Third Country Relations in EU Unbundling of Natural Gas Markets: The “Gazprom Clause” of Directive 2009/73 EC and WTO Law

The liberalization of the natural gas market, its grid infrastructure in the European Union and the supply of energy is essentially built upon mutual trust among Member States. Traditional perceptions of national security and control make way to co-operation and integration among Member States and industries concerned. Under recently adopted legislation, it is readily possible that grid infrastructure will be controlled by companies located in another Member State, and gas will be equally traded in a company by non-national operators. However, since European gas supplies largely depend upon imports from abroad, in particular Russia, the relationship to third countries and grids and gas supplies controlled by these countries is of crucial importance. This paper addresses the status of third country operators in the EU. It describes obligations and conditions imposed by what was readily called the Gazprom Clause of Directive 2009/73/EC adopted July 13, 2009  (the Directive). It asks whether this clause amounts to a requirement of reciprocity and assesses whether the clause is compatible with current obligations of the EU under the World Trade Organisation (WTO), in particular the General Agreement on Trade in Services (GATS).
Article 11 of the Directive refers to the certification requirements for a transmission system operator from third countries. Article 11(a) requires a foreign operator to comply with all and the same conditions as EU operators under Article 9, in particular unbundling, while the second requirement under Article 11(b) requires that the granting of a certification does not jeopardize the security of energy supply.
The question arises to what extent the EU is entitled to impose additional requirements to third State operators under WTO rules. While the issue also bears upon free movement of capital – an issue not examined here - we conclude that the EU is entitled to operate privileged rules under Article Vbis GATS relating to regional integration. The third country clause, entailing additional conditions, neither establishes reciprocity nor is inconsistent per se with WTO law as no obligations to grant national treatment can be currently found in the field. Its operation, however, needs to take into account MFN obligations under Article II GATS. WTO Members are entitled that like and comparable operators are granted most favored nation treatment in the application of ownership rights. It is a question to what extent authorization can take into account diverging levels of supply and thus dependence. We argue that such differences affecting supplies and thus public security can be taken into account, either within MFN or under exceptions relating to public order and national security under Article XIV and XIVbis GATS respectively.
The paper sets out with a brief introduction to the EU internal market in natural gas and the concept of unbundling (II). It analyses the third country regime and assesses reciprocity (III) and thus leads to examination of WTO compatibility of the third country regime (IV). It concludes on a note proposing a future framework agreement in energy in the WTO (V).