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欧洲能源部门一直在探讨政策并从一开始就一直得到欧共体的特别的关注。[1]他通过欧洲煤钢共同体的建立(煤钢共同体)和欧洲原子能共同体(EAEC)的建立来展示其效用[2]。 尽管上述机构已经建立,但欧盟进一步致力于建立一个统一的内部市场,称为内部能源市场(IEM)[3]。以下是IEM的各种指令,确保可以完成执法。IEM的核心目标主要集中在天然气和电力市场。 在能源市场的竞争开始前有许多用户需求需要被聚集在一起。这其中就包括建立一个监管框架促进自由化,所有权变化和第三方访问(TPA)天然气和电力网络的许可。[4] 然而在能源上引入一个独立的监管部门是一个巨大的挑战,因为现有的“子公司”,阻碍了实现的原理。[5]然而, 根据欧盟指令国家能源监管机构(尼珥)要建立于每个成员国。这并不是一个伟大的成功,因为像德国这样的国家没有创造国家监管机构，原因是它有一个不同的监管体系。 1. INTRODUCTION The European Energy sector has been on the top policy agenda of the EC and has always gained special attention right from the inception. [1] This was shown by the establishment of the European Coal and Steel Community (ECSC) and the European Atomic Energy Community (EAEC) [2] . Despite the above establishment, the EU further worked towards establishing a single internal market called the Internal Energy Market (IEM) [3] . Following this was the various directives to ensure the enforcement of the IEM. The center of attention on the IEM is mainly on the gas and electricity market. There are numerous requires to be met before the introduction of competition in to the energy market. This includes creating a regulatory framework to promote liberalization, ownership change and Third Party Access (TPA) to the gas and electricity network. [4] However introducing independent regulators creates a challenge in an energy marker because of the existing principle of ‘Subsidiary’ which hindered the implementation. [5] However, a National Energy Regulator (NER) was created in each member state under the EU Directive. This has not been a great success because countries like Germany did not create and independent national Regulatory Authority reason been that it had a different regulatory system. [6] This lingered on till 2004 when it finally created one. Introduction of regulation in the energy market was a shift from the ‘state control’ principle which has attributes of state ownership of the energy industries where all services where single handedly provided by the state to a ‘regulatory state’ which involves the separation of public services and an introduction of new policies to promote privatization, competition and liberalization [7] . One of the need for an independent regulator in an energy market is to introduce an Independent System Operator (ISO) to care for the consumers interest by ensuring that the distribution and transmission network is not been manipulated by the state or companies [8] .The question is how independent are the Regulators, and the ISO? This would be examined within this paper. 2. THE EU MARKET OPENING Market opening simply involves the introduction of competition into the energy market to ensure a level playing ground for market operators. The late Daniel Golder defines competition as: “The relationship between a number of undertaking which sells goods or services of the same kind at the same time to an identifiable group of consumers”. [9] The EU has implemented various directives which have made positive impact in the European Energy market. The aim of these directives is to promote competition and energy trade between EU countries. Since the nineties, the EU has operated an open market system whereby consumers have the freedom to choose their suppliers and however goods can be transported and traded freely within the EU. Having an effective open market breaks the legal barriers which in turn enables the new entrants to trade in the market. Market opening became effective on the 2nd of July 2007. It therefore ensures a reliable price formation amongst suppliers and buyers. It also promotes security of supply and encourages the use of renewable energy. However, the rights of the consumer are protected by the rules and regulations enacted by the EU in relation to opening of the internal market in each EU country. In addition to this the EC is proposing a European Energy Consumer Charter to govern and regulate consumer’s right. 2.1 REQUIREMENTS FOR ENERGY MARKET OPENING. A non competitive market offers little or nothing to the market [10] . The end of globalization brought forth the need for liberalization to promote competition. The introduction of new technology like the Combined Cycle Gas Turbine (CCGT) helped reduce the cost of entry for new market entrants. Various methods have been used to reform the energy sector with the aim to ensure security of supply and competition. They include: 2.1.1 UNBUNDLING Within the EU, former monopolist even after liberalization still owned the transmission sector which is apparently the backbone of the energy sector. This single act in my opinion is anti competitive and it defeats the purpose of liberalization. The EC objective of liberalizing the energy market is to effectively separate the ownership of the electricity and gas network from the supply sector. In September 2007, the EC proposed a structure to enhance competition in the already integrated markets. This structure is called ‘Unbundling’. The concept of unbundling literally means the separation of the Energy companies from their transmission network. The Commissions idea about this is full unbundling of the supply sector from the transmission sector by introducing an ISO. However, companies who are vertically integrated are required to run their assets independently but still retain the network ownership. There are four types of unbundling: Ownership unbundling, Accounting