The Russian Federation’s unprovoked and unjustified war of aggression against Ukraine and the unprecedented reduction of natural gas supplies from the Russian Federation to Member States threaten the security of supply of the Union and its Member States. At the same time, the weaponisation of the gas supply and the Russian Federation’s manipulation of the markets through intentional disruptions of gas flows have led to skyrocketing energy prices in the Union, endangering not only the economy of the Union, but also seriously undermining security of supply.
(2)
This requires a strong and coordinated response from the Union, to protect its citizens and its economy against excessive and manipulated market prices and to make sure that gas flows to all consumers in need across borders, also in situations of gas scarcity. To lower the dependency on supplies of natural gas from the Russian Federation and to bring excessive prices down, a better coordination of gas purchases from external suppliers is crucial.
(3)
Article 122(1) of the Treaty on the Functioning of the European Union (TFEU) enables the Council to decide, on a proposal from the Commission and in a spirit of solidarity between Member States, upon the measures appropriate in the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy. The high risk of a complete halt of Russian gas supplies and the extreme increase in energy prices undermining the Union’s economy constitute such severe difficulties.
(4)
The Commission announced in its communication of 18 May 2022 entitled ‘REPowerEU plan’ the setting up of an EU Energy Purchase Platform together with the Member States for the common purchase of gas, liquified natural gas (LNG) and hydrogen. That announcement was endorsed by the European Council of 30 and 31 May 2022. As part of the REPowerEU Plan, the Commission also presented the strategy for an EU external energy engagement, which explains how the Union supports a global, clean and just energy transition to ensure sustainable, secure and affordable energy, including by diversifying the Union’s energy supply, in particular by negotiating political commitments with existing or new gas suppliers to increase gas deliveries and thus to replace Russian gas deliveries to Europe.
(5)
The EU Energy Purchase Platform can play a pivotal role in seeking mutually beneficial partnerships that contribute to security of supply and lead to lower import prices of gas purchased from third countries, making full use of the Union’s collective weight. Enhanced international outreach to gas suppliers (both pipeline and LNG) as well as the green hydrogen suppliers of the future is essential for this purpose. In particular a much stronger coordination with and among Member States via-à-vis third countries via the EU Energy Purchase Platform would ensure the Union’s collective weight is more effective.
(6)
As a situation of severe difficulties in ensuring security of supply persists, joint purchasing should help ensure more equal access for undertakings across Member States to new or additional gas sources and, to the benefit of final consumers, help ensure lower prices than might otherwise have applied to those purchasing the gas through the service provider individually.
(7)
Joint purchasing could result in granting a more beneficial treatment or support to the supply of renewable gases such as biomethane and hydrogen, insofar as they can safely be injected into the gas system, and to the supply of gas which would otherwise be vented or flared. In the absence of a formal legal requirement in any relevant jurisdiction, undertakings concluding contracts pursuant to this Regulation will be able to use the UN Oil and Gas Methane Partnership 2.0 reporting framework to measure, report and verify methane emissions along the supply chain to the Union.
(8)
The new mechanism developed under this Regulation should consist of two steps. As a first step, natural gas undertakings or undertakings consuming gas established in the Union would aggregate their gas demand through a service provider, contracted by the Commission. This would allow gas suppliers to make offers on the basis of large aggregated volumes, instead of many smaller offers to purchasers approaching them individually. In a second step, natural gas undertakings or undertakings consuming gas established in the Union may conclude gas purchase contracts, individually or in a coordinated manner with others, with natural gas suppliers or producers that have matched the aggregated demand.
(9)
As a situation of severe difficulties in ensuring security of supply persists, demand aggregation and joint purchasing should help ensure more equal access for undertakings across Member States to new or additional gas sources and, to the benefit of final consumers, help ensure lower prices than might otherwise have applied to undertakings purchasing the gas through the service provider. A first reference to the possibility of a very limited form of joint purchasing of gas for balancing purposes is already included in the Commission’s proposal for a Regulation on the internal markets for renewable and natural gases and for hydrogen. However, that proposal dates from a time before the Russian Federation’s war of aggression against Ukraine. Furthermore, no detailed concept was included in that proposal, which only concerned the very specific needs of transmission system operators for balancing energy. As an immediate and much more comprehensive solution to the problem of missing structures for coordinated gas purchasing is needed, it is appropriate to propose a temporary fast-track solution.
(10)
Demand aggregation and joint purchasing could, therefore, strengthen Union solidarity in purchasing and distributing gas. In a spirit of solidarity, joint purchasing should support particularly those undertakings that were previously purchasing gas only or mainly from Russian suppliers by helping them to obtain supplies from alternative natural gas suppliers or providers in advantageous conditions, as a result of the demand aggregation and joint purchasing.
(11)
The demand aggregation and joint purchasing should help fill up gas storage facilities in the current emergency situation, should most of the European gas storage facilities be depleted after the upcoming winter. Moreover, those measures should help purchase gas in a more coordinated manner in the spirit of solidarity.
(12)
It is therefore necessary to urgently and on a temporary basis establish demand aggregation and joint purchasing. This would allow the rapid establishment of a service provider, which would enable the aggregation of demand. The service provider contracted by the Commission would have only some basic functionalities and the process it organises would only have mandatory elements regarding participation in aggregating demand but would not yet include a mandatory coordination of the contractual conditions or an obligation to submit binding offers to purchase gas through it.
