REPORT on the proposal for a regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators (recast)

26.2.2018 - (COM(2016)0863 – C8‑0494/2016 – 2016/0378(COD)) - ***I

Committee on Industry, Research and Energy
Rapporteur: Morten Helveg Petersen
(Recast – Rule 104 of the Rules of Procedure)
PR_COD_1reca

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators. (recast)

(COM(2016)0863 – C8‑0494/2016 – 2016/0378(COD))

(Ordinary legislative procedure – recast)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0863),

–  having regard to Article 294(2) and Article 194(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0494/2016),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the German Bundestag, the French Senate and the Romanian Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee of 31 May 2017[1],

–  having regard to the opinion of the Committee of Regions of 13 July 2017[2],

–  having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts[3],

–  having regard to the letter of 17 July 2017 from the Committee on Legal Affairs to the Committee on Civil Liberties, Justice and Home Affairs in accordance with Rule 104(3) of its Rules of Procedure,

–  having regard to Rules 104 and 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Industry, Research and Energy and the opinion of the Committee on Budgets (A8-0040/2018),

A.  whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the Commission proposal does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1.  Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

2.  Calls on the Commission to refer the matter to Parliament again if replaces, substantially amends or intends to substantially amend its proposal;

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

Amendment    1 Proposal for a regulation Recital 5 a (new)
Text proposed by the Commission	Amendment
	(5a)  Despite significant progress in integrating and interconnecting the internal electricity market, some Member States or regions still remain isolated or not sufficiently interconnected. This is particularly the case with regard to insular Member States and Member States located in the periphery. The Agency in its work should take account of the specific situation of those Member States or regions as appropriate.
Amendment    2 Proposal for a regulation Recital 7
Text proposed by the Commission	Amendment
(7)  Due to the close interconnection of the Union electricity grid and the increasing need to cooperate with neighbouring countries to maintain grid stability and integrate large volumes of renewable energies, regional operational centres will play an important role for the coordination of transmission system operators. The Agency should guarantee regulatory oversight over the regional operational centres where necessary.	(7)  Due to the close interconnection of the Union electricity grid and the increasing need to cooperate with neighbouring countries to maintain grid stability and integrate large volumes of renewable energies, regional coordination centres will play an important role for the coordination of transmission system operators. The Agency should guarantee regulatory oversight over the regional coordination centres and monitor their performance and compliance with relevant Union law.
Amendment    3 Proposal for a regulation Recital 8
Text proposed by the Commission	Amendment
(8)  As large parts of new electricity generation will be connected at local level, distribution system operators will play an important role when it comes to operating the European electricity system in a flexible and efficient manner.	(8)  As large parts of new electricity generation will be connected at local level, distribution system operators will play an important role when it comes to operating the European electricity system in a flexible and efficient manner. As the Commission considers the establishment of a Union-level body in order to enhance cooperation between transmission system operators and distribution system operators (DSOs), and to develop further guidance and codes on DSO issues, it is necessary to give the Agency certain regulatory oversight powers over such a body.
Amendment    4 Proposal for a regulation Recital 10
Text proposed by the Commission	Amendment
(10)  The Agency should ensure that regulatory functions performed by the national regulatory authorities in accordance with [the recast Electricity Directive as proposed by COM(2016) 864/2] and Directive 2009/73/EC of the European Parliament and of the Council30 are properly coordinated and, where necessary, completed at Union level. To that end, it is necessary to guarantee the independence of the Agency from electricity and gas producers, transmission and distribution system operators, whether public or private, and consumers and to ensure the conformity of its actions with Union law, its technical and regulatory capacities and its transparency, amenability to democratic control and efficiency.	(10)  The Agency should ensure that regulatory functions performed by the national regulatory authorities in accordance with [the recast Electricity Directive as proposed by COM(2016) 864/2] and Directive 2009/73/EC of the European Parliament and of the Council30 are properly coordinated and, where necessary, completed at Union level. To that end, it is necessary to guarantee the independence of the Agency from electricity and gas producers, transmission and distribution system operators, whether public or private, and consumers and to ensure the conformity of its actions with Union law, its technical and regulatory capacities and its transparency, amenability to democratic control, including accountability to the European Parliament and efficiency.
