COUNCIL OFBrussels, 11 March 2009
THE EUROPEAN UNIONPUBLIC
5438/1/09 REV 1
LIMITE
Interinstitutional File:
2007/0196 (COD)
ENER 19 CODEC 49
NOTE from :
General Secretariat of the Council
to : delegations
Subject : Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/55/EC concerning common rules for the internal market in natural gas - Preparation of the informal trialogue
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1.Delegations will find attached 4-column tables, reflecting in
· column 1 the Commission proposal
· column 2 the related amendments of the EP
2.
At the 5th trialogue meeting, it has been agreed that the 6th informal trialogue scheduled for
18 March will i.a. address gas specific and other issues, assess agreement reached on
previously discussed issues and address unbundling.
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3.Coreper is invited to confirm that the compromise proposals as reflected in column 4 can
serve in substance as the presidency's negotiating basis for the next trialogue meeting with the
European Parliament.
COMMISSION PROPOSAL PARLIAMENT OPINION COUNCIL POSITION COMPROMISE PROPOSALS
RECITALS
(1) The internal market for gas, (1) The internal market in natural
which has been progressively implemented throughout the Community since 1999, aims at delivering real choice for all EU consumers, whether citizens or business, new business opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, and higher standards of service, and to contribute to security of supply and sustainability. gas, which has been progressively implemented throughout the Community since 1999, aims at delivering real choice for all consumers of the European Union, be they citizens or businesses, new business opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, and higher standards of service, and to contribute to security of supply and sustainability.
(2) Directive 2003/55/EC of the (2) Directive 2003/55/EC of the
European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/ECEuropean Parliament and of the Council of 26 June 2003 concerning common rules for the internal market
in natural gas
2 has made a significant
1 has made a significant contribution towards the creation of such an internal market in natural gas.
contribution towards the creation of such an internal market for gas.
(3) The freedoms which the Treaty
guarantees the citizens of the Union free movement of goods, freedom to provide services and freedom of establishment are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers.
(3) However, at present, the right to Amendment 1
sell gas in any Member State on equal terms and without discrimination or disadvantages cannot be guaranteed to any company in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist, since the current legal framework is insufficient. (3) The right to sell gas in any (4) However, at present, there are not acceptable
Member State on equal terms and without discrimination or disadvantages cannot, however, currently be guaranteed to all companies in all Member States. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist, since the legal framework is insufficient. obstacles to the sale of gas on equal terms and without discrimination or disadvantages in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist.
(4) The Communication of the (5) The Communication of the
Commission of 10 January 2007 entitled "An Energy Policy for Europe"Commission of 10 January 2007 entitled "An Energy Policy for Europe"
highlighted the importance of completing the internal market in natural gas and of creating a level playing field for all natural gas undertakings established in the Community. The Communications of the Commission of 10 January 2007 entitled "Prospects for the internal gas and electricity market" and "Inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 into the European gas and electricity sectors (Final Report)"
showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well-functioning internal market.
1 highlighted the importance of
completing the internal market in natural gas and of creating a level playing field for all gas companies established in the Community. The Internal Energy Market Communication
2 and the final Report
on the Competition Sectoral Enquiry3
showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well functioning internal market.
1 COM(2007) 1.
2 Communication of the Commission to the European Parliament and the Council on prospects for the internal gas and electricity market - COM(2006) 841.
3 Communication from the Commission "Sector Enquiry under Art. 17 of Regulation 1/2003 on the gas and electricity markets (final report)" - SEC(2006) 1724.
(5) Without effective separation of Amendment 2 (6) Without effective separation of (6) Without effective separation of
networks from activities of production and supply, there is an inherent risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated companies to invest adequately in their networks. (5) Without effective separation of networks from activities of production and supply ("effective unbundling"), there is an inherent risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated undertakings to invest adequately in their networks. networks from activities of production and supply ("effective unbundling"), there is a risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated undertakings to invest adequately in their networks.
networks from activities of production and supply, there is a risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated companies to invest adequately in their networks.
Amendment 3 Already covered in Am 9
(5a) The Member States should promote cooperation and monitor the effectiveness of the network at regional level. Several Member States have already put forward a proposal that would fulfil such an objective.
(6) The rules on legal and functional Amendment 4 (7) The rules on legal and functional Not acceptable
unbundling currently in place have not led to effective unbundling of the transmission system operators. At its meeting in Brussels on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals for the effective separation of supply and production activities from network operations. (6) The rules on legal and functional unbundling as provided for in Directive 2003/55/EC have not, however, led to effective unbundling of the transmission system operators.
At its meeting in Brussels on 8 and 9 March 2007, the European Council therefore
unbundling currently in place have not yet led to effective unbundling of the transmission system operators in every Member State, partly due to the fact that existing Community legislation has not been fully implemented. At its meeting in Brussels on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals for the effective separation of supply and production activities from network operations.
invited the Commission to
develop legislative proposals for the "effective separation of supply and production activities from network operations".
(7) Only the removal of the inherent (8) Only the removal of the
incentive for vertically integrated companies to discriminate against competitors as regards network access incentive for vertically integrated undertakings to discriminate against competitors as regards network access
and investment can ensure effective unbundling. Ownership unbundling, which implies the network owner being appointed as the network operator and being independent from any supply and production interests, is clearly the most effective and stable way to solve the inherent conflict of interest and to ensure security of supply. For this reason, the European Parliament in its Resolution on Prospects for the internal gas and electricity market adopted on 10 July 2007 referred to ownership unbundling at transmission level as the most effective tool to promote investments in infrastructures in a non- discriminatory way, fair access to the grid for new entrants and transparency in the market. Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control, including through minority blocking rights on decisions of strategic importance such as investments, over a production or supply undertaking and, at the same time, hold any interest in or exercise any right over a transmission system operator or transmission system. Conversely, control over a transmission system operator should preclude the possibility of holding any interest in or exercising any right over a supply undertaking. and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner as the system operator and its independence from any supply and production interests, is clearly an effective and stable way to solve the inherent conflict of interests and to ensure security of supply. For this reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market referred to ownership unbundling at transmission level as the most effective tool by which to promote investments in infrastructure in a non-discriminatory way, fair access to the network for new entrants and transparency in the market. Under ownership unbundling, Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control over a production or supply undertaking and, at the same time, exercise control or
any right over a transmission system operator or transmission system. Conversely, control over a transmission system or transmission system operator should preclude the possibility of exercising control or
any
right over a production or supply undertaking. Within those limits, a production or supply undertaking should be able to have a minority shareholding in a transmission system
operator or transmission system.
Amendment 5 (8a) Any system for unbundling should be effective in removing any conflict of interests between producers and transmission system operators, in order to create incentives
(7a) Any system for unbundling should be effective in removing any conflict of interests between producers and transmission system operators, in order to create incentives
for the necessary
for the necessary investments and guarantee the access of new market entrants under a transparent and efficient regulatory regime and should not create an overly onerous regulatory regime for national regulatory authorities.
investments and guarantee the access of new market entrants under a transparent and efficient regulatory regime and should not create an onerous or cumbersome regulatory regime for national regulatory authorities that would be difficult or expensive to implement.
(9) The definition of the term
"control" is taken from Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation)
1.
Amendment 6 Covered in Rec. 31a
(7b) Gas is mainly, and increasingly, imported into the European Union from third countries. Community law should take account of the specific integration of the gas sector into the world market, including the differences in the upstream and downstream markets.
(8) Since ownership unbundling Amendment 7 (10) Since ownership unbundling requires, in some instances, the restructuring of undertakings, Member (10) Since ownership unbundling requires, in some instances, the restructuring of undertakings, Member
requires, in some instances, the restructuring of undertakings, Member (8) Since ownership unbundling
requires, in some instances, the
States should be granted additional time to apply the relevant provisions.
In view of the vertical links between the electricity and gas sectors, the unbundling provisions should apply, moreover, across the two sectors. restructuring of undertakings, Member States that decide to implement ownership unbundling should be granted additional time to apply the relevant provisions. In view of the vertical links between the electricity and gas sectors, the unbundling provisions should apply, moreover, across the two sectors. States should be granted additional time to apply the relevant provisions.
In view of the vertical links between the electricity and gas sectors, the unbundling provisions should apply across the two sectors. States that decide to implement ownership unbundling should be granted additional time to apply the relevant provisions. In view of the vertical links between the electricity and gas sectors, the unbundling provisions should apply across the two sectors.
Amendment 8 Covered in recital 15
(8a) Member States that so wish may apply the provisions of this Directive that relate to the effective and efficient separation of transmission systems and transmission system operators. Such separation is effective insofar as it helps to ensure the independence of transmission system operators and is efficient insofar it provides a more appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new market entrants and the integration of natural gas markets. Such separation is based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. It is in line with the requirements laid down by the European Council at its meeting in Brussels on 8 and 9 March
2007.
Amendment 9 first sentence already covered in Rec 15 with respect to ITO and rec 41 in general
Second sentence not acceptable
(8b) Member States should promote regional cooperation, with the possibility of designating a regional coordinator in charge of facilitating dialogue between competent national authorities. New power plants should, furthermore, be connected to the grid in an effective manner in due course.
Amendment 10 Not acceptable
(8c) In order to ensure the proper implementation of this Directive, the Commission should assist those Member States that encounter problems therewith.
Amendment 116 and 137 Not acceptable
(8d) The aim of an integrated European energy network is essential for security of supply and a well- functioning internal gas market. The Commission, in consultation with the stakeholders (in particular the transmission system operators and the Agency) should therefore assess the feasibility of creating a single European transmission system operator and analyse the costs and benefits with respect to market integration as well as the effective and secure operation of the transmission network.
(9) To ensure full independence of (11) Under ownership unbundling, to ensure full independence of network operation from supply and production interests and to prevent exchanges of
network operation from supply and production interests and to prevent exchange of any confidential
information, the same person should not be a member of the managing boards of both a transmission system operator and an undertaking performing any of the functions of production or supply. For the same reason, the same person should not be entitled to appoint members of the managing boards of a transmission system operator and to hold any interest in a supply undertaking. any confidential information, the same person should not be a member of the managing boards of both a transmission system operator or a transmission system and an undertaking performing any of the functions of production or supply. For the same reason, the same person should not be entitled to appoint members of the managing boards of a transmission system operator or a transmission system and to exercise control or any right over a production
or supply undertaking.
(10) The setting up of system operators independent from supply and production interests should enable vertically integrated companies to maintain their ownership of network assets whilst ensuring an effective separation of interests, provided that the independent system operator performs all the functions of a network operator and detailed regulation and extensive regulatory control mechanisms are put in place. Amendment 11 (12) The setting up of a system operator or a transmission operator independent from supply and production interests should enable a vertically integrated undertaking to maintain its ownership of network assets whilst ensuring an effective separation of interests, provided that such independent system operator or such independent transmission operator performs all the functions of a system operator and detailed regulation and extensive regulatory control mechanisms are put in place. already covered
(10) The setting up of system operators independent from supply and production interests should enable vertically integrated companies to maintain their ownership of network assets whilst ensuring an effective separation of interests, provided that the independent system operator performs all the functions of a network operator, or efficient and effective unbundling is implemented, and detailed regulation and extensive regulatory control mechanisms are put
in place.
(11) Where the undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be Amendment 12 (13) Where, on ...*, an undertaking already covered
(11) Where the undertaking owning a transmission system is part of a vertically integrated undertaking, owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be
given a choice between ownership unbundling and, as a derogation, setting up system operators which are independent from supply and production interests. The full effectiveness of the independent system operator solution needs to be assured by way of specific additional rules. To preserve fully the interests of the shareholders of vertically integrated companies, Member States should have the choice of implementing ownership unbundling either by direct divestiture or by splitting the shares of the integrated company into shares of the network company and shares of the remaining supply and production business, provided that the requirements resulting from ownership unbundling are complied with. Member States should therefore be given a choice between three options: ownership unbundling, the establishment of an independent system operator or effective and efficient unbundling. given a choice between ownership unbundling and setting up a system operator or transmission operator which is independent from supply and production interests.
(14) To preserve fully the interests of the shareholders of vertically integrated undertakings, Member States should have the choice of implementing ownership unbundling either by direct divestiture or by splitting the shares of the integrated undertaking into shares of the network undertaking and shares of the remaining supply and production undertaking, provided that the requirements resulting from ownership unbundling are complied with.
Amendment 13 (11a) In order to develop competition in the internal market for gas, large non-household customers should be able to choose their suppliers as well as enter into contracts to secure their gas requirements with several suppliers. Such customers should be protected against exclusivity clauses, the effect of which is to exclude competing and/or complementary offers.
(11a) In order to develop competition in the internal market for gas, non- household customers should be able to choose their suppliers as well as enter into contracts to secure their gas requirements with several suppliers. Such customers should be protected against exclusivity clauses, the effect of which is to exclude competing and/or complementary offers.
(15) The full effectiveness of the independent system operator or independent transmission operator solutions should be ensured by way of (15) The full effectiveness of the independent system operator or independent transmission operator solutions should be ensured by way of
specific additional rules. The independence of the transmission operator should, inter alia, be ensured through certain "cooling-off" periods during which no management or other relevant activity giving access to the same information as could have been obtained in a managerial position is exercised in the vertically integrated undertaking. specific additional rules. The rules on the independent transmission operator provide an appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new market entrants and the integration of gas markets. Effective unbundling through the independent transmission operator provisions should be based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. The independence of the transmission operator should also, inter alia, be ensured through certain "cooling-off" periods during which no management or other relevant activity giving access to the same information as could have been obtained in a managerial position is exercised in the vertically integrated undertaking. The independent transmission operator model of effective unbundling is in line with the requirements laid down by the European Council at its meeting in Brussels on 8 and 9 March 2007.
(16) A Member State has the right to opt for full ownership unbundling in its
territory. Where a Member State has exercised that right, an undertaking does not have the right to set up an independent system operator or an independent transmission operator. Furthermore,
an undertaking
performing any of the functions of production or supply cannot directly or indirectly exercise control or any right over a transmission system operator from a Member State that has opted for full ownership unbundling.
(17) Under this Directive different types of market organisation will exist in the internal market in natural gas. The measures that Member States could take in order to ensure a level playing field should be based on overriding requirements of general interest. The Commission should be consulted on the compatibility of the measures with the Treaty and Community law.
(12) The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors.
To this effect, the same person should not be able to exercise any influence, solely or jointly, over the composition, voting or decision of the bodies of both transmission system operators and supply undertakings. Provided that the Member State in question can demonstrate that this requirement is respected, two distinct public bodies Amendment 14 (18) The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors.
To this end, the same person should not be able to exercise control or any right, in violation of the rules of ownership unbundling or the independent system operator option, solely or jointly, over the composition, voting or decision of the bodies of both the transmission system operators or the transmission systems and the common position maintained
(12) The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors.
To this end, the same person should not be able to exercise any influence, solely or jointly, over the composition, voting or decision of the bodies of both transmission system operators and supply undertakings.
could control on the one hand generation and supply activities and on the other transmission activities. production or supply undertakings. With regard to ownership unbundling and the independent system operator solution, provided that the Member State in question is able to demonstrate that the requirement is complied with, two separate public bodies should be able to control production and supply activities on the one hand and transmission activities on the other.
(13) Full separation of network and supply activities should apply throughout the Community, so that any network operator in the Community or its affiliated companies should be prevented from having any supply or production activities in any Member State. This should apply equally to EU and non-EU companies. To ensure that network and supply activities throughout the Community are kept separate, regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules.
To ensure a consistent application across the Community and the respect of the international obligations of the Community, the Commission should have the right to review the decisions on certification taken by the regulatory authorities. Amendment 15 (19) Effective separation of network activities from supply and production(19) Fully effective separation of network activities from supply and production
(13) Separation of network and supply activities should apply throughout the Community. This should apply equally to EU and third- country companies. To ensure that network and supply activities throughout the Community are kept separate, regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules.
To ensure consistent application across the Community and the respect of the international obligations of the Community, the Agency for the Cooperation of Energy Regulators ("the Agency") should have the right to review the decisions on certification taken by the regulatory authorities.
activities should apply throughout the Community to both Community and non-Community undertakings. To ensure that network activities activities should apply
throughout the Community to both Community and non-Community undertakings. To ensure that network activities
and
supply and production activities throughout the Community remain independent from each other, regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules.
To ensure the consistent application of those rules across the Community, the regulatory authorities should take utmost account of the Commission's opinion when the former take decisions on certification. To ensure, in addition, respect for the international obligations of the Community, the Commission should have the right to give an opinion on certification in relation to a transmission system owner or a transmission system operator which is and supply and production
activities throughout the Community remain independent from each other, regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules.
To ensure the consistent application of those rules across the Community, the regulatory authorities should take utmost account of the Commission's opinion when the former take decisions on certification. To ensure, in addition, respect for the international obligations of the Community and solidarity and energy security within the EU, the Commission should have the right to give an opinion on certification in relation to a transmission system
controlled by a person or persons from a third country or third countries. owner or a transmission system operator which is controlled by a person or persons from a third country
or third countries.
(14) The safeguarding of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the EU gas market. Use of the network is essential for gas to reach EU citizens. Functioning gas markets and in particular the networks and other assets associated with gas supply are essential for public security, for the competitiveness of the economy and for the well-being of the citizens of the Community. Without prejudice to the international obligations of the Community, the Community considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the influence of third countries in order to avoid any threats to Community public order and public security and the welfare of the citizens of the Community. Such measures are also necessary for ensuring compliance with the rules on effective unbundling. Amendment 16 (20) The safeguarding of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the internal market in gas. Gas can reach the citizens of the Union only through the network. Functioning gas markets and, in particular, the networks and other assets associated with gas supply are essential for public security, for the competitiveness of the economy and for the well-being of the citizens of the Union. Persons from third countries should therefore only be allowed to control a transmission system or a transmission system operator if they comply with the requirements of effective separation that apply inside the Community. Without prejudice to the international obligations of the Community, the Community considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the preservation of the security of supply of energy to the Community to avoid any threats to public order and public security in the Community and the welfare of the citizens of the Union. The security of supply of energy to the Community requires, in particular, an assessment of (20) The safeguarding of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the internal market in gas and the integration of the isolated gas markets of Member States. Gas can reach the citizens of the Union only through the network. Functioning open gas markets, and, in particular, the networks and other assets associated with gas supply are essential for public security, for the competitiveness of the economy and for the well-being of the citizens of the Union. Persons from third countries should therefore only be allowed to control a transmission system or a transmission system operator if they comply with the requirements of effective separation that apply inside the Community. Without prejudice to the international obligations of the Community, the Community considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the preservation of the security of supply of energy to the Community to avoid any threats to public order and public security in the Community and the welfare of the
(14) The safeguarding of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the EU gas market and the integration of the isolated markets of Member States. Use of the network is essential for gas to reach EU citizens. Functioning, open gas markets with genuine trading possibilities, and in particular the networks and other assets associated with gas supply are essential for public security, the competitiveness of the economy and the well-being of citizens of the Union. Without prejudice to its international obligations, the Community considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the influence of third countries in order to avoid any threats to Community public order and public security and the welfare of the citizens of the Community. Such measures are also necessary for ensuring compliance with the rules on effective unbundling.
the independence of network operation, the level of the Community's and individual Member States' dependence on energy supply from third countries, and the treatment of both domestic and foreign trade and investment in energy in a particular third country. Security of supply should therefore be assessed in the light of the factual circumstances of each case as well as the rights and obligations arising under international law, in particular the international agreements between the Community and the third country concerned. Where appropriate the Commission is encouraged to submit recommendations to negotiate relevant agreements with third countries addressing the security of supply of energy to the Community or to include the necessary issues in other negotiations with those third countries. citizens of the Union. The security of supply of energy to the Community requires, in particular, an assessment of the independence of network operation, the level of the Community's and individual Member States' dependence on energy supply from third countries, and the treatment of both domestic and foreign trade and investment in energy in a particular third country. Security of supply should therefore be assessed in the light of the factual circumstances of each case as well as the rights and obligations arising under international law, in particular the international agreements between the Community and the third country concerned. Where appropriate the Commission is encouraged to submit recommendations to negotiate relevant agreements with third countries addressing the security of supply of energy to the Community or to include the necessary issues in other negotiations with those third countries.
(15) It is necessary to ensure the independence of storage system operators in order to improve third party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. It is therefore appropriate that storage facilities are operated through legally separate entities that have effective decision making rights (22) It is necessary to ensure the independence of storage system operators in order to improve third-party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. It is therefore appropriate that storage facilities are operated through legally separate entities that have effective
with respect to assets necessary to maintain, operate and develop storage facilities. It is also necessary to increase transparency in respect of the storage capacity that is offered to third parties, by obliging Member States to define and publish a non- discriminatory, clear framework that determines the appropriate regulatory regime applicable to storage facilities. decision-making rights with respect to assets necessary to maintain, operate and develop storage facilities. It is also necessary to increase transparency in respect of the storage capacity that is offered to third parties, by obliging Member States to define and publish a non-discriminatory, clear framework that determines the appropriate regulatory regime applicable to storage facilities. Confidentiality requirements for commercially sensitive information are particularly important where data of a strategic nature are concerned or where there is only a single user of a storage facility.
(16) Non discriminatory access to the distribution network determines downstream access to customers at retail level. The scope for discrimination as regards third party access and investment is however less significant at distribution level than at transmission level because at distribution level congestion and the influence of production interests are generally less important than at transmission level. Moreover, functional unbundling of distribution system operators became, according to Directive 55/2003/EC, compulsory only as of 1 July 2007 and its effects on the internal market still need to be evaluated. The rules on legal and functional unbundling currently in (23) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. The scope for discrimination as regards third party access and investment, however, is less significant at distribution level than at transmission level where congestion and the influence of production interests are generally greater than at distribution level. Moreover, legal and functional unbundling of distribution system operators was required, pursuant to Directive 2003/55/EC, only from 1 July 2007 and its effects on the internal market in natural gas still need to be evaluated. The rules on legal and functional unbundling currently in place can lead to effective unbundling
place can lead to effective unbundling provided they are more clearly defined, properly implemented and closely monitored. To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to small domestic and non-domestic customers. provided they are more clearly defined, properly implemented and closely monitored. To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to household and small non-household customers.
Amendment 17 (16a) Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which must be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards on an ongoing basis.
(16a) Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which must be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards
on an ongoing basis.
(17) Directive 2003/55/EC introduced a requirement for Member States to establish regulators with specific competences. However, experience shows that the effectiveness of regulation is frequently hampered through a lack of independence of regulators from government, and insufficient powers and discretion. For this reason, at its meeting in Brussels on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals providing (25) Directive 2003/55/EC introduced a requirement for Member States to establish regulators with specific competences. However, experience shows that the effectiveness of regulation is frequently hampered through a lack of independence of regulators from government, and insufficient powers and discretion. For this reason, at its meeting in Brussels on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals providing
for further harmonisation of the powers and strengthening of the independence of national energy regulators. for further harmonisation of the powers and strengthening of the independence of national energy regulators. It should be possible for those national regulatory authorities to cover both the electricity and the gas sectors.
(25a) Any harmonisation of the powers of national regulatory authorities should include the powers to provide for incentives that may be offered and the powers to issue effective, proportionate and dissuasive penalties that may be imposed on natural gas undertakings or to propose to a court to impose such penalties.
(18) Energy regulators need to be able to take decisions on all relevant regulatory issues if the internal market is to function correctly, and to be fully independent from any other public or private interests. Amendment 18 (26) Energy regulators need to be able to take decisions on all relevant regulatory issues if the internal market in natural gas is to function properly, and to be fully independent from any other public or private interests. This precludes neither judicial review nor parliamentary supervision in accordance with the constitutional law of the Member States. In addition, approval of the budget of the regulator by the national legislator does not constitute an obstacle to budgetary autonomy. Not acceptable
(18) Energy regulators need to be able to take decisions on all relevant regulatory issues if the internal market is to function properly, and to be fully independent from any other interests of public or private companies.
(19) Energy regulators should have the power to issue binding decisions on gas undertakings and to impose effective, appropriate and dissuasive sanctions on natural gas undertakings which fail to comply with their Amendment 19 (29) Energy regulators should have the power to issue binding decisions in relation to natural gas undertakings and to impose effective, proportionate and dissuasive penalties on natural gas undertakings which fail to comply with (29) Energy regulators should have the power to issue binding decisions in relation to natural gas undertakings and to impose effective, proportionate and dissuasive penalties on natural gas undertakings which fail to comply with
(19) Energy regulators should have the power to issue binding decisions on network operators and to impose effective, appropriate and dissuasive sanctions on network operators that
obligations. They must also be granted the powers to decide, irrespective of the application of competition rules, on any appropriate measures promoting effective competition necessary for the proper functioning of the market; as well as to ensure high standards of public service in compliance with market opening, the protection of vulnerable customers and that consumer protection measures are fully effective. These provisions should be without prejudice to both the Commission's powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market, such as the free movement of capital.
fail to comply with their obligations. They must also be granted the powers to decide, irrespective of the application of competition rules, on any appropriate measures regarding the access to networks with the aim of effective competition necessary for the proper functioning of the market; as well as to ensure high standards of public service in compliance with market opening, the protection of vulnerable customers and the full effectiveness of consumer protection measures. These provisions should be without prejudice to both the Commission's powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market, such as the free movement of capital. their obligations or to propose that a competent court impose such penalties on them. Regulatory authorities should also be granted the power to decide, irrespective of the application of competition rules, on appropriate measures promoting effective competition necessary for the proper functioning of the internal market in natural gas. The establishment of gas-release programmes is one of the possible measures that can be used to promote effective competition and ensure the proper functioning of the market. Energy regulators should also be granted the powers to contribute to ensuring high standards of public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of consumer protection measures. Those provisions should be without prejudice to both the Commission's powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market such as the free movement of capital. The independent body to which a party affected by the decision of a national regulator has a right to appeal could be a court or other tribunal empowered to conduct a judicial review. their obligations or to propose that a competent court impose such penalties on them. Energy regulators should also be granted the power to decide, irrespective of the application of competition rules, on appropriate measures ensuring customer benefits through the promotion of effective competition necessary for the proper functioning of the internal market in natural gas. The establishment of gas-release programmes is one of the possible measures that can be used to promote effective competition and ensure the proper functioning of the market. Energy regulators should also be granted the powers to contribute to ensuring high standards of public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of consumer protection measures. Those provisions should be without prejudice to both the Commission's powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market such as the free movement of capital. The independent body to which a party affected by the decision of a national regulator has a right to appeal could be a court or other tribunal empowered to conduct a judicial review.
Amendment 20 Rejected (1st part already covered in
(19a) Energy and financial market regulatory authorities should cooperate in order to allow each other an overview of their respective markets. They should have the power to obtain relevant information from natural gas undertakings through appropriate and sufficient investigations, to settle disputes, and impose effective sanctions. rec 31)
Regulatory authorities should have the power to request relevant information from natural gas undertakings, make appropriate and sufficient investigations, settle disputes and impose effective, proportionate and dissuasive penalties or propose to a court to impose such penalties.
(20) Investments in major new infrastructures should be strongly promoted while ensuring the proper functioning of the internal market in natural gas. In order to enhance the positive effect of exempted infrastructure projects on competition and security of supply, market interest during the project planning phase should be tested and congestion management rules should be implemented. Where an infrastructure is located in the territory of more than one Member State, the Agency for the Cooperation of Energy Regulators should handle the exemption request in order to take better account of its cross-border implications and to facilitate its administrative handling. Moreover, given the exceptional risk profile of constructing these exempt major infrastructure projects it should (30) Investments in major new infrastructure should be strongly promoted while ensuring the proper functioning of the internal market in natural gas. In order to enhance the positive effect of exempted infrastructure projects on competition and security of supply, market interest during the project planning phase should be tested and congestion management rules should be implemented. Where an infrastructure is located in the territory of more than one Member State, the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No .../...
*1 of the European Parliament and
of the Council (the "Agency") should handle as a last resort the exemption request in order to take better account of its cross-border implications and to facilitate its administrative handling.
be possible to temporarily grant partial derogations to supply and production undertakings in respect of the unbundling rules for the projects concerned. This should in particular apply, for security of supply reasons, to new pipelines within the Community transporting gas from third countries into the Community. Moreover, given the exceptional risk profile of constructing these exempt major infrastructure projects it should be possible temporarily to grant partial derogations to undertakings with supply and production interests in respect of the unbundling rules for the projects concerned. This should apply, for security of supply reasons, in particular, to new pipelines within the Community transporting gas from third countries into the Community.
