¹ On ACER, see C Vlachou, La coopération entre les autorités de régulation en Europe (communications électroniques, énergie), Thèse en droit public (Université Paris II, 2014).

² On comitology, see Héritier, A, et al., Changing Rules of Delegation. A Contest for Power in Comitology (Oxford University Press 2013)CrossRefGoogle Scholar.

³ See Dobbeni, D et al., “The elaboration of electricity Network Codes and the Ten Year Network Development Plan for electricity” in J-A Vinois (ed.), EU Energy Law Volume VIII: The Energy Infrastructure Policy of the European Union (Claeys & Casteels 2014) 46–48 Google Scholar.

⁴ The third energy package consists of the following texts: Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Electricity Directive) [2009] OJ L211; Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (Gas Directive) [2009] OJ L 211; Regulation (EC) 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (ACER Regulation) [2009] OJ L211; Regulation (EC) 714/2009 of the European Parliament and of the Council of 13 July 2009 on common conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (Electricity Regulation) [2009] OJ L211; Regulation (EC) 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 (Gas Regulation) [2009] OJ L211.

⁵ See Gräper, F and Webster, W, “The establishment of common network codes” in C Jones (ed.), EU Energy Law, Volume I, The Internal Energy Market (Claeys & Casteels 2016) 604–605 Google Scholar.

⁶ See Commission Decision (EU) 2015/715 of 30 April 2015 amending Annex I to Regulation (EC) 715/2009 of the European Parliament and of the Council on conditions for access to the natural gas transmission networks [2015] OJ L114; Commission Decision 2012/490/EU of 24 August 2012 on amending Annex I to Regulation (EC) 715/2009 of the European Parliament and of the Council on conditions for access to the natural gas transmission networks [2012] OJ L231.

⁷ See Commission Regulation (EU) 2017/459 of 16 March 2017 establishing a network code on capacity allocation mechanisms in gas transmission systems and repealing Regulation (EU) No 984/2013 (CAM) [2017] OJ L72.

⁸ See Commission Regulation (EU) 312/2014 of 26 March 2014 establishing a network code on gas balancing of Transmission Networks (BAL) [2014] OJ L91.

⁹ See Commission Regulation (EU) 2017/460 of 16 March 2017 establishing a network code on harmonised transmission tariff structures for gas (TAR) [2017] OJ L72.

¹⁰ See Commission Regulation (EU) 2015/703 of 30 April 2015 establishing a network code on interoperability and data exchange rules (INT) [2015] OJ L113.

¹¹ See Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (CACM) [2015] OJ L197.

¹² See Commission Regulation (EU) 2016/1719 of 26 September 2016 establishing a guideline on forward capacity allocation (FCA) [2016] OJ L259.

¹³ See Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing [2017] OJ L312.

¹⁴ See Commission Regulation (EU) 2016/1388 of 17 August 2016 establishing a network code on demand connection (DC) [2016] OJ L223.

¹⁵ See Commission Regulation (EU) 2016/631 of 14 April 2016 establishing a network code on requirements for grid connection for generators (RfG) [2016] OJ L112.

¹⁶ See Commission Regulation (EU) 2016/1447 of 26 August 2016 establishing a network code on requirements for grid connection on high voltage direct current systems and direct current-connected power park modules (HVDC) [2016] OJ L241.

¹⁷ See Commission Regulation (EU) 2017/2196 of 24 November 2017 establishing a network code on electricity emergency and restoration [2017] OJ L 312.

¹⁸ See Commission Regulation (EU) 2017/1485 of 2 August 2017 establishing a guideline on electricity transmission system operation [2017] OJ L 220.

¹⁹ See V Musazzi, “The elaboration of the network codes in the field of gas” in Vinois, supra, note 3, p 132.

²⁰ See <ec.europa.eu/energy/en/news/commission-proposes-new-rules-consumer-centred-clean-energy-transition> accessed 19 March 2018. For an overview of the “Clean Energy” Package, see L Hancher, B-M Winters, “The EU Winter Package – Briefing Paper” (Allen & Overy February 2017), <www.allenovery.com/publications/en-gb/Pages/The-EU-Winter-Package.aspx> accessed 19 March 2018. In our analysis we will be focusing on the following texts: Proposal for a Regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators (recast), 30.11.2016, COM(2016) 863 final (ACER Recast Proposal); Proposal for a Directive of the European Parliament and of the Council on common rules for the internal market in electricity (recast), 30.11.2016, COM(2016) 864 final (Electricity Directive Proposal); Proposal for a Regulation of the European Parliament and of the Council on the internal market for electricity (recast), 30.11.2016, COM(2016)861 final (Electricity Regulation Proposal).

