Legal provisions of COM(2021)803 - Common rules for the internal markets in renewable and natural gases and in hydrogen - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)803 - Common rules for the internal markets in renewable and natural gases and in hydrogen. |
|---|---|
| document | COM(2021)803  |
| date | June 13, 2024 |
Chapter I
Subject matter, scope and definitions
Article 1 - Subject matter and scope
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.
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2. This Directive establishes rules for the transport, supply and storage of natural gas and the transition of the natural gas system to a system based on renewable and low-carbon gases.
3. This Directive establishes common rules for the transport, supply and storage of hydrogen using the hydrogen system. It lays down the rules relating to the organisation and functioning of this sector, access to the market, the criteria and procedures applicable to the granting of authorisations for networks, supply and storage of hydrogen and the operation of systems.
4. This Directive establishes rules for the progressive establishment of a Union-wide interconnected hydrogen system contributing to the reduction of net greenhouse gas emissions of difficult to decarbonise sectors and thereby supporting to the decarbonisation of the EU energy system.
2009/73/EC
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
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(1) ‘natural gas’ means all gases that primarily consist of methane, including biogas and gas from biomass, in particular biomethane, or other types of gas, that can technically and safely be injected into, and transported through, the natural gas system;
(2) ‘renewable gas’ means biogas as defined in Article 2, point (28) of Directive 2018/2001, including biomethane, and renewable gaseous fuels part of fuels of non-biological origins (‘RFNBOs’) as defined in Article 2, point (36) of that Directive’;
(3) ‘gases’ mean natural gas and hydrogen;
(4) ‘natural gas system’ means a system of infrastructures, including pipelines, LNG terminals and storage facilities, which transports gases, that primarily consist of methane and include biogas and gas from biomass, in particular biomethane, or other types of gas that can technically and safely be injected into, and transported through the natural gas pipeline system.
(5) ‘hydrogen system’ means a system of infrastructure, including hydrogen networks, hydrogen storage, and hydrogen terminals, which contains hydrogen of a high grade of purity;
(6) ‘hydrogen storage facility’ means a facility used for the stocking of hydrogen of a high grade of purity:
(a)including the part of an hydrogen terminal used for storage but excluding the portion used for production operations, and facilities reserved exclusively for hydrogen network operators in carrying out their functions;
(b)including large, in particular underground, hydrogen storage but excluding smaller, easily replicable smaller hydrogen storage installations;
(7) ‘hydrogen linepack’ means the storage of hydrogen of a high grade of purity by compression in hydrogen networks, excluding facilities reserved for hydrogen network operators carrying out their functions;
(8) ‘hydrogen terminal’ means an installation used for the transformation of liquid hydrogen or liquid ammonia into gaseous hydrogen for injection into the hydrogen network or the liquefaction of gaseous hydrogen, including ancillary services and temporary storage necessary for the transformation process and subsequent injection into the hydrogen network, but not any part of the hydrogen terminal used for storage;
(9) ‘hydrogen quality’ means hydrogen purity and contaminants in line with applicable hydrogen quality standards for the hydrogen system;
(10) ‘low-carbon hydrogen’ means hydrogen the energy content of which is derived from non-renewable sources, which meets a greenhouse gas emission reduction threshold of 70%;
(11) ‘low-carbon gas’ means the part of gaseous fuels in recycled carbon fuels as defined in Article 2, point (35) of Directive (EU) 2018/2001, low-carbon hydrogen and synthetic gaseous fuels the energy content of which is derived from low-carbon hydrogen, which meet the greenhouse gas emission reduction threshold of 70%.
(12) ‘low-carbon fuels’ means recycled carbon fuels as defined in Article 2 of Directive (EU) 2018/2001, low-carbon hydrogen and synthetic gaseous and liquid fuels the energy content of which is derived from low-carbon hydrogen, which meet the greenhouse gas emission reduction threshold of 70%.
(13) ‘hydrogen undertaking’ means a natural or legal person carrying out at least one of the following functions: hydrogen production, hydrogen transport, supply, purchase or storage of hydrogen, or operating a hydrogen terminal, and which is responsible for the commercial, technical or maintenance tasks related to those functions, but not including final customers;
2009/73/EC (adapted)
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(141)‘natural gas undertaking’ means a natural or legal person carrying out at least one of the following functions: production, transmission, distribution, supply, purchase or storage of natural gas, including LNG, and which is responsible for the commercial, technical and/or maintenance tasks related to those functions, but shall not include including final customers;
(152)‘upstream pipeline network’ means any pipeline or network of pipelines operated and/or constructed as part of an oil or natural gas production project, or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal;
(163)‘transmission’ means the transport of natural gas through a network, which mainly contains 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;
(174)‘transmission system operator’ means a natural or legal person who carries out the function of transmission and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the transmission system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the transport of natural gas;
(185)‘distribution’ means the transport of natural gas through local or regional pipeline networks with a view to its delivery to customers, but not including supply;
(196)‘distribution system operator’ means a natural or legal person who carries out the function of distribution and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the distribution system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the distribution of natural gas;
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(20) ‘hydrogen network’ means a network of pipelines used for the transport of hydrogen of a high grade of purity with a view to its delivery to customers, but not including supply;
(21) ‘hydrogen transport’ means the transport of hydrogen through a hydrogen network with a view to its delivery to customers, but not including supply, irrespective of the pressure, the geographic coverage or the connected customer group of the network;
(22) ‘hydrogen network operator’ means a natural or legal person who carries out the function of hydrogen transport and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the hydrogen network in a given area and, where applicable, its interconnections with other hydrogen networks, and for ensuring the long-term ability of the system to meet reasonable demands for the transport of hydrogen;
2009/73/EC (adapted)
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(237)‘supply’ means the sale, including resale, of natural gas, including LNG, or hydrogen, including liquid hydrogen , to customers;
(248)‘supply undertaking’ means any natural or legal person who carries out the function of supply;
(259)‘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;
(2610)‘storage system operator’ means a natural or legal person who carries out the function of storage of natural gas and is responsible for operating a storage facility;
(2711)‘LNG facility’ means a terminal which is used for the liquefaction of natural gas or the importation, offloading, and re-gasification of LNG, and includes including ancillary services and temporary storage necessary for the re-gasification process and subsequent delivery to the transmission system, but does not include including any part of LNG terminals used for storage;
(2812)‘LNG system operator’ means a natural or legal person who carries out the function of liquefaction of natural gas, or the importation, offloading, and re-gasification of LNG and is responsible for operating a LNG facility;
(2913)‘system’ means any transmission networks, distribution networks, LNG facilities and/or storage facilities owned and/or operated by a natural gas undertaking, including linepack and its facilities supplying ancillary services and those of related undertakings necessary for providing access to transmission, distribution and LNG;
(3014)‘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 not including facilities reserved exclusively for transmission system operators carrying out their functions;
(3115)‘ natural gas linepack’ means the storage of natural gas by compression in gas transmission and distribution systems, but not including facilities reserved for transmission system operators carrying out their functions;
(3216)‘interconnected system’ means a number of systems which are linked with each other;
2019/692 Art. 1.1
(3317)‘interconnector’ means a transmission line which crosses or spans a border between Member States for the purpose of connecting the national transmission system of those Member States or a transmission line between a Member State and a third country up to the territory of the Member States or the territorial sea of that Member State;
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(34) ‘hydrogen interconnector’ means a hydrogen network which crosses or spans a border between Member States, or between a Member State and a third country up to the territory of the Member States or the territorial sea of that Member State;
2009/73/EC (adapted)
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(3518)‘direct line’ means a natural gas pipeline complementary to the interconnected system;
(3619)‘integrated natural gas undertaking’ means a vertically or horizontally integrated undertaking;
(3720)‘vertically integrated undertaking’ means a natural gas undertaking or a group of natural gas undertakings or a hydrogen undertaking or group of hydrogen 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, hydrogen transport, hydrogen terminal operation, LNG or natural gas or hydrogen storage, and at least one of the functions of production or supply of natural gas or of hydrogen .
(3821)‘horizontally integrated undertaking’ means an undertaking performing at least one of the functions of production, transmission, distribution, supply or storage of natural gas, and a non- natural gas activity;
(3922)‘related undertaking’ means an affiliated undertaking, within the meaning of Article 41 of Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 44(2)(g) 28 of the Treaty on consolidated accounts 29 and/or an associated undertaking, within the meaning of Article 33(1) of that Directive as defined in point (12) of Article 2 of Directive 2013/34/EU of the European Parliament and of the Council 30 , and/or an undertaking which belong belongs to the same shareholders;
(4023)‘system user’ means a natural or legal person supplying to, or being supplied by, the system;
(4124)‘customer’ means a wholesale or final customer of natural gas gases or a natural gas or hydrogen undertaking which purchases natural gas gases ;
(4225)‘household customer’ means a customer purchasing natural gas gases for his own household consumption;
(4326)‘non-household customer’ means a customer purchasing natural gas gases which isare not for his own household use;
(4427)‘final customer’ means a customer purchasing natural gas gases for his own use;
(28) ‘eligible customer’ means a customer who is free to purchase gas from the supplier of his choice, within the meaning of Article 37;
(4529)‘wholesale customer’ means a natural or legal person other than a transmission system operator or distribution system operator who purchases natural gas gases for the purpose of resale inside or outside the system where he is established;
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(46) ‘microenterprise’ means an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million;
(47) ‘small enterprise’ means an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million;
2009/73/EC (adapted)
(30) ‘long-term planning’ means the planning of supply and transport capacity of natural gas undertakings on a long-term basis with a view to meeting the demand for natural gas of the system, diversification of sources and securing supplies to customers;
(31) ‘emergent market’ means a Member State in which the first commercial supply of its first long-term natural gas supply contract was made not more than 10 years earlier;
(4832)‘security’ means both security of supply of natural gas and technical safety;
(33) ‘new infrastructure’ means an infrastructure not completed by 4 August 2003;
(4934)‘gas supply contract’ means a contract for the supply of natural gases, but does not include a gas derivative;
(5035)‘gas derivative’ means a financial instrument specified in points 5, 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 Section C of Annex I to Directive 2014/65/EU on market financial instruments 31 , where that instrument relates to natural gas;
(5136)‘control’ means any rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
(a)ownership or the right to use all or part of the assets of an undertaking;
(b)rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking;.;
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(52) ‘long-term contract’ means a supply contract exceeding one year.
(53) ‘entry-exit system’ means the aggregation of all transmission and distribution systems to which one specific balancing regime applies;
(54) ‘balancing zone’ means an entry-exit system to which a specific balancing regime applies;
(55) ‘virtual trading point’ means a non-physical commercial point within an entry-exit system where gases are exchanged between a seller and a buyer without the need to book transmission or distribution capacity.
(56) ‘entry point’ means a point subject to booking procedures by network users or producers providing access to an entry-exit system.
(57) ‘exit point’ means a point subject to booking procedures by network users or final customers enabling gas flows out of the entry exit system .
(58) ‘interconnection point’ means a physical or virtual point connecting adjacent entry-exit systems or connecting an entry-exit system with an interconnector, in so far as these points are subject to booking procedures by network users;
(59) ‘virtual interconnection point’ means two or more interconnection points which connect the same two adjacent entry-exit systems, integrated together for the purposes of providing a single capacity service;
(60) ‘market participant’ means a natural or legal person who buys, sells or produces gases or who is an operator of storage services including through the placing of orders to trade in one or more gas markets including balancing markets;
(61) ‘contract termination fee’ means a charge or penalty imposed on customers by suppliers or market participants, for terminating a gas supply or service contract;
(62) ‘switching-related fee’ means a charge or penalty for changing suppliers or market participants, including contract termination fees, that is directly or indirectly imposed on customers by suppliers, market participants or system operators;
(63) ‘billing information’ means the information provided on a final customer's bill, apart from a request for payment;
(64) ‘conventional meter’ means an analogue or electronic meter with no capability to both transmit and receive data;
(65) ‘smart metering system’ means an electronic system that is capable of measuring gas fed into the grid or gas consumed from the grid, providing more information than a conventional meter, and that is capable of transmitting and receiving data for information, monitoring and control purposes, using a form of electronic communication;
(66) ‘interoperability’ means, in the context of smart metering, the ability of two or more energy or communication networks, systems, devices, applications or components to interwork to exchange and use information in order to perform required functions;
(67) ‘most recent available’ means, in the context of smart metering data, that it is provided within a period matching the shortest settlement period in the national market;
(68) ‘best available techniques’ means, in the context of data protection and security in a smart metering environment, the most effective, advanced and practically suitable techniques for providing, in principle, the basis for complying with the Union data protection and security rules;
(69) ‘energy poverty’ means energy poverty as defined in point (49) of Article 2 of Directive (EU) 2021/0203 COD of the European Parliament and of the Council.
(70) ‘citizen energy community’ means a legal entity that:
(a)is based on voluntary and open participation and is effectively controlled by members or shareholders that are natural persons, local authorities, including municipalities, or small enterprises;
(b)has for its primary purpose to provide environmental, economic or social community benefits to its members or shareholders or to the local areas where it operates rather than to generate financial profits; and
(c)engages in production, distribution, supply, consumption, or storage of renewable gas in the natural gas system, or provides energy efficiency services or maintenance services to its members or shareholders;
(71) ‘active customer’ means a final natural gas customer, or a group of jointly acting final natural gas customers, who consumes or stores renewable gas, produced within its premises located within confined boundaries or, where permitted by a Member State, within other premises, or who sells self-produced renewable gas using the natural gas system, or participates in energy efficiency schemes, provided that those activities do not constitute its primary commercial or professional activity;
2009/73/EC (adapted)
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Chapter II
General rules for the organisation of the sector market and infrastructure access
Article 337 - Market opening and reciprocity Competitive, consumer-centred, flexible and non-discriminatory markets for gases
1. Member States shall ensure that the eligible customers comprise: all customers are free to purchase gases from the supplier of their choice and shall ensure that all customers are free to have more than one supply contract for natural gas or hydrogen at the same time, provided that the required connection and metering points are established.new
2. Member States shall ensure that their national law does not unduly hamper cross-border trade in gases, the functioning and emergence of liquid trading for gases, consumer participation, investments into, in particular, renewable and low carbon gases, or energy storage between Member States, and shall ensure that prices for gases reflect actual demand and supply.
3. Member States shall ensure that no undue barriers exist within the internal market for gases as regards market entry and exit, trading and operation.
4. Member States shall ensure that energy undertakings are subject to transparent, proportionate and non-discriminatory rules, fees and treatment, in particular with respect to access to wholesale markets, access to data, switching processes and billing regimes and, where applicable, licensing.
5. Member States shall ensure that market participants from third countries, when operating within the internal market for gases, comply with applicable Union and national law.
2009/73/EC Article 37
(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 32 . 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.
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Article 4 - Market based supply prices
1. Suppliers shall be free to determine the price at which they supply gases to customers. Member States shall take appropriate actions to ensure effective competition between suppliers.2. Member States shall ensure the protection of energy poor and vulnerable household customers pursuant to Articles 25 by social policy or by other means than public interventions in the price setting for the supply of gases.
3. By way of derogation from paragraphs 1 and 2, Member States may apply public interventions in the price setting for the supply of natural gas to energy poor or vulnerable household customers. Such public interventions shall be subject to the conditions set out in paragraphs 4 and 5.
4. Public interventions in the price setting for the supply of natural gas shall:
(a)pursue a general economic interest and not go beyond what is necessary to achieve that general economic interest;
(b)be clearly defined, transparent, non-discriminatory and verifiable;
(c)guarantee equal access for Union natural gas undertakings to customers;
(d)be limited in time and proportionate as regards their beneficiaries;
(e)not result in additional costs for market participants in a discriminatory way.
5. Any Member State applying public interventions in the price setting for the supply of natural gas in accordance with paragraph 3 of this Article shall also comply with of Article 3(3), point (d) and with Article 24 of Regulation (EU) 2018/1999, regardless of whether the Member State concerned has a significant number of households in energy poverty.
6. For the purpose of a transition period to establish effective competition for natural gas supply contracts between suppliers, and to achieve fully effective market-based retail pricing of gas in accordance with paragraph 1, Member States may apply public interventions in the price setting for the supply of natural gas to household customers and to microenterprises that do not benefit from public interventions pursuant to paragraph 3.
7. Public interventions pursuant to paragraph 6 shall comply with the criteria set out in paragraph 4 and shall:
(a)be accompanied by a set of measures to achieve effective competition and a methodology for assessing progress with regard to those measures;
(b)be set using a methodology that ensures non-discriminatory treatment of suppliers;
(c)be set at a price that is above cost, at a level where effective price competition can occur;
(d)be designed to minimise any negative impact on the wholesale natural gas market;
(e)ensure that all beneficiaries of such public interventions have the possibility to choose competitive market offers and are directly informed at least every quarter of the availability of offers and savings in the competitive market, and shall ensure that they are provided with assistance to switch to a market-based offer;
(f)ensure that, pursuant to Articles 18 and 19, all beneficiaries of such public interventions are entitled to, and are offered to, have smart meters installed at no extra upfront cost to the customer, are directly informed of the possibility of installing smart meters and are provided with necessary assistance;
(g)not lead to direct cross-subsidisation between customers supplied at free market prices and those supplied at regulated supply prices.
8. Member States shall notify the measures taken in accordance with paragraphs 3 and 6 to the Commission within one month after their adoption and may apply them immediately. The notification shall be accompanied by an explanation of why other instruments were not sufficient to achieve the objective pursued, of how the requirements set out in paragraphs 4 and 7 are fulfilled and of the effects of the notified measures on competition. The notification shall describe the scope of the beneficiaries, the duration of the measures and the number of household customers affected by the measures, and shall explain how the regulated prices have been determined.
