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Editorial

LIBERALISATION OF THE GAS DISTRIBUTION SERVICE: AN UPHILL STRUGGLE?

The Legislative Decree No. 164/2000 (also known as “Letta Decree”) qualifies the natural-gas distribution activity as a public service. This qualification derives from the aim of natural-gas distribution to meet the needs of the community, by ensuring the equal access to the gas grid (so-called “third party access”), the continuity and the quality of the service.

After stating the public service nature of the distribution activity, Article 14 of the aforementioned Decree regulates the procedure for awarding it through mandatory public tenders launched by Local Entities. Within a gas distribution market qualified as a natural monopoly, the choice for tender procedures is directed at ensuring competition between different companies (in order to earn benefits in terms of efficiency, quality of the service and more reasonable prices for the end-consumers).

The Letta Decree entrusts Local Entities with the power to award distribution services to a single operator in each minimum geographical area (“ATEM”).

According to the Legislative Decree No. 159/07 converted into the Law No. 222/07, the Ministry for Economic Development (“MISE”) approved a Decree on 19 January 2011 identifying 177 ATEMs to carry out the natural gas distribution service. In the same year, by Decree of 12 November No. 226, the MISE established the tender criteria and the evaluation methods for awarding the gas distribution service (so-called "Public Tender Regulation" or “PTR”).

In particular, the Public Tender Regulation has provided for the Local Entities in each ATEMs to transfer the role of Contracting Authority to one of them recognised as Provincial Capitals. Furthermore, the PTR has provided for the Contracting Authorities in charge:

(a) to prepare and publish the tender notices and the tender rules, as well as to manage the performance and the award of tenders;

(b) to abide by the Standard Tender Notice and the Standard Tender Rules (“Standard Models”), attached to the PTR, in carrying out the tenders;

(c) to send the tender notices and the tender rules to the Italian Regulatory Authority for Electricity Gas and Water (“AEEGSI”), along with any supporting notes justifying the potential deviations from the Standard Models. The latter Authority may submit comments within thirty days;  

The Region has the power to replace (i) the Local Entities in each ATEMs managing the tender, in the event that they have not identified the Contracting Authority, (ii) the Contracting Authority if it has not published the tender notice within the specified time limits.

In addition, the PTR contained a timetable establishing when the tenders must take place. According to said schedule, the tenders for the award of the service in the 177

ATEMs should have taken place over a period of three years, starting from 2012 (1).

However, the abovementioned provisions have been disregarded. Even though the regulatory framework in question foresaw a broad deadline -repeatedly extended (2) - to hold tenders, Contracting Authorities did not comply with such obligation. Furthermore, it appears that a limited number of Contracting Authorities has respected the aforementioned deadline in light of the threat of the economic sanction established by law in this specific case.

The recent Law No. 21/2016 established a further extension, additional to those already in force. Furthermore, it acts retroactively vis-à-vis the ATEMs for which deadlines have already expired.

The same law also modified the substitution powers in the event of breaches by Local Entities or Contracting Authorities:

(i) it eliminated the State power to be exercised in case of inaction by the Regions, as well as the economic sanctions for Local Entities in case they do not comply with the deadlines for the choice of the Contracting Authority;

(ii) it established that, after the expiry of the deadlines for awarding tenders, the Region in charge will grant Contracting Authorities a further six-month term to comply, after which the tendering process starts through the appointment of an Acting Commissioner (in case the Region does not proceed with the nomination of an Acting Commissioner within two months, the MISE will start the tendering procedure appointing the commissioner on its own).

As recently reported to the Government and Parliament by AEEGSI (3) and by the Italian Competition Authority (“AGCM”) (4), the new deadline extension as well as the weakening of the provisions aimed at fostering compliance with the tendering deadlines, hinder the fulfilment of the objectives identified since 2000 by Letta Decree (i.e increased competition, development of efficiency and high quality, reduction of service costs).

In this context, AEEGSI and AGCM have negatively assessed the provisions contained into the Law No. 21/2016. Said Authorities have therefore proposed some regulatory actions, including:

(i) the reintroduction of a sanction mechanism in case of failure to meet deadlines. After all, it is deemed to be the only factor capable of exerting an effective pressure on Local Entities and Contracting Authorities;

(ii) the elimination of unjustified barriers to participate in the tender procedures, such as the unjustified restriction of the possibility to participate in temporary associations of companies (“ATI”) established by the PTR;

(iii) the exceedance of the provision established by the Letta Decree, according to which the outgoing operator is entitled to receive an equal economic recognition for the redemption value of the existing plant (“VIR”) on the basis of its net assets value (“RAB”) not calculated using the adjustment methodology tariff in force but according to the one provided by Ministerial Decree of 22 May 2014;

(iv) the simplification of the analysis procedure of tender notices carried out by AEEGSI, allowing the Authority to take measures enabling them to fast track tender notices complying with the Standard Models, by limiting the analysis to the adequacy of the costs-benefits and to the minimum conditions for development.

Meanwhile, the abovementioned provisions adopted by Law No. 21/2016 have displayed their effects, that is to say, in some cases tender notices have been postponed, in other cases they have been withdrawn or challenged.

For example, the Municipality of Varese (Contracting Authority for the ATEM Varese 2-Centro) put off the deadline for the submission of tenders to 30 September 2017.

The City of Turin, acting as the Contracting Authority for the ATEM 2, announced the extension to 28 June 2017 of the deadline for submission of offers for the participation in the tender. Likewise, for the ATEM Udine 2 the new deadline was set on 30 November 2017, whereas for the ATEM Monza Brianza 1 at the end of July 2017.

There are also complex cases such as the one of the ATEM Venice 1, for which the tender is at the moment suspended, as a consequence of the lawsuit filed by the incumbent Italgas. Not to mention that in other cities such as Rome and Bologna the notices have not yet been drafted. The only exception seems to be Milan, where the tender between 2i Rete Gas and the incumbent A2A is currently taking place.

In conclusion, the liberalisation process of the natural gas distribution service started more than fifteen years ago, yet it still appears full of difficulties. The main reason seems to be a regulatory framework which permits Local Entities to avoid public tender rules, at the expense of the fundamental liberalisation target, i.e. competition in the gas market.

End notes:

(1) The timetable of PTR had already established very distant deadlines, so that the tendering program would have to take place between November 2013 and February 2017.

(2) See the Law Decrees Nos. 69/2013, 145/2013, 91/2014 and 192/2014.

(3) See the AEEGSI Declaration No. 86/2016/I/gas of 8 March 2016.

(4) See the AGCM AS1262 Declaration of 11 March 2016.

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