Proposal for a directive – amending act
Article 1 – point 8 a (new)
Directive 2003/54/EC
Article 10 b (new)
(8a) The following Article shall be inserted: "Article 10b Effective and efficient legal unbundling of transmission systems I. Assets, equipment, staff and identity 1. Transmission system operators shall be equipped with all human, physical and financial resources of the vertically integrated undertaking necessary for the regular business of electricity transmission, in particular: (i) transmission system operator shall own assets that are necessary for the regular business of electricity transmission; (ii) transmission system operator shall employ personnel necessary for the regular business of electricity transmission; (iii) appropriate financial resources for future investment projects shall be available in the annual financial plan. The activities deemed necessary for the regular business of electricity transmission mentioned in previous subparagraph shall at least include: - representation of the transmission system operator and contacts with third parties and national regulatory authorities, - granting and managing third party access to the grid, especially the access for new market operators and producers of renewable energies, - collection of the access charges, congestion rents and payments under the inter transmission system operator compensation mechanism in compliance with Article 3 of Regulation (EC) No 1228/2003, - operation, maintenance and development of the transmission system, - investment planning ensuring the long- term ability of the system to meet reasonable demand and guaranteeing security of supply, - legal services, - accountancy and IT services. 2. Leasing of personnel and rendering of services, from and to any branch of the vertically integrated undertaking performing functions of generation or supply, shall be prohibited. 3. The transmission system operator shall not engage in any business or activity outside transmission which could be in conflict with its tasks, including the holding of shares or interests in any undertaking or part of the vertically integrated company or in any other electricity and gas company. Exceptions require the prior consent of the national regulatory authority and shall be restricted to shares and interests in other network businesses. 4. The transmission system operator shall have its own legal identity, significantly different from the vertically integrated undertaking with separate branding, communication and premises. 5. The transmission system operator shall not share any commercially advantageous and sensitive information with any undertaking of the vertically integrated undertaking unless it does so with all market participants in a non- discriminatory way. The transmission system operator shall in cooperation with the national regulatory authority define this information. 6. Transmission system operators´ accounts shall be audited by another auditor than the one auditing the vertically integrated undertaking and all its affiliated companies. II. Independence of the transmission system operator management, chief executive officer / executive board 7. Decisions on the appointment and on any early termination of the employment of the chief executive officer / members of the executive board of the transmission system operator and the conclusion or early termination of the respective employment agreements with these persons shall be notified to the national regulatory authority. These decisions and agreements may become binding only if, within a period of 3 weeks after notification, the national regulatory authority has not used its right of veto. A veto may be issued in cases of appointment and conclusion of respective agreements if serious doubts arise as to the professional independence of the nominated chief executive officer / member of the executive board; in the case of early termination of employment and of respective agreements of the chief executive officer / member of the executive board, the veto may be used if serious doubts exist regarding the basis and justification of such termination. 8. Right of appeal to the national regulatory authority or to a court shall be guaranteed to the chief executive officer / member of the executive board of the transmission system operator in the case of early terminations of their employment. 9. The national regulatory authority shall decide on the appeal within six months. Exceptions shall be justified. 10. After termination of employment in the transmission system operator, former chief executive officers / members of the executive board shall not participate in any branch of the vertically integrated undertaking performing functions of generation or supply for a period of not less than 3 years. 11. The chief executive officer / members of the executive board shall not hold any interest in or receive any compensation from any undertaking of the vertically integrated company other than the transmission system operator. His/their remuneration shall in no part depend on activities of the vertically integrated undertaking other than those of the transmission system operator. 12. The chief executive officer or the members of the executive board of the transmission system operator may not bear responsibility, directly or indirectly, for the day-to-day operation of any other branch of the vertically integrated undertaking. 