9. From 15 March 2025, and every two years thereafter, as part of the integrated national energy and climate progress reports, Member States shall submit reports to the Commission on the implementation of this Article, the necessity and proportionality of public interventions under this Article, and an assessment of the progress towards achieving effective competition between suppliers and the transition to market-based prices. Member States that apply regulated prices in accordance with paragraph 6 shall report on the compliance with the conditions set out in paragraph 7, including on compliance by suppliers that are required to apply such interventions, as well as on the impact of regulated prices on the finances of those suppliers.
10. The Commission shall review and submit a report to the European Parliament and to the Council on the implementation of this Article for the purpose of achieving market-based retail pricing of natural gas, together with or followed by a legislative proposal, if appropriate. This report may be combined with the report on the implementation of Article 5 of Directive (EU) 2019/944. That legislative proposal may include an end date for regulated prices.
2009/73/EC (adapted)
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Article 53 - Public service obligations and customer protection
1. Member States shall ensure, on the basis of their institutional organisation and with due regard to the principle of subsidiarity, that, without prejudice to paragraph 2, natural gas and hydrogen undertakings are operated in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market in natural gas gases , and shall not discriminate between those undertakings as regards their rights or obligations.2. Having full regard to the relevant provisions of the TFEU Treaty, in particular Article 86 Article 106 thereof, Member States may impose on natural gas and hydrogen 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 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 and hydrogen undertakings of the Community Union to national consumers. In relation to security of supply, energy efficiency/demand-side management 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.
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3. Public service obligations related to the security of gas supply shall not go beyond what is necessary to ensure compliance with the gas supply standards pursuant to Article 6 of Regulation (EU) 2017/1938 and shall be coherent with the results of the national risk assessments carried out pursuant to Article 7(3), as detailed in the Preventive Action Plans prepared pursuant to Article 9(1), points (c),(d) and (k) of the same Regulation.
4. Where financial compensation or other forms of compensation are granted by a Member State for the fulfilment of the obligations set out in this Article, it shall be done in a non-discriminatory and transparent way.
2009/73/EC (adapted)
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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, inter alia, to the prohibition of disconnection of gas to 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 system. 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 I.
4. Member States shall take appropriate measures, such as formulating national energy action plans, providing social security benefits to ensure the necessary gas supply to vulnerable customers, or providing for 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 37 and market functioning and shall be notified to the Commission, where relevant, in accordance with paragraph 11 of this Article. Such notification shall not include measures taken within the general social security system.
5. Member States shall ensure that all customers connected to the gas network 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 necessary to ensure that administrative procedures do not constitute a barrier for supply undertakings already registered in another Member State.
6. Member States shall ensure that:
(a)where a customer, while respecting the contractual conditions, wishes to change supplier, the change is effected by the operator(s) concerned within three 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) of the first subparagraph are granted to customers in a non-discriminatory manner as regards cost, effort or time.
7. Member States shall implement appropriate measures to achieve the objectives of social and economic 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.
8. In order to promote energy efficiency, Member States or, where a Member State has so provided, the regulatory authority shall strongly recommend that natural gas undertakings optimise the use of gas, for example by providing energy management services, developing innovative pricing formulas or introducing intelligent metering systems or smart grids where appropriate.
9. 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 in order to ensure efficient treatment of complaints and out-of-court dispute settlements.
10. Member States may decide not to apply the provisions of Article 4 with respect to distribution insofar as their application would obstruct, in law or in fact, the performance of the obligations imposed on natural gas undertakings in the general economic interest and insofar as the development of trade would not be affected to such an extent as would be contrary to the interests of the Community. The interests of the Community include, inter alia, competition with regard to eligible customers in accordance with this Directive and Article 86 of the Treaty.
511. Member States shall, upon implementation of this Directive, inform the Commission of all measures adopted to fulfil public service obligations, including consumer and environmental protection, and their possible effect on national and international competition, whether or not such measures require a derogation from the provisions of this Directive. They shall notify the Commission subsequently every two years of any changes to such measures, whether or not they require a derogation from this Directive.
12. 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 provide their consumers with a copy of the energy consumer checklist and ensure that it is made publicly available.
Article 67
Promotion of regional cooperation and integration
1. Member States as well as the regulatory authorities shall cooperate with each other for the purpose of integrating their national markets at one and more regional levels, as a first step towards the creation of regional markets, where Member States as well regulatory authorities so decided, and further towards the creation of a fully liberalised internal market. In particular, the regulatory authorities where Member States have so provided or Member States shall promote and facilitate the cooperation of natural gas transmission system operators and hydrogen network operators at a regional level, including on cross-border issues , with the aim of creating a competitive internal market for gases in natural gass, foster the consistency of their legal, regulatory and technical framework and facilitate integration of the isolated systems forming gas islands that persist in the Community Union . The geographical areas covered by such regional cooperation shall include cooperation in geographical areas defined in accordance with Article 2812(3) of Regulation (EC) No 715/2009. Such cooperation may cover other geographical areas. Where the Commission considers that the rules at Union levelare relevant for the regional integration of markets for gases, it shall provide appropriate guidance taking into account the specificities of these markets and the impact on neighbouring markets.
2. The Agency for the Cooperation of Energy Regulators (‘ACER Agency ’) shall cooperate with national regulatory authorities and transmission system operators to ensure the compatibility of regulatory frameworks between and within the regions with the aim of creating a competitive internal market in natural gas gases . Where ACER the Agency considers that binding rules on such cooperation are required, it shall make appropriate recommendations.
3. 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.
34. Where 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 ACER the Agency. Compliance with the programme shall be independently monitored by the compliance officers of the vertically integrated transmission system operators.
Article 74 - Authorisation procedure
1. In circumstances where an authorisation (for example, a licence, permission, concession, consent or approval) is required for the construction or operation of natural gas facilities , hydrogen production facilities and hydrogen system infrastructure , the Member States or any competent authority they designate shall grant authorisations to build and/or operate such facilities, infrastructure, pipelines and associated equipment on their territory, in accordance with paragraphs 2 to 114. Member States or any competent authority they designate may also grant authorisations on the same basis for the supply of natural gas gases and for wholesale customers.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 supply gases or to construct and/or operate build natural gas facilities , hydrogen production facilities or hydrogen system infrastructure 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 such facilities, infrastructure, pipelines and associated equipment take into account the importance of the project for the internal market in natural gas for gases where appropriate.
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3. The authorisation procedures for the activities referred to in paragraph 1 shall not exceed two years, including all relevant procedures of competent authorities. Where duly justified on the grounds of extraordinary circumstances, that two-year period may be extended by up to one year
4. Member States shall assess which legislative and non-legislative measures are necessary to streamline authorisation procedures, including any procedural steps related to environmental impact assessment procedures. Member States shall report to the European Commission on the results of such an assessment as part of their integrated national energy and climate plans as referred to in, and in accordance with, the procedure set out in Article 3 and Articles 7 to 12 of Regulation (EU) 2018/1999, and as part of their integrated national energy and climate progress reports pursuant to Article 17 of Regulation (EU) 2018/1999.
5. The deadlines established in paragraph 3 shall apply without prejudice to obligations under applicable Union environmental law, to judicial appeals, remedies and other proceedings before a court or tribunal, and to alternative dispute resolution mechanisms, including complaints procedures, non-judicial appeals and remedies, and may be extended for the duration of such procedures.
6. Member States shall set up or designate one or more contact points. Those contact points shall, upon request by the applicant, and free of charge, guide through and facilitate the entire authorisation procedure for the activities referred to in paragraph 1 up to the delivery by the responsible authorities at the end of the procedure. The applicant shall not be required to contact more than one contact point for the entire process.
7. Member States shall ensure that authorisations under national law for the construction and operation of natural gas pipelines and other network assets used for the transport of natural gas shall apply also to pipelines and network assets for the transport of hydrogen.
8. Member States shall ensure that existing contractual land-use rights for the construction and operation of natural gas pipelines and other network assets shall be understood as encompassing also pipelines and other network assets for the transport of hydrogen.
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93. 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 notified to the Commission for information. Member States shall establish a procedure enabling the applicant to appeal against such refusals.
104. For the development of newly supplied areas and efficient operation generally, and without prejudice to Article 3038, Member States may decline to grant a further authorisation to build and operate distribution pipeline systems for natural gas in any particular area once such pipeline systems have been or are proposed are authorised to be built in that area and if existing or proposed capacity is not saturated.
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Article 8 - Certification of renewable and low carbon fuels
1. Renewable gases shall be certified in accordance with Article 29 and 30 of Directive (EU) 2018/2001.2. In order to ensure that the greenhouse gas emissions savings from the use of low carbon fuels and low carbon hydrogen are at least 70% in accordance with the definitions in Article 2, points (10) and (12) under Article 2, Member States shall require economic operators to show that this threshold and the requirements established in the methodology referred to in paragraph 5 of this Article have been complied with. For those purposes, they shall require economic operators to use a mass balance system in line with Article 30 (1) and (2) of Directive (EU) 2018/2001.
3. Member States shall ensure that economic operators submit reliable information regarding the compliance with the 70% greenhouse gas emissions savings threshold set in paragraph 2 and with the greenhouse gas emissions saving methodology referred to in paragraph 5, and that economic operators make available to the relevant Member State, upon request, the data that were used to develop the information. Member States shall require economic operators to put in place an adequate standard of independent auditing of the information submitted, and to provide evidence that this has been done. The auditing shall verify that the systems used by economic operators are accurate, reliable and protected against fraud.
4. The obligations laid down in paragraph 2 shall apply regardless of whether low carbon fuels are produced within the Union or are imported. Information about the geographic origin and feedstock type of low carbon fuels or low carbon hydrogen per fuel supplier shall be made available to consumers on the websites of operators, suppliers or the relevant competent authorities and shall be updated on an annual basis.
5. By 31 December 2024, the Commission shall adopt delegated acts in accordance with Article 83 to supplement this Directive by specifying the methodology for assessing greenhouse gas emissions savings from low carbon fuels. The methodology shall ensure that credit for avoided emissions is not given for carbon dioxide the capture of which has already received an emission credit under other provisions of law.
6. The Commission may decide that voluntary national or international schemes setting standards for the production of low carbon fuels or low carbon hydrogen provide accurate data on greenhouse gas emission savings for the purposes of this Article and demonstrate compliance with the methodology referred to in paragraph 5 of this Article.
7. Where an economic operator provides evidence or data obtained in accordance with a scheme that has been the subject of a recognition pursuant to paragraph 6, a Member State shall not require the economic operator to provide further evidence of compliance with the criteria for which the scheme has been recognised by the Commission.
8. Competent authorities of the Member States shall supervise the operation of certification bodies that are conducting independent auditing under a voluntary scheme. Certification bodies shall submit, upon the request of competent authorities, all relevant information necessary to supervise the auditing, including the exact date, time and location of audits. Where Member States find issues of non-conformity, they shall inform the voluntary scheme without delay.
9. At the request of a Member State, which may be based on the request of an economic operator, the Commission shall, on the basis of all available evidence, examine whether the greenhouse gas emissions saving criteria laid down in this Article, the methodology developed in line with paragraph 5 of this Article, and the greenhouse gas emissions savings thresholds set in Article 2, points (9) and (10) have been met. Within six months of receipt of such a request, the Commission shall decide whether the Member State concerned may:
(a)accept the evidence already provided to show compliance with the greenhouse gas emissions saving criteria for low carbon fuels; or
(b)by way of derogation from paragraph 7, require suppliers of the source of low carbon fuels to provide further evidence of their compliance with the greenhouse gas emissions saving criteria and the 70% greenhouse gas emissions savings threshold.
10. Member States shall also require the relevant economic operators to enter into the Union database information on the transactions made and the sustainability characteristics of low carbon fuels in line with the requirements established in Article 28 of Directive (EU) 2018/2001.
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Article 98 - Technical rules
The regulatory authorities where Member States have so provided or 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, as well as to the hydrogen system, are developed and made public. Those technical rules shall ensure the interoperability of systems and shall be objective and non-discriminatory. ACER the Agency may make appropriate recommendations towards achieving compatibility of those rules, where appropriate. Those rules shall be notified to the Commission in accordance with Article 58 of Directive (EU) 2015/153598/34/EC of the European Parliament and of the Council 33 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 34 .new
Where relevant, Member States shall require transmission system operators, distribution system operators and hydrogen network operators in their territory to publish technical rules in accordance with Article 9, in particular regarding network connection rules that include gas quality, gas odourisation and gas pressure requirements. Member States shall also require transmission and distribution system operators to publish the connection tariffs to connect gas from renewable sources based on objective, transparent and non-discriminatory criteria.
CHAPTER III
CONSUMER EMPOWERMENT AND PROTECTION AND RETAIL MARKETS
Article 10 - Basic contractual rights
1. Member States shall ensure that all final customers are entitled to have gases provided by a supplier, subject to the supplier's agreement, regardless of the Member State in which the supplier is registered, provided that the supplier follows the applicable trading and balancing rules. In that regard, Member States shall take all measures necessary to ensure that administrative procedures do not discriminate against suppliers already registered in another Member State.2. Without prejudice to Union rules on consumer protection, in particular Directive 2011/83/EU of the European Parliament and of the Council and Council Directive 93/13/EEC, Member States shall ensure that final customers have the rights provided for in paragraphs 3 to 12 of this Article.
3. Final customers shall have the right to a contract with their supplier that specifies:
(a)the identity and address of the supplier;
(b)the services provided, the service quality levels offered, as well as the time for the initial connection;
(c)the types of maintenance service offered;
(d)the means by which up-to-date information on all applicable tariffs, maintenance charges and bundled products or services may be obtained;
(e)the duration of the contract, the conditions for renewal and termination of the contract and services, including products or services that are bundled with those services, and whether terminating the contract without charge is permitted;
(f)any compensation and the refund arrangements which apply if contracted service quality levels are not met, including inaccurate or delayed billing;
(g)the method of initiating an out-of-court dispute settlement procedure in accordance with Article 24;
(h)information relating to consumer rights, including information on complaint handling and all the information referred to in this paragraph, clearly communicated on the bill or the hydrogen or natural gas undertaking's web site.
Conditions shall be fair and well known in advance. In any case, the information shall be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, the information referred to points (a) to (f) shall also be provided prior to the conclusion of the contract.
Final customers shall be provided with a summary of the key contractual conditions in a prominent manner and in concise and simple language.
4. Final customers shall be given adequate notice of any intention to modify contractual conditions and shall be informed about their right to terminate the contract when the notice is given. Suppliers shall notify their final customer directly and in a transparent and comprehensible manner, of any adjustment in the supply price and of the reasons and preconditions for the adjustment and its scope, no later than two weeks, or no later than one month in the case of household customers, before the adjustment comes into effect. Member States shall ensure that final customers are free to terminate contracts if they do not accept the new contractual conditions or adjustments in the supply price notified to them by their supplier.
5. Suppliers shall provide final customers with transparent information on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gases services.
6. Suppliers shall offer final customers a wide choice of payment methods. Such payment methods shall not unduly discriminate between customers. Any difference in charges related to payment methods or prepayment systems shall be objective, non-discriminatory and proportionate and shall not exceed the direct costs borne by the payee for the use of a specific payment method or a prepayment system, in accordance with Article 62 of Directive (EU) 2015/2366 of the European Parliament and of the Council 35 .
7. Household customers who have access to prepayment systems shall not be placed at a disadvantage by the prepayment systems.
8. Suppliers shall offer final customers fair and transparent general terms and conditions, which shall be provided in plain and unambiguous language and shall not include non-contractual barriers to the exercise of customers' rights, such as excessive contractual documentation. Customers shall be protected against unfair or misleading selling methods.
9. Final customers shall have the right to a good standard of service and complaint handling by their suppliers. Suppliers shall handle complaints in a simple, fair and prompt manner.
10. Suppliers shall provide natural gas household customers with adequate information on alternative measures to disconnection sufficiently in advance of any planned disconnection. Such alternative measures may incluse information about sources of support to avoid disconnection, prepayment systems, energy audits, energy consultancy services, alternative payment plans, debt management advice or disconnection moratoria and shall not entail an extra cost to the customers facing disconnection.
11. Suppliers shall provide final customers with a final closure account after any switch of supplier no later than six weeks after such a switch has taken place
Article 11 - Right to switch and rules on switching-related fees
1. Customers shall have the right to switch gases suppliers or market participants. Member States shall ensure that a customer wishing to switch suppliers or market participants, while respecting contractual conditions, is entitled to such a switch within a maximum of three weeks from the date of the request. By 2026 at the latest, the technical process of switching supplier or market participant shall take no longer than 24 hours and shall be possible on any working day.2. Member States shall ensure that the right to switch supplier or market participant is granted to customers in a non-discriminatory manner as regards cost, effort and time.
3. Member States shall ensure that at least household customers and small enterprises are not charged any switching-related fees for gases. However Member States may allow suppliers or market participants to charge customers contract termination fees where those customers voluntarily terminate fixed-term, fixed-price supply contracts before their maturity, provided that such fees:
(a)are part of a contract that the customer has voluntarily entered into; and
(b)are clearly communicated to the customer before the contract is entered into.
Such fees shall be proportionate and shall not exceed the direct economic loss to the supplier or the market participant resulting from the customer's termination of the contract, including the costs of any bundled investments or services that have already been provided to the customer as part of the contract. The burden of proving the direct economic loss shall be on the supplier or market participant. The permissibility of contract termination fees shall be monitored by the regulatory authority, or by another competent national authority.
4. Household customers for gases shall be entitled to participate in collective switching schemes. Member States shall remove all regulatory or administrative barriers for collective switching, and provide a framework that ensures the consumer protection to avoid any abusive practices.
