Proposal for a REGULATION ON THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a European Union Agency for the Cooperation of Energy Regulators (recast) - Main contents

Document date	04-12-2018
Publication date	05-12-2018
Reference	9754/7/18 REV 7
From	General Secretariat of the Council
External link	original article
Original document in PDF

Council of the European Union

Brussels, 4 December 2018 (OR. en)

9754/7/18

Interinstitutional File: REV 7

2016/0378(COD) i

ENER 220 CODEC 968

NOTE

From: General Secretariat of the Council

To: Permanent Representatives Committee

No. Cion doc.: 15149/1/16 REV 1 + ADD 1 REV 1

Subject: Proposal for a REGULATION ON THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a European Union Agency for the

Cooperation of Energy Regulators (recast)

• I. 

  INTRODUCTION

  • 1. 

    On 30 November 2016, the Commission submitted a set of proposals as “Clean Energy

    for All Europeans” package in order to provide a stable legislative framework,

    necessary for the energy transition. This legislative file, based on article 194 para 2 of

    the Treaty, generally updates the already attributed list of tasks for ACER's duties in the

    field of wholesale market supervision and issues of cross-border relevance.

  • 2. 

    In the European Parliament, this proposal was referred to the Industry, Research and

    Energy Committee (ITRE) which appointed Morten Helveg Petersen (ALDE) as

    rapporteur.

II. STATE OF PLAY

• 3. 

  The TTE (Energy) Council adopted, on 11 June 2018, a general approach on the abovementioned

  proposal. The European Parliament adopted its position on the proposal on 1

  March 2018; The first trilogue, based on the Council general approach, took place on 26

  September 2018, the second trilogue took place on 23 October 2018 and the third one

  on 21 November 2018.

• 4. 

  During the third trilogue both institutions explained their views on the main political

  issues and recognised the need to swiftly advance on this file. A broad mandate was also

  given to the subsequent technical meetings to identify and make progress on certain

  areas of compromise in view of the fourth trilogue which will take place on 11

  December 2018.

• 5. 

  Concerning the ACER Regulation, both institutions recognised the importance of

  having a strong, independent and transparent Agency supporting the successful

  implementation of the Clean Energy Package.

  The European Parliament put a specific emphasis on providing ACER with a role in

  assuring that ENTSO for Electricity, the ENTSO for Gas, the EU DSO and the Regional

  Coordination Centres comply with their obligations under certain legal acts.

  Both co-legislators strive to find a legally sound way to improve oversight and

  enforcement of the pan-European and regional entities' obligations.

• 6. 

  At the Energy Working Party meetings during July to November 2018, delegations were

  invited to indicate their positions and flexibility on the Parliament's amendments

  concerning the entire set of articles. Furthermore, in order to prepare the fourth trilogue,

  technical meetings have taken place.

III. REVISED MANDATE

• 7. 

  In view of the fourth and hopefully final trilogue on 11 December 2018, the basis for

  the discussion will be the four-column table contained in the Annex to this Note that

  sets out, in the fourth column, the Presidency's compromise proposals.

• 8. 

  In the fourth column, bold italics indicates text proposed by the EP; bold indicates texts

  of the Council general approach added to the Commission proposal and/or compromise

  texts proposed by the Presidency in response to the EP amendments; bold (bold)

  underlined indicates new text elements, diverging from the previous document

  (9754/6/18 REV 6) and strikethrough indicates deletion.

  Furthermore, 'Provisionally agreed' in the fourth column indicates that the text was

  provisionally agreed during the first three trilogues 'Provisionally agreed in TM'

  indicates that the text was provisionally agreed at technical level after the third trilogue

  while awaiting to be provisionally confirmed at the fourth trilogue."

• 9. 

  The suggested compromise proposals in this Rev 7 include the following provisions:

  Art. 4(3)(a), Art. 5(3), Art. 6(2)(a), Art. 6(6)(a), Art. 16(3a), Art. 23(5)(a), Art. 25c,

  Art. 33(8)(a).

• 10. 

  The Presidency will issue a short discussion paper with options regarding Art. 4 (5), (6),

   Art. 5(2), (2a), Art. 6(8) and Art. 14.

• 11. 

  Regarding other European Parliament's amendments, the Presidency proposes to

  maintain the Council's general approach at this stage of negotiations.

• I. 

  CONCLUSION

• 12. 

  The Permanent Representatives Committee is invited to agree on a revised mandate for

  the fourth trilogue on 11 December 2018, on the basis of the text reflected in the Annex.

ANNEX

Proposal for REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a European Union Agency for the Cooperation of

Energy Regulators (recast)

• 1. 

  COMISSION PROPOSAL EP PLENARY TEXT COUNCIL GENERAL Compromise proposals

  APPROACH (doc.9478/18)

  (COD 2016/0378 - doc. 15149/1/16 REV 1 +ADD1REV1)

• 2. 

  THE EUROPEAN PARLIAMENT AND THE THE EUROPEAN N.B. any compromise

  COUNCIL OF THE EUROPEAN UNION, PARLIAMENT AND THE proposals for the recitals

  Having regard to the Treaty on the Functioning of COUNCIL OF THE

  the European Union, and in particular Article EUROPEAN UNION, are provisional, and 194(2) thereof, Having regard to the Treaty on without prejudice to any

  Having regard to the proposal from the European the Functioning of the European alignment with the content Commission, Union , and in particular Article of the Articles that may

After transmission of the draft legislative act to the 194(2) thereof, prove necessary.

national parliaments, Having regard to the proposal Having regard to the opinion of the European from the European Commission, Economic and Social Committee, After transmission of the draft Having regard to the opinion of the Committee of legislative act to the national the Regions, parliaments, Acting in accordance with the ordinary legislative Having regard to the opinion of procedure , the European Economic and Whereas: Social Committee, Having regard to the opinion of the Committee of the Regions, Acting in accordance with the ordinary legislative procedure , Whereas:

ANNEX TREE.2.B EN

• 3. 

  (1) Regulation (EC) No 713/2009 i of the

  European Parliament and of the Council 1 has been (1) Regulation (EC) No

  substantially amended. Since further amendments 713/2009 of the European 1

  are to be made, that Regulation should be recast in Parliament and of the Council

  the interest of clarity. has been substantially amended. Since further amendments are to

  be made, that Regulation should be recast in the interest of clarity.

• 4. 

  (2) The creation of the Agency has manifestly (2) The creation of the

  improved coordination between regulators on Agency has manifestly cross-border issues. Since its creation, the Agency improved coordination between has received new important tasks concerning the regulators on cross-border monitoring of wholesale markets under Regulation issues. Since its creation, the (EU) No 1227/2011 of the European Parliament Agency has received new and of the Council 2 and in the field of cross-border important tasks concerning the energy infrastructure under Regulation (EU) No monitoring of wholesale 347/2013 of the European Parliament and Council 3 . markets under Regulation (EU) No 1227/2011 i of the European Parliament and of the Council 2 and in the field of cross-border energy infrastructure under Regulation (EU) No 347/2013 i of the European Parliament and Council 3 .

1 Regulation (EC) No 713/2009 i of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy

Regulators (OJ L 211, 14.8.2009, p. 1) 2 Regulation (EU) No 1227/2011 i of the European Parliament and of the Council of 25 October 2011on wholesale energy market integrity and transparency

(OJ L 326, 8.12.2011, p. 1). 3 Regulation (EU) No 347/2013 i of the European Parliament and Council of 17 April 2013 on guidelines for trans-European energy infrastructure and

repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009 i, (EC) No 714/2009 i and (EC) No 715/2009 (OJ L 115, 25.4.2013, p. 39).

ANNEX TREE.2.B EN

• 5. 

  (3) It is projected that the need for coordination (3) It is projected that the

  of national regulatory actions will increase further need for coordination of in the coming years. Europe's energy system is in national regulatory actions will the middle of its most profound change in decades. increase further in the coming More market integration and the change towards years. Europe's energy system is more variable electricity production requires in the middle of its most increased efforts to coordinate national energy profound change in decades. policies with neighbours and to use the More market integration and the opportunities of cross-border electricity trade. change towards more variable electricity production requires increased efforts to coordinate national energy policies with neighbours and to use the opportunities of cross-border electricity trade.

• 6. 

  4) Experience with the implementation of (4) Experience with the

  internal market rules has shown that uncoordinated implementation of internal national action can lead to severe problems for the market rules has shown that market, notably in closely interconnected areas uncoordinated national action where decisions of Member States often have a can lead to severe problems for tangible impact on their neighbours. To achieve the the market, notably in closely positive effects of the internal electricity market for interconnected areas where consumer welfare, security of supply and decisions of Member States decarbonisation Member States, and in particular often have a tangible impact on independent national regulators, are required to their neighbours. To achieve the cooperate on those regulatory measures which have positive effects of the internal a cross-border effect. electricity market for consumer welfare, security of supply and decarbonisation Member States, and in particular independent national regulators, are required to cooperate on those regulatory measures which have a crossborder effect.

ANNEX TREE.2.B EN

• 7. 

  (5) Fragmented national state interventions in (5) Fragmented national state energy markets constitute an increasing risk to the interventions in energy markets proper functioning of cross-border electricity constitute an increasing risk to markets. The Agency should therefore be given a the proper functioning of crossrole in the development of a coordinated European border electricity markets. The resource adequacy assessment, in close cooperation Agency should therefore be with the European Network of Transmission given a role in the development System Operators for Electricity ("ENTSO for of a coordinated European Electricity"), in order to avoid the problems of resource adequacy assessment, fragmented national assessments which follow in close cooperation with the different uncoordinated methods and do not European Network of sufficiently take into account the situation in Transmission System Operators neighbouring countries. The Agency should also for Electricity ("ENTSO for supervise the technical parameters developed by Electricity"), in order to avoid the ENTSO for Electricity for an efficient the problems of fragmented participation of cross-border capacities and other national assessments which

  technical features of capacity mechanisms. follow different uncoordinated methods and do not sufficiently

  take into account the situation in neighbouring countries. The Agency should also supervise the technical parameters developed by the ENTSO for Electricity for an efficient participation of cross-border capacities and other technical features of capacity mechanisms.

• 8. 

  AM 1 Accept EP AM

  (5a) (new) Despite significant progress in integrating and interconnecting the internal electricity market, some Member States or regions still remain isolated or not

ANNEX TREE.2.B EN

sufficiently interconnected. This is particularly the case with regard to insular Member States and Member States located in the periphery. The Agency in its work should take account of the specific situation of those Member States or regions as appropriate.

• 9. 

  (6) Security of electricity supply requires a (6) Security of electricity

  coordinated approach to prepare against supply requires a coordinated unexpected supply crises. The Agency should approach to prepare against therefore coordinate national actions related to risk unexpected supply crises. The preparedness, in line with [Risk Preparedness Agency should therefore Regulation as proposed by COM(2016) 862 i]. coordinate national actions related to risk preparedness, in line with [Risk Preparedness Regulation as proposed by COM(2016) 862 i].

• 10. 

  (7) Due to the close interconnection of the AM 2

  Union electricity grid and the increasing need to (7) Due to the close

  • (7) 

    Due to the close Council compromise text:

  cooperate with neighbouring countries to maintain interconnection of the Union

  interconnection of the Union

  grid stability and integrate large volumes of electricity grid and the

  electricity grid and the (7) Due to the close

  renewable energies, regional operational centres increasing need to cooperate

  increasing need to cooperate interconnection of the Union

  will play an important role for the coordination of with neighbouring countries to

  with neighbouring countries to electricity grid and the

  transmission system operators. The Agency should maintain grid stability and

  maintain grid stability and increasing need to cooperate

  guarantee regulatory oversight over the regional integrate large volumes of

  integrate large volumes of with neighbouring countries

  operational centres where necessary. renewable energies, regional

  renewable energies, [] Regional to maintain grid stability and

  coordination centres will play Security Coordinators will integrate large volumes of an important role for the play an important role for the renewable energies, coordination of transmission coordination of transmission [Regional Coordination system operators. The Agency system operators. The Agency Centres] will play an

  should guarantee regulatory should guarantee regulatory important role for the oversight over the [] Regional coordination of transmission

ANNEX TREE.2.B EN

oversight over the regional Security Coordinators where system operators. The Agency

coordination centres and necessary. should guarantee regulatory

monitor their performance and oversight over the [Regional

compliance with relevant Coordination Centres] where

Union law. necessary.

• 11. 

  (8) As large parts of new electricity generation AM 3 (8) As large parts of new Accept in part, covered in will be connected at local level, distribution system (8) As large parts of new electricity generation will be recital 11a - line 15 operators will play an important role when it comes electricity generation will be connected at local level, to operating the European electricity system in a connected at local level, distribution system operators

  flexible and efficient manner. distribution system operators will play an important role when will play an important role when

  it comes to operating the it comes to operating the European electricity system in a European electricity system in a flexible and efficient manner. flexible and efficient manner.

  As the Commission considers the establishment of a Unionlevel body in order to enhance cooperation between transmission system operators and distribution system operators (DSOs), and to develop further guidance and codes on DSO issues, it is necessary to give the Agency certain regulatory oversight powers over such a body.

• 12. 

  (9) Member States should cooperate closely, (9) Member States should eliminating obstacles to cross-border exchanges of cooperate closely, eliminating electricity and natural gas with a view to achieving obstacles to cross-border the objectives of the Union energy policy. A exchanges of electricity and European Union Agency for the Cooperation of natural gas with a view to Energy Regulators (the Agency) was established achieving the objectives of the

  by Regulation (EC) No 713/2009 i in order to fill the Union energy policy. A European Union Agency for the

ANNEX TREE.2.B EN

regulatory gap at Union level and to contribute Cooperation of Energy towards the effective functioning of the internal Regulators (the Agency) was markets in electricity and natural gas. The Agency established by Regulation (EC) enables national regulatory authorities to enhance No 713/2009 in order to fill the their cooperation at Union level and participate, on regulatory gap at Union level a mutual basis, in the exercise of Union -related and to contribute towards the functions. effective functioning of the internal markets in electricity and natural gas. The Agency enables national regulatory authorities to enhance their cooperation at Union level and participate, on a mutual basis, in the exercise of Union -related functions.

• 13. 

  (10) The Agency should ensure that regulatory AM 4 functions performed by the national regulatory (10) The Agency should

  • (10) 

    The Agency should Accept EP AM

  authorities in accordance with [the recast ensure that regulatory functions

  ensure that regulatory functions

  Electricity Directive as proposed by COM(2016) performed by the national

  performed by the national

  864/2] and Directive 2009/73/EC i of the European regulatory authorities in

  regulatory authorities in

  Parliament and of the Council are properly accordance with [the recast

  accordance with [the recast

  coordinated and, where necessary, completed at Electricity Directive as

  Electricity Directive as

  Union level. To that end, it is necessary to proposed by COM(2016) 864 i/2]

  proposed by COM(2016) 864 i/2]

  guarantee the independence of the Agency from and Directive 2009/73/EC i of the

  and Directive 2009/73/EC i of the

  electricity and gas producers, transmission and European Parliament and of the

  European Parliament and of the

  distribution system operators, whether public or Council

  30 are properly Council are properly

  private, and consumers and to ensure the coordinated and, where

  coordinated and, where

  conformity of its actions with Union law, its necessary, completed at Union

  necessary, completed at Union

  technical and regulatory capacities and its level. To that end, it is necessary

  level. To that end, it is

  transparency, amenability to democratic control to guarantee the independence

  necessary to guarantee the

  and efficiency. of the Agency from electricity

  independence of the Agency

  and gas producers, transmission from electricity and gas and distribution system producers, transmission and operators, whether public or distribution system operators,

  private, and consumers and to whether public or private, and consumers and to ensure the

ANNEX TREE.2.B EN

ensure the conformity of its conformity of its actions with actions with Union law, its Union law, its technical and technical and regulatory regulatory capacities and its capacities and its transparency, transparency, amenability to amenability to democratic democratic control and control, including efficiency. accountability to the European Parliament and efficiency.

• 14. 

  (11) The Agency should monitor regional AM 5 (11) The Agency should Accept in part cooperation between transmission system operators (11) The Agency should monitor regional cooperation (11) The Agency should in the electricity and gas sectors as well as the monitor regional cooperation between transmission system monitor regional cooperation execution of the tasks of the ENTSO for between transmission system operators in the electricity and between transmission system Electricity, and the European Network of operators in the electricity and gas sectors as well as the operators in the electricity and Transmission System Operators for Gas ("ENTSO gas sectors as well as the execution of the tasks of the gas sectors as well as the for Gas"). The Agency should also monitor the execution of the tasks of the ENTSO for Electricity, and the execution of the tasks of the implementation of the tasks of other entities with European Network of European Network of European Network of regulated functions of Union-wide dimension, such Transmission System Operators Transmission System Operators Transmission System as energy exchanges. The involvement of the for Electricity (ENTSO for for Gas ("ENTSO for Gas"). Operators for Electricity Agency is essential in order to ensure that the Electricity), and the European The Agency should also (ENTSO for Electricity), and cooperation between transmission system operators Network of Transmission monitor the implementation of the European Network of and the operation of other entities with Union-wide System Operators for Gas the tasks of other entities with Transmission System functions proceeds in an efficient and transparent (ENTSO for Gas) and play a regulated functions of Union Operators for Gas (ENTSO way for the benefit of the internal markets in role in ensuring compliance wide dimension, such as energy for Gas). The Agency should

  electricity and natural gas. with Union law. The Agency should also monitor the exchanges. The involvement of also monitor the

  implementation of the tasks of the Agency is essential in order

implementation of the tasks of

other entities with regulated to ensure that the cooperation

other entities with regulated

functions of Union-wide between transmission system

functions of Union-wide

dimension, such as energy operators and the operation of

dimension, such as energy

exchanges. The involvement of other entities with Union-wide

exchanges. The involvement

the Agency is essential in order functions proceeds in an

of the Agency is essential in order to ensure that the

to ensure that the cooperation efficient and transparent way for cooperation system operators

between transmission system the benefit of the internal operators and the operation of markets in electricity and

and the operation of other

other entities with Union-wide natural gas.

entities with Union-wide functions proceeds in an

functions proceeds in an

ANNEX TREE.2.B EN

efficient and transparent way for efficient and transparent way the benefit of the internal for the benefit of the internal markets in electricity and markets in electricity and natural gas. The Agency should natural gas. The Agency be able to request and to should be able to request and receive, from the ENTSO for to receive, from the ENTSO Electricity and the ENTSO for for Electricity and the Gas, information necessary for ENTSO for Gas, information the fulfilment of its tasks. necessary for the fulfilment

of its tasks. 15. AM 6

(11 a) (new) With the Council compromise text

expansion of the operational (11 a) With the expansion of responsibilities of the ENTSO the operational for Electricity, the ENTSO for responsibilities of the Gas, the EU entity of ENTSO for Electricity, the Distribution System Operators ENTSO for Gas, the EU (the “EU DSO entity”) and the entity of Distribution System regional cooperation centres, it Operators (the “EU DSO is necessary to enhance entity”) and the regional oversight of such entities cooperation centres, it is operating at regional or Unionnecessary to enhance wide level. In exceptional oversight of such entities circumstances, in order to operating at regional or safeguard the proper Union-wide level. The functioning of the internal Agency should support energy market, ACER should national regulatory be able to adopt decisions authorities in ensuring such

addressed to such entities to oversight.

ensure that they comply with their obligations certain energy law.

ANNEX TREE.2.B EN

• 16. 

  (12) The Agency should monitor, in cooperation (12) The Agency should with the Commission, the Member States and monitor, in cooperation with the relevant national authorities, the internal markets in Commission, the Member States electricity and natural gas and inform the European and relevant national

  Parliament, the Commission and national authorities, the internal markets authorities of its findings where appropriate. Those in electricity and natural gas and monitoring tasks of the Agency should not inform the European duplicate or hamper monitoring by the Commission Parliament, the Commission and or national authorities, in particular national national authorities of its

  competition authorities. findings where appropriate. Those monitoring tasks of the

  Agency should not duplicate or hamper monitoring by the Commission or national authorities, in particular national competition authorities.

• 17. 

  (13) The Agency provides an integrated AM 7 (13) The Agency provides an Council compromise text: framework which enables national regulatory (13) The Agency provides an integrated framework which (13) The Agency provides authorities to participate and cooperate. That integrated framework which an integrated framework framework facilitates the uniform application of the enables national regulatory

  enables national regulatory which enables national

  legislation on the internal markets in electricity and authorities to participate and

  authorities to participate and regulatory authorities to

  natural gas throughout the Union. As regards cooperate. That framework

  cooperate. That framework participate and cooperate.

  situations concerning more than one Member State, facilitates the uniform

  facilitates the uniform That framework facilitates the

  the Agency has been granted the power to adopt application of the legislation on

  application of the legislation on uniform application of the

  individual decisions. That power should under the internal markets in

  the internal markets in legislation on the internal

  clearly specified conditions cover technical and electricity and natural gas

  electricity and natural gas markets in electricity and

  regulatory issues which require regional throughout the Union. As

  throughout the Union . As natural gas throughout the

  coordination, notably concerning the regards situations concerning

  regards situations concerning

  implementation of network codes and guidelines, more than one Member State,

  more than one Member State, Union. As regards situations

  cooperation within regional operational centres, the Agency has been granted the

  the Agency has been granted the concerning more than one

  the regulatory decisions necessary to effectively power to adopt individual

  power to adopt individual Member State, the Agency

  monitor wholesale market integrity and decisions. That power should

  decisions. That power should has been granted the power to

  transparency, decisions concerning electricity and under clearly specified

  under clearly specified adopt individual decisions.

  natural gas infrastructure that connects or that conditions cover technical and

  conditions cover technical and That power should under

  might connect at least two Member States and, as a regulatory issues which require

  regulatory issues which require clearly specified conditions

  regional coordination , notably cover technical and regulatory

ANNEX TREE.2.B EN

last resort, exemptions from the internal market regional coordination , notably concerning the implementation issues which require regional rules for new electricity interconnectors and new concerning the implementation of network codes and coordination , notably gas infrastructure located in more than one Member of network codes and guidelines, cooperation within [] concerning the State. guidelines, cooperation within Regional Security implementation of network regional coordination centres, Coordinators, the regulatory codes and guidelines, the regulatory decisions decisions necessary to cooperation within [Regional necessary to effectively monitor effectively monitor wholesale Coordination Centres], the wholesale market integrity and market integrity and regulatory decisions necessary transparency, decisions transparency, decisions to effectively monitor concerning electricity and concerning electricity and wholesale market integrity natural gas infrastructure that natural gas infrastructure that and transparency, decisions connects or that might connect connects or that might connect concerning electricity and at least two Member States and, at least two Member States and, natural gas infrastructure that as a last resort, exemptions from as a last resort, exemptions from connects or that might connect the internal market rules for new the internal market rules for new at least two Member States electricity interconnectors and electricity interconnectors and and, as a last resort, new gas infrastructure located in new gas infrastructure located in exemptions from the internal more than one Member State. more than one Member State. market rules for new The Agency should also have Regarding regulatory tasks electricity interconnectors and the capacity to provide involving decisions conferred new gas infrastructure located operational assistance to the to at least two national in more than one Member national regulatory authorities. regulatory authorities or the State. Regarding regulatory The national regulatory Agency, under the network tasks involving decisions authorities should provide the codes and Guidelines conferred to at least two Agency with the information pursuant to Articles 55 to 57 national regulatory relevant to the Agency’s of [recast Electricity authorities or the Agency, monitoring activities. Regulation as proposed by under the network codes COM(2016) 861 i/2] or and Guidelines pursuant to pursuant to Art. 8 (6) of Articles 55 to 57 of [recast Regulation (EC) No Electricity Regulation as 715/2009/EC, a procedure proposed by COM(2016) guaranteeing an adequate 861/2] or pursuant to Art. 8 involvement of Member States (6) of Regulation (EC) No in the development of network 715/2009/EC, a procedure codes and guidelines by the guaranteeing an adequate

ANNEX TREE.2.B EN

adoption of implementing acts involvement of Member pursuant to Article 5 of States in the development of Regulation (EU) No 182/2011 i network codes and of the European Parliament guidelines by the adoption of and the Council is a implementing acts pursuant prerequisite for granting these to Article 5 of Regulation decisions rights to the national (EU) No 182/2011 of the regulatory authorities or European Parliament and Agency. the Council is a prerequisite for granting these decisions rights to the national regulatory authorities or Agency.

• 18. 

  (14) The Agency has an important role in AM 8 developing framework guidelines which are non(14) The Agency has an

  • (14) 

    The Agency has an Maintain Council GA

  binding by nature ("framework guidelines"). important role in developing

  important role in developing

  Network codes should be in line with those framework guidelines which are

  framework guidelines which are

  framework guidelines. It is also considered non-binding by nature

  non-binding by nature

  appropriate for the Agency, and consistent with its ("framework guidelines").

