Index 
Texts adopted
Wednesday, 18 June 2008 - StrasbourgFinal edition
New allocation of the responsibilities of Vice-President Jacques Barrot
 Approving the appointment of Mr Antonio Tajani as a Member of the Commission
 Missing persons in Cyprus − Follow-up
 Common standards and procedures in Member States for returning illegally staying third-country nationals ***I
  Resolution
  Consolidated text
  Annex
 Internal market in electricity ***I
  Resolution
  Consolidated text
 Conditions for access to the network for cross-border exchanges in electricity ***I
  Resolution
  Consolidated text
 Agency for the Cooperation of Energy Regulators ***I
  Resolution
  Consolidated text
 Protection of pedestrians and other vulnerable road users ***I
  Resolution
  Consolidated text
 Adaptation of a number of instruments to the regulatory procedure with scrutiny, "omnibus" Regulation, Part One ***I
  Resolution
  Consolidated text
 Adaptation of a number of instruments to the regulatory procedure with scrutiny, "omnibus" Regulation, Part Three ***I
 Autonomous Community tariff quotas on imports of certain fishery products into the Canary Islands *
 Statute of the European Ombudsman
  Resolution
  Consolidated text

New allocation of the responsibilities of Vice-President Jacques Barrot
DOC 30k
European Parliament decision of 18 June 2008 approving the new allocation of the responsibilities of Vice-President of the Commission Jacques Barrot
P6_TA(2008)0290 B6-0306/2008

The European Parliament ,

–   having regard to Article 217(2) of the EC Treaty,

–   having regard to point 5 of the Framework Agreement on relations between the European Parliament and the Commission(1) ,

–   having regard to the proposal of 9 May 2008 to change the allocation of the responsibilities of Vice-President of the Commission Jacques Barrot,

–   having regard to the hearing of the Vice-President before its committee responsible on 16 June 2008,

–   having regard to Rule 99 of its Rules of Procedure,

1.   Approves the new allocation of the responsibilities of Vice-President Jacques Barrot for the remainder of the Commission's term of office until 31 October 2009;

2.   Instructs its President to forward this decision to the Council, the Commission and the governments of the Member States.

(1) OJ C 117 E, 18.5.2006, p. 123.


Approving the appointment of Mr Antonio Tajani as a Member of the Commission
DOC 33k
European Parliament decision of 18 June 2008 approving the appointment of Mr Antonio Tajani as a Member of the Commission
P6_TA(2008)0291 B6-0307/2008

The European Parliament ,

—   - having regard to Article 214(2), third subparagraph, and Article 215 of the EC Treaty,

-   having regard to point 4 of the Framework Agreement on relations between the European Parliament and the Commission(1) ,

-   having regard to the resignation of Mr Franco Frattini as a Member of the Commission, tendered on 7 May 2008,

-   having regard to the nomination by the Government of the Italian Republic of Mr Antonio Tajani for appointment as a Member of the Commission on 8 May 2008,

-   having regard to Council Decision 2008/380/EC, Euratom of 9 May 2008 appointing a new member of the Commission of the European Communities(2) ,

-   having regard to the hearing of the Commissioner-designate before its committee responsible held on 16 June 2008,

-   having regard to Rule 99 of its Rules of Procedure,

1.   Approves the appointment of Mr Antonio Tajani as a Member of the Commission for the remainder of the Commission's term of office until 31 October 2009;

2.   Instructs its President to forward this decision to the Council, the Commission and the governments of the Member States.

(1) OJ C 117 E, 18.5.2006, p. 123.
(2) OJ L 131, 21.5.2008, p. 6.


Missing persons in Cyprus − Follow-up
DOC 43k
European Parliament resolution of 18 June 2008 on Missing persons in Cyprus − Follow-up to the European Parliament resolution of 15 March 2007 (2007/2280(INI) )
P6_TA(2008)0292 A6-0139/2008

The European Parliament ,

–   having regard to its resolution of 15 March 2007 on missing persons in Cyprus(1) ,

–   having regard to the relevant reports of the United Nations Secretary-General(2) , resolutions of the United Nations Security Council(3) and international initiatives taken to investigate the fate of missing persons in Cyprus(4) ,

–   having regard to the judgments of the European Court of Human Rights (ECHR) of 10 May 2001(5) and 10 January 2008(6) concerning missing persons in Cyprus,

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0139/2008 ),

A.   whereas the visit of Parliament's rapporteur to the Committee on Missing Persons (CMP), to the exhumation sites, to the bi-communal anthropological laboratory and to the families of missing persons in Cyprus was exclusively meant to examine the humanitarian problem of the missing persons (Greek Cypriots and Turkish Cypriots) deriving from the right of the relatives of the missing persons to know their fate,

B.   whereas the great agony and suffering of the families of the missing persons, who have remained ignorant of the fate of their beloved relatives for decades, still continues and whereas all efforts must therefore be made to expedite the investigations while eye-witnesses can still give evidence,

C.   whereas the CMP in Cyprus has made progress since 2004, with the exhumation and identification of remains, and shows determination to move forward, with a view to achieving results which can only be achieved if their capacity is increased, particularly in the field,

D.   whereas the CMP Project on the Exhumation, Identification and Return of Remains of Missing Persons has been running since August 2006 and, to date, 398 sets of remains have been exhumed, 266 of which have been analysed at the CMP anthropological laboratory in an attempt to make presumptive identifications,

E.   whereas the Laboratory of Forensic Genetics of the Cyprus Institute of Neurology and Genetics was assigned the responsibility of identifying the skeletal remains exhumed by using DNA-typing methodologies, the first specimens being submitted at the beginning of April 2007,

F.   whereas the first positive identifications were made at the end of June 2007 and, to date, 91 remains of individuals exhumed within the framework of the CMP Project have been identified through this process,

G.   whereas the biggest single contribution to the CMP, EUR 1,5 million, only covers the period to the end of 2008, and came within the framework of the EU financial support to the Turkish-Cypriot community.

H.   whereas the constructive cooperation between Greek Cypriot and Turkish Cypriot members of the CMP as well as the good cooperation between the bi-communal teams of Greek Cypriots and Turkish Cypriots, both in the laboratory and in the field, should especially be noted,

1.   Calls on the parties concerned to continue the honest and sincere cooperation aimed at a speedy completion of the appropriate investigations into the fate of all missing persons in Cyprus, and to give full effect to the ECHR judgment of 10 May 2001;

2.   Calls on the parties concerned and all those who have, or are in a position to have, any information or evidence emanating from personal knowledge, archives, battlefield reports or records of detention sites to pass that information or evidence on to the CMP to help expedite its work;

3.   Supports the allocation of further financial support to the CMP for the years 2009 onwards and considers it essential to provide for an additional amount of EUR 2 million in the general budget of the European Union for 2009;

4.   Calls on the Council and the Commission to agree on this further financial assistance for 2009, not only to continue the work, but also to increase capacity, particularly in the field, to hire more scientists and to fund more equipment;

5.   Calls on the Member States to continue the support they have given so far;

6.   Requests its Committee on Civil Liberties, Justice and Home Affairs to continue to follow-up the issue of missing persons in Cyprus and to submit annual reports;

7.   Authorises Parliament's rapporteur and its Committee on Civil Liberties, Justice and Home Affairs to take all possible steps to convince all parties concerned to contribute sincerely and actively to the endeavours in the investigation into the fate of each and every missing person;

8.   Instructs its President to forward this resolution to the Council, the Commission, the Secretary-General of the United Nations, the governments and parliaments of Cyprus, Turkey, Greece and the United Kingdom, and the Committee on Missing Persons in Cyprus.

(1) OJ C 301 E, 13.12.2007, p. 243.
(2) Notably the latest one on the United Nations Operation in Cyprus (S/2008/353), Chapter IV.
(3) Notably resolution 1818 (2008) of 13 June 2008.
(4) Committee on Missing Persons in Cyprus: http://www.cmp-cyprus.org
(5) Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV.
(6) Varnava and Others v. Turkey , nos. 16064/90, 16065/90,16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90; pending on appeal.


Common standards and procedures in Member States for returning illegally staying third-country nationals ***I
DOC 58k
Resolution
Consolidated text
Annex
European Parliament legislative resolution of 18 June 2008 on the proposal for a directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (COM(2005)0391 – C6-0266/2005 – 2005/0167(COD) )
P6_TA(2008)0293 A6-0339/2007

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2005)0391 ),

–   having regard to Article 251(2) and Article 63(3)(b) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0266/2005 ),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Foreign Affairs and the Committee on Development (A6-0339/2007 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council and Commission.

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Directive 2008/.../EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals

P6_TC1-COD(2005)0167


(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Directive 2008/.../EC.)

ANNEX

Statements to the Minutes of the Council at the moment of the adoption of the Act

1.    The Council states that the implementation of this Directive should not be used in itself as a reason to justify the adoption of provisions less favorable to persons to whom it applies.

2.    The Commission states that the review of the SIS II (envisaged under the review clause of Article 24(5) of Regulation (EC) No 1987/2006) , will be an opportunity to propose an obligation to register in the SIS entry bans issued under this Directive.

3.    The Commission commits itself to assist Member States in finding possibilities for mitigating the financial burden resulting from the implementation of Article 13(4) (free legal aid) in Member States in a spirit of solidarity.

The Commission underlines that possibilities exist under the European Return Fund (Decision No 575/2007/EC) to co-finance national action promoting the application of Article 13(4) (free legal aid) in Member States:

Actions related to the specific objective of "promoting an effective and uniform application of common standards on return" (Article 3 (c)) may include support for the "enhancement of the capacity of competent authorities to take high quality return decisions" (Article 4(3)(a)). The presence of appropriate legal safeguards, including the principle of equality of arms, enhances the potential for high quality decisions.

-    In accordance with Priority 4 of the strategic guidelines for the Return Fund (Decision 2007/837/EC), the Community contribution may be increased up to 75% for actions which ensure a "fair and effective implementation of common standards" on return in Member States. This means that measures related to the provision of Article 13(4) (free legal aid) may be co-financed up to 75 % under the European Return Fund.

The Commission encourages Member States to take this fact into account when choosing the priorities for their national programmes and when programming actions under priority 4 of the strategic guidelines.

4.    The Commission states that in its assessment under Article 19(2) it will consider additional impact on the administration of justice in the Member States.


Internal market in electricity ***I
DOC 271k
Resolution
Consolidated text
European Parliament legislative resolution of 18 June 2008 on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/54/EC concerning common rules for the internal market in electricity (COM(2007)0528 – C6-0316/2007 – 2007/0195(COD) )
P6_TA(2008)0294 A6-0191/2008

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0528 ),

–   having regard to Article 251(2), Article 47(2) and Articles 55 and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0316/2007 ),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on Economic and Monetary Affairs and the Committee on the Internal Market and Consumer Protection (A6-0191/2008 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Directive 2008/.../EC of the European Parliament and of the Council amending Directive 2003/54/EC concerning common rules for the internal market in electricity

P6_TC1-COD(2007)0195


(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 47(2), and Articles 55 and 95 thereof,

Having regard to the proposal from the Commission║,

Having regard to the opinion of the European Economic and Social Committee(1) ,

Having regard to the opinion of the Committee of the Regions(2) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3) ,

Whereas:

(1)   The internal market for electricity, which has been progressively implemented throughout the Community since 1999, aims at delivering real choice for all ║consumers in the European Union , whether citizens or business, new business opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, and higher standards of service, and to contribute to security of supply and sustainability.

(2)   Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity║(4) has made a significant contribution towards the creation of ║ an internal market for electricity.

(3)   The right to sell electricity in any Member State on equal terms and without discrimination or disadvantages cannot, however, currently be guaranteed to all the companies in all the Member States . In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist, since the ║ legal framework is insufficient.

(4)    A secure supply of electricity is of vital importance for the development of European society, the implementation of a sustainable climate change policy, and the fostering competitiveness within the internal market. To this end, cross-border interconnections should be further developed in order to secure the supply of all energy sources at the lowest possible prices to consumers and industry within the European Union.

(5)    A well-functioning internal market for electricity should provide producers with the appropriate incentives for investing in new power generations and consumers with adequate measures to promote more efficient use of energy for which a secure supply of energy is a precondition.

(6)    Given that renewable energy sources are continuous, it is essential to develop electricity interconnection capacity at Community level, paying special attention to the most isolated countries and regions in the Community's energy market in order to provide the Member States with the means to achieve the objective of 20 % renewable energy by 2020.

(7)    Trade within and the flow of electricity across borders should increase in the internal market in order to secure the best use of available power generation at the lowest possible prices. This should not, however, be an excuse for Member States or producers to refrain from investing in new and modern technology for the electricity generation.

(8)    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 undertakings established in the Community. The Communications of the Commission, of the same date, on prospects for the internal gas and electricity market and in relation to its final Report on inquiry pursuant to Article 17 of the Regulation (EC) No 1/2003 into the European gas and electricity sectors showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well-functioning internal market.

(9)    In order to secure competition and the supply of electricity at the lowest possible price, while at the same time avoiding market dominance by large actors, Member States and national regulatory authorities should facilitate cross-border access for new providers of different energy sources as well as for new providers of power generation.

(10)    Without effective separation of networks from the 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.

(11)    The rules on legal and functional unbundling currently in place have not led to effective unbundling of the transmission system operators. At its meeting in Brussels on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals for the effective separation of supply and generation activities from network operations.

(12)    Only the removal of the inherent incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner ║ as the network operator and the network operator's independence from any supply and production interests, is clearly the most effective and stable way to solve the inherent conflict of interest and to ensure security of supply. For this reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market ║, referred to ownership unbundling at transmission level as the most effective tool by which to promote non-discriminatory investments in infrastructures ║, 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 a 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.

(13)    Any system for unbundling should be effective in removing any conflict of interests between generators and transmission system operators and should not create an onerous or cumbersome regulatory regime for national regulatory authorities that would be difficult or expensive to implement.

(14)    Since ownership unbundling requires, in some instances, ║ restructuring of undertakings, Member States should be granted additional time to apply the relevant provisions. In view of the vertical links between the electricity and gas sectors, the unbundling provisions should, moreover, apply║ across both sectors.

(15)    To ensure full independence of network operation from supply and generation interests and to prevent exchange of any confidential information, the same person should not be a member of the managing boards of both a transmission system operator and an undertaking performing any of the functions of generation or supply. For the same reason, the same person should not be entitled to appoint members of the managing boards of a transmission system operator and to hold any interest in a supply undertaking. ▌

(16)    Where the undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should ║be given a choice between ownership unbundling and, as a derogation, 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 undertakings , 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.

(17)    The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors. To this end , 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 should be able to control║ generation and supply activities on the one hand and ║ transmission activities on the other .

(18)    Full separation of network and supply activities should apply throughout the Community, so that any network operator in the Community or its affiliated companies should be prevented from having any supply or generation activities in any Member State. This should apply equally to the undertakings established within the European Union and third-country undertakings . To ensure that network and supply activities throughout the Community are kept separate, national regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules. To ensure ║ consistent application across the Community and the respect of the international obligations of the Community, the Agency for the Cooperation of Energy Regulators ("the Agency") established by Regulation (EC) No .../2008 of the European Parliament and of the Council (5) should have the right to review the decisions on certification taken by the national regulatory authorities.

(19)    The safeguarding of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the European Union´s electricity market and the elimination of the market's geographical isolation . Electricity can ║reach ║ citizens of the Union only through the network. Functioning electricity markets and, in particular, the networks and other assets associated with electricity supply, are essential for public security, for the competitiveness of the economy and for the well-being of the citizens of the Union . Without prejudice to its international obligations ║, the Community considers that the electricity transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the influence of third countries in order to avoid any threats to Community public order and public security and the welfare of the citizens of the Union . Such measures are also necessary for ensuring compliance with the rules on effective unbundling.

(20)    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 generation interests are generally less important than at transmission level. Moreover, functional unbundling of distribution system operators became, in accordance with Directive 2003/54/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 household and non-household customers.

(21)    In order to develop competition in the internal market for electricity, non-household customers should be able to choose their suppliers as well as enter into contracts to secure their electricity requirements with several suppliers. Such customers should be protected against exclusivity clauses, the effect of which is to exclude competing and/or complementary offers.

(22)    Directive 2003/54/EC introduced a requirement for Member States to establish regulatory authorities with specific competences. However, experience shows that the effectiveness of regulation is frequently hampered through a lack of independence of regulatory authorities from government, and insufficient powers and discretion. For this reason, at its above -mentioned meeting in Brussels ║, the European Council invited the Commission to develop legislative proposals providing for further harmonisation of the powers and strengthening of the independence of national regulatory authorities .

(23)    Any harmonisation of the powers of national regulatory authorities should include incentives that can be offered and sanctions that can be imposed on electricity undertakings. The Agency should be given the appropriate powers to take the lead in ensuring there is parity in the incentives and sanctions across all Member States, and provide guidelines on such measures.

(24)    National regulatory authorities need to be able to take decisions on all relevant regulatory issues if the internal market is to function properly , and to be fully independent from any other public or private interests.

(25)    National regulatory authorities should have the power to issue binding decisions on electricity undertakings and to impose effective, appropriate and dissuasive sanctions on electricity undertakings which fail to comply with their obligations. They should also be granted the powers to decide, irrespective of the application of competition rules, on any appropriate measures ensuring customer benefits through the promotion of effective competition necessary for the proper functioning of the market; as well as to ensure high standards of universal and public service in compliance with market opening, the protection of vulnerable customers, and the full effectiveness of consumer protection measures ║. Those provisions should be without prejudice to both the Commission's powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market such as the free movement of capital.

(26)    The internal electricity market is suffering from a lack of liquidity and transparency hindering the efficient allocation of resources, risk hedging and new entry. Trust in the market, its liquidity and the number of market participants need to increase ▌.

(27)    Energy and financial market regulatory authorities should cooperate in order to allow each other an overview of their respective markets. They should have the power to obtain relevant information from electricity undertakings, make appropriate and sufficient investigations, settle disputes and impose effective sanctions.

(28)    Prior to the adoption by the Commission of guidelines defining further the record keeping requirements, the Agency ║ and the Committee of European Securities Regulators (CESR) should cooperate to investigate and advise the Commission on the content of the guidelines. The Agency and the CESR should also cooperate further to ║ investigate and advise on the question whether transactions in electricity supply contracts and electricity derivatives should be subject to pre and/or post-trade transparency requirements and, if so, what the content of such requirements should be.

(29)    In order to prevent dominant incumbent suppliers from impeding the opening of the market, it is important to enable the development of new business models, for instance the ability to contract simultaneously with several suppliers.

(30)    The universal and public service requirements and the common minimum standards that follow therefrom need to be further strengthened to make sure that all consumers, in particular those who are vulnerable, can benefit from competition and fairer prices . The public service requirements should be defined at national level, taking into account national circumstances. Community law and the common minimum standards should, however, be respected by the Member States. citizens of the Union and small and medium-sized enterprises should be able to enjoy public service guarantees, in particular with regard to security of supply and reasonable tariffs. A key aspect to supplying consumers is access to objective and transparent consumption data; consumers should have access to their consumption data and associated prices and service costs so that they can invite competitors to make offers based on those data. Consumers ║ should also have the right to be properly informed about their energy consumption, and prepayments should be adequate and reflect actual consumption of electricity . ▌ Information about energy costs provided to consumers at least on a quarterly basis and based on common criteria will create incentives for energy savings because it will give customers direct feedback on the effects of investment in energy efficiency and change of behaviour.

