Legal and institutional aspects of public forms of electricity or gas fuel trading in Poland versus the conditions in the common energy market
Authors: Marszałek Marcin 
Published: November 2019

This study aims at presenting the legally, technically, and economically empowered suggestion for a clear definition of a competitive market of gas fuels and electricity of a Member State in order to be utilized within trans-border trade of these utilities, as required by the European Union (EU) legislation. Thus, this study addresses, first of all, the issue of the division of the national gas fuel and electricity market into sections and separating these market segments that are more susceptible to the existence of competition in the trans-border dimension. This division is a model that reflects every internal market that is self-sufficient and distinguished in technical terms which has been established and is functioning within one or more Member States. The suggested structural, subject-related division of the market into sections, a competitive one (with its segments), a balancing one, and a technical one, makes it possible to determine which fragments of the market prevail over merely the technical security of ensuring continuity and quality of electricity supplies at the national level. Public forms of electricity and gas fuel trading take first place. Thus, second, the issues of legal and business conditions for operation in the energy section of the commodity exchange, regulated market, or open tenders for purchase of energy and interdependence between public forms of electricity or fuel gas trading and standards in the common electricity market have become the subject of this study. The advantage of a commodity exchange that establishes transparent conditions for public trading transactions involving these goods and provides pricing information for actors in the market cannot be overestimated. A commodity exchange enhances competition and is instrumental in the reduction of prices for ultimate clients. The completed analysis aims at reviewing public forms of trading as the instruments for achievement of the objectives of the national energy law and a component for a common energy market in the perspective of development of trans-border transmission capabilities. Legal multi-centricity and multi-aspectual nature of the addressed issues form a structure of relations that has affected the selection of the research methodology. Three research methods were adopted as the main principles that, bearing in mind a different context in which they are used, are treated to be complementary. The first one is an interdisciplinary research analysis, taking account of the context of functioning in the EU law environment in the interpretation of the national law provisions and technical sciences (and thus, e.g., laws of physics, properties of energy, technical aspects of functioning of the power industry as a system of interdependent relations of installations and grids) and economic sciences (e.g., a concept of the market, competition, operation of the commodity exchange). References to technical or economic sciences allowed to maintain the clarity of the above considerations and render the addressed issues better in practice. The legal and dogmatic method is an indispensable supplement of the above method; in this method, the process of interpretation of legal regulations is based on the jurisprudence and case law which should be referred, in particular, to the national law; it is made complete by the analysis of the economic practice. The selection of the concept analysis method (a linguistic one) as the third method should be justified by the undertaken attempts to define in a precise manner the content and the scope of meaning of general, generic concepts making references, as a rule, to a broad spectrum of business operations, the application of which in the EU legislation is a feature of this legal order established on the basis of the elements of the continental (established, statute) law and flexible common law.