Third Energy Package

Ownership unbundling is advocated by the European Commission and the European Parliament. This option is intended to split generation (production of electricity) from transmission (of electricity from electrical generating station via a system to a distribution system operator or to the consumer).[12] The purpose of this system is to ensure that the European energy market can't be vertically integrated. The proposal is controversial, with questions as to who can buy the transmission networks, whether such a system will regulate the market-place and who will pay possible compensation to the energy firms.[13] Moreover, some economists also argue that the benefits will not exceed the costs.[14] Some further problems have to do with possible inequalities that may arise during the implementation of the framework between undertakings from Member States with a different organisation of the market structure. A suggested solution refers to the better development of the level playing field clause.[15]

The Art. 13 – 16 of directive 2009/72/EC give the member states also the opportunity to let the transmission networks remain under the ownership of energy groups, but transferring operation and control of their day-to-day business to an independent system operator. Investments on the network will be accomplished, not only by the owner's funding but also by the ISO's management.[16] It is also a form of ownership unbundling, but with a trustee. In theory, this would allow transmission and generation to remain under the same owner, but would remove conflicts of interest.

Austria, Bulgaria, France, Germany, Greece, Luxembourg, Latvia and the Slovak Republic presented at the end of January 2008 a proposal for a third option. This model, the ITO, envisages energy companies retaining ownership of their transmission networks, but the transmission subsidiaries would be legally independent joint stock companies operating under their own brand name, under a strictly autonomous management and under stringent regulatory control. However, investment decisions would be made jointly by the parent company and the regulatory authority. In order to exclude discrimination against competitors, one prerequisite is the existence of a compliance officer, who is assigned to monitor a specific programme of relevant measures against market abuse.[17] It is also named a legal unbundling.[18]

There are also provisions for an alternative fourth choice for Member States. This option that may be referred as ITO+ or unbundling a la carte as States may keep their own system, provided it already existed in 2009, concerned a vertically-integrated transmission system and it included provisions that ensure a higher independence status for the operation of the system than that of ITO[19]

Chapter IX of Directive 2009/72/EC requires each Member State to designate a single National Regulatory Authority (NRA).[20] Member States may designate other regulatory authorities for regions within the Member State, but there must be a senior representative at national level.[21] Member States must ensure that the NRA is able to carry out its regulatory activities independently from government and from any other public or private entity.[22]

The Directive sets out eight general objectives of NRAs[23] and 21 specific duties.[24] In addition to a duty to fix or approve tariffs, NRAs have a number of monitoring and reporting duties, and are granted information rights and investigative and enforcement powers to enable them to carry out their duties.[25]

Regulation 713/2009 establishes an Agency for the Cooperation of Energy Regulators (ACER). The purpose of the Agency is to assist NRAs to exercise their duties and to provide means of coordinating their actions where necessary.[26]