46 Amendments of Angelika NIEBLER related to 2007/0196(COD)
Amendment 40 #
Proposal for a directive – amending act
Recital 4
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 natural gas and of creating a level playing field for all gas 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. On the other hand, the final Report on the Competition Sectoral Enquiry and the impact assessment produced to support the third legislative package on the internal energy market provided no convincing evidence that made it possible to establish the best or only way to improve the way that market works.
Amendment 45 #
Proposal for a directive – amending act
Recital 5
Recital 5
(5) Without effective separation of networks from activities of production 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. Should the national regulatory authority set a low level of remuneration, this would lead to a decrease in investment. On the other hand, should it set a fair and proportionate level of remuneration, ensuring that revenue covers costs and pays off such investment, it would 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.
Amendment 50 #
Proposal for a directive – amending act
Recital 7
Recital 7
(7) Only tThe 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 stablone way to solve 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, , considered moreover that the application of further unbundling measures for the gas sector is not straightforward, and therefore urged the development of specific solutions to enable this sector to achieve the completion of the internal gas market, taking into accountrol over a transmission system operator should preclude the possibility of holding any interest in or exercising any right over a supply undertaking the differences between the upstream and downstream markets.
Amendment 60 #
Proposal for a directive – amending act
Recital 8 a (new)
Recital 8 a (new)
Amendment 64 #
Proposal for a directive – amending act
Recital 10
Recital 10
(10) The setting up of system operators independent from supply and production interests should enable vertically integrated companies to maintain their ownership of network assets whilst ensuring an effective separation of interests, provided that the independent system operator performs all the functions of a network operator or efficient and effective unbundling is implemented and detailed regulation and extensive regulatory control mechanisms are put in place.
Amendment 70 #
Proposal for a directive – amending act
Recital 11
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.
Amendment 77 #
Proposal for a directive – amending act
Recital 12
Recital 12
(12) The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors. To this effect, the same person should not be able to exercise any influence, solely or jointly, over the composition, voting or decision of the bodies of both transmission system operators and supply undertakings. Provided that the Member State in question can demonstrate that this requirement is respected, two distinct public bodies could control on the one hand generation and supply activities and on the other transmission activities.
Amendment 78 #
Proposal for a directive – amending act
Recital 12
Recital 12
(12) The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors. To this effect, the same person should not be able to exercise any influence, solely or jointly, over the composition, voting or decision of the bodies of both transmission system operators and supply undertakings. Provided that the Member State in question can demonstrate that this requirement is respected, two distinct public bodies could control on the one hand generation and supply activities and on the other transmission activities . Where vertical integration is maintained through a Member State being in control of both the transmission system operator and undertakings performing the functions of generation or supply, effective legal unbundling requirements should remain obligatory for such entities.
Amendment 88 #
Proposal for a directive – amending act
Recital 16
Recital 16
(16) Non discriminatory access to the distribution network determines downstream access to customers at retail level. The scope for discrimination as regards third party access and investment is however less significant at distribution level than at transmission level because at distribution level congestion and the influence of production interests are generally less important than at transmission level. Distribution networks should therefore be explicitly excluded from the scope of this directive. Moreover, functional unbundling of distribution system operators became, according to Directive 55/2003/EC, compulsory only as of 1 July 2007 and its effects on the internal market still need to be evaluated. The rules on legal and functional unbundling currently in place can lead to effective unbundling provided they are more clearly defined, properly implemented and closely monitored. To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to small domestic and non- domestic customers.
Amendment 116 #
Proposal for a directive – amending act
Recital 25
Recital 25
(25) 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. 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.
Amendment 157 #
Recital 23
(23) Non-discriminatory access to the distribution network determines downstream access to customers at retail level. The scope for discrimination as regards third party access and investment, however, is less significant at distribution level than at transmission level where congestion and the influence of production interests are generally greater than at distribution level. Moreover, legal and functional unbundling of distribution system operators was required, pursuant to Directive 2003/55/EC, only from 1 July 2007 and its effects on the internal market in natural gas still need to be evaluated. The rules on legal and functional unbundling currently in place can lead to effective unbundling provided they are more clearly defined, properly implemented and closely monitored. To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to household and small non-household customers. Attention should be paid to the limited staff and financial resources of small distribution system operators when taking regulatory action.
Amendment 158 #
Recital 24
(24) Efficient small distribution system operators play a significant role in widening the range of suppliers and bringing the supply of European electricity closer to the citizen. Independent decentralised structures thus enhance competition and the quality of supply. To avoid imposing any future disproportionate financial and administrative burden on small distribution system operators, Member States should be ablethese structures, Member States should be able to allow them some regulatory leeway and, where necessary, to exempt such companies from the legal distribution unbundling requirements.
Amendment 161 #
Article 2 – point 36 a (new)
(36a) ‘industrial site’ means a privately owned geographical area with a natural gas network managed by one company with a connection to the transmission or distribution network: (a) which predominantly supplies the industrial activities of the network operator or of connected undertakings, or (b) which supplies a limited number of industrial consumers or customers linked with the industrial activities on the industrial site.