(13)
No requirement should be imposed on natural gas undertakings or undertakings consuming gas to buy gas through the service provider, by concluding gas supply contracts or memoranda of understanding with the gas suppliers or producers that have matched the aggregated demand. However, natural gas undertakings or undertakings consuming gas are strongly encouraged to explore forms of cooperation which are compatible with competition law, and to make use of the service provider to fully reap the benefits of the joint purchasing. A mechanism could, therefore, be developed between the service provider and participating undertakings, setting out the main conditions under which participating undertakings enter into a commitment to buy the gas matching aggregated demand.
(14)
It is important for the Commission and the Member States to have a clear picture of intended and concluded gas supply contracts across the Union, in order to assess whether the objectives of security of supply and energy solidarity are met. Therefore, undertakings or authorities of Member States should inform the Commission and the Member States in which those undertakings are established of large planned gas purchases above 5 TWh/year. This should in particular apply to basic information regarding new or renewed contracts. The Commission should be allowed to issue recommendations to the natural gas undertakings or authorities of the relevant Member States, in particular where further coordination could improve the functioning of joint purchasing or where the launch of a tender for the purchase of gas or planned gas purchases may have a negative impact on security of supply, the internal market or energy solidarity. The issuing of a recommendation should not prevent natural gas undertakings or authorities of the relevant Member States from proceeding with the negotiations in the meantime.
(15)
Member States should assist the Commission in assessing whether the relevant gas purchases enhance security of supply in the Union and are compatible with the principle of energy solidarity. Therefore, an ad hoc Steering Board composed of representatives of the Member States and the Commission should be established to help coordinate this assessment.
(16)
The process of aggregating demand for the purpose of joint purchasing should be carried out by a suitable service provider. Therefore, the Commission should contract a service provider through a procurement procedure in accordance with the Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (1), which is able to develop an appropriate information technology tool (‘IT tool’) and organise the process of aggregation of demand. Fees could be collected from participants of the joint purchasing to cover operating costs.
(17)
When allocating access rights to the supply among undertakings aggregating demand, the service provider should apply methods that would not discriminate between smaller and larger participants of the demand aggregation and should be fair regardless of gas volumes requested by individual undertakings. For instance, the service provider should allocate access rights in proportion to the gas volumes that individual undertakings declared to buy for the given delivery time and destination. This might be relevant in cases when supply does not sufficiently cover demand in the Union market.
(18)
The aggregation of demand and the purchasing of natural gas are complex processes, which need to take into account various elements, which are not limited to prices, but also include volumes, delivery points and other parameters. Therefore, the selected service provider should have the necessary level of experience in managing and aggregating purchases of natural gas or associated services at the Union level. Also, the aggregation of demand and the purchasing of natural gas is a crucial element in ensuring the security of the gas supply and safeguarding the principle of energy solidarity in the Union.
(19)
The protection of commercially sensitive information is of utmost importance when information is made available to the Commission, the members of the ad hoc Steering Board or the service provider setting up or managing the IT tool for demand aggregation. The Commission should therefore apply effective instruments to protect this information against any unauthorised access and cybersecurity risks. Any personal data that might be processed as part of demand aggregation and joint purchasing should be processed in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council (2) and Regulation (EU) 2018/1725 of the European Parliament and of the Council (3).
(20)
Joint purchasing could take different forms. It could take place through tenders or auctions organised by the service provider that aggregates the demand of natural gas undertakings and undertakings consuming gas, in order to potentially match it with offers from natural gas suppliers or producers, through the use of an IT Tool.
(21)
One of the objectives of demand aggregation and joint purchasing is to reduce the risk of unnecessary price increases driven by undertakings bidding for the same tranche of gas. Ensuring that the full benefits of joint purchasing reach final consumers ultimately depends on the decisions of the undertakings themselves. Large undertakings should be restrained even if they can sell the gas at higher prices. Undertakings benefiting from lower prices for the purchase of gas from joint purchasing should pass those benefits to the consumers. The pass-through of lower prices would be an important indicator for the success of joint purchasing, as it is crucial for consumers.
(22)
Demand aggregation and joint purchasing should be open to natural gas undertakings and undertakings consuming gas established in the Union. In particular, industrial consumers which use gas intensively in their production processes, such as producers of fertilisers, steel, ceramic and glass, may also benefit from joint purchasing by enabling them to pool their demand, to contract gas and LNG cargoes, and to structure supply according to their particular needs. The process of organising the joint purchasing should have transparent rules on how to join it and should ensure its openness.
(23)
Opening of demand aggregation and joint purchasing also for Western Balkans and the three associated Eastern Partnership countries is a declared political aim of the Union. Therefore, undertakings established in the Energy Community Contracting Parties should be allowed to participate in the demand aggregation and joint purchasing established by this Regulation provided that necessary arrangements are in place.
(24)
It is necessary to lower the dependency of the Union on gas supplied from the Russian Federation. Undertakings controlled by the Russian Federation or any Russian natural or legal person, or undertakings targeted by Union restrictive measures established on the basis of Article 215 TFEU, or owned or controlled by any other natural or legal person, entity or body subject to such restrictive measures should therefore be excluded from participating in joint purchasing as well as from organising the process of joint purchasing.
(25)
In order to prevent the objective of diversification from the gas supplied from the Russian Federation being put at risk or jeopardised by participation in demand aggregation and joint purchasing of undertakings or other bodies controlled by Russian natural or legal persons or undertakings established in the Russian Federation, participation of those entities should also be excluded.
(26)
Moreover, natural gas originating in the Russian Federation should not be subject to joint purchasing. For this purpose, natural gas entering the Member States or Energy Community Contracting Parties through specific entry points should not be subject to joint purchasing since natural gas originating in the Russian Federation is likely to enter the Member States or Energy Community Contracting Parties through those entry points.
