Institutionalizing cross-border cooperatives on European level in the energy sector

The third energy package proposes the establishment of an Agency for the Cooperation of Energy Regulators (ACER) and the establishment of a European Network of Transmission System Operators for Electricity (ENTSOE) and a European Network of Transmission System Operators for Gas (ENTSOG). This legislative initiative is a response to the need to further liberalise the energy sector and to create one single energy market. The proposals wish to remedy the lack of regulatory oversight for cross border issues and the existence of a regulatory gap on cross-border issues. This article addresses these proposals and places them in a historical context. The proposals indicate that the European legislator to some degree intends to institutionalize cross border cooperation of regulators and of transmission system operators. So far cross-border cooperation mostly has been brought about on a voluntary basis and not on the basis of European law. Also this cooperation takes place on a voluntary basis and largely outside the scope of the European Commission. If the proposals are excepted they will result in new forms of cooperation in the energy sector. The Agency will be a community body with legal personality that, besides having an advisory role, will in some circumstances be able to take binding decisions. Therefore it will entail more than voluntary cooperation and be a step closer to the establishment of a European regulator. With the creation of ENTSOG and ENTSOE cooperation between transmission system operators will for the first time be obligatory and take place on the basis of European legislation. It will therefore be a new phenomenon. Nevertheless, it is not always clear from the proposals what the result in practice will be nor how the new organizations will relate to each other, to the Commission and to the national regulators and transmission system operators. Currently, the main question is whether the proposals will be adopted by the Council and the European Parliament. Especially Parliament is discussing the proposals extensively. It seems to aim at a stronger ACER with more controlling powers towards ENTSOG and ENTSOE and also more control by the Parliament