Seitenhistorie

[RECITALS|Edit - Recitals - Directive 2009-73]

h2. CHAPTER   I

SUBJECT MATTER, SCOPE AND DEFINITIONS
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*Article 1*

Subject matter and scope


1.	This Directive establishes common rules for the transmission, distribution, supply and storage of natural gas. It lays down the rules relating to the organisation and functioning of the natural gas sector, access to the market, the criteria and procedures applicable to the granting of authorisations for transmission, distribution, supply and storage of natural gas and the operation of systems.


2.	The rules established by this Directive for natural  gas, including LNG, shall also apply in a non-discriminatory way to biogas and gas from biomass or other types of gas in so far as such gases can technically and safely be injected into, and transported through, the natural gas system.
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*Article 2*

Definitions
For the purposes of this Directive, the following definitions apply:
(1)   ‘natural gas undertaking’ means a natural or legal person car?
rying out at least one of the following functions: production, transmission, distribution, supply,  purchase or storage of natural gas, including LNG,  which is responsible for the commercial, technical and/or maintenance tasks related to those functions, but shall not include final customers;


(2)   ‘upstream pipeline network’ means any pipeline or network of pipelines operated and/or constructed as part of an oil or gas production project, or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal;


(3)   ‘transmission’ means the transport of natural gas through a network, which mainly contains  high-pressure pipelines, other than an upstream pipeline network and other than the part of high-pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers, but not including supply;


(4)   ‘transmission system operator’ means a natural or legal per? son who carries out  the function of transmission  and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the transmission system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the transport of gas;



(5)   ‘distribution’  means the transport  of natural gas  through local or regional pipeline networks with a view to its delivery to customers, but not including supply;



(6)   ‘distribution system operator’ means a natural or legal per? son  who  carries out  the  function of distribution  and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the distribution system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the sys? tem to meet reasonable demands for the distribution of gas;



(7)   ‘supply’  means the  sale, including resale, of natural  gas, including LNG, to customers;



(8)   ‘supply undertaking’ means any natural or legal person who carries out the function of supply;



(9)   ‘storage  facility’  means a facility used for the stocking  of natural gas and owned and/or operated by a  natural gas undertaking, including the part of LNG  facilities used for storage but excluding the portion used for production opera? tions, and excluding facilities reserved exclusively for transmission system operators in carrying out their functions;



(10) ‘storage system operator’ means a natural or legal person who carries out the function of storage and is responsible for operating a storage facility;



(11) ‘LNG facility’ means a terminal which is used for the lique? faction of natural gas or the importation,  offloading, and re-gasification of LNG, and includes ancillary services and temporary storage necessary for the re-gasification process and subsequent delivery to the transmission system, but does not include any part of LNG terminals used for storage;



(12) ‘LNG system operator’ means a natural or legal person who carries out the function of liquefaction of natural gas, or the importation, offloading, and re-gasification of LNG and is responsible for operating a LNG facility;



(13) ‘system’ means any transmission networks, distribution net? works, LNG facilities and/or storage facilities owned and/or operated by a natural gas undertaking, including linepack and its facilities supplying ancillary services  and those of related undertakings necessary for providing access to trans? mission, distribution and LNG;



(14) ‘ancillary services’ means all services necessary for access to and the operation of transmission networks,  distribution networks, LNG facilities, and/or storage facilities, including load balancing, blending and injection of inert gases, but not including facilities reserved exclusively for transmission system operators carrying out their functions;

(15) ‘linepack’ means the storage of gas by compression in gas transmission and distribution systems, but  not  including facilities reserved for transmission system operators carry? ing out their functions;

(16) ‘interconnected system’ means a number of systems which are linked with each other;

(17) ‘interconnector’ means a transmission line which crosses or spans a border between Member States for the sole purpose of connecting the national transmission  systems of those Member States;

(18) ‘direct line’ means a natural gas pipeline complementary to the interconnected system;

(19) ‘integrated  natural gas undertaking’  means a vertically  or horizontally integrated undertaking;

(20) ‘vertically integrated undertaking’ means a natural gas under? taking or a group of natural gas undertakings  where the same person or the same persons are entitled, directly or indirectly, to exercise control, and where the undertaking or group of undertakings perform at least one of the functions of transmission, distribution, LNG or storage, and at least one of the functions of production or supply of natural gas;

(21) ‘horizontally integrated undertaking’ means an undertaking performing at least one  of the  functions  of production, transmission, distribution, supply or storage of natural gas, and a non-gas activity;

(22) ‘related   undertaking’   means  an  affiliated   undertaking, within the meaning of Article 41 of Seventh Council Direc? tive   83/349/EEC   of   13   June   1983   based   on   the \*Article 44(2)(g) (*y) of the Treaty on consolidated accounts and/or an associated  undertaking, within the meaning of Article 33(1) of that Directive, and/or an undertaking which belong to the same shareholders;

(23) ‘system user’ means a natural or legal person supplying to, or being supplied by, the system;

(24) ‘customer’ means a wholesale or final customer of natural gas or a natural gas undertaking which purchases natural gas;

(25) ‘household customer’ means a customer purchasing natural gas for his own household consumption;

(26) ‘non-household  customer’  means a customer  purchasing natural gas which is not for his own household use;

(27) ‘final customer’ means a customer purchasing natural gas for his own use;

(28) ‘eligible customer’ means a customer who is free to purchase gas from the supplier of his choice, within the meaning of Article 37;

(*y) The title of Directive 83/349/EEC has been adjusted to take account of the renumbering of the \*Articles of the Treaty establishing the Euro? pean Community in  accordance with \*Article 12  of the Treaty of Amsterdam; the original reference was to \*Article 54(3)(g).





(29) ‘wholesale customer’ means a natural or legal person other than a transmission system operator or distribution system operator who purchases natural gas for the purpose of resale inside or outside the system where he is established;


(30) ‘long-term  planning’  means the  planning of supply  and transport capacity of natural gas undertakings on a long\- term basis with a view to meeting the demand for natural gas of the system, diversification of sources  and securing supplies to customers;


(31) ‘emergent market’ means a Member State in which the first commercial supply of its first long-term natural gas supply contract was made not more than 10 years earlier;


(32) ‘security’ means both security of supply of natural gas and technical safety;


(33) ‘new infrastructure’ means an infrastructure not completed by 4 August 2003;


(34) ‘gas supply contract’ means a contract for the supply of natural gas, but does not include a gas derivative;


(35) ‘gas  derivative’  means a financial instrument  specified  in points  5,  6  or  7  of Section C of Annex I  to  Directive
2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments
{footnote}OJ L 145, 30.4.2004, p. 1.{footnote}
, where that instrument relates to natural gas;

(36) ‘control’  means any rights, contracts or any other  means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the pos? sibility of exercising decisive influence on an undertaking, in particular by:


(a)  ownership or the right to use all or part of the assets of an undertaking;


(b)  rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
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h2. CHAPTER   II

*{_}GENERAL RULES FOR THE ORGANISATION  OF THE SECTOR{_}*
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*Article 3*

Public service obligations and customer protection


1.	Member States shall ensure, on the basis of their institu? tional organisation and with due regard to the principle of sub? sidiarity, that,  without  prejudice to  paragraph  2,  natural gas undertakings are operated in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market in natural gas, and shall not discriminate between those undertakings as regards their rights or obligations.


2.	Having full regard to the relevant provisions of the Treaty, in particular \*Article 86 thereof, Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of sup? plies, and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obli? gations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for natural gas undertakings of the Community to national consumers. In rela? tion to security of supply, energy efficiency/demand-side manage? ment and for the fulfilment of environmental goals and goals for energy from renewable sources, as referred to in this paragraph, Member States may introduce the implementation of long-term planning, taking into account the possibility of third parties seek? ing access to the system.





3.	Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that  there are adequate safeguards to protect vulnerable customers. In this con? text, each Member State shall define the concept of vulnerable customers which may refer to energy poverty and, inter alia, to the prohibition of disconnection of gas to such customers in critical times.  Member States shall ensure that  rights and obligations linked to vulnerable customers are applied. In particular,  they shall take appropriate  measures to  protect final  customers in remote areas who are connected to the gas system. Member States may appoint a supplier of last resort for customers connected to the gas system. They shall ensure high levels of consumer protec? tion, particularly with respect to transparency regarding contrac? tual  terms  and  conditions,  general information  and  dispute settlement mechanisms. Member States shall ensure that the eli? gible customer is in fact able easily to switch to a new supplier. As  regards at least household customers those measures  shall include those set out in Annex I.





4.	Member States shall take appropriate measures, such as for? mulating national energy action plans, providing social security benefits to ensure the necessary gas supply to vulnerable custom? ers, or providing for support for energy efficiency improvements, to  address energy poverty where  identified, including in  the broader context of poverty. Such measures shall not impede the effective opening of the market set out in \*Article 37 and market functioning and shall be notified to the Commission, where rel? evant, in accordance with paragraph 11 of this \*Article. Such noti? fication shall not include measures taken within the general social security system.





5.	Member States shall ensure that all customers connected to the gas network are entitled to have their gas provided by a sup? plier, subject to the supplier’s agreement, regardless of the Mem? ber State in which the supplier is registered, as long as the supplier follows the applicable trading and balancing rules and subject to security of supply requirements. In this regard, Member States shall take all measures necessary to  ensure that administrative procedures do not constitute a barrier for supply undertakings already registered in another Member State.



6.	Member States shall ensure that:



(a)  where a customer, while respecting the contractual condi? tions, wishes to change supplier, the change is effected by the operator(s) concerned within three weeks; and



(b)  customers are entitled to receive all relevant consumption data.



Member States shall ensure that the rights referred to in points (a) and (b) of the first subparagraph are granted to customers in a non-discriminatory manner as regards cost, effort or time.



7.	Member States shall implement appropriate measures  to achieve the objectives of social and economic cohesion and envi? ronmental protection, which may include means to combat cli? mate change, and security of supply. Such measures may include, in particular, the  provision of  adequate economic incentives, using, where appropriate, all existing national and Community tools, for the maintenance and construction of necessary network infrastructure, including interconnection capacity.



8.	In order to promote energy efficiency, Member States or, where a Member State has so provided, the regulatory authority shall strongly recommend that natural gas undertakings optimise the use of gas, for example by providing energy management ser? vices, developing  innovative pricing formulas or  introducing intelligent metering systems or smart grids where appropriate.



9.	Member States shall ensure the provision of single points of contact to provide consumers with all necessary information con? cerning their rights, current legislation and the means of dispute settlement available to them in the event of a dispute. Such con? tact points may be part of general consumer information points.



Member States shall ensure that an independent mechanism such as an energy ombudsman or a consumer body is in place in order to ensure efficient treatment of complaints and out-of-court dispute settlements.



10. 	Member States may decide not to apply the provisions of Article 4 with respect to distribution insofar as their application would obstruct, in law or in fact, the performance of the obligations imposed on natural gas undertakings in the general economic interest and insofar as the development of trade would not be affected to such an extent as would be contrary to the interests of the Community. The interests of the Community include, inter alia, competition with regard to eligible customers in accordance with this Directive and \*Article 86 of the Treaty.



11. 	Member States shall, upon implementation of this Direc? tive, inform the Commission of all measures adopted to fulfil pub? lic service obligations, including consumer and  environmental protection, and their possible effect on national and international

competition, whether or not such measures require a derogation from the provisions of this Directive. They shall notify the Commission subsequently every two years of  any changes to such measures, whether or not they require  a derogation from this Directive.



12. 	The Commission shall establish, in  consultation  with relevant stakeholders, including Member States, the national regu? latory authorities, consumer organisations and natural gas under? takings, a clear and concise energy consumer checklist of practical information relating to energy consumer rights. Member States shall ensure that gas suppliers or distribution system operators, in cooperation  with  the regulatory authority, take the necessary steps to provide their consumers with a copy of the energy consumer checklist and ensure that it is made publicly available.
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*Article 4*

_Authorisation procedure_



1.	In  circumstances where an  authorisation  (for  example, licence, permission, concession, consent or approval) is required for the construction or operation of  natural gas facilities, the Member States or any competent authority they designate shall grant authorisations to build and/or operate such facilities, pipe? lines and associated equipment on their territory, in accordance with paragraphs 2 to 4. Member States or any competent author? ity they designate may also grant authorisations on the same basis for the supply of natural gas and for wholesale customers.



2.	Where Member States have a system of authorisation, they shall lay down objective and non-discriminatory criteria which shall be met by an undertaking applying for an authorisation to build and/or  operate natural gas  facilities or  applying for an authorisation to supply natural gas. The non-discriminatory cri? teria and procedures for the granting of authorisations shall be made public. Member States shall ensure that authorisation pro? cedures for facilities, pipelines and associated equipment take into account the importance of the project for the internal market in natural gas where appropriate.



3.	Member States shall ensure that the reasons for any refusal to grant an authorisation are objective and non-discriminatory and that they are given to the applicant. Reasons for such refusals shall be notified to the  Commission for information. Member States shall establish a procedure enabling the applicant to appeal against such refusals.



