WT/DS476/1, S/L/409  
G/L/1067, G/SCM/D102/1  
G/TRIMS/D/40  
8 May 2014  
(14-2748)  Page: 1/5  
  Original: English  
 
 EUROPEAN UNION AND ITS MEMBER STATES – CERTAIN MEASURES RELATING  
TO THE ENERGY SECTOR 
REQUEST FOR CONSULTATIONS BY THE RUSSIAN FEDERATION 
The following communication, dated 30 April 2014, fr om the delegation of the Russian Federation 
to the delegations of the European Union and its member States and to the Chairperson of the Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU. 
 
_______________ 
 
 
My authorities have instructed me to request cons ultations with the European Union (“EU”) and its 
Member States, pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Ar ticle XXIII of the General Agreement on Trade in 
Services (“GATS”), Article XXIII of the Genera l Agreement on Tariffs and Trade 1994 (“GATT 
1994”), Article 4.1, Article 7.1 and Article 30 of  the Agreement On Subsidies And Countervailing 
Measures  and Article 8 of the  Agreement on Trade-Related Investment Measures with respect to 
certain restrictions and requirements maintained by the EU and implemented within its territory by 
the EU and its Member States, including Croatia, Hungary and Lithuania, through the so-called “Third Energy Package” Directives and Regulation s, implementing legislation and decisions of the 
EU and its Member States and the measures resulting from participation in the Treaty establishing 
the Energy Community (hereinafter referred to as “Third Energy Package”), and pertaining to, in 
particular, the unbundling of vertically-integrated undertakings involved in the production, supply, and transmission of natural gas or electricity, the discriminatory certification requirements in 
relation to third countries, and the requirements in respect of granting of access to natural gas and 
electricity network capacity by transmission service operators.    
In the view of the Russian Federation the provisio ns of “Third Energy Package” are inconsistent 
with a number of obligations and specific commitments of the EU and its Member States under the WTO Agreement. In particular, though not exclusiv ely, the following measures, in the view of the 
Russian Federation, constitute an infringement of  the said obligations and specific commitments. 
 
The same person or persons cannot simultaneously act as producer or supplier of gas/electricity and execute its transportation/transmission. The same person or persons cannot be entitled 
directly or indirectly to simultaneously exercise control over an undertaking performing any of the 
functions of production or supply and directly or indirectly exercise control or exercise any right over a transmission system operator or over a tr ansmission system. The opposite is true as well. 
This prohibition is applied even when a foreign person engaged in production of gas domestically 
intends to gain or exercise control only over tran smission system or transmission system operator. 
The requirements of “Third Energy Package” exem pts different types of pipeline networks as the 
“transmission” of gas means “transport of natural gas through a network, which mainly contains 
high-pressure pipelines, other than an upstream pi peline network and other than the part of high-
pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers”.  
 
This prohibition is to be achieved through the implementation of either of three regimes of 
unbundling: ownership unbundling, establishment of independent system operator or independent 
transmission operator. These regimes are of different degree of restrictiveness. Thus different 
regimes apply in different parts of the territory of the EU. In addition to varying regimes of 
different degree of restrictiveness throughout the te rritory of the EU “Third Energy Package” also WT/DS476/1 • S/L/409 • G/L/1067 • G/SCM/D102/1 • G/TRIMS/D/40 
 
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  provides for the possibility to apply different unb undling regime depending on the date when the 
control over a transmission system within the EU is obtained.   In addition to that, a number of exemptions, exceptions and derogations from the unbundling 
requirements are provided for in the EU legislatio n. In particular, exemptions are contemplated in 
respect of certain types of infrastructure. For example, new major infrastructure may, at the discretionary basis through the consent of the EU, be fully or partially exempted from the 
unbundling requirement. Decisions to grant exemptions are taken on a case-by-case basis.  
 The unbundling requirements are not applied in case of emergent and isolated markets, as well as in case of small natural gas undertakings. 
 
In all cases the most restrictive unbundling requ irement – ownership unbundling – is not applied 
to persons who carry out the function of transport of natural gas through local or regional pipeline 
network with the view to its delivery to customers.  
 In case of certification of transmission system owners or operator, additional requirements for 
certification are provided for with respect to those controlled by a foreign person or persons. Such 
operators may be denied certification if such certification is deemed to lead to threat to the security of energy supplies in the EU Member St ates and the Community as a whole. Procedure for 
certification of transmission system owners and operators controlled by a foreign person or 
persons is different from that of transmission system owners and operators controlled by an EU 
person or persons being, in particular, more burdensome.  
“Third Energy Package” requires, inter alia , that transmission system owners or operators offer 
their services on a non-discriminatory basis to all network users based on regulated tariffs, as well as that transmission system owners or operators provide both firm and interruptible third-party 
access to services. However, in respect of these and other requirements regulating access to the 
transmission and distribution systems, “Third  Energy Package” provides for exemptions, 
exceptions and derogations, including exemptions , exceptions and derogations similar to those 
provided for in respect of unbundling requirements.   
 