unbundling, Legal unbundling and Functional unbundling. This paper is more concerned with ownership unbundling than the other types of unbundling. Legal unbundling should be separated from the meaning of ownership unbundling, considering the fact that member state has not agreed on a common rule on this issue. Legal unbundling in this context involves the total separation of the Transmission System Operators (TSO) from the Distribution System Operators (DSO).therefore the legal unbundling those not involve change of ownership. The Competition Commissioner Neelie Kroes Addressed the minister in a meeting on the 6th of June 2006 and I quote: “Full separation of the network ownership is the best form of allowing new entrants access to the network” [11] . On the same day member state reached a final decision on the issue of ownership unbundling and also created two substitutes for it which includes the ISO and the Independent Transmission Operator (ITO). [12] The German and French Minister were of the opinion that full ownership unbundling would be in breach of their countries constitution [13] . 2.1.2 THIRD PARTY ACCESS The second requirement for market opening is called the Third Part Access (TPA). Its major aim just like the concept of unbundling is to promote competition in a liberalized energy market. The pipeline service involves the supply of commodity in both electricity and gas sector. The electricity and gas sector are the only sector in the EU energy market that retains its natural monopoly which cannot be changed. [14] Since TPA applies to the gas and electricity sector, member state should carry out TPA in a published tariff for every consumer to avoid discrimination. [15] However, the duty of the NRA is to ensure that the tariffs are not manipulated. TPA market is more of a wholesale market rather than a retail market; however the only situation whereby refusal of access is allowed is where there is capacity shortage. [16] TPA is more complicated in the Gas industry because it involves access to storage, access to upstream network and access to transit pipeline. In dealing with the issue of access under gas, member states have two options, 1. Is to either get the access through negotiation or 2. Get the access through a regulated method. [17] In a negotiated TPA, the network owner is likely to discriminate against the other network users who are in competition with it by not granting them access with reason that the network is full, or he can set a ridiculous fee for the usage of the pipeline. This would therefore discourage its competitor from transporting their gas through the pipeline. With the aim of correcting this act of discrimination, the introduction of the new Gas and Electricity Directive by the EC abolished negotiated TPA and replaced it with Regulated TPA. This single act illustrates how relevant regulation is to the industry. [18] However this paper is more concern with how independent the regulatory TPA is. The EU regulated TPA ensures that access to network is rendered at a regulated tariff and must be published to ensure transparency. The NRA’s duty is to approve these tariffs before it is published [19] this simply implies that the NRA is in charge of network access issues. 2.1.3 PUBLIC SERVICE OBLIGATION Public Service Obligation (PSO) is one area that enhances competition in the energy market. The question frequently asked is: Would member state be granted permission to keep their interest on the basis of Public interest? This question was answered by the 2003 Directive where it divided PSO into Security of supply, Price of supply, and regularity. The Directive described PSO as a “fundamental Requirement” [20] .#p#分页标题#e# 3. REGULATION AND THE MARKET OUTCOME Since the EC major aims is to create a single market for member state and to ensure proper functioning of the market, a combination of competition and regulation must be put in place to deal with frequent structural problems facing the market. Since the market has a tendency of failing, a regulatory body has to be set up to act as check on market outcome problems. Regulation plays an important part in the European Energy market. The term ‘Regulation’ involves policies and guidelines governing a particular sector. Regulation therefore oversees the level of competition and entries into the market. 3.1 UNDERSTANDING REGULATION The EU has made a recommendable effort to synchronize all national regulation within the EU Energy market. But it is also a known fact that regulation has not been given as much attention that globalization and privatization has been given. Reason was that most regulatory system differs within countries in terms of administrative customs and economic situations. However the EU has made efforts to establish international policies to complement their regulatory agencies to ensure an effective market. [21] A government with an efficient regulatory system would maintain its market without difficulties. [22] The EU liberalization scheme has led to a better regulatory system with the help of member state been involved in the regulatory reform. To be discussed later in this paper is how and at what degree do governments regulate the energy industry [23] 3.2 REGULATION AND THE NEW DIRECTIVE Member states have the duty to ensure that all customers are allowed to choose their own suppliers by July 1, 2007 [24] . The new directive