Given the legitimate – and proven – fears as to the security of energy supply, member states have been given wide-ranging powers with respect to the certification of transmission system operators (TSOs) controlled, or to be controlled, by third country companies and persons. The provisions apply both to electricity and gas markets. Obligatory certification of a third-country company is dependent on approval by a national regulatory authority (NRA) with an opinion given, within two months, by the Commission that may in turn request an opinion given, within a further two months, by the European regulators’ agency (ACER). Member states, however, retain the right to refuse certification to a third country company if doing so is deemed to put at risk that member state’s security of energy supply or the security of supply of another member state.

NRAs have to notify the Commission when certification is requested – or even likely to be requested – by a TSOs controlled or owned by a third country company. An NRA, or other authority designated by the member state, has four months to adopt a ‘draft’ decision on certification following notification by the TSO. The NRA shall refuse certification if the TSO or company concerned does not comply with rules on effective separation/unbundling or puts at risk the security of energy supply of the member state and the EU. The ‘draft’ decision must also take into account the rights and obligations under international law of EU with respect to that third country. Adopting its final opinion, the NRA shall take “utmost account” of the Commission’s opinion. In the event of differing opinions, member state concerned must provide and publish the reasoning for such decision.