(27)
Participants of the joint purchasing of gas may need financial guarantees, if any of the undertakings would not be able to pay for the final volume contracted. Member States or other stakeholders might provide financial support, including guarantees, to participants in joint purchasing. Providing financial support should take place in accordance with Union State aid rules, including the Temporary Crisis Framework adopted by the Commission on 23 March 2022, as amended on 28 October 2022, where applicable.
(28)
Filling gas storage facilities is vital to ensure security of supply in the Union. Due to the drop in supplies of natural gas from the Russian Federation, Member States may face challenges in filling the gas storage facilities to ensure the security of the gas supply for winter 2023/2024 as prescribed by Regulation (EU) 2022/1032 of the European Parliament and of the Council (4). Using the demand aggregation possibility of the service provider could help the Member States to diminish those challenges. It could, within the limits of competition law, in particular support coordinated filling and storage management in view of the next filling season, avoiding the excessive price peaks caused, inter alia, by uncoordinated storage filling.
(29)
In order to ensure that joint purchasing contributes to filling gas storage facilities in line with the intermediate targets set out in Regulation (EU) 2022/1032, Member States should take appropriate measures to ensure that natural gas undertakings and undertakings consuming gas under their jurisdiction use the process organised by the service provider as one possible means to meet the filling targets.
(30)
Regulation (EU) 2022/1032 requires that Member States fill their gas storage facilities up to 90 % by 1 November 2023. This target is higher than the target for 1 November 2022 (80 %). Joint purchasing could help the Member States meet this new target. In doing so the Member States should require domestic undertakings to use the service provider to aggregate demand with sufficiently high volumes of gas in order to decrease the risk that their gas storage facilities cannot be filled. Member States should require that volumes equivalent to at least 15 % of their storage filling target volume for next year, which is equivalent to around 13,5 billion cubic metres for the Union as a whole, be included by their undertakings in the demand aggregation process. Member States without underground gas storage facilities in their territory should participate in the demand aggregation process with volumes equivalent to 15 % of their burden-sharing obligation under Article 6c of Regulation (EU) 2017/1938 of the European Parliament and of the Council (5).
(31)
Demand aggregation and joint purchasing does not prescribe the management of gas storage facilities, including strategic gas storage facilities, and is without prejudice to Regulations (EU) 2017/1938 and (EU) 2022/1032.
(32)
In order to effectively use the joint purchasing and to conclude gas agreements with suppliers offering gas to the service provider, undertakings should be able to coordinate conditions of the purchase, such as volumes, gas price, delivery points and time, within the limits of Union law. Undertakings participating in a gas purchasing consortium should, however, ensure that the information directly or indirectly exchanged is limited to what is strictly necessary to achieve the objective pursued, in line with Article 101 TFEU. In addition, the transparency and governance provisions of this Regulation should ensure that contracts of the buying consortium do not endanger security of supply or jeopardise energy solidarity, in particular where Member States are directly or indirectly involved in the purchase process.
(33)
Whilst more than one gas purchasing consortium may be formed, the most effective option would be to form a single gas purchasing consortium encompassing as many undertakings as possible to aggregate demand through the service provider and designed in a way that is compatible with Union competition law. Additionally, joining forces into a single gas purchasing consortium should bring strengthened Union negotiation power into the market and enable advantageous conditions that would hardly be achieved by smaller undertakings or in the case of fragmented action.
(34)
The set-up and implementation of gas purchasing consortia under this Regulation should be done in compliance with the Union’s competition rules, as applicable in light of the current exceptional market circumstances. The Commission has indicated that it is ready to accompany undertakings in the design of such a gas purchasing consortium and to issue a decision, pursuant to Article 10 of Council Regulation (EC) No 1/2003 (6), on the inapplicability of Articles 101 and 102 TFEU, if relevant safeguards are incorporated and respected. The Commission has also stated its readiness to provide informal guidance to the extent that the participating undertakings in any other consortia face uncertainty with regard to the assessment of one or more elements of their joint purchasing arrangement under the Union competition rules.
(35)
In accordance with the principle of proportionality, the measures with respect to demand aggregation and joint purchasing do not go beyond what is necessary to achieve their objective, as those measures will be implemented on a voluntary basis, with only a limited exception as regards mandatory participation in demand aggregation for the purpose of filling gas storage facilities, and private undertakings will remain parties to the contracts for gas supply concluded under the joint purchasing.
(36)
In order to optimise the LNG absorption capacity of the Union’s LNG facilities and the usage of gas storage facilities, enhanced transparency arrangements and an organised market facilitating secondary trade in gas storage capacities and capacities of LNG facilities are necessary, similar to those existing for transport of gas via pipelines. This is particularly important in times of emergency and changes in gas flows from pipeline gas from the Russian Federation to LNG. The Commission proposals for a Directive on common rules for the internal markets in renewable and natural gases and in hydrogen and for a Regulation on the internal markets for renewable and natural gases and for hydrogen contain provisions to this effect. Frontloading those provisions as part of the crisis response is crucial to use the LNG facilities and gas storage facilities more efficiently and with the necessary transparency. Regarding Europe-wide transparency platforms, it should be possible for Member States to use the existing Union's transparency platforms for LNG facilities and gas storage facilities to ensure a swift implementation of this Regulation. As regards a secondary booking platform, the LNG facility operators and gas storage facility operators should be able to make use of their existing platforms by enriching them with the necessary features.
