Access Rights to European Energy Networks - A Construction Site Revisited

The paper examines the Third Party Access right embodied in the European Electricity and Gas Directives (2003/54/EC and 2003/55/EC), in the context of the recent cases decided by the European Court of Justice. First, the legal concept of the access right as a right ancillary to an energy supply contract, and the corresponding duties of system operators are explored. Second, anticompetitive effects of restrictions on connecting new customers to transmission systems as well as a distinction between ‘access’ and ‘connection’ are critically examined. Third, the paper considers the status of ‘private networks’ and the scope of energy systems to which, access requirements apply. Finally, the paper discusses circumstances when competition law grants compulsory third party access to energy networks and where refusal of access constitutes an abuse of a dominant position enjoyed by energy undertakings. The ‘essential facilities’ doctrine and ‘refusal to supply’ cases are reviewed in relation to gas and electricity markets. The full version of the paper is available as a Book Chapter