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 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 national regulatory authorities in order to exclude competition concerns and conflicts of interest; (d) appropriate financial resources for future investment projects shall be available within an appropriate delay. 2. The activities deemed necessary for the regular business of gas transmission referred to in paragraph 1 shall include, at least: (a) representing the transmission system operator and contacts to third parties and the regulatory authorities; (b) granting and managing third-party access; (c) collecting access charges, congestion rents; (d) operating, maintaining 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 information technology services. 3. Transmission system operators shall take the legal form of a joint-stock company. 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. 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 management, chief executive officer / executive board 6. 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 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 it's 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 the management of the transmission system operator against premature terminations of their employment. 8. After termination of employment in 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. 9. 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. 10. 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. 11. 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 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, 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. Supervisory board and board of directors 12. Chairpersons 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 provided for in paragraph (6). 14. For the purposes of paragraph 12, a member of the 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 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 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. It 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 case of inappropriate implementation of the compliance programme. 16. 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 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 transmission system operators' flexibility needs; and (d) energy purchases in order to cover transmission system operators' 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 nominated and removed from office by the chief executive officer or executive board only following the prior approval of the regulatory authority. Grid development and powers to make investment decisions 23. 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. That development 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. 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. 26. The competent national body 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. 27. The competent national body 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. 28. A competent national body in the context of paragraphs 4 to 6, 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, the transmission system operator shall submit its draft statutes, list of members and rules of procedure for approval by the competent national public authority. 29. 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, Members States shall ensure that the regulatory authority or any other competent national public 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 a 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 assets; 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 makes a specific investment, tariff regulation shall allow for revenue that covers the costs of such investment. 30. The competent national public authority shall monitor and evaluate the implementation of the investment plan.