(21) The internal gas market is suffering from a lack of liquidity and transparency hindering the efficient allocation of resources, risk hedging and new entry. Trust in the market, its liquidity and the number of market participants need to increase, and therefore regulatory oversight over undertakings active in the supply of gas need to be increased. Such requirements should be without prejudice to, and compatible with, the existing Community legislation on financial markets. Energy Regulators and Financial Market Regulators need to cooperate in order to enable each other to have an overview of the markets concerned.
(31) The internal market in natural gas suffers from a lack of liquidity and transparency hindering the efficient allocation of resources, risk hedging and new entry. Trust in the market, its liquidity and the number of market participants needs to increase, and, therefore, regulatory oversight of undertakings active in the supply of gas needs to be increased. Such requirements should be without prejudice to, and compatible with, existing Community legislation on financial markets. Energy regulators and financial market regulators need to cooperate in order to enable each other to have an overview of the markets concerned.
Amendment 21 (31a) Gas is mainly, and increasingly, imported into the European Union from third countries. Community law should take account of the
(21a) The structural rigidities of the gas market which arise from the concentration of suppliers, the long-
term contracts that underpin deliveries, and the lack of downstream liquidity, generate non-transparent pricing structures. In order to bring clarity to the cost structure, more transparency is needed in the price formation, and a trading obligation should therefore be mandatory. characteristics of natural gas, such as certain structural rigidities arising from the concentration of suppliers, the long-term contracts or the lack of downstream liquidity. Therefore, more transparency is needed, including in the price formation.
(22) Prior to adoption by the Commission of guidelines defining further the record keeping requirements, the Agency for the Cooperation of Energy Regulators and the Committee of European Securities Regulators (CESR) should cooperate to investigate and advise the Commission on the content of the guidelines. The Agency and the Committee should also cooperate to further investigate and advise on the question whether transactions in gas supply contracts and gas derivatives should be subject to pre and/or post- trade transparency requirements and if so what the content of those requirements should be. Amendment 22 (32) Prior to the adoption by the Commission of guidelines defining further the record keeping requirements, the Agency and the Committee of European Securities Regulators (the "CESR") should confer and advise the Commission in regard to their content. The Agency and the CESR should also cooperate to investigate further and advise on whether transactions in gas supply contracts and gas derivatives should be subject to pre- and/or post-trade transparency requirements and, if so, what the content of those requirements should be. Not acceptable
deleted
(34) Member States should ensure that, taking into account the necessary quality requirements, biogas and gas from biomass or other types of gas are granted non-discriminatory access to the gas system, provided such access is permanently compatible with the relevant technical rules and safety standards. Those rules and standards should ensure that those gases can
technically and safely be injected into, and transported through the natural gas system and should also address their chemical characteristics.
(35) Long-term contracts will continue to be an important part of the gas supply of Member States and should be maintained as an option for gas supply undertakings in so far as they do not undermine the objective of this Directive and are compatible with the Treaty, including the competition rules. It is therefore necessary to take into account long-term contracts in the planning of supply and transportation capacity of natural gas undertakings.
(36) In order to ensure the maintenance of high standards of public service in the Community, all measures taken by Member States to achieve the objectives of this Directive should be regularly notified to the Commission. The Commission should regularly publish a report analysing measures taken at national level to achieve public service objectives and comparing their effectiveness, with a view to making recommendations as regards measures to be taken at national level to achieve high public service standards.
Member States should ensure that
when they are connected to the gas system customers are informed about their rights to be supplied with natural gas of a specified quality at reasonable
prices. Measures taken by Member States to protect final customers may differ according to whether they are aimed at household customers or small and medium sized enterprises.
Amendment 23 (40) The public service requirements and the common minimum standards that follow from them need to be further strengthened to make sure that all consumers can benefit from competition. A key aspect in supplying customers is access to consumption data, and consumers must have access to their data so that they can invite competitors to make an offer based on these data. Consumers should also have the right to be properly informed about their energy consumption. Regularly provided information on energy costs will create incentives for energy savings because it will give customers direct feedback on the effects of investment in energy efficiency and change of behaviour.
(40) The public service requirements and the common minimum standards that follow from them need to be further strengthened to make sure that all consumers, especially vulnerable ones, can benefit from competition and fair prices. The public service requirements should be defined at national level, taking into account national circumstances. Community law should, however, be respected by the Member States. The citizens of the Union and, where Member States deem it appropriate, small enterprises, should be able to enjoy public service guarantees, in particular with regard to security of supply and reasonable tariffs. A key aspect in supplying customers is access to objective and transparent consumption data. Thus, consumers should
(23a) The public service requirements and the common minimum standards that follow therefrom need to be further strengthened to make sure that gas services are accessible to the public and to small and medium-sized (SMEs) enterprises.
have access to their
consumption data and associated prices and services costs so that they can invite competitors to make an offer based on these data. Consumers should also have the right to be properly informed about their energy consumption. Prepayments should reflect the likely consumption of natural gas and different payment
systems should be non- discriminatory. Information on energy costs provided to consumers frequently enough will create incentives for energy savings because it will give customers direct feedback on the effects of investment in energy efficiency and change of behaviour.
Amendment 24 The introduction of intelligent metering systems may be based on an economic assessment. Should that assessment conclude that the introduction of such metering systems is economically reasonable and cost- effective only for consumers with a certain amount of gas consumption, Member States may take this into account when implementing intelligent metering systems.
(23b) Member States should ensure that individual smart meters are installed, as provided for in Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services
1, in order to give consumers
accurate information about energy consumption and to secure end-user efficiency.
1 OJ L 114, 27.4.2006, p. 64.
Amendment 25 (40a) Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of natural gas undertakings. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency. Consumer protection should ensure that all consumers benefit from a competitive market. Consumer rights should be enforced by Member States, or when the Member State has so provided, the
(23c) Consumers should be the main focus of this Directive. Existing rights for consumers need to be strengthened and guaranteed, and should include greater transparency and representation. Consumer protection means that all customers should benefit from a competitive market. Consumer rights should be enforced by national regulatory authorities by the creation of incentives and the imposition of sanctions on undertakings which do
not comply with consumer protection and competition rules. regulatory authorities.
Amendment 131 (40b) Clear and comprehensible information should be made available to consumers concerning their rights in relation to the energy sector. The Commission should establish, after consulting relevant stakeholders including Member States, national regulatory authorities, consumer organisations and natural gas undertakings, an accessible, user-friendly Energy Consumer Checklist providing consumers with practical information about their rights. That Energy Consumer Checklist should be provided to all consumers and be made publicly available.
41c) Energy poverty is a growing problem in the Community. Member States which are affected and which have not yet done so should, therefore, develop national action plans or other appropriate frameworks to tackle energy poverty, aiming at decreasing the number of people suffering such situation. In any case, Member States should ensure the necessary energy supply for vulnerable customers. In doing so, an integrated
(23d) Clear and comprehensible information should be made available to consumers concerning their rights in relation to the energy sector. Following on from its communication of 5 July 2007 entitled 'Towards a European Charter of the Rights of Energy Consumers', the Commission should put forward, after consulting relevant stakeholders, including national regulatory authorities, consumer organisations and the social partners, an accessible, user- friendly charter listing the rights of energy consumers already in existing Community law including this Directive. Energy suppliers should ensure that all consumers receive a copy of that charter and that it is publicly available.
approach, e.g. in the framework of social policy, could be used and measures could include social policies or energy efficiency improvements for housing. At the very least, this Directive should allow national policies in favour of vulnerable customers.
(40d) Greater consumer protection is guaranteed by the availability of effective means of dispute settlement for all consumers. Member States should introduce speedy and effective complaint handling procedures. (40e) Market prices should give the right incentives for the development
of the network. (40f) Promoting fair competition and easy access for different suppliers should be of the utmost importance for Member States in order to allow consumers to fully grasp the opportunities of a liberalised internal market in natural gas.
(24) In order to contribute to security of supply whilst maintaining a spirit of solidarity between Member States, notably in the event of an energy supply crisis, it is important to provide a framework for regional solidarity cooperation. Amendment 26 (41) In order to contribute to security of supply whilst maintaining a spirit of solidarity between Member States, notably in the event of an energy supply crisis, it is important to provide a framework for regional cooperation in a spirit of solidarity. This cooperation in a spirit of solidarity may rely, if Member States so decide, Common position maintained
(24) In order to contribute to security of supply, Member States should, whilst maintaining a spirit of solidarity, notably in the event of an energy supply crisis, work together closely. For this purpose, Council Directive 2004/67/EC of 26 April 2004 concerning measures to safeguard
security of natural gas supply1 should first and foremost on market-based mechanisms.
serve as a basis.
1 OJ L 127, 29.4.2004, p. 92.
(25) In view of the creation of an internal market for gas, Member States should foster the integration of their national markets and the cooperation of network operators at European and regional level. Amendment 27 (42) With a view to creating an internal market in natural gas, Member States should foster the integration of their national markets and the cooperation of system operators at Community and regional level.
(42) With a view to creating an internal market in natural gas, Member States should foster the integration of their national markets and the cooperation of system operators at Community and regional level, incorporating also the isolated gas markets that persist in the Community.
(25) In view of the creation of an internal market for gas, Member States should foster the integration of their national markets and the cooperation of network operators at European and regional level. Regional integration initiatives are an essential intermediate step in achieving the integration of Community energy markets, which remains the final objective. The regional level contributes towards accelerating the integration process by making it possible for the actors concerned, particularly the Member States, the national regulatory authorities and the transmission system operators, to cooperate in regard to specific issues.
Amendment 28 (42a) The development of a truly European gas market, through a European connected grid, should be one of the main goals of this Directive and regulatory issues on cross border interconnections and regional markets should, therefore, be one of the main tasks, in close cooperation with the Agency where relevant, of regulatory authorities.
(25a) The development of a truly pan- Community pipeline network should be one of the main goals of this Directive and regulatory issues on cross-border interconnections and regional markets should, therefore, be the responsibility of the Agency.
. (42b) To secure common rules for a truly European internal market and a broad supply of gas should also be one of the main goals of this
Directive. To this end, undistorted market prices would provide an incentive for cross-border interconnections while leading, in the long term, to price convergence.
(26) Regulatory authorities should provide information to the market also to permit the Commission to exercise its role of observing and monitoring the European gas market and its short, medium and long term evolution, including aspects such as supply and demand, transmission and distribution infrastructures, (43) Regulatory authorities should also provide information on the market to permit the Commission to exercise its role of observing and monitoring the internal market in natural gas and its short, medium and long term evolution, including aspects such as supply and demand, transmission and distribution infrastructure, cross-border trade, investments, wholesale and consumer prices, market liquidity and environmental (43) Regulatory authorities should also provide information on the market to permit the Commission to exercise its role of observing and monitoring the internal market in natural gas and its short, medium and long term evolution, including aspects such as supply and demand, transmission and distribution infrastructure, quality of service, cross-border trade, congestion management, investments, wholesale and consumer prices, market liquidity and environmental and efficiency improvements.
cross-border trade,
investments, wholesale and consumers prices, market liquidity, environmental and efficiency improvements.
and efficiency
improvements.
(27) Since the objectives of the proposed action, namely the creation of a fully operational internal gas market, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (44) Since the objective of this Directive, namely the creation of a fully operational internal market in natural gas, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(27a) Member States should consider with the social partners concerned the implications of amending Directive 2003/55/EC, in particular the different models to ensure independent transmission system operators, in terms of the employment, working conditions and information, consultation and participation rights of workers, with a view to mitigating the negative consequences.
(28) Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission network (45) Under Regulation (EC) No .../...
of the European Parliament and of the Council of ... on conditions for access to the natural gas transmission network
1 provides the *2, the Commission may adopt
Commission with the possibility of adopting guidelines to achieve the necessary degree of harmonisation. Such guidelines, which are thus binding implementing measures, are a useful tool which can be adapted quickly where necessary. guidelines to achieve the necessary degree of harmonisation. Such guidelines, which constitute binding implementing measures, are, also with regard to certain provisions of this Directive, a useful tool which can be adapted quickly where necessary.
(29) Directive 2003/55/EC provides that certain measures are to be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise (46) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures
1 OJ L 289, 3.11.2005, p. 1.
of implementing powers conferred on the Commissionfor the exercise of implementing powers conferred on the Commission
-
1.2.
(30) Decision 1999/468/EC has been amended by Decision 2006/512/EC, which introduced a regulatory procedure with scrutiny for measures of general scope designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, including by deleting some of those elements or by supplementing the instrument by the addition of new non-essential elements. deleted
(31) In accordance with the joint statement of the European Parliament, the Council and the Commission deleted
3 on
Decision 2006/512/EC, for this new procedure to be applicable to instruments adopted in accordance with the procedure laid down in Article 251 of the Treaty which are already in force, those instruments must be adjusted in accordance with the applicable procedures.
(32) As regards Directive 2003/55/EC, power should be conferred on the Commission in particular to adopt the guidelines necessary for providing the minimum degree of harmonisation required to Amendment 30 (47) In particular, the Commission should be empowered to adopt the guidelines necessary for providing the minimum degree of harmonisation required to achieve the aim of this Directive. Since those measures are of Not acceptable
deleted
1 OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).
achieve the aim of this Directive. Since those measures are of general scope and are designed to supplement Directive 2003/55/EC by the addition of new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. general scope and are designed to amend non-essential elements of this Directive, by
supplementing it with
new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
(33) Directive 2003/55/EC should be amended accordingly, (49) Given the scope of the amendments made to Directive 2003/55/EC herein, it is desirable, for reasons of clarity and rationalisation, that the provisions in question should be recast by bringing them all together in a single text in a new Directive.
ARTICLES
Amendment 31 Article 1
2.
(-1) Article 1(2) shall be replaced by the following: "2. The rules established by this Directive for natural gas, including liquefied natural gas (LNG), shall also apply in a non-discriminatory way to biogas and gas from biomass or other types of gas in so far as such gases can technically and safely be injected into, and transported through, the natural gas system." Subject matter and scope The rules established by this
-
2.The rules established by this Directive for natural gas, including LNG, shall also apply in a non- discriminatory way to biogas and gas from biomass or other types of gas in so far as such gases can technically and safely be injected into, and transported through, the natural gas system.
Directive for natural gas, including LNG, shall also apply to biogas and gas from biomass or other types of gas in so far as such gases can technically and safely be injected into, and transported through, the natural gas system.
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
Amendment 32 (3) "transmission" means the (3) "transmission" means the
(-a) point 3 shall be replaced by the
following: transport of natural gas through a high-pressure pipeline network other transport of natural gas through a network which mainly contains
"3. `transmission' means the transport of natural gas through a [...] network containing mainly high- pressure pipelines, other than an upstream pipeline network or the part of high-pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers, but not including supply;" than an upstream pipeline network with a view to its delivery to customers, but not including supply;
high-pressure pipelines, other than an
upstream pipeline network and other than the part of high-pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers, but not including supply;
Amendment 33
(9) Common position maintained
(-aa) point 9 shall be replaced by the
following: "9. `storage facility' means a facility used for the stocking of natural gas and owned and/or operated by a natural gas undertaking, including the part of LNG facilities used for storage but excluding the portion used exclusively for production operations, and excluding facilities reserved exclusively for transmission system operators in carrying out their functions;" "storage facility" means a
facility used for the stocking of natural gas and owned and/or operated by a natural gas undertaking, including the part of LNG facilities used for storage but excluding the portion used for production operations, and excluding facilities reserved exclusively for transmission system operators in carrying out their functions;
Amendment 34 (14) "ancillary services" means all services necessary for access to and the operation of transmission networks, distribution networks, LNG facilities, and/or storage facilities, including load balancing and blending, but excluding facilities reserved exclusively for transmission system operators carrying out their functions;
(14) "ancillary services" means all services necessary for access to and the operation of transmission networks, distribution networks, LNG facilities, and/or storage facilities, including load balancing, blending and injection of inert gases,, but excluding facilities reserved exclusively for transmission system operators carrying out their functions;
(-ab) point 14 shall be replaced by the
following: "14.`ancillary services' means all services necessary for access to and the operation of transmission and/or distribution networks and/or LNG facilities and/or storage facilities including load balancing, blending and injection of inert gases, but excluding facilities reserved exclusively for transmission system
operators carrying out their functions;"
Amendment 35 (17) "interconnector" means a transmission line which crosses or spans a border between Member States for the sole purpose of connecting the national transmission systems of these Member States; Common position maintained
(-ac) point 17 shall be replaced by the
following: "17. 'interconnector' means a long- distance gas pipeline which crosses or spans a border between Member States for the main purpose of connecting the national transmission systems of these Member States;"
Article 2 (20) "vertically integrated undertaking" means a natural gas undertaking or a group of natural gas undertakings where the same person or the same persons are entitled, directly or indirectly, to exercise control, and where the undertaking or group of undertakings perform at least one of the functions of transmission, distribution, LNG or storage, and at least one of the functions of production or supply of natural gas;
-
20.'vertically integrated
undertaking' means a natural gas undertaking, or a group of natural gas undertakings where the same person or the same persons are entitled, directly or indirectly, to exercise control within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings*, and where the undertaking or group of undertakings perform at least one of the functions of transmission, distribution, LNG or storage, and at least one of the functions of production or supply of natural gas;"
*
OJ L 145, 30.4.2004, p. 1
(28) "eligible customers" means customers who are free to purchase gas from the supplier of their choice, within the meaning of Article 36;
C5, C6, or C7 of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments5, 6 or 7 of Section C of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments
1, where that instrument 2, where that instrument
-
relates to natural gas; relates to natural gas;
Amendment 36 Not acceptable
-
36.new subpara 1a
For the avoidance of doubt, the long- term transport contract of an undertaking that holds interests in production or supply activities shall not constitute control of a transmission system per se.
Amendment 37 Already covered in Art. 28.1
(ba) the following point shall be
added: "36a. `isolated market' means a Member State that has no interconnection to other Member States' national transmission systems and/or whose gas supply is controlled by a person or persons from a third country;"
Amendment 38 Not acceptable
(bb) the following point shall be
added: "36b. 'project of European interest' means a gas infrastructure project which results in new gas resources becoming available to the Community and in greater diversification of gas supplies in more than one Member
State;"
Amendment 39 Not acceptable
(bc) the following point shall be
added: "36c.'fair and undistorted competition in an open market' means common opportunities and equal access for all providers within the European Union, for which the Member States, national regulatory authorities and the Agency shall be responsible;"
Amendment 40 Not acceptable
(bd) the following point shall be
added: "36d. 'energy poverty' means the situation where the members of a household cannot afford to heat their home to an acceptable standard, based on the levels recommended by the World Health Organisation;"
Amendment 41 Not acceptable
(be) the following point shall be
added: "36e. 'affordable price' means a price defined by Member States at national level in consultation with national regulatory authorities, social partners and relevant stakeholders while taking account of the definition of energy poverty provided for in point 36d;"
Amendment 123 Not acceptable (see new Art. 27a)
(bf) the following point shall be
added: "36f. 'industrial site' means a
privately owned geographical area with a natural gas network managed by one company with a connection to the transmission or distribution
network:
(a)
which predominantly supplies
the industrial activities of the network operator or of connected undertakings, or
(b)
which supplies a limited
number of industrial consumers or customers linked with the industrial activities on the industrial site;
Amendment 43 Article 3
-
2.Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for natural gas undertakings of the Community to national consumers. In relation to security of supply, energy efficiency/demand-side management
(1a) Article 3(2) shall be replaced by the following: "2. Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity and quality [...], and environmental protection, including energy efficiency and climate protection. [...]" Public service obligations and
customer protection
-
2.Having full regard to the
relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies, and environmental protection, including energy efficiency and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for natural gas undertakings of the Community to national consumers. In relation to security of supply, energy efficiency/demand-side management and for the fulfilment of environmental
goals, as referred to in this paragraph, Member States may introduce the implementation of long-term planning, taking into account the possibility of third parties seeking access to the system. and for the fulfilment of environmental goals and goals for energy from renewable sources, as referred to in this paragraph, Member States may introduce the implementation of long-term planning, taking into account the possibility of third parties seeking access to the system.
Amendment 45
3a. Member States shall take appropriate measures, such as benefits in social security systems for ensuring the necessary energy supply to vulnerable customers or support for energy efficiency improvements, to address energy poverty where identified, including in the broader context of poverty. Such measures shall not impede the effective opening of the market set out in Article 36 and market functioning and shall be notified to the Commission, where relevant, in accordance with the provisions of Article 3 (6). This notification shall not include measures taken within the general social security system.
(1c) In Article 3, the following paragraph shall be inserted: "3a. Member States shall take appropriate measures to address energy poverty in national action plans in order to ensure that the number of people suffering energy poverty decreases in real terms and shall communicate such measures to the Commission. Each Member State shall be responsible for providing, in accordance with the principle of subsidiarity, a definition of energy poverty at national level, in consultation with regulatory authorities and stakeholders with reference to Article 2(36d). Such measures may include benefits in social security systems, support to energy efficiency improvements and energy production at the lowest possible prices, and shall not impede the opening of the market set out in Article 23. The Commission shall provide guidance to monitor the impact of such measures on energy poverty, and on the functioning of the
market."
Amendment 46
3b. Member States shall ensure that all customers are entitled to have their gas provided by a supplier, subject to the supplier's agreement, regardless of the Member State in which the supplier is registered, as long as the supplier follows the applicable trading and balancing rules and subject to security of supply requirements. In this regard, Member States shall take all measures to ensure that administrative procedures do not constitute a barrier for supply undertakings already registered in another Member State.
3c. Member States shall ensure that:
(a) where a customer wishes to change supplier, the change is effected by the operator(s) concerned withinthree weeks, and (b) customers are entitled to receive all relevant consumption data. Member States shall ensure that the rights referred to in points (a) and (b) are granted to all customers in a non-discriminatory way as regards cost, effort or time.
(1d) In Article 3, the following paragraph shall be inserted: "3b. Member States shall ensure that all customers are entitled to have their gas provided by a supplier, subject to the supplier's agreement, regardless of the Member State in which the supplier is authorised or otherwise approved. In this regard, Member States shall take all necessary measures to ensure that undertakings which are approved as suppliers in another Member State can supply their citizens without having to comply with any further conditions."
Amendment 132
-
(1b) Article 3(3) shall be replaced by the following:
"3. Member States shall take appropriate measures to protect final customers and [...] shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers, including prohibiting the disconnection of pensioners and disabled people in winter. In this context, Member States shall recognise energy poverty and shall provide definitions of vulnerable customers. Member States shall ensure that rights and obligations linked to vulnerable customers are applied and, in particular, shall take measures to protect final customers in remote areas. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding [...] contractual terms and conditions, general information and dispute settlement mechanisms. Member States shall ensure that the eligible customer is in fact able easily to switch to a new supplier. As regards at least household customers, these measures shall include those set out in Annex A." 3. Member States shall take appropriate measures to protect final customers and to ensure high levels of consumer protection, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers, including appropriate measures to help them avoid disconnection. In this context, they may take appropriate measures to protect customers in remote areas who are connected to the gas system. Member States may appoint a supplier of last resort for customers connected to the gas network. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding general contractual terms and conditions, general information and dispute settlement mechanisms. Member States shall ensure that the eligible customer is effectively able to switch to a new supplier. As regards at least household customers those measures shall include those set out in Annex A. 3. Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers. In this context, each Member State shall define the concept of vulnerable customers which may refer to energy poverty and, where appropriate, to the prohibition of disconnection of such customers in critical times. Member States shall ensure that rights and obligations linked to vulnerable customers are applied. In particular, they shall take appropriate measures to protect final customers in remote areas who are connected to the gas system. Member States may appoint a supplier of last resort for customers connected to the gas network. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. Member States shall ensure that the eligible customer is in fact able easily to switch to a new supplier. As regards at least household customers, those measures shall include those set out in Annex A.
Amendment 47 4. Member States shall implement Common position maintained
(1e) Article 3(4) shall be replaced by the following: appropriate measures to achieve the objectives of social and economic
"4. Member States shall implement appropriate measures to achieve the objectives of social and economic cohesion, with a view to lowering the cost of gas provided to low-income household customers and guaranteeing the same conditions for the customers living in remote areas, and the objectives of environmental protection cohesion and environmental protection, which may include means to combat climate change, and security of supply. Such measures may include, in particular, the provision of adequate economic incentives, using, where appropriate, all existing national and Community tools, for the maintenance and construction of necessary network infrastructure, including interconnection capacity.
[ [ [ [...] ] ] ]. Those measures
include energy efficiency/demand- side management measures and means to combat climate change, and security of supply, and may also include, in particular, the provision of adequate economic incentives, using, where appropriate, all existing national and Community tools, for the maintenance and construction of necessary network infrastructure, including interconnection capacity."
Amendment 48
4a. In order to promote energy efficiency, Member States, or when the Member State has so provided, the regulatory authority shall encourage natural gas undertakings to introduce measures, such as the introduction of intelligent metering systems, to optimise the use of gas, particularly during peak hours.
(1f) In Article 3, the following paragraph shall be inserted: "4a. In order to promote energy efficiency, national regulatory authorities shall mandate natural gas undertakings to introduce pricing formulas which increase in the case of greater levels of consumption and shall ensure the active participation of customers and distribution system operators in system operations by supporting the introduction of measures to optimise the use of gas,
particularly during peak hours. Such pricing formulas, combined with the introduction of smart meters and grids, shall promote energy efficiency behaviour and the lowest possible costs for household customers, in particular household customers suffering energy poverty."
Amendment 133
4b. Member States shall ensure the provision of single points of contact to provide consumers with all necessary information concerning their rights, current legislation and the means of dispute settlement available to them in the event of a dispute. Such contact points may be part of general consumer information points.
Member States shall ensure that an independent mechanism such as an energy ombudsman or a consumer body is in place for an efficient treatment of complaints and out-of- court dispute settlements.
(1g) In Article 3, the following paragraph shall be inserted: "4b. Member States shall provide single points of contact in order to ensure that consumers have access to all necessary information concerning their rights, current legislation and the means of redress available to them in the event of a dispute."
Amendment 49 Not acceptable
(1h) In Article 3, the following paragraph shall be inserted: "5a. The implementation of this Directive shall have no negative consequences for the employment, working conditions and information, consultation and participation rights
of the workers concerned. Member States shall consult the social partners concerned as regards the implementation of any amendments to this Directive to mitigate such negative consequences. The Commission shall report to the sectoral social dialogue committees for gas and for electricity on the consultations and measures taken."
6a. The Commission shall establish, in consultation with relevant stakeholders including Member States, the national regulatory authorities, consumer organisations and natural gas undertakings, a clear and concise Energy Consumer Checklist of practical information relating to energy consumer rights. Member States shall ensure that gas suppliers or distribution system operators, in cooperation with the regulatory authority, take the necessary steps to communicate to all their consumers a copy of the Energy Consumer Checklist and ensure that it is made publicly available.
Article 3 Amendment 50 deleted Accepted
-
7.The Commission may adopt deleted
guidelines for the implementation of this Article. This measure, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny
referred to in Article 30 (3).
Amendment 51 Article 4
2.
(2a) Article 4(2) shall be replaced by the following: "2. Where Member States have a system of authorisation, they shall lay down objective and non- discriminatory criteria which shall be met by an undertaking applying for an authorisation to build and/or operate natural gas facilities or applying for an authorisation to supply natural gas. Member States shall, in any event, not be entitled to bind the authorisation to criteria which give the competent authorities discretionary powers. The non- discriminatory criteria and procedures for the granting of authorisations shall be made public. Member States shall ensure that authorisation procedures for facilities, pipelines and associated equipment take into account the importance of the project for the internal market in energy." Authorisation procedure Where Member States have a
-
2.Where Member States have a system of authorisation, they shall lay down objective and non-discriminatory criteria which shall be met by an undertaking applying for an authorisation to build and/or operate natural gas facilities or applying for an authorisation to supply natural gas. The non-discriminatory criteria and procedures for the granting of authorisations shall be made public. Member States shall ensure that authorisation procedures for facilities, pipelines and associated equipment take into account the importance of the project for the internal market in natural gas where appropriate.
system of authorisation, they shall lay down objective and non-discriminatory criteria which shall be met by an undertaking applying for an authorisation to build and/or operate natural gas facilities or applying for an authorisation to supply natural gas. The non-discriminatory criteria and procedures for the granting of authorisations shall be made public.
-
3.Member States shall ensure that
the reasons for any refusal to grant an authorisation are objective and non-discriminatory and that they are given to the applicant. Reasons for such refusals shall be forwarded to the Commission for information. Member States shall establish a procedure enabling the applicant to appeal against such refusals.
-
4.For the development of newly
supplied areas and efficient operation generally, and without prejudice to Article 37, Member States may decline to grant a further authorisation to build and operate distribution pipeline systems in any particular area once such pipeline systems have been or are proposed to be built in that area and if existing or proposed capacity is not saturated.