4.	For the development of newly supplied areas and efficient operation generally, and without prejudice to \*Article 38, Member States may decline to grant a further authorisation to build and operate distribution pipeline systems in any particular area once such pipeline systems have been or are proposed to be built in that area and if existing or proposed capacity is not saturated.
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*Article 5*

_Monitoring of security of supply_


Member States shall ensure the monitoring of security of supply issues. Where Member States consider it appropriate, they may delegate that  task to  the regulatory authorities  referred to  in \*Article 39(1). Such monitoring shall, in particular, cover the bal? ance of supply and demand on the national market, the level of expected future demand and available supplies, envisaged additional capacity being planned or under construction, and the qual? ity and level of maintenance of the networks, as well as measures to cover peak demand and to deal with shortfalls of one or more suppliers. The competent authorities shall publish, by 31  July each year, a report outlining the findings resulting from the moni? toring of those issues, as well as any measures taken or envisaged to address them and shall forward that report to the Commission forthwith.
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*Article 6*

_Regional solidarity_


1.	In order to safeguard a secure supply on the internal mar? ket in natural gas, Member States shall cooperate in order to promote regional and bilateral solidarity.


2.	Such cooperation shall cover situations resulting or likely to result in the short term in a severe disruption of supply affecting a Member State. It shall include:


(a)  coordination of national emergency measures referred to in \*Article 8 of Council Directive 2004/67/EC of 26 April 2004 concerning measures to  safeguard security of  natural gas supply
{footnote}OJ L 127, 29.4.2004, p. 92.{footnote}
;

(b)  identification and, where necessary, development or upgrad?
ing of electricity and natural gas interconnections; and


(c)  conditions and practical modalities for mutual assistance.


3.	The Commission and the other Member States shall be kept informed of such cooperation.


4.	The Commission may adopt Guidelines for regional coop? eration in a spirit of solidarity. Those measures,  designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in \*Article 51(3).
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*Article 7*

_Promotion of regional cooperation_


1.	Member States as well as the regulatory authorities  shall cooperate with each other for the purpose of integrating their national markets at one and more regional levels, as a first step towards the creation of a fully liberalised internal market. In par? ticular, the regulatory authorities where Member States have so

provided or Member States shall promote and facilitate the coop? eration  of transmission system operators  at  a  regional level, including on cross-border issues with the aim of creating a com? petitive internal market in natural gas, foster the consistency of their legal, regulatory and technical framework and facilitate inte? gration of the isolated systems forming gas islands that persist in the Community. The geographical areas covered by such regional cooperation  shall  include cooperation  in  geographical areas defined  in  accordance with \*Article 12(3) of Regulation (EC) No 715/2009.  Such cooperation may cover other geographical areas.



2.	The  Agency  shall  cooperate  with  national   regulatory authorities and transmission system operators to ensure the com? patibility of regulatory frameworks between the regions with the aim of creating a competitive internal  market in natural gas. Where the Agency considers that binding rules on such coopera? tion are required, it shall make appropriate recommendations.



3.	Member States shall ensure, through the implementation of this Directive, that transmission system operators have  one or more integrated system(s) at regional level covering two or more Member States for capacity allocation and for checking the secu? rity of the network.



4.	Where vertically integrated transmission system operators participate in a joint undertaking established for implementing such cooperation, the joint undertaking shall establish and imple? ment a compliance programme which sets out the measures to be taken to ensure that discriminatory and anticompetitive conduct is excluded. That compliance programme shall set out the specific obligations of employees to meet the objective of excluding dis? criminatory and anticompetitive conduct. It shall be subject to the approval of the Agency. Compliance with the programme shall be independently monitored by the compliance officers of the verti? cally integrated transmission system operators.
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*Article 8*

_Technical rules_



The regulatory authorities where Member States have so provided or Member States shall ensure that technical safety criteria are defined and that technical rules establishing the minimum tech? nical design and operational requirements for the connection to the system of LNG facilities, storage facilities, other transmission or distribution systems, and direct lines, are developed and made public. Those technical rules shall ensure the interoperability of systems  and  shall be  objective and  non-discriminatory.  The Agency may make appropriate recommendations towards achiev? ing compatibility of those rules, where appropriate. Those rules shall be notified to the Commission in accordance with \*Article 8 of Directive 98/34/EC of the  European Parliament and of the Council of 22 June 1998 laying down a procedure for the provi? sion of information in the field of technical standards and regu? lations and of rules on Information Society services.
{footnote}OJ L 204, 21.7.1998, p. 37.{footnote}


L 211/106 	EN

Official Journal of the European Union

14.8.2009
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h2. CHAPTER   III

TRANSMISSION, STORAGE AND LNG
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*Article 9*

_Unbundling of transmission systems and transmission system operators_


1.	Member States shall ensure that from 3 March 2012:


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


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


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


(ii)   directly or indirectly to exercise control over a transmis? sion system operator or over a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the func? tions of production or supply;


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


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


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


(a)  the power to exercise voting rights;


(b)  the power to appoint members of the supervisory board, the administrative board or bodies legally representing the under? taking; or


(c)  the holding of a majority share.

3.	For the purpose of paragraph 1(b), the notion ‘undertaking performing any of the functions of production or supply’ shall include ‘undertaking performing any of the functions of genera? tion and supply’ within the meaning of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 con? cerning common rules for the internal market in electricity
{footnote}See page 55 of this Official Journal.{footnote}
, and the terms ‘transmission system operator’ and ‘transmission system’ shall include ‘transmission system operator’ and ‘transmis? sion system’ within the meaning of that Directive.

4.	Member States may allow for derogations from points (b) and (c) of paragraphs 1 until 3 March 2013, provided that trans? mission system operators are not part of a vertically integrated undertaking.


5.	The obligation set out in paragraph 1(a) of this \*Article shall be deemed to be fulfilled in a situation where two or more under? takings which own transmission systems have created a joint ven? ture which acts as a transmission system operator in two or more Member States for the transmission systems concerned. No other undertaking may be part of the joint venture, unless it has been approved under \*Article 14 as an independent system operator or as an independent  transmission operator  for the purposes of h2. CHAPTER IV.


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


7.	Member States shall ensure that neither commercially sen? sitive information referred to in \*Article 16 held by a transmission system operator which was part of a vertically integrated under? taking, nor the staff of such a transmission system operator, is transferred to undertakings performing any of the functions of production and supply.


8.	Where on  3  September 2009,  the  transmission  system belongs to a vertically integrated undertaking a Member State may decide not to apply paragraph 1.


In such case, the Member State concerned shall either:


(a)  designate an  independent  system operator  in  accordance with \*Article 14, or


(b)  comply with the provisions of h2. CHAPTER IV.


9.	Where, on  3  September 2009,  the transmission  system belongs  to  a  vertically integrated undertaking and  there  are arrangements in place which guarantee more effective indepen? dence of the transmission system operator than the provisions of h2. CHAPTER IV, a Member State may decide not to apply paragraph 1.



10. 	Before an undertaking is approved and designated as  a transmission system operator under paragraph 9 of this \*Article, it shall be certified according to the procedures  laid  down in \*Article 10(4), (5) and (6) of this Directive and in \*Article 3 of Regu? lation (EC)  No 715/2009,  pursuant to  which the Commission shall verify that the arrangements in place clearly guarantee more effective independence of the transmission system operator than the provisions of h2. CHAPTER IV.


11. 	Vertically integrated undertakings which own a transmis? sion system shall not in any event be prevented from taking steps to comply with paragraph 1.


12. 	Undertakings performing any of the functions of produc? tion or supply shall not in any event be able to directly or indi? rectly take control over or exercise any  right over unbundled transmission system operators in  Member States which apply paragraph 1.
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*Article 10*

_Designation and certification of transmission system operators_


1.	Before an undertaking is approved and designated as trans? mission system operator, it shall be certified according to the pro? cedures laid down in paragraphs 4, 5 and 6 of this \*Article and in \*Article 3 of Regulation (EC) No 715/2009.


2.	Undertakings which own a transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 9, pursuant to the cer? tification procedure, shall be approved and designated as trans? mission system operators by Member States. The designation of transmission system operators shall be notified to the Commis? sion and published in the Official Journal of the European Union.


3.	Transmission system operators shall notify to the regulatory authority any planned transaction which may require a reassess? ment of their compliance with the requirements of Article 9.


4.	The regulatory authorities shall monitor  the  continuing compliance of transmission system operators with the require? ments of Article 9. They shall open a certification procedure to ensure such compliance:


(a)  upon notification by the transmission system operator pur?
suant to paragraph 3;


(b)  on their own initiative where they have knowledge  that  a planned change in rights or influence over transmission sys? tem owners or transmission system operators may lead to an infringement of Article 9, or  where they have reason to believe that such an infringement may have occurred; or


(c)  upon a reasoned request from the Commission.

5.	The regulatory authorities shall adopt a decision on the cer? tification of a transmission system operator within a period of four months from the date of the notification by the transmission system operator or from the date of the  Commission request. After expiry of that period, the certification shall be deemed to be granted. The explicit or tacit decision of the regulatory authority shall become effective only after the conclusion of the procedure set out in paragraph 6.


6.	The explicit or tacit decision on the certification of a trans? mission system operator shall be notified without delay to the Commission by the regulatory authority, together with all the rel? evant information with respect to that decision. The Commission shall act in accordance with the procedure laid down in \*Article 3 of Regulation (EC) No 715/2009.


7.	The regulatory authorities and the Commission may request from transmission system operators and undertakings perform? ing any of the functions of production or supply any information relevant for the fulfilment of their tasks under this \*Article.


8.	The regulatory authorities and the Commission shall pre?
serve the confidentiality of commercially sensitive information.
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*Article 11*

_Certification in relation to third countries_


1.	Where certification is requested by a transmission system owner or a transmission system operator which is controlled by a person or persons from a third country or third countries, the regulatory authority shall notify the Commission.


The regulatory authority shall also notify to  the  Commission without delay any circumstances that would result in a person or persons from a third country or third countries acquiring control of a transmission system or a transmission system operator.


2.	The transmission system operator shall notify to the regu? latory authority any circumstances that would result in a person or persons from a third country or third countries acquiring con? trol  of  the  transmission system or  the  transmission system operator.


3.	The regulatory authority shall adopt a draft decision on the certification of  a  transmission  system  operator  within  four months from the date of notification by the transmission system operator.  It  shall refuse the  certification if  it  has  not  been demonstrated:


(a)  that the entity concerned complies with the requirements of
Article 9; and


(b)  to the regulatory authority or to another competent author? ity designated by the Member State that granting certification will not put at risk the security of energy supply of the Mem? ber State and the Community. In considering that question the regulatory authority or other competent authority so des? ignated shall take into account:

L 211/108 	EN

Official Journal of the European Union	14.8.2009



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


(ii)   the rights and obligations of the Member State  with respect to that third country arising under agreements concluded with it, insofar as they are in compliance with Community law; and


(iii) other specific facts and circumstances of the case and the third country concerned.


4.	The regulatory authority shall notify the decision to  the Commission without delay, together with all the relevant infor? mation with respect to that decision.


5.	Member States shall provide for the regulatory authority or the designated competent authority referred to in paragraph 3(b), before the regulatory authority adopts a decision on the certifica? tion, to request an opinion from the Commission on whether:


(a)  the  entity concerned complies with the  requirements  of
Article 9; and


(b)  granting certification will not  put  at risk the  security  of energy supply to the Community.


6.	The Commission shall examine the request referred to in paragraph 5 as soon as it is received. Within a period  of  two months after receiving the request, it shall deliver its opinion to the national regulatory authority or, if the request was made by the designated competent authority, to that authority.


In preparing the opinion, the Commission may request the views of the Agency, the Member State concerned, and interested par? ties. In the event that the Commission makes such a request, the two-month period shall be extended by two months.


In the absence of an opinion by the Commission within the period referred to in the first and second subparagraphs, the Commis? sion is deemed not to raise objections to the decision of the regu? latory authority.


7.	When assessing whether the control by a person or persons from a third country or third countries will put at risk the secu? rity of energy supply to the Community, the Commission shall take into account:


(a)  the specific facts of the case and the third country or third countries concerned; and


(b)  the rights and obligations of the Community with respect to that third country or third countries arising under interna? tional law, including an agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security of supply.

8.	The national regulatory authority shall, within a period of two months after the expiry of the period referred to in  para? graph 6, adopt its final decision on the certification. In adopting its final decision the  national  regulatory  authority  shall take utmost account of the Commission’s opinion. In any event Mem? ber States shall have the right to refuse certification where grant? ing certification puts at risk the Member State’s security of energy supply or the security of energy supply of another Member State. Where the  Member  State has designated another  competent authority to  assess  paragraph 3(b), it may require the national regulatory authority to adopt its final decision in accordance with the  assessment of  that  competent  authority.  The  regulatory authority’s final decision and the Commission’s opinion shall be published together. Where the final decision diverges from the Commission’s opinion, the Member State concerned shall provide and publish, together with that decision, the reasoning underly? ing such decision.


9.	Nothing in this \*Article shall affect the right of  Member States to exercise, in compliance with Community law, national legal controls to protect legitimate public security interests.


10. 	The Commission may adopt Guidelines setting out  the details of the procedure to be followed for the application of this \*Article. Those measures, designed to amend  non-essential ele? ments of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in \*Article 51(3).


11. 	This \*Article, with exception of paragraph 3(a), shall also apply to Member States which are subject to a derogation under \*Article 49.
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*Article 12*

_Designation of storage and LNG system operators_


Member States shall designate, or shall require natural gas under? takings which own storage or LNG facilities  to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and  economic balance, one or more storage and LNG system operators.
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*Article 13*

_Tasks of transmission, storage and/or LNG system operators_


1.	Each transmission, storage and/or  LNG system  operator shall:


(a)  operate, maintain and develop under economic conditions secure, reliable and efficient transmission,  storage and/or LNG facilities to secure an open market, with due regard to the environment, ensure adequate  means to meet service obligations;



(b)  refrain from discriminating between system users or classes of  system  users,  particularly  in  favour  of   its   related undertakings;


(c)  provide any other transmission system operator, any other storage system operator, any other  LNG system  operator and/or any distribution system operator, sufficient informa? tion to ensure that the transport and storage of natural gas may take place in a manner compatible with the secure and efficient operation of the interconnected system; and


(d)  provide system users with the information they need for effi?
cient access to the system.


