ARTICLES

Right Of Access To The National Natural Gas Transmission System

I.    Introduction
This article presents the legal provisions and the obligations of the parties regarding the conditions of third party access to the Hellenic National Natural Gas System (ESFA). Owner and operator of ESFA is the Hellenic Gas Transmission System Operator S.A. (DESFA). The ESFA includes the transmission system (pipelines etc.) as well as the liquefied natural gas terminal on the island of Revythousa (LNG) and additional facilities and infrastructure that service the transmission system. LNG facility means each facility used for the importation, offloading and re-gasification of LNG and includes ancillary services, temporary storage necessary for the re-gasification process and subsequent delivery to the transmission system but it does not include any part of LNG terminals exclusively used for storage (article 2 no. 11 of the Law 3428/2005 as well as article 2 no. 11 of the Directive 2009/73).

User of ESFA is every person that has the right to conclude contracts for the use of ESFA, inter alia the eligible customers for the amounts of natural gas that they are supplied with, as well as the importers/suppliers of natural gas. Greek Law no. 3428/2005 on the liberalisation of the natural gas market (the “Law”) does not distinguish between different types of users and the provisions on the third party access apply to all users except when special provisions are issued. Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ L 176, 15/07/2003) (the “Directive”) declares that measures should be taken in order to ensure transparent and non discriminatory tariffs for access to transportation which should be applicable to all users on a non discriminatory basis. Where a storage facility, linepack (according to article 2 no. 15 of the Directive "linepack" means the storage of gas by compression in gas transmission and distribution systems, but excluding facilities reserved for transmission system operators carrying out their functions) or ancillary service operates in a sufficiently competitive market, access could be allowed on the basis of transparent and non-discriminatory market-based mechanisms (recital 22 of the Directive). This is not the case though for the Greek LNG facilities since no competition exists and no exemption from the regulated third party access is issued.

I.    Third party access to ESFA in the liberalised natural gas market
1. Third party access to ESFA
The implementation of third party access to ESFA is a prerequisite for the development of competition in the liberalised natural gas market (ECJ C-439/06 Citiworks, 2008 I-03913, 38 και 40). “Access” means the right to use the system against a fee that the users have to pay to the occasional operator. Free access to the system is an expression of the essential facilities doctrine, because the networks of natural gas constitute an essential facility i.e. an infrastructure necessary for the transportation of natural gas and for every transaction between suppliers and customers. Further, environmental, technical and financial reasons do not offer incentives for the construction of parallel networks or make parallel network construction impossible. As a result, the gas system is a so called physical monopoly, where no competition can be established while competition is aimed and achievable on the markets of import/production and supply of gas.