Changes from plenary report to adopted text

Removed3. The regulatory authority shall adopt a draft decision on the certification of a transmission system operator or hydrogen network operator within 100 working days from the date of notification by the transmission system operator or hydrogen network operator. It shall refuse the certification if it has not been demonstrated:

Removed(a) that the entity concerned complies with the requirements of Article 54 or Article 62; and

Removed(b) to the regulatory authority or to another competent authority designated by the Member State that granting certification will not put at risk the security of energy supply of the Member State or the Union. In considering that question the regulatory authority or other competent authority so designated shall take into account:

Removed(i) the rights and obligations of the Union with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of energy supply;

Removed(ii) the rights and obligations of the Member State with respect to that third country arising under agreements concluded with it, insofar as they are in compliance with Union law;

Removed(iia) evidence of that third country’s implementation of its obligations as energy supplier in a fair, transparent, credible and unbiased manner, and any Union-wide penalties imposed on that third country;

Removed(iii) other specific facts and circumstances of the case and the third country concerned.

Removed4. The regulatory authority shall notify the decision to the Commission without delay, together with all the relevant information with respect to that decision.

Removed5. Member States shall provide for the regulatory authority or the designated competent authority referred to in paragraph 3, point (b), before the regulatory authority adopts a decision on the certification, to request an opinion from the Commission on whether:

Removed(a) the entity concerned complies with the requirements of Article 54 or Article 62; and

Removed(b) granting certification will not put at risk the security of energy supply to the Union.

Removed6. The Commission shall examine the request referred to in paragraph 5 as soon as it is received. Within a period of 50 working days after receiving the request, it shall deliver its opinion to the regulatory authority or, if the request was made by the designated competent authority, to that authority.

RemovedIn preparing the opinion, the Commission may request the views of ACER, the Member State concerned, and interested parties. In the event that the Commission makes such a request, the 50 working days period shall be extended by further 50 working days.

RemovedIn the absence of an opinion by the Commission within the period referred to in the first and second subparagraphs, the Commission is deemed not to raise objections to the decision of the regulatory authority.

Removed7. When assessing whether the control by a person or persons from a third country or third countries will put at risk the security of energy supply to the Union, the Commission shall take into account:

Removed(a) the specific facts of the case and the third country or third countries concerned, including evidence of that third country’s implementation of its obligations as energy supplier in a fair, transparent, credible and unbiased manner, and of any Union-wide penalties imposed on that third country; and

Removed(b) the rights and obligations of the Union with respect to that third country or third countries arising under international law, including an agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of supply.

Removed8. The regulatory authority shall, within a period of 50 working days after the expiry of the period referred to in paragraph 6, adopt its final decision on the certification. In adopting its final decision the regulatory authority shall take utmost account of the Commission’s opinion. In any event Member States shall have the right to refuse certification where granting certification puts at risk the Member State’s security of energy supply or the security of energy supply of another Member State. Where the Member State has designated another competent authority to assess paragraph 3, point (b), it may require the regulatory authority to adopt its final decision in accordance with the assessment of that competent authority. The regulatory authority’s final decision and the Commission’s opinion shall be published together. Where the final decision diverges from the Commission’s opinion, the Member State concerned shall provide and publish, together with that decision, the reasoning underlying such decision.

Removed9. Nothing in this Article shall affect the right of Member States to exercise, in compliance with Union law, national legal controls to protect legitimate public security interests.

Removed10. The Commission is empowered to adopt delegated acts in accordance with Article 83 in order to provide guidelines setting out the details of the procedure to be followed for the application of this Article.

RemovedArticle 67 Designation of operators of natural gas storage, hydrogen storage, LNG facilities and hydrogen terminals

RemovedMember States shall designate, or shall require undertakings which own natural gas storage, hydrogen storage, LNG facilities and hydrogen terminals to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more operators for these infrastructure.

RemovedUnbundling and transparency of accounts

Removed1. Member States or any competent authority they designate, including the regulatory authorities referred to in Article 70(1) and the dispute settlement authorities referred to in Article 24(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas and hydrogen undertakings as set out in Article 71.

Removed2. Member States and any designated competent authority, including the regulatory authorities referred to in Article 70(1) and the dispute settlement authorities, shall preserve the confidentiality of commercially sensitive information. Member States may provide for the disclosure of such information where this is necessary in order for the competent authorities to carry out their functions.

Removed1. Member States shall take the necessary steps to ensure that the accounts of natural gas and hydrogen undertakings are kept in accordance with paragraphs 2 to 5.

Removed2. Natural gas and hydrogen undertakings, whatever their system of ownership or legal form, shall draw up, submit to audit and publish their annual accounts in accordance with the rules of national law concerning the annual accounts of limited liability companies adopted pursuant to Directive 2013/34/EU of the European Parliament and of the Council.

RemovedUndertakings which are not legally obliged to publish their annual accounts shall keep a copy thereof at the disposal of the public at their head office.

Removed3. Undertakings shall, in their internal accounting, keep separate accounts for each of their transmission, distribution, LNG, hydrogen terminal, natural gas and hydrogen storage and hydrogen transport activities as they would be required to do if the activities in question were carried out by separate undertakings, with a view to avoiding discrimination, cross-subsidisation and distortion of competition. Infrastructure assets of the undertakings shall be clearly allocated to the respective accounts and regulatory asset bases separately for natural gas, electricity or hydrogen assets and shall be made transparent. They shall also keep accounts, which may be consolidated, for other activities not relating to transmission, distribution, LNG, hydrogen terminal, natural gas and hydrogen storage and hydrogen transport activities. Revenue from ownership of the transmission, distribution or hydrogen network shall be specified in the accounts. Where appropriate, they shall keep consolidated accounts for other, non-gas activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity. The separation of accounts shall be audited in accordance with the rules laid down in paragraph 2 and reported to the regulatory authority concerned.

