly in Germany .
Pursuant to Article 38 Paragraph 1 of the Directive 2009/73/EC member states shall take necessary measures to ensure that gas undertakings established within their territory may supply eligible customers with natural gas through direct lines.
Member states may require an authorisation (for example, licence, permission, concession, consent or approval) for the construction or operation of a direct line but the requirement shall be established in accordance with objective, transparent and non-discriminatory criteria (Article 38 Paragraph 2).
There is a dispute in the literature, whether member states can limit or even prevent third parties access to networks and facilities in the case of direct lines (reasoning based on Article 34 Paragraph 3 of the Directive 2009/73/EC). However, the prevailing view is that network access has a basic, fundamental character, while the right to supply and receive supplies (or the right to construct direct lines) is generic and secondary. As a consequence, the right of access to direct
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lines cannot be subject to limitations29.
The fourth instrument is the definition of the scope of entities authorised to choose the
30
natural gas supplier, defined as eligible customers (Polish: uprawnieni odbiorcy, English: eligible customers, French: clients eligibles, German: zugelassene Kunden). Since July 1 2007
23 See broader: Derek Ridyard, Essential Facilities and the Obligation to Supply Competitors under UK and EC Competition Law, ECLR 1996, No. 8, p. 438 i n. and p. 451-452, or Michal Bçdkowski-Koziol, Wplyw amerykanskiej doktryny „essential facilities" na rozwoj europejskiego prawa antymonopolowego, PUG 2000, no. 12, p. 2 i n.
24 See William J. Baumol, Janusz A. Ordover, Robert D. Willig, Partity Pricing and Its Critics: A Necessary Condition for Efficiency in the Provision of Bottleneck Services to Competitors, Yale Journal on Regulation 1997, no. 14, p. 145.
25 W.J. Baumol, J.A. Ordover, D. Willig, ibid.
26 Detailed rules of access to transmission networks are stipulated in Regulation (EC) no. 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) no. 1775/2005.
27 The concept of direct lines appears identically in electro-energetic directive - Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (EU Official Journal no. 211, 14 Aug. 2009, p. 55-93) - Article 34 Paragraph 1.
28 See B.O.G. Mortensen, op. cit., p. 570-571.
29 See ibidem, p. 632, and the literature mentioned there.
30 Concept defined in Article 2 Point 28 of the Directive 2009/73/EC (directive dictionary).
all customers (industrial and households) are authorised to choose natural gas supplier. The right to choose supplier correlates with the right to change the already chosen supplier (Article 3 Paragraph 6). What is more, the Directive 2009/73/EC allows to choose the supplier from all member countries (Article 3 Paragraph 5).
The fifth pro-economic instrument, establishing a distinction between the regulation of facilitating sectors and networking sectors, is the duty of member states to designate independent regulatory authority (Article 39 Paragraph 1 of the Directive 2009/73/EC) with specific regulatory scope of its objectives (Article 40-41). Independence criteria were discussed above while describing the obligation to separate administrative and economical functions.
Another economic and pro-competitive instrument is the prohibition of (cost-related) cross-subsidising. Basically, cross-subsidising may take place between separate entities belonging to the same capital group, or within one particular unit. From the technical point of view, subsidising may be realised by cost allocation or by transfer (of financial or other asset
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surpluses) . The prohibition of cross-subsidising relates to the transmission, distribution, LNG, and storage- all of the subsections of gas sector (Article 31 Paragraph 1 of the Directive 2009/73/EC). The duty to ensure that the above obligations are fulfilled belongs to the regulatory authorities of member states (Article 41 Paragraph 1 Point f of the directive).
The principle of non-discrimination of undertakings is also exceptionally important from the pro-economic point of view. It relates mainly to the elimination of discrimination between public and private sector (Point 20 of the Preamble of the Directive 2009/73/EC). The principle of non-discrimination is basic and fundamental rule of sector regulation, as it serves better realisation of particular regulatory instruments mentioned before; for example third parties access to network and infrastructure (TPA)32.
Furthermore, regulations concerning transit in the transport of natural gas are also important from the competition point of view. This matter is regulated in Article 42 of the Directive 2009/73/EC and in Regulation (EC) no. 715/2009 of the European Parliament and of the Council of 13 July 2009 on Conditions for Access to the Natural Gas Transmission Networks and Repealing Regulation (EC) No. 1775/2005. Natural gas sector has no separate regulations on cross border transit of natural gas33.
Similarly, the obligation to ensure the transposition of technical criteria in the safety of the functioning of gas systems (Article 8 of the Directive 2009/73/EC). The objective of this transposition is to ensure the interoperability of systems, including for example enabling cross border operations.
