Legal provisions of COM(2021)804 - Internal markets for renewable and natural gases and for hydrogen (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)804 - Internal markets for renewable and natural gases and for hydrogen (recast). |
|---|---|
| document | COM(2021)804  |
| date | December 15, 2021 |
Chapter I
Subject matter, scope and definitions
Contents
- Article 1 - Subject matter and scope
- Article 2 - Definitions
- Article 3 - General principles
- Article 4 - Separation of regulated asset bases
- Article 6 - Third-party access services concerning hydrogen network operators
- Article 8 - Market assessment for renewable and low carbon gases by LNG and storage system operators
Article 1 - Subject matter and scope
(a)setting sets non-discriminatory rules for access conditions to natural gas and hydrogen transmission systems taking into account the special characteristics of national and regional markets with a view to ensuring the proper functioning of the internal market in gases gas; and
(b)setting non-discriminatory rules for access conditions to LNG facilities and storage facilities taking into account the special characteristics of national and regional markets; and
(c)facilitating facilitates the emergence of a well-functioning and transparent wholesale market with a high level of security of supply in gases gas and providing provides mechanisms to harmonise the network access rules for cross-border exchanges in gases gas.
The objectives referred to in the first subparagraph shall include the setting of harmonised principles for tariffs, or the methodologies underlying their calculation, for access to the natural gas network, but not to storage facilities, the establishment of third-party access services and harmonised principles for capacity-allocation and congestion-management, the determination of transparency requirements, balancing rules and imbalance charges, and the facilitation of capacity trading.
This Regulation, with the exception of Article 3119(54), shall apply only to natural gas and hydrogen storage facilities falling under Article 2933(3) or (4) of Directive 2009/73/EC recast Gas Directive as proposed in COM(2021) xxx .
The Member States may establish an entity or body set up in compliance with Directive 2009/73/EC Recast Gas Directive as presented in COM xxx for the purpose of carrying out one or more functions typically attributed to the transmission system operator or hydrogen network operator , which shall be subject to the requirements of this Regulation. That entity or body shall be subject to certification in accordance with Article 133 of this Regulation and shall be subject to designation in accordance with Article 6510 of Directive 2009/73/EC recast Gas Directive as proposed in COM(2021) xxx .
Article 2 - Definitions
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(1) ‘regulatory asset base’ means all network assets of a network operator used for the provision of regulated network services that are taken into account when calculating network related services revenue.
715/2009 (adapted)
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(2) (1)‘transmission’ means the transport of natural gas through a network, which mainly contains high-pressure pipelines, other than an upstream pipeline network and other than the part of high-pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers, but not including supply;
(3) (2)‘transport contract’ means a contract which the transmission system operator or hydrogen network operator has concluded with a network user with a view to carrying out transport services for gases transmission;
(4) (3)‘capacity’ means the maximum flow, expressed in normal cubic meters per time unit or in energy unit per time unit, to which the network user is entitled in accordance with the provisions of the transport contract;
(5) (4)‘unused capacity’ means firm capacity which a network user has acquired under a transport contract but which that user has not nominated by the deadline specified in the contract;
(6) (5)‘congestion management’ means management of the capacity portfolio of the transmission system operator with a view to optimal and maximum use of the technical capacity and the timely detection of future congestion and saturation points;
(7) (6)‘secondary market’ means the market of the capacity traded otherwise than on the primary market;
(8) (7)‘nomination’ means the prior reporting by the network user to the transmission system operator of the actual flow that the network user wishes to inject into or withdraw from the system;
(9) (8)‘re-nomination’ means the subsequent reporting of a corrected nomination;
(10) (9)‘system integrity’ means any situation in respect of a transmission network including necessary transmission facilities in which the pressure and the quality of the natural gas or hydrogen remain within the minimum and maximum limits laid down by the transmission system operator, so that the transport transmission of natural gas or hydrogen is guaranteed from a technical standpoint;
(11) (10)‘balancing period’ means the period within which the off-take of an amount of gases natural gas, expressed in units of energy, must be offset by every network user by means of the injection of the same amount of gases natural gas into the transmission network in accordance with the transport contract or the network code;
(12) (11)‘network user’ means a customer or a potential customer of a transmission system operator, and transmission system operators themselves in so far as it is necessary for them to carry out their functions in relation to transport of natural gas and hydrogen transmission;
(13) (12)‘interruptible services’ means services offered by the transmission system operator or hydrogen network operator in relation to interruptible capacity;
(14) (13)‘interruptible capacity’ means gas transmission capacity that may be interrupted by the transmission system operator or hydrogen network operator in accordance with the conditions stipulated in the transport contract;
(15) (14)‘long-term services’ means services offered by the transmission system operator or hydrogen network operator with a duration of one year or more;
(16) (15)‘short-term services’ means services offered by the transmission system operator or hydrogen network operator with a duration of less than one year;
(17) (16)‘firm capacity’ means gas transmission capacity contractually guaranteed as uninterruptible by the transmission system operator or hydrogen network operator ;
(18) (17)‘firm services’ mean services offered by the transmission system operator or hydrogen network operator in relation to firm capacity;
(19) (18)‘technical capacity’ means the maximum firm capacity that can be offered the transmission system operator can offer to the network users, taking account of system integrity and the operational requirements of the transmission system or hydrogen network;
(20) (19)‘contracted capacity’ means capacity that the transmission system operator has been allocated to a network user by means of a transport contract;
(21) (20)‘available capacity’ means the part of the technical capacity that is not allocated and is still available to the system at that moment;
(22) (21)‘contractual congestion’ means a situation where the level of firm capacity demand exceeds the technical capacity;
(23) (22)‘primary market’ means the market of the capacity traded directly by the transmission system operator or hydrogen network operator ;
(24) (23)‘physical congestion’ means a situation where the level of demand for actual deliveries exceeds the technical capacity at some point in time;
(25) (24)‘LNG facility capacity’ means capacity at an liquefied natural gas (LNG) terminal for the liquefaction of natural gas or the importation, offloading, ancillary services, temporary storage and re-gasification of LNG;
(26) (25)‘space’ means the volume of gas which a user of a storage facility is entitled to use for the storage of gas;
(27) (26)‘deliverability’ means the rate at which the storage facility user is entitled to withdraw gas from the storage facility;
(28) (27)‘injectability’ means the rate at which the storage facility user is entitled to inject gas into the storage facility;
(29) (28)‘storage capacity’ means any combination of space, injectability and deliverability;.;
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(30) ‘entry-exit system’ means the aggregation of all transmission and distribution systems or all hydrogen networks to which one specific balancing regime applies;
(31) ‘balancing zone’ means an entry-exit system to which a specific balancing regime is applicable;
(32) ‘virtual trading point’ means a non-physical commercial point within an entry-exit system where gases are exchanged between a seller and a buyer without the need to book transmission or distribution capacity;
(33) ‘entry point’ means a point subject to booking procedures by network users or producers providing access to an entry-exit system;
(34) ‘exit point’ means a point subject to booking procedures by network users or final customers enabling gas flows out of the entry exit system;
(35) ‘conditional capacity’ means firm capacity that entails transparent and predefined conditions for either providing access from and to the virtual trading point or limited allocability;
(36) ‘allocability’ means the discretionary combination of any entry capacity with any exit capacity or vice versa;
(37) ‘allowed revenue’ means the sum of transmission services revenue and non-transmission services revenue for the provision of services by the transmission system operator for a specific time period within a given regulatory period which such transmission system operator is entitled to obtain under a non-price cap regime and which is set in accordance with Article 75(6)(a) of Directive 2009/73/EC;
(38) ‘new infrastructure’ means an infrastructure not completed by 4 August 2003.
715/2009 (adapted)
2. Without prejudice to the definitions in paragraph 1 of this Article, the definitions contained in Article 2 of Directive 2009/73/EC recast Gas Directive as proposed in COM(2021) xxx , which are relevant for the application of this Regulation, also apply, with the exception of the definition of transmission in point 3 of that Article.
The definitions in points 43 to 2423 of paragraph 1 of this Article in relation to transmission apply by analogy in relation to storage and LNG facilities.
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CHAPTER II
GENERAL RULES APPLICABLE TO THE NATURAL GAS AND HYDROGEN SYSTEMS
Section 1
General rules for the organisation of the markets and infrastructure access
Article 3 - General principles
(a)prices for gases shall be formed on the basis of demand and supply;
(b)transmission and distribution system operators shall cooperate with each other to provide network users with the freedom to book entry and exit capacity independently. Gas shall be transported through the entry-exit system instead of along contractual paths;
(c)tariffs charged at the entry and exit points shall be structured in such a way as to contribute to market integration, enhancing security of supply and promoting the interconnection between gas networks;
(d)undertakings active in the same entry-exit system shall exchange gas at the virtual trading point;
(e)network users shall be responsible to balance their balancing portfolios in order to minimise the need for transmission system operators to undertake balancing actions;
(f)balancing actions shall be performed on the basis of standardized products and conducted on a trading platform;
(g)market rules shall avoid actions which prevent price formation on the basis of demand and supply for gases;
(h)market rules shall foster the emergence and functioning of liquid trading for gases, fostering price formation and price transparency;
(i)market rules shall enable the decarbonisation of the natural gas and hydrogen systems, including by enabling the integration into the market of gases of gas from renewable energy sources and by providing incentives for energy efficiency;
(j)market rules shall deliver appropriate investment incentives, in particular for long-term investments in a decarbonised and sustainable gas system, for energy storage, energy efficiency and demand response to meet market needs, and shall facilitate fair competition and security of supply;
(k)barriers to cross-border gas flows, if existing, between entry-exit systems shall be removed;
(l)market rules shall facilitate regional cooperation and integration.
Article 4 - Separation of regulated asset bases
(a)services revenues obtained from the provision of specific regulated services can only be used to recover the capital and operational expenditures related the assets included in the regulated assets base on which the regulated services were provided;
(b)when assets are transferred to a different regulated asset base, their value will be established. The value set for the transferred asset is subject to an audit and approval by the competent regulatory authority. The value established will be such that cross-subsidies do not occur.
2. A Member State may allow financial transfers between regulated services that are separate as meant in in the first paragraph, provided that:
(a)all revenues needed for the financial transfer are collected as a dedicated charge;
(b)the dedicated charge is collected only from exit points to final customers located within the same Member States as the beneficiary of the financial transfer;
(c)the dedicated charge and financial transfer or the methodologies underlying their calculation are approved prior to their entry into force by the regulatory authority referred to in Article 70;
(d)the approved dedicated charge and financial transfer and the methodologies, where methodologies are approved are published.
3. The regulatory authority may only approve a financial transfer and dedicated charge referred to in paragraph 2, provided that:
(a)network access tariffs are charged to users of the regulated asset base that benefits from a financial transfer;
(b)the sum of financial transfers and service revenues collected through network access tariffs cannot be larger than the allowed revenues;
(c)a financial transfer is approved for a limited period in time and can never be longer than one third of the depreciation period of the infrastructure concerned].
4. By [date of adoption =1 year] ACER shall issue recommendations to transmission or network operators and regulatory authorities on the methodologies for:
(a)the determination of the value of the assets that are transferred to another regulated asset base and the destination of any profits and losses that may occur as a result;
(b)the calculation of the size and maximum duration of the financial transfer and dedicated charge;
(c)the criteria to allocate contributions to the dedicated charge among final consumers connected the regulated asset base.
ACER shall update the recommendations at least once every two years
715/2009 (adapted)
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Article 514 - Third-party access services concerning transmission system operators
1. Transmission system operators shall:(a)ensure that they offer capacity and services on a non-discriminatory basis to all network users;
(b)provide both firm and interruptible capacity third-party access services. The price of interruptible capacity shall reflect the probability of interruption;
(c)offer to network users both long and short-term capacity services.
In regard to point (a) of the first subparagraph, where a transmission system operator offers the same service to different customers, it shall do so under equivalent contractual terms and conditions, either using harmonised transport contracts or a common network code approved by the competent authority in accordance with the procedure laid down in Article 7241 or 73 of Directive 2009/73/EC recast Gas Directive as proposed in COM(2021) xxx .
2. Transport contracts signed with non-standard start dates or with a shorter duration than a standard annual transport contract shall not result in arbitrarily higher or lower tariffs that do not reflect the market value of the service, in accordance with the principles laid down in Article 1513(1).
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3. Where two or more interconnection points connect the same two adjacent entry-exit systems, the adjacent transmission system operators concerned shall offer the available capacities at the interconnection points at one virtual interconnection point. Any contracted capacity at the interconnection points, regardless of the date of its conclusion, shall be transferred to the virtual interconnection point.
A virtual interconnection point shall be established only if the following conditions are met:
(a)the total technical capacity at the virtual interconnection points shall be equal to or higher than the sum of the technical capacities at each of the interconnection points contributing to the virtual interconnection points;
(b)the virtual interconnection point facilitates the economic and efficient use of the system including but not limited to rules set out in Article 9 and 10 of this Regulation.
715/2009
43. Where appropriate, third-party access services may be granted subject to appropriate guarantees from network users with respect to the creditworthiness of such users. Such guarantees shall not constitute undue market-entry barriers and shall be non-discriminatory, transparent and proportionate.
2009/73/EC Article 32 paragraph 2
52. Transmission system operators shall, if necessary for the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.
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Article 6 - Third-party access services concerning hydrogen network operators
2. The maximum capacity of a hydrogen network shall be made available to market participants, taking into account system integrity and efficient network operation.
3. The maximum duration for capacity contracts shall be 20 years for infrastructure completed by [date of entry into force] and 15 years for infrastructure completed after this date. Regulatory authorities shall have the right to impose shorter maximum durations if necessary to ensure market functioning, to safeguard competition and to ensure future cross-border integration.
4. Hydrogen network operators shall implement and publish non-discriminatory and transparent congestion-management procedures, which also facilitate cross-border exchanges in hydrogen on a non-discriminatory basis.
5. Hydrogen network operators shall regularly assess market demand for new investment, taking into account security of supply and the efficiency of the final hydrogen uses.
6. As of 1 January 2031, hydrogen networks shall be organised as entry-exit systems.
7. As of 1 january 2031, Article 15 shall apply also to tariffs for access to hydrogen networks. No tariffs shall be charged pursuant to Article 15for access to hydrogen networks at interconnection points between Member States. Where a Member State decides to apply regulated third party access to hydrogen networks in accordance with Article 31 of [recast Gas Directive] before 1 January 2031, paragraph 1 of Article 15 shall be applicable to access tariff to hydrogen networks in that Member State.
8. As of 1 January 2031, hydrogen network operators shall comply with the requirements on transmission system operators pursuant to Articles 5, 9 and 12 when offering their services, and publish tariffs for each network point on an online platform operated by the ENNOH. Until a network code on capacity allocation for hydrogen networks has been adopted pursuant to Article 54(2), point (d) and has entered into force, such publication can occur via links to the publication of tariffs on websites of hydrogen network operators.
715/2009 (adapted)
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Article 715 - Third-party access services concerning natural gas storage , hydrogen terminals and LNG facilities and hydrogen storage facilities
1. Operators of LNG facilities and hydrogen terminals, hydrogen storage facility operators as well as natural gas and storage system operators shall:(a)offer services on a non-discriminatory basis to all network users that accommodate market demand; in particular, where an operator of LNG facilities or a hydrogen terminals, hydrogen storage facility or natural gas storage system operator offers the same service to different customers, it shall do so under equivalent contractual terms and conditions;
(b)offer services that are compatible with the use of the interconnected natural gas and hydrogen transport systems and facilitate access through cooperation with the transmission system operator or hydrogen network operator ; and
(c)make relevant information public, in particular data on the use and availability of services, in a time-frame compatible with the LNG or storage facility users' reasonable commercial needs of users of LNG or storage facilities, hydrogen terminals or hydrogen storage facilities , subject to the monitoring of such publication by the national regulatory authority.
2. Each storage system operator shall:
(a)provide both firm and interruptible third-party access services; the price of interruptible capacity shall reflect the probability of interruption;
(b)offer to storage facility users both long and short-term services; and
(c)offer to storage facility users both bundled and unbundled services of storage space, injectability and deliverability.
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3. Each LNG system operator shall offer to LNG facility users both bundled and unbundled services, within the LNG facility depending on the needs expressed by LNG facility users.
715/2009
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43. LNG and natural gas storage facility contracts shall not result in arbitrarily higher tariffs in cases in which they are signed:
(a)outside a natural gas year with non-standard start dates; or
(b)with a shorter duration than a standard LNG and storage facility contract on an annual basis.
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Hydrogen storage facility and hydrogen terminal contracts with a shorter duration than a standard LNG and storage facility contract on an annual basis shall not result in arbitrarily higher tariffs.
715/2009
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54. Where appropriate, third-party access services may be granted subject to appropriate guarantees from network users with respect to the creditworthiness of such users. Such guarantees shall not constitute undue market-entry barriers and shall be non-discriminatory, transparent and proportionate.
