[ParlTrack]

Proposal for a directive – amending act
Recital 10 a (new)

(10a) If the provisions on effective and efficient legal unbundling are complied with, vertically integrated undertakings may retain ownership of the assets of the network while at the same time guaranteeing an effective separation of interests, provided that the network company performs all the tasks of a network operator, and that detailed regulation and comprehensive regulation control mechanisms are in place.

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Recital 11

(11) Where the undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be given a choice between ownership unbundling ~~and, as a derogation~~, setting up system operators which are independent from supply and production interests, and the effective and efficient legal unbundling of transmission system operators. The full effectiveness of the independent system operator solution needs to be assured by way of specific additional rules. To preserve fully the interests of the shareholders of vertically integrated companies, Member States should have the choice of implementing ownership unbundling either by direct divestiture or by splitting the shares of the integrated company into shares of the network company and shares of the remaining supply and production business, provided that the requirements resulting from ownership unbundling are complied with.

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 3 a (new)

Directive 2003/55/EC
Article 6a (new)

(3a) The following article is inserted: ‘Article 6a Provisions on the unbundling of transmission system operators In order to guarantee the independence of transmission system operators, the Member States shall ensure that, as from…* vertically integrated undertakings comply with Article 7(1)(a) to (d) on full ownership unbundling, Article 9 on independent system operators, or Article 9b on effective and efficient legal unbundling. . ___________ * date of transposition plus one year.

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 6 a (new)

Directive 2003/55/EC
Article 8 – paragraphs 4a to 4h (new)

(6a) In Article 8, the following paragraphs shall be added: "4a. A transmission system operator shall elaborate a 10-year network development plan at least every two years. It shall provide efficient measures in order to guarantee system adequacy and security of supply. That 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) include all the investments already decided upon and identify new investments for which an implementation decision has to be taken during the following three years. 4b. In order to elaborate its 10-year network development plan, each transmission system operator shall make reasonable estimates about the evolution of generation, consumption and exchanges with other countries, taking into account regional and European-wide existing network investment plans. A transmission system operator shall submit its estimates to the national regulatory authority within a reasonable time period. 4c. The national regulatory authority shall consult all relevant network users on the basis of a draft 10-year network development plan in an open and transparent manner and may publish the result of the consultation process, in particular as regards possible investment needs. 4d. The national regulatory authority shall examine whether the 10-year network development plan covers all investment needs identified in the consultation and may require that the transmission system operator amend its plan. 4e. If a transmission system operator refuses to implement a specific investment that is listed in the 10-year network development plan for execution during the following three years, Members States shall ensure that the regulatory authority has the competence to: (a) request the transmission system operator to execute its investment obligations using its financial capacities or (b) invite independent investors to tender for necessary investment in a transmission system, possibly requiring the transmission system operator to agree to: - third-party financing; - a third party building a new asset; - a third party operating a new asset; and/or - 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 regulatory authority. Whether the transmission system operator or a third party makes a specific investment, tariff regulation shall allow for revenue that cover the costs of such investment. 4f. The national regulatory authority shall monitor and evaluate the implementation of the investment plan. 4g. Transmission system operators shall be required to establish and publish transparent and efficient procedures for non-discriminatory connection of third parties to the grid. Those procedures shall be subject to the approval of national regulatory authorities. 4h. Transmission system operators shall not be entitled to refuse the access of third parties on the grounds of possible future limitations to available network capacities, such as congestion in distant parts of the transmission grid. Transmission system operators shall be required to supply necessary information. 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."

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 8 a (new)

Directive 2003/55/EC
Article 9b (new)

