[ParlTrack]

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 4

(4) The Communication of the Commission of 10 January 2007 entitled “An Energy Policy for Europe” highlighted the importance of completing the internal market in electricity and of creating a level playing field for all electricity companies established in the Community. The Internal Energy Market Communication ~~and the final Report on the Competition Sectoral Enquiry~~ showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well functioning internal market. Furthermore, the final Report on the Competition Sectoral Enquiry and the impact assessment conducted to support the third legislative package on the internal energy market provided no convincing evidence to make it possible to determine the best or only way to improve the way the internal market works.

2008/03/17
Committee: ITRE

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 5

(5) Without effective separation of networks from activities of generation and supply, there is an inherent risk of discrimination not only in the operation of the network but also in the incentives for ~~vertically integrated~~ companies to invest adequately in their networks. The main motivation for investing is the remuneration received by the operator. If the national regulatory authority sets a low level of remuneration, this will lead to a decrease in investment. On the other hand, if it sets a fair and proportionate level of remuneration, ensuring that revenue covers costs and pays off such investment, it will automatically generate an increase in investment, regardless of whether the network operator belongs to an integrated group. Therefore, the primary major determining factor for investment resides in pricing regulation and in the role and powers of the national regulatory authorities, which should be reinforced in order to complete the internal market to the benefit of the consumer.

2008/03/17
Committee: ITRE

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 7

(7) ~~Only t~~The removal of the inherent incentive for vertically integrated companies to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the network owner being appointed as the network operator and being independent from any supply and production interests, is ~~clearly the most effective and stabl~~one of the way tos of solveing the inherent conflict of interest ~~and to ensure security of supply. For this reason, t~~. The European Parliament in its Rresolution on Pprospects for the internal gas and electricity market adopted on 10 July 2007 referred to ownership unbundling at transmission level as the most effective tool to promote investments in infrastructures in a non-discriminatory way, fair access to the grid for new entrants and transparency in the market. Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control, including through minority blocking rights on decisions of strategic importance such as investments, over a production or supply undertaking and, at the same time, hold any interest in or exercise any right over a transmission system operator or transmission system. Conversely, control over a transmission system operator should preclude the possibility of holding any interest in or exercising any right over a supply undertaking.

2008/03/17
Committee: ITRE

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 8 a (new)

(8a) Member States that so wish may apply the provisions of this Directive relating to the effective and efficient separation of transmission systems and transmission system operators. This separation is effective because it helps ensure the independence of transmission system operators. It is efficient because it provide a more appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new entrants and the integration of electricity markets. It is based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. It is in line with the requirements laid down by the European Council at its meeting in Brussels on 8 and 9 March 2007.

2008/03/17
Committee: ITRE

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, 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,~~, effective and efficient unbundling of transmission systems and of transmission system operators, and setting up system operators which are independent from supply and generation interests. 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.

2008/03/17
Committee: ITRE

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 22

(22) In view of the creation of an internal market for electricity, Member States should foster the integration of their national markets and the cooperation of network operators at European and ~~regional level~~national level. Regional integration initiatives are an essential intermediate step in achieving European integration of energy markets, which remains the final objective. The regional level contributes towards accelerating the integration process by making it possible for the actors concerned, particularly the Member States, the national regulatory authorities and the transmission system operators, to cooperate on specific issues.

2008/03/17
Committee: ITRE

Dominique VLASTO, Herbert REUL, Paul RÜBIG, Nicole FONTAINE, Ján HUDACKÝ, Catherine TRAUTMANN

Proposal for a directive – amending act
Recital 22 a (new)

(22a) Regional coordinators could be appointed to facilitate dialogue between all relevant actors, national authorities, transmission system operators, users, electricity exchanges and other market actors. Their involvement could be particularly beneficial for the planning of cross-border investment. They will report annually to the Commission and the Member States on the progress made and difficulties encountered.