Removed4. The audit referred to in paragraph 2 shall, in particular, verify that the obligation to avoid discrimination and cross-subsidies referred to in paragraph 3 is respected. Without prejudice to Article 4 of Regulation [recast Gas Regulation as proposed in COM(2021)xxx], there shall be no cross-subsidisation between current gas grid users and the users of the future hydrogen network.

Removed5. Undertakings shall specify in their internal accounting the rules for the allocation of assets and liabilities, expenditure and income as well as for depreciation, without prejudice to nationally applicable accounting rules, which they follow in drawing up the separate accounts referred to in paragraph 3. Those internal rules may be amended only in exceptional cases. Such amendments shall be mentioned and duly substantiated.

Removed6. The annual accounts shall indicate in notes any transaction of a certain size conducted with related undertakings.

RemovedRegulatory Authorities

Removed1. Each Member State shall designate a single regulatory authority at national level.

Removed2. Paragraph 1 shall be without prejudice to the designation of other regulatory authorities at regional level within Member States, provided that there is one senior representative for representation and contact purposes a Union level within the Board of Regulators of ACER in accordance with Article 7(1) of Regulation (EU) 2019/942.

Removed3. By way of derogation from paragraph 1, a Member State may designate regulatory authorities for small systems in a geographically separate region whose consumption, in 2008, accounted for less than 3 % of the total consumption of the Member State of which it is part. That derogation shall be without prejudice to the appointment of one senior representative for representation and contact purposes at Union level within the Board of Regulators of ACER in compliance with Article 7(1) of Regulation (EU) 2019/942.

Removed4. Member States shall guarantee the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and related legal acts, the regulatory authority:

Removed(a) is legally distinct and functionally independent from any other public or private entity;

Removed(b) ensures that its staff and the persons responsible for its management:

Removed(i) act independently from any market and political interest;

Removed(ii) do not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks. That requirement is without prejudice to close cooperation, as appropriate, with other relevant national authorities and consumer representative bodies or to general policy guidelines issued by the government and not related to the regulatory powers and duties under Article 72.

Removed5. In order to protect the independence of the regulatory authority, Member States shall in particular ensure that:

Removed(a) the regulatory authority can take autonomous decisions, independently from any political body;

Removed(b) the regulatory authority has all the necessary human and financial resources it needs to carry out its duties and exercise its powers in an effective and efficient manner;

Removed(c) the regulatory authority has a separate annual budget allocation and autonomy in the implementation of the allocated budget;

Removed(d) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed for a fixed term of five up to seven years, renewable once.

Removed(e) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed based on objective, transparent and published criteria, in an independent and impartial procedure, which ensures that the candidates have the necessary skills and experience for any relevant position in the regulatory authority;

Removed(f) provisions on conflict of interest are in place and confidentiality obligations extend beyond the end of the mandate of the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority's top management;

Removed(g) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority's top management may be dismissed only based on transparent criteria in place;

Removed(h) Member States may provide for the ex-post control of the regulatory authorities’ annual accounts by an independent auditor.

RemovedIn regard to the first subparagraph, point (d), Member States shall ensure an appropriate rotation scheme for the board or the top management. The members of the board or, in the absence of a board, members of the top management may be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of misconduct under national law.

Removed6. By 5 July 2022 and every four years thereafter, the Commission shall submit a report to the European Parliament and to the Council on the compliance of national authorities with the principle of independence set out in this Article. The reports shall analyse any non-compliance and shall provide recommendations for resolution. The Commission shall make those reports publicly available.

RemovedIn carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in Article 72, in close consultation with other relevant national authorities, including competition authorities and authorities from neighbouring countries, including third countries, as appropriate, and without prejudice to their competencies:

Removed(a) promoting, in close cooperation with regulatory authorities of other Member States, the Commission and ACER, a competitive, flexible, secure and environmentally sustainable internal market in natural gas, renewable gas and low-carbon gas and hydrogen within the Union, and ensuring appropriate conditions for the effective and reliable operation of natural gas and hydrogen networks, taking into account long-term objectives, thus contributing to the consistent, efficient and effective application of Union law in order to achieve the Union’s climate and energy goals;

Removed(b) developing competitive and properly functioning regional cross-border markets within the Union in view of the achievement of the objectives referred to in point (a);

Removed(c) eliminating restrictions on trade in natural gas and hydrogen between Member States, including eliminating restrictions due to differences in the quality of gas or differences in the volume of hydrogen blended into the natural gas system or to differences in the quality of hydrogen in the hydrogen system, developing appropriate cross-border transmission and/or transport capacities to meet demand and enhancing the integration of national markets ensuring the interoperability of the interconnected EU natural gas system or Union hydrogen system, which may facilitate natural gas flow across the Union;

Removed(d) helping to achieve, in the most cost-effective way, the development of secure, reliable and efficient non-discriminatory systems that are consumer oriented, and promoting system adequacy and, in accordance with general energy and climate policy objectives, energy efficiency as well as the integration of large and small scale production of gas from renewable sources and distributed production in both transmission and distribution networks and facilitating their operation in relation to other energy networks of electricity and heat;

Removed(e) facilitating connection and access to the network for new production capacity, in particular removing barriers that could prevent connection and access for new market entrants and of gas and hydrogen from renewable sources;

Removed(f) ensuring that system operators and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies, especially energy efficiency, in system performance and foster market integration;

Removed(g) ensuring that customers benefit through the efficient functioning of their national market, promoting effective competition and helping to ensure a high level of consumer protection in close cooperation with relevant consumer protection authorities;