(8a) The following Article 9 is inserted: Article 9b Effective and efficient legal unbundling of transmission systems 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 gas transmission. In particular , the transmission system operator shall: (a) own assets necessary for the regular business of gas transmission; (b) directly employ personnel necessary for the regular business of gas transmission; c) ensure that appropriate financial resources for future investment projects will be available in accordance with annual financial planning. The activities referred to in sub- paragraphs a to c shall include, at least: − representing the transmission system operator and contacts to third parties and the regulatory authorities, − granting and managing third-party access, in particular to new market participants from the biogas sector, − collecting access charges, congestion rents and payments pursuant to the balancing mechanisms between transmission system operators set out in Article 7 of Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks*, − operating, maintaining and developing 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 information technology services; (2) The leasing of personnel and rendering of services, from and to any branch of the vertically integrated undertaking performing functions of production or supply, shall be prohibited. (3) The transmission system operator may not engage in any activities other than transmission which might conflict with its tasks, including the possession of shares or participation in an undertaking or a part of the vertically integrated undertaking or in any other gas or electricity company. Exceptions to this rule shall require prior authorisation by the national regulatory authority and shall be confined to share ownership and participation in other network undertakings. (4) The transmission system operator shall have its own corporate identity, significantly distinct from the vertically integrated undertaking with separate branding, communication and premises. (5) The transmission system operator shall not provide the vertically integrated undertaking any sensitive information or information conferring a competitive advantage, unless it shares such information with all market participants in an equal and non-discriminatory manner. What types of information are covered by this definition shall be determined by the transmission system operator in collaboration with the national regulatory authority. (6) Transmission system operators' accounts shall be audited by an auditor other than the auditor of the vertically integrated undertaking and its affiliated companies. Independence of the transmission system operator management, chief executive officer / executive board (7) Decisions on the appointment and on any premature termination of the employment of the transmission system operator's chief executive officer or members of the executive board and their respective contractual agreements of employment and their termination shall be notified to the national regulatory authority. Those decisions and agreements may become binding only if the regulatory authority has not used its right of veto within 3 weeks of notification. The regulatory authority may use a veto in connection with appointments and their respective contractual agreements in the event that serious doubts arise in regard to the professional independence of a nominee for appointment as chief executive officer or member of the executive board on the one hand, or the justification for the premature termination of employment and corresponding contractual agreements on the other. (8) Effective rights of appeal to the regulatory authority or to a court shall be guaranteed for any complaints by the chief executive officer or members of the executive board of the transmission system operator against premature terminations of their employment. (9) The regulatory authority must take a decision on the appeal within six months. This time limit may only be exceeded for objectively justified reasons. (10) After termination of employment with the transmission system operator, chief executive officers or members of the executive board shall be prohibited from participating in any branch of the vertically integrated undertaking performing functions of production or supply for a period of not less than 3 years. (11) The chief executive officer or members of the executive board shall hold no interest in or receive any compensation from any undertaking of the vertically integrated company other than the transmission system operator. His, her or 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 members of the executive board of the transmission system operator shall bear no responsibility, directly or indirectly, in the day-to-day operation of any other branch of the vertically integrated undertaking. (13) Without prejudice to this Article, the transmission system operator shall have effective decision-making rights, independent from the integrated gas undertaking, with respect to assets necessary to operate, maintain or develop the network. This shall not prevent the existence of appropriate coordination mechanisms enabling the parent company to set global limits on the levels of indebtedness of its subsidiary. The parent company may not issue any instructions either regarding day-to-day operations, or with respect to individual decisions concerning the construction or upgrading of transmission gas pipelines, that exceed the terms of the approved financial plan, or any equivalent instrument. Supervisory board and board of directors (14) Chairpersons and members of the transmission system operator's supervisory board or board of directors shall not participate in any branch of the vertically integrated undertaking, neither may they be members of the supervisory board or board of directors of any branch or subsidiary of the vertically integrated undertaking. (15) The members of the transmission system operator's supervisory board or board of directors shall be independent and shall be appointed for a term of at least 5 years. Their appointment shall be notified to the regulatory authority and shall become binding only subject to the conditions provided for in paragraph (7). (16) For the purposes of paragraph 13, a member of a transmission system operator's supervisory board or board of directors shall be deemed independent if he or she 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 such as to impair his or her judgement, and, in particular, he or she: a) has not been an employee of any branch of the vertically integrated undertaking performing functions of production and supply in five years prior to his or her appointment to the supervisory board or board of directors; 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 have any relevant business relationship with any branch of the vertically integrated company performing functions of energy supply during his or her appointment to the supervisory board or board of directors; and d) is not a member of the executive board of a company in which the vertically integrated undertaking appoints members of the supervisory board or board of directors. Compliance officer (17) Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out measures taken to ensure that discriminatory conduct is excluded. The programme shall set out the specific obligations of employees to meet that objective. It shall be subject to approval of the regulatory authority. Compliance with the programme shall be independently monitored by the compliance officer. The regulatory authority shall have the power to impose sanctions in case of inappropriate implementation of the compliance programme. (18) The transmission system operator's chief executive officer or executive board shall appoint a person or a body as a compliance officer in order to: a) monitor the implementation of the compliance programme; b) elaborate a detailed annual report, the criteria for which shall be determined by regulatory authority in agreement with the European Agency for the Cooperation of Energy Regulators, set out the measures taken in order to implement the compliance programme and submit the report to the regulatory authority; and c) issue 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 or her