Changes from report parliamentary committee draft to plenary report

AddedUnbundling of transmission system operators

Addedownership unbundling

Added1. Member States shall ensure that:

Added(a) each undertaking which owns a transmission system acts as a transmission system operator;

Added(b) the same person or persons are entitled neither:

Added(i) directly or indirectly to exercise control over an undertaking performing any of the functions of production or supply, and directly or indirectly to exercise control or exercise any right over a transmission system operator or over a transmission system; nor

Added(ii) directly or indirectly to exercise control over a transmission system operator or over a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply;

Added(c) the same person or persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator or a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply;

Added(d) the same person is not entitled to be a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of production or supply and a transmission system operator or a transmission system.

Added2. The rights referred to in paragraph 1, points (b) and (c), shall include, in particular:

Added(a) the power to exercise voting rights;

Added(b) the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or

Added(c) the holding of a majority share.

Added3. For the purpose of paragraph 1, point (b), the term ‘undertaking performing any of the functions of production or supply’ shall be understood as including ‘undertaking performing any of the functions of generation or supply’ within the meaning of Directive (EU) 2019/944 of the European Parliament and of the Council, and the terms ‘transmission system operator’ and ‘transmission system’ shall be understood as including ‘transmission system operator’ and ‘transmission system’ within the meaning of that Directive.

Added4. The obligation set out in paragraph 1, point (a), of this Article shall be deemed to be fulfilled in a situation where two or more undertakings which own transmission systems have created a joint venture which acts as a transmission system operator in two or more Member States for the transmission systems concerned. No other undertaking may be part of the joint venture, unless it has been approved under Article 55 as an independent system operator or as an independent transmission operator for the purposes of Section 3.

Added5. For the implementation of this Article, where the person referred to in points (b), (c) and (d) of paragraph 1 is the Member State or another public body, two separate public bodies exercising control over a transmission system operator or over a transmission system on the one hand, and over an undertaking performing any of the functions of production or supply on the other, shall be deemed not to be the same person or persons.

Added6. Member States shall ensure that neither commercially sensitive information referred to in Article 36 held by a transmission system operator which was part of a vertically integrated undertaking, nor the staff of such a transmission system operator, is transferred to undertakings performing any of the functions of production and supply.

Added7. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking, a Member State may decide not to apply paragraph 1. As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State's network, where on 23 May 2019 the transmission system belongs to a vertically integrated undertaking, a Member State may decide not to apply paragraph 1.

AddedIn such case, the Member State concerned shall either:

Added(a) designate an independent system operator in accordance with Article 55, or

Added(b) comply with the provisions of Section 3.

Added8. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking and arrangements are in place which guarantee more effective independence of the transmission system operator than the provisions of Section 3, a Member State may decide not to apply paragraph 1 of this Article.

AddedAs regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State's network, where on 23 May 2019 the transmission system belongs to a vertically integrated undertaking and arrangements are in place which guarantee more effective independence of the transmission system operator than the provisions of Section 3., that Member State may decide not to apply paragraph 1 of this Article.

Added9. Before an undertaking is approved and designated as a transmission system operator under paragraph 9 of this Article, it shall be certified in accordance with the procedures laid down in Article 65(4), (5) and (6) of this Directive and in Article 3 of Regulation (EC) No 715/2009. After that, the Commission shall verify that the arrangements in place clearly guarantee more effective independence of the transmission system operator than the provisions of Section 3.

Added10. Vertically integrated undertakings which own a transmission system shall not in any event be prevented from taking steps to comply with paragraph 1.

Added11. Undertakings performing any of the functions of production or supply shall not in any event be able to directly or indirectly take control over or exercise any right over unbundled transmission system operators in Member States which apply paragraph 1.

Addedindependent system operators

Added1. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking, a Member State may decide not to apply Article 56 (1) and to designate an independent system operator upon a proposal from the transmission system owner.

AddedAs regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State's network, where on 23 May 2019 the transmission system belonged to a vertically integrated undertaking, that Member State may decide not to apply Article 59(1) and to designate an independent system operator upon a proposal from the transmission system owner.

AddedThe designation of an independent system operator shall be subject to approval by the Commission.

Added2. The Member State may approve and designate an independent system operator only where:

Added(a) the candidate operator has demonstrated that it complies with the requirements of Article 54 (1), points (b), (c) and (d);

Added(b) the candidate operator has demonstrated that it has at its disposal the required financial, technical, physical and human resources to carry out its tasks under Article 35;

Added(c) the candidate operator has undertaken to comply with a ten-year network development plan monitored by the regulatory authority;

Added(d) the transmission system owner has demonstrated its ability to comply with its obligations under paragraph 5., to which end, it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity;

Added(e) the candidate operator has demonstrated its ability to comply with its obligations under [recast Gas regulation as proposed in COM(2021) xxx] including the cooperation of transmission system operators at European and regional level.

