- Incorporation of the provisions of the Directive relating to internal electricity markets has resulted in long and heated debates, leading to much ‘toing’ and ‘froing’ between the two chambers and the meeting of the Commission mixte paritaire. On this point, see the final Report of Christian Bataille in the name of the Commission de la production, no 2040.
- JO 11 February 2000, p 2143.
- See the Report by Jean Bergougnoux, Services publics en réseau: perspectives de concurrence et nouvelles regulations, Commissariat Général au Plan, April 2000. Furthermore, when asked to decide on what choices to make regarding the incorporation of the Electricity Directive, the Conseil de la Concurrence saw it as ‘necessary that regulation be the responsibility of an independent body, whose objectives would be clearly set out, and their decisions, fully justifiable and publicised should be subject to a “contrôle juridictionnel”’. Opinion no 98-A-05 dated 28 April 1998 of the Conseil de la Concurrence on the request for an opinion on the principles to be respected or the measures to ensure fair competition within the electricity market within the scope of Directive 96/92; NOR: ECOC9810194V; BOCCRF, 16 July 1998, p 383.
- Projet de loi dated 17 May 2000 relating to the modernisation of public services for natural gas supplies and for the development of gas companies. Almost complete, we can assume that despite certain frictional issues, the text will not suffer the same problems as the text for electricity and that particularly given the fact that the Government has just received a final warning by the European Commission that it must implement the law. At the same time, we must note that Gaz de France could be subject to partial privatisation, which may cause more difficulties and prolong the parliamentary debates.
- Energie Plus, no 251, 15 September 2000: ‘The management of the flow of gas throughout the network is now assured independently by the “direction transport”, for all distributors, including Gaz de France, and assures that all their needs are met. A commercial desk was especially created at the heart of this department so as to sell and carry out the connection services for third parties who request access to the network. The commercial managers for their part, assure the purchase and sale of gas, and the sales to large industrial clients at the heart of an entity intent on acting for large clients and with a real sense of commercial awareness’.
- See the Bataille report cited above (n 1) but also the report of de Madame Bricq, ‘Rapport au Premier Ministre: mission réflexion et de concertation sur la transposition de la directive sur le marché intérieur du gaz’, 27 October 1999, the Avis et rapports du Conseil Economique et Social, ‘La future organisation gazière française’, JO 2 November 1999, ‘La future organisation électrique française’, JO 18 May 1998; see the Bergougnoux report cited above.
- See, in particular, Nicolas Charbit et al, ‘L'Europe de l'électricité: transposition comparée de la directive 96/92’, Gazette du Palais 11–12 June 1999, p 7.
- Projet de loi dated 17 May 2000, see www.industrie.gouv.fr.
- Article 17 of the projet de loi provides in effect that in the loi dated 10 February 2000 and in all other texts used for its application, namely ‘Commission de régulation de l'électricité et du gaz’ replaced by ‘Commission de régulation de l'électricité’.
- See, in particular, Bruno Lasserre, ‘L'Autorité de Régulation des Télécommunications’ (1997) 2 AJDA 224.
- See, on this point, Hervé Dumez et Alain Jeunemaître, ‘Les institutions de la régulation des marchés: étude de quelques modèles de référence’ (1999) 1 Revue Internationale de Droit Economique 16. The problems encountered by Mr Littlechild, president of OFGEM, were widely publicised in the media.
- Article 28 of the Law of 10 February 2000; see also the Decree of 24 March 2000 on the nomination of Jean Syrota to the post of president, JO 28 March 2000, p 4828.
- The functions of the members of the CREG are governed by a strict regime relating to incompatibility of certain positions with others so as to avoid a conflict of interests: see article 28 of the Law cited in n 12 above.
- Article 29 of the Law dated 10 February 2000.
- Article 28 of the Law dated 10 February 2000.
- Currently, only Michel Romieu is responsible for gas- related issues at the heart of the CRE.
- Article 30, para 5 of the Law dated 10 February 2000.
- Article 30, para 4 of the Law dated 10 February 2000.
- See below, ‘Role as an information provider’.
- See the règlement intérieur adopted on 13 April 2000, JO 18 June 2000, NOR CREX0004110X.
- Article 1er of Decree no 2000–381 of 2 May 2000 relating to the organisation and workings of the Commission de Régulation de l'Electricité et du Gaz-, NOR: ECOI0000168D, Article 30, para 3 of the Law of 10 February 2000, the CREG can ‘employ civil servants to active position secondary posts and recruit agents on a contractual basis in the same way as the Ministry for Energy’.
- Article 30, para 3 of the Law of 10 February 2000, the CREG can ‘employ civil servants to active position secondary posts and recruit agents on a contractual basis in the same way as the Ministry for Energy’.
- Article 2 of Decree no 2000–381 mentioned in n 21 above.
- Article 33–1 of the Law of 10 February 2000.
- Decree no 2000–874 of 7 September 2000 fixes the rules governing the authority and undertakings of investigators and certain procedural rules; JO 9 September 2000.
- Article 1er of the Decree of 7 September 2000 ibid.
- Article 2–1 ibid.
- Article 3 of Decree no 2000–874 of 7 September 2000.
- Article 31 (amended version) of the Law of 10 February 2000.
- Article 12 of the Law of 10 February 2000. Under this article, the Head of the GRT must also report to the CREG.
- Article 24 of the Law of 10 February 2000.
- Article 22 of the Law of 10 February 2000, and article 3 II of Decree no 2000–1069 dated 30 October 2000, OJ 3 November 2000, p 17432.
- Article 12 of the Law of 10 February 2000.
