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 I. Effective and efficient unbundling of transmission systems 1. Transmission system operators shall be equipped with all human, physical and financial resources of the vertically integrated undertaking which are required for the regular business of electricity transmission, in particular: (a) transmission system operator shall own assets necessary for the regular business of electricity transmission; (b) transmission system operator shall employ personnel required for the regular business of electricity transmission; (c) the leasing of personnel and provision of services to and from 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 made available in due time. 2. The activities deemed necessary for the regular business of electricity transmission referred to in paragraph 1 shall include at least: - representation of the transmission system operator, contacts with third parties and the regulatory authorities; - granting and managing third party access to the grid; - 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; - 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. 3. The transmission system operator shall have its own corporate identity, significantly different from the vertically integrated undertaking with separate branding, communication and premises. 4. The accounts of transmission system operators shall be audited by a different 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 5. Decisions on the appointment and on any early termination of the employment of the chief executive officer and other members of the executive board of the transmission system operator and on the conclusion and early termination of the respective employment agreements with such persons shall be notified to the national regulatory authority or another competent national public authority. These decisions and agreements may become binding unless the regulatory authority or any other competent national public authority uses its right of veto within a period of 3 weeks following the notification. A veto may be issued in case of appointment and conclusion of an agreement posing serious doubts as to the professional independence of the nominated chief executive officer or the member of the executive board; in the case of early termination of employment of those persons, the veto may be used if serious doubts exist as regards the basis for such termination. 6. An effective right of appeal to the national regulatory authority or any other competent national public authority or court shall be guaranteed for chief executive officer or the member of the executive board of the transmission system operator regarding the early termination of their employment. 7. After termination of employment by the transmission system operator, the relevant former chief executive officers and members of the executive board shall not work in any capacity in any branch of the vertically integrated undertaking performing functions of generation or supply for a period of not less than 3 years. 8. The chief executive officer and members of the executive board of the transmission system operator shall not hold any interest in, or receive any compensation from, any undertaking of the vertically integrated company other than the transmission system operator. Remuneration of the chief executive officer and members of the executive board shall in no part depend on activities of the vertically integrated undertaking other than those of the transmission system operator. 9. 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. 10. Without prejudice to the provisions of this Article, the transmission system operator shall have effective decision- making powers 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 are protected in respect of a return on assets in a subsidiary, as indirectly regulated in accordance with Article 22c. 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 overall limits on the level of indebtedness of its subsidiary. If the annual financial plan, or any equivalent financial plan, is not approved or changed by the parent company, the case shall be referred to the regulatory authority for a decision. The parent company shall not be permitted to give instructions in 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. 11. Chairmen of the supervisory board or the board of directors of the transmission system operator shall not work in any capacity in any part of the vertically integrated undertaking performing functions of generation or supply. 12. The supervisory boards or 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 laid down in paragraph 5. 13. For the purposes of paragraph 12, a member of the supervisory board or board of directors of a transmission system operator shall be deemed independent if he/she is free of any business or other relationship within 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 his/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 hold any relevant business relationship with any branch of the vertically integrated company performing functions of electricity supply during his/her 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. 14. 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 does not occur. The programme shall also set out specific obligations of employees to meet this objective. It shall be subject to the approval of the national regulatory authority or any other competent national public authority. Compliance with the program shall be independently monitored by the compliance officer. The national regulatory authority shall have the power to impose sanctions on transmission system operator in case of inappropriate implementation of the compliance program. 15. The chief executive officer or 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) producing an annual report which sets out the measures to be 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. 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 or board of directors of the transmission system operator of the vertically integrated undertaking and the national regulatory authorities. 18. The compliance officer shall participate in all meetings of the supervisory board or 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. 19. During these meetings, the compliance officer shall prevent information about generation or supply activities which may be commercially sensitive from being disclosed in a discriminatory manner to the supervisory board or board of directors. 20. The compliance officer shall have access to all relevant books, records and offices of the transmission system operator, as well as to all information required for proper performance of his/her duties. 21. The compliance officer shall be nominated and removed by the chief executive officer or executive board after the prior approval by the national regulatory authority. 22. Transmission system operators shall draw up 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 should preferably be built over the next ten years; (b) contain all the investments already decided on and identify new investments for which an implementation decision has to be taken in the next three years. 24. In order to draw up this 10-year network development plan, each transmission system operator shall make a reasonable hypothesis as to the evolution of generation, consumption and exchanges with other countries, and shall take into account regional and European- wide existing network investment plans. The transmission system operator shall submit in due time the draft of this plan to the national regulatory authority. 25. The national regulatory authority 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 the possible investment needs. 26. The national regulatory authority shall examine whether the draft 10-year network development plan covers all investment needs identified in the consultation. The authority may oblige the transmission system operator to amend its draft. 27. If the transmission system operator rejects the implementation of a specific investment listed in the 10-year network development plan to be undertaken in the next three years, Members States shall ensure that the national regulatory authority or any other competent national public authority have the necessary powers to implement one of the two following measures: (a) request the transmission system operator to undertake, by all legal means, its investment obligations using its own financial means; (b) invite independent investors to a tender for the necessary investment in a transmission system and, in so doing, may oblige the transmission system operator: - to agree to financing by any third party; - to agree to the provision of construction works by any third party and to the construction of the new assets; - to agree to operate the new assets. The relevant financial arrangements shall be subject to the approval of the national regulatory authority or any other competent national authority. In both cases, tariff regulation shall allow for revenues that cover the costs of such investments. 28. The competent national public authority shall monitor and evaluate the implementation of the investment plan. 29. Transmission system operators shall be obliged to establish and publish transparent and efficient procedures for the 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. 30. 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 remote parts of the transmission grid. The transmission system operators shall be obliged to supply the necessary information. 31. Transmission system operators shall not be entitled to refuse a new connection point on the sole basis that this new connection would lead to additional costs because of the required capacity increase of grid elements within close range of that new connection point."