Legal provisions of COM(2022)135 - Amendment of Regulation 2017/1938 concerning measures to safeguard the security of gas supply and 715/2009 on conditions for access to natural gas transmission networks

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dossier COM(2022)135 - Amendment of Regulation 2017/1938 concerning measures to safeguard the security of gas supply and 715/2009 on conditions for ...
document COM(2022)135 EN
date March 23, 2022

Contents

Article 1 - Amendments to Regulation (EU) 2017/1938

Regulation (EU) 2017/1938 is amended as follows:

(1) In Article 2, the following points are added:

“(27) ‘filling trajectory’ means several intermediary targets for each Member State as listed in Annex Ia and Ib;

(28) ‘filling target’ means a binding target for the filling level of storage facilities for non-liquefied natural gas;

(29) ‘strategic storage’ means storage of non-liquefied natural gas which is subject to public authority authorisation for release, cannot be sold to the market but only released in case of supply scarcity, a supply disruption or emergency.”

(30) ‘strategic stock’ means non-liquefied natural 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 13 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC or in case of a declared emergency under Article 11 and can otherwise not be sold on wholesale gas markets;’  


(2) The following Articles 6a to 6e are inserted:

‘Article 6a

Mandatory filling target and filling trajectory

(1) Each Member State shall ensure that the filling target set out in paragraph 2 for the aggregated capacity of all storage facilities in their territory is reached by 1 November each year.

(2) For 2022, the filling target shall be set at 80% of the capacity of all storage facilities on the territory of the respective Member States. Unless the Commission decides otherwise pursuant to paragraph 4, the filling target shall be set at 90% for the following years.

(3) Member States shall take the necessary measures to fulfil the intermediary targets as indicated in Annex Ia and Ib for each Member State. For 2022, intermediary targets shall only be set for August, September and October. As of 2023 Member States shall ensure that intermediary targets for February, May, July and September are fulfilled.

(4) The Commission is empowered, after consultation of the Gas Coordination Group, to adopt a delegated act amending Annex Ib to specify the filling target and a filling trajectory from 2023 onwards, in accordance with Article 19. That delegated act shall be adopted no later than 31 December of the year preceding the year for which the new filling target is set. The filling target and filling trajectory set by the Commission shall be based on an assessment of the general security of supply situation and the development of gas demand and supply in the Union and individual Member States, and set in a manner that ensures security of supply while avoiding unnecessary burden for Member States, gas market participants, storage system operators or citizens.

(5) Where a Member State cannot meet the filling target due to specific technical characteristics of one or more storage facilities within its territory, such as exceptionally low injection rates, the Member State shall be allowed to reach the filling target only on 1 December. The Member State shall inform the Commission before 1 November, providing reasons for the delay.

(6) The filling target shall not apply where and for as long as the Commission has declared a Union or regional emergency pursuant to Article 12.

(7) Competent authorities shall continuously monitor the filling trajectory each year and report regularly to the Gas Coordination Group. If the filling level of a given Member State is more than 2 percentage points below the level of the filling trajectory pursuant to Annex Ib, the competent authorities shall, without delay, take effective measures to increase the filling level. Member States shall inform the Commission and the Gas Coordination Group of the measures taken.

(8) In case of substantial and sustained deviation from the filling trajectories, the following measures shall be taken:

(a)after consultation of the Gas Coordination Group and the Member State in question, the Commission shall issue a warning to the Member State and recommend measures to be immediately taken;

(b)if the deviation from the trajectory is not significantly reduced within one month from the date of the warning, the Commission shall, after consultation of the Gas Coordination Group and the Member State in question, take a decision as a measure of last resort to oblige the Member State to take measures that effectively remove the gap to the trajectory, including where appropriate one or several of the measures listed under Article 6b(1), or any other measure to ensure the mandatory filling target pursuant to this Article is reached;

(c)when deciding upon the adequate measures pursuant to point (b), the Commission shall take into account the specific situation of the respective Member State, such as the size of the storage facilities in relation to the domestic gas consumption or the importance of the storage facilities for security of supply in the region. Any measures taken by the Commission to address deviations from the filling trajectory for the year 2022 shall take into account the short timeframe for the implementation of this Article at national level which may have contributed to the deviation from the filling trajectory for 2022;

(d)The Commission shall ensure that the measures do not go beyond what is necessary to maintain security of supply, without putting disproportionate burden on Member States, gas market participants, storage system operators or citizens.

Article 6 - b Implementation of the filling target

(1) Member States shall take all necessary measures, including financial incentives or compensation to market participants, to ensure that the mandatory filling targets pursuant to Article 6(a) are reached. These measures may, in particular, include:

(a)imposing an obligation on gas suppliers to store minimum volumes of gas in storage facilities;

(b)imposing an obligation on storage owners to tender their capacities to market participants;

(c)imposing an obligation on a transmission system operator to purchase and manage strategic stocks of gas exclusively for carrying out their functions as transmission system operators and for the purpose of security of supply in case of emergency;

(d)using coordinated instruments, such as platforms for the purchase of LNG, with other Member States to maximise the utilisation of LNG and to reduce infrastructure and regulatory barriers to the shared use of LNG to fill storage facilities;

(e)providing financial incentives for market participants or compensation for the potential shortfall of revenues or for costs incurred by obligations on market participants which cannot be covered by revenues;

(f)adopting effective instruments to set obligation on storage capacity holders to use or release unused booked capacities.

