summary of the case
| status: | closed by Ministerial Council Decision / not complied after Article 91 MC Decision |
|---|---|
| registered: | ex officio 30.04.2017 |
According to the Energy Community acquis communautaire in force, the Contracting Parties are under an obligation to to de iure transpose into national legislation, as well as to implement de facto the requirement of functional and legal unbundling of national electricity distribution system operators, including the establishment of a compliance programme and compliance officer. Only when separated from other segments of the energy supply chain can distribution system operators act independently and consumers benefit from greater choice of electricity supply companies, which in turn offer improved services at a fair price.
To the Secretariat’s knowledge, Bosnia and Herzegovina has, to this date, not correctly transposed and enforced the rules for legal and functional unbundling in the electricity sector. Under these circumstances, it is in a state of non-compliance with Article 26 of Electricity Directive 2009/72/EC.
procedural history
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16 January 2018: Opening Letter
Case
On 16 January 2018, the Energy Community Secretariat sent an Opening Letter to Bosnia and Herzegovina in accordance with Article 12 of the Rules of Procedure for Dispute Settlement. In the Opening Letter, the Secretariat takes the preliminary view that Bosnia and Herzegovina failed to fulfill its obligations under the Energy Community Treaty
- by failing to transpose the requirements of Article 26 paragraph 2 litera (d) of Electricity Directive 2009/72/EC requiring the establishment of a compliance officer and program in the Federation of Bosnia and Herzegovina in line with the deadline of 1 January 2015 foreseen by the acquis;
- by failing to transpose Article 26 of Directive 2009/72/EC on legal and functional unbundling of electricity distribution system operators in Republika Srpska in line with the same deadline; and
- by failing to adopt, within the prescribed time limit, the national measures to ensure legal and functional unbundling of Elektropriveda BiH d.d. Sarajevo, Elektropriveda HZHB d.d Mostar and Elektropriveda BiH d.d. Sarajevo in practise.
Procedure
By its Opening Letter, the Secretariat initiated a preliminary procedure, the purpose of which is giving Bosnia and Herzegovina the possibility to react to the allegation of non-compliance with Energy Community law, and enabling the Secretariat to establish the full factual and legal background of the case. According to Article 2(2) of the Dispute Settlement Procedures, the failure of Republika Srpska and the Federation of Bosnia and Herzegovina to comply with the acquis is attributable to the State of Bosnia and Herzegovina as a Party to the Treaty.Bosnia and Herzegovina has been given two months to comply of its own accord with the requirements of the Treaty or to justify its position.
According to the Rules of Procedure for Dispute Settlement, interested parties may be granted access to the case file and may submit written observations on the present case to the Secretariat within one month from 16 January 2018.
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11 November 2020: Reasoned Opinion
Steps taken
On 11 November 2020, the Secretariat sent a Reasoned Opinion to Bosnia and Herzegovina for failing to transpose and implement the requirements for legal and functional unbundling in accordance with the requirements of Article 26 of the Directive 2009/72/EC.
Procedure
A Reasoned Opinion is the second step in a dispute settlement procedure initiated by the Secretariat under Article 90 of the Energy Community Treaty. Depending on the Government's reply, the Secretariat may submit the case to the Ministerial Council for a decision on compliance with Energy Community law.
Bosnia and Herzegovina is requested to rectify the issues of non-compliance with Energy Community law identified in the Reasoned Opinion within a time-limit of two months.
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27 May 2021: Reasoned Request
On 27 May 2021, the Secretariat submitted a Reasoned Request to the Ministerial Council in Case ECS-5/17, following the failure of Bosnia and Herzegovina to rectify the breaches identified by the Secretariat related to unbundling of the distribution system operators in accordance with the requirements of Article 26 of the Directive 2009/72/EC.
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15 December 2022: Ministerial Council decision on failure
Steps taken
On 15 December 2022, the Ministerial Council took a decision on the failure by Bosnia and Herzegovina to comply with certain obligations under the Treaty. The Ministerial Council declared the existence of a breach by Bosnia and Herzegovina of its obligations to legally and functionally separate the distribution activities from generation and supply in both the Federation of Bosnia and Herzegovina and in Republika Srpska, thus failing to comply with the obligation to implement Article 26(1), (2) and (3) of Directive2009/72/EC.
In Article 2 of the Decision 2022/09/MC-EnC, the ministers urge Bosnia and Herzegovina to take all appropriate measures to rectify the breaches identified in Article 1 and ensure compliance with Energy Community law, by 1 July 2023.
Procedure
Bosnia and Herzegovina is invited to report to the Secretariat and the Permanent High Level Group about the measures taken. The ministers invited the Secretariat to initiate procedures under Article 92 of the Treaty if the breaches are not rectified by 1 July 2023.