65. Contractual limits on the required minimum size of LNG facility or hydrogen terminal capacity and natural gas or hydrogen storage capacity shall be justified on the basis of technical constrains and shall permit smaller storage users to gain access to storage services.
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Article 8 - Market assessment for renewable and low carbon gases by LNG and storage system operators
715/2009
Article 916 - Principles of capacity-allocation mechanisms and congestion-management procedures concerning transmission system operators
1. The maximum capacity at all relevant points referred to in Article 3018 (3) shall be made available to market participants, taking into account system integrity and efficient network operation.2. The transmission system operator shall implement and publish non-discriminatory and transparent capacity-allocation mechanisms, which shall:
(a)provide appropriate economic signals for the efficient and maximum use of technical capacity, facilitate investment in new infrastructure and facilitate cross-border exchanges in natural gas;
(b)be compatible with the market mechanisms including spot markets and trading hubs, while being flexible and capable of adapting to evolving market circumstances; and
(c)be compatible with the network access systems of the Member States.
3. The transmission system operator shall implement and publish non-discriminatory and transparent congestion-management procedures which facilitate cross-border exchanges in natural gas on a non-discriminatory basis and which shall be based on the following principles:
(a)in the event of contractual congestion, the transmission system operator shall offer unused capacity on the primary market at least on a day-ahead and interruptible basis; and
(b)network users who wish to re-sell or sublet their unused contracted capacity on the secondary market shall be entitled to do so.
In regard As regards to point (b) of the first subparagraph, point (a), a Member State may require notification or information of the transmission system operator by network users.
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4. Transmission system operators shall regularly assess market demand for new investment taking into account the joint scenario as developed for the integrated network development plan based on Article 51 of [recast Gas Directive as proposed in COM(2021) xxx] as well as security of supply.
715/2009 (adapted)
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4. In the event that physical congestion exists, non-discriminatory, transparent capacity-allocation mechanisms shall be applied by the transmission system operator or, as appropriate, by the regulatory authorities.
5. Transmission system operators shall regularly assess market demand for new investment. When planning new investments, transmission system operators shall assess market demand and take into account security of supply.
Article 1017
Principles of capacity-allocation mechanisms and congestion-management procedures concerning natural gas storage , hydrogen terminals, hydrogen storage facilities and LNG facilities1. The maximum capacity of a natural gas storage and LNG or hydrogen storage facility as well as of hydrogen terminals capacity shall be made available to market participants, taking into account system integrity and operation.
2. LNG and hydrogen storage facilities as well as hydrogen terminal and natural gas storage system operators shall implement and publish non-discriminatory and transparent capacity-allocation mechanisms which shall:
(a)provide appropriate economic signals for the efficient and maximum use of capacity and facilitate investment in new infrastructure;
(b)be compatible with the market mechanism including spot markets and trading hubs, while being flexible and capable of adapting to evolving market circumstances; and
(c)be compatible with the connected network access systems.
3. Contracts for LNG terminals, hydrogen terminals, and hydrogen and natural gas and storage facilities facility contracts shall include measures to prevent capacity-hoarding, by taking into account the following principles, which shall apply in cases of contractual congestion:
(a)the system operator must shall offer unused LNG facility , hydrogen terminal and storage capacity on the primary market without delay; for storage facilities this must shall be at least on a day-ahead and interruptible basis;
(b)LNG facility, hydrogen terminal and storage facility users who wish to re-sell their contracted capacity on the secondary market must shall be entitled to do so.; LNG facility, hydrogen terminal and storage system operators, individually or regionally, shall ensure a transparent and non-discriminatory booking platform for LNG facility, hydrogen terminal and storage facility users to re-sell their contracted capacity on the secondary market no later than 18 months after [entry into force of this Regulation].
Article 1122 - Trading of capacity rights
Each transmission, storage, and LNG and hydrogen system operator shall take reasonable steps to allow capacity rights to be freely tradable and to facilitate such trade in a transparent and non-discriminatory manner. Every such operator shall develop harmonised contracts and procedures for transport, LNG facility, hydrogen terminals and natural gas and hydrogen storage facilities contracts and procedures on the primary market to facilitate secondary trade of capacity and shall recognise the transfer of primary capacity rights where notified by system users.The harmonised transport, LNG facility and storage contracts and procedures shall be notified to the regulatory authorities.
715/2009 (adapted)
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Article 1221 - Balancing rules and imbalance charges
1. Balancing rules shall be designed in a fair, non-discriminatory and transparent manner and shall be based on objective criteria. Balancing rules shall reflect genuine system needs taking into account the resources available to the transmission system operator. Balancing rules shall be market-based.2. In order to enable network users to take timely corrective action, the transmission system operator shall provide sufficient, well-timed and reliable on-line based information on the balancing status of network users.
The information provided shall reflect the level of information available to the transmission system operator and the settlement period for which imbalance charges are calculated.
No charge shall be made for the provision of information under this paragraph.
3. Imbalance charges shall be cost-reflective to the extent possible, whilst providing appropriate incentives on network users to balance their input and off-take of gas. They shall avoid cross-subsidisation between network users and shall not hamper the entry of new market entrants.
Any calculation methodology for imbalance charges as well as the final values tariffs shall be made public by the competent authorities or the transmission system operator, as appropriate.
4. Member States shall ensure that transmission system operators endeavour to harmonise balancing regimes and streamline structures and levels of balancing charges in order to facilitate gas trade carried out at the virtual trading point .
Article 133 - Certification of transmission system operators and hydrogen network operators
1. The Commission shall examine any notification of a decision on the certification of a transmission system operator or a hydrogen network operator as laid down in Article 6510(6) of [the recast gas Directive as proposed in COM(2021)xxx] Directive 2009/73/EC as soon as it is received. Within two months of the day of receipt of such notification, the Commission shall deliver its opinion to the relevant national regulatory authority in regard to its compatibility with Article 6510(2) or Article 6611, and Article 549 of Directive 2009/73/EC Recast Gas Directive for transmission system operators, and Article 65 of that Directive for hydrogen network operators .When preparing the opinion referred to in the first subparagraph, the Commission may request ACER the Agency to provide its opinion on the national regulatory authority's decision. In such a case, the two-month period referred to in the first subparagraph shall be extended by two further months.
In the absence of an opinion by the Commission within the periods referred to in the first and second subparagraphs, the Commission shall be deemed not to raise objections against the regulatory authority's decision.
2. Within two months of receiving an opinion of the Commission, the national regulatory authority shall adopt its final decision regarding the certification of the transmission system operator or hydrogen network operator , taking the utmost account of that opinion. The regulatory authority's decision and the Commission's opinion shall be published together.
3. At any time during the procedure regulatory authorities and/or the Commission may request from a transmission system operator, hydrogen network operator and/or an undertaking performing any of the functions of production or supply any information relevant to the fulfilment of their tasks under this Article.
4. Regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.
5. The Commission may adopt is empowered to adopt delegated acts in accordance with Article 63 to provide gGuidelines setting out the details of the procedure to be followed for the application of paragraphs 1 and 2 of this Article. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 28(2).
6. Where the Commission has received notification of the certification of a transmission system operator under Article 549(10) of Directive 2009/73/EC recast Gas Directive as proposed in COM(2021) xxx , the Commission shall take a decision relating to certification. The regulatory authority shall comply with the Commission decision.
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Article 14 - Cooperation of transmission system operators
1. Transmission system operators shall cooperate with other transmission system and infrastructure operators in coordinating the maintenance of their respective networks in order to minimise any disruption of transmission services to network users and transmission system operators in other areas.2. Transmission system operators shall cooperate with each other as well as with other infrastructure operators with the objective to maximise technical capacity within the entry-exit system and minimize the use of fuel gas to the extent possible.
Section 2
Network access
715/2009 (adapted)
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Article 1513 - Tariffs for access to networks
1. Tariffs, or the methodologies used to calculate them, applied by the transmission system operators and approved by the regulatory authorities pursuant to Article 7241(67) of Directive 2009/73/EC Recast Gas Directive , as well as tariffs published pursuant to Article 2732(1) of that Directive, shall be transparent, take into account the need for system integrity and its improvement and reflect the actual costs incurred, insofar as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, whilst including an appropriate return on investments and, where appropriate, taking account of the benchmarking of tariffs by the regulatory authorities. Tariffs, or the methodologies used to calculate them, shall be applied in a non discriminatory manner.Member States may decide that tTariffs may also be determined through market-based arrangements, such as auctions, provided that such arrangements and the revenues arising therefrom are approved by the regulatory authority.
Tariffs, or the methodologies used to calculate them, shall facilitate efficient gas trade and competition, while at the same time avoiding cross-subsidies between network users and providing incentives for investment and maintaining or creating interoperability for transmission networks.
Tariffs for network users shall be non-discriminatory and set separately for every entry point into or exit point out of the transmission system. Cost-allocation mechanisms and rate setting methodology regarding entry points and exit points shall be approved by the national regulatory authorities. By 3 Septemebr 2011, the Member States shall ensure that, after a transitional period, network charges shall not be calculated on the basis of contract paths.
2. Tariffs for network access shall neither restrict market liquidity nor distort trade across borders of different transmission systems. Where differences in tariff structures or balancing mechanisms would hamper trade across transmission systems, and notwithstanding Article 7241(67) of Directive 2009/73/EC Recast Gas Directive , transmission system operators shall, in close cooperation with the relevant national authorities, actively pursue convergence of tariff structures and charging principles, including in relation to balancing.
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Article 16 - Tariff discounts for renewable and low carbon gases
1. When setting tariffs, a discount for renewable and low carbon gases shall be applied to:(a)entry points from renewable and low carbon production facilities. A discount of 75% shall be applied to the respective capacity-based tariffs for the purposes of scaling-up the injection of renewable and low-carbon gases;
(b)capacity-based transmission tariffs at entry points from and exit points to storage facilities, unless a storage facility is connected to more than one transmission or distribution network and used to compete with an interconnection point. Such a discount shall be set at a level of 75% in the Member States where the renewable and low carbon gas was first injected into system.
2. Regulatory authorities may set discount rates lower than those set in paragraph 1 of this Article provided that the discount is in line with the general tariff principles as set out in Article 15 and in particular the principle of cost-reflectiveness, taking into account a need for stable financial frameworks for existing investments where appropriate, and the advancement of the roll-out of renewable and low-carbon gases in the Member State concerned.
3. Details on the discounts granted in accordance with paragraph 1 may be set in the network code on tariff structures as referred to in Article 52(1), point (e).
4. The Commission shall re-examine the tariff reductions pursuant to paragraph 1 [5 years after entry into force of the Regulation]. It shall issue a report providing an overview of their implementation and assess whether the level of the reductions set in paragraph 1 is still adequate in view of the latest market developments. The Commission shall be empowered to adopt delegated acts in accordance with Article 63 in order to change the discount levels as set in paragraph 1.
5. As of 1 January in the year after the adoption, network users shall receive a discount of 100% on the regulated tariff from the transmission system operator at all interconnection points, including entry points from and exit points to third countries as well as entry points from LNG terminals for renewable and low-carbon gases, after providing the respective transmission system operator with a proof of sustainability, based on a valid sustainability certificate pursuant to Articles 29 and 30 of Directive (EU) 2018/2001 2001 of the European Parliament and of the Council 16 and registered in the Union database.
With regard to this discount:
(a)Transmission system operators shall be required to provide the discount only for the shortest possible route in terms of border crossings between the location of where the specific proof of sustainability declaration, based on the sustainability certificate, was first recorded in the Union database and where it has been cancelled as considered consumed. Any potential auction premium shall not be covered by the discount.
(b)Transmission system operators shall provide information on actual and expected volumes of renewable and low carbon gases and the effect of applying the tariff discount on their revenues towards the respective regulatory authority. Regulatory authorities shall monitor and assess the impact of the discount on tariff stability.
(c)Once the revenue of a transmission system operator from these specific tariffs is reduced by 10% as a result of applying the discount, the affected and all neighbouring transmission system operators are required to negotiate an inter transmission system operator compensation mechanism. The system operators concerned shall agree within 3 years. Where within that time period no agreement is reached, the involved regulatory authorities shall decide jointly on an appropriate inter transmission system operator compensation mechanism within 2 years. In absence of agreement among the regulatory authorities, Article 6 of ACER Regulation shall apply. Where the regulatory authorities have not been able to reach agreement within 2 years, or upon their joint request, ACER shall decide, in accordance with the second subparagraph of Article 6(10) of Regulation (EU) 2019/942.
(d)Further details required to implement the discount for renewable and low carbon gases, such as the calculation of the eligible capacity for which the discount applies and the required processes, shall be set in a network code established on the basis of Article 53 of this Regulation.
Article 17 - Revenues of gas transmission system operators
1. As of [1 year after transposition], the relevant regulatory authority shall ensure transparency on the methodologies, parameters and values used to determine allowed or target revenues of transmission system operators. The regulatory authority shall publish the information referred to in Annex I, or shall require the publication by the relevant transmission system operator. This information shall be made available in a user-friendly format, and to the extent possible, in one or more commonly understood languages.2. The costs of the transmission system operator shall be subject to an efficiency comparison between Union transmission system operators, be appropriately defined by ACER. ACER shall publish on [3 years after transposition] and every four years thereafter a study comparing the efficiency of Union transmission system operators’ costs. The relevant regulatory authorities and the transmission system operators shall provide ACER with all the data necessary for this comparison. The results of such comparison shall be taken into account by the relevant regulatory authorities, together with national circumstances, when periodically setting the allowed or target revenues of transmission system operators.
3. The relevant regulatory authorities shall assess the long-term evolution of transmission tariffs based on the expected changes in their allowed or target revenues and in gas demand until 2050. To perform this assessment the regulatory authority shall include the information of the strategy described in the national energy and climate plans of the respective Member State and the scenarios underpinning the integrated network development plan as developed in accordance with Article 51 of [recast Gas Directive as proposed in COM(2021)xxx].
Section 3
Transmission, storage, LNG and hydrogen terminal system operation
Article 18 - Firm capacity for renewable and low carbon gases to the transmission system
1. Transmission system operators shall ensure firm capacity for the access of production facilities of renewable and low carbon gases connected to their grid. For this purpose, transmission system operators shall develop in cooperation with the distribution system operators procedures and arrangements, including investments, to ensure reverse flow from distribution to transmission network.2. Paragraph 1 shall be without prejudice to the possibility for transmission system operators to develop alternatives to reverse flow investments, such as smart grid solutions or connection to other network operators. Firm access may only be limited to offer capacities subject to operational limitations, in order to ensure economic efficiency. The regulatory authority shall ensure that any limitations in firm capacity or operational limitations are introduced on the basis of transparent and non-discriminatory procedures and do not create undue barriers to market entry. Where the production facility bears the costs related to ensuring firm capacity, no limitation shall apply.
Article 19 - Cross-border coordination on gas quality
1. Transmission system operators shall cooperate to avoid restrictions to cross-border flows due to gas quality differences on interconnection points between Union Member States.2. Where a restriction to cross-border flow due to gas quality differences cannot be avoided by the concerned transmission system operators in their standard operations, they shall inform the concerned regulatory authorities without delay. The information shall include a description and justified reasoning for any steps already taken by the transmission system operators.
3. The concerned regulatory authorities shall jointly agree within six months whether to recognise the restriction.
4. Where the concerned regulatory authorities recognise the restriction, they shall request the concerned transmission system operators to perform, within 12 months from the recognition, the following actions in sequence:
(a)cooperate and develop technically feasible options, without changing the gas quality specifications, which may include flow commitments and gas treatment, in order to remove the recognised restriction;
(b)jointly carry out a cost-benefit analysis on the technically feasible options to define economically efficient solutions which shall specify the breakdown of costs and benefits among the categories of affected parties;
(c)produce an estimate of the implementation time for each potential option;
(d)conduct a public consultation on identified feasible solutions and take into consideration the results of the consultation;
(e)submit a joint proposal, based on the cost-benefit analysis and results of the public consultation, for a solution removing the recognised restriction, including the timeframe for its implementation, to their respective regulatory authorities for approval and to the other competent national authorities of each involved Member State for information.
5. Where the concerned transmission system operators do not reach an agreement on a solution, each transmission system operator shall inform its regulatory authority without delay.
6. The concerned regulatory authorities shall take a joint coordinated decision for removing the recognised restriction, taking into account the cost benefit analysis prepared by the concerned transmission system operators and the results of the public consultation within six months as set out in Article 6(10) of Regulation (EU) 2019/942.
7. The joint coordinated decision of the concerned regulatory authorities shall include a decision on the allocation of the investment costs to be borne by each transmission system operator for implementing the agreed solution, as well as their inclusion in tariffs, taking into account the economic, social and environmental costs and benefits of the solution in the concerned Member States.
8. ACER may make recommendations to the regulatory authorities on the details of such cost allocation decisions as referred to in paragraph 7.