“Third Energy Package” is applied in the same manner in respect of producers or suppliers of electricity and transportation/transmission of electricity and has the same consequences in these 
sectors. 
 “Third Energy Package” requirements related to third-party access lower the volumes of 
transportation capacities available to the import ers and impairs the implementation of long-term 
contracts for the supply of gas already concluded. At the same time there are exceptions, exemptions and derogations from the rules of the third-party access under “Third Energy Package” that are afforded to certain infrastructure and that puts the gas transported thereby in more 
favourable position than the gas imported through the infrastructure subjected to third-party 
access requirements.  
The imported gas is also subjected to the additional requirements affecting its internal sale, 
offering for sale, purchase, transportation, distribution or use within the territory of the EU. However, the gas produced domestically, includ ing the biogas, is not subject to the same 
requirements. Moreover, biogas produced domestically  is afforded additional privileges that result 
in, as intended, substitution of the imported gas.   The instruments through which the EU and its Member States maintain the above measures 
include, but are not limited to: 
 
 Directive 2009/73/EC of the European Parlia ment and of the Council of 13 July 2009 
concerning common rules for the internal market in natural gas and repealing 
Directive 2003/55/EC;
1 
                                               
1 OJ L 211, 14.8.2009, pp. 94-136. WT/DS476/1 • S/L/409 • G/L/1067 • G/SCM/D102/1 • G/TRIMS/D/40 
 
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   Directive 2003/55/EC of the European Parlia ment and of the Council of 26 June 2003 
concerning common rules for the internal market in natural gas and repealing 
Directive 98/30/EC;2 
 Directive 2009/72/EC of the European Parlia ment and of the Council of 13 July 2009 
concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC;
3 
 Regulation (EC) No 713/2009 of the European Parliament and of the Council of 
13 July 2009 establishing an Agency for the Cooperation of Energy Regulators;4 
 Regulation (EC) No 714/2009 of the European Parliament and of the Council of 
13 July 2009 on conditions for access to the network for cross-border exchanges in 
electricity and repealing Regulation (EC) No 1228/2003;5 
 Regulation (EC) No 715/2009 of the European Parliament and of the Council of 
13 July 2009 on conditions for access to the natural gas transmission networks and 
repealing Regulation (EC) No 1775/2005;6 
 Regulation (EU) No 994/2010 of the Euro pean Parliament and of the Council of 
20 October 2010 concerning measures to safeguard security of gas supply and 
repealing Council Directive 2004/67/EC;7 
 Regulation (EU) No 347/2013 of the Euro pean Parliament and of the Council of 
17 April 2013 on guidelines for trans-Europe an energy infrastructure and repealing 
Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009, (EC) No 
714/2009 and (EC) No 715/2009;8 
 Opinion of the European Commission of 12 June 2011, pursuant to Regulation (EC) 
No 715/2009;  
 Treaty establishing the Energy Community of 25 October 2005; 
 Directive 2009/28/EC of the European Parlia ment and of the Council of 23 April 2009 
on the promotion of the use of energy from renewable sources and amending and 
subsequently repealing Directives 2001/77/EC and 2003/30/EC; 
 Law on the Amendment of the Law on Natural Gas of the Republic of Lithuania, No.  
XI-1564, 30 June 2011; 
 Law on Implementation of the Law on the Amendment of the Law on Natural Gas of 
the Republic of Lithuania, No. XI-1565, 30 June 2011; 
 Government of the Republic of Lithuania, Resolution No. 1239 of 28 October 2011, on 
Approval of the Plan for Performing the Unb undling of Activities and Control of Natural 
Gas Undertakings That Do Not Conform to the Requirements of the Law on Natural 
Gas of the Republic of Lithuania; 
 Plan for Performing the Unbundling of Activities and Control of Natural Gas 
Undertakings That Do Not Conform to the Requirements of the Law on Natural Gas of 
the Republic of Lithuania, Approved by Resolution No. 1239 of 28 October 2011 
(Official Gazette, 2011, No. 130-6170); 
 Act No. XXIX of 2011 amending the Gas Supply Act of the Government of Hungary;   
 Act No. XL of 2008 on Natural Gas Supp ly of the Government of Hungary; 
                                               