(31)    Consumer interests should be at the heart of this Directive. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency and representation. Consumer protection must ensure that all consumers benefit from a competitive market. Consumer rights should be enforced by national regulatory authorities by creating incentives and imposing sanctions on companies which do not comply with consumer protection and competition rules.

(32)    Clear and comprehensible information should be made available to consumers concerning their rights in relation to the energy sector. Following the Commission's communication of 5 July 2007 entitled "Towards a European Charter on the Rights of Energy Consumers", the Commission should put forward, after consulting relevant stakeholders, including national regulatory authorities, consumer organisations and social partners, an accessible, user-friendly charter listing the rights of energy consumers that already exist in Community law, including this Directive. Energy suppliers should ensure that all consumers receive a copy of that charter and that it is publicly available.

(33)    Energy poverty is a growing problem in the European Union. Member States should therefore develop national action plans to tackle the problem and ensure the necessary energy supply for vulnerable consumers. In doing so, an integrated approach is needed and measures should include social policies, tariff policies and energy efficiency improvements for housing. At the very least, this Directive should allow national policies in favour of, in terms of pricing models, vulnerable consumers .

(34)    Greater consumer protection is guaranteed by the availability of effective means of redress for all. Member States should introduce speedy and effective arbitration procedures.

(35)    Market prices should give the right incentives for the development of the grid and for investing in new electricity generation.

(36)    Promoting fair competition and easy access for different suppliers as well as granting capacity for new electricity generation should be of the utmost importance for Member States in order to allow consumers fully to grasp the opportunities of a liberalised internal market for electricity. At the same time, Members States should be responsible for developing national actions plans and social policies.

(37)    In ▌the creation of an internal market for electricity, regional energy markets can constitute a first step. Member States should therefore foster at Community and, where possible, at regional level, the integration of their national markets and the cooperation of network operators at Community and national level. Regional integration initiatives are an essential intermediate step in achieving the integration of Community 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 in regard to specific issues.

(38)    The development of a truly pan-Community grid should be one of the main goals of this Directive and regulatory issues on cross-border interconnections and regional markets should, therefore, be the responsibility of the Agency.

(39)    The Commission, in consultation with the stakeholders, and in particular, the transmission system operators and the Agency, should assess the feasibility of creating a single European transmission system operator and analyse the costs and benefits with respect to market integration as well as the effective and secure operation of the transmission network.

(40)    To secure common rules for a properly functioning internal market and a broad supply of energy accessible to all should also be among the main goals of this Directive. To this end, undistorted market prices would provide the best incentive for cross-border interconnections and for investments in new power generation while leading, in the long term, to price convergence.

(41)    Increased regional cooperation should be the first step in the development of a fully integrated European electricity grid, ultimately incorporating the electricity islands that persist in the European Union.

(42)    Regulatory authorities should provide information to the market in order also to permit the Commission to exercise its role of observing and monitoring the European electricity market and its short, medium and long-term evolution, including aspects such as generation capacity, different sources of electricity generation, transmission and distribution infrastructures, quality of service and supply, cross-border trade, congestion management, the investments, wholesale and consumers prices, market liquidity, environmental and efficiency improvements.

(43)    Since the objective of this Directive , namely the creation of a fully operational internal electricity market, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective .

(44)    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(6) provides the Commission with the possibility of adopting guidelines to achieve the necessary degree of harmonisation. Such guidelines, which are ║ binding implementing measures, are a useful tool which can be adapted quickly where necessary.

(45)    Directive 2003/54/EC should be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2003/54/EC

Directive 2003/54/EC is amended as follows:

(1)    Article 1 shall be replaced by the following:

"

This Directive establishes common rules for the generation, transmission, distribution and supply of electricity, together with consumer protection provisions, with a view to improving and integrating competitive energy markets, connected by a common grid, in the European Union. It lays down the rules relating to the organisation and functioning of the electricity sector, open access to the market, the criteria and procedures applicable to calls for tenders and the granting of authorisations and the operation of systems. It also lays down universal service obligations and the rights of electricity consumers and clarifies competition requirements.

"

(2)    Article 2 shall be amended as follows:

a)    point 12 shall be replaced by the following:

"
   12. "eligible customers' means customers who are free to purchase electricity from the supplier of their choice within the meaning of Article 21 of this Directive as well as to contract simultaneously with several suppliers;
"

b)    point 21 shall be replaced by the following :

"
   21. "vertically integrated undertaking' means an electricity undertaking, or a group of electricity undertakings where the same person or ║persons are entitled, directly or indirectly, to exercise control within the meaning of Article 3(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) * , and where the undertaking or group of undertakings perform at least one of the functions of transmission or distribution, and at least one of the functions of generation or supply of electricity;║
__________________________
* OJ L 24, 29.1.2004, p. 1 .
"

c)    the following points shall be added:

"
   32. "electricity supply contract' means a contract for the supply of electricity, but does not include an electricity derivative;
   33. "electricity derivative' means a financial instrument specified in one of Sections C5, C6, or C7 of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments* , where that instrument relates to electricity;
  34. "control' means any rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
   a) ownership or the right to use all or part of the assets of an undertaking;
   b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking;
   35. 35 . 'industrial site' means a privately owned geographical area with a power grid which is primarily designed to supply industrial consumers in that area;
   36. 36 . 'fair and undistorted competition in an open market' means common opportunities and equal access for all providers within the European Union, for which the Member States, the national regulatory authorities and the Agency for the Cooperation of Energy Regulators ("the Agency") established by Regulation (EC) No .../2008 of the European Parliament and of the Council ** shall be responsible;
   37. 37 . 'electricity undertaking' means any natural or legal person carrying out at least one of the following functions: production, transmission, distribution, supply or purchase of electricity; and responsible for the commercial, technical and/or maintenance tasks related to those functions; it shall not include final customers;
   38. 38 . 'energy poverty' means the situation where the members of a household cannot afford to heat their home to an acceptable standard based on the levels recommended by the World Health Organisation;
   39. 39 . 'virtual power plant' means an electricity release programme whereby an undertaking generating electricity is obliged either to sell or make available a certain volume of electricity or to grant access to part of its generation capacity to interested suppliers for a certain period of time.
__________________
* OJ L 145, 30.4.2004, p. 1.
** OJ L...
"

(3)   Article 3 shall be amended as follows :

   a) paragraph 2 shall be replaced by the following: "
2.    Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on electricity undertakings, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies and environmental protection, including energy efficiency, renewable energy and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for EU electricity undertakings to national consumers. In relation to security of supply, energy efficiency/demand-side management and for the fulfilment of environmental and renewable energy targets, as referred to in this paragraph, Member States may introduce the implementation of long-term planning, taking into account the possibility of third parties seeking access to the system. "

b)    in paragraph 3, the first subparagraph shall be replaced by the following:

"

3.    Member States shall ensure that all household customers and small enterprises as defined in Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises* (enterprises which employ fewer than 50 persons and whose annual turnover and/or balance sheet does not exceed EUR 10 million), enjoy universal service, that is, the right to be supplied with electricity of a specified quality within their territory at cost-based and easily and clearly comparable, transparent and non-discriminatory prices. These customers shall have access to choice, fairness, representation and redress. Quality of service shall be a central responsibility of electricity undertakings. To ensure the provision of universal service, Member States may appoint a supplier of last resort. Member States shall impose on distribution companies an obligation to connect customers to their grid under terms, conditions and tariffs set in accordance with the procedure laid down in Article 23(2). Nothing in this Directive shall prevent Member States from strengthening the market position of the domestic, small and medium-sized consumers by promoting the possibilities of voluntary aggregation of representation for this class of consumers.

_________________

* OJ L 124, 20.5.2003, p. 36.";

"

c)    the following paragraphs shall be inserted after paragraph 3 :

"

3 bis.    3a . Member States shall ensure that all customers are entitled to have their electricity provided by a supplier, subject to the supplier's agreement, regardless of the Member State in which the supplier is registered. In this regard, Member States shall take all measures necessary to ensure that undertakings registered in their territories can supply customers without having to fulfil any further conditions.

3b.   Member States shall ensure that:

   a) where a customer wishes to change supplier, the change is effected by the operator(s) concerned within two weeks, and
   b) customers are entitled to receive all relevant consumption data.

Member States shall ensure that the rights referred to in points (a) and (b) are granted to all customers in a non-discriminatory way as regards cost, effort or time.

"

d)    paragraph 5 shall be replaced by the following:

"

5.    Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers, including prohibiting the disconnection of pensioners and disabled people in winter. In this context, Member States shall recognise energy poverty as defined in Article 2(38) and shall provide definitions of vulnerable customers. Member State shall ensure that rights and obligations linked to vulnerable customers are applied and, in particular, shall take measures to protect final customers in remote areas. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. Member States shall ensure that the eligible customer is in fact easily able to switch to a new supplier. As regards at least household customers, these measures shall include those set out in Annex A.

"

e)    the following paragraph shall be inserted after paragraph 5 :

"

5a.    Member States shall take appropriate measures to address energy poverty in national energy action plans in order to ensure that the number of people suffering energy poverty decreases in real terms and shall communicate such measures to the Commission. Each Member State shall be responsible for providing, in accordance with the principle of subsidiarity, a definition of energy poverty at national level, in consultation with national regulatory authorities and stakeholders with reference to Article 2(38). Such measures may include benefits in social security systems, support for energy efficiency improvements and energy production at the lowest possible prices. Such measures shall not impede the opening of the market set out in Article 21. The Commission shall provide indicators to monitor the impact of such measures on energy poverty, and on the functioning of the market.

"

f)    paragraph 6 shall be amended as follows:

i)    in the first subparagraph, point (a) shall be replaced by the following:

"
   a) the contribution of each energy source to the overall fuel mix of the supplier over the preceding year in a harmonised and comprehensible manner within Member States so as to allow for easy comparison;
"

ii)    in the first subparagraph, the following point shall be added:

"

(ba) information concerning their rights and the means of redress available to them in the event of a dispute .

"

iii)    the third subparagraph shall be replaced by the following:

"

National regulatory authorities shall take the necessary steps to ensure that the information provided by suppliers to their customers pursuant to this Article is reliable. Rules relating to the provision of information shall be harmonised within Member States and relevant markets.

"

g)    paragraph 7 shall be replaced by the following:

"

7.    Member States shall implement appropriate measures to achieve the objectives of social and economic cohesion with a view to reducing the cost of energy to low income households and guaranteeing the same conditions for those living in remote areas, and the objectives of the environmental protection . Such measures shall include energy efficiency/demand-side management measures and means to combat climate change, and security of supply, and may also include, in particular, the provision of adequate economic incentives, using, where appropriate, all existing national and Community tools, for the maintenance and construction of the necessary network infrastructure, including interconnection capacity.

"

h)    the following paragraphs shall be inserted after paragraph 7 :

"

7a.    In order to promote energy efficiency, national regulatory authorities shall mandate electricity undertakings to introduce pricing formulas which increase in the case of greater levels of consumption and shall ensure the active participation of customers and distribution system operators in system operations by supporting the introduction of measures to optimise the use of energy, particularly during peak hours. Such pricing formulas, combined with the introduction of smart metres and grids, shall promote energy efficiency behaviour and the lowest possible costs for household customers, in particular household customers suffering energy poverty .

7b.    Member States shall ensure the provision of single points of contact to provide consumers with all necessary information concerning their rights, current legislation and the means of redress available to them in the event of a dispute.

"

i)    the following paragraphs shall be added :

"

9a.    The Commission shall establish, in consultation with relevant stakeholders including the national regulatory authorities, consumer organisations and social partners, a charter listing the rights of energy consumers set out in Community law including in this Directive. Member States shall ensure that energy suppliers take the necessary steps to communicate to all their consumers a copy of that charter and ensure that it is publicly available. National regulatory authorities shall ensure that energy suppliers fulfil those obligations and comply with the consumer rights set out in the charter.

9b.    In order to help consumers to reduce their energy costs, Member States may require that electricity revenues from household customers be spent to fund energy efficiency and demand-side measurement programmes for household customers.

"

(4)    Article 4 shall be replaced by the following:

"

Member States shall ensure the monitoring of security of supply issues. Where Member States consider it appropriate, they may delegate this task to the national regulatory authorities referred to in Article 23(1). This monitoring shall, in particular, cover the supply/demand balance on the national market, including detailed forecast of future demand and available supplies, envisaged additional capacity being planned or under construction, and the quality and level of maintenance of the networks, the access of distributed and micro generation, as well as measures to cover peak demand and to deal with shortfalls of one or more suppliers. The competent authorities shall publish by 31 July each year at the latest a report outlining the findings resulting from the monitoring of these issues, as well as any measures taken or envisaged to address them and shall forward this report to the Commission forthwith.

"

(5)    In Article 5, the following paragraph shall be inserted before the existing paragraph :

"

National regulatory authorities shall ensure that technical operational criteria are defined and that technical rules establishing adequate reliability and security levels and operational requirements for the operation of generating installations, distribution systems, directly connected consumer equipment, interconnector circuits and direct lines are developed and made public. Those technical rules shall ensure the interoperability of systems and shall be objective and non-discriminatory. Where the Agency considers that harmonisation of these rules is required, it shall make appropriate recommendations to the respective national regulatory authorities.

"

(6)    The following article shall be inserted:

"

Article 5a

Promotion of Regional Cooperation

1.    National regulatory authorities shall cooperate among themselves for the purpose of harmonising the market design and integrating their national markets at least at one or more regional levels, as a first step towards a fully liberalised internal market for electricity . In particular, they shall promote the cooperation of network operators at a regional level and facilitate their integration at that level with the aim of creating a competitive European market, facilitating the harmonisation of their legal, regulatory and technical framework and, above all, integrating the electricity islands that persist in the European Union . Member States shall therefore promote cross-border and regional cooperation among national regulatory authorities .

2.    The Agency shall cooperate with national regulatory authorities and transmission system operators in accordance with Chapter IV to ensure the convergence of regulatory frameworks between the regions with the aim of creating a competitive European market. Where the Agency considers that binding rules on such cooperation are required, it shall make appropriate recommendations. In regional markets the Agency shall be deemed to become the competent authority in the areas specified in Article 22d.

"

(7)   Article 6(2) shall be amended as follows :

   a) the introductory part shall be replaced by the following: "
2.    Member States shall lay down the criteria for the granting of authorisations for the construction of generating capacity in their territory. These criteria shall relate to: "
   b) the following points shall be added: "
(ia) the Member States' contribution to meeting a target of 20 % for renewables by 2020;
(ib) the need for electricity generators to take account of the EU emission trading scheme. "

(8)    Article 6(3) shall be replaced by the following:

"

3.    Member States shall ensure that small decentralised and/or distributed generators shall benefit from simplified authorisation procedures. Those simplified procedures should apply to all facilities generating less than 50 MW and to all embedded generators.

"

(9)    Article 7(5) shall be replaced by the following:

"

5.    Member States shall designate an authority or a public body or a private body independent from electricity generation, transmission, distribution and supply activities, which may be a national regulatory authority referred to in Article 22a(1), to be responsible for the organisation, monitoring and control of the tendering procedure referred to in paragraphs 1 to 4. This authority or body shall take all necessary steps to ensure confidentiality of the information contained in the tenders.

"

(10)   Article 8 shall be replaced by the following:

"

Article 8

Unbundling of transmission systems and transmission system operators

1.  Member States shall ensure that as from [date of transposition plus one year]:

   a) each undertaking which owns a transmission system acts as a transmission system operator;
  b) the same person or ║ persons are not entitled, either individually or jointly :
   i) ║ directly or indirectly to exercise control over an undertaking performing any of the functions of generation or supply, and ║directly or indirectly to exercise control or hold any interest in or exercise any right over a transmission system operator ▌,
or
   ii) ║ directly or indirectly to exercise control over a transmission system operator ▌, and ║directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of generation or supply;
   c) the same person or ║ persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator ▌, and ║directly or indirectly to exercise control or hold any interest in or exercise any right over an undertaking performing any of the functions of generation or supply;
   d) the same person is not entitled to be a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of generation or supply and a transmission system operator or a transmission system;
   e) the same person or persons are not entitled to operate the transmission system via a 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.

2.  The interests and rights referred to in paragraph 1(b) shall include, in particular:

   a) the ownership of part of the capital or of the business assets;
   b) the power to exercise voting rights;
   c) the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or
   d) the right to obtain dividends or other shares of the benefits.

3.   For the purpose of paragraph 1(b), the term "undertaking performing any of the functions of generation or supply" shall cover "undertaking performing any of the functions of production or supply" within the meaning of Directive 2003/55/EC║, and the terms "transmission system operator" and "transmission system" shall cover "transmission system operator" and "transmission system" within the meaning of Directive 2003/55/EC.

4.   ║4. Member States shall monitor the process of unbundling vertically integrated undertakings and shall submit a report to the Commission on the progress achieved.

5 .   Member States may allow for derogations from paragraphs 1(b) and 1(c) until [date of transposition plus two years], provided that transmission system operators are not part of a vertically integrated undertaking.

6 .   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 the transmission systems concerned.▌

7.    Where a person referred to in paragraph 1(b) to (e) is a Member State or a public body, two separate public bodies exercising control over either a transmission system operator or a transmission system on the one hand and an undertaking performing any of the functions of generation or supply on the other, shall be deemed not to be the same person or persons.

8 .   Member States shall ensure that commercially sensitive information referred to in Article 12 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 generation and supply.

"

(11)    The following articles shall be inserted:

"

Article 8a

Control over transmission system owners and transmission system operators

1.   Without prejudice to the international obligations of the Community, transmission systems or transmission system operators shall not be controlled by a person or persons from third countries.

2.   An agreement concluded with one or several third countries to which the Community is a party may allow for a derogation from paragraph 1.

Article 8b

Designation and certification of transmission system operators

1.   Undertakings which own a transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 8(1) and Article 8a, pursuant to the certification procedure set out in this Article , shall be approved and designated as transmission system operators by Member States. The designation of transmission system operators shall be notified to the Commission and published in the Official Journal of the European Union.

2.   Without prejudice to the international obligations of the Community, where certification is requested by a transmission system owner or transmission system operator controlled by a person or persons from third countries in compliance with Article 8a, it shall be refused unless the transmission system owner or transmission system operator demonstrate that there is no possibility for the entity concerned to be influenced, in breach of Article 8(1), directly or indirectly by any operator active in the production or supply of gas or electricity or by a third country.

3.   Transmission system operators shall notify ║ the national regulatory authority of any planned transaction which may require a reassessment of their compliance with Article 8(1) or Article 8a.