9. Where the concerned regulatory authorities cannot reach an agreement as referred to in paragraph 3, ACER shall decide on the restriction, following the process set out in Article 6(10) of Regulation (EU) 2019/942. Where ACER recognises the restriction it shall request the concerned transmission system operators to perform, within 12 months, the actions referred to in paragraph 4 points (a) to (e) in sequence.
10. Where the relevant regulatory authorities cannot take a joint coordinated decisions as referred to in paragraphs 6 and 7, ACER shall decide on the solution to remove the recognised restriction and on the allocation of the investment costs to be borne by each transmission system operator for implementing the agreed solution, following the process set out in Article 6(10) of Regulation (EU) 2019/942.
11. Further details required to implement elements of this Article, including details on the cost benefit analysis, shall be set in a network code established on the basis of Article 53 of this Regulation.
Article 20 - Hydrogen blends at interconnection points between Union Member States in the natural gas system
1. Transmission system operators shall accept gas flows with a hydrogen content of up to 5% by volume at interconnection points between Union Member States in the natural gas system from 1 October 2025, subject to the procedure described in Article 19 of this Regulation.2. When the hydrogen content blended in the natural gas system exceeds 5% by volume, the process described in Article 19 of this Regulation shall not apply.
3. Member States shall not use hydrogen blending in the natural gas system to restrict cross-border gas flows.
715/2009 (adapted)
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Article 214 - European network of transmission system operators for gas
All transmission system operators shall cooperate at Union Community level through the European Network of Transmission System Operators for Gas (the ENTSO for Gas), in order to promote the completion and functioning of the internal market in natural gas and cross-border trade and to ensure the optimal management, coordinated operation and sound technical evolution of the natural gas transmission network.Article 225 - Establishment of the Organisation of the ENTSO for Gas
1. By 3 March 2011, Tthe transmission system operators for gas ENTSO shall submit to the Commission and to ACER the Agency the draft statutes, a list of members and draft rules of procedure, including the rules of procedures on the consultation of other stakeholders, of the ENTSO for Gas to be established in case of changes of those documents or upon a reasoned request of the Commission or ACER .2. Within four months of the day of the receipt, ACER the Agency, after formally consulting the organisations representing all stakeholders, in particular the system users including customers, shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure.
3. The Commission shall deliver an opinion on the draft statutes, list of members and draft rules of procedures taking into account the opinion of ACER the Agency provided for referred to in paragraph 2 and within three months of the day of the receipt of the opinion of ACER the Agency.
4. Within three months of the day of receipt of the Commission's opinion, the transmission system operators shall establish the ENTSO for Gas, shall adopt and publish its the revised statutes and rules of procedure of the ENTSO for Gas .
715/2009 (adapted)
Article 238 - Tasks of the ENTSO for Gas
1. The ENTSO for Gas shall elaborate network codes in the areas referred to in paragraph 6 of this Article upon a request addressed to it by the Commission in accordance with Article 53(9)6(6).2. The ENTSO for Gas may elaborate network codes in the areas set out in paragraph 6 with a view to achieving the objectives set out in Article 214 where those network codes do not relate to areas covered by a request addressed to it by the Commission. Those network codes shall be submitted to ACER the Agency for an opinion. That opinion shall be duly taken into account by the ENTSO for Gas.
3. The ENTSO for Gas shall adopt:
(a)common network operation tools to ensure coordination of network operation in normal and emergency conditions, including a common incidents classification scale, and research plans;
(b)a non-binding Community Union -wide ten-year network development plan (Community Union -wide network development plan), including a European supply adequacy outlook, every two years;
(c)recommendations relating to the coordination of technical cooperation between Community Union and third-country transmission system operators;
(d)an annual work programme;
(e)an annual report;
(f)annual summer and winter supply outlooks;. ; and
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(g)a gas quality monitoring report by 15 May 2024 at the latest and every two years afterwards, including developments of gas quality parameters, developments of the level and volume of hydrogen blended into the natural gas system, forecasts for the expected development of gas quality parameters and of the volume of hydrogen blended into the natural gas system, the impact of blending hydrogen on cross-border flows as well as information on cases related to differences in gas quality specifications or in specifications of blending levels and how such cases were settled.
(g)The gas quality monitoring report shall also cover the development for the areas listed in point (g) where as far as relevant for the distribution network, based on information provided by the entity of distribution system operators in the Union (‘EU DSO entity’).
715/2009
4. The European supply adequacy outlook referred to in point (b) of paragraph 3, point (b), shall cover the overall adequacy of the gas system to supply current and projected demands for gas for the next five-year period as well as for the period between five and 10 years from the date of that outlook. The European supply adequacy outlook shall build on national supply outlooks prepared by each individual transmission system operator.
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The Union-wide network development plan referred to in paragraph 3, point (b), shall include the modelling of the integrated network, including hydrogen networks, scenario development, a European supply adequacy outlook and an assessment of the resilience of the system.
715/2009
5. The annual work programme referred to in point (d) of paragraph 3, point (d), shall contain a list and description of the network codes to be prepared, a plan on coordination of operation of the network, and research and development activities, to be realised in that year, and an indicative calendar.
6. The network codes referred to in paragraphs 1 and 2 shall cover the following areas, taking into account, if appropriate, regional special characteristics:
(a)network security and reliability rules;
(b)network connection rules;
(c)third-party access rules;
(d)data exchange and settlement rules;
(e)interoperability rules;
(f)operational procedures in an emergency;
(g)capacity-allocation and congestion-management rules;
(h)rules for trading related to technical and operational provision of network access services and system balancing;
(i)transparency rules;
(j)balancing rules including network-related rules on nominations procedure, rules for imbalance charges and rules for operational balancing between transmission system operators' systems;
(k)rules regarding harmonised transmission tariff structures; and
(l)energy efficiency regarding gas networks;
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(m)cyber security regarding gas networks.
715/2009 (adapted)
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7. The network codes shall be developed for cross-border network issues and market integration issues and shall be without prejudice to the Member States' right to establish national network codes which do not affect cross-border trade.
8. The ENTSO for Gas shall monitor and analyse the implementation of the network codes and the Gguidelines adopted by the Commission in accordance with Article 53(13)6(11) or 56 , and their effect on the harmonisation of applicable rules aimed at facilitating market integration. The ENTSO for Gas shall report its findings to the Agency and shall include the results of the analysis in the annual report referred to in point (e) of paragraph 3, point (e), of this Article.
9. The ENTSO for Gas shall make available all information required by ACER the Agency to fulfil its tasks under Article 249(1).
10. 11. ACER the Agency shall review national ten-year network development plans to assess their consistency with the Community Union -wide network development plan. If ACER the Agency identifies inconsistencies between a national ten-year network development plan and the Community Union -wide network development plan, it shall recommend amending the national ten-year network development plan or the Community Union -wide network development plan as appropriate. If such national ten-year network development plan is elaborated in accordance with Article 5123 of Directive 2009/73/EC [recast Directive as proposed in COM(2021) xxx] , ACER the Agency shall recommend that the competent national regulatory authority amend the national ten-year network development plan in accordance with Article 5122(57) of that Directive and inform the Commission thereof.
11. 12.Upon request of the Commission, the ENTSO for Gas shall give its views to the Commission on the adoption of the Gguidelines as laid down in Article 5623.
Article 249 - Monitoring by ACER the Agency
1. ACER the Agency shall monitor the execution of the tasks referred to in Article 238(1), (2) and (3) of the ENTSO for Gas and report to the Commission.ACER the Agency shall monitor the implementation by the ENTSO for Gas of network codes elaborated under Article 238(2) and network codes which have been developed in accordance with Article 536 (1) to (1210) but which have not been adopted by the Commission under Article 536(1311). Where the ENTSO for Gas has failed to implement such network codes, ACER the Agency shall request the ENTSO for Gas to provide a duly reasoned explanation as to why it has failed to do so. ACER the Agency shall inform the Commission of that explanation and provide its opinion thereon.
ACER the Agency shall monitor and analyse the implementation of the network codes and the gGuidelines adopted by the Commission as laid down in Articles 526(111) , 53, 55 and 56 , and their effect on the harmonisation of applicable rules aimed at facilitating market integration as well as on non-discrimination, effective competition and the efficient functioning of the market, and report to the Commission.
2. The ENTSO for Gas shall submit the draft Community Union -wide network development plan, the draft annual work programme, including the information regarding the consultation process and the other documents referred to in Article 238 (3), to ACER the Agency for its opinion.
Within two months from the day of receipt, ACER the Agency shall provide a duly reasoned opinion as well as recommendations to the ENTSO for Gas and to the Commission where it considers that the draft annual work programme or the draft Community Union -wide network development plan submitted by the ENTSO for Gas do not contribute to non-discrimination, effective competition, the efficient functioning of the market or a sufficient level of cross-border interconnection open to third-party access.
Article 2524 - Regulatory authorities
When carrying out their responsibilities under this Regulation, the regulatory authorities shall ensure compliance with this Regulation and , the network codes and the Gguidelines adopted pursuant to Article 52 to 5623.Where appropriate, they shall cooperate with each other, with the Commission and ACER the Agency in compliance with Chapter VIII of Directive 2009/73/EC Recast Gas Directive .
Article 2610 - Consultations
1. While preparing the network codes, the draft Community Union -wide network development plan and the annual work programme referred to in Article 238(1), (2) and (3), the ENTSO for Gas shall conduct an extensive consultation process, at an early stage and in an open and transparent manner, involving all relevant market participants, and, in particular, the organisations representing all stakeholders, in accordance with the rules of procedure referred to in Article 225(1). That consultation shall also involve national regulatory authorities and other national authorities, supply and production undertakings, network users including customers, distribution system operators, including relevant industry associations, technical bodies and stakeholder platforms. It shall aim at identifying the views and proposals of all relevant parties during the decision-making process.2. All documents and minutes of meetings related to the consultations referred to in paragraph 1 shall be made public.
3. Before adopting the annual work programme and the network codes referred to in Article 238 (1), (2) and (3), the ENTSO for Gas shall indicate how the observations received during the consultation have been taken into consideration. It shall provide reasons where observations have not been taken into account.
347/2013 Art. 22.2 (adapted)
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Article 2711 - Costs
The costs related to the activities of the ENTSO for Gas referred to in Articles 214 to 23to 12 , 52 and 53 of this Regulation, and in Article 11 of Regulation (EU) No 347/2013 of the European Parliament and of the Council 17 shall be borne by the transmission system operators and shall be taken into account in the calculation of tariffs. Regulatory authorities shall approve those costs only if they are reasonable and appropriate.715/2009 (adapted)
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Article 2812 - Regional cooperation of transmission system operators
1. Transmission system operators shall establish regional cooperation within the ENTSO for Gas to contribute to the tasks referred to in Article 238 (1), (2) and (3). In particular, they shall publish a regional investment plan every two years, and may take investment decisions based on that regional investment plan.2. Transmission system operators shall promote operational arrangements in order to ensure the optimum management of the network and shall promote the development of energy exchanges, the coordinated allocation of cross-border capacity through non-discriminatory market-based solutions, paying due attention to the specific merits of implicit auctions for short-term allocations and the integration of balancing mechanisms.
3. For the purposes of achieving the goals set in paragraphs 1 and 2, the Commission is empowered to adopt delegated acts in accordance with Article 63 concerning the definition of the geographical area covered by each regional cooperation structure may be defined by the Commission, taking into account existing regional cooperation structures. Each Member State shall be allowed to promote cooperation in more than one geographical area. The measure referred to in the first sentence, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 28(2).
For that purpose, the Commission shall consult ACER the Agency and the ENTSO for Gas.
Article 29 - Ten-years network development plan 715/2009 (adapted)
The ENTSO for Gas shall adopt and publish a the Community Union -wide network development plan referred to in Article 23 point (b) of paragraph 3, point (b), every two years. The Community Union -wide network development plan shall include the modelling of the integrated network, scenario development, a European supply adequacy outlook and an assessment of the resilience of the system.The Community Union -wide network development plan shall, in particular:
347/2013 Art. 22.1
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(a)build on national investment plans and Chapter IV of Regulation (EU) 347/2013 , taking into account regional investment plans as referred to in Article 12(1), and, if appropriate, Union aspects of network planning as set out in Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure 18 ; it shall be the subject to a cost-benefit analysis using the methodology established as set out in Article 11 of that Regulation;
715/2009 Art. (adapted)
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(b)regarding cross-border interconnections, also build on the reasonable needs of different network users and integrate long-term commitments from investors referred to in Articles 5614 and 5222 of Directive 2009/73/EC [recast Gas Directive as proposed in COM(2021)xxx] ; and
(c)identify investment gaps, notably with respect to cross-border capacities.
In regard to point (c) of the second subparagraph, point (c), a review of barriers to the increase of cross-border capacity of the network arising from different approval procedures or practices may be annexed to the Community Union -wide network development plan.
Article 3018 - Transparency requirements concerning transmission system operators
1. The transmission system operator shall make public detailed information regarding the capacity and services it offers and the relevant conditions applied, together with the technical information necessary for network users to gain effective network access.2. In order to ensure transparent, objective and non-discriminatory tariffs and facilitate efficient utilisation of the gas network, transmission system operators or relevant national authorities shall publish reasonably and sufficiently detailed information on tariff derivation, methodology and structure.
3. For the services provided, each transmission system operator shall make public information on technical, contracted and available capacities on a numerical basis for all relevant points including entry and exit points on a regular and rolling basis and in a user-friendly and standardised manner as detailed in Annex I .
4. The relevant points of a transmission system on which the information is to be made public shall be approved by the competent authorities after consultation with network users.
5. The transmission system operator shall always disclose the information required by this Regulation in a meaningful, quantifiably clear and easily accessible manner and on a non-discriminatory basis.
6. The transmission system operator shall make public ex-ante and ex-post supply and demand information, based on nominations and allocations , forecasts and realised flows in and out of the system. The national regulatory authority shall ensure that all such information is made public. The level of detail of the information that is made public shall reflect the information available to the transmission system operator.
The transmission system operator shall make public measures taken as well as costs incurred and revenue generated to balance the system.
The market participants concerned shall provide the transmission system operator with the data referred to in this Article.
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7. The transmission system operators shall make public detailed information regarding the quality of the gases transported in its network, which might affect network users, based on Articles 16 and 17 of Commission Regulation (EU) 2015/703.
715/2009 (adapted)
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Article 3119 - Transparency requirements concerning natural gas and hydrogen storage facilities, and LNG facilities and hydrogen terminals
1. LNG and hydrogen storage facilities as well as (natural gas) storage system operators and hydrogen terminal operators shall make public detailed information regarding the all services it they offers and the relevant conditions applied, together with the technical information necessary for LNG and hydrogen storage facility and hydrogen terminal users to gain effective access to the LNG and hydrogen storage facilities and hydrogen terminals . Regulatory authorities may request those operators to make public any additional relevant information for system users.new
2. LNG system operators shall provide user-friendly instruments for calculating tariffs for the services available.
715/2009
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3. 2. For the services provided, LNG and hydrogen storage facilities, as well as natural gas storage system operators shall make public information on contracted and available storage and LNG and hydrogen storage facility as well as hydrogen terminal capacities on a numerical basis on a regular and rolling basis and in a user-friendly standardised manner.
4. 3. LNG and hydrogen storage facilities, as well as natural gas storage system operators shall always disclose the information required by this Regulation in a meaningful, quantifiably clear and easily accessible way and on a non-discriminatory basis.
5. 4. LNG and storage system operators and operators of hydrogen storage facilities and hydrogen terminals shall make public the amount of gas in each storage or LNG facility and hydrogen terminal , or group of storage facilities if that corresponds to the way in which the access is offered to system users, inflows and outflows, and the available natural gas and hydrogen storage, and LNG facility and hydrogen terminal capacities, including for those facilities exempted from third-party access. That information shall also be communicated to the transmission system operator or to the hydrogen network operator for hydrogen storage and terminals, which shall make it public on an aggregated level per system or subsystem defined by the relevant points. The information shall be updated at least daily.
In cases in which a natural gas or hydrogen storage system user is the only user of a natural gas or hydrogen storage facility, the natural gas or hydrogen storage system user may submit to the national regulatory authority a reasoned request for confidential treatment of the data referred to in the first subparagraph. Where the national regulatory authority comes to the conclusion that such a request is justified, taking into account, in particular, the need to balance the interest of legitimate protection of business secrets, the disclosure of which would negatively affect the overall commercial strategy of the storage user, with the objective of creating a competitive internal gas market, it may allow the storage system operator not to make public the data referred to in the first subparagraph, for a duration of up to one year.
The second subparagraph shall apply without prejudice to the obligations of communication to and publication by the transmission system operator referred to in the first subparagraph, unless the aggregated data are identical to the individual natural gas or hydrogen storage system data for which the national regulatory authority has approved non-publication.