2.	Each transmission system operator  shall build  sufficient cross-border capacity to integrate European transmission infra? structure accommodating all economically reasonable and tech? nically feasible demands  for capacity and taking into account security of gas supply.


3.	Rules adopted by transmission system operators for balanc? ing the gas transmission system shall be objective, transparent and non-discriminatory, including rules for the  charging of system users of their networks for energy imbalance. Terms and condi? tions, including rules and tariffs, for the provision of such services by transmission system operators shall be established pursuant to a  methodology   compatible  with  \*Article  41(6)  in  a  non\- discriminatory and cost-reflective way and shall be published.


4.	The regulatory authorities where Member States have  so provided or  Member States may require transmission  system operators to comply with minimum standards for the mainte? nance and development of the transmission  system, including interconnection capacity.


5.	Transmission system operators  shall procure the  energy they use for the carrying out of their functions according to trans? parent, non-discriminatory and market based procedures.
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*Article 14*

_Independent system operators_


1.	Where the transmission system belongs to a vertically inte? grated undertaking on 3 September 2009, Member States may decide not to apply \*Article 9(1) and designate an independent sys? tem operator  upon  a proposal from the  transmission system owner. Such designation shall be  subject to  approval by the Commission.


2.	The Member State may approve and designate an indepen?
dent system operator only where:


(a)  the candidate operator has demonstrated that it  complies with the requirements of Article 9(1)(b), (c) and (d);

(b)  the candidate operator has demonstrated that it has at its dis? posal the required financial, technical, physical and human resources to carry out its tasks under \*Article 13;


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


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


(e)  the candidate operator has demonstrated its ability to com? ply with its obligations under Regulation (EC) No 715/2009  including the cooperation of transmission system operators at European and regional level.


3.	Undertakings which have been certified by the regulatory authority as having complied with the requirements of Article 11 and of paragraph 2 of this \*Article shall be approved and desig? nated as independent system operators by Member States. The certification procedure in either \*Article 10 of this Directive and \*Article 3 of Regulation (EC) No 715/2009  or in \*Article 11 of this Directive shall be applicable.


4.	Each independent system operator shall be responsible for granting and managing third-party access, including the collec? tion  of access charges and congestion charges, for  operating, maintaining and developing the transmission system, as well as for ensuring the long-term ability of the system to meet reason? able demand through investment planning. When developing the transmission system the  independent system operator shall be responsible for  planning (including authorisation  procedure), construction and commissioning of the new infrastructure. For this purpose, the independent system operator shall act as a trans? mission system operator in accordance with this h2. CHAPTER.  The transmission system owner shall not be responsible for granting and managing third-party access, nor for investment planning.


5.	Where an independent system operator has been  desig?
nated, the transmission system owner shall:


(a)  provide all the relevant cooperation and support to the inde? pendent system operator for the fulfilment of its tasks, includ? ing in particular all relevant information;


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



(c)  provide for the coverage of liability relating to the network assets, excluding the liability relating to the tasks of the inde? pendent system operator; and


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


6.	In close cooperation with the regulatory authority, the rel? evant national competition authority shall be granted all relevant powers to effectively monitor compliance of the transmission sys? tem owner with its obligations under paragraph 5.
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*Article 15*

_Unbundling of transmission system owners and storage system operators_


1.	A transmission system owner, where an independent sys? tem operator has been appointed, and a storage system operator which are part of vertically integrated undertakings shall be inde? pendent at least in terms of their legal form,  organisation and decision making from other activities not relating to transmission, distribution and storage.


This \*Article shall apply only to storage facilities that are techni? cally and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to \*Article 33.


2.	In order to ensure the independence of the transmission sys? tem  owner and  storage system operator  referred to  in  para? graph 1, the following minimum criteria shall apply:


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


(b)  appropriate measures shall be taken to ensure that the pro? fessional interests of persons responsible for the management of the transmission system owner and storage system opera? tor are taken into account in a manner that ensures that they are capable of acting independently;


(c)  the storage system operator shall have effective  decision\- making rights, independent from the integrated natural gas undertaking, with respect to  assets  necessary to  operate, maintain or develop the storage facilities. This shall not pre? clude the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets regulated indirectly in accordance with \*Article 41(6) in a sub? sidiary  are protected. In particular, this shall enable  the

parent company to approve the annual financial plan, or any equivalent instrument, of the storage system operator and to set global limits on the levels of indebtedness of its subsid? iary. It shall not permit the parent company to give instruc? tions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrad? ing of storage facilities, that do not exceed the terms of the approved financial plan, or any equivalent instrument; and




(d)  the transmission system owner and the storage system opera? tor shall establish a compliance programme, which sets out measures taken to  ensure that  discriminatory conduct  is excluded, and ensure that  observance of it is adequately monitored. The compliance programme shall set out the spe? cific obligations of employees to meet those objectives. An annual report, setting out the measures taken, shall be sub? mitted by the person or body responsible for monitoring the compliance programme to the regulatory authority and shall be published.




3.	The Commission may adopt Guidelines to ensure full and effective compliance of the transmission system owner and of the storage system operator with paragraph 2 of this \*Article. Those measures, designed to amend non-essential elements of this Direc? tive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in \*Article 51(3).
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*Article 16*

_Confidentiality for transmission system operators and transmission system owners_




1.	Without prejudice to \*Article 30 or any other legal duty to disclose information, each transmission, storage and/or LNG sys? tem operator, and each transmission system owner, shall preserve the   confidentiality  of   commercially   sensitive  information obtained in the course of carrying out its activities, and shall pre? vent information about its own activities which may be commer? cially advantageous from  being disclosed in a discriminatory manner. In particular, it shall not disclose any commercially sen? sitive information  to  the remaining parts of the undertaking, unless this is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbun? dling, Member States shall ensure that the transmission system owner including, in the case of a combined operator, the distri? bution system operator, and the remaining part of the undertak? ing do not use joint services, such as joint legal services, apart from purely administrative or IT functions.




2.	Transmission, storage and/or LNG system operators shall not, in the context of sales or purchases of natural gas by related undertakings,   misuse   commercially   sensitive    information obtained from third parties in the context of providing or nego? tiating access to the system.



3.	Information necessary for effective competition and the effi? cient functioning of the market shall be made public. That obli? gation shall be without  prejudice to  protecting  commercially sensitive information.
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h2. CHAPTER  IV

*{_}INDEPENDENT TRANSMISSION OPERATOR{_}*
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*Article 17*

_Assets, equipment, staff and identity_


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


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


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


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


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


(ii)   the terms and conditions of the provision of those ser?
vices are approved by the regulatory authority;


(d)  without prejudice to the decisions of the Supervisory Body under \*Article 20, appropriate financial resources for future investment projects and/or for the replacement of existing assets shall be made available  to the transmission system operator in due time by the vertically integrated undertaking following an appropriate request from the transmission sys? tem operator.


2.	The activity of gas transmission shall include at least the fol?
lowing tasks in addition to those listed in \*Article 13:


(a)  the representation of the transmission system operator and contacts to third parties and the regulatory authorities;

(b)  the  representation  of  the  transmission  system  operator within  the  European  Network  of  Transmission  System Operators for Gas (ENTSO for Gas);


(c)  granting  and  managing  third-party  access  on  a   non\- discriminatory basis between system users or classes of sys? tem users;


(d)  the collection of all the transmission system related charges including access charges, balancing charges for ancillary ser? vices such as gas treatment, purchasing of services (balanc? ing costs, energy for losses);


(e)  the operation, maintenance and development of a  secure, efficient and economic transmission system;


(f)     investment planning ensuring the long-term ability of  the system to meet reasonable demand and guaranteeing secu? rity of supply;


(g)  the setting up of appropriate joint ventures, including with one or more transmission system operators, gas exchanges, and  the  other  relevant actors  pursuing the  objective to develop the creation of regional markets or to facilitate the liberalisation process; and


(h)  all corporate services, including legal services, accountancy and IT services.


3.	Transmission system operators shall be organised in a legal form   as   referred  to   in   \*Article  1   of   Council   Directive 68/151/EEC (1).


4.	The transmission system operator shall not, in its corporate identity, communication, branding and premises, create confu? sion in respect of the separate identity of the vertically integrated undertaking or any part thereof.


5.	The transmission system operator shall not share IT systems or equipment, physical premises and security access systems with any part of the vertically integrated undertaking, nor use the same consultants or external contractors for IT systems or equipment, and security access systems.


6.	The accounts of transmission system operators  shall  be audited by an auditor other than the one auditing the vertically integrated undertaking or any part thereof.
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*Article 18*

_Independence of the transmission system operator_


1.	Without prejudice to the decisions of the Supervisory Body under \*Article 20, the transmission system operator shall have:

(1)  First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Commu? nity (OJ L 65, 14.3.1968, p. 8).



(a)  effective decision-making  rights, independent from the ver? tically integrated undertaking, with respect to assets neces? sary to operate, maintain or develop the transmission system; and


(b)  the power to raise money on the capital market in particular through borrowing and capital increase.


2.	The transmission system operator shall at all times act so as to ensure it has the resources it needs in order to carry out the activity of transmission properly and efficiently and develop and maintain an efficient, secure and economic transmission system.


3.	Subsidiaries of the vertically integrated undertaking  per? forming functions of production or supply shall not  have any direct or indirect shareholding in the transmission system opera? tor. The transmission system operator  shall  neither have any direct or indirect shareholding in any subsidiary of the vertically integrated undertaking  performing  functions of production or supply, nor receive dividends or any other financial benefit from that subsidiary.


4.	The overall management structure and the corporate stat? utes of the transmission system operator shall ensure effective independence of the transmission system operator in compliance with this h2. CHAPTER. The vertically integrated undertaking shall not determine, directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day to day activi? ties of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the ten-year network development plan developed pursuant to \*Article 22.


5.	In fulfilling their tasks in \*Article 13 and \*Article 17(2) of this Directive, and in complying with \*Article 13(1), \*Article 14(1)(a), \*Article 16(2), (3) and (5), \*Article 18(6) and \*Article 21(1) of Regu? lation (EC) No 715/2009, transmission system operators shall not discriminate against different persons or  entities and shall not restrict, distort or prevent competition in production or supply.


6.	Any commercial and financial relations between the verti? cally integrated undertaking and the transmission system opera? tor, including loans from the transmission system operator to the vertically integrated undertaking, shall comply with market con? ditions. The transmission system  operator  shall keep detailed records of such commercial  and financial relations and make them available to the regulatory authority upon request.


7.	The transmission system operator shall submit for approval by the regulatory authority all commercial and financial agree? ments with the vertically integrated undertaking.


8.	The transmission system operator shall inform the regula? tory   authority   of  the   financial  resources,   referred  to   in \*Article 17(1)(d), available for future investment projects and/or for the replacement of existing assets.

9.	The vertically integrated undertaking shall refrain from any action impeding or prejudicing the transmission system operator from complying with its obligations in this h2. CHAPTER and shall not require the transmission system operator to seek permission from the vertically integrated undertaking in fulfilling those obligations.


10. 	An undertaking which has been certified by the regulatory authority as being in compliance with the requirements of this h2. CHAPTER shall be approved and designated as a transmission sys? tem operator by the Member State concerned. The certification procedure in either \*Article 10 of this Directive and \*Article 3 of Regulation (EC) No 715/2009  or in \*Article 11 of this Directive shall apply.
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*Article 19*

_Independence of the staff and the management of the transmission system operator_


1.	Decisions regarding the appointment and renewal, working conditions including remuneration, and termination of the term of office, of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the Supervisory Body of the transmis? sion system operator appointed in accordance with \*Article 20.


2.	The identity of, and the conditions governing the term, the duration and the termination of office of, the persons nominated by the Supervisory Body for appointment or renewal as persons responsible for the executive management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the regulatory authority. Those con? ditions and the decisions referred to in paragraph 1 shall become binding only if the regulatory authority has raised no objections within three weeks of notification.


The regulatory authority may object to the decisions referred to in paragraph 1 where:


(a)  doubts arise as to the professional independence of a nomi? nated person responsible for the management and/or mem? ber of the administrative bodies; or


(b)  in the case of premature termination of a term of  office, doubts exist regarding the justification of such  premature termination.


3.	No professional position or responsibility, interest or busi? ness relationship, directly or indirectly, with the vertically inte? grated undertaking or any part of it or its controlling shareholders other than the transmission system operator shall be exercised for a period of three years before the appointment of the persons responsible for the management and/or members of the admin? istrative bodies of the transmission system operator who are sub? ject to this paragraph.


4.	The persons responsible for the management and/or mem? bers of the administrative bodies, and employees of the transmis? sion system operator shall have no other professional position or responsibility, interest or business relationship, directly or indi? rectly, with any other part of the vertically integrated undertaking or with its controlling shareholders.



5.	The persons responsible for the management and/or mem? bers of the administrative bodies, and employees of the transmis? sion system operator shall hold no interest in or  receive any financial benefit, directly or indirectly, from any part of the ver? tically integrated undertaking other than the transmission system operator. Their remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator.


