The Commission published a staff working document (“SWD”) discussing the Commission’s practice in assessing the presence of a conflict of interest, including in the case of financial investors, relating to the rules on ownership unbundling. Directives 2009/72 (the Electricity Directive) and Directive 2009/73 (the Gas Directive) in the EU third internal energy package have introduced a structural separation between transmission system operator activities on the one hand, and generation, production and supply activities on the other hand. The aim of the unbundling is to avoid conflicts of interest and to make sure that transmission system operators (“TSOs”) take their decisions independently, ensuring transparency and non-discrimination towards all network users. The SWD addresses the issue of how the rules on ownership unbundling are to be applied in situations where a shareholder in a TSO also has participations in generation, production and/or supply activities. The Commission noted that, e.g., holding companies and different kinds of investors may be confronted with such questions. The Commission’s approach is that it would not comply with the objective of the unbundling rules to refuse to certify the independence of a TSO where it can be clearly demonstrated that there is no incentive for the shareholder in a TSO to influence the TSO’s decision making in order to favour its own generation, production and/or supply interest to the detriment of other network users. The Commission further highlights that in some cases it may not be straightforward to establish whether or not a conflict of interest exists, in which situations an in-depth analysis on a case-by-case basis will be required. The burden of proof as to the absence of a conflict of interest or an incentive to exploit it lies with the TSO and includes an obligation to submit all the relevant information. Source: Commission Staff Working Document, SWD(2013) 177 final 8/5/2013