Legal provisions of COM(2022)549 - Proposal for a COUNCIL REGULATION Enhancing solidarity through better coordination of gas purchases, exchanges of gas across borders and reliable price benchmarks

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dossier COM(2022)549 - Proposal for a COUNCIL REGULATION Enhancing solidarity through better coordination of gas purchases, exchanges of gas across ...
document COM(2022)549 EN
date December 19, 2022

Contents

CHAPTER I - SUBJECT MATTER AND DEFINITIONS


Article 1

Subject matter and scope

1. This Regulation establishes temporary rules on:

(a)the expedited setting up of a service allowing for demand aggregation and joint gas purchasing by undertakings established in the Union;

(b)secondary capacity booking and transparency platforms for LNG facilities and for gas storage facilities; and

(c)congestion management in gas transmission networks.

2. This Regulation introduces temporary mechanisms to protect citizens and the economy against excessively high prices, by way of a temporary intra-day volatility management mechanism for excessive price movements and an ad hoc LNG benchmark, to be developed by the European Union Agency for the Cooperation of Energy Regulators (ACER).

3. This Regulation establishes temporary measures, for the case of a gas emergency, to distribute gas fairly across borders, to safeguard gas supplies for the most critical customers and to ensure the provision of cross-border solidarity measures.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)‘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 liquified natural gas (LNG), which is responsible for the commercial, technical or maintenance tasks related to those functions, but shall not include final customers;

(2)‘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 ancillary services and temporary storage necessary for the re-gasification process and subsequent delivery to the transmission system, but does not include any part of the LNG terminals used for storage;

(3)‘gas storage facility’ means a facility used for the stocking of natural gas and owned 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;

(4)‘service provider’ means an undertaking established in the Union and contracted by the Commission through a procurement procedure under Regulation (EU, Euratom) 2018/1046 to organise the joint purchasing and fulfil the tasks set out in Article 7 of this Regulation;

(5)‘IT tool’ means an IT tool through which the service provider aggregates the demand of natural gas undertakings and undertakings consuming gas and seeks offers from natural gas suppliers or producers to match that aggregated demand;

(6)‘LNG trading’ means bids, offers or transactions for the purchase or sale of LNG:

(a)that specify delivery in the Union;

(b)that result in delivery in the Union; or

(c)in which one counterparty re-gasifies the LNG at a terminal in the Union;

(7)‘LNG market data’ means records of bids, offers or transactions for LNG trading with corresponding information as specified in Article 21(1);

(8)‘LNG market participant’ means any natural or legal person, irrespective of that person’s place of incorporation or domicile, who engages in LNG trading;

(9)‘LNG price assessment’ means the determination of a daily reference price for LNG trading in accordance with a methodology to be established by ACER;

(10)‘LNG benchmark’ means the determination of a spread between the daily LNG price assessment and the settlement price for the TTF Gas Futures front-month contract established by ICE Endex Markets B.V. on a daily basis;

(11)‘trading venue’ means any of the following:

(a)‘regulated market’ as defined in Article 4(1), point (21), of Directive 2014/65/EU;

(b)‘multilateral trading facility’ as defined in Article 4(1), point (22), of Directive 2014/65/EU;

(c)‘organised trading facility’ as defined in Article 4(1), point (23), of Directive 2014/65/EU;

(12)‘energy-related commodity derivative’ means a commodity derivative, as defined in Article 2(1), point (30), of Regulation (EU) No 600/2014 of the European Parliament and of the Council (16), traded on a trading venue and the underlying of which is electricity or gas, and whose maturity does not exceed 12 months;

(13)‘competent authority’, unless otherwise specified, means a competent authority as defined in Article 4(1), point (26), of Directive 2014/65/EU;

(14)‘critical gas volume for electricity security of supply’ means the maximum gas consumption needed in the power sector to ensure adequacy in a worst-case scenario simulated in the winter adequacy assessment pursuant to Article 9 of Regulation (EU) 2019/941 (17) of the European Parliament and of the Council;

(15)‘protected customer’ means a protected customer as defined in Article 2, point (5), of Regulation (EU) 2017/1938;

(16)‘solidarity protected customer’ means a solidarity protected customer as defined in Article 2, point (6), of Regulation (EU) 2017/1938.

CHAPTER II - BETTER COORDINATION OF GAS PURCHASES

SECTION 1 - Coordination of gas purchases in the Union



Article 3

Transparency and information exchange

1. For the sole purpose of better coordination, natural gas undertakings or undertakings consuming gas established in the Union or authorities of Member States, which intend to launch a tender to purchase gas or open the negotiations with natural gas producers or suppliers from third countries on the purchase of gas, of a volume above 5 TWh/year, shall inform the Commission and where applicable the Member State in which those undertakings are established of the conclusion of a gas supply contract or a memorandum of understanding or the launch of a tender to purchase gas.