  ("framework guidelines").

  purpose, to have a role in reviewing draft network Network codes should be in line

  Network codes should be in line

  codes to ensure that they are in line with the with those framework

  with those framework

  framework guidelines and provide for the guidelines. It is also considered

  guidelines . It is also considered

  necessary degree of harmonisation, before it appropriate for the Agency, and

  appropriate for the Agency, and

  submits them to the Commission for adoption. consistent with its purpose, to

  consistent with its purpose, to

  have a role in reviewing and have a role in reviewing draft amending draft network codes network codes to ensure that to ensure that they are in line they are in line with the with the framework guidelines framework guidelines and and provide for the necessary provide for the necessary degree degree of harmonisation, before of harmonisation , before it it submits them to the submits them to the Commission for adoption. Commission for adoption.

ANNEX TREE.2.B EN

• 19. 

  (15) With the adoption of a set of network codes AM 9 (15) With the adoption of a set and guidelines which provide for a stepwise (15) With the adoption of a set of network codes and guidelines implementation and a further refinement of of network codes and guidelines which provide for a stepwise common regional and Union-wide rules, the role of which provide for a stepwise implementation and a further the Agency in monitoring the implementation of implementation and a further refinement of common regional the network codes and guidelines has increased. refinement of common regional and Union-wide rules, the role

  Effective monitoring of network codes and and Union-wide rules, the role of the Agency in monitoring the guidelines is a key function of the Agency and of the Agency in monitoring implementation of the network crucial for the implementation of internal market and ensuring the codes and guidelines has

  rules. implementation of the network increased. Effective monitoring codes and guidelines has of network codes and guidelines

  increased. Effective monitoring is a key function of the Agency of network codes and guidelines and crucial for the is a key function of the Agency implementation of internal and crucial for the market rules. implementation of internal market rules.

• 20. 

  (16) From experience with the implementation of (16) From experience with the

  network codes and guidelines it has emerged that it implementation of network is useful to streamline the procedure for the codes and guidelines it has regulatory approval of regional or Union-wide emerged that it is useful to terms and conditions or methodologies to be streamline the procedure for the developed under the guidelines and network codes regulatory approval of regional by submitting them directly to the Agency in order or Union-wide terms and for national regulators, represented in the Board of conditions or methodologies to Regulators, to be able to decide upon them. be developed under the guidelines and network codes by submitting them directly to the Agency in order for national regulators, represented in the Board of Regulators, to be able to decide upon them.

ANNEX TREE.2.B EN

• 21. 

  (17) Since the stepwise harmonisation of the AM 10 (17) Since the stepwise Accept in part, already

  Union energy markets involves finding regional (17) Since the stepwise harmonisation of the Union covered in Article 5.2a – line solutions regularly as an interim step, it is harmonisation of the Union energy markets involves finding 85 – 90 appropriate to reflect the regional dimension of the energy markets involves finding regional solutions regularly as 17) Since the stepwise internal market and to provide for appropriate regional solutions regularly as an interim step and many harmonisation of the Union governance mechanisms. Regulators responsible an interim step, it is appropriate methods are developed by a energy markets involves for coordinated regional approvals should be able to reflect the regional dimension limited number of regulatory finding regional solutions to prepare Board of Regulators decisions on issues of the internal market and to authorities for a specific regularly as an interim step of regional relevance in a regional subcommittee of provide for appropriate and many methods are the Board of Regulators, unless those issues are of governance mechanisms.

  region, it is appropriate to

  reflect the regional dimension of developed by a limited

general importance for the Union. Decisions on proposals for joint regional terms and conditions the internal market and to number of regulatory

or methodologies should provide for appropriate

authorities for a specific

therefore be taken by the governance mechanisms. []

region, it is appropriate to reflect the regional dimension

competent regulatory of the internal market and to authorities of the region provide for appropriate concerned unless those governance mechanisms. decisions have a tangible Decisions on proposals for impact on the internal energy joint regional terms and market. Decisions on issues conditions or methodologies which have significant should therefore be taken by relevance beyond the region the competent regulatory concerned should be taken by authorities of the region the Agency. concerned unless those decisions have a tangible impact on the internal energy market.

• 22. 

  (18) Since the Agency has an overview of the (18) Since the Agency has an

  national regulatory authorities, it should have an overview of the national advisory role towards the Commission, other Union regulatory authorities, it should institutions and national regulatory authorities as have an advisory role towards regards the issues relating to the purpose for which the Commission, other Union it was established. It should also be required to institutions and national inform the Commission where it finds that the regulatory authorities as regards cooperation between transmission system operators the issues relating to the purpose

ANNEX TREE.2.B EN

does not produce the results which are needed or for which it was established. It that a national regulatory authority whose decision should also be required to is not in compliance with the Guidelines does not inform the Commission where it implement the opinion, recommendation or finds that the cooperation decision of the Agency appropriately. between transmission system operators does not produce the results which are needed or that a national regulatory authority whose decision is not in compliance with the Guidelines does not implement the opinion, recommendation or decision of the Agency appropriately.

• 23. 

  (19) The Agency should also be able to make (19) The Agency should also recommendations to assist regulatory authorities be able to make

  and market players in sharing good practices. recommendations to assist regulatory authorities and

  market players in sharing good practices.

• 24. 

  Provisionally agreed:

  (19a) The ENTSO for Electricity, the ENTSO for Gas, the EU DSO entity, the transmission system operators, the [Regional Coordination Centres] and nominated electricity market operators should give utmost consideration to the Agency’s opinions and recommendations addressed to them pursuant to this Regulation.

ANNEX TREE.2.B EN

• 25. 

  (20) The Agency should consult interested AM 11 Maintain Council GA parties, where appropriate, and provide them with a (20) The Agency must consult

  • (20) 

    The Agency should

  reasonable opportunity to comment on proposed interested parties, where

  consult interested parties, where

  measures, such as network codes and rules. appropriate, and provide them

  appropriate, and provide them

  with a reasonable opportunity to with a reasonable opportunity to comment on all proposed comment on proposed

  measures. measures, such as network codes and rules.

• 26. 

  (21) The Agency should contribute to the (21) The Agency should implementation of the guidelines on transcontribute to the implementation European energy networks as laid down in of the guidelines on trans Regulation (EU) No 347/2013 i of the European European energy networks as Parliament and of the Council 1 , in particular when laid down in Regulation (EU) providing its opinion on the non-binding Union - No 347/2013 of the European wide ten-year network development plans (Union - Parliament and of the Council 1 , wide network development plans) in accordance in particular when providing its with Article 4 (3) of this Regulation. opinion on the non-binding Union -wide ten-year network development plans ( Union - wide network development plans) in accordance with Article 4 (3) of this Regulation

• 27. 

  (22) The Agency should contribute to the efforts AM 12

  of enhancing energy security. (22) The Agency should (22) The Agency should

  Maintain Council GA, already

  contribute to the efforts of contribute to the efforts of

  covered in Article 1(2)

  enhancing energy security and enhancing energy security.

  meeting the climate objectives of the Union. As an executive body, it should abide by the strategic energy and climate agenda determined by the Union’s policy-making institutions.

1 Regulation (EU) No 347/2013 i of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations (EC) No 713/2009 i, (EC) No 714/2009 i and (EC) No 715/2009 (OJ L 115, 25.4.2013, p. 39).

ANNEX TREE.2.B EN

• 28. 

  (22a) The Agency may, in Maintain Council GA

  specific clearly defined circumstances, adopt individual decisions on issues strictly related to the purpose for which it has been established.

• 29. 

  (23) In order to ensure that the Agency's (23) In order to ensure that

  framework is efficient and coherent with other the Agency's framework is decentralised agencies, the rules governing the efficient and coherent with other Agency should be aligned to the Common decentralised agencies, the rules Approach agreed between the European governing the Agency should be Parliament, the Council of the EU and the aligned to the Common European Commission on decentralised agencies 1 . Approach agreed between the However, insofar as necessary, the structure of the European Parliament, the Agency should be adapted to meet the specific Council of the EU and the needs of energy regulation. In particular, the European Commission on specific role of the national regulatory authorities decentralised agencies 1 . needs to be taken fully into account and their However, insofar as necessary, independence guaranteed. the structure of the Agency should be adapted to meet the specific needs of energy regulation. In particular, the specific role of the national regulatory authorities needs to be taken fully into account and their independence guaranteed.

• 30. 

  (24) Additional changes to the present Regulation (24) Additional changes to the may be envisaged in the future in order to bring the present Regulation may be

  Regulation fully in line with the Common envisaged in the future in order Approach on decentralised agencies. Based on the to bring the Regulation fully in

1 Joint Statement of the European Parliament, the Council of the EU and the European Commission on decentralised agencies of 19.7.2012.

ANNEX TREE.2.B EN

current needs of energy regulation, deviations from line with the Common the Common Approach are necessary. This Approach on decentralised proposal therefore does not prejudge any further agencies. Based on the current amendments to the Founding Regulation of the needs of energy regulation, Agency which the Commission may wish to deviations from the Common propose following further evaluation, as provided Approach are necessary. This for in this act or on its own initiative. proposal therefore does not prejudge any further amendments to the Founding Regulation of the Agency which the Commission may wish to propose following further evaluation, as provided for in this act or on its own initiative.

• 31. 

  (25) The Administrative Board should have the

  necessary powers to establish the budget, check its (25) The Administrative Board implementation, draw up internal rules, adopt should have the necessary financial regulations and appoint a Director. A powers to establish the budget, rotation system should be used for the renewal of check its implementation, draw the members of the Administrative Board who are up internal rules, adopt financial appointed by the Council so as to ensure a balanced regulations and appoint a participation of Member States over time. The Director. A rotation system Administrative Board should act independently and should be used for the renewal objectively in the public interest and should not of the members of the

  seek or follow political instructions. Administrative Board who are appointed by the Council so as

  to ensure a balanced participation of Member States over time. The Administrative Board should act independently and objectively in the public interest and should not seek or follow political instructions.

ANNEX TREE.2.B EN

• 32. 

  (26) The Agency should have the necessary AM 13

  powers to perform its regulatory functions in an (26) The Agency should have (26) The Agency should have

  Maintain Council GA,

  efficient, transparent, reasoned and, above all, the necessary powers to perform the necessary powers to

  Already covered in Article 1

  independent manner. The independence of the its regulatory functions in an perform its regulatory functions

(2a) – line 53 and Recital 19a

Agency from electricity and gas producers and efficient, transparent, reasoned in an efficient, transparent,

– line 24 -

transmission and distribution system operators is and, above all, independent reasoned and, above all, not only a key principle of good governance but manner. The independence of independent manner. The also a fundamental condition to ensure market the Agency from electricity and independence of the Agency confidence. Without prejudice to its members’ gas producers and transmission from electricity and gas acting on behalf of their respective national and distribution system producers and transmission and authorities, the Board of Regulators should operators as well as other distribution system operators is therefore act independently from any market organisations promoting the not only a key principle of good interest, should avoid conflicts of interests and interests of national regulators governance but also a should not seek or follow instructions or accept is not only a key principle of fundamental condition to recommendations from a government of a Member good governance but also a ensure market confidence. State, from Union institutions or another public or fundamental condition to ensure Without prejudice to its private entity or person. The decisions of the Board market confidence. Without members’ acting on behalf of of Regulators should, at the same time, comply prejudice to its members’ acting their respective national with Union law concerning energy, such as the on behalf of their respective authorities, the Board of internal energy market, the environment and national authorities, the Board Regulators should therefore act competition. The Board of Regulators should report of Regulators should therefore independently from any market its opinions, recommendations and decisions to the act independently from any interest, should avoid conflicts Union institutions market interest, should avoid of interests and should not seek conflicts of interests and should or follow instructions or accept not seek or follow instructions recommendations from a or accept recommendations government of a Member State, from a government of a Member from Union institutions or State, from Union institutions or another public or private entity another public or private entity or person . The decisions of the or person. The decisions of the Board of Regulators should, at Board of Regulators should, at the same time, comply with the same time, comply with Union law concerning energy, Union law concerning energy, such as the internal energy such as the internal energy market, the environment and market, the environment and competition. The Board of competition. The Board of Regulators should report its

ANNEX TREE.2.B EN

Regulators should report its opinions, recommendations and opinions, recommendations and decisions to the Union decisions to the Union institutions. institutions. The Agency’s decisions should be binding, while its opinions and recommendations should be given the utmost consideration by the ENTSO for Electricity, the ENTSO for Gas, the EU DSO entity, the transmission system operators, the regional operational centres and nominated electricity market operators.

• 33. 

  (27) Where the Agency has decision-making (27) Where the Agency has powers, interested parties should, for reasons of decision-making powers,

  procedural economy, be granted a right of appeal to interested parties should, for a Board of Appeal, which should be part of the reasons of procedural economy, Agency, but independent from its administrative be granted a right of appeal to a and regulatory structure. In order to guarantee its Board of Appeal, which should functioning and full independence, the Board of be part of the Agency, but Appeal should have a separate budget line in the independent from its budget of the Agency. In the interest of continuity, administrative and regulatory the appointment or renewal of the members of the structure. In order to guarantee Board of Appeal should allow for partial its functioning and full replacement of the members of the Board of independence, the Board of Appeal. The decisions of the Board of Appeal can Appeal should have a separate be subject to appeal before the Court of Justice of budget line in the budget of the the European Union. Agency. In the interest of continuity, the appointment or renewal of the members of the Board of Appeal should allow for partial replacement of the members of the Board of Appeal. The decisions of the

ANNEX TREE.2.B EN

Board of Appeal can be subject to appeal before the Court of Justice of the European Union.

• 34. 

  (28) The Agency should exercise its decision AM 14 Maintain Council GA

  making powers in line with the principles of fair, (28) The Agency should (28) The Agency should transparent and reasonable decision-making. All exercise its decision-making exercise its decision-making procedural rules of the Agency should be laid down powers in line with the powers in line with the in its rules of procedures. principles of fair, transparent principles of fair, transparent and reasonable decisionand reasonable decisionmaking. All procedures of the making. All procedural rules of Agency should follow adequate the Agency should be laid down rules of procedure. All in its rules of procedures.

  procedural rules of the Agency should be laid down in its rules of procedures.

• 35. 

  Council compromise text:

  (28)(2((28a)The Director is responsible for drafting and adopting documents containing opinions, recommendations and decisions. Opinions, recommendations and decisions referred to in Articles 23(5)(a) and 25(c) require the favourable opinion of the Board of Regulators to be adopted. The Board of Regulators can provide opinions, and, where appropriate, comments and amendments to the Director’s text proposals which the Director should take into account. In case the Director

ANNEX TREE.2.B EN

deviates from or rejects the comments and amendments submitted by the Board of Regulators, the Director should also provide a duly justified written reasoning to facilitate a constructive dialogue. If the Board of Regulators does not give a favourable opinion on a resubmitted text, the Director may revise the text further in line with the amendments and comments proposed by the Board of Regulators in order to obtain their favourable opinion. The Director may withdraw the submitted draft opinions, recommendations and decisions in case of disagreement with the amendments submitted by the Board of Regulators and issue a new text following the procedure set out in Article 23(5)(a) and Article 25(c). The Director can seek the favourable opinion of the Board of Regulators on a new or revised draft text at any stage of the procedure.

ANNEX TREE.2.B EN

• 36. 

  (29) The Agency should be mainly financed from AM 15 (29) The Agency should be Council compromise text: (29) the general budget of the Union, by fees and by (29) The Agency should be mainly financed from the The Agency should be voluntary contributions. In particular, the resources properly resourced to carry out general budget of the Union, by properly resourced to carry currently pooled by regulatory authorities for their its tasks. The Agency should be fees and [] by voluntary out its tasks. The Agency cooperation at Union level should continue to be mainly financed from the contributions. In particular, fees should be mainly financed available to the Agency. The Union budgetary general budget of the Union, by should cover the costs of the from the general budget of the procedure should remain applicable as far as any fees and by voluntary Agency for services provided Union, by fees and by subsidies chargeable to the general budget of the contributions. In particular, voluntary contributions. In Union are concerned. Moreover, the auditing of there sources currently pooled

  to market participants or

  entities acting on their behalf particular, fees should cover

  accounts should be undertaken by an independent by regulatory authorities for enabling them to report data the costs of the Agency for

  external auditor in accordance with Article 107 their cooperation at Union level pursuant to Article 8 of services provided to market

  of Commission Delegated Regulation (EU) should continue to be available Regulation (EU) 1227/2011 i in participants or entities

No 1271/20131 1 . to the Agency. The Agency should have the possibility to an efficient, effective and safe acting on their behalf

collect fees for certain of its manner. The resources

enabling them to report data

activities. The Union budgetary currently pooled by regulatory

pursuant to Article 8 of

procedure should remain authorities for their cooperation

Regulation (EU) 1227/2011 i

applicable as far as any at Union level should continue

in an efficient, effective and

subsidies chargeable to the to be available to the Agency.

safe manner. The resources

general budget of the Union are The Union budgetary procedure

currently pooled by regulatory

concerned. Moreover, the should remain applicable as far

authorities for their

auditing of accounts should be as any subsidies chargeable to

cooperation at Union level

undertaken by an independent the general budget of the Union

should continue to be

external auditor in accordance are concerned. Moreover, the

available to the Agency. The

with Article 107 of Commission auditing of accounts should be

Union budgetary procedure

Delegated Regulation (EU) undertaken by an independent

should remain applicable as

No1271/2013 1 . external auditor in accordance

far as any subsidies

with Article 107 of Commission chargeable to the general Delegated Regulation (EU) No budget of the Union are

1271/2013 1 . concerned. Moreover, the auditing of accounts should be

undertaken by an independent external auditor in accordance

1 Commission Delegated Regulation (EU) No 1271/2013 i of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).

ANNEX TREE.2.B EN

with Article 107 of Commission Delegated Regulation (EU) No 1271/2013 i 1 .

• 37. 

  AM 16 Reject EP AM

  (29a) (new) The Agency's budget should be prepared in accordance with the principle of performance-based budgeting, taking into account its objectives and the expected results of its tasks.

• 38. 

  (30) The Agency's budget should be assessed by AM 17 (30) The Agency's budget Accept EP AM the budgetary authority on an ongoing basis, with (30) The Agency's budget should be assessed by the

  reference to the Agency’s workload and should be assessed by the budgetary authority on an performance. The budgetary authority should budgetary authority on an ongoing basis, with reference to ensure that the best standards of efficiency are met ongoing basis, with reference to the Agency’s workload and the Agency’s workload, performance. The budgetary performance and the objective authority should ensure that the of working towards a internal best standards of efficiency are energy market and contributing met. to energy security for the benefit of consumers in the Union. The budgetary authority should ensure that the best standards of efficiency are met.

• 39. 

  (31) The Agency should have highly professional (31) The Agency should have staff. In particular, it should benefit from the highly professional staff. In competence and experience of staff seconded by particular, it should benefit from the national regulatory authorities, the Commission the competence and experience

  and the Member States. The Staff Regulations of of staff seconded by the national regulatory authorities, the

1 Commission Delegated Regulation (EU) No 1271/2013 i of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).

ANNEX TREE.2.B EN

Officials of the European Communities ("the Staff Commission and the Member Regulations") and the Conditions of employment of States. The Staff Regulations of other servants of the European Communities ("the Officials of the European Conditions of Employment"), laid down in Communities ("the Staff

1

Regulation (EEC, Euratom, ECSC) No 259/68 and Regulations") and the the rules adopted jointly by the Union institutions Conditions of employment of for the purpose of applying those regulations other servants of the European should apply to the staff of the Agency. The Communities ("the Conditions Administrative Board, in agreement with the of Employment"), laid down in Commission, should adopt appropriate Regulation (EEC, Euratom, implementing rules. ECSC) No 259/68 1 and the rules adopted jointly by the Union institutions for the purpose of applying those regulations should apply to the staff of the Agency. The Administrative Board, in agreement with the Commission, should adopt appropriate implementing rules

• 40. 

  (32) The regulatory work of the Director and the (32) The regulatory work of

  Board of Regulators pursuant to this Regulation, the Director and the Board of may be supported by working groups. Regulators pursuant to this Regulation, may be supported by working groups.

1 Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials and the Conditions of

Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ L 56, 4.3.1968, p. 1).

ANNEX TREE.2.B EN

• 41. 

  (33) The Agency should apply the general rules

  regarding public access to documents held by (33) The Agency should apply

  Union bodies. The Administrative Board should the general rules regarding

  establish the practical measures to protect public access to documents held

  commercially sensitive data and personal data. by Union bodies. The Administrative Board should

  establish the practical measures to protect commercially sensitive data and personal data.

• 42. 

  (34) Through the cooperation of national AM 18 (34) Through the cooperation Maintain Council GA regulators within the Agency it is evident that (34) Through the cooperation of national regulators within the

  majority decisions are a key pre-requisite to of national regulators within the Agency it is evident that achieve progress on matters concerning the internal Agency it is evident that majority decisions are a key preenergy market which have significant economic majority decisions are a key prerequisite to achieve progress on effects in various Member States. National requisite to achieve progress on matters concerning the internal regulators should therefore vote with simple matters concerning the internal energy market which have majority within the Board of Regulators. energy market which have significant economic effects in significant economic effects in various Member States. various Member States. National regulators should National regulators should therefore continue to vote with therefore vote by a two-thirds [] two-thirds majority within majority within the Board of the Board of Regulators. The Regulators. The Agency should Agency should be accountable be accountable to the European to the European Parliament, Parliament, the Council and the Council and the the Commission, as Commission. appropriate.

ANNEX TREE.2.B EN

• 43. 

  (35) Countries which are not members of the (35) Countries which are not

  Union should be able to participate in the work of members of the Union should be the Agency in accordance with appropriate able to participate in the work of agreements to be concluded by the Union. the Agency in accordance with appropriate agreements to be concluded by the Union.

• 44. 

  (37) Since the objectives of this Regulation, (37) Since the objectives of

  namely the participation and cooperation of this Regulation, namely the national regulatory authorities at Union level, participation and cooperation of cannot be sufficiently achieved by the Member national regulatory authorities at States and can therefore be better achieved at Union level, cannot be Union level, the Union may adopt measures, in sufficiently achieved by the accordance with the principle of subsidiarity as set Member States and can out in Article 5 of the Treaty on European Union. therefore be better achieved at In accordance with the principle of proportionality, Union level, the Union may as set out in that Article, this Regulation does not adopt measures, in accordance go beyond what is necessary in order to achieve with the principle of subsidiarity those objectives. as set out in Article 5 of the Treaty on European Union . In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

ANNEX TREE.2.B EN

• 45. 

  AM 19

  (37a) (new) Decision (37a) The seat of the Agency

  Accepted EP AM in part

  2009/913/EU taken by common is situated in Ljubljana as (37a) The seat of the Agency

  agreement between the provided by Decision is situated in Ljubljana as

  representatives of the 2009/913/EU taken by provided by Decision

  governments of Member common agreement between 2009/913/EU taken by

  States 1α provides that the the Representatives of the common agreement between

  Agency is to have its seat in Governments of Member the Representatives of the

  Ljubljana, Slovenia. Agency’s States on 7 December 2009. Governments of Member

  seat is the centre of its activities States on 7 December 2009.

  and its statutory functions. The Agency’s seat is the

  Thus, the meetings of the centre of its activities and its

  statutory organs should take statutory functions.

  place at the seat.

• 46. 

  (38) The Agency’s host Member State should AM 20 (38) The Agency’s host Maintain Council GA provide the best possible conditions to ensure the (38) The Seat Agreement Member State should provide smooth and efficient functioning of the Agency, between the Government of the the best possible conditions to including multilingual, European-oriented Republic of Slovenia and the ensure the smooth and efficient

  schooling and appropriate transport connections. Agency was concluded on 26 November 2010 and entered functioning of the Agency,

  into force on 10 January 2011 including multilingual, and other specific European-oriented schooling arrangements fulfil the and appropriate transport requirements of Regulations connections as required by (EU) No 713/2009 and Regulations (EU) No 713/2009 i

  863/2016. and 863/2016. The Seat Agreement between the

  Government of the Republic of Slovenia and the Agency for the Cooperation of Energy

1α Decision 2009/913/EU taken by common agreement between the representatives of the governments of Member States of 7 December 2009 on the location of the seat of the Agency for the Cooperation of Energy Regulators (OJ L 322, 9.12.2009, p. 39).

ANNEX TREE.2.B EN

Regulators which fulfils these requirements together with its implementing arrangements, was concluded on 26 November 2010 and entered into force on 10 January 2011.

• 47. 

  AM 21 EP to explain

  (38a) (new) The Agency should encourage and facilitate cooperation between the national regulatory authorities across sectors, where relevant, especially in the field of data protection and privacy.

• 48. 

  HAVE ADOPTED THIS REGULATION: HAVE ADOPTED THIS

  REGULATION:

ANNEX TREE.2.B EN

• 49. 

  CHAPTER I OBJECTIVES AND TASKS

• 50. 

  Article 1

  Establishment and objectives

• 51. 