Amendment 171 #
Proposal for a directive – amending act
Article 1 – point 2
Article 1 – point 2
Directive 2003/55/EC
Article 3 – paragraph 7
Article 3 – paragraph 7
Amendment 180 #
Article 26 a (new)
Article 26a 1. Member States may exempt industrial sites from Articles 4 and 7, Article 8(1) and (2), Articles 9 and 11, Article 12(5), Articles 13, 17 and 18, Article 23(1) and/or Article 24 of this Directive. 2. Third-party access shall not be affected by the exemptions referred to in paragraph 1. Customers on industrial sites shall be able freely to choose their energy supplier, having resort to the national regulator in the event of a disagreement with the network operator.
Amendment 183 #
Proposal for a directive – amending act
Article 1 – point 3
Article 1 – point 3
Directive 2003/55/EC
Article 5a – paragraph 4
Article 5a – paragraph 4
Amendment 184 #
Article 38 – paragraph 5 a (new)
5a. Paragraphs 4 and 5 shall be without prejudice to the constitutional requirements of the Member State’s administrative organisation.
Amendment 190 #
Proposal for a directive – amending act
Article 1 – point 3
Article 1 – point 3
Directive 2003/55/EC
Article 5b
Article 5b
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 geographical2. 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 agreaement with all Member States covncerned by, a 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 1775/2005. rdinator. 3. The regional coordinator shall promote at regional level the cooperation of national regulatory authorities and other competent public authorities, network operators, gas 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 in drawing up their regional interconnection plan and shall 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 authorities and other competent national public authorities in drawing up their common allocation and common safeguard mechanisms; (c) submit an annual 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 progress.
Amendment 192 #
Article 40 – paragraph 8
8. Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to storage is defined according to Article 32(3), this task shall exclude the modification of tariffs.
Amendment 199 #
Proposal for a directive – amending act
Article 1 – point 4
Article 1 – point 4
Directive 2003/55/EC
Article 7 – paragraph –1 (new)
Article 7 – paragraph –1 (new)
"–1. 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 must comply with the provisions of Article 7(1)(a) to (d) or Article 9 or Article 9b."
Amendment 201 #
Proposal for a directive – amending act
Article 1 – point 4
Article 1 – point 4
Directive 2003/55/EC
Article 7 – paragraph 1 – point (d a) (new)
Article 7 – paragraph 1 – point (d a) (new)
"(da) the same person or the same persons are not entitled to operate the transmission system by way of management contract or exercise influence in any other way of non- ownership, or to directly or indirectly exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of generation or supply."
Amendment 208 #
Proposal for a directive – amending act
Article 1 – point 4
Article 1 – point 4
Directive 2003/55/EC
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Member States shall ensure: (a) that commercially sensitive information referred to in Article 10(1) held by a transmission system operator which was part of a vertically integrated undertaking, and the staff of such a transmission system operator, are not transferred to undertakings performing any of the functions of production and supply. ; (b) that transmission system operators establish and implement a compliance programme which sets out measures to be taken to ensure that discriminatory conduct is excluded and transparency obligations are respected. Such programme shall also set out the specific obligations of employees of transmission system operator to meet this objective. Compliance with these obligations shall be independently monitored by the compliance officer. The national regulatory authority shall have the power to impose sanctions in the event of inappropriate implementation of the compliance programme by the transmission system operator; (c) that transmission system operators appoint a person or a body as compliance officer who shall be responsible for: (i) monitoring the implementation of the compliance programme; (ii) drawing up an annual compliance report and submitting it to the national regulatory authority; (iii) issuing recommendations regarding the compliance programme and its implementation; (d) that the independence of the compliance officer is guaranteed in particular by the terms of the relevant employment contract and that the compliance officer has access to all relevant books, records and offices of the transmission system operator and to all necessary information for the fulfilment of the assigned tasks."
Amendment 209 #
Proposal for a directive – amending act
Article 1 – point 4
Article 1 – point 4
Directive 2003/55/EC
Article 7 – paragraph 6 a (new)
Article 7 – paragraph 6 a (new)
"6a. Member States shall ensure that the transmission system operator and its shareholders refrain from any activity that impairs its financial ability to fulfil its obligations despite efficient network operations (financial ring fencing)."
Amendment 213 #
Proposal for a directive – amending act
Article 1 – point 4
Article 1 – point 4
Directive 2003/55/EC
Article 7 – paragraph 6 b (new)
Article 7 – paragraph 6 b (new)
"6b. The Commission may adopt guidelines to ensure full and effective compliance of the transmission system operator with paragraph 6(b) and (c). That measure designed to amend the non- essential elements of this Directive, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 30(3).