²¹ See below, section II2.

²² The Commission envisages an entry into force of the “Clean Energy” Package by January 2020, while a “mirroring exercise” has been undertaken so that new rules could also be proposed in the field of gas.

²³ The paper focuses on governance issues. References to the substance of the network codes and guidelines will be made when necessary for the analysis.

²⁴ See Electricity and Gas Regulations, Art 8(6).

²⁵ Within an extendable period of six months, and following a two-month period of consultations with stakeholders.

²⁶ If the Commission considers that these objectives are not achieved it may request ACER to review the framework guideline and resubmit it or, in case of failure by ACER, ultimately ensure its elaboration itself, see Electricity and Gas Regulations, Art 6(4)–(5).

²⁷ On the ambiguous legal nature of framework guidelines, see A Pototschnig, “The role of the Agency for the Cooperation of Energy Regulators (ACER) in the development of common rules for the internal energy markets and the European energy networks” in Vinois, supra, note 3, p 142; C Vlachou, “The adoption of network codes in the field of energy: availability of judicial review in a multi-stage procedure” (2012) 2 EEJ 47. ENTSOs may also adopt non-binding network codes in areas not covered by the Commission’s request, see Electricity and Gas Regulations, Art 8(2).

²⁸ See Electricity and Gas Regulations, Art 10(1).

²⁹ If the ENTSOs have failed to develop the network code in the above-mentioned timeline, the Commission may ask ACER to prepare a draft network code itself or, in case of failure by ACER, adopt it on its own initiative, see Electricity and Gas Regulations, Art 6(11).

³⁰ See European Court of Auditors, “Improving the security of energy supply by developing the internal energy market: more efforts needed”, Special Report No 16/ 2015, 2015, p 31; C Marchi and C Musialski, “Network codes and (formal and material) boundaries to EU action in the electricity and gas sectors” (2013) 3 EEJ 39.

³¹ See ACER Board of Regulators, Conclusions of the 44^th meeting, Ref: A15-BoR-44-02, 28 January 2015, p 11; ACER Board of Regulators, Conclusions of the 49^th meeting, Ref: A15-BoR-49-02, 16 July 2015, p 12.

³² Even though such informal high-level meetings aim at building consensus before the comitology stage without substituting themselves to the formal procedures, it is very difficult to subsequently put in question the policy choices agreed upon, see ACER Board of Regulators, Conclusions of the 48^th meeting, Ref: A15-BoR-48-02, 10 June 2015, p 13.

³³ See Musazzi, supra, note 19, pp 124–125, 130–131.

³⁴ This was, for example, the case with the CAM network code, see ACER, Recommendation No 04/2012 of 9 November 2012 on the Network Code on Capacity Allocation Mechanisms for the European Gas Transmission Network (ACER Recommendation No 04/2012), points 11, 17.

³⁵ On the appropriate legal basis, see ACER, Recommendation No 04/2012, point 18. In such a case, the Commission could also invoke the above-mentioned Art 6(11) of the Electricity and Gas Regulations.

³⁶ See Pototschnig, supra, note 27, p 143.

³⁷ See Electricity Regulation Proposal, recital 43; ACER Recast Proposal, Art 5(1)(a)–(c).

³⁸ Or the EU-DSO entity, see Electricity Regulation Proposal, Art 52.

³⁹ See Electricity Regulation Proposal, Art 55(9). According to the Commission’s proposal, the “drafting committee” will be composed of representatives of ENTSO-E, ACER, the EU-DSO entity, potentially of NEMOs and of a limited number of the “mainly affected stakeholders”, an obscure term that will require further clarification in the future.

⁴⁰ See Electricity Regulation Proposal, Art 55(9) (emphasis added).

⁴¹ See Electricity Regulation Proposal, Art 55(10); ACER Recast Proposal, recital 14.