Article 5
Monitoring of security of supply
Member States shall ensure the monitoring of security of supply issues. Where Member States consider it appropriate, they may delegate that task to the regulatory authorities referred to in Article 44(1). Such monitoring shall, in particular, cover the supply/demand balance on the national market, the level of expected future demand and available supplies, envisaged additional capacity being planned or under construction, and the quality and level of maintenance of the networks, as well as measures to cover peak demand and to deal with shortfalls of one or more suppliers. The competent authorities shall publish, by 31 July each year, a report outlining the findings resulting from the monitoring of those issues, as well as any measures taken or envisaged to address them and shall forward that report to the Commission forthwith.
Article 5a Amendment 52 Article 6
1.
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1.In order to safeguard a secure 1. In order to safeguard a secure Regional solidarity
supply on the internal market of natural gas, Member States shall cooperate in order to promote regional and bilateral solidarity. supply on the internal market of natural gas, Member States shall, without imposing a disproportionate burden on market participants, cooperate in order to promote regional and bilateral solidarity. 1. In order to safeguard a secure In order to safeguard a secure
supply on the internal market in natural gas, Member States shall cooperate in order to promote regional and bilateral solidarity. supply on the internal market in natural gas, Member States shall, cooperate in order to promote regional and bilateral solidarity.
Suggested as recital: Cooperation for the promotion of regional and bilateral solidarity should not impose a disproportionate burden on or discriminate between market participants.
-
2.Such cooperation shall cover
situations resulting or likely to result in the short term in a severe disruption of supply affecting a Member State. It shall include:
(a)
coordination of national
emergency measures referred to in Article 8 of Council Directive 2004/67/EC of 26 April 2004 concerning measures to safeguard security of natural gas supply
1;
(b) identification and, where
necessary, development or upgrading of electricity and natural gas interconnections; and
(c)
conditions and practical
modalities for mutual assistance.
-
3.The Commission shall be kept Amendment 53 3. The Commission shall be kept 3. The Commission and the other
informed of this cooperation. 3. The Commission, the other informed of such cooperation. Member States shall be kept informed
of such cooperation.
participants shall be kept informed of such cooperation.
-
4.The Commission may adopt Amendment 54 4. The Commission may adopt Common position maintained
guidelines for regional solidarity cooperation. This measure, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30 (3). deleted guidelines for regional cooperation in a spirit of solidarity. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
Article 5b Amendment 55 Article 7
-
1.Member States shall cooperate 1. National regulatory authorities Promotion of regional cooperation Article 7
among themselves for the purpose of integrating their national markets at least at the regional level. In particular, Member States shall promote the cooperation of network operators at a regional level, and foster the consistency of their legal and regulatory framework. The geographical area covered by regional cooperations shall be in line with the definition of geographical areas by the Commission in accordance with Article 2h(3) of Regulation (EC) No1775/2005. shall cooperate among themselves for the purpose of harmonising the market design and integrating their national markets at least at one or more regional levels, as a first and intermediate step towards a fully liberalised internal market for gas. In particular, they shall promote the cooperation of network operators at a regional level and facilitate their integration at regional level with the aim of creating a competitive internal market, facilitating the harmonisation of their legal, regulatory and technical framework and, above all, integrating the gas islands that persist in the European Union. Member States shall also promote cross-border and regional cooperation among national regulatory authorities. 1. Member States shall cooperate Promotion of regional cooperation
among themselves for the purpose of integrating their national markets at least at the regional level. In particular, Member States shall promote the cooperation of transmission system operators at a regional level, and foster the consistency of their legal and regulatory framework. The geographical areas covered by such regional cooperation shall include cooperation in geographical areas defined in accordance with Article 12(3) of Regulation (EC) No .../...*. Such cooperation may cover other geographical areas.
-
1.Member States, and the
regulatory authorities shall cooperate among themselves for the purpose of integrating their national markets at one and more regional levels, as a first step towards a fully liberalised internal market. In particular, the regulatory authorities or another competent body shall promote and facilitate the cooperation of transmission system operators at a regional level with the aim of creating a competitive European market, foster the consistency of their legal and regulatory framework and facilitate integration of the isolated systems forming gas islands that persist in the European Union. The geographical areas covered by such regional cooperation shall include
cooperation in geographical areas defined in accordance with Article 12(3) of Regulation (EC) No .../...*. Such cooperation may cover other geographical areas.
-
2.The Agency shall cooperate 1a. The Agency shall cooperate
with national regulatory authorities and transmission system operators in accordance with Chapters III and IV to ensure the convergence of regulatory frameworks between the regions with the aim of creating a competitive internal market. Where the Agency considers that binding rules on such cooperation are required, it shall make appropriate recommendations. In regional markets, the Agency shall be deemed to be the competent authority in the areas specified in Article 24d. with national regulatory authorities and transmission system operators to ensure the compatibility of regulatory frameworks between the regions with the aim of creating a competitive European market in natural gas. Where the Agency considers that binding rules on such cooperation are required, it shall make appropriate recommendations.
-
2.Member States shall ensure,
through the implementation of this Directive, that transmission system operators have one or more integrated system(s) at regional level covering two or more Member States for capacity allocation and for checking the security of the network.
-
3.If vertically integrated
transmission system operators participate in a joint undertaking established for implementing such cooperation, the joint undertaking shall
establish and implement a compliance programme which sets out the measures to be taken to ensure that discriminatory and anticompetitive conduct is excluded. That compliance programme shall set out the specific obligations of employees to meet the objective of excluding discriminatory and anticompetitive conduct. It shall be subject to the approval of the Agency. Compliance with the programme shall be independently monitored by the compliance officers of the vertically integrated transmission system operators.
Article 8
Technical rules The regulatory authority or another competent body shall ensure that technical safety criteria are defined and that technical rules establishing the minimum technical design and operational requirements for the connection to the system of LNG facilities, storage facilities, other transmission or distribution systems, and direct lines, are developed and made public. These technical rules shall ensure the interoperability of systems and shall be objective and non-discriminatory. The Agency may make appropriate recommendations towards achieving compatibility of these rules, where appropriate. Those rules shall be notified to the
Member States shall ensure that technical safety criteria are defined and that technical rules establishing the minimum technical design and operational requirements for the connection to the system of LNG facilities, storage facilities, other transmission or distribution systems, and direct lines, are developed and made public. These technical rules shall ensure the interoperability of systems and shall be objective and non-discriminatory. They shall be notified to the Commission in accordance with Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the
provision of information in the field of technical standards and regulations and of rules on Information Society ServicesCommission in accordance with Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society Services
1 .
2 .
Article 7 Amendment 56 Article 9 Article 93
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1.(b) the same person or the same Unbundling of transmission systems Accepted
(b) (introductory part) the same person or the same persons are not entitled: persons are not entitled, either individually or jointly: and transmission system operators
1.
(b)
(introductory part) the same
person or persons are not entitled:
(i) to directly or indirectly exercise Amendment 57 (i) directly or indirectly to exercise Common position maintained
control over an undertaking performing any of the functions of production or supply, and to directly or indirectly exercise control or hold any interest in or exercise any right over a transmission system operator or over a transmission system, or (i) directly or indirectly to exercise control over an undertaking performing any of the functions of production or supply, and directly or indirectly to exercise control or exercise any right over a transmission system operator or over a transmission system; or
control over an undertaking performing any of the functions of production or supply, and directly or indirectly to exercise control or hold any interest in or exercise any right over a transmission system operator,
(ii) to directly or indirectly exercise Amendment 58 (ii) directly or indirectly to exercise Common position maintained
-
control over a transmission system operator or over a transmission system, and to directly or indirectly exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply; (ii) directly or indirectly to exercise control over a transmission system operator or over a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply;
-
control over a transmission system operator and directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply;
(c) the same person or the same Amendment 59 (c) the same person or persons are Common position maintained
1 OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18).
2 OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18).
-
persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator or a transmission system, and to directly or indirectly exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply; (c) the same person or persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator or a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply;
and
-
not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator and directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply;
Amendment 60
In spirit already covered in (ii)
(da) the same person or persons are not entitled to operate the transmission system via management contract or exercise influence in any other way of non-ownership, and directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of production or supply.
-
2.The interests and rights referred 2. The rights referred to in points 2. The rights referred to in
to in paragraphs 1(b) shall include, in
particular:
(a) the ownership of part of the capital or of the business assets, or (b) the power to exercise voting rights, or (c) the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, or (d) (b) and (c) of paragraph 1 shall include, in particular:
(a) points (b) and (c) of paragraph 1 shall include, in particular:
(a)
the power to exercise voting the power to exercise voting
rights; or
(b) rights; or
(b)
the power to appoint members the power to appoint members
of the supervisory board, the administrative board or bodies legally representing the undertaking. of the supervisory board, the administrative board or bodies legally representing the undertaking.
(c) the holding of a majority share
the right to obtain dividends or
other shares of the benefits.
1(b), the notion "undertaking paragraph 1, the notion "undertaking performing any of the functions of production or supply" shall include "undertaking performing any of the functions of generation and supply" within the meaning of Directive .../.../EC of the European Parliament and of the Council of ... concerning common rules for the internal market
in electricity
performing any of the functions of production or supply" shall cover "undertaking performing any of the functions of generation and supply" within the meaning of Directive 2003/54/EC
of the European
Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC*, and the terms "transmission system operator" and "transmission system"
shall cover "transmission system operator" and "transmission system"
within the meaning of Directive 2003/54/EC.
*1, and the terms
"transmission system operator" and "transmission system" shall include "transmission system operator" and "transmission system" within the meaning of Directive .../.../EC
**.
-
*OJ L 176, 15.7.2003, p.
37
Amendment 61
3a.
3a. Member States shall monitor Member States shall monitor
the process of unbundling vertically integrated undertakings and shall submit a report to the Commission on the progress achieved. the process of unbundling vertically integrated undertakings and shall submit a report to the Commission
on the progress achieved.
-
5.The obligation set out in Amendment 62 5. The obligation set out in point Common position maintained
paragraph 1(a) is deemed to be fulfilled in a situation where several undertakings which own transmission systems have created a joint venture which acts as a transmission system 5. The obligation set out in (a) of paragraph 1 of this Article shall be deemed to be fulfilled in a situation where two or more undertakings which own transmission systems have created a joint venture which acts as a
paragraph 1(a) is deemed to be fulfilled in a situation where several undertakings which own transmission systems have created a joint venture
-
*OJ: Please insert the number, date and reference to the OJ of the Directive which is contained in 14539/08.
operator in several Member States for the transmission systems concerned.
No other undertaking may be part of the joint venture, unless it has been approved under Article 9a as an independent system operator. which acts as a transmission system operator in several Member States for the transmission systems concerned. transmission system operator in two or more Member States for the transmission systems concerned. No other undertaking may be part of the joint venture, unless it has been approved under Article 15 as an independent system operator or as an independent transmission operator for the purposes of Chapter IV.
Amendment 63 6. For the implementation of this Accepted
5a. Where a person referred to in Article, where the person referred to in points (b), (c) and (d) of paragraph 1 is the Member State or another public body, two separate public bodies exercising control over a transmission system operator or over a transmission system on the one hand, and over an undertaking performing any of the functions of production or supply on the other, shall be deemed not to be the same person or persons.
paragraph 1(b) to (da) is the Member State or another public body, two separate public bodies exercising control over either a transmission system operator or a transmission system on the one hand and an undertaking performing any of the functions of production or supply on the other shall be deemed not to be the same person or persons.
-
6.Member States shall ensure that 7. Member States shall ensure that
commercially sensitive information referred to in Article 10(1) held by a transmission system operator which was part of a vertically integrated undertaking, and the staff of such a transmission system operator, are not transferred to undertakings performing any of the functions of production and supply. neither commercially sensitive information referred to in Article 16 held by a transmission system operator which was part of a vertically integrated undertaking, nor the staff of such a transmission system operator, is transferred to undertakings performing any of the functions of production and supply.
Amendment 64 8. Where on ...*, the transmission common position maintained
6a. Where on the date of entry into system belongs to a vertically integrated undertaking a Member State
force of Directive .../.../EC [ [ [ [amending
Directive 2003/55/EC concerning common rules for the internal market in natural gasmay decide not to apply paragraph 1.
In such case, the Member State concerned shall either:
(a)
] ] ] ], the transmission
system belongs to a vertically integrated undertaking, Member States may decide not to apply paragraph 1.
In such a case, Member States shall
either:
(a)
designate an independent designate an independent system
system operator in accordance with Article 9; or (b) operator in accordance with Article 14,
or (b)
comply with the provisions of comply with the provisions of
Chapter IVa. Vertically integrated undertakings that own a transmission system may not in any event be prevented from taking steps to comply with paragraph
-
1.Chapter IV.
-
9.Where, on ...*, the transmission
system belongs to a vertically integrated undertaking and there are arrangements in place which guarantee more effective independence of the transmission system operator than the provisions of Chapter IV, a Member State may decide not to apply paragraph 1.
-
10.Before an undertaking is
approved and designated as a transmission system operator under paragraph 9 of this Article, it shall be certified according to the procedures laid down in Article 10(4), (5) and (6)
of this Directive and in Article 3 of Regulation (EC) No .../...
**, pursuant
to which the Commission shall verify that the arrangements in place clearly guarantee more effective independence of the transmission system operator than the provisions of Chapter IV.
-
11.Vertically integrated
undertakings which own a transmission system shall not in any event be prevented from taking steps to comply with paragraph 1.
Article 7a deleted (common position maintained)
-
1.Without prejudice to the
international obligations of the Community, transmission systems or transmission system operators shall not be controlled by a person or persons from third countries.
-
2.An agreement concluded with Amendment 65 Not acceptable
one or several third countries to which the Community is a party may allow for a derogation from paragraph 1. 2. An agreement aimed at
establishing a common framework for investing in the energy sector and opening the energy market of a third country, including as regards undertakings established within the European Union, concluded with one or several third countries to which the Community is a party may allow for a derogation from paragraph 1.
Article 10
Designation and certification of
transmission system operators
approved and designated as transmission system operator, it shall be certified according to the procedures laid down in paragraphs 4, 5 and 6 of this Article and in Article 3 of Regulation (EC) No .../...*.
Article 7b 2. Undertakings which own a
-
1.Undertakings which own a transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 9, pursuant to the certification procedure, shall be approved and designated as transmission system operators by Member States. The designation of transmission system operators shall be notified to the Commission and published in the Official Journal of the European Union.
transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 7(1) and 7a, pursuant to the certification procedure below, shall be approved and designated as transmission system operators by Member States. The designation of transmission system operators shall be notified to the Commission and published in the Official Journal of the European Union.
-
2.Without prejudice to the deleted and replaced by Art. 11
international obligations of the Community, where certification is requested by a transmission system owner or transmission system operator controlled by a person or persons from third countries in compliance with Article 7a, it shall be denied unless the transmission system owner or transmission system operator demonstrate that there is no possibility for the entity concerned to be influenced, in violation of Article 7(1),
directly or indirectly by any operator active in the production or supply of gas or electricity or by a third country.
3.
Transmission system operators 3. Transmission system operators
shall notify to the regulatory authority any planned transaction which may require a reassessment of their compliance with Articles 7(1) or 7a. shall notify to the regulatory authority any planned transaction which may require a reassessment of their compliance with the requirements of Article 9.
-
4.Regulatory authorities shall 4. The regulatory authorities shall
monitor the continuing compliance of transmission system operators with Articles 7(1) and 7a. They shall open a certification procedure to ensure such
compliance:
(a) upon notification by the transmission system operator pursuant
to paragraph 3;
(b) on their own initiative where they have knowledge that a planned change in rights or influence over transmission system owners or transmission system operators may lead to an infringement of Articles 7(1) or 7a, or where they have reason to believe that such an infringement may have occurred; or (c) upon reasoned request from the Commission. monitor the continuing compliance of transmission system operators with the requirements of Article 9. They shall open a certification procedure to ensure such compliance:
(a)
upon notification by the
transmission system operator pursuant
to paragraph 3;
(b)
on their own initiative where
they have knowledge that a planned change in rights or influence over transmission system owners or transmission system operators may lead to an infringement of Article 9, or where they have reason to believe that such an infringement may have occurred; or
(c)
upon a reasoned request from
the Commission.
-
6.The explicit or tacit decision on 6. The explicit or tacit decision on
the certification of a transmission system operator shall be notified without delay to the Commission by the regulatory authority, together with all the relevant information with the certification of a transmission system operator shall be notified without delay to the Commission by the regulatory authority, together with all the relevant information with
respect to the decision. respect to that decision. The Commission shall act in accordance with the procedure laid down in Article 3 of Regulation (EC) No .../...*.
-
7.The Commission shall examine the notification as soon as it is received. Within two months after receiving a notification, where the Commission finds that the decision of the regulatory authority raises serious doubts as to its compatibility with Articles 7(1), 7a or 7b(2) it shall decide to initiate proceedings. In such a case, it shall invite the regulatory authority and the transmission system operator concerned to submit comments. Where additional information is sought by the Commission, the two-month-period may be extended by two additional months starting from the receipt of the complete information.
-
8.Where the Commission has decided to initiate proceedings, it shall, within not more than four months of the date of such decision, issue a final decision (a) not to raise objections against the decision of the regulatory authority;
or (b) requiring the regulatory authority concerned to amend or withdraw its decision if it considers that Articles 7(1), 7a or 7b(2) have not been complied with.
-
9.Where the Commission has not Deleted text has been transferred to the Gas
taken a decision to initiate proceedings or a final decision within the time- limits set in paragraphs 7 and 8 respectively, it shall be deemed not to have raised objections against the decision of the regulatory authority.
-
10.The regulatory authority shall comply with the Commission decision to amend or withdraw the certification decision within a period of four weeks and shall inform the Commission accordingly.
11.
Regulatory authorities and the 7. The regulatory authorities and
Commission may request from transmission system operators and undertakings performing any of the functions of production of supply any information relevant for the fulfillment of their tasks under this Article. the Commission may request from transmission system operators and undertakings performing any of the functions of production or supply any information relevant for the fulfilment of their tasks under this Article.
-
12.Regulatory authorities and the 8. The regulatory authorities and
Commission shall preserve the confidentiality of commercially sensitive information. the Commission shall preserve the confidentiality of commercially sensitive information.
-
13.The Commission shall adopt Amendment 66 Deleted text has been transferred to the GasSee the Gas Regulation
guidelines setting out the details of the procedure to be followed for the application of paragraphs 6 to 9. This measure designed to amend non- essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3). deleted Regulation
Amendment 67 Not acceptable
13a. The procedures set out in this Article with particular reference to
the limitations set out in paragraph 2, shall not apply to upstream pipelines solely aimed at directly connecting gas supply networks of countries of origin to a landing point within the territory of the Community, and to their upgrades.
Article 11 Article 111
Certification in relation to third Certification in relation to third
countries countries
-
1.Where certification is requested 1. Where certification is requested
by a transmission system owner or a transmission system operator which is controlled by a person or persons from a third country or third countries, the regulatory authority shall notify the Commission. The regulatory authority shall also notify to the Commission without delay any circumstances that would result in a person or persons from a third country or third countries acquiring control of a transmission system or a transmission system operator.
-
2.by a transmission system owner or a transmission system operator which is controlled by a person or persons from a third country or third countries, the regulatory authority shall notify the Commission. The regulatory authority shall also notify to the Commission without delay any circumstances that would result in a person or persons from a third country or third countries acquiring control of a transmission system or a transmission system operator.
2.
Transmission system operators Transmission system operators
shall notify to the regulatory authority any circumstances that would result in a person or persons from a third country or third countries acquiring control of the transmission system or the transmission system operator.
-
3.shall notify to the regulatory authority any circumstances that would result in a person or persons from a third country or third countries acquiring control of the transmission system or the transmission system operator.
3.
The regulatory authority shall The regulatory authority shall
adopt a draft decision on the adopt a draft decision on the
certification of a transmission system operator within four months from the date of notification by the transmission system operator. It shall refuse the certification if it has not been
demonstrated:
(a) certification of a transmission system operator within four months from the date of notification by the transmission system operator. It shall refuse the certification if it has not been
demonstrated:
(a)
that the entity concerned that the entity concerned
complies with the requirements of Article 9; and (b) complies with the requirements of Article 9; and
(b)
to the regulatory authority or to to the regulatory authority or to
another competent authority designated by the Member State that granting certification will not put at risk the security of energy supply of the Member State and the Community. In considering that question the regulatory authority or other competent authority so designated shall take into
account:
(i) another competent authority designated by the Member State that granting certification will not put at risk the security of energy supply of the Member State and the Community. In considering that question the regulatory authority or other competent authority so designated shall take into
account:
(i)
the rights and obligations of the the rights and obligations of the
Community with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security
of energy supply;
(ii) Community with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security
of energy supply;
(ii)
the rights and obligations of the the rights and obligations of the
Member State with respect to that third country arising under agreements concluded with it, insofar as they are in compliance with Community law; and (iii) other specific facts and circumstances of the case and the third country concerned.
-
4.Member State with respect to that third country arising under agreements concluded with it, insofar as they are in compliance with Community law; and (iii) other specific facts and circumstances of the case and the third country concerned.
4.
The regulatory authority shall The regulatory authority shall
notify the decision to the Commission without delay, together with all the relevant information with respect to that decision.
-
5.notify the decision to the Commission without delay, together with all the relevant information with respect to that decision.
5.
Member States shall provide for Member States shall provide for
the regulatory authority and/or the designated competent authority referred to in point (b) of paragraph 3, before the regulatory authority adopts a decision on the certification, to request an opinion from the Commission on
whether:
(a) the regulatory authority and/or the designated competent authority referred to in point (b) of paragraph 3, before the regulatory authority adopts a decision on the certification, to request an opinion from the Commission on
whether:
(a)
the entity concerned complies the entity concerned complies
with the requirements of Article 9; and (b) with the requirements of Article 9; and
(b)
granting certification will not granting certification will not
put at risk the security of energy supply to the Community.
-
6.put at risk the security of energy supply to the Community.
6.
The Commission shall examine The Commission shall examine
the request referred to in paragraph 5 as soon as it is received. Within a period of two months after receiving the request, it shall deliver its opinion to the national regulatory authority or, if the request was made by the designated competent authority, to that authority.
In preparing the opinion, the Commission may request the views of the Agency, the Member State concerned, and interested parties. In the event that the Commission makes such a request, the two-month period shall be extended by two months.
In the absence of an opinion by the Commission within the period referred to in the first and second the request referred to in paragraph 5 as soon as it is received. Within a period of two months after receiving the request, it shall deliver its opinion to the national regulatory authority or, if the request was made by the designated competent authority, to that authority.
In preparing the opinion, the Commission may request the views of the Agency, the Member State concerned, other Member States whose interests may be affected, and interested parties. In the event that the Commission makes such a request, the two-month period shall be extended by two months.
In the absence of an opinion by the
subparagraphs, the Commission is deemed not to raise objections to the decision of the regulatory authority.
-
7.Commission within the period referred to in the first and second subparagraphs, the Commission shall be deemed not to raise objections to the decision of the regulatory authority.
7.
When assessing whether the When assessing whether the
control by a person or persons from a third country or third countries will put at risk the security of energy supply to the Community, the Commission shall take into account:
(a) control by a person or persons from a third country or third countries will put at risk the security of energy supply to the Community, the Commission shall take into account:
(a)
the specific facts of the case and the specific facts of the case and
the third country or third countries concerned; and (b) the third country or third countries concerned; and
(b)
the rights and obligations of the the rights and obligations of the
Community with respect to that third country or third countries arising under international law, including an agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security of supply.
-
8.Community with respect to that third country or third countries arising under international law, including an agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security of supply.
8.
The national regulatory The national regulatory
authority shall, within a period of two months after the expiry of the period referred to in paragraph 6, adopt its final decision on the certification. In adopting its final decision the national regulatory authority shall take utmost account of the Commission's opinion.
In any event Member States shall have the right to refuse certification where granting certification puts at risk the Member State's security of energy authority shall, within a period of two months after the expiry of the period referred to in paragraph 6, adopt its final decision on the certification. In adopting its final decision the national regulatory authority shall take utmost account of the Commission's opinion.
In any event Member States shall have the right to refuse certification where granting certification puts at risk the Member State's security of energy
supply. Where the Member State has designated another competent authority to assess point (b) of paragraph 3, it may require the national regulatory authority to adopt its final decision in accordance with the assessment of that competent authority. The regulatory authority's final decision and the Commission's opinion shall be published together.
-
9.supply. Where the Member State has designated another competent authority to assess point (b) of paragraph 3, it may require the national regulatory authority to adopt its final decision in accordance with the assessment of that competent authority. The national regulatory authority's final decision and the Commission's opinion shall be published together. Where the final decision differs from the Commission's opinion, the Member State concerned shall provide and publish, together with that decision, the reasoning for such decision.
9.
Nothing in this Article shall
affect the right of Member States to exercise, in compliance with Community law, national legal controls to protect legitimate public security interests.
10.
Nothing in this Article shall
The Commission may adopt affect the right of Member States to exercise, in compliance with Community law, national legal controls to protect legitimate public security interests.
10.
guidelines setting out the details of the procedure to be followed for the application of this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
11.
The Commission may adopt
guidelines setting out the details of the procedure to be followed for the application of this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
11.
This Article, with exception of
point (a) of paragraph 3, shall also apply to Member States which are subject to a derogation under Article
48.
This Article, with exception of
point (a) of paragraph 3, shall also apply to Member States which are subject to a derogation under Article 48.
See also rec. 19
Article 7c Article 12
Designation of storage and LNG Designation of storage and LNG
system operators system operators
Member States shall designate, or shall require natural gas undertakings which own storage or LNG facilities to designate, for a period of time to be determined by Member States having regard to considerations of efficiency and economic balance, one or more system operators. Member States shall designate, or shall require natural gas undertakings which own storage or LNG facilities to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more storage and LNG system operators.
Article 8 Amendment 68 Article 13
1.
-
1.(a) operate, maintain and (a) operate, maintain and develop Tasks of transmission, storage and/or
develop under economic conditions secure, reliable and efficient transmission, storage and/or LNG facilities, with due regard to the environment, and promote energy efficiency and research and innovation notably with respect to ensuring penetration of renewables and dissemination of low carbon technology. under economic conditions secure, reliable and efficient transmission, storage and/or LNG facilities to secure an open market for new entrants, with due regard to the environment. LNG system operators (a) operate, maintain and
-
1.(a) operate, maintain and develop under economic conditions secure, reliable and efficient transmission, storage and/or LNG facilities to secure an open market, with due regard to the environment;
-
develop under economic conditions secure, reliable and efficient transmission, storage and/or LNG facilities, with due regard to the environment;
Amendment 118 (ba) build sufficient cross-border capacity to integrate European transmission infrastructure accommodating all economically reasonable and technically feasible demands for capacity and fulfilling the security of gas supply criteria as set by Member States.
(6a) In Article 8(1) the following point shall be inserted: "(ba) build sufficient interconnection capacity linking their transmission infrastructure in order to meet all reasonable demands for capacity, facilitate an efficient overall market, and fulfil the criteria for security of
supply of gas;"
-
2.Rules adopted by transmission
system operators for balancing the gas transmission system shall be objective, transparent and non-discriminatory, including rules for the charging of system users of their networks for energy imbalance. Terms and conditions, including rules and tariffs, for the provision of such services by transmission system operators shall be established pursuant to a methodology compatible with Article 40(6) in a non-discriminatory and cost-reflective way and shall be published.
Amendment 69 3. Member States may require 3. The regulatory authority or
(6b) Article 8(3) shall be replaced by the following: "3. Member States may, through their national regulatory authorities, require transmission system operators to comply with minimum standards for the maintenance and development of the transmission system, including interconnection capacity. National regulatory authorities should be given broader powers for the purpose of ensuring consumer protection within the European Union." transmission system operators to comply with minimum requirements for the maintenance and development of the transmission system, including interconnection capacity. another competent body may require transmission system operators to comply with minimum standards for the maintenance and development of the transmission system, including interconnection capacity.
Amendment 120 Already covered in the Gas Regulation
(6c) In Article 8, the following paragraph shall be added: "4a. While carrying out their tasks, transmission system operators shall
take into account the codes adopted by the European Network of Transmission System Operators for Gas."
Article 9 Amendment 70 Article 14 Article 141
-
1.Where the transmission system deleted Independent system operators
belongs to a vertically integrated undertaking on entry into force of this Directive, Member States may grant derogations from Article 7(1), provided that an independent system operator is designated by the Member State upon a proposal from the transmission system owner and subject to approval of such designation by the Commission. Vertically integrated undertakings which own a transmission system may not in any event be prevented from taking steps to comply with Article 7(1). 1. Where the transmission system Common position maintained1
belongs to a vertically integrated undertaking on ...
