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New Governance and Regulation in the Energy Sector: What does the Future Hold for EU Network Codes?

Published online by Cambridge University Press:  09 May 2018

Charikleia VLACHOU
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Abstract

EU network codes are legally binding rules related to cross-border and market integration issues and elaborated through a complex procedure set by the third energy package. This article comments on the experience accumulated so far and identifies future challenges by following the “life cycle” of EU network codes from their elaboration phase to the current stage of their implementation.

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Type
Articles
Information
European Journal of Risk Regulation , Volume 9 , Issue 2 , June 2018, pp. 268 - 282
Copyright
© Cambridge University Press 

I Introduction

Network codes are sets of rules applying to cross-border or market integration issues for the internal energy market that are elaborated by the European Commission, the Agency for the Cooperation of Energy Regulators (ACER)Footnote 1 and the European Networks of Transmission System Operators (ENTSOs) and that become legally binding through their adoption by comitology.Footnote 2 More specifically, network codes include three “families” of rules: network connection rules, namely rules regarding operational capabilities of a system, system operation rules, ie rules on the practices for using these capabilities, and market rules, allowing a move forward towards a competitive European energy market. Network codes are thus the technical “backbone” of the internal energy market and, as such, closely related to several instruments of the European energy policy.Footnote 3

The institutionalisation of network codes is also one of the major innovations of the third energy package:Footnote 4 prior to its entry into force rules related, among others, to cross-border trade, congestion management and transparency and tariff principles had been developed in the context of the Madrid and Florence fora before being formally introduced in EU legislation.Footnote 5 The adoption of network codes in the fields and following the new procedure foreseen in the third energy package has, however, followed a different pace in the fields of electricity and gas. Indeed, several sets of such rules were adopted early on in the field of gas: the Congestion Management Procedures guidelines,Footnote 6 that address the issue of contractual congestion in the context of unused pipeline capacity, the network code on Capacity Allocation Mechanisms in Gas Transmission Systems,Footnote 7 aiming at remedying traditional “handicaps” of cross-border capacity allocation mechanisms such as lack of transparency, discrimination, and lack of coordination among TSOs, the network code on Gas Balancing of Transmission Networks,Footnote 8 aiming to create a market for short-term flexibility, the network code on Harmonised Transmission Tariff Structures for Gas,Footnote 9 introducing transparency and harmonisation of tariff methodologies, and the Network Code on Interoperability and Data Exchange rules aligning relevant complex technical procedures used by network operators.Footnote 10

In the field of electricity, three market and trading guidelines have been adopted since 2015, ie the Guidelines on Capacity Allocation and Congestion Management,Footnote 11 on Forward Capacity AllocationFootnote 12 and, more recently, on Electricity Balancing.Footnote 13 Five more instruments, namely the network code on Demand Connection,Footnote 14 the network code on Requirements for Grid Connection of Generators,Footnote 15 the network code on Requirements for Grid Connection of High Voltage Direct Current Systems and Direct Current-connected Power Park Modules,Footnote 16 the network code on Electricity Emergency and RestorationFootnote 17 and the Guideline on Electricity Transmission System Operation,Footnote 18 complete the nexus of electricity network codes in the areas of connection and system operation.

Examining such a “complex multidimensional structure with overlaps and difficult to appreciate interactions”Footnote 19 at the current stage is important for several reasons. First of all, due to the fact that several years after the entry into force of the third energy package sufficient experience has been accumulated in order to evaluate both the relevant provisions and the legislative proposals made by the European Commission in November 2016 commonly known as the “Clean Energy” Package.Footnote 20 Secondly, because further evolution is at hand due to the current transition from the comitology to the delegated acts regime as required under the Lisbon TreatyFootnote 21 . Finally, due to the fact that several network codes are currently entering the challenging phase of implementation that will serve as the groundwork for the new market design in electricity and gas.Footnote 22

In order to discuss the future evolution of network codes we will, thus, follow their “life cycle”, focusing, first of all, on their elaboration phase that could be streamlined on the basis of past experience (II), before turning to their implementation phase in a quest for effectiveness (III).Footnote 23

II Streamlining the elaboration phase

The development of network codes follows a complex procedure and raises the double question of simplification and of adaptation to current and future challenges in the energy sector (1). Its end-result is a legally binding text adopted by the European Commission – currently through comitology and in the future as a delegated act (2).

1 Towards a simplified development process

The development process for network codes is based on the technical expertise of the ENTSOs while at the same time allowing for regulatory review by ACER. Following the establishment of an annual priority list by the Commission in the relevant fields,Footnote 24 ACER is requested to publish a framework guideline,Footnote 25 which sets clear and objective principles for the development of the future network code and contributes to non-discrimination, effective competition and to the efficient functioning of the market.Footnote 26 The Commission then requests the relevant ENTSO to develop a network code “in line with” the framework guidelineFootnote 27 within a maximum period of 12 months and following extensive consultations.Footnote 28 The draft network code is subsequently submitted to ACER, which issues a reasoned opinion within three months, following consultation with the relevant stakeholders, and may request the ENTSO to amend and resubmit it. ACER finally submits the network code to the Commission recommending its adoption once it considers it as being in line with the framework guideline.Footnote 29

Given the high degree of complexity of this procedure and the tight deadlines set by the relevant provisions,Footnote 30 informal practices have emerged aiming at reaching an early consensus on the content of the future network code. For example, an ad hoc high-level restricted group,Footnote 31 composed of the European Commission, ACER and the ENTSO-G, has been set up in order to speed up the process by agreeing on basic policy choices.Footnote 32 Another example of an informal practice relates to the so-called “parallelism” approach followed by ACER and the ENTSO-G, which consists in conducting working level discussions on the basis of an early draft opinion of ACER on the proposed network code.Footnote 33 The actors have also proceeded to a dynamic interpretation of the provisions of the third energy package, especially regarding one of the last steps of the elaboration procedure: the recommendation addressed by ACER to the European Commission for the adoption of the network code. Faced with the resubmission by ENTSOs of network codes that were not fully in line with the framework guidelines,Footnote 34 ACER has indeed resorted to an instrument that is not explicitly foreseen in the letter of the relevant provisions:Footnote 35 it issued so-called “qualified recommendations” indicating that the network code can reach the comitology stage provided the Commission proceeds to the amendments indicated by the Agency.Footnote 36

