Читать книгу Los Desafíos Jurídicos de la Transición Energética - Isabel González Ríos - Страница 66

Though the common challenges of the Member States for climate protection, energy transition, security of supply and competition should provide momentum towards the realisation of a real European internal market for energy, there have been, however, setbacks along the way, as can be seen with the separation of the joint Austrian-German- Luxembourgian electricity-bidding zone in 2018.

In 2002, the electricity markets of Germany, Austria and Luxembourg were pooled into a joint-bidding zone, something which was considered a success for European internal energy market policy for 16 years. However, the joint-bidding zone was separated into a German-Luxembourgian bidding zone and an Austrian bidding zone on 1 October 2018. The main problem with the original joint-bidding zone was that the electricity network between Germany and Austria had led to significant physical bottlenecks which, with the passage of time, had become increasingly untenable.

The reasons for the exacerbation of these bottlenecks can be traced to the massive expansion of renewable energy production in Germany, especially in the north, and the fact it was impossible to transport the electricity from these new sources to southern Germany because of the lack of capacity in the German grid.

Initially, electricity was transported from the north of Germany to its south – then on to Austria – via neighbouring countries such as the Netherlands and France in the west as well as Poland and the Czech Republic in the east. However, this led to grid bottlenecks in these transition countries, which is why they installed so-called ‘phase shifters’ to better limit the inflow of electricity from Germany. What this meant was that the energy from the new renewable sources in northern Germany could only be supplied by ‘re-dispatch’ to southern Germany and Austria. Redispatch47, in this context, means that transmission system operators instruct designated power plants to increase or decrease their energy production to alleviate the congestion thus reducing energy production on one side of the bottleneck (in the north) while generation on the other side of the bottleneck (in the south) is enhanced.

Redispatch is an expensive and unsustainable strategy to manage the worst effects of bottlenecks because it doubles costs: Those electricity producers after the bottleneck, which often produce the extra electricity from fossil sources, must be paid while the producer of electricity from the renewable sources “ahead” of the bottleneck must be compensated to reduce production.

The German regulatory agency indicated that the grid coupling capacity between Germany and Austria should be around 2.5 GW of transmission capacity and 4 GW of redispatch, even though system analyses have shown trade flows of up to 10 GW. After a period of negotiation a compromise could not be found between the German and Austrian regulatory authorities and the joint-bidding zone was divided.

This decision has been heavily criticised in Austria, primarily because the bottleneck is between northern and southern Germany rather than between Germany and Austria. The bottleneck between Germany and Austria was ‘artificially’ created because of the necessary redispatch measures that were implemented.

From an Austria perspective, participation in the joint-bidding zone had considerable advantages: Austria could both benefit from a large common electricity market and increase its security of supply. The intensification of competition in the energy sector had a positive effect on Austria’s domestic electricity prices and, as previously alluded to, Austrian power plant operators were able to profit from the measures involved with redispatch as the associated costs were incurred solely on the German side48. The division of the common electricity price zone was estimated to result in a loss of € 220 million each year. Finally, Austrian energy companies did not have a dominant position in the sense of anti-trust-law in the market of the joint-bidding zone49.

In contrast, however, from an Austria perspective dividing Germany into two electricity-bidding zones (north and south) would have led to considerable economic distortion in Germany as wholesale energy prices in the north would fall while those in the south would rise. Furthermore, premiums for renewable energy would have had to be recalculated, the market power of individual companies would have shifted significantly and considerable conversion costs would be incurred. These were all deemed as unacceptable impacts, especially given the fact that plans to expand the German grid in the next few years were already well advanced.

In 2015, ACER initially called for a division of the Austrian-German-Luxembourgian joint-bidding zone in a (non-binding) opinion50, however, one year later it issued a (binding) decision to this effect. The European Commission was not of the same opinion as ACER and demanded a comprehensive review before any steps were taken regarding the dissolution of the zone51.

Indeed, there were considerable legal concerns52, not the least of which was the fact that the Capacity Allocation and Congestion Management regulation (CACM Commission Regulation (EU) 2015/122253) regulates only the review process not the creation of new bidding zones. As such, ACER was not competent to amend, change or replace the suggestion of the transmission operators to create a bidding zone.

Putting the foregoing aside for the moment, another legal dispute had arisen before ACER’s board of appeal, which dismissed the appeals of the Austrian regulatory authority and two Austrian transmission operators54. The case was then referred to the ECJ, which dismissed the decision of ACER’s board of appeal because of procedural failures55.

However, in the meantime the German and the Austrian regulatory authorities came to an agreement and decided that the joint-bidding zone would be separated in two bidding zones but with a specific conditional agreement: Cross-border flows would be allowed without any limitation up to 4.9 GWh, an arrangement between the now two bidding zones that are still in place today.

Although the Capacity Allocation and Congestion Management Regulation [Commission Regulation (EU) 2015/1222]56 is still in force, the Internal Market for Electricity Regulation [regulation (EU) 943/2019] entails other specific rules for a bidding zone review, a select number of which are briefly detailed below.