*, Member States
may decide not to apply Article 9(1) and designate an independent system operator upon a proposal from the transmission system owner. Such designation shall be subject to approval
by the Commission.
-
2.The Member State may approve 2. The Member State may approve 2. The Member State may approve
and designate an independent system operator only where:
(a) and designate an independent system operator only where:
(a) and designate an independent system operator only where:
(a)
the candidate operator has the candidate operator has the candidate operator has
demonstrated that it complies with the requirements of Article 7(1)(b) to (d);
(b) demonstrated that it complies with the requirements of Article 9(1)(b), (c) and
(d);
(b) demonstrated that it complies with the requirements of Article 9(1)(b), (c) and
(d);
(b)
the candidate operator has
demonstrated that it has at its disposal the required financial, technical and human resources to carry out its tasks under Article 8; the candidate operator has the candidate operator has
demonstrated that it has at its disposal the required financial, technical, physical and human resources to carry demonstrated that it has at its disposal the required financial, technical, physical and human resources to carry
-
*OJ: Please insert the date of entry into force of this Directive.
1 Compromise proposal related to Art. 14 not endorsed by Coreper of 27 February
(c) the candidate operator has out its tasks under Article 13;
(c) out its tasks under Article 13;
(c)
committed to complying with a ten year network development plan proposed by the regulatory authority;
(d) the candidate operator has the candidate operator has
undertaken to comply with a 10-year network development plan monitored by the regulatory authority;
(d) undertaken to comply with a 10-year network development plan which is consistent with the Community-wide 10-year network development plan referred to in Article 8(3)(b) of Regulation (EC) No .../...
the transmission system owner
has demonstrated its ability to comply with its obligations under paragraph 6.
To this effect, it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity;
(e) the transmission system owner
has demonstrated its ability to comply with its obligations under paragraph 5.
To this end, it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity;
(e)
-
*and
which is monitored by the regulatory authority
(d)
the transmission system owner
the candidate operator has has demonstrated its ability to comply with its obligations under paragraph 5.
To this end, it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity;
(e)
demonstrated its ability to comply with its obligations under Regulation (EC)
No 1775/05 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission network* including the cooperation of transmission system operators at European and regional level. the candidate operator has
demonstrated its ability to comply with its obligations under Regulation (EC)
No .../...
-
*including the cooperation of
transmission system operators at European and regional level.
the candidate operator has
demonstrated its ability to comply with its obligations under Regulation (EC)
No .../...* including the cooperation of transmission system operators at European and regional level.
-
3.Undertakings which have been 3. Undertakings which have been Common position maintained
certified by the regulatory authority as having complied with the requirements of Articles 7a and 9(2) shall be approved and designated as independent system operators by Member States. The certification procedure in Article 7b shall be certified by the regulatory authority as having complied with the requirements of Article 11 and Article 14(2) shall be approved and designated as independent system operators by Member States. The certification procedure in either Article 10 of this
applicable. Directive and Article 3 of Regulation
(EC) No ...
or in Article 11 of this
Directive shall be applicable.
-
4.Where the Commission has deleted Common position maintained
taken a decision in accordance with the procedure in Article 7b and finds that the regulatory authority has not complied with its decision within two months, it shall, within a period of six months, designate, on a proposal from the Agency and after having heard the views of the transmission system owner and the transmission system operator, an independent system operator for a period of 5 years. At any time, the transmission system owner may propose to the regulatory authority the designation of a new independent system operator pursuant to the procedure in Article 9(1).
-
5.Each independent system 4. Each independent system Common position maintained
operator shall be responsible for granting and managing third party access, including the collection of access charges and congestion rents, for operating, maintaining and developing the transmission system, as well as for ensuring the long term ability of the system to meet reasonable demand through investment planning. When developing the network the independent system operator is responsible for planning operator shall be responsible for granting and managing third-party access, including the collection of access charges and congestion charges, for operating, maintaining and developing the transmission system, as well as for ensuring the long-term ability of the system to meet reasonable demand through investment planning. When developing the transmission system the independent system operator shall be responsible
(including authorisation procedure), construction and commissioning of the new infrastructure. For this purpose, it shall act as a transmission system operator in accordance with this Chapter. Transmission system owners may not be responsible for granting and managing third party access, nor for investment planning. for planning (including authorisation procedure), construction and commissioning of the new infrastructure. For this purpose, the independent system operator shall act as a transmission system operator in accordance with this Chapter. The transmission system owner shall not be responsible for granting and managing third-party access, nor for investment planning.
-
6.Where an independent system 5. Where an independent system Common position maintained
operator has been designated, the transmission system owner shall:
(a) operator has been designated, the transmission system owner shall:
(a)
provide all the relevant provide all the relevant
cooperation and support to the independent system operator for the fulfilment of its tasks, including in particular all relevant information;
(b) cooperation and support to the independent system operator for the fulfilment of its tasks, including in particular all relevant information;
(b)
finance the investments decided finance the investments decided
by the independent system operator and approved by the regulatory authority, or give its agreement to financing by any interested party including the independent system operator. The relevant financing arrangements shall be subject to approval by the regulatory authority Prior to this approval, the Regulatory Authority shall consult the asset owner together with other interested parties;
(c) by the independent system operator and approved by the regulatory authority, or give its agreement to financing by any interested party including the independent system operator. The relevant financing arrangements shall be subject to approval by the regulatory authority. Prior to such approval, the regulatory authority shall consult the transmission system owner together with other interested parties;
(c)
provide for the coverage of
liability relating to the network assets that it owns and are managed by the independent system operator, excluding the liability relating to the provide for the coverage of
liability relating to the network assets, excluding the liability relating to the tasks of the independent system
tasks of the independent system operator;
(d) operator; and
(d)
provide guarantees to facilitate
provide guarantees to facilitate financing any network expansions with the exception of those investments where, pursuant to point (b), it has given its agreement to financing by any interested party including the independent system operator.
financing any network expansions with the exception of those investments where, pursuant to paragraph b, it has given its agreement to financing by any interested party including the independent system operator.
-
7.In close cooperation with the 6. In close cooperation with the Common position maintained
regulatory authority, the relevant national competition authority shall be granted all relevant powers to effectively monitor compliance of the transmission system owner with its obligations under paragraph 6. regulatory authority, the relevant national competition authority shall be granted all relevant powers to effectively monitor compliance of the transmission system owner with its obligations under paragraph 5.
Article 9a Amendment 71 Article 15 Common position maintained
-
1.Transmission system owners, deleted Unbundling of transmission system
where an independent system operator has been appointed, and storage system operators which are part of vertically integrated undertakings shall be independent at least in terms of their legal form, organisation and decision making from other activities not relating to transmission and storage. This Article shall only apply to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 19. owner and storage system operator
-
1.A transmission system owner,
where an independent system operator has been appointed, and a storage system operator which are part of vertically integrated undertakings shall be independent at least in terms of their legal form, organisation and decision making from other activities not relating to transmission, distribution and storage. This Article shall apply only to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 32.
-
2.In order to ensure the 2. In order to ensure the
independence of the transmission system owner and storage system operator referred to in paragraph 1, the following minimum criteria shall
apply:
(a) independence of the transmission system owner and storage system operator referred to in paragraph 1, the following minimum criteria shall
apply:
(a)
those persons responsible for the persons responsible for the
management of the transmission system owner and storage system operator may not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to- day operation of the production, distribution and supply of natural gas;
(b) management of the transmission system owner and storage system operator shall not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production and supply of natural gas;
(b)
appropriate measures must be appropriate measures shall be
taken to ensure that the professional interests of persons responsible for the management of the transmission system owner and storage system operator are taken into account in a manner that ensures that they are capable of acting independently;
(c) taken to ensure that the professional interests of persons responsible for the management of the transmission system owner and storage system operator are taken into account in a manner that ensures that they are capable of acting independently;
(c)
the storage system operator shall the storage system operator shall
have effective decision-making rights, independent from the integrated gas undertaking, with respect to assets necessary to operate, maintain or develop the storage facilities. This shall not preclude the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets regulated indirectly in accordance with Article 24c(4) in a have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the storage facilities. This shall not preclude the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets regulated indirectly in accordance with Article 40(6) in a
subsidiary are protected. In particular, this shall enable the parent company to approve the annual financial plan, or any equivalent instrument, of the storage system operator and to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of storage facilities, that do not exceed the terms of the approved financial plan, or any equivalent instrument;
(d) subsidiary are protected. In particular, this shall enable the parent company to approve the annual financial plan, or any equivalent instrument, of the storage system operator and to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of storage facilities, that do not exceed the terms of the approved financial plan, or any equivalent instrument; and
(d)
the transmission system owner the transmission system owner
and storage system operator shall establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The programme shall set out the specific obligations of employees to meet this objective. An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme to the regulatory authority and shall be published. and the storage system operator shall establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme to the regulatory authority and shall be published.
-
3.The Commission may adopt 3. The Commission may adopt
guidelines to ensure full and effective compliance of the transmission system owner and of the storage operator with paragraph 2 of this Article. This guidelines to ensure full and effective compliance of the transmission system owner and of the storage system operator with paragraph 2 of this
measure designed to amend non- essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3). Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
Article 10 Article 16
Confidentiality for transmission system Confidentiality for transmission system
operators and transmission system operators and transmission system
owners owners
-
1.Without prejudice to Article 16 1. Without prejudice to Article 29
or any other legal duty to disclose information, each transmission, storage and/or LNG system operator, and transmission system owners, shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its business, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner, and in particular shall not disclose any commercially sensitive information to the remaining parts of the company, unless this is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbundling it must also be ensured that the transmission owner and the remaining part of the company do not use joint services, apart from purely administrative or IT functions (e.g. no joint legal service).
or any other legal duty to disclose information, each transmission, storage and/or LNG system operator, and each transmission system owner, shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its activities, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner. In particular, it shall not disclose any commercially sensitive information to the remaining parts of the undertaking, unless this is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbundling, Member States shall ensure that the transmission system owner including, in the case of a combined operator, the distribution system operator, and the remaining part of the undertaking do not use joint services, such as joint legal services, apart from purely administrative or IT functions.
Amendment 72
Article 10
2a. Commercially sensitive 2a. Information necessary for
information shall be determined by effective competition and the
using objective and transparent criteria. efficient functioning of the market shall be made public. This obligation is without prejudice to protecting commercially sensitive information.
Amendment 73 Article 25
1.
Article 12(1) shall be replaced by the
following: "1. Each distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas, and for operating, maintaining and developing under economic conditions a secure, reliable and efficient distribution system in its area with due regard for the environment, and for promoting energy efficiency." Tasks of distribution system operators Each distribution system
-
1.Each distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas, and for operating, maintaining and developing under economic conditions a secure, reliable and efficient system in its area, with due regard for the environment and energy efficiency.
operator shall operate, maintain and develop under economic conditions a secure, reliable and efficient system, with due regard for the environment.
-
3.Each distribution system
operator shall provide any other distribution, transmission, LNG, and/or storage system operator with sufficient information to ensure that the transport and storage of natural gas takes place in a manner compatible with the secure and efficient operation of the interconnected system.
Amendment 74 4. Each distribution system 4. Each distribution system
Article 12(4) shall be replaced by the
following: ¨4. Each distribution system operator shall provide system users with the information they need for efficient access to and use of the operator shall provide system users with the information they need for efficient access to the system. operator shall provide system users with the information they need for efficient access to, including use of, the system.
system.¨
Amendment 75
See response to amdt 111point (ia)
In Article 12, the following paragraph shall be inserted: "4a. The distribution system operator shall submit to the relevant regulatory authority, within one year of the entry into force of Directive .../.../EC
[ [ [ [amending Directive 2003/55/EC
concerning common rules for the internal market in natural gas
] ] ] ], a
proposal describing the appropriate information and communication systems to be implemented in order to provide the information referred to in paragraph 4. That proposal shall facilitate, inter alia the use of bi- directional electronic meters, which shall be rolled out to all customers within 10 years after entry into force of that Directive, the active participation of final customers and distributed producers in system operation and the flow of real-time information between distribution and transmission system operators with the aim of optimising the use of all available production, network and demand resources."
Amendment 76 See response to amdt 111point (ia)
(9d) In Article 12, the following paragraph shall be inserted: "4b. Within two years of the entry into force of Directive .../.../EC
[ [ [ [amending Directive 2003/55/EC
concerning common rules for the
internal market in natural gas] ] ] ],
national regulatory authorities shall approve or reject the proposals referred to in paragraph 4a. National regulatory authorities shall ensure full interoperability of the information and communication systems to be implemented. For this purpose, they may issue guidelines and may call for the amendment of the proposals referred to in paragraph
4a."
Amendment 77 See response to amdt 111point (ia)
(9e) In Article 12, the following paragraph shall be inserted: "4c. Prior to notification to the distribution system operator of its decision concerning the proposal referred to in paragraph 4a, the national regulatory authority shall inform the Agency or, if the Agency is not yet in operation, the Commission thereof. The Agency or the Commission shall ensure that the information and communication systems to be implemented facilitate the development of the internal market for gas and do not introduce any new technical barriers."
-
5.Where a distribution system
operator is responsible for balancing the distribution system, rules adopted by it for that purpose shall be objective, transparent and non-discriminatory, including rules for the charging of system users for energy
imbalance. Terms and conditions, including rules and tariffs, for the provision of such services by distribution system operators shall be established pursuant to a methodology compatible with Article 40(6) in a non-discriminatory and cost-reflective way and shall be published.
Amendments 78, 125/rev, 135/rev and 138/rev (9f) The following chapters shall be
inserted: CHAPTER IV CHAPTER IV
Independent Transmission Operator Independent Transmission Operator
"CHAPTER IVa
Independent transmission system
operators
Article 12a
Scope
The provisions of this Chapter shall apply when a Member State decides not to apply Article 7(1) in accordance with Article 7(6a) and does not designate an independent system operator in accordance with Article 9, subject to approval by the Commission.
Article 12b Article 17 Article 17*
Assets, equipment, staff and identity Assets, equipment, staff and identity Assets, equipment, staff and identity
-
1.Transmission system operators 1. Transmission system operators 1. Transmission system operators
shall be equipped with all human, physical and financial resources necessary for fulfilling their obligations under this Directive and carrying out the business of gas shall be equipped with all human, technical, physical and financial resources necessary for fulfilling their obligations under this Directive and carrying out the activity of gas shall be equipped with all financial, technical, physical and human resources necessary for fulfilling their obligations under this Directive and carrying out the activity of gas
Compromise proposal not endorsed by Coreper of 27 February
transmission, provided that:
(a) transmission, in particular:
(a) transmission, in particular:
(a)
assets that are necessary for the assets that are necessary for the assets that are necessary for the
business of gas transmission, including the transmission network, shall be owned by the transmission system operator;
(b) activity of gas transmission, including the transmission system, shall be owned by the transmission system operator;
(b) activity of gas transmission, including the transmission system, shall be owned by the transmission system operator;
(b)
personnel necessary for the personnel necessary for the personnel necessary for the
business of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;
(c) activity of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;
(c) activity of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;
©
leasing of personnel and leasing of personnel and leasing of personnel and
rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited;
(d) rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited. A transmission system operator may, however, render services to the vertically integrated undertaking as long as:
(i) rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited. A transmission system operator may, however, render services to the vertically integrated undertaking as long as:
(i)
appropriate financial resources
for future investment projects and/or for the replacement of existing assets shall be kept available notably by the vertically integrated undertaking following an appropriate request from the transmission system operator in the framework of the annual financial plan referred to in Article 12f;
(e)
the provision of those services the provision of those services
does not discriminate between system users, is available to all system users on the same terms and conditions and does not restrict, distort or prevent competition in production or supply;
and (ii) does not discriminate between system users, is available to all system users on the same terms and conditions and does not restrict, distort or prevent competition in production or supply;
and (ii)
transmission system operators
shall not use the same external contractors or consultants as the vertically integrated undertaking and they must not share information technology systems or equipment, physical premises and security access systems.
the terms and conditions of the the terms and conditions of the
provision of those services are approved by the regulatory authority;
(d) provision of those services are approved by the regulatory authority;
(d)
without prejudice to the without prejudice to the
decisions of the Supervisory Body under Article 20, appropriate financial decisions of the Supervisory Body under Article 20, appropriate financial
1 First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ L 65, 14.3.1968, p. 8).
-
2.resources for future investment projects and/or for the replacement of existing assets shall be made available to the transmission system operator in due time by the vertically integrated undertaking following an appropriate request from the transmission system operator.
-
2.resources for ongoing and future investment projects and/or for the replacement of existing assets shall be made available to the transmission system operator in due time by the vertically integrated undertaking following an appropriate request from the transmission system operator.
2.
The business of gas
transmission shall at least include the following activities in addition to those listed in Article 8:
(a) The activity of gas transmission The activity of gas transmission
shall include at least the following tasks in addition to those listed in Article 13:
(a) shall include at least the following tasks in addition to those listed in Article 13:
(a)
representation of the the representation of the the representation of the
transmission system operator and contacts in relation to third parties and the regulatory authorities;
(b) transmission system operator and contacts to third parties and the regulatory authorities;
(b) transmission system operator and contacts to third parties and the regulatory authorities;
(b)
representation of the the representation of the the representation of the
transmission system operator within the European network of transmission system operators;
(c) transmission system operator within the European Network of Transmission System Operators for Gas ("ENTSO for Gas");
(c) transmission system operator within the European Network of Transmission System Operators for Gas ("ENTSO for Gas");
©
granting and managing granting and managing third-
granting and managing third-third-party access on a non-discriminatory basis between system users or classes of system users;
(d) party access on a non-discriminatory basis between system users or classes
of system users;
(d)
party access;
(d)
the collection of all the the collection of all the
collection of all charges related transmission system related charges including access charges, balancing charges for ancillary services such as gas treatment, purchasing of services (balancing costs, energy for losses);
(e) transmission system related charges including access charges, balancing charges for ancillary services such as gas treatment, purchasing of services (balancing costs, energy for losses);
(e)
to the transmission system including the access charges, balancing charges for ancillary services such as gas treatment, purchasing of services (balancing costs, energy for losses);
(e)
the operation, maintenance and the operation, maintenance and
operation, maintenance and development of a secure, efficient and economic transmission system;
(f) development of a secure, efficient and economic transmission system;
(f)
development of the transmission system;
investment planning ensuring investment planning ensuring
(f) investment planning ensuring the long-term ability of the system to meet reasonable demand and guaranteeing security of supply;
(g) the long-term ability of the system to meet reasonable demand and guaranteeing security of supply;
(g)
the long-term ability of the system to meet reasonable demand and guaranteeing security of supply;
(g)
the setting up of appropriate the setting up of appropriate
setting up appropriate joint joint ventures, including with one or more transmission system operators, gas exchanges, and the other relevant actors pursuing the objective to develop the creation of regional markets or to facilitate the liberalisation process; and (h) joint ventures, including with one or more transmission system operators, gas exchanges, and the other relevant actors pursuing the objectives to develop the creation of regional markets or to facilitate the liberalisation process; and
(h)
ventures, including with one or more transmission system operators, gas exchanges, pursuing the objective to develop the creation of regional markets or to facilitate the liberalisation process;
(h)
all corporate services, including all corporate services, including all corporate services, including
legal services, accountancy and IT services.
-
3.legal services, accountancy and IT services.
-
3.legal services, accountancy and IT services.
3.
Transmission system operators Transmission system operators Transmission system operators
shall be organised in the legal form of a limited liability company as referred to in Article 1 of Directive 68/151/EEC.
-
4.shall be organised in the legal form of a limited liability company as referred to in Article 1 of Council Directive 68/151/EECshall be organised in the legal form of a limited liability company as referred to in Article 1 of Council Directive 68/151/EEC
-
1.1.
The transmission system 4. The transmission system 4. The transmission system
operator shall not, in its corporate identity, communication, branding and premises, create confusion in respect of the separate identity of the vertically integrated undertaking.
-
5.operator shall not, in its corporate identity, communication, branding and premises, create confusion in respect of the separate identity of the vertically integrated undertaking or any part thereof.
-
5.operator shall not, in its corporate identity, communication, branding and premises, create confusion in respect of the separate identity of the vertically integrated undertaking or any part thereof.
5.
The accounts of transmission The transmission system The transmission system
system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part of it.
operator shall not share IT systems or equipment, physical premises and security access systems with any part of the vertically integrated undertaking, nor use the same consultants or external contractors for IT systems or equipment, and security access systems.
-
6.operator shall not share IT systems or equipment, physical premises and security access systems with any part of the vertically integrated undertaking nor use the same consultants or external contractors for IT systems or equipment, and security access systems.
6.
The accounts of transmission The accounts of transmission
system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part of it. system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part of it.
1 First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ L 65, 14.3.1968, p. 8).
Article 12c Article 18 Article 18
Independence of the transmission Independence of the transmission Independence of the transmission
system operator system operator system operator
-
1.Without prejudice to the powers 1. Without prejudice to the 1. Without prejudice to the
of the members of the supervisory body appointed by the vertically integrated undertaking under Article 12f, the transmission system operator shall have effective decision-making rights, independent from the vertically integrated undertaking, with respect to assets necessary to operate, maintain or develop the network. The transmission system operator shall have the power to raise money on the capital market in particular through borrowing and capital increase in the framework of the annual financial plan referred to in Article 12f.
-
2.decisions of the Supervisory Body under Article 20, the transmission system operator shall have:
(a) decisions of the Supervisory Body under Article 20, the transmission system operator shall have:
(a)
effective decision-making rights, effective decision-making rights,
independent from the vertically integrated undertaking, with respect to assets necessary to operate, maintain or develop the transmission system; and (b) independent from the vertically integrated undertaking, with respect to assets necessary to operate, maintain or develop the transmission system; and
(b)
the power to raise money on the the power to raise money on the
capital market in particular through borrowing and capital increase.
-
2.capital market in particular through borrowing and capital increase.
2.
Subsidiaries of the vertically The transmission system The transmission system
integrated undertaking performing functions of production or supply shall not have any direct or indirect shareholding in the transmission operator shall at all times act so as to ensure it has the resources it needs in order to carry out the activity of transmission properly and efficiently operator shall at all times act so as to ensure it has the resources it needs in order to carry out the activity of transmission properly and efficiently
-
*OJ: Please insert the number of the Regulation which is contained in 14548/08.
system operator. The transmission system operator shall neither hold direct or indirect shares in any subsidiary of the vertically integrated undertaking performing functions of production or supply, nor receive dividends or any other financial benefit from such a subsidiary except for the revenues derived from the use
of the network.
-
3.and develop and maintain an efficient, secure and economic transmission system.
-
3.and develop and maintain an efficient, secure and economic transmission system.
3.
The overall management Subsidiaries of the vertically Subsidiaries of the vertically
structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator as referred to in this Chapter. The vertically integrated undertaking shall not determine, whether directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day-to-day activities of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the 10-year investment plan developed pursuant to Article 12h.
-
4.integrated undertaking performing functions of production or supply shall not have any direct or indirect shareholding in the transmission system operator. The transmission system operator shall neither have any direct or indirect shareholding in any subsidiary of the vertically integrated undertaking performing functions of production or supply, nor receive dividends or any other financial benefit from that subsidiary. integrated undertaking performing functions of production or supply shall not have any direct or indirect shareholding in the transmission system operator. The transmission system operator shall neither have any direct or indirect shareholding in any subsidiary of the vertically integrated undertaking performing functions of production or supply, nor receive dividends or any other financial benefit from that subsidiary.
Any commercial and financial 4. The overall management 4. The overall management
relations between the vertically integrated undertaking and the transmission system operator, including loans from the transmission structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator in structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator in
system operator to the vertically integrated undertaking, shall be subject to market conditions. The transmission system operator shall keep detailed records of such commercial and financial relations and make them available to the regulatory authority on request.
-
5.compliance with this Chapter. The vertically integrated undertaking shall not determine, directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day to day activities of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the 10-year network development plan developed pursuant
to Article 22.
-
5.compliance with this Chapter. The vertically integrated undertaking shall not determine, directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day to day activities of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the 10-year network development plan developed pursuant
to Article 22.
5.
The transmission system In fulfilling their tasks in Article In fulfilling their tasks in Article
operator shall submit to the regulatory authority all commercial and financial agreements with the vertically integrated undertaking.
-
6.13 and Article 17(2) of this Directive, and in complying with Article 13(1), Article 14(1)(a), Article 16(2), (3) and (5), Article 18(6) and Article 21(1) of Regulation (EC) No .../...*, transmission system operators shall not discriminate against different persons or entities and shall not restrict, distort or prevent competition in production or supply.
-
6.13 and Article 17(2) of this Directive, and in complying with Article 13(1), Article 14(1)(a), Article 16(2), (3) and (5), Article 18(6) and Article 21(1) of Regulation (EC) No .../...*, transmission system operators shall not discriminate against different persons or entities and shall not restrict, distort or prevent competition in production or supply.
6.
The transmission system Any commercial and financial Any commercial and financial
operator shall inform the regulatory authority of the available financial resources referred to in Article 12b(1)(d).
relations between the vertically integrated undertaking and the transmission system operator, including loans from the transmission system operator to the vertically integrated undertaking, shall comply with market conditions. The transmission system operator shall keep detailed records of such commercial and financial relations and make them available to the regulatory authority upon request. relations between the vertically integrated undertaking and the transmission system operator, including loans from the transmission system operator to the vertically integrated undertaking, shall comply with market conditions. The transmission system operator shall keep detailed records of such commercial and financial relations and make them available to the regulatory authority upon request.
-
7.An undertaking which has been 7. The transmission system 7. The transmission system
certified by the regulatory authority as complying with the requirements of this Chapter shall be approved and designated as a transmission system operator by the Member State concerned. The certification procedure in Article 7b shall be applicable.
-
8.operator shall submit for approval by the regulatory authority all commercial and financial agreements with the vertically integrated undertaking. operator shall submit for approval by the regulatory authority all commercial and financial agreements with the vertically integrated undertaking.
-
8.The transmission system 8. The transmission system
Transparency shall be operator shall inform the regulatory authority of the financial resources, referred to in Article 17(1)(d), available for future investment projects and/or for the replacement of existing assets. operator shall inform the regulatory authority of the financial resources, referred to in Article 17(1)(d), available for ongoing and future investment projects and/or for the replacement of existing assets.
mandatory to ensure non- discrimination, in particular in relation to references for tariffs, third-party access services, capacity allocation and balancing. Vertically integrated undertaking shall be required to refrain from any activities that impede the transmission system operators in fulfilment of those obligations.
-
9.The vertically integrated 9. The vertically integrated
undertaking shall refrain from any action impeding or prejudicing the transmission system operator from complying with its obligations in this Chapter and shall not require the transmission system operator to seek permission from the vertically integrated undertaking in fulfilling those obligations.
-
10.undertaking shall refrain from any action impeding or prejudicing the transmission system operator from complying with its obligations in this Chapter and shall not require the transmission system operator to seek permission from the vertically integrated undertaking in fulfilling those obligations.
10.
An undertaking which has been An undertaking which has been
certified by the regulatory authority as being in compliance with the requirements of this Chapter shall be approved and designated as a transmission system operator by the certified by the regulatory authority as being in compliance with the requirements of this Chapter shall be approved and designated as a transmission system operator by the
Member State concerned. The certification procedure in either Article 10 of this Directive and Article 3 of Regulation (EC) No .../...* or in Article 11 of this Directive shall apply.
Member State concerned. The certification procedure in either Article 10 of this Directive and Article 3 of Regulation (EC) No .../...* or in Article 11 of this Directive shall apply.
11.
Transparency and non-
discrimination shall be ensured, in particular in relation to the tariffs, third-party access, capacity allocation and balancing services. (This requirement should apply to all three unbundling options.)
Article 12d Article 19 Article 19
Independence of staff and Independence of the staff and the Independence of the staff and the
management of the transmission management of the transmission management
system operator system operator of the transmission system operator
-
1.Decisions regarding 1. Decisions regarding the 1. Decisions regarding the
appointment and renewal, working conditions including remuneration and termination of the term of office of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the supervisory body of the transmission system operator appointed in accordance with Article 12f.
-
2.appointment and renewal, working conditions including remuneration, and termination of the term of office, of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the Supervisory Body of the transmission system operator appointed in accordance with Article
-
20.2. appointment and renewal, working conditions including remuneration, and termination of the term of office, of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the Supervisory Body of the transmission system operator appointed in accordance with Article
-
20.2.