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30 See page 94 of this Official Journal.	30 See page 94 of this Official Journal.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    5 Proposal for a regulation Recital 11
Text proposed by the Commission	Amendment
(11)  The Agency should monitor regional cooperation between transmission system operators in the electricity and gas sectors as well as the execution of the tasks of the European Network of Transmission System Operators for Electricity (ENTSO for Electricity), and the European Network of Transmission System Operators for Gas (ENTSO for Gas). The Agency should also monitor the implementation of the tasks of other entities with regulated functions of Union-wide dimension, such as energy exchanges. The involvement of the Agency is essential in order to ensure that the cooperation between transmission system operators and the operation of other entities with Union-wide functions proceeds in an efficient and transparent way for the benefit of the internal markets in electricity and natural gas.	(11)  The Agency should monitor regional cooperation between transmission system operators in the electricity and gas sectors as well as the execution of the tasks of the European Network of Transmission System Operators for Electricity (ENTSO for Electricity), and the European Network of Transmission System Operators for Gas (ENTSO for Gas) and play a role in ensuring compliance with Union law. The Agency should also monitor the implementation of the tasks of other entities with regulated functions of Union-wide dimension, such as energy exchanges. The involvement of the Agency is essential in order to ensure that the cooperation between transmission system operators and the operation of other entities with Union-wide functions proceeds in an efficient and transparent way for the benefit of the internal markets in electricity and natural gas. The Agency should be able to request and to receive, from the ENTSO for Electricity and the ENTSO for Gas, information necessary for the fulfilment of its tasks.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    6 Proposal for a regulation Recital 11 a (new)
Text proposed by the Commission	Amendment
	(11 a)  With the expansion of the operational responsibilities of the ENTSO for Electricity, the ENTSO for Gas, the EU entity of Distribution System Operators (the “EU DSO entity”) and the regional cooperation centres, it is necessary to enhance oversight of such entities operating at regional or Union-wide level. In exceptional circumstances, in order to safeguard the proper functioning of the internal energy market, ACER should be able to adopt decisions addressed to such entities to ensure that they comply with their obligations certain energy law.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    7 Proposal for a regulation Recital 13
Text proposed by the Commission	Amendment
(13)  The Agency provides an integrated framework which enables national regulatory authorities to participate and cooperate. That framework facilitates the uniform application of the legislation on the internal markets in electricity and natural gas throughout the Union . As regards situations concerning more than one Member State, the Agency has been granted the power to adopt individual decisions. That power should under clearly specified conditions cover technical and regulatory issues which require regional coordination , notably concerning the implementation of network codes and guidelines, cooperation within regional operational centres, the regulatory decisions necessary to effectively monitor wholesale market integrity and transparency, decisions concerning electricity and natural gas infrastructure that connects or that might connect at least two Member States and, as a last resort, exemptions from the internal market rules for new electricity interconnectors and new gas infrastructure located in more than one Member State.	(13)  The Agency provides an integrated framework which enables national regulatory authorities to participate and cooperate. That framework facilitates the uniform application of the legislation on the internal markets in electricity and natural gas throughout the Union. As regards situations concerning more than one Member State, the Agency has been granted the power to adopt individual decisions. That power should under clearly specified conditions cover technical and regulatory issues which require regional coordination , notably concerning the implementation of network codes and guidelines, cooperation within regional coordination centres, the regulatory decisions necessary to effectively monitor wholesale market integrity and transparency, decisions concerning electricity and natural gas infrastructure that connects or that might connect at least two Member States and, as a last resort, exemptions from the internal market rules for new electricity interconnectors and new gas infrastructure located in more than one Member State. The Agency should also have the capacity to provide operational assistance to the national regulatory authorities. The national regulatory authorities should provide the Agency with the information relevant to the Agency’s monitoring activities.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    8 Proposal for a regulation Recital 14
Text proposed by the Commission	Amendment