The notification pursuant to the first subparagraph shall be given at least six weeks before the intended conclusion or launch, or within a shorter period provided that the negotiations are opened closer to the date of signing of the contract, but no later than two weeks before the intended conclusion or launch. Such notification shall be limited to the following basic information:

(a)the identity of the contract partner or partners or the purpose of the tender to purchase gas;

(b)the relevant volumes;

(c)the relevant dates; and

(d)the service provider organising such purchases or tenders on behalf of a Member State, where applicable.

2. If the Commission considers that further coordination with regards to the launch of a tender for the purchase of gas or planned gas purchases of natural gas undertakings or undertakings consuming gas established in the Union or of authorities of Member States could improve the functioning of joint purchasing or that the launch of a tender for the purchase of gas or planned gas purchases may have a negative impact on the internal market, on security of supply or on energy solidarity, the Commission may issue a recommendation to the natural gas undertakings or undertakings consuming gas established in the Union or authorities of Member States to consider appropriate measures. In such a case the Commission, where applicable, shall inform the Member State in which the undertaking is established.

3. The Commission shall inform the ad hoc Steering Board referred to in Article 4 before issuing any of the recommendations set out in paragraph 2.

4. When providing information to the Commission in accordance with paragraph 1, the entities providing the information may indicate whether any part of the information, be it commercial or other information the disclosure of which could harm the activities of the parties involved, is to be regarded as confidential and whether the information provided can be shared with other Member States.

5. Requests for confidentiality under this Article shall not restrict the access of the Commission itself to confidential information. The Commission shall ensure that access to confidential information is strictly limited to the Commission services for which it is absolutely necessary to have the information available. Commission representatives shall handle such information with due confidentiality.

6. Without prejudice to Article 346 TFEU, information that is confidential shall be exchanged with the Commission and other relevant authorities only where such exchange is necessary for the application of this Regulation. The information exchanged shall be limited to that which is relevant and proportionate to the purpose of such exchange. Such exchange of information shall preserve the confidentiality of that information and protect the security and commercial interests of the entities falling within the scope of this Regulation and apply effective instruments to protect the data physically. All servers and information shall be physically located and stored in the territory of the Union.

Article 4

Ad hoc Steering Board

1. An ad hoc Steering Board shall be established to facilitate the coordination of demand aggregation and joint purchasing.

2. The ad hoc Steering Board shall be established by the Commission within six weeks after entry into force of this Regulation. It shall be composed of one representative of each Member State and one of the Commission. The representatives of the Energy Community Contracting Parties may participate in the ad hoc Steering Board upon invitation of the Commission on all matters of mutual concern. The Commission shall chair the ad hoc Steering Board.

3. The ad hoc Steering Board shall adopt its own Rules of Procedure by qualified majority within one month from its establishment.

4. The Commission shall consult the ad hoc Steering Board on the draft recommendation provided by the Commission pursuant to Article 3(2), in particular as to whether the relevant gas purchases or a tender for the purchase of gas enhance security of supply in the Union and are compatible with the principle of energy solidarity.

5. The Commission shall also inform the ad hoc Steering Board about the impact of the participation of the undertakings in the joint purchasing organised by the service provider on security of supply in the Union and energy solidarity, where applicable.

6. Where confidential information is forwarded to them in accordance with Article 3(6), members of the ad hoc Steering Board shall handle such information with due confidentiality. The information exchanged shall be limited to information that is relevant and proportionate to the purpose of such exchange.

SECTION 2 - Demand aggregation and joint purchasing



Article 5

Temporary service contract with a service provider

1. By derogation from Article 176 of Regulation (EU, Euratom) 2018/1046, the Commission shall contract the necessary services of an entity established in the Union through a procurement procedure under Regulation (EU, Euratom) 2018/1046, acting as a service provider to fulfil the tasks set out in Article 7 of this Regulation.

2. The service contract with the selected service provider shall determine the ownership of the information obtained by the service provider, and shall provide for the possible transfer of that information to the Commission at the termination or expiry of the service contract.

3. The Commission shall define in the service contract the practicalities of the operation of the service provider including the use of the IT tool, the security measures, the currency or currencies, the payment regime, and liabilities.

4. The service contract with the service provider shall reserve to the Commission the right to monitor and audit it. For that purpose, the Commission shall have full access to the information held by the service provider.

5. The Commission may request the service provider to provide all information necessary for the fulfilment of the tasks set out in Article 7 and to enable the Commission to verify the fulfilment by the natural gas undertakings and undertakings consuming gas of the obligations arising from Article 10.

Article 6

Criteria for selecting the service provider

1. The service provider shall be selected by the Commission on the basis of the following eligibility criteria:

(a)the service provider shall be established and have its operational seat in the territory of a Member State;

(b)the service provider shall have experience in cross-border transactions;

(c)the service provider shall not be:

(i)targeted by Union restrictive measures adopted pursuant to Article 215 TFEU, in particular Union restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine, or in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine;

(ii)directly or indirectly owned or controlled by, or acting on behalf or at the direction of natural or legal persons, entities or bodies targeted by such Union restrictive measures; or

(iii)directly or indirectly owned or controlled by, or acting on behalf or at the direction of the Russian Federation or its Government or by any Russian natural or legal person or entity or body established in Russia.