The identity and the conditions The identity of, and the The identity of, and the
governing the term, the duration and the termination of office of the persons nominated by the supervisory body for appointment or renewal as persons responsible for the conditions governing the term, the duration and the termination of office of, the persons nominated by the Supervisory Body for appointment or renewal as persons responsible for the conditions governing the term, the duration and the termination of office of, the persons nominated by the Supervisory Body for appointment or renewal as persons responsible for the
management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if, within a period of three weeks after notification, the regulatory authority has not objected to them. The regulatory authority may object if serious doubts arise as to the professional independence of a nominated person responsible for the management and/or member of the administrative bodies, or in the case of premature termination of his/her term of office, if serious doubts exist regarding its justification.
-
3.executive management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if the regulatory authority has raised no objections within three weeks of notification. The regulatory authority may object to the decisions referred to in paragraph 1
where:
(a) executive management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if the regulatory authority has raised no objections within three weeks of notification. The regulatory authority may object to the decisions referred to in paragraph 1
where:
(a)
doubts arise as to the doubts arise as to the
professional independence of a nominated person responsible for the management and/or member of the administrative bodies; or (b) professional independence of a nominated person responsible for the management and/or member of the administrative bodies; or
(b)
in the case of premature in the case of premature
termination of a term of office, doubts exist regarding the justification of such premature termination.
-
3.termination of a term of office, doubts exist regarding the justification of such premature termination.
3.
The persons responsible for the No professional position or No professional position or
management and/or the members of the administrative bodies of the transmission system operator appointed by the supervisory body shall hold no professional position or responsibility, interest or business relationship, directly or indirectly, in or with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator for a responsibility, interest or business relationship, directly or indirectly, with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator shall be exercised for a period of three years before the appointment of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator responsibility, interest or business relationship, directly or indirectly, with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator shall be exercised for a period of three years before the appointment of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator
period of five years before their appointment.
-
4.who are subject to this subparagraph. The first subparagraph shall apply to the majority of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator. The persons responsible for the management and/or members of the administrative bodies of the transmission system operator, who are not subject to the provisions set out in the first subparagraph, shall have exercised no management or other relevant activity in the vertically integrated undertaking for a period of at least six months before their appointment.
-
4.who are subject to this subparagraph. [...]
4.
The persons responsible for the The persons responsible for the
management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no other professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders.
-
5.management and/or members of the administrative bodies, and employees of the transmission system operator shall have no other professional position or responsibility, interest or business relationship, directly or indirectly, with any other part of the vertically integrated undertaking or with its controlling shareholders.
-
5.The persons responsible for the
management and/or members of the administrative bodies, and employees of the transmission system operator shall have no other professional position or responsibility, interest or business relationship, directly or indirectly, with any other part of the vertically integrated undertaking or with its controlling shareholders.
5.
The persons responsible for the The persons responsible for the
management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive financial benefit from any part of the vertically integrated undertaking, whether directly or indirectly, other than the transmission system management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive any financial benefit, directly or indirectly, from any part of the vertically integrated undertaking other than the transmission system operator. Their The persons responsible for the
management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive any financial benefit, directly or indirectly, from any part of the vertically integrated undertaking other than the transmission system operator. Their
operator. Their remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator.
-
6.remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator.
-
6.remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator.
6.
Effective rights of appeal to the Effective rights of appeal to the Effective rights of appeal to the
regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term
of office.
-
7.regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term of office.
-
7.regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term of office.
7.
After termination of their term After termination of their term After termination of their term
of office in the transmission system operator, the persons responsible for its management and/or members of its administrative bodies shall have no professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking other than the transmission system operator, or its controlling shareholders for a period of no less than five years.
of office in the transmission system operator, the persons responsible for its management and/or members of its administrative bodies shall have no professional position or responsibility, interest or business relationship with any part of the vertically integrated undertaking other than the transmission system operator, or with its controlling shareholders for a period of not less than four years.
-
8.of office in the transmission system operator, the persons responsible for its management and/or members of its administrative bodies shall have no professional position or responsibility, interest or business relationship with any part of the vertically integrated undertaking other than the transmission system operator, or with its controlling shareholders for a period of not less than four years.
8.
The second subparagraph of Paragraph 3 shall apply to the
paragraph 3 and paragraph 7 shall be applicable to all the persons belonging to the executive management and to those directly reporting to them on matters related to the operation, maintenance or development of the network. majority of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator.
The persons responsible for the management and/or members of the
administrative bodies of the transmission system operator, who are not subject to paragraph 3, shall have exercised no management or other relevant activity in the vertically integrated undertaking for a period of at least six months before their appointment.
The first subparagraph of this paragraph and paragraphs 4 to 7 shall be applicable to all the persons belonging to the executive management and to those directly reporting to them on matters related to the operation, maintenance or development of the network.
Article 12e common position maintained
Trustee
-
1.An independent Trustee shall
be appointed by the regulatory authority on the proposal and at the expense of the vertically integrated undertaking. The Trustee shall act exclusively in the legitimate interest of the vertically integrated undertaking in the preservation of the asset value of the transmission system operator, while safeguarding the independence of the transmission system operator from the vertically integrated undertaking. In the exercise of its functions, the Trustee shall have no regard to the interest of the production and supply business of the
vertically integrated undertaking.
2.
The Trustee shall have no
professional position or responsibility, interest or business relationship, directly or indirectly, in or with the vertically integrated undertaking or any part thereof, its controlling shareholders, or any undertaking performing functions of production or supply, for a period of 5 years before its appointment. The terms of the mandate of the Trustee, including the duration, the conditions for termination and the financial conditions, shall be subject to approval by the national regulatory authority. During its mandate, the Trustee may have no other professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders. Following termination of the mandate, the Trustee shall have no professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or its controlling shareholders for a period of no less than five years.
3.
The Trustee shall be
responsible for:
(a) the appointment, renewal and
dismissal of the members, other than those referred to in Article 12f(2)(a), of the supervisory body of the transmission system operator; and (b) the exercise of its voting rights in the supervisory body.
Article 12f Article 20 Common position maintained
Supervisory body Supervisory Body
-
1.The transmission system 1. The transmission system
operator shall have a supervisory body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual financial plan, the level of indebtedness of the transmission system operator and the amount of dividends distributed to shareholders.
-
2.operator shall have a Supervisory Body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual and longer-term financial plans, the level of indebtedness of the transmission system operator and the amount of dividends distributed to shareholders. The decisions falling under the remit of the Supervisory Body shall exclude those that are related to the day to day activities of the transmission system operator and management of the network, and in relation to activities necessary for the preparation of the 10-year network development plan developed pursuant
to Article 22.
2.
The supervisory body shall be The Supervisory Body shall be
composed of:
(a) composed of members representing the vertically integrated undertaking, members representing third party shareholders and, where the relevant legislation of a Member State so
members representing the
vertically integrated undertaking,
(b)
members representing third-
(c) members representing the provides, members representing other interested parties such as employees of the transmission system operator.
3.
transmission system operator,
(d)
the Trustee, and
(e) where the relevant legislation of
a Member State so provides, members representing other interested parties such as employees of the transmission system operator.
3.
The Trustee shall have the right The first subparagraph of Article
of veto with respect to decisions that in his/her view may significantly reduce the asset value of the transmission system operator. When assessing whether a decision may significantly reduce the value of the assets, the annual financial plan and the amount of debts of the transmission system operator shall be of particular importance. In the event that two thirds of the members of the supervisory body overrule such veto, Article 12h(7) shall apply.
-
4.19(2), the first subparagraph of Article 19(3) and Article 19(4) to (7) shall apply to at least half of the members of the Supervisory Body minus one. Point (b) of the second subparagraph of Article 19(2) shall apply to all the members of the Supervisory Body.
Article 12d(2) to (7) shall apply
to the members of the supervisory body.
Article 12g Article 21 Article 21
Compliance programme and Compliance programme and Compliance programme and
compliance officer compliance officer compliance officer
-
1.Member States shall ensure 1. Member States shall ensure that 1. Member States shall ensure that
that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that
that discriminatory conduct is excluded, and ensure that the compliance with this programme is adequately monitored. The programme shall set out the specific obligations of employees to meet this objective. It shall be subject to approval by the regulatory authority. Without prejudice to the powers of the national regulatory authority, compliance with the programme shall be independently monitored by the compliance officer.
-
2.discriminatory conduct is excluded, and ensure that the compliance with that programme is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. It shall be subject to approval by the regulatory authority. Without prejudice to the powers of the national regulator, compliance with the program shall be independently monitored by a compliance officer.
-
2.discriminatory conduct is excluded, and ensure that the compliance with that programme is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. It shall be subject to approval by the regulatory authority. Without prejudice to the powers of the national regulator, compliance with the program shall be independently monitored by a compliance officer.
2.
The supervisory body shall The compliance officer shall be The compliance officer shall be
appoint a compliance officer. The compliance officer may be a natural or legal person. Article 12d(2) to (7) shall apply to the compliance officer. The regulatory authority may object to the appointment of a compliance officer for reasons of lack of independence or professional capacity.
-
3.appointed by the Supervisory Body. The compliance officer may be a natural or legal person. Article 19 (2)
to (7) shall apply to the compliance officer. The regulatory authority may object to the appointment of a compliance officer for reasons of lack of independence or professional capacity.
-
3.appointed by the Supervisory Body. The compliance officer may be a natural or legal person. Article 19(2) to (8) shall apply to the compliance officer. The regulatory authority may object to the appointment of a compliance officer for reasons of lack of independence or professional capacity.
3.
The compliance officer shall be The compliance officer shall be The compliance officer shall be
in charge of:
(a) in charge of:
(a) in charge of:
(a)
monitoring the implementation monitoring the implementation monitoring the implementation
of the compliance programme;
(b) of the compliance programme;
(b) of the compliance programme;
(b)
elaborating an annual report, elaborating an annual report, elaborating an annual report,
setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority;
(c) setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority;
(c) setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority;
(c)
reporting to the supervisory reporting to the Supervisory reporting to the Supervisory
body and issuing recommendations Body and issuing recommendations on Body and issuing recommendations on
on the compliance programme and its implementation;
(d) the compliance programme and its implementation;
(d) the compliance programme and its implementation;
(d)
notifying the regulatory notifying the regulatory
authority on any substantial breaches with regard to the implementation of the compliance programme; and (e) authority on any substantial breaches with regard to the implementation of the compliance programme;
(e)
reporting to the national
regulatory authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator.
-
4.The compliance officer shall submit the proposed decisions on the investment plan or on individual investments in the network to the national regulatory authority. Such decisions shall be submitted no later than when the management and/or the competent administrative body of the transmission system operator submit them to the supervisory body.
-
5.reporting to the regulatory reporting to the regulatory
authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator.
-
4.authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator, and (f) reporting to the regulatory authority on compliance of the persons responsible for management and members of the administrative bodies with article 19 paragraphs (3), (4), (5), (7) and (8).
4.
The compliance officer shall The compliance officer shall
submit the proposed decisions on the investment plan or on individual investments in the network to the regulatory authority. This shall occur at the latest when the management and/or the competent administrative body of the transmission system operator submits them to the Supervisory Body.
-
5.submit the proposed decisions on the investment plan or on individual investments in the network to the regulatory authority. This shall occur at the latest when the management and/or the competent administrative body of the transmission system operator submits them to the Supervisory Body.
5.
The compliance officer shall Where the vertically integrated Where the vertically integrated
notify the national regulatory authority in the event that the vertically integrated undertaking, in the general assembly or through the vote of the members of its supervisory body, has prevented the adoption of a decision with the effect of preventing or delaying investments in the undertaking, in the general assembly or through the vote of the members of the Supervisory Body it has appointed, has prevented the adoption of a decision with the effect of preventing or delaying investments in the network, the compliance officer shall report this to the regulatory authority. undertaking, in the general assembly or through the vote of the members of the Supervisory Body it has appointed, has prevented the adoption of a decision with the effect of preventing or delaying investments in the network, the compliance officer shall report this to the regulatory authority.
network.
6.
6.
6.
The conditions governing the The conditions governing the The conditions governing the
mandate or the employment conditions of the compliance officer shall be subject to the approval of the regulatory authority and shall ensure the independence of the compliance officer.
-
7.mandate or the employment conditions of the compliance officer shall be subject to approval by the regulatory authority and shall ensure the independence of the compliance officer.
-
7.mandate or the employment conditions of the compliance officer shall be subject to approval by the regulatory authority and shall ensure the independence of the compliance officer.
7.
The compliance officer shall The compliance officer shall The compliance officer shall
regularly report, either orally or in writing, to the national regulatory authority and shall have the right regularly to report, either orally or in writing, to the supervisory body of the transmission system operator.
-
8.report regularly, either orally or in writing, to the regulatory authority and shall have the right to report regularly, either orally or in writing, to the Supervisory Body of the transmission system operator.
-
8.report regularly, either orally or in writing, to the regulatory authority and shall have the right to report regularly, either orally or in writing, to the Supervisory Body of the transmission system operator.
8.
The compliance officer may The compliance officer may The compliance officer may
attend all meetings of the management or administrative bodies of the transmission system operator and those of the supervisory body and the general assembly. The compliance officer shall attend all meetings that address the following matters:
(a) attend all meetings of the management or administrative bodies of the transmission system operator, and those of the Supervisory Body and the general assembly. The compliance officer shall attend all meetings that address the following matters:
(a) attend all meetings of the management or administrative bodies of the transmission system operator, and those of the Supervisory Body and the general assembly. The compliance officer shall attend all meetings that address the following matters:
(a)
conditions for access to the conditions for access to the conditions for access to the
network, as defined in Regulation (EC) No 1775/2005, in particular regarding tariffs, third-party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b) network, as defined in Regulation (EC)
No .../...*, in particular regarding tariffs, third party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b) network, as defined in Regulation (EC)
No .../...*, in particular regarding tariffs, third party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b)
projects undertaken in order to projects undertaken in order to projects undertaken in order to
operate, maintain and develop the transmission grid system, including investments in new transport connections, in expansion of capacity operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity
and in optimisation of existing capacity;
(c) and in optimisation of existing capacity;
(c) and in optimisation of existing capacity;
(c)
energy purchases or sales energy purchases or sales energy purchases or sales
necessary for the operation of the transmission system.
-
9.necessary for the operation of the transmission system.
-
9.necessary for the operation of the transmission system.
9.
The compliance officer shall The compliance officer shall The compliance officer shall
monitor the compliance of the transmission system operator with Article 10.
-
10.monitor the compliance of the transmission system operator with Article 16.
-
10.monitor the compliance of the transmission system operator with Article 16.
10.
The compliance officer shall The compliance officer shall The compliance officer shall
have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of its task.
-
11.have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of his task.
-
11.have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of his task.
11.
After prior approval by the After prior approval by the After prior approval by the
regulatory authority, the supervisory body may dismiss the compliance officer.
-
12.regulatory authority, the Supervisory Body may dismiss the compliance officer.
-
12.regulatory authority, the Supervisory Body may dismiss the compliance officer. It shall dismiss the compliance officer for reasons of lack of independence or professional capacity upon request of the regulatory authority.
12.
Obligations of the transmission The compliance officer shall The compliance officer shall
system operator and vertically integrated undertaking in particular for commercial and financial agreements between transmission system operator and vertically integrated undertaking should only be notified to the national regulatory authority without the need for approval. The appointment and working conditions of management and of the compliance officer shall be notified to the regulatory authority without the need for approval. have access to the offices of the transmission system operator without prior announcement. have access to the offices of the transmission system operator without prior announcement and have all the resources necessary for fulfilling his/her obligations.
Article 12h Article 22 Common position maintained
Network development and powers to Network development and powers to
make investment decisions make investment decisions
-
1.Every year, transmission system 1. Every year, transmission system
operators shall submit to the regulatory authority a 10-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. The plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply.
-
2.operators shall submit to the regulatory authority a 10-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. The plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply.
2.
The 10-year network The 10-year network
development plan shall in particular:
(a) development plan shall, in particular:
(a)
indicate to market participants indicate to market participants
the main transmission infrastructures that need to be built or upgraded over the next ten years;
(b) the main transmission infrastructure that need to be built or upgraded over the next ten years;
(b)
contain all the investments contain all the investments
already decided and identify new investments which have to be executed in the next three years;
(c) already decided and identify new investments which have to be executed in the next three years; and
(c)
provide for a time frame for all provide for a time frame for all
investment projects.
-
3.investment projects.
3.
When elaborating the 10-year When elaborating the 10-year
network development plan, the transmission system operator shall make reasonable assumptions about the evolution of its production, supply, consumption and exchanges with other countries, taking into account investment plans for regional and EU-wide networks, as well as network development plan, the transmission system operator shall make reasonable assumptions about the evolution of the production, supply, consumption and exchanges with other countries, taking into account investment plans for regional and Community-wide networks, as well as
investment plans for storage and LNG regasification facilities.
-
4.investment plans for storage and LNG regasification facilities.
4.
The national regulatory The regulatory authority shall
authority shall consult all actual or potential network users on the 10-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential users may be required to substantiate such claims. It shall publish the result of the consultation process, in particular possible needs for investments.
-
5.consult all actual or potential system users on the 10-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential system users may be required to substantiate such claims. The regulatory authority shall publish the result of the consultation process, in particular possible needs for investments.
5.
The national regulatory
authority shall examine whether the 10-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the Community-wide 10-year network development plan referred to in Article 2c(1) of Regulation (EC) No 1775/2005. If any doubt arises as to the consistency with the Community- wide 10-year network development plan, the regulatory authority shall consult the Agency. The regulatory authority may require the transmission system operator to amend its plan.
-
6.The regulatory authority shall
examine whether the 10-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the non-binding Community-wide 10-year network development plan referred to in Article 8(3)(b) of Regulation (EC) No .../...*.
If any doubt arises as to the consistency with the non-binding Community-wide 10-year network development plan, the regulatory authority shall consult the Agency. The regulatory authority may require the transmission system operator to amend its plan.
6.
The regulatory authority shall
monitor and evaluate the implementation of the 10-year network development plan.
-
7.The regulatory authority shall
monitor and evaluate the implementation of the 10-year network development plan.
7.
In circumstances where the
transmission system operator, other In circumstances where the
than for overriding reasons beyond its control, does not execute an investment, which, according to the 10-year network development plan, was supposed to be executed in the following three years, Members States shall ensure that the regulatory authority has the obligation to take at least one of the following measures to ensure that the investment in question is made:
(a) transmission system operator, other than for overriding reasons beyond its control, does not execute an investment, which, under the 10-year network development plan, was to be executed in the following three years, Member States shall ensure that the regulatory authority is required to take at least one of the following measures to ensure that the investment in question is made if such investment is still relevant on the basis of the most recent 10-year network development
plan:
(a)
require the transmission system to require the transmission
operator to execute the investments in question in coherence with the annual financial plan referred to in Article 12f, or, (b) system operator to execute the investments in question;
(b)
to organise a tender procedure
organise a tender procedure open to any investors for the investment in question; or
(c)
open to any investors for the investment in question. When the regulatory authority has made use of its powers under point (b), it may require the transmission system operator to accept the
following:
-
-third-party financing,
-
-third-party construction,
-
-building the respective new assets,
-
-operating the respective new asset. The transmission system operator shall provide the investors with all information needed to realise the investment, connect new assets to the transmission network and generally
to oblige the transmission
system operator to accept a capital increase to finance the necessary investments and allow independent investors to participate in the capital. When the regulatory authority has made use of its powers under point (b)
of the first subparagraph, it may oblige the transmission system operator to agree to one or more of the following:
(a) financing by any third party;
(b) construction by any third party;
(c) building the new assets
concerned itself;
(d)
make its best efforts to facilitate the implementation of the investment project. The relevant financial arrangements shall be subject to approval by the national regulatory authority.
-
8.concerned itself. The transmission system operator shall provide the investors with all information needed to realise the investment, shall connect new assets to the transmission network and shall generally make its best efforts to facilitate the implementation of the investment project. The relevant financial arrangements shall be subject to approval by the regulatory authority.
8.
In the event that the national
regulatory authority makes use of its powers under paragraph 7, the relevant tariff regulations shall cover the costs of the investments in question.
When the regulatory authority
has made use of its powers under the first subparagraph of paragraph 7, the relevant tariff regulations shall cover the costs of the investments in question.
Article 12i Article 23 Common position maintained
Decision-making powers regarding Decision-making powers regarding the
the connection of storage facilities, connection of storage facilities, LNG
LNG regasification facilities and regasification facilities and industrial
industrial consumers to the customers to the transmission system
transmission network
1.
-
1.Transmission system operators The transmission system
shall be required to establish and publish transparent and efficient procedures and tariffs for non- discriminatory connection of storage facilities, LNG regasification facilities and industrial consumers to the network. The procedures shall be subject to approval by the regulatory authority.
-
2.operator shall establish and publish transparent and efficient procedures and tariffs for non-discriminatory connection of storage facilities, LNG regasification facilities and industrial customers to the transmission system. Those procedures shall be subject to approval by the regulatory authority.
2.
Transmission system operators The transmission system
shall not be entitled to refuse the operator shall not be entitled to refuse
connection of a new storage facility, LNG regasification facility or industrial consumer on the grounds of possible future limitations to available network capacities or additional costs linked with necessary capacity increase. The transmission system operator shall be required to ensure sufficient entry and exit capacity for the new connection.
-
3.the connection of a new storage facility, LNG regasification facility or industrial customer on the grounds of possible future limitations to available network capacities or additional costs linked with necessary capacity increase. The transmission system operator shall ensure sufficient entry and exit capacity for the new connection.
Transmission system operators
shall grant and manage third-party access to the grid, especially the access for new market operators and producers of biogas with respect to the safety rules of the network.
CHAPTER IVb See Art. 51, paras 3-5 Common position maintained
Article 12j
Revision Clause
-
1.The Agency shall, no later than [five years after entry into force of Directive .../.../EC], submit to the European Parliament and Council, a detailed report outlining the extent to which the unbundling requirements under this Directive have been successful in ensuring full and effective independence of transmission system operators.
undistorted incentives to invest, the development of interconnection infrastructure, and the security of supply situation in the Community.
-
3.The Commission shall, no later than [five years after entry into force of Directive .../.../EC], submit to the European Parliament and the Council, a detailed report outlining the feasibility of creating a single European transmission system operator and analyse the costs and benefits with respect to, notably, property rights, market integration as well as the effective and secure operation of the transmission network. The report shall be drafted in consultation with the stakeholders in particular the transmission system operators and the Agency.
-
4.Where appropriate, and in particular in the event that the detailed report referred to in paragraph 1 determines that the conditions referred to in paragraph 2 have not been guaranteed in practice, the Commission shall submit proposals to the European Parliament and the Council to ensure full and effective independence of transmission system operators by [seven years after entry into force of Directive .../.../EC]."
Article 24
Designation of distribution system
Member States shall designate, or shall require undertakings which own or are responsible for distribution systems to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more distribution system operators and shall ensure that those operators act in accordance with Articles 25, 26 and
27.
Article 25
see above before Art. 17
Article 13 Article 26
-
2.Unbundling of distribution system
(c) In order to fulfill these tasks, the operators
distribution system operator shall have at its disposal the necessary resources including human, technical, financial and physical.
2.
(a) those persons responsible for the
management of the distribution system operator must not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production, transmission and supply of natural gas;
(c)
the distribution system operator
must have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the network. In order to fulfil those tasks, the distribution system operator shall have at its disposal the necessary resources including human,
(d) technical, financial and physical resources. This should not prevent the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets, regulated indirectly in accordance with Article 40(6) in a subsidiary are protected. In particular, this shall enable the parent company to approve the annual financial plan, or any equivalent instrument, of the distribution system operator and to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of distribution lines, that do not exceed the terms of the approved financial plan, or any equivalent instrument; and
[the distribution system operator
shall establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The programme shall set out the specific obligations of employees to meet this objective.]
1
An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme, hereinafter referred to as 'compliance officer', to the regulatory authority referred to in Article 24a(1) and shall be published. The compliance officer shall be fully independent and shall have access to all the necessary information of the distribution system operator and any affiliated companies to fulfill his task.
[Member States may decide not to
(d) the distribution system operator
must establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet that objective. An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance
apply paragraphs 1 and 2 to integrated natural gas undertakings serving less than 100 000 connected customers.] programme, the compliance officer of the distribution system operator, to the regulatory authority referred to in Article 38(1) and shall be published. The compliance officer of the distribution system operator shall be fully independent and shall have access to all the necessary information of the distribution system operator and any affiliated undertaking to fulfil his task.
-
3.Where the distribution system operator is part of a vertically integrated undertaking, the regulatory authority or another competent body shall ensure that the activities of the distribution system operator is monitored so that it cannot take advantage of its vertical integration to distort competition. In particular, vertically integrated distribution system operators shall not, in their communication and branding, create confusion in respect of the separate identity of the supply branch of the vertically integrated undertaking.
-
3.Where the distribution system operator is part of a vertically integrated undertaking, Member States shall ensure that the activities of the distribution system operator is monitored so that it cannot take advantage of its vertical integration to distort competition. In particular, vertically integrated distribution system operators shall not, in their communication and branding, create confusion in respect of the separate identity of the supply branch of the vertically integrated undertaking.
See below para 4
-
4.The Commission may adopt Amendment 79 deteted Accepted
guidelines to ensure full and effective compliance of the distribution system operator with paragraph 2 as regards the full independence of the distribution system operator, the absence of discriminatory behaviour, deleted
and that supply activities of the vertically integrated undertaking cannot take unfair advantage of its vertical integration. This measure designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3).
-
4.Member States may decide not
to apply paragraphs 1, 2 and 3 to integrated natural gas undertakings serving less than 100 000 connected customers.
Article 27
Confidentiality obligations of distribution system operators
-
1.Without prejudice to Article 29
or any other legal duty to disclose information, each distribution system operator shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its business, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner.
Article 27a
Closed Distribution Systems
confined industrial, commercial or shared services site and does not supply household customers, as a closed distribution system if:
(a) for specific technical or safety reasons, the operations or the production process of the users of that system are integrated; or
(b) that system distributes electricity primarily to the owner or operator of the system or undertakings related to the owner or operator of the system.
-
2.Member States may provide for national regulatory authorities to exempt the operator of a closed distribution system from:
(a) the obligations of Article 25(5)
to procure the energy it uses to cover energy losses and reserve capacity in its system according to transparent, non-discriminatory and market based procedures;
(b) the obligation in Article 31(1) that tariffs, or the methodologies underlying their calculation, are approved prior to their entry into force in accordance with Article 36.
applicable tariffs, or the methodologies underlying their calculation, shall be reviewed and approved in accordance with Article 36 upon request by a user of the closed distribution system.
A recital could give some clarification about the type of sites which are meant here.
Article 15 Article 28
This directive shall not prevent the operation of a combined transmission, LNG, storage and distribution system operator provided it complies, for each of its activities, with the applicable provisions of Articles 7, 9a and 13(1). Combined operator
Article 26(1) shall not prevent the operation of a combined transmission, LNG, storage and distribution system operator provided that operator complies with Articles 9(1), or 14 and 15, or Chapter IV or falls under Article 48(6).
Article 29
Right of access to accounts
-
1.Member States or any competent
authority they designate, including the regulatory authorities referred to in Article 38(1) and the dispute settlement authorities referred to in Article 33(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas undertakings as set out in Article 30.
-
2.Member States and any
designated competent authority, including the regulatory authorities referred to in Article 38(1) and the
dispute settlement authorities, shall preserve the confidentiality of commercially sensitive information. Member States may provide for the disclosure of such information where this is necessary in order for the competent authorities to carry out their functions.
Article 30 Common position maintained
Unbundling of accounts
-
1.Member States shall take the
necessary steps to ensure that the accounts of natural gas undertakings are kept in accordance with paragraphs 2 to 5 of this Article. Where natural gas undertakings benefit from a derogation from this provision on the basis of Article 48(2) and (4), they shall at least keep their internal accounts in accordance with this Article.
Amendment 126 Not acceptable
(11a) The following article shall be
inserted: "Article 18a 1. For the organisation of access to LNG facilities either the regulated access procedure, or the negotiated access procedure referred to in paragraph 2 shall apply. These procedures shall operate in accordance with objective, transparent and non-discriminatory criteria. National regulatory authorities shall observe compliance with these criteria.
Member States shall decide on the applicable access procedure based on defined and published criteria. These criteria will notably address if competition between LNG facilities takes place in the relevant market, and if the access to LNG is arranged through an independent infrastructure operator that provides open access. National regulatory authorities shall monitor compliance with these criteria and make public, or require LNG operators to make public which LNG facilities, or which parts thereof, are offered under the procedure referred to in paragraph 2.