Drawing on this experience, the Commission has formulated a welcome proposal that simplifies the elaboration process by strengthening the role of ACER.Footnote 37 According to the Electricity Regulation Proposal, the ENTSO-EFootnote 38 will still be at the origin of the network code as the technical expert – from now on supported by a “drafting committee”Footnote 39 – but it would only elaborate proposals for network codes.Footnote 40 ACER would thus have the power to both revise the draft electricity network code in order to ensure its compatibility with the framework guideline and submit its revised version to the Commission.Footnote 41

Aiming to push forward the completion of the internal energy market, the Commission also envisages extending the establishment of network codes in several new areas reflecting current and future concerns of the energy sector,Footnote 42 such as, for example, cybersecurity. While a partial overlap of some of these new areas with existing network codes cannot be excluded,Footnote 43 the introduction of a proper legal basis envisaged by the Commission’s proposal is certainly welcome in terms of legal clarity. As additional expertise will be needed for network codes related to the operation of the distribution system, a new actor, namely the European Union Distribution System Operators’ (EU-DSO) entity, could also intervene in the elaboration process by submitting a proposal for a network code to ACERFootnote 44 following the streamlined elaboration procedure envisaged by the Commission. It remains to be seen to what extent these proposals will be validated by the co-legislators in the context of the ongoing ordinary legislative procedure.

2 Towards an adoption phase aligned to the delegated acts’ regime

Network codes are adopted by the Commission as EU regulationsFootnote 45 through comitology,Footnote 46 a procedure that allows for the adoption of legally binding detailed rules in a quicker and more flexible manner than the legislative one. The specific comitology procedure followed in the case of network codes is the regulatory procedure with scrutiny (RPS procedure).Footnote 47 The latter aims at amending or supplementing non-essential elements of secondary legislation,Footnote 48 such as the third energy package, and is based on the control exercised by regulatory committees composed of Member State representatives.Footnote 49

The opinion adopted by the regulatory committee on the draft network code is in theory instrumental for the subsequent stage of control exercised by the institutions: if the opinion is favourable, the Commission submits the draft for scrutiny to the European Parliament and to the Council, a stage at which either institution can dismiss it.Footnote 50 If the opinion is unfavourable, the Commission submits the draft first to the Council and then, if the Council agrees, also to the European Parliament: the measure is finally adopted if the European Parliament does not oppose the draft. In reality, informal practices, such as Member State meetings, have helped build consensus well before the formal voting within the Electricity Cross-border or the Gas regulatory committees,Footnote 51 thus securing the adoption of network codes. Given the need for adaptation to market or technical evolution in the field and for consistency among the various instruments,Footnote 52 amendments can be subsequently introduced to network codes that have entered into force.Footnote 53

Practice at the adoption stage reveals a diverging image, since in several cases the Commission has resorted to another instrument foreseen in the third energy package that is “concurrent” to network codes, viz to guidelines. Both instruments are legally binding: guidelines are also adopted through comitologyFootnote 54 in the same fields as network codes. While differences formally exist with respect to the elaborationFootnote 55 and the amendmentFootnote 56 of the two instruments, the Commission has aligned these procedures in its current practice and in its recent proposals.Footnote 57 Nevertheless, according to the relevant provisions, guidelines only provide “the minimum degree of harmonisation”Footnote 58 required to achieve the aims of the Electricity or Gas regulations. Contrary to the fairly detailed network codes, guidelines thus typically provide for additional steps, such as the development and adoption of terms, conditions and methodologies.Footnote 59

While objective reasons related to the degree of harmonisation have been advanced by the Commission in order to justify this practice,Footnote 60 the latter also seems to stem from the Commission’s dissatisfaction with the development of certain network codes, especially in the field of electricity.Footnote 61 The manner in which the Commission has exercised its competence could raise questions in any case. A telling example in this respect relates to the CACM guideline which introduces a Union-wide authorisation scheme for the designation of Nominated Electricity Market Operators (NEMOs), namely entities that perform tasks related to single day-ahead or single intraday coupling.Footnote 62 The CACM guideline indeed foresees in sufficient detail that NEMOs are designated by competent authorities provided that they satisfy specific criteria.Footnote 63 This enables them, among others, to offer their services with delivery in another Member State than the one in which they have been designated.Footnote 64 It is, however, doubtful whether the introduction of a detailed EU-wide authorisation scheme only brings about a minimum degree of harmonisation as required for guidelinesFootnote 65 or only relates to non-essential elements Footnote 66 of the founding regulations.

Apart from issues regarding the specific instrument privileged, the adoption phase raises the more general issue of the transition from the comitology procedure that has been followed so far to the delegated acts’ regime as required by the Lisbon Treaty.Footnote 67 Under Article 290 TFEU, delegated acts are non-legislative acts of general application which supplement or amend non-essential elements of a legislative act. Contrasted with the RPS procedure that is their pre-Lisbon equivalent,Footnote 68 their regime implicates, firstly, the absence of a general horizontal framework regarding the objectives, scope, duration and conditions to which delegation is subject: each legislative act will define these elements explicitly on a case-by-case basis. Secondly, and most importantly, their regime is characterised by the absence of “comitology” committees: expert groups are indeed present but they do not issue an opinion that defines the following steps of the process as was the case in the context of the RPS procedure. Thirdly, the Council and the European Parliament are on an equal footing and have the right to oppose an individual delegated act, from now on, on any grounds.Footnote 69 Finally, a novel right of revocation of the delegation altogether is entrusted to the two institutions.

The most contentious issue in the context of this transition is the consultation of national experts. An initial consensus of the institutions led to a Common Understanding on Delegated Acts,Footnote 70 which included a standard recital on consultations stating that it “is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level”.Footnote 71 Interinstitutional battles on the interpretation of the Common Understanding on Delegated Acts saw the Council pushing for “comitology through the back door” in order to indirectly reinstate the status of its own expert groups,Footnote 72 while the European Parliament aimed at safeguarding its own rights.Footnote 73 An Interinstitutional Agreement on Better Regulation was finally adopted in April 2016,Footnote 74 in which the Commission committed “to gathering, prior to the adoption of delegated acts, all necessary expertise, including through the consultation of Member States’ experts and through public consultations”.Footnote 75 On the basis of this Interinstitutional Agreement, the Parliament and Council’s experts will have equal access to all related meetings and documents and the Commission “may be invited in meetings in the European Parliament or the Council in order to have a further exchange of views on the preparation of delegated acts”.Footnote 76

The transition to the delegated acts regime is indeed envisaged by the Electricity Regulation Proposal conferring to the Commission the power to adopt delegated acts for an undetermined period of timeFootnote 77 and specifying that network codes and guidelines will be adopted as such.Footnote 78 According to its proposal, the Commission will consult experts by each Member State as provided in the Interinstitutional AgreementFootnote 79 and thus still profit from their expertise in this highly technical field. Finally, the European Parliament or the Council will have the right to revoke the delegation of powers at any timeFootnote 80 or object to the delegated act,Footnote 81 the latter being notified as soon as it is adopted and simultaneously to the two institutions.Footnote 82 It remains to be seen whether the interinstitutional battles surrounding the adoption of delegated acts will spill over into the field of energy and affect the future adoption of, or future amendments to, network codes and guidelines.

