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."