  1. This Regulation establishes a European 1. This Regulation

  Union Agency for the Cooperation of Energy establishes a European Union Regulators ("the Agency"). Agency for the Cooperation of Energy Regulators ("the Agency").

• 52. 

  2. The purpose of the Agency shall be to assist AM 22 2. The purpose of the Provisionally agreed: the regulatory authorities referred to in Article 57 2. The purpose of the Agency shall be to assist the 2. The purpose of the of [the recast Electricity Directive as proposed by Agency shall be to assist the regulatory authorities referred to Agency shall be to assist the COM(2016) 864 i/2] and Article 39 of Directive regulatory authorities referred to in Article 57 of [the recast regulatory authorities referred 2009/73/EC of the European Parliament and of the in Article 57 of [the recast Electricity Directive as to in Article 57 of [the recast Council in exercising, at Union level, the Electricity Directive as proposed by COM(2016) 864 i/2] Electricity Directive as regulatory tasks performed in the Member States proposed by COM(2016) 864 i/2] and Article 39 of Directive proposed by COM(2016)

  and, where necessary, to coordinate their action. and Article 39 of Directive 2009/73/EC i of the European 2009/73/EC of the European 864/2] and Article 39 of

  Parliament and of the Council in Parliament and of the Council in

  Directive 2009/73/EC i of the

  exercising, at Union level, the exercising, at Union level, the

  European Parliament and of

  regulatory tasks performed in regulatory tasks performed in

  the Council in exercising, at

  the Member States and, where the Member States and, where

  Union level, the regulatory

  necessary, to coordinate their necessary, to coordinate their

  tasks performed in the

  action, mediate and settle action.

  Member States and, where necessary, to coordinate their

disagreements between them as action, and mediate and settle well as contribute to the disagreements between them, establishment of high-quality in accordance with Art. 6(8).

common regulatory and The Agency shall also supervisory practices, ensuring contribute to the the consistent, efficient and establishment of high-quality effective application of Union common regulatory and legal acts in order to achieve supervisory practices, thus

ANNEX TREE.2.B EN

the Union’s climate and energy contributing to the goals. consistent, efficient and effective application of Union legal acts in order to achieve the Union’s climate and energy goals.

• 53. 

  AM 23 Provisionally agreed:

  2a. (new) When carrying out its (part of EP AM 23 included in tasks, the Agency shall act recital 29, line 36): independently and objectively 2a. When carrying out its and in the interest of the Union tasks, the Agency shall act alone. The Agency shall take independently and objectively autonomous decisions, and in the interest of the independently from private and Union. The Agency shall take corporate interests and have autonomous decisions, separate annual budget independently from private allocations, with autonomy in and corporate interests. the implementation of the allocated budget, and adequate human and financial resources to carry out its duties effectively.

ANNEX TREE.2.B EN

• 54. 

  Article 2

  Type of acts of the Agency

• 55. 

  The Agency shall: The Agency shall:

• 56. 

  (a) issue opinions and recommendations AM 24 Provisionally agreed: addressed to transmission system operators, (a) issue opinions and (a) issue opinions and (a) issue opinions and regional operational centres and nominated recommendations addressed to recommendations addressed to recommendations addressed

electricity market operators; transmission system operators, the ENTSO for Electricity, the transmission system operators, to transmission system operators, ENTSO-E,

ENTSO for Gas, the EU DSO ENTSO-E, ENTSO-G, the ENTSO-G, the EU-DSO entity, the regional coordination EU-DSO Entity, [][Regional Entity, [Regional centres and nominated Security Coordinators] and electricity market operators; nominated electricity market

Coordination Centres] and

operators; nominated electricity market operators;

• 57. 

  (b) issue opinions and recommendations (b) issue opinions and

  addressed to regulatory authorities; recommendations addressed to regulatory authorities;

• 58. 

  (c) issue opinions and recommendations (c) issue opinions and

  addressed to the European Parliament, the Council, recommendations addressed to or the Commission; the European Parliament, the Council, or the Commission;

• 59. 

  (d) take individual decisions in the specific cases AM 25 Maintain Council GA referred to in Articles 6, 8, and 11 of this (d) take decisions in the

  (d) take individual decisions To be discussed in

  Regulation, specific cases referred to in this

  in the specific cases referred to

  Regulation; in Articles [] 5(2), (2a) and (2b)

  conjunction with Article 14,

  on terms and conditions or line 162.

  methodologies regarding network codes and guidelines, Article 5(3) on bidding zones review, Article 6(8) on arbitration between

ANNEX TREE.2.B EN

regulators, Article 8(2)(a) on the configuration of system operation regions, Article 10(1) on proposals for methodologies, calculations and technical specifications related to the European resource adequacy assessment and cross-border participation in capacity mechanisms, 10(2) on methodologies related to the [Risk Preparedness Regulation as proposed by COM(2106 862], Article 11 on exemption decisions, Article 12 on tasks related to infrastructure pursuant to Regulation (EU) No 347/2013 and Article 13 on tasks related to market supervision pursuant to Regulations (EU) No 1227/2011 and Regulation (EU) No 1348/2014;

ANNEX TREE.2.B EN

• 60. 

  (a) submit to the Commission non-binding (e) submit to the framework guidelines ("framework guidelines") in Commission non-binding accordance with Article 55 of [recast Electricity framework guidelines

  Regulation as proposed by COM(2016) 861 i/2]] and ("framework guidelines") in Article 6 of Regulation (EC) No 715/2009 i of the accordance with Article 55 of

  European Parliament and of the Council 1 . [recast Electricity Regulation as proposed by COM(2016) 861 i/2]

  ] and Article 6 of Regulation (EC) No 715/2009 i of the European Parliament and of the Council 1 .

• 61. 

  AM 26 Provisionally agreed

  1a. (new) The ENTSO for (covered in Council new Electricity, the ENTSO for Gas, recital 19a, line 24) the EU DSO entity, the transmission system operators, the regional coordination centres and nominated electricity market operators shall give the utmost consideration to, and make every effort to comply with, the Agency’s opinions and recommendations addressed to them pursuant to this Regulation.

1 Regulation (EC) No 715/2009 i of the European Parliament and the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 i (OJ L 211, 14.8.2009, p. 36).

ANNEX TREE.2.B EN

• 62. 

  Article 3

  General tasks

• 63. 

  The Agency may, upon a request of the European The Agency may, upon a Council compromise text:

  Parliament, the Council or the Commission, or on request of the European 1. The Agency may, upon a its own initiative, provide an opinion or a Parliament, the Council or the request of the European recommendation to the European Parliament, the Commission, or on its own Parliament, the Council or the Council and the Commission on any of the issues initiative, provide an opinion or Commission, or on its own relating to the purpose for which it has been a recommendation to the initiative, provide an opinion established. European Parliament, the or a recommendation to the Council and the Commission on European Parliament, the any of the issues relating to the Council and the Commission purpose for which it has been on any of the issues relating to

  established. the purpose for which it has been established.

• 64. 

  Provisionally agreed at TM

  • 2. 

    At the request of the Agency, the national regulatory authorities, the ENTSO for Electricity, the ENTSO for Gas, the [Regional Coordination Centres], the EU DSO entity, transmission system operators and the nominated electricity market operators shall provide the information necessary for the purpose of carrying out its tasks under this Regulation, unless the Agency has already requested and received it. For that purpose the Agency shall have the power to issue

ANNEX TREE.2.B EN

decisions. In its decisions the Agency shall specify the purpose of the request, make a reference to the legal basis under which the information is requested, and state a time limit within which the information is to be provided which shall be proportionate to the request. The Agency shall use confidential information received pursuant to this Regulation only for the purpose of carrying out the tasks assigned to it in this Regulation. The Agency shall ensure appropriate data protection of all the information pursuant to Article 41.

ANNEX TREE.2.B EN

• 65. 

  Article 4 66. Tasks of the Agency as regards the cooperation AM 27 Provisionally agreed:

  of transmission system operators Tasks of the Agency as regards Tasks of the Agency as

  the cooperation of transmission regards the cooperation of

  Tasks of the Agency as

  and distribution system transmission system operators

  regards the cooperation of

  operators and electricity distribution

  transmission system

  system operators operators and electricity distribution system

  operators 67. 1. The Agency shall provide an opinion to the AM 28 Provisionally agreed:

  Commission on the draft statutes, list of members 1. The Agency shall provide 1. The Agency shall provide and draft rules of procedure of the ENTSO for an opinion to the Commission an opinion to the Commission 1. The Agency shall Electricity in accordance with Article 26(2) of [OP: on the draft statutes, list of on the draft statutes, list of provide an opinion to the recast Electricity Regulation as proposed by members and draft rules of members and draft rules of Commission on the draft COM(2016) 861 i/2] and on those of the ENTSO for procedure of the ENTSO for procedure of the ENTSO for statutes, list of members and Gas in accordance with Article 5(2) of Regulation Electricity in accordance with Electricity in accordance with draft rules of procedure of the (EC) No 715/2009. Article 26(2) of [OP: recast Article 26(2) of [OP: recast ENTSO for Electricity in Electricity Regulation as Electricity Regulation as accordance with Article 26(2) proposed by COM(2016)861 i/2], proposed by COM(2016) 861 i/2] of [OP: recast Electricity on those of the EU DSO entity and on those of the ENTSO for Regulation as proposed by in accordance with Article Gas in accordance with Article COM(2016) 861 i/2] and on 50(2)of Regulation (EU) ... 5(2) of Regulation (EC) No those of the ENTSO for Gas [OP: recast Electricity 715/2009 and on those of the in accordance with Article Regulation as proposed by EU DSO entity in accordance 5(2) of Regulation (EC) No COM(2016) 861 i/2] and on with Article 50(2) of [OP: 715/2009 and on those of the those of the ENTSO for Gas in recast Electricity Regulation as EU DSO entity in accordance with Article 5(2) of proposed by COM(2016) accordance with Article

  Regulation(EC) No 715/2009. 861/2]. 50(2) of [OP: recast Electricity Regulation as

  proposed by COM(2016) 861/2].

• 68. 

  2. The Agency shall monitor the execution of 2. The Agency shall monitor Provisionally agreed: the tasks of the ENTSO for Electricity in the execution of the tasks of the 2. The Agency shall accordance with Article 29 of [OP: recast ENTSO for Electricity in monitor the execution of the Electricity Regulation as proposed by COM(2016) accordance with Article 29 of tasks of the ENTSO for

861/2] and of the ENTSO for Gas in accordance [OP: recast Electricity Electricity in accordance with Article 29 of [OP: recast

ANNEX TREE.2.B EN

with Article 9 of Regulation (EC) No 715/2009 i. Regulation as proposed by Electricity Regulation as COM(2016) 861 i/2] and of the proposed by COM(2016) ENTSO for Gas in accordance 861/2] and of the ENTSO for with Article 9 of Regulation Gas in accordance with (EC) No 715/2009 and of the Article 9 of Regulation (EC) EUDSO entity in accordance No 715/2009 and of the with Article 51 of [OP: recast EUDSO entity in

Electricity Regulation as accordance with Article 51 proposed by COM(2016) of [OP: recast Electricity 861/2]. Regulation as proposed by COM(2016) 861 i/2].

• 69. 

  3. The Agency may provide an opinion: 3. The Agency [] provides Provisionally agreed:

  an opinion: 3. The Agency may provide an opinion:

• 70. 

  (a) to the ENTSO for Gas in accordance with AM 29 Provisionally agreed:

  Article 8(2) of Regulation (EC) No 715/2009 i on (a) to the ENTSO for (a) to the ENTSO for Gas in (a) to the ENTSO for the network codes; and Electricity in accordance with accordance with Article 8(2) of Electricity in accordance Article 27(1)(a) of [recast Regulation (EC) No 715/2009 i Electricity Regulation as on the network codes; and

  with Article 27(1)(a) of [recast Electricity

  proposed by COM(2016) Regulation as proposed by 861/2] and to the ENTSO for COM(2016) 861 i/2] and to Gas in accordance with Article the ENTSO for Gas in 8(2) of Regulation (EC) No accordance with Article 8(2) 715/2009 on the network codes; of Regulation (EC) No 715/2009 i on the network codes;

• 71. 

  (b) to the ENTSO for Electricity in accordance AM 30 (b) to the ENTSO for Provisionally agreed: with the first subparagraph of Article 29(2) of (b) to the ENTSO for Electricity in accordance with (b) to the ENTSO for [recast Electricity Regulation as proposed by Electricity in accordance with the first subparagraph of Article Electricity in accordance with COM(2016) 861 i/2], and to the ENTSO for Gas in Article 27(1) (b) and (h) of 29(2) of [recast Electricity the first subparagraph of accordance with the first subparagraph of Article [recast Electricity Regulation as Regulation as proposed by Article 29(2) of [recast 9(2) of Regulation (EC) No 715/2009 i on the draft proposed by COM(2016) COM(2016) 861 i/2], and to the Electricity Regulation as annual work programme, on the draft Union -wide 861/2], and to the ENTSO for ENTSO for Gas in accordance proposed by COM(2016) network development plan and other relevant Gas in accordance with the first with the first subparagraph of 861/2], and to the ENTSO for documents referred to in Article 27(1) of [recast subparagraph of Article 9(2) of Article 9(2) of Regulation (EC) Gas in accordance with the

ANNEX TREE.2.B EN

Electricity Regulation as proposed by COM(2016) Regulation (EC) No 715/2009 i No 715/2009 on the draft annual first subparagraph of Article 861/2] and Article 8(3) of Regulation (EC) No on the draft annual work work programme, on the draft 9(2) of Regulation (EC) No 715/2009 i, taking into account the objectives of programme, on the draft Union - Union -wide network 715/2009 on the draft annual non-discrimination, effective competition and the wide network development plan development plan and other work programme, on the draft efficient and secure functioning of the internal and other relevant documents relevant documents referred to Union -wide network markets in electricity and natural gas. referred to in Article 27(1) of in Article 27(1) of [recast development plan and other [recast Electricity Regulation as Electricity Regulation as relevant documents referred to proposed by COM(2016) 861 i/2] proposed by COM(2016) 861 i/2] in Article 27(1) of [recast and Article 8(3) of Regulation and Article 8(3) of Regulation Electricity Regulation as (EC) No 715/2009 i, taking into (EC) No 715/2009, taking into proposed by COM(2016) account the objectives of nonaccount the objectives of non 861/2] and Article 8(3) of discrimination, effective discrimination, effective Regulation (EC) No competition and the efficient competition and the efficient 715/2009, taking into account and secure functioning of the and secure functioning of the the objectives of noninternal markets in electricity internal markets in electricity discrimination, effective and natural gas; and and natural gas. competition and the efficient and secure functioning of the internal markets in electricity and natural gas.

• 72. 

  AM 31 (c) to the EU DSO entity on Provisionally agreed:

  (ba) (new) to the EU DSO the draft annual work (c) to the EU DSO entity entity on the draft annual work program and other relevant on the draft annual work programme and other relevant documents referred to in program and other relevant documents referred to in Article 51(2) of [recast documents referred to in Article 51(1) and (2) of Electricity Regulation as Article 51(2) of [recast Regulation (EU) ... [recast proposed by COM(2016) Electricity Regulation as Electricity Regulation as 861/2], taking into account the proposed by COM(2016) proposed by COM(2016) objectives of non 861/2], taking into account 861/2], taking into account the discrimination, effective the objectives of nonobjectives of noncompetition and the efficient discrimination, effective discrimination, effective and secure functioning of the competition and the efficient competition and the efficient internal energy market. and secure functioning of and secure functioning of the the internal market in internal markets in electricity electricity. and natural gas.

ANNEX TREE.2.B EN

• 73. 

  Provisionally agreed in TM: 3a (new) The Agency shall, where appropriate, after

  requesting updates to the drafts submitted by transmission system operators, approve the methodology regarding the use of revenues from congestion income pursuant to Article 17(3) of [recast of Electricity Regulation as proposed by COM(2016) 861/2].

ANNEX TREE.2.B EN

• 74. 

  4. The Agency shall, based on matters of fact, Provisionally agreed in TM

  provide a duly reasoned opinion as well as 4. The Agency shall, based

  recommendations to the ENTSO for Electricity, the on matters of fact, provide a

  ENTSO for Gas, the European Parliament, the duly reasoned opinion as well as

  Council and the Commission, where it considers recommendations to the ENTSO

  that the draft annual work programme or the draft for Electricity, the ENTSO for Union -wide network development plan submitted Gas, the European Parliament, to it in accordance with the second subparagraph of the Council and the Article 29(2) of [recast Electricity Regulation as Commission, where it considers proposed by COM(2016) 861 i/2] and the second that the draft annual work subparagraph of Article 9(2) of Regulation (EC) programme or the draft Union - No 715/2009 do not contribute to nonwide network development plan discrimination, effective competition and the submitted to it in accordance efficient functioning of the market or a sufficient with the second subparagraph of level of cross-border interconnection open to third Article 29(2) ) of [recast party access, or do not comply with the relevant Electricity Regulation as provisions of [OP: recast Electricity Regulation as proposed by COM(2016) 861 i/2] proposed by COM(2016) 861 i/2 and recast and the second subparagraph of Electricity Directive as proposed by COM(2016) Article 9(2) of Regulation (EC) 864/2] or Directive 2009/73/EC i and Regulation No 715/2009 i do not contribute

  (EC) No 715/2009. to non-discrimination, effective competition and the efficient

  functioning of the market or a sufficient level of cross-border interconnection open to thirdparty access, or do not comply with the relevant provisions of [OP: recast Electricity Regulation as proposed by COM(2016) 861 i/2 and recast Electricity Directive as proposed by COM(2016) 864 i/2] or Directive 2009/73/EC i and Regulation (EC) No 715/2009 i.

ANNEX TREE.2.B EN

• 75. 

  AM 32

  4 a. (new) The Agency may Council compromise text

  issue decisions addressed to the See Coreper discussion

  ENTSO for Electricity, the paper

  ENTSO for Gas and the EU DSO entity to require them to comply with their obligations as specified in (a) this Regulation; (b) Regulation (EC) No 715/2009 and Regulation (EU) .../... [proposed recast Electricity Regulation, COD (2016)0379]; (c) the network codes adopted pursuant to Article 6 of Regulation (EC) No 715/2009 i and Articles 54 and 55 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016)0379 ]; (d) the guidelines adopted pursuant to Article 23 of Regulation (EC) No 715/2009 i and Article 57 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016) 0379]; (e) Regulation (EU) No 347/2013 of the European Parliament and of the Council; (f) Regulation (EU) ... [Risk Preparedness Regulation as proposed by COM(2016) 862 i]

ANNEX TREE.2.B EN

• 76. 

  AM 33

  4 b. (new) The Agency shall Council compromise text

  issue a decision pursuant to See Coreper discussion paragraph 4a only where: paper

  (a) the failure to comply affects the efficient functioning of the internal energy market; and (b) no competent authority has taken measures or the measures taken by one or more competent authorities have not been sufficient to ensure compliance.

• 77. 

  AM 34 Provisionally agreed

  4 c. (new) Upon the Agency’s (included in Article 3(2), line request, the ENTSO for 64) Electricity, the ENTSO for Gas and the EU DSO entity shall provide the Agency with the information necessary for the fulfilment of its tasks.

• 78. 

  Article 5 Tasks of the Agency as regards the development and implementation of network codes and guidelines

• 79. 

  1. The Agency shall participate in the Provisionally agreed in TM

  development of network codes in accordance with 1. The Agency shall 1. The Agency shall Article 55 of [recast Electricity Regulation as participate in the development participate in the development proposed by COM(2016) 861 i/2] and Article 6 of of network codes in accordance Regulation (EC) No 715/2009 i. It shall in particular: with Article 55 of [recast

  of network codes in

  Electricity Regulation as accordance with Article 55 of proposed by COM(2016) 861 i/2] [recast Electricity Regulation and Article 6 of Regulation as proposed by COM(2016) (EC) No 715/2009 and of 861/2] and Article 6 of Guidelines in accordance with Regulation (EC) No 715/2009 i

ANNEX TREE.2.B EN

Article 57(7) of [OP: recast and of Guidelines in Electricity Regulation as accordance with Article proposed by COM(2016) 57(7) of [OP: recast 861/2]. It shall in particular: Electricity Regulation as proposed by COM(2016) 861/2]. It shall in particular:

• 80. 

  (a) submit non-binding framework guidelines to Provisionally agreed in TM

  the Commission where it is requested to do so (a) submit non-binding (a) submit non-binding under Article 55(3) of [recast Electricity framework guidelines to the framework guidelines to the Regulation as proposed by COM(2016) 861 i/2] or Commission where it is Commission where it is Article 6(2) of Regulation (EC) No 715/2009 i. The requested to do so under Article requested to do so under Agency shall review the non-binding framework 55(3) of [recast Electricity Article 55(3) of [recast guidelines and re-submit it to the Commission Regulation as proposed by Electricity Regulation as where requested to do so under Article ) 55(6) of COM(2016) 861 i/2] or Article proposed by COM(2016) [recast Electricity Regulation as proposed by 6(2) of Regulation (EC) No 861/2] or Article 6(2) of COM(2016) 861 i/2] or Article 6(4) of Regulation 715/2009 i. The Agency shall Regulation (EC) No

  (EC) No 715/2009.; review the non-binding framework guidelines and re 715/2009. The Agency shall

  submit it to the Commission review the non-binding where requested to do so under framework guidelines and re Article ) 55(6) of [recast submit it to the Commission Electricity Regulation as where requested to do so proposed by COM(2016) 861 i/2] under Article ) 55(6) of or Article 6(4) of Regulation [recast Electricity Regulation

  (EC) No 715/2009; as proposed by COM(2016) 861 i/2] or Article 6(4) of

  Regulation (EC) No 715/2009 i;

• 81. 

  (b) provide a reasoned opinion to the ENTSO Provisionally agreed in TM

  for Gas on the network code in accordance with (b) provide a reasoned

Article 6(7) of Regulation (EC) No 715/2009 i; opinion to the ENTSO for Gas (b) provide a reasoned on the network code in opinion to the ENTSO for Gas

accordance with Article 6(7) of on the network code in Regulation (EC) No 715/2009 i; accordance with Article 6(7) of Regulation (EC) No 715/2009 i;

ANNEX TREE.2.B EN

• 82. 

  (c) submit the revised network code to the Provisionally agreed in TM

  Commission in accordance with Article 55(10) of (c) revise the network code

  [recast Electricity Regulation as proposed by according to article 55(10) of (c) revise the network

  COM(2016) 861 i/2] or pursuant to Article 6(9) of [OP: recast Electricity code according to article Regulation (EC) No 715/2009 i. The Agency shall Regulation as proposed by 55(10) of [OP: recast prepare and submit a draft network code to the COM(2016) 861 i/2]. In the Electricity Regulation as Commission where it is requested to do so under proposal submitted to the proposed by COM(2016) Article 55(11) of [recast Electricity Regulation as Commission, the Agency shall 861/2]. In the proposal proposed by COM(2016) 861 i/2] or Article 6(10) of take into account the views submitted to the

  Regulation (EC) No 715/2009 i ; provided by all involved Commission, the Agency parties during the drafting of shall take into account the

  the proposal led by the views provided by all ENTSO for Electricity or the involved parties during the EU DSO entity and shall drafting of the proposal led formally consult the relevant by the ENTSO for stakeholders on the version to Electricity or the EU DSO be submitted to the entity and shall formally Commission. To this extend consult the relevant the Agency may use the stakeholders on the version committee established under to be submitted to the the network codes where Commission. To this extend appropriate. Subsequently, the Agency may use the the Agency shall submit the committee established under revised network code to the the network codes where Commission, and report the appropriate. Subsequently, outcome of the consultations, the Agency shall submit the in accordance with Article revised network code to the 55(10) of [recast Electricity Commission, and report the Regulation as proposed by outcome of the COM(2016) 861 i/2]. The consultations, in accordance Agency shall submit the with Article 55(10) of [recast network code to the Electricity Regulation as Commission [] pursuant to proposed by COM(2016) Article 6(9) of Regulation (EC) 861/2]. The Agency shall No 715/2009. Where the submit the network code to ENTSO for Electricity or Gas the Commission [] pursuant

ANNEX TREE.2.B EN

or the EU DSO entity have to Article 6(9) of Regulation failed to develop a network (EC) No 715/2009. Where code the Agency shall prepare the ENTSO for Electricity and submit a draft network code or Gas or the EU DSO entity to the Commission where it is have failed to develop a requested to do so under Article network code the Agency 55(11) of [recast Electricity shall prepare and submit a Regulation as proposed by draft network code to the COM(2016) 861 i/2] or Article Commission where it is 6(10) of Regulation (EC) No requested to do so under 715/2009; Article 55(11) of [recast Electricity Regulation as proposed by COM(2016) 861 i/2] or Article 6(10) of Regulation (EC) No 715/2009 i;

• 83. 