2008/03/17
Committee: ITRE

Herbert REUL, Nicole FONTAINE, Erna HENNICOT-SCHOEPGES, Nikolaos VAKALIS, Angelika NIEBLER, Ján HUDACKÝ, Vladimir URUTCHEV, Werner LANGEN, Paul RÜBIG, Dominique VLASTO

Proposal for a directive – amending act
Article 1 – point 3

Directive 2003/54/EC
Article 5a

1. Member States shall cooperate among themselves for the purpose of integrating their national markets at least at the regional level. In particular, Member States shall promote the cooperation of network operators at a regional level, and foster the consistency of their legal and regulatory framework. ~~The geographical area covered by regional cooperations shall be in line with the definition of geographical areas b~~1a. When the cooperation between several Member States at a regional level encounters significant difficulties, following the joint request of these Member States the Commission may designate, in agreement with all Member States concerned, a regional coordinator. 1b. The regional coordinator shall promote at a regional level the cooperation of national regulatory authorities and any othe ~~Commission in accordance with Article 2h(3) of Regulation (EC) No 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions f~~r 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 at drawing up of their regional interconnection plan and 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 a~~ccess to the network for cross-border exchanges in electricity."~~ uthorities and other competent national public authorities with the preparation of common allocation and common safeguard mechanisms; (c) annually submit a report to the Commission and Member States concerned on the progress achieved in the region and on any difficulty or obstacle that may hinder such a progress.

2008/03/17
Committee: ITRE

Dominique VLASTO

Proposal for a directive – amending act
Article 1 – point 3

Directive 2003/54/EC
Article 5a

~~Member Stat~~1. The relevant national authorities and the national regulatory authorities shall cooperate among themselves for the purpose of integrating their national markets at least at the regional level. In particular, ~~Member States~~they shall promote ~~the~~ cooperation of network operators at a regional level, and foster the convergence and consistency of their legal and regulatory framework. The geographical area covered by regional cooperations shall be in line with the definition of geographical areas by the Commission in accordance with Article 2h(3) of Regulation (EC) No 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity."

2008/03/17
Committee: ITRE

Dominique VLASTO

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

Directive 2003/54/EC
Article 5a – paragraph 1 a (new)

(3a) In Article 5a, the following paragraph shall be added: ‘1a. In order to foster the development of a secure and reliable management of cross-border electricity flows, transmission system operators shall set up, inside each geographical area defined in Article 2h(3) of Regulation (EC) No 1228/2003, a coordination centre that shall: (i) provide a common communication platform in the event of emergency; (ii) conduct regional research into cases of congestion at borders.’ Or. fr (Adding new paragraph 1a to Article 5a of Directive 2003/54/EC)

2008/03/17
Committee: ITRE

Dominique VLASTO

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

Directive 2003/54/EC
Article 5a – paragraph 1 b (new)

(3b) In Article 5a, the following paragraph shall be added: ‘1c. The relevant national authorities covered by the new regional system operator shall, in accordance with a binding timetable communicated to the Agency, harmonise the rules on: – the allocation of cross-border capacities for all timescales; – the establishment of a single interface for users of interconnections; – common management of a secondary market; – the creation of an integrated system of sub-daily interconnection capacities; – adjustment and security. Or. fr (Adding new paragraph 1b to Article 5a of Directive 2003/54/EC)

2008/03/17
Committee: ITRE

Herbert REUL, Nicole FONTAINE, Erna HENNICOT-SCHOEPGES, Nikolaos VAKALIS, Angelika NIEBLER, Ján HUDACKÝ, Vladimir URUTCHEV, Werner LANGEN, Paul RÜBIG, Dominique VLASTO

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

Directive 2003/54/EC
Article 7 a (new)

(3h) The following Article shall be inserted: "Article 7a 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 Article 8(1), points (a) to (d), or with Article 10 or with the provisions of Article 8ba." Or. en (Adding a new Article 7a to Directive 2003/54/EC)

2008/03/17
Committee: ITRE

Dominique VLASTO

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

Directive 2003/54/EC
Article 8 – paragraph 5

5. The obligation set out in paragraph 1(a) is deemed to be fulfilled in a situation where several undertakings which own transmission systems have created a joint venture which acts as a transmission system operator in several Member States for theIn order to ensure regional cooperation as laid down in Article 5a, the Member States shall encourage and support all collaboration and/or cooperation between transmission system operators and regulatory authorities aimed at harmonising access and balancing rules (in favour of the integration of balancing areas) within and across several neighbouring Member States in accordance with Article 2h(3) of Regulation (EC) No 1228/2003. This cooperation may take the form of a common structure for all transmission system operators concerned~~. No other undertaking may be part of the joint venture, unles~~, so as to cover several neighbouring territories. In this case, Member States shall ensure that this common structure of transmission system operators complies wit ~~has been approved under A~~h the principles laid down in this article ~~10 as~~ and in~~dependent system operator~~ Article 10a.