and regulations enable member to have an efficient energy market with the help of regulation competition and cross border trade. The directive Highlighted regulations in the following ways: A move from negotiated TPA to regulated TPA. In both the electricity and gas industry. Introduction of independent regulators for every EU member state. [25] Ownership unbundling of the transmission and distribution network. Market liberalization for customers by July 1, 2007. Regulatory framework to guide TPA network tariff and management of interconnectors. Establishment of DSO and TSO. Establishment of a level playing ground for market operators by separating the generating sector from the transmission sector. This ensures that the companies that own both the transmission and distribution network do not discriminate against each other. [26] Prior to the enactment of the new directive there was no provision for regulation within the EU energy market. [27] 3.3 WHO ARE THE REGULATORS The EC established the National Regulatory Authority (NRA) in each member state to ensure that the supply network operates in accordance with the directive to provide adequate services to customers. To help the EC, leaders of the NRA of each member state meet in the European Regulator Group for electricity and gas (ERGEG) to identify and resolve obstacles facing the energy market. [28] Since member states have their National law which applies to them [29] ,the EU therefore imposes the PER on all member state to encourages uninterrupted trade between member. In My view, member state are not going to adhere to the powers of PER. Due to this assertion the EU has adopted different methods to ensure compliance of member state. 3.4 TYPES OF REGULATORY BODIES IN THE EU. The EC established under the directive various types of regulatory bodies. The functions of these regulatory bodies are outlined in the gas and electricity directive. In the 27 member state, regulatory agencies are established to promote competition. In response to the Directive, a chain of energy regulators have emerged across Europe. This paper seeks to examine the major regulatory bodies. 3.4.1 NATIONAL REGULATORY AUTHORITY The 2003 legislation created the NRA for the electricity and gas sector which was accorded the power to supervise the energy market of member state. [30] The NRA is responsible for regulating tariff and access to network; they are also imposed with advisory duty to the European regulator group for electricity and gas (ERGEG). The Directive however spelt out the function of the NRA, it is therefore left to member state to design their structure, power and function. However, the NRA represents a section of the regulatory framework. Each member states regulator agency includes a ministry, a regulatory sector (NRA) and a competitive authority [31] . 3.4.2 EUROPEAN REGULATOR’S GROUP FOR ELECTROCITY AND GAS (ERGEG) This regulatory body is made up of heads of NRA of every member state and also heads of the European Economic Area (EEA) Countries as observatory bodies. The ERGEG serves as an advisory body relating to the EU internal energy market. It was established on the 11th of December 2002 by the European commission decision (2003/796/EC) [32] . The ERGEG is been created by the legislation and it is not a voluntary association. [33] The down part of the ERGEG is that it does not possess legal to enforce its rules. Its power is therefore only persuasive. See www.ergeg.org 3.4.3 THE COUNCIL OF EUROPEAN ENERGY REGULATORS (CEER) The CEER is a voluntary agency within the EU energy sector [34] . Membership to the CEER Is not granted by law but on a voluntary basis. The CEER acts as a preparatory body for the ERGEG [35] .It is therefore aimed at protecting consumer’s interest and enhancing the establishment of a single, competent, competitive and sustainable IEM for electricity and gas. 3.5 THE INDEPENDENT REGULATOR Since the EU energy market is liberalized and competitive, the need for an independent regulator is necessary to maintain the decorum of the existing market. The needs for regulation enables the customers have a leveled ground [36] . The EU was left with the decision of allowing member state create their individual regulatory framework, or have the commission impose a regulator system on them. The 1st Directive allowed member state establish their regulatory model to guide their internal market [37] , while the current Directive require member state to establish a regulatory body to regulate their energy sector. This regulatory body must be independent from both the government and the Electricity and Gas industry. The independence of the regulatory body would ensure effective, competitive and non-discrimatory internal market. [38] Article 23 and 25 of the 2003 directive provides that regulators “Shall be fully independent from the Electricity and Gas companies” [39] . The regulators should be independent of companies which it seeks to regulate to ensure that the regulation is not in favor of any of the industries. I therefore observed that the directive failed to address the issue of government obstruction but it provides that the government should ensure that a regulatory agency carry out their functions in a non discriminatory manner [40] . Therefore, Member states are required to differentiate the regulatory body from the government. This simply means that the regulators should not be socially or politically controlled by the government or industry. The regulators are therefore required to be financially independent. Without this independence, the government or industry would have the power to dictate what the regulators would do, therefore defeating the purpose of creating a regulator. The Directive provides that the regulators carry out their duties efficiently [41] . The directive also provides that the regulators are accountable to report to the commission. 