III. The instruments of the realisation of social welfare objectives (pro-social)
Social welfare objectives are realised by the state as a part of the regulation of facility and network sectors and they concern both social welfare policy of the state (the support of poor customers, etc.) and consumer rights protection, since they are the weaker party to the agreement for the delivery of particular goods.
The first pro-social instrument is the institution of vulnerable customers (Polish: odbiorcy wrazliwi, French: consommateurs vulnérables, German: schutzbedurftigen Kunden). Pursuant to Article 3 Paragraph 3 of the Directive 2009/73/EC member states shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers, i.e. economically weak recipients of natural gas (the poor). Member states have legal obligation to define the concept of vulnerable customers. According to the directive, it may refer to energy poverty and may be connected to the prohibition of disconnection of gas to such customers in critical times. member states are obliged to ensure that the rights and obligations linked to vulnerable customers are applied. In particular,
31 See broadly in: Leigh Hancher and José Luis Buendia Sierra, Cross-Subsidization and EC Law, Common Market Law Review Vol. 35 1998, p. 906 i n.
32 See Article 3 Paragraph 1 and 2, Article 4 Paragraph 2 and 3, Article 7 Paragraph 4, Article 8, and further of the Directive 2009/73/EC. See also Preamble to the Directive 2009/73/EC, Point 25 i n.
33 See B.O.G. Mortensen, op. cit., p. 632.
they shall take appropriate measures to protect final customers in remote areas who are connected to the gas system. The directive stipulates that member states shall take appropriate measures, such as formulating national energy action plans, providing social security benefits to ensure the necessary gas supply to vulnerable customers, or providing support for energy efficiency improvements (including inter alia so-called smart grids and smart meters). These measures should serve solving identified so-called energy poverty issues, including the poverty in the broader context as well (Article 3 Paragraph 4). It is unacceptable to charge privileged natural gas tariffs (so-called social tariffs) which in fact charge sector undertakings. Social care is realised through, e.g. energy benefits (financed on the basis of social care) or applying special price discounts refunded to undertakings by the state.
The second pro-social instrument is the possibility to designate for the customers connected to the gas system so-called ex-fficio supplier (supplier of last resort, emergency supplier34; Article 3 Paragraph 3 in medio of the Directive 2009/73/EC). Ex-officio supplier shall supply natural gas to the final customers in critical, emergency times, when no supplier either provide his services or is able to provide them.
The third instrument is the right to choose natural gas supplier (with suppliers consent). This right applies to the whole EU territory (Article 3 Paragraph 5 of the Directive 2009/73/EC). The exercise of the right to choose the natural gas supplier is possible thanks to inter alia the right to change supplier. Pursuant to Article 3 Paragraph 3 in fine of the Directive 2009/73/EC, this right, starting from July 1 2007, shall apply to all natural gas customers and households (so-called eligible customers). According to the directive, the possibility to change the supplier
35
should be real and easy, free from any charges35 and the time of the procedure shall not take more then 3 weeks (Article 3 Paragraph 6 of the directive).
The fourth very important pro-social instrument is the right to impose on gas undertakings so-called public service obligations (Polish: obowiqzki sluzby publicznej36, French: obligations de service public, German: Verpflichtungen). These obligations are connected to providing services of a general economic interest (see Article 14 and Article 106 Paragraph 2 of TFEU)37.
Public service obligations generally relate to security, including security of supply, regularity, quality and price of supplies, and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for natural gas undertakings of the Community to national consumers (Article 3 Paragraph 2 of the Directive 2009/73/EC). The undertakings with public service obligations imposed upon them, may be relieved from some legal obligations, obstructing or preventing them from fulfilling public service obligations (see Inter alia Article 3 Paragraph 10 of the Directive 2009/73/EC).
As a part of public service obligations member states may designate ex-officio supplier. The obligation to supply natural gas may refer to certain territory or category of customers. In the case of such supplies, tariffs and prices of natural gas may be regulated.
The main obligation of public service is to supply households with particular type of goods. This obligation shall be fulfilled taking into account the appropriate quality of the goods,
34 Such terminology is used by the Energy Regulatory Office. See http://www.ure.gov.pl/wai/pl/321/2228/ Zalacznik Definicie.html.
35 See Paragraph 1 Point e Annex I to the Directive 2009/73/EC.
36 The term obowiqzki uzytecznosci publicznej appears in the Polish language version of the Directive 2009/73/EC. In my opinion, more appropriate term would be obowiqzki sluzby publicznej because the concept of uzytecznosc publiczna appears in Polish local government acts and in Act on Municipial Services in which it has a different subjective and objective scope of significance.