Following the adoption of a first “generation” of network codes and guidelines in the last few years, the greatest challenge and current focus of all actors is their actual and effective implementation.Footnote 83

III Ensuring effective implementation

Ensuring effective implementation is crucial for the completion of the internal energy market.Footnote 84 Initial experiences confirm the challenges of this gigantic task (1), while, at the same time, naturally raising the issues of monitoring and compliance (2).

1 Gaining experience in implementation

Despite the fact that several early implementation projects have done much needed groundwork,Footnote 85 the actual coordinated implementation of network codes and guidelines is not an easy task. This is, first of all, related to the complexity of the process, given that, depending on the instrument, additional steps, such as “cross-national and national decisions, the conclusion of regional agreements (and) the creation of European-level common detailed methodologies”Footnote 86 may be required. Secondly, it is due to the need to ensure the full involvement of stakeholders and coordination of the large number of actors – national ministries, TSOs and ENTSOs, NRAs and ACER or the European Commission – that are entrusted with different roles in the implementation process.

The CACM guideline provides a telling example of such complexity, as it contains provisions requiring the development of terms, conditions and methodologies (TCM) by TSOsFootnote 87 and NEMOs,Footnote 88 which are submitted for approval to “all NRAs” or to a “group of NRAs” within specific deadlines.Footnote 89 In this context, around 40 TCM are to be developed on a European level and approved by all NRAs,Footnote 90 while around 30 TCM are to be developed and approved by NRAs of individual regions.Footnote 91

Cooperation among the actors is not necessarily outlined in a detailed manner at all times,Footnote 92 but remedies to potential “failures” are foreseen in the relevant provisions: in case of failure of TSOs or NEMOs to submit proposals for TCM for approval to NRAs within the fixed deadlines,Footnote 93 these entities must provide the relevant drafts to NRAs and to ACER. The latter then informs the Commission and investigates the reasons for such failure upon its request. This allows the Commission to “take the appropriate steps” in order to ensure the adoption of the TCM within four months from the receipt of the information.Footnote 94 If the proposal for TCM is indeed submitted, NRAs shall “consult and closely cooperate and coordinate with each other in order to reach an agreement”.Footnote 95 In case of a failure of NRAs to reach an agreement on a proposal for TCM submitted for approval – or upon their joint request – ACER is entrusted with a “surrogate role”: it decides itself on the TCM within six months,Footnote 96 a process that has been triggered several times in the last few months.Footnote 97 ACER has, for example, adopted the decision on the determination of Capacity Calculation Regions following the failure of “all NRAs” to reach a decision on the relevant “all TSOs” proposal.Footnote 98 ACER’s competence to modify TSOs’ proposals without needing to specifically request an amendment when exercising its surrogate role has been recently confirmed by its Board of Appeal.Footnote 99

The coordinated NRAs decision-making procedures foreseen by instruments such as the CACM guideline certainly profit from the individual NRA’s expertise and knowledge of local conditions that are crucial to implementation. They come, however, at the cost of a high degree of complexity and of potential delaysFootnote 100 or blockagesFootnote 101 due to the need for 28 separate NRA approvals. They also depend on the actual degree of involvement and independence of NRAs.Footnote 102 Finally, the outcome of these procedures is intriguing from the point of view of legal accountability: “all-NRAs” decisions consist of individual decisions adopted by NRAs, a configuration which renders judicial review a delicate task.

Building upon the surrogate role already foreseen for ACER, the Commission has proposed to simplify the processes described above by directly entrusting the Agency with the power of revision and regulatory approval of Union-wide TCM.Footnote 103 This would allow NRAs to still decide on the TCM, but within ACER’s Board of Regulators and following voting rules that would implicate far less “weight” for individual NRAs in the process.Footnote 104 It would also facilitate judicial review, as the decision would be adopted by ACER itself.Footnote 105 The impact of such new powers on ACER’s resources would, however, have to be taken into account when the institutions decide on the Agency’s budget.Footnote 106

Apart from the envisaged simplification in the adoption of Union-wide TCM, the challenging task of the implementation of network codes and guidelines has led to institutional innovations aiming to ensure both active engagement and coordination of the various actors involved. For example, the Network Code Implementation and Monitoring Group, composed of the European Commission, ACER and the ENTSOs, has been established in order to provide high level coordinationFootnote 107 by following the progress made in the implementation, discussing issues of strategic importance, providing non-binding implementation guidance and by discussing future network codes’ and guidelines’ development and amendments.Footnote 108

When it comes to the active involvement of stakeholders, different platforms are currently being tested.Footnote 109 Implementing obligations set out in network codes and guidelines,Footnote 110 European Network Codes Stakeholder Committees (ESCs) have been set up in the field of electricity:Footnote 111 for the parties actually responsible for the implementation of network codes, ESCs are platforms where they can report on implementation projects and early drafts of TCM and get feedback.Footnote 112 For stakeholders, the ESCs constitute fora of discussion on implementation activities that ensure early access to information. Finally, the ESCs provide valuable assistance to ACER and to the NRAs in their monitoring tasks. The creation of such committees raises, however, the question of their articulation with formal consultation procedures foreseen in the third energy package,Footnote 113 an issue that is not clarified in the “Clean Energy” proposals. Such committees could, in any case, be the way forward in the field of gas,Footnote 114 where another institutional innovation, the Gas Network Functionality Platform co-managed by ACER and the ENTSO-G, pursues similar objectivesFootnote 115 but remains largely unexploited by stakeholders, seemingly due to confidentiality considerations.