(2) The measures adopted pursuant to this Article shall be limited to what is necessary to achieve the filling target, clearly defined, transparent, proportionate, non-discriminatory and verifiable. They 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.

(3) Member States shall take all necessary measures to ensure the use of the existing infrastructure at national and regional level, for the benefit of security of supply in an efficient way. These measures shall under no circumstances block or restrict the use of storage or LNG facilities across borders, and shall not limit cross-border transmission capacities allocated in accordance with Commission Regulation (EU) 2017/459.

Article 6 - c Burden-sharing

(1) Member States without storage facilities shall ensure that domestic market participants have arrangements with storage system operators from Member States with storage facilities in place which ensure the use of storage volumes in those Member States by 1 November corresponding to at least 15% of the annual gas consumption of the Member State without storage facilities. Where cross-border transmission capacity or other technical limitations do not allow to fully use 15% of non-domestic storage volumes, only the technically possible volumes shall be stored outside the Member State without storage.

(2) By way of derogation from paragraph 1, Member States without storage facilities may instead jointly develop a burden-sharing mechanism with one or more Member States with storage facilities. The burden-sharing mechanism shall be based on the relevant data of the latest risk assessment pursuant to Article 7 and take into account the following parameters:

(a)the cost for financial support to ensure filling targets, without consideration of costs for filling of strategic storage obligations;

(b)the gas volumes needed to meet the demand of protected customers in accordance with Article 6(1);

(c)the technical limitations, such as the available storage capacity, technical cross-border capacity, withdrawal rates. 

(3) The jointly developed mechanism shall be notified to the Commission at the latest one month after the entry into force of this Article.

(4) Member States without storage facilities may provide incentives or financial compensation to market participants for the shortfall of revenues or for costs incurred by obligations imposed on them which cannot be covered by revenue to ensure the implementation of the obligation to store gas in other Member States pursuant to paragraph 1 or the implementation of the jointly developed mechanism pursuant to paragraph 2. If the measure is financed through a levy, that levy shall not be allocated to cross-border interconnection points.  

Article 6 - d Monitoring and enforcement

(1) Storage system operators shall report the filling level at each of the control points established in accordance with Annex Ia and Ib to the competent authorities in the Member States where they are located. 

(2) The competent authorities of the Member States shall monitor the filling levels of the storage facilities in their territories at the end of each month and report the results to the Commission without undue delay.

(3) Based on the information provided by the competent authorities of the Member States, the Commission shall regularly report to the Gas Coordination Group.

(4) The Gas Coordination Group shall support the Commission in the monitoring of the filling targets and trajectories, and develop guidance to the Commission on adequate measures to ensure compliance in the case where Member States do not meet the targets of the filling trajectory or do not comply with the filling targets.

(5) Member States shall take the necessary measures to reach the filling trajectory and the filling target and to enforce the storage obligations which are required to reach that trajectory and that target on market participants, including by imposing sufficiently deterrent sanctions and fines on them.

(6) Member States shall inform the Commission without delay of the enforcement measures taken pursuant to this Regulation.

(7) Where commercially sensitive information is to be exchanged, the Commission may convene meetings of the Gas Coordination Group in a format restricted to Member States.

(8) The information exchanged shall be limited to what is required to monitor compliance with the requirements of this Regulation. The Commission, the regulatory authorities and the Member States shall preserve the confidentiality of commercially sensitive information received in the context of this Regulation.’

Article 6 - e Scope of application

The provisions of Articles 6a to 6d shall not apply to parts of LNG facilities used for storage.


(3) The Annexes are amended in accordance with the text set out in Annex I to this Regulation:

Article 2 - Amendments to Regulation (EC) No 715/2009

(1) The following Article 3a is inserted:

‘Article 3a

Certification of storage system operators


(1) Member States shall ensure that each storage system operator, including storage system operators controlled by transmission system operators, is certified by the regulatory authority under this Article, or another competent authority designated by the Member State concerned, in accordance with the procedure laid down in this Article. The obligation to certify storage operators under this Article also applies to storage system operators controlled by transmission system operators which have already been certified under unbundling rules pursuant to Articles 9 to 11 of Directive 2009/73/EC.