employment contract. (20) The compliance officer shall have the opportunity regularly to address the supervisory board or board of directors of the transmission system operator, the vertically integrated undertaking, and the regulatory authorities. (21) The compliance officer shall attend all sessions of the supervisory board or board of directors of the transmission system operator that address the following areas: a) conditions for access and connection to the network, including the collection of access charges, congestion rents and payments in accordance with the balancing mechanism between transmission system operators set out in Article 7 of Regulation (EC) No 1775/2005; b) projects undertaken in order to operate, maintain and develop the transmission network system, including interconnection and connection investments; c) balancing rules, including provisions on energy reserves; and d) energy purchases in order to cover energy losses. (22) During these meetings, the compliance officer shall prevent information about customers’ or suppliers’ activities, which may be commercially advantageous, from being disclosed in a discriminatory manner to the supervisory board or board of directors. (23) The compliance officer shall have access to all the transmission system operator's relevant books, records and offices and to all the necessary information for the proper performance of his or her duties. (24) The compliance officer shall be nominated and removed from office by the chief executive officer or executive board only following the prior approval of the regulatory authority. (25) The compliance officer may not have any kind of business dealings with the vertically integrated undertaking for at least five years after leaving office. Network development and powers to make investment decisions (26) Each transmission system operator shall elaborate a 10-year network development plan at least every two years. It shall provide efficient measures in order to guarantee system adequacy and security of supply. (27) That ten-year plan shall, in particular: a) indicate to market participants the main transmission infrastructures to be built over the next ten years; b) include all the investments already decided upon and identify new investments for which an implementation decision has to be taken during the following three years. (28) In order to elaborate its 10-year network development plan, each transmission system operator shall make reasoned estimates about the evolution of supply, consumption and exchanges with other countries, taking into account regional and Europe-wide existing network investment plans. A transmission system operator shall submit its estimates to the national regulatory authority within a reasonable time period. (29) The regulatory authority shall consult all relevant network users on the basis of a draft 10-year network development plan in an open and transparent manner and may publish the result of the consultation process, in particular as regards possible investment needs. (30) The regulatory authority shall examine whether the 10-year network development plan covers all investment needs identified in the consultation and may require that the transmission system operator amend its plan. (31) If the transmission system operator refuses to make a specific investment that is listed in the 10-year network development plan for execution during the following three years, the Member State in question shall ensure that the regulatory authority has the competence to: a) request the transmission system operator by all legal means to execute its investment obligations using its financial capacities; or b) invite independent investors to tender for a necessary investment in a transmission system, requiring the transmission system operator to: - agree to third-party financing, - agree to a third party building a new asset, or create the new asset in question, - operate the new asset, and/or - 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 regulatory authority. In either case, tariff regulation shall allow for revenue that covers the costs of such investment. (32) The regulatory authority shall monitor and evaluate the implementation of the investment plan. Power of decision on third-party access to the transmission network (33) Transmission system operators shall be required to develop and publish transparent and efficient procedures for the non-discriminatory access of third parties to the network. Those procedures shall be subject to the approval of national regulatory authorities. (34) Transmission system operators shall not be entitled to refuse access the access of third parties on the grounds of possible future limitations to available network capacities, such as congestion in distant parts of the transmission network. The transmission system operator shall be required to supply necessary information. (35) Transmission system operators shall not refuse a new connection point on the sole ground that it will lead to additional costs linked to necessary capacity increase of network elements in the immediate vicinity of the connection point. Regional Cooperation (36) If Member States opt for regional cooperation, they must impose precisely defined obligations on the transmission system operator, to be fulfilled within a clearly defined time frame. Such obligations must also lead gradually to the creation of a common regional dispatching centre, which shall be responsible for security and safety issues no later than six years from the entry into force of this directive. (37) Where there is cooperation between several Member States at regional level, the Member States in question shall appoint a regional coordinator in agreement with the Commission. (38) The regional coordinator shall promote cooperation at regional level between regulatory authorities and any other competent authorities, network operators, power exchanges, network users and market participants. In particular, he shall : a) promote new, efficient investments in interconnection infrastructure. To that end, he shall help transmission network operators in setting up their regional interconnection infrastructure plan and shall contribute to the coordination of their investment decisions and, where appropriate, their open season procedure; b) promote the efficient and safe use of the network. To that end, he shall contribute, by drafting common rules and common safety mechanisms, to coordination between transmission system operators, national regulatory authorities and other competent national authorities; c) report annually to the Commission and the Member States in question on the progress made in the field and on any difficulties or obstacles which might impair progress; Sanctions (39) In order to perform the duties imposed on it in this Article, the national regulatory authority shall have the right: a) to demand any information from the transmission system operator and to contact any member of the transmission system operator’s staff directly; in case of doubt, it may also exercise this right over the vertically integrated undertaking and its branches; b) to carry out any necessary investigations of the transmission system operator and, in case of doubt, of the vertically integrated undertaking and its branches; the provisions of Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty** shall apply accordingly. (40) In order to perform its tasks under this Article, the national regulatory authority shall have the right to impose effective, appropriate and deterrent penalties on the transmission system operator and/or the vertically integrated undertaking where they do not comply with their duties pursuant to this Article or to the decisions of the national regulatory authority. This right includes the right: a) to impose effective, appropriate and deterrent fines, calculated on the basis of the turnover of the transmission network operator; b) to impose orders to refrain from discriminatory behaviour; c) to withdraw the transmission system operator’s licence, at least in part, should the operator repeatedly infringe the unbundling provisions of this Article. * OJ L 289, 3.11.2005, p. 1. ** OJ L 1, 4.1.2003, p. 1. Last amended by Regulation (EC) No 1419/2006 of 25 September 2006 (OJ L 269, 28.9.2006, p.1).