6. 5. In order to ensure transparent, objective and non-discriminatory tariffs and facilitate efficient utilisation of the infrastructures, the LNG and natural gas or hydrogen storage facility operators or relevant regulatory authorities shall make public sufficiently detailed information on tariff derivation, the methodologies and the structure of tariffs for infrastructure under regulated third-party access.; LNG facilities that have been granted an exemption, pursuant to Article 22 of Directive 2003/55/EC and Article 36 of Directive 2009/73/EC as well as Article 60 of this Regulation, and natural gas storage operators under the negotiated third party access regime shall make public tariffs for infrastructure in order to ensure a sufficient degree of transparency.
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LNG and storage system operators shall establish respectively one single European platform within 18 months from [date of entry into force of the Regulation] to publish in a transparent and user-friendly manner the information required in this Article.
715/2009
Article 3220 - Record keeping by system operators
Transmission system operators, storage system operators and LNG system operators shall keep at the disposal of the national authorities, including the national regulatory authority, the national competition authority and the Commission, all information referred to in Articles 3018 and 3119, and in Part 3 of Annex I for a period of five years.new
Section 4
Distribution system operation
Article 33 - Firm capacity for renewable and low carbon gases to the distribution system
1. Distribution system operators shall ensure firm capacity for the access of the production facilities renewable and low carbon gases connected to their grid. To this extent, distribution system operators shall develop in cooperation with the transmission system operators procedures and arrangements, including investments, to ensure reverse flow from distribution to transmission network.2. Paragraph 1 shall be without prejudice to the possibility for distribution system operators to develop alternatives to reverse flow investments, such as smart grid solutions or connection to other network operators. Firm access may only be limited to offer capacities subject to operational limitations, in order to ensure economic efficiency. The regulatory authority shall ensure that any limitations in firm capacity or operational limitations are introduced on the basis of transparent and non-discriminatory procedures and do not create undue barriers to market entry. Where the production facility bears the costs related to ensuring firm capacity, no limitation shall apply.
Article 34 - Cooperation between distribution system operators and transmission system operators
Distribution system operators shall cooperate with other distribution system operators and transmission system operators to coordinate maintenance, system development, new connections and the operation of the system to ensure system integrity and with a view to maximise capacity and minimise the use of fuel gas.Article 35 - Transparency requirements concerning distribution system operators
Where distribution system operators are responsible for gas quality management in their networks, they shall make public detailed information regarding the quality of the gases transported in their networks, which might affect network users, based on Articles 16 and 17 of Commission Regulation (EU) 2015/703.Article 36 - European entity for distribution system operators
Distribution system operators operating a natural gas system shall cooperate at Union level through the European entity for distribution system operators (‘EU DSO entity’) set up in accordance with Articles 52 to 57 of Regulation (EU) 2019/943 of the European Parliament and of the Council 19 , in order to promote the completion and functioning of the internal market for natural gas and to promote optimal management and a coordinated operation of distribution and transmission systems.Registered members may participate in the EU DSO entity directly or be represented by a national association designated by a Member State or by a Union-level association.
The costs related to the activities of the EU DSO entity shall be borne by the distribution system operators that are registered members and shall be taken into account in the calculation of tariffs. Regulatory authorities shall only approve costs that are reasonable and proportionate.
Article 37 - Change to the principal rules and procedures for the EU DSO entity
1. The rules and procedures on the participation of distribution system operators in the EU DSO entity pursuant to Article 54 of Regulation (EU) 2019/942 shall also apply to distribution system operators operating a natural gas system.2. The Strategic Advisory Group pursuant to Article 54(2), point (f), of Regulation (EU) 2019/942 shall also consist of representatives of associations representing European distribution system operators solely operating a natural gas system.
3. By [one year after entry into force] the EU DSO entity shall submit to the Commission and to ACER draft updated statutes, including a code of conduct, a list of registered members, draft updated rules of procedure, including rules of procedures on the consultation with the ENTSO for Electricity, the ENTSO for Gas and other stakeholders, and draft updated financing rules.
The draft updated rules of procedure of the EU DSO entity shall ensure balanced representation of all participating distribution system operators, including those solely owning or operating natural gas systems.
4. Within four months of receipt of the documents pursuant to paragraph 3, ACER shall provide the Commission with its opinion, after consulting organisations representing all stakeholders, in particular distribution system users.
5. Within three months of receipt of ACER's opinion, the Commission shall deliver an opinion on documents provided pursuant to paragraph 3, taking into account ACER's opinion as provided for in paragraph 3.
6. Within three months of receipt of the Commission's positive opinion, the distribution system operators shall adopt and publish its updated statutes, rules of procedure and financing rules.
7. The documents referred to in paragraph 3 shall be submitted to the Commission and to ACER where there are changes thereto or upon the reasoned request of either of them. The Commission and ACER may deliver an opinion in accordance with the process set out in paragraphs 3, 4 and 5.
Article 38 - Additional tasks of the EU DSO entity
1. The EU DSO entity shall exercise the tasks listed in Article 55(1) points (a) to (e) of Regulation (EU) 2019/943 and undertake the activities listed in Article 55(2) points (c) to (e) of that Regulation also as regards those distribution networks which are part of the natural gas system.2. In addition to the tasks listed in Article 55(1) of Regulation (EU) 2019/943 the EU DSO entity shall participate in the development of network codes which are relevant to the operation and planning of distribution grids and the coordinated operation of the transmission networks and distribution networks pursuant to this Regulation and contribute to mitigating fugitive methane emissions from the natural gas system.
When participating in the development of new network codes pursuant to Article 53, the EU DSO entity shall comply with the consultation requirements as laid down in Article 56 of Regulation (EU) 2019/943.
3. In addition to the activities listed in Article 55(2) of Regulation (EU) 2019/943 the EU DSO entity shall:
(a)cooperate with the ENTSO for Gas on the monitoring of the implementation of the network codes and guidelines adopted pursuant to this Regulation which are relevant to the operation and planning of distribution grids and the coordinated operation of the transmission networks and distribution networks;
(b)cooperate with the ENTSO for Gas and adopt best practices on the coordinated operation and planning of transmission and distribution systems including issues such as exchange of data between operators and coordination of distributed energy resources;
(c)work on identifying best practices for the implementation of the results of the assessments pursuant to Article 23(1a) [proposal for REDIII] and Article 23 [proposal for revised EED] and for the cooperation between operators of electricity distribution networks, of natural gas distribution networks and of district heating and cooling systems including for the purpose of the assessment pursuant to Article 24(8) [proposal for REDIII].
4. The EU DSO entity shall provide input to the ENTSO for Gas for its reporting on gas quality, with regard to the distribution networks where distribution system operators are responsible for gas quality management, as referred to in Article 23(3).
Chapter III
RULES APPLICABLE TO THE DEDICATED HYDROGEN NETWORKS
Article 39 - Cross-border coordination on hydrogen quality
1. Hydrogen network operators shall cooperate to avoid restrictions to cross-border flows of hydrogen due to hydrogen quality differences.2. Where a restriction to cross-border flows due to differences in hydrogen quality cannot be avoided by the concerned hydrogen network operators in their standard operations, they shall inform the concerned regulatory authorities without delay. The information shall include a description and justified reasoning for any steps already taken by the hydrogen network operators.
3. The concerned regulatory authorities shall jointly agree within six months whether to recognise the restriction.
4. Where the concerned regulatory authorities recognise the restriction, they shall request the concerned hydrogen network operators to perform, within 12 months, the following actions in sequence:
(a)cooperate and develop technically feasible options in order to remove the recognised restriction;
(b)jointly carry out a cost-benefit analysis on the technically feasible options to define economically efficient solutions which shall specify the breakdown of costs and benefits among the categories of affected parties;
(c)produce an estimate of the implementation time for each potential option;
(d)conduct a public consultation on identified feasible solutions and take into consideration the results of the consultation;
(e)submit a joint proposal for a solution based on the cost benefit analysis and results of the public consultation removing the recognised restriction, including the timeframe for implementation, to their respective regulatory authorities for approval and to the other competent national authorities of each involved Member State for information.
5. Where the concerned hydrogen network operators do not reach an agreement on a solution within 12 months, each hydrogen system operator shall inform its regulatory authority without delay.
6. The concerned regulatory authorities shall take a joint coordinated decision for removing the recognised restriction, taking into account the cost-benefit analysis prepared by the concerned transmission system operators and the results of the public consultation within six months as set out in Article 6(10) of Regulation (EU) 2019/942.
7. The joint coordinated decision of the concerned regulatory authorities shall include a decision on the allocation of the investment costs to be borne by each hydrogen network operator for implementing the agreed solution, as well as their inclusion in tariffs after 1 January 2031, taking into account the economic, social and environmental costs and benefits of the solution in the concerned Member States.
8. ACER may make recommendations to the regulatory authorities on the details of such cost allocation decisions as referred to in paragraph 7.
9. Where the concerned regulatory authorities cannot reach an agreement as referred to in paragraph 3 of this Article, ACER shall decide on the restriction, following the process set out in Article 6(10) of Regulation (EU) 2019/942. Where ACER recognises the restriction it shall request the concerned hydrogen network operators to perform, within 12 months, the actions referred to in paragraph 4, points (a) to (e), in sequence.
10. Where the relevant regulatory authorities cannot take a joint coordinated decisions as referred to in paragraphs 6 and 7 of this Article, ACER shall decide on the solution to remove the recognised restriction and on the allocation of the investment costs to be borne by each system operator for implementing the agreed solution, following the process set out in Article 6(10) of Regulation (EU) 2019/942.
11. Further details required to implement this Article, including details on a common binding hydrogen quality specification for cross-border hydrogen interconnectors, cost benefit analyses for removing cross-border flow restrictions due to hydrogen quality differences, interoperability rules for cross-border hydrogen infrastructure, including addressing interconnection agreements, units, data exchange, communication and information provision among relevant market participants, shall be set in a network code established in accordance with Article 54(2), point (b).
Article 40 - European Network of Network Operators for Hydrogen
1. Hydrogen network operators shall cooperate at Union level through the European Network of Network Operators for Hydrogen (ENNOH), in order to promote the development and functioning of the internal market in hydrogen and cross-border trade and to ensure the optimal management, coordinated operation and sound technical evolution of the European hydrogen network.2. In performing its functions under Union law, the ENNOH shall act with a view to establishing a well-functioning and integrated internal market for hydrogen and shall contribute to the efficient and sustainable achievement of the objectives set out in the policy framework for climate and energy, in particular by contributing to the efficient integration of hydrogen produced from renewable energy sources and to increases in energy efficiency while maintaining system security. The ENNOH shall be equipped with adequate human and financial resources to carry out its duties.
3. By 1 September 2024, the hydrogen network operators shall submit to the Commission and to ACER the draft statutes, a list of members and draft rules of procedure, including the rules of procedures on the consultation of stakeholders, of the ENNOH to be established.
4. The hydrogen network operators shall submit to the Commission and to ACER any draft amendments to the statutes, list of members or rules of procedure of the ENNOH.
5. Within four months of receipt of the drafts and the draft amendments to the statutes, list of members or rules of procedure, ACER, after consulting the organisations representing all stakeholders, in particular the system users, including customers, shall provide an opinion to the Commission on these drafts or draft amendments to the statutes, list of members or rules of procedure.
6. The Commission shall deliver an opinion on the drafts and draft amendments to the statutes, list of members or rules of procedure taking into account ACER’s opinion as provided for in paragraph 5 and within three months of receipt of ACER’s opinion.
7. Within three months of receipt of the Commission’s favourable opinion, the hydrogen network operators shall adopt and publish the statutes, list of members and rules of procedure.
8. The documents referred to in paragraph 3 shall be submitted to the Commission and ACER where there are changes thereto or upon the reasoned request of either of them. The Commission and ACER shall deliver an opinion in accordance with paragraphs 5, 6 and 7.
Article 41 - Transition to the ENNOH
1. Until the ENNOH is established in line with Article 40, the Commission will set up a temporary platform involving ACER and all relevant market participants, including the ENTSO for Gas, the ENTSO for Electricity and the EU DSO entity and ensures its administrative support. This platform will promote work on scoping and developing issues relevant for the building up of the hydrogen network and markets. The platform will cease to exist once ENNOH is established.2. Until the ENNOH is established, the ENTSO for Gas will be responsible for the development of Union-wide network development plans for gas and hydrogen networks. In carrying out this task ENTSO for Gas shall ensure the effective consultation and inclusion of all market participants, including hydrogen market participants.
Article 42 - Tasks of the ENNOH
1. The ENNOH shall:(a)develop network codes in the areas set out in Article 54 with a view to achieving the objectives set out in Article 40;
(b)adopt and publish biannually a non-binding Union-wide ten-year network development plan, including a European supply adequacy outlook;
(c)cooperate with the ENTSO for Electricity and with the ENTSO for Gas;
(d)develop recommendations relating to the coordination of technical cooperation between gas transmission and distribution system operators on one hand, and hydrogen network operators on the other hand in the Union;
(e)develop recommendations relating to the coordination of technical cooperation between Union and third-party network operators;
(f)adopt an annual work programme;
(g)adopt an annual report;
(h)adopt an annual outlook for the supply of hydrogen covering Member States where hydrogen is used in electricity generation or for supplying households;
(i)adopt a hydrogen quality monitoring report by 15 May 2026 at the latest and every two years afterwards, including developments and forecasts for the expected developments of hydrogen quality parameters, as well as information on cases related to differences in hydrogen quality specifications and how such cases were settled;
(j)promote cyber security and data protection in cooperation with relevant authorities and regulated entities.
2. The ENNOH shall monitor and analyse the implementation of the network codes and the guidelines adopted by the Commission in accordance with Article 54, 55 and 56, and their effect on the harmonisation of applicable rules aimed at facilitating market development and integration. The European Network of Network Operators for Hydrogen shall report its findings to ACER and shall include the results of the analysis in the annual report referred to in paragraph 1, point f) of this Article.
3. The ENNOH shall publish the minutes of its assembly meetings, board meetings and committee meetings and provide the public with regular information on its decision-making and activities.
4. The annual work programme referred to in paragraph 1, point (f) shall contain a list and description of the network codes to be prepared, a plan on the coordination of the operation of the network, a list of research and development activities, to be realised in that year, and an indicative calendar.
5. The ENNOH shall provide ACER with the information ACER requires to fulfil its tasks pursuant to Article 46. In order to enable the ENNOH to meet that requirement, hydrogen network operators shall provide the ENNOH with the requested information.
6. Upon request of the Commission, the ENNOH shall give its views to the Commission on the adoption of the guidelines as laid down in Article 56.
Article 43 - Ten-year network development plan for hydrogen
1. The Union-wide ten-year network development plan referred to in Article 42 shall include the modelling of the integrated network, scenario development and an assessment of the resilience of the system.The Union-wide ten-year network development plan shall in particular:
(a)build on the national hydrogen network development reporting as set out in Article 52 of recast Gas Directive where available and Chapter IV of Regulation (EU) xxx [TEN-E Regulation];
(b)regarding cross-border interconnections, also build on the reasonable needs of different network users and integrate long-term commitments from investors referred to in Articles 55 and Chapter IX Section 3 of recast Gas Directive;
(c)identify investment gaps, notably with respect to cross-border capacities.
With regard to the second subparagraph, point (c), a review of barriers to the increase of cross-border capacity of the network arising from different approval procedures or practices may be annexed to the Union-wide network development plan.
2. ACER shall provide an opinion on the national hydrogen network development reports where relevant to assess their consistency with the Union-wide network development plan. If ACER identifies inconsistencies between a national hydrogen network development report and the Union-wide network development plan, it shall recommend amending the national hydrogen network development report or the Union-wide network development plan as appropriate.
3. When developing the Union-wide ten-year network development plan as referred to in Article 42, the ENNOH shall cooperate with the ENTSO for Electricity and with the ENTSO for Gas, in particular on the development of the energy system wide cost-benefit analysis and the interlinked energy market and network model including electricity, gas and hydrogen transport infrastructure as well as storage, LNG and hydrogen terminals and electrolysers referred to in Article 11 [TEN-E revision], the scenarios for the Ten-Year Network Development Plans referred to in Article 12 [TEN-E revision] and the infrastructure gaps identification referred to in Article 13 [TEN-E revision].
Article 44 - Costs
The costs related to the activities of the ENNOH for Hydrogen referred to in Articles 42 of this Regulation shall be borne by the hydrogen network operators and shall be taken into account in the calculation of tariffs. Regulatory authorities shall approve those costs only if they are reasonable and appropriate.Article 45 - Consultation
1. While preparing the proposals pursuant to the tasks referred to in Article 42, the ENNOH shall conduct an extensive consultation process at an early stage and in an open and transparent manner, involving all relevant market participants, and in particular the organisations representing all stakeholders, in accordance with the rules of procedure referred to in Article 40 of this Regulation. The consultation process shall accommodate stakeholder comments before the final adoption of the proposal, aiming at identifying the views and proposals of all relevant parties during the decision-making process. The consultation shall also involve regulatory authorities and other national authorities, producers, network users including customers, technical bodies and stakeholder platforms.2. All documents and minutes of meetings related to the consultation shall be made public.