6.	Effective rights of appeal to the regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term of office.


7.	After termination of their term of office in the transmission system operator, the persons responsible for  its management and/or members of its administrative bodies shall have no profes? sional position or responsibility, interest or business relationship with any part of the vertically integrated undertaking other than the transmission system operator, or with its controlling share? holders for a period of not less than four years.


8.	Paragraph 3  shall apply to  the majority of the  persons responsible for the management and/or members of the admin? istrative bodies of the transmission system operator.


The persons responsible for the management and/or members of the administrative bodies of the transmission system  operator who are not subject to paragraph 3 shall have exercised no man? agement or other  relevant activity in  the  vertically integrated undertaking for a period of at  least six months  before their appointment.


The first subparagraph of this paragraph and paragraphs 4 to 7 shall be applicable to all the persons belonging to the executive management and to those directly reporting to them on matters related to  the operation, maintenance or  development of the network.
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*Article 20*

_Supervisory Body_


1.	The transmission system operator shall have a Supervisory Body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual and longer-term financial plans, the level of indebtedness of the transmission system opera? tor and the amount of dividends distributed to shareholders. The decisions falling under the remit of the Supervisory Body shall exclude those that are related to the day to day activities of the transmission system operator and management of the network, and in relation to activities necessary for the preparation of the ten-year  network  development  plan  developed  pursuant  to \*Article 22.

2.	The Supervisory Body shall be composed of members rep? resenting the vertically integrated undertaking, members repre? senting  third  party  shareholders  and,   where  the  relevant legislation of a Member State so provides, members representing other interested parties such as employees of the transmission sys? tem operator.


3.	The first subparagraph of Article 19(2) and \*Article 19(3) to (7) shall apply to at least half of the members of the Supervi? sory Body minus one.


Point (b) of the second subparagraph of Article 19(2) shall apply to all the members of the Supervisory Body.
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*Article 21*

_Compliance programme and compliance officer_


1.	Member States shall ensure that transmission system opera? tors establish and implement a compliance  programme which sets out the measures taken in order to ensure that discriminatory conduct is excluded, and ensure that the compliance with that programme is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. It shall be subject to approval by the regulatory author? ity. Without prejudice to the powers of the national regulator, compliance with the program shall be independently monitored by a compliance officer.


2.	The compliance officer shall be appointed by the Supervi? sory Body, subject to the approval by the regulatory authority. The regulatory authority may refuse the approval of the compli? ance officer only for reasons of lack of independence or profes? sional capacity. The compliance officer may be a natural or legal person. \*Article 19(2) to (8) shall apply to the compliance officer.


3.	The compliance officer shall be in charge of:


(a)  monitoring    the   implementation   of   the    compliance programme;


(b)  elaborating an annual report, setting out the measures taken in order to implement the compliance programme and sub? mitting it to the regulatory authority;


(c)  reporting to the Supervisory Body and issuing recommenda?
tions on the compliance programme and its implementation;


(d)  notifying the regulatory authority on any substantial breaches with regard to the implementation of the compliance pro? gramme; and


(e)  reporting to the regulatory authority on any commercial and financial relations between the vertically integrated undertak? ing and the transmission system operator.



4.	The compliance officer shall submit the proposed decisions on the investment plan or on individual investments in the net? work to the regulatory authority. This shall occur at the latest when the management and/or the competent administrative body of the transmission system operator submits them to the Super? visory Body.


5.	Where the vertically integrated undertaking, in the general assembly or through the vote of the members of the Supervisory Body it has appointed, has prevented the adoption of a decision with the  effect of preventing or  delaying investments, which under the ten-year network development plan, was to be executed in the following three years, the compliance officer shall report this to the regulatory authority, which then shall act in accor? dance with \*Article 22.


6.	The conditions governing the mandate or the employment conditions of the compliance officer, including the duration of his mandate, shall be subject to approval by the regulatory authority. Those conditions shall ensure the independence of the compli? ance officer, including by providing it with all the resources nec? essary for fulfilling his duties. During his mandate, the compliance officer shall have no other professional position, responsibility or interest, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders.


7.	The compliance officer shall report regularly, either orally or in writing, to the regulatory authority and shall have the right to report regularly, either orally or in writing, to the Supervisory Body of the transmission system operator.


8.	The compliance officer may attend all meetings of the man? agement or  administrative bodies of the  transmission  system operator, and those of the  Supervisory  Body and the general assembly. The compliance officer shall attend all meetings that address the following matters:


(a)  conditions for access to the network, as defined in Regula? tion (EC) No 715/2009,  in particular regarding tariffs, third party  access services, capacity allocation  and  congestion management,   transparency,    balancing    and   secondary markets;


(b)  projects  undertaken  in  order  to  operate,  maintain  and develop the transmission system, including investments in new transport connections, in expansion of capacity and in optimisation of existing capacity;


(c)  energy purchases or sales necessary for the operation of the transmission system.


9.	The compliance officer shall monitor the compliance of the transmission system operator with \*Article 16.


10. 	The compliance officer shall have access to all  relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of his task.

11. 	After prior approval by the regulatory authority, the Super? visory Body may dismiss the compliance officer. It shall dismiss the compliance officer for reasons of lack of independence or pro? fessional capacity upon request of the regulatory authority.



12. 	The compliance officer shall have access to the offices of the transmission system operator without prior announcement.
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*Article 22*

_Network development and powers to make investment decisions_



1.	Every year, transmission system operators shall submit to the regulatory authority a ten-year network development  plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. That  network develop? ment plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply.

2.	The ten-year network development plan shall, in particular: (a)  indicate to market participants the main transmission infra?
structure that needs to be built or upgraded over the next ten
years;



(b)  contain all the investments already decided and identify new investments which have to be executed in the  next three years; and



(c)  provide for a time frame for all investment projects.



3.	When elaborating the ten-year network development plan, the transmission system operator shall make reasonable assump? tions about the evolution of the production, supply, consumption and exchanges with other countries, taking into account invest? ment plans for regional and Community-wide networks, as well as investment plans for storage and LNG regasification  facilities.



4.	The regulatory authority shall consult all actual or potential system users on the ten-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential system users may be required to substantiate such claims. The regulatory authority shall publish the result of the consultation process, in particular possible needs for investments.



5.	The regulatory authority shall examine whether the ten-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the non-binding Community-wide ten-year network development plan (Community-wide network development plan) referred to in



Article 8(3)(b) of Regulation (EC) No 715/2009.  If any  doubt arises as to the consistency with the Community-wide network development plan, the  regulatory  authority  shall consult the Agency. The regulatory authority may require the transmission system operator to amend its ten-year network development plan.


6.	The regulatory authority shall monitor  and evaluate  the implementation of the ten-year network development plan.


7.	In circumstances where the transmission system operator, other than for overriding reasons beyond its control, does not execute an investment, which, under the ten-year network devel? opment plan, was to be executed in the following three years, Member States shall ensure  that  the  regulatory authority  is required to take at least one of the following measures to ensure that the investment in question is made if such investment is still relevant on the basis of the most recent ten-year network devel? opment plan:


(a)  to require the transmission system operator to execute the investments in question;


(b)  to organise a tender procedure open to any investors for the investment in question; or


(c)  to oblige the transmission system operator to accept a capi? tal increase to finance the necessary investments and allow independent investors to participate in the capital.


Where the regulatory authority has made use of its powers under point (b) of the first subparagraph, it may oblige the transmission system operator to agree to one or more of the following:


(a)  financing by any third party;


(b)  construction by any third party;


(c)  building the new assets concerned itself; (d)  operating the new asset concerned itself.
The transmission system operator shall provide the investors with all information needed to realise the investment, shall connect new assets to the transmission network and shall generally make its best efforts to facilitate the implementation of the investment project.


The relevant financial arrangements shall be subject to approval by the regulatory authority.


8.	Where the regulatory authority has made use of its powers under the first subparagraph of paragraph 7, the relevant tariff regulations shall cover the costs of the investments in question.
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*Article 23*

_Decision-making powers regarding the connection of storage facilities, LNG regasification facilities and industrial customers to the transmission system_


1.	The transmission system operator shall establish and pub? lish transparent  and  efficient procedures and  tariffs  for non\- discriminatory connection of storage facilities, LNG regasification facilities and industrial customers to the  transmission system. Those procedures shall be subject to approval by the regulatory authority.


2.	The transmission system operator shall not be entitled to refuse the connection of a new storage facility, LNG regasification facility or industrial customer on the grounds of possible future limitations to  available network  capacities  or additional costs linked with necessary capacity increase. The transmission system operator shall ensure sufficient entry and exit capacity for the new connection.
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h2. CHAPTER  V

*{_}DISTRIBUTION AND SUPPLY{_}*
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*Article 24*

_Designation of distribution system operators_


Member States shall designate, or  shall require  undertakings which own or are responsible for distribution systems to desig? nate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic bal? ance, one or more distribution system operators and shall ensure that  those  operators  act in  accordance with \*Articles 25,  26 and 27.
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*Article 25*

_Tasks of distribution system operators_


1.	Each distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas, and for operating, maintain? ing and developing under economic conditions a secure, reliable and efficient system in its area, with due regard for the environ? ment and energy efficiency.


2.	In any event, the distribution system operator shall not dis? criminate between system users or classes of system users, par? ticularly in favour of its related undertakings.


3.	Each distribution system operator shall provide any other distribution, transmission, LNG, and/or storage system operator with sufficient information to ensure that the transport and stor? age of natural gas takes place in a manner compatible with the secure and efficient operation of the interconnected system.



4.	Each distribution system operator  shall provide  system users  with the  information  they need for efficient  access to, including use of, the system.


5.	Where a distribution system operator is responsible for bal? ancing the distribution system, rules adopted by it for that pur? pose  shall be  objective, transparent  and  non-discriminatory, including rules for the charging of system users for energy imbal? ance. Terms and conditions, including rules and tariffs, for the provision of such services by distribution system operators shall be  established  pursuant  to  a  methodology  compatible  with \*Article 41(6) in a non-discriminatory and cost-reflective way and shall be published.
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*Article 26*

_Unbundling of distribution system operators_


1.	Where the distribution system operator is part of a vertically integrated undertaking, it shall be independent at least in terms of its legal form, organisation and decision making from other activi? ties not relating to distribution. Those rules shall not create an obligation to separate the ownership of assets of the distribution system from the vertically integrated undertaking.


2.	In addition to the requirements under paragraph 1, where the distribution system operator is part of a vertically integrated undertaking, it shall be independent in terms of its organisation and decision-making from the other activities not related to dis? tribution. In order to achieve this, the following minimum crite? ria shall apply:


(a)  those persons responsible for the management of the distri? bution  system operator must not  participate in  company structures of the integrated natural gas undertaking respon? sible, directly or indirectly, for the day-to-day operation of the production, transmission and supply of natural gas;


(b)  appropriate measures must be taken to ensure that the pro? fessional interests of persons responsible for the management of the distribution system operator are taken into account in a  manner  that  ensures  that  they  are  capable of  acting independently;


(c)  the distribution system operator must have effective decision\- making rights, independent from the integrated natural gas undertaking, with respect to  assets  necessary to  operate, maintain or develop the  network.  In order to fulfil those tasks, the distribution system operator shall have at its dis? posal the  necessary resources including human, technical, financial and physical resources. This should not prevent the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets, regulated indi? rectly in accordance with \*Article 41(6) in a subsidiary are protected. In particular, this shall enable the parent company to  approve  the  annual  financial plan, or  any equivalent

instrument, of the distribution system operator and to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to  give instructions regarding day-to-day operations, nor  with respect to indi? vidual decisions concerning the construction or upgrading of distribution  lines, that  do  not  exceed the  terms  of  the approved financial plan, or any equivalent instrument; and



(d)  the distribution system operator must establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that obser? vance of it is adequately monitored.  The compliance pro? gramme shall set out the specific obligations of employees to meet that objective. An annual report, setting out the mea? sures taken, shall be submitted by the person or body respon? sible  for   monitoring   the  compliance  programme,  the compliance officer of the distribution system operator, to the regulatory authority referred to in \*Article 39(1) and shall be published. The compliance officer of the distribution system operator shall be fully independent and shall have access to all the  necessary information  of the  distribution system operator and any affiliated undertaking to fulfil his task.



3.	Where the distribution system operator is part of a vertically integrated undertaking, the Member States shall ensure that the activities of the distribution system operator are monitored by regulatory authorities or other competent bodies so that it can? not take advantage of its vertical integration to distort competi? tion.  In  particular,   vertically   integrated  distribution  system operators shall not, in their communication and branding, create confusion in respect of the separate identity of the supply branch of the vertically integrated undertaking.



4.	Member States may decide not to apply paragraphs 1,  2 and 3 to integrated natural gas undertakings serving less  than
100 000 connected customers.
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*Article 27*

_Confidentiality obligations of distribution system operators_



1.	Without prejudice to \*Article 30 or any other legal duty to disclose information, each distribution system operator shall pre? serve the confidentiality of commercially sensitive information obtained in the course of carrying out its business, and shall pre? vent information about its own activities which may be commer? cially advantageous from  being disclosed in a discriminatory manner.



2.	Distribution system operators shall not, in the context of sales or purchases of natural gas by related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
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*Article 28*

_Closed distribution systems_


1.	Member States may provide for national regulatory authori? ties or other competent authorities to classify a system which dis? tributes   gas   within   a   geographically   confined   industrial, commercial or shared services site and does not, without preju? dice to paragraph 4, supply household customers, as a closed dis? tribution system if:


(a)  for specific technical or safety reasons, the operations or the production process of the users of that system are integrated; or


(b)  that system distributes gas primarily to the owner or opera?
tor of the system or to their related undertakings.