(14)  The Agency has an important role in developing framework guidelines which are non-binding by nature ("framework guidelines"). Network codes should be in line with those framework guidelines. It is also considered appropriate for the Agency, and consistent with its purpose, to have a role in reviewing draft network codes to ensure that they are in line with the framework guidelines and provide for the necessary degree of harmonisation, before it submits them to the Commission for adoption.	(14)  The Agency has an important role in developing framework guidelines which are non-binding by nature ("framework guidelines"). Network codes should be in line with those framework guidelines. It is also considered appropriate for the Agency, and consistent with its purpose, to have a role in reviewing and amending draft network codes to ensure that they are in line with the framework guidelines and provide for the necessary degree of harmonisation, before it submits them to the Commission for adoption.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    9 Proposal for a regulation Recital 15
Text proposed by the Commission	Amendment
(15)  With the adoption of a set of network codes and guidelines which provide for a stepwise implementation and a further refinement of common regional and Union-wide rules, the role of the Agency in monitoring the implementation of the network codes and guidelines has increased. Effective monitoring of network codes and guidelines is a key function of the Agency and crucial for the implementation of internal market rules.	(15)  With the adoption of a set of network codes and guidelines which provide for a stepwise implementation and a further refinement of common regional and Union-wide rules, the role of the Agency in monitoring and ensuring the implementation of the network codes and guidelines has increased. Effective monitoring of network codes and guidelines is a key function of the Agency and crucial for the implementation of internal market rules.
Amendment    10 Proposal for a regulation Recital 17
Text proposed by the Commission	Amendment
(17)  Since the stepwise harmonisation of the Union energy markets involves finding regional solutions regularly as an interim step, it is appropriate to reflect the regional dimension of the internal market and to provide for appropriate governance mechanisms. Regulators responsible for coordinated regional approvals should be able to prepare Board of Regulators decisions on issues of regional relevance in a regional subcommittee of the Board of Regulators, unless those issues are of general importance for the Union.	(17)  Since the stepwise harmonisation of the Union energy markets involves finding regional solutions regularly as an interim step, it is appropriate to reflect the regional dimension of the internal market and to provide for appropriate governance mechanisms. Decisions on proposals for joint regional terms and conditions or methodologies should therefore be taken by the competent regulatory authorities of the region concerned unless those decisions have a tangible impact on the internal energy market. Decisions on issues which have significant relevance beyond the region concerned should be taken by the Agency.
Amendment    11 Proposal for a regulation Recital 20
Text proposed by the Commission	Amendment
(20)  The Agency should consult interested parties, where appropriate, and provide them with a reasonable opportunity to comment on proposed measures, such as network codes and rules.	(20)  The Agency must consult interested parties, where appropriate, and provide them with a reasonable opportunity to comment on all proposed measures.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    12 Proposal for a regulation Recital 22
Text proposed by the Commission	Amendment
(22)  The Agency should contribute to the efforts of enhancing energy security.	(22)  The Agency should contribute to the efforts of enhancing energy security and meeting the climate objectives of the Union. As an executive body, it should abide by the strategic energy and climate agenda determined by the Union’s policy-making institutions.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    13 Proposal for a regulation Recital 26
Text proposed by the Commission	Amendment
(26)  The Agency should have the necessary powers to perform its regulatory functions in an efficient, transparent, reasoned and, above all, independent manner. The independence of the Agency from electricity and gas producers and transmission and distribution system operators is not only a key principle of good governance but also a fundamental condition to ensure market confidence. Without prejudice to its members’ acting on behalf of their respective national authorities, the Board of Regulators should therefore act independently from any market interest, should avoid conflicts of interests and should not seek or follow instructions or accept recommendations from a government of a Member State, from Union institutions or another public or private entity or person. The decisions of the Board of Regulators should, at the same time, comply with Union law concerning energy, such as the internal energy market, the environment and competition. The Board of Regulators should report its opinions, recommendations and decisions to the Union institutions.	(26)  The Agency should have the necessary powers to perform its regulatory functions in an efficient, transparent, reasoned and, above all, independent manner. The independence of the Agency from electricity and gas producers and transmission and distribution system operators as well as other organisations promoting the interests of national regulators is not only a key principle of good governance but also a fundamental condition to ensure market confidence. Without prejudice to its members’ acting on behalf of their respective national authorities, the Board of Regulators should therefore act independently from any market interest, should avoid conflicts of interests and should not seek or follow instructions or accept recommendations from a government of a Member State, from Union institutions or another public or private entity or person. The decisions of the Board of Regulators should, at the same time, comply with Union law concerning energy, such as the internal energy market, the environment and competition. The Board of Regulators should report its opinions, recommendations and decisions to the Union institutions. The Agency’s decisions should be binding, while its opinions and recommendations should be given the utmost consideration by the ENTSO for Electricity, the ENTSO for Gas, the EU DSO entity, the transmission system operators, the regional operational centres and nominated electricity market operators.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    14 Proposal for a regulation Recital 28
