Capacity withholding can sometimes be qualified as manipulative practice to artificially cause prices to be at a level not justified by market forces of supply and demand (including actual availability of production, storage or transportation capacity).

The precise delineation in this regard seems to be somewhat vague.

It is not a desirable situation from the perspective of legal certainty issues.
 

The recent ACER’s clarifications (Guidance on the application of REMIT (4th edition, updated on 15 October 2019, pkt 6.4.1 (i), p. 38, 39), although helpful, do not make the issue entirely comprehensive.

The ACER itself declares that the Agency “is committed to provide further clarifying guidance with respect to justifications mentioned in Section 6.4.1.(i)”.

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I'm quite surprised by the remark of Alberto Pototschnig, the ACER’s Director, made in the foreword to Consolidated Annual Activity Report for Year 2018 of the Agency for the Cooperation of Energy Regulators (14 June 2019, p. 18).

I have never expected such words from the head of the European Agency.

What exactly was said, then? Here you have a citation:

“With the growing number of complex and contentious decisions taken by the Agency, the number of appeals has also increased. The need to defend its decisions in front of the Board of Appeal or the General Court, or to defend the rulings of the Board of Appeal in front of the General Court, put additional strain on the Agency’s resources, especially considering that the appellants typically use law firms to litigate their cases, while the Agency cannot afford such support. However, it is undisputable that the possibility of judicial or quasi-judicial review of regulatory decision is an essential part of modern and proper regulation. The issue is rather again one of resources on the Agency’s side. However, what I find regrettable is that some of these appeals have been lodged by national regulatory authorities which had participated in forming the Agency’s decision. In fact, all the decisions appealed so far were adopted following a favourable opinion of the Board of Regulators, which is based on a large (two-third) majority of its members, who represent national regulators. Therefore, while the legal right of all those affected, including national regulatory authorities, to appeal an Agency’s decision is, again, undisputable, the very governance of the Agency, with the key role of national regulatory authorities in the decision-making process, might suggest that national regulatory authorities should accept the democratic deliberation process in the Board of Regulators, even when they dissent from it, and do not seek to overturn the Agency’s decision, to which the Board of Regulators has contributed, by resorting to the judicial review”.

To make a long story short: I strongly disagree with you Mr Pototschnig in this part of your statement:

“national regulatory authorities should accept the democratic deliberation process in the Board of Regulators, even when they dissent from it, and do not seek to overturn the Agency’s decision, to which the Board of Regulators has contributed, by resorting to the judicial review”.

Why? Because decisions not only need to be made by a majority of votes cast, it would be much better if they were also reasonable and just and if they are the ACER should not be afraid of the judicial review.

And, further, since the minority should not be bullied by others.

Is there any further need to deliberate this issue? I do not think so.

Although in April the focus is on the GDPR, the Electricity Directive also deserves some attention.

Charge point operators supplying electric vehicles with a charging service are final customers and do not require registration as Distribution System Operators (DSOs).

Considering the lapsing deadlines set by the Commission Regulation (EU) 2016/631 of 14 April 2016 establishing a network code on requirements for grid connection of generators (NC RfG) it may be useful, particularly for energy market participants carrying out significant investments in or the refurbishments of the generation fleet, to take account of some NC RfG notification requirements that may occur important.

If the Winter Energy Package was adopted as proposed by the European Commission, the EU Member States, national Transmission System Operators, as well as the domestic regulatory authorities would be deprived of the decisive influence over the bidding zone's borders.

Ancillary service in the electricity market can be easily misunderstood as the capacity mechanism, notwithstanding the fact the legal effects from the State aid treatment point of view, are entirely divergent.

Merciful EU energy watchdog granted relief from REMIT reporting for tenants in shopping malls. More clients are waiting...

Imagine a manufacturer who who consumes 595 MWh yearly. He sleeps well since convinced that REMIT itself, REMIT registration and operationally burdensome REMIT transactions and orders reporting are beyond the scope of his affairs. And suddenly somebody comes and says, "You have serious legal problems, you are not credible business partner". What's the point?

ACER has established a new, costly law for companies.

Do you still deliberate how often the list of organised markets must be checked?