2.	Member States may provide for national regulatory authori? ties to exempt the operator of a closed distribution system from the requirement under \*Article 32(1) that tariffs, or the method? ologies underlying their calculation, are approved prior to their entry into force in accordance with \*Article 41.


3.	Where an exemption is granted under paragraph 2,  the applicable tariffs, or the methodologies underlying their calcula? tion,  shall  be  reviewed  and  approved  in   accordance  with \*Article 41  upon  request by a user of  the  closed distribution system.


4.	Incidental use by  a  small number  of  households  with employment or similar associations with the owner of the distri? bution system and located within the area served by a closed dis? tribution   system  shall  not   preclude  an   exemption  under paragraph 2 being granted.
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*Article 29*

_Combined operator_


Article 26(1) shall not prevent the operation of a combined trans? mission, LNG, storage and distribution system operator provided that operator complies with \*Articles 9(1), or 14 and 15, or Chap? ter IV or falls under \*Article 49(6).
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h2. CHAPTER  VI

*{_}UNBUNDLING AND TRANSPARENCY  OF ACCOUNTS{_}*
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*Article 30*

_Right of access to accounts_


1.	Member States or any competent authority they designate, including the regulatory authorities referred to in \*Article 39(1) and the dispute settlement authorities referred to in \*Article 34(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas undertakings as set out in \*Article 31.

2.	Member States and any designated competent  authority, including the regulatory authorities referred to in \*Article 39(1) and the dispute settlement authorities, shall preserve the confiden? tiality of commercially sensitive information. Member States may provide for the disclosure of such information where this is nec? essary in order for the competent authorities to carry out their functions.
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*Article 31*

_Unbundling of accounts_



1.	Member States shall take the necessary steps to ensure that the accounts of natural gas undertakings are kept in accordance with paragraphs 2 to 5 of this \*Article. Where natural gas under? takings benefit from a derogation from this provision on the basis of Article 49(2) and (4), they shall at  least keep their internal accounts in accordance with this \*Article.



2.	Natural gas undertakings, whatever their system of owner? ship or legal form, shall draw up, submit to audit and publish their annual accounts in accordance with the rules of national law concerning the annual accounts of  limited liability companies adopted pursuant to the Fourth Council Directive 78/660/EEC of
25 July 1978 based on \*Article 44(2)(g) (*y) of the Treaty on the annual accounts of certain types of companies.
{footnote}OJ L 222, 14.8.1978, p. 11.{footnote}



Undertakings which are not legally obliged to publish their annual accounts shall keep a copy thereof at the disposal of the public at their head office.



3.	Natural gas undertakings shall, in their internal accounting, keep separate accounts for each of their transmission, distribu? tion, LNG and storage activities as they would be required to do if the activities in question were carried out by separate undertak? ings, with a view to avoiding discrimination, cross-subsidisation and distortion  of  competition. They shall also keep accounts, which may be consolidated, for other gas activities not relating to transmission, distribution, LNG and storage. Until 1 July 2007, they shall keep separate accounts for supply activities for eligible customers and supply activities for non-eligible customers. Rev? enue from ownership of the transmission or distribution network shall be specified in the accounts. Where appropriate, they shall keep consolidated accounts  for  other,  non-gas activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity.



4.	The audit, referred to in paragraph 2, shall, in particular, verify that  the  obligation to  avoid  discrimination  and  cross\- subsidies referred to in paragraph 3 is respected.


(*y) The title of Directive 78/660/EEC has been adjusted to take account of the renumbering of the \*Articles of the Treaty establishing the Euro? pean Community in  accordance with \*Article 12  of the Treaty of Amsterdam; the original reference was to \*Article 54(3)(g).





5.	Undertakings shall specify in their internal accounting the rules for the allocation of assets and liabilities, expenditure and income as well as for depreciation, without prejudice to nation? ally applicable accounting rules, which they follow in drawing up the separate accounts referred to in paragraph 3. Those internal rules may be amended only in exceptional cases. Such amend? ments shall be mentioned and duly substantiated.


6.	The annual accounts shall indicate in notes any transaction of a certain size conducted with related undertakings.
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h2. CHAPTER  VII

*{_}ORGANISATION OF ACCESS TO THE SYSTEM{_}*
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*Article 32*

_Third-party access_


1.	Member States shall ensure the implementation of a system of third party access to the transmission and distribution system, and LNG facilities based on published tariffs, applicable to all eli? gible customers, including  supply  undertakings, and  applied objectively and without  discrimination between system users. Member States shall ensure that those tariffs, or the methodolo? gies underlying their calculation are approved prior to their entry into force in accordance with \*Article 41 by a regulatory authority referred to in \*Article 39(1) and that those tariffs --- and the meth? odologies, where only methodologies are approved --- are pub? lished prior to their entry into force.


2.	Transmission system operators shall, if necessary for  the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.


3.	The provisions of this Directive shall not prevent the con? clusion of long-term contracts in so far as they comply with Com? munity competition rules
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*Article 33*

_Access to storage_


1.	For the  organisation of access to  storage facilities  and linepack when technically and/or economically necessary for pro? viding efficient access to the system for the supply of customers, as well as for the organisation of access to ancillary services, Mem? ber States may choose either or both of the procedures referred to in paragraphs 3 and 4. Those procedures shall operate in accor? dance with objective, transparent and non-discriminatory criteria.


The regulatory authorities where Member States have so provided or Member States shall define and publish criteria according to which  the  access regime applicable to  storage facilities and

linepack may be determined. They shall make public, or oblige storage and transmission system operators to make public, which storage facilities, or which parts of those storage facilities, and which linepack is offered under the different procedures referred to in paragraphs 3 and 4.



The obligation referred to in the second sentence of the second subparagraph shall be without prejudice to the right of choice granted to Member States in the first subparagraph.



2.	The provisions of paragraph 1 shall not apply to ancillary services and temporary storage that are related to LNG facilities and are necessary for the re-gasification process and subsequent delivery to the transmission system.



3.	In the case of negotiated access, Member States or, where Member States have so provided, the regulatory authorities shall take the necessary measures for natural gas undertakings and eli? gible customers either inside or outside the territory covered by the interconnected system to be able to negotiate access to stor? age facilities and linepack, when technically and/or economically necessary for providing efficient access to the system, as well as for the organisation of access to other ancillary services. The par? ties shall be obliged to negotiate access to storage, linepack and other ancillary services in good faith.



Contracts for access to storage, linepack and other ancillary ser? vices shall be negotiated with the relevant storage system opera? tor or natural gas undertakings. The regulatory authorities where Member States have so provided or Member States shall require storage system operators and natural gas undertakings to publish their main commercial conditions for the use of storage, linepack and other ancillary services by 1 January 2005 and on an annual basis every year thereafter.



When developing the conditions referred to in the second sub? paragraph, storage operators and natural gas undertakings shall consult system users.



4.	In the case of regulated access, the regulatory authorities where Member States have so provided or Member States shall take the necessary measures to give natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system a right to access to storage, linepack and other  ancillary  services, on  the basis of published tariffs and/or other terms and obligations for use of that storage and linepack,  when technically and/or  economically necessary for providing efficient access to the system, as well as for the organi? sation of access to other ancillary services. The regulatory authori? ties where Member States have so  provided or Member States shall consult system users when developing those tariffs or the methodologies for those tariffs. The right of access for eligible customers may be given by enabling them to enter into supply contracts with competing natural gas undertakings other than the owner and/or operator of the system or a related undertaking.
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*Article 34*

_Access to upstream pipeline networks_




1.	Member States shall take the necessary measures to ensure that natural gas undertakings and eligible customers, wherever they are located, are able to obtain access to upstream pipeline networks, including facilities supplying technical services inciden? tal to such access, in accordance with this \*Article, except for the parts of such networks and facilities which are used for local pro? duction operations at the site of a field where the gas is produced. The measures shall be notified to the Commission in accordance with the provisions of Article 54.




2.	The access referred to in paragraph 1 shall be provided in a manner determined by the Member State in accordance with the relevant legal instruments. Member States shall apply the objec? tives of fair and open access, achieving a competitive market in natural gas and avoiding any abuse of a dominant position, tak? ing into  account security and  regularity of supplies, capacity which is or can reasonably be made available, and environmental protection. The following matters may be taken into account:




(a)  the need to refuse access where there is an incompatibility of technical   specifications  which   cannot    reasonably    be overcome;




(b)  the need to avoid difficulties which cannot reasonably  be overcome and  could prejudice the  efficient,  current  and planned future production of hydrocarbons, including that from fields of marginal economic viability;




(c)  the need to respect the duly substantiated reasonable needs of the owner or operator of the upstream pipeline network for the transport and processing of gas and the interests of all other users of the upstream pipeline network or relevant pro? cessing or handling facilities who may be affected; and




(d)  the need to apply their laws and administrative procedures, in conformity with Community law, for the grant of autho? risation for production or upstream development.




3.	Member States shall ensure that they have in place dispute\- settlement arrangements, including an authority independent of the parties with access to all relevant information, to enable dis? putes relating to  access to  upstream pipeline networks to  be settled expeditiously,  taking into account the criteria in para? graph 2 and the  number of parties which may be involved in negotiating access to such networks.

4.	In the event of cross-border disputes, the dispute-settlement arrangements for the Member State having jurisdiction over the upstream pipeline network which refuses access shall be applied. Where, in cross-border disputes, more than one Member State covers the network concerned, the Member States concerned shall consult each other with a view to ensuring that the provisions of this Directive are applied consistently.
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*Article 35*

_Refusal of access_


1.	Natural gas undertakings may refuse access to the system on the basis of lack of capacity or where the access to the system would prevent them from carrying out the public service obliga? tions referred to in \*Article 3(2) which are assigned to them or on the basis of serious economic and financial difficulties with take\- or-pay contracts having regard to the criteria and procedures set out in \*Article 48 and the alternative chosen by the Member State in accordance with paragraph 1 of that \*Article. Duly substanti? ated reasons shall be given for any such a refusal.


2.	Member States may take the measures necessary to ensure that the natural gas undertaking refusing access to the system on the basis of lack of capacity or a lack of connection makes the necessary enhancements as far as it is economic to do so or when a potential customer is willing to pay for them. In circumstances where Member States apply \*Article 4(4), Member States shall take such measures.
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*Article 36*

_New infrastructure_


1.	Major new gas infrastructure,  i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 9, 32, 33 and 34 and \*Article 41(6), (8) and (10) under the following conditions:


(a)  the investment must enhance competition in gas supply and enhance security of supply;


(b)  the level of risk attached to the investment must be such that the investment would not take place unless an exemption was granted;


(c)  the infrastructure must be owned by a natural or legal per? son which is separate at least in terms of its legal form from the system operators in whose systems that  infrastructure will be built;


(d)  charges must be levied on users of that infrastructure; and


(e)  the exemption must not be detrimental to competition or the effective functioning of the internal market in natural gas, or the efficient functioning of the regulated system to which the infrastructure is connected.



2.	Paragraph 1  shall also apply to  significant increases  of capacity in existing infrastructure and to modifications of such infrastructure which enable the development of new sources of gas supply.



3.	The regulatory authority referred to in h2. CHAPTER VIII may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.



4.	Where the infrastructure in question is located in the terri? tory of more than one Member State, the Agency may submit an advisory opinion to the regulatory authorities of  the Member States concerned, which may be used as a basis for their decision, within two  months  from the  date on  which the  request for exemption was received by the last of those regulatory authorities.



Where all the  regulatory authorities concerned agree on  the request for exemption within six months of the date on which it was received by the last of the regulatory authorities, they shall inform the Agency of their decision.



The Agency shall exercise the tasks conferred on the regulatory authorities of the Member States concerned by the present \*Article:



(a)  where all regulatory authorities concerned have not been able to reach an agreement within a period of six months from the date on which the request for exemption was received by the last of those regulatory authorities; or



(b)  upon   a  joint  request  from  the  regulatory   authorities concerned.



All regulatory authorities concerned may, jointly, request that the period referred to  in  point  (a) of the  third  subparagraph  is extended by up to three months.



5.	Before taking a decision, the Agency shall consult the rel?
evant regulatory authorities and the applicants.



6.	An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with signifi? cantly increased capacity.



In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regard? ing the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.

Before granting an  exemption, the  regulatory authority  shall decide upon the rules and mechanisms for management and allo? cation of capacity. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in con? tracting capacity before capacity allocation in the new infrastruc? ture, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obliga? tion to offer unused  capacity on the market, and shall require users of the infrastructure to be entitled to trade their contracted capacities on the secondary market. In its assessment of the cri? teria referred to in points (a), (b) and (e) of paragraph 1, the regu? latory authority shall take into account the results of that capacity allocation procedure.



The exemption decision, including any conditions referred to in the second subparagraph of this paragraph, shall be duly reasoned and published.



7.	Notwithstanding paragraph 3, Member States may provide that their regulatory authority or the Agency, as the case may be, shall submit, for the purposes of the formal decision, to the rel? evant body in the Member State its opinion on the request for an exemption. That opinion shall  be published together with the decision.



8.	The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the com? petent authority to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:



(a)  the detailed reasons on the basis of which the  regulatory authority, or Member State, granted or refused the exemp? tion together with a reference to paragraph 1 including the relevant point or points of  that paragraph on which such decision is based, including the financial information justify? ing the need for the exemption;



(b)  the analysis undertaken of the effect on competition and the effective functioning of the internal market in  natural gas resulting from the grant of the exemption;



(c)  the reasons for the time period and the share of the  total capacity of the gas infrastructure in question for which the exemption is granted;



(d)  in case the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; and



(e)  the contribution of the infrastructure to the diversification of gas supply.