Amendment 238 #
Proposal for a directive – amending act
Article 1 – point 6 c (new)
Article 1 – point 6 c (new)
Directive 2003/55/EC
Article 8 – paragraphs 4 a to 4 h (new)
Article 8 – paragraphs 4 a to 4 h (new)
Amendment 240 #
Proposal for a directive – amending act
Article 1 – point 6 d (new)
Article 1 – point 6 d (new)
Directive 2003/55/EC
Article 8 a (new)
Article 8 a (new)
Amendment 254 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 1
Article 9a – paragraph 1
1. Transmission system owners, where an independent system operator has been appointed, and storage system operators which are part of vertically integrated undertakings shall be independent at least in terms of their legal form, organisation and decision making from other activities not relating to transmission and storage. This Article shall only apply to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 19.
Amendment 256 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 2 - introductory part
Article 9a – paragraph 2 - introductory part
2. In order to ensure the independence of the transmission system owner and storage system operator referred to in paragraph 1, the following minimum criteria shall apply:
Amendment 258 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 2 – point (a)
Article 9a – paragraph 2 – point (a)
a) those persons responsible for the management of the transmission system owner and storage system operator may not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production, distribution and supply of natural gas.
Amendment 260 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 2 – point (b)
Article 9a – paragraph 2 – point (b)
b) appropriate measures must be taken to ensure that the professional interests of persons responsible for the management of the transmission system owner and storage system operator are taken into account in a manner that ensures that they are capable of acting independently.
Amendment 261 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 2 – point (c)
Article 9a – paragraph 2 – point (c)
Amendment 263 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 2 – point (d)
Article 9a – paragraph 2 – point (d)
d) the transmission system owner and storage system operator shall establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The programme shall set out the specific obligations of employees to meet this objective. An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme to the regulatory authority and shall be published.
Amendment 268 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 3
Article 9a – paragraph 3
Amendment 272 #
Proposal for a directive – amending act
Article 1 – point 8
Article 1 – point 8
Directive 2003/55/EC
Article 9a – paragraph 3 a (new)
Article 9a – paragraph 3 a (new)
"3a. Where a vertical integration is maintained by reason of a Member State being in control of both the transmission system operator and undertakings performing the functions of generation or supply, paragraphs 2 and 3 shall apply."
Amendment 285 #
Proposal for a directive – amending act
Article 1 – point 10 – point (c)
Article 1 – point 10 – point (c)
Directive 2003/55/EC
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 287 #
Proposal for a directive – amending act
Article 1 – point 10 – point (c a) (new)
Article 1 – point 10 – point (c a) (new)
Directive 2003/55/EC
Article 13 – paragraph 4 a (new)
Article 13 – paragraph 4 a (new)
ca) The following paragraph 4a is added: ‘4a. Member States may decide not to apply paragraphs 1 and 2 to integrated gas undertakings serving less than 100 000 connected customers or isolated networks.’
Amendment 369 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24b –introductory part
Article 24b –introductory part
In carrying out the regulatory tasks specified in this Directive, the regulatory authority, except where this is the responsibility of other national authorities, in particular competition authorities, shall take all reasonable measures to achieve the following objectives:
Amendment 371 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24b – point (a)
Article 24b – point (a)
a) the promotion, in close cooperation with the Agency, regulatory authorities of other Member States and the Commission, of a competitive, secure and environmentally sustainable internal gas market within the Community, and effective market opening for all consumers and suppliers in the Community, and securing the long-term, efficient and reliable operation of energy supply networks;
Amendment 373 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24b – point (c)
Article 24b – point (c)
c) the suppression of restrictions, if any, to natural gas trade between Member States, including the development of appropriate cross border transmission capacities to meet demand, enhance integration of national markets and to enable unrestrained natural gas flow across the Community;
Amendment 434 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24c – paragraph 3 – point (a)
Article 24c – paragraph 3 – point (a)
(a) to issue binding decisions on gas undertakingnetwork operators;
Amendment 436 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24c – paragraph 3 – point (b)
Article 24c – paragraph 3 – point (b)
(b) to carry out in cooperation with the national competition authority investigations of the functioning of gas markets, and to decide, in the absence of violations of competition ruleregulatory provisions, of any appropriate measures necessary and proportionate to promote effective competition and ensure the proper functioning of the market, including gas release programsnetwork operation;
Amendment 474 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24c – paragraph 6
Article 24c – paragraph 6
6. Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs referred to in this Article, to ensure that they are proportionate and applied in a non- discriminatory manner.
Amendment 492 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24c – paragraph 14
Article 24c – paragraph 14
Amendment 493 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24c – paragraph 14
Article 24c – paragraph 14
Amendment 515 #
Proposal for a directive – amending act
Article 1 – point 14
Article 1 – point 14
Directive 2003/55/EC
Article 24f – paragraph 4
Article 24f – paragraph 4
Amendment 557 #
Proposal for a directive – amending act
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. Where a publicly controlled entity is directly or indirectly involved in the acquisition of parts of a vertically integrated undertaking, the price in relation to the arrangement of such a transaction shall be notified to the Commission. Such notification shall include certification of the underlying asset value by an international auditing company. The Commission shall use such information solely to exercise control over State-aid.