37 See Eryk Kosinski, Uslugi w ogolnym interesie gospodarczym a reguly ochrony konkurencji w Unii Europejskiej, Ruch Prawniczy, Ekonomiczny i Socjologiczny 2005, no. 4, p. 133 i n., and by the same author: Realizacja uslug w ogolnym interesie gospodarczym w transporcie kolejowym w Polsce. Na zakrqcie przemian, in: Cezary Banasinski, Edward Stawicki, ed., Konkurencja w gospodarce wspolczesnej, Urz^d Ochrony Konkurencji i Konsumentow, Warsaw 2007, p. 230 i n.
its moderate price, and, regardless undertakings' profitability (on a particular territory to a
38
particular group of customers) .
Relevant literature often notices that the protection of customers is often weaker than in the case of protection established on the grounds of electro-energetic directive (Directive 2099/72). This is mainly a result of the fact that natural gas, unlike electric energy, is not seen as a
39
fundamental, primary energy source .
The next pro-social instrument is the obligation to establish by each member state an independent regulatory authority which realises not only pro-economic but also pro-social objectives (Article 40-41 of the Directive 2009/73/EC).
Finally we need to notice several pro-social obligations imposed by the Directive 2009/73/EC upon energetic undertakings. A regulatory authority usually ensures that they are met. We can enumerate: obligatory provisions included in gas supply agreements (Paragraph 1 Point a of the Annex I to the Directive 2009/73/EC), obligation to present transparent information on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gas services (Paragraph 1 Point c of the Annex I), other gas obligations (Paragraph 1 Point a, b, c, d, g, i, j of the Annex I), enabling customers the access gas consumption data and enabling this access free of charge for all gas undertakings (Paragraph 1 Point h of the Annex I).
The obligation of member states is to guarantee a proper and high level of the settlement of the disputes between consumers and gas undertakings (Article 3 Paragraph 3 of the Directive 2009/73/EC). In the first place the customers should have the right to submit the complaint directly to the gas undertaking which should handle it. Such out-of-court procedure should take no longer than 3 months and should ensure reimbursement and compensation (Paragraph 1 Point f of the Annex I)40. Moreover, member states shall ensure the provision of single points of contact to provide consumers with all necessary information concerning their rights, current legislation and the means of dispute settlement. Such contact points may be part of general consumer information points (Article 3 Paragraph 9 of the Directive 2009/73/EC).
What is more, member states shall ensure the functioning of consumer protection by establishing an energy ombudsman or a consumer protection body (Article 3 Paragraph 9 in fine).
IV. Instruments guaranteeing natural gas supplies security (energetic safety)
Since natural gas is a common (collective and social welfare) good one of the main objective of gas sector regulations is to guarantee supplies security. It appears that this aim constitutes nowadays an independent and equivalent task of infrastructure and network sector regulations. Pursuant to Article 3 Paragraph 2 of the Directive 2009/73/EC member states may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies. As we can see the main element of guaranteeing the security of supplies is the possibility to impose public service obligations upon gas undertakings.
Member states shall ensue prompt monitoring of security of supplies. They may delegate this task to their regulatory authorities. The reports setting out the conclusions on natural gas supplies security are published each year by 31 July. They are subsequently forwarded to the Commission (Article 5 of the Directive 2009/73/EC).
The objective to guarantee supply security is also present in detailed provisions concerning authorisation procedure (Article 4) and technical rules (Article 8).
Guaranteeing security of supplies is one of key objectives of member states' regulatory authorities (Article 40 Point a-f).
The guarantee of security supplies is additionally improved by regional solidarity (Article
38 See B.O.G. Mortensen, op. cit., p. 577.
39 Ibidem, p. 633.
40 See detailed procedures of dispute settlement: in Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer. EU Official Journal no. 115, 17 Apr. 1998, p. 31-34 (no official Polish version of the recommendation).
6) and promotion of regional cooperation (Article 7). However, these mechanisms are relatively ineffective due to the lack of truly common EU natural gas supplies policy (gas internal market)41. The provisions of Article 6 and 7 are soft, as they include expressions: coordination, informing, cooperation, etc.
The objective to guarantee energetic security of natural gas supplies is also specified in Regulation (Eu) No. 994/2010 of The European Parliament and of the Council of 20 October 2010 concerning measures to safeguard security of gas supply and repealing Council Directive 2004/67/EC. It concentrates on guaranteeing continuous gas supplies, particularly in case of difficult climatic conditions and in the event of disruption (Point 3 of the Preamble to the Regulation no. 994/2010). There is much concern in the necessity of implementing intensified diversification of gas routes and of gas sources of supply, what requires changes in the structure of fuels consumption, development of production in the Union and in third countries supplying the Union, investments in storage facilities and in the diversification of gas routes and of sources of supply within and outside the Union including Liquefied Natural Gas (LNG) facilities (Point 7-8, 15 of the Preamble). There is a strong emphasis on establishing new cross-border interconnections and on extending the already existing ones (Point 18 of the Preamble) in order to avoid the creation of network-separate gas islands (Point 2 of the Preamble). Much attention is also drawn to the protection of households and customers providing essential social services such as healthcare, childcare and education activities, other social and welfare services in the public interest, as well as the services indispensable for the functioning of member states (Point 10 of the Preamble). The regulation guarantees the implementation of emergency reaction mechanisms, e.g. in case of serious disorders in natural gas supplies on the national, regional and community level.