9.	Within a period of two months from the day following the receipt of a notification, the Commission may take a  decision requiring the regulatory authority to amend or withdraw the deci? sion to  grant an exemption. That  two-month  period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete infor? mation. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority.


Where the  requested information  is not  provided within  the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commis? sion and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.


The regulatory authority shall comply with the Commission deci? sion to  amend or withdraw the exemption decision  within a period  of  one  month   and  shall  inform  the   Commission accordingly.


The Commission shall preserve the confidentiality of commer?
cially sensitive information.


The Commission’s approval of an exemption decision shall lose its effect two years from its adoption in the event that construc? tion of the infrastructure has not yet started, and five years from its adoption in the event that the infrastructure has not become operational unless the Commission decides that any delay is due to major obstacles beyond control of the person to whom the exemption has been granted.


10. 	The Commission may adopt Guidelines for the application of the conditions laid down in paragraph 1 of this \*Article and to set out the procedure to be followed for the application of para? graphs 3, 6, 8 and 9 of this \*Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in \*Article 51(3).
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*Article 37*

_Market opening and reciprocity_


1.	Member States shall ensure that  the  eligible  customers comprise:


(a)  until 1 July 2004, eligible customers as specified in \*Article 18 of Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas
{footnote}OJ L 204, 21.7.1998, p. 1.{footnote}
. Member States shall pub\- lish, by 31 January each year, the criteria for the definition of those eligible customers;


(b)  from 1 July 2004, all non-household customers; (c)  from 1 July 2007, all customers.
2.	To avoid imbalance in the opening of the gas markets:


(a)  contracts for the supply with an eligible customer in the sys? tem of another Member State shall not be prohibited if the customer is eligible in both systems involved; and


(b)  where transactions as described in  point  (a) are  refused because the customer is eligible in only one of the two sys? tems, the Commission may, taking into account the situation in the market and the common interest, oblige the refusing party to execute the requested supply, at the request of one of the Member States of the two systems.
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*Article 38*

_Direct lines_

1.	Member States shall take the necessary measures to enable: (a)  natural gas undertakings established within their territory to
supply the eligible customers through a direct line; and


(b)  any such eligible customer within their territory to be sup?
plied through a direct line by natural gas undertakings.


2.	In  circumstances where an  authorisation  (for  example, licence, permission, concession, consent or approval) is required for the construction or operation of  direct lines, the Member States or any competent authority they designate shall lay down the criteria for the grant of authorisations for the construction or operation of such lines in their territory. Those criteria shall be objective, transparent and non-discriminatory.


3.	Member States may issue an authorisation to construct a direct line subject either to the refusal of system access on the basis of Article 35 or to the opening of a dispute-settlement procedure under \*Article 41.
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h2. CHAPTER  VIII

*{_}NATIONAL REGULATORY AUTHORITIES{_}*
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*Article 39*

_Designation and independence of regulatory authorities_


1.	Each Member State shall designate a single national regula?
tory authority at national level.



2.	Paragraph 1 of this \*Article shall be without prejudice to the designation of other regulatory authorities at regional level within Member States, provided that there is one senior representative for  representation  and  contact  purposes  at  Community level within the Board of Regulators of the Agency in accordance with \*Article 14(1) of Regulation (EC) No 713/2009.



3.	By way of derogation from paragraph 1 of this \*Article, a Member State may designate regulatory authorities for small sys? tems on a geographically separate region whose consumption, in
2008, accounted for less than 3 % of the total consumption of the Member State of which it is part. That derogation shall be with? out prejudice to the appointment of one senior representative for representation and contact purposes at Community level within the  Board of  Regulators of  the  Agency in  compliance with \*Article 14(1) of Regulation (EC) No 713/2009.



4.	Member States shall guarantee the independence of  the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and related legislation, the regulatory authority:



(a)  is legally distinct and functionally independent from  any other public or private entity;



(b)  ensures that  its staff and the  persons responsible for  its management:



\(i) act independently from any market interest; and



(ii)   do not seek or take direct instructions from any govern? ment or other public or private entity when carrying out the regulatory tasks. That requirement is without preju? dice to close cooperation, as appropriate, with other rel? evant national authorities or to general policy guidelines issued by the government not related to the regulatory powers and duties under \*Article 41.



5.	In order  to  protect  the  independence of the  regulatory authority, Member States shall in particular ensure that:



(a)  the  regulatory authority  can take autonomous  decisions, independently from any political body, and  has separate annual budget allocations, with autonomy in the implemen? tation  of the allocated budget, and  adequate human  and financial resources to carry out its duties; and



(b)  the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top man? agement are appointed for a fixed term of five up to seven years, renewable once.

In regard to point (b) of the first subparagraph, Member States shall ensure an appropriate rotation scheme for the board or the top management. The members of the board or, in the absence of a board, members of the top management may be relieved from office during their term only if they no longer fulfil the conditions set out in this \*Article or have been guilty of misconduct under national law.
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*Article 40*

_General objectives of the regulatory authority_




In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in \*Article 41, in close consultation with other relevant national authorities, including competition authori? ties, as appropriate, and without prejudice to their competencies:




(a)  promoting, in close cooperation with the Agency, regulatory authorities of other Member States and the Commission, a competitive, secure and environmentally sustainable internal market in natural gas within the Community, and effective market opening for all customers and suppliers in the Com? munity, and ensuring appropriate conditions for the effective and reliable operation of gas networks, taking into account long-term objectives;




(b)  developing competitive and properly functioning  regional markets within the Community in view of the achievement of the objectives referred to in point (a);




(c)  eliminating restrictions on trade in natural gas between Mem? ber States, including developing appropriate  cross-border transmission capacities to meet demand and enhancing the integration of national markets which may facilitate natural gas flow across the Community;




(d)  helping to achieve, in the most cost-effective way, the devel? opment of secure, reliable and efficient non-discriminatory systems that are consumer oriented, and promoting system adequacy and, in line with general energy policy objectives, energy efficiency as well as the integration of large and small scale production of gas from renewable energy sources and distributed production in both transmission and distribution networks;




(e)  facilitating access to the network for new production capac? ity, in particular removing barriers that could prevent access for new market entrants and of gas from renewable energy sources;



(f)     ensuring that system operators and system users are granted appropriate incentives, in both the short and the long term, to  increase efficiencies in system  performance and foster market integration;


(g)  ensuring that customers benefit through the efficient func? tioning of their national market, promoting effective compe? tition and helping to ensure consumer protection;


(h)  helping to achieve high standards of public service for natu? ral gas, contributing to the protection of vulnerable custom? ers and contributing to the compatibility of necessary data exchange processes for customer switching.
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*Article 41*

_Duties and powers of the regulatory authority_


1.	The regulatory authority shall have the following duties:


(a)  fixing or approving, in accordance with transparent criteria, transmission or distribution tariffs or their methodologies;


(b)  ensuring compliance of transmission and distribution system operators, and where relevant, system owners, as well as of any natural gas undertakings, with their obligations under this Directive and  other  relevant  Community legislation, including as regards cross-border issues;


(c)  cooperating in regard to cross-border issues with the regula? tory authority or authorities of the Member States concerned and with the Agency;


(d)  complying with, and implementing, any relevant legally bind?
ing decisions of the Agency and of the Commission;


(e)  reporting annually on its activity and the fulfilment of  its duties to the relevant authorities of the Member States, the Agency and the Commission. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this \*Article;


(f)     ensuring that there are no cross-subsidies between transmis?
sion, distribution, storage, LNG and supply activities;


(g)  monitoring  investment plans of the  transmission  system operators, and providing in its annual report an assessment of the investment plans of the transmission system operators as regards their consistency with the Community-wide net? work development plan referred to in \*Article 8(3)(b) of Regu? lation (EC)  No 715/2009;  such assessment may include recommendations to amend those investment plans;

(h)  monitoring compliance with and reviewing the past perfor? mance of network security and reliability rules and setting or approving standards and requirements for quality of service and supply or contributing thereto together with other com? petent authorities;



\(i) monitoring the level of transparency, including of wholesale prices, and ensuring compliance of natural gas undertakings with transparency obligations;



(j)     monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on natu? ral gas exchanges, prices for household customers including prepayment systems, switching  rates, disconnection rates, charges for and the execution of maintenance services and complaints by household customers, as well as any distortion or restriction of competition, including providing any rel? evant information, and bringing any relevant cases to the rel? evant competition authorities;



(k)  monitoring the occurrence of restrictive contractual  prac? tices, including exclusivity clauses which may prevent large non-household customers from contracting simultaneously with more than one supplier or restrict their choice to do so, and, where appropriate, informing the national competition authorities of such practices;



(l)     respecting contractual freedom with regard to interruptible supply contracts as well as with regard to long-term contracts provided that they are compatible with Community law and consistent with Community policies;



(m) monitoring the time taken by transmission and distribution system operators to make connections and repairs;



\(n) monitoring and reviewing the access conditions to storage, linepack  and  other  ancillary services as  provided for  in \*Article 33. In the event that the access regime to storage is defined according to \*Article 33(3), that task shall exclude the reviewing of tariffs;



(o)  helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex I, are effective and enforced;



(p)  publishing recommendations, at least annually, in relation to compliance of supply prices with \*Article 3, and providing those to the competition authorities, where appropriate;



(q)  ensuring access to customer consumption data, the provision for optional use, of an easily understandable harmonised for? mat  at  national  level for consumption  data and  prompt access for all customers to  such  data  under point  (h) of Annex I;



(r)   monitoring the implementation of rules relating to the roles and responsibilities of transmission system operators, distri? bution system operators, suppliers and customers and other market parties pursuant to Regulation (EC) No 715/2009;


(s)   monitoring the correct application of the criteria that deter? mine whether a storage facility falls under \*Article 33(3) or (4); and


(t)   monitoring the implementation of safeguards measures as referred to in \*Article 46;


(u)  contributing to the compatibility of data exchange processes for the most important market processes at regional level.


2.	Where a Member State has so provided, the  monitoring duties set out in paragraph 1 may be carried out by other authori? ties than the regulatory authority. In such a case, the information resulting from such monitoring shall  be made available to the regulatory authority as soon as possible.


While preserving their independence, without prejudice to their own specific competencies and consistent with the principles of better regulation, the regulatory authority shall, as appropriate, consult transmission system operators and, as appropriate, closely cooperate with other relevant national authorities when carrying out the duties set out in paragraph 1.


Any approvals given by a regulatory authority or the  Agency under this Directive are without prejudice to any duly justified future use of its powers by the regulatory authority under this \*Article or to any penalties imposed by other relevant authorities or the Commission.


3.	In addition to the duties conferred upon  it under  para? graph 1 of this \*Article, when an independent system operator has been designated under \*Article 14, the regulatory authority shall:


(a)  monitor the transmission system owner’s and the indepen? dent  system operator’s compliance with their  obligations under this \*Article, and issue penalties for non compliance in accordance with paragraph 4(d);


(b)  monitor the relations and communications between the inde? pendent system operator and the transmission system owner so as to ensure compliance of the independent system opera? tor with its obligations, and in particular approve contracts and act as a dispute settlement authority between the inde? pendent system operator and the transmission system owner in respect of any complaint submitted by either party pursu? ant to paragraph 11;


(c)  without prejudice to the procedure under \*Article 14(2)(c), for the first ten-year network development plan,  approve the investments planning and the multi-annual network devel? opment plan presented annually by the independent system operator;

(d)  ensure that network access tariffs collected by the indepen? dent system operator include remuneration for the network owner  or  network  owners, which  provides  for adequate remuneration of the network assets and of any new invest? ments made therein, provided they are economically and effi? ciently incurred; and



(e)  have the powers to carry out inspections, including unan? nounced inspections, at the premises of transmission system owner and independent system operator.



4.	Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraph 1, 3 and 6 in an efficient and expeditious man? ner. For this purpose, the regulatory authority shall have at least the following powers:



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



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



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



(d)  to impose effective, proportionate and dissuasive penalties on natural gas undertakings not complying with their obliga? tions under this Directive or any relevant legally binding deci? sions of the regulatory authority or of  the  Agency, or to propose to a competent court to impose such penalties. This shall include the power to impose or propose the imposition of penalties of up to 10 % of the annual turnover of the trans? mission system operator or of up to 10 % of the annual turn? over  of   the   vertically  integrated  undertaking  on   the transmission system operator or on the vertically integrated undertaking, as the case may be, for non compliance with their respective obligations pursuant to this Directive; and



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



5.	In addition to the duties and powers conferred on it under paragraphs 1 and 4 of this \*Article, when a transmission system operator has been designated in accordance with h2. CHAPTER IV, the regulatory authority shall be granted at least the following duties and powers:



(a)  to issue penalties in accordance with paragraph 4(d) for dis? criminatory behaviour in favour of the vertically integrated undertaking;


(b)  to monitor communications between the transmission sys? tem operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator with its obligations;


(c)  to act as dispute settlement authority between the vertically integrated undertaking and the transmission system opera? tor  in  respect of  any  complaint  submitted  pursuant  to paragraph 11;


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


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


(f)     to request justification from the vertically integrated under? taking when notified by the compliance officer in accordance with  \*Article 21(4). Such justification shall  in  particular include evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;


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


(h)  to  assign all or specific tasks of the transmission  system operator to an independent system operator  appointed in accordance with \*Article 14 in case of a persistent breach by the transmission system operator of its obligations under this Directive, in particular in case  of repeated discriminatory behaviour  to   the   benefit   of  the   vertically  integrated undertaking.


