7 Amendments of Benoît HAMON related to 2007/0196(COD)

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

Directive 2003/55/EC
Article 3 – paragraph 2

(1a) Article 3(2) shall be replaced by the following: "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 supplies, and environmental protection, including energy efficiency and climate protection. Such obligations shall be clearly defined, transparent, non- discriminatory, verifiable and shall guarantee equality of access for EU gas companies to national consumers. These obligations may in particular take the form of price regulation, including setting a maximum price for the supply of gas to end-users. In relation to security of supply, energy efficiency/demand-side management and for the fulfilment of environmental goals, as referred to in this paragraph, Member States may introduce the implementation of long term planning, taking into account the possibility of third parties seeking access to the system."

2008/03/11
Committee: ECON

Benoît HAMON

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

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

(3a) The following article shall be inserted: "Article 6a Alternative unbundling requirements In order to ensure the independence of transmission system operators, Member States shall ensure that as from ... * vertically integrated undertakings shall comply with Article 7(1)(a) to (d) on ownership unbundling (OU), Article 9 on independent system operators (ISO), or Article 9b on effective and efficient unbundling (EEU). __________ * One year after the date for transposition."

2008/03/11
Committee: ECON

Benoît HAMON

Proposal for a directive – amending act
Article 1 – point 8

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

Article 9b Effective and efficient 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 that are necessary for the regular business of gas transmission; (b) employ personnel necessary for the regular business of gas transmission; (c) lease personnel and render services, from and to any branch of the vertically integrated undertaking performing functions of production or supply, on a non-discriminatory basis only and subject to the approval of the competent national public authority in order to exclude competition concerns and conflicts of interest; and (d) keep available appropriate financial resources for future investment projects. 2. The activities deemed necessary for the regular business of gas transmission referred to in paragraph 1 shall include at least: (a) making representations on behalf of the transmission system operator and contacts to third parties and the regulatory authorities; (b) granting and managing third-party access; (c) collecting of access charges and congestion rents; (d) operating, maintain and developing the transmission system; (e) investment planning ensuring the long-term ability of the system to meet reasonable demand and guaranteeing security of supply; (f) legal services; and (g) accountancy and IT services. 3. Transmission system operators shall take the legal form of a joint-stock company. 4. Transmission system operators shall have their own corporate identity, significantly distinct from the vertically integrated undertaking, with separate branding, communication and premises. 5. Transmission system operators' accounts shall be audited by an auditor other than the auditor of the vertically integrated undertaking and all its affiliated companies. Independence of the transmission system operator's management, chief executive officer and executive board 6. Decisions regarding the appointment or premature termination of employment of the transmission system operator's chief executive officer or a member of its executive board and the agreement or termination of employment contracts relating thereto shall be notified to the regulatory authority or any other competent national public authority. Those decisions and agreements may become binding only if the regulatory authority or any other competent national public authority has not used its right of veto within 3 weeks of notification. A veto may be used in the event that serious doubts arise in regard to the professional independence of a nominee for appointment on the one hand or the justification for the premature termination of employment on the other. 7. Effective rights of appeal to the regulatory authority or another competent national public authority or to a court shall be guaranteed for any complaints by transmission system operator's management against a premature termination of employment. 8. After termination of employment by the transmission system operator, a former chief executive officer 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 no less than 3 years. 9. A chief executive officer or member 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. 10. A transmission system operator's chief executive officer or member of the executive board shall bear no responsibility, directly or indirectly, in the day-to-day operation of any other branch of the vertically integrated undertaking. 