4.  National regulatory authorities shall monitor the continuing compliance of transmission system operators with Article 8(1) and Article 8a. They shall open a certification procedure to ensure such compliance:

   a) upon notification by the transmission system operator pursuant to paragraph 3;
   b) on their own initiative where they have knowledge that a planned change in rights or influence over transmission system owners or transmission system operators may lead to an infringement of Article 8(1) or Article 8a, or where they have reason to believe that such an infringement may have occurred; or
   c) upon reasoned request from the Commission.

5.   The national regulatory authorities shall adopt a decision on the certification of a transmission system operator within four months from the date of the notification by the transmission system operator or from the date of the Commission request. After expiry of this period, the certification is deemed to be granted. The explicit or tacit decision of the national regulatory authority may become effective only after the conclusion of the procedure set out in paragraphs 6 to 9 and only if the Commission fails to raise objections against it.

6.   The explicit or tacit decision on the certification of a transmission system operator shall be notified without delay to the Commission by the national regulatory authority, together with all the relevant information with respect to the decision.

7.   The Commission shall examine the notification as soon as it is received. Within two months after receiving a notification, where the Commission finds that the decision of the national regulatory authority raises serious doubts as to its compatibility with Article 8(1), Article 8a or Article 8b(2), it shall decide to initiate proceedings. In such a case, it shall invite the national regulatory authority and the transmission system operator concerned to submit comments. Where additional information is sought by the Commission, the two-month-period may be extended by two additional months starting from the receipt of the complete information.

8.  Where the Commission has decided to initiate proceedings, it shall, within ║ four months of the date of that decision, issue a final decision:

   a) not to raise objections against the decision of the national regulatory authority;
or
   b) requiring the national regulatory authority concerned to amend or withdraw its decision if it considers that Article 8(1), Article 8a or Article 8b(2) have not been complied with.

9.   Where the Commission has not taken a decision to initiate proceedings or a final decision within the time-limits set in paragraphs 7 and 8 respectively, it shall be deemed not to have raised objections against the decision of the national regulatory authority.

10.   The national regulatory authority shall comply with the Commission decision to amend or withdraw the certification decision within a period of four weeks and shall inform the Commission accordingly.

11.   National regulatory authorities and the Commission may request from transmission system operators and undertakings performing any of the functions of generation or supply any information relevant for the fulfillment of their tasks under this Article.

12.   National regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.

"

(12)    Article 9 ║shall be amended as follows:

a)    point (a) shall be replaced by the following:

"
   a) ensuring the long-term ability of the system to meet reasonable demands for the transmission of electricity, operating, maintaining and developing under economic conditions secure, reliable and efficient transmission systems with due regard to the environment, ▌with respect to integrating renewables, embedded generation and low carbon technology in the grid system, and promotion of energy efficiency and research and innovation ;";
"

b)    point (c) shall be replaced by the following:

"
   c) "(c) managing energy flows on the system, taking into account exchanges with other interconnected systems and common standards coordinated at European level. To that end, the transmission system operator shall be responsible for ensuring a secure, reliable and efficient electricity system and, in that context, for ensuring the availability of all necessary ancillary services, including those provided by demand response based on common standards insofar as this availability is independent from any other transmission system with which its system is interconnected;
"

c)    point (d) shall be replaced by the following:

"
   d) providing to the operator of any other system with which its system is interconnected sufficient information to ensure the secure and efficient operation and the interoperability of the interconnected system, making common use of this information;
"

d)    point (f) shall be replaced by the following:

"
   f) providing system users with the information they need for efficient access to the system, on the basis of common standards;
"

e)    the following point shall be added:

"

(fa) collecting congestion rents and payments under the inter-transmission system operator compensation mechanism, in compliance with Article 3 of Regulation (EC) No 1228/2003, granting and managing third-party access and giving reasoned explanations when it denies such access, which shall be monitored by the national regulatory authorities; in carrying out their tasks under this Article transmission system operators shall primarily facilitate market integration and optimise socio-economic welfare gains.

"

(13)    Article 10 shall be deleted.

(14)    Article 11 shall be amended as follows :

a)    paragraph 2 shall be replaced by the following:

"

2.    The dispatching of generating installations and the use of interconnectors shall be determined on the basis of criteria which shall be approved by national regulatory authorities and which must be objective, published and applied in a non-discriminatory manner which ensures the proper functioning of the internal market in electricity. They shall take into account the economic precedence of electricity from available generating installations or interconnector transfers and the technical constraints on the system.

"

b)    paragraph 3 shall be replaced by the following:

"

3.    A national regulatory authority shall require the system operator, when dispatching generating installations, to give priority to generating installations using renewable energy sources or waste or producing combined heat and power except when technical balancing requirements or the safety and reliability of the grid would be compromised.

"

c)    paragraph 5 shall be replaced by the following:

"

5.    Member States shall, through the national regulatory authorities, require transmission system operators to comply with minimum standards for the operation, maintenance and development of the transmission system, including interconnection capacity. National regulatory authorities should be given broader powers for the purpose of ensuring consumer protection within the European Union.

"

d)    the following paragraphs shall be added:

"

7a.    Transmission system operators shall facilitate participation of large final customers and final customers" aggregators in reserve and balancing markets. Whenever generation and demand bids have the same price, priority shall be given to demand.

7b.    National regulatory authorities shall ensure that balancing rules and tariffs are appropriately harmonised throughout all Member States by ...*. In particular, they shall ensure that large final customers, final customers" aggregators and distributed generators are able to effectively contribute to balancing and other relevant ancillary services.

_________________

* Two years after the entry into force of Directive .../.../EC [amending Directive 2003/54/EC concerning common rules for the internal market in electricity] .

"

(15)    Article 12 shall be replaced by the following:

"

Article 12

Confidentiality for transmission system operators and transmission system owners

1.   Without prejudice to Article 18 or any other legal duty to disclose information, each transmission system operator and transmission system owners shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its business, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner, and in particular shall not disclose any commercially sensitive information to the remaining parts of the company, unless this is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbundling it must also be ensured that the transmission system owner and the remaining part of the company do not use joint services, apart from purely administrative or IT functions (e.g. no joint legal service).

2.   Transmission system operators shall not, in the context of sales or purchases of electricity by related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.

3 .   Commercial information of essential importance to competition in the market, and in particular information enabling the point of delivery to be identified, information on installed capacity and information on subscribed capacity, shall be accessible to all electricity suppliers on the market. Where necessary, the national regulatory authority shall require incumbents to supply such information to the persons concerned.

"

(16)    Article 14 shall be amended as follows:

a)    paragraph 1 shall be replaced by the following:

"

1.   "1. The distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of electricity, for operating, maintaining and developing under economic conditions of a secure, reliable and efficient electricity distribution system in its area with due regard for the environment, and for promoting energy efficiency.";

"

b)    paragraph 3 shall be replaced by the following:

"

3.    The distribution system operator shall provide system users with the information they need for efficient access to and use of the system.

"

c)    the following paragraphs shall be inserted after paragraph 3 :

"

3a.    The distribution system operator shall submit to the relevant national regulatory authority, by ...* a proposal describing the appropriate information and communication systems to be implemented in order to provide the information referred to in paragraph 3. That proposal shall facilitate, inter alia, the use of bi-directional electronic meters, which shall be rolled out to all consumers by ... **,, the active participation of final customers and distributed generators in system operation and the flow of real-time information between distribution and transmission system operators with the aim of optimising the use of all available generation, network and demand resources.

3b.    By ...*** national regulatory authorities shall approve or reject the proposals referred to in paragraph 3a. National regulatory authorities shall ensure the full interoperability of the information and communication systems to be implemented. For this purpose, they may issue guidelines and call for the amendment of the proposals referred to in paragraph 3a.

3c.    Prior to notification to the distribution system operator of its decision concerning the proposal referred to in paragraph 3a, the national regulatory authority shall inform the Agency or, if it is not yet in operation, the Commission. The Agency or the Commission shall ensure that the information and communication systems to be implemented facilitate the development of the internal electricity market and do not introduce any new technical barriers.

"

________________

* One year after the entry into force of Directive .../.../EC [amending Directive 2003/54/EC concerning common rules for the internal market in electricity] .

** Ten years of the entry into force of Directive .../.../EC [amending Directive 2003/54/EC concerning common rules for the internal market in electricity]

*** Two years of the entry into force of Directive .../.../EC [amending Directive 2003/54/EC concerning common rules for the internal market in electricity] .

d)    the following paragraph shall be inserted after paragraph 4 :

"

4a.    Member States shall encourage the modernisation of distribution networks which shall be built in a way that encourages decentralised generation and ensures energy efficiency.

"

(17)    Article 15 shall be amended as follows:

a)   in paragraph 2(c), the following sentence shall be added after the first sentence:

"

In order to fulfill these tasks, the distribution system operator shall have at its disposal the necessary resources including human, technical, financial and physical.

"

b)   paragraph 2(d) shall be amended as follows:

i)   the last sentence shall be amended as follows:

"

An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme, hereinafter referred to as 'compliance officer', to the national regulatory authority referred to in Article 22a(1) and shall be published.

"

ii)   the following sentence shall be added:

"

The compliance officer shall be fully independent and shall have access to all the necessary information of the distribution system operator and any affiliated companies to fulfill his task.";

"

c)   the following paragraph shall be added:

"

3.   "3. Where the distribution system operator is part of a vertically integrated undertaking, national regulatory authorities shall ensure that the activities of the distribution system operator is monitored so that it cannot take advantage of its vertical integration to distort competition. In particular, vertically integrated distribution system operators shall not, in their communication and branding, create confusion in respect of the separate identity of the supply branch of the vertically integrated undertaking.

"

(18)    Article 17 shall be replaced by the following :

"

This directive shall not prevent the operation of a combined transmission and distribution system operator provided it complies, for each of its activities, with the applicable provisions of Article 8, Article 10b and Article 15(1).

"

(19)    Article 19(3) shall be replaced by the following:

"

3.    Electricity undertakings shall, in their internal accounting, keep separate accounts for each of their transmission and distribution activities as they would be required to do if the activities in question were carried out by separate undertakings, with a view to avoiding discrimination, cross-subsidisation and distortion of competition. They shall also keep accounts, which may be consolidated, for each electricity activity not relating to transmission or distribution. Until 1 July 2007, they shall keep separate accounts for supply activities for eligible customers and supply activities for non-eligible customers. Revenue from ownership of the transmission/distribution system shall be specified in the accounts. Where appropriate, they shall keep consolidated accounts for other, non-electricity activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity.

"

(20)    Article 20(2) shall be replaced by the following:

"

2.    The operator of a transmission or distribution system may refuse access where it lacks the necessary physically available capacity. Reasons based on objective, technically and economically justified criteria shall be given for such refusal of access. The national regulatory authority shall ensure that those criteria are consistently applied and that the system user who has been refused access has a right of appeal. The national regulatory authority shall ensure, where appropriate and when refusal of access takes place, that the transmission or distribution system operator provides relevant information on measures that would be necessary to reinforce the network. The party requesting such information may be charged a reasonable fee reflecting the cost of providing such information.

"

(21)    In Article 21, the following paragraphs shall be added:

"

2a.    Eligible customers shall have the right to contract simultaneously with several suppliers.

2b.    The Agency shall perform real-time monitoring of all organised wholesale electricity markets established in the European Union, the European Economic Area and neighbouring countries in order to detect abuses of market power or market-design flaws and to promote the efficient functioning of the internal market.

"

(22)    The following chapter shall be inserted after Article 22:

"

CHAPTER VIIa

NATIONAL REGULATORY AUTHORITIES

Article 22a

Designation and independence of national regulatory authorities

1.   Each Member State shall designate a single national regulatory authority.

2.  Member States shall guarantee the independence of the national regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member State shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and other relevant legislation , the national regulatory authority:

   a) is legally distinct and functionally independent from any other public or private entity; and
   b) ║ its staff and the persons responsible for its management act independently from any market interest, and
   c) does not seek or take direct instructions from any government or other public or private entity when carrying out regulatory tasks .

3.  In order to protect the independence of the national regulatory authority, Member States shall, in particular, ensure that:

   a) the national regulatory authority has legal personality, financial autonomy and adequate human and financial resources to carry out its duties;
   b) the members of the board of the national regulatory authority are appointed for a non-renewable fixed term of at least five but no more than seven years and that for the first mandate, that term shall be two-and-a-half years for half of the members. The members shall be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of serious misconduct under national law; and
   c) the budgetary needs of the national regulatory authority are met by direct revenues from energy market operations.

Article 22b

Policy objectives of the national regulatory authority

In carrying out the regulatory tasks specified in this Directive, the national regulatory authority shall take all reasonable measures to achieve the following objectives:

   a) the promotion, in close cooperation with the Commission, the Agency, and the national regulatory authorities of other Member States ║ of a competitive, secure and environmentally sustainable internal electricity market within the Community, effective market opening for all consumers and suppliers in the Community, and ensuring that energy supply networks operate in an effective, reliable way, taking into account long-term objectives ;
   b) the development of competitive and properly functioning ▌markets within the Community in view of the achievement of the objective mentioned in point (a);
   c) the suppression of any restrictions to electricity trade between Member States, including the development of appropriate cross-border transmission capacities to meet demand and enhance the integration of national markets so as to facilitate unrestrained electricity flows across the Community;
   d) the development , in the most cost-effective way, ║of consumer oriented, secure, reliable and efficient grid systems, promoting ▌system adequacy, while ensuring energy efficiency and the integration of large and small-scale renewable energy and ensuring distributed generation in both transmission and distribution grids ;
   e) facilitating access to the grid for new generation capacity, in particular removing barriers that could prevent access for new market entrants and renewable energies;
   f) ensuring that network operators are granted adequate incentives, in both the short and the long term, to increase efficiencies in network performance and foster market integration;
   g) ensuring that customers benefit through the efficient functioning of their national market, ensuring consumer protection and promoting effective competition in cooperation with competition authorities;
   h) helping to achieve high standards of universal and public service in electricity supply, contributing to the protection of vulnerable customers, and helping to ensure that the consumer protection measures set out in Annex A are effective; and
   i) harmonising necessary data exchange processes.

Article 22c

Duties and powers of the national regulatory authority

1.  The national regulatory authority shall have the following duties, which it shall carry out, where appropriate, in close consultation with other relevant Community or national bodies, transmission system operators and market stakeholders, without prejudice to their specific competencies :

   a) establishing or approving, independently and in accordance with transparent criteria, regulated network tariffs and network tariff components;
   b) ensuring compliance of transmission and distribution system operators, and, where relevant, system owners, as well as ║ any electricity undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross-border issues;
   c) cooperating on cross-border issues with the national regulatory authority or authorities of other Member States and with the Agency, including ensuring that there is sufficient interconnection capacity between transmission infrastructures to satisfy an efficient overall market assessment and security-of-supply criterion, without discriminating between supply undertakings in different Member States ;
   d) complying with, and implementing, any relevant binding decisions of the Commission and the Agency ║;
   e) reporting annually on its activities and the fulfilment of its duties to the Commission, the relevant authorities of the Member States and the Agency ║. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article;
   f) monitoring compliance with unbundling requirements under this Directive and other relevant Community legislation and ensuring that there are no cross subsidies between transmission, distribution, and supply activities as well as ensuring that distribution and transmission tariffs are set well in advance of the periods during which they are to apply ;
   g) reviewing the investment plans of the transmission system operators, and providing in its annual report an assessment of the investment plan of the transmission system operators as regards its consistency with the European-wide 10-year network investment plan mentioned at Article 2c(1) of Regulation (EC) No 1228/2003; the 10-year investment plan shall create incentives for the promotion of investments, and ensure that the quality and size of the workforce are sufficient to meet service obligations; failure by the relevant operator to honour the 10-year investment plan shall result in the imposition of proportionate sanctions by the national regulatory authority on the operator in accordance with recommendations issued by the Agency;
   h) approving the annual investment plans of the transmission system operators;
   i) monitoring compliance with network security and reliability requirements , setting or approving standards and requirements for quality of service and supply and reviewing past performance in terms of quality of service and supply and network security and reliability rules;
   j) monitoring the level of transparency, ensuring compliance of electricity undertakings with transparency obligations;
   k) encouraging the development of European interruptible supply contracts;
   l) monitoring the level of effective market opening and competition at wholesale and retail levels, including on electricity exchanges, household prices, switching rates, adequate prepayment conditions reflecting actual consumption, connection and disconnection rates, maintenance charges and household complaints in an agreed format, as well as any distortion or restriction of competition in cooperation with competition authorities, including providing any relevant information, bringing any relevant cases to the attention of the relevant competition authorities;
   m) monitoring the occurrence of restrictive contractual practices, including exclusivity clauses, which may prevent non-household customers from contracting simultaneously with more than one supplier or restrict their choice to do so and, where appropriate, informing the national competition authorities of such practices;
   n) with full regard to the provisions of the Treaty, promoting agreements on a long-term basis between energy consumers and suppliers that contribute to the improvement of the energy production and distribution and, at the same time, allow consumers to share the resulting benefits, provided that such agreement can also contribute to an optimal level of investment in the energy sector;
   o) recognising contractual freedom with regard to long-term contracts and the possibility to conclude asset based contracts provided that they are compatible with Community law;
   p) monitoring the time taken by transmission and distribution undertakings to make connections and repairs and imposing sanctions in accordance with the guidelines provided by the Agency if such connections and repairs are prolonged without due cause ;
   q) without prejudice to the competence of other national regulatory authorities, monitoring high standards of universal and public service for electricity and the protection of vulnerable customers ▌;
   r) ensuring that the consumer protection measures set out in Annex A are effective and enforced;
   s) publishing recommendations, at least on a yearly basis, on compliance of supply tariffs with Article 3, paying due attention in those recommendations to the impact on the functioning of the market of regulated prices, namely wholesale and final customer prices ;
   t) reporting to the national competition authorities and the Commission those Member States in which regulated tariffs are lower than the market price;
   u) establishing standardised rules governing relationships between final customers and suppliers, distributors and metering system operators, which cover at least access to customer consumption data, including prices and any related expenditure , the application of an easily understandable harmonised format for such data, adequate prepayment that reflects actual consumption and prompt access for all customers to such data under paragraph (h) of Annex A;
   v) monitoring the implementation of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, suppliers and customers and other market parties pursuant to Regulation (EC) 1228/2003;
   w) monitoring investment in generation capacities in relation to security of supply;
   x) exercising, where appropriate, a right of veto over decisions to appoint or dismiss persons responsible for the general management of a transmission system operator;
   y) fixing or approving network access tariffs and publishing the methodology used to set such tariffs;
   z) establishing or approving standards for quality of service, monitoring their implementation and imposing sanctions for non-compliance therewith;
   aa) monitoring the implementation of safeguard measures referred to in Article 24;
   ab) harmonising data exchange processes for the most important market processes at regional level;

"
   ac) imposing price caps in uncompetitive markets for a defined, limited period in order to protect customers against market abuses, fixing such caps at a sufficiently high level so as not to discourage new market entrants or the growth of existing competitors;
   ad) auditing the maintenance policies of transmission system operators;
   ae) developing, in conjunction with relevant planning authorities, guidelines regarding a time limited licensing procedure in order to encourage new entrants to engage in electricity generation and trading; and
   af) ensuring that wholesale fluctuations in prices are transparent.