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


(a)  connection and access to national networks, including trans? mission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities. Those tariffs or method? ologies shall allow the necessary investments in the networks and LNG facilities to be  carried out in a manner allowing those investments to ensure the viability of the networks and LNG facilities;


(b)  the provision of balancing services which shall be performed in  the  most  economic manner  and  provide  appropriate incentives for network users to balance their input and off\- takes. The balancing services shall be provided in a fair and non-discriminatory manner and be based on objective crite? ria; and

(c)  access to cross-border infrastructures, including the proce? dures  for   the   allocation  of   capacity  and   congestion management.



7.	The methodologies or the terms and conditions referred to in paragraph 6 shall be published.



8.	In fixing or approving the tariffs or methodologies and the balancing services, the regulatory authorities shall  ensure that transmission and distribution system operators are granted appro? priate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities.



9.	The regulatory authorities shall monitor congestion man? agement of national gas transmission networks including inter? connectors, and the implementation of congestion management rules. To that  end, transmission  system operators  or  market operators  shall  submit  their  congestion  management  rules, including capacity allocation, to the national regulatory authori? ties. National regulatory authorities may request amendments to those rules.



10. 	Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this \*Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to storage is defined according to \*Article 33(3), that task shall exclude the modification of tariffs. In the event of delay in the fixing of transmission and distribution tariffs,  regulatory authorities shall have the  power  to  fix or approve provisional transmission and distribution tariffs or meth? odologies and to decide on the appropriate compensatory mea? sures if the final tariffs or  methodologies deviate from those provisional tariffs or methodologies.



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



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



13. 	Member States  shall  create  appropriate  and  efficient mechanisms for regulation, control and  transparency so as to avoid any abuse of a dominant position, in particular to the det? riment of consumers, and any predatory behaviour. Those mecha? nisms shall take account of the provisions of the Treaty, and in particular \Article 82 thereof.



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



15. 	Complaints referred to in paragraphs 11 and 12 shall be without prejudice to the exercise of rights of appeal under Com? munity or national law.



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



17. 	Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
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*Article 42*

_Regulatory regime for cross-border issues_



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



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



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



(b)  coordinate the development of all network codes for the rel? evant transmission system operators and other market actors; and

(c)  coordinate the development of the rules governing the man?
agement of congestion.



3.	National regulatory authorities shall have the right to enter into cooperative arrangements with each other to foster regula? tory cooperation.



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



5.	The Commission may adopt Guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with the Agency. Those measures, designed to amend non\- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scru? tiny referred to in \*Article 51(3).
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*Article 43*

_Compliance with the Guidelines_



1.	Any regulatory authority and the Commission may request the opinion of the Agency on the compliance of a decision taken by a regulatory authority with the Guidelines referred to in this Directive or in Regulation (EC) No 715/2009.



2.	The Agency shall provide its opinion  to  the  regulatory authority which has requested it or to the Commission, respec? tively, and to the regulatory authority which has taken the deci? sion in question within three months from the date of receipt of the request.



3.	Where the regulatory authority which has taken the deci? sion does not  comply with the Agency’s opinion  within four months from the date of receipt of that opinion, the Agency shall inform the Commission accordingly.



4.	Any regulatory authority  may inform  the  Commission where it considers that a decision relevant for cross border-trade taken by another regulatory authority does not comply with the Guidelines referred to  in this  Directive  or  in Regulation (EC) No 715/2009  within two months from the date of that decision.



5.	Where the Commission, within two months of having been informed by the Agency in accordance with paragraph 3, or by a regulatory authority in accordance with paragraph 4, or on its own initiative, within three months from the date of the decision, finds that the decision of a regulatory  authority raises serious doubts as to its compatibility with the Guidelines referred to in this Directive or in Regulation (EC) No 715/2009,  the Commis? sion may decide to examine the case further. In such a case, it shall invite the regulatory authority and the parties to the pro? ceedings before the regulatory authority to submit observations.



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



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



(b)  to require the regulatory authority concerned to withdraw its decision on the basis that the Guidelines have not been com? plied with.



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



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



9.	The Commission may adopt  Guidelines setting out  the details of the procedure to be followed by the regulatory authori? ties, the Agency and the Commission as regards the compliance of decisions taken by regulatory authorities with the Guidelines referred to in this \*Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the  regulatory procedure with scrutiny referred to in \*Article 51(3).
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*Article 44*

_Record keeping_



1.	Member States shall require supply undertakings to keep at the disposal of the national authorities, including the regulatory authority, the national competition authorities and the Commis? sion, for the fulfilment of their tasks, for at least five years, the rel? evant data relating to all transactions in gas supply contracts and gas derivatives with wholesale customers and transmission sys? tem operators as well as storage and LNG operators.



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



3.	The regulatory authority may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This paragraph shall not apply to  information  about  financial instruments  which fall within the scope of Directive 2004/39/EC.

4.	To ensure the uniform application of this \*Article, the Com? mission may adopt Guidelines which define the  methods and arrangements for record keeping as well as the form and content of the data that shall be kept. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in  accordance with the regulatory procedure with scrutiny referred to in \*Article 51(3).


5.	With respect to transactions in gas derivatives of  supply undertakings with wholesale customers and transmission system operators as well as storage and LNG operators, this \*Article shall apply only once the  Commission  has adopted the Guidelines referred to in paragraph 4.


6.	The provisions of this \*Article shall not create  additional obligations towards the authorities referred to in paragraph 1 for entities falling within the scope of Directive 2004/39/EC.


7.	In the event that the authorities referred to in paragraph 1 need access to data kept by entities falling within the scope of Directive 2004/39/EC,  the  authorities responsible  under  that Directive shall provide them with the required data.
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h2. CHAPTER  IX

*{_}RETAIL MARKETS{_}*
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*Article 45*

*{_}Retail markets{_}*


In order to facilitate the emergence of well functioning and trans? parent retail markets in the Community, Member  States shall ensure that the roles and responsibilities of transmission system operators, distribution system operators, supply undertakings and customers and if necessary other market parties are defined with respect to contractual arrangements, commitment to customers, data exchange and settlement rules, data ownership and metering responsibility.


Those rules shall be made public, be designed with the aim to facilitate customers’ and suppliers’ access to networks and they shall be subject to review by the regulatory authorities or other relevant national authorities.
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h2. CHAPTER  X

*{_}FINAL PROVISIONS{_}*
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*Article 46*

_Safeguard measures_


1.	In the event of a sudden crisis in the energy market or where the physical safety or security of persons, apparatus or installa? tions or system integrity is threatened, a Member State may tem? porarily take the necessary safeguard measures.



2.	Such measures shall cause the least possible disturbance to the functioning of the internal market and shall be no wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.


3.	The Member State concerned shall, without delay,  notify those measures to the other Member States, and to the Commis? sion, which may decide that the Member State concerned must amend or abolish such measures, insofar as they distort compe? tition and adversely affect trade in a manner which is at variance with the common interest.
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*Article 47*

_Level playing field_


1.	Measures that the Member States may take pursuant to this Directive in order to ensure a level playing field shall be compat? ible with the Treaty, notably \*Article 30 thereof, and with the leg? islation of the Community.


2.	The measures referred to in paragraph 1 shall be propor? tionate, non-discriminatory and transparent. Those measures may be put into effect only following the notification to and approval by the Commission.


3.	The Commission shall act on the notification referred to in paragraph 2 within two months of the receipt of the notification. That period shall begin on the day following receipt of the com? plete information. In the event that the Commission has not acted within that two-month period, it  shall be deemed not to have raised objections to the notified measures.
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*Article 48*

_Derogations in relation to take-or-pay commitments_


1.	If a natural gas undertaking encounters, or  considers  it would  encounter,  serious economic and  financial  difficulties because of its take-or-pay commitments accepted in one or more gas-purchase contracts, it may send an application for a tempo? rary derogation from \*Article 32 to the Member State concerned or  the  designated competent  authority. Applications shall, in accordance with the choice of Member States, be presented on a case-by-case basis either before or after refusal of access to the sys? tem. Member States may also give the natural gas undertaking the choice of presenting an application either before or after refusal of  access to the system. Where a natural gas undertaking has refused access, the application shall be presented without delay. The applications shall be accompanied by all relevant information on the nature and extent of the problem and on the efforts under? taken by the natural gas undertaking to solve the problem.


If alternative solutions are not reasonably available, and taking into account paragraph 3, the Member State or the designated competent authority may decide to grant a derogation.

2.	The Member State, or the designated competent authority, shall notify the Commission without delay of its decision to grant a derogation, together with all the  relevant information with respect to the derogation. That information may be submitted to the Commission in an aggregated form, enabling the Commission to reach a well-founded decision. Within eight weeks of receipt of that notification, the Commission may request that the Member State or the designated competent authority concerned amend or withdraw the decision to grant a derogation.


If the Member State or the designated competent authority con? cerned does not comply with that request within a period of four weeks, a final decision shall be taken expeditiously in accordance with the advisory procedure referred to in \*Article 51(2).


The Commission shall preserve the confidentiality of commer?
cially sensitive information.


3.	When  deciding on  the  derogations referred to  in  para? graph 1, the Member State, or the designated competent author? ity, and the Commission shall take into account, in particular, the following criteria:


(a)  the objective of achieving a competitive gas market;


(b)  the need to fulfil public-service obligations and to  ensure security of supply;


(c)  the position of the natural gas undertaking in the gas market and the actual state of competition in that market;


(d)  the seriousness of the economic and financial  difficulties encountered by natural gas undertakings and transmission undertakings or eligible customers;


(e)  the dates of signature and terms of the contract or contracts in question, including the extent to which they allow for mar? ket changes;


(f)     the efforts made to find a solution to the problem;


(g)  the extent to which, when accepting the take-or-pay commit? ments in question, the undertaking could reasonably have foreseen, having regard to the provisions of this Directive, that serious difficulties were likely to arise;


(h)  the level of connection of the system with other systems and the degree of interoperability of those systems; and


\(i) the effects the granting of a derogation would have on the correct application of this Directive as regards the smooth functioning of the internal market in natural gas.



A decision on a request for a derogation concerning take-or-pay contracts concluded before 4 August 2003 should not lead to a situation in which it is impossible to  find economically viable alternative outlets. Serious difficulties shall in any case be deemed not to exist when the sales of natural gas do not fall below the level of minimum offtake guarantees contained in gas-purchase take-or-pay  contracts or in so far as the relevant gas-purchase take-or-pay contract can be adapted or the natural gas undertak? ing is able to find alternative outlets.


4.	Natural gas undertakings which have not been granted a derogation as referred to in paragraph 1 of this \*Article shall not refuse, or shall no longer refuse, access to the system because of take-or-pay commitments accepted in a gas purchase contract. Member States shall ensure  that  the  relevant provisions of Articles 32 to 44 are complied with.


5.	Any derogation granted under the above provisions shall be duly substantiated. The Commission shall publish the decision in the Official Journal of the European Union.


6.	The Commission shall, within 4 August 2008,  submit  a review report on the experience gained from the application of this \*Article, so as to allow the European Parliament and the Coun? cil to consider, in due course, the need to adjust it.
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*Article 49*

_Emergent and isolated markets_


1.	Member States not directly connected to the interconnected system of any other Member State and  having only one main external supplier may derogate from \*Articles 4, 9, 37 and/or 38. A supply undertaking having a market share of more than 75 % shall be considered to be a main supplier. Any such derogation shall automatically expire where at least one of the conditions referred to in this subparagraph no longer applies. Any such dero? gation shall be notified to the Commission.


Cyprus may derogate from \*Articles 4, 9, 37 and/or 38. Such dero? gation shall expire from the moment when Cyprus is not quali? fying as an isolated market.


\*Articles 4, 9, 37  and/or 38  shall not apply to Estonia,  Latvia and/or Finland until any of those Member States is directly con? nected to the interconnected system of any Member State other than Estonia, Latvia, Lithuania and Finland. This subparagraph is without prejudice to derogations under the first subparagraph of this paragraph.


2.	A Member State, qualifying as an emergent market, which, because of the implementation of this Directive, would experience substantial  problems  may  derogate  from  \*Articles 4  and  9, \*Article 13(1) and (3), \*Articles 14 and 24, \*Article 25(5), \*Articles 26,
31 and 32, \*Article 37(1) and/or \*Article 38. Such derogation shall automatically expire from the moment when the Member State no longer qualifies as an emergent market. Any such derogation shall be notified to the Commission.

Cyprus may derogate from \*Articles 4 and 9, \*Article 13(1) and (3), \*Articles 14  and  24,  \*Article 25(5), \*Articles 26,  31  and  32, \*Article 37(1) and/or \*Article 38. Such derogation shall expire from the  moment  when  Cyprus is not  qualifying  as  an  emergent market.



3.	On the date at which the derogation referred to in the first subparagraph of paragraph 2 expires, the definition of eligible customers shall result in an opening of the market equal to at least
33 %  of the total annual gas consumption of the national  gas market. Two years thereafter, \*Article 37(1)(b) shall  apply, and three   years  thereafter,  \*Article  37(1)(c)  shall   apply.  Until \*Article 37(1)(b) applies the Member State  referred to in para? graph 2 of this \*Article may decide not to apply \*Article 32 as far as ancillary services and temporary storage for the re-gasification process and its subsequent delivery to the transmission system are concerned.