11. Without prejudice to the provisions set out in this Article, a 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 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 24c, in a subsidiary are protected. In particular, a parent company may approve the transmission system operator's annual financial plan, or any equivalent instrument, and set global limits on the levels of indebtedness of its subsidiary. The parent company shall give no instructions regarding day-to-day operations or with respect to individual decisions concerning the construction or upgrading of transmission gas pipelines that do not exceed the terms of the approved financial plan, or any equivalent instrument. Supervisory board and Board of directors 12. A chairperson of the transmission system operator's supervisory board or board of directors shall not participate in any branch of the vertically integrated undertaking performing functions of production or supply. 13. The transmission system operator's supervisory board or board of directors shall include independent members, appointed for a term of at least 5 years. Their appointment shall be notified to the regulatory authority or any other competent national public authority and shall become binding subject to the conditions set out in paragraph 5. 14. For the purpose of paragraph 12, 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 or its controlling shareholders or the management of either, which 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 or 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 appointment to the supervisory board or 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 or board of directors. Compliance officer 15. 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 and shall be subject to approval of the regulatory authority or any other competent national public authority. Compliance with the programme shall be independently monitored by the compliance officer. The regulatory authority shall have the power to impose sanctions in the event of inappropriate implementation of the compliance programme. 16. The transmission system operator' chief executive officer or executive board shall appoint a person or body as a compliance officer in order to: (a) monitor the implementation of the compliance programme ; (b) elaborate an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority; and (c) issue recommendations on the compliance programme and its implementation. 17. The independence of the compliance officer shall be guaranteed in particular by the terms of his or her employment contract 18. 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. 19. 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 grid, including the collection of access charges and congestion rents; (b) projects undertaken in order to operate, maintain and develop the transmission grid system, including interconnection and connection investments; (c) balancing rules, including the transmission system operator's flexibility needs; and (d) energy purchases in order to cover the transmission system operator's needs. 20. During the meetings referred to in paragraph 19, 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. 21. 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. 22. The compliance officer shall be appointed and removed from office by the chief executive officer or executive board subject to the prior approval of the regulatory authority. Grid development and powers to make investment decisions 23. 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. 24. In order to elaborate its 10-year network development plan, each transmission system operator shall make reasonable estimates about the evolution of supply, 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 competent national body within a reasonable time period. 25. The competent national body shall consult all relevant network users on the basis of the 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. 26. The competent national body shall examine whether the 10-year network development plan covers all investment needs identified in the consultation. That body may require a transmission system operator to amend its plan 27. A competent national body in the context of paragraphs 24, 25 and 26, shall include the national regulatory authority, any other competent national public authority, or a network development trustee comprised of transmission system operators. In the latter case, a transmission system operator shall submit its draft statutes, list of members and rules of procedure for approval to the competent national public authority. 28. If a 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, Members States shall ensure that the regulatory authority or any other competent national public authority have the competence to: (a) request the transmission system operator to execute its investment obligations using its financial capacities; (b) invite independent investors to tender for the necessary investment in a transmission system, possibly requiring the transmission system operator to agree to: (i) third-party financing; (ii) a third party building a new asset; and/or (iii) a third party operating a new asset. The relevant financial arrangements shall be subject to the approval of the regulatory authority or any other competent national public authority. Whether the transmission system operator or a third party make a specific investment, tariff regulation shall allow for revenue that cover the costs of such investment. 29. The competent national public authority shall monitor and evaluate the implementation of the investment plan.