2 Ensuring monitoring and compliance

The significant challenges of the implementation phase highlight the need for effective monitoring of both compliance with the network codes and guidelines and of the actual effectiveness of these instruments.Footnote 116 On a European level, monitoring is a key task for ACER,Footnote 117 that is ensured on the basis of information provided primarily by the ENTSOsFootnote 118 and the NRAs.Footnote 119 In addition to new monitoring tasks under individual network codes and guidelines,Footnote 120 ACER’s monitoring activities in this specific area primarily feed into two types of reports.

The first one is the Market Monitoring Report, namely ACER’s annual report presenting the results of monitoring the internal electricity and gas marketsFootnote 121 and allowing identification of barriers to their completion that should be tackled by the institutions.Footnote 122 According to ACER, market-monitoring on the basis of the MMR is becoming “increasingly sophisticated” and effectiveness-oriented, as it “will also assess the effect the (implemented) network codes have on the market integration process and the functioning of the Internal Energy Market”Footnote 123 and will be “enriched with additional indicators to measure the effectiveness of the various network codes, starting with gas”.Footnote 124

A second more customised type of report, viz the implementation monitoring report, is foreseen in Article 9(1) of the Electricity and Gas Regulations.Footnote 125 According to these provisions, ACER monitors and analyses the implementation of network codes and guidelines, reporting back to the Commission especially on their impact “on the harmonisation of applicable rules aimed at facilitating market integration as well as on non-discrimination, effective competition and the efficient functioning of the market”.Footnote 126 The first implementation monitoring reports on specific network codes and guidelines have been issued by ACER in the last two years identifying progress but also significant disparities in implementation,Footnote 127 as is for example the case with the BALFootnote 128 and the CAM network codes.Footnote 129

Monitoring in itself could also be improved, especially with regard to the quality and consistency of information serving as its basis.Footnote 130 ACER has already identified relevant problems and seems to have hinted at the possibility of being itself entrusted with direct investigative powers.Footnote 131 A delegation of similar powers to European agencies is in any case not unprecedented.Footnote 132 Nevertheless, the Commission’s proposal “maintains the current principle of distribution of powers between NRAs and ACER” whereby “investigation and sanctions (…) remain in the hands of NRAs”Footnote 133 apparently due to concerns related to the respect of the principle of subsidiarityFootnote 134 and to the obvious political sensitivity of the issue. In this context, the need to attribute sufficient resources to NRAs that would allow them to appropriately carry out their duties becomes ever more pressing.Footnote 135

A second area of improvement relates to the need for a better articulation of ACER’s various monitoring reports:Footnote 136 future streamliningFootnote 137 or a potential mergingFootnote 138 of certain reports could be envisaged in order to allow for more clarity and for cost reductions. The issue of resources is also critical for ACER: chronic resource strains have already affected market monitoring,Footnote 139 including the monitoring of the implementation of network codes and guidelines.Footnote 140 In this context, the Commission has asked ACER to prioritise the monitoring of network codes and guidelines by shifting resources and staff internally,Footnote 141 while ACER itself has been trying to secure additional resources in the context of the budgetary discharge procedure.Footnote 142 Such difficulties are unfortunate, since effective monitoring from ACER is instrumental in tackling pathologies in implementation and ensuring compliance. The findings of the two BAL implementation monitoring reports, which have led ACER to repeatedly warn of future infringement procedures being opened by the CommissionFootnote 143 absent proper implementation, are telling in this respect.

Lastly, when it comes to ensuring compliance, the “generalist” instrument of proceedings for failure to fulfil an obligation under Article 258 TFEU is not the only one available in the hands of the Commission. A more customised mechanism exists regarding the public enforcement of the regulatory framework:Footnote 144 in its current version, it consists in a multi-stage procedure profiting from the expertise of ACERFootnote 145 and potentially leading to a veto of the Commission on a decision of an NRA that does not comply with guidelines.Footnote 146 In a welcome evolution, the Commission has proposed to extend this procedure also to network codes.Footnote 147 This would allow the streamlining of the compliance mechanisms for both instruments and address the absence of similar specialised review procedures in the texts of individual network codes and guidelines.Footnote 148 It remains to be seen whether this mechanism will meet the success of similar multi-stage procedures in other regulated industriesFootnote 149 and ensure the uniform enforcement of the regulatory framework in the field of energy.

IV Conclusion

The adoption of a first “generation” of network codes and guidelines shows how far the EU has come in constructing the technical backbone of its internal energy market. The active and coordinated involvement of the actors, building upon the “acquis” of their cooperation in the elaboration stage, will prove to be key at the current stage of implementation. While the governance solutions envisaged in the Commission’s “Clean Energy” proposal globally seem to move in the right direction, practical issues, such as the one of ACER’s and the NRAs’ resources, and, ultimately, the Commission’s political willingness to replace the “carrot” with a “stick” when faced with inconsistent implementation are equally important in order to secure the challenging future of the network codes.

Footnotes

*

Université d’Orléans (France).

1 On ACER, see C Vlachou, La coopération entre les autorités de régulation en Europe (communications électroniques, énergie), Thèse en droit public (Université Paris II, 2014).

2 On comitology, see Héritier, A, et al., Changing Rules of Delegation. A Contest for Power in Comitology (Oxford University Press 2013).

3 See Dobbeni, D et al., “The elaboration of electricity Network Codes and the Ten Year Network Development Plan for electricity” in J-A Vinois (ed.), EU Energy Law Volume VIII: The Energy Infrastructure Policy of the European Union (Claeys & Casteels 2014) 46–48 .

4 The third energy package consists of the following texts: Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Electricity Directive) [2009] OJ L211; Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (Gas Directive) [2009] OJ L 211; Regulation (EC) 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) [2009] OJ L211; Regulation (EC) 714/2009 of the European Parliament and of the Council of 13 July 2009 on common conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (Electricity Regulation) [2009] OJ L211; Regulation (EC) 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (Gas Regulation) [2009] OJ L211.

5 See Gräper, F and Webster, W, “The establishment of common network codes” in C Jones (ed.), EU Energy Law, Volume I, The Internal Energy Market (Claeys & Casteels 2016) 604–605 .

6 See Commission Decision (EU) 2015/715 of 30 April 2015 amending Annex I to Regulation (EC) 715/2009 of the European Parliament and of the Council on conditions for access to the natural gas transmission networks [2015] OJ L114; Commission Decision 2012/490/EU of 24 August 2012 on amending Annex I to Regulation (EC) 715/2009 of the European Parliament and of the Council on conditions for access to the natural gas transmission networks [2012] OJ L231.

7 See Commission Regulation (EU) 2017/459 of 16 March 2017 establishing a network code on capacity allocation mechanisms in gas transmission systems and repealing Regulation (EU) No 984/2013 (CAM) [2017] OJ L72.