⁴² Some of these areas constitute “uncharted territory” as they lay outside the fields where TSOs have traditionally cooperated, see Electricity Regulation Proposal, Art 55(1)(g), (k), (m), (n), (o), (p). The periodicity of the priority list would also change, as the Commission would only publish a tri-annual priority list, see Electricity Regulation Proposal, Art 55(2).

⁴³ Whether an amendment to an existing network code could suffice or developing a network code ab initio would be preferable is an issue that will have to be assessed on a case-by-case basis.

⁴⁴ See Electricity Regulation Proposal, recital 38, Art 51(1)(f), 55(2). The EU-DSO entity would also participate in consultations for network codes, see Electricity Regulation Proposal, Art 55(4).

⁴⁵ Given the characteristics of this instrument that can ensure speed and effectiveness in implementation, namely, its legally binding force, direct applicability and primacy over national arrangements.

⁴⁶ On the current priorities, see European Commission, Implementing Decision (EU) 2017/89 of 17 January 2017 on the establishment of the annual priority list for 2017 for the development of network codes and guidelines (Implementing Decision 2017/89) [2017] OJ L14, para. 6.

⁴⁷ See Electricity and Gas Regulations, Art 23(1).

⁴⁸ Adopted according to the ordinary legislative procedure.

⁴⁹ In the case of network codes, these are the Electricity Cross-border Committee and the Committee on the implementation of common rules on transport, distribution, supply and storage of natural gas (Gas Committee).

⁵⁰ On the basis of limited grounds, namely lack of competence of the Commission, incompatibility of the measure with the aim or the content of the basic act, or a violation of the principles of subsidiarity and proportionality.

⁵¹ As was for example the case regarding the gas transmission network tariffs network code, see ACER Board of Regulators, Conclusions of the 54^th meeting, Ref: A16-BoR-54-02, 27 January 2016, p 12, and the CACM Regulation, see ACER Board of Regulators, Conclusions of the 40^th meeting, Ref: A14-BoR-40-02, 17 September 2014, p 8.

⁵² The Incremental Capacity Proposal was the first amendment to be adopted and, thus, introduced in the CAM network code.

⁵³ The amendment procedure is simpler, especially since there is no obligation to elaborate a new framework guideline, see Electricity and Regulations, Art 7(1). In its Electricity Regulation Proposal, the Commission aims to clarify ACER’s role as a “filter” to proposals for amendment: ACER should from now on proceed to consultations with stakeholders “(w)here it deems an amendment proposal admissible”, see Electricity Regulation Proposal, Art 56.

⁵⁴ See Electricity Regulation, Art 18(5); Gas Regulation, Art 23(2).

⁵⁵ The adoption of guidelines formally only presupposes consultations with ACER and the ENTSOs and, thus, not with “all relevant stakeholders” as is the case with network codes, see Electricity Regulation, Art 18(3); Gas Regulation, Art 23(1).

⁵⁶ Amendments to guidelines lie on the sole initiative of the Commission, while ACER plays an important role in the amendments to network codes, see Electricity and Gas Regulations, Art 7(1).

⁵⁷ See ACER Board of Regulators, Conclusions of the 38^th meeting, Ref: A14-BoR-38-02, 11 June 2014, p 9. On the Commission’s proposals, see Electricity Regulation Proposal, Art 54(1), (2), 57(2), (7).

⁵⁸ See Electricity Regulation, Art. 18(3); Gas Regulation, Art 23(1).

⁵⁹ See section III1 below.

⁶⁰ See ACER Board of Regulators, Conclusions of the 39^th meeting, Ref: A14-BoR-39-02, 17 July 2014, p 8; ACER Board of Regulators, Conclusions of the 40^th meeting, Ref: A14-BoR-40-02, 17 September 2014, p 3.

⁶¹ See Cameron, P, “Introduction. The Internal Energy Market – Redefining Objectives” in P Cameron and R Heffron (eds), Legal Aspects of EU Energy Regulation. The Consolidation of Energy Law across Europe (Oxford University Press 2016) p 15 Google Scholar.

⁶² See CACM Regulation, Art 2(23). On the role and tasks of NEMOs, see CACM Regulation, Art 7(1)–(2).