2008/03/11
Committee: ECON

Benoît HAMON, Bernadette VERGNAUD, Catherine NERIS

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

Directive 2003/55/EC
Article 3 – paragraph 2

1a) Article 3(2) is amended as follows: "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 supplies and environmental protection, including energy efficiency and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for EU gas companies to national consumers. These obligations may, for example, take the form of price regulation, including the fixing of a ceiling price for gas supplies to final users. In relation to security of supply, energy efficiency/demand-side management and for the fulfilment of environmental goals, as referred to in this paragraph, Member States may introduce the implementation of long- term planning, taking into account the possibility of third parties seeking access to the system."

2008/03/12
Committee: IMCO

Bernadette VERGNAUD, Benoît HAMON

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

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

(3a) The following article shall be inserted after Article 6: "6a. 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 have to comply either with the provisions of points (a) – (d) of Article 7 on ownership unbundling or with the following provisions of Article 9a on effective and efficient unbundling (“EEU”)."

2008/03/12
Committee: IMCO

Bernadette VERGNAUD, Benoît HAMON

Proposal for a directive – amending act
Article 1 – point 8

Directive 2003/55/EC
Article 9

Independent system operators 1. Where the transmission system belongs to a vertically integrated undertaking on entry into force of this Directive, Member States may grant derogations from Article 7(1), provided that an independent system operator is designated by the Member State upon a proposal from the transmission system owner and subject to approval of such designation by the Commission. Vertically integrated undertakings which own a transmission system may not in any event be prevented from taking steps to comply with Article 7(1). 2. The Member State may approve and designate an independent system operator only where:: a) the candidate operator has demonstrated that it complies with the requirements of Article 7(1)(b) to (d); ; b) the candidate operator has demonstrated that it has at its disposal the required financial, technical and human resources to carry out its tasks under Article 8;; c) the candidate operator has committed to complying with a ten year network development plan proposed by the regulatory authority; the transmission system owner has demonstrated its ability to comply with its obligations under paragraph 6. To this effect, it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity; e) the candidate operator has demonstrated its ability to comply with its obligations under Regulation (EC) No 1775/05 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission network* 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 Articles 7a and 9(2) shall be approved and designated as independent system operators by Member States. The certification procedure in Article 7b shall be applicable. 4. Where the Commission has taken a decision in accordance with the procedure in Article 7b and finds that the regulatory authority has not complied with its decision within two months, it shall, within a period of six months, designate, on a proposal from the Agency and after having heard the views of the transmission system owner and the transmission system operator, an independent system operator for a period of 5 years. At any time, the transmission system owner may propose to the regulatory authority the designation of a new independent system operator pursuant to the procedure in Article 9(1). 5. Each independent system operator shall be responsible for granting and managing third party access, including the collection of access charges and congestion rents, for operating, maintaining and developing the transmission system, as well as for ensuring the long term ability of the system to meet reasonable demand through investment planning. When developing the network the independent system operator is responsible for planning (including authorisation procedure), construction and commissioning of the new infrastructure. For this purpose, it shall act as a transmission system operator in accordance with this Chapter. Transmission system owners may not be responsible for granting and managing third party access, nor for investment planning. 6. Where an independent system operator has been designated, the transmission system owner shall: a)provide all the relevant cooperation and support to the independent system operator for the fulfilment of its tasks, including 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 this approval, the Regulatory Authority shall consult the asset owner together with other interested parties; c) provide for the coverage of liability relating to the network assets that it owns and are managed by the independent system operator, excluding the liability relating to the tasks of the independent system operator; d) provide guarantees to facilitate financing any network expansions with the exception of those investments where, pursuant to paragraph b, it has given its agreement to financing by any interested party including the independent system operator. 7. In close cooperation with the regulatory authority, the relevant national competition authority shall be granted all relevant powers to effectively monitor compliance of the transmission system owner with its obligations under paragraph 6.Article 9 Deleted