-
2.In the case of negotiated access, Member States shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system to be able to negotiate access to LNG facilities. The parties shall be required to negotiate access to LNG facilities in good faith."
CHAPTER VII
Organisation of access to the system
Article 31
Third-party access
-
1.Member States shall ensure the
implementation of a system of third party access to the transmission and distribution system, and LNG facilities based on published tariffs, applicable to all eligible customers, including
supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 40 by a regulatory authority referred to in Article 38(1) and that those tariffs and the methodologies, where only methodologies are approved are published prior to their entry into force.
Article 19 Amendment 80 Article 32
1.
Member States shall define and publish criteria according to which it may be determined whether access to storage facilities and linepack is technically and/or economically necessary in order (12) Article 19 shall be replaced by the
following: "Article 19 Access to storage 1. For the organisation of access to storage facilities [...] when technically and/or economically necessary for providing efficient access to the system for the supply of customers [...], Member States shall decide if they choose either the regulated access procedure as described in paragraph 4, or the negotiated access procedure referred to in paragraph 3. These procedures shall operate in accordance with objective, transparent and non- discriminatory criteria. National regulatory authorities shall observe compliance with these criteria. Access to storage
-
1.For the organisation of access to For the organisation of access to
storage facilities and linepack when technically and/or economically necessary for providing efficient access to the system for the supply of customers, as well as for the organisation of access to ancillary services, Member States may choose either or both of the procedures referred to in paragraphs 3 and 4. Those procedures shall operate in accordance with objective, transparent and non-discriminatory criteria.
Member States shall define and publish criteria according to which it may be determined whether access to storage facilities and linepack is technically storage facilities and linepack when technically and/or economically necessary for providing efficient access to the system for the supply of customers, as well as for the organisation of access to ancillary services, Member States may choose either or both of the procedures referred to in paragraphs 3 and 4. Those procedures shall operate in accordance with objective, transparent and non-discriminatory criteria.
Fallback only if needed: National regulatory authorities shall monitor compliance with these criteria in accordance with Art. 40 paragraph 1(a).
to provide efficient access to the system for the supply of customers. Member States shall make public, or oblige storage and transmission system operators to make public, which storage facilities, or which parts of those storage facilities, and which linepack is offered under the different procedures referred to in paragraphs 3 and 4. National regulatory authorities shall define and publish criteria according to which the access regime to storage facilities may be determined, notably addressing if competition between storage facilities takes place in the relevant market, and if such organisation is arranged through an independent infrastructure operator that provides open access. National regulatory authorities shall monitor compliance with these criteria and make public, or oblige storage operators to make public which storage facilities, or which parts of those storage facilities are offered under the different procedures referred to in paragraphs 3 and 4.
-
2.The provisions of paragraph 1 shall not apply to ancillary services and temporary storage that are related to LNG facilities and are necessary for the regasification process and subsequent delivery to the transmission system.
-
3.In the case of negotiated access, national regulatory authorities shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system to be able to negotiate access to storage [...], when technically and/or economically and/or economically necessary in order to provide efficient access to the system for the supply of customers. Member States shall make public, or oblige storage and transmission system operators to make public, which storage facilities, or which parts of those storage facilities, and which linepack is offered under the different procedures referred to in paragraphs 3 and 4.
2.
The regulatory authority or another competent body
shall define and
publish criteria according to which it may be determined whether access to storage facilities and linepack is technically and/or economically necessary in order to provide efficient access to the system for the supply of customers. The regulatory authorities or another competent body shall make public, or oblige storage and transmission system operators to make public, which storage facilities, or which parts of those storage facilities, and which linepack is offered under the different procedures referred to in paragraphs 3 and 4.
2.
The provisions of paragraph 1
shall not apply to ancillary services and temporary storage that are related to LNG facilities and are necessary for the re-gasification process and subsequent delivery to the transmission system.
3.
The provisions of paragraph 1
shall not apply to ancillary services and temporary storage that are related to LNG facilities and are necessary for the re-gasification process and subsequent delivery to the transmission system.
3.
In the case of negotiated access,
Member States shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system to be able to negotiate access to storage facilities and linepack, when technically and/or economically necessary for providing
In the case of negotiated access,
the regulatory authority or another
competent body shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system
necessary for providing efficient access to the system [...]. The parties shall be obliged to negotiate access to storage [...] in good faith. Contracts for access to storage [...] shall be negotiated with the relevant storage system operator [...]. National regulatory authorities shall require storage system operators [...]
to publish their main commercial conditions for the use of storage [...] within the first six months following implementation of this Directive and on an annual basis every thereafter. The development of these conditions shall take into consideration the views of system users, who have the right to object to them to the national regulatory authority.
-
4.In the case of regulated access, national regulatory authorities shall take the necessary measures to give natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system a right to access to storage [...] on the basis of published tariffs and/or other terms and obligations for use of that storage [...], when technically and/or economically necessary for providing efficient access to the system [...]. The development of these tariffs and other terms and obligations shall take into consideration the views of system efficient access to the system, as well as for the organisation of access to other ancillary services. The parties shall be obliged to negotiate access to storage, linepack and other ancillary services in good faith. Contracts for access to storage, linepack and other ancillary services shall be negotiated with the relevant storage system operator or natural gas undertakings. Member States shall require storage system operators and natural gas undertakings to publish their main commercial conditions for the use of storage, linepack and other ancillary services by ...to be able to negotiate access to storage facilities and linepack, when technically and/or economically necessary for providing efficient access to the system, as well as for the organisation of access to other ancillary services. The parties shall be obliged to negotiate access to storage, linepack and other ancillary services in good faith. Contracts for access to storage, linepack and other ancillary services shall be negotiated with the relevant storage system operator or natural gas undertakings. The regulatory authority or another competent body shall require storage system operators and natural gas undertakings to publish their main commercial conditions for the use of storage, linepack and other ancillary services by ...
and on an
annual basis every year thereafter.
4.
In the case of regulated access
Member States shall take the necessary measures to give natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system a right to access to storage, linepack and other ancillary services, on the basis of published tariffs and/or other terms and obligations for use of that storage and linepack, when technically and/or economically necessary for providing efficient access to the system, as well as for the organisation of access to other ancillary services. This right of access for eligible customers may be given by enabling them to enter into supply contracts with competing
and on an
annual basis every year thereafter. The development of these conditions shall take into consideration the views of system users.
4.
In the case of regulated access,
the regulatory authority or another competent body shall take the necessary measures to give natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system a right to access to storage, linepack and other ancillary services, on the basis of published tariffs and/or other terms and
users, who have the right to object to them to the national regulatory authority. This right of access for eligible customers may be given by enabling them to enter into supply contracts with competing natural gas undertakings other than the owner and/or operator of the system or a related undertaking. natural gas undertakings other than the owner and/or operator of the system or a related undertaking.
obligations for use of that storage and linepack, when technically and/or economically necessary for providing efficient access to the system, as well as for the organisation of access to other ancillary services. National regulatory authority or another competent body shall consult system users when developing these tariffs. This right of access for eligible customers may be given by enabling them to enter into supply contracts with competing natural gas undertakings other than the owner and/or operator of the system or a related undertaking.
Article 33
Access to upstream pipeline networks
-
1.Member States shall take the
necessary measures to ensure that natural gas undertakings and eligible customers, wherever they are located, are able to obtain access to upstream pipeline networks, including facilities supplying technical services incidental to such access, in accordance with this Article, except for the parts of such networks and facilities which are used for local production operations at the site of a field where the gas is produced. The measures shall be notified to the Commission in accordance with the provisions of Article 53.
disputes, the dispute-settlement arrangements for the Member State having jurisdiction over the upstream pipeline network which refuses access shall be applied. Where, in cross-border disputes, more than one Member State covers the network concerned, the Member States concerned shall consult each other with a view to ensuring that the provisions of this Directive are applied consistently.
Article 34
Refusal of access
-
1.Natural gas undertakings may
refuse access to the system on the basis of lack of capacity or where the access to the system would prevent them from carrying
out the public-service
obligations referred to in Article 3(2) which are assigned to them or on the basis of serious economic and financial difficulties with take-or-pay contracts having regard to the criteria and procedures set out in Article 47 and the alternative chosen by the Member State in accordance with paragraph 1 of that Article. Duly substantiated reasons shall be given for any such a refusal.
Article 22 Amendment 81 Article 35 1. Major new gas infrastructure,
-
1.Major new gas infrastructures, 1. Major new gas infrastructures, New infrastructure i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 9, 31, 32 and 33 and Article 40(6), (7)
i.e. interconnectors between Member States, LNG and storage facilities, may, upon request, be exempted, for a limited period of time, from the i.e. interconnectors between Member States, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the 1. Major new gas infrastructure,
i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a limited period of time,
provisions of Articles 7, 18, 19, 20, and 24c(4), (5) and (6) under the following conditions:
(a) provisions of Articles 7, 18, 19, 20, and Article 24c(4), (5) and (6) under the following conditions: from the provisions of Articles 9, 31, 32 and 33 and Article 40(6), (7) and (8) under the following conditions:
(a) and...
the investment must enhance the investment must enhance
competition in gas supply and enhance security of supply;
(b) competition in gas supply and enhance security of supply;
(b)
the level of risk attached to the the level of risk attached to the
investment is such that the investment would not take place unless an exemption was granted;
(c) investment must be such that the investment would not take place unless
an exemption was granted;
(c)
the infrastructure must be owned the infrastructure must be owned
by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will
be built;
(d) by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will
be built;
(d)
charges are levied on users of charges must be levied on users
that infrastructure;
(e) of that infrastructure;
(e)
the exemption is not detrimental the exemption must not be
to competition or the effective detrimental to competition or the effective functioning of the internal market in natural gas, or the efficient functioning of the regulated system to which the infrastructure is connected.
functioning of the internal gas market, or the efficient functioning of the regulated
system to which the
infrastructure is connected.
Amendment 82 Not acceptable
(ea) the project is of an European interest and crosses at least one national border within the European Union.
-
2.Paragraph 1 shall apply also to Amendment 83 2. Paragraph 1 shall apply also to Common position maintained
significant increases of capacity in existing infrastructures and to modifications of such infrastructures which enable the development of new sources of gas supply. 2. Paragraph 1 shall apply also to significant increases of capacity in existing infrastructure and to modifications of such infrastructure which enable the development of new sources of gas supply.
all significant increases of capacity in existing infrastructures and to modifications of such infrastructures which enable the development of increased and additional quantities.
-
3.(subpara 1) The regulatory Amendment 84 3. The regulatory authority referred 3. The regulatory authority referred
authority referred to in Chapter VIa may, on a case by case basis, decide on the exemptions referred to in paragraphs 1 and 2. Where the infrastructure in question is located in the territory of more than one Member State, the Agency shall exercise the tasks conferred on the regulatory authority by the present Article. 3. The regulatory authority referred to in Chapter VIII may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.
-
4.to in Chapter VIII may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.
4.
to in Chapter VIa may, on a case by case basis, decide on the exemptions referred to in paragraphs 1 and 2. Where the infrastructure in question is located in the territory of more than one Member State, the Agency shall exercise the tasks conferred on the regulatory authority by the present Article.
Where the infrastructure in Where the infrastructure in
question is located in the territory of more than one Member State, the Agency shall exercise the tasks conferred on the regulatory authorities of the Member States concerned by the present Article. This shall, however, apply only:
(a) question is located in the territory of more than one Member State, the Agency shall exercise the tasks conferred on the regulatory authorities of the Member States concerned by the present Article. This shall, however, apply only:
(a)
The Agency's decision shall
be subject to prior consultation of the relevant regulatory authorities and the applicant.
where the regulatory authorities where all regulatory authorities
concerned have not been able to reach an agreement within a period of six months from the date the exemption was requested before the last of these regulatory authorities; or (b) concerned have not been able to reach an agreement within a period of six months from the date the exemption was requested before the last of these regulatory authorities; or
(b)
upon a joint request from the upon a joint request from the
regulatory authorities concerned. The regulatory authorities concerned may, jointly, request that the period referred to in point (a) of the first subparagraph is extended by up to six months. regulatory authorities concerned.
All regulatory authorities concerned may, jointly, request that the period referred to in point (a) of the first subparagraph is extended by up to six months.
(4a) Before taking a decision, the Agency shall consult the relevant regulatory authorities and the applicant. Before taking a decision on infrastructure located in the territory of more than one Member State, the regulatory authorities concerned shall consult the Agency and take
utmost account of its opinion.
-
3.(subpara 2) An exemption may Amendment 85 5. (subpara 1) An exemption may Common position maintained
cover all or part of, the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity. An exemption may cover all or only certain specific parts of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity. cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.
-
3.(supbara 4) Before granting an Amendment 86 5. (subpara 3) Before granting an Common position maintained
exemption the regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the facility to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in paragraph 1(a), (b) and (e) of this Article, the regulatory authority shall take into account the results of that capacity allocation procedure. Before granting an exemption the regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity, which may, if necessary, be amended during the period in which the infrastructure is exempted from the above-mentioned provisions, in order to make adjustments to economic and market-relevant needs. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the facility to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in paragraph 1(a), (b) and (e) of this Article, the regulatory authority shall take into account the results of that capacity allocation exemption, the regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the infrastructure to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in points (a), (b) and (e) of paragraph 1, the regulatory authority shall take into account the results of that capacity allocation procedure.
procedure, where third parties have indicated a firm commitment.
-
6.Notwithstanding paragraph 3,
Member States may provide that their regulatory authority or the Agency, as the case may be, shall submit, for the purposes of the formal decision, to the relevant body in the Member State its opinion on the request for an exemption. That opinion shall be published together with the decision.
-
4.Amendment 87 7. 7.
(a) the detailed reasons on the basis (a) the detailed reasons on the basis (a) the detailed reasons on the basis (a) the detailed reasons on the basis
-
of which the regulatory authority granted the exemption, including the financial information justifying the need for the exemption; of which the regulatory authority granted or refused the exemption together with the reference to the specific Article on which such decision is based, including the financial information justifying the need for the exemption; of which the regulatory authority, or Member State, granted the exemption, including the financial information justifying the need for the exemption;
of which the regulatory authority, or Member State, granted or refused the exemption together with the reference to the specific paragraph on which such decision is based, including the financial information justifying the need for the exemption;
-
5.Within two months after receiving a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That period shall begin on the day following the receipt of the notification. The two month period may be extended by two additional months where additional information is sought by the Commission. That period shall begin on the day following the receipt of the complete additional information. The two month period can also be extended
-
-8.
Within a period of two months beginning on the day of following the receipt
of a notification, the
Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also
with the consent of both the Commission and the regulatory authority. Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.
The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of four weeks and shall inform the Commission accordingly.
The Commission shall preserve the confidentiality of commercially sensitive information.
The Commission's approval of an exemption decision shall lose its effect after two years from its adoption if construction of the infrastructure has not yet started, and after five years if the infrastructure has not become operational.
-
-be extended with the consent of both the Commission and the regulatory authority. Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement,
The Commission's approval of an exemption decision shall lose its effect two years from its adoption in the event that construction of the infrastructure has not yet started, and five years from its adoption in the event that the infrastructure has not become operational, unless the Commission decides that any delay is due to major administrative
has informed the
Commission that it considers the notification to be complete.
The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.
The Commission shall preserve the confidentiality
of commercially
sensitive information.
The Commission's approval of an exemption decision shall lose its effect two years from its adoption in the event that construction of the infrastructure has not yet started, and five years from its adoption in the event that the infrastructure has not become operational.
Amendment 88
The Commission's exemption decision shall lose its effect if the infrastructure has not become operational five years after all national and regional decisions and authorisations have been issued, unless the delay is due to circumstances beyond control of the person to whom the exemption has been granted.
obstacles.
Amendment 89 Commission will issue a declaration.
5a. The exemptions referred to in
paragraph 1 shall automatically apply to exemptions granted pursuant to this Article at the date of entry into force of Directive .../.../EC
[ [ [ [amending
Directive 2003/55/EC concerning common rules for the internal market
in natural gas
] ] ] ]. The conditions of an
exemption approval granted under this Article shall not be changed retrospectively without the agreement of all parties concerned.
-
6.The Commission may adopt Amendment 90 9. The Commission may adopt Common position maintained
guidelines for the application of the conditions mentioned in paragraph 1 and to set out the procedure to be followed for the application of paragraphs 4 and 5. This measure designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30 (3). deleted guidelines for the application of the conditions laid down in paragraph 1 of this Article and to set out the procedure to be followed for the application of paragraphs 3, 5, 7 and 8 of this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
Article 36
Market opening and reciprocity
-
1.Member States shall ensure that
the eligible customers comprise:
(a)
until 1 July 2004, eligible
customers as specified in Article 18 of Directive 98/30/EC of the European Parliament and of the Council of 22
June 1998 concerning common rules for the internal market in natural gas
1.
Member States shall publish, by 31 January each year, the criteria for the definition of those eligible customers;
(b)
from 1 July 2004, all
non-household customers;
(c)
from 1 July 2007, all customers.
-
2.To avoid imbalance in the
opening of the gas markets:
(a)
contracts for the supply with an
eligible customer in the system of another Member State shall not be prohibited if the customer is eligible in both systems involved; and
(b)
where transactions as described
in point (a) are refused because the customer is eligible in only one of the two systems, the Commission may, taking into account the situation in the market and the common interest, oblige the refusing party to execute the requested supply, at the request of one of the Member States of the two systems.
Article 37
Direct lines
-
3.Member States may issue an
authorisation to construct a direct line subject either to the refusal of system access on the basis of Article 34 or to the opening of a dispute-settlement procedure under Article 40.
Article 24a Amendment 91 CHAPTER VIII Common position maintained
-
1.Each Member State shall 1. Each Member State shall NATIONAL REGULATORY
designate a single national regulatory authority. designate a single national regulatory authority. AUTHORITIES
Article 38
Designation and independence of
regulatory authorities
-
1.Each Member State shall
designate a single national regulatory authority at national level.
-
2.Paragraph 1 of this Article shall
be without prejudice to the designation of other regulatory authorities at regional level within Member States, provided that there is one senior representative for representation and contact purposes at Community level within the Board of Regulators of the Agency in compliance with Article 13(1) of Regulation (EC) No .../...
*.
-
3.By way of derogation from
paragraph 1 of this Article, a Member State may designate regulatory authorities for small systems on a geographically separate region whose consumption, in 2008, accounted for less than 3 % of the total consumption of the Member State of which it is part. This derogation shall be without prejudice to the appointment of one senior representative for representation and contact purposes at Community level within the Board of Regulators of the Agency in compliance with Article 13(1) of Regulation (EC) No
.../... *.
-
2.Member States shall guarantee 2. Member States shall guarantee 4. Member States shall guarantee Already covered
the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member State shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive, the regulatory authority is legally distinct and functionally independent from any other public or private entity, and that its staff and the persons responsible for its management act independently from any market interest and shall not seek or take instructions from any government or other public or private entity. the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member State shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and other relevant legislation, the regulatory authority is legally distinct and functionally independent from any other public or private entity, and that its staff and the persons responsible for its management act independently from any market interest and shall not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks. the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and related legislation, the regulatory
authority:
(a)
is legally distinct and
functionally independent from any other public or private entity;
(b)
ensures that its staff and the
persons responsible for its
management:
(i)
act independently from any
market interest; and
(ii)
do not seek or take direct
instructions from any government or other public or private entity when carrying out the regulatory tasks. This requirement is without prejudice to close cooperation, as appropriate, with other relevant national authorities or to general policy guidelines issued by the government not related to the regulatory powers and duties under Article 40.
-
3.In order to protect the 3. In order to protect the 5. In order to protect the
independence of the regulatory authority, Member States shall in particular ensure that:
(a) independence of the regulatory authority, Member States shall in particular ensure that:
(a) independence of the regulatory authority, Member States shall in particular ensure that:
(a)
the regulatory authority has legal the regulatory authority has legal the regulatory authority can take (a) the regulatory authority can take
personality, budgetary autonomy, and personality, financial autonomy, and autonomous decisions, independently autonomous decisions, independently
adequate human and financial resources to carry out its duties;
(b) adequate human and financial resources to carry out its duties;
(b) from any political body, and has autonomy in the implementation of the budget, and adequate human and financial resources to carry out its duties;
(b) from any political body, and has separate annual budget allocations, allowing for autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties;
(b)
its management is appointed for the members of the board of the the regulatory authority's top the members of the board of
a non renewable fixed term of at least five years, and may only be relieved from office during its term if it no longer fulfills the conditions set out in this Article or it has been guilty of serious misconduct. regulatory authority are appointed for a non-renewable fixed term of at least five years but no more than seven years and that for the first mandate, that term shall be two-and-a-half years for half of the members. The members shall be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of serious misconduct under national law; and
(ba) the budgetary needs of the management is appointed for at least five years, and may be relieved from office during its term only if it no longer fulfills the conditions set out in this Article or it has been guilty of serious misconduct under national law. the regulatory authority or, in the absence of a board, the regulatory authority's top management are appointed for a fixed term of five up to seven years, renewable once. Member States shall ensure an appropriate rotation scheme for the board or the top management. The members of the board or, in the absence of a board, of the top management may be relieved from office during their term only if they no longer fulfill the conditions set out in this Article or have been guilty of misconduct under national law.
Addition of the following recital: While contributing to the independence of the national regulatory authority from any political or economic interest through an appropriate rotation scheme, Member States should be allowed to take due account of the availability of human resources or of the size of the board. Not acceptable
regulatory authority are covered by the direct revenues from energy market operations.
Article 24b (title) Article 39
Policy objectives of the regulatory General objectives of the regulatory
authority authority
In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures to achieve the following objectives:
(a) Amendment 92 In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in Article 40, in close consultation with other relevant national authorities, as appropriate, and without prejudice to their
competencies:
(a) In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in Article 40, in close consultation with other relevant national authorities including competition authorities, as appropriate, and without prejudice to their competencies:
(a)
In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures to achieve the following objectives:
(a)
the promotion, in close the promotion, in close promoting, in close cooperation promoting, in close cooperation
cooperation with the Agency, regulatory authorities of other Member States and the Commission, of a competitive, secure and environmentally sustainable internal gas market within the Community, and effective market opening for all consumers and suppliers in the Community;
(b) cooperation with the Commission, the Agency, and the regulatory authorities of other Member States, of a competitive, secure and environmentally sustainable internal gas market within the Community, and effective market opening for all consumers and suppliers in the Community, and ensuring that energy supply networks operate in an effective, reliable way, taking in to account long term objectives;
(b) with the Agency, regulatory authorities of other Member States and the Commission, a competitive, secure and environmentally sustainable internal market in natural gas within the Community, and effective market opening for all customers and suppliers in the Community;
(b) with the Agency, regulatory authorities of other Member States and the Commission, a competitive, secure and environmentally sustainable internal natural gas market within the Community, and effective market opening for all customers and suppliers
in the Community, and ensuring appropriate conditions for the effective and reliable operation of gas networks , taking into account long-term objectives;
the development of competitive the development of competitive developing competitive and
and properly functioning regional markets within the Community in view of the achievement of the objective mentioned in point (a); and properly functioning markets within the Community in view of the achievement of the objective mentioned in point (a); properly functioning regional markets within the Community in view of the achievement of the objectives referred to in point (a);
(c)
(c)
(c)
(d)
the suppression of restrictions to the suppression of any eliminating restrictions on trade
natural gas trade between Member States, including the development of appropriate cross border transmission capacities to meet demand, enhance integration of national markets and to enable unrestrained natural gas flow across the Community;
(d) restrictions to gas trade between Member States, including the development of appropriate cross border transmission capacities to meet demand and enhance the integration of national markets to facilitate unrestrained natural gas flow across the Community;
(d) in natural gas between Member States, including developing appropriate cross-border transmission capacities to meet demand and enhancing the integration of national markets which may facilitate natural gas flow across the Community;
(d)
ensuring the development of ensuring, in the most cost promoting the development of helping to achieve, in the most
secure, reliable and efficient systems, promoting energy efficiency, system adequacy and research and innovation to meet demand and the development of innovative renewable and low carbon technologies, in both short and long term;
(e) effective way, the development of customer orientated, secure, reliable and efficient grid systems, promoting system adequacy whilst ensuring energy efficiency and integration of large and small-scale renewable energy (e.g. biogas) and distributed production in both transmission and distribution grids;
(da) facilitating the access to the grid, in particular removing barriers that could prevent access for new market entrants and renewable energies;
(e) secure, reliable and efficient non-discriminatory systems as well as system adequacy;
(e) cost-effective way, the development of secure, reliable and efficient non- discriminatory systems that are consumer oriented, and promoting energy efficiency and system adequacy that are consumer oriented, and promoting system adequacy and, in line with general energy policy objectives, energy efficiency as well as the integration of large and small scale production of gas from renewable energy sources and distributed production
in both transmission and distribution networks;;
(e)
ensuring that network operators ensuring that network operators facilitating the access of new facilitating access to the
are granted adequate incentives, in both the short and the long term, to increase efficiencies in network performance and foster market integration;
(f) are granted adequate incentives, in both the short and the long term, to increase efficiencies in network performance and foster market integration;
(f) production capacity to the network, in particular removing barriers that could prevent access of new market entrants;
(f) network for new production capacity, in particular removing barriers that could prevent access for new market entrants and of gas from renewable energy sources;
(f)
ensuring the efficient ensuring customer benefits ensuring that system operators ensuring that system operators
functioning of their national market, and to promote effective competition in cooperation with competition authorities. through the efficient functioning of their national market, promote effective competition in cooperation with competition authorities, and ensuring consumer protection;
(fa) contributing to high standards of public service for natural gas, to the protection of vulnerable customers, and helping to ensure that consumer protection measures set out
in Annex A are effective;
(fb) harmonisation of necessary data exchange processes. and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies in system performance and foster market integration;
(g) and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies in system performance and foster market integration;
(g)
ensuring the efficient ensuring that customers benefit
functioning of their national market, and to promote effective competition and consumer protection;
(h) through the efficient functioning of their national market, promoting effective competition and helping to ensure consumer protection;
(h)
contributing to high standards of helping to achieve high
public service for natural gas, the protection of vulnerable customers, and the effectiveness of the consumer protection measures set out in Annex A. standards of public service for natural gas, contributing to the protection of vulnerable customers and to the compatibility of necessary data exchange processes for customer switching
Article 24c Amendments 93 and 129 Article 40
1.
-
1.Duties and powers of the regulatory Already covered in Art. 40 para 2
The regulatory authority shall The regulatory authority shall authority
have the following duties:
have the following duties to be carried out where appropriate in close consultation with other relevant Community or national bodies, transmission system operators and 1. The regulatory authority shall
have the following duties:
(a) other market stakeholders and without prejudice to their specific
competencies:
(a)
(a)
[(-a) fixing or approving, in accordance with transparent criteria, regulated transmission or distribution tariffs or their methodologies;]
-
b)cooperating on cross-border issues with the regulatory authority or authorities of the Member States concerned and with the Agency;
Already covered in Art. 41 para 2,
Already covered
ensuring compliance of ensuring compliance of ensuring compliance of
transmission and distribution system operators, and where relevant system owners, as well as of any natural gas undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross border issues;
(b) transmission, distribution system operators, and where relevant system owners, as well as of any natural gas undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross border issues;
(b) transmission and distribution system operators, and where relevant, system owners, as well as of any natural gas undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross-border issues;
(b)
cooperating on cross-border cooperating on cross-border cooperating in relation to
issues with the regulatory authority or authorities of those Member States;
(c) issues with the regulatory authority or authorities of other Member States and the Agency, including ensuring that there is sufficient interconnection capacity between transmission infrastructure to satisfy an efficient overall market assessment and security of supply criteria, without discrimination between supply undertakings in different Member States;
(c) cross-border issues with the regulatory authority or authorities of the Member States concerned;
(c)
complying with, and complying with, and complying with, and
implementing, decisions of the Agency implementing, any relevant binding implementing, any relevant legally
and of the Commission;
(d) decisions of the Commission and the Agency;
(d) binding decisions of the Agency and of the Commission;
(d)
Already covered in Art. 10 and Art. 40
(6-8)
proposed change to Art. 40(6): The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force ...