(37)
In relation to long-term bookings of gas transportation capacities, the existing congestion management rules provide for ‘use-it-or-lose-it’ procedures. Those procedures, however, are slow as they take at least six months before they show effect, and require the heavy administrative procedures of national regulatory authorities. Therefore those rules should be strengthened and simplified in order to provide the gas system operators with tools to react rapidly to changes in gas flows and to address possible congestions. In particular, the new rules could accelerate marketing of unused long-term capacities which would otherwise remain unutilised, rendering the use of pipelines more efficient.
(38)
The transmission system operators should analyse the available information on the usage of the transmission network by the network users and should determine whether there is underutilisation of the contracted firm capacity. Such underutilisation should be defined as the situation where a network user has used or offered on the market on average less than 80 % of the booked firm capacity in the last 30 days. In the case of underutilisation, the transmission system operator should publish the available capacity for the next monthly auction and subsequently auction it. Alternatively, the national regulatory authorities should be able to decide to use a firm day ahead ‘use-it-or-lose-it’ mechanism instead. In this latter case, the mechanism should apply to all interconnection points, whether congested or not.
(39)
Companies purchasing gas or offering to deliver gas to predefined destinations via joint purchasing should secure transport capacities from the points of delivery of gas to its destination. The applicable internal market rules, including the gas network codes, apply to help in securing the transport capacities. The national regulatory authorities, transmission system operators, LNG facility operators and gas storage facility operators as well as booking platforms should explore possibilities of how to improve the infrastructure usage in an affordable manner by exploring the possibility for development of new transport capacity products linking intra-EU interconnection points, LNG facilities and gas storage facilities while respecting applicable internal market rules, in particular the Commission Regulation (EU) 2017/459 (7).
(40)
While the extraordinary crisis circumstances lead to changes of flow patterns in the European gas networks, resulting in extraordinarily high congestion rents at certain interconnection points in the Union, some flexibilities could be found in dialogue with the relevant regulatory authorities of the impacted Member States under the existing rules, if appropriate with the facilitation of the Commission.
(41)
The invasion of Ukraine by the Russian Federation has led to major uncertainties and disruptions in the European natural gas markets. As a result, those markets have for the past months reflected the uncertainty on the supply, and this uncertainty has turned the resulting market expectation into extremely high and volatile natural gas prices. This has in turn put additional pressure on market participants and undermined the smooth functioning of the Union energy markets.
(42)
Directive 2014/65/EU of the European Parliament and of the Council (8) sets out rules to ensure the proper functioning of trading venues on which energy-related commodity derivatives are also traded. That Directive provides that Member States are to require a regulated market to have mechanisms in place to guarantee fair and orderly functioning financial markets. However, such mechanisms are not intended to set a limit on the intra-day evolution of prices and have failed to prevent the episodes of exceptional volatility observed in the gas and electricity derivatives markets.
(43)
Given the difficulties faced by market participants in the trading venues on which energy-related commodity derivatives are traded, and the urgency to ensure that energy derivatives markets keep fulfilling their role in providing for the hedging needs of the real economy, it is appropriate to require trading venues on which energy-related commodity derivatives are traded to set up temporary intra-day volatility management mechanisms to apprehend excessive price movements more efficiently. In order to ensure that such mechanisms apply to the most relevant contracts, they should apply to energy-related derivatives the maturity of which does not exceed 12 months.
(44)
Trading venues offering energy-related commodity derivatives often admit for participation various energy firms from all Member States. Such energy firms rely heavily on derivatives traded on such trading venues to ensure crucial supplies of gas and electricity across the Union. Excessive price movements occurring on trading venues on which energy-related commodity derivatives are traded therefore affect the operation of energy firms across the whole Union, ultimately also adversely affecting end-consumers. Therefore, in a spirit of solidarity between Member States, coordination of the implementation and application of the intra-day volatility management mechanisms should be undertaken, to ensure that operators essential for the security of the energy supply in all Member States benefit from safeguards against large price movements that are detrimental to the continued operation of their business, which would also be detrimental to the end-consumers.
(45)
The intra-day volatility management mechanisms should ensure that excessive movements in prices within a trading day are prevented. Those mechanisms should be based on the observed market price at regular intervals. Given the wide diversity of instruments in energy derivatives markets and the peculiarities of the trading venues associated with such instruments, the intra-day volatility management mechanisms should be adapted to the specificities of those instruments and markets. Therefore, price limits should be set up by trading venues taking into account the specificities of each relevant energy-related commodity derivative, the liquidity profile of the market for such derivative and its volatility profile.
(46)
When determining the opening price for the purpose of setting the first reference price in a trading day, the trading venue should rely on the methodology it normally applies to determine the price at which a specific energy-related commodity derivative first trades upon the start of the trading day. In determining the opening price after any interruption of trading that might occur during the trading day, the trading venue should apply the methodology it deems most appropriate to ensure that orderly trading resumes.
(47)
Trading venues should be able to 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.
(48)
In order to ensure transparency in the functioning of the intra-day volatility management mechanism that they implement, the trading venues should without undue delay make public a description of its general features for whenever they apply a modification. However, to safeguard fair and orderly trading, the trading venues should not be required to publish all the technical parameters of the mechanism they put in place.
(49)
Where the information collected by the European Securities and Markets Agency (ESMA) about the implementation of the volatility management mechanism by trading venues on which energy-related commodity derivatives are traded in the Union show that higher consistency of implementation of the mechanism is needed to ensure more efficient management of excessive price volatility across the Union, the Commission should be able to specify uniform conditions of implementation of the intra-day volatility management mechanism, such as the frequency at which the price boundaries are renewed, or the measures to be taken if trading moves outside those price boundaries. The Commission should be able to take into account the specificities of each energy-related commodity derivative, the liquidity profile of the market for such derivative and its volatility profile.