Article 12 - Comparison tools
1. Member States shall ensure that at least natural gas household customers, and microenterprises, have access, free of charge, to at least one tool comparing the offers of suppliers, including bundled offers. Customers shall be informed of the availability of such tools in or together with their bills or by other means. The tools shall meet at least the following requirements:(a)they shall be independent from market participants and ensure that gas undertakings are given equal treatment in search results;
(b)they shall clearly disclose their owners and the natural or legal person operating and controlling the tools, as well as information on how the tools are financed;
(c)they shall set out clear and objective criteria on which the comparison is to be based, including services, and disclose them;
(d)they shall use plain and unambiguous language;
(e)they shall provide accurate and up-to-date information and state the time of the last update on the information;
(f)they shall be accessible to persons with disabilities, by being perceivable, operable, understandable and robust;
(g)they shall provide an effective procedure for reporting incorrect information on published offers;
(h)they shall perform comparisons, while limiting the personal data requested to that strictly necessary for the comparison.
Member States shall ensure that at least one tool covers the entire natural gas market. Where multiple tools cover the market, those tools shall include, as complete as practicable, a range of gas offers covering a significant part of the market and, where those tools do not completely cover the market, a clear statement to that effect, before displaying results.
2. The tools may be operated by any entity, including private companies and public authorities or bodies.
3. Member States may require comparison tools referred to in paragraph 1 to include comparative criteria relating to the nature of the services offered by the suppliers.
4. Member States shall appoint a competent authority to be responsible for issuing trust marks for comparison tools that meet the requirements set out in paragraph 1, and for ensuring that comparison tools bearing a trust mark continue to meetthose requirements. That authority shall be independent of any market participants and comparison tool operators.
5. Any tool comparing the offers of market participants shall be eligible to apply for a trust mark in accordance with this Article on a voluntary and non-discriminatory basis.
6. By way of derogation from paragraphs 4 and 5, Member States may choose not to provide for the issuance of trust marks to comparison tools if a public authority or body provides a comparison tool that meets the requirements set out in paragraph 1.
Article 13 - Active customers
1. Member States shall ensure that final customers are entitled to act as active customers without being subject to disproportionate or discriminatory technical requirements, administrative requirements, procedures and charges, and to network charges that are not cost-reflective.2. Member States shall ensure that active customers are:
(a)entitled to operate directly;
(b)entitled to sell self-produced renewable natural gases using the natural gas system,
(c)entitled to participate in energy efficiency schemes;
(d)entitled to delegate to a third party the management of the installations required for their activities, including installation, operation, data handling and maintenance, without that third party being considered to be an active customer;
(e)subject to cost-reflective, transparent and non-discriminatory network charges, ensuring that they contribute in an adequate and balanced way to the overall cost sharing of the system;
(f)are financially responsible for the imbalances they cause in the natural gas system or shall delegate their balancing responsibility in accordance with Article 3 (e) of [recast Gas Regulation as proposed in COM(2021) xxx].
3. Member States may have different provisions applicable to individual and jointly-acting active customers in their national law, provided that all rights and obligations under this Article apply to all active customers. Any difference in the treatment of jointly-acting active customers shall be proportionate and duly justified.
4. Member States shall ensure that active customers that own facilities that store renewable gas:
(a)have the right to a grid connection within a reasonable time after they made a request to that effect, provided that all necessary conditions, such as balancing responsibility, are fulfilled;
(b)are not subject to any double charges, including network charges, for stored renewable gas remaining within their premises;
(c)are not subject to disproportionate licensing requirements or fees;
(d)are allowed to provide several services simultaneously, if technically feasible.
Article 14 - Citizen energy communities
1. Member States shall provide an enabling regulatory framework for citizen energy communities ensuring that:(a)participation in a citizen energy community is open and voluntary;
(b)members or shareholders of a citizen energy community are entitled to leave the community, in which case Article 11 applies;
(c)members or shareholders of a citizen energy community do not lose their rights and obligations as household customers or active customers;
(d)subject to fair compensation as assessed by the regulatory authority, relevant distribution system operators cooperate with citizen energy communities to facilitate transfers of renewable natural gases within citizen energy communities;
(e)citizen energy communities are subject to non-discriminatory, fair, proportionate and transparent procedures and charges, including with respect to grid connection, registration and licensing, and to transparent, non-discriminatory and cost-reflective network charges, ensuring that they contribute in an adequate and balanced way to the overall cost sharing of the natural gas system.
2. Member States may provide in the enabling regulatory framework that citizen energy communities:
(a)are open to cross-border participation;
(b)are entitled to own, establish, purchase or lease distribution networks and to autonomously manage them subject to conditions set out in paragraph 4 of this Article;
(c)are subject to the exemptions provided for in Article 28(2);
3. Member States shall ensure that citizen energy communities:
(a)are able to access all natural gas markets in a non-discriminatory manner;
(b)are treated in a non-discriminatory and proportionate manner with regard to their activities, rights and obligations as final customers, producers, suppliers or distribution system operators or market participants;
(c)are financially responsible for the imbalances they cause in the natural gas system or shall delegate their balancing responsibility in line with Article 3 (e) of [recast Gas Regulation as proposed in COM(2021) xxx];
(d)are treated like active customers in accordance with point (e) of paragraph 2 and points (a)(c) and (d) of Paragraph 4 of Article 13 [Active Customers];
(e)are entitled to arrange within the citizen energy community the sharing of renewable gas that are produced by the production units owned by the community, subject to other requirements laid down in this Article and subject to the community members retaining their rights and obligations as final customers.
For the purposes of the first subparagraph, point (e), where renewable natural gases are shared, this shall be without prejudice to applicable network charges, tariffs and levies, in accordance with a transparent cost-benefit analysis of distributed energy resources developed by the competent national authority.
4. Member States may decide to grant citizen energy communities the right to manage distribution networks in their area of operation and establish the relevant procedures, without prejudice to Chapter VI or to other rules and regulations applying to distribution system operators.
Where such a right is granted, Member States shall ensure that citizen energy communities:
(a)are allowed to transport non-renewable gas where such gas is for a natural gas customer who is not a member of the citizen energy community or is necessary for secure system operation;
(b)are entitled to conclude an agreement on the operation of their network with the relevant distribution system operator or transmission system operator to which their network is connected;
(c)are subject to appropriate network charges at the connection points between their network and the distribution network outside the citizen energy community;
(d)do not discriminate or harm customers who remain connected to the distribution system.
Article 15 - Bills and billing information
1. Member States shall ensure that bills and billing information are accurate, easy to understand, clear, concise, user-friendly and presented in a manner that facilitates comparison by final customers and that they fulfil the minimum requirements set out in Annex I. On request, final customers shall receive a clear and understandable explanation of how their bill was derived, especially where bills are not based on actual consumption.2. Member States shall ensure that final customers receive all their bills and billing information free of charge.
3. Member States shall ensure that final customers are offered the option of electronic bills and billing information and are offered flexible arrangements for the actual payment of the bills.
4. Where the contract provides for a future change of the product or price, or a discount, this shall be indicated on the bill together with the date on which the change takes place.
5. Member States shall consult consumer organisations when they consider changes to the requirements for the content of bills.
Article 16 - Smart metering systems in the natural gas system
1. In order to promote energy efficiency and to empower final customers, Member States or, where a Member State has so provided, the regulatory authority shall strongly recommend that natural gas undertakings optimise the use of natural gas, inter alia, by providing energy management services, and introducing smart metering systems that are interoperable, in particular with consumer energy management systems and with smart grids, in accordance with the applicable Union data protection rules.2. Member States shall ensure the deployment in their territories of smart metering systems. Such deployment may be subject to a cost-benefit assessment which shall be undertaken in accordance with the principles laid down in Annex II.
3. Member States that proceed with the deployment of smart metering systems shall adopt and publish the minimum functional and technical requirements for the smart metering systems to be deployed in their territories, in accordance with Article 18 and Annex II. Member States shall ensure the interoperability of those smart metering systems, as well as their ability to provide output for consumer energy management systems. In that respect, Member States shall have due regard to the use of the relevant available standards, including those enabling interoperability, to best practices and to the importance of the development of smart grids and the development of the internal market for natural gas.
4. Member States that proceed with the deployment of smart metering systems shall ensure that final customers contribute to the associated costs of the deployment in a transparent and non-discriminatory manner, while taking into account the long-term benefits to the whole value chain. Member States or, where a Member State has so provided, the designated competent authorities, shall regularly monitor such deployment in their territories to track the delivery of benefits to consumers.
5. Where the deployment of smart metering systems has been negatively assessed as a result of the cost-benefit assessment referred to in paragraph 2, Member States shall ensure that the assessment is revised at least every four years in response to significant changes in the underlying assumptions and in response to technological and market developments. Member States shall notify to the Commission the outcome of their updated cost-benefit assessment as it becomes available.
6. The provisions in this Directive concerning smart metering systems shall apply to future installations and to installations that replace older smart meters. Smart metering systems that have already been installed, or for which the ‘start of works’ began, before [date of entry into force], may remain in operation over their lifetime. However, smart metering systems that do not meet the requirements of Article 20 and Annex II, shall not remain in operation after [12 years after entering into force of this Directive].
7. For the purpose of paragraph 6, ‘start of works’ means either the start of construction works on the investment or the first firm commitment to order equipment or other commitment that makes the investment irreversible, whichever is the first in time. Buying of land and preparatory works such as obtaining permits and conducting preliminary feasibility studies shall not considered as start of works. For take-overs, ‘start of works’ means the moment of acquiring the assets directly linked to the acquired establishment.
Article 17 - Smart metering systems in the hydrogen system
1. Member States shall ensure the deployment of smart metering systems that can accurately measure consumption, provide information on actual time of use, and are capable to transmit and receive data for information, monitoring and control purposes, using a form of electronic communication.2. Member States shall ensure the security of the metering systems and respective data communication, and the privacy of final customers, in compliance with relevant Union data protection and privacy legislation, as well as their interoperability and having regard to the use of appropriate standards.
3. The Commission shall adopt, by means of implementing acts, interoperability requirements for smart metering and procedures to ensure, for those eligible, access to data coming from those metering systems. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 4 of Regulation (EU) No 182/2011.
Article 18 - Functionalities of smart metering systems in the natural gas system
Where the deployment of smart metering systems is positively assessed as a result of the cost-benefit assessment referred to in Article 16(2), or where smart metering systems are systematically deployed after [date of entry into force], Member States shall deploy those systems in accordance with European standards, the following requirements, and Annex II:(a)the smart metering systems shall accurately measure actual natural gas consumption and shall be capable of providing to final customers information on actual time of use, including validated historical consumption data which shall be made easily and securely available and visualised to final customers on request and at no additional cost, and non -validated most recent available consumption data which shall also be made easily and securely available to final customers at no additional cost, through a standardised interface or through remote access, in order to support automated energy efficiency programmes, and other services;
(b)the security of the smart metering systems and data communication shall comply with relevant Union security rules, having due regard to the best available techniques for ensuring the highest level of cybersecurity protection while bearing in mind the costs and the principle of proportionality;
(c)the privacy of final customers and the protection of their data shall comply with relevant Union data protection and privacy rules;
(d)if final customers request it, their natural gas consumption data shall be made available to them, in accordance with the implementing acts adopted pursuant to Article 23, through a standardised communication interface or through remote access, or to a third party acting on their behalf, in an easily understandable format allowing them to compare offers on a like-for-like basis;
(e)appropriate advice and information shall be given to final customers prior to or at the time of installation of smart meters, in particular concerning their full potential with regard to the management of meter reading and the monitoring of energy consumption, and concerning the collection and processing of personal data in accordance with the applicable Union data protection rules;
(f)smart metering systems shall enable final customers to be metered and settled at the same time resolution as the shortest settlement period in the national market.
For the purposes of point (d) of the first subparagraph, it shall be possible for final customers to retrieve their metering data or transmit them to another party at no additional cost and in accordance with their right to data portability under Union data protection rules.
Article 19 - Entitlement to a smart meter for natural gas
1. Where the deployment of smart metering systems has been negatively assessed as a result of the cost-benefit assessment referred to in Article 16(2) and where smart metering systems are not systematically deployed, Member States shall ensure that every final customer is entitled on request, while bearing the associated costs, to have installed or, where applicable, to have upgraded, under fair, reasonable and cost-effective conditions, a smart meter that:(a)is equipped, where technically feasible, with the functionalities referred to in Article 18, or with a minimum set of functionalities to be defined and published by Member States at national level in accordance with Annex II;
(b)is interoperable and able to deliver the desired connectivity of the metering infrastructure with consumer energy management systems.
2. Where a customer requests a smart meter pursuant to paragraph 1, Member States or, where a Member State has so provided, the designated competent authorities shall:
(a)ensure that the offer to the final customer requesting the installation of a smart meter explicitly states and clearly describes:
(i)the functions and interoperability that can be supported by the smart meter and the services that can be provided as well as the benefits that can be realistically attained by having that smart meter at that moment in time;
(ii)any associated costs to be borne by the final customer;
(b)ensure that the smart meter is installed within a reasonable time, and in any case no later than four months after the customer's request;
(c)regularly, and at least every two years, review and make publicly available the associated costs, and trace the evolution of those costs as a result of technology developments and potential metering system upgrades.
Article 20 - Conventional meters for natural gas
1. Where final natural gas customers do not have smart meters, Member States shall ensure that final customers are provided with individual conventional meters that accurately measure their actual consumption.2. Member States shall ensure that final natural gas customers are able to easily read their conventional meters, either directly or indirectly through an online interface or through another appropriate interface.
Article 21 - Data management
1. When laying down the rules regarding the management and exchange of data, Member States or, where a Member State has so provided, the designated competent authorities shall specify the rules on the access to data of the final customer by eligible parties in accordance with this Article and the applicable Union legal framework. For the purpose of this Directive, data shall be understood to include metering and consumption data as well as data required for customer switching, and other services.2. Member States shall organise the management of data in order to ensure efficient and secure data access and exchange, as well as data protection and data security.
Independently of the data management model applied in each Member State, the parties responsible for data management shall provide access to the data of the final customer to any eligible party, in accordance with paragraph 1. Eligible parties shall have the requested data at their disposal in a non-discriminatory manner and simultaneously. Access to data shall be easy and the relevant procedures for obtaining access to data shall be made publicly available.
3. The rules on access to data and data storage for the purpose of this Directive shall comply with the relevant Union law.
The processing of personal data within the framework of this Directive shall be carried out in accordance with Regulation (EU) 2016/679.
4. Member States or, where a Member State has so provided, the designated competent authorities, shall authorise and certify or, where applicable, supervise the parties responsible for the data management, in order to ensure that they comply with the requirements of this Directive.
Without prejudice to the tasks of the data protection officers under Regulation (EU) 2016/679, Member States may decide to require that parties responsible for the data management appoint compliance officers who shall be responsible for monitoring the implementation of measures taken by those parties to ensure non-discriminatory access to data and compliance with the requirements of this Directive.
Member States may appoint compliance officers or bodies referred to in point (d) of Article 44(2) of this Directive to fulfil the obligations under this paragraph.
5. No additional costs shall be charged to final customers for access to their data or for a request to make their data available.
Member States shall be responsible for setting the relevant charges for access to data by eligible parties.
Member States or, where a Member State has so provided, the designated competent authorities shall ensure that any charges imposed by regulated entities that provide data services are reasonable and duly justified.
Article 22 - Interoperability requirements and procedures for access to data
1. In order to promote competition in the natural gas retail market and to avoid excessive administrative costs for the eligible parties, Member States shall facilitate the full interoperability of energy services within the Union.2. The Commission shall adopt, by means of implementing acts, interoperability requirements and non-discriminatory and transparent procedures for access to data referred to in Article 21(1). Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 4 of Regulation (EU) No 182/2011.
3. Member States shall ensure that natural gas undertakings apply the interoperability requirements and procedures for access to data referred to in paragraph 2. Those requirements and procedures shall be based on existing national practices.
Article 23 - Single points of contact
Member States shall ensure that single points of contact are established to provide customers with all necessary information concerning their rights, the applicable law and dispute settlement mechanisms available to them in the event of a dispute. Such single points of contact may be part of general consumer information points and may be the same entities as the single contact points for electricity referred to in Article 26 of Directive 2019/944/EU [on common rules for the internal market in electricity.Article 24 - Right to out-of-court dispute settlement
1. Member States shall ensure that final customers have access to simple, fair, transparent, independent, effective and efficient out-of-court mechanisms for the settlement of disputes concerning rights and obligations established under this Directive, through an independent mechanism such as an energy ombudsman or a consumer body, or through a regulatory authority. Where the final customer is a consumer within the meaning of Directive 2013/11/EU of the European Parliament and of the Council(23), such out-of-court dispute settlement mechanisms shall comply with the quality requirements of that Directive and shall provide, where warranted, for systems of reimbursement and compensation.2. Where necessary, Member States shall ensure that alternative dispute resolution entities cooperate to provide simple, fair, transparent, independent, effective and efficient out-of-court dispute settlement mechanisms for any dispute that arises from products or services that are tied to, or bundled with, any product or service falling under the scope of this Directive.
3. The participation of gas undertakings in out-of-court dispute settlement mechanisms for household customers shall be mandatory unless the Member State concerned demonstrates to the Commission that other mechanisms are equally effective.
Article 25 - Vulnerable customers
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. Measures to protect vulnerable consumers may include, inter alia, to the prohibition of disconnection to such customers in critical times.In particular, Member States shall take appropriate measures to protect final customers in remote areas who are connected to the natural gas or hydrogen systems. Member States may appoint a supplier of last resort for household customers, and, where Member States deem it to be appropriate, small enterprises considered to be vulnerable customers connected to the gas system.. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms.
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Article 45
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.