3. Before adopting the proposals referred to in Article 42 the ENNOH shall indicate how the observations received during the consultation have been taken into consideration. It shall provide reasons where observations have not been taken into account.
Article 46 - Monitoring by ACER
1. ACER shall monitor the execution of the tasks of the ENNOH referred to in Article 42 and report its findings to the Commission.2. ACER shall monitor the implementation by the ENNOH of network codes and guidelines adopted by the Commission as laid down in Articles 54, 55, and 56. Where the ENNOH has failed to implement such network codes or guidelines, ACER shall request the ENNOH to provide a duly reasoned explanation as to why it has failed to do so. ACER shall inform the Commission of that explanation and provide its opinion thereon.
3. The ENNOH shall submit the draft Union-wide network development plan, the draft annual work programme, including the information regarding the consultation process, and the other documents referred to in Article 42 to ACER for its opinion.
Where it considers that the draft annual work programme or the draft Union-wide network development plan submitted by the ENNOH does not contribute to non-discrimination, effective competition, the efficient functioning of the market or a sufficient level of cross-border interconnection, ACER shall provide a duly reasoned opinion as well as recommendations to the ENNOH and to the Commission within two months of the submission of the programme or the plan.
Article 47 - Regional cooperation of hydrogen network operators
1. Hydrogen network operators shall establish regional cooperation within the ENNOH to contribute to the tasks referred to in Article 42.2. Hydrogen network operators shall promote operational arrangements in order to ensure the optimum management of the network and shall ensure interoperability of the interconnected Union hydrogen system for facilitating commercial and operational cooperation between adjacent hydrogen network operators.
Article 48 - Transparency requirements concerning hydrogen network operators
1. The hydrogen network operators shall make public detailed information regarding the services they offer and the relevant conditions applied, together with the technical information necessary for hydrogen network users to gain effective network access.2. In order to ensure transparent, objective and non-discriminatory tariffs and facilitate efficient utilisation of the hydrogen network, from 1 January 2031 hydrogen network operators or relevant authorities shall publish complete information on tariff derivation, methodology and structure.
3. The hydrogen network operators shall make public detailed information regarding the quality of hydrogen transported in their networks, which might affect network users.
4. The relevant points of a hydrogen network on which the information is to be made public shall be approved by the competent authorities after consultation with hydrogen network users.
5. The hydrogen network operators shall always disclose the information required by this Regulation in a meaningful, quantifiably clear and easily accessible manner and on a non-discriminatory basis.
6. The hydrogen network operators shall make public ex-ante and ex-post supply and demand information, including a periodic forecast and the recorded information. The regulatory authority shall ensure that all such information is made public. The level of detail of the information that is made public shall reflect the information available to the hydrogen network operators.
7. The market participants concerned shall provide the hydrogen network operator with the data referred to in this Article.
8. Further details required to implement the transparency requirements for hydrogen network operators, including further details on the content, frequency and form of information provision by hydrogen network operators, shall be set in a network code established in accordance with Article 54(1) of this Regulation.
Article 49 - Record keeping in the hydrogen system
Hydrogen network operators, hydrogen storage operators and hydrogen terminal operators shall keep at the disposal of the national authorities, including the regulatory authority, the national competition authority and the Commission, all information referred to in Articles 31 and 48 and in Part 4 of Annex I for a period of five years.Article 50 - Presumption of conformity with harmonised standards
1. Harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union shall be presumed to be in conformity with the requirements referred to in delegated acts issued under Article 54(2), point (b) of this Regulation or implementing acts issued in accordance with Article 51.2. The Commission shall inform the European standardisation body concerned and, if necessary, issue a new mandate with a view to revising the harmonised standards concerned.
Article 51 - Common specifications
The Commission is empowered to adopt implementing acts laying down common specifications for the requirements set out in Article 46 of [the recast Gas Directive as proposed in COM(2021) xxx] or may set those specifications in a network code pursuant to Article 54 (2), point (b), of this Regulation, where:(a)those requirements are not covered by harmonised standards or parts thereof, the references of which have been published in the Official Journal of the European Union; or
(b)the Commission observes undue delays in the adoption of requested harmonised standards, or considers that relevant harmonised standards are not sufficient; or
(c)the Commission has decided in accordance with the procedure referred to in Article 11(5) of Regulation (EU) No 1025/2012 to maintain with restriction or to withdraw the references to the harmonised standards or parts thereof by which those requirements are covered.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 61(3).
Chapter IV
NETWORK CODES AND GUIDELINES
Article 52 - Adoption of network codes and guidelines
1. The Commission may, subject to the empowerments in Articles 53 to 56, adopt implementing or delegated acts. Such acts may either be adopted as network codes on the basis of text proposals developed by the ENTSO for Gas or the ENNOH, or, where so provided for in the priority list pursuant to Article 53(3), by the EU DSO entity, where relevant in cooperation with the ENTSO for Electricity, the ENNOH and ACER, pursuant to the procedure laid down in Articles 52 to 55, or as guidelines pursuant to the procedure laid down in Article 56.2. The network codes and guidelines shall:
(a)ensure that they provide the minimum degree of harmonisation required to achieve the aims of this Regulation;
(b)take into account regional specificities, where appropriate;
(c)not go beyond what is necessary for the purposes of point (a); and
(d)apply to all interconnection points within the Union and entry points from and exit points to third countries.
715/2009
Article 536 - Establishment of network codes new
1. The Commission is empowered to adopt implementing acts establishing network codes in the following areas:(a)data exchange and settlement rules implementing Articles 21 and 22 of [recast Gas Directive as proposed in COM(2021) xxx] regarding interoperability and data exchange as well as harmonised rules for the operation of gas transmission systems, capacity booking platforms, and IT processes relevant for the functioning of the internal market
(b)interoperability rules for the natural gas system, implementing Articles 9 and 46 of [recast Gas Directive as proposed in COM(2021) xxx] including addressing interconnection agreements, rules on flow control and measurement principles for gas quantity and quality, allocation and matching rules, common sets of units, data exchange, gas quality, including rules on managing cross-border restrictions due to gas quality differences or due to differences in odorisation practices or due to differences in the volume of hydrogen blended in the natural gas system, cost-benefit analyses for removing cross-border flow restrictions, Wobbe Index classification, mitigating measures, minimum acceptance levels for gas quality parameters relevant for ensuring the unhindered cross-border flow of biomethane (e.g. oxygen content), short- and long-term gas quality monitoring, information provision and cooperation among relevant market participants, reporting on gas quality, transparency, communication procedures including in case of exceptional events;
(c)capacity-allocation and congestion-management rules implementing Article 29 of [recast Gas Directive as proposed in COM(2021) xxx] and Article 7 to 10 of this Regulation, including rules on cooperation of maintenance procedures and capacity calculation affecting capacity allocation, the standardization of capacity products and units including bundling, the allocation methodology including auction algorithms, sequence and procedure for existing, incremental, firm and interruptible capacity, capacity booking platforms, oversubscription and buy back schemes, short and long-term use-it-or-lose it schemes or and any other congestion-management scheme that prevents the hoarding of capacity
(d)balancing rules including network-related rules on nominations procedure, rules for imbalance charges and rules for operational balancing between transmission system operators' systems implementing Article 35(5) of [recast Gas Directive as proposed in COM(2021) xxx] and Article 7 to 10 of this Regulation including network-related rules on nomination procedures, imbalance charges, settlement processes associated with the daily imbalance charge and operational balancing between transmission system operators’ networks.
(e)rules on harmonised transmission tariff structures implementing Article 72(7) of [recast Gas Directive as proposed in COM(2021) xxx] and Article 15 to 16 of this Regulation rules on harmonised transmission tariff structures for gas, including rules on the application of a reference price methodology, the associated consultation and publication requirements as well as the calculation of reserve prices for standard capacity products, discounts for LNG and storages, allowed revenue, procedures for the implementation of providing a discount for renewable and low carbon gases, including common principles for inter-transmission system operator compensation mechanisms;
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 61(3).
2. The Commission is empowered to adopt delegated acts in accordance with Article 63 concerning the establishment of network codes in the following areas:
(a)network security and reliability rules including rules for operational network security as well as reliability rules ensuring the quality of service of the network
(b)network connection rules including rules on the connection of renewable and low carbon gas production facilities, procedures for connection requests;
(c)operational procedures in an emergency including system defence plans, restoration plans, market interactions, information exchange and communication and tools and facilities;
(d)rules for trading related to technical and operational provision of network access services and system balancing;
(e)energy efficiency of gas networks and components as well as energy efficiency with regard to network planning and investments enabling the most energy efficient solution from a system perspective;
(f)cyber security aspects of cross-border natural gas flows, including rules on common minimum requirements, planning, monitoring, reporting and crisis management.
3. The Commission shall, after consulting ACER, the ENTSO for Gas, the ENNOH, the EU DSO entity and the other relevant stakeholders, establish every three years a priority list, identifying the areas set out in paragraphs 1 and 2 to be included in the development of network codes. If the subject matter of the network code is directly related to the operation of the distribution system and not primarily relevant to the transmission system, the Commission may require the EU DSO entity, in cooperation with the ENTSO for Gas, to convene a drafting committee and submit a proposal for a network code to ACER.
4. The Commission shall request ACER to submit to it within a reasonable period not exceeding six months of receipt of the Commission's request non-binding framework guidelines setting out clear and objective principles for the development of network codes relating to the areas identified in the priority list. The request of the Commission may include conditions which the framework guidelines shall address. Each framework guideline shall contribute to market integration, non-discrimination, effective competition, and the efficient functioning of the market. Upon a reasoned request from ACER, the Commission may extend the period for submitting the guidelines.
5. ACER shall consult the ENTSO for Gas, the ENNOH, the EU DSO entity, and the other relevant stakeholders in regard to the framework guidelines, during a period of no less than two months, in an open and transparent manner.
6. ACER shall submit a non-binding framework guideline to the Commission where requested to do so under paragraph 4.
7. If the Commission considers that the framework guideline does not contribute to market integration, non-discrimination, effective competition and the efficient functioning of the market, it may request ACER to review the framework guideline within a reasonable period and resubmit it to the Commission.
8. If ACER fails to submit or resubmit a framework guideline within the period set by the Commission under paragraph 4 or 7, the Commission shall develop the framework guideline in question.
9. The Commission shall request the ENTSO for Gas or, where provided for in the priority list referred to in paragraph 3, the EU DSO entity in cooperation with the ENTSO for Gas, to submit to ACER, within a reasonable period, not exceeding 12 months, of receipt of the Commission's request, a proposal for a network code in accordance with the relevant framework guideline.
10. The ENTSO for Gas, or where provided for in the priority list referred to in paragraph 3 the EU DSO entity, in cooperation with the ENTSO for Gas, shall convene a drafting committee to support it in the network code development process. The drafting committee shall consist of representatives of ACER, the ENTSO for Gas, the ENNOH, where appropriate the EU DSO entity, and a limited number of the main affected stakeholders. The ENTSO for Gas or where provided for in the priority list pursuant to paragraph 3 the EU DSO entity, in cooperation with the ENTSO for Gas, shall develop proposals for network codes in the areas referred to in paragraphs 1 and 2 where so requested by the Commission in accordance with paragraph 9.
11. ACER shall revise the proposed network code to ensure that it complies with the relevant framework guidelines and contributes to market integration, non-discrimination, effective competition, and the efficient functioning of the market, and shall submit the revised network code to the Commission within six months of receipt of the proposal. In the proposal submitted to the Commission, ACER shall take into account the views provided by all involved parties during the drafting of the proposal led by the ENTSO for Gas or the EU DSO entity and shall consult the relevant stakeholders on the version of the network code to be submitted to the Commission.
12. Where the ENTSO for Gas or the EU DSO entity have failed to develop a network code within the period set by the Commission under paragraph 9, the Commission may request ACER to prepare a draft network code on the basis of the relevant framework guideline. ACER may launch a further consultation. ACER shall submit a draft network code prepared under this paragraph to the Commission and may recommend that it be adopted.
13. Where the ENTSO for Gas or the EU DSO entity have failed to develop a network code, or ACER has failed to develop such a draft as referred to in paragraph 12, or upon the proposal of ACER under paragraph 11, the Commission may adopt, on its own initiative, one or more network codes in the areas listed in paragraphs 1 and 2.
14. Where the Commission proposes to adopt a network code on its own initiative, the Commission shall consult ACER, the ENTSO for Gas and all relevant stakeholders in regard to the draft network code during a period of at least two months.
15. This Article shall be without prejudice to the Commission's right to adopt and amend the guidelines as laid down in Article 56. It shall be without prejudice to the possibility for the ENTSO for Gas to develop non-binding guidance in the areas set out in paragraphs 1 and 2 where such guidance does not relate to areas covered by a request addressed to the ENTSO for Gas by the Commission. The ENTSO for Gas shall submit any such guidance to ACER for an opinion and shall duly take that opinion into account.
715/2009 (new)
1. The Commission shall, after consulting the Agency, the ENTSO for Gas and the other relevant stakeholders establish an annual priority list identifying the areas set out in Article 8(6) to be included in the development of network codes.
2. The Commission shall request the Agency to submit to it within a reasonable period of time not exceeding six months a non-binding framework guideline (framework guideline) setting out clear and objective principles, in accordance with Article 8(7), for the development of network codes relating to the areas identified in the priority list. Each framework guideline shall contribute to non-discrimination, effective competition and the efficient functioning of the market. Upon a reasoned request from the Agency, the Commission may extend that period.
3. The Agency shall formally consult the ENTSO for Gas and the other relevant stakeholders in regard to the framework guideline, during a period of no less than two months, in an open and transparent manner.
4. If the Commission considers that the framework guideline does not contribute to non-discrimination, effective competition and the efficient functioning of the market, it may request the Agency to review the framework guideline within a reasonable period of time and re-submit it to the Commission.
5. If the Agency fails to submit or re-submit a framework guideline within the period set by the Commission under paragraphs 2 or 4, the Commission shall elaborate the framework guideline in question.
6. The Commission shall request the ENTSO for Gas to submit a network code which is in line with the relevant framework guideline, to the Agency within a reasonable period of time not exceeding 12 months.
7. Within a period of three months after the day of receipt of a network code, during which the Agency may formally consult the relevant stakeholders, the Agency shall provide a reasoned opinion to the ENTSO for Gas on the network code.
8. The ENTSO for Gas may amend the network code in the light of the opinion of the Agency and re-submit it to the Agency.
9. Once the Agency is satisfied that the network code is in line with the relevant framework guideline, the Agency shall submit the network code to the Commission and may recommend that it be adopted within a reasonable time period. The Commission shall provide reasons in the event that it does not adopt that network code.
10. Where the ENTSO for Gas has failed to develop a network code within the period of time set by the Commission under paragraph 6, the Commission may request the Agency to prepare a draft network code on the basis of the relevant framework guideline. The Agency may launch a further consultation in the course of preparing a draft network code under this paragraph. The Agency shall submit a draft network code prepared under this paragraph to the Commission and may recommend that it be adopted.
11. The Commission may adopt, on its own initiative where the ENTSO for Gas has failed to develop a network code, or the Agency has failed to develop a draft network code as referred to in paragraph 10 of this Article, or upon recommendation of the Agency under paragraph 9 of this Article, one or more network codes in the areas listed in Article 8(6).
Where the Commission proposes to adopt a network code on its own initiative, the Commission shall consult the Agency, the ENTSO for Gas and all relevant stakeholders in regard to the draft network code during a period of no less than two months. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 28(2).
12. This Article shall be without prejudice to the Commission's right to adopt and amend the Guidelines as laid down in Article 23.
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Article 54 - Establishment of network codes for hydrogen
1. The Commission is empowered to adopt implementing acts in order to ensure uniform conditions for the implementation of this Regulation by establishing network codes in the area of transparency rules implementing Article 48 of this Regulation, including further details on the content, frequency and form of information provision by hydrogen network operators and implementing Annex I, point 4 of this Regulation, including details on the format and content of the information necessary for network users for effective access to the network, information to be published at relevant points, details on time schedules.Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 61(2).