2 .   If a Member State so provides, the monitoring duties referred to in paragraph 1 may be carried out by an authority other than the national regulatory authority. In such a case, the information resulting from such monitoring shall be made available to the national regulatory authority as soon as possible.

In accordance with the principles of better regulation, the national regulatory authority shall, as appropriate, consult transmission system operators and closely cooperate with other relevant national authorities when carrying out the duties referred to in paragraph 1, while preserving their independence and without prejudice to their own specific competencies.

3 .  In addition to the tasks conferred upon it under paragraph 1, when an independent system operator has been designated under Article 10, the national regulatory authority shall:

   a) monitor the compliance of the transmission system owner and the independent system operator with their obligations under this Article, and issue penalties for non-compliance in accordance with paragraph 5(d) ;
   b) monitor the relations and communications between the independent system operator and the transmission system owner so as to ensure compliance of the independent system operator with its obligations, and, in particular, approve contracts and act as a dispute settlement authority between the independent system operator and the transmission system owner in respect of any complaint submitted by either party pursuant to paragraph 10 ;
   c) without prejudice to the procedure under Article 10(2c) , for the first 10-year network development plan, approve the investments planning and the multi-annual network development plan presented on an annual basis by the independent system operator;
   d) ensure that network access tariffs collected by independent system operators include a remuneration for the network owner or network owners that provide for an adequate remuneration of the network assets and of any new investments therein;
   e) have the powers to carry out inspections at the transmission system owner and independent system operator's premises; and
   f) monitor the use of congestion rents collected by the independent system operator in accordance with Article 6(6) of Regulation (EC) No 1228/2003║.

4.    When monitoring national electricity markets in accordance with paragraph 1(l), including the monitoring of wholesale and retail prices, national regulatory authorities shall adopt harmonised methodologies agreed and approved by the Agency.

5 .  Member States shall ensure that national regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraphs 1 and 2 in an efficient and expeditious manner. For this purpose, the national regulatory authority shall, inter alia, have ║the ║ power to :

   a) ║ issue binding decisions on electricity undertakings;
   b) ║ carry out in cooperation with the national competition authority investigations of the functioning of electricity markets, and to decide on any appropriate measures necessary and proportionate to promote effective competition and ensure the proper functioning of the market ▌;
   c) obtain any information from electricity undertakings relevant for the fulfilment of its tasks, including the justification for any refusal to grant third-party access, and any information on measures necessary to reinforce the network, and to cooperate with financial market regulatory authorities where necessary ;
   d) ║ impose effective, appropriate and dissuasive sanctions to electricity undertakings not complying with their obligations under this Directive or any decisions of the regulatory authority or of the Agency;
   e) undertake appropriate ║ investigations with relevant powers to conduct dispute settlements under paragraphs 10 and 11 ;
   f) ║ approve safeguards measures as referred to in Article 24.

6 .  The national regulatory authorities shall be responsible for establishing or approving prior to their entry into force the terms and conditions for:

   a) connection and access to national networks, including transmission and distribution tariffs and their methodologies or, alternatively, the methodologies and their monitoring for setting or approving the transmission and distribution tariffs . Those tariffs shall reflect the actual costs incurred, insofar as such costs correspond to those of an efficient operator, and shall be transparent. They shall enable the necessary investments in the networks to be carried out in a manner allowing these investments to ensure the viability of the networks. The tariffs shall not discriminate against new market entrants ;
   b) the provision of balancing services, which shall reflect real costs and be revenue-neutral as far as possible, whilst providing appropriate incentives for network users to balance their input and offtakes; they shall be fair and non-discriminatory and based on objective criteria;
   c) access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management.

The national regulatory authorities shall have power to require transmission system operators to modify those terms and conditions.

7 .   In fixing or approving the terms and conditions or methodologies of the tariffs, and the balancing services, the national regulatory authorities shall ensure that network operators are granted adequate incentive, over both the short and long term, to increase efficiencies, foster market integration, ensure security of supply, and support the related research activities.

8.    The national regulatory authorities shall monitor congestion management within national electricity systems and interconnectors.

Transmission system operators shall submit their congestion management procedures, including capacity allocation, to the national regulatory authorities for approval. National regulatory authorities may request amendments to those procedures before approving them.

9 .   National regulatory authorities shall have the authority to require transmission and distribution system operators, if necessary, to modify the terms and conditions ▌referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event of delay in the establishment of transmission and distribution tariffs, national regulatory authorities shall have the power to set provisional transmission and distribution tariffs and to decide on the appropriate compensatory measures if the final tariffs deviate from those provisional tariffs.

10 .   Any party having a complaint against a transmission or distribution system operator in relation to that operator's obligations under this Directive may refer the complaint to the national regulatory authority which, acting as dispute settlement authority, shall issue a decision within two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the national regulatory authority. The period may also be extended with the agreement of the complainant. The national regulatory authority's decision shall have binding effect unless and until overruled on appeal.

11 .   Any party who is affected and who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the national regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.

12 .   Member States shall create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. Those mechanisms shall take account of the provisions of the Treaty, and in particular Article 82 thereof.

13.    The national regulatory authority shall put in place an independent complaints service or alternative redress scheme, such as an independent energy ombudsman or a consumer body. That service or scheme shall be responsible for the efficient treatment of complaints and shall comply with best practice criteria. The national regulatory authority shall set standards and guidelines on how complaints will be handled by producers and network operators.

14 .   Member States shall ensure that the appropriate measures are taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where confidentiality rules imposed by this Directive have not been respected.

15 .   Complaints referred to in paragraphs 10 and 11 shall be without prejudice to the exercise of rights of appeal under Community and national law.

16 .   Decisions taken by a national regulatory authority shall be fully reasoned and available to the public to allow for legal scrutiny .

17 .   Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a national judicial body or other independent national authority independent of both the parties involved and any government .

Article 22d

Regulatory regime for cross border issues

1.   National regulatory authorities shall closely cooperate and consult with each other, and shall provide each other and the Agency with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority.

2.   In order to ensure that, where regional electricity markets occur, their integration is mirrored by adequate regulatory structures, the relevant national regulatory authorities shall ensure, in close cooperation with and under the guidance of the Agency, that at least the following regulatory tasks are performed in relation to their regional markets:

   a) cooperation at least at a regional level to foster the creation of operational arrangements in order to ensure an optimal management of the network, develop joint electricity exchanges and the allocation of cross-border capacity, and to ensure an adequate level of interconnection capacity including through new interconnection, within the region and between regions to allow for the development of effective competition and the improvement of security of supply;
   b) harmonisation at least at the relevant regional level of all technical and market codes for the relevant transmission system operators and other market actors;
   c) harmonisation of the rules governing the management of congestion and the fair redistribution of revenues and/or costs of congestion management among all market actors;
   d) adoption of rules to ensure that the owners and/or managers of power exchange(s) which operate the relevant regional pool market are fully independent of the owners and/or managers of generation assets.

3 .   National regulatory authorities shall have the right to enter into agreements with each other to foster regulatory cooperation, and the actions referred to in paragraphs 1 and 2 shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies.

4 .  The Agency shall decide upon the regulatory regime for infrastructure connecting at least two Member States:

   a) upon a joint request from the competent national regulatory authorities, or,
   b) where the competent national regulatory authorities have not been able to reach an agreement on the appropriate regulatory regime within six months from the date the file was brought before the last of these regulatory authorities.

Article 22e

Compliance with guidelines

1.   The Commission or any national regulatory authority ║ may request the opinion of the Agency on the compliance of a decision taken by a regulatory authority with guidelines referred to in this Directive or in Regulation (EC) No 1228/2003.

2.   The Agency shall provide its opinion to the Commission or the national regulatory authority which has requested it ║, respectively, and to the national regulatory authority which has taken the decision in question, within four months of the date of the request .

3.   Where the national regulatory authority which has taken the disputed decision fails to comply with the Agency's opinion within four months from the date of its receipt, the Agency shall inform the Commission accordingly .

4.   Any national regulatory authority may inform the Commission where it considers that a decision taken by a national regulatory authority does not comply with guidelines referred to in this Directive or in Regulation (EC) No 1228/2003 within two months from the date of that decision.

5.   Where the Commission║ finds that the decision of a national regulatory authority raises serious doubts as to its compatibility with guidelines referred to in this Directive or in Regulation (EC) No 1228/2003, either within two months of being informed of the failure to comply with the Agency's opinion in accordance with paragraph 3 or of the failure to comply with guidelines in accordance with paragraph 4, or, on its own initiative, within three months from the date of the disputed decision , the Commission may decide to initiate proceedings. In such a case, the Commission shall invite the national regulatory authority and the parties to the proceedings before the national regulatory authority to submit comments.

6.  Where the Commission has decided to initiate proceedings, it shall, within no more than four months of the date of such decision, issue a final decision:

   a) not to raise objections against the decision of the national regulatory authority; or
   b) requiring the national regulatory authority concerned to amend or withdraw its decision if it considers that guidelines have not been complied with.

7.   Where the Commission has not taken a decision to initiate proceedings or a final decision within the time-limits set in paragraphs 5 and 6 respectively, it shall be deemed not to have raised objections against the decision of the national regulatory authority.

8.   The national regulatory authority shall comply with the Commission decision to amend or withdraw their decision within a period of two months and shall inform the Commission accordingly.

Article 22f

Record keeping

1.   Member States shall require supply undertakings to keep at the disposal of the national regulatory authority, the national competition authority and the Commission, for at least five years, the relevant data relating to all transactions in electricity supply contracts and electricity derivatives with wholesale customers and transmission system operators.

2.   The data shall include details on the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled electricity supply contracts and electricity derivatives.

3.   The national regulatory authority shall report on the outcome of its investigations or its request to market participants whilst ensuring that commercially sensitive information on individual market players or individual transactions is not released.▌

4.    ║This Article shall not create additional obligations vis-à-vis the authorities mentioned in paragraph 1 for entities falling within the scope of Directive 2004/39/EC.

5 .   In the event that the authorities referred to in paragraph 1 need access to data kept by entities falling within the scope of Directive 2004/39/EC, the authorities responsible under that Directive shall provide those authorities ║ with the required data.

(23)    Article 23 shall be deleted.

(24)    Article 26 shall be amended as follows :

a)    paragraph 2 shall be replaced by the following:

"

2.    "2. A Member State which, after the Directive has been brought into force, for reasons of a technical nature has substantial problems in opening its market for certain limited groups of the non-household customers referred to in Article 21(1)(b) may apply for derogation from this provision, which may be granted to it by the Commission for a period not exceeding 12 months after the date referred to in Article 30(1). In any case, such derogation shall end on the date referred to in Article 21(1)(c).";

"

b)    the following paragraph shall be added:

"

2a.    The Member States may exempt industrial sites from the provisions of Chapters III, IV, V, VI, and VII. The principle of third-party access shall not be affected by such exemptions . The exemptions shall, moreover, not interfere with the task of public distribution systems.

"

25)    (25) Annex A shall be amended as follows:

a)    point (a) shall be replaced by the following:

"
   a) have a right to a contract with their electricity service provider that specifies:
   the identity and address of the supplier;
   the services provided, the service quality levels offered, as well as the time for the initial connection;
   the types of maintenance service offered;
   the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained;
   the duration of the contract, the conditions for renewal and termination of services and of the contract, the existence of any right of withdrawal without charge;
   any compensation and the refund arrangements which apply if contracted service quality levels are not met including inaccurate and delayed billing;
   the method of initiating procedures for settlement of disputes in accordance with point (f);
   information on consumer rights, including all of the above, clearly communicated through billing and electricity undertakings' web sites; and
   details concerning the competent appeals authority and of the procedure to be followed by consumers in the event of a dispute.

Conditions shall be fair and well-known in advance. In any case, the information referred to in this point will be provided prior to the conclusion or confirmation of the contract. Where contracts are concluded through intermediaries, that information will also be provided prior to the conclusion of the contract;

"

b)    point (b) shall be replaced by the following:

"
   b) are given adequate notice of any intention to modify contractual conditions and are informed about their right of withdrawal when the notice is given. Service providers will notify their subscribers directly of any increase in charges, at an appropriate time no later than one normal billing period after the increase comes into effect in a transparent and comprehensible manner. Member States will ensure that customers are free to withdraw from contracts if they do not accept the new conditions notified to them by their electricity service provider;
"

c)    point (d) shall be replaced by the following:

"
   d) are offered a wide choice of payment methods, which will not discriminate against customers. Any difference in terms and conditions shall reflect the costs to the supplier of the different payment systems. General terms and conditions will be fair and transparent. They will be given in clear and comprehensible language. Customers will be protected against unfair or misleading selling methods including non-contractual barriers imposed by the trader, for example excessive contractual documentation;
"

d)    point (f) shall be replaced by the following:

"
   f) benefit from transparent, simple and inexpensive procedures for dealing with their complaints. In particular, all consumers will have the right to service delivery and complaint handling by their electricity service provider. Such procedures will enable disputes to be settled fairly and promptly, and within three months, with provision, where warranted, for a system of reimbursement and/or compensation. They will follow, wherever possible, the principles set out in Commission Recommendation 98/257/EC*;
_________________________
* OJ L 115, 17.4.1998, p. 31 .
"
   e) ║the following points shall be added:"
   h) are easily able to switch to a new supplier and have at their disposal their consumption data and will be able to, by explicit agreement and free of charge, give any authorised supplier access to its metering data. The party responsible for data management is obliged to give that data to the undertaking. Member States will define a format for the data and a procedure for suppliers and consumers to have access to the data. No additional costs may be charged to the consumer for this service;
   i) are properly informed at least quarterly of actual electricity consumption and costs. No additional costs may be charged to the consumer for this service. The Member States will ensure that the roll-out of smart meters is completed with minimum disruption to consumers within ...* and shall be the responsibility of the electricity distribution or supply companies. National regulatory authorities will be responsible for monitoring the process of such development and for laying down common standards for that purpose. Member States will ensure that standards establishing the minimum technical design and operational requirements for meters address interoperability issues so as to provide maximum benefit at minimum cost to consumers ;
   j) receive a final closure account following any change of electricity supplier no later than one month after informing the relevant suppplier.
_________________
* 10 years after the entry into force of Directive .../...EC [ amending Directive 2003/54/EC concerning common rules for the internal market in electricity ] .
"

Article 2

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(7) ║. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

They shall apply these provisions from ...*║.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 3

Entry into force

This Directive shall enter into force on the […] day following that of its publication in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

Done at ║

For the European Parliament For the Council

The President The President

(1) OJ C 211, 19.8.2008, p. 23.
(2) OJ C 172, 5.7.2008, p. 55.
(3) Position of the European Parliament of 18 June 2008.
(4) OJ L 176, 15.7.2003, p. 37.
(5) OJ L...
(6) OJ L 176, 15.7.2003, p. 1.
(7)* 18 months after the entry into force of this Directive.


Conditions for access to the network for cross-border exchanges in electricity ***I
DOC 123k
Resolution
Consolidated text
European Parliament legislative resolution of 18 June 2008 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1228/2003 on conditions for access to the network for cross-border exchanges in electricity (COM(2007)0531 – C6-0320/2007 – 2007/0198(COD) )
P6_TA(2008)0295 A6-0228/2008

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0531 ),

–   having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0320/2007 ),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on Economic and Monetary Affairs and the Committee on the Internal Market and Consumer Protection (A6-0228/2008 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Regulation (EC) No .../2008 of the European Parliament and of the Council amending Regulation (EC) No 1228/2003 on conditions for access to the network for cross-border exchanges in electricity

P6_TC1-COD(2007)0198


(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission║,

Having regard to the opinion of the European Economic and Social Committee(1) ,

Having regard to the opinion of the Committee of the Regions(2) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3) ,

Whereas:

(1)   The internal market for electricity, which has been progressively implemented since 1999, aims at delivering real choice for all consumers in the Community, be they citizens or business, new business opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, higher standards of service, and to contribute to security of supply and sustainability.

(2)   Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity║(4) and 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(5) have made significant contributions towards the creation of ║ an internal market for electricity.

3)   ║ The right to sell electricity in any Member State on equal terms, without discrimination or disadvantage cannot, however, currently be guaranteed to any company in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist and isolated markets endure .

(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 to create a level playing field for all electricity undertakings in the Community. The Communications from the Commission of the same date, on prospects for the internal gas and electricity market ║ and in relation to its inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 into the European gas and electricity sectors ║ showed that the present rules and measures neither provide the necessary framework nor provide for the creation of physical connections to achieve the objective of a well-functioning , efficient and open internal market.

(5)   Regulation (EC) No 1228/2003 needs to be adapted in line with those communications to improve the regulatory framework of the internal market for electricity.

(6)   In particular, the creation of physical connections and increased cooperation and coordination among transmission system operators are required to ensure progressive compatibility of the technical and commercial codes for providing and managing effective and transparent access to the transmission networks across borders, ║ to ensure coordinated and sufficiently forward-looking planning and sound technical evolution of the transmission system in the Community, with due regard to the environment, and to promote energy efficiency and research and innovation, in particular as regards the penetration of energy from renewable sources and the dissemination of low carbon technology. Transmission system operators should operate their networks according to these compatible technical and market codes.

(7)   In order to ensure an optimal management of the electricity transmission network and to allow trading and supplying electricity to retail customers across borders in the Community, a European network of the transmission system operators should be established. Its tasks should be carried out in compliance with Community competition rules which remain applicable to the decisions of the European network of the transmission system operators. Its tasks should be well-defined and their working method should be such as to ensure efficiency, representativity and transparency. Given that more effective progress may be achieved through an approach at regional level, transmission system operators should set up regional structures within the overall cooperation structure, whilst ensuring that results at regional level are compatible with codes and investment plans at Community level. Member States should promote cooperation and monitor the effectiveness of the network at regional level. Cooperation at regional level should be compatible with progress towards a competitive and efficient internal market for electricity.

(8)    In order to ensure greater transparency regarding the entire electricity transmission network in the European Union, the Commission should draw up, publish and regularly update a road map. All feasible electricity transmission networks and possible regional connections should be included in that road map.

(9)   Market monitoring undertaken over recent years by the national regulatory authorities and by the Commission has shown that current transparency requirements and rules on access to infrastructure are not sufficient to secure a genuine, well-functioning, efficient and open internal market .

(10)   Equal access to information on the physical status and efficiency of the system is necessary to enable all market participants to assess the overall demand and supply situation and identify the reasons for movements in the wholesale price. This includes more precise information on electricity generation, supply and demand, network capacity, flows and maintenance, balancing and reserve capacity.

(11)   To enhance trust in the market, its participants need to be sure that abusive behaviour can be sanctioned effectively . The competent authorities should be given the competence effectively to investigate allegations of market abuse. To this end, access by the competent authorities to data ▌that provides information on operational decisions made by supply undertakings is necessary . In the electricity market, many relevant decisions are made by the generators, who should keep information in relation thereto available to and easily accessible by the competent authorities for a fixed period of time. The competent authorities should, furthermore, regularly monitor the compliance of the transmission system operators with the rules. Small generators with no real ability to distort the market should be exempt from this obligation.

