After the somewhat bumpy introduction of the so-called "strategic gas reserve" (see KWR Energy Law News No. 1), Austrian policymakers are now also trying to enact further measures to secure gas supply in an urgency procedure. On 19 May 2022 an amendment to the Energy Steering Act (1461 Attachments/National Council, Legislative Period XXVII) and an amendment to the Gas Industry Act 2011 (532/BNR – Resolution adopted by the National Council) were passed by the National Council (the approval of the Federal Council is still pending); on the same day, representatives of the governing coalition parties also introduced a motion (2600/A, Legislative Period XXVII) intended to help solve the problem of empty storage facilities (the Haidach gas storage facility has become quite a buzzword in this context). These plans are briefly presented below:
1. The (pending) amendment to the Energy Steering Act (EnLG)
By introducing new passages - Sec. 6a and 13 EnLG - and by "shifting" compensation provisions to the general part of the Act, the provisionspreviously only applicable to intervention measures for solid and liquid energy resources are to also becomeapplicable when intervention measures are taken in the areas of electricity and natural gas. This way, legislators are reacting to constitutional (equal treatment) concerns which have recently been voiced more than once.
Moreover, Sec. 26a, 27 par. 4 sub-par. 1a and 42 par. 3 EnLG enable end users to store gas quantities themselves or to commission third parties (including suppliers) to do so - in addition to securing gas quantities through storage contracts held by suppliers – thus, there will be options for “differentiating treatment” in case of energy steering measures. These gas quantities would then be protected from intervention measures restricting ownership or power of disposal. This is intended to create an incentive for precautionary storage for users’ own needs. Admittedly, the measure is primarily aimed at large-scale users, but is to be open to all end users. In order to avoid the "hoarding" of gas, protection is to be limited to 50% of annual consumption. However, performance-related incentive measures continue to be permissible for these end users, and quantity-related incentive measures are allowed only if they are necessary to meet legal requirements under international or EU law. In that case, the purchase price including ancillary costs would have to be reimbursed.
Furthermore, the amendment to the EnLG stipulates that the Federal Ministry for Digitalisation and Economic Affairs should now also be represented on the Energy Steering Advisory Board.
2. The (pending) amendment to the Gas Industry Act 2011 (GWG 2011)
The latest amendment to the GWG 2011 is intended to establish a "market maker" for balancing energy in the gas sector. Here, the balancing group coordinator has to carry out a public tender procedure for the provision of gas quantities after a "request of the Federal Minister for Climate Action" to ensure security of supply. Such gas quantities are then to be stored in facilities which can be used for the direct supply of the market areas. The gas reserve is to be held for physical balancing energy after other options have been exhausted. The costs of the storage are to be covered from federal funds. In coordination with the Federal Minister of Finance, the Federal Minister for Climate Action is to issue an ordinance on the use of gas quantities, energy prices and the allocation of costs according to the costs-by-cause principle; the ordinance will require the approval of the Main Committee of the National Council.
3. Measures planned to counteract empty storage tanks
Among other things, the recent proposal by the European Commission to recast Regulation (EU) 2017/1938 on measures to safeguard security of gas supply, which provides for binding filling targets and filling paths, has apparently motivated Austria also to introduce supporting measures - such as, above all, the introduction of a connection obligation for storage facilities, a "use-it-or-lose-it" principle (UIOLI principle) for storage users and the authorisation to conclude interdepartmental agreements on the joint use of storage facilities.
The motion (2600/A, Legislative Period XXVII), which was tabled on 19 May 2022, stipulates that all storage facilities in Austria must be connected to the Austrian pipeline system. Moreover, following the UIOLI principle in Sec. 12 of the Gas Market Model Ordinance 2012 (as amended by Federal Law Gazette II No. 425/2019), storage users are also to be obliged to offer or return unused storage capacities "without culpable delay". If storage capacities remain "systematically unused”, they are to be withdrawn by the storage company after prior written notice. The definition of the term "systematically unused" and how the obligations of storage users and storage companies are to be defined in detail will be fleshed out by an ordinance to be issued by the regulator, E-Control.
The motion also includes authorisations for theFederal Minister for Climate Action to conclude interdepartmental agreements on the joint use of storage facilities; thiswould e.g. be relevant for the storage facility at Haidach, which has so far been connected to the German market area only.
4. Preliminary conclusion
The measures presented are anything but legally sound and do not eliminate the problem that gas must first be procured before the measures can be implemented. It remains to be seen whether this will succeed.
The "strengthening" of individual responsibility through the amendment to the EnLG also shows that the state is notvery optimistic that it will beable to fulfil its public service obligations itself. One can only (and with resignation) take note of the fact that this instrument is theoretically and "as an alibi" - presumably for reasons of equal treatment - also supposed to be available to small-scale users and consumers in the actual sense of the word (who, however, will probably never be able to afford it!).
It remains doubtful whether it is a wise move to fall back on ordinances to govern the introduction of a "market maker" and new provisions on storage management (even if attempts have been made to make this as watertight as possible under constitutional law). Unclear guidelines for relevant administrative action do not make things any better. One can already expect those who are "deprived" of their storage rights to stand up against this with a certain chance of success. Moreover, unlike tenants found for vacant flats, the gas molecules to fill the empty storage tanks will first have to be found and this will take quite some effort.
If you have any questions on these or any other energy law topics, the KWR Energy Team is ready to help at all times.