  (d) provide a duly reasoned opinion to the (d) provide a duly reasoned Provisionally agreed in TM Commission, in accordance with Article 29(1) of opinion to the Commission, in (d) provide a duly reasoned [recast Electricity Regulation as proposed by accordance with Article 29(1) of opinion to the Commission, in COM(2016) 861 i/2] or Article 9(1) of Regulation [recast Electricity Regulation as accordance with Article 29(1) (EC) No 715/2009, where the ENTSO for proposed by COM(2016) 861 i/2] of [recast Electricity

  Electricity or the ENTSO for Gas has failed to or Article 9(1) of Regulation Regulation as proposed by implement a network code elaborated under Article (EC) No 715/2009, where the COM(2016) 861 i/2] or Article 27(1)(a) of [recast Electricity Regulation as ENTSO for Electricity or the 9(1) of Regulation (EC) No proposed by COM(2016) 861 i/2] or Article 8(2) of ENTSO for Gas has failed to 715/2009, where the ENTSO Regulation (EC) No 715/2009 i or a network code implement a network code for Electricity or the ENTSO which has been established in accordance with elaborated under Article for Gas has failed to Article 55(2) to (11) of [recast Electricity 27(1)(a) of [recast Electricity implement a network code Regulation as proposed by COM(2016) 861 i/2] and Regulation as proposed by elaborated under Article Article 6(1) to 10 of Regulation (EC) No 715/2009 i COM(2016) 861 i/2] or Article 27(1)(a) of [recast Electricity but which has not been adopted by the Commission 8(2) of Regulation (EC) No Regulation as proposed by under Article 55(12) of [recast Electricity 715/2009 or a network code COM(2016) 861 i/2] or Article Regulation as proposed by COM(2016) 861 i/2] and which has been established in 8(2) of Regulation (EC) No under Article 6(11) of Regulation (EC) No accordance with Article 55(2) to 715/2009 or a network code 715/2009. (11) of [recast Electricity which has been established in

ANNEX TREE.2.B EN

Regulation as proposed by accordance with Article 55(2) COM(2016) 861 i/2] and Article to (11) of [recast Electricity 6(1) to 10 of Regulation (EC) Regulation as proposed by No 715/2009 but which has not COM(2016) 861 i/2] and been adopted by the Article 6(1) to 10 of Commission under Article Regulation (EC) No 715/2009 i 55(12) of [recast Electricity but which has not been Regulation as proposed by adopted by the Commission COM(2016) 861 i/2] and under under Article 55(12) of [recast Article 6(11) of Regulation Electricity Regulation as (EC) No 715/2009 i. proposed by COM(2016) 861 i/2] and under Article 6(11) of Regulation (EC) No 715/2009 i.

• 84. 

  (e) monitor and analyse the implementation AM 35

  of the network codes and the guidelines adopted by (e) monitor and analyse the (e) monitor and analyse the

  Maintain Council GA

  the Commission in accordance with Article 55(12) implementation of the network implementation of the network of [recast Electricity Regulation as proposed by codes and the Guidelines codes and the guidelines COM(2016) 861 i/2] and Article 6(11) of Regulation adopted by the Commission in adopted by the Commission in (EC) No 715/2009, and their effect on the accordance with Article 55(12) accordance with Article 55(12) harmonisation of applicable rules aimed at of [recast Electricity Regulation of [recast Electricity Regulation facilitating market integration as well as on nonas proposed by COM(2016) as proposed by COM(2016) discrimination, effective competition and the 861/2] and in Article 6(11) of 861/2] and Article 6(11) of efficient functioning of the market, and report to Regulation (EC) No 715/2009 i, Regulation (EC) No 715/2009 i, the Commission. and their effect on the and their effect on the harmonisation of applicable harmonisation of applicable rules aimed at facilitating rules aimed at facilitating market integration as well as on market integration as well as on non-discrimination, effective non-discrimination, effective competition and the efficient competition and the efficient functioning of the market, and functioning of the market, and report to the Commission. The report to the Commission.

  Agency may also issue decisions in accordance with Article 4(4a) of this Regulation.

ANNEX TREE.2.B EN

• 85. 

  2. In cases where the network codes and AM 36

  guidelines developed pursuant to Chapter VII of 2. In cases where the 2. In cases where a Council compromise text: [recast Electricity Regulation as proposed by network codes and guidelines legislative act of the Union COM(2016) 861 i/2] provide for the development of developed pursuant to Chapter adopted in an ordinary See Coreper discussion proposals for terms and conditions or VII of [recast Electricity legislative procedure or the paper

  methodologies for the implementation of those Regulation as proposed by network codes and guidelines network codes and guidelines which require COM(2016) 861 i/2] provide for adopted before the entry into regulatory approval by all regulatory authorities or the development of proposals force of this Regulation or by all regulators of the concerned region, the terms for terms and conditions or adopted as implementing acts and conditions or methodologies shall be submitted methodologies for the pursuant to Article 5 of for revision and approval to the Agency. Before implementation of those Regulation (EU) No 182/2011 i approving the terms and conditions or network codes and guidelines of the European Parliament methodologies, the Agency shall revise and change which require approval by the and the Council, [] provide for them where necessary in order to ensure that they regulatory authorities of all the development of proposals are in line with the purpose of the network code or Member States, the proposed for common terms and guidelines and contribute to market integration, terms and conditions or conditions or methodologies for non-discrimination and the efficient functioning of methodologies shall be the implementation of those the market. The procedure for the coordination of submitted for revision and network codes and guidelines regional tasks in accordance with Article 7 shall approval to the Agency. which require regulatory

  apply. approval by all regulatory authorities [], the terms and

  conditions or methodologies shall be submitted for revision to the Agency and shall be approved by the Board of Regulators. []

ANNEX TREE.2.B EN

• 86. 

  AM 37 2(a) In cases where a Council compromise text

  2 a. (new) In cases where the legislative act of the Union

  network codes and guidelines adopted in an ordinary See Coreper discussion

  developed pursuant to Chapter legislative procedure or the

  VII of Regulation (EU) .../... network codes and guidelines paper

  [proposed recast Electricity adopted before the entry into Regulation, COD (2016)0379] force of this Regulation or provide for the development of adopted as implementing acts proposals for joint regional pursuant to Article 5 of terms and conditions or Regulation (EU) No 182/2011 i methodologies for the of the European Parliament implementation of network and the Council, provide for codes and guidelines which the development of proposals require approval by all for terms and conditions or regulatory authorities of the methodologies for the region concerned, the proposed implementation of those terms and conditions or network codes and guidelines methodologies shall be notified which require regulatory to the Agency. approval by all competent regulatory authorities of the concerned region, the competent regulatory authorities of the concerned region shall reach an agreement by unanimity. The proposed terms and conditions or methodologies shall be notified to the Agency within one week of the submission of the proposal to the competent regulators. Regulators may refer the proposal to the Agency for approval pursuant to Article 6(8)(b) and shall do so pursuant to Article 6(8)(a) in case a unanimous decision cannot be reached.

ANNEX TREE.2.B EN

• 87. 

  Within one month of such Maintain Council GA

  notification, the Director may, 2(b) The Director or the on his or her own initiative Board of Regulators, acting after consulting the Board of on its own initiative or on a Regulators, or at the request of proposal of one or more of its the Board of Regulators, members, may require the require the regulatory regulators of the region authorities of the region concerned to refer the concerned to refer the proposal proposal to the Agency for to the Agency for approval approval. Such request shall where the proposal has a be limited to cases where a tangible impact on the internal regionally agreed proposal

  energy market. would have a tangible impact on the internal energy market

  or on security of supply beyond the region.

• 88. 

  A proposal shall be considered to have a tangible impact on

  the internal energy market where it would:

• 89. 

  (i) have a tangible impact on end-consumers beyond the region concerned, or

• 90. 

  (ii) significantly affect the

  Union's energy interests beyond the region concerned.

ANNEX TREE.2.B EN

• 91. 

  In such cases, or in cases referred to in Article 6(8)(a) and (b) the Agency shall take a decision within the period specified in the relevant

  network codes and guidelines. That period shall begin on the day following that on which the proposal was notified.

• 92. 

  Before approving the terms and

  conditions or methodologies, 2(c) Before approving the

  Maintain Council GA

  the Agency shall revise and terms and conditions or change them where necessary methodologies pursuant in order to ensure that they are paragraph 2, 2a and 2b, the in line with the purpose of the regulatory authorities or network code or guideline and where competent the Agency contribute to market shall revise and change them integration, nonwhere necessary in discrimination, effective consultation with the ENTSO competition and the proper for Electricity or the EU DSO

  functioning of the market. entity, in order to ensure that they are in line with the

  purpose of the network code or guidelines and contribute to market integration, nondiscrimination, effective competition and the proper functioning of the market.

  The Agency shall take a decision on the approval within the period specified in the relevant network codes and guidelines. That period shall begin on the day following that on which the proposal was notified.

ANNEX TREE.2.B EN

• 93. 

  3. In the context of the bidding zone review, AM 38

  the Agency shall approve and may request 3. The bidding zone review 3. In the context of the

  Provisionally agreed in TM

  amendments to the methodology and assumptions process shall be effected bidding zone review, in case 3. The Agency shall carry

  that will be used in the bidding zone review process pursuant to Article 13 paragraph that the relevant national out its tasks as regards the pursuant to Article 13(3) of [recast Electricity 3 of [recast Electricity regulatory authorities do not bidding zone review Regulation as proposed by COM(2016) 861 i/2]. Regulation as proposed by come to an unanimous pursuant to Article 13(3) of

  COM(2016) 861 i/2]. decision on the transmission [recast Electricity system operator’s proposal, Regulation as proposed by

  the Agency shall [] decide the COM(2016) 861 i/2]. methodology and assumptions that will be used in the bidding zone review process pursuant to Article 13(3) of [recast Electricity Regulation as proposed by COM(2016) 861 i/2] as well as issue an opinion pursuant to Article 14(2a) of that Regulation.

• 94. 

  4. The Agency shall monitor the regional Provisionally agreed in TM

  cooperation of transmission system operators 4. The Agency shall monitor 4. The Agency shall monitor referred to in Article 31 of [recast Electricity the regional cooperation of the regional cooperation of Regulation as proposed by COM(2016) 861 i/2] and transmission system operators transmission system operators Article 12 of Regulation (EC) No 715/2009 i, and referred to in Article 31 of referred to in Article 31 of take into account the outcome of that cooperation [recast Electricity Regulation as when formulating its opinions, recommendations proposed by COM(2016) 861 i/2]

  [recast Electricity Regulation

  and decisions. and Article 12 of Regulation

  as proposed by COM(2016)

  (EC) No 715/2009, and take 861/2] and Article 12 of into account the outcome of that Regulation (EC) No cooperation when formulating 715/2009, and take into its opinions, recommendations account the outcome of that

and decisions. cooperation when formulating its opinions, recommendations

and decisions.

ANNEX TREE.2.B EN

• 95. 

  Article 6 Tasks of the Agency as regards the national regulatory authorities

• 96. 

  1. The Agency shall adopt individual decisions 1. The Agency shall adopt Provisionally agreed in TM on technical issues where those decisions are individual decisions on 1. The Agency shall adopt provided for in [OP: recast Electricity Directive as technical issues where those individual decisions on proposed by COM(2016) 864 i/2], Directive decisions are provided for in technical issues where those 2009/73/EC, [OP: recast Electricity Regulation as [OP: recast Electricity Directive decisions are provided for in proposed by COM(2016) 861 i/2] or Regulation as proposed by COM(2016) [OP: recast Electricity (EC) No 715/2009. 864/2], Directive 2009/73/EC i, Directive as proposed by

  [OP: recast Electricity COM(2016) 864 i/2], Directive Regulation as proposed by 2009/73/EC, [OP: recast COM(2016) 861 i/2] or Electricity Regulation as

  Regulation (EC) No 715/2009 i. proposed by COM(2016) 861 i/2] or Regulation (EC) No

  715/2009. 97. 2. The Agency may, in accordance with its AM 39 Provisionally agreed in TM

  work programme, at the request of the Commission 2. The Agency may, in 2. The Agency may, in or at its own initiative, make recommendations to accordance with its work accordance with its work 2. The Agency may, in assist regulatory authorities and market players in programme, at the request of the programme, at the request of the accordance with its work sharing good practices. Commission or at its own Commission or at its own programme, at the request of initiative, make initiative, make the Commission or at its own recommendations to assist recommendations to assist initiative, make regulatory authorities and regulatory authorities and recommendations to assist

  market players in sharing good market players in sharing good regulatory authorities and

  practices and ensuring full practices. market players in sharing

  compliance with existing good practices.

  regulation.

• 98. 

  AM 40 Council compromise text

  2a. (new) The Agency may 2a. The Agency may provide

  provide the Commission with an opinion regarding the

  an opinion regarding a independence of the

  particular national regulatory national regulatory

ANNEX TREE.2.B EN

authority’s independence or authorities or their lack of resources and technical resources and technical capabilities upon its own capabilities. initiative.

• 99. 

  3. The Agency shall provide a framework AM 41 3. The Agency shall provide Provisionally agreed in TM: within which national regulatory authorities can 3. The Agency shall provide a framework within which 3. The Agency shall provide a cooperate. It shall promote cooperation between the a framework within which national regulatory authorities framework within which national regulatory authorities and between national regulatory authorities can cooperate. It shall promote national regulatory authorities regulatory authorities at regional and Union level to can cooperate in order to cooperation between the can cooperate in order to ensure interoperability, communication and ensure efficient decisionnational regulatory authorities ensure efficient decisionmonitoring of regional performance in those areas making on issues with cross and between regulatory making on issues with cross which are still not harmonised at Union level and border relevance. It shall authorities at regional and border relevance. It shall shall take into account the outcome of such promote cooperation between Union level [] and shall take promote cooperation between cooperation when formulating its opinions, the national regulatory into account the outcome of the national regulatory recommendations and decisions. Where the authorities and between such cooperation when authorities and between Agency considers that binding rules on such regulatory authorities at regional formulating its opinions, regulatory authorities at cooperation are required, it shall make the and Union level to ensure recommendations and decisions. regional and Union level and

  appropriate recommendations to the Commission. interoperability, communication and monitoring of regional Where the Agency considers shall take into account the

  performance in those areas that binding rules on such outcome of such cooperation which are still not harmonised at cooperation are required, it shall when formulating its opinions, Union level and shall take into make the appropriate recommendations and account the outcome of such recommendations to the decisions. Where the Agency cooperation when formulating Commission. considers that binding rules on its opinions, recommendations such cooperation are required, and decisions. Where the it shall make the appropriate Agency considers that binding recommendations to the rules on such cooperation are Commission.

  required, it shall make the appropriate recommendations to the Commission.

ANNEX TREE.2.B EN

• 100. 

  4. The Agency shall provide a factual opinion AM 42 4. The Agency shall provide Provisionally agreed: at the request of a regulatory authority or of the 4. The Agency shall provide a factual opinion at the request 4. The Agency shall Commission, on whether a decision taken by a a factual opinion at the request of a regulatory authority or of provide a factual opinion at regulatory authority complies with the guidelines of one or more regulatory the Commission, on whether a the request of one or more referred to in [recast Electricity Directive as authorities or of the decision taken by a regulatory regulatory authorities or of proposed by COM(2016) 864 i/2], Directive Commission, on whether a authority complies with the the Commission, on whether a 2009/73/EC, [recast Electricity Regulation as decision taken by a regulatory guidelines referred to in [recast decision taken by a regulatory proposed by COM(2016) 861 i/2] or Regulation authority complies with the Electricity Directive as authority complies with the (EC) No 715/2009 or with other relevant provisions guidelines referred to in [recast guidelines referred to in of those Directives or Regulations. Electricity Directive as

  proposed by COM(2016) [recast Electricity Directive as

  proposed by COM(2016) 864 i/2], Directive 2009/73/EC i, proposed by COM(2016)

  864/2], Directive 2009/73/EC i, [recast Electricity Regulation as 864/2], Directive 2009/73/EC i,

  [recast Electricity Regulation as proposed by COM(2016) 861 i/2] [recast Electricity Regulation

  proposed by COM(2016) 861 i/2] or Regulation (EC) No as proposed by COM(2016)

  or Regulation (EC) No 715/2009 i or with other relevant 861/2] or Regulation (EC) No

  715/2009 or with other relevant provisions of those Directives or

  provisions of those Directives or Regulations.

  715/2009 or with other relevant provisions of those

  Regulations. Directives or Regulations.

• 101. 

  4a. The Agency shall Maintain Council GA

  provide an opinion to the relevant regulatory authority pursuant to Article 14(2a) of [OP: recast Electricity Regulation as proposed by COM(2016) 861 i/2].

• 102. 

  5. Where a national regulatory authority does 5. Where a national Provisionally agreed in TM: not comply with the opinion of the Agency referred regulatory authority does not 5. Where a national

  to in paragraph 4 within four months from the day comply with the opinion of the regulatory authority does not of receipt, the Agency shall inform the Agency referred to in paragraph comply with the opinion of Commission and the Member State concerned 4 within four months from the the Agency referred to in accordingly. day of receipt, the Agency shall paragraph 4 within four

ANNEX TREE.2.B EN

inform the Commission and the months from the day of Member State concerned receipt, the Agency shall accordingly. inform the Commission and the Member State concerned accordingly.

• 103. 

  6. When a national regulatory authority Provisionally agreed in TM:

  encounters, in a specific case, difficulties with the 6. When a national 6. When a national application of the guidelines referred to in [recast regulatory authority encounters, regulatory authority Electricity Directive as proposed by COM(2016) in a specific case, difficulties encounters, in a specific case, 864/2], Directive 2009/73/EC i, [recast Electricity with the application of the difficulties with the Regulation as proposed by COM(2016) 861 i/2] or guidelines referred to in [recast application of the guidelines Regulation (EC) No 715/2009 i, it may request the Electricity Directive as referred to in [recast Agency for an opinion. The Agency shall deliver proposed by COM(2016) Electricity Directive as its opinion, after consulting the Commission, 864/2], Directive 2009/73/EC i, proposed by COM(2016)

within three months of receiving such request. [recast Electricity Regulation as proposed by COM(2016) 861 i/2] 864/2], Directive 2009/73/EC i,

or Regulation (EC) No [recast Electricity Regulation 715/2009 i, it may request the as proposed by COM(2016) Agency for an opinion. The 861/2] or Regulation (EC) No Agency shall deliver its opinion, 715/2009, it may request the after consulting the Agency for an opinion. The Commission, within three Agency shall deliver its months of receiving such opinion, after consulting the

request. Commission, within three months of receiving such

request. 104. AM 43 Provisionally agreed in TM:

6 a. (new) Upon the request of 6 a. Upon the request of a a national regulatory authority, national regulatory authority, the Agency may decide to the Agency may provide provide operational assistance operational assistance to that to the national regulatory national regulatory authority authority concerned in the regarding investigations investigation, including for the pursuant to Regulation (EU) purpose of enforcement with No 1227/2011 of the regard to non-compliance with European Parliament and of

ANNEX TREE.2.B EN

rules relating to market abuse, the Council 1a . market manipulation and

insider trading, pursuant to ________________

Regulation (EU) No 1227/2011 i 1a Regulation (EU) No of the European Parliament 1227/2011 of the European and of the Council 1a . Parliament and of the

________________ Council of 25 October 2011 on wholesale energy market

1a Regulation (EU) No integrity and transparency

1227/2011 of the European (OJ L 326, 8.12.2011, p. 1). Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p. 1).

• 105. 

  7. The Agency shall decide on the terms and AM 44

  conditions for access to and operational security of 7. The Agency shall decide 7. []

  Maintain Council GA

  electricity and gas infrastructure connecting or that on the terms and conditions for might connect at least two Member States ("crossaccess to and operational border infrastructure"), in accordance with security of electricity and gas paragraph 8 and following. infrastructure connecting or that might connect at least two Member States ("cross-border infrastructure"), in accordance with paragraphs 8, 9 and 10.

• 106. 

  8. As regards regulatory issues with crossborder

  relevance , the Agency shall decide upon 8. [] The Agency shall be

  Council compromise text

  those regulatory issues that fall within the competent to adopt individual See Coreper discussion competence of national regulatory authorities, decisions on regulatory issues [] which may include the terms and conditions for having effect on cross-border []

  paper

  access and operational security, or methodologies trade or cross-border system with relevance for cross-border trade or operational security which require a joint security, or other regulatory issues with crossdecision by at least two []

  border relevance,: national regulatory authorities, and such competences have

  been conferred under a

ANNEX TREE.2.B EN

legislative act of the Union adopted in an ordinary legislative procedure or the Network Codes and Guidelines adopted before the entry into force of this Regulation or adopted as implementing acts pursuant to Article 5 of Regulation (EU) No 182/2011 of the European Parliament and the Council [],

• 107. 

  (a) where the competent national regulatory (a) where the competent Maintain Council GA authorities have not been able to reach an national regulatory authorities

  agreement within a period of six months after have not been able to reach an referral of the case to the last of those regulatory agreement within a period of six authorities; or months after referral of the case to the last of those regulatory authorities; or

• 108. 

  (b) upon a joint request from the competent (b) upon a joint request from Maintain Council GA

  national regulatory authorities. the competent national regulatory authorities.

  The competent national regulatory authorities may jointly request that the period referred to in point The competent national (a) be extended by a period of up to six months. regulatory authorities may jointly request that the period When preparing its decision, the Agency shall referred to in point (a) be consult the national regulatory authorities and the extended by a period of up to transmission system operators concerned and shall six months. be informed of the proposals and observations of

  all the transmission system operators concerned. []

ANNEX TREE.2.B EN

• 109. 

  8a. When preparing its Provisionally agreed in TM: decision pursuant to 8a. When preparing its paragraph 8, the Agency shall decision pursuant to consult the national paragraph 8, the Agency regulatory authorities and the shall consult the national transmission system operators regulatory authorities and concerned and shall be the transmission system informed of the proposals and operators concerned and observations of all the shall be informed of the transmission system operators proposals and observations

concerned. of all the transmission system operators concerned.

• 110. 

  9. Where a case has been referred to the

  Agency under paragraph 8 , the Agency: 9. Where a case has been

  Provisionally agreed in TM:

  referred to the Agency under 9. Where a case has been

  paragraph 8, the Agency: referred to the Agency under paragraph 8, the Agency:

• 111. 

  (a) shall issue a decision within a period of six Provisionally agreed in TM:

  months from the day of referral; and (a) shall issue a decision within a period of six months (a) shall issue a decision

  from the day of referral; and within a period of six months from the day of referral; and

• 112. 

  (b) may, if necessary, provide an interim Provisionally agreed in TM:

  decision to ensure that security of supply or (b) may, if necessary, (b) may, if necessary, operational security of the infrastructure in provide an interim decision to provide an interim decision to

  question is protected. ensure that security of supply or operational security of the ensure that security of supply

  infrastructure in question is or operational security of the

  protected. infrastructure in question is protected.

ANNEX TREE.2.B EN

• 113. 

  10. Where the regulatory issues referred to in Provisionally agreed in TM:

  paragraph 8 include exemptions within the 10. Where the regulatory 10. Where the regulatory

meaning of Article 59 of [recast Electricity issues referred to in paragraph 8 issues referred to in paragraph

Regulation as proposed by COM(2016) 861 i/2] or include exemptions within the 8 include exemptions within

Article 36 of Directive 2009/73/EC i, the deadlines meaning of Article 59 of [recast the meaning of Article 59 of

provided for in this Regulation shall not be Electricity Regulation as [recast Electricity Regulation cumulative with the deadlines provided for in those proposed by COM(2016) 861 i/2] as proposed by COM(2016)

provisions. or Article 36 of Directive 2009/73/EC i, the deadlines 861/2] or Article 36 of

provided for in this Regulation Directive 2009/73/EC i, the shall not be cumulative with the deadlines provided for in this deadlines provided for in those Regulation shall not be

provisions. cumulative with the deadlines provided for in those

provisions. 114. AM 45 Maintain Council GA

10 a. (new) The national regulatory authorities shall ensure enforcement of the Agency’s decisions.

ANNEX TREE.2.B EN

• 115. 

  Article 7 AM 46

  Coordination of regional tasks within the Agency deleted Article 7 Provisionally agreed in TM

  []

• 116. 

  1. For decisions pursuant to Article 5(2) of the Provisionally agreed in TM present Regulation, on joint regional terms and

  conditions or methodologies to be developed under network codes and guidelines pursuant to Chapter VII of the [recast Electricity Regulation as proposed by COM(2016) 861 i/2] which regularly concern a limited number of Member States and require a joint regulatory decision at regional level, the Agency may be assisted by a subset of the Board of Regulators, consisting only of the regulatory authorities of the concerned region, following the procedure in paragraphs 2 to 4 of this Article.

• 117. 

  2. The Director shall assess the possible impact Provisionally agreed in TM of the joint proposal on the internal market and

  issue an opinion if the joint proposal is mainly of regional relevance or if it has a tangible impact on the internal market, notably in cases where the issue at stake has a significant relevance beyond the concerned region.