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 10

Directive 2003/55/EC
Article 13 – paragraph 4

4. The Commission may adopt guidelines on procedural requirements to ensure full and effective compliance of the distribution system operator with paragraph 2 as regards the full independence of the distribution system operator, the absence of discriminatory behaviour, and that supply activities of the vertically integrated undertaking cannot take unfair advantage of its vertical integration. This measure 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 30(3).

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 14

Directive 2003/55/EC
Article 24c – paragraph 1 – point (n)

n) ensuring efficient and equal access to customer consumption data for all market participants, the application of a harmonised format for consumption data and the access to data under paragraph (h) of Annex A;

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 14

Directive 2003/55/EC
Article 24c – paragraph 3 – point (b)

b) to carry out in cooperation with the national competition authority, and with account being taken of respective powers, investigations of the functioning of gas markets, and to decide, in the absence of violations of competition rules, of any appropriate measures necessary and proportionate to promote effective competition and ensure the proper functioning of the market, including gas release programs;

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 14

Directive 2003/55/EC
Article 24c – paragraph 4 – point (a)

a) connection and access to national networks, including transmission and distribution tariffs, methods for calculating them, and terms, conditions and tariffs for access to LNG facilities. These tariffs shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing these investments to ensure the viability of the networks and LNG facilities;

2008/03/11
Committee: ECON

Bernhard RAPKAY

Proposal for a directive – amending act
Article 1 – point 14

Directive 2003/55/EC
Article 24c – paragraph 13

13. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a ~~body independent of the parties involv~~judicial body or other national authority independent of the parties involved and the government of the Member State concerned.

2008/03/11
Committee: ECON

Bernhard RAPKAY, Hannes SWOBODA, Norbert GLANTE, Robert GOEBBELS, Atanas PAPARIZOV, Anni PODIMATA, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 10 a (new)

(10a) In complying with the regulations on effective and efficient legal unbundling, and provided that the network undertaking performs all the functions of the network operator and detailed regulation and extensive regulatory control mechanisms are put in place, vertically integrated undertakings may maintain their ownership of network assets whilst at the same time ensuring an effective separation of interests.

2008/04/07
Committee: ITRE

Bernhard RAPKAY

Proposal for a directive – amending act
Article 2 - paragraph 2 a (new)

(2a) The Commission shall report annually to the European Parliament and the Council on progress with the practical and formal implementation of this Directive in the individual Member States.

2008/03/11
Committee: ECON

Bernhard RAPKAY, Hannes SWOBODA, Norbert GLANTE, Robert GOEBBELS, Atanas PAPARIZOV, Anni PODIMATA, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 11

(11) Where the undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be given a choice between ownership unbundling ~~and, as a derogation~~, setting up system operators which are independent from supply and generation interests, and effective and efficient legal unbundling of transmission system operators. The full effectiveness of the independent system operator solution needs to be assured by way of specific additional rules. To preserve fully the interests of the shareholders of vertically integrated companies, Member States should have the choice of implementing ownership unbundling either by direct divestiture or by splitting the shares of the integrated company into shares of the network company and shares of the remaining supply and generation business, provided that the requirements resulting from ownership unbundling are complied with.