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Chapter IV
Third party access to infrastructure
Section I
Access to natural gas infrastructure
Article 26 - Market access for renewable and low carbon gases
Member States shall enable the access of renewable and low carbon gases to the market and infrastructure regardless whether the renewable and low carbon gases production facilities are connected to distribution or transmission networks.2009/73/EC (adapted)
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Article 2732
Third-party access to natural gas distribution and transmission and LNG terminals
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 7241 by a regulatory authority referred to in Article 7039(1) and that those tariffs — and the methodologies, where only methodologies are approved — are published prior to their entry into force. Tariff discounts can be granted only if so provided by Union legislation.
2. Transmission system operators shall, if necessary for the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.
23The provisions of this Directive shall not prevent the conclusion of long-term contracts for renewable and low carbon gases in so far as they comply with Community Union competition rules and contribute to decarbonisation. No long-term contracts for supply of unabated fossil gas shall be concluded with a duration beyond the end of year 2049 .
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3. This Article shall also apply to citizen energy communities that manage distribution networks.
2009/73/EC (adapted)
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Article 2834
Access to upstream natural gas 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 8854.
2. The access referred to in paragraph 1 shall be provided in a manner determined by the Member State in accordance with the relevant legal instruments. Member States shall apply the objectives of fair and open access, achieving a competitive market in natural gas and avoiding any abuse of a dominant position, taking into account security and regularity of supplies, capacity which is or can reasonably be made available, and environmental protection. The following matters needs may be taken into account:
(a)the need to refuse access where there is an incompatibility of technical specifications which cannot reasonably be overcome;
(b)the need to avoid difficulties which cannot reasonably be overcome and could prejudice the efficient, current and planned future production of hydrocarbons, including that from fields of marginal economic viability;
(c)the need to respect the duly substantiated reasonable needs of the owner or operator of the upstream pipeline network for the transport and processing of gas and the interests of all other users of the upstream pipeline network or relevant processing or handling facilities who may be affected; and
(d)the need to apply their laws and administrative procedures, in conformity with Community Union law, for the grant of authorisation for production or upstream development.
3. Member States shall ensure that they have in place dispute-settlement arrangements, including an authority independent of the parties with access to all relevant information, to enable disputes relating to access to upstream pipeline networks to be settled expeditiously, taking into account the criteria in paragraph 2 and the number of parties which may be involved in negotiating access to such networks.
2019/692 Art. 1.4
4. In the event of cross-border 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. Where the upstream pipeline network originates from a third country and connects to at least one Member State, the Member States concerned shall consult each other and the Member State where the first entry point to the Member States' network is located shall consult the third country concerned where the upstream pipeline network originates, with a view to ensuring, as regards the network concerned, that this Directive is applied consistently in the territory of the Member States.
2009/73/EC (adapted)
Article 2933 - Access to storage of natural gas
1. 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.new
When choosing the procedure for access to storage under this Article, Member States shall take into account the results of the common and national risk assessments carried out under Article 7 of Regulation (EU) 2017/1938.
2009/73/EC (adapted)
The regulatory authorities where Member States have so provided or Member States shall define and publish criteria according to which the access regime applicable to storage facilities and linepack may be determined. They 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.
The obligation referred to in the second sentence of the second subparagraph shall be without prejudice to the right of choice granted to Member States in the first subparagraph.
2. The provisions of Pparagraph 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 or, where Member States have so provided, the 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 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 authorities where Member States have so provided or 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 1 January 2005 and on an annual basis every year thereafter.
When developing those the conditions referred to in the second subparagraph, storage operators and natural gas undertakings shall consult system users.
4. In the case of regulated access, the regulatory authorities where Member States have so provided or 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. The regulatory authorities where Member States have so provided or Member States shall consult system users when developing those tariffs or the methodologies for those tariffs. The 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.
2009/73/EC (adapted)
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Article 3038
Direct lines for natural gas
1. Member States shall take the necessary measures to enable:
(a)natural gas undertakings established within their territory to supply the eligible customers through a direct line; and
(b)any such eligible customer within their territory to be supplied through a direct line by natural gas undertakings.
2. In circumstances where an authorisation (for example, licence, permission, concession, consent or approval) is required for the construction or operation of direct lines, the Member States or any competent authority they designate shall lay down the criteria for the grant of authorisations for the construction or operation of such lines in their territory. Those criteria shall be objective, transparent and non-discriminatory.
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 3435 or to the opening of a dispute-settlement procedure under Article 7341.
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SECTION II
Access to hydrogen infrastructure
Article 31 - Third-party access to hydrogen networks
1. Member States shall ensure the implementation of a system of regulated third party access to hydrogen networks based on published tariffs and applied objectively and without discrimination between any hydrogen network users.1. 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 72 by a regulatory authority referred to in Article 70 and that those tariffs — and the methodologies, where only methodologies are approved — are published prior to their entry into force.
3. Hydrogen network operators shall, where necessary for the purpose of carrying out their functions, including in relation to cross-border network transport of hydrogen, have access to the network of other hydrogen network operators.
4. Until 31 December 2030, a Member State may decide not to apply paragraph 1. In such case, the Member State shall ensure the implementation of a system of negotiated third party access to hydrogen networks in accordance with objective, transparent and non-discriminatory criteria. The regulatory authorities shall take the necessary measures for hydrogen network users to be able to negotiate access to hydrogen networks. The parties shall be obliged to negotiate access to hydrogen networks in good faith.
5. Where negotiated access is used, regulatory authorities shall provide guidance to hydrogen network users on how negotiated tariffs will be affected when regulated third party access is introduced.
Article 32 - Third-party access to hydrogen terminals
1. Member States shall ensure the implementation of a system of third party access to hydrogen terminals based on negotiated access in an objective, transparent and non-discriminatory manner, whereby the regulatory authorities shall take the necessary measures for hydrogen terminal users to be able to negotiate access to such terminals. The parties shall be obliged to negotiate access in good faith.2. Regulatory authorities shall monitor conditions for third party access to hydrogen terminals and their impact on hydrogen markets and, where necessary in order to safeguard competition, take measures to improve access in line with the criteria set out in paragraph 1.
Article 33 - Access to hydrogen storage
Member States shall ensure the implementation of a system of regulated third party access to hydrogen storage, and line pack 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, based on published tariffs and applied objectively and without discrimination between any hydrogen 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 72 by the regulatory authority.SECTION III
REFUSAL OF ACCESS AND CONNECTION
2009/73/EC (adapted)
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Article 3435
Refusal of access and connection
1. Natural gas and hydrogen undertakings may refuse access or connection to the system natural gas or hydrogen 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 48 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.
2. Taking into account national and Union decarbonisation objectives, Member States shall may take the appropriate measures necessary to ensure that the natural gas or hydrogen undertaking refusing access or connection to the natural gas system or hydrogen system on the basis of lack of capacity or a lack of connection makes the necessary enhancements as far as it is economic to do so or when a potential customer is willing to pay for them. In circumstances where Member States apply Article 4(4), Member States shall take such measures.
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3. Access to the system for renewable and low carbon gases may only be refused subject to the provisions of Article 18 and 33 of [recast Gas Regulation as proposed in COM(2021) xxx].
2009/73/EC
Article 36
New infrastructure
1. Major new gas 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, 32, 33 and 34 and Article 41(6), (8) and (10) under the following conditions:
(a)the investment must enhance competition in gas supply and enhance security of supply;
(b)the level of risk attached to the investment must be such that the investment would not take place unless an exemption was granted;
(c)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)charges must be levied on users of that infrastructure; and
2019/692 Art. 1.5(a)
(e)the exemption must not be detrimental to competition in the relevant markets which are likely to be affected by the investment, to the effective functioning of the internal market in natural gas, the efficient functioning of the regulated systems concerned, or to security of supply of natural gas in the Union.
2009/73/EC
2. Paragraph 1 shall also apply to significant increases of capacity in existing infrastructure and to modifications of such infrastructure which enable the development of new sources of gas supply.
2019/692 Art. 1.5(b)
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.
Before the adoption of the decision on the exemption, the national regulatory authority, or where appropriate another competent authority of that Member State, shall consult:
(a)the national regulatory authorities of the Member States the markets of which are likely to be affected by the new infrastructure; and
(b)the relevant authorities of the third countries, where the infrastructure in question is connected with the Union network under the jurisdiction of a Member State, and originates from or ends in one or more third countries.
Where the third-country authorities consulted do not respond to the consultation within a reasonable time frame or within a set deadline not exceeding three months, the national regulatory authority concerned may adopt the necessary decision.
2009/73/EC
4. Where the infrastructure in question is located in the territory of more than one Member State, the Agency may submit an advisory opinion to the regulatory authorities of the Member States concerned, which may be used as a basis for their decision, within two months from the date on which the request for exemption was received by the last of those regulatory authorities.
2019/692 Art. 1.5(c)
Where all the regulatory authorities concerned agree on the request for exemption within six months of the date on which it was received by the last of the regulatory authorities, they shall inform the Agency of their decision. Where the infrastructure concerned is a transmission line between a Member State and a third country, before the adoption of the decision on the exemption, the national regulatory authority, or where appropriate another competent authority of the Member State where the first interconnection point with the Member States' network is located, may consult the relevant authority of that third country with a view to ensuring, as regards the infrastructure concerned, that this Directive is applied consistently in the territory and, where applicable, in the territorial sea of that Member State. Where the third country authority consulted does not respond to the consultation within a reasonable time or within a set deadline not exceeding three months, the national regulatory authority concerned may adopt the necessary decision.
2009/73/EC
The Agency shall exercise the tasks conferred on the regulatory authorities of the Member States concerned by the present Article:
(a)where all regulatory authorities concerned have not been able to reach an agreement within a period of six months from the date on which the request for exemption was received by the last of those regulatory authorities; or
(b)upon a joint request from the regulatory authorities concerned.
All regulatory authorities concerned may, jointly, request that the period referred to in point (a) of the third subparagraph is extended by up to three months.
5. Before taking a decision, the Agency shall consult the relevant regulatory authorities and the applicants.
6. An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.
In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.
Before granting an 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.
The exemption decision, including any conditions referred to in the second subparagraph of this paragraph, shall be duly reasoned and published.
7. 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.
8. The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:
(a)the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to paragraph 1 including the relevant point or points of that paragraph on which such decision is based, including the financial information justifying the need for the exemption;
(b)the analysis undertaken of the effect on competition and the effective functioning of the internal market in natural gas resulting from the grant of the exemption;
(c)the reasons for the time period and the share of the total capacity of the gas infrastructure in question for which the exemption is granted;
(d)in case the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; and
(e)the contribution of the infrastructure to the diversification of gas supply.
9. Within a period of two months from the day 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 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, 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 unless the Commission decides that any delay is due to major obstacles beyond control of the person to whom the exemption has been granted.
10. The Commission may adopt 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, 6, 8 and 9 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 51(3).
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Chapter V
Rules applicable to transmission, storage and system operators of natural gas
2009/73/EC (adapted)
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Article 3513
Tasks of transmission, storage and/or LNG system operators
1. Each transmission, storage and/or LNG system operator shall:
(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, the obligations laid down in [Regulation (EU) 2022/ … (Methane Regulation)] ensure adequate means to meet service obligations;
(b)refrain from discriminatingnot discriminate between system users or classes of system users, particularlyspecifically in favour of its related undertakings;
(c)provide to any other transmission system operator, any other storage system operator, any other LNG system operator and/or any distribution system operator, sufficient information to ensure that the transport and storage of natural gas may take place in a manner compatible with the secure and efficient operation of the interconnected system; and
(d)provide system users with the information they need for efficient access to the system.
2. Each transmission system operator shall build sufficient cross-border capacity to integrate European transmission infrastructure accommodating all economically reasonable and technically feasible demands for capacity and taking into account security of gas supply.
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3. Transmission system operators shall cooperate with distribution system operators to ensure the effective participation of market participants connected to the grid in retail, wholesale and balancing market.
4. Transmission system operators shall ensure efficient gas quality management in their facilities in line with applicable gas quality standards.
2009/73/EC
53. 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 7241 (7) in a non-discriminatory and cost-reflective way and shall be published.
64. The regulatory authorities where Member States have so provided or Member States may require transmission system operators to comply with minimum standards for the maintenance and development of the transmission system, including interconnection capacity.
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7. Member States may provide that one or several responsibilities listed in paragraph 1 are assigned to a transmission system operator other than the one which owns the transmission system to which the responsibilities concerned would otherwise be applicable. The transmission system operator to which the tasks are assigned shall be certified under the ownership unbundling, the independent system operator or the independent transmission system operator model and fulfil the requirements provided for in Article 54, but shall not be required to own the transmission system it is responsible for.
8. The transmission system operator shall fulfil the requirements provided for in Chapter IX and be certified in accordance with Article 57. This shall be without prejudice to the possibility for transmission system operators which are certified under the ownership unbundling, the independent system operator or the independent transmission system operator model to delegate, on their own initiative and under their supervision, certain tasks to other transmission system operators which are certified under the ownership unbundling, the independent system operator or the independent transmission system operator model, where the delegation of tasks does not endanger the effective and independent decision-making rights of the delegating transmission system operator.
9. LNG and storage system operators shall cooperate, within one Member State and regionally, to ensure the most efficient use of facilities capacities and synergies between these facilities, taking into account system integrity and operation.
2009/73/EC (adapted)
105. Transmission system operators shall procure the energy they use for the carrying out of their functions according to transparent, non-discriminatory and market based procedures.
Article 3616
Confidentiality for transmission system operators and transmission system owners
1. Without prejudice to Article 6830 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.
2. Transmission, storage and/or LNG system operators shall not, in the context of sales or purchases of natural gas by related undertakings, misuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
3. Information necessary for effective competition and the efficient functioning of the market shall be made public. That obligation shall be without prejudice to protecting commercially sensitive information.
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Article 37 - Decision-making powers regarding the connection of new production facilities for renewable and low carbon gases to the transmission system
1. The transmission system operator shall establish and publish transparent and efficient procedures for non-discriminatory connection of new production installations of renewable and low carbon gases. Those procedures shall be subject to approval by the regulatory authorities.2. The transmission system operators shall not be entitled to refuse economically reasonable and technically feasable connection requests of a new production facility installation for renewable and low carbon gases.
2009/73/EC (adapted)
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Article 3823
Decision-making powers regarding the connection of storage facilities, LNG regasification facilities and industrial customers to the transmission system and the hydrogen network
1. The transmission system operator and the hydrogen network operator shall establish and publish transparent and efficient procedures and tariffs for non-discriminatory connection of natural gas and hydrogen storage facilities, LNG regasification facilities , hydrogen terminals and industrial customers to the transmission system and the hydrogen network . Those procedures shall be subject to approval by the regulatory authority.
2. The transmission system operator and the hydrogen network operator shall not be entitled to refuse the connection of a new natural gas or hydrogen storage facility, LNG regasification facility , hydrogen terminal 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 and hydrogen network operator shall ensure sufficient entry and exit capacity for the new connection.
Article 6 - Regional solidarity
1. 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.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 36 ;
(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 and the other Member States shall be kept informed of such cooperation.
4. The Commission may adopt 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 51(3).
Chapter VI
Distribution and supply system operation of natural gas
Article 3924
Designation of distribution system operators
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 4025, 4226 and 4327.
Article 4025
Tasks of distribution system operators
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 , the obligations laid down in [Regulation (EU) 2022/ … (Methane Regulation)] and energy efficiency.
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2. When so decided by regulatory authorities, distribution system operators may be responsible for ensuring efficient gas quality management in their facilities in line with applicable gas quality standards, where necessary for system management due to the injection of renewable and low-carbon gases.
2009/73/EC
32. In any event, the distribution system operator shall not discriminate between system users or classes of system users, particularly in favour of its related undertakings.
43. 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.
54. Each distribution system operator shall provide system users with the information they need for efficient access to, including use of, the system.
65. 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 7241(7) in a non-discriminatory and cost-reflective way and shall be published.
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7. Distribution system operators shall cooperate with transmission system operators to ensure the effective participation of market participants connected to their grid in retail, wholesale and balancing market in the entry-exit system to which the distribution system belongs to.
8. The distribution system operators shall establish and publish transparent and efficient procedures for non-discriminatory connection of new production installations of renewable and low carbon gases. Those procedures shall be subject to approval by the regulatory authorities.
9. The distribution system operators shall not be entitled to refuse economically reasonable and technically feasible connection requests of a new production facility for renewable and low carbon gases.
Article 41 - Decision-making powers regarding the connection of new production facilities for renewable and low carbon gases to the distribution system
Regulatory authorities shall oblige the distribution system operator to publish transparent and efficient procedures for non-discriminatory connection of new production installations of renewable and low carbon gases. Those procedures shall be subject to approval by the regulatory authorities.2009/73/EC (adapted)
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Article 4226
Unbundling of distribution system operators
1. Where the distribution system operator is part of a vertically integrated undertaking, it shall be independent at least in terms of its legal form, organisation and decision making from other activities not relating to distribution. Those rules shall not create an obligation to separate the ownership of assets of the distribution system from the vertically integrated undertaking.
2. In addition to the requirements under paragraph 1, where the distribution system operator is part of a vertically integrated undertaking, it shall be independent in terms of its organisation and decision-making from the other activities not related to distribution. In order to achieve this, the following minimum criteria shall apply:
(a)those the persons responsible for the management of the distribution system operator must 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, transmission , transportation and supply of gases natural gas;
(b)appropriate measures must shall be taken to ensure that the professional interests of persons responsible for the management of the distribution system operator are taken into account in a manner that ensures that they are capable of acting independently;
(c)the distribution system operator must shall have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the network;. iIn order to fulfil those tasks, the distribution system operator shall have at its disposal the necessary resources including human, technical, financial and physical resources;. tThis should shall 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 7241(7) in a subsidiary are protected;. iIn 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;. iIt 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
(d)the distribution system operator must 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;. tThe compliance programme shall set out the specific obligations of employees to meet that objective;. aAn annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme, the compliance officer of the distribution system operator, to the regulatory authority referred to in Article 7039(1) and shall be published;. tThe 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 Member States shall ensure that the activities of the distribution system operator are monitored by regulatory authorities or other competent bodies 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.