• 118. 

  3. The Board of Regulators shall, if Provisionally agreed in TM appropriate, and notably taking into account the

  opinion of the Director, establish a regional subgroup consisting of the concerned members of the Board of Regulators to revise the proposal and make a recommendation to the Board of Regulators on the approval, including possible amendments.

ANNEX TREE.2.B EN

• 119. 

  4. When the Board of Regulators decides on its Provisionally agreed in TM

  opinion on the proposal, it shall take due account of the recommendation of the regional subgroup.

• 120. 

  5. The regulatory authorities of the region shall Provisionally agreed in TM

  jointly designate a single coordinating national regulatory authority responsible for the coordination of the regional subgroups of the national regulatory authorities. The function of the coordinating national regulatory authority shall rotate every two years. The coordinating national regulatory authority shall act as contact point for all concerned parties, including for the Agency. It may request information relevant for the implementation of regulatory functions at regional level from all concerned parties on its own initiative or at the request of another national regulatory authority or authorities of the region and shall provide the Agency with information concerning the regional activities of the national regulatory authorities of the region. Regulatory authorities acting in regional subgroups of the Board of Regulators shall make sufficient resources available to enable the group to carry out its functions.

ANNEX TREE.2.B EN

• 121. 

  Article 8 AM 47 Article 8 Provisionally agreed:

  Tasks of the Agency as regards regional Tasks of the Agency as regards Article 8 operational centres regional coordination centres

  Tasks of the Agency as

  regards [[Regional Security Tasks of the Agency as

  Coordinators regards [Regional Coordination Centres]

• 122. 

  1. The Agency, in close cooperation with the AM 48 1. The Agency, in close Council compromise text: national regulatory authorities and the ENTSO for 1. The Agency, in close cooperation with the national 1. The Agency, in close Electricity, shall monitor and analyse the cooperation with the national regulatory authorities and the cooperation with the national performance of regional operational centres, taking regulatory authorities and the ENTSO for Electricity, shall regulatory authorities and the into account the reports provided for in [Article ENTSO for Electricity, shall monitor and analyse the ENTSO for Electricity, shall 43(4) recast Electricity Regulation as proposed by monitor and analyse the performance of [] Regional monitor and analyse the

  COM(2016) 861 i/2]. performance and compliance of regional coordination centres, Security Coordinators, taking performance of [Regional

  taking into account the reports into account the reports Coordination Centres], provided for in [Article 43(4)] provided for in [Article 43(4) taking into account the reports of Regulation ... [recast recast Electricity Regulation as provided for in [Article 43(4) Electricity Regulation as proposed by COM(2016) recast Electricity Regulation proposed by COM(2016) 861 i/2] 861/2]. as proposed by COM(2016) and their compliance with 861/2].

  obligations under Regulation (EU) .../... [recast Electricity Regulation as proposed by COM(2016) 861 i/2], the network codes adopted pursuant to Articles 54 and 55 thereof and the guidelines adopted pursuant to Article 57 thereof.

ANNEX TREE.2.B EN

• 123. 

  2. To carry out the tasks referred to in 2. To carry out the tasks

  paragraph 1 in an efficient and expeditious manner, referred to in paragraph 1 in an the Agency shall in particular: efficient and expeditious manner, the Agency shall in particular:

• 124. 

  (a) decide on the configuration of system (a) decide on the operation regions pursuant to Article 33(1) of configuration of system [recast Electricity Regulation as proposed by operation regions pursuant to COM(2016) 861 i/2] Article 33[] (2) of [recast Electricity Regulation as proposed by COM(2016) 861 i/2];

• 125. 

  (b) request information from regional AM 49 Provisionally agreed:

  operational centres where appropriate pursuant to (b) request information from (b) request information from Article 43 of [recast Electricity Regulation as regional coordination centres [] Regional Security

  (b) request information

  proposed by COM(2016) 861 i/2]; where appropriate pursuant to Coordinators where

from [Regional Coordination

Article 43 of [recast Electricity appropriate pursuant to Article

Centres] where appropriate

Regulation as proposed by 43 of [recast Electricity

pursuant to Article 43 of

COM(2016) 861 i/2]; Regulation as proposed by

[recast Electricity Regulation

COM(2016) 861 i/2]; as proposed by COM(2016) 861 i/2];

• 126. 

  (c) issue opinions and recommendations to the

  European Commission, the Council and the (c) issue opinions and

  European Parliament; recommendations to the European Commission, the

  Council and the European Parliament;

• 127. 

  (d) issue opinions and recommendations to AM 50

  regional operational centres. (d) issue opinions and (d) issue opinions and

  Provisionally agreed: (d) issue opinions and

  recommendations to regional recommendations to [] Regional coordination centres. Security Coordinators.

  recommendations to [Regional Coordination Centres].

ANNEX TREE.2.B EN

• 128. 

  AM 51 Maintain Council GA, AM 51 2 a. (new) The Agency may covered in new Article 4(5)

  issue decisions addressed to the and 4(6). See Coreper regional coordination centres discussion paper (7/12/18) to require them to comply with their obligations as specified in

• 129. 

  (a) Regulation (EU) .../...

  [proposed recast Electricity Regulation, COD (2016)0379];

• 130. 

  (b) the network codes adopted pursuant to Articles 54 and 55 of Regulation (EU) .../... [proposed Electricity

  Regulation, COD(2016)0379 ]; 131. (c) the guidelines adopted

  pursuant to Article 57 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016) 0379].

• 132. 

  AM 52 Maintain Council GA, AM 51 2 b. (new) The Agency shall covered in new Article 4(5)

  take a decision pursuant to and 4(6). See Coreper paragraph 2a only where: discussion paper (7/12/18)

• 133. 

  (a) the failure to comply affects the efficient functioning of the internal energy market; and

• 134. 

  (b) no competent authority has taken measures or the

  measures taken by one or more competent authorities have not been sufficient to ensure compliance.

ANNEX TREE.2.B EN

• 135. 

  Article 9

  Tasks of the Agency as regards Nominated Electricity Market Operators

• 136. 

  In order to ensure that Nominated Electricity In order to ensure that Provisionally agreed in TM

  Market Operators carry out their functions under Nominated Electricity Market the [recast Electricity Regulation as proposed by Operators carry out their COM(2016) 861 i/2] and Commission Regulation functions under the [recast 1222/2015 of 24 July 2015 1 , the Agency shall: Electricity Regulation as proposed by COM(2016) 861 i/2] and Commission Regulation 1222/2015 i of 24 July 2015 1 , the Agency shall:

• 137. 

  (a) monitor the Nominated Electricity Market

  Operators' progress in establishing the functions (a) monitor the Nominated

  under Regulation 1222/2015 i; Electricity Market Operators' progress in establishing the

  functions under Regulation 1222/2015 i;

• 138. 

  (b) issue recommendations to the Commission

  in accordance with Article 7(5) of Regulation (b) issue recommendations to

  1222/2015 the Commission in accordance with Article 7(5) of Regulation

  1222/2015

• 139. 

  (c) request information from Nominated

  Electricity Market Operators where appropriate. (c) request information from Nominated Electricity Market

  Operators where appropriate.

1 Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management, OJ L

197, 25.7.2015, p. 24–72

ANNEX TREE.2.B EN

• 140. 

  Article 10

  Tasks of the Agency as regards generation adequacy and risk preparedness

• 141. 

  1. The Agency shall approve and amend where

  necessary 1. The Agency shall approve and amend where

  necessary

• 142. 

  (a) the proposals for methodologies and AM 53 (a) the proposals for Maintain Council GA calculations related to the European resource (a) the proposals for methodologies and calculations adequacy assessment pursuant to Article 19(2), (3) methodologies and calculations related to the European resource and (5) of [recast Electricity Regulation as related to the European resource adequacy assessment pursuant

  proposed by COM(2016) 861 i/2]. adequacy assessment pursuant to Article 19(2), (3) and (5) of to Article 19(2), (3) and (5) of

  [recast Electricity Regulation as [recast Electricity Regulation as proposed by COM(2016) 861 i/2] proposed by COM(2016) as well as the results of the 861/2].

  European resource adequacy assessment pursuant to Article 19(6) of Regulation (EU) ... [recast Electricity Regulation as proposed by COM(2016) 861/2].

• 143. 

  (b) the proposals for technical specifications (b) the proposals for

  for cross-border participation in capacity technical specifications for mechanisms pursuant to Article 21(10) of [recast cross-border participation in Electricity Regulation as proposed by COM(2016) capacity mechanisms pursuant 861/2]. to Article 21(10) of [recast Electricity Regulation as proposed by COM(2016) 861 i/2].

ANNEX TREE.2.B EN

• 144. 

  1a. The Agency, at the Maintain Council GA

  request of the Commission, shall issue an opinion on the ENTSO for Electricity's evaluation of national adequacy assessment pursuant to Article 18(3a) of [OP: recast Electricity Regulation as proposed by COM(2016) 861 i/2]

• 145. 

  2. The Agency shall approve and amend where 2. The Agency shall

  necessary the methodologies approve and amend where necessary the methodologies

• 146. 

  (a) for identifying electricity crisis scenarios at a

  regional level as described in Article 5 of [Risk (a) for identifying electricity Preparedness Regulation as proposed by crisis scenarios at a regional

  COM(2016) 862 i]; level as described in Article 5 of [Risk Preparedness Regulation

  as proposed by COM(2016) 862 i];

• 147. 

  (b) for short-term adequacy assessments as

  described in Article 8 of [Risk Preparedness (b) for short-term adequacy

  Regulation as proposed by COM(2016) 862 i]. assessments as described in Article 8 of [Risk Preparedness

  Regulation as proposed by COM(2016) 862 i].

ANNEX TREE.2.B EN

• 148. 

  Article 11 Tasks of the Agency as regards exemption and certification decisions

• 149. 

  The Agency may decide on exemptions, as Provisionally agreed in TM

  provided for in Article 59(5) of [recast Electricity The Agency may decide on Regulation as proposed by COM(2016) 861 i/2]. The exemptions, as provided for in Agency may also decide on exemptions as Article 59(5) of [recast provided for in Article 36(4) of Directive Electricity Regulation as 2009/73/EC where the infrastructure concerned is proposed by COM(2016) located in the territory of more than one Member 861/2]. The Agency may also

  State. decide on exemptions as provided for in Article 36(4) of

  Directive 2009/73/EC i where the infrastructure concerned is located in the territory of more than one Member State.

• 150. 

  Article 12 Tasks of the Agency as regards infrastructure

• 151. 

  With respect to trans-European energy With respect to trans-European Provisionally agreed in TM

  infrastructure, the Agency, in close cooperation energy infrastructure, the with the regulatory authorities and the ENTSOs, Agency, in close cooperation shall: with the regulatory authorities and the ENTSOs, shall:

• 152. 

  (a) monitor progress as regards the implementation (a) monitor progress as

  of projects to create new interconnector capacity; regards the implementation of projects to create new

  interconnector capacity;

ANNEX TREE.2.B EN

• 153. 

  (b) monitor the implementation of the Union-wide (b) monitor the

  network-development plans. If it identifies implementation of the Union - inconsistencies between those plans and their wide network-development implementation, it shall investigate the reasons for plans. If it identifies those inconsistencies and make recommendations inconsistencies between those to the transmission system operators, national plans and their implementation, regulatory authorities or other competent bodies it shall investigate the reasons concerned with a view to implementing the for those inconsistencies and investments in accordance with the Union-wide make recommendations to the network-development plans. transmission system operators, national regulatory authorities or other competent bodies concerned with a view to implementing the investments in accordance with the Union - wide network-development plans.

• 154. 

  (c) carry out the obligations laid out in Article 5, (c) carry out the obligations

  11, 12 and 13 of Regulation (EU) No 347/2013 i. laid out in Article 5, 11, [] and 13 of Regulation (EU) No

  347/2013.

• 155. 

  (d) take decisions pursuant Provisionally agreed: to Article 12(6) of Regulation (d) take decisions

  (EU) No 347/2013. pursuant to Article 12(6) of Regulation (EU) No

  347/2013.

ANNEX TREE.2.B EN

• 156. 

  Article 13

  Tasks of the Agency as regards wholesale market integrity and transparency

• 157. 

  In order to effectively monitor wholesale market Provisionally agreed

  integrity and transparency, the Agency, in close In order to effectively monitor cooperation with the regulatory authorities and wholesale market integrity and

  other national authorities, shall transparency, the Agency, in close cooperation with the

  regulatory authorities and other national authorities, shall

• 158. 

  (a) monitor wholesale markets, collect data and AM 54

  establish a European register of market (a) monitor wholesale

  Provisionally agreed:

  participants in accordance with Article 7 to 9 of (a) monitor wholesale markets, collect data and

  (a) monitor wholesale

  Regulation (EU) 1227/2011 i 1 ; markets, including regional establish a European register of

  markets, collect and share

  markets, collect and share data market participants in data and establish a European and establish a European accordance with Article 7 to 9 register of market participants register of market participants in of Regulation (EU) 1227/2011 i 1 ; in accordance with Article 7 accordance with Article 7 to 12 to 12 of Regulation of Regulation (EU)1227/2011 i 1 ; (EU)1227/2011

  1 ;

• 159. 

  (b) issue recommendations to the Commission

  in accordance with Article 7 of Regulation (EU) (b) issue recommendations to

  1227/2011; the Commission in accordance with Article 7 of Regulation

  (EU) 1227/2011;

1 Regulation (EU) No 1227/2011 i of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency OJ L 326, 8.12.2011, p. 1–16.

ANNEX TREE.2.B EN

• 160. 

  (c) coordinate investigations pursuant to Article

  16(4) of Regulation (EU) 1227/2011 i. (c) coordinate investigations pursuant to Article 16(4) of

  Regulation (EU) 1227/2011 i;

• 161. 

  (ca) establish mechanisms to Provisionally agreed: share information it receives (ca) establish mechanisms and give access to these to share information it mechanisms in accordance receives and give access to with Article 10 of Regulation these mechanisms in

  (EU) 1227/2011. accordance with Article 10 of Regulation (EU)

  1227/2011. [] 162. Article 14

  Commissioning of new tasks to the Agency 163. The Agency may, in circumstances clearly defined The Agency may, in Council compromise text

  by the Commission in guidelines adopted pursuant circumstances clearly defined to Article 57 of [recast Electricity Regulation as by the Commission in See Coreper discussion proposed by COM(2016) 861 i/2] or Article 23 of guidelines adopted pursuant to paper (7/12/18) Regulation (EC) No 715/2009 i and on issues related Article 57 of [recast Electricity to the purpose for which it has been established, be Regulation as proposed by commissioned with additional tasks respecting the COM(2016) 861 i/2] or Article limits of transfer of executive powers to Union 23 of Regulation (EC) No agencies . 715/2009 and on issues related to the purpose for which it has been established, be commissioned with additional tasks [] which do not involve decision making powers.

ANNEX TREE.2.B EN

• 164. 

  Article 15 Consultations, and transparency and procedural safeguards (Article 15 provisionally agreed)

• 165. 

  1. In carrying out its tasks, in particular in the 1. In carrying out its tasks, Provisionally agreed: process of developing framework guidelines in in particular in the process of 1. In carrying out its tasks, accordance with Article 55 of [recast Electricity developing framework in particular in the process of Regulation as proposed by COM(2016) 861 i/2] or guidelines in accordance with developing framework Article 6 of Regulation (EC) No 715/2009 i, and in Article 55 of [recast Electricity guidelines in accordance with the process of proposing amendments of network Regulation as proposed by Article 55 of [recast codes under Article 56 of [recast Electricity COM(2016) 861 i/2] or Article 6 Electricity Regulation as Regulation as proposed by COM(2016) 861 i/2] or of Regulation (EC) No proposed by COM(2016) Article 7 of Regulation (EC) No 715/2009 i the 715/2009, and in the process of 861/2] or Article 6 of Agency shall consult extensively and at an early proposing amendments of Regulation (EC) No stage with market participants, transmission system network codes under Article 56 715/2009, and in the process operators, consumers, end-users and, where of [recast Electricity Regulation of proposing amendments of relevant, competition authorities, without prejudice as proposed by COM(2016) network codes under Article to their respective competence, in an open and 861/2] or Article 7 of 56 of [recast Electricity transparent manner, in particular when its tasks Regulation (EC) No 715/2009 i Regulation as proposed by concern transmission system operators. the Agency shall consult COM(2016) 861 i/2] or Article

  extensively and at an early stage 7 of Regulation (EC) No with market participants, 715/2009 the Agency shall transmission system operators, consult extensively and at an consumers, end-users and, early stage with market where relevant, competition participants, transmission authorities, without prejudice to system operators, consumers, their respective competence, in end-users and, where relevant, an open and transparent manner, competition authorities, in particular when its tasks without prejudice to their concern transmission system respective competence, in an

  operators. open and transparent manner, in particular when its tasks

  concern transmission system operators.

• 166. 

  2. The Agency shall ensure that the public and 2. The Agency shall ensure Provisionally agreed: any interested parties are, where appropriate, given that the public and any 2. The Agency shall

  objective, reliable and easily accessible interested parties are, where ensure that the public and any appropriate, given objective, interested parties are, where

ANNEX TREE.2.B EN

information, in particular with regard to the results reliable and easily accessible appropriate, given objective, of its work. information, in particular with reliable and easily accessible regard to the results of its work information, in particular with regard to the results of its work.

• 167. 

  All documents and minutes of consultation All documents and minutes of Provisionally agreed: meetings conducted during the development of consultation meetings All documents and minutes of framework guidelines in accordance with Article conducted during the consultation meetings 55 of [recast Electricity Regulation as proposed by development of framework conducted during the COM(2016) 861 i/2] or Article 6 of Regulation (EC) guidelines in accordance with development of framework No 715/2009, or during the amendment of network Article 55 of [recast Electricity guidelines in accordance with codes referred to in paragraph 1 shall be made Regulation as proposed by Article 55 of [recast public. COM(2016) 861 i/2] or Article 6 Electricity Regulation as

  of Regulation (EC) No proposed by COM(2016) 715 i/2009, or during the 861/2] or Article 6 of amendment of network codes Regulation (EC) No referred to in paragraph 1 shall 715/2009, or during the

  be made public. amendment of network codes referred to in paragraph 1

  shall be made public. 168. 3. Before adopting framework guidelines , or Provisionally agreed:

  proposing amendments to network codes as 3. Before adopting 3. Before adopting referred to in paragraph 1 , the Agency shall framework guidelines , or framework guidelines , or indicate how the observations received during the proposing amendments to consultation have been taken into account and shall network codes as referred to in

  proposing amendments to

  provide reasons where those observations have not paragraph 1 , the Agency shall

  network codes as referred to

  been followed. indicate how the observations

  in paragraph 1 , the Agency

  received during the consultation shall indicate how the have been taken into account observations received during and shall provide reasons where the consultation have been those observations have not taken into account and shall

  been followed. provide reasons where those observations have not been

  followed.

ANNEX TREE.2.B EN

• 169. 

  4. The Agency shall make public, on its own Provisionally agreed:

  website, at least the agenda, the background 4. The Agency shall make

documents and, where appropriate, the minutes of public, on its own website, at 4. The Agency shall make

the meetings of the Administrative Board, of the least the agenda, the background public, on its own website, at

Board of Regulators and of the Board of Appeal. documents and, where least the agenda, the appropriate, the minutes of the background documents and,

meetings of the Administrative where appropriate, the Board, of the Board of minutes of the meetings of the Regulators and of the Board of Administrative Board, of the Appeal. Board of Regulators and of the Board of Appeal.

• 170. 

  Text of Article 15a merged

  with Article 15:

  Provisionally agreed:

  • 5. 

    The Agency shall adopt and publish adequate and proportionate rules of procedure following the process set out in Article 20 (1)(t). These rules shall at least include provisions which ensure a transparent and reasonable decisionmaking process guaranteeing fundamental procedural rights based on the rule of law, including the right to be heard, rules on access to files and the standards specified in paragraphs 6 to 8.

ANNEX TREE.2.B EN

• 171. 

  Provisionally agreed:

  • 6. 

    Before taking individual decisions provided for in this Regulation, the Agency shall inform any party concerned of its intention to adopt a decision, and set a time limit within which the party concerned may express its views on the matter, taking full account of the urgency, complexity and potential consequences of the matter.

• 172. 

  Provisionally agreed:

  • 7. 

    Individual decisions of the

  Agency shall state the

  reasons on which they are

  based for the purpose of

  allowing an appeal on the

  merits.

• 173. 

  Provisionally agreed:

  • 8. 

    The parties concerned of individual decisions shall be informed of the legal remedies available under this Regulation.

ANNEX TREE.2.B EN

• 174. 

  AM 55

  Article 15 a (new) Article 15a (Merged with Article 15)

• 175. 

  Procedural safeguards for addressees of the Agency’s decisions

• 176. 

  1. Before taking the

  decisions provided for in this 1. Before taking the Regulation, the Agency shall decisions provided for in this inform the parties concerned of Regulation, the Agency shall the decisions and shall invite inform any named addressee them to submit observations by of its intention to adopt a a particular time-limit, taking decision, setting a time limit full account of the urgency, within which the addressee complexity and potential may express its views on the

  consequences of the matter. matter, taking full account of the urgency, complexity and

  potential consequences of the matter.

ANNEX TREE.2.B EN

• 177. 

  2. Decisions taken by the

  Agency shall be fully reasoned 2. The decisions of the for the purpose of allowing an Agency shall state the reasons

  appeal on the merits. on which they are based for the purpose of allowing an

  appeal on the merits.

• 178. 

  3. The parties concerned 3. The addressees of shall be informed of the legal decisions of the Agency shall remedies available to challenge be informed of the legal decisions pursuant to this remedies available under this Regulation. Regulation.

• 179. 

  4. The Agency shall adopt

  and publish adequate and 4. The Agency shall adopt proportionate rules of and publish adequate and procedure relating to the proportionate rules of Agency’s tasks under Chapter procedure for all Agency tasks I. For all Agency decisions, the set out under Chapter 1. rules of procedure shall at least These rules shall at least set set the standards specified in out the standards specified in paragraphs 1, 2 and 3 of this paragraphs 1 to 3 to ensure a Article and shall ensure a transparent and reasonable transparent and reasonable decision-making process decision-making process, guaranteeing fundamental guaranteeing fundamental procedural rights based on the procedural rights based on the rule of law.

  rule of law. For all other Agency tasks under Chapter I, the rules of procedure shall at least ensure that fundamental procedural rights are guaranteed.

ANNEX TREE.2.B EN

• 180. 

  Article 16 Monitoring and reporting on the electricity and natural gas sectors

• 181. 

  1. The Agency, in close cooperation with the AM 56 The Agency, in close Provisionally agreed:

  Commission, the Member States and the relevant 1. The Agency, in close

  • 1. 

    cooperation with the

  national authorities including the national cooperation with the Commission, the Member States 1. The Agency, in close regulatory authorities and without prejudice to the Commission, the Member States and the relevant national cooperation with the competences of competition authorities, shall and the relevant national authorities including the Commission, the Member monitor the wholesale and retail markets in authorities including the national regulatory authorities States and the relevant electricity and natural gas, in particular the retail national regulatory authorities and without prejudice to the national authorities including prices of electricity and natural gas, compliance and without prejudice to the competences of competition the national regulatory with the consumer rights laid down in [recast competences of competition authorities, shall monitor the authorities and without Electricity Directive as proposed by COM(2016) authorities, shall monitor the wholesale and retail markets in prejudice to the competences 864/2] and Directive 2009/73/EC i, access to the wholesale and retail markets in electricity and natural gas, in of competition authorities, networks including access of electricity produced electricity and natural gas, in particular the retail prices of shall monitor the wholesale from renewable energy sources, potential barriers particular the retail prices of electricity and natural gas, and retail markets in to cross-border trade, state interventions preventing electricity and natural gas, compliance with the consumer electricity and natural gas, in prices from reflecting actual scarcity, the compliance with the consumer rights laid down in [recast particular the retail prices of performance of the Member States in the area of rights laid down in [recast Electricity Directive as electricity and natural gas, electricity security of supply based on the results of Electricity Directive as proposed by COM(2016) 864 i/2] compliance with the consumer the European resource adequacy assessment as proposed by COM(2016) 864 i/2] and Directive 2009/73/EC i, rights laid down in [recast referred to in Article 19 of [recast Electricity and Directive 2009/73/EC i, the access to the networks including Electricity Directive as Regulation], in particular taking into account the impact of market developments access of electricity produced proposed by COM(2016) ex-post evaluation referred to in Article 16 of [Risk on household customers access from renewable energy sources, 864/2] and Directive Preparedness Regulation as proposed by to the networks including access potential barriers to cross-border 2009/73/EC, the impact of

  COM(2016) 862 i] . of electricity produced from renewable energy sources, the trade, state interventions market developments on

  progress made with regard to preventing prices from household customers, access interconnections, potential reflecting actual scarcity such to the networks including barriers to cross-border trade, as price restrictions as laid out access of electricity produced regulatory barriers for new in Article 9 of [OP: recast from renewable energy market entrants and smaller Electricity Regulation as sources, the progress made actors, including energy proposed by COM (2016) with regard to communities, state interventions 861/2)], the performance of the interconnections, potential preventing prices from Member States in the area of barriers to cross-border trade,

  reflecting actual scarcity, the electricity security of supply regulatory barriers for new based on the results of the market entrants and smaller

ANNEX TREE.2.B EN

performance of the Member European resource adequacy actors, including energy States in the area of electricity assessment as referred to in communities, state security of supply based on the Article 19 of [recast Electricity interventions preventing results of the European resource Regulation], in particular taking prices from reflecting actual adequacy assessment as referred into account the ex-post scarcity such as laid out in to in Article 19 of [recast evaluation referred to in Article Article 9 (4) of [OP: recast Electricity Regulation], in 16 of [Risk Preparedness Electricity Regulation as particular taking into account Regulation as proposed by proposed by COM (2016) the ex-post evaluation referred COM(2016) 862 i] . 861/2)], the performance of to in Article 16 of [Risk the Member States in the area Preparedness Regulation as of electricity security of proposed by COM(2016)862 i]. supply based on the results of the European resource adequacy assessment as referred to in Article 19 of [recast Electricity Regulation], in particular taking into account the expost evaluation referred to in Article 16 of [Risk Preparedness Regulation as proposed by COM(2016) 862 i] .