Text proposed by the Commission	Amendment
(28)  The Agency should exercise its decision-making powers in line with the principles of fair, transparent and reasonable decision-making. All procedural rules of the Agency should be laid down in its rules of procedures.	(28)  The Agency should exercise its decision-making powers in line with the principles of fair, transparent and reasonable decision-making. All procedures of the Agency should follow adequate rules of procedure. All procedural rules of the Agency should be laid down in its rules of procedures.
Amendment    15 Proposal for a regulation Recital 29
Text proposed by the Commission	Amendment
(29)  The Agency should be mainly financed from the general budget of the Union, by fees and by voluntary contributions. In particular, the resources currently pooled by regulatory authorities for their cooperation at Union level should continue to be available to the Agency. The Union budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the Union are concerned. Moreover, the auditing of accounts should be undertaken by an independent external auditor in accordance with Article 107 of Commission Delegated Regulation (EU) No 1271/201333 .	(29)  The Agency should be properly resourced to carry out its tasks. The Agency should be mainly financed from the general budget of the Union, by fees and by voluntary contributions. In particular, there sources currently pooled by regulatory authorities for their cooperation at Union level should continue to be available to the Agency. The Agency should have the possibility to collect fees for certain of its activities. The Union budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the Union are concerned. Moreover, the auditing of accounts should be undertaken by an independent external auditor in accordance with Article 107 of Commission Delegated Regulation (EU) No1271/201333.
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33 Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).	33 Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    16 Proposal for a regulation Recital 29 a (new)
Text proposed by the Commission	Amendment
	(29a)  The Agency's budget should be prepared in accordance with the principle of performance-based budgeting, taking into account its objectives and the expected results of its tasks.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    17 Proposal for a regulation Recital 30
Text proposed by the Commission	Amendment
(30)  The Agency's budget should be assessed by the budgetary authority on an ongoing basis, with reference to the Agency’s workload and performance. The budgetary authority should ensure that the best standards of efficiency are met.	(30)  The Agency's budget should be assessed by the budgetary authority on an ongoing basis, with reference to the Agency’s workload, performance and the objective of working towards a internal energy market and contributing to energy security for the benefit of consumers in the Union. The budgetary authority should ensure that the best standards of efficiency are met.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    18 Proposal for a regulation Recital 34
Text proposed by the Commission	Amendment
(34)  Through the cooperation of national regulators within the Agency it is evident that majority decisions are a key pre-requisite to achieve progress on matters concerning the internal energy market which have significant economic effects in various Member States. National regulators should therefore vote with simple majority within the Board of Regulators.	(34)  Through the cooperation of national regulators within the Agency it is evident that majority decisions are a key pre-requisite to achieve progress on matters concerning the internal energy market which have significant economic effects in various Member States. National regulators should therefore vote by a two-thirds majority within the Board of Regulators. The Agency should be accountable to the European Parliament, the Council and the Commission, as appropriate.
Amendment    19 Proposal for a regulation Recital 37 a (new)
Text proposed by the Commission	Amendment
	(37a)  Decision 2009/913/EU taken by common agreement between the representatives of the governments of Member States1a provides that the Agency is to have its seat in Ljubljana, Slovenia. Agency’s seat is the centre of its activities and its statutory functions. Thus, the meetings of the statutory organs should take place at the seat.
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	1a Decision 2009/913/EU taken by common agreement between the representatives of the governments of Member States of 7 December 2009 on the location of the seat of the Agency for the Cooperation of Energy Regulators (OJ L 322, 9.12.2009, p. 39).
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    20 Proposal for a regulation Recital 38