(f)
reporting on a yearly basis on its reporting annually on its activity reporting annually on its activity
activity and the fulfilment of its duties to the relevant authorities of the Member States, the Agency and the Commission. This report shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article;
(e) and the fulfilment of its duties to the relevant authorities of the Member States, the Commission and the Agency. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article;
(e) and the fulfilment of its duties to the relevant authorities of the Member States, the Agency and the Commission. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article;
(e)
ensuring that there are no cross monitoring compliance with ensuring that there are no
subsidies between transmission, distribution, storage, LNG and supply activities;
(f) unbundling requirements under this Directive and other relevant Community legislation and ensuring that there are no cross-subsidies between transmission, distribution, storage, LNG and supply activities as well as ensuring that distribution and transmission tariffs are set well in advance of the relevant periods during which they apply;
(f) cross-subsidies between transmission, distribution, storage, LNG and supply activities;
(f)
reviewing investment plans of reviewing the investment plans monitoring investment plans of monitoring investment plans of
the transmission system operators, and providing in its annual report an assessment of the investment plan of the transmission system operators as regards its consistency with the European-wide 10-year network development plan mentioned in Article 2c of Regulation (EC) No 1775/2005;
of the transmission system operators, and providing in its annual report an assessment of the investment plan of the transmission system operators as regards its consistency with the European wide 10-year network development plan mentioned in Article 2c of Regulation (EC) No 1775/2005; the investment plans of transmission system operators shall ensure that the skills and number of the staff are sufficient to meet the service the transmission system operators, and providing in its annual report an assessment of the investment plans of the transmission system operators as regards their consistency with the non-binding Community-wide 10-year network development plan referred to in Article 8(3)(b) of Regulation (EC)
No .../...*;
the transmission system operators, and providing in its annual report an assessment of the investment plans of the transmission system operators as regards their consistency with the non-binding Community-wide 10-year network development plan referred to in Article 8(3)(b) of Regulation (EC)
No .../...
*; such assessment may
-
include recommendations to amend the investment plan;
(g) obligations; failure to honour the investment plan shall result in proportionate sanctions imposed on the transmission system operator in accordance with the guidelines issued
by the Agency;
(fa) approving the annual investment plans of the transmission system operators;
(g)
(g) Addition to the last sentence of para. 1 point (a) of Article 13: "ensuring adequate means to meet service obligations;"
Role of Agency with respect to the 10 year network development plan is covered by Art. 9(1) of the Gas. Reg.
See response to to (f) above
(g)
monitoring network security and monitoring compliance with monitoring compliance with monitoring compliance with and
reliability, and reviewing network security and reliability rules;
(h) network security and reliability, setting or approving standards and requirements for quality of service and supply and reviewing performances for quality of service and supply, network security and reliability rules;
(h) network security and reliability rules and monitoring standards and requirements for quality of network service;
(h) reviewing past performance of network security and reliability rules as well as setting or approving standards and requirements for quality of service and supply or contributing to this together with other competent authorities
;
Suggested as recital as follows: Member States, or when the Member State has so provided, the regulatory authority, should encourage the development of interruptible supply contracts;
see also (ic) below
(h)
monitoring the level of monitoring the level of monitoring the level of monitoring the level of
transparency, ensuring compliance of natural gas undertakings with transparency obligations;
(i) transparency, ensuring compliance of network operators with transparency obligations;
(i) transparency and ensuring compliance of natural gas undertakings with transparency obligations;
(i) transparency and ensuring compliance of natural gas undertakings with transparency obligations;
monitoring the level of market monitoring the level of market monitoring the level of market (i) monitoring the level and
-
opening and competition at wholesale and retail levels, including on natural gas exchanges, household prices, switching rates, disconnection rates and household complaints in an agreed format, as well as any distortion or restriction of competition in cooperation with competition authorities, including providing any relevant information, bringing any relevant cases to the attention of the relevant competition authorities;
opening and competition at wholesale and retail levels, including on natural gas exchanges, household prices, switching rates, disconnection rates and household complaints in an agreed format, as well as any distortion or restriction of competition in cooperation with competition authorities, including providing any relevant information, bringing any relevant cases to the attention of the relevant competition authorities;
(ia) monitoring the occurrence of restrictive contractual practices, including exclusivity provisions, which may prevent or restrain the choice of non-household customers from contracting simultaneously with more than one supplier and, where appropriate, informing the national competition authorities of such practices;
(ib) with full regard to the provisions of the EC Treaty, promoting agreements on a long-term basis between energy consumers and suppliers that contribute to the improvement of the energy production and distribution and, at the same time, allow consumers to share the opening and competition at wholesale and retail levels, including on natural gas exchanges, prices for household customers, switching rates, disconnection rates and complaints by household customers, as well as any distortion or restriction of competition, including providing any relevant information, and bringing any relevant cases to the attention of the relevant competition authorities;
effectiveness of market opening and competition at wholesale and retail levels, including on natural gas exchanges, prices for household customers including prepayment systems, switching rates, disconnection rates, charges for and the execution of
-
*maintenance
services, and complaints by household customers, as well as any distortion or restriction of competition , including providing any relevant information, and bringing any relevant cases to the relevant competition authorities;
(ia) monitoring the occurrence of restrictive contractual practices, including exclusivity clauses which may prevent large-scale non- household customers from contracting simultaneously with more than one supplier or restrict their choice to do so. Where appropriate, the national regulatory authorities shall inform the national competition authorities of such practices;
Not acceptable
(j) resulting benefits, provided that such agreements can contribute to an optimal level of investment in the energy sector;
(j)
(j)
((ic) respecting contractual freedom with regard to interruptible supply contracts as well as with regard to long term contracts provided that they are compatible with Community and national law and consistent with EU policies;
Common position maintained Sanctions covered in Art. 40 para 4 d)
first part of (l) covered by Art. 39(h)
(ka) helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex A, are effective and enforced
(l)
monitoring the time taken by monitoring the time taken by monitoring the time taken by
transmission and distribution undertakings to make connections and repairs;
(k) transmission and distribution undertakings to make connections and repairs and imposing sanctions in accordance with the guidelines issued by the Agency if these time periods are exceeded without due cause;
(k) transmission and distribution system operators to make connections and repairs;
(k)
monitoring and reviewing the monitoring the access conditions monitoring and reviewing the
access conditions to storage, linepack and other ancillary services as provided for in Article 19;
(l) to storage, linepack and other ancillary services as provided for in Article 19;
(l) access conditions to storage, linepack and other ancillary services as provided for in Article 32. In the event that the access regime to storage is defined according to Article 32(3), that task shall exclude the reviewing of tariffs;
l)
without prejudice to the without prejudice to the
competence of other national regulatory authorities, ensuring high standards of public service for natural gas, the protection of vulnerable customers, and that consumer protection measures set out in Annex
A are effective;
(m) publishing recommendations, at least on a yearly basis, on compliance of supply tariffs with Article 3; competence of other national regulatory authorities, ensuring high standards of public service for natural gas, the protection of vulnerable customers, and that consumer protection measures set out in Annex
A are effective and enforced;
(m) publishing recommendations, at least on yearly basis, on compliance of supply tariffs with Article 3; due
publishing recommendations, at
least annually, in relation to compliance of supply tariffs with Article 3, and forwarding these to the competition authorities, where
publishing recommendations, at
least annually, in relation to compliance of supply tariffs with
(n) attention shall be paid in those recommendations to the impact on the functioning of the market of regulated prices (wholesale and end-users' prices);
(n) Article 3;
(m) ensuring access to customer consumption data, the provision for optional use, of a harmonised format at national level for consumption data and the access to data under point (h)
of Annex A;
appropriate.
To be added only if needed together with addition to rec. 43: paying due attention in those recommendations to the impact on markets where regulated prices were introduced.
Addition to recital 43: Regulated prices that do not fully cover costs do in general not contribute to an efficient and competitive internal market in gas and should be gradually removed.
(m) ensuring access to customer consumption data, the provision, for optional use, of an easily understandable harmonised format at national level for consumption data, and prompt access for all customers to such data under point (h) of Annex A; see response to amdt 111 letter d
Already covered in Art. 40 (6)
ensuring access to customer ensuring effective and equal
consumption data, the application of a harmonised format for consumption data and the access to data under paragraph (h) of Annex A;
(o) access to customer consumption data including data on prices and any related expenditure for all market participants, the application of an easily understandable harmonised format for such consumption data, adequate prepayment that reflects the actual consumption and prompt access for all customers to such data under point (h) of Annex A;
(o)
monitoring the implementation monitoring the implementation (n) monitoring the implementation
of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, suppliers and customers and other market parties pursuant to Article of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, suppliers and customers and other market parties pursuant to Article of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, suppliers and customers and other market parties pursuant to
-
8b of Regulation (EC) No 1775/2005;
8b of Regulation (EC) No 1775/2005;
(oa) fixing or approving network access tariffs and publishing the methodology used to set the tariffs;
(ob) ensuring the transparency of wholesale fluctuations in prices;
Regulation (EC) No .../...*;
(ob) contributing to the compatibility of data exchange processes for the most important market processes at regional level;
See Art. 40 para 1 (h) monitoring the level of transparency, including of wholesale prices
, and
ensuring compliance of gas undertakings with transparency obligations;
(p) monitoring the correct (p) monitoring the correct (o) monitoring the correct
application of the criteria that determine whether a storage facility falls under Article 19(3) or 19(4). application of the criteria that determine whether a storage facility falls under Article 19(3) or 19(4). application of the criteria that determine whether a storage facility falls under Article 32(3) or (4); and
(p)
monitoring the implementation
of safeguards measures as referred to
in Article 45.
-
2.When a Member State has so
provided, the monitoring duties set out in paragraph 1 may be carried out by other authorities than the regulatory authority. In such a case, the information resulting from such monitoring shall be made available to the regulatory authority as soon as possible. While preserving their independence, without prejudice to their own specific competencies and consistent with the principles of better regulation, the
regulatory authority shall, as appropriate, consult transmission system operators and, as appropriate, closely cooperate with other relevant national authorities when carrying out the duties set out in paragraph 1. Any approvals given by a regulatory authority or the Agency under this Directive are without prejudice to any duly justified future use of its powers by the regulatory authority under this Article or to any penalties imposed by other relevant authorities or the Commission.
-
2.In addition to the tasks conferred 3. In addition to the duties
upon it under paragraph 1, when an independent system operator has been designated under Article 9, the regulatory authority shall:
(a) conferred upon it under paragraph 1 of this Article, when an independent system operator has been designated under Article 14, the regulatory authority shall:
(a)
monitor the transmission system
owner's and the independent system operator's compliance with their obligations under this Article, and issue penalties for non compliance in accordance with paragraph 3(d); monitor the transmission system
owner's and the independent system operator's compliance with their obligations under this Article, and issue penalties for non compliance in accordance with point (d) of paragraph 4;
(b) monitor the relations and (b) monitor the relations and
communications between the independent system operator and the transmission system owner so as to ensure compliance of the independent system operator with its obligations, and in particular shall approve contracts and act as a dispute settlement authority between the communications between the
independent system operator and the transmission system owner so as to ensure compliance of the independent system operator with its obligations, and in particular approve contracts and act as a dispute settlement authority between
-
independent system operator and the transmission system owner in respect of any complaint submitted by either party pursuant to paragraph 7; operator and the transmission system owner in respect of any complaint submitted by either party pursuant to paragraph 9;
(c) without prejudice to the (c) without prejudice to the
-
procedure under paragraph 2c of Article 9, for the first ten year network development plan, approve the investments planning and the multi- annual network development plan presented on a yearly basis by the independent system operator; procedure under Article 14(2)(c), for the first 10-year network development plan, approve the investments planning and the multi-annual network development plan presented annually by the independent system operator;
(d) ensure that network access (d) ensure that network access
-
tariffs collected by independent system operators include a remuneration for the network owner or network owners that provide for an adequate remuneration of the network assets and of any new investments therein; tariffs collected by the independent system operator include remuneration for the network owner or network owners, which provides for adequate remuneration of the network assets and of any new investments made therein, provided they are economically and efficiently incurred; and
-
2.(e) have the powers to carry (e) have the powers to carry out
out inspections at the transmission system owner and independent system operator's premises. inspections, including unannounced inspections, at the premises of transmission system owner and independent system operator.
-
3.Member States shall ensure that Amendment 94 4. Member States shall ensure that
regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraph 1 and 2 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers:
(a) 3. Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraph 1, 3 and 6 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers:
(a)
regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraph 1 and 2 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers:
(a)
to issue binding decisions on gas to issue binding decisions on gas to issue binding decisions on
undertakings;
(b) undertakings;
(b) natural gas undertakings;
(b)
to carry out in cooperation with to carry out in cooperation with to carry out investigations into
the national competition authority investigations of the functioning of gas markets, and to decide, in the absence of violations of competition rules,, of any appropriate measures necessary and proportionate to promote effective competition and ensure the proper functioning of the market, including gas release programs;
(c) the national competition authority investigations of the functioning of gas markets, and to decide on any appropriate measures necessary and proportionate to promote effective competition and ensure the proper functioning of the market, including gas release programmes;
(c) the functioning of the gas markets, and to decide upon and impose any necessary and proportionate measures to promote effective competition and ensure the proper functioning of the market. Where appropriate, the regulatory authority shall also have the power to cooperate with the national competition authority or the Commission in conducting an investigation relating to competition law;
(c) (b) to carry out investigations into
the functioning of the gas markets, and to decide upon and impose any necessary and proportionate measures to promote effective competition and ensure the proper functioning of the market. Where appropriate, the regulatory authority shall also have the power to cooperate with the national competition authority and financial market regulators or the Commission in conducting an investigation relating to competition law;
(c)
to request any information from to request any information from to request any information from
natural gas undertakings relevant for the fulfilment of its tasks;
(d) natural gas undertakings relevant for the fulfilment of its tasks;
(d) natural gas undertakings relevant for the fulfilment of its tasks;
(d) to require any information from
natural gas undertakings relevant for the fulfilment of its tasks, including the justification for any refusal to grant third-party access, and any information on measures necessary to reinforce the network;
already covered
to impose effective, appropriate to impose effective, appropriate to impose effective,
and dissuasive sanctions to natural gas undertakings not complying with their obligations under this Directive or any decisions of the regulatory authority or of the Agency;
and dissuasive sanctions to natural gas undertakings not complying with their obligations under this Directive or any decisions of the regulatory authority or of the Agency, or to propose to a competent body to impose such sanctions; furthermore, to impose, or to propose to impose fines of up to 10 % of the yearly turnover of the transmission system operator on the transmission system operator or on the vertically integrated undertaking, as the case may be, for non- compliance with their respective obligations pursuant to this Directive;
proportionate and dissuasive penalties on natural gas undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of the Agency, or to propose to a competent court to impose such penalties. This shall include the power to impose or propose the imposition of penalties of up to 10 %
of the annual turnover of the transmission system operator or of up to 10 % of the annual turnover of the vertically integrated undertaking on the transmission system operator or on the vertically integrated undertaking, as the case may be, for non compliance
(e)
(e) with their respective obligations pursuant to this Directive; and
(e)
appropriate rights of
to have appropriate rights of to have appropriate rights of investigations, and relevant powers of instructions for dispute settlement under paragraphs 9 and 10.
investigations, and relevant powers of instructions for dispute settlement under paragraphs 7 and 8;
(f) investigations, and relevant powers of instructions for dispute settlement under paragraphs 7 and 8;
(f)
to approve safeguards measures to approve safeguards measures
as referred to in Article 26. as referred to in Article 26.
3a. In addition to the tasks and 5. In addition to the duties and already covered
powers conferred on it under paragraphs 1 and 3, when a transmission system operator has been designated in accordance with Chapter IVa, the regulatory authority shall be granted at least the following tasks and powers:
(a) powers conferred on it under paragraphs 1 and 4 of this Article, when a transmission system operator has been designated in accordance with Chapter IV, the regulatory authority shall be granted at least the following duties and powers:
(a)
to impose sanctions including to issue penalties in accordance
fines accordance with paragraph 3(d) for discriminatory behaviour in favour of the vertically integrated undertaking;
(b) with point (d) of paragraph 4 for discriminatory behaviour in favour of the vertically integrated undertaking;
(b)
to monitor communications to monitor communications
between the transmission system operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator with its obligations;
(c) between the transmission system operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator with its obligations;
(c)
to act as a dispute settlement
authority between the vertically integrated undertaking and the transmission system operator in respect of any complaint submitted pursuant to paragraph 7;
(d) to act as dispute settlement
authority between the vertically integrated undertaking and the transmission system operator in respect of any complaint submitted pursuant to paragraph 9;
(d)
to monitor commercial and
financial relations including loans to monitor commercial and
between the vertically integrated undertaking and the transmission system operator, (e) financial relations including loans between the vertically integrated undertaking and the transmission system operator;
(e)
to monitor all commercial and
financial agreements on the condition that they comply with market conditions;
(f) to approve all commercial and
financial agreements between the vertically integrated undertaking and the transmission system operator, on the condition that they comply with market conditions;
(f)
to request justification from the
vertically integrated undertaking when notified by the compliance officer in accordance with Article 12g(4). Such justification shall in particular include evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;
(g) to request justification from the
vertically integrated undertaking when notified by the compliance officer in accordance with Article 21(4). Such justification shall in particular include evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;
(g)
to carry out inspections on the
premises of the vertically integrated undertaking and the transmission system operator;
(h) to carry out inspections,
including unannounced inspections, on the premises of the vertically integrated undertaking and the transmission system operator; and
(h)
to assign all or specific tasks of to assign all or specific tasks of
the transmission system operator to an independent system operator appointed in accordance with Article 9 in case of a persistent breach by the transmission system operator of its obligations under this Directive, in particular in case of repeated discriminatory behaviour to the benefit of the vertically integrated undertaking;
(i) the transmission system operator to an independent system operator appointed in accordance with Article 14 in case of a persistent breach by the transmission system operator of its obligations under this Directive, in particular in case of repeated discriminatory behaviour to the benefit of the vertically integrated undertaking.
to request any information from
the transmission system operator and to directly contact all staff of the transmission system operator; if doubts remain, the same rights shall apply for the vertically integrated undertaking and its subsidiaries;
(j)
to conduct all necessary
inspections of the transmission system operator and, if doubts remain, of the vertically integrated undertaking and its subsidiaries; the rules of Article 20 of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty shall apply;
(k) to impose effective, appropriate and dissuasive sanctions to the transmission system operator and/or the vertically integrated undertaking not complying with their obligations under this Article or any decisions of the national regulatory authority; that power shall include the right to:
(i)
impose effective, appropriate
and dissuasive fines related to the turnover of the transmission system operator or the vertically integrated undertaking;
(ii)
issue orders to remedy
discriminatory behaviour;
(iii) withdraw, at least partly, the licence of the transmission system operator in case of repeated breach of the unbundling provisions set out in this Article.
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4.The regulatory authorities shall Amendment 95 6. The regulatory authorities shall in response to amdt 93 and 129 (e): The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force ...
be responsible for fixing or approving prior to their entry into force the terms and conditions for:
(a) 4. The regulatory authorities shall be responsible for fixing or approving prior to their entry into force at least the methodologies used to calculate or establish the terms and conditions for:
(a)
be responsible for fixing or approving prior to their entry into force the terms and conditions for:
(a)
connection and access to connection and access to connection and access to part a) in spirit already covered
(b)
national networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities. These tariffs shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing these investments to ensure the viability of the networks and LNG facilities;
(b) national networks, including transmission and distribution tariffs and their methodologies, or alternatively, the methodologies and their monitoring for setting or approving the transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities including their methodologies, or alternatively, the methodologies and their monitoring for setting or approving the tariffs for access to LNG facilities. These tariffs shall reflect the actual costs incurred, insofar as such costs correspond to those of an efficient operator and shall be transparent. They shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing these investments to ensure the viability of the networks and LNG facilities. These tariffs shall not discriminate against new entrants;
(b) national networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities. Those tariffs or methodologies shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing those investments to ensure the viability of the networks and LNG facilities;
(b)
the provision of balancing the provision of balancing the provision of balancing the provision of balancing
services. services which shall reflect the cost and shall be revenue neutral to the extent possible, whilst providing appropriate incentives for network users to balance their input and services. services which shall be performed in the most economic manner and provide appropriate incentives for network users to balance their input and offtakes. The balancing services
offtakes; they shall be fair and non- discriminatory and based on objective criteria;
(ba) the access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management.
They shall have the authority to require the transmission system operators, to modify those terms and conditions. shall be provided in a fair and non- discriminatory manner and be based on objective criteria.
(ba) access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management. Already covered in para 8.
-
5.In fixing or approving the tariffs, Amendment 96 7. In fixing or approving the tariffs 7. In fixing or approving the tariffs or methodologies and the balancing services, the regulatory authorities shall ensure that transmission and distribution system operators are granted appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities.
7a.
the regulatory authorities shall ensure that network operators are granted adequate incentive, over both the short and long term, to increase efficiencies, foster market integration, and support the related research activities. 5. In fixing or approving the terms or methodologies, the regulatory authorities shall ensure that transmission and distribution system operators are granted appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities.
and conditions or methodologies of the tariffs, and the balancing services, the regulatory authorities shall ensure that network operators are granted adequate incentive, over both the short and long term, to increase efficiencies, foster market integration, ensure security of supply, and support the related research activities.
5a.
The regulatory authorities
The regulatory authorities shall shall monitor congestion management of national gas transmission networks including interconnectors, and the implementation of congestion management rules. To that effect, transmission system operators or market operators shall submit their congestion management rules, including capacity allocation, to the national regulatory authorities. National regulatory authorities may request amendments to these rules.
monitor congestion management within national gas transmission networks. Transmission system operators shall submit their congestion management procedures, including capacity allocation, to the national regulatory authorities for approval. National regulatory authorities may request amendments to those procedures before approving them.
-
6.Regulatory authorities shall have Amendment 97 8. Regulatory authorities shall have 8. Regulatory authorities shall have
the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. 6. Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to storage is defined according to Article 32(3), this task shall exclude the modification of tariffs. the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to storage is defined according to Article 32(3), this task shall exclude the modification of tariffs. In the event of delay in the fixing of transmission and distribution tariffs, regulatory authorities shall have the power to fix or approve provisional transmission and distribution tariffs or methodologies and to decide on the appropriate compensatory measures if the final tariffs or methodologies deviate from these provisional tariffs or methodologies.
the authority to require transmission, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner.
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7.Any party having a complaint Amendment 98 9. Any party having a complaint 9. Any party having a complaint
against a transmission, LNG or distribution system operator may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within two months after receipt of the complaint. This period may be extended by two months where additional information is sought by the regulatory authorities. This period may be extended with the agreement of the complainant. Such a decision shall 7. Any party having a complaint against a transmission, storage, LNG or distribution system operator with respect to the issues referred to in paragraphs 1 to 8 may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the regulatory authorities. That extended against a transmission, storage, LNG or distribution system operator in relation to that operator's obligations under this Directive may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the regulatory authorities. That
against a transmission, LNG, storage or distribution system operator may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within two months after receipt of the complaint. This period may be extended by two months where additional information is sought by the regulatory authorities. This period may be extended with the agreement of the
have binding effect unless and until overruled on appeal. complainant. Such a decision shall have binding effect unless and until overruled on appeal. period may be further extended with the agreement of the complainant. The regulatory authority's decision shall have binding effect unless and until overruled on appeal. extended period may be further extended with the agreement of the complainant. The regulatory authority's decision shall have binding effect unless and until overruled on appeal.
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8.Any party who is affected and Amendment 99 10. Any party who is affected and 10. Any party who is affected and
who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect. 8. Any party who is affected and who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect. who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.
who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed tariffs and methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.
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9.Member States shall create Amendment 100 11. Member States shall create Common position maintained
appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. These mechanisms shall take account of the provisions of the Treaty, and in particular Article 82 thereof. 9. Member States shall create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. These mechanisms shall take account of the provisions of the Treaty, and in particular Article 82 thereof.
appropriate and efficient mechanisms for control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. These mechanisms shall take account of the provisions of the Treaty, and in particular Article 82 thereof.
Amendment 136 See compromise proposal for amdt 133
9a. The national regulatory
authorities shall put in place
independent complaints services and alternative redress schemes such as an independent energy ombudsman or a consumer body. Those services or schemes shall be responsible for the efficient treatment of complaints and shall comply with best practice criteria. The national regulatory authorities shall set standards and guidelines on how complaints will be handled by producers and network operators.
-
12.Decisions taken by regulatory Amendment 101 14. Decisions taken by regulatory 14. Decisions taken by regulatory
authorities shall be motivated. 12. Decisions taken by regulatory authorities shall be reasoned and justified to allow for judicial review. authorities shall be fully reasoned and justified to allow for judicial review and available to the public while preserving the confidentiality of commercially sensitive information.
authorities shall be fully reasoned and available to the public to allow for legal scrutiny.
-
13.Member States shall ensure that Amendment 102 15. Member States shall ensure that 15. Member States shall ensure that
suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a body independent of the parties involved. 13. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent
of the parties involved. suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a national judicial body or other independent national authority independent of the parties involved and of any government.
-
14.The Commission may adopt Amendment 103 deleted Accepted
guidelines on the implementation by the regulatory authorities of the powers described in this Article. This measure designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory deleted
procedure with scrutiny referred to in Article 30(3).
Article 24d Amendment 104 Article 41
Regulatory regime for cross border
-
2.Regulatory regime for cross-border
2.
issues issues
-
1.Regulatory authorities shall 1. Regulatory authorities shall
closely cooperate and consult with each other, and shall provide each other and the Agency with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority.
-
2.closely consult and cooperate with each other, and shall provide each other and the Agency with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority.
2.
Regulatory authorities shall In order to ensure that where Regulatory authorities shall Regulatory authorities shall
cooperate at least on a regional level to foster the creation of operational arrangements in order to ensure an optimal management of the network, develop joint gas exchanges and the allocation of cross-border capacity, and to ensure a minimum level of interconnection capacity within the region to allow for effective competition to develop. regional gas markets occur integration is mirrored by adequate regulatory structures, the national regulatory authorities concerned shall ensure, in close cooperation with and under the guidance of the Agency, that at least the following regulatory tasks are performed in relation to their regional markets:
(a) cooperate at least at a regional level to foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint gas exchanges and the allocation of cross-border capacity, and to enable a minimum level of interconnection capacity, including through new interconnections, within the region and between regions to allow for development of effective competition and improvement of security of supply.
cooperate at least at a regional level to:
cooperation at least at a regional (i) foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint gas exchanges and the
level to foster the creation of operational arrangements in order to ensure an optimal management of the
network, develop joint gas exchanges and the allocation of cross-border capacity, and to ensure an adequate level of interconnection capacity including through new interconnection, within the region and between regions to allow for the development of effective competition and the improvement of security of supply;
(b)
-
-allocation of cross-border capacity, and to enable an adequate level of interconnection capacity, including through new interconnection, within the region and between regions to allow for development of effective competition and improvement of security of supply without discriminating between supply undertakings in different Member States.
harmonisation at least at the
relevant regional level of all technical and market codes for the relevant transmission system operators and other market actors;
(c)
(ii) coordinate the development of all network codes for the relevant transmission system operators and other market actors;
(iii) coordinate the development of the rules governing the management of congestion
2a. National regulatory authorities shall have the right to enter into co- operative arrangements with each other to foster regulatory cooperation.
harmonisation of the rules
governing the management
of congestion;
(d) adoption of rules to ensure that the owners and/or managers of gas exchange(s) which operate the relevant regional pool markets are fully independent of the owners and/or managers of production assets.
Regulatory authorities shall have the right to enter into agreements with each other to foster regulatory cooperation and the actions referred to in first subparagraph shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies.
-
3.The actions referred to in
paragraph 2 shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies.
-
3.The Agency shall decide upon Text corresponding to para 3 of the Commission proposal has been transferred to the Agency Regulation
the regulatory regime for infrastructure connecting at least two Member States:
(a)
upon a joint request from the
competent national regulatory authorities, or,
(b)
where the competent national
regulatory authorities have not been able to reach an agreement on the appropriate regulatory regime within six months from the date the file was brought before the last of these regulatory authorities.
-
4.The Commission may adopt Amendment 105 4. The Commission may adopt Common position maintained
guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with the Agency, and on the situations in which the Agency becomes competent to decide upon the regulatory regime for infrastructures connecting at least two Member States. These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3). deleted guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with the Agency. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
Deleted text has been transferred to the Agency Regulation
Article 24e Amendment 106 Article 42
Compliance with Guidelines
-
-Compliance with guidelines
-
1.Any regulatory authority and the 1. Any regulatory authority and the
Commission may request the opinion of the Agency on the compliance of a decision taken by a regulatory authority with guidelines referred to in this Directive or in Regulation (EC)
No 1775/2005. Commission may request the opinion of the Agency on the compliance of a decision taken by a regulatory authority with the guidelines referred to in this Directive or in Regulation
(EC) No .../...*.