- Article 4-III of the ‘Gas’ Bill.
- Article 15 of the Law of 10 February 2000, and article 9 of the ‘Gas’ Bill.
- Article L 33–1 of the French Code des Postes et Telecommunications.
- See the above-mentioned ‘Bataille report’(n 1).
- Article 31 § 2 of the Law dated 10 February 2000.
- Article 31 § 2 of the law dated 10 February 2000.
- However, if article 32 of the Law dated 10 February 2000 does not include the French Conseil de la Concurrence in the list of bodies which may consult or inform the CRE (although this may seem surprising), it is because it has another (necessarily) preferred position, as you may see hereunder.
- Article 4 of the Law dated 10 February 2000.
- Article 8–2 § 4 of the ‘Gas’ Bill and article 23 of the Law dated 10 February 2000.
- Article 15 of the ‘Gas’ Bill.
- Recommendation by the CRE regarding the separation of accounts, dated 12 July 2000.
- Article 32 § 3. The first business report prepared by the CRE, dated 30 June 2000, may be found at the following URL: www.cre.fr.
- Ibid.
- See ‘Human resources available to the CREG’ above.
- Article 12 of the Law of 10 February 2000.
- Communiqué of the CRE dated 12 October 2000.
- See, eg, the decision of 18 September 1986, CNCL, in which the Constitutional Council held that the legislator could hand over regulatory power in accordance with the law to an authority other than the Prime Minister, including an Independent Administrative Authority. Moreover, decision DC 96–378 of 23 July 1996, LRT, held that the legislator may allow ‘a public authority other than the Prime Minister to set the standards in order to implement a law… provided that the power of the said authority only concerns measures whose effects are limited both in terms of their scope of application and their contents’.
- Article 35 of the Law of 10 February 2000.
- Concerning approvals granted by the CREG to bodies which are not covered by article 5 of the Bill (article 346bis-III), these also seem to come within the exercise of a regulatory power subject to the control of the administrative judge.
- For a full explanation of the transposition of the Electricity Directive in Europe, see Charbit, Carlton, Lamarqua, Melchior, Sanchez and Wessely, ‘L'Europe de L'Electricité: transposition comparée de la directive CE 96/92 au 15 mars 1999’, La Gazette du Palais, no 1626163, 11 and 12 June 1999, pp 7–21.
- The CREG does not participate in this process at all whereas the ART investigates applications for L33–1 licences on behalf of the Telecommunications Minister, see supra.
- Article 8 of the ‘Gas’ Bill.
- Article 9-I of the ‘Gas’ Bill in relation to long-term supply contracts ‘Take or Pay’ which, due to their nature and their method of indexation, are capable of posing financial problems to operators.
- Article 9-II of the ‘Gas’ Bill.
- Article 37 of the Law dated 10 February 2000 and 17-II-2° of the ‘Gas’ Bill.
- See opinion above.
- See the confirmation of this principle stated by the Constitutional Council in its decisions of 19 January and 28 July 1989 (CSA and COB), ‘Neither the principle of the division of powers nor any other rule of constitutional value prevents an administrative authority, acting within the scope of prerogatives with governmental power, from exercising a power to impose penalties, provided firstly that the penalty which may be imposed does not deprive any person of their liberty and secondly, that the exercise of this power to impose penalties complies with the law concerning measures aimed at ensuring rights and freedoms guaranteed by the constitution’.
- See Jean-François Brisson, ‘Le pouvoir de sanction des autorités de régulation et l'article 6§1 de la CEDH’ (1999) 11 AJDA 847.
- Article 38-II a1. 2 of the Law dated 10 February 2000.
- CE 4 May 1998 Société de Bourse Patrick Wargny, req no 164 294. See Jean-François Brisson, n 61 above.
- Cass ass plén 5 February 1999 Commission des Opérations de Bourses v Oury (two judgments), see Jean-François Brisson, n 61 above; Claude Ducouloux-Favard, ‘La Commission des Opérations de Bourse et les Droits de l'Homme’, LPA, 10 February 1999, p 14.
- See European Convention on Human Rights, 28 September 1995 Procola v Luxembourg, application no 1457089, series A-325; Jean-Louis Autin and Frédéeric Sudre, ‘La Dualité fonctionelle du Conseil d'Etat en question devant la CEDH’, RFDA, 1996/4, p 777.
- CE, 3 December 1999, Didier.
- The Energy Minister also has extended powers to sanction any breaches of the new regulations under article 39. Moreover, article 21 of the Bill provides that the Minister may, either at his own initiative, or on the proposal of the CRE, take precautionary measures in order to sanction any actions which seriously affect the safety of the public transport and distribution networks or the quality of their operation.
- Commercial Code, articles L 410–1 et seq.
- Article 40–1° (a) of the Law dated 10 February 2000.
- Article 40–1° (b) of the Law dated 10 February 2000.
- Article 42–1° of the Law dated 10 February 2000.
- See the Report of the ‘Commission de la Production et des Echanges’, AN no 2004, p 55.
- The first aims to guarantee that the market, previously a public monopoly, is open to competition under fair conditions, objectively respecting the general specific interests of the market in question. In particular, guaranteeing access to the network. The second aims to guarantee that economic competition between those involved in the market takes place freely and honestly.
- Article 39, para 2 of the Law of 10 February 2000.
- Article 38-II, para 2 of the Law of 10 February 2000.
- Article 38-II, paras 3 and 4 of the Law of 10 February 2000.
- Article 38-II, para 5 of the Law of 10 February 2000.
Journal of Energy & Natural Resources Law
Volume 19, 2001 - Issue 2