Under the 2003 Gas Directive, operators of a transmission system, distribution system or LNG facility requiring to offer third party access must base their charges on published tariffs or methodologies approved by the regulatory authority. A similar provision, in a cross-border context, is made in the 2005 Gas Regulation.
Question for ECJ
The question arose in relation to Fluxys SA, a Belgian transmission system operator, regarding whether it was entitled to have two separate tariffs for its domestic transmission and its cross-border transmission. During a dispute between the national regulator, CREG, and Fluxys regarding the tariffs for domestic transmission and transit (cross-border transmission), the Belgian Court considered whether it was appropriate to make a distinction between the two activities under EU law.
Advocate General's opinion
Advocate General Trstenjak delivered her opinion on 28 September. She considered that the principle of non-discriminatory access required that domestic and cross-border transmission should be treated equally unless there is an objective justification for differing treatment. She considered that a regime, which enabled separate tariffs to be instituted as a matter of course, was contrary to the provisions of EU law. Differences in tariff prices would only be competent if it is reflective of a genuine difference in the actual cost of providing the service.
The ECJ is still to make a final decision in this case. The Advocate General's opinion is likely to be persuasive but is not binding on the ECJ, which could choose to take a different view.
Under the new provisions in the Third Energy Package, tariffs or methodologies must be prepared in a similar way as is currently provided. Therefore this decision is also likely to be relevant in relation to the new provisions. However, it is worth noting that under the Third Package there will be introduced binding network codes for cross-border transmission, which may include provision for harmonised transmission tariff structures. This may affect how tariffs are determined in practice under the new provisions.