2. The Commission is empowered to adopt delegated acts in accordance with Article 63 supplementing this Regulation with regard to the establishment of network codes in the following areas
(a)energy efficiency regarding hydrogen networks and components as well as energy efficiency with regard to network planning and investments enabling the most energy efficient solution from a system perspective;
(b)interoperability rules for the hydrogen network, including addressing interconnection agreements, units, data exchange, transparency, communication, information provisions and cooperation among relevant market participants as well as hydrogen quality, including common specifications and standardisation, odorisation, cost benefit analyses for removing cross-border flow restrictions due to hydrogen quality differences and reporting on hydrogen quality;
(c)rules for the system of financial compensation for cross-border hydrogen infrastructure;
(d)capacity-allocation and congestion-management rules, including rules on cooperation of maintenance procedures and capacity calculation affecting capacity allocation, the standardisation of capacity products and units including bundling, the allocation methodology including auction algorithms, sequence and procedure for existing, incremental, firm and interruptible capacity, capacity booking platforms, oversubscription and buy back schemes, short and long-term use-it-or-lose it schemes or and any other congestion-management scheme that prevents the hoarding of capacity;
(e)rules regarding harmonised tariff structures for hydrogen network access, including rules on the application of a reference price methodology, the associated consultation and publication requirements as well as the calculation of reserve prices for standard capacity products and allowed revenue;
(f)rules for determining the value of transferred assets and the dedicated charge;
(g)balancing rules including network-related rules on nominations procedure, rules for imbalance charges and rules for operational balancing between hydrogen network operators’ networks, including network-related rules on nomination procedures, imbalance charges, settlement processes associated with the daily imbalance charge and operational balancing between transmission system operators’ networks.
(h)cyber security aspects of cross-border hydrogen flows, including rules on common minimum requirements, planning, monitoring, reporting and crisis management.
3. The Commission shall, after consulting ACER, the ENNOH, the ENTSO for Gas, the EU DSO entity and the other relevant stakeholders, establish a priority list every three years, identifying the areas set out in paragraphs 1 and 2 to be included in the development of network codes.
4. The Commission shall request ACER to submit to it within a reasonable period not exceeding six months of receipt of the Commission's request non-binding framework guidelines setting out clear and objective principles for the development of network codes relating to the areas identified in the priority list. The request of the Commission may include conditions which the framework guideline shall address. Each framework guideline shall contribute to market integration, non-discrimination, effective competition, and the efficient functioning of the market. Upon a reasoned request from ACER, the Commission may extend the period for submitting the guidelines.
5. ACER shall consult the ENNOH, the ENTSO for Gas and the other relevant stakeholders in regard to the framework guideline, during a period of at least two months, in an open and transparent manner.
6. ACER shall submit a non-binding framework guideline to the Commission where requested to do so under paragraph 4.
7. If the Commission considers that the framework guideline does not contribute to market integration, non-discrimination, effective competition and the efficient functioning of the market, it may request ACER to review the framework guideline within a reasonable period and resubmit it to the Commission.
8. If ACER fails to submit or resubmit a framework guideline within the period set by the Commission under paragraph 4 or 6, the Commission shall develop the framework guideline in question.
9. The Commission shall request the ENNOH to submit, within a reasonable period not exceeding 12 months of the receipt of the Commission's request, a proposal for a network code in accordance with the relevant framework guideline to ACER.
10. The ENNOH shall convene a drafting committee to support it in the network code development process. The drafting committee shall consist of representatives of ACER, the ENTSO for Gas, the ENTSO for Electricity and where appropriate the EU DSO entity, and a limited number of the main affected stakeholders. The European Network of Network Operators for Hydrogen shall develop proposals for network codes in the areas referred to in paragraphs 1 and 2.
11. ACER shall revise the proposed network code to ensure that it complies with the relevant framework guidelines and contributes to market integration, non-discrimination, effective competition, and the efficient functioning of the market and, shall submit the revised network code to the Commission within six months of receipt of the proposal. In the revised network code, ACER shall take into account the views provided by all involved parties during the drafting of the proposal led by the European Network of Hydrogen Network Operators and shall consult the relevant stakeholders on the revised version to be submitted to the Commission.
12. Where the ENNOH has failed to develop a network code within the period set by the Commission under paragraph 9, the Commission may request ACER to prepare a draft network code on the basis of the relevant framework guideline. ACER may launch a further consultation in the course of preparing a draft network code under this paragraph. ACER shall submit a draft network code prepared under this paragraph to the Commission and may recommend that it be adopted.
13. Where the European Network of Hydrogen Network Operators has failed to develop a network code, or ACER has failed to develop a draft network code as referred to in paragraph 12, the Commission may adopt, on its own initiative, or upon the proposal of ACER under paragraph 11, one or more network codes in the areas listed in paragraphs 1 and 2.
14. Where the Commission proposes to adopt a network code on its own initiative, it shall consult ACER, the ENNOH, the ENTSOG for Gas and all relevant stakeholders in regard to the draft network code during a period of no less than two months.
15. This Article shall be without prejudice to the Commission's right to adopt and amend the guidelines as laid down in Article 56. It shall be without prejudice to the possibility for the ENNOH to develop non-binding guidance in the areas set out in paragraphs 1 and 2 where such guidance does not relate to areas covered by a request addressed to the ENNOH by the Commission. The ENNOH shall submit any such guidance to ACER for an opinion and shall duly take that opinion into account.
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Article 557 - Amendments to of network codes
1. Draft amendments to any network code adopted under Article 6 may be proposed to the Agency by persons who are likely to have an interest in that network code, including the ENTSO for Gas, transmission system operators, network users and consumers. The Agency may also propose amendments of its own initiative.2. The Agency shall consult all stakeholders in accordance with Article 10 of Regulation (EC) No 713/2009. Following this process, the Agency may make reasoned proposals for amendments to the Commission, explaining how such proposals are consistent with the objectives of the network codes set out in Article 6(2) of this Regulation.
3. The Commission may adopt, taking account of the Agency's proposals, amendments to any network code adopted under Article 6. Those measures, designed to amend non-essential elements of this Regulation by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 28(2).
4. Consideration of proposed amendments under the procedure set out in Article 28(2) shall be limited to consideration of the aspects related to the proposed amendment. Those proposed amendments are without prejudice to other amendments which the Commission may propose.
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1. The Commission is empowered to amend the network codes within the areas listed in Article 53 (1) and (2) and in Article 54(1) and (2) in accordance with the relevant procedure set out in those Articles.
2. Persons who are likely to have an interest in any network code adopted under Article 52 to 55, including the ENTSO for Gas, the European Network of Hydrogen Network Operators, the EU DSO entity, regulatory authorities, transmission system operators, distribution system operators, system users and consumers, may propose draft amendments to that network code to ACER. ACER may also propose amendments on its own initiative.
3. ACER may make reasoned proposals to the Commission for amendments, explaining how such proposals are consistent with the objectives of the network codes set out in Article 52 of this Regulation. Where it considers an amendment proposal to be admissible and where it proposes amendments on its own initiative, ACER shall consult all stakeholders in accordance with Article 14 of Regulation (EU) 2019/942.
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Article 5623 - Guidelines
1. Where appropriate, Guidelines providing the minimum degree of harmonisation required to achieve the aims of this Regulation shall specify:new
1. The Commission is empowered to adopt binding guidelines in the areas listed in this Article.
2. The Commission is empowered to adopt guidelines in the areas where such acts could also be developed under the network code procedure pursuant to Article 53 and 54. Those guidelines shall be adopted in the form of delegated or implementing acts, depending on the relevant empowerment provided for in this Regulation.
3. The Commission is empowered to adopt delegated acts in accordance with Article 63 supplementing this Regulation with regard to the establishment of guidelines in the following areas:
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(a)details of third-party access services, including the character, duration and other requirements of those services, in accordance with Articles 5 to 7 14 and 15;
(b)details of the principles underlying capacity-allocation mechanisms and on the application of congestion-management procedures in the event of contractual congestion, in accordance with Articles 916 and 1017;
(c)details of the provision of information, definition of the technical information necessary for network users to gain effective access to the system and the definition of all relevant points for transparency requirements, including the information to be published at all relevant points and the time schedule for the publication of that information, in accordance with Articles 3018 and 3119;
(d)details of tariff methodology related to cross-border trade of natural gas, in accordance with Articles 15 and 1613 of this Regulation ;
(e)details relating to the areas listed in Article 238(6).
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4. The Commission is empowered to adopt delegated acts in accordance with Article 63 in order to amend the guidelines laid down in Annex I to this Regulation.
5. When adopting or amending guidelines, the Commission shall consult ACER, the ENTSO for Gas, the ENNOH, the EU DSO entity and, where relevant, other stakeholders.
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For that purpose, the Commission shall consult the Agency and the ENTSO for Gas.
6. Guidelines on the issues listed in points (a), (b) and (c) of paragraph 1 are laid down in Annex I with respect to transmission system operators.
The Commission may adopt Guidelines on the issues listed in paragraph 1 of this Article and amend the Guidelines referred to in points (a), (b) and (c) thereof. Those measures, designed to amend non-essential elements of this Regulation, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 28(2).
7. The application and amendment of Guidelines adopted pursuant to this Regulation shall reflect differences between national gas systems, and shall, therefore, not require uniform detailed terms and conditions of third-party access at Community level. They may, however, set minimum requirements to be met to achieve non-discriminatory and transparent network access conditions necessary for an internal market in natural gas, which may then be applied in the light of differences between national gas systems.
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Article 25 - Provision of information
Member States and the regulatory authorities shall, on request, provide to the Commission all information necessary for the purposes of Article 23.The Commission shall set a reasonable time limit within which the information is to be provided, taking into account the complexity of the information required and the urgency with which the information is needed.
Article 5726 - Right of Member States to provide for more detailed measures
This Regulation shall be without prejudice to the rights of Member States to maintain or introduce measures that contain more detailed provisions than those set out in this Regulation, in the guidelines referred to in Article 56 or in the network codes referred to in Article 52 to 55, provided that those measures are compatible with Union law herein or in the Guidelines referred to in Article 23.Article 58 - Provision of information and confidentiality
1. Member States and the regulatory authorities shall, on request, provide to the Commission with the information necessary for the purposes of enforcing this Regulation, including the guidelines and the network codes adopted under this Regulation Article 23.2. The Commission shall set a reasonable time limit within which the information is to be provided, taking into account the complexity and urgency of the information required and the urgency with which the information is needed.
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3. If the Member State or the regulatory authority concerned does not provide the information within the time limit set by the Commission, the Commission may request all the information necessary for the purpose of enforcing this Regulation directly from the undertakings concerned.
When sending a request for information to an undertaking, the Commission shall, at the same time, forward a copy of the request to the regulatory authorities of the Member State in whose territory the seat of the undertaking is situated.
4. In its request for information, the Commission shall state the legal basis of the request, the time limit within which the information is to be provided, the purpose of the request, and the penalties provided for in Article 59(2) for supplying incorrect, incomplete or misleading information.
5. The owners of the undertakings or their representatives and, in the case of legal persons, the natural persons authorised to represent the undertaking by law or by their instrument of incorporation, shall supply the information requested. Where lawyers are authorised to supply the information on behalf of their client, the client shall remain fully responsible in the event that the information supplied is incomplete, incorrect or misleading.
6. Where an undertaking does not provide the information requested within the time limit set by the Commission or supplies incomplete information, the Commission may by decision require the information to be provided. That decision shall specify what information is required and set an appropriate time limit within which it is to be supplied. It shall indicate the penalties provided for in Article 59(2). It shall also indicate the right to have the decision reviewed by the Court of Justice of the European Union.
The Commission shall, at the same time, send a copy of its decision to the regulatory authorities of the Member State within the territory of which the person is resident or the seat of the undertaking is situated.
7. The information referred to in paragraphs 1 and 2 shall be used only for the purposes of enforcing this Regulation.
The Commission shall not disclose information acquired pursuant to this Regulation where that information is covered by the obligation of professional secrecy.
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Article 5927 - Penalties new
1. Member States shall lay down the rules on penalties applicable to infringements of this Regulation, the network codes and guidelines adopted pursuant to Articles 52 to 56 and the guidelines laid down in Annex I of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, without delay, notify the Commission of those rules and of those measures and shall notify it without delay of any subsequent amendment affecting them.2. The Commission may, by decision, impose on undertakings fines not exceeding 1 % of the total turnover in the preceding business year where, intentionally or negligently, those undertakings supply incorrect, incomplete or misleading information in response to a request made pursuant to Article 58(4) or fail to supply information within the time-limit set in a decision adopted pursuant to Article 58(6), first subparagraph. In setting the amount of a fine, the Commission shall have regard to the gravity of the failure to comply with the requirements referred to in paragraph 1 of this Article.
3. The penalties provided for pursuant to paragraph 1 and any decisions taken pursuant to paragraph 2 shall not be of a criminal law nature.
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1 Corrigendum, OJ L 309, 24.11.2009, p. 87
1. The Member States shall lay down rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that those provisions are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify the Commission by 1 July 2006 of those rules corresponding to the provisions laid down in Regulation (EC) No 1775/2005 and shall notify the Commission without delay of any subsequent amendment affecting them. è1 They shall notify the Commission of those rules not corresponding to the provisions laid down in Regulation (EC) No 1775/2005 by 3 March 2011 and shall notify the Commission without delay of any subsequent amendment affecting them. ç
2. Penalties provided for pursuant to paragraph 1 shall not be of a criminal law nature.
Chapter V
Final provisions
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Article 60 - New natural gas and hydrogen infrastructure
1. Major new natural gas infrastructure, that is to say interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of this Regulation as well as from Articles, 28, 27, 29, ,54 and Article 72(7), (9) and 73(1) of [recast Gas Directive]. Major new hydrogen infrastructure, that is to say interconnectors, hydrogen terminals and underground hydrogen storage may, upon request, be exempted, for a defined period of time, from the provisions of Articles 62, 31, 32, 33 of [recast Gas Directive]and Article 15 of this Regulation. The following conditions apply:(a)the investment enhances competition in gas supply or hydrogen supply and enhance security of supply;
(b)the investment contributes to decarbonisation;
(c)the level of risk attached to the investment is such that the investment would not take place unless an exemption was granted;
(d)the infrastructure is owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built;
(e)charges are levied on users of that infrastructure; and
(f)the exemption is not detrimental to competition in the relevant markets which are likely to be affected by the investment, to the effective functioning of the internal market in gas, to the efficient functioning of the regulated systems concerned, to decarbonisation or to security of supply in the Union.
These conditions should be assessed taking into account the principle of energy solidarity. National authorities should take into account the situation in other affected Member State and balance possible negative effects with the beneficial effects on its territory.
2. The exemption in paragraph 1 shall also apply to significant increases of capacity in existing infrastructure and to modifications of such infrastructure which enable the development of new sources of renewable and low carbon gases supply.
3. The regulatory authority may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.
Before the adoption of the decision on the exemption, the regulatory authority, or where appropriate another competent authority of that Member State, shall consult:
(a)the regulatory authorities of the Member States the markets of which are likely to be affected by the new infrastructure; and
(b)the relevant authorities of the third countries, where the infrastructure in question is connected with the Union network under the jurisdiction of a Member State, and originates from or ends in one or more third countries.
Where the third-country authorities consulted do not respond to the consultation within a reasonable time frame or within a set deadline not exceeding three months, the regulatory authority concerned may adopt the necessary decision.
4. Where the infrastructure in question is located in the territory of more than one Member State, ACER may submit an advisory opinion to the regulatory authorities of the Member States concerned within two months from the date on which the request for exemption was received by the last of those regulatory authorities. That opinion may be used as a basis for their decision.
Where all the regulatory authorities concerned agree on the request for exemption within six months of the date on which it was received by the last of the regulatory authorities, they shall inform the ACER of their decision. Where the infrastructure concerned is a transmission line between a Member State and a third country, the regulatory authority, or where appropriate another competent authority of the Member State where the first interconnection point with the Member States' network is located, may consult before the adoption of the decision on the exemption the relevant authority of that third country with a view to ensuring, as regards the infrastructure concerned, that this Regulation is applied consistently in the territory and, where applicable, in the territorial sea of that Member State. Where the third country authority consulted does not respond to the consultation within a reasonable time or within a set deadline not exceeding three months, the regulatory authority concerned may adopt the necessary decision.
ACER shall exercise the tasks conferred on the regulatory authorities of the Member States concerned by this Article:
(a)where all regulatory authorities concerned have not been able to reach an agreement within a period of six months from the date on which the request for exemption was received by the last of those regulatory authorities; or
(b)upon a joint request from the regulatory authorities concerned.
All regulatory authorities concerned may, jointly, request that the period referred to in the third subparagraph, point (a), is extended by up to three months.
5. Before taking a decision, the ACER shall consult the relevant regulatory authorities and the applicants.
6. An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.
In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.
Before granting an exemption, the regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the infrastructure to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in paragraph 1, points (a), (b) and (e), the regulatory authority shall take into account the results of that capacity allocation procedure.
The exemption decision, including any conditions referred to in the second subparagraph of this paragraph, shall be duly reasoned and published.
7. When analysing whether a major new infrastructure is expected to enhance the security of supply pursuant to paragraph 1, point (a), the relevant authority shall consider to what extent the new infrastructure is expected to improve Member States’ compliance with their obligations under Regulation (EU) 2017/1938 of the European Parliament and of the Council 20 , both at regional and national level.