(50)
In order to give enough time to trading venues to robustly implement the intra-day volatility management mechanism as specified in this Regulation, trading venues should be granted until 31 January 2023 to set up that mechanism. In order to ensure that trading venues are capable of dealing with excessive price movements quickly even before that mechanism is set up, they should have in place a preliminary mechanism that can broadly achieve the same objective as the intra-day volatility management mechanism.
(51)
The obligations and restrictions imposed on trading venues and traders by the intra-day volatility management mechanisms do not go beyond what is necessary in order to allow energy firms to continue participating in gas and electricity markets and meet their hedging needs, thereby contributing to the security of the energy supply for final consumers.
(52)
In order to ensure an efficient application of the intra-day volatility management mechanisms, competent authorities should supervise their implementation by trading venues, and report regularly to ESMA on such implementation. In order to ensure a consistent implementation of the intra-day volatility management mechanisms, competent authorities should also ensure that divergences in the implementation of those mechanisms by trading venues are duly justified.
(53)
To address potential divergences in the application of the intra-day volatility management mechanisms between the Member States, and on the basis of the reports submitted by competent authorities, ESMA should coordinate the action of the competent authorities of the Member States, and document any divergences observed in the way the intra-day volatility management mechanisms are implemented by trading venues across jurisdictions in the Union.
(54)
Given the unprecedented reduction of the natural gas supply from the Russian Federation and the persisting risk of further sudden supply disruptions, the Union faces the urgent need to diversify its gas supplies. However, the LNG market for Europe is still emerging and it is difficult to assess the accuracy of prices that prevail in this marketplace. In order to obtain an accurate, objective and reliable assessment of the price for LNG deliveries to the Union, the European Union Agency for the Cooperation of Energy Regulators (ACER) established by Regulation (EU) 2019/942 of the European Parliament and of the Council (9) should collect all the LNG market data that are necessary to establish a daily LNG price assessment.
(55)
The price assessment should be undertaken based on all transactions pertaining to LNG deliveries to the Union. ACER should be empowered to collect this market data from all participants active in LNG deliveries to the Union. All such participants should be obliged to report all of their LNG market data to ACER as close to real time as technologically possible either after the conclusion of a transaction or the posting of a bid or offer to enter into a transaction. The ACER price assessment should comprise the most complete dataset including transaction prices and, as of 31 March 2023, bids and offer prices for LNG deliveries to the Union. The daily publication of this objective price assessment, and of the spread established in comparison to other reference prices on the market in the form of an LNG benchmark, paves the way for its voluntary uptake by market participants as the reference price in their contracts and transactions. Once established, the LNG price assessment and the LNG benchmark could also become a reference rate for derivatives contracts used for hedging the price of LNG or the difference in price between the LNG price and other gas prices. In view of the urgent need to introduce the LNG price assessment, the first publication of that assessment should take place no later than 13 January 2023.
(56)
The current empowerments vested on ACER by Regulation (EU) No 1227/2011 of the European Parliament and of the Council (10) and Commission Implementing Regulation (EU) No 1348/2014 (11) (together referred to as ‘REMIT’) do not suffice to create a complete and comprehensive dataset of all LNG deliveries into the Union. However, such a comprehensive and complete dataset for daily price assessment is necessary for the Union to manage, in a spirit of solidarity, its procurement policies for international LNG imports, in particular during the on-going crisis situation. Relevant data and information on LNG contracts are also necessary to ensure monitoring of price developments as well as perform data quality control and quality assurance. This ad hoc instrument should allow ACER to collect all market data that is required to establish a comprehensive and representative assessment of the price of LNG deliveries to the Union.
(57)
Although the establishment of a daily LNG price assessment and LNG benchmark on a permanent basis should at a later stage be included in a more comprehensive revision of the REMIT, the on-going crisis situation requires urgent action already now to address the immediate situation of severe difficulties in the supply and accurate pricing of LNG deliveries to the Union on a temporary basis until such revision of the REMIT can be adopted in accordance with the ordinary legislative procedure.
(58)
In order to immediately increase price transparency and planning security in the LNG import market, it should be specified that the relevant dataset should comprise both information on the prices and quantities of completed LNG transactions, prices and quantities of bids and offers pertaining to LNG deliveries into the Union, as well as the price formula in the long-term contract from which the price is derived, if relevant.
(59)
LNG market participants subject to a reporting obligation should be defined as those engaged in either the purchase or sale of LNG cargoes destined for delivery into the Union. Those LNG market participants should be subject to the obligations and prohibitions applying to market participants in accordance with the REMIT.
(60)
ACER, in cooperation with the Commission, should have a broad mandate to specify the quality and the substance of the market data it collects to establish a daily price assessment for LNG deliveries into the Union. It should also enjoy broad discretion in the choice of its preferred transmission protocol. In order to achieve the highest possible quality in the market data to be reported, ACER should be empowered to specify all the parameters of the market data that should be reported to it. Such parameters should include, without being limited to, the reference units in which price data is reported, the reference units in which quantity data is reported, the forward tenors of transaction or pre-transaction bid and offer data, as well as the transmission protocols to be used to convey the required data to ACER.
(61)
ACER should also set out the methodology it employs to provide a daily LNG price assessment and LNG benchmark, as well as the process for a regular review of this methodology.
(62)
The price assessment published under this Regulation should provide more transparency to Member States and other market participants on the prevailing price of LNG imports to Europe. More price transparency should in turn allow Member States and private entities domiciled in the Union to act in a more informed and coordinated manner when purchasing LNG on global markets and in particular, when using the service provider. More coordination in purchasing LNG should enable Member States to prevent outbidding each other or bidding prices that are not in line with the prevailing market price. Therefore, price assessments and benchmark spreads published under this Regulation are crucial to bringing about more solidarity between Member States in procuring limited LNG supplies.