4. Member States may decide not to apply paragraphs 1, 2 and 3 to integrated natural gas undertakings serving less than 100000100 000 connected customers.
Article 4327
Confidentiality obligations of distribution system operators
1. Without prejudice to Article 6830 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.
2. Distribution system operators shall not, in the context of sales or purchases of natural gas by related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
Article 4428
Closed distribution systems of natural gas
1. Member States may provide for national regulatory authorities or other competent authorities to classify a system which distributes natural gas within a geographically confined industrial, commercial or shared services site and does not, without prejudice to paragraph 4, 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 natural gas primarily to the owner or operator of the system or to their related undertakings.
2. Member States may provide for national regulatory authorities to exempt the operator of a closed natural gas distribution system from the requirement under Article 2732(1) that tariffs, or the methodologies underlying their calculation, are approved prior to their entry into force in accordance with Article 7241.
3. Where an exemption is granted under paragraph 2, the applicable tariffs, or the methodologies underlying their calculation, shall be reviewed and approved in accordance with Article 7241 upon request by a user of the closed natural gas distribution system.
4. Incidental use by a small number of households with employment or similar associations with the owner of the distribution system and located within the area served by a closed distribution system shall not preclude an exemption under paragraph 2 being granted.
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5. Closed distribution systems shall be considered as distribution systems for the purposes of this Directive.
2009/73/EC (adapted)
new
Article 4529
Combined operator
Article 2644 (1) shall not prevent the operation of a combined transmission, LNG, storage and distribution system operator provided that the operator complies with Article 549 (1), or Articles 5514 and 5615, or Chapter IXIV or falls under Article 4982(6).
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ChapterVII
Rules applicable to the dedicated hydrogen networks
Article 46 - Tasks of hydrogen network, storage and terminal operators
1. Each operator of hydrogen networks, storage or terminal shall be responsible for:(a)operating, maintaining and developing under economic conditions a secure and reliable infrastructure for hydrogen transport or storage with due regard to the environment, in close cooperation with connected and neighbouring hydrogen network operators;
(b)ensuring the long-term ability of the hydrogen system to meet reasonable demands for the transport and storage of hydrogen;
(c)ensuring adequate means to meets its obligations;
(d)providing to the operator of other networks or systems with which its system is interconnected sufficient information to ensure the secure and efficient operation, coordinated development and interoperability of the interconnected system;
(e)not discriminating between system users or classes of infrastructure users, specifically in favour of its related undertakings; and
(f)providing system users with the information they need for efficient access to the infrastructure;
(g)taking all reasonable measures available to prevent and minimise hydrogen emissions in their operations and carrying out, at regular intervals, a hydrogen leak detection and repair survey of all relevant components under the operator responsibility;
(h)submitting a hydrogen leak detection report and, where necessary, a repair or replacement programme to the competent authorities;
2. Each hydrogen network operator shall build sufficient cross-border capacity to integrate European hydrogen infrastructure accommodating all economically reasonable and technically feasible demands for capacity and taking into account security of hydrogen supply.
3. Hydrogen network operators may be responsible for ensuring efficient hydrogen quality management in their networks in line with applicable hydrogen quality standards, where necessary for system management and subject to the approval of the regulatory authority.
Article 47 - Existing hydrogen networks
1. Member States may decide to grant a derogation from the requirements of Articles 31, 62, 63 and 64 of this Directive, and Articles 6 and 47 of [recast Gas Regulation as proposed in COM(2021) xxx] to hydrogen networks that belonged to a vertically integrated undertaking on [date of entry into force]. The derogation shall be limited in scope to the network capacity in operation on [date of entry into force].2. The derogation shall be limited in time and shall expire:
(a)where the vertically integrated undertaking submits a request to the regulatory authority to end the derogation and such request is approved by the regulatory authority;
(b)where the hydrogen network benefitting from the derogation is connected to another hydrogen network;
(c)where the hydrogen network benefitting from the derogation or its capacity is expanded;
(d)at the latest on 31 December 2030.
Article 48 - Geographically confined hydrogen networks
1. Member States may provide for regulatory authorities to grant a derogation from Article 62 for hydrogen networks which transport hydrogen from one entry point to a limited number of exit points within a geographically confined, industrial or commercial area..2. The derogations under paragraph 1 shall apply at least until 31 December 2030. As from 1 January 2031, the derogation shall expire when one of the conditions below is fulfilled:
(a)where a competing renewable hydrogen producer wants to get access to the network;
(b)where the exempted hydrogen network becomes connected to another hydrogen network.
Member States shall take the necessary measures to ensure that access requests referred to in point (a) of this paragraph are notified to the regulatory authority.
Article 49 - Hydrogen interconnectors with third countries
1. Hydrogen interconnectors between Member States and third countries shall be subject to the rules applicable to hydrogen networks as set out in this Directive and in [recast Gas Regulation as proposed in COM(2021) xxx]. Member States shall ensure that the enforcement of these rules takes into account their effective application on Union territory and the integrated nature of the interconnector.2. For the purpose of implementing the requirements set out in paragraph 1, the Union shall, for each hydrogen interconnector, conclude prior to its operation an intergovernmental agreement with the connected third country, or third countries, setting out the operating rules for the hydrogen interconnector concerned where the Commission has determined that such an agreement is necessary to ensure compliance with the rules referred to in paragraph 1.
3. Such intergovernmental agreement may contain, as appropriate, rules specifying the implementation of the requirements of third-party access, tariff regulation and on the unbundling of the operator of the hydrogen interconnector, as well as rules on the certification of renewable and low-carbon hydrogen, including rules ensuring the collection of required data and the application of the criteria for accounting hydrogen produced from electricity as renewable hydrogen.
Article 50 - Confidentiality for operators of hydrogen networks, hydrogen storage facilities and hydrogen terminals
1. Without prejudice to legal duties to disclose information, each operator of a hydrogen network, hydrogen storage facility or hydrogen terminal, and each owner of a hydrogen network, 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, if the operator of a hydrogen network, hydrogen storage facility or hydrogen terminal, or the owner of a hydrogen network is part of a vertically integrated undertaking, 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.2. The operator of a hydrogen network, hydrogen storage facility or hydrogen terminal shall not, in the context of sales or purchases of hydrogen by related undertakings, misuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
3. Information necessary for effective competition and the efficient functioning of the market shall be made public. That obligation shall be without prejudice to protecting commercially sensitive information.
Chapter VIII
Integrated network planning
2009/73/EC (adapted)
new
Article 5122
Network development and powers to make investment decisions
1. At least eEvery year two years , all transmission system operators shall submit to the relevant regulatory authority a ten-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. There shall be at least one single network development plan per Member State. Infrastructure operators, including LNG terminal operators, storage operators, distribution system operators as well as hydrogen, district heating infrastructure and electricity operators shall be required to provide and exchange all relevant information to the transmission system operators required for developing the single plan. That network development plan shall contain efficient measures in order to guarantee the adequacy of the natural gas system and the security of supply , in particular the compliance with the infrastructure standards under Regulation (EU) 2017/1938. The ten-year network development plan shall be published and accessible on a website .
2. The ten-year network development plan shall, in particular:
(a)indicate to market participants contain the main transmission infrastructure that needs to be built or upgraded over the next ten years;
(b)contain all the investments already decided and identify new investments which have to be executed in the next three years; and
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(c)include information on infrastructure that can or will be decommissioned; and
2009/73/EC
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(dc) provide for a time frame for all investment and decommissioning projects;.
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(e)be based on a joint scenario framework developed between the relevant infrastructure operators, including relevant distribution system operators, of at least gas and electricity;
(f)be consistent with the results of the common and national risk assessments under Article 7 of Regulation 2017/1938;
(g)be in line with the integrated national energy and climate plan and its updates, and with the integrated national energy climate reports submitted in accordance with Regulation (EU) 2018/1999 and support the climate-neutrality objective set out in Article 2(1), of Regulation (EU) 2021/1119.
2009/73/EC (adapted)
new
3. When elaborating the ten-year network development plan, the transmission system operator shall fully take into account the potential for alternatives to system expansion, for instance the use of demand response, as well as expected consumption following the application of the energy efficiency first principle, trade with other countries and the Union-wide network development plan. The transmission system operator shall assess how to address, where possible, a need across electricity and gases systems including information on the optimal location and size of energy storage and power to gas assets 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. The regulatory authority shall consult all actual or potential system users on the ten-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 regulatory authority shall examine whether the ten-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the most recent Union wide simulation of disruption scenarios carried out by the ENTSO for Gas under Article 7 of Regulation (EU) 2017/1938, with the regional and national risk assessments and the non-binding Community Union -wide ten-year network development plan (Community Union -wide network development plan) referred to in Article 30(1), point (b), of Regulation (EU) 2019/943 Article 8(3)(b) of Regulation (EC) No 715/2009. If any doubt arises as to the consistency with the Community Union -wide network development plan, the regulatory authority shall consult ACER the Agency. The regulatory authority may require the transmission system operator to amend its ten-year network development plan.
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The competent national authorities shall examine the consistency of the ten-year network development plan with the national energy and climate plan and its updates and with the integrated national energy climate reports submitted in accordance with Regulation (EU) 2018/1999.
2009/73/EC
new
6. The regulatory authority shall monitor and evaluate the implementation of the ten-year network development plan.
7. In circumstances where the transmission system operator independent system operator or independent transmission operator , other than for overriding reasons beyond its control, does not execute an investment, which, under the ten-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 ten-year network development plan:
(a)to require the transmission system operator to execute the investments in question;
(b)to organise a tender procedure open to any investors for the investment in question; or
(c)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.
Where the regulatory authority has made use of its powers under point (b) 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)operating the new assets 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. Where 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.
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Article 52 - Hydrogen network development reporting
1. Hydrogen network operators shall submit to the regulatory authority, at regular intervals as determined by that authority, an overview of the hydrogen network infrastructure they aim to develop. That overview shall in particular:(a)include information on capacity needs, both in volume and duration, as negotiated between network users and hydrogen network operators;
(b)include information on the extent to which repurposed natural gas pipelines will be used for the transport of hydrogen;
(c)be in line with the integrated national energy and climate plan and its updates, and with the integrated national energy and climate reports submitted in accordance with Regulation (EU) 2018/1999 and support the climate-neutrality objective set out in Article 2(1) of Regulation (EU) 2021/1119.
2. Hydrogen storage and terminal operators shall provide and exchange all relevant information required for developing the overview with the hydrogen network operators.
3. The regulatory authority shall examine the overview. It shall take the overall energy-economic necessity of the hydrogen network into account in this examination as well as the joint scenario framework developed under Article 51 (2), point e).
4. The regulatory authority shall take the examination of the overview into account in its approval of dedicated charges within the meaning of Article 4 of [recast Gas Regulation as proposed in COM(2021)xxx].
5. Hydrogen network operators shall publish on a regular basis a joint report on the development of the hydrogen system based on the overview submitted to the regulatory authority. They shall take the examination of the regulatory authority under paragraph 4 into account.
6. Member States may decide to apply the requirements pursuant to Article 51 to hydrogen network operators.
Article 53 - Financing cross-border hydrogen infrastructure
1. Where a hydrogen interconnector project is included in the EU-wide ten-year network development plan as referred to in Article 29 of [recast Gas Regulation as proposed in COM(2021)xxx] and is not a project of common interest as referred to in [Chapter II and Annex I point 3 of Regulation xxx on Guidelines for trans-European energy infrastructure], adjacent and affected hydrogen network operators shall design a project plan, including a request for cross-border cost allocation, and submit it jointly to the concerned regulatory authorities for a joint approval.2. The project plan and request for cross-border cost allocation shall be accompanied by a project-specific cost-benefit analysis, taking into account benefits beyond the borders of Member States concerned, and by a business plan evaluating the financial viability of the project, which shall include a financing solution and specify whether the hydrogen network operators involved agree on a substantiated proposal for a cross-border cost allocation.
3. The concerned regulatory authorities shall, after consulting the hydrogen network operators, take coordinated decisions on the allocation of investment costs to be borne by each network operator for the project.
4. Where the concerned regulatory authorities cannot reach an agreement on the request within six months, ACER shall take a decision, following the process pursuant to Article 6(10) in Regulation (EU) 2019/942.
5. After 31 December 2030, all affected hydrogen network operators shall negotiate a system of financial compensation to ensure financing for cross-border hydrogen infrastructure. While developing that, hydrogen network operators shall conduct an extensive consultation process involving all relevant market participants.
6. The hydrogen network operators concerned shall agree on the system of financial compensation within 3 years and by 31 December 2033. If no agreement is reached within that period, the involved regulatory authorities shall decide jointly within 2 years. Where the relevant regulatory authorities cannot reach a joint agreement within 2 years, ACER shall take a decision, following the process pursuant to Article 6(10) in Regulation (EU) 2019/942.
7. The system of financial compensation shall be implemented in line with Article 72(1), point (b).
8. For the transition to a system of financial compensation mechanism, existing capacity contracts shall not be affected by the established financial compensation mechanism.
9. Further details required to implement the process set out in this Article, including required processes and time frames, process for reviewing and if necessary amending the compensation mechanism allowing taking into account tariff evolution and the development of the hydrogen networks, shall be set in a network code established on the basis of Article 54 of [recast Gas Regulation as proposed in COM(2021)xxx].
2009/73/EC (adapted)
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Chapter IX
Unbundling of transmission system operators
Section 1
ownership unbundling
Article 549
Unbundling of transmission systems and transmission system operators
1. Member States shall ensure that from 3 March 2012:
(a)each undertaking which owns a transmission system acts as a transmission system operator;
(b)the same person or persons are entitled neither:
(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; nor
(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;
(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
(d)the same person is not entitled to be a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of production or supply and a transmission system operator or a transmission system.
2. The rights referred to in points (b) and (c) of paragraph 1, points (b) and (c), shall include, in particular:
(a)the power to exercise voting rights;
(b)the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or
(c)the holding of a majority share.
3. For the purpose of paragraph 1, point (b), the notion term ‘undertaking performing any of the functions of production or supply’ shall include be understood as including ‘undertaking performing any of the functions of generation and supply’ within the meaning of Directive 2009/72/EC (EU) 2019/944 of the European Parliament and of the Council 37 38 of 13 July 2009 concerning common rules for the internal market in electricity 39 , and the terms ‘transmission system operator’ and ‘transmission system’ shall be understood as including include ‘transmission system operator’ and ‘transmission system’ within the meaning of that Directive.
4. Member States may allow for derogations from points (b) and (c) of paragraphs 1, points (b) and (c) until 3 March 2013, provided that transmission system operators are not part of a vertically integrated undertaking.
5. The obligation set out in paragraph 1, point (a), 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 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 5514 as an independent system operator or as an independent transmission operator for the purposes of Section 3Chapter IV.
6. For the implementation of this 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.
7. Member States shall ensure that neither commercially sensitive information referred to in Article 3616 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.
2019/692 Art. 1.2(a)
8. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking, a Member State may decide not to apply paragraph 1. As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State's network, where on 23 May 2019 the transmission system belongs to a vertically integrated undertaking, a Member State may decide not to apply paragraph 1.
2009/73/EC
In such case, the Member State concerned shall either:
(a)designate an independent system operator in accordance with Article 5514, or
(b)comply with the provisions of Section 3Chapter IV.
2019/692 Art. 1.2(b)
9. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking and arrangements are in place which guarantee more effective independence of the transmission system operator than the provisions of Section 3Chapter IV., a Member State may decide not to apply paragraph 1 of this Article.
As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State's network, where on 23 May 2019 the transmission system belongs to a vertically integrated undertaking and arrangements are in place which guarantee more effective independence of the transmission system operator than the provisions of Section 3Chapter IV., that Member State may decide not to apply paragraph 1 of this Article.
2009/73/EC (adapted)
10. Before an undertaking is approved and designated as a transmission system operator under paragraph 9 of this Article, it shall be certified in accordance with according to the procedures laid down in Article 6510(4), (5) and (6) of this Directive and in Article 3 of Regulation (EC) No 715/2009, pursuant to which After that, the Commission shall verify that the arrangements in place clearly guarantee more effective independence of the transmission system operator than the provisions of Section 3Chapter 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.
12. Undertakings performing any of the functions of production or supply shall not in any event be able to directly or indirectly take control over or exercise any right over unbundled transmission system operators in Member States which apply paragraph 1.
Section 2
independent system operators
Article 5514 - Independent system operators
2019/692 Art. 1.3 (adapted)new
1. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking, a Member State may decide not to apply Article 569 (1) and to designate an independent system operator upon a proposal from the transmission system owner.
As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State's network, where on 23 May 2019 the transmission system belongs belonged to a vertically integrated undertaking, that Member State may decide not to apply Article 599(1) and to designate an independent system operator upon a proposal from the transmission system owner.
The designation of an independent system operator shall be subject to approval by the Commission.
2. The Member State may approve and designate an independent system operator only where:
(a)the candidate operator has demonstrated that it complies with the requirements of Article 549 (1), points (b), (c) and (d);
(b)the candidate operator has demonstrated that it has at its disposal the required financial, technical, physical and human resources to carry out its tasks under Article 3513;
(c)the candidate operator has undertaken to comply with a ten-year network development plan monitored by the regulatory authority;
(d)the transmission system owner has demonstrated its ability to comply with its obligations under paragraph 5.,. tTo which end, , it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity; and
(e)the candidate operator has demonstrated its ability to comply with its obligations under Regulation (EC) No 715/2009 [recast Gas regulation as proposed in COM(2021) xxx] including the cooperation of transmission system operators at European and regional level.