8. Member States may provide that their regulatory authority or ACER, as the case may be, shall submit, for the purposes of the formal decision, to the relevant body in the Member State its opinion on the request for an exemption. That opinion shall be published together with the decision.
9. The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The exemption decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information. That information may be submitted to the Commission in aggregate form, enabling the Commission to assess the exemption decision. In particular, the information shall contain:
(a)the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to the relevant point or points of paragraph 1 on which that decision is based, including the financial information justifying the need for the exemption;
(b)the analysis undertaken of the effect on competition and the effective functioning of the internal market resulting from the grant of the exemption;
(c)the reasons for the duration of the exemption and the share of the total capacity of the infrastructure for which the exemption is granted;
(d)where the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned;
(e)the contribution of the infrastructure to the diversification of supply.
10. Within 50 working days of the day following that of receipt of the notification under paragraph 7, the Commission may take a decision requesting the notifying bodies to amend or withdraw the decision to grant an exemption. That period may be extended by an additional 50 working days where further information is requested by the Commission. The additional period shall begin on the day following receipt of the complete information. The initial period may also be extended by consent of both the Commission and the notifying bodies.
Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.
The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.
The Commission shall preserve the confidentiality of commercially sensitive information.
When the Commission approves an exemption decision, that approval shall lose its effect:
(a)after two years from its adoption where the construction of the infrastructure has not yet started,
(b)after five years from its adoption where the infrastructure has not become operational within that period, unless the Commission decides that any delay is due to major obstacles beyond control of the person to whom the exemption has been granted.
11. The Commission is empowered to adopt delegated acts in accordance with Article 63 in order to set guidelines for the application of the conditions laid down in paragraph 1 of this Article and for the procedure to be followed for the application of paragraphs 3, 6, 8 and 9 of this Article.
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Article 6128 - Committee procedure
1. 1.The Commission shall be assisted by the committee [name of the committee] established set up by Article 8451 of [the recast Gas Directive as proposed in COM(2021) xxx]. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.new
2. Where reference is made to this paragraph, Article 4 of regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
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2. Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof
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Article 6230 - Derogations and exemptions
This Regulation shall not apply to:(a)natural gas transmission systems situated in Member States for the duration of derogations granted under Article 80 of [new Gas Directive] Article 49 of Directive 2009/73/EC;
(b)major new infrastructure, i.e. interconnectors, LNG and storage facilities, and significant increases of capacity in existing infrastructure and modifications of such infrastructure which enable the development of new sources of gas supply referred to in Article 36(1) and (2) of Directive 2009/73/EC which are exempt from the provisions of Articles 9, 14, 32, 33, 34 or Article 41(6), (8) and (10) of that Directive as long as they are exempt from the provisions referred to in this subparagraph, with the exception of Article 19(4) of this Regulation; or
(c)natural gas transmission systems which have been granted derogations under Article 48 of Directive 2009/73/EC.
As regards point (a) of the first subparagraph, Member States that have been granted derogations under Article 49 of Directive 2009/73/EC may apply to the Commission for a temporary derogation from the application of this Regulation, for a period of up to two years from the date on which the derogation referred to in that point expires.
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Article 63 - Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.2. The power to adopt delegated acts referred to in Article 16, 28, 53, 54, 56 and 60 shall be conferred on the Commission for an indeterminate period of time from [date of entry into force].
3. The delegation of power referred to in Article 16, 28, 53, 54, 56 and 60 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Article 16, 28, 53, 54, 56 and 60 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 64 - Amendment to Decision (EU) 2017/684
The notification obligations for intergovernmental agreements in the field of energy relating to gas as laid down in Decision (EU) 2017/684 shall be construed as including intergovernmental agreements relating to hydrogen, including hydrogen compounds such as ammonia and liquid organic hydrogen carriers.Article 65 - Amendments to Regulation (EU) 2019/942
Regulation (EU) 2019/942 is amended as follows:(1) Article 2, point (a) is replaced by the following:
‘(a) issue opinions and recommendations addressed to transmission system operators, the ENTSO for Electricity, the ENTSO for Gas, the European Network of Network Operators for Hydrogen (ENNOH), the EU DSO Entity, regional coordination centres, nominated electricity market operators, and entities established by transmission system operators for gas, LNG system operators, gas or hydrogen storage system operators or operators of networks for hydrogen;’
(2) Article 3(2), 1st subparagraph is replaced by the following:
‘At ACER's request, the regulatory authorities, the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the regional coordination centres, the EU DSO entity, the transmission system operators, hydrogen network operators, the nominated electricity market operators, and entities established by transmission system operators for gas, LNG system operators, gas or hydrogen storage system operators or hydrogen terminal operators shall provide to ACER the information in the same level of detail necessary for the purpose of carrying out ACER's tasks under this Regulation, unless ACER has already requested and received such information.’
(3) Articles 4(1), 4(2), 4(3)(a) and (b) are replaced by the following:
‘1. ACER shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure of the ENTSO for Electricity in accordance with Article 29(2) of Regulation (EU) 2019/943 and on those of the ENTSO for Gas in accordance with Article 22(2) of [Gas Regulation] and on those of the ENNOH in accordance with Article 40(5) of Regulation [Gas Regulation] and on those of the EU DSO entity in accordance with Article 53(3) of Regulation (EU) 2019/943 and Article 37(4) of [Gas Regulation].’
‘2. ACER shall monitor the execution of the tasks of the ENTSO for Electricity in accordance with Article 32 of Regulation (EU) 2019/943, of the ENTSO for Gas in accordance with Article 24 of [Gas Regulation] and of the ENNOH in accordance with Article 46 of Regulation [Gas Regulation] and of the EU DSO entity as set out in Article 55 of Regulation (EU) 2019/943 and Article 38 of [Gas Regulation].’
‘3. ACER may provide an opinion:
(a) to the ENTSO for Electricity in accordance with point (a) of Article 30(1) of Regulation (EU) 2019/943 and to the ENTSO for Gas in accordance with Article 23(2) of [Gas Regulation as proposed in COM(2021) xxx] and to the ENNOH in accordance with Article XX of Regulation [Gas Regulation] on the network codes;’
‘(b) the ENTSO for Electricity in accordance with Article 32(2) of Regulation (EU) 2019/943, to the ENTSO for Gas in accordance with the Article 24(2) of [the recast Gas Regulation as proposed in COM(2021) xxx], and to the ENNOH in accordance with Article 43(2) of [the recast Gas Regulation as proposed in COM(2021) xxx] on the draft Union-wide network development plan and on other relevant documents referred to in Article 30(1) of Regulation (EU) 2019/943 Articles 23(3) and 42(1) of [the recast Gas Regulation as proposed in COM(2021) xxx], taking into account the objectives of non-discrimination, effective competition and the efficient and secure functioning of the internal markets for electricity and natural gas;’
(4) Articles 4(6), 4(7) and 4(8) are replaced by the following:
‘6. The relevant regulatory authorities shall coordinate in order to jointly identify whether there is non-compliance of the EU-DSO entity, the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or regional coordination centres with their obligations under Union law, and shall take appropriate action in accordance with Article 59(1) point (c) and Article 62(1) point (f) of Directive (EU) 2019/944 or with Article 72(1) point (e) of [the recast Gas Directive as proposed in COM(2021) xxx.
At the request of one or more regulatory authorities or at its own initiative, ACER shall issue a reasoned opinion as well as a recommendation to the ENTSO for Electricity, the ENTSO for Gas, the European Network of Network Operators for Hydrogen, the EU DSO entity or the regional coordination centres with regard to compliance with their obligations.’;
‘7. Where a reasoned opinion of ACER identifies a case of potential non-compliance of the ENTSO for Electricity, the ENTSO for Gas, the European Network of Network Operators for Hydrogen, the EU DSO entity or a regional coordination centre with their respective obligations, the regulatory authorities concerned shall unanimously take coordinated decisions establishing whether there is non-compliance with the relevant obligations and, where applicable, determining the measures to be taken by the ENTSO for Electricity, the ENTSO for Gas, ENNOH, the EU DSO entity or the regional coordination centre to remedy that non-compliance. Where the regulatory authorities fail to take such coordinated decisions unanimously within four months of the date of receipt of ACER's reasoned opinion, the matter shall be referred to ACER for a decision pursuant to Article 6(10).’
‘8. Where the non-compliance by the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or a regional coordination centre that was identified pursuant to paragraph 6 or 7 of this Article has not been remedied within three months, or where the regulatory authority in the Member State in which the entity has its seat has not taken action to ensure compliance, ACER shall issue a recommendation to the regulatory authority to take action in accordance with Article 59(1) point (c) and Article 62(1) point (f) of Directive (EU) 2019/944 or with Article 74(1) point (d) of [the recast Gas Directive as proposed in COM(2021) xxx, in order to ensure that the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or the regional coordination centre comply with their obligations, and shall inform the Commission.’;
(5) Article 5(1) is replaced by the following:
1. ACER shall participate in the development of network codes in accordance with Article 59 of Regulation (EU) 2019/943 and Articles 53 and 54 6 of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009 and of guidelines in accordance with Article 61(6) of Regulation (EU) 2019/943 and Article 56(5) of [the recast Gas Directive as proposed in COM(2021) xxx]. It shall in particular:
(a)submit non-binding framework guidelines to the Commission where it is requested to do so under Article 59(4) of Regulation (EU) 2019/943 or Articles 53(4) or 54(4)6(2) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009. ACER shall review the framework guidelines and re-submit them to the Commission where requested to do so under Article 59(7) of Regulation (EU) 2019/943 or Articles 53(7) or 54(7) 6(4) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009;
(b)provide a reasoned opinion to the ENTSO for Gas on the network code in accordance with Article 6(7) of Regulation (EC) No 715/2009;
(bc)revise the network code in accordance with Article 59(11) of Regulation (EU) 2019/943 or and Articles 53(11) or 54(11) 6(9) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009. In its revision, ACER shall take account of the views provided by the parties involved during the drafting of that revised network code led by the ENTSO for Electricity, the ENTSO for Gas, the ENNOH or the EU DSO entity, and shall consult the relevant stakeholders on the version to be submitted to the Commission. For this purpose, ACER may use the committee established under the network codes where appropriate. ACER shall report to the Commission on the outcome of the consultations. Subsequently, ACER shall submit the revised network code to the Commission in accordance with Article 59(11) of Regulation (EU) 2019/943 or and Articles 53(11) or 54(11) 6(9) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009. Where the ENTSO for Electricity, the ENTSO for Gas, the ENNOH or the EU DSO entity have failed to develop a network code, ACER shall prepare and submit a draft network code to the Commission where it is requested to do so under Article 59(12) of Regulation (EU) 2019/943 or Articles 53(12) or 54(12) 6(10) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009;
(cd)provide a duly reasoned opinion to the Commission, in accordance with Article 32(1) of Regulation (EU) 2019/943 or Articles 24(1) or 46(2) 9(1) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009, where the ENTSO for Electricity, the ENTSO for Gas, the ENNOH or the EU DSO entity has failed to implement a network code elaborated under point (a) of Article 30(1), point (a) of Regulation (EU) 2019/943 or Articles 23(1) or 42(1), point (a) 8(2) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009 or a network code which has been established in accordance with Article 59(3) to (12) of Regulation (EU) 2019/943 orand Articles 53(3) to (12) or 54(3) to (12) 6(1) to (10) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009 but which has not been adopted by the Commission under Article 59(13) of Regulation (EU) 2019/943 orand under Articles 53(13) or 54(13) 6(11) of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009.
(de)monitor and analyse the implementation of the network codes adopted by the Commission in accordance with Article 59 of Regulation (EU) 2019/943 and Articles 53 and 54 6 of [the recast Gas Directive as proposed in COM(2021) xxx]Regulation (EC) No 715/2009 and the guidelines adopted in accordance with Article 61 of Regulation (EU) 2019/943 and Article 56 of [the recast Gas Directive as proposed in COM(2021) xxx], and their effect on the harmonisation of applicable rules aimed at facilitating market integration as well as on non-discrimination, effective competition and the efficient functioning of the market, and report to the Commission
(6) Article 6(3), first subparagraph is replaced by the following:
‘3. By 5 July 2022, and every four years thereafter the Commission shall submit a report to the European Parliament and the Council on the independence of regulatory authorities pursuant to Article 57(7) of Directive (EU) 2019/944 and Article 70(6) of [the recast Gas Directive as proposed in COM(2021) xxx].'
(7) In Article 6 the following paragraphs (9a), (9b), (9c) and (9d) are inserted:
(9a) ACER shall issue recommendations to regulatory authorities and network operators related to regulated asset bases pursuant to Article 4(4) of [Gas Regulation].
(9b) ACER may issue recommendations to regulatory authorities on the allocation of costs of solutions for restrictions to cross-border flows due to gas quality differences pursuant to Article 19(8) of [Gas Regulation].
(9c) ACER may issue recommendations to regulatory authorities on the allocation of costs of solutions for restrictions to cross-border flows due to hydrogen quality differences pursuant to Article 39(8) of [Gas Regulation].
(9d) ACER shall publish monitoring reports on congestion at interconnection points pursuant to Annex I, section 2.2.1, point 2 of [Gas Regulation].
(8) Article 6(10), first subparagraph, points (b) and (c) are replaced by the following:
‘(b) network codes and guidelines referred to in Articles 59 to 61 of Regulation (EU) 2019/943 adopted before 4 July 2019 and subsequent revisions of those network codes and guidelines; or’
‘(c) network codes and guidelines referred to in Articles 59 to 61 of Regulation (EU) 2019/943 adopted as implementing acts pursuant to Article 5 of Regulation (EU) No 182/2011.; or’
(9) In Article 6(10), first subparagraph, the following points are added:
(d) guidelines pursuant to Annex I to [Gas Regulation]; or
(e) network codes and guidelines referred to in Article 53 to 56 of [Gas Regulation].
(10) In Article 6(10), second subparagraph, point (a) is replaced by the following:
(a) where the competent regulatory authorities have not been able to reach an agreement within six months of referral of the case to the last of those regulatory authorities, or within four months in cases under Article 4(7) of this Regulation or under point (c) of Article 59(1) or point (f) of Article 62(1) of Directive (EU) 2019/944 or Article 72(1) point (e) of [the recast Gas Directive as proposed in COM(2021) xxx;
(11) Article 6(10), third subparagraph is replaced by the following:
‘The competent regulatory authorities may jointly request that the period referred to in point (a) of the second subparagraph of this paragraph be extended by a period of up to six months, except in cases under Article 4(7) of this Regulation or under point (c) of Article 59(1) or point (f) of Article 62(1) of Directive (EU) 2019/944 or Article 72(1) point (e) of the recast Gas Directive as proposed in COM(2021) xxx’;
(12) Article 6(10), fourth subparagraph, is replaced by the following:
‘Where the competences to decide on cross-border issues referred to in the first subparagraph have been conferred on the regulatory authorities in new network codes or guidelines referred to in Articles 59 to 61 of Regulation (EU) 2019/943 adopted as delegated acts after 4 July 2019, ACER shall only be competent on a voluntary basis pursuant to point (b) of the second subparagraph of this paragraph, upon a request from at least 60 % of the competent regulatory authorities. Where only two regulatory authorities are involved, either one may refer the case to ACER.’;
(13) Article 6(12), point (a) is replaced by the following:
(a) shall issue a decision within six months of the date of referral, or within four months thereof in cases pursuant to Article 4(7) of this Regulation or point (c) of Article (59)(1) or point (f) of Article 62(1) of Directive (EU) 2019/944 or Article 72(1) point (e) of [the recast Gas Directive as proposed in COM(2021) xxx; and
(14) Article 14(1) is replaced by the following:
‘In carrying out its tasks, in particular in the process of developing framework guidelines in accordance with Article 59 of Regulation (EU) 2019/943 or Articles 53 and 54 of [the recast Gas Regulation as proposed in COM(2021) xxx], and in the process of proposing amendments of network codes under Article 60 of Regulation (EU) 2019/943 or Article 55 of [the recast Gas Regulation as proposed in COM(2021) xxx] ACER shall, extensively consult at an early stage market participants, transmission system operators, hydrogen network operators, consumers, end-users and, where relevant, competition authorities, without prejudice to their respective competence, in an open and transparent manner, in particular when its tasks concern transmission system operators and hydrogen network operators’
(15) In Article 15 the following paragraphs (6) and (7) are added:
‘(6) ACER shall issue studies comparing the efficiency of EU transmission system operators’ costs pursuant to Article 17(2) of [Gas Regulation].’
‘(7) ACER shall submit opinions providing a harmonised format for the publication of technical information on access to hydrogen networks pursuant to Annex I to this Regulation.’
