|Agency for the Cooperation of Energy Regulators (ACER)|
|European Union Electricity Market Glossary|
Agency for the Cooperation of Energy Regulators (ACER) is the European Union body created by the Third Energy Package to work towards the completion of a single EU energy market for electricity and natural gas (Internal Energy Market (IEM)).
The Agency was officially launched in March 2011 and is based in Ljubljana, Slovenia.
As an independent European body the Agency ensures that market integration and the harmonisation of regulatory frameworks are achieved in accordance with the EU's energy policy objectives.
The overall mission of the Agency is also to complement the work of national energy regulators at EU level, to assist them in exercising, at the European Union level, the regulatory tasks that they perform in the Member States and, where necessary, to coordinate their action.
ACER's decision-making process
ACER itself sometimes indicates, the Agency's name "underlines its fundamental purpose of coordinating the actions of National Regulatory Authorities" (Joint ACER-CEER response to European Commission's Consultation on a new Energy Market Design of 7 October 2015, p. 23).
Also Proposal for a Directive of the European Parliament and of the Council on the internal market for electricity (recast) on common rules for the internal market in electricity (recast), 30.11.2016, COM(2016) 864 final 2016/0380 (COD) observes that with the increasing cross-border trade and system operation which takes the regional and European context into account, the EU National Regulatory Authorities (NRAs) were required to increasingly coordinate their action with NRAs from other Member States.
The said document of 30.11.2016 underlines ACER was designed to become the platform for this interaction and fulfils this duty since its creation in 2011.
The body within the Agency where most opinions, recommendations and decisions of the Agency are prepared, together with ACER staff, is the Board of Regulators comprising senior representatives of the NRAs and a non-voting representative of the Commission.
Recital 26 to the Proposal for a Regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators (recast), 30.11.2016, COM(2016) 863 final 2016/0378 (COD) stipulates that "without prejudice to its members' acting on behalf of their respective national authorities", the Board of Regulators is required to act independently from any market interest, avoid conflicts of interests and not seek or follow instructions or accept recommendations from a government of a Member State, from Union institutions or another public or private entity or person.
ACER in its aforementioned document of 7.11.2015 refers to the fact that "[v]irtually all the legal acts of the Agency requiring a favourable opinion by the Board of Regulators have been agreed unanimously by NRAs' representatives in the Board."
According to Recitals 27 and 28 of the said Proposal of 30 November 2016 for a Regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators where the ACER has decision-making powers, interested parties should, for reasons of procedural economy, be granted a right of appeal to a Board of Appeal, which should be part of the Agency, but independent from its administrative and regulatory structure.
The decisions of the Board of Appeal are subject to appeal before the Court of Justice of the European Union.
The Agency should exercise its decision-making powers "in line with the principles of fair, transparent and reasonable decision-making".
Conditions for the third-country participation in the ACER
Articles 13 and 14 of the Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (ACER Regulation) limit membership to ACER’s formal bodies, i.e. the Board of Regulators and the Administrative Board, to representatives from EU Member States.
Article 31, however, also grants the possibility for participation of third countries in ACER, provided that:
1. the third country has concluded an agreement with the European Union (Article 31(1));
2. the third country has adopted and is applying the European Union law in the field of energy and, if relevant, in the fields of environment and competition (Article 31(1)); and
3. an institutional framework has been set up in the agreement referred to under (1) to specify, in particular, the nature, scope and procedural aspects of the involvement of the third country including provisions relating to financial contribution and to staff (Article 31(2)).
The European Commission in the letter of 25 March 2015 clarified that the Energy Community Treaty is to be considered an ‘agreement’ as referred to in Article 31(1); and that the assessment of a third country’s compliance with the second requirement of Article 31(1) is to be carried out by the European Commission with the support of the Secretariat being welcomed.
The European Commission, however, in the said communication also stressed that the above requirements are only relevant for a third country’s participation in the Board of Regulator and the Administrative Board, whereas the criteria for and acceptance of their involvement in ACER Working Groups remain at the discretion of the Director of ACER.
The Director of ACER, in letters:
- of 26 November 2014 (ACER-AP-FG-ss-2014-647), and
- of 24 July 2015 (ACER-AP-FG-ss-2015-390),
expressed his intention to allow participation of National Regulatory Authorities from third countries “as long as their countries are assessed as being on track in meeting the requirements of Article 31 and there being an expectation that this will be achieved within a reasonable period of time (6 to 12 months)”.
The tasks, organisation and operation of the Agency are set out in the ACER Regulation as well as in the other legal acts forming the Third Energy Package.
Additional tasks were assigned to the Agency by:
The Agency plays a key role in promoting the integration and well-functioning of the EU markets in electricity and gas, as well as their transparency and integrity.
