Nicole Angenendt, Daniel Schäffner
Regulierungsökonomische Aspekte des Unbundling bei Versorgungsunternehmen unter besonderer Berücksichtigung von Pacht- und Dienstleistungsmodellen
Nr. 270 / November 2005
Summary
The implementation of the unbundling directives, i.e. the separation of energy networks from other activities of a vertically integrated energy supply company (EVU), is regulated by §§ 6 to 10 of the Energiewirtschaftsgesetz (Energy Supply Industry Act - EnWG). In accordance with the European Union Directives for the internal market of electricity and gas the provisions serve the goal of assuring transparency as well as non-discriminatory network access.
This paper discusses legal as well as economic issues which are bound to arise during the implementation of legal unbundling from a regulatory point of view. It is to give indications on how to control the individual compliance with these guidelines. Generally, the EVUs can implement legal unbundling in many different ways, which means that they have a certain leeway. For instance companies may be organized as holding companies, in which energy networks, energy generation and supply are outsourced to self-sustaining subsidiaries. It is, however, also possible to keep the energy network within the parent company and to organise generation and supply in self-sustaining subsidiaries also one might outsource the network to a network subsidiary.
When choosing a legal form of organisation for the companies the EVUs are basically free, in particular with regard to the network entity. For the most part the EVUs are concerned with legal and fiscal arguments in this instance. For any arrangement the vital question is, whether the required independence regarding the network entity’s decision-making authority which is called for by the EnWG e.g. in § 8 par. 4 - is compatible with the right to exercise control which as a rule German company law grants to majority shareholders and the like. Therefore organising networks as limited companies would yield the decisive benefit of a compelling independence and sole responsibility of the managing board in relationship to the shareholders.
To implement legal unbundling a separation of network ownership is not required, rather the operation of the network must be separated from other activities of the EVU. Accordingly it is necessary that the network company preserves a general power of decision making concerning operations, maintenance and the extension of the network.
Examples of real life implementation strategies are evaluated from a perspective of regulatory economics, with a special emphasis on problems concerning leasing models as well as the use of internal services. [Full text available in German only]
Diskussion Paper is available for download.