• 182. 

  2. The Agency shall publish annually a report 2. The Agency shall publish on the results of the monitoring referred to r in annually a report on the results paragraph 1. In that report, it shall identify any of the monitoring referred to r in barriers to the completion of the internal markets in paragraph 1. In that report, it

  electricity and natural gas. shall identify any barriers to the completion of the internal

  markets in electricity and natural gas.

ANNEX TREE.2.B EN

• 183. 

  3. When publishing its annual report, the 3. When publishing its

  Agency may submit to the European Parliament annual report, the Agency may and to the Commission an opinion on the possible submit to the European measures to remove the barriers referred to in Parliament and to the paragraph 2. Commission an opinion on the possible measures to remove the barriers referred to in paragraph 2.

• 184. 

  3a. The Agency may issue a Council compromise text

  best practice report on tariffs

  pursuant to Article 16 (9) of The Agency may issue a best

  [OP: recast Electricity practice report on

  Regulation as proposed by transmission and

  COM(2016) 861 i/2]; distribution tariffs methodologies pursuant to

  Article 16 (9) of [OP: recast Electricity Regulation as proposed by COM(2016) 861/2];

• 185. 

  AM 57

  3 a. (new) The Agency may 3b. The Agency may Provisionally agreed request the national regulatory request national regulatory authorities, the ENTSO for authorities, the ENTSO for

(merged with Article 3(2), line

Electricity, the ENTSO for Gas, Electricity, the ENTSO for

64)

the regional coordination Gas, the Regional Security centres, the EU DSO entity and Coordinators, the EU DSO the nominated electricity entity and the Nominated market operators to make Electricity Market Operators available any information to provide any relevant necessary for the purpose of information necessary for the carrying out of monitoring purpose of carrying out of pursuant to this Article. For monitoring pursuant to this that purpose the Agency shall Article.

have the power to issue

ANNEX TREE.2.B EN

decisions. In its decisions the Agency shall make a reference to the legal basis under which the information is requested, the time limit within which the information is to be provided, and the purpose of the request. The Agency shall use confidential information received pursuant to this Article only for the purposes of carrying out the tasks assigned to it in this Regulation. The Agency shall ensure appropriate data protection of all the information pursuant to Article 41.

ANNEX TREE.2.B EN

• 186. 

  CHAPTER II ORGANISATION OF THE AGENCY

• 187. 

  Article 17 Legal status

• 188. 

  1. The Agency shall be a Union body with legal

  personality. 1. The Agency shall be a Union body with legal

  personality.

• 189. 

  2. In each Member State, the Agency shall

  enjoy the most extensive legal capacity accorded to 2. In each Member State, legal persons under national law. It shall, in the Agency shall enjoy the most particular, be able to acquire or dispose of movable extensive legal capacity

  and immovable property and be a party to legal accorded to legal persons under

  proceedings. national law. It shall, in particular, be able to acquire or

  dispose of movable and immovable property and be a party to legal proceedings.

• 190. 

  3. The Agency shall be represented by its

  Director. 3. The Agency shall be represented by its Director.

• 191. 

  4. The seat of the Agency shall be Ljubljana,

  Slovenia. 4. The seat of the Agency shall be Ljubljana, Slovenia.

• 192. 

  The Agency may establish local offices in the AM 58

Member States, subject to their consent and in The Agency may establish local [] Provisionally agreed:

accordance with Article 25(j). offices in the Member States, in (covered in Article 25(j), AM

accordance with Article 25(k). 74, line 287)

[]

ANNEX TREE.2.B EN

• 193. 

  Article 18 Administrative and Management Structure

• 194. 

  The Agency shall be composed of : The Agency shall be composed

  of : 195. (a) an Administrative Board, which shall

  exercise the tasks set out in Article 20; (a) an Administrative Board, which shall exercise the tasks

  set out in Article 20; 196. (b) a Board of Regulators, which shall exercise (b) a Board of

  the tasks set out in Article 23 ; Regulators, which shall exercise the tasks set out in Article 23;

• 197. 

  (c) a Director, who shall exercise the tasks set (c) a Director, who shall out in Article 25 ; and exercise the tasks set out in Article 25; and

• 198. 

  (d) a Board of Appeal, which shall exercise the

  tasks set out in Article 29 . (d) a Board of Appeal, which shall exercise the tasks set out in

  Article 29.

• 199. 

  Article 19 Composition of the Administrative Board

• 200. 

  1. The Administrative Board shall be composed

  of nine members. Each member shall have an 1. The Administrative Board alternate. Two members and their alternates shall shall be composed of nine be appointed by the Commission, two members members. Each member shall and their alternates shall be appointed by the have an alternate. Two members European Parliament and five members and their and their alternates shall be alternates shall be appointed by the Council. No appointed by the Commission, Member of the European Parliament shall be a two members and their

  member of the Administrative Board. alternates shall be appointed by the European Parliament and

  five members and their alternates shall be appointed by the Council. No Member of the European Parliament shall be a member of the Administrative Board.

ANNEX TREE.2.B EN

• 201. 

  2. The term of office of the members of the

  Administrative Board and their alternates shall be 2. The term of office of the

  four years, renewable once. For the first mandate, members of the Administrative

  the term of office of half of the members of the Board and their alternates shall

  Administrative Board and their alternates shall be be four years, renewable once.

  six years. For the first mandate, the term of office of half of the members

  of the Administrative Board and their alternates shall be six years.

• 202. 

  3. The Administrative Board shall elect by a

  two-thirds majority its Chairman and its Vice 3. The Administrative Chairman from among its members. The Vice Board shall elect by a two-thirds Chairman shall automatically replace the Chairman majority its Chairman and its if the latter is not in a position to perform his Vice-Chairman from among its duties. The term of office of the Chairman and of members. The Vice-Chairman the Vice-Chairman shall be two years, renewable shall automatically replace the once. The term of office of the Chairman and that Chairman if the latter is not in a of the Vice-Chairman shall expire when they cease position to perform his duties.

  to be members of the Administrative Board. The term of office of the Chairman and of the Vice

  Chairman shall be two years, renewable once. The term of office of the Chairman and that of the Vice-Chairman shall expire when they cease to be members of the Administrative Board.

ANNEX TREE.2.B EN

• 203. 

  4. The meetings of the Administrative Board

  shall be convened by its Chairman. The Chairman 4. The meetings of the

  of the Board of Regulators or the nominee of the Administrative Board shall be

  Board of Regulators, and the Director shall convened by its Chairman. The

  participate, without the right to vote, in the Chairman of the Board of

  deliberations unless the Administrative Board Regulators or the nominee of decides otherwise as regards the Director. The the Board of Regulators, and the Administrative Board shall meet at least twice a Director shall participate, year in ordinary session. It shall also meet at the without the right to vote, in the initiative of its Chairman, at the request of the deliberations unless the Commission or at the request of at least a third of Administrative Board decides its members. The Administrative Board may invite otherwise as regards the any person who may have a relevant opinion to Director. The Administrative attend its meetings in the capacity of an observer. Board shall meet at least twice a The members of the Administrative Board may, year in ordinary session. It shall subject to its rules of procedure, be assisted by also meet at the initiative of its advisers or experts. The Administrative Board’s Chairman, at the request of the secretarial services shall be provided by the Commission or at the request of

  Agency. at least a third of its members. The Administrative Board may

  invite any person who may have a relevant opinion to attend its meetings in the capacity of an observer. The members of the Administrative Board may, subject to its rules of procedure, be assisted by advisers or experts. The Administrative Board’s secretarial services shall be provided by the Agency.

ANNEX TREE.2.B EN

• 204. 

  5. Decisions of the Administrative Board shall AM 59

  be adopted on the basis of a simple majority of the 5. Decisions of the 5. Decisions of the

  Provisionally agreed:

  members present, unless provided otherwise in this Administrative Board shall be Administrative Board shall be Decisions of the

Regulation. Each member of the Administrative adopted on the basis of a two adopted on the basis of a simple Administrative Board shall be

Board or alternate shall have one vote. thirds majority of the members majority of the members adopted on the basis of a two

present, unless provided present, unless provided thirds majority of the otherwise in this Regulation. otherwise in this Regulation. members present, unless Each member of the Each member of the provided otherwise in this Administrative Board or, in his Administrative Board or Regulation. Each member of or her absence, an alternate alternate shall have one vote. the Administrative Board or shall have one vote. alternate shall have one vote.

• 205. 

  6. The rules of procedure shall set out in greater

  detail: 6. The rules of procedure shall set out in greater detail:

• 206. 

  (a) the arrangements governing voting, in

  particular the conditions on the basis of which one (a) the arrangements member may act on behalf of another and also, governing voting, in particular where appropriate, the rules governing quorums; the conditions on the basis of

  and which one member may act on behalf of another and also,

  where appropriate, the rules governing quorums; and

• 207. 

  (b) the arrangements governing the rotation

  applicable to the renewal of the members of the (b) the arrangements Administrative Board who are appointed by the governing the rotation Council so as to ensure a balanced participation of applicable to the renewal of the

  Member States over time. members of the Administrative Board who are appointed by the

  Council so as to ensure a balanced participation of Member States over time.

• 208. 

  7. A member of the Administrative Board shall

  not be a member of the Board of Regulators. 7. A member of the Administrative Board shall not

  be a member of the Board of Regulators.

ANNEX TREE.2.B EN

• 209. 

  8. The members of the Administrative Board AM 60 Provisionally agreed:

  shall undertake to act independently and 8. The members of the 8. Without prejudice to 8. Without prejudice to objectively in the public interest For that purpose, Administrative Board shall the role of the members the role of the members each member shall make a written declaration of undertake to act independently appointed by the European appointed by the European commitments and a written declaration of interests and objectively in the interest of Commission, the members of Commission, the members of indicating either the absence of any interest which the Union as a whole and shall the Administrative Board shall the Administrative Board may be considered prejudicial to his independence neither seek nor follow undertake to act independently or any direct or indirect interest which might be instructions from the Union and objectively in the public

  shall undertake to act

  considered prejudicial to his independence. Those institutions or bodies, from any interest without seeking or

independently and objectively

declarations shall be made public annually. government of a Member State following any political

in the interest of the Union as

or from any other public or instruction. For that purpose,

a whole and shall neither

private body. For that purpose, each member shall make a

seek nor follow instructions

each member shall make a written declaration of

from the Union institutions

written declaration of commitments and a written

or bodies, from any

commitments and a written declaration of interests

government of a Member

declaration of interests indicating either the absence of

State or from any other

indicating either the absence of any interest which may be

public or private body. For

any interest which may be considered prejudicial to his

that purpose, each member

considered prejudicial to his independence or any direct or

shall make a written

independence or any direct or indirect interest which might be

declaration of commitments

indirect interest which might be considered prejudicial to his

and a written declaration of

considered prejudicial to his independence. Those

interests indicating either the

independence. Those declarations shall be made

absence of any interest which

declarations shall be made public annually.

may be considered prejudicial to his independence or any

public annually. direct or indirect interest which might be considered prejudicial to his

independence. Those declarations shall be made public annually.

ANNEX TREE.2.B EN

• 210. 

  Article 20 Functions of the Administrative Board

• 211. 

  1. The Administrative Board shall:

  (a) after having consulted the Board of 1. The Administrative Board Regulators and obtained its favourable opinion in shall:

  accordance with Article 23(5)(b), appoint the

  Director in accordance with Article 24(2) and (a) after having consulted the where relevant extend his term of office or remove Board of Regulators and

  him from office; obtained its favourable opinion in accordance with Article

  23(5)(b), appoint the Director in accordance with Article 24(2) and where relevant extend his term of office or remove him from office;

• 212. 

  (b) formally appoint the members of the Board

  of Regulators in accordance with Article 22(1); (b) formally appoint the members of the Board of

  Regulators in accordance with Article 22(1);

• 213. 

  (c) formally appoint the members of the Board

  of Appeal in accordance with Article 26(2); (c) formally appoint the members of the Board of

  Appeal in accordance with Article 26(2);

• 214. 

  (d) ensure that the Agency carries out its

  mission and performs the tasks assigned to it in (d) ensure that the Agency

  accordance with this Regulation; carries out its mission and performs the tasks assigned to it

  in accordance with this Regulation;

• 215. 

  (e) adopt, each year the draft programming AM 61 (e) adopt, each year by 31 Provisionally agreed: document referred to in Article 21 before its (e) adopt, each year by January the draft programming (e) adopt the

  submission to the Commission for its opinion, and 31January the draft document referred to in Article programming document in shall, following the opinion of the Commission and programming document referred 21 and submit it to the accordance with Article

ANNEX TREE.2.B EN

after having received approval by the Board of to in Article 21 and submit it to Commission, the European 21(1) by a two thirds Regulators in accordance with Article 23(5)(c), the Commission, the European Parliament and the Council. It majority of its members adopt the programming document of the Agency by Parliament and the Council. It shall, [] following the opinion and, if applicable, amend it a two thirds majority its members and shall shall, following the opinion of of the Commission and in in accordance with Article transmit it to the European Parliament, the Council the Commission, and in relation to the multiannual 21(3). and the Commission. The programming document relation to the multiannual programming after consulting shall be adopted without prejudice to the annual programming after presenting the European Parliament, and budgetary procedure and shall be made public; it to the European Parliament after having received approval and after having received by the Board of Regulators in approval by the Board of accordance with Article Regulators in accordance with 23(5)(c), adopt the Article 23(5)(c), adopt the programming document of the programming document of the Agency by a two thirds majority Agency by a two thirds majority its members and shall transmit it of its members and shall to the European Parliament, the transmit it to the European Council and the Commission by Parliament, the Council and the 31 October. The programming Commission by 31 October. document [] shall be made The programming document public; shall be adopted without prejudice to the annual budgetary procedure and shall be made public.

ANNEX TREE.2.B EN

• 216. 

  (f) adopt by a two thirds majority, the annual

  budget of the Agency and exercise its other (f) adopt by a two thirds

  budgetary functions in accordance with Articles 31 majority, the annual budget of

  to 35; the Agency and exercise its other budgetary functions in

  accordance with Articles 31 to 35;

• 217. 

  (g) decide, after having obtained the agreement (g) decide, after having of the Commission, whether to accept any legacies, obtained the agreement of the donations or grants from other Union sources or Commission, whether to accept any voluntary contribution from the Member States any legacies, donations or grants or from the regulatory authorities. The opinion of from other Union sources or any the Administrative Board delivered pursuant to voluntary contribution from the Article 35(5) shall address the sources of funding Member States or from the set out in this paragraph; regulatory authorities. The opinion of the Administrative Board delivered pursuant to Article 35(5) shall address the sources of funding set out in this paragraph;

• 218. 

  (h) in consultation with the Board of Regulators, (h) in consultation with the exercise disciplinary authority over the Director. In Board of Regulators, exercise addition, in accordance with paragraph 2, it shall disciplinary authority over the exercise, with respect to the staff of the Agency, Director. In addition, in

  the powers conferred by the Staff Regulations on accordance with paragraph 2, it the Appointing Authority and by the Conditions of shall exercise, with respect to Employment of Other Servants on the Authority the staff of the Agency, the Empowered to conclude a Contract of powers conferred by the Staff Employment; Regulations on the Appointing Authority and by the Conditions of Employment of Other Servants on the Authority Empowered to conclude a Contract of Employment;

ANNEX TREE.2.B EN

• 219. 

  (i) draw up the Agency’s implementing rules

  for giving effect to the Staff Regulations and the (i) draw up the Agency’s

  Conditions of Employment of Other Servants in implementing rules for giving

  accordance with Article 110 of the Staff effect to the Staff Regulations

  Regulations pursuant to Article 39(2); and the Conditions of Employment of Other Servants

  in accordance with Article 110 of the Staff Regulations pursuant to Article 39(2);

• 220. 

  (j) adopt practical measures regarding the right

  of access to the documents of the Agency, in (j) adopt practical measures

  accordance with Article 41; regarding the right of access to the documents of the Agency, in

  accordance with Article 41;

• 221. 

  (k) adopt and publish the annual report on the (k) adopt and publish the activities of the Agency, on the basis of the draft annual report on the activities of annual report referred to in Article 25(h), and shall the Agency, on the basis of the transmit that report to the European Parliament, the draft annual report referred to in Council, the Commission, and the Court of Article 25(h), and shall transmit Auditors by 1 July of each year. The annual report that report to the European on the activities of the Agency shall contain an Parliament, the Council, the independent section, approved by the Board of Commission , and the Court of Regulators, concerning the regulatory activities of Auditors by 1 July of each year. the Agency during that year; The annual report on the

  activities of the Agency shall contain an independent section, approved by the Board of Regulators, concerning the regulatory activities of the Agency during that year;

ANNEX TREE.2.B EN

• 222. 

  (l) adopt and publish its own rules of procedure; (l) adopt and publish its

  own rules of procedure;

• 223. 

  (m) adopt the financial rules applicable to the

  Agency in accordance with Article 36; (m) adopt the financial rules applicable to the Agency in

  accordance with Article 36;

• 224. 

  (n) adopt an anti-fraud strategy, proportionate to

  the risk of fraud, taking into account the costs and (n) adopt an anti-fraud

  benefits of the measures to be implemented; strategy, proportionate to the risk of fraud, taking into

  account the costs and benefits of the measures to be implemented;

• 225. 

  (o) adopt rules for the prevention and (o) adopt rules for the

  management of conflicts of interest in respect of its prevention and management of members as well as members of the Board of conflicts of interest in respect of Appeal; its members as well as members of the Board of Appeal;

• 226. 

  (p) adopt and regularly update the (p) adopt and regularly

  communication and dissemination plans referred to update the communication and in Article 41; dissemination plans referred to in Article 41;

• 227. 

  (q) appoint an Accounting Officer, subject to (q) appoint an Accounting

  the Staff Regulations and the Conditions of Officer, subject to the Staff Employment of other servants, who shall be totally Regulations and the Conditions independent in the performance of his duties; of Employment of other servants, who shall be totally independent in the performance of his duties;

ANNEX TREE.2.B EN

• 228. 

  (r) ensure appropriate follow-up to findings (r) ensure appropriate followand

  recommendations stemming from the internal or up to findings and external audit reports and evaluations, as well as from recommendations stemming from investigations of the European Anti-Fraud Office the internal or external audit ("OLAF"); reports and evaluations, as well as from investigations of the European Anti-Fraud Office ("OLAF");

• 229. 

  (s) authorise the conclusion of working (s) authorise the conclusion of

  arrangements in accordance with Article 43. working arrangements in accordance with Article 43;

• 230. 

  (t) after having considered Provisionally agreed: the Director’s opinion in (t) on the basis of a accordance with Article 25(b) proposal from the Director and after having consulted the in accordance with Article Board of Regulators and 25(b) and after having obtained its favourable opinion consulted the Board of in accordance with Article Regulators and obtained its 23(5)(da), adopt and publish favourable opinion in adequate and proportionate accordance with Article rules of procedure for all 23(5)(da), adopt and publish Agency tasks under Chapter I the rules of procedure which are not covered by the pursuant to Article 15 (5). rules of procedure under

  Article 20(1)(l), Article 23(2), Article 26(3) or Article 30(3). The rules of procedure shall notably ensure a transparent and reasonable decisionmaking process guaranteeing fundamental procedural rights based on the rule of law, in particular the right to be heard, the right to access file and the duty to give reasons.

ANNEX TREE.2.B EN

• 231. 

  2. The Administrative Board shall adopt, in AM 62 2. The Administrative Board Provisionally agreed: accordance with Article 110 of the Staff 2. The Administrative Board shall adopt, in accordance with 2. The Administrative Regulations, a decision based on Article 2(1) of the shall adopt, in accordance with Article 110 of the Staff Board shall adopt, in Staff Regulations and on Article 6 of the Article 110 of the Staff Regulations, a decision based on accordance with Article 110 Conditions of Employment of Other Servants, Regulations, a decision based on Article 2(1) of the Staff of the Staff Regulations, a delegating relevant appointing authority powers to Article 2(1) of the Staff Regulations and on Article 6 of decision based on Article 2(1) the Director and defining the conditions under Regulations and on Article 6 of the Conditions of Employment of the Staff Regulations and which that delegation of powers can be suspended. the Conditions of Employment of Other Servants, delegating on Article 6 of the Conditions The Director shall be authorised to sub-delegate of Other Servants, delegating relevant appointing authority of Employment of Other

  those powers. relevant appointing authority Servants, delegating relevant powers to the Director. The powers to the Director and appointing authority powers

  Director shall be authorised to defining the conditions under to the Director and defining

  sub-delegate those powers. which that delegation of powers can be suspended. The Director the conditions under which

  shall be authorised to subthat delegation of powers can

  delegate those powers. be suspended. The Director shall be authorised to subdelegate

  those powers.

• 232. 

  3. Where exceptional circumstances so require, AM 63 Provisionally agreed in TM: the Administrative Board may by way of a decision deleted

  • 3. 

    Where exceptional

  circumstances so require, the 3. Where exceptional

  temporarily suspend the delegation of the Administrative Board may by circumstances so require, the

  appointing authority powers to the Director and way of a decision temporarily Administrative Board may by

  those sub-delegated by the latter and in favour of suspend the delegation of the way of a decision temporarily

  itself or delegate them to one of its members or to a appointing authority powers to suspend the delegation of the

  staff member other than the Director. the Director and those subappointing authority powers

  delegated by the latter and in to the Director and those subfavour

  of itself or delegate them delegated by the latter and in

  to one of its members or to a favour of itself or delegate

  staff member other than the them to one of its members or

Director. to a staff member other than the Director. The exceptional

circumstances shall be strictly limited to administrative, budgetary or managerial matters and without prejudice to the Director’s full independence concerning her or his tasks pursuant to Article 25 (c).

ANNEX TREE.2.B EN

• 233. 

  Article 21

  Annual and multi-annual programming

• 234. 

  1. Each year, the Administrative Board shall AM 64 1. Each year, the Provisionally agreed: adopt a programming document containing multi Each year, the Administrative Administrative Board shall 1. Each year, the Director annual and annual programming, based on a draft Board shall adopt a draft adopt a draft programming shall prepare a draft put forward by the Director, taking into account the programming document document containing multiprogramming document, opinion of the Commission and in relation to containing annual and multiannual and annual programming containing annual and multiannual programming after consulting the annual programming in ("single programming multiannual programming, European Parliament. It shall forward it to the accordance with Article 32 of document") in line with and submit it to the European Parliament, the Council and the Commission Delegation Article 32 of Commission Administrative Board and

  Commission no later than 31 January each year. Regulation (EU) No 1271/2013 i, Delegated Regulation (EU) No to the Board of Regulators. based on a draft put forward by 1271/2013, based on a draft put

  the Director. The forward by the Director. The The Administrative Board Administrative Board shall Administrative Board shall shall adopt the draft adopt the programming adopt the programming programming document document taking into account document, taking into account after having received the the opinion of the Commission, the opinion of the Commission, favourable opinion of the after approval of the Board of after having received the Board of Regulators and Regulators for the annual work approval of the Board of forward it to the programme of the Agency and Regulators for the annual Commission, the European in relation to multiannual work programme, and in Parliament and the Council programming after presenting it relation to multiannual no later than 31 January. to the European Parliament. It programming after consulting shall forward it to the European the European Parliament. It The draft programming Parliament, the Council and the shall forward it to the European document shall be in line Commission no later than 31 Parliament, the Council and the with the provisional draft October each year. Commission no later than 31 [] estimate established in October each year. accordance with Article 33(1) to 33(3).