2 OJ L 176, 15.7.2003, pp. 57-78. 
3 OJ L 211, 14.8.2009, pp. 55-93. 
4 OJ L 211, 14.8.2009, pp. 1-14. 
5 OJ L 211, 14.8.2009 pp. 15-35. 
6 OJ L 211, 14.8.2009, pp. 36-54. 
7 OJ L 295, 12.11.2010, pp. 1-22.  
8 OJ L 115, 25.4.2013, pp. 39-75.  WT/DS476/1 • S/L/409 • G/L/1067 • G/SCM/D102/1 • G/TRIMS/D/40 
 
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   Government of Estonia, Natural Gas Act, Maagaasiseaduse muutmise seadus, seaduse 
parandus, RT I, 28.06.2012, 2; Elektrooniline Riigi Teataja (MNE(2012) 52911);  
 Government of Croatia, Energy Act (Official Gazette 120/12);  
 Government of Croatia, the Act on the Regulation of Energy Activities of 
11 November 2012; 
 Government of Croatia, Gas Market Act of 14 March 2013; 
 Government of Belgium (Federal), Act of 8 January 2012, amending the federal Gas 
Act of 12 April 1965; 
 Government of Belgium (Flanders), Decr ee of 8 July 2011, amending the Energy 
Decree of 8 May 2009; 
 Government of Belgium (Brussels Capital Region), Edict of 20 July 2011, amending 
the Gas Edict of 1 April 2004; 
 Government of Belgium (Wallonia), various amending decrees and governmental 
orders implementing the Gas Directive; 
 Government of the United Kingdom, Electric ity and Gas (Internal Markets) Regulations 
2011; 
 Governement of Germany, Energiewirtschafts gesetz (Gesetz über die Elektrizitäts- 
und Gasversorgung (Energiewirtschaftsgesetz – EnWG) i.d.F. von Artikel 2 des 
Gesetzes vom 16.1.2012, BGBl I S. 74.); 
 Gas Grid Access Order of Germany (Verordnung uber den Zugang zu 
Gasversorgungsnetzen) of 3 September 2010;  
 The certification decisions under the Gas Directive by the EU Member States and the 
Opinions of the European Commission regarding these decisions; 
 Commission Decision of 16 May 2013 on the exemption of the Trans Adriatic Pipeline 
from the requirements on third party access, tariff regulation and ownership unbundling laid down in Articles 9, 32, 41(6), 41(8) and 41(10) of Directive 
2009/73/EC;
9 
 Final Joint Opinion of the Energy Regulators on TAP AG’s Exemption Application of 
6 June 2013; 
 Commission Decision on the exemption of the “Gazelle” interconnector according to 
Article 36 of Directive 2009/73/EC;10 
 Commission Decision on the exemption of the “Gazelle” interconnector from ownership 
unbundling within the meaning of Article 9 of Directive 2009/73/EC;11 
 Commission’s decisions on the exemption decisions by the authorities of Austria, 
Romania, Hungary, and Bulgaria related to the Nabucco pipeline; 
 Commission’s decisions on the exemption decisions by the authorities of Germany 
and/or Czech Republic related to the OPAL pipeline; 
 Commission’s decisions on the exemption decisions by national authorities related to, 
inter alia, LNG Grain (UK), South Hook (UK), Rovigo (IT), Dragon (UK), LNG Brindisi (IT), Gate Terminal (NL), LionGas (NL), LNG Eemshaven (NL), LNG Livorno (IT), LNG 
Shannon (IE), LNG Dunkerque (FR), LNG Porto Empedocle (IT) and National Grid 
Grain LNG (UK); 
                                               
9 C(2013) 2949 final. 
10 C(2011) 3424. 
11 C(2011) 8777. WT/DS476/1 • S/L/409 • G/L/1067 • G/SCM/D102/1 • G/TRIMS/D/40 
 
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and any amendments, supplements, extensions , replacement measures, renewal measures, 
related measures, or implementing measures; as well as all other implementing measures of or decisions taken under “Third Energy Package” and adopted by the EU Member States that have 
not been identified in the present request and for the identification of which the Russian Federation 
requests the assistance of the European Commission during the consultations, or any such measures referred to by either party during the course of the consultations.     
 
The EU and its Member States, therefore, appear  to be acting inconsistently with the EU’s 
obligations under Articles II, VI, XVI and XVII of the GATS and their Specific Commitments under the GATS, Articles I, III, X, and XI of the GATT 1994, Article 3 of the Agreement on Subsidies and 
Countervailing Measures, and Article 2 of the Agreement on Trade-Related Investment Measures, 
Article XVI:4 of the Agreement Establis hing the World Trade Organization.   
 
The measures cited in this request for consultations also appear to nullify or impair the benefits 
accruing to the Russian Federation directly or indirectly under the cited agreements.   
The Russian Federation reserves the right to address additional measures and claims under other 
provisions of the covered agreements regarding the above matters.   We look forward to receiving your reply to the present request and to fixing a mutually convenient 
date for consultations.   
  
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