EU hydrogen and the decarbonized gas market package: unbundling, third-party access, tariffs and discounts rules at the core of transport of hydrogen

• Author: Lavinia Tanase e Ignacio Herrera Anchustegui
• Profession: Experta internacional en energía/Profesor Asociado de la Facultad de Derecho Universidad de Bergen
• Pages: 85-107

CAPÍTULO VI

EU HYDROGEN AND THE DECARBONIZED GAS

MARKET PACKAGE: UNBUNDLING, THIRDPARTY

ACCESS, TARIFFS AND DISCOUNTS RULES

AT THE CORE OF TRANSPORT OF HYDROGEN

Lavinia tanase

Experta internacional en energía *

Ignacio HeRReRa anCHusteGui

Profesor Asociado de la Facultad de Derecho

Universidad de Bergen **

SUMMARY: 1. INTRODUCTION.—2. GOALS AND AREAS OF REVISION OF THE DRAFT.—2.1. The draft package and

its objectives at a glance.—2.2. The draft package, key areas of revision.—3. ZOOMING INTO HYDROGEN TRANS-

PORT: ACCESS TO INFRASTRUCTURE AND UNBUNDLING.—3.1. Introduction.—3.2. Third-party access.—3.3. Un-

bundling.—3.4. Exceptions for privately owned infrastructures, geographically conned networks and new hydrogen

infrastructure.—3.5. Insucient transport regulation exibility?.—3.6. Who will bear the costs of investment in the hy-

drogen infrastructure?.—4. TARIFF DISCOUNTS AS A MEANS OF INCREASING COMPETITIVENESS?.—4.1. Manda-

tory discounts.—4.2. Is the idea of discounts new?.—4.3. Interaction between current discounts vs. new 75% manda-

tory discounts for storage.—4.4. What are the main concerns relating to the proposed discounts?.—5. CONCLUDING

THOUGHTS.—6.BIBLIOGRAPHY.

* International energy expert, LL.M. (UK & Romania) with extensive experience gained in the en-

ergy private sector, EU institutions and academia. Currently advising a major EU energy infrastructure

project on energy regulatory matters, business development and decarbonization pathways.

** Associate Professor at the Faculty of Law of the University of Bergen. Leader of the Research

Group for Natural Resource Law, Environmental Law and Development Law of the University of Bergen

and Member of the Bergen Oshore Wind Centre (BOW).

This chapter is based on a previous opinion piece: tanase, L., and HeRReRa anCHusteGui, I., «The

EU Hydrogen and Decarbonised Gas Market Package: Revising the governance and creating a hydrogen

framework», Florence School of Regulation, 21 March 2022, available at https://fsr.eui.eu/the-eu-hydrogen-

and-decarbonised-gas-package-revising-the-governance-and-creating-a-hydrogen-framework/.

The views and opinions expressed in this article are those of the authors’ and do not and shall not

be construed in any way as reecting the ocial policy or position of any other agency, organization,

employer, or company.

The authors would like to thank prof. Leigh Hancher and Carsten Zatschler for comments on a previous

draft, as well as Tollef Heggen for research assistance. The errors and omissions are of the authors alone.

The research for this contribution has been conducted as part of the initiatives of the FME Hy-

Value – Norwegian Centre for Hydrogen Value Chain Research. HyValue (2022-2030) is an interdisci-

plinary research centre studying hydrogen and nanced by the Research Council of Norway under the

project number 333151.

86 LAVINIA TANASE AND IGNACIO HERRERA ANCHUSTEGUI

1. INTRODUCTION

The current European energy crisis, prompted by the Russian invasion of

Ukraine, created an unparalleled set of legislative eorts and regulatory devel-

opments in the European Union («EU») throughout 2022. Some initiatives were

made in response to the crisis while others had been in the legislative pipeline for

a while. The regulation of gases in Europe, both of natural gas and hydrogen, lies

somewhere in between these two positions. Since December 2021, the European

Commission («the Commission») and the EU legislature, the European Parliament

and the Council of the European Union have been working towards the adoption

of a legislative proposal related to the decarbonization of the EU gas market by in-

tegrating renewable and low carbon gases and creating a framework applicable to

the developing hydrogen market: the so-called «Draft Hydrogen and Decarbonised

Gas Market Package» («the draft package») 1.

The Commission had been cognizant for some time of the fact that a revision of

the gas rules was necessary to «ensure energy security for all citizens in Europe» 2.

The increased need to address energy security concerns, the EU’s readiness to

tackle energy disruption situations and energy aordability have been reected in

the REPowerEU plan and Regulation 2022/2577 for the accelerated deployment of

renewable energy 3. It proposes to foster a high degree of energy independence and

energy security by reducing energy consumption, by introducing national meas-

ures to save energy and deploying smart investments, by enabling the diversica-

tion of energy supplies and routes and also by replacing fossil fuels with renewable

and low-carbon fuels whilst accelerating Europe’s transition to clean energy.

Renewable energy was not the only energy policy sector to gain the status of

«overriding public interest» for planning and permitting issues in REPowerEU 4.

To the surprise of some, hydrogen was conceded the role of an actual and reliable

supply source. Hydrogen has thus been granted more than an honourable mention,

it has been given a real chance to increase the EU’s energy independence.

From this standpoint and in light of the geopolitical situation, «[a]ccelerating

hydrogen» has become a true energy priority for the EU already since 2021 as part

of the Recovery and Resilience plans to mitigate the COVID pandemic eects, and

more recently in the REPowerEU plan as an energy carrier to replace natural gas,

oil and coal in hard-to-abate industries, and in the draft package. The aim of the

EC is to ensure that by 2030 the EU can import, produce and transport around

20 million tonnes of green hydrogen, half of which is intended to be produced

1 This article comprises, is based on and refers to the draft Hydrogen and Decarbonized Gas Market

package, which was issued by the European Commission mid-December 2021, including any reference

to specic articles. This article is based solely on information available in the public domain up to No-

vember 2022. By that time, please note that no texts had been approved by the EU legislators and only

proposals and reactions were publicly available.

2 European Commission, Commission proposes new EU framework to decarbonize gas markets,

promote hydrogen and reduce methane emissions, 15 December 2021, https://ec.europa.eu/commission/

presscorner/detail/en/IP_21_6682.

3 Communication on REPowerEU: Joint European Action for more aordable, secure and sustain-

able energy, COM (2022) 108 nal (8.3.2022); Communication from the Commission to the European

Parliament, the European Council, the Council, the European Economic and Social Committee and the

Committee of the Regions - REPowerEU Plan, COM (2022) 230 nal, 18.05.2022; Council Regulation

(EU) 2022/2577 of 22 December 2022 laying down a framework to accelerate the deployment of renew-

able energy (OJ [2022] L 335/36).

4 See: Proposal for a Council Regulation laying down a framework to accelerate the deployment of

renewable energy, COM/2022/591 nal (9 November 2022).