2. Without prejudice to other due diligence obligations, contractual obligations between the Commission and the service provider shall be put in place to ensure that the service provider when carrying out its tasks in accordance with Article 7 does not make any funds or economic resources available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies:

(a)targeted by Union restrictive measures adopted pursuant to Article 215 TFEU, in particular Union restrictive measures adopted in view of Russia's actions destabilising the situation in Ukraine, or in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine;

(b)directly or indirectly owned or controlled by, or acting on behalf or at the direction of natural or legal persons, entities or bodies targeted by such Union restrictive measures; or

(c)directly or indirectly owned or controlled by, or acting on behalf or at the direction of the Russian Federation or its Government or by any Russian natural or legal person or entity or body established in Russia.

3. The service provider shall not be part of a vertically integrated undertaking active in the production or supply of natural gas as referred to Article 2, point (20), of Directive 2009/73/EC of the European Parliament and of the Council (18), except for an entity unbundled in accordance with Chapter IV of that Directive.

4. The Commission shall establish its selection and award criteria taking into account, inter alia, the following criteria to be specified in the call of tenders:

(a)level of experience in setting up and running tendering or auctioning processes for natural gas or associated services, such as transportation services, with the support of dedicated IT tools;

(b)level of experience in tailoring tendering or auctioning processes to different needs such as geographical focus or timing;

(c)level of experience in developing IT tools to aggregate demand from multiple participants and match it with supply;

(d)quality of information system security, in particular in terms of data protection and internet security; and

(e)capacity of identification and accreditation of participants, both in terms of legal entity and financial capacity.

Article 7

Tasks of the service provider

1. The service provider shall organise the demand aggregation and joint purchasing and, in particular:

(a)aggregate the demand of natural gas undertakings and undertakings consuming gas with the support of the IT tool;

(b)seek offers from natural gas suppliers or producers, to match the aggregated demand with the support of the IT tool;

(c)allocate access rights to supply, taking into account a proportionate distribution between smaller and larger participants of offered gas volumes among the natural gas undertakings and undertakings consuming gas participating in aggregating demand. Where the aggregated demand exceeds the received supply offers, the allocation of access rights shall be proportionate to the demand declared by the participating undertakings during the demand aggregation stage for a given delivery time and location;

(d)verify, accredit and register the users of the IT tool; and

(e)provide any ancillary services to the users of the IT tool, including services to facilitate the conclusion of contracts, or to the Commission necessary for the correct performance of the operations as provided in the service contract referred to in Article 5.

2. The conditions relating to the tasks of the service provider, namely regarding registration of users, publication and reporting, shall be determined in the service contract referred to in Article 5.

Article 8

Participation in the demand aggregation and joint purchasing

1. Participation in the demand aggregation and joint purchasing shall be open and transparent to all natural gas undertakings and undertakings consuming gas established in the Union regardless of the volume requested. Natural gas undertakings and undertakings consuming gas shall be precluded from participating as suppliers, producers and purchasers in demand aggregation and joint purchasing, if they are:

(a)targeted by Union restrictive measures adopted pursuant to Article 215 TFEU, in particular Union restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine, or in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine;

(b)directly or indirectly owned or controlled by, or acting on behalf or at the direction of natural or legal persons, entities or bodies targeted by such Union restrictive measures; or

(c)directly or indirectly owned or controlled by, or acting on behalf or at the direction of the Russian Federation or its Government or by any Russian natural or legal person or entity or body established in Russia.

2. Contractual obligations shall be put in place to ensure that no funds or economic resources resulting from participation in the process of joint purchasing organised by the service provider are made available, directly or indirectly, to or for the benefit of natural or legal persons, entities or bodies, which are:

(a)targeted by Union restrictive measures adopted pursuant to Article 215 TFEU, in particular Union restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine, or in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine;

(b)directly or indirectly owned or controlled by, or acting on behalf or at the direction of natural or legal persons, entities or bodies targeted by such Union restrictive measures; or

(c)directly or indirectly owned or controlled by, or acting on behalf or at the direction of the Russian Federation or its Government or by any Russian natural or legal person or entity or body established in Russia.

3. Member States, or other stakeholders may provide liquidity support, including guarantees, to participants in the process of joint purchasing organised by the service provider, in accordance with State aid rules, where applicable. This may include guarantees to cover collateral needs or to cover the risk of additional costs following the insolvency of other buyers under the same joint purchasing contract.

4. Natural gas undertakings and undertakings consuming gas established in the Energy Community Contracting Parties may participate in the demand aggregation and joint purchasing provided that the necessary measures or arrangements are in place to allow their participation in the demand aggregation and joint purchasing pursuant to this Section.