⁶³ Each Member State electrically connected to a bidding zone in another Member State had to designate one or more NEMOs by 14 December 2015, see CACM Regulation, Arts 4(1)–(2), 6(1). On NEMOs, see R Feltkamp and G Hendrikx, “Who are the NEMOs for day-ahead and intraday market coupling” (2016) 6 EEJ 64.

⁶⁴ See CACM Regulation, Art 4(5)–(9). The receiving Member State can refuse that a NEMO designated in another Member State offers trading services on its territory on limited grounds, see CACM Regulation, Art 4(6).

⁶⁵ See Electricity Regulation, Art 18(3); Gas Regulation, Art 23(1). See R Feltkamp and G Hendrikx, “Power Exchanges and CACM: a New Role in a Better Regulatory Environment?” (2017) BuCo Working Paper 4/2017, p 13.

⁶⁶ According to the case law of the Court of Justice “provisions which, in order to be adopted, require political choices falling within the responsibilities of the European Union legislature” in the sense that they “(require) the conflicting interests at issue to be weighed up on the basis of a number of assessments” are to be considered as reserved to the legislature of the European Union, see Case C-355/10 European Parliament v Council of the European Union ECLI:EU:C:2012:516, paras. 64–65, 76–77. The Common Understanding on Delegated Acts is ambiguous with respect to measures establishing a procedure, see Common Understanding on Delegated Acts (Common Understanding on Delegated Acts), Council doc 8640/11, 04 April 2011, point 10.

⁶⁷ On delegated acts see, for example, T Christiansen and M Dobbels, “Non-Legislative Rule Making after the Lisbon Treaty: Implementing the New System of Comitology and Delegated Acts” (2013) 19 European Law Journal 42; S Peers and M Costa, “Accountability for Delegated and Implementing Acts after the Treaty of Lisbon” (2013) 19 European Law Journal 427.

⁶⁸ See Kaeding, M and Hardacre, A, “The European Parliament and the Future of Comitology after Lisbon” (2013) 19 European Law Journal 382, 386–388 CrossRefGoogle Scholar.

⁶⁹ As opposed to the limited grounds under the RPS procedure, see supra, note 50.

⁷⁰ See supra, note 66.

⁷¹ See Common Understanding on Delegated Acts, Annex on standard Clauses.

⁷² See Council of the European Union – General Secretariat, Initiative to complement the Common Understanding on delegated acts as regards the consultation of experts, Doc 6774/14, JUR 99-DELACT33-INST 121-PE 102, Brussels, 21 February 2014.

⁷³ See European Parliament, Resolution of 13 March 2014 on the implementation of the Treaty of Lisbon with respect to the European Parliament 2013/2130(INI), P7_TA(2014)0249.

⁷⁴ See Interinstitutional Agreement of 13 April 2016 between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making (Interinstitutional Agreement).

⁷⁵ See Interinstitutional Agreement, point 28.

⁷⁶ See Interinstitutional Agreement, point 29. In order to enhance transparency, a public register for delegated acts has been established, see <webgate.ec.europa.eu/regdel/#/home> accessed 18 March 2018.

⁷⁷ See Electricity Regulation Proposal, Art 63(1)–(2).

⁷⁸ See Electricity Regulation Proposal, Art 54(1). Amendments to network codes will also be adopted as delegated acts, see Electricity Regulation Proposal, Art 56.

⁷⁹ See Electricity Regulation Proposal, Art 63(4).

⁸⁰ See Electricity Regulation Proposal, Art 63(3).

⁸¹ See Electricity Regulation Proposal, Art 63(6).

⁸² See Electricity Regulation Proposal, Art 63(5).

⁸³ See Implementing Decision (EU) 2017/89, recital 5.

⁸⁴ Electricity is faced with more challenges than gas in this respect, see ACER, Programming Document 2017–2019, September 2016, p 17.

⁸⁵ On the importance of early implementation projects, see Pototschnig, supra, note 27, p 151.

⁸⁶ See Terms of Reference, p 3.

⁸⁷ TSOs participate in single day-ahead and intraday coupling performing several tasks jointly or individually, see CACM Regulation, Art 8(1)–(2).

⁸⁸ “NEMOs shall act as market operators in national or regional markets to perform in cooperation with TSOs single day-ahead and intraday coupling”, see CACM Regulation, Art 7(1), and “TSOs and NEMOs shall jointly organize the day-to-day management of the single day-ahead and intraday coupling”, see CACM Regulation, Art 10.