(12)   Competition for household consumers requires that suppliers not be blocked when they want to enter new retail markets. The rules and responsibilities governing the supply chain therefore need to be known to all market participants , and ║ need to be harmonised with a view to enhancing Community market integration. The competent authorities should regularly monitor the compliance of market participants with the rules.

(13)   Investments in major new infrastructures should be strongly promoted while ensuring the proper functioning of the internal market for electricity. In order to enhance the positive effect of exempted direct current interconnectors on competition and security of supply, market interest during the project planning phase should be tested and congestion management rules should be implemented. Where direct current interconnectors are located in the territory of more than one Member State, the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No …/2008 of the European Parliament and of the Council of ... [establishing an Agency for the Cooperation of Energy Regulators] (6) should handle the exemption request in order to take better account of its cross-border implications and ║ facilitate its administrative handling. Moreover, given the exceptional risk profile of constructing such major infrastructure projects it should be possible for supply and production undertakings to be temporarily exempted from the full impact of the unbundling rules for the projects concerned.

(14)   Regulation (EC) No 1228/2003 provides that certain measures are to be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(7) .

(15)   Decision 1999/468/EC has been amended by Council Decision 2006/512/EC(8) , which introduced a regulatory procedure with scrutiny for measures of general scope designed to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, inter alia by deleting some of those elements or by supplementing the instrument by the addition of new non-essential elements.

(16)   In accordance with the ║ statement by the European Parliament, the Council and the Commission(9) concerning Decision 2006/512/EC, for the regulatory procedure with scrutiny to be applicable to instruments adopted in accordance with the procedure referred to in Article 251 of the Treaty which are already in force, those instruments must be adjusted in accordance with the applicable procedures.

(17)   The Commission should be empowered to adopt the measures necessary for the implementation of Regulation (EC) No 1228/2003 in order to establish or adopt the guidelines necessary for providing the minimum degree of harmonisation required to achieve the aim of this Regulation. Since those measures are of general scope and are designed to amend non-essential elements of Regulation (EC) No 1228/2003 by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(18)   Regulation (EC) No 1228/2003 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1228/2003 is amended as follows:

(1)   In Article 1 the following paragraph shall be added:

"

This Regulation also aims at facilitating the emergence of a well-functioning and transparent ▌wholesale market with a high level of security of supply . It provides mechanisms to harmonise ▌rules to this effect .

"

(2)   In Article 2(2) the following point shall be added:

"

h)   "Agency' means the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No …/2008 of the European Parliament and of the Council of ... [establishing an Agency for the Cooperation of Energy Regulators]* .

_________________

* OJ L ...

"

(3)   The following articles shall be inserted:

"

Article 2a

European Network of Transmission System Operators for Electricity

All transmission system operators shall cooperate at Community level through a European network of transmission system operators for electricity in order to ensure the optimal management and sound technical evolution of the European electricity transmission network and to promote the completion of the internal market for electricity .

Article 2b

Establishment of the European Network for Transmission System Operators for Electricity

1.   By […] at the latest the transmission system operators for electricity shall submit to the Commission and to the Agency ║ draft ║ statutes, a list of future members and draft rules of procedure ▌with a view to establishing a European network of transmission system operators for electricity ║.

2.   Within six weeks from receipt, the Agency shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure.

3.   The Commission shall deliver an opinion on the draft statutes, list of members and draft rules of procedure within 3 months from the receipt of the opinion of the Agency.

4.   Within 3 months from ║ receipt of the Commission's opinion, the transmission system operators shall establish the European Network for Transmission System Operators for Electricity, adopt its statutes and rules of procedure and publish them.

Article 2c

Tasks of the European Network of Transmission System Operators for Electricity

1.  In order to achieve the objectives set out in Article 2a, the European Network of Transmission System Operators for Electricity shall agree and submit to the Agency, for approval, following the procedure provided for in Article 2d in conjunction with Article 6(3) of Regulation (EC) No …/2008 [establishing an Agency for the Cooperation of Energy Regulators], the following :

   a) draft network codes in the areas mentioned in paragraph 3, elaborated in cooperation with market participants and network users ;
   b) common network operation tools and research plans;
   c) a 10-year investment plan, including a generation adequacy outlook, every two years;
   d) measures to ensure the real-time coordination of grid operation in normal and emergency conditions;
   e) guidelines on the coordination of technical cooperation between Community and third-country transmission system operators;
   f) an annual work programme based on the priorities set by the Agency ;
   g) an annual report; and
   h) annual summer and winter generation adequacy outlooks.

2.   The annual work programme referred to in paragraph 1 (f ) shall contain a list and description of the network codes, a plan on common operation of the network and research and development activities, to be drawn up in that year and an indicative calendar.

3.  The detailed network codes shall cover the following areas, according to the priorities defined in the annual work programme:

   a) security and reliability rules, including interoperability rules and procedures for emergency situations ;
   b) grid connection and access rules;
   c) cross-border capacity allocation and congestion management rules;
   d) network-related transparency rules;
   e) balancing and settlement rules including reserve power rules;

(f)   ▌inter-TSO compensation rules;

   g) energy efficiency regarding electricity networks.

4.   The Agency shall monitor the implementation of the network codes by the European Network of Transmission System Operators for Electricity .

5.   The European Network of Transmission System Operators for Electricity shall publish a Community-wide 10-year network investment plan every two years following its approval by the Agency . The investment plan shall include the modelling of the integrated network, scenario development, a generation adequacy report and an assessment of the resilience of the system. The investment plan shall, in particular, build on national investment plans taking into account regional and Community aspects of network planning, including the Guidelines for Trans-European energy networks in accordance with Decision No 1364/2006/EC of the European Parliament and of the Council*. The investment plan shall identify investment gaps, notably with respect to cross border capacities, and shall include investments in interconnection and in other infrastructure necessary for effective trading and competition and for security of supply. A review of barriers to the increase of cross-border capacity of the network arising from different approval procedures or practices shall be annexed to the investment plan .

6.    The transmission system operators shall implement the published investment plan .

6. ║ The European Network of Transmission System Operators for Electricity, on its own initiative, may propose to the Agency draft network codes in any area other than those listed in paragraph 3 with a view to achieving the objective set out in Article 2a. The Agency shall adopt the network codes following the procedure set out in Article 2f while ensuring that those network codes are not in contradiction to the guidelines adopted under Article 2e .

Article 2d

1.    Monitoring by the Agency

1.   The Agency shall monitor the execution of the tasks referred to in Article 2c(1) of the European Network of Transmission System Operators for Electricity.

2.    The European Network of Transmission System Operators for Electricity shall collect all relevant information regarding the implementation of the network codes and submit it to the Agency for evaluation.

The European Network of Transmission System Operators for Electricity shall submit the draft network codes and the documents referred to in Article 2c(1) to the Agency for approval .

The Agency shall monitor the implementation of the network codes, the 10-year investment plan and the ▌annual work programme and shall include the results of that monitoring in its annual report. In the event of non-compliance by the transmission system operators with the network codes, the 10-year investment plan or the annual work programme the Agency shall provide information thereof to the Commission .

Article 2e

1.    Development of guidelines

1.    The Commission shall, after consulting the Agency, establish an annual priority list identifying issues of primary importance for the development of the internal market for electricity.

2.    Having regard to that priority list, the Commission shall mandate the Agency to develop, within no more than six months, draft guidelines establishing basic, clear and objective principles for the harmonisation of rules, as set out in Article 2c.

3.    In drafting those guidelines, the Agency shall formally consult the European Network of Transmission System Operators for Electricity and other stakeholders, in an open and transparent manner.

4.    The Agency shall adopt draft guidelines on the basis of that consultation. It shall specify the observations received during the consultation and explain how they were taken into account. It shall give reasons where observations have not been taken into account.

On its own initiative or at the request of the Agency, the Commission may initiate the same procedure to update the guidelines.

Article 2f

1.    Development of network codes

1.    Within six months of the adoption of the guidelines by the Agency and in accordance with Article 2e, the Commission shall mandate the European Network of Transmission System Operators of Electricity to develop draft network codes in full compliance with the principles established in the guidelines.

2.    In drafting those network codes, the European Network of Transmission System Operators for Electricity shall take into consideration technical expertise from market participants and network users and shall keep them informed of progress.

3.    The European Network of Transmission System Operators for Electricity shall submit the draft network codes to the Agency.

4.    The Agency shall conduct a formal consultation in relation to the draft network codes in an open and transparent manner.

5.    The Agency shall adopt the draft network codes on the basis of that consultation. It shall specify the observations received during the consultation and explain how they were taken into account. It shall give reasons where observations have not been taken into account.

6.    On the Agency's own initiative or at the request of the European Network of Transmission System Operators for Electricity, a revision of the existing codes may be undertaken following the same procedure.

The Commission may, on a recommendation of the Agency, submit that network code to the Committee referred to in Article 13(1) for its final adoption in accordance with the procedure referred to in Article 13(2).

Article 2g

1.    Consultations

1.   In carrying out its tasks, the Agency shall formally consult ▌, in an open and transparent manner, ▌all appropriate market participants; the consultation shall include supply and generation undertakings, customers, system users, distribution system operators, including relevant (industry) associations, technical bodies and stakeholder platforms.

2.   All documents and minutes of meetings related to the issues referred to in paragraph 1 shall be made public.

3.   Before adopting the guidelines and network codes, the Agency shall specify the observations received during the consultation and explain how they were taken into account . The Agency shall provide reasons where observations have not been taken into account.

The European Network of Transmission System Operators for Electricity shall cooperate with market participants and network users in accordance with Article 2f(2).

Article 2h

Costs

The costs related to the activities of the European Network of Transmission System Operators for Electricity referred to in Articles 2a to 2j shall be borne by the transmission system operators and shall be included in the calculation of tariffs. The regulatory authorities shall approve those costs only if they are reasonable and proportionate.

Article 2i

Regional cooperation of transmission system operators

1.   Transmission system operators shall establish regional cooperation within the European Network of Transmission System Operators for Electricity to contribute to the tasks mentioned in Article 2c(1). In particular, they shall publish a regional investment plan every two years, and may take investment decisions based thereon .

The regional investment plan may not be contradictory to the 10-year investment plan referred to in Article 2c(1)(c).

2.   Transmission system operators shall promote operational arrangements in order to ensure optimum management of the network, and, where efficient, promote the development of energy exchanges, the coordinated allocation of cross-border capacity ▌and the compatibility of cross-border balancing ▌mechanisms.

Article 2j

Technical cooperation between Community and third-country transmission system operators

1.    Technical cooperation between Community and third-country transmission system operators shall be monitored by the national regulatory authorities;

2.    If incompatibilities with the rules and network codes adopted by the Agency come to light in the course of such technical cooperation, the national regulatory authority shall seek clarification from the Agency.

___________________

* OJ L 262, 22.9.2006, p. 1.

"

(4)  Article 5 shall be amended as follows:

   a) the title shall be replaced by the following: "Provision of information";
   b) the following paragraphs shall be added:"
4.   Transmission system operators shall publish relevant data on forecast and actual demand, on availability and actual use of generation and load assets, on availability and use of the network and interconnectors, and on balancing power and reserve capacity.
5.   The market participants concerned shall provide the transmission system operators with the relevant data.
6.   Generation companies which own or operate generation assets, of which one has an installed capacity of at least 250 MW, shall keep at the disposal of the Commission, the national regulatory authority, the national competition authority, and the Agency , for five years all hourly data per plant that is necessary to verify all operational dispatching decisions and the bidding behaviour at power exchanges, interconnection auctions, reserve markets and OTC markets. The per plant and per hour information to be stored includes, but is not limited to, data on available generation capacity and committed reserves, including allocation of these committed reserves on a per plant level, at the time the bidding is carried out and when production takes place. "

(5)   Article 6 shall be amended as follows:

a)    in paragraph 1, the following subparagraphs shall be added:

"

The national regulatory authorities shall monitor congestion management within national electricity systems and on interconnectors.

Transmission system operators shall submit their congestion management procedures including capacity allocation for approval to the national regulatory authorities. The national regulatory authorities may request amendments to those procedures before approving them. ";

"
   b) ║paragraph 6 shall be replaced by the following:"
6.  "6. Any revenues resulting from the allocation of interconnection shall be used for the following purposes ▌:
   a) guaranteeing the actual availability of the allocated capacity; and
   b) network investments maintaining or increasing interconnection capacities.

If the revenue cannot be used for the purposes set out in points (a) or (b) it shall be placed on a separate account until such time as it can be spent on those purposes. In such a case, the national regulatory authorities, with the approval of the Agency, may take the amount available into account when approving the methodology for calculating the network tariffs, in assessing whether tariffs should be modified on the one hand and/or in deciding whether to set up locational signals and/or demand-side measures such as load-shifting or counter-trading on the other . "

(6)   Article 7 shall be replaced by the following:

"

Article 7

New interconnectors

1.  New direct current interconnectors between Member States may, upon request, be exempted, for a limited period of time, from the provisions of Article 6(6) of this Regulation and Articles 8, 10, 20 and Article 22c(4), (5) and (6) of Directive 2003/54/EC under the following conditions:

   a) the investment must enhance competition in electricity supply;
   b) the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted;
   c) the interconnector must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that interconnector will be built;
   d) charges are levied on users of that interconnector;
   e) since the partial market opening referred to in Article 19 of Directive 96/92/EC, no part of the capital or operating costs of the interconnector has been recovered from any component of charges made for the use of transmission or distribution systems linked by the interconnector; and
   f) the exemption is not to the detriment of competition or the effective functioning of the internal ║ market for electricity or the efficient functioning of the regulated system to which the interconnector is linked.

2.   Paragraph 1 shall apply also, in exceptional cases, to alternating current interconnectors provided that the costs and risks of the investment in question are particularly high when compared with the costs and risks normally incurred when connecting two neighbouring national transmission systems by an alternating current interconnector.

3.   Paragraph 1 shall apply also to significant increases of capacity in existing interconnectors.

4.   The Agency may, on a case-by-case basis, decide on the exemptions referred to in paragraphs 1, 2 and 3. An exemption may cover all or part of ║ the capacity of the new interconnector, or of the existing interconnector with significantly increased capacity.

In deciding to grant an exemption consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the interconnector. When deciding on those conditions account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.

Before granting an exemption, the Agency shall decide upon the rules and mechanisms for management and allocation of capacity. The Agency shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the facility to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in paragraph 1(a), (b) and (f) ║, the Agency shall take into account the results of that capacity allocation procedure.

The exemption decision, including any conditions referred to in the second subparagraph, shall be duly reasoned and published. The Agency shall consult with the regulatory authorities concerned.

5.  The Agency shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the Agency to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:

   a) the detailed reasons on the basis of which the Agency, granted the exemption, including the financial information justifying the need for the exemption;
   b) the analysis undertaken of the effect on competition and the effective functioning of the internal electricity market resulting from the grant of the exemption;
   c) the reasons for the time-period and the share of the total capacity of the interconnector in question for which the exemption is granted;
   d) the result of the consultation with the national regulatory authorities concerned.

6.   Within two months after receiving a notification, the Commission may take a decision requiring the Agency to amend or withdraw the decision to grant an exemption. Where the Commission has sought additional information, it may take its decision within two months of the day following the receipt of the complete additional information. The two-month period can ║be extended with the consent of both the Commission and the Agency. Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the Agency, or the Agency, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.

The Agency shall comply with the Commission decision to amend or withdraw the exemption decision within a period of four weeks and shall inform the Commission accordingly.

The Commission shall preserve the confidentiality of commercially sensitive information.

The Commission's approval of an exemption decision shall lapse two years after its adoption in the event that the construction of the interconnector has not yet started, and ║ five years after its adoption in the event that the interconnector has not become operational unless the Commission decides that any delay is due to major administrative obstacles or any other cause relevant to the decision but outside the control of the applicant .

7.   The Commission may amend existing guidelines for the application of the conditions referred to in paragraph 1 and to set out the procedure to be followed for the application of paragraphs 4 and 5. Such measures, designed to amend non-essential elements of this Regulation by supplementing, it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 13(2).

8 .   Exemptions granted pursuant to this Article and applicable at the date of entry into force of Regulation (EC) No. .../2008 of the European Parliament and of the Council of ... [amending Regulation (EC) No 1228/2003 on conditions for access to the network for cross-border exchanges in electricity]* shall automatically continue to apply.

_________________

* OJ L ...

"

(7)    The following articles shall be inserted:

"

Article 7a

Removal of administrative barriers to increase capacity

Member States shall review their procedures with the aim of identifying and removing any administrative barriers to increasing the amount of interconnection capacity. Member States shall identify the grid segments that need to be reinforced in order to increase the overall level of cross-border interconnection capacity in line with the objective of broad market integration.

"

Article 7b

Retail markets

In order to facilitate the emergence of well-functioning , efficient and transparent ▌ markets at a regional and Community level , Member States shall ensure that the roles and responsibilities of transmission system operators, distribution system operators, supply undertakings and customers and, if necessary, other market participants are defined in detail with respect to contractual arrangements, commitment to customers, data exchange and settlement rules, data ownership and metering responsibility.

Those rules shall be made public ▌and shall be subject to review by the national regulatory authorities.

(8)   Article 8 shall be replaced by the following:

"

Article 8

Guidelines relating to inter-transmission system operator compensation mechanisms

1.  Where appropriate, the Commission may adopt guidelines relating to the inter-transmission system operator compensation mechanism that shall specify, in accordance with the principles set out in Articles 3 and 4:

   a) details of the procedure for determining which transmission system operators are liable to pay compensation for cross-border flows including as regards the split between the operators of national transmission systems from which cross-border flows originate and the systems where those flows end, in accordance with Article 3(2);
   b) details of the payment procedure to be followed, including the determination of the first period of time for which compensation is to be paid, in accordance with the second subparagraph of Article 3(3);
   c) details of methodologies for determining the cross-border flows hosted for which compensation is to be paid under Article 3, in terms of both quantity and type of flows, and the designation of the magnitudes of such flows as originating and/or ending in transmission systems of individual Member States, in accordance with Article 3(5);
   d) details of the methodology for determining the costs and benefits incurred as a result of hosting cross-border flows, in accordance with Article 3(6);
   e) details of the treatment in the context of the inter-transmission system operator compensation mechanism of electricity flows originating or ending in countries outside the European Economic Area; and
   f) the participation of national systems which are interconnected through direct current lines, in accordance with Article 3.

2.   Guidelines on inter-transmission system operator compensation mechanisms may also determine appropriate rules leading to a progressive harmonisation of the underlying principles for the setting of charges applied to producers and consumers (load) under national tariff systems, including the reflection of the inter-transmission system operator compensation mechanism in national network charges and the provision of appropriate and efficient locational signals, in accordance with the principles set out in Article 4.

The guidelines on inter-transmission system operator compensation mechanisms shall make provision for appropriate and efficient harmonised locational signals at Community level.