Text proposed by the Commission	Amendment
(38)  The Agency’s host Member State should provide the best possible conditions to ensure the smooth and efficient functioning of the Agency, including multilingual, European-oriented schooling and appropriate transport connections.	(38)  The Seat Agreement between the Government of the Republic of Slovenia and the Agency was concluded on 26 November 2010 and entered into force on 10 January 2011 and other specific arrangements fulfil the requirements of Regulations (EU) No 713/2009 and 863/2016.
Amendment    21 Proposal for a regulation Recital 38 a (new)
Text proposed by the Commission	Amendment
	(38a)  The Agency should encourage and facilitate cooperation between the national regulatory authorities across sectors, where relevant, especially in the field of data protection and privacy.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    22 Proposal for a regulation Article 1 – paragraph 2
Text proposed by the Commission	Amendment
2.  The purpose of the Agency shall be to assist the regulatory authorities referred to in Article 57 of [the recast Electricity Directive as proposed by COM(2016) 864/2] and Article 39 of Directive 2009/73/EC of the European Parliament and of the Council in exercising, at Union level, the regulatory tasks performed in the Member States and, where necessary, to coordinate their action.	2.  The purpose of the Agency shall be to assist the regulatory authorities referred to in Article 57 of [the recast Electricity Directive as proposed by COM(2016) 864/2] and Article 39 of Directive 2009/73/EC of the European Parliament and of the Council in exercising, at Union level, the regulatory tasks performed in the Member States and, where necessary, to coordinate their action, mediate and settle disagreements between them as well as contribute to the establishment of high-quality common regulatory and supervisory practices, ensuring the consistent, efficient and effective application of Union legal acts in order to achieve the Union’s climate and energy goals.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    23 Proposal for a regulation Article 1 – paragraph 2 a (new)
Text proposed by the Commission	Amendment
	2a.  When carrying out its tasks, the Agency shall act independently and objectively and in the interest of the Union alone. The Agency shall take autonomous decisions, independently from private and corporate interests and have separate annual budget allocations, with autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties effectively.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    24 Proposal for a regulation Article 2 – paragraph 1 – point a
Text proposed by the Commission	Amendment
(a)  issue opinions and recommendations addressed to transmission system operators, regional operational centres and nominated electricity market operators ;	(a)  issue opinions and recommendations addressed to transmission system operators, the ENTSO for Electricity, the ENTSO for Gas, the EU DSO entity, the regional coordination centres and nominated electricity market operators;
Amendment    25 Proposal for a regulation Article 2 – paragraph 1 – point d
Text proposed by the Commission	Amendment
(d)  take individual decisions in the specific cases referred to in Articles 6, 8, and 11 of this Regulation ,	(d)  take decisions in the specific cases referred to in this Regulation;
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    26 Proposal for a regulation Article 2 – paragraph 1 a (new)
Text proposed by the Commission	Amendment
	The ENTSO for Electricity, the ENTSO for Gas, the EU DSO entity, the transmission system operators, the regional coordination centres and nominated electricity market operators shall give the utmost consideration to, and make every effort to comply with, the Agency’s opinions and recommendations addressed to them pursuant to this Regulation.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    27 Proposal for a regulation Article 4 – title
Text proposed by the Commission	Amendment
Tasks of the Agency as regards the cooperation of transmission system operators	Tasks of the Agency as regards the cooperation of transmission and distribution system operators
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    28 Proposal for a regulation Article 4 – paragraph 1
Text proposed by the Commission	Amendment
1.  The Agency shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure of the ENTSO for Electricity in accordance with Article 26 (2) of [OP: recast Electricity Regulation as proposed by COM(2016) 861/2] and on those of the ENTSO for Gas in accordance with Article 5(2) of Regulation (EC) No 715/2009.	1.  The Agency shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure of the ENTSO for Electricity in accordance with Article 26(2) of [OP: recast Electricity Regulation as proposed by COM(2016)861/2], on those of the EU DSO entity in accordance with Article 50(2)of Regulation (EU) ... [OP: recast Electricity Regulation as proposed by COM(2016) 861/2] and on those of the ENTSO for Gas in accordance with Article 5(2) of Regulation(EC) No 715/2009.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    29 Proposal for a regulation Article 4 – paragraph 3 – point a
Text proposed by the Commission	Amendment
(a)  to the ENTSO for Electricity in accordance with Article 27(1)(a) of [recast Electricity Regulation as proposed by COM(2016) 861/2] and to the ENTSO for Gas in accordance with Article 8(2) of Regulation (EC) No 715/2009 on the network codes; and	(a)  to the ENTSO for Electricity in accordance with Article 27(1)(a) of [recast Electricity Regulation as proposed by COM(2016) 861/2] and to the ENTSO for Gas in accordance with Article 8(2) of Regulation (EC) No 715/2009 on the network codes;