(63)
The obligation on market operators to provide ACER with information on LNG transactions is necessary and proportionate to achieve the objective of enabling ACER to establish an LNG benchmark, in particular as it is aligned with market operators’ existing obligations under the REMIT and ACER will keep sensitive business information confidential.
(64)
In addition to the circuit breaker and the LNG benchmark other interventions are available including a temporary dynamic price corridor, as requested in the conclusions of the European Council of 20 and 21 October 2022, taking into account the following safeguards: it should apply to natural gas transactions in the Title Transfer Facility (TTF) Virtual Trading Point, operated by Gasunie Transport Services B.V.; other Union gas trading hubs may be linked to the corrected TTF spot price via a temporary dynamic price corridor; and it should be without prejudice to over-the-counter gas trades, should not jeopardise the Union’s security of gas supply, should depend on progress made in implementing the gas savings target, should not lead to an overall increase in gas consumption, should be designed in such a manner that it will not prevent market-based intra-EU flows of gas, should not affect the stability and orderly functioning of energy derivative markets and should take into account the gas market prices in the different organised market places across the Union.
(65)
Regulation (EU) 2017/1938 already provides the possibility for Member States, during an emergency, to prioritise the gas supply to certain critical gas-fired power plants, given their importance to ensuring the electricity security of supply and avoiding grid imbalances. The critical gas-fired power plants and associated gas volumes may have an important impact on the gas volumes available for solidarity in an emergency. In that context, Member States should, by way of derogation from Article 13(1), (3) and (8) of Regulation (EU) 2017/1938, be, temporarily, able to request emergency solidarity measures also when they are not able to secure those critical gas volumes necessary to ensure the continuation of electricity production in critical gas-fired power plants. For the same reason, Member States providing solidarity should also be entitled to ensure that supplies to their solidarity protected customers or other essential services, such as district heating, and the operation of their critical gas-fired power plants are not endangered when providing solidarity to another Member State.
(66)
A maximum limit of the critical gas volumes needed in each Member State to preserve the security of the electricity supply should be established so as to avoid unnecessary or abusive solidarity requests or undue limitations to solidarity provided to a Member State in need. The methodology used in the European Network of Transmission System Operators for Electricity (ENTSO-E) Winter Outlook provides a basis identifying critical gas volume for electricity security of supply and for setting such limits. The critical gas volumes for electricity security of supply calculated by ENTSO-E reflect the volumes of gas absolutely needed for ensuring pan-European electricity adequacy using all market resources, always considering gas to be the last in the order of merit. The ENTSO-E methodology is based on a large sample of worst case climate and forced outages scenarios. The fact that the ENTSO-E methodology does not take into account all combined heat and power does not prevent Member States from considering district heating installations of protected customers as protected pursuant to the definition of Regulation (EU) 2017/1938. Member States for which the electricity generation relies exclusively on LNG deliveries with no significant storage capacities, critical gas volumes for electricity security of supply should be adapted accordingly. The critical gas volume for electricity security of supply can be lower than the historic level of gas consumed for electricity generation since electricity adequacy can be provided by other means, including by providing supplies between Member States.
(67)
This however does not exclude that actual minimum gas volumes required by a Member State requesting solidarity or a Member State providing solidarity could be higher than the values modelled by ENTSO-E to avoid an electricity crisis. In such cases, the Member State requesting solidarity or the Member State providing solidarity should be able to exceed the maximum values set out in this Regulation if it can justify that this is necessary to avoid an electricity crisis, such as cases that require to call upon frequency restoration reserves and alternative fuels, or in exceptional scenarios which were not taken into account in the ENTSO-E Winter Outlook, in particular considering the hydrological levels or unexpected developments. Critical gas volume for electricity security of supply by definition includes all the gas needed to ensure a stable electricity supply, and therefore includes the electricity required to produce and transport gas as well as crucial sectors of critical infrastructure and installations crucial for the functioning of military, national security and humanitarian aid services.
(68)
The restrictions imposed on market operators by the extension of solidarity protection to critical gas volumes are necessary to ensure security of the gas supply during a situation of reduced gas supply and increased demand during the winter season. Those restrictions build on existing measures laid down in Regulation (EU) 2017/1938 and Council Regulation (EU) 2022/1369 (12) respectively, aiming at making those measures more effective under the current circumstances.
(69)
This Regulation is without prejudice to the freedom of the Member States to take into account the potential long-lasting damage to industrial installations when prioritising the demand that should be reduced or curtailed to be able to provide solidarity to another Member State.
(70)
Certain customers, including households and customers providing essential social services, are particularly sensitive to the negative effects of gas supply disruptions. For this reason, Regulation (EU) 2017/1938 introduced a solidarity mechanism between Member States to mitigate the effects of a severe emergency within the Union and ensure that gas can flow to solidarity-protected customers. However, in certain cases, the use of gas also by protected customers could be considered as non-essential. The reduction of this type of use which clearly goes beyond what is needed would not undermine the objectives set out in Regulation (EU) 2017/1938, in particular as the missing gas consumed for non-essential purposes could lead to severe harm in other private or commercial sectors. Member States should therefore have the possibility to achieve gas savings also by reducing the non-essential consumption of protected customers under specific circumstances, where such reduction is physically feasible without affecting essential uses. However, any reduction measures taken by the Member States should strictly be limited to non-essential consumption and by no means reduce the basic use by protected customers nor limit their ability to heat their homes adequately.