8 See Commission Regulation (EU) 312/2014 of 26 March 2014 establishing a network code on gas balancing of Transmission Networks (BAL) [2014] OJ L91.

9 See Commission Regulation (EU) 2017/460 of 16 March 2017 establishing a network code on harmonised transmission tariff structures for gas (TAR) [2017] OJ L72.

10 See Commission Regulation (EU) 2015/703 of 30 April 2015 establishing a network code on interoperability and data exchange rules (INT) [2015] OJ L113.

11 See Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (CACM) [2015] OJ L197.

12 See Commission Regulation (EU) 2016/1719 of 26 September 2016 establishing a guideline on forward capacity allocation (FCA) [2016] OJ L259.

13 See Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing [2017] OJ L312.

14 See Commission Regulation (EU) 2016/1388 of 17 August 2016 establishing a network code on demand connection (DC) [2016] OJ L223.

15 See Commission Regulation (EU) 2016/631 of 14 April 2016 establishing a network code on requirements for grid connection for generators (RfG) [2016] OJ L112.

16 See Commission Regulation (EU) 2016/1447 of 26 August 2016 establishing a network code on requirements for grid connection on high voltage direct current systems and direct current-connected power park modules (HVDC) [2016] OJ L241.

17 See Commission Regulation (EU) 2017/2196 of 24 November 2017 establishing a network code on electricity emergency and restoration [2017] OJ L 312.

18 See Commission Regulation (EU) 2017/1485 of 2 August 2017 establishing a guideline on electricity transmission system operation [2017] OJ L 220.

19 See V Musazzi, “The elaboration of the network codes in the field of gas” in Vinois, supra, note 3, p 132.

20 See <ec.europa.eu/energy/en/news/commission-proposes-new-rules-consumer-centred-clean-energy-transition> accessed 19 March 2018. For an overview of the “Clean Energy” Package, see L Hancher, B-M Winters, “The EU Winter Package – Briefing Paper” (Allen & Overy February 2017), <www.allenovery.com/publications/en-gb/Pages/The-EU-Winter-Package.aspx> accessed 19 March 2018. In our analysis we will be focusing on the following texts: 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 (ACER Recast Proposal); Proposal for a Directive of the European Parliament and of the Council on common rules for the internal market in electricity (recast), 30.11.2016, COM(2016) 864 final (Electricity Directive Proposal); Proposal for a Regulation of the European Parliament and of the Council on the internal market for electricity (recast), 30.11.2016, COM(2016)861 final (Electricity Regulation Proposal).

21 See below, section II2.

22 The Commission envisages an entry into force of the “Clean Energy” Package by January 2020, while a “mirroring exercise” has been undertaken so that new rules could also be proposed in the field of gas.

23 The paper focuses on governance issues. References to the substance of the network codes and guidelines will be made when necessary for the analysis.

24 See Electricity and Gas Regulations, Art 8(6).

25 Within an extendable period of six months, and following a two-month period of consultations with stakeholders.

26 If the Commission considers that these objectives are not achieved it may request ACER to review the framework guideline and resubmit it or, in case of failure by ACER, ultimately ensure its elaboration itself, see Electricity and Gas Regulations, Art 6(4)–(5).

27 On the ambiguous legal nature of framework guidelines, see A Pototschnig, “The role of the Agency for the Cooperation of Energy Regulators (ACER) in the development of common rules for the internal energy markets and the European energy networks” in Vinois, supra, note 3, p 142; C Vlachou, “The adoption of network codes in the field of energy: availability of judicial review in a multi-stage procedure” (2012) 2 EEJ 47. ENTSOs may also adopt non-binding network codes in areas not covered by the Commission’s request, see Electricity and Gas Regulations, Art 8(2).

28 See Electricity and Gas Regulations, Art 10(1).

29 If the ENTSOs have failed to develop the network code in the above-mentioned timeline, the Commission may ask ACER to prepare a draft network code itself or, in case of failure by ACER, adopt it on its own initiative, see Electricity and Gas Regulations, Art 6(11).

30 See European Court of Auditors, “Improving the security of energy supply by developing the internal energy market: more efforts needed”, Special Report No 16/ 2015, 2015, p 31; C Marchi and C Musialski, “Network codes and (formal and material) boundaries to EU action in the electricity and gas sectors” (2013) 3 EEJ 39.

31 See ACER Board of Regulators, Conclusions of the 44th meeting, Ref: A15-BoR-44-02, 28 January 2015, p 11; ACER Board of Regulators, Conclusions of the 49th meeting, Ref: A15-BoR-49-02, 16 July 2015, p 12.

32 Even though such informal high-level meetings aim at building consensus before the comitology stage without substituting themselves to the formal procedures, it is very difficult to subsequently put in question the policy choices agreed upon, see ACER Board of Regulators, Conclusions of the 48th meeting, Ref: A15-BoR-48-02, 10 June 2015, p 13.

33 See Musazzi, supra, note 19, pp 124–125, 130–131.

34 This was, for example, the case with the CAM network code, see ACER, Recommendation No 04/2012 of 9 November 2012 on the Network Code on Capacity Allocation Mechanisms for the European Gas Transmission Network (ACER Recommendation No 04/2012), points 11, 17.

35 On the appropriate legal basis, see ACER, Recommendation No 04/2012, point 18. In such a case, the Commission could also invoke the above-mentioned Art 6(11) of the Electricity and Gas Regulations.

36 See Pototschnig, supra, note 27, p 143.

37 See Electricity Regulation Proposal, recital 43; ACER Recast Proposal, Art 5(1)(a)–(c).

38 Or the EU-DSO entity, see Electricity Regulation Proposal, Art 52.

39 See Electricity Regulation Proposal, Art 55(9). According to the Commission’s proposal, the “drafting committee” will be composed of representatives of ENTSO-E, ACER, the EU-DSO entity, potentially of NEMOs and of a limited number of the “mainly affected stakeholders”, an obscure term that will require further clarification in the future.

40 See Electricity Regulation Proposal, Art 55(9) (emphasis added).

41 See Electricity Regulation Proposal, Art 55(10); ACER Recast Proposal, recital 14.

42 Some of these areas constitute “uncharted territory” as they lay outside the fields where TSOs have traditionally cooperated, see Electricity Regulation Proposal, Art 55(1)(g), (k), (m), (n), (o), (p). The periodicity of the priority list would also change, as the Commission would only publish a tri-annual priority list, see Electricity Regulation Proposal, Art 55(2).