⁸⁹ See CACM Regulation, Art 9(1).

⁹⁰ Such as, for example, proposals for TCM on the plan on joint performance of MCO functions, the capacity calculation regions, a common grid model methodology, or back-up methodology, see CACM Regulation, Art 9(6).

⁹¹ Such as, for example, the common capacity calculation methodology, common methodologies for the calculation of scheduled exchanges, and failback procedures, see CACM Regulation, Art 9(7).

⁹² Art 9(1) of the CACM Regulation only states that “(w)here a proposal for terms and conditions or methodologies pursuant to this Regulation needs to be developed and agreed by more than one TSOs or NEMOs, the participating TSOs and NEMOs shall closely cooperate”. On the issue of cooperation, see Feltkamp and Hendrikx, supra, note 65, p 18.

⁹³ See CACM Regulation, Art 9(4).

⁹⁴ ibid.

⁹⁵ See CACM Regulation, Art 9(10). The NRAs can request ACER to issue an opinion on the proposals for TCM within three months, see CACM Regulation, Art 9(9). Amendments to such proposals are possible, necessarily extending the timeline for the adoption of the (amended) TCM, see CACM Regulation, Art 9(12).

⁹⁶ See CACM Regulation, Art 9(11), (12).

⁹⁷ For the relevant decisions of ACER, see <www.acer.europa.eu/Official_documents/Acts_of_the_Agency/Pages/Individual-decision.aspx> accessed 19 March 2018.

⁹⁸ See ACER, Decision 06-2016 of 17 November 2016 on the Electricity Transmission System Operators’ Proposal for the Determination of Capacity Calculation Regions.

⁹⁹ ACER’s competence in this respect is naturally limited by the conditions set by the CACM Regulation, see ACER Board of Appeal, Case A-001-2017 E-Control a.o. v ACER [2017] paras. 64–70. The decision of the ACER’s Board of Appeal is currently under challenge before the General Court, see GC, Case T-332/17 E-Control v ACER, action brought on 29 May 2017.

¹⁰⁰ The timeline for the adoption of TCM can extend from six to sixteen months in the most complex scenario where amendments are submitted and ACER needs to adopt the final decision, see Feltkamp and Hendrikx, supra, note 65, pp 15–16.

¹⁰¹ As manifested by the number of TCM that have been recently decided upon by ACER.

¹⁰² On the independence of NRAs, see ACER, Recommendation of the Agency for the Cooperation of Energy Regulators No 1/2016 of 30 May 2016 on ensuring the independence of the Agency for the Cooperation of Energy Regulators and of National Regulatory Authorities (ACER Recommendation No 1/2016).

¹⁰³ So that they are in line with the purpose of the network code or guideline and contribute to market integration, non-discrimination and the efficient functioning of the market, see ACER Recast Proposal, recital 16, Art 5(2). On the reaction of the CEER to the Commission’s proposals on governance, see CEER, Paper IX, Regional Regulatory Oversight, CEER White Paper series on the European Commission’s Clean Energy Proposals, 24 October 2017. The Commission also proposed – in a rather sibylline manner – that ACER be involved in regional decision making processes that have a “tangible impact on the internal market, notably in cases where the issue at stake has a significant relevance beyond the concerned region”, see ACER Recast Proposal, Art 7(2).

¹⁰⁴ The Commission indeed proposes a transition to a simple majority voting, see ACER Recast Proposal, recital 34, Art 23(1).

¹⁰⁵ Following settled case law, the standard of review would be limited to a manifest error of assessment, see ACER’s Board of Appeal, Case A-001-2017 E-Control a.o. v ACER [2017] paras. 107–111. See also C Vlachou, “Agence de Coopération des Régulateurs de l’Energie: la Commission de Recours statue pour la première fois sur le fond d’un litige porté devant elle (ACRE, comm. recours, déc. A-001-2017, 17 mars 2017)” (2017) Revue Droit Administratif 29–31.

¹⁰⁶ On the issue of ACER’s resources, see section III2 below.

¹⁰⁷ See European Commission, ACER, ENTSOs, Reference paper for the NC implementation and Monitoring Group, 2 October 2017 (Reference Paper).