3. Undertakings which have been certified by the regulatory authority as having complied with the requirements of Article 6611 and of paragraph 2 of this Article shall be approved and designated as independent system operators by Member States. The certification procedure in either Article 6510 of this Directive and Article 3 of Regulation (EC) No 715/2009 or in Article 6611 of this Directive shall be applicable.
4. Each independent system 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 for planning (including the 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.
5. Where an independent system operator has been designated, the transmission system owner shall:
(a)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)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;. tThe. The relevant financing arrangements shall be subject to approval by the regulatory authority;. pPrior. 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, excluding the liability relating to the tasks of the independent system operator; and
(d)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.
6. In close cooperation with the 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.
2009/73/EC (adapted)
new
Article 5615
Unbundling of transmission system owners, and storage system and hydrogen storage operators
A transmission system and hydrogen network owners, where an independent system operator or an independent hydrogen network has been appointed, and a storage system operators or hydrogen storage facility 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, distribution , transport and storage of gases .
This Article shall apply only to natural gas storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 2933.
In order to ensure the independence of the transmission system or hydrogen network owner and storage system or hydrogen storage operator referred to in paragraph 1, the following minimum criteria shall apply:
(a)persons responsible for the management of the transmission system or hydrogen network owner and storage system or hydrogen storage 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 gases ;
(b)appropriate measures shall be taken to ensure that the professional interests of persons responsible for the management of the transmission system or hydrogen network owner and storage system or hydrogen storage operator are taken into account in a manner that ensures that they are capable of acting independently;
(c)the storage system or hydrogen storage operator shall 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. T; 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 7241(7) in a subsidiary are protected. In particular, this ; it shall enable in particular the parent company to approve the annual financial plan, or any equivalent instrument, of the storage system or hydrogen storage operator and to set global limits on the levels of indebtedness of its subsidiary;. iIt 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; nd
(d)the transmission system or hydrogen network owner and the storage system or hydrogen storage operator shall establish a compliance programme, which sets shall set out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The compliance programme ; it shall also set out the specific obligations of employees to meet those objectives;. aAn 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.
The Commission may is empowered to adopt delegated acts in accordance with Article 83 supplementing this Directive in order to set Gguidelines to ensure full and effective compliance of the transmission system or hydrogen network owner and of the storage system or hydrogen storage operator with paragraph 2 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 51(3).
CHAPTER IV
Section 3
independent transmission operator operators
Article 5717
Assets, equipment, staff and identity
1. Transmission system operators 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 transmission, in particular:
(a)assets that are necessary for the activity of gas transmission, including the transmission system, shall be owned by the transmission system operator;
(b)personnel necessary for the activity of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;
(c)leasing of personnel and 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)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)the terms and conditions of the provision of those services are approved by the regulatory authority;
(d)without prejudice to the decisions of the Supervisory Body under Article 6020, appropriate financial 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. The activity of gas transmission shall include at least the following tasks in addition to those listed in Article 3513:
(a)the representation of the transmission system operator and contacts to third parties and the regulatory authorities;
(b)the representation of the transmission system operator within the European Network of Transmission System Operators for Gas (ENTSO for Gas);
(c)granting and managing third-party access on a non-discriminatory basis between system users or classes of system users;
(d)the collection of all the 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)the operation, maintenance and development of a secure, efficient and economic transmission system;
(f)investment planning ensuring the long-term ability of the system to meet reasonable demand and guaranteeing security of supply;
(g)the setting up of appropriate 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)all corporate services, including legal services, accountancy and IT services.
3. Transmission system operators shall be organised in a legal form as referred to in Article 1 of Directive 2009/101/EC of the European Parliament and of the Council 40 Council Directive 68/151/EEC 41 .
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 or any part thereof.
5. The transmission system 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 system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part thereof.
Article 5818 - Independence of the transmission system operator
1. Without prejudice to the decisions of the Supervisory Body under Article 6020, the transmission system operator shall have:(a)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)the power to raise money on the capital market in particular through borrowing and capital increase.
2. The transmission system 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 and develop and maintain an efficient, secure and economic transmission system.
3. Subsidiaries of the vertically 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.
4. The overall management structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator in 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 ten-year network development plan developed pursuant to Article 5122.
5. In fulfilling their tasks listed in Article 3513 and Article 5717(2) of this Directive, and in complying with Article 1513(1), Article 514(1)(a), Article 916(2), (3) and (5), Article 3018(6) and Article 1221(1) of Regulation (EC) No 715/2009 [recast Gas Regulation as proposed in COM(2021) xxx] , transmission system operators shall not discriminate against different persons or entities and shall not restrict, distort or prevent competition in production or supply.
6. Any commercial and financial 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. The transmission system operator shall submit for approval by the regulatory authority all commercial and financial agreements with the vertically integrated undertaking.
8. The transmission system operator shall inform the regulatory authority of the financial resources, referred to in Article 5717(1), point (d), available for future investment projects and/or for the replacement of existing assets.
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. 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 Member State concerned. The certification procedure in either Article 6510 of this Directive and Article 133 of Regulation (EC) No 715/2009 or in Article 6611 of this Directive shall apply.
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11. The transmission system operator shall make public detailed information regarding the quality of the gases transported in its networks, based on Articles 16 and 17 of Regulation (EU) 2015/703
2009/73/EC (adapted)
Article 5919
Independence of the staff and the management of the transmission system operator
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 6020.
2. The identity of, and 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 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 the notification.
The regulatory authority may object to the decisions referred to in paragraph 1 where:
(a)doubts arise as to the professional independence of a nominated person responsible for the management and/or member of the administrative bodies; or
(b)in the case of premature termination of a term of office, doubts exist regarding the justification of such premature termination.
3. No professional position or 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 who are subject to this paragraph.
4. 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 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 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 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 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. Paragraph 3 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 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 6020
Supervisory Body
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 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 ten-year network development plan developed pursuant to Article 5122.
2. The Supervisory Body shall be composed of members representing the vertically integrated undertaking, members representing third party shareholders and, 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 first subparagraph of Article 5919(2), first subparagraph, and Article 5919 (3) to (7) shall apply to at least half of the members of the Supervisory Body minus one.
Article 5919(2), second subparagraph, point (b), shall apply to all the members of the Supervisory Body.
Article 6121
Compliance programme and compliance officer
1. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that 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 compliance officer shall be appointed by the Supervisory Body, subject to the approval by the regulatory authority. The regulatory authority may refuse the approval of the compliance officer only for reasons of lack of independence or professional capacity. The compliance officer may be a natural or legal person. Article 5919(2) to (8) shall apply to the compliance officer.
3. The compliance officer shall be in charge of:
(a)monitoring the implementation of the compliance programme;
(b)elaborating an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority;
(c)reporting to the Supervisory Body and issuing recommendations on the compliance programme and its implementation;
(d)notifying the regulatory authority on any substantial breaches with regard to the implementation of the compliance programme; and
(e)reporting to the 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 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. Where the vertically integrated 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, which under the ten-year network development plan, was to be executed in the following three years, the compliance officer shall report this to the regulatory authority, which then shall act in accordance with Article 5122.
6. The conditions governing the mandate or the employment conditions of the compliance officer, including the duration of its his mandate, shall be subject to approval by the regulatory authority. Those conditions shall ensure the independence of the compliance officer, including by providing it with all the resources necessary for fulfilling its his duties. During his its mandate, the compliance officer shall have no other professional position, responsibility or interest, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders.
7. The compliance officer shall 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 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 network, as defined in Regulation (EC) No 715/2009 [recast Gas Regulation as proposed in COM(2021)xxx] , in particular regarding tariffs, third party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b)projects undertaken in order to operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity and in optimisation of existing capacity;
(c)energy purchases or sales necessary for the operation of the transmission system.
9. The compliance officer shall monitor the compliance of the transmission system operator with Article 3616.
10. 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 his task.
11. After prior approval by the 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. The compliance officer shall have access to the offices of the transmission system operator without prior announcement.
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Section 4
Unbundling of dedicated hydrogen network operators
Article 62 - Unbundling of hydrogen network operators
1. Member States shall ensure that from [entry of transposition period+1year] hydrogen network operators are unbundled in accordance with the rules for natural gas transmission system operators set out in Article 56(1) to (3).2. For the purpose of this Article, of Articles 42 and 54, and of Articles 35 and 43 of Directive (EU) 2019/944, ‘production or supply’ shall include production and supply of hydrogen, and ‘transmission’ shall include transport of hydrogen.
3. Where on [entry into force] the hydrogen network belonged to a vertically integrated undertaking, a Member State may decide not to apply paragraph 1. In such case, the Member State concerned shall designate an independent hydrogen network operator unbundled in accordance with the rules on independent system operators for natural gas set out Article 55. Hydrogen network operators and transmission system operators for gas unbundled in accordance with Article 54(1) can act as independent hydrogen network operator, subject to the requirements pursuant to Article 63.
4. Until 31 December 2030, Member State may designate an integrated hydrogen network operator unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of Chapter IX. Such designation shall expire by 31 December 2030 at the latest.
5. The rules applicable to transmission system operators set out in Article 66 shall apply to hydrogen network operators.
Article 63 - Horizontal unbundling of hydrogen network operators
Where a hydrogen network operator is part of an undertaking active in transmission or distribution of natural gas or electricity, it shall be independent at least in terms of its legal form.Article 64 - Unbundling of accounts for hydrogen system operators
Member States shall ensure that the accounts of hydrogen system operators are kept in accordance with Article 69.2009/73/EC (adapted)
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Section 5
DESIGNATION AND CERTIFICATION OF NATURAL GAS AND HYDROGEN NETWORK OPERATORS
Article 6510
Designation and certification of transmission system operators and hydrogen network operators
1. Before an undertaking is approved and designated as transmission system operator or hydrogen network operator , it shall be certified according to the procedures laid down in paragraphs 4, 5 and 6 of this Article and in Article 133 of Regulation (EC) No 715/2009 [recast Gas Regulation proposed by COM(2021) xxx] .
2. Undertakings which own a transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 549 or 62 , pursuant to the certification procedure, shall be approved and designated as transmission system operators or hydrogen network operators by Member States. The designation of transmission system operators and hydrogen network operators shall be notified to the Commission and published in the Official Journal of the European Union.
3. Transmission system operators Certified undertakings shall notify to the regulatory authority any planned transaction which may require a reassessment of their compliance with the requirements of Article 549 or Article 62 .
4. The regulatory authorities shall monitor the continuing compliance of transmission system operators certified undertakings with the requirements of Article 549 or Article 62 . They shall open a certification procedure to ensure such compliance:
(a)upon notification by the of transmission system operators certified undertaking 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 of transmission system operators certified undertakings or transmission system owners may lead to an infringement of Article 549 or Article 62 or where they have reason to believe that such an infringement may have occurred; or
(c)upon a reasoned request from the Commission.
5. The regulatory authorities shall adopt a decision on the certification of a natural gas transmission system operator or a hydrogen network operator within a period of four months 100 working days from the date of the notification by the natural gas transmission system operator or the hydrogen network operator or from the date of the Commission request. After expiry of that period, the certification shall be deemed to be granted. The explicit or tacit decision of the regulatory authority shall become effective only after the conclusion of the procedure set out in paragraph 6.
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 respect to that decision. The Commission shall act in accordance with the procedure laid down in Article 133 of Regulation (EC) No 715/2009 [recast Gas Regulation proposed by COM(2021) xxx] .
7. The regulatory authorities and the Commission may request from transmission system operators, hydrogen network operators and undertakings performing any of the functions of production or supply any information relevant for the fulfilment of their tasks under this Article.
8. The regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.
Article 6611
Certification in relation to third countries
1. Where certification is requested by a transmission system owner, or a transmission system operator, a hydrogen network operator or a hydrogen network owner 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 , a hydrogen network operator or a hydrogen network owner .
2. The transmission system operator or hydrogen network operator 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 adopt a draft decision on the certification of a transmission system operator or hydrogen network operator within four months 100 working days 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 complies with the requirements of Article 549 or Article 62 ; and
(b)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 Union . In considering that question the regulatory authority or other competent authority so designated shall take into account:
(i)the rights and obligations of the Community Union with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Community Union is a party and which addresses the issues of security of energy supply;
(ii)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 Union law; and
(iii)other specific facts and circumstances of the case and the third country concerned.
4. The regulatory authority shall 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 the regulatory authority or the designated competent authority referred to in paragraph 3, point (b), before the regulatory authority adopts a decision on the certification, to request an opinion from the Commission on whether:
(a)the entity concerned complies with the requirements of Article 549 or Article 62 ; and
(b)granting certification will not put at risk the security of energy supply to the Community Union .
6. The Commission shall examine the request referred to in paragraph 5 as soon as it is received. Within a period of 50 working days 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 ACER the Agency, the Member State concerned, and interested parties. In the event that the Commission makes such a request, the two-month 50 working days period shall be extended by further 50 working days two months.
In the absence of an opinion by the Commission within the period referred to in the first and second subparagraphs, the Commission is deemed not to raise objections to the decision of the regulatory authority.
7. 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 Union , the Commission shall take into account:
(a)the specific facts of the case and the third country or third countries concerned; and
(b)the rights and obligations of the Community Union 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 Union is a party and which addresses the issues of security of supply.
8. The national regulatory authority shall, within a period of 50 working days 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 or the security of energy supply of another Member State. Where the Member State has designated another competent authority to assess paragraph 3, point (b), 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. Where the final decision diverges from the Commission’s opinion, the Member State concerned shall provide and publish, together with that decision, the reasoning underlying such decision.
9. Nothing in this Article shall affect the right of Member States to exercise, in compliance with Community Union law, national legal controls to protect legitimate public security interests.
10. The Commission may is empowered to adopt delegated acts in accordance with Article 83 in order to provide gGuidelines 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 51(3).
11. This Article, with exception of paragraph 3(a), shall also apply to Member States which are subject to a derogation under Article 49
Article 6712
Designation of operators of natural gas storage , hydrogen storage, and LNG facilities and hydrogen terminals system operators
Member States shall designate, or shall require natural gas undertakings which own natural gas storage , hydrogen storage, or LNG facilities and hydrogen terminals 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 for these infrastructure .
CHAPTER VI
Section 6
Unbundling and transparency of accounts
Article 6830
Right of access to accounts
1. Member States or any competent authority they designate, including the regulatory authorities referred to in Article 7039(1) and the dispute settlement authorities referred to in Article 2434(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas and hydrogen undertakings as set out in Article 7131.
2. Member States and any designated competent authority, including the regulatory authorities referred to in Article 7039(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 6931
Unbundling of accounts
1. Member States shall take the necessary steps to ensure that the accounts of natural gas and hydrogen 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 49(2) and (4), they shall at least keep their internal accounts in accordance with this Article.
2. Natural gas and hydrogen undertakings, whatever their system of ownership or legal form, shall draw up, submit to audit and publish their annual accounts in accordance with the rules of national law concerning the annual accounts of limited liability companies adopted pursuant to Directive 2013/34/EU of the European Parliament and of the Council 42 the Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 44(2)(g) 43 of the Treaty on the annual accounts of certain types of companies 44 .
Undertakings which are not legally obliged to publish their annual accounts shall keep a copy thereof at the disposal of the public at their head office.
3. Natural gas Uundertakings shall, in their internal accounting, keep separate accounts for each of their transmission, distribution, LNG , hydrogen terminal, natural gas and hydrogen and storage and hydrogen transport activities as they would be required to do if the activities in question were carried out by separate undertakings, with a view to avoiding discrimination, cross-subsidisation and distortion of competition. They shall also keep accounts, which may be consolidated, for other gas activities not relating to transmission, distribution, LNG . hydrogen terminal, natural gas and hydrogen and storage and hydrogen transport activities . Until 1 July 2007, they shall keep separate accounts for supply activities for eligible customers and supply activities for non-eligible customers. Revenue from ownership of the transmission ,or distribution or hydrogen network shall be specified in the accounts. Where appropriate, they shall keep consolidated accounts for other, non-gas activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity.
4. The audit, referred to in paragraph 2, shall, in particular, verify that the obligation to avoid discrimination and cross-subsidies referred to in paragraph 3 is respected.
5. Undertakings shall specify in their internal accounting the rules for the allocation of assets and liabilities, expenditure and income as well as for depreciation, without prejudice to nationally applicable accounting rules, which they follow in drawing up the separate accounts referred to in paragraph 3. Those internal rules may be amended only in exceptional cases. Such amendments shall be mentioned and duly substantiated.
6. The annual accounts shall indicate in notes any transaction of a certain size conducted with related undertakings.
Chapter VIIIX
National Regulatory Authorities
Article 7039
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 Union level within the Board of Regulators of the Agency ACER in accordance with Article 714(1) of Regulation (EC) No 713/2009 Regulation (EU) 2019/942 .
3. By way of derogation from paragraph 1 of this Article, a Member State may designate regulatory authorities for small systems in 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. That derogation shall be without prejudice to the appointment of one senior representative for representation and contact purposes at Community Union level within the Board of Regulators of the Agency ACER in compliance with Article 714(1) of Regulation (EC) No 713/2009 Regulation (EU) 2019/942 .
4. Member States shall guarantee 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. That requirement is without prejudice to close cooperation, as appropriate, with other relevant national authorities or to general policy guidelines issued by the government and not related to the regulatory powers and duties under Article 7241.
5. In order to protect the independence of the regulatory authority, Member States shall in particular ensure that:
(a)the regulatory authority can take autonomous decisions, independently from any political body, and has separate annual budget allocations, with autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties; and
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(b)the regulatory authority has all the necessary human and financial resources it needs to carry out its duties and exercise its powers in an effective and efficient manner;
(c)the regulatory authority has a separate annual budget allocation and autonomy in the implementation of the allocated budget;
(d)the members of the board of 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.