(16) Article 15(1) is replaced by the following:
‘ACER, in close cooperation with the Commission, the Member States and the relevant national authorities, including the regulatory authorities, and without prejudice to the competences of competition authorities, shall monitor the wholesale and retail markets in electricity and natural gas, in particular the retail prices of electricity and natural gas, compliance with the consumer rights laid down in Directive (EU) 2019/944 and [Gas Directive], the impact of market developments on household customers, access to the networks including access of electricity produced from renewable energy sources, the progress made with regard to interconnectors, potential barriers to cross-border trade, including the impact of blending hydrogen into the natural gas system and barriers to the cross-border flow of biomethane, regulatory barriers for new market entrants and smaller actors, including citizen energy communities, state interventions preventing prices from reflecting actual scarcity, such as those set out in Article 10(4) of Regulation (EU) 2019/943, the performance of the Member States in the area of security of supply of electricity based on the results of the European resource adequacy assessment as referred to in Article 23 of that Regulation, taking into account, in particular, the ex-post evaluation referred to in Article 17 of Regulation (EU) 2019/941.’
(17) In Article 15(2) the following subparagraph 2 is added:
‘ACER, in close cooperation with the Commission, the Member States and the relevant national authorities, including the regulatory authorities, and without prejudice to the competences of competition authorities, shall monitor the hydrogen markets, in particular the impact of market developments on hydrogen customers, access to the hydrogen network, including access to the network of hydrogen produced from renewable energy sources, the progress made with regard to interconnectors, potential barriers to cross-border trade.’
(18) Article 15(2) is replaced by the following:
‘ACER shall publish annually a report on the results of the monitoring referred to in paragraph 1. In that report, it shall identify any barriers to the completion of the internal markets for electricity, and natural natural gas and hydrogen.’.’
Article 66 - Amendment to Regulation (EU) No 1227/2011
Regulation No 1227/2011 is amended as follows:(a)In Article 2, Article 3(3) and (4), Article 4(1), Article 8(5) the term ‘electricity or natural gas’ is replaced by the term “electricity, hydrogen or natural gas ";
(b)In Article 6(2) the term ‘electricity and gas markets’ is replaced by the term ‘electricity, hydrogen and natural gas markets’.
Article 67 - Amendments to Regulation (EU) 2017/1938
Regulation (EU) 2017/1938 is amended as follows:(1) In Article 1, the first sentence is replaced by the following:
‘This Regulation establishes provisions aiming to safeguard the security of gas supply in the Union by ensuring the proper and continuous functioning of the internal market in natural gas and renewable and low carbon gases (‘gas’), by allowing for exceptional measures to be implemented when the market can no longer deliver the gas supplies required, including solidarity measure of a last resort, and by providing for the clear definition and attribution of responsibilities among natural gas undertakings, the Member States and the Union regarding both preventive action and the reaction to concrete disruptions of gas supply.’;
(2) In Article 2, the following definitions are added:
‘(27)‘gas’ – means natural gas as defined in point (1) of Article 2 of [recast Gas Directive as proposed in COM(2021) xxx];’
(28) ‘strategic stock’ means gas purchased, managed and stored by transmission system operators exclusively for carrying out their functions as transmission system operators and for the purpose of security of supply. Gas stored as part of a strategic stock shall be dispatched only where required to keep the system in operation under secure and reliable conditions in line with Article 35 [recast Gas Directive as proposed in COM(2021) xxx] or in case of a declared emergency under Article 11 of Regulation (EU) 2017/1938 of the European Parliament and of the Council and can otherwise not be sold on wholesale gas markets;’
(29) ‘storage user’ means a customer or a potential customer of a storage system operator.’
(3) In Article 2, the following subparagraph is added:
‘References to natural gas shall be construed as references to gas as defined in point (27).’
(4) Article 7 is amended as follows:
(a) paragraph 1 is replaced by the following:
‘1. The simulation shall include the identification and assessment of emergency gas supply corridors and shall also identify which Member States can address identified risks, including in relation to storage and LNG.’
(5) In paragraph 4, point (e)is replaced by the following:
‘(e) taking into account risks relating to the control of infrastructure relevant to the security of gas supply to the extent that they may involve, inter alia, risks of underinvestment, undermining diversification, misuse of existing infrastructure, including hoarding of storage capacities, or an infringement of Union law;’
(6) The following new Article 7a is inserted:
Article 7 - a Preventive and emergency measures
Member States shall take appropriate preventive and emergency measures. These measures have to take into account the results of the most recent Union wide simulation of disruption scenarios foreseen in Article 7 and need to be appropriate to address the risks identified in the common and national risk assessments.’(7) Articles 8(1) and 9(3) to 9(10) shall be moved to become Article 7a(2) to 7a(12).
(8) The following new Articles 7b, 7c and 7d are inserted:
Article 7 - b Efficient and joint use of infrastructures and gas storage
1. Member States shall ensure the use of the existing infrastructure at national and regional level, for the benefit of the security of supply in an efficient way. In particular, Member States shall enable the cross border exchange of gas and cross border access to storage and LNG.2. The common risk assessments and any subsequent updates shall include an analysis of the adequacy of the capacity of storage facilities available in the region, on the functioning of the storage capacities and their contribution to security of supply of the Union, including risks related to control of storage infrastructure relevant for the security of gas supply by third-country entities. This analysis shall compare the role of gas storages with alternative measures such as investments in energy efficiency and renewables.
3. Where the results of this analysis in the common risk assessment or in any updates to this assessment indicate that there is a risk at regional level, which may be a risk for one or several Member States of the same risk group, that cannot otherwise be addressed, the Member States shall consider one or several of the following measures:
a) obliging gas storage users to store a minimum volume of gas in underground storage,
b) tendering, auctioning or equivalent mechanisms which incentivise bookings of storage capacities under which the potential shortfalls in costs are covered,
c) obliging a transmission system operator to purchase and manage strategic stocks of gas,
d) allowing for a possibility to fully integrate storages in the network of the transmission system operator in case the storage would otherwise stop operations, if such stop of operations would put at risk the secure and reliable functioning of the transmission system.
Such measures shall be subject to consultation in the relevant risk group, in particular on how the measures address the risks identified in the common risk assessment.
4. The measures adopted pursuant to Article 7a and paragraph 3 of this Article shall be necessary, clearly defined, transparent, proportionate, non-discriminatory and verifiable, and shall not unduly distort competition or the effective functioning of the internal market in gas or endanger the security of gas supply of other Member States or of the Union. The measures shall not block or restrict cross-border capacities allocated in line with the provisions of Commission Regulation (EU) 2017/459.
5. If regional risks are identified, Member States in the relevant risk group shall aim at agreeing in the regional risk group on the targeted level of stocks in the region to ensure that the identified security of supply risk is covered in line with the common analysis of risks.
Member States in the relevant risk group shall seek to agree on joint financing schemes of the measures taken pursuant to paragraph 3 chosen on the basis of the common risk assessment. The allocation of cost across Member States shall be fair and based on the analysis conducted in accordance with paragraph 2. If the measure is financed through a levy, this levy shall not be allocated to cross-border interconnection points. If Member States cannot agree on joint financing schemes, the Commission may adopt a legally non-binding guidance on the key elements to be included.
6. Member States in the relevant risk group shall agree on a common coordinated procedure to withdraw the gas stored in storage referred to in paragraph 3 of this Article in case of emergency, as defined in Article 11(1). The common coordinated procedure shall include the procedure in case of withdrawal of gas as part of the actions coordinated by the Commission in case of regional or Union emergency as referred to in Article 12(3).
7. After the internal consultation in the relevant risk group referred to in paragraph 3, the Member States shall consult the Gas Coordination Group. The Member States shall inform the Gas Coordination Group of the joint financing schemes and withdrawal procedures in paragraph 5 and 6.
8. The measures which result from paragraph 3 shall be included in the risk assessments, and where applicable in the preventive action plan and the emergency plan, corresponding to the given period.
Article 7 - c EU wide risk assessment
As a transitional provision, within six months from the date of entry into force of this Regulation, all Member States shall complete the existing common and national risk assessments, and where applicable the preventive action plan and the emergency plan, by the necessary addendum to comply with Article 7b, paragraph 2 to 6. These updated plans shall be made public and notified to the Commission following the procedure in Article 8(7), and the Commission shall issue a recommendation under the conditions defined in Article 8(8), to be taken into consideration by the competent authority concerned following the procedure described in Article 8(9).Article 7 - d Joint procurement for strategic stocks
1. Member States may set up a mechanism for the joint procurement of strategic stocks by transmission system operators as part of the preventive measures to ensure security of supply.The mechanism shall be designed in compliance with EU law and competition rules and in a way so that the strategic stocks can be used as part of the actions coordinated by the Commission in case of regional or Union emergency, as referred to in Article 12(3).
The mechanism shall be open to participation of all transmission system operators within the Union who wish to join after its establishment.
2. The participating Member States shall notify their intention to establish such mechanism to the Commission. The notification shall include the information necessary to assess the compliance with this Regulation, such as the volume of gas to be purchased, the duration of the measure, the participating transmission system operators, the governance arrangements, the operating procedures and conditions for activation in an emergency situation. It shall also specify the costs and benefits expected.
3. The Commission may issue an opinion within a time limit of three months as to the compliance of the envisaged mechanism with this Regulation . The Commission shall inform the Gas Coordination Group of the notification received and if appropriate ACER. The participating Member States shall take the Commission opinion in the utmost account.
Article 7 - e Report on storage and joint procurement for strategic stocks
The Commission shall issue a report three years after the entry into force of this Regulation on the application of Articles 7b, Articles 7c and Article 7d and on the experience, benefits, costs, and any obstacles encountered in the use of the possibility of joint procurement for strategic stocks.(9) Article 8 is amended as follows:
(a)paragraph 1 is deleted;
(b)paragraph 3 is replaced by the following:
‘3.The regional chapters shall contain appropriate and effective cross-border measures, including in relation to storages and LNG, subject to agreement between the Member States implementing the measures from the same or different risk groups affected by the measure on the basis of the simulation referred to in Article 7(1) and the common risk assessment.’;
(10) in paragraph 6, the following sentence is added:
‘The proposal for cooperation may include the voluntary participation in joint procurement of strategic stocks, as referred to in Article 7c.’;
(11) The following new Article 8a is inserted:
‘Article 8a
Measures on cybersecurity
1. When establishing the preventive action plans and the emergency plans, the Member States shall consider the appropriate measures related to cybersecurity.
2. The Commission may adopt a delegated act in accordance with Article 19 establishing gas sector-specific rules for the cyber security aspects of cross-border gas flows, including rules on common minimum requirements, planning, monitoring, reporting and crisis management.
3. To develop this delegated act, the Commission shall work closely with the European Union Agency for the Cooperation of Energy Regulators ACER, the Cybersecurity Agency ENISA, the European Network of Transmission System Operators for Gas (ENTSOG) and a limited number of main affected stakeholders, as well as entities with existing competences in cybersecurity, within their own mandate, such as cybersecurity operation centres (SOCs), and computer security incident response teams (CSIRT), as referred to in the Directive on security of network and information systems (NIS 2.0)’
(12) Article 9 is amended as follows:
(a) paragraph 1 is amended as follows:
(i) point (e) is replaced by the following:
‘(e) other preventive measures designed to address the risks identified in the risk assessment, as referred to in Article 7a(1), such as those relating to the need to enhance interconnections between neighbouring Member States, to further improve energy efficiency, to prevent capacity hoarding, to reduce gas demand and the possibility to diversify gas routes and sources of gas supply and the regional utilisation of existing storage and LNG capacities, if appropriate, in order to maintain gas supply to all customers as far as possible;’;
(ii) point (k) is replaced by the following:
‘ (k) information on all public service obligations that relate to the security of gas supply, including storage capacity obligations and strategic stocks;’;.
(iii) the following point (i) is added:
‘(i) information on measures related to cybersecurity, as referred to in Article 8a.’;
(13) In Article 12(3), the following point (d) is added:
‘(d) coordinate the actions with regard to the joint procurement of strategic stocks, as referred to in Article 7c.’;
(14) Article 13 is amended as follows:
(a) paragraphs 3, 4 and 5 are replaced by the following:
‘3. A solidarity measure shall be a last resort measure that shall apply only if the requesting Member State has:
(a) declared an emergency state under Article 11;
(b) not been able to cover the deficit in gas supply to its solidarity protected customers despite the application of the measure referred to in Article 11(3);
(c) exhausted all market-based measures (‘voluntary measures’), all non-market based measures (‘mandatory measures’) and other measures contained in its emergency plan;
(d) notified an explicit request to the Commission and to the competent authorities of all Member States with which it is connected either directly or pursuant to paragraph 2 via a third country, accompanied by a description of the implemented measures referred to in point (b) of this paragraph and by the explicit commitment to pay fair and prompt compensation to the Member State providing solidarity in accordance with paragraph 8.
4. The Member States that receives a request for a solidarity measure shall make such offers on the basis of voluntary demand-side measures as much as and for as long as possible, before resorting to non-market-based measures.
Where market-based measures prove insufficient for the Member State providing solidarity to address the deficit in gas supply to solidarity protected customers in the requesting Member State, the Member State providing solidarity may introduce non-market-based measures in order to comply with the obligations laid down in paragraphs 1 and 2.
5. If there is more than one Member State that could provide solidarity to a requesting Member State, the requesting Member State shall, after consulting all Member States required to provide solidarity, seek the most advantageous offer on the basis of cost, speed of delivery, reliability and diversification of supplies of gas. Should the available market based offers not be enough to cover the deficit in gas supply to the solidarity protected customers in the requesting Member State, the Member States required to provide solidarity shall be obliged to activate non-market based measures.’
(b) In paragraph 10, the following subparagraph is added:
‘Where a solidarity measure has been provided in accordance with paragraphs 1 and 2, the final amount of the compensation that has been paid by the requesting Member State shall be subject to ex-post control by the Regulatory Authority and/or the Competition Authority of the Providing Member State, within three months of the lifting of the emergency. The Requesting Member State shall be consulted and give its opinion on the conclusion of the ex-post control. Following the consultation with the Requesting Member State, the authority which exercises this ex-post control is entitled to require a rectification of the amount of the compensation, taking into account the opinion of the Requesting Member State. The conclusions of this ex-post control shall be transmitted to the European Commission, which will take them into consideration in its report on the emergency pursuant to Article 14(3).’;
(c) paragraph 14 is replaced by the following:
‘14. The applicability of this Article shall not be affected if Member States fail to agree or finalise their technical, legal and financial arrangements. In such a situation, where a solidarity measure is needed to guarantee the gas supply to solidarity protected customers, the arrangements contained in (new) Annex IX shall apply by default to the request and provision of the relevant gas.’;
(15) In Article 14(3), the first subparagraph is replaced by the following:
‘After an emergency, the competent authority referred to in paragraph 1 shall, as soon as possible and at the latest six weeks after the lifting of the emergency, provide the Commission with a detailed assessment of the emergency and the effectiveness of the measures implemented, including an assessment of the economic impact of the emergency, the impact on the electricity sector and the assistance provided to or received from, the Union and its Member States. Where relevant, the assessment shall include a detailed description of the circumstances that led to activating the mechanism in Article 13 and the conditions under which the missing gas supplies were received, including the price and financial compensation paid, and – where relevant – the reasons why the solidarity offers were not accepted and /or gas was not supplied. Such assessment shall be made available to the GCG and shall be reflected in the updates of the preventive action plans and the emergency plans.’
(16) Article 19 is amended as follows:
(a) the first sentence of paragraph 2 is replaced by the following:
‘The power to adopt delegated acts referred to in Article 3(8), Article 7(5), Article 8(5) and Article 8a(2) (cybersecurity) shall be conferred on the Commission for a period of five years from 1 November 2017.’;
(b) the first sentence of paragraph 3 is replaced by the following:
‘3. The delegation of power referred to in Article 3(8), Article 7(5), Article 8(5) and Article 8a(2) (cybersecurity) may be revoked at any time by the European Parliament or by the Council.’;
(c) the first sentence of paragraph 6 is replaced by the following:
‘6. A delegated act adopted pursuant to Article 3(8), Article 7(5), Article 8(5) and Article 8a(2) (cybersecurity) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object.’;
(17) Annex VI is amended as follows:
(a) in section 5(a) , second subparagraph, the following indent is inserted after the second indent ‘Measures to diversify gas routes and sources of supply,’
‘- Measures to prevent capacity hoarding,’;
(b) in section 11.3, point (a) , second subparagraph, the following indent is inserted after the second indent ‘Measures to diversify gas routes and sources of supply,’;
‘- Measures to prevent capacity hoarding,’;
(18) The text set out in Annex II to this Regulation is added as Annex IX to Regulation (EU) 2017/1938.
715/2009 (adapted)
Article 6831 - Repeal
Regulation (EC) No 715/2009 is 1775/2005 shall be repealed from 3 March 2011. References made to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.Article 6932 - Entry into force
Corrigendum, OJ L 229, 1.9.2009, p. 29 (adapted)new
This Regulation shall enter into force on the 20th twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from January 2023 3 March 2011.
715/2009
This Regulation shall be binding in its entirety and directly applicable in all Member States.