13. Without prejudice to the provisions above, the transmission system operator shall have all effective decision-making rights, independent from the integrated electricity undertaking, with respect to assets necessary to operate, maintain or develop the network. This should not prevent the existence of appropriate coordination mechanisms to ensure that the parent company is able to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of transmission lines, that do not exceed the terms of the approved financial plan, or any equivalent instrument. III. Supervisory board / Board of directors 14. The chairman of the supervisory board/board of directors of the transmission system operator and all of its members shall not participate in any branch of the vertically integrated undertaking. They shall also not be members of the supervisory board/board of directors of any undertaking of the vertically integrated company. 15. The supervisory boards / boards of directors of transmission system operators shall include also independent members, appointed for a term of at least 5 years. Their appointment shall be notified to the regulatory authority and become binding under the conditions described in paragraph 6. 16. For the purpose of paragraph 15, a member of the supervisory board / board of directors of a transmission system operator shall be deemed independent if he is free of any business, or other relationship with the vertically integrated undertaking, its controlling shareholders or the management of either, that creates a conflict of interest, in particular: (a) has not been an employee of any branch of the vertically integrated undertaking performing functions of generation and supply in five years prior to their appointment as supervisory board / board of directors member; (b) does not hold any interest in and does not receive any compensation from the vertically integrated undertaking or any of its affiliates except the transmission system operator; (c) does not hold any relevant business relationship with any branch of the vertically integrated company performing functions of energy supply during his/her appointment as supervisory board / board of directors member; (d) is not a member of the executive board of a company in which the vertically integrated undertaking appoints members of the supervisory board /board of directors. IV. Compliance officer 17. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out measures to be taken to ensure that discriminatory conduct is excluded. The programme shall also set out the specific obligations of employees of the transmission system operator to meet this objective. It shall be subject to approval of the national regulatory authority. Compliance of the program shall be independently monitored by the compliance officer. The national regulatory authority shall have the power to impose sanctions in case of inappropriate implementation of the compliance program by the transmission system operator. 18. The chief executive officer/ executive board of the transmission system operator shall appoint a person or a body in a function of a compliance officer who shall be responsible for: (i) monitoring the implementation of the compliance programme; (ii) elaborating an detailed annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the national regulatory authority; definition of measures for the implementation of the compliance program and presentation of the report to the regulatory authority; (iii) issuing recommendations on the compliance programme and its implementation. 19. The independence of the compliance officer shall be guaranteed in particular by the terms of his/her employment contract. 20. The compliance officer shall have the opportunity to regularly address the supervisory board/board of directors of the transmission system operator and of the vertically integrated undertaking and the national regulatory authorities. 21. The compliance officer shall participate at all meetings of the supervisory board / board of directors of the transmission system operator that address the following issues: (i) conditions for access and connection to the grid, including the collection of access charges, congestion rents, and payments under the inter transmission system operator compensation mechanism in compliance with Article 3 of Regulation (EC) No 1228/2003; (ii) projects undertaken in order to operate, maintain and develop the transmission grid system, including interconnection and connection investments; (iii) balancing rules, including reserve power rules; (iv) energy purchases in order to cover energy losses. 22. During these meetings, the compliance officer shall prevent information about generation or supply activities which may be commercially advantageous from being disclosed in a discriminatory manner to the supervisory board/board of directors. 23. The compliance officer shall have access to all relevant books, records and offices of the transmission system operator and to all the necessary information for the fulfilment of his/her tasks. 24. The compliance officer shall be nominated and removed by the chief executive officer / executive board only after prior approval by the national regulatory authority. 25. Following revocation of his/her mandate, the compliance officer should be barred from having business relations with the vertical integrated undertaking for a period of not less than five years. V. Grid development and powers to make investment decisions 26. Transmission system operators shall elaborate a 10-year network development plan at least every two years. They shall provide efficient measures in order to guarantee system adequacy and security of supply. 27. The 10-year network development plan shall in particular: (a) indicate to market participants the main transmission infrastructures that ought to be built over the next ten years, (b) contain all the investments already decided and identify new investments for which an implementation decision has to be taken in the next three years. 28. In order to draw up this 10-year network development plan, each transmission system operator shall make reasonable hypothesis about the evolution of generation, consumption and exchanges with other countries, and take into account regional and European-wide existing network investment plans. Transmission system operator shall submit in due time the draft of this plan to the national regulatory authority. 