Basic means for the security of supplies in emergency situations are: prohibition to apply the measures unduly restricting the flow of gas within internal market, prohibition to apply the measures endangering seriously the gas supply situation in another member state and the prohibition of cross-border access to infrastructure in accordance with Regulation (EC) No. 715/2009 as far as technically and safely possible, in accordance with the emergency plan (Article 10 Paragraph 7, Article 11 Paragraph 5 of the regulation). There are no elements of common EU policy in natural gas sector. Gas Coordination Group, established by the regulation has mainly a consultative character (Article 12 of the regulation). There are also no governing competences of the European Commission concerning natural gas (Article 14).
V. Instruments of natural environment protection
Natural environment protection is one of the main objectives of the Directive 2009/73/EC. It is stipulated in Point 44 of the Preamble to the directive. We need to notice that this objective of sector regulation is considered to be relatively new and it is established not only in the said regulation. Natural environment protection is a part of a separate area of environmental law. Nonetheless, infrastructure and network sector regulations enable to introduce specific measures of environment protection, related directly to (pro-economic and pro-social) regulatory instruments. These close relations suggest that the intention of legislator is to extend regulatory objectives and measures with environment protection. It results mostly from awareness of how important the natural environment is in the contemporary world.
The objective of natural environment protection is realised with public service obligation (PSO) imposed on the natural gas sector undertakings (Article 3 Paragraph 1, 2 and 7 of the directive) as well as with the concept of energetic efficiency (management of natural gas demand) and also with means towards the prevention of climate change (Article 7). In order to promote energetic efficiency member states and their regulatory authorities encourage gas undertakings to apply gas consumption decimalisation through various energy management
41 See broadly in: Communication from the Commission to the Council and the European Parliament Report on progress in creating the internal gas and electricity market, Brussels 11 March 2010 K0M(2010)84 final version, SEK(2010)251.
services, development of innovative price formulas or by introducing smart meters and smart grids (Polish: inteligentne sieci, French: réseaux intelligents, German: intelligente Netze einführen; Article 3 Paragraph 8 of the directive). What is more, national regulatory authorities are also obliged to act for the benefit of natural environment (Article 40 Point a -environmentally sustainable natural gas market, Point d - energy efficiency, Point e - renewable energy sources).
VI. The level of adjustment of the the Polish Act on Energy Law of 10 April 1997 to the EU law following the 2013 amendment. Final conclusions
The level of adjustment of the the Polish Act on Energy Law of 10 April 1997 to the EU law, in particular to the Directive 2009/73/EC, concerning pro-economic instruments, is fairly satisfactory. We need to underline that generally the majority of pro-competitive instruments were incorporated in the Act on Energy Law prior to the 2013 amendment. Nevertheless, the amendment introduced several important solutions which completed and defined more precisely previous provisions. Certain legal institutions have been adequately regulated, detailed, specified, and extended in order to transpose the provisions of the Directive 2009/73/EC. Article 4e1 introduced with 2013 amendment and modified Article 9d provide for a visible separation of natural gas transmission, distribution, storage, liquefaction, and regasification services, guaranteeing that independence criteria are met, in accordance with the directive (organisational septation: of entities, different legal persons; functional separation: personal separation relating to top management- prohibition to hold two or more positions, decision-making independence), accounting (the separation of bookkeeping). Pursuant to Article 9d Paragraph 1h (paragraph added by the amendment) transmission and distribution system operator as well as connected system operator shall neither conduct their economic activity related either to gaseous fuels or to electricity production and trading nor conduct their economic activity based on an agreement to the benefit of other energy enterprises. Article 44 of the Act on Gas Law has been amended as well. It obliges gas undertakings to introduce the separation of bookkeeping.
The 2013 amendment introduced independence certificate (the certificate of compliance with criteria prescribed by the Act on Energy Law). Pursuant to Article 9h1 of the Act on Energy Law the President of Energy Regulatory Office (ERO) only the energetic undertaking which has been granted the certificate of compliance with independence criteria may be appointed as a transmission or connected system operator. Before granting the certificate, the European Commission takes its stance in this matter (Article 9h1 Paragraph 3 of the act). The certificate is issued in the form of administrative decision, published with the Commission's opinion in the ERO Bulletin (Article 9h1 Paragraph 9 of the act).