¹⁰⁸ ibid, pp 3–4.

¹⁰⁹ The analysis will not focus on the well-known role of the Florence and Madrid regulatory fora.

¹¹⁰ See, for example, CACM Regulation, Arts 11, 12.

¹¹¹ The ESCs are composed of a limited number of stakeholders, see Terms of Reference for the Market European Network Code Stakeholder Committee (Terms of Reference), 29 September 2015, p 5. Their meetings are chaired by ACER while the Commission assists in their travaux.

¹¹² See Terms of Reference, pp 5, 6–7.

¹¹³ The Terms of Reference of the ESCs formally state that they do not interfere with such consultation procedures, see Terms of Reference, pp 3, 5.

¹¹⁴ An alternative solution could consist in following the Questions & Answers format that has already been successfully used by ACER in the case of other legislative instruments, see, for example, Questions & Answers on REMIT, 21^st Edition, June 2017.

¹¹⁵ See <www.gasncfunc.eu/> accessed 19 March 2018.

¹¹⁶ In the case of the balancing network code the focus on effectiveness is, for example, demonstrated through the development of a Balancing Analytical Framework aiming to measure the performance of balancing regimes, see ACER, Second Report on the Implementation of the Balancing Network Code, 16 November 2017.

¹¹⁷ With respect to monitoring and compliance ensured on a national level by NRAs, see Electricity Directive, Art 37(1); Gas Directive, Art 41(1).

¹¹⁸ ENTSOs indeed ensure a first level of monitoring, see Electricity and Gas Regulations, Art 8(8), (9).

¹¹⁹ See Electricity Directive, Art 38; Gas Directive, Art 42.

¹²⁰ For example, see CACM Regulation, Art 82(3).

¹²¹ See ACER Regulation, recital 8, Art 11(1)–(2).

¹²² See ACER Regulation, recital 8, Art 11(3) stating that ACER may submit an opinion to the European Parliament and the Commission on the measures to be taken in this respect.

¹²³ See ACER, Programming Document 2017–2019, supra, note 84, p 72.

¹²⁴ ibid, p 71.

¹²⁵ See also ACER Regulation, Art 6(6). Art 9(1) of the Electricity and Gas Regulations also provides for ACER’s monitoring of non-binding network codes elaborated solely by the ENTSOs under Art 8(2) of the Electricity and Gas Regulations or developed according to the standard procedure but finally not adopted by the Commission under comitology.

¹²⁶ See Electricity and Gas Regulations, Art 9(1).

¹²⁷ As ACER has noted in the Gas Regional Initiative Status Review Report 2016: “while the South GRI Region has, on average, a rather high and homogeneous level of compliance with the NCs, the SSE GR Region is confronted with a two-speed situation, as south-eastern countries still face very low compliance rates on Capacity Allocation Mechanism (CAM), Congestion Management Procedures (CMP) and Balancing (BAL)”, see ACER, Gas Regional Initiative Status Review Report 2016, 08 February 2017, p 6.

¹²⁸ In its second report on the balancing network code ACER explains that implementation is still “patchy”, some Member States not having made any progress at all. According to ACER, “implementation processes were delayed due to either lacking leadership or disputes over it, or the lack of initiative to apply the Code in practice”, while “certain difficultes arose because the legal text of the Code does not clearly articulate its principles and intent”, see ACER, Second Report on the implementation of the Balancing Network Code, supra, note 116, paras. 59–61.

¹²⁹ See ACER, Implementation Monitoring Report on the Capacity Allocation Mechanisms Network Code, First Edition, 27 October 2016, p 4, where the Agency indicates that while the average EU compliance level is 82%, only the British and Belgian TSOs have implemented all the mandatory provisions of the code.

¹³⁰ Especially since some of the actors, such as TSOs, have not always positively engaged in providing such information. ACER stresses, for example, that the full assessment of the implementation of the network code on Interoperability and Data exchange is “difficult as the Agency does not have access to all necessary input. At this stage, the assessment is based on the self-assessments of the Transmission System Operators (“TSO”) alone. These self-assessments are neither backed by evidence nor checked proactively for compliance by the National Regulatory Authorities (“NRAs”)”, see ACER, First Implementation Monitoring Report of the Network Code on Interoperability and Data Exchange, 04 December 2017, pp 3, 10.