Article 9

Natural gas supplies excluded from joint purchasing

Natural gas supplies originating in the Russian Federation shall not be subject to joint purchasing, including natural gas supplies entering the Member States or Energy Community Contracting Parties through the following entry points:

(a)Greifswald

(b)Lubmin II

(c)Imatra

(d)Narva

(e)Värska

(f)Luhamaa

(g)Sakiai

(h)Kotlovka

(i)Kondratki

(j)Wysokoje

(k)Tieterowka

(l)Mozyr

(m)Kobryn

(n)Sudzha (RU)/Ukraine

(o)Belgorod (RU)/Ukraine

(p)Valuyki (RU)/Ukraine

(q)Serebryanka (RU)/Ukraine

(r)Pisarevka (RU)/Ukraine

(s)Sokhranovka (RU)/Ukraine

(t)Prokhorovka (RU)/Ukraine

(u)Platovo (RU)/Ukraine

(v)Strandzha 2 (BG)/Malkoclar (TR).

Article 10

Mandatory use of the service provider

1. Member States shall take appropriate measures to ensure that natural gas undertakings and undertakings consuming gas under their jurisdiction participate in the process of demand aggregation organised by the service provider as one of the possible means to meet the filling targets referred to in Article 6a and 20 of Regulation (EU) 2017/1938.

2. Member States with underground gas storage facilities shall require natural gas undertakings and undertakings consuming gas under their jurisdiction to participate in the process of demand aggregation organised by the service provider with volumes at least equal to 15 % of the total volume necessary to meet the filling targets referred to in Articles 6a and 20 of Regulation (EU) 2017/1938.

3. Member States without underground gas storage facilities shall require natural gas undertakings and undertakings consuming gas under their jurisdiction to participate in the process of demand aggregation organised by the service provider with volumes at least equal to 15 % of the volumes corresponding to the cross-border filling targets referred to in Article 6c and 20 of Regulation (EU) 2017/1938.

4. The natural gas undertakings and undertakings consuming gas participating in demand aggregation under a mandatory obligation may decide not to purchase the gas after the aggregation process. The gas purchased may be used for other purposes than storage filling.

Article 11

Gas purchasing consortium

Natural gas undertakings and undertakings consuming gas participating in demand aggregation organised by the service provider may, on a transparent basis, coordinate elements of the conditions of the purchase contract or use joint purchase contracts in order to achieve better conditions with their suppliers, provided they comply with Union law, including Union competition law, in particular Articles 101 and 102 TFEU, as may be specified by the Commission in a decision pursuant to Article 10 of Regulation (EC) No 1/2003, as well as with the transparency requirement pursuant to Article 3 of this Regulation.

SECTION 3 - Measures to enhance the use of LNG facilities, gas storage facilities and pipelines



Article 12

Secondary capacity booking platform for LNG facility users and gas storage facility users

LNG facility users and gas storage facility users, who wish to re-sell their contracted capacity on the secondary market, as defined in in Article 2, point (6), of Regulation (EC) No 715/2009 of the European Parliament and of the Council (19), shall be entitled to do so. By 28 February 2023, LNG facility operators and gas storage facility operators, individually or regionally, shall set up or make use of an existing transparent and non-discriminatory booking platform for LNG facility users and gas storage facility users to re-sell their contracted capacity on the secondary market.

Article 13

Transparency platforms for LNG facilities and gas storage facilities

1. By 28 February 2023, LNG facility operators and gas storage facility operators shall publish all the information required by Article 19 of Regulation (EC) No 715/2009 on a European LNG Transparency Platform and a European Storage Transparency platform, respectively, in a transparent and user-friendly manner. Regulatory authorities may request those operators to make public any additional information relevant for system users.

2. LNG facilities that have been granted an exemption from third party access rules pursuant to Article 36 of Directive 2009/73/EC, and gas storage facility operators under the negotiated third party access regime referred to in Article 33(3) of that Directive, shall make public final tariffs for infrastructure by 31 January 2023.

Article 14

More effective use of transmission capacities

1. Transmission system operators shall offer underutilised contracted firm capacity at interconnection points and virtual interconnection points as a monthly capacity product and as daily and within-day capacity products for the month in the event of an underutilisation pursuant to paragraph 2.

2. Contracted firm capacity shall be considered underutilised if a network user used or offered less than on average 80 % of the booked firm capacity at an interconnection point or virtual interconnection point in the preceding calendar month. The transmission system operator shall monitor the unused capacity and shall inform the network user on the amount of capacity to be withdrawn at the relevant interconnection point or virtual interconnection point at the latest before notifying the amount of capacity to be offered for the upcoming rolling monthly capacity auction in accordance with Regulation (EU) 2017/459.

3. The amount of capacity to be offered shall equal the difference between the average utilisation for the preceding calendar month and 80 % of the firm capacity which was contracted for a duration longer than a month.

4. Available capacity offered in an auction in accordance with Regulation (EU) 2017/459 shall have priority over underutilised capacity included in an auction pursuant to paragraph 2 when allocating capacity.

5. If the underutilised capacity offered by the transmission system operator is sold, it shall be withdrawn from the original holder of the contracted capacity. The original holder may use the withdrawn firm capacity on an interruptible basis.

