Distribuzione di energia elettrica e oneri di sbilanciamento: un caso emblematico di difficile compatibilità tra diritti dei consumatori e regole di mercato

The article aims to explore to what extent consumers protection, as principle constitutionally guaranteed by art.38 of EU’s Charter of Fundamental Rights, should affect the rules governing the electricity dispatching service and the balancing system. On a market such as the electricity market, where demand is inflexible and the product concerned cannot be stored, electricity dispatching service is designed to ensure that, within the national transmission system, the supply of electricity matches demand, thereby guaranteeing security and continuity in the energy supply. Transparent market-based mechanisms for the supply and purchase of electricity needs to be combined with balancing measures, whose aim should be the best allocation of the unbalancing costs, particularly the ones due to non- programmable sources of electricity: only adequate programming strategies adopted by this operators could reduce unbalancing costs that will be passed on consumers. After a thorough preliminary investigation, carried on by the Italian Regulatory Authority for Electricity and Gas, many operators have recent been found guilty of irregular behavior in the wholesale electricity markets, particularly in balancing, The paper addresses the question whether public policies and regulatory action concerning balancing costs can be regarded only as a problem of competition law and market regulation. According to EU and domestic law (2009/72/EC Directive and its implementation) national regulatory authorities should play an active role to ensure that balancing tariffs would be non-discriminatory and cost-reflective. Moreover, consumer interests are at the heart of this Directive which particularly focuses on information rights. In recent judgments our Administrative Courts, by referring only to the non-discrimination principle, argued that the reform of the balancing system (aimed at developing a more cost reflective distribution of the costs by reducing the difference in the treatment of programmable and non- programmable sources) had been adopted by the Regulatory Authority (in 2012) with breach of the rights of producers of non-programmable sources, because the two categories of operators are non in a comparable situation. On the other hand, the Administrative Court held that it is left to the Authority and its discretional power to decide if and how charging consumers of these costs. The A. criticizes such approach and the implied hierarchy between non-discriminatory principle and transparency principle adopted by national Courts. And she attempts to show how transparency requirements regarding contractual terms and conditions in consumers contracts, according to the recent developments in ECJ case-law, should play a key role, in the case, in requiring the development of a cost reflective regulatio