The Agency, in particular:
- complements and coordinates the work of National Regulatory Authorities (NRAs) in areas laid down in the legislation;
- participates in the creation of European network rules, by producing Framework Guidelines containing criteria and principles for the Network Codes to be developed by the European Network of Transmission System Operators for Electricity (ENTSO-E) and ENTSO-G;
- monitors the execution of the tasks of ENTSOs and regional cooperation of TSOs, and provides opinions on their relevant documents (annual work programme, community-wide TYNDP, supply outlooks, etc.);
- participates in the process for the identification of infrastructure Projects of Common Interest, by providing opinion on several methodological and procedural aspects;
- takes, under certain conditions, binding individual decisions on terms and conditions for access and operational security for cross border infrastructure, on exemptions and on cross-border cost allocation;
- gives advice on various energy related issues to the European institutions;
- monitors and reports on developments in the energy markets, and
- monitors trading in wholesale energy markets in order to detect and deter insider trading and market manipulation (Draft Outline of the 2016 ACER's Work Programme).
The monitoring of wholesale energy markets by the Agency will be mainly based on the collection of data relating to the transactions executed and the orders placed on wholesale energy markets in the European Union (trading data), as well as on fundamental data, that is, data relating to the operational conditions of the energy systems in both the electricity and gas sectors.
However, while the Agency has been assigned extensive monitoring responsibilities, it does not have the corresponding powers to define and obtain the necessary information from National Regulatory Authorities, Transmission System Operators – and their European Networks - and other market stakeholders.
This may be perceived as an inconsistency (ACER/CEER Annual Report on the Results of Monitoring the Internal Electricity and Natural Gas Markets in 2014, November 2015, p. 6).
A specific example of ACER's competencies is the CACM Regulation, according to which a number of binding subsidiary instruments to be adopted at a later stage, is entrusted to the NRAs.
In the case of binding subsidiary instruments having a EU-wide scope of application, this requires NRAs to decide unanimously on the adoption of identical legal acts in all national legal systems within a six-month period, after which the responsibility is transferred to ACER.
Beyond that, ACER's advisory competences include:
- providing opinions on the compliance of NRAs' decisions with the relevant legislation at the request of an NRA or of the European Commission (Article 7(4) of Regulation (EC) No 713/2009);
As the aforementioned ACER-CEER document of 7 October 2015 suggests, this role of the Agency could be usefully enhanced by extending its opportunity to issue such opinions and recommendations not only at the request of the European Commission or of an NRA, but also on its own initiative (while NRAs would in this way lose the quasi-exclusivity of their role of initiative for these opinions and recommendations, they would still be involved in the process through their representation in the Board of Regulators, whose favourable opinion would be required for the adoption of these acts).
The Rapporteur of the European Parliament’s Draft report of 14 June 2017 on the proposal for a regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators (recast) (COM(2016)0863 – C8-0494/2016 – 2016/0378(COD)), Morten Helveg Petersen (Committee on Industry, Research and Energy (ITRE)) makes in the Explanatory Statement to the said document some interesting remarks on the evolution of the scope of the ACER’s oversight activity as well as on the ACER’s ability to obtain the information it requires to perform its monitoring function.
According to the Rapporteur, the Agency’s oversight activity has, in the past, mainly focused on the ENTSOs, but has more recently been expanded to include the Nominated Electricity Market Operators (NEMOs).
This scope, according to the ITRE’s proposal, should be further extended under the Regulation’s recast to cover also the Regional Operational Centres (ROCs).
In fact, these entities will have operational responsibilities, which make effective oversight even more relevant.
Compliance of these entities with their obligations under the legislation must therefore be ensured.
Furthermore, effective oversight rests on the Agency having access and being able to require the necessary information.
When the Agency detects that one of the ENTSOs, a NEMO, a ROC – or any other entity operating at cross-border, regional or EU-wide level, e.g. the future EU DSO Entity - does not comply with the objectives and the provisions in the Electricity Directive and Regulation and the Network Codes and Guidelines, thus jeopardising the well-functioning of the Internal Energy Market, the Agency should be able to intervene with a binding decision.
ACER already has extensive monitoring responsibilities under the current Regulation 713/2009.
These are further expanded by the recast proposal to cover also the performance of ROCs and NEMOs.
However, these monitoring responsibilities are not matched by general powers to request and obtain the relevant information.
Therefore, the Rapporteur of the aforementioned draft Report tabled amendments giving the Agency the power to request any information it requires to effectively carry out its tasks from market participants and other entities, if necessary trough binding decisions.
To avoid the duplication of reporting obligations for energy market participants, that information should normally be provided by the national regulatory authorities, the ENTSOs, ROCs, the EU DSO Entity and NEMOs, which are closest to the energy market participants and should take into account already existing statistics.
However, as a last resort, the Agency should be able to address a duly justified and reasoned request for information directly to an energy market participant where a national regulatory authority does not or cannot provide such information in a timely fashion.
Member States’ national regulatory authorities should be obliged to assist the Agency in enforcing such direct requests.
Enforcement of the ACER’s decisions
The aforementioned ITRE’s Draft report of 14 June 2017 proposed to add a rule that the ACER may request the national regulatory authorities to ensure enforcement of its legally binding decisions (Article 6 paragraph 10a (new)).
As a justification ITRE invokes an argument that once the ACER issues a binding decision, it needs to be implemented and, if necessary, penalties should be imposed in case of non-compliance.
With respect to the latter, according to the ITRE, the ACER should rely on NRAs.
|Last Updated on Saturday, 16 June 2018 13:39|