6. The network user shall retain its rights and obligations under the capacity contract until the capacity is reallocated by the transmission system operator and to the extent that the capacity is not reallocated by the transmission system operator.

7. Before offering underutilised firm capacity in accordance with this Article, the transmission system operator shall analyse the potential effects at every interconnection point it operates and shall inform the competent national regulatory authority. By derogation from paragraphs 1 to 6 of this Article, and regardless of whether those interconnection points are congested or not, national regulatory authorities may decide to introduce one of the following mechanisms at all interconnection points:

(a)a firm day ahead use-it-or lose-it mechanism in accordance with Regulation (EU) 2017/459 and taking into consideration point 2.2.3 of Annex I of Regulation (EC) No 715/2009;

(b)an oversubscription and buy-back scheme in accordance with point 2.2.2 of Annex I of Regulation (EC) No 715/2009 offering at least 5 % additional capacity in relation to the technical capacity at the relevant interconnection point; or

(c)at least offer initially not nominated capacity on a day-ahead and within-day basis, to be allocated as interruptible capacity.

Paragraphs 1 to 6 of this Article shall automatically apply if one of the alternative mechanisms pursuant to the first subparagraph is not applied by 31 March 2023.

8. Before taking the decision referred to in paragraph 7, the national regulatory authority shall consult with the national regulatory authority of the adjacent Member State and take account of that authority’s opinions. In the case that the entry-exit system is covering more than one Member State where more than one transmission system operator is active, national regulatory authorities of the concerned Member States shall decide jointly on the application of paragraph 7.

CHAPTER III - MEASURES TO PREVENT EXCESSIVE GAS PRICES AND EXCESSIVE INTRA-DAY VOLATILITY IN ENERGY DERIVATIVES MARKETS

SECTION 1 - Temporary intra-day tool to manage excess volatility in energy derivatives markets



Article 15

Intra-day volatility management mechanism

1. As soon as possible, but by no later than 31 January 2023, each trading venue on which energy-related commodity derivatives are traded shall set up, for each energy-related commodity derivative traded on it, an intra-day volatility management mechanism based on an upper and lower price boundary (‘price boundaries’) that defines the prices above and below which orders may not be executed (‘intra-day volatility management mechanism’). Trading venues shall ensure that the intra-day price volatility management mechanism prevents excessive movements of prices within a trading day for energy-related commodity derivatives. When setting up the intra-day volatility management mechanism, trading venues shall also ensure that the implementation of those measures does not prevent the formation of reliable end-of-day closing prices.

2. For each energy-related commodity derivative traded on them, trading venues shall establish the applicable calculation method to determine the price boundaries relative to a reference price. The first reference price of the day shall be equal to the price determined upon the opening of the relevant trading session. The subsequent reference prices shall be the last market price observed at regular intervals. In the event of an interruption in trading during the trading day, the first reference price after the interruption shall be the opening price of the resumed trading.

3. The price boundaries shall be expressed either in absolute value, or in relative terms in the form of a percentage variation relative to the reference price. Trading venues shall adjust that calculation method to the specificities of each energy-related commodity derivative, the liquidity profile of the market for such derivative and its volatility profile. The trading venue shall inform the competent authority of the method without undue delay.

4. Trading venues shall renew the price boundaries at regular intervals during trading hours, based on the reference price.

5. Trading venues shall without undue delay make public the features of the intra-day volatility management mechanism they have put in place or whenever they have applied a modification.

6. Trading venues shall implement the intra-day volatility management mechanism either by integrating it into their existing circuit breakers already established in accordance with Directive 2014/65/EU or as an additional mechanism.

7. Where a trading venue intends to modify the calculation method for the price boundaries applicable to a given energy-related commodity derivative, it shall inform the competent authority of the intended modifications without undue delay.

8. Where the information collected by the European Securities and Market Authority (ESMA) in accordance with Article 16(3) show that further consistency of implementation of the mechanism is needed to ensure more efficient management of excessive price volatility across the Union, the Commission may adopt implementing acts specifying the uniform principles for the implementation of the intra-day volatility management mechanism, taking into account the specificities of each energy-related commodity derivative, the liquidity profile of the market for such derivative and its volatility profile. In particular, in order to ensure the smooth operation of trading venues that offer trading in energy-related commodity derivatives, the Commission may specify the intervals at which the price boundaries will be renewed or the measures to be taken if trading moves outside those price boundaries including provisions to ensure the formation of reliable closing prices. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 29.

Article 16

Role of competent authorities

1. Competent authorities shall supervise the implementation of the intra-day volatility management mechanisms. Competent authorities shall ensure that divergences in the implementation of the intra-day volatility management mechanisms by trading venues established in their Member States are duly justified by the specificities of the trading venues or energy-related commodity derivative concerned.

2. Competent authorities shall ensure that trading venues implement appropriate preliminary mechanisms ensuring that excessive volatility in energy-related commodity derivatives markets is mitigated until the set-up of the intra-day volatility management mechanism as referred to in Article 15(1).

