summary of the case
| status: | closed by Ministerial Council Decision / not complied after Art.91 MC Decision |
|---|---|
| Registered | ex officio |
On 3 July 2018, the Secretariat sent an Opening Letter to Serbia for breach of unbundling and certification rules of the Third Energy Package. The Secretariat takes the preliminary view that Serbia failed to comply with its obligations under the Treaty, in particular Articles 10, 14, 15 and 11 of Directive 2009/73/EC and Article 24 of Regulation (EC) 715/2009, because the regulatory authority certified Yugorosgaz-Transport under the Independent System Operator model without fulfilling the requirements.
In its Opening Letter, the Secretariat came to the preliminary conclusion that Yugorosgaz-Transport did not comply with the unbundling requirements of the Third Energy Package. Therefore, the regulatory authority failed to comply with the provisions concerning certification when issuing and maintaining a decision certifying Yugorosgaz-Transport.
With the adoption of Decision 2019/02/MC-EnC, the procedure under Article 91 of the Treaty in Case ECS-10/17 is closed. On 22 September 2020, the Secretariat initiated Case ECS-10/17S by submitting a Reasoned Request to the Ministerial Council under Article 92 of the Treaty.
procedural history
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3 July 2018: Opening of the case
Case
On 3 July 2018, the Secretariat sent an Opening Letter to Serbia for breach of unbundling and certification rules of the Third Energy Package.
Procedure
By sending an Opening Letter, the Secretariat initiates a preliminary procedure, the purpose of which is to give Serbia the opportunity to react to the allegation of non-compliance with Energy Community law within more than two months and to enable the Secretariat to establish the full background of the case.
According to Articles 7 and 17 of 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 during the preliminary procedure.
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7 November 2018: Reasoned Opinion
Steps taken
On 7 November 2018, the Secretariat sent a Reasoned Opinion to Serbia for breaching the unbundling and certification rules of the Third Energy Package to follow up on its Opening Letter of 3 July 2018.
Having taken into account the Government’s reply to the Opening Letter, the Secretariat maintains its findings therein. In the Reasoned Opinion, it reiterates its view that by certifying Yugorosgaz-Transport under the independent system operator model, Serbia has failed to comply with its obligations under Articles 10, 14(2)(a), 14(2)(b), 14(2)(d), 15 and 11 of the Gas Directive as well as Article 24 of the Gas Regulation.
Reasoning
In its Reply, Serbia argues that although Yugorosgaz-Transport does not fulfil the independence conditions required under the Third Energy Package, revoking the certification would entail Yugorosgaz-Transport ending its activity as TSO and would therefore endanger security of supply and damage the economy. Therefore, it states that extending the deadline for complying with the conditions imposed by AERS’ Decision and thereby extending the validity of the certification constitutes the most effective solution.
Thereby, Serbia confirms the breach of the unbundling and certification rules and upholds the illegal status quo.
Procedure
Serbia 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. Depending on the reply from Serbia, the Secretariat may submit the case to the Ministry Council for a decision on the non-compliance of Serbia with Energy Community law.
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25 April 2019: Reasoned Request
Steps taken
After carrying out a preliminary procedure, on 25 April 2019, the Secretariat submitted a Reasoned Request to the Ministerial Council, seeking its decision on the failure of Serbia to comply with Energy Community rules on unbundling by certifying Yugorosgaz-Transport as transmission system operator under the independent system model.
Procedure
Before the Ministerial Council will take a decision, the Energy Community Presidency and Vice-Presidency shall ask the Advisory Committee for its opinion on the Reasoned Request. The Ministerial Council is not bound by the opinion of the Advisory Committee.
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13 December 2019: Ministerial Council Decision on failure
Steps taken
After having considered the opinion of the Advisory Committee, which upheld the Reasoned Request, the 17th Ministerial Council took a decision regarding the failure of Serbia to comply with its obligations under the Treaty. The Ministerial Council declared the existence of a breach by Serbia of Articles 14(2)(a), (b), (d), 15 and 11 of Directive 2009/73/EC and Article 24 of Regulation (EC) 715/2009.
In Article 1 of the Decision, the failure is described in detail. Article 2 of the Decision stipulates that Serbia shall take all appropriate measures to rectify the breach identified and ensure compliance with Energy Community law immediately.
Procedure
Serbia is asked to report regularly to the Secretariat and the Permanent High Level Group about the measures taken in 2020. The ministers invited the Secretariat to initiate the procedure under Article 92 of the Treaty if the breach is not rectified by 1 July 2020.