2008/03/12
Committee: IMCO

Bernadette VERGNAUD, Benoît HAMON

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

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

(8a) A new article 9(aa) is inserted: "Article 9(aa) Effective and efficient unbundling of transmission systems 1. TSOs 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) Assets that are necessary for the regular business of gas transmission shall be owned by the TSO. (ii) Personnel necessary for the regular business of gas transmission shall be employed by the TSO. (iii) 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 limited to cases with no discriminatory potential and be subject to approval by national regulatory authorities in order to exclude competition concerns and conflicts of interest. (iv) Appropriate financial resources for future investment projects shall be kept available in due time. 1b. The activities deemed necessary for the regular business of gas transmission referred to in paragraph 1 shall include at least: • representation of the TSO and contacts to third parties and the regulatory authorities • granting and managing third party access • collection of access charges and congestion rents • 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. TSOs shall be organised in the legal form of a joint-stock company. 3. The TSO shall have its own corporate identity, significantly different from the vertically integrated undertaking with separate branding, communication and premises. 4. TSOs accounts shall be audited by another auditor than the one auditing the vertically integrated undertaking and all its affiliated companies. Independence of the TSO management, chief executive officer / executive board 5. Decisions on the appointment and on any premature termination of the employment of the chief executive officer / members of the executive board of the TSO and the respective contractual agreements of the employment and its termination shall be notified to the regulatory authority or any other competent national public authority. These decisions and agreements may become binding only if, within a period of 3 weeks time after notification, to the regulatory authority or any other competent national public authority has not used it’s right of veto. A veto may be issued in cases of appointment and respective contractual agreements if serious doubts arise as to the professional independence of the nominated chief executive officer / member of the executive board, or in the case of premature terminations of employment and respective contractual agreements, if serious doubts, exist regarding the reasoning for this measure. 6. Effective rights of appeal to the regulatory authority or another competent national public authority or to a court shall be guaranteed for any complaints by the management of the TSO against premature terminations of their employment. 7. After termination of employment by the TSO, chief executive officers / members of the executive board shall not participate in any branch of the vertically integrated undertaking performing functions of production or supply for a period of not less than 3 years. 8. 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 TSO. His/their remuneration shall in no part depend on activities of the vertically integrated undertaking other than those of the TSO. 9. The chief executive officer or the members of the executive board of the TSO may not bear responsibility, directly or indirectly, for the day-to-day operation of any other branch of the vertically integrated undertaking. 10. Without prejudice to the provisions of this Article, the TSO 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 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 24 c, 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 transmission 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 individual decisions concerning the construction or upgrading of transmission gas pipelines, that do not exceed the terms of the approved financial plan, or any equivalent instrument. 11. Chairmen of the supervisory board/board of directors of the TSO shall not participate in any branch of the vertically integrated undertaking performing functions of production or supply. 12. The supervisory boards / boards of directors of TSOs shall include independent members, appointed for a term of at least 5 years. Their appointment shall be notified to the regulatory authority/ or any other competent national public authority and become binding under the conditions described in paragraph 5. 13. For the purposes of paragraph 12, a member of the supervisory board / board of directors of a TSO 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 such as to impair his judgement, in particular: (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 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 TSO (c) does not hold any relevant business relationship with any branch of the vertically integrated company performing functions of energy supply during his 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. 14. Member States shall ensure that TSOs 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 this objective. It shall be subject to approval of the regulatory authority or any other competent national public authority. Compliance with the program 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 program. 15. The chief executive officer / executive board of the TSO shall appoint a person or a body as a compliance officer in charge of : (i) monitoring the implementation of the compliance programme; (ii) elaborating an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority ; (iii) issuing recommendations on the compliance programme and its implementation. 16. The independence of the compliance officer shall be guaranteed in particular by the terms of his employment contract 17. The compliance officer shall have the opportunity to regularly address the supervisory board/board of directors of the TSO, of the vertically integrated undertaking and the regulatory authorities. 18. The compliance officer shall assist to all sessions 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 grid, including the collection of access charges and congestion rents; (ii) projects undertaken in order to operate, maintain and develop the transmission grid system, including interconnection and connection investments ; (iii) balancing rules, including TSOs’ flexibility needs ; (iv) energy purchases in order to cover TSOs’ needs. 19. During these sessions, he shall prevent information about customers or suppliers activities which may be commercially advantageous from being disclosed in a discriminatory manner to the supervisory board/board of directors. 20. The compliance officer shall have access to all relevant books, records and offices of the TSO and to all the necessary information for the fulfilment of his task for the proper performance of his duties. 21. The compliance officer shall be nominated and removed by the chief executive officer / executive board only after prior approval by the regulatory authority. Grid development and powers to make investment decisions 22. TSOs 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. 23. 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. 24. In order to elaborate this 10-year network development plan, each TSO shall make a reasonable hypothesis about the evolution of supply, consumption and exchanges with other countries, and takes into account regional and European-wide existing network investment plans. The TSO shall submit in due time the draft to the competent national body. 25. The competent national body 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. 26. The competent national body shall examine whether the 10-year network development plan covers all investment needs identified in the consultation. The authority may oblige the TSO to amend his plan. 27. A competent national body for the purposes of paragraphs 24, 25 and 26 may be the national regulatory authority, any other competent national public authority or a network development trustee constituted by TSOs. In the latter case, TSOs shall submit the drafts of the statutes, of the list of members and of the rules of procedure to the approval of the competent national public authority. 28. If the TSO 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 regulatory authority or any other competent national public authority is competent to take one or other of the following measures: (a) to request the TSO to execute, by all legal means, his investment obligations using his financial capacities; or (b) to invite independent investors to tender for a necessary investment in a transmission system and, in so doing, may oblige the TSO: - to agree to financing by any third party, - to agree to building by any third party or to build the new assets, and - to operate the new asset. The relevant financial arrangements shall be subject to the approval of the regulatory authority or any other competent national authority. In both cases, tariff regulation shall allow for revenues that cover the costs of such investments. 29. The competent national public authority shall monitor and evaluate the implementation of the investment plan."

2008/03/12
Committee: IMCO

7 Amendments of Benoît HAMON related to 2007/0196(COD)

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