Pursuant to Article 9d Paragraph 4, in the form after the 2013 amendment, operators prepare and are responsible for the realisation of the programmes setting out the projects which shall be realised in order to ensure a non-discriminatory treatment of system users, as well as setting out detailed obligations of certain employees. The programmes are submitted to the President of ERO (Article 9d Paragraph 4a) and approved by an administrative decision (Article 9d Paragraph 4b). Monitoring of the programmes, in accordance with Directive 2009/73/EC, is a task of compliance officers designated by the operators (Article 9d Paragraph 4). There is no statutory regulation of the obligations of operator's supervisory authority concerning the supervision of the fulfilment of independence requirements. Supervisory boards or audit committees of companies and commercial law partnerships do not have such obligations imposed by the company law regulations.
Legal guarantees of third parties access (TPA) to network and infrastructure had been regulated in Act on Energy Law prior to the 2013 amendment (Article 4 Paragraph 2, Article 4c Paragraph 1-2). Article 4i of the act has been adjusted to the Directive 2009/73/EC in order to allow not to fulfil the obligation to separate or to grant access to the infrastructure to third parties from time to time in case of investment in the new gas infrastructure.
The 2013 amendment brought a long awaited legal guarantees of the independence of the regulatory authority. Regulatory authority - the President of ERO - becomes in fact politically
independent mostly because of an unbiased appointment procedure (Article 21 Paragraph 2a-2j), introducing 5-year term (Article 21 Paragraph 2l) and a closed catalogue of objective grounds for his early dismissal (Article 21 Paragraph 2m). The competition for the appointment of the President of ERO, according to the new rules, shall be held within 6 months following the
42
amendment's entering into force .
The ability to supply natural gas though direct lines had been possible before the 2013 amendment (see Article 3 Point 11e, Article 7a Paragraph 3, Article 9 Paragraph 1 Point 2 i Paragraph 4 Point 2 of the Act on Energy Law).
The right to choose natural gas supplier had been included in the act before the 2013 amendment as well (see Article 4j Paragraph 1 of the Act on Energy Law). However, the 2013 amendment introduced a detailed legal regulation concerning the termination of the natural gas distribution agreement (by doing so, enabled the ability to change the supplier in accordance with the Directive 2009/73/EC). There is no direct indication that the right to choose the supplier extends to all EU member states (Article 3 Paragraph 5 of the Directive 2009/73/EC).
Similarly, the prohibition of cross-subsidising has been also introduced by the Act on Energy Law before the 2013 amendment (in 2005) - however - a number of adequate provisions has been adequately amended (see Article 3 Point 32, Article 44 Paragraph 3, Article 46 Paragraph 1, 3 and 5; see also the new Ordinance of the Minister of Economy Concerning Detailed Rules for Setting and Calculating Tariffs and Settlements in Gaseous Fuels Trading of 28 June 2013 (Journal of Laws of 2013, pos. 820).
The principle of non-discriminatory treatment of undertakings is guaranteed by the Act on Energy Law on various levels. Guarantees have been strengthened with the 2013 amendment (see inter alia: Article 4 Paragraph 2, Article 4c Paragraph 1, Article 4d Paragraph 1, Article 4e Paragraph 1, Article 4i Paragraph 4, Article 4j Paragraph 2, Article 5a Paragraph 1, Article 7 Paragraph 1, Article 9 Paragraph 1, Paragraph 2 Point 11, Paragraph 3, Paragraph 7, Article 9c Paragraph 1, Paragraph 2 Point 11 and Paragraph 3 sentence first and Point 8, Article 9d Paragraph 11, Paragraph 4 and Paragraph 4b, Article 56 Paragraph 1 Point 22 and Point 23).
Concerning cross-border connections, the amendment added Article 15f to the Act on Energy Law, stipulating that the minister in charge of economy and the President of ERO are obliged to cooperate with other member states' authorities in order to create a fully competitive gaseous fuels market, in particular by promoting and enabling the transmission system operators cooperation through cross-border connections.
The Article 49b added by the 2013 amendment is seen as a particularly positive modification. It introduces so-called exchange obligation in natural gas trading (conceptually based on the exchange obligation in electricity, established in Article 49a, introduced with the amendment of 9 September 2010), which in 2015 shall be set at a minimum rate of 55% (in 2013 it was 30%, in 2014 it is at least 40%43). This mechanism has a clearly pro-market character44.
