Proposal for a directive – amending act
Article 1 – point 5 a (new)
Directive 2003/54/EC
Article 8b a (new)
(5a) The following Article shall be inserted: "Article 8ba Effective and efficient unbundling of transmission systems I. Assets, equipment, staff and identity Transmission system operators shall be equipped with all human, physical and financial resources of the vertically integrated undertaking necessary for the regular business of electricity transmission, in particular: (a) transmission system operator shall own assets that are necessary for the regular business of electricity; (b) transmission system operator shall employ personnel necessary for the regular business of electricity transmission; (c) leasing of personnel and rendering of services, from and to any branch of the vertically integrated undertaking performing functions of generation or supply, shall be 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; (d) appropriate financial resources for future investment projects shall be available in due time. 2. The activities deemed necessary for the regular business of electricity transmission mentioned in paragraph 1 shall at least include : (a) representation of the transmission system operator and contacts with third parties and national regulatory authorities; (b) granting and managing third party access to the grid; (c) collection of the access charges, congestion rents and payments under the inter transmission system operator compensation mechanism in compliance with Article 3 of Regulation (EC) No. 1228/2003; (d) operation, maintenance and development of 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; (g) accountancy and IT services. 3. Transmission system operators shall have a legal form of a joint-stock company. 4. The transmission system operator shall have its own corporate identity, significantly different from the vertically integrated undertaking with separate branding, communication and premises. 5. Transmission system operators´ accounts shall be audited by another auditor than the one auditing the vertically integrated undertaking and all its affiliated companies. II. Independence of the transmission system operator management, chief executive officer / executive board 6. Decisions on the appointment and on any early termination of the employment of the chief executive officer / members of the executive board of the transmission system operator and the conclusion or early termination of respective employment contracts with these persons shall be notified to the national regulatory authority or any other competent national public authority. These decisions and agreements may become binding only if, within a period of 3 weeks after the notification, the national regulatory authority or any other competent national public authority has not used it's right of veto. A veto may be used in the case of appointment and conclusion of respective contractual agreements if serious doubts arise as to the professional independence of the nominated chief executive officer / member of the executive board; in the case of early termination of employment and respective employment contracts with the chief executive officer / member of the executive board, the national regulatory authority or any other competent national public authority may use its right of veto if serious doubts exist regarding the basis and justification for such termination. 7. Right of appeal to the regulatory authority or another competent national public authority or to a court shall be guaranteed to the chief executive office or the member of the executive board of the transmission system operator in case of early terminations of their employment. 8. After 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. 9. The chief executive officer / members of the executive board shall not hold any interest in or receive any compensation from any undertaking of the vertically integrated company other than the transmission system operator. His/their remuneration shall in no part depend on activities of the vertically integrated undertaking other than those of the transmission system operator. 10. The chief executive officer or the members of the executive board of the transmission system operator may not bear responsibility, directly or indirectly, for the day-to-day operation of any other branch of the vertically integrated undertaking. 11. Without prejudice to the provisions above, the transmission system operator shall have effective decision-making rights, independent from the integrated electricity undertaking, with respect to assets necessary to operate, maintain or develop the network. This should not prevent the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets, regulated indirectly in accordance with Article 22c, 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 lines, that do not exceed the terms of the approved financial plan, or any equivalent instrument. III. Supervisory board / Board of directors 12. Chairmen of the supervisory board/board of directors of the transmission system operator shall not participate in any branch of the vertically integrated undertaking performing functions of generation or supply. 13. The supervisory boards / boards of directors of transmission system operator shall include also independent members, appointed for a term of at least 5 years. Their appointment shall be notified to the national regulatory authority/ or any other competent national public authority and become binding under the conditions described in paragraph 6. 14. For the purpose of paragraph 13, a member of the supervisory board / board of directors of a transmission system operator shall be deemed independent if he is free of any business, or other relationship with the vertically integrated undertaking, its controlling shareholders or the management of either, that creates a conflict of interest, in particular: (a) has not been an employee of any branch of the vertically integrated undertaking performing functions of generation and supply in five years prior to their appointment as a member 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 hold any relevant business relationship with any branch of the vertically integrated company performing functions of energy supply during his/her appointment as a member 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 15. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out measures to be taken to ensure that discriminatory conduct is excluded. The programme shall also set out specific obligations of employees of the transmission system operator to meet this objective. The programme shall be subject to approval of the national regulatory authority or any other competent national public authority. Compliance of the program shall be independently monitored by the compliance officer. The national regulatory authority shall have the power to impose sanctions in case of inappropriate implementation of the compliance program by the transmission system operator. 16. 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 : (a) monitoring the implementation of the compliance programme; (b) elaborating an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the national regulatory authority; (c) issuing 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/her employment contract 18. The compliance officer shall have the opportunity to regularly address the supervisory board/board of directors of the transmission system operator and of the vertically integrated undertaking and the national regulatory authorities. 19. The compliance officer shall participate at all meetings of the supervisory board / board of directors of the transmission system operator that address the following issues: (a) conditions for access and connection to the grid, including the collection of access charges, congestion rents, and payments under the inter transmission system operator compensation mechanism in compliance with Article 3 of Regulation (EC) No 1228/2003; (b) projects undertaken in order to operate, maintain and develop the transmission grid system, including interconnection and connection investments; (c) balancing rules, including reserve power rules; (d) energy purchases in order to cover energy losses. 20. During these meetings, the compliance officer shall prevent information about generation or supply activities which may be commercially advantageous from being disclosed in a discriminatory manner to the supervisory board/board of directors. 21. The compliance officer shall have access to all relevant books, records and offices of the transmission system operator and to all necessary information for the proper fulfilment of the tasks. 22. The compliance officer shall be nominated and removed by the chief executive officer / executive board only after prior approval by the national regulatory authority."