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Schoenherr: Romania - Shortcut to Power Supply and Trading‎ Activities for EU Operators

by Monica Cojocaru, Partner with Schoenherr & Asociatii

An updated regulation on the licensing regime in Romania's power sector was recently adopted by ANRE, the national regulatory authority. On 17 March 2015, Order no. 12/2015 on the Regulation for granting licenses and authorizations in the electricity sector ("Order 12"), effective as of publication, was published in the Romanian Official Gazette no. 180/2015 and repeals the former regulation, ie Order no. 48/2013. 

While Order 12 largely follows the principles set forth in the former regulation, it nevertheless brings certain novelties, in particular in the supply and trading sector.

1.Easier access for EU operators ‎to electricity supply and trading in Romania

In the 2014 decision in the antitrust procedure it opened against the Romanian energy market operator OPCOM, the ECestablished that OPCOM had abused its dominant position by requiring all participants on the spot markets of the power exchange to have a Romanian VAT registration and consequently to establish business premises in Romania, even though foreign traders already have a VAT registration in their home country. Following this decision,ANRE is now lifting barriers to power supply and trading activities for EU operators, by:(i)eliminating the requirement of having a permanent establishment in Romania as a pre-requisite for obtaining the license; and(ii)fully eliminating the requirement of holding a license issued in Romania for those operators licensed‎in other EU Member States, subject to a sworn statement on the compliance with technical and commercial rules applicable in Romania.

2.Electricity trading is subject to a separate license

Electricity trading – defined as the wholesale of electricity (including import/export activities) - was regulated, independently from supply activities, in the 2014 amendment to Law no. 123/2012 (the "Energy Law"). The general conditions attached to the trading license have already been enacted by way of ANRE Order no. 13/2015.The conditions underlying the trading license, both in terms of required documentation and financial capabilities, are less restrictive than those applicable to the supply license.‎However, the supply license covers trading activities and, as such, no separate trading license is requiredor those parties who have already obtained a supply license.

3.The scope of works requiring a setting-up authorization was narrowed

No setting-up authorization shall be required for the execution/retrofitting of stations electrical installations, and lines.

4.Clear separation of the authorized/licensed activities

Against the background of the unbundling regime, Order 12 sets clear rules aiming to separate activities, namely:(i)the transmission system operator shall not simultaneously hold operation, supply, and/or trading licenses;(ii)the distribution system operator, subject to concession, shall not simultaneously hold operation, transmission, supply, and/or trading licenses with respect to the same geographical area for which the concession was granted.Moreover, as trading activities are inherent to operation, a separate trading license is not required for electricity producers holding an operation license.

5.Additional requirements for the distribution and supply licenses

Order 12 provides for additional documentation that needs to be presented as the basis for the distribution license (eg documents evidencing the ownership right or the right of use over the energetic capacities that shall be operated on the basis of the license), as well as for the supply license.

6.Modification of the authorizations/licenses at ANRE's initiative

Order 12 expressly allows ANRE to initiate the modification of the authorizations/licenses in case of a change in law. Hence, ANRE may initiate the amendment of the existing authorizations/licenses in case of, eg changes to the general conditions attached to the authorizations and licenses.

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