2008/04/11
Committee: ITRE

Herbert REUL, Nicole FONTAINE, Erna HENNICOT-SCHOEPGES, Nikolaos VAKALIS, Angelika NIEBLER, Ján HUDACKÝ, Vladimir URUTCHEV, Werner LANGEN, Paul RÜBIG, Dominique VLASTO

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."

2008/04/11
Committee: ITRE

Nicole FONTAINE, Dominique VLASTO

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

Directive 2003/54/EC
Article 9 – point (f a) (new)

(6d) In Article 9, the following point shall be inserted: "(fa) drawing up an estimate of the adequacy of the electricity system, the results of which should be taken into account in the European estimate referred to in Regulation (EC) No 1228/2003." Or. fr (Adding new point fa) to Article 9 of Directive 2003/54/EC)

2008/04/11
Committee: ITRE

Nicole FONTAINE, Dominique VLASTO

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

Directive 2003/54/EC
Article 9 – point (f b) (new)

(6e) In Article 9, the following point shall be inserted: "(fb) creating a TSO maintenance programme to ensure adequate supply quality. Compliance with this maintenance programme should be monitored by the competent national public authority.” Or. fr (Adding new point fb) to Article 9 of Directive 2003/54/EC)

2008/04/11
Committee: ITRE

Dominique VLASTO

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

Directive 2003/54/EC
Article 9 – paragraph 1 a (new)

(6f) In Article 9, the following paragraph shall be inserted: "In carrying out its tasks, each transmission system operator shall ensure that the benefit of the region it is operating in is duly taken into account. Without prejudice to the shareholders' rights related to investment profitability and equity needs, operational and investment decisions taken by a transmission system operator shall be consistent with the Community–wide and regional investment plans pursuant to Articles 2c and 2d of the Regulation (EC) No 1228/2003 and shall facilitate market development, market integration and optimize socio-economic welfare gains at least at regional level." Or. en (Adding a new paragraph 1a in Article 9 of Directive 2003/54/EC)

2008/04/11
Committee: ITRE

Herbert REUL, Nicole FONTAINE, Erna HENNICOT-SCHOEPGES, Nikolaos VAKALIS, Angelika NIEBLER, Ján HUDACKÝ, Vladimir URUTCHEV, Werner LANGEN, Paul RÜBIG, Dominique VLASTO

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

Directive 2003/54/EC
Article 9 –paragraphs 1a to 1 k (new)

(6g) In Article 9, the following paragraphs shall be inserted: "Transmission system operators shall elaborate a 10-year network development plan at least every two years. They shall provide efficient measures in order to guarantee system adequacy and security of supply. 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. 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 operators shall submit in due time the draft of this plan to the competent national body. The competent national body shall consult all relevant network users on the basis of such draft in an open and transparent manner and may publish the result of the consultation process, in particular possible needs for investments. The competent national body shall examine whether the draft 10-year network development plan covers all investment needs identified in the consultation. The competent national body may oblige the transmission system operator to amend its draft of the plan. Competent national body may be the national regulatory authority, any other competent national public authority or a network development trustee constituted by transmission system operators. In the latter case, transmission system operators shall submit the drafts of the statutes, the list of members and of the rules of procedure to the approval of the competent national public authority. If the transmission system operator rejects to implement a specific investment listed in the 10-year network development plan to be executed in the next three years, Members States shall ensure that the national regulatory authority or any other competent national public authority have the competence to take one of the following measures: a) request by all legal means the transmission system operator to execute its investment obligations by using its financial capacities or, b) invite independent investors to participate in a tender for necessary investment in a transmission system and may at the same time oblige the transmission system operator: (i) to agree to financing by any third party, (ii) to agree to building by any third party or to build the respective new assets and (iii) to operate the respective new asset. The relevant financial arrangements shall be subject to the approval of the national regulatory authority or any other competent national public authority. In both cases, tariff regulation shall allow for revenues that cover the costs of such investments. Competent national public authority shall monitor and evaluate the implementation of the investment plan. Transmission system operators shall be obliged to establish and publish transparent and efficient procedures for non-discriminatory connection of new power plants to the grid. Those procedures shall be subject to the approval of national regulatory authorities or any other competent national public authority Transmission system operators shall not be entitled to refuse the connection of a new power plant on the grounds of possible future limitations to available network capacities, e.g. congestion in distant parts of the transmission grid. The transmission system operator shall be obliged 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."

2008/04/11
Committee: ITRE

Dominique VLASTO