4. CRITERIA FOR AN INDEPENDENT REGULATOR Before a regulator can work efficiently in a liberalized market, it should possess the following attributes: 4.1 Independence: A regulatory body must be free from undue influence of the Government, the consumer and the industry irrespective of the fact that regulators are government owned institute, they are acting in the capacity vested on them by the directive and not the government. In situation whereby the regulators do not act in their own capacity but in according and direction of either the government or industry it is called ‘Regulatory Capture’. [42] Below are the various types of independence: 4.1.1 Independence from Government Regulatory bodies should be independent from government since its major purpose is to correct all market irregularities. A situation whereby the regulators are been controlled by the government is called ‘Political Capture’. Independence from government simply implies that the regulator should not be controlled or manipulated by the government or any government agency. [43] In real situations this is hard to achieve since the regulatory body is part of the government and members of the NRA are former monopolist or officials of the government. Political capture is one aspect that would be difficult to eliminate considering the high dependency rate on government for funding. [44] These and many more make it impracticable for regulators to be independent from the government. Government capture is the most common issue in the industry. In countries where security of supply is in their top policy agenda, capture by the government would discourage investors from investing. All this problems can be resolved where government provides the regulators with financial, legal and other facilities to cater for their needs independently and not rely on them for any help. Also the appointment method of the regulators should be independent thereby reducing the power of influence of the government.#p#分页标题#e# 4.1.2 Independence from the Industries/ Companies This is also called ‘Economic Capture’. The industry is also a hindrance to the independence of the regulator. However, capture by the industry is achieved directly from the information system. The regulators are dependent on the information derived from the industry to work effectively. Once this information is hoarded from the regulators, they cannot perform their duties efficiently. This is also called ‘Asymmetrical Capture’. This type of capture is common in the electricity sector whereby regulators are denied from obtaining the specific cost of building a new generating power plant. The only way to avoid this type of capture is by establishing the use of ‘Bid Auction’. Also where there are numerous operators/participants, the regulator can have as many information where it then can draw it conclusion from. Finally, the regulator should be given a legal power to investigate any sector of the industry without restriction. 4.1.3 Independence from Consumers This is the least common means of capture, but when it occurs it is very difficult to identify and resolve. An example of consumer capture is where the regulation is lured into reducing tariffs which ideally should not be reduced. This was the situation in the UK where there was an issue of surge in the household price of gas. In such a situation, persisting pressure from consumers would drive the regulator into making an improper action which would be detrimental to the market. 5 HOW EFFECTIVE AND INDEPENDENT ARE THE EU REGULATORS? The directive directs the commission to publish and tender reports on market structure and market performance. The level of success of the market depends solely on the efficiency and independence of the regulator to effectively regulate the market. Before this can succeed, the following must be attributed to the regulator, Flexibility, transparency, enforcement powers, accountability. 6 CONCLUSIONS The success of an internal energy market depends on how independent the regulators is, an establishment of a single regulator, adequate market opening and full liberalization of the market. According to Peter Freeman, outlining the relationship between competition and regulation concluded that competition policy straightens up the unending question of whether regulation is needed or not in a liberalized internal energy market. [45] However, the IEM is still in progress and would archive its major aim as the energy sector gains full independence, although the achievement of independent regulator is slow in progress, we hope that in the near future the energy sector would have regulators who are independent and efficient. My recommendation is that the commission should frequently organize seminars and workshop for regulators to expose them to recent happenings in the sector and find absolute solution to them. |
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