Referring to pro-social instruments we need to notice that the 2013 amendment introduced a concept of vulnerable customer of gaseous fuels (Article 3 Point 13d) and vulnerable customer of electricity (Article 3 Point 13c). There are no regulations granting any financial support for vulnerable customers of gaseous fuels but vulnerable customers of electricity enjoy so-called lump energy benefit (Article 5c-5g of the Act on Energy Law). Social welfare for fuel purchase is regulated with the Act on Housing Benefits of 21 June 200145. Article 6 Paragraph 7 of the above act provides: If a dwelling is not provided with heating system, hot water system, nor gas system transmitting the energy from an external source, the person entitled to housing benefits shall receive a lump sum for fuel purchase as a part of housing benefit. So as we can see, households lacking natural gas supplies from an external source are entitled to lump sum for fuel
42 See Article 18 Paragraph 2 of the Act Amending the Act on Energy Law and Other Acts of 26 July 2013.
43 See Article 25 of the Act Amending Act on Energy Law and Other Acts of 26 July 2013.
44 For a comparison, exchange obligation in electricity trade is at least 15% (Article 49a Paragraph 1 of the Act on Energy Law).
45 That is Journal of the Laws, pos. 966 as amended.
Вестник Волжского университета имени В.Н. Татищева № 2 (31) 2014 purchase.
The institution of ex-officio supplier46 has been introduced with Article 5a of the Act on Energy Law. The procedure of designating ex-officio suppliers is defined in Article 91. Pursuant to Article 5a Paragraph 1 ex-officio supplier is obliged to ensure a provision of a comprehensive
47
service and to enter into a comprehensive agreement with the customer of gaseous fuels or electricity in a household, not excising his right to choose supplier and connected to the energy network indicated in the concession of ex-officio supplier.
Ex-officio suppliers are appointed basing on the tendering procedure by the President of ERO (Article 9i). There is no possibility to designate ex-officio supplier literally in the ex-officio procedure - that is - in the event of imposing administrative obligations upon a certain undertaking. Potential problems with natural gas supplies (and electricity) shall be dealt with pursuant to Article 40 of the Act on Energy Law. It provides that the President of ERO may oblige an energy undertaking, despite the termination of the concession, to further conduct its
48
activity for a term of 2 years . This duty may presumably be imposed again after the lapse of the said 2 years' term49.
It needs to be noticed that the provisions discussed above did not require legislator's adjustments. The 2013 amendment did not introduce any modifications in this scope. However, certain changes were applied to the part concerning the sales of gaseous fuels and a comprehensive agreement (Article 5 Paragraph 4b). They are focusing on a better protection of individual customers (households).
The right to choose natural gas supplier, pursuant to Article 4j Paragraph 1 of the Act on Energy Law, is granted to all customers, including households. The 2013 amendment introduced a simplification of the procedure of changing of the supplier, adjusting Polish provisions to the Directive 2009/73/EC (see Article 4j Paragraph 3-3a and Paragraph 6-7). Pursuant to Article 4j Paragraph 6 and 7 of the Act on Energy Law (after the amendment) transmission and distribution system operators are obliged to enable the customer of gaseous fuels and electricity the change of the supplier no later than within 21 days following the day of noticing the appropriate operator about the fact of entering into sales or comprehensive agreement with a new supplier. The "old" supplier is obliged to settle all the liabilities with the customer who exercised his right to change the supplier not later than within 42 day following the date of the change. Transmission or distribution system operator is obliged to disclose to "old" or new supplier the information on the amount of consumed gaseous fuels or electricity within the date enabling the "old" supplier to settle with customer.
The obligation of gas undertakings to supply the customers with natural gas is realised through the public law50 obligation of gas undertakings to conclude the network connection agreement on the basis of equal treatment. This obligation may be limited only based on the
46 Ex-officio supplier is defined as an energy undertaking with a concession for gaseous fuels and electricity trade, providing comprehensive services to gaseous fuels and electricity household customers not exercising their right to choose the supplier (Article 3 Point 29 of the Act on Energy Law).
47 Comprehensive service is defined as a service provided pursuant to an agreement incorporating sales and gaseous fuels or energy transmission or storage service level provisions (Article 3 Paragraph 30 of the Act on Energy Law)
48 Regulation of this type is not extraordinary. Identical regulatory authority's competences were present in the deregulatory provisions in the USA in energy, transportation or telecommunication sectors. The realisation of these competences took place by granting the same permissions for both starting and closing of economic activity (Certificate of Public Convenience and Necessity), see: 49 U.S.C. § 1 Point 18, 49 U.S.C. § 1371 Paragraph a and d Point 1, 47 U.S.C. § 214, and further). Compare inter alia J. D. Kearney, T. W. Merrill, op. cit., p. 1335.
49 Different opinion in H. Palarz: Prawo energetyczne z komentarzem, Gdansk 2004, p. 189 (Paragraph 3). Other authors do not refer to this matter. See Marlena Jankowska, Miroslaw Pawelczyk, Piotr Sokal, Rafal Walczak in: Miroslaw Pawelczyk, ed., Prawo energetyczne. Komentarz, Poznan 2012, p. 573-577.