43 Whether an amendment to an existing network code could suffice or developing a network code ab initio would be preferable is an issue that will have to be assessed on a case-by-case basis.

44 See Electricity Regulation Proposal, recital 38, Art 51(1)(f), 55(2). The EU-DSO entity would also participate in consultations for network codes, see Electricity Regulation Proposal, Art 55(4).

45 Given the characteristics of this instrument that can ensure speed and effectiveness in implementation, namely, its legally binding force, direct applicability and primacy over national arrangements.

46 On the current priorities, see European Commission, Implementing Decision (EU) 2017/89 of 17 January 2017 on the establishment of the annual priority list for 2017 for the development of network codes and guidelines (Implementing Decision 2017/89) [2017] OJ L14, para. 6.

47 See Electricity and Gas Regulations, Art 23(1).

48 Adopted according to the ordinary legislative procedure.

49 In the case of network codes, these are the Electricity Cross-border Committee and the Committee on the implementation of common rules on transport, distribution, supply and storage of natural gas (Gas Committee).

50 On the basis of limited grounds, namely lack of competence of the Commission, incompatibility of the measure with the aim or the content of the basic act, or a violation of the principles of subsidiarity and proportionality.

51 As was for example the case regarding the gas transmission network tariffs network code, see ACER Board of Regulators, Conclusions of the 54th meeting, Ref: A16-BoR-54-02, 27 January 2016, p 12, and the CACM Regulation, see ACER Board of Regulators, Conclusions of the 40th meeting, Ref: A14-BoR-40-02, 17 September 2014, p 8.

52 The Incremental Capacity Proposal was the first amendment to be adopted and, thus, introduced in the CAM network code.

53 The amendment procedure is simpler, especially since there is no obligation to elaborate a new framework guideline, see Electricity and Regulations, Art 7(1). In its Electricity Regulation Proposal, the Commission aims to clarify ACER’s role as a “filter” to proposals for amendment: ACER should from now on proceed to consultations with stakeholders “(w)here it deems an amendment proposal admissible”, see Electricity Regulation Proposal, Art 56.

54 See Electricity Regulation, Art 18(5); Gas Regulation, Art 23(2).

55 The adoption of guidelines formally only presupposes consultations with ACER and the ENTSOs and, thus, not with “all relevant stakeholders” as is the case with network codes, see Electricity Regulation, Art 18(3); Gas Regulation, Art 23(1).

56 Amendments to guidelines lie on the sole initiative of the Commission, while ACER plays an important role in the amendments to network codes, see Electricity and Gas Regulations, Art 7(1).

57 See ACER Board of Regulators, Conclusions of the 38th meeting, Ref: A14-BoR-38-02, 11 June 2014, p 9. On the Commission’s proposals, see Electricity Regulation Proposal, Art 54(1), (2), 57(2), (7).

58 See Electricity Regulation, Art. 18(3); Gas Regulation, Art 23(1).

59 See section III1 below.

60 See ACER Board of Regulators, Conclusions of the 39th meeting, Ref: A14-BoR-39-02, 17 July 2014, p 8; ACER Board of Regulators, Conclusions of the 40th meeting, Ref: A14-BoR-40-02, 17 September 2014, p 3.

61 See Cameron, P, “Introduction. The Internal Energy Market – Redefining Objectives” in P Cameron and R Heffron (eds), Legal Aspects of EU Energy Regulation. The Consolidation of Energy Law across Europe (Oxford University Press 2016) p 15 .

62 See CACM Regulation, Art 2(23). On the role and tasks of NEMOs, see CACM Regulation, Art 7(1)–(2).

63 Each Member State electrically connected to a bidding zone in another Member State had to designate one or more NEMOs by 14 December 2015, see CACM Regulation, Arts 4(1)–(2), 6(1). On NEMOs, see R Feltkamp and G Hendrikx, “Who are the NEMOs for day-ahead and intraday market coupling” (2016) 6 EEJ 64.

64 See CACM Regulation, Art 4(5)–(9). The receiving Member State can refuse that a NEMO designated in another Member State offers trading services on its territory on limited grounds, see CACM Regulation, Art 4(6).

65 See Electricity Regulation, Art 18(3); Gas Regulation, Art 23(1). See R Feltkamp and G Hendrikx, “Power Exchanges and CACM: a New Role in a Better Regulatory Environment?” (2017) BuCo Working Paper 4/2017, p 13.

66 According to the case law of the Court of Justice “provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature” in the sense that they “(require) the conflicting interests at issue to be weighed up on the basis of a number of assessments” are to be considered as reserved to the legislature of the European Union, see Case C-355/10 European Parliament v Council of the European Union ECLI:EU:C:2012:516, paras. 64–65, 76–77. The Common Understanding on Delegated Acts is ambiguous with respect to measures establishing a procedure, see Common Understanding on Delegated Acts (Common Understanding on Delegated Acts), Council doc 8640/11, 04 April 2011, point 10.

67 On delegated acts see, for example, T Christiansen and M Dobbels, “Non-Legislative Rule Making after the Lisbon Treaty: Implementing the New System of Comitology and Delegated Acts” (2013) 19 European Law Journal 42; S Peers and M Costa, “Accountability for Delegated and Implementing Acts after the Treaty of Lisbon” (2013) 19 European Law Journal 427.

68 See Kaeding, M and Hardacre, A, “The European Parliament and the Future of Comitology after Lisbon” (2013) 19 European Law Journal 382, 386–388 .

69 As opposed to the limited grounds under the RPS procedure, see supra, note 50.

70 See supra, note 66.

71 See Common Understanding on Delegated Acts, Annex on standard Clauses.

72 See Council of the European Union – General Secretariat, Initiative to complement the Common Understanding on delegated acts as regards the consultation of experts, Doc 6774/14, JUR 99-DELACT33-INST 121-PE 102, Brussels, 21 February 2014.

73 See European Parliament, Resolution of 13 March 2014 on the implementation of the Treaty of Lisbon with respect to the European Parliament 2013/2130(INI), P7_TA(2014)0249.

74 See Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making (Interinstitutional Agreement).

75 See Interinstitutional Agreement, point 28.

76 See Interinstitutional Agreement, point 29. In order to enhance transparency, a public register for delegated acts has been established, see <webgate.ec.europa.eu/regdel/#/home> accessed 18 March 2018.