4.	Where the implementation of this Directive would cause substantial problems in a geographically limited area of a Mem? ber State, in particular concerning the development of the trans? mission and major distribution infrastructure, and with a view to encouraging investments,  the Member State may apply to the Commission for a temporary derogation from \*Articles 4 and 9, \*Article 13(1) and (3), \*Articles 14 and 24, \*Article 25(5), \*Articles 26,
31  and 32, \*Article 37(1) and/or  \*Article 38  for  developments within that area.



5.	The Commission may grant the derogation referred to in paragraph 4, taking into account, in particular, the  following criteria:



---   the need for infrastructure investments, which would not be economic to operate in a competitive market environment,



---   the level and pay-back prospects of investments required,



---   the size and maturity of the gas system in the area concerned,



---   the prospects for the gas market concerned,



---   the geographical size and characteristics of the area or region concerned, and socioeconomic and demographic factors,



For gas infrastructure other  than  distribution  infrastructure,  a derogation may be granted only if no gas infrastructure has been established in the area or if gas infrastructure has been established for less than 10 years. The temporary derogation shall not exceed
10 years from the time gas is first supplied in the area.



For distribution infrastructure a derogation may be granted for a period not exceeding 20 years from when gas is first supplied through the said infrastructure in the area.



6.	\*Article 9 shall not apply to Cyprus, Luxembourg  and/or
Malta.


7.	The Commission shall inform the Member States of appli? cations made under paragraph 4 prior to taking a decision pur? suant   to   paragraph   5,   taking   into   account   respect   for confidentiality. That decision, as well as the derogations referred to in paragraphs 1 and 2, shall be published in the Official Journal of the European Union.


8.	Greece may derogate from \*Articles 4, 24, 25, 26, 32, 37 and/or 38 of this Directive for the geographical areas and time periods specified in the licences issued by it, prior to 15 March
2002 and in accordance with Directive 98/30/EC, for the devel? opment and exclusive exploitation of distribution  networks in certain geographical areas.
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*Article 50*

_Review procedure_


In the event that in the report referred to in \*Article 52(6), the Commission reaches the conclusion that, given the effective man? ner in which network access has been carried out in a Member State --- which gives rise to fully effective, non-discriminatory and unhindered network access --- certain obligations imposed by this Directive on undertakings (including those with respect to legal unbundling for distribution system operators) are not proportion? ate to the objective pursued, the Member State in question may submit  a request to the Commission for exemption from the requirement in question.


Such request shall be notified, without delay, by the Member State to the Commission, together with all the relevant  information necessary to  demonstrate  that  the  conclusion  reached in the report  on  effective network  access  being   ensured  will  be maintained.


Within three months of its receipt of a notification, the Commis? sion shall adopt an opinion with respect to the request by the Member State concerned, and where appropriate, submit propos? als to the European Parliament and to the Council to amend the relevant provisions of this Directive. The Commission may pro? pose, in the proposals  to amend this Directive, to exempt the Member State concerned from specific requirements subject to that  Member State implementing equally effective measures as appropriate.
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*Article 51*

_Committee_


1.	The Commission shall be assisted by a committee.


2.	Where reference is made to this paragraph, \*Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the pro? visions of Article 8 thereof.


3.	Where reference is made to this paragraph, \*Article  5a(1) to (4), and \*Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
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*Article 52*

_Reporting_


1.	The Commission shall monitor and review the application of this Directive and submit an overall progress  report to the European Parliament and  the  Council for  the  first time  by
31  December 2004,  and  thereafter on  an  annual basis.  The progress report shall cover at least:


(a)  the experience gained and progress made in creating a com? plete and fully operational internal market in natural gas and the obstacles that remain in this respect including aspects of market dominance, concentration in the market, predatory or anti-competitive behaviour;


(b)  the derogations granted under this Directive, including imple? mentation of the derogation provided for in  \*Article 26(4) with a view to a possible revision of the threshold;


(c)  the extent to which the unbundling and tarification require? ments contained in this Directive have been  successful in ensuring fair and non-discriminatory access to the Commu? nity’s gas system and equivalent levels of competition, as well as the economic, environmental and social consequences of the opening of the gas market for customers;


(d)  an examination of issues relating to system capacity levels and security of supply of natural gas in the Community, and in particular the  existing and  projected balance between demand and supply, taking into account the physical capac? ity for exchanges between areas and the development of stor? age (including the question of the proportionality of market regulation in that field);


(e)  special attention will be given to the measures taken in Mem? ber States to cover peak demand and to deal with shortfalls of one or more suppliers;


(f)     a general assessment of the progress achieved with regard to bilateral relations with third countries which produce and export or transport natural gas, including progress in market integration, trade and access to the networks of such third countries;


(g)  the need for possible harmonisation requirements which are not linked to the provisions of this Directive.


Where appropriate, the progress report may include recommen? dations and measures to counteract the negative effects of market dominance and market concentration.


In the report, the Commission, in consultation with the ENTSO for Gas, may also consider the feasibility of the creation, by trans? mission system operators, of a single European transmission sys? tem operator.



2.	Every two years, the progress report referred to in  para? graph 1 shall also include an analysis of the different measures taken  in  Member States to  meet  public  service  obligations, together with an examination of the effectiveness of those mea? sures, and, in particular, their effects on competition in the gas market. Where appropriate, the report may include recommen? dations as to the measures to be taken at national level to achieve high  public service standards or measures intended to prevent market foreclosure.


3.	The Commission shall, by 3 March 2013, submit, as part of the general review, to the European Parliament and the Council, a detailed specific report outlining the extent to which the unbun? dling requirements under h2. CHAPTER IV  have been successful in ensuring full and effective independence of transmission system operators,   using   effective  and   efficient  unbundling   as   a benchmark.


4.	For the purpose of its assessment under paragraph 3, the Commission shall take into account, in particular, the following criteria: fair and  non-discriminatory network  access, effective regulation, the development of the network to meet market needs, undistorted incentives to invest, the development of interconnec? tion infrastructure, effective competition in the energy markets of the  Community and  the  security of  supply situation  in  the Community.


5.	Where appropriate, and in particular in the event that the detailed specific report referred to in paragraph 3 determines that the conditions referred to in paragraph 4 have not been guaran? teed in practice, the Commission shall submit proposals to the European Parliament and the  Council to ensure fully effective independence of transmission system operators by 3 March 2014.


6.	The Commission shall, no later than 1 January 2006, for? ward to the European Parliament and Council, a detailed report outlining progress in creating the internal market in natural gas. That report shall, in particular, consider:


---   existence of non-discriminatory network access,


---   effective regulation,


---   the development of interconnection infrastructure, the con? ditions of transit, and the security of supply situation in the Community,


---   the extent to which the full benefits of the opening of the market are accruing to small enterprises and household cus? tomers, notably with respect to public service standards,


---   the extent to which markets are in practice open to effective competition, including aspects of market dominance, mar? ket   concentration   and   predatory   or   anti-competitive behaviour,


---   the extent to which customers are actually switching suppli?
ers and renegotiating tariffs,

---   price developments, including supply prices, in relation to the degree of the opening of markets,


---   whether effective and non-discriminatory third-party access to gas storage exists when technically and/or economically necessary for providing efficient access to the system,


---   the experience gained in the application of this Directive as far as the effective independence of system operators in ver? tically integrated undertakings is concerned  and  whether other measures in addition to functional independence and separation of accounts have been  developed which have effects equivalent to legal unbundling.


Where appropriate, the Commission shall submit proposals to the European Parliament and the Council, in particular to guarantee high public service standards.


Where appropriate, the Commission shall submit proposals to the European Parliament and the Council, in particular to ensure full and  effective independence of  distribution  system operators before 1 July 2007. Where necessary, those proposals shall, in conformity  with competition  law,  also concern  measures to address issues of market dominance, market concentration and predatory or anti-competitive behaviour.
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*Article 53*

_Repeal_


Directive 2003/55/EC is repealed from 3 March 2011 without prejudice to the obligations of Member States  concerning the deadlines for transposition and application of the said Directive. References to the repealed Directive shall be construed as refer? ences to this Directive and shall be read in accordance with the correlation table in Annex II.
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*Article 54*

_Transposition_


1.	Member States shall bring into force the laws, regulations and  administrative provisions necessary to  comply with this Directive by 3 March 2011. They shall forthwith inform the Com? mission thereof.


They shall apply those measures from 3 March 2011 with the exception of Article 11, which they shall apply from 3  March
2013.


Where Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of mak? ing such reference shall be laid down by Member States.

L 211/132 	EN	Official Journal of the European Union	14.8.2009


2.	Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
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*Article 55*

_Entry into force_
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*Article 56*

_Addressees_

This Directive is addressed to the Member States.


Done at Brussels, 13 July 2009.



This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.


For the European Parliament
The President
H.-G. PÖTTERING


For the Council
The President
E. ERLANDSSON

14.8.2009 	EN

Official Journal of the European Union

L 211/133
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h2. ANNEX I

*{_}MEASURES ON CONSUMER PROTECTION{_}*


1.   Without prejudice to Community rules on consumer protection, in particular Directive 97/7/EC of the European Par? liament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts
{footnote}OJ L 144, 4.6.1997, p. 19.  {footnote}
and Coun\- cil Directive 93/13/EEC of 5 April 1993  on  unfair  terms in consumer contracts
{footnote}OJ L 95, 21.4.1993, p. 29.{footnote}
,  the measures referred to in \*Article 3 are to ensure that customers:

(a)    have a right to a contract with their gas service provider that specifies:


---    the identity and address of the supplier,


---    the services provided, the service quality levels offered, as well as the time for the initial connection,


---    the types of maintenance service offered,


---    the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained,


---    the duration of the contract, the conditions for renewal and termination of services and of the contract, and whether withdrawal from the contract without charge is permitted,


---    any compensation and the refund arrangements which apply if contracted service quality levels are not met including inaccurate and delayed billing,


---    the method of initiating procedures for settlement of disputes in accordance with point (f); and,


---    information relating to consumer rights, including on the complaint handling and all of the information referred to in this point, clearly communicated through billing or the natural gas undertaking’s web site,


Conditions shall be fair and well-known in advance. In any event, that information should be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, the informa? tion relating to the matters set out in this point shall also be provided prior to the conclusion of the contract;


(b)    are given adequate notice of any intention to modify contractual conditions and are informed about their right of withdrawal when the notice is given. Service providers shall notify their subscribers directly of any increase in charges, at an appropriate time no later than one normal billing period after the increase comes into effect in a trans? parent and comprehensible manner. Member States shall ensure that customers are free to withdraw from con? tracts if they do not accept the new conditions notified to them by their gas service provider;


(c)    receive transparent information on applicable prices and tariffs and on standard terms and conditions, in respect of access to and use of gas services;


(d)    are offered a wide choice of payment methods, which do not unduly discriminate between customers. Prepayment systems shall be fair and adequately reflect likely consumption. Any difference in terms and conditions shall reflect the costs to the supplier of the different payment systems. General terms and conditions shall be fair and transpar? ent. They shall be given in clear and comprehensible language and shall not include non-contractual barriers to the exercise of  customers’ rights, for example excessive contractual documentation. Customers shall be  protected against unfair or misleading selling methods;


(e)    are not charged for changing supplier;


(f)	benefit from transparent, simple and inexpensive procedures for dealing with their complaints. In particular, all con? sumers shall have the right to a good standard of service and complaint handling by their gas service provider. Such out-of-court dispute settlements procedures shall enable disputes to be settled fairly and promptly, preferably within three months, with provision, where warranted, for a system of reimbursement and/or compensation. They should, wherever possible, be in line with the principles set out in Commission Recommendation 98/257/EC of 30 March
1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes
{footnote}OJ L 115, 17.4.1998, p. 31.{footnote}
;

L 211/134 	EN	Official Journal of the European Union	14.8.2009

(g)    connected to the gas system are informed about their rights to be supplied, under the national legislation appli?
cable, with natural gas of a specified quality at reasonable prices;

(h)    have at their disposal their consumption data, and shall be able to, by explicit agreement and free of charge, give any registered supply undertaking access to its metering data. The party responsible for data management shall be obliged to give those data to the undertaking. Member States shall define a format for the data and a procedure for suppliers and consumers to have access to the data. No additional costs shall be charged to the consumer for that service;

\(i) are properly informed of actual gas consumption and costs frequently enough to enable them to regulate their own gas consumption. That information shall be given by using a sufficient time frame, which takes account of the capa? bility of customer’s metering equipment. Due account shall be taken of the cost-efficiency of such measures. No additional costs shall be charged to the consumer for that service;

(j)	receive  a final closure account following any change of natural gas supplier no later than six weeks after the change of supplier has taken place.

2.   Member States shall ensure the implementation of intelligent metering systems that shall assist the active participation of consumers in the gas supply market. The implementation of those metering systems may be subject to an economic assessment of all the long-term costs and benefits to the market and the individual consumer or which form of intelli? gent metering is economically reasonable and cost-effective and which timeframe is feasible for their distribution.

Such assessment shall take place by 3 September 2012.

Subject to that assessment, Member States or any competent authority they designate, shall prepare a timetable for the implementation of intelligent metering systems.

The Member States or any competent authority they designate, shall ensure the interoperability of those metering sys? tems to be implemented within their territories and shall have due regard to the use of appropriate standards and best practice and the importance of the development of the internal market in natural gas.



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[DIRECTIVE 2009/73/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009|http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:211:0094:0136:EN:PDF]\\
Date 21.10.2011.
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