Any harmonisation in this respect shall not prevent Member States from applying mechanisms to ensure that network access charges borne by consumers (load) are comparable throughout their territory.

3.   Where appropriate, the Commission may propose additional guidance providing the minimum degree of harmonisation required to achieve the aim of this Regulation ▌.

4.   Guidelines on the management and allocation of available transfer capacity of interconnections between national systems are laid down in the Annex.

"

(9)    Article 12(1) shall be replaced by the following:

"

1.    Without prejudice to paragraph 2, the Member States shall ensure that national regulatory authorities have the competence effectively to ensure compliance with this Regulation by providing them, or other bodies, with the legal competence to issue compliance orders and to impose effective, dissuasive and proportionate penalties . The Member States shall inform the Commission thereof by 1 January 2010 and shall inform it without delay of any subsequent amendment.

"

(10)    Article 13(2) shall be replaced by the following:

"

2.   Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

"

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ║

For the European Parliament For the Council

The President The President

(1) OJ C 211, 19.8.2008, p. 23.
(2) OJ C 172, 5.7.2008, p. 55 .
(3) Position of the European Parliament of 18 June 2008 .
(4) OJ L 176, 15.7.2003, p. 37.
(5) OJ L 176, 15.7.2003, p. 1.
(6) OJ L …
(7) OJ L 184, 17.7.1999, p. 23. ║
(8) OJ L 200, 22.7.2006, p. 11.
(9) OJ C 255, 21.10.2006, p. 1.


Agency for the Cooperation of Energy Regulators ***I
DOC 184k
Resolution
Consolidated text
European Parliament legislative resolution of 18 June 2008 on the proposal for a regulation of the European Parliament and of the Council establishing an Agency for the Cooperation of Energy Regulators (COM(2007)0530 – C6-0318/2007 – 2007/0197(COD) )
P6_TA(2008)0296 A6-0226/2008

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0530 ),

–   having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0318/2007 ),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on Budgets, the Committee on Economic and Monetary Affairs and the Committee on the Internal Market and Consumer Protection (A6-0226/2008 ),

1.   Approves the Commission proposal as amended;

2.   Stresses that, in the event that an Agency for the Cooperation of Energy Regulators is established, all financing options provided for in the Interinstitutional Agreement of 17 May 2006 between Parliament, the Council and the Commission on budgetary discipline and sound financial management(1) should be considered;

3.   Considers that Point 47 of the Interinstitutional Agreement should be applied in relation to the establishment of the Agency and that Parliament should enter into negotiations with the other arm of the budgetary authority with a view to reaching a timely agreement on the financing of the Agency in line with the relevant provisions of the Interinstitutional Agreement;

4.   Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

5.   Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Regulation (EC) No .../2008 of the European Parliament and of the Council on establishing an Agency for the Cooperation of Energy Regulators

P6_TC1-COD(2007)0197


(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission║,

Having regard to the opinion of the European Economic and Social Committee(2) ,

Having regard to the opinion of the Committee of the Regions(3) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4) ,

Whereas:

(1)   The Communication of the Commission of 10 January 2007 entitled "An Energy Policy for Europe'║ highlighted the importance of completing the internal market for electricity and natural gas. Improving the regulatory framework at Community level was identified as a key measure to achieve that objective.

(2)   An independent advisory group on electricity and gas, ║ the ║European Regulators Group for Electricity and Gas║ (ERGEG), was established by Commission Decision 2003/796/EC(5) to facilitate consultation, coordination and cooperation between the regulatory bodies in Member States, and between those bodies and the Commission, with a view to consolidating the internal market for electricity and ║ gas. The ERGEG is composed of representatives of the national regulatory authorities established pursuant to Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity ║(6) and Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas║(7) .

(3)   The work undertaken by the ERGEG since its establishment has made a positive contribution to the internal market in electricity and gas. ║It is, however, widely recognised in the sector, and has been proposed by the ERGEG itself, that voluntary cooperation between national regulatory authorities should now take place within a Community structure with clear competences and with the power to adopt ▌ regulatory decisions in a number of specific cases.

(4)   The 2007 Spring European Council║ invited the Commission to propose measures to set up an independent mechanism for national regulatory authorities to cooperate .

(5)    Тhe Member States should cooperate closely, eliminating obstacles to cross-border exchanges of electricity and gas with a view to achieving the objectives of the Community's energy policy. Establishing an Agency for the Cooperation of Energy Regulators (the Agency) for this purpose should incorporate the Community perspective into the national regulatory authorities" practices and enhance the effectiveness of the Community principles of equal treatment and fair conditions of access to the trans-European networks for transporting electricity and gas, and thus contribute to the proper functioning of the internal energy market. The Agency should also enable national regulatory authorities to enhance their cooperation at Community level and participate, on a mutual basis, in the exercise of Community-related functions.

(6)    On the basis of the impact assessment of the resource requirements for a central entity, it was concluded that an independent central entity offered a number of long-term advantages over other options. ║

(7)    The Agency should ensure that regulatory functions performed by the national regulatory authorities at national level ║ in accordance with Directives 2003/54/EC and ║ 2003/55/EC are properly coordinated and, where necessary, completed at the Community level. To that end, it is necessary to guarantee the independence of the Agency and its members vis-à-vis consumers, energy producers and transmission and distribution system operators, whether public or private, and to ensure conformity of its actions with Community legislation , its technical capacity, its capacity to adjust to regulatory developments and its transparency, amenability to democratic control and efficiency.

(8)    The Agency should monitor the cooperation between transmission system operators in the electricity and gas sectors as well as the execution of the tasks of the European networks of transmission system operators for electricity and gas . The involvement of the Agency is essential in order to ensure that the cooperation between transmission system operators proceeds in an efficient and transparent way for the benefit of the internal market.

(9)    The Agency should systematically monitor markets for market distortions, and inform the European Parliament, the Commission and national authorities thereof where appropriate.

(10)    It is appropriate to provide an integrated framework within which national regulatory authorities are able to participate and cooperate. Such a framework should facilitate the uniform application of the legislation on the internal market for electricity and gas throughout the Community. As regards situations concerning more than one Member State, the Agency should be granted the power to adopt individual decisions. Such power should cover the regulatory regime for infrastructure connecting at least two Member States including exemptions from the internal market rules for new electricity interconnectors and new gas infrastructures located in more than one Member State.

(11)    Since the Agency has an overview of the national regulatory authorities and other sources of information and expertise , it should have an advisory role in relation to the Commission, other Community institutions and the national regulatory authorities of at least two Member States as regards market regulation issues. The Agency should also be required to inform the Commission where it finds that ║ cooperation between transmission system operators fails to produce the results ║needed or that a national regulatory authority whose decision has violated guidelines is not willing to comply with the Agency's opinions, recommendations or decisions .

(12)    The Agency should also be able to issue binding guidelines to assist regulatory authorities and market players in sharing good practices.

(13)    The Agency should consult interested parties, where appropriate, and provide them with a reasonable opportunity to comment on proposed measures, such as draft network codes and rules.

(14)    The structure of the Agency should be adapted to meet the specific needs of energy regulation. In particular, the specific role of the national regulatory authorities ▌ needs to be taken fully into account and their independence guaranteed.

(15)    The Administrative Board should have the necessary powers to establish the budget, check its implementation, draw up internal rules, adopt financial regulations and appoint the Director.

(16)    The Agency should have the necessary powers to perform the regulatory functions in an efficient, transparent, reasoned and, above all, independent manner. The independence of regulatory authorities vis-à-vis energy producers and transmission and distribution system operators is ▌a key principle of good governance ▌ and a fundamental condition for ensuring market confidence. Reflecting the situation at Community and national level, the Board of Regulators and its members should therefore act independently of any market interest, should avoid conflicts of interests and should seek or take no instructions and accept no recommendations from any government or other public or private entity. The Board of Regulators should, at the same time, comply with Community legislation concerning energy, the environment, the internal energy market and competition and should report to the Community institutions as regards its decisions and proposals.

(17)    Where the Agency has decision-making powers, interested parties should, for reasons of procedural economy, be granted a right of appeal, in the first instance , to a Board of Appeal, which should be part of the Agency, but independent from its administrative and regulatory structure. The decision of the Board of Appeal should be subject to appeal to the Court of Justice.

(18)    The Agency should be financed mainly from the general budget of the European Union , by fees and ▌ contributions. In particular, the resources currently pooled by regulatory authorities for their cooperation at European level should continue to be available to the Agency. The Community budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the European Union are concerned. Moreover, the auditing of accounts should be undertaken by the Court of Auditors in accordance with Article 91 of Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(8) .

(19)    After the establishment of the Agency, its budget should be assessed by the budgetary authority on an ongoing basis, with reference to the Agency's workload and performance. That assessment should determine whether sufficient human and financial resources are available. The budgetary authority should ensure that the best standards of efficiency are met.

(20)    The Agency should have highly professional staff. In particular, it should benefit from the competence and experience of staff seconded from the Commission, the Member States and the national regulatory authorities. The Staff Regulations of Officials of the European Communities, the regulations applicable to other servants of the European Communities and the rules adopted jointly by the ║ Community institutions for the purpose of applying those regulations should apply to the staff of the Agency. The Administrative Board, in agreement with the Commission, should adopt the necessary implementing measures.

(21)    The Agency should apply the general rules regarding public access to documents held by Community bodies. The Administrative board should establish the practical measures to protect commercially sensitive data and personal data.

(22)    Participation of third countries in the work of the Agency should be possible in accordance with appropriate agreements to be concluded by the Community.

(23)    The Commission should present to the European Parliament and to the Council, no later than three years after the first director of the Agency has taken up his/her duties and every three years thereafter, an evaluation report on the Agency's specific tasks and the results achieved, accompanied by any appropriate proposals.

(24)    Since the objectives of this Regulation , namely the participation and cooperation of national regulatory authorities at Community level, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(25)    The Agency should be fully accountable to the European Parliament,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation establishes an Agency for the Cooperation of Energy Regulators ( hereinafter referred to as "the Agency") ║for the purpose of complementing at Community level the regulatory tasks performed at national level by the regulatory authorities referred to in Article 22a of Directive 2003/54/EC and Article 24a of Directive 2003/55/EC, and, where necessary, to coordinate their action.

Article 2

Legal status and seat

1.   The Agency shall be a Community body with legal personality.

2.   In each Member State, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under national law. It may, in particular, acquire or dispose of movable and immovable property and be a party to legal proceedings.

3.   The Agency shall be represented by its Director.

4.   The seat of the Agency shall be located in Brussels . Until its premises are ready, it will be hosted on Commission premises.

Article 3

Composition

The Agency shall comprise:

   a) an Administrative Board, which shall exercise the responsibilities set out in Article 14 ;
   b) a Board of Regulators, which shall exercise the responsibilities set out in Article 17 ;
   c) a Director, who shall exercise the responsibilities set out in Article 19 ; and
   d) a Board of Appeal, which shall exercise the responsibilities set out in Article 21 .

Article 4

Tasks of the Agency

The Agency shall, in the fulfilment of the purpose set out in Article 1 :

   a) issue opinions, recommendations and decisions addressed to transmission system operators, in relation to all technical matters pertaining to the good functioning of the internal energy market ;
   b) issue opinions addressed to regulatory authorities;
   c) issue opinions and recommendations addressed to the European Parliament, the Council, or the Commission;
   d) take ▌ decisions in specific cases referred to in Articles 6 to 12;
   e) provide a framework within which national regulatory authorities can participate and cooperate;
   f) overview the execution of the tasks of the European networks of transmission system operators for electricity and gas;
   g) establish economic and technical terms and conditions for the development of codes and rules drafted by the European networks of transmission system operators for electricity and gas and approve the codes and rules in order to ensure the efficient and secure functioning of the internal energy market;
   h) set methodologies and tariffs for compensation mechanisms between transmission system operators, based on an assessment of their actual costs;
   i) coordinate the national regulatory authorities concerned in relation to their operations on regional electricity or gas markets;
   j) together with the Commission, promote interregional cooperation among energy markets and integrate regional energy markets into the internal energy market;
   k) undertake EU-wide public consultations relating to the matters set out in points (e) to (h).

Article 5

General tasks

The Agency may, on a request from the European Parliament, the Council or the Commission or on its own initiative, provide an opinion or a recommendation to the European Parliament, the Council and the Commission on all issues related to the purpose for which it has been established.

Article 6

Tasks as regards the cooperation of transmission system operators

1.   The Agency shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure of the European networks of transmission system operators for electricity and gas in accordance with Article 2b(2) 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 (9) and ║ Article 2b(2) of Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks (10) .

2.   The Agency shall monitor the execution of the tasks of the European networks of transmission system operators for electricity and gas as provided for in Article 2d of Regulation (EC) No 1228/2003 and ║ Article 2d of Regulation (EC) No 1775/2005.

3.   The Agency shall approve the 10-year investment plans of the European networks of transmission system operators for electricity and gas, referred to in Article 2c of Regulation (EC) No 1228/2003 and ▌ in Article 2c of Regulation (EC) No 1775/2005, ensuring non-discrimination, effective competition and the efficient and secure functioning of the internal energy market .

4.    The 10-year investment plans shall contain provisions for the transition to smart metres and grids within 10 years of the entry into force of this Regulation. The Agency and the national regulatory authorities shall monitor the progress of transmission system operators towards the development of smart metres and grids. To this end, the Agency and national regulatory authorities shall establish an incremental timetable including a deadline for completion.

The Agency shall ensure that those information and communication systems, including smart metres and grids, that are implemented, facilitate the development of the internal energy market and do not introduce any new technical barriers.

5.    The Agency shall draft and adopt guidelines establishing basic, clear and objective principles for the harmonisation of network rules, following the process set out in Article 2e of Regulation (EC) No 1228/2003 and in Article 2e of Regulation (EC) No 1775/2005. The Agency shall adopt the draft network codes developed by the European networks of transmission system operators for electricity and gas, following the procedure set out in Article 2f of Regulation (EC) No 1228/ 2003 and Article 2f of Regulation (EC) No 1775/ 2005 and shall monitor their implementation. The Agency may make a recommendation to the Commission under Article 2f(7) of Regulation (EC) No 1228/2003 or Article 2f(7) of Regulation (EC) No 1775/2005.

6.    The Agency shall coordinate communications between EU and third-country transmission system operators.

7 .   The Agency shall provide a duly justified opinion to the European Parliament, the Council and the Commission, in the event that it considers that the draft annual work programme or the draft 10-year investment plan submitted to it in accordance with Article 2d(2) of Regulation (EC) No 1228/2003 and Article 2d(2) of Regulation (EC) No 1775/2005 do not ensure non-discrimination, effective competition or the efficient functioning of the market, or are not in conformity with the energy policy set out in Community law .

8 .   By delegation of the Commission's powers and in compliance with Article 2f(2) of Regulation (EC) No 1228/2003 and Article 2f(2) of Regulation (EC) No 1775/2005, the Agency may take enforcement decisions and propose that the Commission impose fines where it considers ▌ that a draft technical ▌ code has not been adopted within a reasonable period of time or that the transmission system operators fail to implement a technical ▌ code.

9 .   The Agency shall monitor the regional cooperation of transmission system operators referred to in Article 2i of Regulation (EC) No 1228/2003 and Article 2i of Regulation (EC) No 1775/2005.

10.    The Agency shall monitor the authorisation process of the construction of new cross-border capacities, and ensure the speeding up of this process within the confines of enhanced regional cooperation.

11.    The Agency shall monitor the cross-border capacity calculations by transmission system operators and the actual (aggregate) use of the interconnection capacity between the grids, as well as resolving problems of unfair, discriminatory or inefficient access across national borders.

12.    The Agency may impose effective sanctions if barriers to cross-border trade are not removed.

13.    The Agency may take binding decisions in regard to all issues affecting access and use of connected transmission systems involving more than one Member State if joint agreement has not been reached by the relevant national regulatory authorities.

Article 7

Tasks as regards the national regulatory authorities

1.   The Agency shall adopt individual decisions on technical issues where these decisions are provided for in Guidelines pursuant to Directive 2003/54/EC, Directive 2003/55/EC, Regulation (EC) No 1228/2003 or Regulation (EC) No 1775/2005.

2.   The Agency may, in accordance with its work programme or at the request of the Commission, adopt non-binding guidelines to assist regulatory authorities and market players in sharing good practices .

3.   The Agency shall ensure cooperation between the national regulatory authorities ▌ at Community and regional level. Where the Agency considers that binding rules relating to such cooperation are required, it shall make the appropriate recommendations to the Commission.

4.   The Agency shall provide an opinion, at the request of any regulatory authority ▌ , on whether a decision taken by a regulatory authority complies with the Guidelines referred to in Directive 2003/54/EC, Directive 2003/55/EC, Regulation (EC) No 1228/2003 or Regulation (EC) No 1775/2005 and other Community law relating to energy policy .

5.   Where a national regulatory authority fails to comply with the opinion of the Agency as referred to in paragraph 4 within four months from the date of receipt, the Agency shall advise the Commission and the government of the Member State in question accordingly .

6.   When a national regulatory authority encounters, in a specific case, difficulties with the application of the Guidelines referred to in Directive 2003/54/EC, Directive 2003/55/EC, Regulation (EC) No 1228/2003 or Regulation (EC) No 1775/2005, it may ask the Agency for an opinion. The Agency shall deliver its opinion ▌ within two months of that request .

7.   The Agency shall decide on the regulatory regime for infrastructure connecting at least two Member States, in accordance with Article 22d(3) of Directive 2003/54/EC and Article 24d(3) of Directive 2003/55/EC.

8.    The Agency shall monitor developments in the electricity and gas markets, in particular the access of energy from renewable sources to the grid, by ensuring positive benchmarking of national rules on such access and by facilitating such access in other Member States.

Article 8

Other tasks

1.   The Agency may grant exemptions, as provided for in Article 7(4)(a) of Regulation (EC) No 1228/2003. The Agency may also grant exemptions as provided for in Article 22(3)(a) of Directive 2003/55/EC where the infrastructure concerned is located in the territory of more than one Member State.

In the event that the Agency fails to adopt a decision in relation to an application for a grant of exemption under this paragraph within three months of receipt of the application, the Commission shall take such a decision in its place.

2.   The Agency shall propose an independent system operator in accordance with Article 10(4) of Directive 2003/54/EC and Article 9(4) of Directive 2003/55/EC.

3.    The Agency shall promote efforts to give practical shape to the guidelines on trans-European energy networks as laid down in Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September 2006 laying down guidelines for trans-European energy networks (11) .

In particular, the Agency shall into take account those guidelines when it approves the 10-year investment plans in accordance with Article 6(3).

4.    The Agency shall, at the request of the Commission, take on specific additional tasks that relate to its purpose.

Article 9

Energy storage and crisis management

1.    When publishing its annual report, the Agency shall identify the European Union's storage requirements, in both cyclical and security terms, and shall set out guidelines relating to investment in production and transmission infrastructure .