50 Concerning the character of the duty mentioned above, see Anti-monopoly Court decision of 12 January 2000, XVII. Ame. 49/99; LEX 56132). See also Supreme Court decision of 25 January 1999, I. CKU. 86/98, Prokuratura i Prawo 1999, No. 5, p. 30. In the doctrine there is a prevailing view that this obligation has public law character - see M. Jankowska, M. Pawelczyk, P. Sokal, R. Walczak, op. cit., p. 200-201.
objective technical and economic circumstances. In case of refusal to connect a customer to the network, he is entitled to refer the the dispute (between the complaining party and gas undertaking) to the President of ERO (Article 8 Paragraph 1-2 of the Act on Energy Law). Possible decision in favour of the complaining party given by the President of ERO replaces a relevant declaration of intent of gas undertaking51.
The method of fees calculation for the connection is regulated by Article 7 Paragraph 8-11 of the Act on Energy Law amended in 2013. The method of fees calculation and application is subject to the supervision of the President of ERO. He, if there is a need for the protection of customers' interest, sets the maximal percentage of the fixed rate fees in a total amount of fees for the provision of transmission and distribution services for certain groups of customers in tariffs for gaseous fuels and energy (Article 23 Paragraph 2 Point 3 Letter d).
Natural gas prices and fees for its transmission and distribution are subject to so-called tariff obligation52. Gas undertaking may only apply prices and fee rates approved in tariffs by the regulatory authority (Article 47 Paragraph 1-2 of the Act on Energy Law). The rules of prices and fee rates calculation are defined in the Act on Energy Law (Article 45-45a) and in the Ordinance of the Minister of Economy Concerning Detailed Rules for Setting and Calculating Tariffs and Settlements in Gaseous Fuels Trading of 28 July 201353. Pursuant to Article 45 Paragraph 1 Point 3 gas undertakings set the tariffs for gaseous fuels or energy in accordance with relevant scope of their business, calculating them in a way guaranteeing: first of all- the covering of reasonable costs of economic activity of gas undertakings in relation to production, processing, transmission, distribution and trading gaseous fuels and energy, as well as storage, liquefying, or regasification of gaseous fuels, with reasonable reimbursement of expenses made in relation to this activity; second of all- the covering of reasonable costs of economic activity of gas undertakings in relation to gaseous fuels storage, inducing building, expanding and modernising gaseous fuels warehouses with reasonable reimbursement of expenses made in relation to this activity not smaller than return rate of 6%; third of all- the covering of reasonable costs of transmission and distribution systems operators incurred in relation to their business activity; fourth of all- consumer interest protection against unreasonable prices and fee rates level.
Prices regulation in natural gas sector is a traditional element of pro-social intervention in the regulated sectors. Its aim is to set the common goods (collective and social welfare) prices at a level enabling certain goods to be available for the public, regardless social wealth, in order to fulfil basic needs of society.
The 2013 amendment introduced a particular appeal complaint procedure for natural gas (and electricity and heat) customers. Complaint concerning the supply of gaseous fuels relates generally to the terms of receiving the gas by the customer, its amounts, and the amount of fees (for consumption, distribution and transmission) calculated in relation to it. Gas undertaking is obliged to process the complaint within 14 days following its submission. Failure to do so results automatically in acknowledging its acceptance. If a gas undertaking does not adjust the complaint, and the customer of gaseous fuels within 14 days following the receipt of the refusal of the complaint refers to standing arbitration court at the Provincial Commercial Inspector Office (Article 37 Paragraph 1 of the Act on Commercial Inspection of 15 December 200054) with a motion to hear the dispute in question, the supply of the gas cannot be suspended
51 See SAM decision of 7 April 1999, XVII. Ame. 85/98, or the decision of 13 October 1999, XVII. Ame. 36/99.
52 The concept of state approved tariffs has been introduced for the first time in the late 19th century in the USA in the railway transport sector. About the details of tariff obligation and filed tariff doctrine see: Eryk Kosinski, Rodzaje i zakres sektorowych wyiqczen zastosowania ogolnych regui ochrony konkurencji, Poznan 2007, p. 268 i n. See also: Joseph D. Kearney, Thomas W. Merrill, The Great Transformation of Regulated Industries Law, Columbia Law Review, Vol. 98, No. 6, p. 1331-1332; or Charles H. Helein, Jonathan S. Marashlian, Loubna W. Haddad, Detariffing and the Death of the Filed Tariff Doctrine: Deregulating in the „Self' Interest, Federal Communications Law Journal 2001, Vol. 54, No 2, p. 286 i n.
53 Journal of Laws. 2013, pos. 820.
54 That is Journal of Laws. 2014, pos. 148.
(pursuant to Article 6b Paragraph 1 of the Act on Energy Law) by the time of rendering a decision by this authority (Article 6c Paragraph 2 of the Act on Energy Law). A detailed procedure (technical aspects) of filing a complaint is stipulated in the Ordinance of the Minister of Economy Concerning the Details of Functioning of Gas System (§ 42-44)55.