2008/04/07
Committee: ITRE

Bernhard RAPKAY

Recital 24 a (new)

(24a) In applying the provisions of this Directive, the national regulatory authorities should pay due attention to the specific circumstances of small and medium-sized gas suppliers, particularly from an administrative and economic viewpoint.

2009/03/11
Committee: ITRE

Bernhard RAPKAY

Article 20 – paragraph 3 – subparagraph 1

3. The first subparagraph of Article 19(2), the first subparagraph of Article 19(3) and Article 19(4) to (7) shall apply to at least half of the members of the Supervisory Body minus one1. 1 The Supervisory Body representatives representing other interested parties such as employees of the transmission system operator in accordance with paragraph 2 of this Article shall not belong either to the body of members representing the vertically integrated undertaking or to the body of supervisory body members subject to the requirements of the first subparagraph of Article 19(2), the first subparagraph of Article 19(3) and Article 19(4) to (7).

2009/03/11
Committee: ITRE

Bernhard RAPKAY

Article 38 – paragraph 5 a (new)

5a. Paragraphs 4 and 5 shall be without prejudice to the constitutional requirements of the Member State’s administrative organisation.

2009/03/11
Committee: ITRE

Bernhard RAPKAY, Hannes SWOBODA, Norbert GLANTE, Robert GOEBBELS, Atanas PAPARIZOV, Anni PODIMATA, Catherine TRAUTMANN

Proposal for a directive – amending act
Article 1 – point 4

Directive 2003/55/EC
Article 7 – paragraph –1 (new)

"–1. In order to ensure the independence of transmission system operators, Member States shall ensure that, as from [date of transposition plus one year], vertically integrated undertakings must comply with the provisions of Article 7(1)(a) to (d) and Article 9 or with the provisions of Article 9b."

2008/04/10
Committee: ITRE

Bernhard RAPKAY, Hannes SWOBODA, Norbert GLANTE, Robert GOEBBELS, Atanas PAPARIZOV, Anni PODIMATA, Catherine TRAUTMANN

Proposal for a directive – amending act
Article 1 – point 8 a (new)

Directive 2003/55/EC
Article 9 b (new)

