BNetzA: First German Transmission System Operators Certified

On Friday the Federal Network Agency (BNetzA) issued the first decisions concerning the certification of electricity and gas transmission system operators (TSOs).  Two of the four TSOs in the electricity sector (50 Hertz Transmission GmbH, Amprion GmbH), and 6 gas TSOs (bayernets GmbH, GRTgaz Germany GmbH, bw nets terra GmbH, Nowega GmbH, jordgasTransport GmbH and Fluxys TENP GmbH) have been certified. Tennet TSO GmbH did not get certified.

The certification procedure is based on Section 4a. To get certified the TSO have to fulfil the unbundling provisions. The German unbundling provisions can be found in parts 2 and 3 of the. The TSOs need to prove an effective separation of supply and production activities from grid operations, which also contain requirements regarding sufficient financial means to fulfill the obligations of a TSO pursuant to (e.g. Section 9 para. 2 sent. 1 and Section 10 a para. 1 sent. 1).

The transmission system operator TenneT TSO GmbH did not get certified. BNetzA argued that TennT did not provide the necessary proof about the financial resources needed to fulfill its legal obligations to operate and extend the transmission grid. But this does not mean that TenneT TSO GmbH is not allowed to operate its transmission grid any longer by its own. ” The certification is not an operating license”, Jochen Homann, president of BNetzA explained. “It is an administrative offense if a TSO operates its grid without a certification. But this not part of the certification process and  has to be asserted in a different proceeding,” he concluded. With this decision, BNetzA upheld its previous assessment, and did not follow the Commission’s dissenting opinion.

The legal argument turns on financial requirements in the ManyElectronics Act (EnWG) also for ownership unbundled TSOs. The provisions in the transposing Directive 2009/72/EC (“Electricity Directive”) provide that ownership unbundled network operators have to ensure that they dispose of sufficient financial, physical, technical and human resources to fulfil their tasks. One of these tasks is the obligation to comply with requests for network connections. BNetzA already in its original submission to the Commission had argued that TenneT cannot be certified as an ownership unbundled TSO as it has not been able to satisfactorily demonstrate to BNetzA that it has sufficient financial resources to satisfy all requested offshore connections to its grid.

The Commission had argued that Article 9 Electricity Directive does not require an ownership unbundled TSO to dispose of all financial resources necessary to fulfil its obligations as part of the unbundling requirements. In that respect the situation would be different than in Article 17 Electricity Directive for independent transmission operators (ITOs). The reason for inclusion of the requirement for ITOs would be to guarantee the independence of the ITO in financial terms from the production and supply interests of the vertically integrated undertaking. The reasoning would not apply to an ownership unbundled TSO, as there would not be a vertically integrated undertaking which could undermine the TSO’s independence.

Further applications of ten TSOs will be presumable decided in the next year. Most of the TSO made significant efforts to meet the detailed requirements of the national and European legal unbundling requirements. But partly some requirements are still not fulfilled. Therefore BNetzA granted the TSO deadlines for the implementation of the outstanding obligations.

To ensure the implementation of the outstanding obligations, BNetzA added conditions to certifications, e.g. no territorial, personnel or informational linkages between the TSO and its related parts of energy supply and production activities are allowed to exist.

The certification decisions will be published shortly on the website of BNetzA

Source: BNetzA

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