  Taking into account the opinion of the Commission and after having received

ANNEX TREE.2.B EN

the favourable opinion of the Board of Regulators and after the Director presented it to the European Parliament, the Administrative Board shall adopt the programming document and forward it to the Commission, the European Parliament and the Council no later than 31 December.

The programming document shall be adopted without prejudice to the annual budgetary procedure and shall be made public.

• 235. 

  The programming document shall become The programming document

  definitive after final adoption of the general budget shall become definitive after and if necessary shall be adjusted accordingly. final adoption of the general budget and if necessary shall be adjusted accordingly.

ANNEX TREE.2.B EN

• 236. 

  2. The annual work programme shall comprise

detailed objectives and expected results including 2. The annual work Provisionally agreed:

performance indicators. It shall also contain a programme shall comprise description of the actions to be financed and an detailed objectives and expected 2. The annual programming indication of the financial and human resources results including performance in the programming allocated to each action, in accordance with the indicators. It shall also contain a document shall comprise principles of activity-based budgeting and description of the actions to be detailed objectives and management. The annual work programme shall be financed and an indication of expected results including coherent with the multi-annual work programme the financial and human performance indicators. It referred to in paragraph 4. It shall clearly indicate resources allocated to each shall also contain a tasks that have been added, changed or deleted in action, including reference to description of the actions to comparison with the previous financial year. the Agency working groups be financed and an indication Annual and multi- annual programming shall tasked with contributing to of the financial and human include the strategy for relations with third the drafting the respective resources allocated to each countries or international organisations referred to documents, in accordance with action, including reference to

in Article 43 and the actions linked to that strategy. the principles of activity-based the Agency working groups budgeting and management. tasked with contributing to

The annual work programme the drafting the respective shall be coherent with the multidocuments, in accordance annual work programme with the principles of activityreferred to in paragraph 4. It based budgeting and shall clearly indicate tasks that management. The annual have been added, changed or programming shall be deleted in comparison with the coherent with the multiprevious financial year. [] annual programming referred to in paragraph 4. It shall clearly indicate tasks that have been added, changed or deleted in comparison with the previous financial year. []

ANNEX TREE.2.B EN

• 237. 

  3. The Administrative Board shall amend the 3. The Administrative Board Provisionally agreed: adopted annual work programme when a new task shall amend the adopted annual 3. The Administrative

  is given to the Agency. work programme when a new Board shall amend the task is given to the Agency. adopted programming

  document when a new task is given to the Agency.

• 238. 

  Any substantial amendment to the annual work

  programme shall be adopted by the same procedure Any substantial amendment to

  Provisionally agreed: Any substantial amendment to

  set out for the initial annual work programme. The the annual work programme the programming document Administrative Board may delegate the power to shall be adopted by the same shall be adopted by the same make non-substantial amendments to the annual procedure set out for the initial procedure set out for the

work programme to the Director. annual work programme. The Administrative Board may initial programming

delegate the power to make nondocument. The substantial amendments to the Administrative Board may annual work programme to the delegate the power to make

Director. non-substantial amendments to the programming

document to the Director. 239. 4. The multi-annual work programme shall set

out overall strategic programming including 4. The multi-annual work

Provisionally agreed: The multi-annual

objectives, expected results and performance programme shall set out overall

• 4. 

  programming in the

indicators. It shall also set out resource strategic programming programming document programming including multi-annual budget and including objectives, expected shall set out overall strategic

staff. results and performance indicators. It shall also set out programming including

resource programming objectives, expected results including multi-annual budget and performance indicators. It

and staff. shall also set out resource programming including multiannual

budget and staff.

• 240. 

  The resource programming shall be updated The resource programming shall annually. The strategic programming shall be be updated annually. The updated where appropriate, and in particular to strategic programming shall be address the outcome of the evaluation referred to in updated where appropriate, and

  Article 45. in particular to address the outcome of the evaluation

  referred to in Article 45.

ANNEX TREE.2.B EN

• 241. 

  Article 22 Composition of the Board of Regulators

• 242. 

  1. The Board of Regulators shall be composed

  of : 1. The Board of Regulators shall be composed of :

• 243. 

  (a) senior representatives of the regulatory

  authorities, in accordance with Article 57(1) of (a) senior representatives of [Recast Electricity Directive] and Article 39(1) of the regulatory authorities, in Directive 2009/73/EC i, and one alternate per accordance with Article 57(1) of Member State from the current senior staff of those [Recast Electricity Directive] authorities, both nominated by the national and Article 39(1) of Directive

  regulatory authority; 2009/73/EC, and one alternate per Member State from the

  current senior staff of those authorities , both nominated by the national regulatory authority ;

• 244. 

  (b) one non-voting representative of the (b) one non-voting

  Commission. representative of the Commission.

• 245. 

  AM 65 Maintain Council GA

  (b a) (new) one non-voting representative of the European Parliament;

ANNEX TREE.2.B EN

• 246. 

  Only one representative per Member State from the Only one representative per national regulatory authority may be admitted to Member State from the national

  the Board of Regulators. regulatory authority may be admitted to the Board of

  Regulators.

• 247. 

  Each national regulatory authority shall be Each national regulatory

  responsible for nominating the alternate member authority shall be responsible from current staff of the national regulatory for nominating the alternate authority. member from current staff of the national regulatory authority.

• 248. 

  2. The Board of Regulators shall elect a

  Chairman and a Vice-Chairman from among its 2. The Board of Regulators members. The Vice-Chairman shall replace the shall elect a Chairman and a Chairman if the latter is not in a position to perform Vice-Chairman from among its his duties. The term of office of the Chairman and members. The Vice-Chairman of the Vice-Chairman shall be two-and-a-half years shall replace the Chairman if the and shall be renewable. In any event, however, the latter is not in a position to term of office of the Chairman and that of the Viceperform his duties. The term of Chairman shall expire when they cease to be office of the Chairman and of

  members of the Board of Regulators. the Vice-Chairman shall be twoand-a-half years and shall be

  renewable. In any event, however, the term of office of the Chairman and that of the Vice-Chairman shall expire when they cease to be members of the Board of Regulators.

ANNEX TREE.2.B EN

• 249. 

  Article 23 Functions of the Board of Regulators

• 250. 

  1. The Board of Regulators and its sub AM 66

  committees pursuant to Article 7 shall act by a 1. The Board of Regulators 1. The Board of Regulators

  Provisionally agreed

  simple majority of the members present, with one shall act by a two-thirds [] shall act by a [] two thirds 1. The Board of Regulators vote for each member, except for the opinion majority of the members majority of the members shall act by a two-thirds pursuant to paragraph 5(b) which shall be delivered present, with one vote for each present, with one vote for each majority of the members on the basis of a two-thirds majority of members member. member including in all cases present, with one vote for present. referred to in paragraph 5 [] . each member.

• 251. 

  2. The Board of Regulators shall adopt and

  publish its rules of procedure, which shall set out in 2. The Board of Regulators greater detail the arrangements governing voting, in shall adopt and publish its rules particular the conditions on the basis of which one of procedure, which shall set out member may act on behalf of another and also, in greater detail the where appropriate, the rules governing quorums. arrangements governing voting, The rules of procedure may provide for specific in particular the conditions on working methods for the consideration of issues the basis of which one member arising in the context of regional cooperation may act on behalf of another

  initiatives. and also, where appropriate, the rules governing quorums. The

  rules of procedure may provide for specific working methods for the consideration of issues arising in the context of regional cooperation initiatives.

• 252. 

  3. When carrying out the tasks conferred upon 3. When carrying out the it by this Regulation and without prejudice to its tasks conferred upon it by this members acting on behalf of their respective Regulation and without

  regulatory authority, the Board of Regulators shall prejudice to its members acting act independently and shall not seek or follow on behalf of their respective instructions from any government of a Member regulatory authority, the Board State, from the Commission, or from another public of Regulators shall act or private entity. independently and shall not seek or follow instructions from any government of a Member State, from the Commission, or from another public or private entity.

ANNEX TREE.2.B EN

• 253. 

  4. The secretarial services of the Board of

  Regulators shall be provided by the Agency 4. The secretarial services of the Board of Regulators shall

  be provided by the Agency

• 254. 

  5. The Board of Regulators shall: 5. The Board of Regulators

  shall:

• 255. 

  AM 67 (the first part of AM 67 is

  (-a) (new) where it considers it included in para.5(a), line to be appropriate, provide 255) comments, including proposals (the second part of AM 67 is for amendments to the Director covered in Council text under on draft opinions, Article 25(c), line 277) recommendations and decisions referred to in Articles 3 to 11 and Article 14. The Director shall consider those comments before submitting the opinions, recommendations and decisions to the Board of Regulators for opinion and shall issue a written justification if he or she does not follow the position issued by the Board of Regulators.

ANNEX TREE.2.B EN

• 256. 

  (a) provide opinions to the Director on the AM 68 (a) 1 provide opinions and Council compromise text: opinions, recommendations and decisions referred 1. (a) provide opinions to amendments to text proposals (a) provide opinions and, to in Articles 3 to 11 and 14, which are considered the Director on opinions, to the Director on all where appropriate, comments for adoption. In addition, the Board of Regulators, recommendations and decisions documents containing [] and amendments to text within its field of competence, shall provide referred to in Articles 3 to 11 opinions, recommendations and proposals to the Director on guidance to the Director in the execution of his and Article 14, which are decisions referred to in Articles draft opinions, tasks, with the exception of tasks pursuant to considered for adoption. In 3 to 11, 12(c), 13(a)-(c), [] 14, recommendations and

  Regulation 1227/2011 i 2 . addition, the Board of decisions referred to in Regulators, within its field of 16(3a), 30 and 43 which are Articles 3(1), 4 to 11, 12(c),

  competence, shall provide considered for adoption. In 14, 16(3a), 30 and 43 which guidance to the Director in the addition, the Board of are considered for adoption. execution of his or her tasks, Regulators, within its field of In addition, the Board of with the exception of the competence, shall provide [] Agency’s activities under opinions and guidance to the

  Regulators, within its field of

  Regulation 1227/2011 i 2 and Director and the Agency's

  competence, shall provide

  provide guidance to the working groups in the

guidance to the Director in the

Agency’s working groups execution of [] tasks, with the

execution of his or her tasks,

established pursuant to Article exception of tasks pursuant to

with the exception of the

• 30. 

  Regulation 1227/2011 i

  2 . Agency’s activities under

  Regulation 1227/2011 i 2 , and provide guidance to the Agency’s working groups established pursuant to Article 30.

• 257. 

  (b) deliver an opinion to the Administrative (b) deliver an opinion to the

  Board on the candidate to be appointed as Director Administrative Board on the in accordance with Article 20(1)(a) and Article candidate to be appointed as

  24(2). Director in accordance with Article 20(1)(a) and Article

  24(2).

1 In order to reassure the national regulatory authorities and provide sufficient time for preparing their opinions, it is proposed that the revised

Article 25 includes a task of the Director to consult the BoR on his drafts several weeks in advance. 2 Regulation (EU) 1227/2011 i of the European Parliament and of the Council of 25 October on wholesale energy market integrity and transparency, OJ L 326,

8.12.2011, p. 1.

ANNEX TREE.2.B EN

• 258. 

  (c) in accordance with Article 20(1)(e) and AM 69 Provisionally agreed in TM Article 25(f) and in line with the provisional draft (c) in accordance with (c) in accordance with c) approve the

  estimate established in accordance with Article Article 20(1)(e) and Article Article 20(1)(e) and Article programming document in 33(1) to 33(3)(1), approve the work programme of 25(f) and in line with the 25(f) and in line with the accordance with Article the Agency for the coming year and present it by 1 provisional draft estimate provisional draft estimate 21(1). September of each year for adoption by the established in accordance with established in accordance with Administrative Board. Article 33 (1) to (3), approve the Article 33(1) to 33(3)(1), draft programming document approve the draft of multiincluding the annual work annual and annual programme of the Agency and programming of the Agency present it by 30 September of proposed by the Director and each year for adoption by the the work programme of the Administrative Board. Agency for the coming year and present it by [] 30 September of each year for adoption by the Administrative Board.

• 259. 

  (d) approve the independent section on

  regulatory activities of the annual report, in (d) approve the independent

  accordance with Article 20(1)(k) and Article 25(h). section on regulatory activities of the annual report, in

  accordance with Article 20(1)(k) and Article 25(h).

• 260. 

  (da) provide an opinion to Provisionally agreed the Administrative Board on (da) provide an opinion to the rules of procedure under the Administrative Board on Article 20(1)(t). the rules of procedure under Article 15(5) and Article 30(3).

• 261. 

  (db) provide an opinion to the Administrative Board on the communication and

  dissemination plans referred to in Article 41 and on the rules of procedure for relations with third countries or international organisations referred to in Article 43.

ANNEX TREE.2.B EN

• 262. 

  6. The European Parliament may invite, while 6. The European Parliament Council compromise text: fully respecting his independence, the chairman of may invite, while fully 6. The European Parliament the Board of Regulators or his deputy to make a respecting his independence, the shall be informed about the statement before its competent committee and chairman of the Board of draft agenda of upcoming answer questions put by the members of that Regulators or his deputy to meetings of the Board of committee. make a statement before its Regulators at least two

  competent committee and weeks in advance of a answer questions put by the meeting. The European

  members of that committee. Parliament may invite, while fully respecting his

independence, the chairman of the Board of Regulators or his

deputy to make a statement before its competent committee and answer questions put by the members of that committee.

• 263. 

  Article 24 Director

• 264. 

  1. The Agency shall be managed by its AM 70 Provisionally agreed:

  Director, who shall act in accordance with the 1. The Agency shall be 1. The Agency shall be guidance referred to in Article 23(5)(a) and, where managed by its Director, who managed by its Director, who 1. The Agency shall be provided for in this Regulation, the opinions of the shall act in accordance with the shall act in accordance with the managed by its Director, who

  Board of Regulators. Without prejudice to the guidance referred to in the guidance referred to in Article shall act in accordance with

  respective roles of the Administrative Board and second sentence of Article 23(5)(a) and, where provided the guidance referred to in the the Board of Regulators in relation to the tasks of 23(5)(a) and, where provided for in this Regulation, the second sentence of Article the Director, the Director shall neither seek nor for in this Regulation, the opinions of the Board of 23(5)(a) and, where provided follow any instruction from any government, from opinions of the Board of Regulators. Without prejudice for in this Regulation, the the Union institutions, or from any other public or Regulators. Without prejudice to to the respective roles of the opinions of the Board of private entity or person. The Director shall be the respective roles of the Administrative Board and the Regulators. Without prejudice accountable to the Administrative Board. The Administrative Board and the Board of Regulators in relation to the respective roles of the Director may attend the meetings of the Board of Board of Regulators in relation to the tasks of the Director, the Administrative Board and the Regulators as an observer. to the tasks of the Director, the Director shall neither seek nor Board of Regulators in Director shall neither seek nor follow any instruction from any relation to the tasks of the

  follow any instruction from any government, from the Union Director, the Director shall institutions , or from any other neither seek nor follow any

ANNEX TREE.2.B EN

government, from the Union public or private entity or instruction from any institutions, or from any other person. The Director shall be government, from the Union public or private entity or accountable to the institutions , or from any other person. The Director shall Administrative Board. The public or private entity or report to the Administrative Director may attend the person. The Director shall be Board. The Director may attend meetings of the Board of accountable to the the meetings of the Board of Regulators as an observer. Administrative Board on Regulators as an observer. administrative, budgetary and managerial matters, but remain fully independent concerning her or his tasks pursuant to Article 25 (c). The Director may attend the meetings of the Board of Regulators as an observer.

• 265. 

  2. The Director shall be appointed by the AM 71

  Administrative Board following a favourable 2. The Director shall be 2. The Director shall be

  Council compromise text:

  opinion of the Board of Regulators, on the basis of appointed by the Administrative appointed by the Administrative 2. The Director shall be merit as well as skills and experience relevant to Board following a favourable Board following a favourable appointed by the the energy sector, from a list of at least three opinion of the Board of opinion of the Board of Administrative Board candidates proposed by the Commission, following Regulators and after approval Regulators, on the basis of merit following a favourable an open and transparent selection procedure. of the European Parliament, on as well as skills and experience opinion of the Board of Before appointment, the candidate selected by the the basis of merit as well as relevant to the energy sector, Regulators, on the basis of Administrative Board may be invited to make a skills and experience relevant to from a list of at least three merit as well as skills and statement before the competent committee of the the energy sector, from a list of candidates proposed by the experience relevant to the European Parliament and to answer questions put at least three candidates Commission, following an open energy sector, from a list of at by its members. For the purpose of concluding the proposed by the Commission, and transparent selection least three candidates contract with the Director, the Agency shall be following an open and procedure . Before appointment, proposed by the Commission, represented by the Chairman of the Administrative transparent selection procedure. the candidate selected by the following an open and Board. Before appointment, the Administrative Board may be transparent selection candidate selected by the invited to make a statement procedure . Before Administrative Board shall be before the competent committee appointment, the candidate invited to make a statement of the European Parliament and selected by the Administrative before the competent committee to answer questions put by its Board shall make a statement of the European Parliament and members. For the purpose of before the competent

ANNEX TREE.2.B EN

to answer questions put by its concluding the contract with the committee of the European members. For the purpose of Director, the Agency shall be Parliament and answer concluding the contract with the represented by the Chairman of questions put by its members. Director, the Agency shall be the Administrative Board. For the purpose of concluding represented by the Chairman of the contract with the Director, the Administrative Board. the Agency shall be represented by the Chairman of the Administrative Board.

• 266. 

  3. The Director’s term of office shall be five

  years. In the course of the nine months preceding 3. The Director’s term of the end of that period, the Commission shall office shall be five years. In the undertake an assessment. In the assessment, the course of the nine months

  Commission shall examine in particular: preceding the end of that period, the Commission shall undertake

  an assessment. In the assessment, the Commission shall examine in particular:

• 267. 

  (a) the performance of the Director; (a) the performance of the

  Director;

• 268. 

  (b) the Agency’s duties and requirements in the

  following years. (b) the Agency’s duties and requirements in the following

  years.

• 269. 

  4. The Administrative Board, acting on a

  proposal from the Commission, after having 4. The Administrative consulted and given the utmost consideration to the Board, acting on a proposal assessment and the opinion of the Board of from the Commission, after Regulators on that assessment and only in those having consulted and given the cases where it can be justified by the duties and utmost consideration to the requirements of the Agency, may extend once the assessment and the opinion of term of office of the Director by no more than five the Board of Regulators on that years. A Director whose term of office has been assessment and only in those extended may not participate in another selection cases where it can be justified

ANNEX TREE.2.B EN

procedure for the same post at the end of the by the duties and requirements extended period. of the Agency, may extend once the term of office of the Director by no more than five years. A Director whose term of office has been extended may not participate in another selection procedure for the same post at the end of the extended period.

• 270. 

  5. The Administrative Board shall inform the

  European Parliament of its intention to extend the 5. The Administrative Board Director’s term of office. Within one month before shall inform the European the extension of his term of office, the Director Parliament of its intention to may be invited to make a statement before the extend the Director’s term of competent committee of the Parliament and to office. Within one month before answer questions put by the members of that the extension of his term of

  committee. office, the Director may be invited to make a statement

  before the competent committee of the Parliament and to answer questions put by the members of that committee.

• 271. 

  6. If his term of office is not extended, the 6. If his term of office is not

  Director shall remain in office until the extended, the Director shall appointment of his successor. remain in office until the appointment of his successor.

ANNEX TREE.2.B EN

• 272. 

  7. The Director may be removed from office 7. The Director may be

  only upon a decision of the Administrative Board, removed from office only upon after having obtained a favourable opinion of the a decision of the Administrative Board of Regulators. The Administrative Board Board, after having obtained a shall reach that decision on the basis of a two-thirds favourable opinion of the Board majority of its members. of Regulators. The Administrative Board shall reach that decision on the basis of a two-thirds majority of its members.

• 273. 

  8. The European Parliament and the Council 8. The European Parliament

  may call upon the Director to submit a report on and the Council may call upon the performance of his duties. The European the Director to submit a report Parliament may also invite the Director to make a on the performance of his statement before its competent committee and duties. The European answer questions put by the members of that Parliament may also invite the committee. Director to make a statement before its competent committee and answer questions put by the members of that committee.

ANNEX TREE.2.B EN

• 274. 

  Article 25 Tasks of the Director

• 275. 

  The Director shall: The Director shall:

• 276. 

  (a) be the legal representative of the Agency and

  shall be in charge of its day-to-day management; (a) be the legal representative of the Agency

  and shall be in charge of its dayto-day management;

• 277. 

  (b) prepare the work of the Administrative

  Board. He shall participate, without having the (b) prepare the work of the right to vote, in the work of the Administrative Administrative Board. He shall Board. The Director shall be responsible for participate, without having the implementing the decisions adopted by the right to vote, in the work of the

  Administrative Board; Administrative Board. The Director shall be responsible for

  implementing the decisions adopted by the Administrative Board;

• 278. 

  (c) draft, adopt and publish opinions, AM 72 Council compromise text:

  recommendations and decisions. Opinions, (c) draft, adopt and publish (c) draft, consult upon , (c) draft, consult upon, recommendations and decisions referred to in opinions, recommendations and adopt and publish opinions, adopt and publish opinions, Articles 3 to 11 and 14 , shall only be adopted if decisions. Opinions, recommendations and decisions. recommendations and they, have received a favourable opinion of the recommendations and decisions Opinions, recommendations and decisions. Opinions, Board of Regulators; referred to in Articles 3 to 11 decisions referred to in Articles recommendations and and Article 14 shall only be 3 to 11, 12(c), 13(a)-(c), [] 14, decisions referred to in adopted if they have received a 16(3a), 30 and 43 shall only be Articles 3(1), 4 to 11, 12(c), favourable opinion of the Board adopted [] with a favourable 14, 16(3a), 30 and 43 shall

  of Regulators; opinion of the Board of Regulators. Before submitting only be adopted with a

  draft recommendations, favourable opinion of the opinions or decisions to a vote Board of Regulators. Before by the Board of Regulators, submitting draft the Director shall send the recommendations, opinions draft recommendations, or decisions to a vote by the

opinions or decisions to the Board of Regulators, the Director shall send the draft

ANNEX TREE.2.B EN

relevant working group. The recommendations, opinions Director: or decisions to the relevant working group for consultation in due time. The Director:

• 279. 

  i. shall take the comments and i. shall take the comments amendments of the Board of and amendments of the

  Regulators into account; Board of Regulators into account and resubmit the revised draft opinion,

  recommendation or decision to the Board of Regulators for a favourable opinion. In case the Director deviates from or rejects the comments and amendments submitted by the Board of Regulators, the Director shall also provide a duly justified written reasoning. If the Board of Regulators does not give a favourable opinion on the resubmitted text because their comments and amendments have not been adequately reflected, the Director may revise the text further in line with the amendments and comments proposed by the Board of Regulators in order to obtain their favourable opinion without having to consult the relevant working group again or having to provide additional written reasoning.

ANNEX TREE.2.B EN

• 280. 

  ii. may withdraw the ii. may withdraw the submitted draft opinions, submitted draft opinions, recommendations and recommendations and decisions subject to a duly decisions subject to a duly justified written reasoning in justified written reasoning case of disagreement with the in case of disagreement with amendments submitted by the the amendments submitted Board of Regulators; by the Board of Regulators;

• 281. 

  iii. in case of a withdrawal of a draft opinion,

  recommendation or decision, may issue a new draft opinion, recommendation or decision following the procedure set out in Article 23(5)(a) and Article 25(c).

• 282. 

  (d) be responsible for implementing the annual (d) be responsible for work programme of the Agency under the guidance implementing the annual work of the Board of Regulators and under the programme of the Agency under administrative control of the Administrative Board the guidance of the Board of ; Regulators and under the administrative control of the Administrative Board;

• 283. 

  (e) take the necessary measures, in particular as (e) take the necessary regards adopting internal administrative measures, in particular as instructions and publishing notices, to ensure the regards adopting internal functioning of the Agency in accordance with this administrative instructions and Regulation; publishing notices, to ensure the functioning of the Agency in accordance with this

  Regulation;

ANNEX TREE.2.B EN

• 284. 

  (f) each year prepare a draft work programme of AM 73 (f) each year prepare a draft Provisionally agreed the Agency for the following year, and shall, after (f) each year prepare a draft work programme document of (f) prepare and publish the adoption of the draft by the Administrative programming document of the the Agency containing multithe programming document Board submit it to the Board of Regulators, to the Agency, containing multiannual programming and the in accordance with Article European Parliament and to the Commission by 31 annual programming and the annual work programme for 21(1).