(71)
Member States and their competent authorities should be free to determine the applicable reduction measures and the activities corresponding to non-essential consumption, such as outdoor heating, the heating of residential swimming pools and other complementary residential facilities. By having the possibility to limit non-essential consumption, Member States should be able to strengthen the safeguards and ensure that gas is being supplied to other essential sectors, services and industries, enabling them to continue their operation during a crisis.
(72)
Any measure to reduce non-essential consumption of protected customers should be necessary and proportional, applying particularly in situations of a declared crisis pursuant to Article 11(1) and Article 12 of Regulation (EU) 2017/1938 or of a Union alert pursuant to Regulation (EU) 2022/1369. Despite the application of non-essential consumption reduction measures, protected customers should continue to benefit from protection against disconnection. Member States should also ensure that such measures do not limit the protection required for the vulnerable customers whose current consumption should be considered as essential without prejudice to interruption of supplies due to technical reasons.
(73)
Member States are free to decide on whether and how to distinguish between essential consumption and non-essential consumption of protected customers. A Member State requesting solidarity measures which decides not to make this distinction, should not be required to demonstrate that the non-essential consumption could be reduced before the request for solidarity. A Member State providing solidarity should not be required to make a distinction between essential and non-essential customers to determine the volume of gas available for solidarity measures.
(74)
In the case of an emergency, Member States, as well as the Union, should ensure that gas flows within the internal market. This means that measures taken at national level should not give rise to security of supply issues in another Member State while access to cross-border infrastructure should remain safe and technically possible at any time. The current legislative framework does not provide for a process which can effectively solve conflicts between two Member States on measures negatively affecting cross-border flows. As the Union's gas and electricity grids are interconnected, this could not only lead to serious security of supply problems, but also weaken the Union’s unity vis-à-vis third countries. By derogation from Article 12(6) of Regulation (EU) 2017/1938, the Commission should therefore be given the power to evaluate the national measures taken and to arbitrate, where necessary, within a reasonable time frame. To this end, the Commission should be able to request the modification of such national measures if it observes threats to the security of the gas supply of other Member States or the Union. Given the exceptional nature of the current energy crisis, complying with the Commission’s decision should take place without delays that can potentially hinder the Union’s gas supply. Therefore, for the period of application of this Regulation, reconciliation procedures should be suspended for the sake of securing the functioning of the internal market.
(75)
The principle of energy solidarity is a general principle under Union law (13) and applies to all Member States, and not only to neighbouring Member States. Furthermore, the efficient use of the existing infrastructure, including cross-border transmission capacities and LNG facilities, is important to safeguard the security of the gas supply in a spirit of solidarity. In times of gas supply disruptions at Union, regional or national level, and a significant switch from pipeline gas to LNG, Member States in a severe crisis situation should not only be able to benefit from supply possibilities from neighbouring pipelines, but also from supplies from countries which dispose of an LNG facility. Some Member States should be in a position to provide solidarity to other Member States, even if they are not directly connected via a gas pipeline or through a third country or other Member States, provided that the Member State requesting solidarity has exhausted all market-based measures in its emergency plan, including LNG purchases in the global market. It is therefore appropriate to expand the obligation to provide solidarity to non-connected Member States with LNG facilities, taking into account the differences between pipeline gas and LNG markets and infrastructure, including LNG vessels and carriers, in imposing obligations on operators, and taking into account the lack of enforcement powers with respect to LNG assets such as LNG carriers and including possibilities to swap between natural gas and LNG if there is no gas liquefaction facility on the territory of a Member State providing solidarity.
(76)
A Member State with LNG facilities, when providing solidarity to another Member State, should not be held responsible for bottlenecks or other potential issues that may occur outside its own territory or that result from lack of enforcement powers over LNG vessels and carriers owned by a third-country operator, where such bottlenecks or other issues impact the actual flow of gas and ultimately prevent the volume of gas needed reaching the Member State requesting solidarity. Where the Member State providing solidarity does not have enforcement powers, it should not be held responsible for the lack of swapping of an LNG cargo for natural gas.
(77)
In implementing the principle of energy solidarity, Regulation (EU) 2017/1938 introduced a solidarity mechanism intended to enhance cooperation and trust between the Member States in the event of a severe crisis. To facilitate the implementation of the solidarity mechanism, Member States are required to agree on a number of technical, legal and financial issues in their bilateral arrangements, pursuant to Article 13(10) of Regulation (EU) 2017/1938.
(78)
Despite a legal obligation to conclude bilateral solidarity arrangements by 1 December 2018, only a few such arrangements have been finalised, putting at risk the implementation of the legal obligation to provide solidarity support in an emergency. The Commission’s proposal for a Regulation on the internal markets for renewable and natural gases and for hydrogen included a first model for a template solidarity agreement. However, as that template was developed before the invasion of Ukraine by the Russian Federation, with a view to the current situation of extreme gas scarcity and exploding prices and the urgent need to have temporary default rules in place already for the coming winter, it is appropriate to create a temporary framework of default rules for the provision of the required solidarity measures by derogation from Article 13(1) and (2) of Regulation (EU) 2017/1938 which are effective and swiftly implementable, do not depend on long bilateral negotiations and are adapted to the current situation of excessive prices and highly volatile gas prices. In particular, clearer default rules should be introduced for the compensation of the costs of the gas provided and, in a spirit of solidarity between the Member States, for the limitation of potential additional costs the Member State providing solidarity may charge. The rules on solidarity measures pursuant to Article 13 of Regulation (EU) 2017/1938 should remain applicable unless expressly provided otherwise.