Added3. Undertakings which have been certified by the regulatory authority as having complied with the requirements of Article 66 and of paragraph 2 of this Article shall be approved and designated as independent system operators by Member States. The certification procedure in either Article 65 of this Directive and Article 3 of Regulation (EC) No 715/2009 or in Article 66 of this Directive shall be applicable.

Added4. Each independent system operator shall be responsible for granting and managing third-party access, including the collection of access charges and congestion charges, for operating, maintaining and developing the transmission system, as well as for ensuring the long-term ability of the system to meet reasonable demand through investment planning. When developing the transmission system the independent system operator shall be responsible for planning (including the authorisation procedure), construction and commissioning of the new infrastructure. For this purpose, the independent system operator shall act as a transmission system operator in accordance with this Chapter. The transmission system owner shall not be responsible for granting and managing third-party access, nor for investment planning.

Added5. Where an independent system operator has been designated, the transmission system owner shall:

Added(a) provide all the relevant cooperation and support to the independent system operator for the fulfilment of its tasks, including in particular all relevant information;

Added(b) finance the investments decided by the independent system operator and approved by the regulatory authority, or give its agreement to financing by any interested party including the independent system operator; the. The relevant financing arrangements shall be subject to approval by the regulatory authority; prior. Prior to such approval, the regulatory authority shall consult the transmission system owner together with other interested parties;

Added(c) provide for the coverage of liability relating to the network assets, excluding the liability relating to the tasks of the independent system operator;

Added(d) provide guarantees to facilitate financing any network expansions with the exception of those investments where, pursuant to point (b), it has given its agreement to financing by any interested party including the independent system operator.

Added6. In close cooperation with the regulatory authority, the relevant national competition authority shall be granted all relevant powers to effectively monitor compliance of the transmission system owner with its obligations under paragraph 5.

AddedArticle 56 Unbundling of transmission system owners, storage system and hydrogen storage operators

AddedTransmission system and hydrogen network owners, where an independent system operator or an independent hydrogen network operator has been appointed, and storage system operators or hydrogen storage facility operators which are part of vertically integrated undertakings shall be independent at least in terms of their legal form, organisation and decision making from other activities not relating to transmission, distribution, transport and storage of gas.

AddedThis Article shall apply only to natural gas storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 29.

AddedIn order to ensure the independence of the transmission system or hydrogen network owner and storage system or hydrogen storage operator referred to in the first paragraph, the following minimum criteria shall apply:

Added(a) persons responsible for the management of the transmission system or hydrogen network owner and storage system or hydrogen storage operator shall not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production and supply of gas;

Added(b) appropriate measures shall be taken to ensure that the professional interests of persons responsible for the management of the transmission system or hydrogen network owner and storage system or hydrogen storage operator are taken into account in a manner that ensures that they are capable of acting independently;

Added(c) the storage system or hydrogen storage operator shall have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the storage facilities; this shall not preclude the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets regulated indirectly in accordance with Article 72(7) in a subsidiary are protected; it shall enable in particular the parent company to approve the annual financial plan, or any equivalent instrument, of the storage system or hydrogen storage operator and to set global limits on the levels of indebtedness of its subsidiary; it shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of storage facilities, that do not exceed the terms of the approved financial plan, or any equivalent instrument;

Added(d) the transmission system or hydrogen network owner and the storage system or hydrogen storage operator shall establish a compliance programme, which shall set out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored; it shall also set out the specific obligations of employees to meet those objectives; an annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme to the regulatory authority and shall be published.

AddedThe Commission is empowered to adopt delegated acts in accordance with Article 83 supplementing this Directive in order to set guidelines to ensure full and effective compliance of the transmission system or hydrogen network owner and of the storage system or hydrogen storage operator with paragraph 2 of this Article.

Addedindependent transmission operators

Added1. Transmission system operators shall be equipped with all human, technical, physical and financial resources necessary for fulfilling their obligations under this Directive and carrying out the activity of gas transmission, in particular:

Added(a) assets that are necessary for the activity of gas transmission, including the transmission system, shall be owned by the transmission system operator;

Added(b) personnel necessary for the activity of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;

Added(c) leasing of personnel and rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited. A transmission system operator may, however, render services to the vertically integrated undertaking as long as:

Added(i) the provision of those services does not discriminate between system users, is available to all system users on the same terms and conditions and does not restrict, distort or prevent competition in production or supply;

Added(ii) the terms and conditions of the provision of those services are approved by the regulatory authority;