¹³¹ In order to address deficiencies in regulatory oversight on a national level, see ACER, First Implementation Monitoring Report of the Network Code on Interoperability and Data Exchange, supra, note 130, para. 52. On NRAs’ investigative powers, see Electricity Directive, Art 37(4); Gas Directive, Art 41(4).

¹³² For example the European Maritime Safety Agency can carry out visits to Member States in order to ensure monitoring, see Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency, [2002] OJ L208, recital 6, Art 2(bi), 3, while the European Aviation Safety Authority can conduct inspections of Member States and investigations of undertakings, see Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC, [2008] OJ L079 (EASA Regulation), Arts 54, 55.

¹³³ CEER considers that – at least formally – “NRAs have been granted with proper and efficient sanctioning and investigatory powers at national level” and “enjoy broad powers to conduct such investigations, including via rights of access or through hearings”, see CEER, State of Play on NRAs’ investigatory and sanctioning powers, 9 October 2017, Ref: C17-LTF-51-03A, p 2.

¹³⁴ The Commission indeed explains that “ACER is the body established to provide (…) regulatory oversight as far as situations are concerned which cover more than two Member States. The main role of ACER as a coordinator of the action of national regulators has been preserved; limited additional competences have been assigned to ACER in those areas where fragmented national decision-making on issues with cross-border relevance would lead to problems or inconsistencies for the internal market”, see ACER Recast Proposal, pp 10–11. On subsidiarity as a legal limit to agencification, see Chamon, M, EU Agencies. Legal and Political Limits to the Transformation of the EU Administration (Oxford University Press 2016) pp 157–164 CrossRefGoogle Scholar.

¹³⁵ See ACER, Recommendation No 1/2016.

¹³⁶ See ACER Board of Regulators, Conclusions of the 58^th meeting, Ref: A16-BoR-58-02, 13 July 2016, p 13.

¹³⁷ See ACER Board of Regulators, Conclusions of the 55^th meeting, Ref: A16-BoR-55-02, 16 March 2016, p 10; ACER Board of Regulators, Conclusions of the 62^nd meeting, Ref: A16-BoR-62-02, 14 December 2016, p 13.

¹³⁸ See CEPA, Final Report: Implementation Monitoring and Evaluation of the Impact of the Gas Network Codes and Guidelines on the Internal Market, ACER/OP/DIR/08/2013/LOT 2/SC06, October 2015, p 5.

¹³⁹ See ACER Board of Regulators, Conclusions of the 62^nd meeting, Ref: A16-BoR-62-02, 14 December 2016, p 14.

¹⁴⁰ See ACER Board of Regulators, Conclusions of the 44^th meeting, Ref: A15-BoR-44-02, 28 January 2015, p 5.

¹⁴¹ See ACER Board of Regulators, Conclusions of the 62^nd meeting, Ref: A16-BoR-62-02, 14 December 2016, p 7.

¹⁴² See ACER Recommendation No 1/2016, p 5.

¹⁴³ See ACER, Report on the implementation of the Balancing Network Code, p 16; ACER, Second Report on the implementation of the Balancing Network Code, supra, note 116, para. 73.

¹⁴⁴ On the differences in scope and procedure with the more “generalist” review procedure foreseen in Art 7(4) of the ACER Regulation, see F Ermacora and E Tremmel, “The Agency for the Cooperation of Energy Regulation (ACER)” in Jones, supra, note 5, pp 312–313.

¹⁴⁵ See Electricity Directive, Art 39(1); Gas Directive, Art 43(1).

¹⁴⁶ See Electricity Directive, Art 39(1), (6); Gas Directive, Art 43(1), (6). In that case, the NRA is obliged to withdraw its decision within two months, see Electricity Directive, Art 39(8); Gas Directive, Art 43(8).

¹⁴⁷ See Electricity Regulation Proposal, Art 63. Currently, compliance of NRAs’ decisions with network codes could be examined under the above-mentioned Art 7(4) of the ACER Regulation given its large scope of application.

¹⁴⁸ See Feltkamp and Hendrikx, supra, note 65, p 17.

¹⁴⁹ See Art 7 of the Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services [2002] OJ L108, entrusting the Commission with a veto power on decisions of NRAs on the definition of a relevant market and the designation of an operator having significant market power.