2009/73/EC
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(eb)the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed based on objective, transparent and published criteria, in an independent and impartial procedure, which ensures that the candidates have the necessary skills and experience for any relevant position in the regulatory authority; for a fixed term of five up to seven years, renewable once;
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(f)provisions on conflict of interest are in place and confidentiality obligations extend beyond the end of the mandate of the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority's top management;
(g)the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority's top management may be dismissed only based on transparent criteria in place;
(h)Member States may provide for the ex-post control of the regulatory authorities’ annual accounts by an independent auditor.
2009/73/EC
In regard to point (b) of the first subparagraph, point (d), 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, members of the top management may 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 misconduct under national law.
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6. By 5 July 2022 and every four years thereafter, the Commission shall submit a report to the European Parliament and the Council on the compliance of national authorities with the principle of independence set out in this Article.
2009/73/EC (adapted)
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Article 7140
General objectives of the regulatory authority
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 7241, in close consultation with other relevant national authorities, including competition authorities and authorities from neighbouring countries, including third countries, as appropriate, and without prejudice to their competencies:
(a)promoting, in close cooperation with the Agency, regulatory authorities of other Member States, and the Commission and ACER, a competitive, flexible, secure and environmentally sustainable internal market in natural gas , renewable and low-carbon gases and hydrogen within the Community Union , and effective market opening for all customers and suppliers in the Community, and ensuring appropriate conditions for the effective and reliable operation of natural gas and hydrogen networks, taking into account long-term objectives , thus contributing to the consistent, efficient and effective application of Union law in order to achieve the Union’s climate and energy goals ;
(b)developing competitive and properly functioning regional cross-border markets within the Community Union in view of the achievement of the objectives referred to in point (a);
(c)eliminating restrictions on trade in natural gas and hydrogen between Member States, including eliminating restrictions due to differences in the quality of gases or differences in the volume of hydrogen blended into the natural gas system or to differences in the quality of hydrogen in the hydrogen system, developing appropriate cross-border transmission and/or transport capacities to meet demand and enhancing the integration of national markets ensuring the interoperability of the interconnected EU natural gas system or Union hydrogen system, which may facilitate natural gas flow across the Community Union ;
(d)helping to achieve, in the most cost-effective way, the development of secure, reliable and efficient non-discriminatory systems that are consumer oriented, and promoting system adequacy and, in line accordance with general energy and climate 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 and facilitating their operation in relation to other energy networks of electricity and heat ;
(e)facilitating access to the network for new production capacity, in particular removing barriers that could prevent access for new market entrants and of gas and hydrogen from renewable energy sources;
(f)ensuring that system operators and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies , especially energy efficiency, in system performance and foster market integration;
(g)ensuring that customers benefit through the efficient functioning of their national market, promoting effective competition and helping to ensure consumer protection in close cooperation with relevant consumer protection authorities ;
(h)helping to achieve high standards of public service for natural gas, contributing to the protection of vulnerable customers and contributing to the compatibility of necessary data exchange processes for customer switching.
Article 7241
Duties and powers of the regulatory authority
1. The regulatory authority shall have the following duties:
(a)fixing or approving, in accordance with transparent criteria, transmission or distribution tariffs or their methodologies , or both ;
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(b)as of 1 January 2031 or as from the date of applying Article 31(1) of this Directive, fixing or approving, in accordance with transparent criteria, tariffs for hydrogen network access or their methodologies, or both;
(c)fixing or approving, in accordance with transparent criteria (i) the size and duration of the dedicated charge referred in Article 4 of [recast Gas Regulation as proposed in COM(2021) xxx] or their methodologies or both (ii) the value of transferred assets and the destination of any profits and losses that may occur as a result and (iii) the allocating contributions to the dedicated charge;
2009/73/EC (adapted)
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(db) ensuring compliance of transmission system operators and distribution system operators, and where relevant, system owners, hydrogen network operators as well as of any natural gas and hydrogen undertakings and other market participants, including citizen energy communities , with their obligations under this Directive , [the recast Gas Regulation as proposed in COM(2021) xxx],the network codes and guidelines adopted pursuant Article 52 and 53 of Gas Regulation, Regulation (EU) 2017/1938 and other relevant Community Union legislation, including as regards cross-border issues , as well as ACER’s decisions ;
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(e)in close coordination with the other regulatory authorities, ensuring the compliance of the ENTSO for Gas, the EU DSO entity and the ENNOH with their obligations under this Directive [recast Gas Regulation as proposed in COM(2021) xxx], the network codes and guidelines adopted pursuant to Articles 52 to 56 of [the recast Gas Regulation proposed in COM(2021) xxx], and other relevant Union law, including as regards cross-border issues, as well as with ACER's decisions, and jointly identifying non-compliance of the ENTSO for Gas, the EU DSO entity and the ENNOH with their respective obligations; where the regulatory authorities have not been able to reach an agreement within a period of four months after the start of consultations for the purpose of jointly identifying non-compliance, the matter shall be referred to the ACER for a decision, pursuant to Article 6(10) of Regulation (EU) 2019/942;
(f)monitoring the development of gas qualities and gas quality management by transmission system operators and where relevant by distribution system operators, including monitoring the development of costs related to the management of gas quality by system operators and the developments related to the blending of hydrogen into the natural gas system.
(g)monitoring the development of hydrogen quality and hydrogen quality management by hydrogen network operators where relevant as referred to in Article 46, including monitoring the development of costs related to the management of hydrogen quality.
(h)examining and providing an assessment of the overview submitted by hydrogen network operators on the development of hydrogen transport infrastructure in accordance with Article 52, taking the overall energy-economic necessity of the hydrogen network into account in this examination as well as the joint scenario framework under the Article 51 (2), point (e) on network development planning;
(i)taking the examination and assessment of the overview of the development of the hydrogen transport infrastructure as requested under point (g) into account in its approval of dedicated charges within the meaning of Article 4 of [recast Gas Regulation as proposed in COM(2021) xxx].
2019/692 Art. 1.6 (adapted)
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(jc)cooperating with regard to cross-border issues with the regulatory authority or authorities of the Member States concerned and with the the Agency ACER , in particular through participation in the work of ACER’s Board of Regulators pursuant to Article 21 of Regulation (EU) 2019/942 In respect of infrastructure to and from a third country, the regulatory authority of the Member State where the first interconnection point with the Member States' network is located may cooperate with the relevant authorities of the third country, including those of the Energy Community Contracting Parties, after consulting the regulatory authorities of other Member States concerned, aiming at, as regards this that infrastructure, consistent application of this Directive in the territory of the Member States;
2009/73/EC (adapted)
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(kd)complying with, and implementing, any relevant legally binding decisions of ACER the Agency and of the Commission;
(le)reporting annually on its activity and the fulfilment of its duties to the relevant authorities of the Member States, ACER 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;
(mf)ensuring that there are no cross-subsidies between transmission, distribution, hydrogen transport, natural gas and hydrogen storage, LNG and hydrogen terminals and natural gas and hydrogen supply activities;
(ng)monitoring investment plans of 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 Community Union -wide network development plan referred to in point (x) of Article 29 of [recast Gas Regulation as proposed in COM(2021) xxx] in Article 8(3)(b) of Regulation (EC) No 715/2009; such assessment may include recommendations to amend those investment plans;
(oh)monitoring compliance with and reviewing the past performance of network security and reliability rules and setting or approving standards and requirements for quality of service and supply or contributing thereto together with other competent authorities;
(pi)monitoring the level of transparency, including of wholesale prices, and ensuring compliance of natural gas and hydrogen undertakings with transparency obligations;
(qj)monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on natural gas and hydrogen 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;
(rk)monitoring the occurrence of restrictive contractual practices, including exclusivity clauses which may prevent large non-household customers from contracting simultaneously with more than one supplier or restrict their choice to do so, and, where appropriate, informing the national competition authorities of such practices;
(sl)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 Union law and consistent with Community Union policies and provided they contribute to decarbonisation objectives. No long-term contracts for supply of unabated fossil gas shall be concluded with a duration beyond the end of year 2049 ;
(tm)monitoring the time taken by natural gas transmission and distribution system operators or hydrogen network operators to make connections and repairs;
(un)monitoring and reviewing the access conditions to storage, linepack and other ancillary services as provided for in Article 2933 or Article 33 . In the event that the access regime to natural gas storage is defined according to Article 2933 (3), that task shall exclude the reviewing of tariffs;
(yo)helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex I, are effective and enforced;
(wp)publishing recommendations, at least annually, in relation to compliance of supply prices with Article 63, and providing those to the competition authorities, where appropriate;
(xq)ensuring non-discriminatory 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 pursuant Articles 22 and 23 under point (h) of Annex I;
(yr)monitoring the implementation of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, hydrogen network operators, suppliers and customers and other market parties pursuant to Regulation (EC) No 715/2009 [recast Gas Regulation as proposed in COM(2021) xxx] ;
(zs)monitoring the correct application of the criteria that determine whether a natural gas storage facility falls under Article 2933 (3) or (4); and
(aat)monitoring the implementation of safeguards measures as referred to in Article 7746;
(bbu) contributing to the compatibility of data exchanges processes for the most important market processes at regional level;.
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(cc)implementing the network codes and guidelines adopted pursuant Article 52 through national measures or, where so required, coordinated regional or Union-wide measures;
(dd)ensuring a transparent and efficient process for the setting up of the national network development plan in line with the requirements set out in Articles 51 and 52;
(ee)approving and amending the network development plan;
(ff)monitoring gas quality control and management by transmission system operators, distribution system operators, storage system operators and LNG facility operators;
(gg)monitoring the implementation of the measures taken in emergency state, as provided for in Regulation (EU) 2017/1938 and laid down in the national emergency plan, including solidarity measures under its Article 13;
(hh)monitoring the availability of comparison websites, including comparison tools that fulfil the criteria in Article 12;
(ii)monitoring the removal of unjustified obstacles to and restrictions on the development of consumption of self-generated renewable natural gas and citizen energy communities.
2009/73/EC (adapted)
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2. Where 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 natural gas transmission system and hydrogen network 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 the Agency ACER 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.
3. In addition to the duties conferred upon it under paragraph 1 of this Article, when an independent system operator or an independent hydrogen network operator has been designated under Article 5514 or Article 62 , the regulatory authority shall:
(a)monitor the transmission system owner’s and the independent system operator’s and hydrogen network owner’s and independent hydrogen network operator’s compliance with their obligations under this Article, and issue penalties for non compliance in accordance with paragraph 4, point (d);
(b)monitor the relations and communications between the independent system operator and the transmission system owner or the hydrogen network owner and the independent hydrogen network operator , so as to ensure compliance of the independent system operator or the independent hydrogen network operator with its obligations, and in particular approve contracts and act as a dispute settlement authority between the independent system operator and the transmission system owner or the hydrogen network owner and the independent hydrogen network operator in respect of any complaint submitted by either party pursuant to paragraph 11;
(c)without prejudice to the procedure under Article 5514(2), point (c), for the first ten-year network development plan, approve the investments planning and the multi-annual network development plan presented annually by the independent system operator or the independent hydrogen network operator ;
(d)ensure that network access tariffs collected by the independent system operator or the independent hydrogen network 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
(e)have the powers to carry out inspections, including unannounced inspections, at the premises of transmission system owner and independent system operator, or of the hydrogen network owner and the independent hydrogen network operator .
4. Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraphs 1, 3 and 6 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 natural gas and hydrogen undertakings;
(b)to carry out investigations into the functioning of the gas markets for gases , and to decide upon and impose any necessary and proportionate measures to promote effective competition and ensure the proper functioning of the gas markets for gases and ,. wWhere appropriate, the regulatory authority shall also have the power to cooperate with the national competition authority and the financial market regulators or the Commission in conducting an investigation relating to competition law;
(c)to require any information from natural gas and hydrogen 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;
(d)to impose effective, proportionate and dissuasive penalties on natural gas and hydrogen undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of ACER the Agency, or to propose to a competent court to impose such penalties. This shall include , including the power to impose or propose the imposition of penalties of up to 10 % of the annual turnover of the transmission system operator or hydrogen network operator or of up to 10 % of the annual turnover of the vertically integrated undertaking on the transmission system operator or hydrogen network operator or on the vertically integrated undertaking, as the case may be, for non compliance with their respective obligations pursuant to this Directive; and
(e)appropriate rights of investigations and relevant powers of instructions for dispute settlement under paragraphs 11 and 12.
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5. The regulatory authority located in the Member State in which the ENTSO for Gas, the European Network of Network Operators for Hydrogen or the EU DSO entity has its seat shall have the power to impose effective, proportionate and dissuasive penalties on those entities where they do not comply with their obligations under this Directive, [the recast Gas Regulation proposed in COM(2021) xxx] or any relevant legally binding decisions of the regulatory authority or of ACER, or to propose that a competent court impose such penalties.
2009/73/EC (adapted)
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65. In addition to the duties and powers conferred on it under paragraphs 1 and 4 of this Article, when a an independent transmission system operator or an integrated hydrogen network operator has been designated in accordance with Chapter IXIV, Section 3, the regulatory authority shall be granted at least the following duties and powers:
(a)to issue penalties in accordance with paragraph 4, point (d) for discriminatory behaviour in favour of the vertically integrated undertaking;
(b)to monitor communications between the transmission system operator or an integrated hydrogen network operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator or the integrated hydrogen network operator with its obligations;
(c)to act as dispute settlement authority between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator in respect of any complaint submitted pursuant to paragraph 11;
(d)to monitor commercial and financial relations including loans between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator ;
(e)to approve all commercial and financial agreements between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network 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 6421(4),. Such justification shall in particular include including evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;
(g)to carry out inspections, including unannounced inspections, on the premises of the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator ; and
(h)to assign all or specific tasks of the transmission system operator or the integrated hydrogen network operator to an independent system operator or an independent hydrogen network operator, appointed in accordance with Article 6414 in case of a persistent breach by the transmission system operator or the integrated hydrogen network operator of its obligations under this Directive, in particular in case of repeated discriminatory behaviour to the benefit of the vertically integrated undertaking.
76. The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force at least the methodologies used to calculate or establish the terms and conditions for:
(a)connection and access to national natural gas networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities , whereby . 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;
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(b)connection and access to national hydrogen networks, including, as from 1 January 2031, the hydrogen network tariffs, and terms and conditons and tariffs for access to for hydrogen storage and hydrogen terminals, including tariffs were applicable;
2009/73/EC (adapted)
(cb) the provision of balancing services which shall be performed in the most economic manner and provide appropriate incentives for network users to balance their input and off-takes. The balancing services shall be provided in a fair and non-discriminatory manner and be based on objective criteria; and
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(d)approving and monitoring dedicated charges in accordance with Article 4 of [recast Gas Regulation as proposed in COM(2021) xxx].
2009/73/EC (adapted)
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(e)access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management.
87. The methodologies or the terms and conditions referred to in paragraph 7 shall be published.
98. In fixing or approving the tariffs or methodologies and the balancing services, the regulatory authorities shall ensure that transmission and distribution system operators and, as from 1 January 2031, hydrogen network 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.
109. The regulatory authorities shall monitor congestion management of national gas transmission networks and hydrogen networks including interconnectors, and the implementation of congestion management rules. To that end, transmission system operators , hydrogen network operators or market operators shall submit their congestion management rules, including capacity allocation, to the national regulatory authorities. National rRegulatory authorities may request amendments to those rules.
Article 73 - Decisions and complaints
110. Regulatory authorities shall have the authority to require natural gas transmission, storage, LNG and distribution system operators, hydrogen storage and terminal operators, and, as from 1 January 2031, hydrogen network 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 2933(3), that task shall exclude the modification of tariffs. In the event of delay in the fixing of natural gas transmission and distribution tariffs and, where appropriate, hydrogen network tariffs, regulatory authorities shall have the power to fix or approve provisional transmission and distribution tariffs or methodologies and hydrogen network tariffs and methodologies and to decide on the appropriate compensatory measures if the final tariffs or methodologies deviate from those provisional tariffs or methodologies.211Any party having a complaint against a natural gas transmission, storage, LNG or distribution system operator or a hydrogen network, storage or terminal 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 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.
312. 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 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.
413. 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. Those mechanisms shall take account of the provisions of the Treaty TFEU , and in particular Article 82 102 thereof.
514. Member States shall ensure that the appropriate measures are taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where confidentiality rules imposed by this Directive have not been respected.
615,Complaints referred to in paragraphs 211 and 312 shall be without prejudice to the exercise of rights of appeal under Community Union or national law.
716. Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.
817. 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 and of any government.
Article 7442
Regulatory regime for Regional cooperation between regulatory authorities on cross-border issues
1. Regulatory authorities shall closely consult and cooperate with each other , and in particular within ACER, and shall provide each other and the Agency ACER 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 cooperate at least at a regional level to:
(a)foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint gas and hydrogen exchanges and the allocation of cross-border capacity, and to enable an adequate 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 without discriminating between supply undertakings in different Member States;
(b)coordinate the development of all network codes for the relevant transmission system operators , hydrogen network operators and other market actors; and
(c)coordinate the development of the rules governing the management of congestion;.
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(d)to ensure regulatory compliance of legal entities fulfilling transmission operators’ and network operators’ tasks at cross-border or regional level.
2009/73/EC
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3. National rRegulatory authorities shall have the right to enter into cooperative arrangements with each other to foster regulatory cooperation.
4. 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.
5. The Commission may adopt 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 51(3).
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5. The Commission is empowered to adopt delegated acts in accordance with Article 83 in order to supplement this Directive by establishing guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with ACER.