3. Competent authorities shall report to ESMA on the implementation of the intra-day volatility management mechanism by trading venues they supervise within three weeks from the date referred to in Article 15(1) and at least on a quarterly basis.

Article 17

Coordination role of ESMA

1. ESMA shall coordinate and monitor the implementation of the intra-day volatility management mechanisms on the basis of reports submitted to it by the competent authorities in accordance with Article 16(3).

2. ESMA shall document any divergences in the implementation of the intra-day volatility management mechanisms across jurisdictions in the Union based on the reports from competent authorities. By 30 June 2023, ESMA shall submit a report to the Commission evaluating the efficiency of the intra-day volatility management mechanisms. On the basis of that report, the Commission shall consider whether to submit a proposal for the amendment of this Regulation to the Council.

SECTION 2 - Empowering ACER to collect and publish objective price data



Article 18

Tasks and powers of ACER to carry out price assessments and benchmarks

1. As a matter of urgency, ACER shall produce and publish a daily LNG price assessment starting no later than 13 January 2023. For the purpose of the LNG price assessment, ACER shall systematically collect and process LNG market data on transactions. The price assessment shall where appropriate take into account regional differences and market conditions.

2. No later than 31 March 2023, ACER shall produce and publish a daily LNG benchmark determined by the spread between the daily LNG price assessment and the settlement price for the TTF Gas Futures front-month contract established by ICE Endex Markets B.V. on a daily basis. For the purposes of the LNG benchmark, ACER shall systematically collect and process all LNG market data.

3. By way of derogation from Article 3(4), point (b), of Regulation (EU) No 1227/2011, the market participant obligations and prohibitions of Regulation (EU) No 1227/2011 shall apply to LNG market participants. The powers conferred on ACER under Regulation (EU) No 1227/2011 and Implementing Regulation (EU) No 1348/2014 shall also apply in relation to LNG market participants including the provisions on confidentiality.

Article 19

Publication of LNG price assessments and benchmark

1. The LNG price assessment shall be published daily, and by no later than 18.00 CET for the outright transaction price assessment. By 31 March 2023, in addition to the publication of the LNG price assessment, ACER shall also, on a daily basis, publish the LNG benchmark by no later than 19:00 CET or as soon as technically possible.

2. For the purposes of this Article, ACER may make use of the services of a third party.

Article 20

Provision of LNG market data to ACER

1. LNG market participants shall submit daily to ACER the LNG market data in accordance with the specifications set out in Article 21, in a standardised format, through a high-quality transmission protocol, and as close to real-time as technologically possible before the publication of the daily LNG price assessment (18:00 CET).

2. The Commission may adopt implementing acts specifying the point in time by which LNG market data is to be submitted before the daily publication of the LNG price assessment as referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 29.

3. Where appropriate, ACER shall, after consulting the Commission, issue guidance on:

(a)the details of the information to be reported, in addition to the current details of reportable transactions and fundamental data under Implementing Regulation (EU) No 1348/2014, including bids and offers; and

(b)the procedure, standard and electronic format and the technical and organisational requirements for submitting data to be used for the provision of the required LNG market data.

4. LNG market participants shall submit the required LNG market data to ACER free of charge and through the reporting channels established by ACER, where possible using already existing and available procedures.

Article 21

LNG market data quality

1. LNG market data shall include:

(a)the parties to the contract, including buy/sell indicator;

(b)the reporting party;

(c)the transaction price;

(d)the contract quantities;

(e)the value of the contract;

(f)the arrival window for the LNG cargo;

(g)the terms of delivery;

(h)the delivery points;

(i)the timestamp information on all of the following:

(i)the date and time of placing the bid or offer;

(ii)the transaction date and time;

(iii)the date and time of reporting of the bid, offer or transaction;

(iv)the receipt of LNG market data by ACER.

2. LNG market participants shall provide ACER with LNG market data in the following units and currencies:

(a)transaction, bid and offer unit prices shall be reported in the currency specified in the contract and in EUR/MWh and shall include applied conversion and exchange rates if applicable;

(b)contract quantities shall be reported in the units specified in the contracts and in MWh;

(c)arrival windows shall be reported in terms of delivery dates expressed in UTC format;

(d)delivery point shall indicate a valid identifier listed by ACER such as referred to in the list of LNG facilities subject to reporting pursuant to Regulation (EU) No 1227/2011 and Implementing Regulation (EU) No 1348/2014; the timestamp information shall be reported in UTC format;

(e)if relevant, the price formula in the long-term contract from which the price is derived shall be reported in its integrity.

3. ACER shall issue guidance regarding the criteria under which a single submitter accounts for a significant portion of LNG market data submitted within a certain reference period and how this situation shall be addressed in its daily LNG price assessment and LNG benchmarks.

Article 22

Business continuity

ACER shall regularly review, update and publish its LNG reference price assessment and LNG benchmark methodology as well as the methodology used for LNG market data reporting and the publication of its LNG price assessments and LNG benchmarks, taking into account the views of LNG market data contributors.