(8a) The following Article shall be inserted: "Article 9b 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 gas transmission, in particular: (i) transmission system operators shall own assets that are necessary for the regular business of gas transmission ; (ii) transmission system operators shall employ the staff necessary for the regular business of gas transmission ; (iii) appropriate financial resources for future investment projects shall be made available in the annual finance plan. The activities deemed necessary for the regular business of gas transmission mentioned in this paragraph shall include at least: – representation of the transmission system operator and contacts with third parties and the national regulatory authorities, – granting and managing third party access to the network, especially the access for new market operators and producers of biogas, – collection of the access charges, congestion rents and payments under the inter transmission system operator compensation mechanism in compliance with Article 7 of Regulation (EC) No 1775/2005, – 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. The sharing of the staff 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 operator's 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's 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 on conclusion or early termination of 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 the notification, the national regulatory authority has not used its right of veto. A veto may be used if an appointment and conclusion of the respective agreement poses serious doubts as to the professional independence of the nominated chief executive officer / member of the executive board; in the case of early terminations of employment and of respective agreements with these persons, the right of veto may be used if serious doubts exist regarding the basis and justification of such early termination. 8. Rights of appeal to the national regulatory authority or to a court shall be guaranteed to the members of the management of the transmission system operator regarding early terminations of their employment. 9. The national regulatory authority shall decide on such appeal within six months. This time period may be exceed only in exceptional and duly justified cases. 10. After the termination of employment in the transmission system operator, 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. Remuneration of the chief executive officer / members of the executive board 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 be responsible, 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 gas 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 also include independent members, appointed for at least 5 years. Appointment of the members of the supervisory board / board of directors shall be notified to the national regulatory authority and become binding under the conditions referred to in paragraph 7. 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/she does not participate in any business with, or has no other relationship with, the vertically integrated undertaking, its controlling shareholders or the management of either, which would create 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 the appointment as a member of the supervisory board / board of directors; (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 have any relevant business relationship with any branch of the vertically integrated company performing functions of energy supply during his/her appointment as a member of the supervisory board / board of directors; (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. This programme shall set out the specific obligations of employees of the transmission system operator to meet this objective. The programme shall be subject to approval of the regulatory authority. Compliance of the program by the transmission system operators 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 a detailed annual report, setting out the measures to be 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 national regulatory authority; (iii) issuing recommendations regarding the compliance programme and its implementation. 19. The independence of the compliance officer shall be guaranteed in particular by terms of the 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 regulatory authorities. 21. The compliance officer shall attend all meetings of the supervisory board / board of directors of the transmission system operator that address the following areas: (i) conditions for access and connection to the system, including the collection of access charges, congestion rents, and payments under the inter transmission system operator compensation mechanism in compliance with Article 7 of Regulation (EC) No 1775/2005; (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 generators or suppliers 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 the assigned tasks. 24. The compliance officer shall be nominated and removed by the chief executive officer / executive board only after the prior approval by the national regulatory authority. 25. Following revocation of the mandate of the compliance officer, 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 draw up a 10-year network development plan at least every two years. They shall take 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 elaborate 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 shall 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 the draft plan with all relevant network users in an open and transparent manner and may publish the result of such consultation, in particular possible needs for investments. 30. The national regulatory authority shall examine whether the draft 10-year network development plan covers all investment needs identified in the consultation. The national regulatory authority may oblige the transmission system operator to amend his plan. 31. If the transmission system operator rejects to implement a specific investment listed in the 10-year network development plan in the next three years, Member States shall ensure that the national regulatory authority has the power to take one of the following measures: (a) to request, by all legal means, the transmission system operator to execute its investment obligations by using its financial capacities, or, (b) to invite independent investors to tender for the necessary investment in the transmission system and may, at the same time, 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 accept a capital increase to finance the necessary investments and allow independent investors to participate in the capital increase. 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 access of third parties to the transmission grid 33. Transmission system operators shall be required to establish and publish transparent and efficient procedures for non-discriminatory access of third parties to the network. Those procedures shall be subject to the approval of national regulatory authorities. 34. Transmission system operators shall not be entitled to refuse third parties access to the network on the grounds of possible future limitations to available network capacities, e.g. congestion in distant parts of the transmission network. The transmission system operator shall supply the necessary information. 35. Transmission system operators shall not be entitled to refuse a new access to the network on the sole ground that it would 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 which decide to cooperate on a regional level, shall 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 of entry into force of Directive .../.../EC [amending Directive 2003/55/EC concerning common rules for the internal market in natural gas]. 37. If the cooperation between several Member States at a regional level encounters difficulties, 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 in preparation of 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 while elaborating common allocation and common safeguard mechanisms, (c) submit an annual report to the Commission and Member States concerned on the progress achieved in the region and on any difficulty or obstacle that may hinder such progress. VIII. Sanctions 39. In order to carry out the tasks assigned to it by this Article, the national regulatory authority: (i) shall be empowered to request any information from the transmission system operator and to directly contact all staff of the transmission system operator; if doubts remain, the national regulatory authority shall have the same power towards the vertically integrated undertaking and its subsidiaries; (ii) may conduct all necessary inspections of the transmission system operator and, if doubts remain, of the vertically integrated undertaking and its subsidiaries; Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty1 shall apply. 40. In order to carry out its tasks 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 to the vertically integrated undertaking not complying with their 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, partly or in full, the licence of the transmission system operator in case it repeatedly breaches the unbundling provisions set out in this Article." 1 OJ L 1, 4.1.2003, p. 1.

2008/04/10
Committee: ITRE

Bernhard RAPKAY, Hannes SWOBODA, Norbert GLANTE, Robert GOEBBELS, Atanas PAPARIZOV, Anni PODIMATA, Catherine TRAUTMANN

Proposal for a directive – amending act
Article 2 – paragraph 2 a (new)

2a. The Commission shall report to the European Parliament and the Council annually on the formal and practical implementation of this Directive in each Member State.

2008/03/31
Committee: ITRE

Bernhard RAPKAY, Hannes SWOBODA, Norbert GLANTE, Robert GOEBBELS, Atanas PAPARIZOV, Anni PODIMATA

Proposal for a directive – amending act
Article 2 – paragraph 2 b (new)

2b. Six years after the entry into force of this Directive, the Commission shall, on the basis of public consultations, in the light of discussions with the competent authorities and after having received an opinion by the Agency for the Cooperation of Energy Regulators, report to the European Parliament and the Council on the desirability of maintaining or amending this Directive. The several versions of restructuring gas companies laid down in Articles 7a to 7d and Articles 9 and 9b of Directive 2003/55/EC shall be verified, in particular, in terms of the effectiveness of their impact on network access and the necessary investments.

2008/03/31
Committee: ITRE

20 Amendments of Bernhard RAPKAY related to 2007/0196(COD)

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