2.    The Agency shall coordinate the national energy crisis management mechanisms at Community level.

3.    The Agency shall coordinate communications between EU and third-country operators.

Article 10

Consultation and Transparency

1 .   Before adopting any measure, the Agency shall formally consult market participants, consumers and end-users in an open and transparent manner, in particular with regard to its tasks as regards the cooperation of transmission system operators.

The Agency shall, where appropriate, give interested parties a reasonable opportunity to comment on the proposed measure and shall make public the results of the consultation procedure.

2.    The Agency shall carry out its activities with a high level of transparency

3.    The Agency shall ensure that the public and any interested parties are given objective, reliable and easily accessible information, in particular with regard to the results of its work, where appropriate.

4.    The Agency shall establish, in its internal rules of procedure, the practical arrangements for implementing the transparency requirements referred to in paragraphs 2 and 3.

5.    The Agency shall publish, on its own website, at least the agenda, background documents and minutes of the meetings of its Administrative Board, Board of Regulators and Board of Appeal.

Article 11

Monitoring and reporting on the energy sector

1.    The Agency shall monitor developments in the electricity and gas markets, and in particular the retail prices of electricity and gas and compliance with the consumer rights set out in Directives 2003/55/EC and 2003/54/EC.

2.    The Agency shall publish an annual report on the developments in the electricity and gas markets, including consumer issues, in which it shall identify any remaining barriers to the completion of the internal energy market.

3.    When publishing its annual report, the Agency may submit to the European Parliament and to the Commission, an opinion on the measures that might be taken to remove any barriers referred to in paragraph 2.

Article 12

Supervision, enforcement and penalties

1.    The Agency, in consultation with the Commission, may impose financial penalties on transmission system operators that fail to comply with Article 7 or that fail to provide information requested by the Agency to perform its tasks. Those penalties shall be effective, proportionate and dissuasive.

2.    The national regulatory authorities, in cooperation with the Agency, shall be responsible for verifying compliance by transmission system operators with obligations arising from the provisions of this Regulation.

3.    When penalties are imposed under this Article, the Authority shall publish the names of the transmission system operators involved and the amounts of and reasons for the financial penalties imposed.

Article 13

Administrative Board

1.   The Administrative Board shall be composed of six members. Two shall be appointed by the Commission, two by the Council and two by the European Parliament . No member of the Administrative Board shall also be a Member of the European Parliament. The term of office shall be five years, renewable once.

2.   The Administrative Board shall appoint its Chairperson and its Vice-Chairperson from among its members. The Vice-Chairperson shall automatically replace the Chairperson if the latter is not in a position to perform his/her duties. The term of office of the Chairperson and of the Vice-Chairperson shall be two and a half years and shall be renewable. In any event, however, the term of office of the Chairperson and that of the Vice-Chairperson shall expire the moment they cease to be members of the Administrative Board.

3.   Meetings of the Administrative Board shall be convened by its Chairperson. The Chairperson of the Board of Regulators or his/her nominee from that Board and the Director of the Agency shall participate in the deliberations without the right to vote . The Administrative Board shall meet at least twice a year in ordinary session. It shall also meet at the initiative of its Chairperson, at the request of the Commission or at the request of at least a third of its members. The Administrative Board may invite any person with potentially relevant opinions to attend its meetings in the capacity of an observer. The members of the Administrative Board may, subject to the rules of procedure, be assisted by advisers or by experts. The Administrative Board's secretarial services shall be provided by the Agency.

4.   Decisions of the Administrative Board shall be adopted on the basis of a two-thirds majority of the members present, unless provided otherwise in this Regulation or in the Agency's statute .

5.   Each member shall have one vote. The rules of procedure shall set out in greater detail the arrangements governing voting, especially the conditions whereby one member can act on behalf of another and also, where appropriate, the rules governing quorums.

6 .   Members of the Administrative Board shall undertake to act independently in the public interest. For that purpose, they shall make annual written declaration of commitments and a written declaration of interests indicating either the absence of any interest which may be considered prejudicial to their independence or any direct or indirect interest which might be considered prejudicial to their independence. Those declarations shall be made public.

7.    The Administrative Board shall carry out its tasks independently, objectively and in the public interest, without seeking or taking any instructions from national or regional governments.

8.    No member of the Administrative Board shall also be a member of the Board of Regulators.

9.    The Administrative Board may be removed from office upon the proposal of the Commission and by a decision taken by the European Parliament. The European Parliament shall take its decision by absolute majority vote.

Article 14

Tasks of the Administrative Board

1.   The Administrative Board shall, with the assent of the Board of Regulators and subject to a vote of approval by the European Parliament , appoint the Director in accordance with Article 18(2) .

2 .   The Administrative Board shall appoint the members of the Board of Appeal in accordance with Article 20(1) .

3 .   The Administrative Board shall adopt, before 30 September each year, ║ after consulting the European Parliament and the Commission and after approval by the Board of Regulators in accordance with Article 17(3) , the work programme of the Agency for the coming year and shall transmit it to the European Parliament, the Council and the Commission. The work programme shall be adopted without prejudice to the annual budgetary procedure and shall be made public .

4 .   The Administrative Board shall exercise its budgetary powers in accordance with Articles 23 to 26 .

5 .   The Administrative Board shall decide, after having obtained the agreement of the Commission, whether to accept any legacies or donations or grants from other Community sources.

6 .   The Administrative Board shall, in consultation with the Board of Regulators, exercise disciplinary authority over the Director.

7.    The European Parliament may invite any member or members of the Administrative Board to make a statement before its competent committee and answer questions put by members of that committee

8.   The Administrative Board shall, where necessary, draw up the Agency's staff policy pursuant to Article 30(2) .

9.   The Administrative Board shall adopt the special provisions on right of access to the documents of the Agency, in accordance with Article 32 .

10.   The Administrative Board shall adopt the annual report on the activities of the Agency, referred to in Article 19(9) , and the annual report on the developments in the electricity and gas markets, referred to in Article 11(2). The Agency shall transmit the annual reports to the European Parliament, the Council, the Commission, the European Economic and Social Committee, the Committee of the Regions and the Court of Auditors by 15 April . The report on the activities of the Agency shall contain an independent section, approved by the Board of Regulators, concerning the regulatory activities of the Agency during the year considered. The abovementioned Community institutions and bodies shall grant or refuse approval of the implementation by the Agency of EU policies on energy, the internal energy market and competition.

11.   The Administrative Board shall adopt its own rules of procedure.

Article 15

Reporting by the Administrative Board

The European Parliament and the Council may call upon the Administrative Board to submit a report on the performance of its duties.

Article 16

Board of Regulators

1.   The Board of Regulators shall be composed of one representative per Member State from the heads of the national regulatory authorities or their representative pursuant to Article 22a of Directive 2003/54/EC and Article 24a of Directive 2003/55/EC, and one non-voting representative of the Commission. Only one representative per Member State from the national regulatory authority may be admitted to the Board of Regulators. Each national regulatory authority shall be responsible for nominating the alternate from current staff of the national regulatory authority .

2.   The Board of Regulators shall elect a Chairperson and a Vice-Chairperson from among its members. The Vice-Chairperson shall replace the Chairperson if the latter is not in a position to perform his/her duties. The term of office of the Chairperson and of the Vice-Chairperson shall be two and a half years and shall be renewable. In any event, however, the term of office of the Chairperson and that of the Vice-chairperson shall expire the moment they cease to be members of the Board of Regulators.

3.   The Board of Regulators shall act by a two-thirds majority of its members present . Each member or alternate shall have one vote.

4.   The Board of Regulators shall adopt its Rules of procedure. The rules of procedure shall set out in greater detail the arrangements governing voting, especially voting by proxy, and also, where appropriate, the rules governing quorums. The rule of procedures may foresee specific working methods for the consideration of issues arising in the context of regional cooperation initiatives.

5.   When carrying out the tasks conferred upon it by this Regulation, the Board of Regulators shall act independently and shall ║ seek or take no instructions from any government of a Member State or from any public or private entity .

6.   The Board of Regulators" secretarial services shall be provided by the Agency.

7 .   The European Parliament and the Council may call upon the Chairperson of the Board of Regulators to submit a report on the performance of his/her duties .

Article 17

Tasks of the Board of Regulators

1.   The Board of Regulators shall provide its assent to the Director before the adoption of the opinions, recommendations and decisions referred to in Articles 5 to 11 in accordance with Article19(3) . In addition, the Board of Regulators, within its field of competence, shall provide guidance to the Director in the execution of the Director's tasks. The Director shall execute his/her tasks in accordance with the decisions of the Board of Regulators, which should be the only decision-making body of the Agency as regards energy market regulation.

2.   The Board of Regulators shall deliver its assent on the candidate to be appointed as Director in accordance with Articles 14(1) and 18(2) . The Board of Regulators shall reach this decision on the basis of a majority of three quarters of its members.

3.   The Board of Regulators shall, in accordance with Articles 14(3) and 19(7) and in line with the draft budget established according to Article 25(1) , approve the work programme of the Agency for the coming year and present it before 1 September for adoption by the Administrative Board.

4.   The Board of Regulators shall approve the independent section on regulatory activities of the annual report, as provided for in Articles 14(10) and 19(9) .

5.    The European Parliament may invite any member or members of the Board of Regulators to make a statement before its competent committee and answer questions put by members of that committee.

Article 18

Director

1.   The Agency shall be managed by its Director, who shall act in accordance with decisions adopted by the Board of Regulators . Without prejudice to the respective powers of the Commission, the Administrative Board and the Board of Regulators, the Director shall ║seek or take no instructions from any government or from any body.

2.   The Director shall be appointed by the Administrative Board upon the assent of the Board of Regulators , on the basis of merit as well as skills and experience relevant to the energy sector , from a list of a minimum of two candidates proposed by the Commission, following a public call for expression of interest. Before appointment, the candidate selected by the Administrative Board shall be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members and shall be subject to a vote of approval by the European Parliament .

3.  The Director's term of office shall be five years. In the course of the nine months preceding the end of that period, the Commission shall undertake an assessment . In that assessment , the Commission shall examine, in particular:

   a) the performance of the Director; and
   b) the Agency's duties and requirements in the coming years.

4.   The Administrative Board, acting on a proposal from the Commission, after having consulted and given the utmost consideration to the opinion of the Board of Regulators, taking into account the assessment report and only in those cases where it can be justified by the duties and requirements of the Agency, may extend the term of office of the Director once, for no longer than three years.

5.   The Administrative Board shall inform the European Parliament about its intention to extend the Director's term of office. Within a month before the extension of his/her term of office, the director may be invited to make a statement before the competent committee of the Parliament and answer questions put by its members. Such an extension of the Director's term of office shall be subject to a vote of approval by the European Parliament.

6.   If the term of office is not extended, the Director shall remain in office until the appointment of his/her successor.

7.   The Director may be removed from office only by a decision by the Administrative Board and with the assent of the Board of Regulators. The Administrative Board shall reach its decision on the basis of a two-thirds majority of ▌ of its members.

8.   In addition to the requirement set out in Article 14(10), the European Parliament and the Council may call upon the Director to submit a report on the performance of his/her duties.

Article 19

Tasks of the Director

1.   The Director shall be responsible for representing the Agency and shall be in charge of its management.

2.   The Director shall prepare the work of the Administrative Board. He/she shall participate, without having the right to vote, in the work of the Administrative Board.

3.   The Director shall adopt the opinions, recommendations and decisions referred to in Articles 5 to 11 , subject to the assent of the Board of Regulators.

4.   The Director shall be responsible for implementing the annual work programme of the Agency under the guidance of the Board of Regulators and under the administrative control of the Administrative Board.

5.    The European Parliament may invite the Director to make a statement before its competent committee and answer questions put by members of that committee.

6 .   The Director shall take the necessary measures, notably adopting internal administrative instructions and the publication of notices, to ensure the functioning of the Agency in accordance with this Regulation.

   7. 7 . ║ The Director shall prepare an annual draft work programme of the Agency for the following year, and submit it to the Board of Regulators, the European Parliament and ║ the Commission before 30 June of that year. The European Parliament shall draw up recommendations for the work programme.

8 .   The Director shall make an estimate of the revenue and expenditure of the Agency pursuant to Article 30 and shall implement the budget of the Agency pursuant to Article 26 .

9 .   Each year the Director shall prepare a draft annual report with a section on the regulatory activities of the Agency and a section on financial and administrative matters.

10 .   With regard to the staff of the Agency, the Director shall exercise the powers provided for in Article 30(3) .

Article 20

Board of Appeal

1.   The Board of Appeal shall be composed of six members and six alternates selected from among current or former senior staff of the national regulatory authorities, competition authorities or other national or Community institutions with relevant experience in the energy sector. The Board of Appeal shall designate its Chairperson. The decisions of the Board of Appeal shall be adopted on the basis of a qualified majority of at least four out of its six members. The Board of Appeal shall be convened when necessary.

2.   The members of the Board of Appeal shall be appointed by the Administrative Board, on a proposal from the Commission, following a public call for expression of interest, after consulting the Board of Regulators. Before their appointment, the candidates selected by the Administrative Board shall make a statement before the competent committee of the European Parliament and answer questions put by the members of that committee.

3.   The term of office of the members of the Board of Appeal shall be five years. That term shall be renewable. The members of the Board of Appeal shall be independent in making their decisions; they shall not be bound by any instructions. They may not perform any other duties in the Agency, in its Administrative Board or in its Board of Regulators. A member of the Board of Appeal may not be removed during his/her term of office, unless he/she has been found guilty of serious misconduct, and the Administrative Board, after consulting the Board of Regulators, takes a decision to that effect.

4.   Members of the Board of Appeal may not take part in any appeal proceedings if they have any personal interest therein, ║ if they were previously been involved as representatives of one of the parties to the proceedings, or if they participated in the decision under appeal.

5.   If, for one of the reasons referred to in paragraph 4 or for any other reason, a member of a Board of Appeal considers that a fellow member should not take part in any appeal proceedings, the member shall inform the Board of Appeal accordingly. Any party to the appeal proceedings may object to a member of the Board of Appeal ║ on any of the grounds referred to in paragraph 4, or if the member is suspected of partiality. Such an objection shall not be based on the nationality of the member and shall ║ be inadmissible if, while ║ aware of a reason for objecting, the party to the appeal proceedings objecting to the member has taken a procedural step.

6.   The Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 4 and 5 without the participation of the member concerned. For the purposes of taking that decision, the member concerned shall be replaced on the Board of Appeal by his/her alternate, unless the alternate finds himself in a similar situation. Should this be the case, the Chairperson shall designate a replacement from among the available alternates.

7.    The European Parliament may invite any member or members of the Board of Appeal to make a statement before its competent committee and answer questions put by members of that committee.

Article 21

Appeals

1.   Any natural or legal person may appeal against a decision as referred to in Articles 7 or 8 and which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

2.   The appeal, together with the statement of grounds thereof, shall be filed in writing at the Agency within two months of the notification of the decision to the person concerned, or, in the absence thereof, within two months of the publication of the decision by the Agency . The Board of Appeal shall decide upon the appeal within two months of the lodging of the appeal .

3.   An appeal lodged pursuant to paragraph 1 shall not have suspensory effect. The Board of Appeal may, however, if it considers that circumstances so require, suspend the application of the contested decision.

4.   If the appeal is admissible, the Board of Appeal shall examine whether it is well-founded . It shall invite the parties as often as necessary to the appeal proceedings to file observations on notifications issued by itself or on communications from the other parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make an oral presentation.

5.   The Board of Appeal may, within the terms of this Article, exercise any power which lies within the competence of the Agency, or it may remit the case to the competent body of the Agency. The latter shall be bound by the decision of the Board of Appeal.

6.   The Board of Appeal shall adopt its rules of procedure.

Article 22

Actions before the Court of First Instance and the Court of Justice

1.   An action may be brought before the Court of First Instance of the Court of Justice, in accordance with Article 230 of the Treaty, contesting a decision taken by the Board of Appeal or, in cases where there is no right of appeal to the Board of Appeal , by the Agency.

2.   Should the Agency fail to take a decision, proceedings for failure to act may be brought before the Court of First Instance or the Court of Justice in accordance with Article 232 of the Treaty.

3.   The Agency shall be required to take the necessary measures to comply with a judgment of the Court of First Instance or the Court of Justice.

Article 23

Budget of the Agency

1.  The revenues of the Agency shall comprise , notably ║:

   a) a subsidy from the Community, entered under the appropriate headings of the general budget of the European Union (Commission Section), as decided by the European Parliament and the Council (hereinafter referred to as the 'budgetary authority') and in accordance with point 47 of the Interinstitutional Agreement ;
   b) the fees paid to the Agency pursuant to Article 24 ;
   c) a financial contribution from each of the national regulatory authorities, from every Member State ;
   d) any proposed alternative financing methods, notably through a charge on the flows of electricity and gas; and
   e) any legacies, donations or grants as referred to in Article 14(5) .

The Board of Regulators shall agree by ...(12) the level of the financial contribution to be made by each Member State under point (c).

2.   The expenditure shall cover staff, administrative, infrastructure, and operational expenses.

3.   Revenue and expenditure shall be in balance.

4.   All Agency revenue and expenditure shall be the subject of forecasts for each financial year, coinciding with the calendar year, and shall be entered in its budget.

Article 24

Fees

1.   Fees shall be due to the Agency for requesting an exemption decision pursuant to Article 8(1) or specific or special advice, recommendations, decisions or monitoring tasks in relation to the European networks of transmission system operators for electricity and gas .

2.   The ║ fees referred to in paragraph 1 shall be set by the Commission.

Article 25

Establishment of the budget

1.   By 15 February of each year at the latest, the Director shall drawn up a preliminary draft budget covering the operational expenditure and the programme of work anticipated for the following financial year, and shall forward this preliminary draft to the Administrative Board, together with a list of provisional posts. Each year the Administrative Board shall, on the basis of the draft prepared by the Director, make an estimate of revenue and expenditure of the Agency for the following financial year. That estimate, including a draft establishment plan, shall be transmitted by the Administrative Board to the Commission by 31 March at the latest. Prior to adoption of the estimate, the draft prepared by the Director shall be transmitted to the Regulatory Board, which may deliver a reasoned opinion on the draft.

2.   The estimate shall be transmitted by the Commission to the ║ budgetary authority ║ together with the preliminary draft general budget of the European Union .

3.   On the basis of the estimates, the Commission shall enter in the preliminary draft general budget of the European Union the forecasts it considers necessary in respect of the establishment plan and the amount of the grant to be charged to the general budget in accordance with Article 272 of the Treaty.

4.   The budgetary authority shall adopt the establishment plan for the Agency.

5.   The budget of the Agency shall be drawn up by the Administrative Board. It shall become final after the final adoption of the general budget of the European Union . Where necessary, it shall be adjusted accordingly.

6.   The Administrative Board shall, without delay, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of its budget, in particular any project relating to property such as the renting or purchase of buildings. The Administrative Board shall also inform the Commission thereof. If either branch of the budgetary authority intends to issue an opinion, it shall notify the Agency of its intention to do so within two weeks after receipt of the information on the building project. In the absence of a reply to such notification , the Agency may proceed with the implementation of the project .