CHAPTER IV - MEASURES FOR THE CASE OF A GAS EMERGENCY

SECTION 1 - Gas solidarity for electricity supply, essential industries and protected customers



Article 23

Extension of solidarity protection to critical gas volumes for electricity security of supply

1. By way of derogation from Article 13(3) of Regulation (EU) 2017/1938, a solidarity measure pursuant to Article 13(1) and (2) of that Regulation shall apply only if the Member State requesting solidarity has not been able to cover:

(a)the deficit in gas supply to its solidarity protected customers or, where a Member State has taken temporary measures to reduce the non-essential consumption of protected customers in accordance with Article 24 of this Regulation, the essential volumes of consumption of gas to its solidarity protected customers;

(b)the critical gas volume for electricity security of supply, despite the application of the measure referred to in Article 11(3) of Regulation (EU) 2017/1938. The conditions set out in Article 13(3), points (b), (c) and (d), of Regulation (EU) 2017/1938 shall apply.

2. The Member States which are obliged to provide solidarity pursuant to paragraph 1 shall be entitled to deduct from the solidarity offer:

(a)supplies to its solidarity protected customers to the extent essential volumes are affected or, where a Member State has taken temporary measures to reduce the non-essential consumption of protected customers in accordance with Article 24, the supplies of the essential volumes of consumption of gas of its solidarity protected customers;

(b)supplies of critical gas volumes for electricity security of supply;

(c)supplies of gas volumes for the electricity needed for the production and transportation of gas; and

(d)gas volumes necessary for the operations of security of supply critical infrastructure as referred to in Annex II as well as other installations crucial for the functioning of military, national security and humanitarian aid services.

3. The critical gas volumes for electricity security of supply as referred to in paragraph 1, point (b), and paragraph 2, points (b) and (d), shall not exceed the volumes indicated in Annex I. If a Member State can demonstrate that a higher volume of gas is required to avoid an electricity crisis of a Member State, the Commission may, upon a duly reasoned request, decide to allow the deduction of higher volumes.

4. If Member States whose electricity system is synchronised only with the electricity system of a third country are requested to provide solidarity measures, they may exceptionally deduct higher volumes of gas in the event that the electricity system is desynchronised from that third country’s system for as long as isolated power system services or other services to the power transmission system operator are required to ensure the safe and reliable operation of the power system.

Article 24

Demand reduction measures concerning protected customers

1. Member States may, exceptionally, take temporary measures to reduce the non-essential consumption of protected customers, as defined in Article 2, point (5), of Regulation (EU) 2017/1938, in particular when one of the crisis levels pursuant to Article 11(1) and Article 12 of Regulation (EU) 2017/1938, or the Union alert pursuant to Regulation (EU) 2022/1369, has been declared. Such measures shall be limited to non-essential uses of gas and shall take into account the elements set out in Article 6(2) of Regulation (EU) 2022/1369. Such exceptional measures may be taken only after an assessment is carried out by the competent authorities, as defined in Article 2, point (7), of Regulation (EU) 2017/1938, with regard to the conditions to determine such non-essential volumes of gas.

2. As a result of measures referred to in paragraph 1 of this Article, the consumption of vulnerable customers, as defined by Member States in accordance with Article 3(3) of Directive 2009/73/EC, shall under no circumstance be reduced, and Member States shall not disconnect protected customers as a result of the application of paragraph 1 of this Article.

Article 25

Safeguards for cross-border flows

In the case of a Commission request pursuant to Article 12(6), first subparagraph, of Regulation (EU) 2017/1938 to terminate undue restrictions of cross-border gas flows or of access to gas infrastructure, or measures endangering the gas supply in another Member State, the competent authority, as defined in Article 2, point (7), of Regulation (EU) 2017/1938, or the Member State, as referred to in Article 12(6), first subparagraph of that Regulation, shall instead of following the procedure provided for in Article 12(6), second subparagraph, of Regulation (EU) 2017/1938, modify its action or take action in order to ensure compliance with Article 12(5) of that Regulation.

SECTION 2 - Rules for the provision of solidarity measures



Article 26

Temporary extension of solidarity obligations to Member States with LNG facilities

1. The obligation to provide solidarity measures pursuant to Article 13(1) of Regulation (EU) 2017/1938 shall not only apply to Member States directly connected to the Member State requesting solidarity, but also to Member States with LNG facilities, provided the necessary capacity in the relevant infrastructure, including the LNG vessels and carriers, is available.

2. Article 13, paragraphs 2 to 9, of Regulation (EU) 2017/1938 shall apply to Member States with LNG facilities unless otherwise provided in this Regulation.

3. Member States with LNG facilities that are not directly connected to a Member State requesting solidarity may agree bilaterally with any other Member State on the necessary technical, legal and financial solidarity arrangements that apply to the provision of solidarity.

4. The default rules for the provision of solidarity measures pursuant to Article 27 shall also apply to the non-connected Member States in so far as a bilateral arrangement is not concluded at the time of the receipt of a solidarity request.