77 See Electricity Regulation Proposal, Art 63(1)–(2).

78 See Electricity Regulation Proposal, Art 54(1). Amendments to network codes will also be adopted as delegated acts, see Electricity Regulation Proposal, Art 56.

79 See Electricity Regulation Proposal, Art 63(4).

80 See Electricity Regulation Proposal, Art 63(3).

81 See Electricity Regulation Proposal, Art 63(6).

82 See Electricity Regulation Proposal, Art 63(5).

83 See Implementing Decision (EU) 2017/89, recital 5.

84 Electricity is faced with more challenges than gas in this respect, see ACER, Programming Document 2017–2019, September 2016, p 17.

85 On the importance of early implementation projects, see Pototschnig, supra, note 27, p 151.

86 See Terms of Reference, p 3.

87 TSOs participate in single day-ahead and intraday coupling performing several tasks jointly or individually, see CACM Regulation, Art 8(1)–(2).

88 “NEMOs shall act as market operators in national or regional markets to perform in cooperation with TSOs single day-ahead and intraday coupling”, see CACM Regulation, Art 7(1), and “TSOs and NEMOs shall jointly organize the day-to-day management of the single day-ahead and intraday coupling”, see CACM Regulation, Art 10.

89 See CACM Regulation, Art 9(1).

90 Such as, for example, proposals for TCM on the plan on joint performance of MCO functions, the capacity calculation regions, a common grid model methodology, or back-up methodology, see CACM Regulation, Art 9(6).

91 Such as, for example, the common capacity calculation methodology, common methodologies for the calculation of scheduled exchanges, and failback procedures, see CACM Regulation, Art 9(7).

92 Art 9(1) of the CACM Regulation only states that “(w)here a proposal for terms and conditions or methodologies pursuant to this Regulation needs to be developed and agreed by more than one TSOs or NEMOs, the participating TSOs and NEMOs shall closely cooperate”. On the issue of cooperation, see Feltkamp and Hendrikx, supra, note 65, p 18.

93 See CACM Regulation, Art 9(4).

94 ibid.

95 See CACM Regulation, Art 9(10). The NRAs can request ACER to issue an opinion on the proposals for TCM within three months, see CACM Regulation, Art 9(9). Amendments to such proposals are possible, necessarily extending the timeline for the adoption of the (amended) TCM, see CACM Regulation, Art 9(12).

96 See CACM Regulation, Art 9(11), (12).

97 For the relevant decisions of ACER, see <www.acer.europa.eu/Official_documents/Acts_of_the_Agency/Pages/Individual-decision.aspx> accessed 19 March 2018.

98 See ACER, Decision 06-2016 of 17 November 2016 on the Electricity Transmission System Operators’ Proposal for the Determination of Capacity Calculation Regions.

99 ACER’s competence in this respect is naturally limited by the conditions set by the CACM Regulation, see ACER Board of Appeal, Case A-001-2017 E-Control a.o. v ACER [2017] paras. 64–70. The decision of the ACER’s Board of Appeal is currently under challenge before the General Court, see GC, Case T-332/17 E-Control v ACER, action brought on 29 May 2017.

100 The timeline for the adoption of TCM can extend from six to sixteen months in the most complex scenario where amendments are submitted and ACER needs to adopt the final decision, see Feltkamp and Hendrikx, supra, note 65, pp 15–16.

101 As manifested by the number of TCM that have been recently decided upon by ACER.

102 On the independence of NRAs, see ACER, Recommendation of the Agency for the Cooperation of Energy Regulators No 1/2016 of 30 May 2016 on ensuring the independence of the Agency for the Cooperation of Energy Regulators and of National Regulatory Authorities (ACER Recommendation No 1/2016).

103 So that they are in line with the purpose of the network code or guideline and contribute to market integration, non-discrimination and the efficient functioning of the market, see ACER Recast Proposal, recital 16, Art 5(2). On the reaction of the CEER to the Commission’s proposals on governance, see CEER, Paper IX, Regional Regulatory Oversight, CEER White Paper series on the European Commission’s Clean Energy Proposals, 24 October 2017. The Commission also proposed – in a rather sibylline manner – that ACER be involved in regional decision making processes that have a “tangible impact on the internal market, notably in cases where the issue at stake has a significant relevance beyond the concerned region”, see ACER Recast Proposal, Art 7(2).

104 The Commission indeed proposes a transition to a simple majority voting, see ACER Recast Proposal, recital 34, Art 23(1).

105 Following settled case law, the standard of review would be limited to a manifest error of assessment, see ACER’s Board of Appeal, Case A-001-2017 E-Control a.o. v ACER [2017] paras. 107–111. See also C Vlachou, “Agence de Coopération des Régulateurs de l’Energie: la Commission de Recours statue pour la première fois sur le fond d’un litige porté devant elle (ACRE, comm. recours, déc. A-001-2017, 17 mars 2017)” (2017) Revue Droit Administratif 29–31.

106 On the issue of ACER’s resources, see section III2 below.

107 See European Commission, ACER, ENTSOs, Reference paper for the NC implementation and Monitoring Group, 2 October 2017 (Reference Paper).

108 ibid, pp 3–4.

109 The analysis will not focus on the well-known role of the Florence and Madrid regulatory fora.

110 See, for example, CACM Regulation, Arts 11, 12.

111 The ESCs are composed of a limited number of stakeholders, see Terms of Reference for the Market European Network Code Stakeholder Committee (Terms of Reference), 29 September 2015, p 5. Their meetings are chaired by ACER while the Commission assists in their travaux.

112 See Terms of Reference, pp 5, 6–7.

113 The Terms of Reference of the ESCs formally state that they do not interfere with such consultation procedures, see Terms of Reference, pp 3, 5.

114 An alternative solution could consist in following the Questions & Answers format that has already been successfully used by ACER in the case of other legislative instruments, see, for example, Questions & Answers on REMIT, 21st Edition, June 2017.

115 See <www.gasncfunc.eu/> accessed 19 March 2018.

116 In the case of the balancing network code the focus on effectiveness is, for example, demonstrated through the development of a Balancing Analytical Framework aiming to measure the performance of balancing regimes, see ACER, Second Report on the Implementation of the Balancing Network Code, 16 November 2017.

117 With respect to monitoring and compliance ensured on a national level by NRAs, see Electricity Directive, Art 37(1); Gas Directive, Art 41(1).