  January every year. The Director shall be annual work programme for the following year in responsible for implementing the programming the following year in accordance with Article 21. The Director shall be document and reporting to the Administrative accordance with Article 21. The The Director [] shall , after the responsible for Board of its implementation; Director shall be responsible for adoption of the draft by the implementing the implementing the programming Administrative Board submit it programming document and document and reporting to the to the Board of Regulators, to report to the Administrative Administrative Board of its the Council, to the European Board on its implementation; Parliament and to the implementation. Commission by 31 [] October every year. The Director shall be responsible for implementing the programming document and reporting to the Administrative Board of its implementation;

• 285. 

  (g) draw up a provisional draft estimate of the (g) draw up a provisional

  Agency pursuant to Article 33(1) and shall draft estimate of the Agency implement the budget of the Agency in accordance pursuant to Article 33(1) and with Article 34 and 35.; shall implement the budget of the Agency in accordance with Article 34 and 35.;

ANNEX TREE.2.B EN

• 286. 

  (h) prepare each year and submit to the (h) prepare each year and

  Administrative Board a draft annual report submit to the Administrative including an independent section on the regulatory Board a draft annual report activities of the Agency and a section on financial including an independent and administrative matters; section on the regulatory activities of the Agency and a section on financial and administrative matters;

• 287. 

  (i) prepare an action plan following-up

  conclusions of internal or external audit reports and (i) prepare an action plan evaluations, as well as investigations by the following-up conclusions of European Anti-fraud Office (OLAF) and report on internal or external audit reports progress twice a year to the Commission and and evaluations, as well as

  regularly to the Administrative Board; investigations by the European Anti-fraud Office (OLAF) and

  report on progress twice a year to the Commission and regularly to the Administrative Board;

ANNEX TREE.2.B EN

• 288. 

  (j) be responsible for deciding whether it is AM 74 Provisionally agreed:

necessary for the purpose of carrying out the (k) be responsible for (j) be responsible for (j) be responsible for deciding

Agency's tasks in an efficient and effective manner deciding whether it is necessary deciding whether it is necessary whether it is necessary for the

to locate one or more staff in one or more Member for the purpose of carrying out for the purpose of carrying out purpose of carrying out the

States. The decision to establish a local office the Agency's tasks in an the Agency's tasks in an Agency's tasks in an efficient

requires the prior consent of the Commission, the efficient and effective manner to efficient and effective manner to and effective manner to locate Administrative Board and the Member State or locate one or more staff in one locate one or more staff in one one or more staff in one or Member States concerned. The decision shall or more Member States for the or more Member States. Before more Member States. Before specify the scope of the activities to be carried out purpose of carrying out the deciding to establish a local at that local office in a manner that avoids Agency's tasks in an efficient office the Director shall seek

deciding to establish a local

unnecessary costs and duplication of administrative and effective manner. The the opinion of the Member

office the Director shall seek

functions of the Agency. decision to establish a local States concerned, including

the opinion of the Member

office requires the prior consent the Member State where the

States concerned, including

of the Administrative Board. seat of the Agency is located,

the Member State where the

The decision shall specify the and obtain the prior consent

seat of the Agency is located,

scope of the activities to be of the Commission and the

and obtain the prior consent

carried out at that local office in Administrative Board. In

of the Commission and the

a manner that avoids cases of disagreement during

Administrative Board. The

unnecessary costs and the consultation process

decision, based on an

duplication of administrative between the Director and the

appropriate cost-benefit

functions of the Agency; Member States concerned the

analysis, shall specify the

issue shall be brought to the scope of the activities to be Council for discussion. [] The carried out at that local office decision, based on an in a manner that avoids appropriate cost-benefit unnecessary costs and analysis, shall specify the scope duplication of administrative of the activities to be carried out functions of the Agency.

at that local office in a manner that avoids unnecessary costs and duplication of administrative functions of the Agency.

ANNEX TREE.2.B EN

• 289. 

  AM 75 Provisionally agreed:

  (ka) (new) with respect to the [] staff of the Agency, exercise the powers referred to in Article 39(3).

• 290. 

  Article 26 Creation and composition of the Board of Appeal

• 291. 

  1. The Agency shall establish a Board of

  Appeal. 1. The Agency shall establish a Board of Appeal.

• 292. 

  2. The Board of Appeal shall be composed of 2. The Board of Appeal six members and six alternates selected from shall be composed of six among current or former senior staff of the national members and six alternates regulatory authorities, competition authorities or selected from among current or other national or Union institutions with relevant former senior staff of the experience in the energy sector. The Board of national regulatory authorities,

  Appeal shall designate its Chairman. competition authorities or other national or Union institutions

  with relevant experience in the energy sector. The Board of Appeal shall designate its Chairman.

• 293. 

  The members of the Board of Appeal shall be The members of the Board of formally appointed by the Administrative Board, Appeal shall be formally on a proposal from the Commission, following a appointed by the Administrative public call for expression of interest, and after Board, on a proposal from the

  consulting the Board of Regulators. Commission, following a public call for expression of interest,

  and after consulting the Board of Regulators.

ANNEX TREE.2.B EN

• 294. 

  3. The Board of Appeal shall adopt and publish 3. The Board of Appeal Provisionally agreed: its rules of procedure. Those rules shall set out in shall adopt and publish its rules 3. The Board of Appeal detail the arrangements governing the organisation of procedure. Those rules shall shall adopt and publish its and functioning of the Board of Appeal and the set out in detail the rules of procedure. Those rules applicable to appeals before the Board, arrangements governing the rules shall set out in detail the pursuant to Article 29. The Board of Appeal shall organisation and functioning of arrangements governing the submit to the Commission its draft rules of the Board of Appeal and the organisation and functioning procedure. The Commission shall deliver an rules applicable to appeals of the Board of Appeal and opinion on the draft rules of procedure within three before the Board, pursuant to the rules applicable to appeals months from the date of receipt of the rules. The Article 29. [] The Board of before the Board, pursuant to Board of Appeal shall adopt and publish its rules of Appeal shall adopt and publish Article 29. [] The Board of procedure within two months after receipt of the its rules of procedure within [] Appeal shall notify its draft Commission's opinion. Any subsequent substantial six months after its first rules of procedure to the changes to the rules of procedure shall be notified meeting [] Commission as well as any to the Commission. The Commission shall significant change to the

  subsequently deliver an opinion on those changes. rules. The Commission may provide an opinion on these

  rules within three months from the date of having received the notification.

• 295. 

  The budget of the Agency shall comprise a separate The budget of the Agency shall

  budget line for the financing of the functioning of comprise a separate budget line the registry for the Board of Appeal. for the financing of the functioning of the registry for the Board of Appeal.

• 296. 

  4. The decisions of the Board of Appeal shall 4. The decisions of the

  be adopted on the basis of a qualified majority of at Board of Appeal shall be least four of its six members. The Board of Appeal adopted on the basis of a shall be convened when necessary. qualified majority of at least four of its six members. The Board of Appeal shall be convened when necessary.

ANNEX TREE.2.B EN

• 297. 

  Article 27 Members of the Board of Appeal

• 298. 

  1. The term of office of the members of the 1. The term of office of the

  Board of Appeal shall be five years. That term shall members of the Board of be renewable once. Appeal shall be five years. That term shall be renewable once.

• 299. 

  2. The members of the Board of Appeal shall 2. The members of the be independent in making their decisions. They Board of Appeal shall be

  shall not be bound by any instructions. They shall independent in making their not perform any other duties in the Agency, in its decisions. They shall not be Administrative Board or in its Board of Regulators bound by any instructions. They or in any of its Working Groups. A member of the shall not perform any other Board of Appeal shall not be removed during his duties in the Agency, in its term of office, unless he has been found guilty of Administrative Board or in its serious misconduct, and the Administrative Board, Board of Regulators or in any of after consulting the Board of Regulators, takes a its Working Groups. A member decision to that effect. of the Board of Appeal shall not be removed during his term of office, unless he has been found guilty of serious misconduct, and the Administrative Board, after consulting the Board of Regulators, takes a decision to that effect.

• 300. 

  Article 28 Exclusion and objection in the Board of Appeal

• 301. 

  1. Members of the Board of Appeal shall not 1. Members of the Board of take part in any appeal proceedings if they have Appeal shall not take part in any any personal interest therein, or if they have appeal proceedings if they have previously been involved as representatives of one any personal interest therein, or of the parties to the proceedings, or if they if they have previously been

  participated in the decision under appeal. involved as representatives of one of the parties to the

  proceedings, or if they participated in the decision under appeal.

ANNEX TREE.2.B EN

• 302. 

  2. A member of the Board of Appeal shall

  inform the Board in the event that , for one of the 2. A member of the Board reasons referred to in paragraph 1 or for any other of Appeal shall inform the reason, he considers that a fellow member should Board in the event that , for one not take part in any appeal proceedings. Any party of the reasons referred to in to the appeal proceedings may object to the paragraph 1 or for any other participation of a member of the Board of Appeal reason, he considers that a on any of the grounds referred to in paragraph 1 , fellow member should not take or in case of suspected bias. Such an objection shall part in any appeal proceedings. be inadmissible if it is based on the nationality of a Any party to the appeal member or if, while being aware of a reason for proceedings may object to the objecting, the objecting party to the appeal participation of a member of the proceedings has taken a procedural step in the Board of Appeal on any of the appeal proceedings other than objecting to the grounds referred to in paragraph

  composition of the Board of Appeal. 1 , or in case of suspected bias. Such an objection shall be

  inadmissible if it is based on the nationality of a member or if, while being aware of a reason for objecting, the objecting party to the appeal proceedings has taken a procedural step in the appeal proceedings other than objecting to the composition of the Board of Appeal.

• 303. 

  3. The Board of Appeal shall decide on the

  action to be taken in the cases specified in 3. The Board of Appeal paragraphs 1 and 2 without the participation of the shall decide on the action to be member concerned. For the purpose of taking that taken in the cases specified in decision, the member concerned shall be replaced paragraphs 1 and 2 without the on the Board of Appeal by his alternate. If the participation of the member alternate finds himself in a similar situation to that concerned. For the purpose of of the member, the Chairman shall designate a taking that decision, the member

  replacement from among the available alternates. concerned shall be replaced on the Board of Appeal by his

ANNEX TREE.2.B EN

alternate. If the alternate finds himself in a similar situation to that of the member, the Chairman shall designate a replacement from among the available alternates.

• 304. 

  4. The members of the Board of Appeal shall

  undertake to act independently and in the public 4. The members of the interest. For that purpose, they shall make a written Board of Appeal shall undertake declaration of commitments and a written to act independently and in the declaration of interests indicating either the public interest. For that purpose, absence of any interest which may be considered they shall make a written prejudicial to their independence or any direct or declaration of commitments and indirect interest which might be considered a written declaration of interests prejudicial to their independence. Those indicating either the absence of

  declarations shall be made public annually. any interest which may be considered prejudicial to their

  independence or any direct or indirect interest which might be considered prejudicial to their independence. Those declarations shall be made public annually.

• 305. 

  Article 29 Decisions subject to appeal

• 306. 

  1. Any natural or legal person, including Provisionally agreed

  national regulatory authorities, may appeal against 1. Any natural or legal 1. Any natural or legal a decision referred to in Articles 4 to 14 of this person, including national Regulation and in Article 12(6) of Regulation (EU) regulatory authorities, may

  person, including national

  No 347/2013 of the European Parliament and of the appeal against a decision

  regulatory authorities, may

  Council as well as in Article 9(11) of Commission referred to in Articles 4 to 14 of

  appeal against a decision

  Regulation (EU) 2015/1222 which is addressed to this Regulation and in Article

  referred to in Article 2(d)

  that person, or against a decision which, although 12(6) of Regulation (EU) No

  which is addressed to that

  in the form of a decision addressed to another 347/2013 of the European

  person, or against a decision

  person, is of direct and individual concern to that Parliament and of the Council as

which, although in the form of

person. well as in Article 9(11) of

a decision addressed to

ANNEX TREE.2.B EN

Commission Regulation (EU) another person, is of direct 2015/1222 which is addressed and individual concern to that to that person, or against a person. decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

• 307. 

  2. The appeal, including the statement of the

  grounds for appeal, shall be filed in writing at the 2. The appeal, including the Agency within two months from the notification of statement of the grounds for the decision to the person concerned, or, in the appeal , shall be filed in writing absence thereof, within two months from the day at the Agency within two on which the Agency published its decision. The months from the notification of Board of Appeal shall decide upon the appeal the decision to the person

  within four months of the lodging of the appeal. concerned, or, in the absence thereof, within two months from

  the day on which the Agency published its decision. The Board of Appeal shall decide upon the appeal within four months of the lodging of the appeal.

• 308. 

  3. An appeal lodged pursuant to paragraph 1

  shall not have suspensory effect. The Board of 3. An appeal lodged Appeal may, however, if it considers that pursuant to paragraph 1 shall circumstances so require, suspend the application not have suspensory effect. The

  of the contested decision. Board of Appeal may, however, if it considers that

  circumstances so require, suspend the application of the contested decision.

ANNEX TREE.2.B EN

• 309. 

  4. If the appeal is admissible, the Board of

  Appeal shall examine whether it is well-founded. It 4. If the appeal is shall invite the parties as often as necessary to the admissible, the Board of Appeal appeal proceedings to file observations on shall examine whether it is wellnotifications issued by itself or on communications founded. It shall invite the from the other parties to the appeal proceedings, parties as often as necessary to within specified time limits. Parties to the appeal the appeal proceedings to file proceedings shall be entitled to make an oral observations on notifications

  presentation. issued by itself or on communications from the other

  parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make an oral presentation.

• 310. 

  5. The Board of Appeal may exercise any AM 76

  power which lies within the competence of the 5. The Board of Appeal may 5. The Board of Appeal may

  Provisionally agreed:

  Agency, or it may remit the case to the competent confirm the decision, or it may exercise any power which lies

  • 5. 

    The Board of Appeal may

  body of the Agency. The latter shall be bound by remit the case to the competent within the competence of the

  confirm the decision, or it

  the decision of the Board of Appeal. body of the Agency. The latter Agency, or it may remit the case

  may remit the case to the

  shall be bound by the decision to the competent body of the

  competent body of the

  of the Board of Appeal. Agency. The latter shall be

  Agency. The latter shall be

  bound by the decision of the bound by the decision of the Board of Appeal. Board of Appeal.

ANNEX TREE.2.B EN

• 311. 

  6. The decisions taken by the Board of Appeal

  shall be published by the Agency. 6. The decisions taken by the Board of Appeal shall be

  published by the Agency.

• 312. 

  AM 77 Provisionally agreed:

  Article 29 a (new) Article 29 a (new) 313. Actions before the Court of Actions before the Court of

  Justice Justice 314. Actions for the annulment of a Actions for the annulment of

  decision issued by the Agency a decision issued by the pursuant to this Regulation and Agency pursuant to this for failure to act within the Regulation and for failure to applicable time limits, may be act within the applicable time brought before the Court of limits, may be brought before Justice of the European Union the Court of Justice of the only after exhaustion of the European Union only after appeal procedure referred to in exhaustion of the appeal Article 29. The Agency shall procedure referred to in take all necessary measures to Article 29. The Agency shall

  comply with the judgment of

  the Court of Justice of the take all necessary measures

  European Union. to comply with the judgment of the Court of Justice of the

  European Union.

ANNEX TREE.2.B EN

• 315. 

  Article 30

  Working groups

• 316. 

  1. Where justified and in particular to support AM 78 1. [] The Administrative Council compromise text the regulatory work of the Director and of the 1. Where justified and in Board shall establish working 1. Where justified and in Board of Regulators on regulatory issues, the particular to support the groups for the tasks referred particular to support the Administrative Board may establish working regulatory work of the Director to in Articles 5, 6, 8(2a), 10 regulatory work of the groups. and of the Board of Regulators and 43. For all other tasks the Director and of the Board of on regulatory issues, the Administrative Board [] shall Regulators on regulatory Director and the Board of establish working groups issues and to prepare Regulators may, jointly, following a favourable opinion opinions, recommendations establish working groups. by the Board of Regulators. and decisions referred to in The removal of a working [list of Articles as in 25(c)], group shall be subject to a the Administrative Board favourable opinion of the shall establish or remove Board of Regulators. working groups on the basis of a proposal from the Director or the Board of Regulators.

The establishment and the removal of a working group require a favourable opinion

of the Board of Regulators.

ANNEX TREE.2.B EN

• 317. 

  2. The working groups shall be composed of AM 79 2. The working groups shall Council compromise text experts from the staff of the Agency, from national 2. The working groups shall be composed of experts from

  regulatory authorities and from the Commission, as be composed of experts from the staff of the Agency, from 2. The working groups necessary. The Agency shall not be responsible for the staff of the Agency and national regulatory authorities shall be composed of experts the costs of the participation of experts from the from national regulatory and, as necessary, from the from the staff of the Agency staff of national regulatory authorities in the authorities. Experts from the Commission []. The Agency and from national regulatory Agency working groups. Commission shall participate as shall not be responsible for the authorities. Experts from the observers, if necessary. The costs of the participation of Commission may participate Agency shall not be responsible experts from the staff of in working groups. The for the costs of the participation national regulatory authorities in Agency shall not be of experts from the staff of the Agency working groups. responsible for the costs of the national regulatory authorities in Working groups which are set participation of experts from the Agency working groups. up to carry out the activities the staff of national regulatory according to this Regulation authorities in the Agency shall take into consideration working groups. Working the views from experts from groups shall take into other relevant national consideration the views authorities where these from experts from other authorities are competent. relevant national authorities where these authorities are competent.

• 318. 

  3. The Administrative Board shall adopt and AM 80

  publish internal rules of procedure for the 3. The Director, after 3. The Administrative

  Council compromise text

  functioning of the working groups. consulting the Board of Board, following a favourable

  • 3. 

    The Administrative

  Regulators, shall adopt and opinion by the Board of

  Board shall adopt and

  publish internal rules of Regulators, shall adopt and

  publish internal rules of procedure for the

  procedure for the functioning of publish internal rules of functioning of the working

  the working groups. procedure for the functioning of the working groups. The groups on the basis of a

  Director, following a proposal from the Director favourable opinion by the and after having consulted Board of Regulators, shall the Board of Regulators and

  appoint working group chairs. obtained its favourable opinion.

ANNEX TREE.2.B EN

• 319. 

  AM 81 Council compromise text

  3 a. (new) The working groups 3a. The Agency Working shall carry out the activities Groups shall carry out the

  • 4. 

    The Agency Working

  assigned to them in the activities assigned to them in

  Groups shall carry out the activities assigned to them in

  programming document the programming document the programming document

  adopted pursuant Article 21. adopted pursuant to Article 20(1)(e) and any activities adopted pursuant to Article

  assigned to them by the Board 21 and any activities under of Regulators and the this Regulation assigned to

Director. them by the Board of Regulators and the Director.

• 320. 

  CHAPTER III ESTABLISHMENT AND STRUCTURE OF THE BUDGET

• 321. 

  Article 31 Structure of the budget

• 322. 

  1. Without prejudice to other resources the 1. Without prejudice to Maintain Council GA revenues of the Agency shall be made up of: other resources the revenues of

  the Agency shall be made up of :

• 323. 

  (a) a contribution from the Union ; (a) a contribution from the

  Union ;

• 324. 

  (b) fees paid to the Agency pursuant to Article (b) fees paid to the Agency

  32 ; pursuant to Article 32 ; 325. (c) any voluntary contributions from the AM 82

  Member States or from the regulatory authorities, (c) any voluntary (c) any voluntary

  Provisionally agreed:

  under Article 20(1)(g); contributions from the Member contributions from the Member

  (EP AM 83 accepted, line

  States or from the regulatory States or from the regulatory

  329)

  authorities, under Article authorities, under Article (c) any voluntary 20(1)(g), without compromising 20(1)(g); contributions from the the Agency's neutrality or Member States or from the

  independence; regulatory authorities, under Article 20(1)(g);

• 326. 

  (d) legacies, donations or grants under Article

  20(1)(g). (d) legacies, donations or grants under Article 20(1)(g).

ANNEX TREE.2.B EN

• 327. 

  2. The expenditure of the Agency shall include

  staff, administrative, infrastructure, and operational 2. The expenditure of the

  Maintain Council GA

  expenses. Agency shall include staff, administrative, infrastructure,

  and operational expenses.

• 328. 

  3. The revenue and expenditure of the Agency Maintain Council GA

  shall be in balance. 3. The revenue and expenditure of the Agency shall

  be in balance.

• 329. 

  4. All revenue and expenditure of the Agency Maintain Council GA

  shall be the subject of forecasts for each financial 4. All revenue and year, coinciding with the calendar year, and shall expenditure of the Agency shall

  be entered in its budget. be the subject of forecasts for each financial year, coinciding

  with the calendar year, and shall be entered in its budget.

• 330. 

  AM 83 Provisionally agreed:

  4a. (new) The revenue received 4a. The revenue received by by the Agency shall not the Agency shall not compromise its independence compromise its neutrality, or objectivity. independence or objectivity.

• 331. 

  Article 32 Fees

• 332. 

  1. Fees shall be due to the Agency for AM 84 requesting an exemption decision pursuant to 1. Fees shall be due to the

  • 1. 

    Fees shall be due to the Maintain Council GA

  Article 11 and for decisions on cross border cost Agency for the following:

  Agency for the following:

  allocation provided by the Agency pursuant to Article 12 of Regulation (EU) No 347/2013 i 1 .

ANNEX TREE.2.B EN

• 333. 

  (a) exemption decisions Maintain Council GA

  pursuant to Article 11(1) and (a) requesting an exemption

  decisions on cross border cost decision pursuant to Article 11

  allocation provided by the and for decisions on cross

  Agency pursuant to Article 12 border cost allocation provided

  of Regulation (EU) No by the Agency pursuant to

  347/2013 1 ; Article 12 of Regulation (EU) 1

  ___ No 347/2013

• 334. 

  (b) registrations as reporting Council compromise text:

  party pursuant to Article 8 of (b) registration of market (b) collecting, handling,

  Regulation (EU) 1227/2011 i; participants or entities acting on their behalf pursuant to processing and analysing of

  Article 8 of Regulation (EU) information reported by 1227/2011 including ongoing market participants or costs of collecting, handling, entities reporting acting on processing and analysing of their behalf pursuant to information pursuant to this Article 8 of Regulation (EU) registration. 1227/2011.

• 335. 

  (c) the oversight of activities Maintain Council GA and of the cooperation of

  transmission and distribution system operators, including through the ENTSO for Electricity, the ENTSO for Gas, and the EU DSO entity.

• 336. 

  2. The fees referred to in paragraph 1 shall be AM 85 2. The fees referred to in Council compromise text set by the Commission. 2. The fees referred to in paragraph 1, and the way in 2. The fees referred to in paragraph 1 shall be set by the which they are to be paid, paragraph 1, and the way in Commission after consulting shall be set by the Commission which they are to be paid, the Administrative Board. The after a public consultation and shall be set by the

  Commission shall determine after consulting the Commission after a public the level of the fees and Administrative Board and the consultation and after charges and the manner in Board of Regulators. The fees consulting the

1 OJ L 115, 25.4.2013, p. 39.

ANNEX TREE.2.B EN

which they are to be paid. The shall be proportionate to the Administrative Board and level of the fees and charges costs of the respective services the Board of Regulators. shall be fixed such as to ensure provided in a cost-effective The fees shall be that the revenue in respect way. They shall be fixed at proportionate to the costs of thereof is sufficient to cover the such a level as to ensure that the respective services full cost of the services they are non-discriminatory provided in a cost-effective delivered. The Commission and that undue financial or way and sufficient to cover shall evaluate, when necessary, administrative burden on these costs. They shall be the level of the fees and market participants or entities fixed at such a level as to charges in light of the need to acting on their behalf is ensure that they are nonimpose such fees and charges. avoided. discriminatory and that The Commission shall undue financial or regularly re-examine the level administrative burden on of fees on the basis of an market participants or evaluation and, if necessary, entities acting on their adapt the level of fees and the behalf is avoided. way in which they are to be The Commission shall paid. regularly re-examine the level of fees on the basis of an evaluation and, if necessary, adapt the level of fees and the way in which they are to be paid.

ANNEX TREE.2.B EN

• 337. 

  Article 33 Establishment of the budget

• 338. 

  1. Each year, the Director shall draw up a 1. Each year, the Director provisional draft estimate covering the operational shall draw up a provisional draft expenditure and the programme of work estimate covering the

  anticipated for the following financial year, and operational expenditure and the shall forward that provisional draft estimate to the programme of work anticipated Administrative Board, together with a list of for the following financial year, provisional posts. and shall forward that provisional draft estimate to the Administrative Board, together with a list of provisional posts.

• 339. 

  AM 86 Provisionally agreed:

  1a. (new) The provisional draft 1a. The provisional draft estimate shall be based on the estimate shall be based on the objectives and expected results objectives and expected of the annual programming results of the programming document referred to in Article document referred to in 21(1) and shall take into Article 21(1) and shall take account the financial resources into account the financial necessary to achieve those resources necessary to objectives and expected results, achieve those objectives and in accordance with the expected results. principle of performance-based budgeting.