(79)
Solidarity should, in principle, be provided based on fair compensation directly paid by the Member State requesting solidarity or its delegated entities. The compensation should cover the gas price, any actual or potential storage costs, the cross-border transportation and associated costs. The compensation should be fair, both for the Member States requesting solidarity as well as for the Member States providing solidarity.
(80)
The current crisis is leading to price levels and regular price peaks which are far beyond the situation of a possible supply crisis at the time of the adoption of Regulation (EU) 2017/1938. The intra-day price volatility currently characterising the gas market as a result of the existing gas crisis should therefore be considered when determining the amount of compensation for Member States providing solidarity. On the basis of solidarity, and in order to avoid pricing in extreme market circumstances, it would be problematic to take the fluctuating intra-day market price as the basis for the default price of the solidarity measure. The gas price should reflect the average day-ahead market price of the day preceding solidarity request in the Member State providing solidarity. Taking this into account, the compensation is still based on the market price, as stipulated in Commission Recommendation (EU) 2018/177 (14). The average day-ahead market price is more independent from the volatility and very high spot prices during crisis situations, and as such, limits any perverse incentives.
(81)
As highlighted in Recommendation (EU) 2018/177, the cost of damages to curtailed industry may only be covered by compensation if it is not reflected in the gas price that the Member State requesting solidarity has to pay and the Member State that requested solidarity should not have to pay compensation for the same costs twice. Taking into account the exceptional circumstances where gas prices have reached unprecedented levels, a Member State receiving solidarity should not be automatically obliged to fully cover other costs, such as damages or costs of legal proceedings, occurring in the Member State providing solidarity, unless another solution is agreed upon in a solidarity agreement. Experience has shown that the obligation for the receiving Member State to bear the full financial risk for all direct or indirect compensation costs which may possibly result from the provision of solidarity measures is a key obstacle to the conclusion of solidarity agreements. The unlimited liability should therefore be alleviated in the default rules for solidarity agreements, to enable the conclusion of the outstanding agreements as soon as possible, as those agreements are a cornerstone of Regulation (EU) 2017/1938, reflecting the Union principle of energy solidarity. As far as the compensation for indirect costs does not exceed 100 % of the price for gas, is justified and is not covered by the price of gas, those costs should be covered by the receiving Member State.
However, if the requested cost goes beyond 100 % of the price for gas the Commission should, after consulting relevant competent authorities, establish a fair cost compensation and therefore have the possibility to verify whether the limitation of the cost compensation is appropriate. The Commission should therefore be able to allow for a different compensation than that set out in Regulation (EU) 2017/1938 in individual cases, taking into account the specific circumstances of the case, including measures to save gas and reduce gas demand, and the principle of energy solidarity. In the assessment, the Commission should give due consideration to avoid excessive indirect costs as a consequence of curtailment or disconnection of customers of gas.
(82)
The rules of this Regulation related to the payment of compensation for solidarity measures between Member States are without prejudice to the principles of compensation for damages under national constitutional law.
(83)
The conclusion of solidarity arrangements with neighbouring Member States, as required pursuant to Article 13(10) of Regulation (EU) 2017/1938, is the most appropriate instrument to implement the obligation to provide solidarity measures pursuant to Article 13(1) and (2) of that Regulation. Member States should therefore be allowed to depart from the default compensation rules set out in this Regulation if they agree on other rules in a solidarity agreement. In particular, Member States should retain the possibility to agree bilaterally upon additional compensation, covering other costs, such as the full costs incurred from an obligation to pay compensation in the Member State providing solidarity, including damages to curtailed industry. In bilateral solidarity agreements, such costs can be included in the compensation if the national legal framework provides for the obligation to pay damages to curtailed industry, including compensation for economic damage, in addition to the gas price.
(84)
As a last-resort measure, default solidarity mechanism should only be triggered by a Member State requesting solidarity where the market fails to offer the necessary gas volumes, including LNG and those offered voluntarily by non-protected customers, to meet the demand from solidarity protected customers. Pursuant to Regulation (EU) 2017/1938, Member States are required to have exhausted all measures in their emergency plans including forced curtailment down to the level of solidarity-protected customers.
(85)
The urgent nature and the consequences of a potential activation of the solidarity mechanism should entail the close cooperation between the involved Member States, the Commission and the competent crisis managers as designated by Member States in accordance with Article 10(1), point (g), of Regulation (EU) 2017/1938. The request should, therefore, be communicated to all parties in due time and contain a minimum set of elements that allow the Member States providing solidarity to respond without delay. The response of the Member States providing solidarity should include information on the volume of gas that could be delivered to the Member State requesting solidarity, also including those volumes that could be freed when non-market-based measures are applied. Member States may agree on additional technical and coordination arrangements to facilitate the timely response to a solidarity request. When providing solidarity, Member States and their competent authorities should ensure the network’s operational safety and reliability.
(86)
The Member State requesting solidarity should be able to receive solidarity from multiple Member States. The default solidarity mechanism should be triggered only if the Member State providing solidarity has not concluded any bilateral arrangement with the Member State requesting solidarity. In the case of a bilateral arrangement between the Member State requesting solidarity and the Member State providing solidarity, that arrangement should prevail and apply between them.
(87)
The Commission should be able to monitor the application of the default solidarity mechanism and, if deemed necessary, should be able to facilitate the matching of solidarity demand requests. To this end, the Commission should provide for an interactive platform, which should serve as a template and allow the continuous, real-time submission of solidarity requests and their coupling with the respective, available volumes.
(88)
Member States and the Energy Community Contracting Parties may also conclude voluntary arrangements for the application of solidarity measures.
(89)
In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (15).
(90)
Since the objective of this Regulation cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary to achieve that objective,
