Changes from plenary report to adopted text

Removed(a) to issue binding decisions on natural gas and hydrogen undertakings;

Removed(b) to carry out investigations into the functioning of the markets for gas, and to decide upon and impose any necessary and proportionate measures to promote effective competition and ensure the proper functioning of the markets for gas and where appropriate, the regulatory authority shall also have the power to cooperate with the national competition authority and the financial market regulators or the Commission in conducting an investigation relating to competition law;

Removed(c) to require any information from natural gas and hydrogen undertakings relevant for the fulfilment of its tasks, including the justification for any refusal to grant third-party access, and any information on measures necessary to reinforce the network;

Removed(d) to impose effective, proportionate and dissuasive penalties on natural gas and hydrogen undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of ACER, or to propose to a competent court to impose such penalties, including the power to impose or propose the imposition of penalties of up to 10 % of the annual turnover of the transmission system operator or hydrogen network operator or of up to 10 % of the annual turnover of the vertically integrated undertaking on the transmission system operator or hydrogen network operator or on the vertically integrated undertaking, as the case may be, for non compliance with their respective obligations pursuant to this Directive;

Removed(e) appropriate rights of investigations and relevant powers of instructions for dispute settlement under paragraphs 11 and 12.

Removed5. The regulatory authority located in the Member State in which the ENTSO for Gas, the European Network of Network Operators for Hydrogen or the EU DSO entity has its seat shall have the power to impose effective, proportionate and dissuasive penalties on those entities where they do not comply with their obligations under this Directive, [the recast Gas Regulation proposed in COM(2021) xxx] or any relevant legally binding decisions of the regulatory authority or of ACER, or to propose that a competent court impose such penalties.

Removed6. In addition to the duties and powers conferred on it under paragraphs 1 and 4 of this Article, when an independent transmission operator or an integrated hydrogen network operator has been designated in accordance with Chapter IX, Section 3, the regulatory authority shall be granted at least the following duties and powers:

Removed(a) to issue penalties in accordance with paragraph 4, point (d) for discriminatory behaviour in favour of the vertically integrated undertaking;

Removed(b) to monitor communications between the transmission system operator or an integrated hydrogen network operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator or the integrated hydrogen network operator with its obligations;

Removed(c) to act as dispute settlement authority between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator in respect of any complaint submitted pursuant to paragraph 11;

Removed(d) to monitor commercial and financial relations including loans between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator;

Removed(e) to approve all commercial and financial agreements between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator, on the condition that they comply with market conditions;

Removed(f) to request justification from the vertically integrated undertaking when notified by the compliance officer in accordance with Article 64(4), in particular including evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;

Removed(g) to carry out inspections, including unannounced inspections, on the premises of the vertically integrated undertaking and the transmission system operator or the integrated hydrogen network operator;

Removed(h) to assign all or specific tasks of the transmission system operator or the integrated hydrogen network operator to an independent system operator or an independent hydrogen network operator, appointed in accordance with Article 64 in case of a persistent breach by the transmission system operator or the integrated hydrogen network operator of its obligations under this Directive, in particular in case of repeated discriminatory behaviour to the benefit of the vertically integrated undertaking.

Removed7. The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force at least the methodologies used to calculate or establish the terms and conditions for:

Removed(a) connection and access to national natural gas networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities, whereby tariffs or methodologies shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing those investments to ensure the viability of the networks and LNG facilities;

Removed(b) connection and access to national hydrogen networks, including, as from 1 January 2031, the hydrogen network tariffs, where applicable, and terms and conditions and tariffs for access to for hydrogen storage and hydrogen terminals;

Removed(c) the provision of balancing services which shall be performed in the most economic manner and provide appropriate incentives for network users to balance their input and off-takes in a fair and non-discriminatory manner and be based on objective criteria;

Removed(d) approving and monitoring dedicated charges in accordance with Article 4 of [recast Gas Regulation as proposed in COM(2021) xxx].

Removed(e) access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management.

Removed8. The methodologies or the terms and conditions referred to in paragraph 7 shall be published.

Removed9. In fixing or approving the tariffs or methodologies and the balancing services, the regulatory authorities shall ensure that transmission and distribution system operators and, as from 1 January 2031, hydrogen network operators are granted appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities.

Removed10. The regulatory authorities shall monitor congestion management of national transmission networks and hydrogen networks including interconnectors, and the implementation of congestion management rules. To that end, transmission system operators, hydrogen network operators or market operators shall submit their congestion management rules, including capacity allocation, to the regulatory authorities. Regulatory authorities may request amendments to those rules. This paragraph shall not apply to hydrogen distribution network operators.

Removed1. Regulatory authorities shall have the authority to require natural gas transmission, storage, LNG and distribution system operators, hydrogen storage and terminal operators, and, as from 1 January 2031, hydrogen network operators if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to storage is defined pursuant to Article 29(3), that task shall exclude the modification of tariffs. In the event of delay in the fixing of natural gas transmission and distribution tariffs and, where appropriate, hydrogen network tariffs, regulatory authorities shall have the power to fix or approve provisional transmission and distribution tariffs or methodologies and hydrogen network tariffs and methodologies and to decide on the appropriate compensatory measures if the final tariffs or methodologies deviate from those provisional tariffs or methodologies.

Removed2. Any party having a complaint against a natural gas transmission, storage, LNG or distribution system operator or a hydrogen network, storage or terminal operator in relation to that operator’s obligations under this Directive may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the regulatory authorities. That extended period may be further extended with the agreement of the complainant. The regulatory authority’s decision shall have binding effect unless and until overruled on appeal.