2019/692 Art. 1.7
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6. Regulatory authorities, or where appropriate other competent authorities, may consult and cooperate with the relevant authorities of third countries , including Energy Community Contracting Parties, in relation to the operation of gas and hydrogen infrastructure to and from third countries with a view to ensuring, as regards the infrastructure concerned, that this Directive is applied consistently in the territory and territorial sea of a Member State.
2009/73/EC (adapted)
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Article 7543
Compliance with the network codes and Gguidelines
1. Any regulatory authority and the Commission may request the opinion of the Agency ACER on the compliance of a decision taken by a regulatory authority with the network codes and the Gguidelines referred to in this Directive or in Regulation (EC) No 715/2009 [recast Gas Regulation as proposed in COM(2021) xxx] .
2. The Agency ACER 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.
3. Where the regulatory authority which has taken the decision does not comply with ACER the Agency’s opinion within four months from the date of receipt of that opinion, ACER the Agency shall inform the Commission accordingly.
4. Any regulatory authority may inform the Commission where it considers that a decision relevant for cross border-trade taken by another regulatory authority does not comply with the Gguidelines referred to in this Directive or in Regulation (EC) No 715/2009 [recast Gas Regulation as proposed in COM(2021) xxx] within two months from the date of that decision.
5. Where the Commission, within two months of having been informed by ACER 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 network codes and the Gguidelines referred to in this Directive or in Regulation (EC) No 715/2009 [recast Gas Regulation as proposed in COM(2021) xxx] , 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 takes a 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 network codes and the Gguidelines have not been complied with.
7. Where the Commission has not 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 comply with the Commission decision to withdraw its decision within a period of two months and shall inform the Commission accordingly.
9. The Commission may adopt 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 51(3). is empowered to adopt delegated acts in accordance with Article 83 supplementing this Directive by establishing guidelines setting out the details of the procedure to be followed for the application of this Article.
Article 7644
Record keeping
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 in natural gas and hydrogen supply contracts and natural gas and hydrogen derivatives with wholesale customers and transmission system operators, as well as storage and LNG operators as well as hydrogen network, storage and terminal operators .
2. The data shall 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 natural gas and hydrogen supply contracts and natural gas and hydrogen derivatives.
3. The regulatory authority may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This paragraph shall not apply to information about financial instruments which fall within the scope of Directive 2014/65/EU 2004/39/EC.
4. To ensure the uniform application of this Article, Tthe Commission may is empowered to adopt delegated acts supplementing this Directive in accordance with Article 83, by establishing gGuidelines 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 51(3).
5. With respect to transactions in natural gas and hydrogen derivatives of supply undertakings with wholesale customers and natural gas transmission system operators , as well as storage and LNG operators as well as hydrogen network, storage and terminal operators , this Article shall apply only once the Commission has adopted the gGuidelines referred to in paragraph 4.
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 2014/65/EU 2004/39/EC.
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 2014/65/EU2004/39/EC, the authorities responsible under that Directive shall provide them with the required data.
Chapter XXI
Final provisions
Article 7746
Safeguard measures
1. In the event of a sudden crisis in the energy market or where the physical safety or security of persons, apparatus or installations or system integrity is threatened, a Member State may temporarily take the necessary safeguard measures declare an emergency state pursuant to Article 11 of Regulation (EU 2017/1938 and take the measures foreseen in the national emergency plan .
2. Such measures shall cause the least possible disturbance to the functioning of the internal market and shall be no wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.
3. The Member State concerned shall, without delay, notify those measures to the other Member States, and to the Commission, which may decide that the Member State concerned must amend or abolish such measures, insofar as they distort competition and adversely affect trade in a manner which is at variance with the common interest.
2009/73/EC (adapted)
Article 7847
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 TFEU Treaty, notably Article 30 36 thereof, and with the legislation of the Community Union .
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 48
Derogations in relation to take-or-pay commitments
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 32 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 receipt of that 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 that request within a period of four weeks, a final decision shall be taken expeditiously in accordance with the advisory procedure referred to in Article 51(2).
The Commission shall preserve the confidentiality of commercially sensitive information.
3. When deciding on the derogations referred to in paragraph 1, the Member State, or the designated competent authority, and the Commission shall take into account, in particular, the following criteria:
(a)the objective of achieving a competitive gas market;
(b)the need to fulfil public-service obligations and to ensure security of supply;
(c)the position of the natural gas undertaking in the gas market and the actual state of competition in that market;
(d)the seriousness of the economic and financial difficulties encountered by natural gas undertakings and transmission undertakings or eligible customers;
(e)the dates of signature and terms of the contract or contracts in question, including the extent to which they allow for market changes;
(f)the efforts made to find a solution to the problem;
(g)the extent to which, when accepting the take-or-pay commitments in question, the undertaking could reasonably have foreseen, having regard to the provisions of this Directive, that serious difficulties were likely to arise;
(h)the level of connection of the system with other systems and the degree of interoperability of those systems; and
(i)the effects the granting of a derogation would have on the correct application of this Directive as regards the smooth functioning of the internal market in natural gas.
A decision on a request for a derogation concerning take-or-pay contracts concluded before 4 August 2003 should not lead to a situation in which it is impossible to find economically viable alternative outlets. Serious difficulties shall in any case be deemed not to exist when the sales of natural gas do not fall below the level of minimum offtake guarantees contained in gas-purchase take-or-pay contracts or in so far as the relevant gas-purchase take-or-pay contract can be adapted or the natural gas undertaking is able to find alternative outlets.
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 Articles 32 to 44 are complied with.
5. Any derogation granted under the above provisions shall be duly substantiated. The Commission shall publish the decision in the Official Journal of the European Union.
6. The Commission shall, within 4 August 2008, submit a review report on the experience gained from the application of this Article, so as to allow the European Parliament and the Council to consider, in due course, the need to adjust it.
2019/692 Art. 1.8 (adapted)
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Article 7948 - a Technical agreements regarding the operation of natural gas and hydrogen pipeline lines with third countries transmission lines
This Directive does not affect the freedom of transmission system operators , hydrogen network operators or other economic operators to maintain in force or to conclude technical agreements on issues concerning the operation of transmission lines pipelines between a Member State and a third country, insofar as those agreements are compatible with Union law and relevant decisions of the national regulatory authorities of the Member States concerned. Such agreements shall be notified to the regulatory authorities of the Member States concerned.2009/73/EC
Article 49
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, 37 and/or 38. 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 where 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, 37 and/or 38. Such derogation shall expire from the moment when Cyprus is not qualifying as an isolated market.
Articles 4, 9, 37 and/or 38 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 subparagraph 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 and 9, Article 13(1) and (3), Articles 14 and 24, Article 25(5), Articles 26, 31 and 32, Article 37(1) and/or Article 38. Such 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 (3), Articles 14 and 24, Article 25(5), Articles 26, 31 and 32, Article 37(1) and/or Article 38. Such 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 37(1)(b) shall apply, and three years thereafter, Article 37(1)(c) shall apply. Until Article 37(1)(b) applies the Member State referred to in paragraph 2 of this Article may decide not to apply Article 32 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 (3), Articles 14 and 24, Article 25(5), Articles 26, 31 and 32, Article 37(1) and/or Article 38 for developments within that area.
5. The Commission may grant the derogation referred to in paragraph 4, taking into account, in particular, the following criteria:
–a) the need for infrastructure investments, which would not be economic to operate in a competitive market environment,
–b) the level and pay-back prospects of investments required,
–c) the size and maturity of the gas system in the area concerned,
–d) the prospects for the gas market concerned,
–e) the geographical size and characteristics of the area or region concerned, and socioeconomic and demographic factors,
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.
7. The Commission shall inform the Member States of applications made under paragraph 4 prior to taking a decision pursuant to paragraph 5, taking into account respect for confidentiality. That decision, as well as the derogations referred to in paragraphs 1 and 2, shall be published in the Official Journal of the European Union.
8. Greece may derogate from Articles 4, 24, 25, 26, 32, 37 and/or 38 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.
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Article 80 - Derogations for natural gas system
1. Member States which are not directly connected to the interconnected system of any other Member State may apply to the Commission for derogations from Articles 3, 7, 54 or 27. Any such derogation shall expire from the moment when the first interconnector to the Member State is completed.2. Member States may apply to the Commission for derogations from applying Articles 3, 7, 54 or 27 to outermost regions within the meaning of Article 349 TFEU or to other geographically isolated areas. Any such derogation shall expire from the moment a connection from the region or area to a Member State with an interconnected system is completed.
3. The Commission shall inform the Member States of applications for derogations referred to in paragraphs 1 and 2 before taking a decision, taking into account justified requests for confidentiality of commercially sensitive information.
4. Derogations granted by the Commission shall be limited in time and subject to conditions that aim to increase competition in and the integration of the internal market and to ensure that the derogations do not hamper the transition towards renewable energy or the application of the energy efficiency first principle within the meaning of Article 2, point (18) of Regulation (EU) 2018/1999.
5. Derogations pursuant to Directive 2009/73/EC without an expiry date shall expire on 31 December 2025. Member States that at the time of entry into force of this Directive are still benefitting from these derogations may apply to the Commission for a new derogation in accordance with the conditions established in this Article.
6. Decisions to grant derogations shall be published in the Official Journal of the European Union.
2019/692 Art. 1.9 (adapted)
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Article 8149 - a Derogations in relation to natural gas transmission lines to and from third countries
1. In respect of gas transmission lines between a Member State and a third country completed before 23 May 2019, the Member State where the first connection point of such a transmission line with a Member State's network is located may decide to derogate from Articles 549, 6510, 6611 and 2732 and Article 7241(7), (9) and 73 (1) for the sections of such gas transmission line located in its territory and territorial sea, for objective reasons such as to enable the recovery of the investment made or for reasons of security of supply, provided that the derogation would is not be detrimental to competition on or the effective functioning of the internal market in natural gas, or to security of supply in the Union.The derogation shall be limited in time up to 20 years based on objective justification, renewable if justified and may be subject to conditions which contribute to the achievement of the above conditions in the first subparagraph .
Such derogations shall not apply to transmission lines between a Member State and a third country which has the obligation to transpose this Directive and which effectively implements this Directive in its legal order under an agreement concluded with the Union.
2. Where the transmission line concerned is located in the territory of more than one Member State, the Member State in the territory of which the first connection point with the Member States' network is located shall decide whether to grant a derogation for that transmission line after consulting all the Member States concerned.
Upon request by the Member States concerned, the Commission may decide to act as an observer in the consultation between the Member State in the territory of which the first connection point is located and the third country concerning the consistent application of this Directive in the territory and territorial sea of the Member State where the first interconnection point is located, including the granting of derogations for such transmission lines.
3. Decisions pursuant to paragraphs 1 and 2 shall be adopted by 24 May 2020. Member States shall notify any such decisions to the Commission and shall publish them.
Article 8249 - b Empowerment procedure
1. Without prejudice to other obligations under Union law, and to the allocation of competence between the Union and the Member States, existing agreements between a Member State and a third country on the operation of a transmission line or an upstream pipeline network may be maintained in force until the entry into force of a subsequent agreement between the Union and the same third country or until the procedure under paragraphs 2 to 15 of this Article applies.2. Without prejudice to the allocation of competence between the Union and the Member States, where a Member State intends to enter into negotiations with a third country in order to amend, extend, adapt, renew or conclude an agreement on the operation of a transmission line with a third country concerning matters falling, entirely or partly, within the scope of this Directive, it shall notify the Commission of its intention in writing.
Such a notification shall include the relevant documentation and an indication of the provisions to be addressed in the negotiations or to be renegotiated, the objectives of the negotiations and any other relevant information, and shall be transmitted to the Commission at least five months before the intended start of the negotiations.
3. Further to any notification pursuant to paragraph 2, the Commission shall authorise the Member State concerned to enter into formal negotiations with a third country for the part which may affect Union common rules unless it considers that the opening of such negotiations would:
(a)be in conflict with Union law other than the incompatibilities arising from the allocation of competence between the Union and the Member States;
(b)be detrimental to the functioning of the internal market in natural gas, competition or security of supply in a Member State or in the Union;
(c)undermine the objectives of pending negotiations of intergovernmental agreements by the Union with a third country;
(d)be discriminatory.
4. When carrying out the assessment under paragraph 3, the Commission shall take into account whether the intended agreement concerns a transmission line or an upstream pipeline that contributes to the diversification of natural gas supplies and suppliers by means of new natural gas sources.
5. Within 90 days of receipt of the notification referred to in paragraph 2, the Commission shall adopt a decision authorising or refusing to authorise a Member State to enter into negotiations in order to amend, extend, adapt, renew or conclude an agreement with a third country. Where additional information is needed to adopt a decision, the 90-day period shall run from the date of receipt of such additional information.
6. In the event that the Commission adopts a decision refusing to authorise a Member State to enter into negotiations in order to amend, extend, adapt, renew or conclude an agreement with a third country, it shall inform the Member State concerned accordingly and shall give the reasons therefor.
7. Decisions authorising or refusing to authorise a Member State to enter into negotiations in order to amend, extend, adapt, renew or conclude an agreement with a third country shall be adopted, by means of implementing acts, in accordance with the procedure referred to in Article 8351(2).
8. The Commission may provide guidance and may request the inclusion of particular clauses in the agreement envisaged, in order to ensure compatibility with Union law in accordance with Decision (EU) 2017/684 of the European Parliament and of the Council 45 .
9. The Commission shall be kept informed of the progress and results of the negotiations to amend, extend, adapt, renew or to conclude an agreement throughout the different stages of such negotiations and may request to participate in such negotiations between the Member State and the third country in accordance with Decision (EU) 2017/684.
10. The Commission shall inform the European Parliament and the Council of the decisions adopted pursuant to paragraph 5.
11. Before signing an agreement with a third country, the Member State concerned shall notify the Commission of the outcome of negotiations and shall transmit the text of the negotiated agreement to the Commission.
12. Upon notification pursuant to paragraph 11, the Commission shall assess the negotiated agreement pursuant to paragraph 3. Where the Commission finds that the negotiations have resulted in an agreement which complies with paragraph 3, it shall authorise the Member State to sign and conclude the agreement.
13. Within 90 days of receipt of the notification referred to in paragraph 11, the Commission shall adopt a decision authorising or refusing to authorise a Member State to sign and conclude the agreement with a third country. Where additional information is needed to adopt a decision, the 90-day period shall run from the date of receipt of such additional information.
14. Where the Commission adopts a decision pursuant to paragraph 13, authorising a Member State to sign and conclude the agreement with a third country, the Member State concerned shall notify the Commission of the conclusion and entry into force of the agreement, and of any subsequent changes to the status of that agreement.
15. In the event that the Commission adopts a decision refusing to authorise a Member State to sign and conclude the agreement with a third country pursuant to paragraph 13, it shall inform the Member State concerned accordingly and shall give the reasons therefor.
2009/73/EC
Article 50
Review procedure
In the event that in the report referred to in Article 52(6), 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.
Such request shall be notified, without delay, by the Member State to the Commission, together with all the relevant information necessary to demonstrate that the conclusion reached in the report on effective network access being ensured will be maintained.
Within three months of its receipt of a notification, the Commission shall adopt an opinion with respect to the request by the Member State concerned, and where appropriate, submit proposals to the European Parliament and to the Council to amend the relevant provisions of this Directive. The Commission may propose, in the proposals to amend this Directive, to exempt the Member State concerned from specific requirements subject to that Member State implementing equally effective measures as appropriate.
Article 51
Committee
1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
3. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
2018/1999 Art. 51.2
Article 52 - Reporting
The Commission shall monitor and review the application of this Directive and submit an overall progress report to the European Parliament and to the Council as an annex to the State of the Energy Union Report referred to in Article 35 of Regulation (EU) 2018/1999 of the European Parliament and of the Council 46 .new
Article 83 - Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.2. The power to adopt delegated acts referred to in Articles 8, 56, 66, 74, 75 and 76 shall be conferred on the Commission for an indeterminate period of time from [date of entry into force].
3. The delegation of power referred to in Articles 8, 56, 66, 74, 75 and 76 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated act already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Articles 8, 56, 66, 74, 75 and 76 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 84 - Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 85 - Review and reporting
By 31 December 2030 the Commission shall review this Directive and shall submit a report to the European Parliament and to the Council. The review shall in particular examine the application of Article 8, and related definitions in Article 2, to assess whether facilities that begin operation from 1 January 2031 should demonstrate higher greenhouse gas emission savings from the use of low carbon fuels and low carbon hydrogen to receive certification pursuant to that Article. .Article 86 - Amendments to Directive 2012/27/EU
Directive 2012/27/EU is amended as follows:(1) Articles 9, 10 and 11 are deleted;
(2) Annex VII is deleted.
2009/73/EC (adapted)
new
Article 8754
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive Article 51 by 31 December 2023 3 March 2011. They shall forthwith inform immediately communicate the text of those measures to the Commission thereof.
They shall apply those measures from 3 March 2011 with the exception of Article 11, which they shall apply from 3 March 2013.
Where 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 shall determine how such reference is to be made and how that statement is to be formulated .
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
2009/73/EC (adapted)
new
Article 8853
Repeal
Directive 2003/55/EC 2009/73/EC, as amended by the acts listed in Annex III, Part A, is repealed with effect from 3 March 2011 1 January 2023, without prejudice to the obligations of Member States concerning relating to the deadlines time-limits for the transposition into national law and the date of application of the said Directive Directives set out in Annex III, Part B .
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 IVII.
2009/73/EC (adapted)
Article 8955
Entry into force
This Directive shall enter into force on the 20th twentieth day following that of its publication in the Official Journal of the European Union.
Article 9056
Addressees
This Directive is addressed to the Member States.