In Poland there is no separate ombudsman of the energy customers (including natural gas), however, the objective of the consumer protection, including energy customers is vested within the President of Office of Competition and Consumer Protection as well as the President of ERO (see Article 23 Paragraph 2 Point 2 and Point 3 Letter d, 10, 12, and further).
Energetic security is the main objective of the Act on Energy Law (Article 1 Paragraph 2 of the act). The realisation of energetic security in the scope of natural gas supply is guaranteed with numerous measures introduced by the act. First of all, we need to refer to the institution of state's energy policy (Article 12 i n. of the Act on Energy Law). It is a primary objective of the policy to guarantee the energetic security (Article 14 Point 1-3: fuel-energetic national balance; national fuel and energy sources production capabilities; transmission capabilities, including cross-border network). State authorities responsible for the energetic safety are: the Council of Ministers, minister in charge of economy, and regulatory authority (the President of ERO).
Article 15f Paragraph 2 of the Act on Energy Law, added by the 2013 amendment obliges the minister in charge of economy to cooperate with other EU member states' authorities in order to guarantee the safety of gaseous fuels supplies and to promote regional solidarity in this area.
Amended Article 15 obliges natural gas undertakings engaged in transmission or distribution to prepare at least a three-year plan of the development in the area of fulfilling current and future demand for natural gas and energy (Article 16 Paragraph 1). Transmission gas system operator prepares ten-year plan of the development (Article 16 Paragraph 2). The plans are updated every two years (in case of electricity demand every three years. Distribution gas system operator prepares plan for a term not shorter than 5 years (Article 16 Paragraph 4). Distribution system operator development plan shall take into account transmission system operator development plan (Article 16 Paragraph 6). The plans shall be submitted and agreed with the President of ERO (Article 16 Paragraph 13-18).
Natural environment protection is also one of the main objectives of the Act on Energy Law (Article 1 Paragraph 2). It is realised mainly through the concept of renewable energy sources (green energy). It is commonly acknowledged that the regulations of 2013 amendment are not satisfactory in this matter in comparison with EU laws56. The required adjustments may be eventually introduced with act on renewable energy sources (there is a need for the creation of possibilities of development of small installations and introduction of adequate consumer regulations).
In conclusion, the majority of natural gas sector regulatory instruments included in the EU legislation has been incorporated into the Act on Energy Law after its amendment by the Act Amending Act on Energy Law and Other Acts of 26 July 2013 (small energy tri-pack). Nonetheless, there are still significant elements of regulation not incorporated into the Polish legal system. There is a need for next legislation steps of the Polish parliament. Perhaps an introduction of three separate acts may be a good idea: energy law- regulating electro-energetic sector, gas law- regulating natural gas sector, and act on renewable energy sources. The reason for this separation is justified by the fact that there are specific differences between the energetic areas as well as the fact that there is a need for introducing professional, detailed and thorough legal regulations. This separation may result in a better transparency and legibility of adopted provisions. There is also a possibility to create one Energy Code, which could be divided into several separate parts (electro-energy, natural gas supply or natural gas trade,
55 Journal of Laws. No. 133, pos. 891.
56 See inter alia U. Wojciechowska, op. cit., p. 3. See also the interview with Krzysztof Zmijewski in: Czysta Energia, no. 2(138)/2013, p. 12-14.
БИБЛИОГРАФИЧЕСКИЙ СПИСОК
1. EU Official Journal, no. 176, 204, 211, 295.
2. www.mg.gov.pl
3. Journal of Laws. 2013, 2014.
renewable energy sources). It is worth considering whether the present concept of the legal acts should remain and could be eventually extended by the act introducing general part of energy law, which would regulate basic issues (e.g. main concepts- third parties network access, direct lines, obligation to separate, independence criteria, regulatory authority and its shared competences, supplier ex-officio, comprehensive agreement, obligation to conclude connection and transmission agreement, and so fourth). This solution would help to avoid repetitions, especially in the statute regulating energy sector as well as the statute regulating natural gas sector.
In addition, it is also a valuable idea to consider an introduction of a separate institution of energy consumer ombudsman (for electricity, natural gas and heat) in Poland. It would facilitate more specialised and thorough protection of consumer rights in this extremely complex and
57
complicated energy sector (especially considering prices deregulation in the sector) .
The above conclusions have de lege ferenda character and should be addressed mainly to Polish legislator and to potential authors of relevant bills.
57 The role of the President of ERO in this case is not sufficient. A separate authority could have a comprehensive pro-consumer approach, without the need to provide for the conception in the market and sector undertakings interests.