Article 26

Implementation and control of the budget

1.   The Director shall act as authorising officer and shall implement the Agency's budget.

2.   By 1 March at the latest following the completion of each financial year, the Agency accounting officer shall forward to the Commission's accounting officer and the Court of Auditors the provisional accounts, accompanied by the report on budgetary and financial management over the financial year. The Agency accounting officer shall also send the report on budgetary and financial management to the European Parliament and the Council by 31 March of the following year at the latest. The Commission's accounting officer shall then consolidate the provisional accounts of the Community institutions and decentralised bodies in accordance with Article 128 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (13) .

3.   By 31 March at the latest following the completion of each financial year, the Commission's accounting officer shall forward the provisional accounts of the Agency, accompanied by the report on budgetary and financial management over the financial year, to the Court of Auditors. The report on budgetary and financial management over the financial year shall also be forwarded to the European Parliament and the Council.

4.   After receiving the observations of the Court of Auditors on the provisional accounts of the Agency in accordance with the provisions of Article 129 of Regulation (EC, Euratom) No 1605/2002, the Director, acting on his/her own responsibility, shall draw up the final accounts of the Agency and transmit them, for opinion, to the Administrative Board.

5.   The Administrative Board shall deliver an opinion on the final accounts of the Agency.

6.   The Director shall transmit those final accounts, accompanied by the opinion of the Administrative Board, no later than 1 July following the completion of the financial year, to the European Parliament, the Council, the Commission and the Court of Justice.

7.   The final accounts shall be published.

8.   The Director shall send the Court of Auditors a reply to the latter's observations by 15 October at the latest. He/she shall also send a copy of this reply to the Administrative Board and the Commission.

9.   The Director shall submit to the European Parliament, at the latter's request and as provided for in Article 146(3) of Regulation (EC, Euratom) No 1605/2002, any information necessary for the smooth running of the discharge procedure for the financial year in question.

10.   The European Parliament, following a recommendation from the Council and acting on a qualified majority, shall, before 15 May of the year N + 2, grant a discharge to the Director for the implementation of the budget for the financial year N.

Article 27

Financial rules

The financial rules applicable to the Agency shall be drawn up by the Administrative Board after consulting the Commission. Those rules may deviate from ║ Regulation (EC, Euratom) No 2343/2002 if the specific operational needs for the functioning of the Agency so require and only with the prior agreement of the Commission.

Article 28

Anti-fraud measures

1.   For the purposes of combating fraud, corruption and other illegal acts, the provisions of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (14) shall apply to the Agency without any restriction.

2.   The Agency shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF)(15) and shall immediately adopt appropriate provisions for all staff of the Agency.

3.   The funding decisions and the agreements and the implementing instruments resulting from them shall explicitly stipulate that the Court of Auditors and OLAF may, if need be, carry out on-the-spot checks on the beneficiaries of monies disbursed by the Agency as well as on the staff responsible for allocating these monies.

Article 29

Privileges and immunities

The Protocol on Privileges and Immunities of the European Communities shall apply to the Agency.

Article 30

Staff

1.   The Staff Regulations of Officials of the European Communities, the Conditions of employment of other servants of the European Communities and the rules adopted jointly by the ║ Community institutions for the purpose of applying these staff regulations and conditions of employment shall apply to the staff of the Agency.

2.   The Administrative Board, in agreement with the Commission, shall adopt the necessary implementing measures, in accordance with the arrangements provided for in Article 110 of the Staff Regulations of officials of the European Communities.

3.   In respect of its staff, the Agency shall exercise the powers conferred on the appointing authority by the Staff Regulations of officials of the European Communities and on the authority entitled to conclude contracts by the Conditions of Employment of other servants of the European Communities.

4.   The Administrative Board may adopt provisions to allow national experts from Member States to be employed on secondment at the Agency in exceptional cases .

Article 31

Liability of the Agency

1.   In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or by its staff in the performance of their duties. The Court of Justice ║ shall have jurisdiction in any dispute over the remedying of such damage.

2.   The personal financial liability and disciplinary liability of Agency staff towards the Agency shall be governed by the relevant provisions applying to the staff of the Agency.

Article 32

Access to documents

1.   Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (16) shall apply to documents held by the Agency.

2.   The Administrative Board shall adopt practical measures for applying Regulation (EC) No 1049/2001 within six months from the date of entry into force of this Regulation.

3.   Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may be the subject of a complaint to the Ombudsman or of proceedings before the Court of Justice, in accordance with the conditions laid down, respectively, in Articles 195 and 230 ║ of the Treaty.

Article 33

Participation of third countries

The Agency shall be open to the participation of countries which are not members of the European Union and which have concluded agreements with the Community to this effect. Under the relevant provisions of those agreements, arrangements shall be made specifying, in particular, the nature, scope and procedural aspects of the involvement of these countries in the work of the Agency, including provisions relating to financial contributions and to staff.

Article 34

Language arrangements

1.   The provisions of Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community (17) shall apply to the Agency.

2.   The Administrative Board shall decide on the internal language arrangements for the Agency.

3.   The translation services required for the functioning of the Agency shall be provided by the Translation Centre for the Bodies of the European Union.

Article 35

Evaluation

1.   The Commission shall carry out an evaluation of the activities of the Agency. This shall cover the results achieved by the Agency and its working methods, in relation with its objective, mandate and tasks defined in this Regulation and in its annual work programmes. That evaluation shall be based on extensive consultation.

2.   The first evaluation report shall be presented by the Commission to the European Parliament and the Council no later than three years after the first director has taken up his/her duties. The Commission shall ║ present an evaluation report at least every three years thereafter .

Article 36

Entry into force and transitory measures

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   Articles 5 to 12 shall apply as from…(18)

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ║

For the European Parliament For the Council

The President The President

(1) OJ C 139, 14.6.2006, p. 1. Agreement as amended by Decision 2008/29/EC of the European Parliament and of the Council (OJ L 6, 10.1.2008, p. 7).
(2) OJ C 211, 19.8.2008, p 23.
(3) OJ C 172, 5.7.2008, p. 55.
(4) Position of the European Parliament of 18 June 2008.
(5) OJ L 296, 14.11.2003, p. 34.
(6) OJ L 176, 15.7.2003, p. 37.
(7) OJ L 176, 15.7.2003, p. 57.
(8) OJ L 357, 31.12.2002, p. 72.
(9) OJ L 176, 15.7.2003, p. 1.
(10) OJ L 289, 3.11.2005, p.1.
(11) OJ L 262, 22.9.2006, p. 1.
(12)* 12 months after entry into force of this Regulation.
(13) OJ L 248, 16.9.2002, p. 1.
(14) OJ L 136, 31.5.1999, p. 1.
(15) OJ L 136, 31.5.1999, p. 15.
(16) OJ L 145, 31.5.2001, p. 43.
(17) OJ 17, 6.10.1958, p. 385/58 .
(18)* 18 months from entry into force of this Regulation


Protection of pedestrians and other vulnerable road users ***I
DOC 62k
Resolution
Consolidated text
European Parliament legislative resolution of 18 June 2008 on the proposal for a regulation of the European Parliament and of the Council on the protection of pedestrians and other vulnerable road users (COM(2007)0560 – C6-0331/2007 – 2007/0201(COD) )
P6_TA(2008)0297 A6-0081/2008

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0560 ),

–   having regard to Articles 251(2) and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0331/2007 ),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Transport and Tourism (A6-0081/2008 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council and Commission.

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Regulation (EC) No .../2008 of the European Parliament and of the Council on the type-approval of motor vehicles with regard to the protection of pedestrians and other vulnerable road users, amending Directive 2007/46/EC and repealing Directives 2003/102/EC and 2005/66/EC

P6_TC1-COD(2007)0201


(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Regulation (EC) No .../2008.)


Adaptation of a number of instruments to the regulatory procedure with scrutiny, "omnibus" Regulation, Part One ***I
DOC 51k
Resolution
Consolidated text
European Parliament legislative resolution of 18 June 2008 on the proposal for a regulation of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny - Part One (COM(2007)0741 – C6-0432/2007 – 2007/0262(COD) )
P6_TA(2008)0298 A6-0088/2008

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0741 ),

–   having regard to Article 251(2) and Articles  40, 47(1) and (2), first and third sentences, 55, 71, 80(2), 95, 100, 137(2), 156, 175(1) and 285 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0432/2007 ),

–   having regard to the undertakings given by the Council representative by letter of 28 May 2008 to adopt the proposal as amended, in accordance with Article 251(2), second subparagraph, first indent of the EC Treaty,

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on International Trade, the Committee on Economic and Monetary Affairs, the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy, the Committee on the Internal Market and Consumer Protection, the Committee on Transport and Tourism, the Committee on Regional Development and the Committee on Agriculture and Rural Development (A6-0088/2008 ),

1.   Approves the Commission proposal as amended;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council and the Commission.

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Regulation (EC) No .../2008 of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, with regard to the regulatory procedure with scrutiny – Adaptation to the regulatory procedure with scrutiny - Part One

P6_TC1-COD(2007)0262


(As an agreement was reached between Parliament and Council, Parliament's position at first reading corresponds to the final legislative act, Regulation (EC) No 1137/2008.)


Adaptation of a number of instruments to the regulatory procedure with scrutiny, "omnibus" Regulation, Part Three ***I
DOC 33k
European Parliament legislative resolution of 18 June 2008 on the proposal for a regulation of the European Parliament and of the Council adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC, as amended by Decision 2006/512/EC, with regard to the regulatory procedure with scrutiny - Part Three (COM(2007)0822 – C6-0474/2007 – 2007/0282(COD) )
P6_TA(2008)0299 A6-0086/2008

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2007)0822 ),

–   having regard to Article 251(2) and Article 61(c), Article 63, first paragraph, point 1(a), and Article 67 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0474/2007 ),

–   having regard to the undertakings given by the Council representative by letter of 28 May 2008 to adopt the proposal without amendments, in accordance with Article 251(2), second subparagraph, second indent of the EC Treaty,

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on Civil Liberties, Justice and Home Affairs (A6-0086/2008 ),

1.   Approves the Commission proposal;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council and the Commission.


Autonomous Community tariff quotas on imports of certain fishery products into the Canary Islands *
DOC 30k
European Parliament legislative resolution of 18 June 2008 on the proposal for a Council regulation opening and providing for the administration of autonomous Community tariff quotas on imports of certain fishery products into the Canary Islands (COM(2008)0129 – C6-0153/2008 – 2008/0054(CNS) )
P6_TA(2008)0300 A6-0213/2008

(Consultation procedure)

The European Parliament ,

–   having regard to the Commission proposal to the Council (COM(2008)0129 ),

–   having regard to Article 299(2) of the EC Treaty, pursuant to which the Council consulted Parliament (C6-0153/2008 ),

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Regional Development (A6-0213/2008 ),

1.   Approves the Commission proposal;

2.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

3.   Calls for initiation of the conciliation procedure under the Joint Declaration of 4 March 1975 if the Council intends to depart from the text approved by Parliament;

4.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

5.   Instructs its President to forward its position to the Council and the Commission.


Statute of the European Ombudsman
DOC 49k
Resolution
Consolidated text
European Parliament resolution of 18 June 2008 on the adoption of a decision of the European Parliament amending its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (2006/2223(INI) )
P6_TA(2008)0301 A6-0076/2008

The European Parliament ,

–   having regard to the letter from the European Ombudsman to its President of 11 July 2006,

–   having regard to the letter of 21 September 2006 from its President to its Committee on Constitutional Affairs,

–   having regard to Article 195(4) of the EC Treaty,

–   having regard to Article 107d(4) of the Euratom Treaty,

–   having regard to its Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties(1) , as incorporated into Annex X to Parliament's Rules of Procedure,

–   having regard to the opinion by the Commission on the draft decision amending its Decision 94/262/ECSC, EC, Euratom as approved at its sitting of 22 April 2008(2) ,

–   having regard to the approval by the Council of the amended draft decision as resulting from the vote,

–   having regard to Rule 45(2) of its Rules of Procedure,

–   having regard to the report of the Committee on Constitutional Affairs and the opinion of the Committee on Petitions (A6-0076/2008 ),

1.   Adopts the decision amending its Decision 94/262/ECSC, EC, Euratom;

2.   Instructs its President to publish in the texts adopted the final version of the decision amending its Decision 94/262/ECSC, EC, Euratom as resulting from its votes on 22 April 2008 and 18 June 2008 and to forward it together with this resolution to the Council and the Commission;

3.   Instructs its President to ensure the publication in good time of its decision amending Decision 94/262/ECSC, EC, Euratom in the Official Journal of the European Union.

Decision of the European Parliament amending Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties

THE EUROPEAN PARLIAMENT,

Having regard to the Treaty establishing the European Community, and in particular Article 195(4) thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 107d(4) thereof,

Having regard to the draft decision approved by the European Parliament on 22 April 2008(3) and to the amendments approved on 18 June 2008(4) ,

Having regard to the opinion of the Commission,

With the approval of the Council(5) ,

Whereas:

(1)   The Charter of Fundamental Rights of the European Union recognises the right to good administration as a fundamental right of citizens of the Union.

(2)   Citizens' confidence in the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration is fundamental to the success of the Ombudsman's action.

(3)   It is desirable to adapt the Statute of the Ombudsman in order to eliminate any possible uncertainty concerning the capacity of the Ombudsman to conduct thorough and impartial inquiries in alleged cases of maladministration.

(4)   It is desirable to adapt the Statute of the Ombudsman in order to allow for any possible evolution of the legal provisions or of case law concerning the intervention of bodies, offices and agencies of the European Union in cases before the Court of Justice.

(5)   It is desirable to adapt the Statute of the Ombudsman to take account of the changes that have occurred in recent years as regards the role of EU institutions and bodies in combating fraud against the financial interests of the European Union, notably the creation of the European Anti-Fraud Office (OLAF), so as to allow the Ombudsman to notify those institutions or bodies of any information falling within their remit.

(6)   It is desirable to take steps so as to allow the Ombudsman to develop his or her cooperation with similar institutions at national and international level as well as with national or international institutions even where they cover a wider range of activities than the European Ombudsman – such as the protection of human rights –, since such cooperation may make a positive contribution towards enhancing the efficiency of the Ombudsman's action.

(7)   The Treaty establishing the European Coal and Steel Community expired in 2002,

HAS DECIDED AS FOLLOWS:

Article 1

Amendments to Decision 94/262/ECSC, EC, Euratom

Decision 94/262/ECSC, EC, Euratom is hereby amended as follows:

1.   In Citation 1, the words ", Article 20d(4) of the Treaty establishing the European Coal and Steel Community" shall be deleted;

2.   Recital 3 shall be replaced by the following:

"

Whereas the Ombudsman, who may also act on his own initiative, must have access to all the elements required for the performance of his duties; whereas to that end Community institutions and bodies are obliged to supply the Ombudsman, at his request, with any information which he requests of them and without prejudice to the Ombudsman's obligation not to divulge such information; whereas access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001(6) , should be subject to compliance with the rules on security of the Community institution or body concerned; whereas the institutions or bodies supplying classified information or documents as mentioned in the first subparagraph of Article 3(2) should inform the Ombudsman of such classification; whereas for the implementation of the rules provided for in the first subparagraph of Article 3(2), the Ombudsman should have agreed in advance with the institution or body concerned the conditions for treatment of classified information or documents and other information covered by the obligation of professional secrecy; whereas if the Ombudsman finds that the assistance requested is not forthcoming, he shall inform the European Parliament, which shall make appropriate representations;

3.   In Article 1(1), the words ", Article 20d(4) of the Treaty establishing the European Coal and Steel Community" shall be deleted;

4.   Article 3(2) shall be replaced by the following:

"2. The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned.

The institutions or bodies supplying classified information or documents as mentioned in the previous subparagraph shall inform the Ombudsman of such classification.

For the implementation of the rules provided for in the first subparagraph, the Ombudsman shall have agreed in advance with the institution or body concerned the conditions for treatment of classified information or documents and other information covered by the obligation of professional secrecy.

The institutions or bodies concerned shall give access to documents originating in a Member State and classed as secret by law or regulation only where that Member State has given its prior agreement.

They shall give access to other documents originating in a Member State after having informed the Member State concerned.

In both cases, in accordance with Article 4, the Ombudsman may not divulge the content of such documents.

Officials and other servants of Community institutions and bodies must testify at the request of the Ombudsman; they shall continue to be bound by the relevant rules of the Staff Regulations, notably their duty of professional secrecy.

"

5.   Article 4 shall be replaced by the following:

"

Article 4

1.   The Ombudsman and his staff, to whom Article 287 of the Treaty establishing the European Community and Article 194 of the Treaty establishing the European Atomic Energy Community shall apply, shall be required not to divulge information or documents which they obtain in the course of their inquiries. They shall, in particular, be required not to divulge any classified information or any document supplied to the Ombudsman, in particular sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, or documents falling within the scope of Community legislation regarding the protection of personal data, as well as any information which could harm the person lodging the complaint or any other person involved, without prejudice to paragraph 2.

2.   If, in the course of inquiries, he learns of facts which he considers might relate to criminal law, the Ombudsman shall immediately notify the competent national authorities via the Permanent Representations of the Member States to the European Communities and, in so far as the case falls within its powers, the competent Community institution, body or service in charge of combating fraud; if appropriate, the Ombudsman shall also notify the Community institution or body with authority over the official or servant concerned, which may apply the second paragraph of Article 18 of the Protocol on the Privileges and Immunities of the European Communities. The Ombudsman may also inform the Community institution or body concerned of the facts calling into question the conduct of a member of their staff from a disciplinary point of view.

"

6.   The following Article 4a shall be inserted:

"

Article 4a

The Ombudsman and his staff shall deal with requests for public access to documents, other than those referred to in Article 4(1), in accordance with the conditions and limits provided for in Regulation (EC) No 1049/2001.

"

7.   Article 5 shall be replaced by the following:

"

Article 5

1.   In so far as it may help to make his enquiries more efficient and better safeguard the rights and interests of persons who make complaints to him, the Ombudsman may cooperate with authorities of the same type in certain Member States provided he complies with the national law applicable. The Ombudsman may not by this means demand to see documents to which he would not have access under Article 3.

2.   Within the scope of his functions as laid down in Article 195 of the Treaty establishing the European Community and Article 107d of the Treaty establishing the European Atomic Energy Community and avoiding any duplication with the activities of the other institutions or bodies, the Ombudsman may, under the same conditions, cooperate with institutions and bodies of Member States in charge of the promotion and protection of fundamental rights.

"

Article 2

This decision shall be published in the Official Journal of the European Union.

Article 3

This decision shall enter into force fourteen days after its publication in the Official Journal of the European Union.

Done at Strasbourg,

For the European Parliament

The President

(1)1 OJ L 113, 4.5.1994, p. 15. Decision as amended by Decision 2002/262/EC, ECSC, Euratom (OJ L 92, 9.4.2002, p. 13).
(2)2 Texts adopted, P6_TA(2008)0129 .
(3) Not yet published in the OJ.
(4) Not yet published in the OJ.
(5) Decision of the Council of 12 June 2008.
(6) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).";

Last updated: 23 December 2008Legal notice