29. The national regulatory authority shall consult all relevant network users on the basis of a draft for the 10-year network development plan in an open and transparent manner and may publish the result of the consultation process, in particular possible needs for investments. 30. The regulatory authority shall examine whether the draft 10-year network development plan covers all investment needs identified in the consultation. This authority may oblige the transmission system operator to amend its draft. 31. If the transmission system operator rejects to implement a specific investment listed in the 10-year network development plan to be executed in the next three years, Members States shall ensure that the national regulatory authority has the competence to take one of the following measures: (a) request by all legal means the transmission system operator to execute its investment obligations using its financial capacities, or (b) invite independent investors to participate in a tender for a necessary investment in a transmission system and at the same time may oblige the transmission system operator: - to agree to financing by any third party, - to agree to building by any third party or to build the respective new assets, - to operate the respective new asset and - to oblige transmission system operator to accept a capital increase to finance the necessary investments and allow independent investors to participate in the capital. The relevant financial arrangements shall be subject to the approval of the national regulatory authority. In both cases, tariff regulation shall allow for revenues that cover the costs of such investments. 32. The national regulatory authority shall monitor and evaluate the implementation of the investment plan. VI. Decision-making powers regarding the connection of new power plants to the transmission grid 33. Transmission system operators shall be obliged to establish and publish transparent and efficient procedures for non-discriminatory connection of new power plants to the grid. Those procedures shall be subject to the approval of national regulatory authorities. 34. Transmission system operators shall not be entitled to refuse the connection of a new power plant on the grounds of possible future limitations to available network capacities, e.g. congestion in distant parts of the transmission grid. The transmission system operators shall be obliged to supply necessary information. 35. Transmission system operators shall not be entitled to refuse a new connection point on the sole ground that it will lead to additional costs linked with necessary capacity increase of grid elements in the close-up range to the connection point. VII. Regional cooperation 36. Member States choosing this path must place precise obligations on transmission system operators within a clearly defined time frame and progressively leading to the creation of a common regional dispatching centre responsible for security issues within six years after the entry into force of this Directive. 37. In case of a cooperation between several Member States at a regional level and following the joint request of these Member States, the Commission may designate a regional coordinator. 38. The regional coordinator shall promote, at a regional level, the cooperation of regulatory authorities and any other competent public authorities, network operators, power exchanges, grid users and market parties. In particular, the regional coordinator shall: (a) promote new efficient investments in interconnections. To this end, the regional coordinator shall assist transmission system operators by elaborating their regional interconnection plan and shall contribute to the coordination of their investments decisions and, where appropriate, of their open season procedure; (b) promote the efficient and safe use of the networks. To this end, the regional coordinator shall contribute to the coordination between transmission system operators, national regulatory authorities and other competent national public authorities with the elaboration of common allocation and common safeguard mechanisms; (c) annually submit a report to the Commission and Member States concerned on the progress achieved in the region and on any difficulty or obstacle that may hinder the progress. VIII. Sanctions 39. In order to carry out the duties assigned to it by this Article, the national regulatory authority: (i) shall have the right to request any information from the transmission system operator and to directly contact all staff of the transmission system operators; if doubts remain, the same rights shall apply for the vertically integrated undertaking and its subsidiaries; (ii) may conduct all necessary inspections of the transmission system operators and, if doubts remain, of the vertically integrated undertaking and its subsidiaries; the rules of Article 20 of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty shall apply. 40. In order to carry out its duties assigned to it by this Article, the national regulatory authority shall have the power to impose effective, appropriate and dissuasive sanctions to the transmission system operator and/or the vertically integrated undertaking not complying with its obligations under this Article or any decisions of the national regulatory authority. This power shall include the right to: (i) impose effective, appropriate and dissuasive fines related to the turnover of the network company; (ii) issue orders to remedy a discriminatory behaviour; (iii) withdraw, at least partly, the licence of the transmission system operator in case of repeated breach of the unbundling provisions set out in this Article."