Article 27

Default rules for solidarity measures

1. Where two Member States have not agreed on the necessary technical, legal and financial arrangements pursuant to Article 13(10) of Regulation (EU) 2017/1938 (‘solidarity agreement’), the delivery of gas pursuant to the obligation in Article 13(1) of that Regulation in the event of an emergency shall be subject to the conditions set out in this Article.

2. The compensation for the solidarity measure shall not exceed reasonable costs and, by derogation from Article 13(8) of Regulation (EU) 2017/1938, it shall in any event include:

(a)the price for gas in the Member State providing solidarity;

(b)the storage and transport costs, including possible fees resulting from the deviation of LNG cargoes to the interconnection point requested;

(c)litigation costs for related judicial or arbitration proceedings involving the Member State providing solidarity;

(d)other indirect costs that are not covered by the price for gas, such as the reimbursement of financial or other damages resulting from enforced firm load shedding of customers related to the provision of solidarity, provided that those indirect costs do not exceed 100 % of the price for gas.

3. If a Member State requests compensation for indirect costs pursuant to paragraph 2, point (d), exceeding 100 % of the gas price, the Commission shall, after consulting the relevant competent authorities, decide whether a higher compensation is appropriate, taking into account the specific contractual and national circumstances of the case and the principle of energy solidarity.

4. Unless the Member State requesting solidarity and the Member State providing solidarity agree on another price, the price for the gas supplied to the Member State requesting solidarity shall correspond to the day-ahead market price in the Member State providing solidarity the day preceding the request for solidarity or the corresponding day-ahead market price at the closest accessible exchange, at the closest accessible virtual trading point, or at an agreed hub over the day preceding the request for solidarity.

5. Compensation for the gas volumes delivered in the context of a solidarity request pursuant to Article 28 shall be paid directly by the Member State requesting solidarity to the Member State providing solidarity or the entity both Member States indicate in their response to the solidarity request and the confirmation of receipt and of the volume to be taken.

6. The Member State to which the request for a solidarity measure is addressed shall provide the solidarity measure as soon as possible and no later than three days after the request. A Member State may refuse to provide solidarity to a Member State requesting solidarity only if it demonstrates that:

(a)it does not have enough gas for the volumes referred to in Article 23(2); or

(b)it does not have sufficient interconnection capacity available, as set out in Article 13(7) of Regulation (EU) 2017/1938, and it does not have the possibility to provide sufficient volumes of LNG.

7. In addition to the default rules provided for in this Article, Member States may agree on technical arrangements and coordination of the provision of solidarity.

8. This Article shall be without prejudice to existing arrangements for the safe and reliable operation of the gas system.

Article 28

Procedure for solidarity measures in the absence of a solidarity agreement

1. The Member State requesting the application of the solidarity measures shall issue a solidarity request to another Member State, indicating at least the following information:

(a)contact details of the competent authority of the Member State;

(b)contact details of the relevant transmission system operators of the Member State (if relevant);

(c)contact details of the third party acting on behalf of the Member State (if relevant);

(d)delivery period including timing of the first possible delivery and the anticipated duration of deliveries;

(e)delivery and interconnection points;

(f)gas volume in kWh for each interconnection point;

(g)gas quality.

2. The solidarity request shall be sent simultaneously to Member States potentially being able to provide solidarity measures, to the Commission and to the crisis managers designated pursuant to Article 10(1), point (g), of Regulation (EU) 2017/1938.

3. The Member States receiving a solidarity request shall send a response that indicates the contact details referred to in paragraph 1, points (a), (b) and (c), and the volume and quality that can be supplied to the interconnection points at the time requested as referred to in paragraph 1, points (d) to (g). The response shall indicate the volume resulting from possible curtailment, or where it is strictly indispensable, release of strategic stocks if the volume that can be supplied by voluntary measures is insufficient.

4. Solidarity requests shall be submitted at least 72 hours before the indicated delivery time. The response to solidarity requests shall be done within 24 hours. The confirmation of receipt and of the volume to be taken by the Member State requesting solidarity shall be done within 24 hours of the delivery time needed.

5. The request may be submitted for a period of one day or several days, and the response shall match the requested duration.

6. Where there are several Member States providing solidarity and bilateral solidarity arrangements are in place with one or several of them, those arrangements shall prevail between the Member States having agreed bilaterally. The default rules provided for in this Article shall only be applicable in relation to the other Member States providing solidarity.

7. The Commission may facilitate the implementation of solidarity agreements, in particular by means of a template accessible on a secured online platform to enable real-time transmission of requests and offers.

CHAPTER V - FINAL PROVISIONS


Article 29

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 5 of Regulation (EU) No 182/2011 shall apply.

Article 30

Review

By 1 October 2023, the Commission shall carry out a review of this Regulation in view of the general situation of the gas supply to the Union and shall present a report on the main findings of that review to the Council. The Commission may, based on that report, propose to prolong the validity of this Regulation.

Article 31

Entry into force and application

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

It shall apply for a period of one year from its entry into force.

Article 14 shall apply from 31 March 2023.

This Regulation shall be binding in its entirety and directly applicable in all Member States.