(2) For storage system operators operating storage facilities with capacities above 3.5 TWh and which were filled on 31 March 2021 and on 31 March 2022 at a level which on average was less than 30% of their maximum capacity, the regulatory authority or the designated authority pursuant to paragraph 1 shall adopt a draft decision on the certification of storage system operators within 100 working days from the date of entry into force of this Regulation or the receipt of a notification pursuant to paragraph 8. For all other storage system operators, a draft decision shall be adopted within 18 months from the date of entry into force of this Regulation or the receipt of a notification pursuant to paragraphs 7 or 8. In considering the risk to the security of energy supplies, the regulatory authority or the designated authority pursuant to paragraph 1 shall take into account any security of supply risk at national, regional or Union-wide level resulting, for example, from:

(a)ownership, supply or other commercial relationships that could negatively affect the incentives and ability of the storage operator to fill the storage facility;

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

(c)the rights and obligations of the Member State or Member States concerned with respect to a third country or third countries arising under agreements concluded with them, insofar as they are in compliance with Union law; or

(d)any other specific facts and circumstances of the case.

(3) The regulatory authority or the designated authority pursuant to paragraph 1 shall refuse the certification if it is demonstrated that a person which directly or indirectly controls or exercises any right over the storage system operator within the meaning of Article 9 of Directive 2009/73/EC may put at risk the security of energy supply or the essential security interests of any Member State or the Union. The regulatory authority or the designated authority pursuant to paragraph 1 may instead choose to grant the certification with conditions, which ensure that all risks which may negatively influence the filling of the storages as provided for under this Regulation are sufficiently mitigated, and provided that their workability can be fully ensured by effective implementation and monitoring.

(4) Where the regulatory authority, or the designated authority pursuant to paragraph 1 comes to the conclusion that the security of supply risks cannot be removed by conditions pursuant to paragraph 3 and therefore refuses the certification, it shall:

(a)require any person or persons that it considers may put at risk the security of energy supply or the essential security interest of any Member State or the Union to dispose of the shareholding or rights they have over the storage system operator and to set a time limit for such disposal;

(b)order, where appropriate, interim measures, to ensure that such person or persons cannot exercise any control or right over that storage system operator until the disposal of the shareholding or rights; and

(c)decide on the appropriate compensatory measures.

(5) The regulatory authority or the designated authority pursuant to paragraph 1 shall notify the draft decision to the Commission without delay, together with all the relevant information with respect to that decision. The Commission shall deliver its opinion on the draft decision to the national regulatory authority or the designated authority pursuant to paragraph 1 within 50 working days. The regulatory authority or the designated authority pursuant to paragraph 1 shall take utmost account of the Commission’s opinion.

(6) The regulatory authority or the designated authority pursuant to paragraph 1 shall adopt its decision on the certification of storage system operators no later than 25 working days as of receipt of the Commission opinion.

(7) Before a newly built storage facility is put into operation, the storage system operator shall be certified in accordance with paragraphs 1 to 6. The storage system operator shall notify the regulatory authority or the designated authority pursuant to paragraph 1 of its intention to put the storage facility into operation.

(8) Storage system operators shall notify to the regulatory authority or the designated authority pursuant to paragraph 1 any planned transaction which would require a reassessment of their compliance with the certification requirements as set out in paragraphs 1 and 2.

(9) The regulatory authority or the designated authority pursuant to paragraph 1 shall monitor the continuing compliance of storage system operators with the requirements of paragraphs 1 and 2. It shall open a certification procedure to ensure such compliance:

(a)upon notification by the storage system operator pursuant to paragraphs 7 or 8;

(b)on its own initiative where it has knowledge that a planned change in rights or influence over a storage system operator may lead to non-compliance with the requirements of paragraphs 1 and 2;

(c)upon a reasoned request from the Commission.

(10) Member States shall take all necessary measures to ensure the continued operation of the storage facilities on their territory. Those storage facilities may exit operations only following an assessment conducted by the regulatory authority or the designated authority pursuant to paragraph 1, taking into account an opinion of ENTSOG, which concludes that the exit does not weaken the security of gas supply at national or Union level. Appropriate compensatory measures shall be taken, where appropriate, if exit of operations is not allowed.

(11) The Commission is empowered to adopt a delegated act setting out the details of the procedure to be followed for the application of this paragraph in accordance with Article 19.

(12) The provisions of this Article shall not apply to parts of LNG facilities used for storage.


(2) In Article 13, the following paragraph 3 is added:

‘3. A discount of 100 % shall be applied to capacity-based transmission tariffs at entry points from and exit points to storage facilities, unless and to the extent a storage facility which is connected to more than one transmission or distribution network is used to compete with an interconnection point. The Commission shall re-examine this tariff discount 5 years after entry into force of the Regulation. It shall assess whether the level of the reduction set out in this Article is still adequate in view of the storage obligation pursuant to Article 6a of Regulation (EU) 2017/1938.’

Article 3 - Entry into force and application

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall apply until the date on which the Regulation (EU) of the European Parliament and of the Council on the internal markets for renewable and natural gases and for hydrogen, based on the Commission’s proposal of 15 December 2021, enters into force.

This Regulation shall be binding in its entirety and directly applicable in all Member States.