Removed3. Any party who is affected and who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.

Removed4. Member States shall create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. Those mechanisms shall take account of the provisions of the TFEU, and in particular Article 102 thereof.

Removed5. Member States shall ensure that the appropriate measures are taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where confidentiality rules imposed by this Directive have not been respected.

Removed6. Complaints referred to in paragraphs 2 and 3 shall be without prejudice to the exercise of rights of appeal under Union or national law.

Removed7. Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.

Removed8. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.

Removed1. Regulatory authorities shall closely consult and cooperate with each other, and in particular within ACER, and shall provide each other and ACER with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority.

Removed2. Regulatory authorities shall cooperate at least at a regional level to:

Removed(a) foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint gas and hydrogen exchanges and the allocation of cross-border capacity, and to enable an adequate level of interconnection capacity, including through new interconnections, within the region and between regions to allow for development of effective competition and improvement of security of supply without discriminating between supply undertakings in different Member States;

Removed(b) coordinate the development of all network codes for the relevant transmission system operators, hydrogen network operators and other market actors;

Removed(c) coordinate the development of the rules governing the management of congestion;

Removed(d) to ensure regulatory compliance of legal entities fulfilling transmission operators’ and network operators’ tasks at cross-border or regional level.

Removed3. Regulatory authorities shall have the right to enter into cooperative arrangements with each other to foster regulatory cooperation.

Removed4. The actions referred to in paragraph 2 shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies.

Removed5. The Commission is empowered to adopt delegated acts in accordance with Article 83 in order to supplement this Directive by establishing guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with ACER.

Removed6. Regulatory authorities, or where appropriate other competent authorities, may consult and cooperate with the relevant authorities of third countries, including Energy Community Contracting Parties, in relation to the operation of gas and hydrogen infrastructure to and from third countries with a view to ensuring, as regards the infrastructure concerned, that this Directive is applied consistently in the territory and territorial sea of a Member State.

Removed1. Any regulatory authority and the Commission may request the opinion of ACER on the compliance of a decision taken by a regulatory authority with the network codes and the guidelines referred to in this Directive or in [recast Gas Regulation as proposed in COM(2021) xxx].

Removed2. ACER shall provide its opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within three months from the date of receipt of the request.

Removed3. Where the regulatory authority which has taken the decision does not comply with ACER’s opinion within four months from the date of receipt of that opinion, ACER shall inform the Commission accordingly.

Removed4. Any regulatory authority may inform the Commission where it considers that a decision relevant for cross border-trade taken by another regulatory authority does not comply with the network codes and guidelines referred to in this Directive or in[recast Gas Regulation as proposed in COM(2021) xxx] within two months from the date of that decision.

Removed5. Where the Commission, within two months of having been informed by ACER in accordance with paragraph 3, or by a regulatory authority in accordance with paragraph 4, or on its own initiative within three months from the date of the decision, finds that the decision of a regulatory authority raises serious doubts as to its compatibility with the network codes and the guidelines referred to in this Directive or in [recast Gas Regulation as proposed in COM(2021) xxx], the Commission may decide to examine the case further. In such a case, it shall invite the regulatory authority and the parties to the proceedings before the regulatory authority to submit observations.

Removed6. Where the Commission takes a decision to examine the case further, it shall, within four months of the date of such decision, issue a final decision:

Removed(a) not to raise objections against the decision of the regulatory authority; or

Removed(b) to require the regulatory authority concerned to withdraw its decision on the basis that the network codes and the guidelines have not been complied with.

Removed7. Where the Commission has not taken a decision to examine the case further or a final decision within the time-limits set in paragraphs 5 and 6 respectively, it shall be deemed not to have raised objections to the decision of the regulatory authority.

Removed8. The regulatory authority shall comply with the Commission decision to withdraw its decision within a period of two months and shall inform the Commission accordingly.

Removed9. The Commission is empowered to adopt delegated acts in accordance with Article 83 supplementing this Directive by establishing guidelines setting out the details of the procedure to be followed for the application of this Article.

Removed1. Member States shall require supply undertakings to keep at the disposal of the national authorities, including the regulatory authority, the national competition authorities and the Commission, for the fulfilment of their tasks, for at least five years, the relevant data relating to all transactions in natural gas and hydrogen supply contracts and natural gas and hydrogen derivatives with wholesale customers and transmission system operators, as storage and LNG operators as well as hydrogen network, storage and terminal operators.

Removed2. The data shall include details on the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled natural gas and hydrogen supply contracts and natural gas and hydrogen derivatives.

Removed3. The regulatory authority may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This paragraph shall not apply to information about financial instruments which fall within the scope of Directive 2014/65/EU.

Removed4. The Commission is empowered to adopt delegated acts supplementing this Directive in accordance with Article 83, by establishing guidelines which define the methods and arrangements for record keeping as well as the form and content of the data that shall be kept.

Removed5. With respect to transactions in natural gas and hydrogen derivatives of supply undertakings with wholesale customers and natural gas transmission system operator, storage and LNG operators as well as hydrogen network, storage and terminal operators, this Article shall apply only once the Commission has adopted the guidelines referred to in paragraph 4.

Removed6. The provisions of this Article shall not create additional obligations towards the authorities referred to in paragraph 1 for entities falling within the scope of Directive 2014/65/EU.

Removed7. In the event that the authorities referred to in paragraph 1 need access to data kept by entities falling within the scope of Directive 2014/65/EU, the authorities responsible under that Directive shall provide them with the required data.