118 ENTSOs indeed ensure a first level of monitoring, see Electricity and Gas Regulations, Art 8(8), (9).

119 See Electricity Directive, Art 38; Gas Directive, Art 42.

120 For example, see CACM Regulation, Art 82(3).

121 See ACER Regulation, recital 8, Art 11(1)–(2).

122 See ACER Regulation, recital 8, Art 11(3) stating that ACER may submit an opinion to the European Parliament and the Commission on the measures to be taken in this respect.

123 See ACER, Programming Document 2017–2019, supra, note 84, p 72.

124 ibid, p 71.

125 See also ACER Regulation, Art 6(6). Art 9(1) of the Electricity and Gas Regulations also provides for ACER’s monitoring of non-binding network codes elaborated solely by the ENTSOs under Art 8(2) of the Electricity and Gas Regulations or developed according to the standard procedure but finally not adopted by the Commission under comitology.

126 See Electricity and Gas Regulations, Art 9(1).

127 As ACER has noted in the Gas Regional Initiative Status Review Report 2016: “while the South GRI Region has, on average, a rather high and homogeneous level of compliance with the NCs, the SSE GR Region is confronted with a two-speed situation, as south-eastern countries still face very low compliance rates on Capacity Allocation Mechanism (CAM), Congestion Management Procedures (CMP) and Balancing (BAL)”, see ACER, Gas Regional Initiative Status Review Report 2016, 08 February 2017, p 6.

128 In its second report on the balancing network code ACER explains that implementation is still “patchy”, some Member States not having made any progress at all. According to ACER, “implementation processes were delayed due to either lacking leadership or disputes over it, or the lack of initiative to apply the Code in practice”, while “certain difficultes arose because the legal text of the Code does not clearly articulate its principles and intent”, see ACER, Second Report on the implementation of the Balancing Network Code, supra, note 116, paras. 59–61.

129 See ACER, Implementation Monitoring Report on the Capacity Allocation Mechanisms Network Code, First Edition, 27 October 2016, p 4, where the Agency indicates that while the average EU compliance level is 82%, only the British and Belgian TSOs have implemented all the mandatory provisions of the code.

130 Especially since some of the actors, such as TSOs, have not always positively engaged in providing such information. ACER stresses, for example, that the full assessment of the implementation of the network code on Interoperability and Data exchange is “difficult as the Agency does not have access to all necessary input. At this stage, the assessment is based on the self-assessments of the Transmission System Operators (“TSO”) alone. These self-assessments are neither backed by evidence nor checked proactively for compliance by the National Regulatory Authorities (“NRAs”)”, see ACER, First Implementation Monitoring Report of the Network Code on Interoperability and Data Exchange, 04 December 2017, pp 3, 10.

131 In order to address deficiencies in regulatory oversight on a national level, see ACER, First Implementation Monitoring Report of the Network Code on Interoperability and Data Exchange, supra, note 130, para. 52. On NRAs’ investigative powers, see Electricity Directive, Art 37(4); Gas Directive, Art 41(4).

132 For example the European Maritime Safety Agency can carry out visits to Member States in order to ensure monitoring, see Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, [2002] OJ L208, recital 6, Art 2(bi), 3, while the European Aviation Safety Authority can conduct inspections of Member States and investigations of undertakings, see Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC, [2008] OJ L079 (EASA Regulation), Arts 54, 55.

133 CEER considers that – at least formally – “NRAs have been granted with proper and efficient sanctioning and investigatory powers at national level” and “enjoy broad powers to conduct such investigations, including via rights of access or through hearings”, see CEER, State of Play on NRAs’ investigatory and sanctioning powers, 9 October 2017, Ref: C17-LTF-51-03A, p 2.

134 The Commission indeed explains that “ACER is the body established to provide (…) regulatory oversight as far as situations are concerned which cover more than two Member States. The main role of ACER as a coordinator of the action of national regulators has been preserved; limited additional competences have been assigned to ACER in those areas where fragmented national decision-making on issues with cross-border relevance would lead to problems or inconsistencies for the internal market”, see ACER Recast Proposal, pp 10–11. On subsidiarity as a legal limit to agencification, see Chamon, M, EU Agencies. Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press 2016) pp 157–164 .

135 See ACER, Recommendation No 1/2016.

136 See ACER Board of Regulators, Conclusions of the 58th meeting, Ref: A16-BoR-58-02, 13 July 2016, p 13.

137 See ACER Board of Regulators, Conclusions of the 55th meeting, Ref: A16-BoR-55-02, 16 March 2016, p 10; ACER Board of Regulators, Conclusions of the 62nd meeting, Ref: A16-BoR-62-02, 14 December 2016, p 13.

138 See CEPA, Final Report: Implementation Monitoring and Evaluation of the Impact of the Gas Network Codes and Guidelines on the Internal Market, ACER/OP/DIR/08/2013/LOT 2/SC06, October 2015, p 5.

139 See ACER Board of Regulators, Conclusions of the 62nd meeting, Ref: A16-BoR-62-02, 14 December 2016, p 14.

140 See ACER Board of Regulators, Conclusions of the 44th meeting, Ref: A15-BoR-44-02, 28 January 2015, p 5.

141 See ACER Board of Regulators, Conclusions of the 62nd meeting, Ref: A16-BoR-62-02, 14 December 2016, p 7.

142 See ACER Recommendation No 1/2016, p 5.

143 See ACER, Report on the implementation of the Balancing Network Code, p 16; ACER, Second Report on the implementation of the Balancing Network Code, supra, note 116, para. 73.

144 On the differences in scope and procedure with the more “generalist” review procedure foreseen in Art 7(4) of the ACER Regulation, see F Ermacora and E Tremmel, “The Agency for the Cooperation of Energy Regulation (ACER)” in Jones, supra, note 5, pp 312–313.

145 See Electricity Directive, Art 39(1); Gas Directive, Art 43(1).

146 See Electricity Directive, Art 39(1), (6); Gas Directive, Art 43(1), (6). In that case, the NRA is obliged to withdraw its decision within two months, see Electricity Directive, Art 39(8); Gas Directive, Art 43(8).

147 See Electricity Regulation Proposal, Art 63. Currently, compliance of NRAs’ decisions with network codes could be examined under the above-mentioned Art 7(4) of the ACER Regulation given its large scope of application.

148 See Feltkamp and Hendrikx, supra, note 65, p 17.

149 See Art 7 of the Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services [2002] OJ L108, entrusting the Commission with a veto power on decisions of NRAs on the definition of a relevant market and the designation of an operator having significant market power.

* Université d’Orléans (France).