-
2.The Agency shall provide its 2. The Agency shall provide its 2. The Agency shall provide its
2.
opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within four months. opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within two months. opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within four months from the date of receipt of the request. The Agency shall provide its
opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within three months from the date of receipt of the request.
If agreed, to be also adjusted in the Electricity Directive
-
3.Where the regulatory authority which has taken the decision does not comply with the Agency's opinion within four months from the date of receipt, the Agency shall inform the Commission. 3. Where the regulatory authority
which has taken the decision does not comply with the Agency's opinion within four months from the date of receipt of that opinion, the Agency shall inform the Commission accordingly.
-
4.Any regulatory authority may 4. Any regulatory authority may
inform the Commission where it considers that a decision taken by a regulatory authority does not comply with guidelines referred to in this Directive or in Regulation (EC) No inform the Commission where it considers that a decision relevant for cross border-trade taken by another regulatory authority does not comply with the guidelines referred to in this
1775/2005 within two months from the date of that decision. Directive or in Regulation (EC) No .../...
-
*within two months from the
date of that decision.
-
5.Where the Commission, within 5. Where the Commission, within
two months after having been informed by the Agency in accordance with paragraph 3 or by a regulatory authority in accordance with paragraph 4, or on its own initiative within three months from the date of the decision finds that the decision of a regulatory authority raises serious doubts as to its compatibility with guidelines referred to in this Directive or in Regulation (EC) No 1775/2005, the Commission may decide to initiate proceedings. In such a case, it shall invite the regulatory authority and the parties to the proceedings before the regulatory authority to submit comments. two months of having been informed by the Agency in accordance with paragraph 3, or by a regulatory authority in accordance with paragraph 4, or on its own initiative, within three months from the date of the decision, finds that the decision of a regulatory authority raises serious doubts as to its compatibility with the guidelines referred to in this Directive or in Regulation (EC) No .../...*, the Commission may decide to examine the case further. In such a case, it shall invite the regulatory authority and the parties to the proceedings before the regulatory authority to submit observations.
-
6.Where the Commission has 6. Where the Commission takes a
decided to initiate proceedings, it shall, within not more than four months of the date of such decision, issue a final
decision:
(a) not to raise objections against the decision of the regulatory authority;
or (b) requiring the regulatory authority concerned to amend or withdraw its decision if it considers that guidelines have not been complied with. decision to examine the case further, it shall, within four months of the date of such decision, issue a final decision:
(a)
not to raise objections against
the decision of the regulatory authority; or
(b)
to require the regulatory
authority concerned to withdraw its decision on the basis that the guidelines have not been complied with.
taken a decision to initiate proceedings or a final decision within the time- limits set in paragraphs 5 and 6 respectively, it shall be deemed not to have raised objections against the decision of the regulatory authority. taken a decision to examine the case further or a final decision within the time-limits set in paragraphs 5 and 6 respectively, it shall be deemed not to have raised objections to the decision of the regulatory authority.
-
8.The regulatory authority shall 8. The regulatory authority shall
comply with the Commission decision to amend or withdraw their decision within a period of two months and shall inform the Commission accordingly. comply with the Commission decision to withdraw its decision within a period of two months and shall inform the Commission accordingly.
-
9.The Commission shall adopt 9. The Commission may adopt
guidelines setting out the details of the procedure to be followed for the application of this Article. This measure designed to amend non- essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3). guidelines setting out the details of the procedure to be followed by the regulatory authorities, the Agency and the Commission as regards the compliance of decisions taken by regulatory authorities with the guidelines referred to in this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
Article 24f Amendment 107 Article 43 Common position maintained
-
1.Member States shall require 1. Member States shall require supply undertakings to keep at the disposal of the competent authorities, to enable them to fulfil their duties, for at least five years, the relevant data relating to all transactions in gas supply contracts and gas derivatives with wholesale customers and transmission system operators as well as storage and LNG Record keeping
supply undertakings to keep at the disposal of the national regulatory authority, the national competition authority and the Commission, for at least five years, the relevant data relating to all transactions in gas supply contracts and gas derivatives with wholesale customers and 1. Member States shall require
supply undertakings to keep at the disposal of the national authorities, including the regulatory authority, the national competition authorities and the Commission, for the fulfilment of their tasks, for at least five years, the relevant data relating to all transactions
transmission system operators as well as storage and LNG operators. operators. in gas supply contracts and gas derivatives with wholesale customers and transmission system operators as well as storage and LNG operators.
-
2.The data shall include details on Amendment 108 2. The data shall include details on Common position maintained
the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled gas supply contracts and gas derivatives. 2. The data may include details on the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled gas supply contracts and gas derivatives. the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled gas supply contracts and gas derivatives.
-
4.To ensure the uniform Amendment 109 4. To ensure the uniform Common position maintained
application of this Article, the Commission may adopt guidelines which define the methods and arrangements for record keeping as well as the form and content of the data that shall be kept. These measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3). deleted application of this Article, the Commission may adopt guidelines which define the methods and arrangements for record keeping as well as the form and content of the data that shall be kept. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 50(3).
-
5.With respect to transactions in Amendment 110 5. With respect to transactions in Common position maintained
gas derivatives of supply undertakings with wholesale customers and transmission system operators as well as storage and LNG operators, this Article shall only apply once the Commission has adopted the deleted gas derivatives of supply undertakings with wholesale customers and transmission system operators as well as storage and LNG operators, this Article shall apply only once the Commission has adopted the
guidelines referred to in paragraph 4. guidelines referred to in paragraph 4.
-
6.The provisions of this Article shall not create additional obligations vis-à- vis the authorities mentioned in paragraph 1 for entities falling within the scope of Directive 2004/39/EC. 6. The provisions of this Article
shall not create additional obligations towards the authorities referred to in paragraph 1 for entities falling within the scope of Directive 2004/39/EC.
-
7.In case the authorities mentioned in paragraph 1 need access to data kept by entities falling within the scope of Directive 2004/39/EC, the authorities responsible under that Directive shall provide the authorities mentioned in 7. In the event that the authorities
referred to in paragraph 1 need access to data kept by entities falling within the scope of Directive 2004/39/EC, the authorities responsible under that Directive shall provide them with the
paragraph 1 with the required data. required data.
CHAPTER IX
Retail markets
Article 441
Retail markets
In order to facilitate the emergence of well functioning and transparent retail markets in the Community, Member States shall ensure that the roles and responsibilities of transmission system operators, distribution system operators, supply undertakings and customers and if necessary other market parties are defined with respect to contractual arrangements, commitment to customers, data exchange and settlement rules, data ownership and metering responsibility. Those rules shall be made public, be designed with the aim to facilitate customers' and suppliers' access to networks and they shall be subject to review by the regulatory authorities or other relevant national authorities.
Amendment 128 Not acceptable, see compromise proposal for Art. 27a
(15a) The following article shall be
inserted: "Article 26a 1. Member States may exempt industrial sites from Articles 4 and, Article 7, Article 8(1) and (2), Articles 9 and 11, Article 12(5), Articles 13, 17 and 18, Article 23(1) and/or Article 24 of this Directive.
-
2.Third-party access shall not be affected by the exemptions referred to in paragraph 1. Customers on industrial sites shall be able freely to choose their energy supplier, having resort to the national regulator in the event of a disagreement with the network operator."
Article 46
Level playing field
-
1.Measures that the Member
States may take pursuant to this Directive in order to ensure a level playing field shall be compatible with the Treaty, notably Article 30 thereof, and with the legislation of the Community.
2.
The measures referred to in
paragraph 1 shall be proportionate, non-discriminatory and transparent. Those measures may be put into effect only following the notification to and approval by the Commission.
3.
The Commission shall act on the
notification referred to in paragraph 2 within two months of the receipt of the notification. That period shall begin on the day following receipt of the complete information. In the event that the Commission has not acted within that two-month period, it shall be deemed not to have raised objections to the notified measures.
Article 47
Derogations in relation to take-or-pay
-
1.If a natural gas undertaking
encounters, or considers it would encounter, serious economic and financial difficulties because of its take-or-pay commitments accepted in one or more gas-purchase contracts, it may send an application for a temporary derogation from Article 31 to the Member State concerned or the designated competent authority. Applications shall, in accordance with the choice of Member States, be presented on a case-by-case basis either before or after refusal of access to the system. Member States may also give the natural gas undertaking the choice of presenting an application either before or after refusal of access to the system. Where a natural gas undertaking has refused access, the application shall be presented without delay. The applications shall be accompanied by all relevant information on the nature and extent of the problem and on the efforts undertaken by the natural gas undertaking to solve the problem.
If alternative solutions are not reasonably available, and taking into account paragraph 3, the Member State or the designated competent authority may decide to grant a derogation.
2.
The Member State, or the
designated competent authority, shall notify the Commission without delay
of its decision to grant a derogation, together with all the relevant information with respect to the derogation. That information may be submitted to the Commission in an aggregated form, enabling the Commission to reach a well-founded decision. Within eight weeks of its receipt of this notification, the Commission may request that the Member State or the designated competent authority concerned amend or withdraw the decision to grant a derogation.
If the Member State or the designated competent authority concerned does not comply with this request within a period of four weeks, a final decision shall be taken expeditiously in accordance with the advisory procedure referred to in Article 50(2).
The Commission shall preserve the confidentiality of commercially sensitive information.
4.
Natural gas undertakings which
have not been granted a derogation as referred to in paragraph 1 of this Article shall not refuse, or shall no longer refuse, access to the system because of take-or-pay commitments accepted in a gas purchase contract. Member States shall ensure that the relevant provisions of Chapter VII namely Articles 31 to 44 are complied
with.
Article 48
Emergent and isolated markets
-
1.Member States not directly
connected to the interconnected system of any other Member State and having only one main external supplier may derogate from Articles 4, 9, 36 and/or 37. A supply undertaking having a market share of more than 75 % shall be considered to be a main supplier. Any such derogation shall automatically expire when at least one of the conditions referred to in this subparagraph no longer applies. Any such derogation shall be notified to the Commission. Cyprus may derogate from Articles 4, 9, 36 and/or 37. This derogation shall expire from the moment when Cyprus is not qualifying as an isolated market.
Articles 4, 9, 36 and/or 37 shall not apply to Estonia, Latvia and/or Finland until any of those Member States is directly connected to the interconnected system of any Member State other than Estonia, Latvia, Lithuania and Finland. This sub-paragraph is without prejudice to derogations under the first subparagraph of this paragraph.
-
2.A Member State, qualifying as
an emergent market, which, because of the implementation of this Directive, would experience substantial problems
may derogate from Articles 4 und 9, Article 13(1) and (2), Articles 14 and 24, Article 25(5), Articles 26, 30 and 31, Article 36(1) and/or Article 37. This derogation shall automatically expire from the moment when the Member State no longer qualifies as an emergent market. Any such derogation shall be notified to the Commission. Cyprus may derogate from Articles 4 and 9, Article 13(1) and (2), Articles 14 and 24, Article 25(5), Articles 26, 30 and 31, Article 36(1) and/or Article 37. This derogation shall expire from the moment when Cyprus is not qualifying as an emergent market.
-
3.On the date at which the
derogation referred to in the first subparagraph of paragraph 2 expires, the definition of eligible customers shall result in an opening of the market equal to at least 33 % of the total annual gas consumption of the national gas market. Two years thereafter, Article 36(1)(b) shall apply, and three years thereafter, Article 36(1)(c) shall apply. Until Article 36(1)(b) applies the Member State referred to in paragraph 2 of this Article may decide not to apply Article 31 as far as ancillary services and temporary storage for the re-gasification process and its subsequent delivery to the transmission system are concerned.
-
4.Where the implementation of
this Directive would cause substantial
problems in a geographically limited area of a Member State, in particular concerning the development of the transmission and major distribution infrastructure, and with a view to encouraging investments, the Member State may apply to the Commission for a temporary derogation from Articles 4 and 9, Article 13(1) and (2), Articles 14 and 24, Article 25(5), Articles 26, 30 and 31, Article 36(1) and/or Article 37 for developments within this area.
(5) (last two subparas)
For gas infrastructure other than
distribution infrastructure, a derogation may be granted only if no gas infrastructure has been established in the area or if gas infrastructure has been established for less than 10 years. The temporary derogation shall not exceed 10 years from the time gas is first supplied in the area.
For distribution infrastructure a derogation may be granted for a period not exceeding 20 years from when gas is first supplied through the said infrastructure in the area.
-
6.Article 9 shall not apply to
Cyprus, Luxembourg and/or Malta.
-
8.Greece may derogate from
Articles 4, 24, 25, 26, 31, 36 and/or 37 of this Directive for the geographical areas and time periods specified in the licences issued by it, prior to 15 March 2002 and in accordance with
Directive 98/30/EC, for the development and exclusive exploitation of distribution networks in certain geographical areas.
Article 49
Review procedure
1 subpara
In the event that in the report referred to in Article 51(3), the Commission reaches the conclusion that, given the effective manner in which network access has been carried out in a Member State which gives rise to fully effective, non-discriminatory and unhindered network access certain obligations imposed by this Directive on undertakings (including those with respect to legal unbundling for distribution system operators) are not proportionate to the objective pursued, the Member State in question may submit a request to the Commission for exemption from the requirement in question.
Article 51 Reporting
-
1.(introductory part)
The Commission shall monitor and review the application of this Directive and submit an overall progress report to the European Parliament and the Council for the first time by ...
, and
thereafter on an annual basis. The progress report shall cover at least:
(b) the derogations granted under
this Directive, including implementation of the derogation provided for in Article 26(2) with a view to a possible revision of the threshold;
last subpara Where appropriate, the progress report may include recommendations and measures to counteract the negative effects of market dominance and market concentration.
-
2.Every two years, the progress
report referred to in paragraph 1 shall also include an analysis of the different measures taken in Member States to meet public service obligations, together with an examination of the effectiveness of those measures, and, in particular, their effects on competition in the gas market. Where appropriate, the report may include recommendations as to the measures to be taken at national level to achieve high public service standards or measures intended to prevent market foreclosure.
-
3.The Commission shall, by ...*,
submit, as part of the general review, to the European Parliament and the Council, a detailed specific report outlining the extent to which the
unbundling requirements under Chapter IV have been successful in ensuring full and effective independence of transmission system operators, using effective and efficient unbundling as a benchmark.
-
4.For the purpose of its
assessment under paragraph 3, the Commission shall take into account, in particular, the following criteria: fair and non-discriminatory network access, effective regulation, the development of the network to meet market needs, undistorted incentives to invest, the development of interconnection infrastructure, effective competition in the energy markets of the Community and the security of supply situation in the Community.
-
5.Where appropriate, and in
particular in the event that the detailed specific report referred to in paragraph 3 determines that the conditions referred to in paragraph 4 have not been guaranteed in practice, the Commission shall submit proposals to the European Parliament and the Council to ensure fully effective independence of transmission system operators by ...
**.
Article 52
Directive 2003/55/EC is repealed from ...
-
*without prejudice to the obligations
of Member States concerning the deadlines for transposition and application of the said Directive. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex B.
Article 2 Article 53
-
1.Member States shall bring into Transposition
force the laws, regulations and administrative provisions necessary to comply with this Directive by 18 months after entry into force at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. They shall apply these provisions from 18 months after entry into force. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 1. Member States shall bring into
force the laws, regulations and administrative provisions necessary to comply with this Directive by ...
.
They shall forthwith inform the Commission thereof. They shall apply these provisions from ...
with the exception of Article 11,
which they shall apply from ...**.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
-
*OJ: Please insert the date 18 months after entry into force of this Directive.
** OJ: Please insert the date 42 months after entry into force of this Directive.
-
Amendment 111 ANNEX A
(17) Annex A shall be replaced by the
following: "Without prejudice to Community rules on consumer protection, in particular Directives 97/7/EC of the European Parliament and of the Council and Council Directive 93/13/EC, the measures referred to in Article 3 are to ensure that
customers:
(a) have a right to a contract with their gas service provider that
specifies:
-
-the identity and address of the supplier;
-
-the services provided, the service quality levels offered, as well as the time for the initial connection;
-
-MEASURES ON CONSUMER
PROTECTION
Without prejudice to Community rules on consumer protection, in particular Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts
1 and Council
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
2,
the measures referred to in Article 3 are to ensure that customers:
(a)
have a right to a contract with (a) have a right to a contract with
their gas service provider that
specifies: their gas service provider that
specifies:
-
-
-the identity and address of the supplier; the identity and address of the
supplier;
-
-
-the services provided, the service quality levels offered, as well as the time for the initial connection; the services provided, the service
quality levels offered, as well as the time for the initial connection;
-
[ [ [ [...] ] ] ] the types of maintenance - if offered, the types of maintenance service offered; [ [ [ [...] ] ] ] the types of maintenance
service offered;
-
-the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained;
-
-the duration of the contract, the conditions for renewal and service offered;
-
-
-the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained; the means by which up-to-date
information on all applicable tariffs and maintenance charges may be obtained;
-
-
-the duration of the contract, the conditions for renewal and the duration of the contract, the
conditions for renewal and termination
1 OJ L 144, 4.6.1997, p. 19.
-
termination of services and of the contract, the existence of any right of withdrawal without charge;
-
-any compensation and the refund arrangements which apply if contracted service quality levels are not met including inaccurate and delayed billing; termination of services and of the contract, the existence of any right of withdrawal; of services and of the contract and whether withdrawal from the contract without charge is permitted
- ;
any compensation and the refund arrangements which apply if contracted service quality levels are not met; and - any compensation and the refund
arrangements which apply if contracted service quality levels are not met, including inaccurate and delayed billing;
-
[ [ [ [...] ] ] ]
-
-
-the method of initiating procedures for settlement of disputes in accordance with point (f);
-
-information on consumer rights, including all of the above, clearly communicated through billing and electricity company web sites; and
-
-details concerning the competent appeals authority and of the procedure to be followed by customer
in case of dispute. Conditions shall be fair and well known in advance. In any case, this information should be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, the above information shall also be provided prior to the conclusion of the contract;
(b) are given adequate notice of any intention to modify contractual conditions and are informed about their right of withdrawal when the notice is given. Service providers the method of initiating procedures for settlement of disputes in accordance with point (f). the method of initiating
procedures for settlement of disputes in accordance with point (f);
-
-information on consumer rights, including on the complaint handling and all of the above, clearly communicated through billing or natural gas companies' web sites;
and
Conditions shall be fair and well- known in advance. In any case, this information should be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, the information relating to the matters set out in this point shall also be provided prior to the conclusion of the contract;
(b)
Conditions shall be fair and well-known in advance. In any case, this information should be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, the information relating to the matters set out in this point shall also be provided prior to the conclusion of the contract;
(b)
are given adequate notice of any are given adequate notice of any
intention to modify contractual conditions and are informed about their right of withdrawal when the notice is given. Service providers shall notify intention to modify contractual conditions and are informed about their right of withdrawal when the notice is given. Service providers shall notify
-
shall notify their subscribers directly of any increase in charges, at an appropriate time no later than one normal billing period after the increase comes into effect in a transparent and comprehensible manner. Member States shall ensure that customers are free to withdraw from contracts if they do not accept the new conditions notified to them by their gas service provider;
(c) receive transparent information on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gas services;
(d) are offered a wide choice of payment methods, which shall not discriminate between customers. Any difference in terms and conditions shall reflect the costs to the supplier of the different payment systems. General terms and conditions shall be fair and transparent. They shall be given in clear and comprehensible language. Customers shall be protected against unfair or misleading selling methods including non-contractual barriers imposed by the trader, for example excessive contractual documentation;
(e) shall not be charged for changing supplier;
(f) benefit from transparent, simple and inexpensive procedures for their subscribers directly of any increase in charges, at an appropriate time no later than one normal billing period after the increase comes into effect. Member States shall ensure that customers are free to withdraw from contracts if they do not accept the new conditions, notified to them by their gas service provider;
(c) their subscribers directly of any increase in charges, at an appropriate time no later than one normal billing period after the increase comes into effect in a transparent and comprehensible manner. Member States shall ensure that customers are free to withdraw from contracts if they do not accept the new conditions notified to them by their gas service provider;
(c)
receive transparent information receive transparent information
on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gas services;
(d) on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gas services;
(d) are offered a wide choice of payment methods, which shall not unduly discriminate between customers.. Any difference in terms and conditions shall reflect the costs to the supplier of the different payment systems. General terms and conditions shall be fair and transparent. They shall be given in clear and comprehensible language and shall not include non- contractual barriers to the exercise of the customers rights, for example excessive contractual documentation. Customers shall be protected against unfair or misleading selling methods.
(e)
are offered a wide choice of
payment methods. Any difference in terms and conditions shall reflect the costs to the supplier of the different payment systems. General terms and conditions shall be fair and transparent. They shall be given in clear and comprehensible language. Customers shall be protected against unfair or misleading selling methods;
(e)
are not charged for changing are not charged for changing
supplier;
(f) supplier;
(f)
benefit from transparent, simple benefit from transparent, simple
and inexpensive procedures for dealing and inexpensive procedures for dealing
(h) have at their disposal their dealing with their complaints. In particular, all consumers shall have the right to service delivery and complaint handling by their gas service provider. Such procedures shall enable disputes to be settled fairly and promptly, and within three months, with provision, where warranted, for a system of reimbursement and/or compensation. They should follow, wherever possible, the principles set out in Commission Recommendation 98/257/EC;
(g) connected to the gas system are informed about their rights to be supplied, under the national legislation applicable, with natural gas of a specified quality at reasonable prices;
(h) are easily able to switch to a new supplier and have at their disposal their consumption data, and shall be able to, by explicit agreement and free of charge, give any authorised supply undertaking access to its metering data. with their complaints. Such procedures shall enable disputes to be settled fairly and promptly with provision, where warranted, for a system of reimbursement and/or compensation. They should, wherever possible, be in line with the principles set out in Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputeswith their complaints. In particular, all consumers shall have the right to a good standard of service and complaint handling by their gas service provider. Such out-of-court dispute settlements procedures shall enable disputes to be settled fairly and promptly, preferably within three months, with provision, where warranted, for a system of reimbursement and/or compensation. They should, wherever possible, be in line with the principles set out in Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes
(g)
3;
(g)
connected to the gas system are connected to the gas system are
informed about their rights to be supplied, under the national legislation applicable, with natural gas of a specified quality at reasonable prices;
(h) informed about their rights to be supplied, under the national legislation applicable, with natural gas of a specified quality at reasonable prices;
The first part of (h) is already covered in compromise proposals for amdt 46 and amdt 132
(h)
have at their disposal their have at their disposal their
consumption data, and shall be able to, by explicit agreement and free of charge, give any undertaking with a supply license access to its metering data. The party responsible for data consumption data, and shall be able to, by explicit agreement and free of charge, give any undertaking with a supply license access to its metering data. The party responsible for data consumption data, and shall be able to, by explicit agreement and free of charge, give any undertaking with a supply license access to its metering data. The party responsible for data
management is obliged to give these data to the undertaking. Member States shall define a format for the data and a procedure for suppliers and consumers to have access to the data. No additional costs can be charged to the consumer for this service. The party responsible for data management is obliged to give this data to the undertaking. Member States shall define a format for the data and a procedure for suppliers and consumers to have access to the data. No additional costs can be charged to the consumer for this service;
-
i)shall be properly informed at least quarterly of actual gas consumption and costs. No additional costs can be charged to the consumer for this service. The Member States shall ensure that roll-out of smart meters is completed with minimum disruption to consumers within 10 years after the entry into force of the Directive .../...EC which shall be the responsibility of the distribution system operator or supply undertakings. National regulatory authorities shall be responsible for monitoring the process of such development and for laying down common standards for that purpose. Member States shall ensure that standards establishing the minimum technical design and operational requirements for meters address interoperability issues to provide maximum benefit at minimum cost to consumers;
management is obliged to give those data to the undertaking. Member States shall define a format for the data and a procedure for suppliers and consumers to have access to the data. No additional costs shall be charged to the consumer for this service;
(i) management shall be obliged to give those data to the undertaking. Member States shall define a format for the data and a procedure for suppliers and consumers to have access to the data.
No additional costs shall be charged to the consumer for this service;
(i) are properly informed of actual gas consumption and costs frequently enough to enable them to regulate their own gas consumption. That information shall be given by using a sufficient time frame, which takes account of the capability of customer's metering equipment. Due account shall be taken of the cost-efficiency of such measures. No additional costs shall be charged to the consumer for this service;
Also covering amdts 75 and 76:
(ia) Member States shall ensure the implementation of intelligent metering systems that shall assist the active participation of consumers in the gas supply market. The implementation of those metering systems may be subject to an economic assessment of all the long- term costs and benefits to the market and the individual consumer or which form of intelligent metering is economically reasonable and cost- effective and which timeframe is feasible for their distribution.
(i) shall be properly informed every
are properly informed of actual
month of actual gas consumption and costs. No additional costs can be charged to the consumer for this service.
gas consumption and costs frequently enough to enable them to regulate their own gas consumption. That information shall be given by using a sufficient time frame, which takes account of the capability of customer's metering equipment. Due account shall be taken of the cost-efficiency of such measures. No additional costs shall be charged to the consumer for this service;
-
-
-
Such assessment shall take place within three years of the entry into force of this Directive.
Based on this assessment, Member States or any competent authority they designate, shall prepare a timetable for the implementation of intelligent metering systems.
The Member States or any competent authority they designate, shall ensure the interoperability of those metering systems to be implemented within their territories and shall have due regard to the use of appropriate standards and best practice and the importance of the development of the internal market in gas.
Addition of the following recital is
suggested: The introduction of intelligent metering systems may be based on an economic assessment. Should that assessment conclude that the introduction of such metering systems is economically reasonable and cost- effective only for consumers with a certain amount of electricity consumption, Member States may take this into account when implementing intelligent metering systems.
(j) can change supplier at any time in the year, and a customer's account with the previous supplier shall not be settled later than one month following the last supply by this previous supplier.
(ja) shall receive a final closure account bill following switching of supply undertaking no later than one month after informing the relevant supply undertaking. j) may change supplier at any time Deletion accepted
in the year and shall be entitled to a final invoice no later than three months following the last supply by the previous supplier.
(ja) shall receive a final closure account following any change of natural gas supplier no later than six weeks after the change of supplier has taken place.
Article 21
Amendment 112 Already covered by Art. 53
If necessary, the following recital could be added: When implementing this Directive, Member States should repeal any laws, regulations and administrative provisions which would prevent any natural gas undertaking, regulatory or other authority from complying with their duties or fulfilling their obligations under this Directive.
2a. The Member States shall repeal any laws, regulations and administrative provisions which prevent any natural gas undertaking, regulatory or other authority from complying with their duties or fulfilling their powers or obligations under this Directive.
Amendment 113 Already covered
2b. The Commission shall report to the European Parliament and the Council annually on the formal and practical implementation of this Directive in each Member State.
Amendment 114 Not acceptable
2c. Where a publicly controlled entity is directly or indirectly involved in the
acquisition of parts of a vertically integrated undertaking, the price in relation to the arrangement of such a transaction shall be notified to the Commission. Such notification shall include certification of the underlying asset value by an international auditing company. The Commission shall use such information solely to exercise control over State aid.
ANNEX B
CORRELATION TABLE
Directive 2003/55/EC This Directive
Article 1 Article 1
Article 2 Article 2
Article 3 Article 3
Article 4 Article 4
Article 5 Article 5
-
-Article 6
-
-Article 7
Article 6 Article 8
Article 9 Article 9
Article 7 Article 10
-
-Article 11
Article 7 Article 12
Article 8 Article 13
-
-Article 14
-
-Article 15
-
-Article 17
-
-Article 18
-
-Article 19
-
-Article 20
-
-Article 21
-
-Article 22
-
-Article 23
Article 11 Article 24
Article 12 Article 25
Article 13 Article 26
Article 14 Article 27
Article 15 Article 28
Article 16 Article 29
Article 17 Article 30
Article 18 Article 31
Article 19 Article 32
Article 20 Article 33
Article 21 Article 34
Article 22 Article 35
Article 23 Article 36
Article 24 Article 37
Article 25(1) (first and second sentence)
Article 38
-
-Article 39
Article 25 (rest) Article 40
-
-Article 41
-
-Article 42
-
-Article 44
Article 26 Article 45
-
-Article 46
Article 27 Article 47
Article 28 Article 48
Article 29 Article 49
Article 30 Article 50
Article 31 Article 51
Article 32 Article 52
Article 33 Article 53
Article 34 Article 54
Article 35 Article 55
Annex A Annex A
| publicatiedatum | 11-03-2009 |
|---|---|
| kenmerk | 5438/1/09 REV 1 |