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    30 Proposal for a regulation Article 4 – paragraph 3 – point b
Text proposed by the Commission	Amendment
(b)  to the ENTSO for Electricity in accordance with Article 27(1) (b) and (h) of [recast Electricity Regulation as proposed by COM(2016) 861/2], and to the ENTSO for Gas in accordance with the first subparagraph of Article 9(2) of Regulation (EC) No 715/2009 on the draft annual work programme, on the draft Union -wide network development plan and other relevant documents referred to in Article 27(1) of [recast Electricity Regulation as proposed by COM(2016) 861/2] and Article 8(3) of Regulation (EC) No 715/2009, taking into account the objectives of non-discrimination, effective competition and the efficient and secure functioning of the internal markets in electricity and natural gas.	(b)  to the ENTSO for Electricity in accordance with Article 27(1) (b) and (h) of [recast Electricity Regulation as proposed by COM(2016) 861/2], and to the ENTSO for Gas in accordance with the first subparagraph of Article 9(2) of Regulation (EC) No 715/2009 on the draft annual work programme, on the draft Union -wide network development plan and other relevant documents referred to in Article 27(1) of [recast Electricity Regulation as proposed by COM(2016) 861/2] and Article 8(3) of Regulation (EC) No 715/2009, taking into account the objectives of non-discrimination, effective competition and the efficient and secure functioning of the internal markets in electricity and natural gas; and
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    31 Proposal for a regulation Article 4 – paragraph 3 – point b a (new)
Text proposed by the Commission	Amendment
	(b a)  to the EU DSO entity on the draft annual work programme and other relevant documents referred to in Article 51(1) and (2) of Regulation (EU) ... [recast Electricity Regulation as proposed by COM(2016) 861/2], taking into account the objectives of non-discrimination, effective competition and the efficient and secure functioning of the internal markets in electricity and natural gas.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    32 Proposal for a regulation Article 4 – paragraph 4 a (new)
Text proposed by the Commission	Amendment
	4 a.  The Agency may issue decisions addressed to the ENTSO for Electricity, the ENTSO for Gas and the EU DSO entity to require them to comply with their obligations as specified in
	(a)   this Regulation;
	(b)   Regulation (EC) No 715/2009 and Regulation (EU) .../... [proposed recast Electricity Regulation, COD (2016)0379];
	(c)   the network codes adopted pursuant to Article 6 of Regulation (EC) No 715/2009 and Articles 54 and 55 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016)0379 ];
	(d)   the guidelines adopted pursuant to Article 23 of Regulation (EC) No 715/2009 and Article 57 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016) 0379];
	(e)   Regulation (EU) No 347/2013 of the European Parliament and of the Council;
	(f)   Regulation (EU) ... [Risk Preparedness Regulation as proposed by COM(2016) 862]
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    33 Proposal for a regulation Article 4 – paragraph 4 b (new)
Text proposed by the Commission	Amendment
	4 b.  The Agency shall issue a decision pursuant to paragraph 4a only where:
	(a)   the failure to comply affects the efficient functioning of the internal energy market; and
	(b)   no competent authority has taken measures or the measures taken by one or more competent authorities have not been sufficient to ensure compliance.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    34 Proposal for a regulation Article 4 – paragraph 4 c (new)
Text proposed by the Commission	Amendment
	4 c.  Upon the Agency’s request, the ENTSO for Electricity, the ENTSO for Gas and the EU DSO entity shall provide the Agency with the information necessary for the fulfilment of its tasks.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    35 Proposal for a regulation Article 5 – paragraph 1 – point e
Text proposed by the Commission	Amendment
(e)  monitor and analyse the implementation of the network codes and the Guidelines adopted by the Commission in accordance with Article 55(12) of [recast Electricity Regulation as proposed by COM(2016) 861/2] and in Article 6(11) of Regulation (EC) No 715/2009, and their effect on the harmonisation of applicable rules aimed at facilitating market integration as well as on non-discrimination, effective competition and the efficient functioning of the market, and report to the Commission.	(e)  monitor and analyse the implementation of the network codes and the Guidelines adopted by the Commission in accordance with Article 55(12) of [recast Electricity Regulation as proposed by COM(2016) 861/2] and in Article 6(11) of Regulation (EC) No 715/2009, and their effect on the harmonisation of applicable rules aimed at facilitating market integration as well as on non-discrimination, effective competition and the efficient functioning of the market, and report to the Commission. The Agency may also issue decisions in accordance with Article 4(4a) of this Regulation.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    36 Proposal for a regulation Article 5 – paragraph 2
Text proposed by the Commission	Amendment
2.  In cases where the network codes and guidelines developed pursuant to Chapter VII of [recast Electricity Regulation as proposed by COM(2016) 861/2] provide for the development of proposals for terms and conditions or methodologies for the implementation of those network codes and guidelines which require regulatory approval by all regulatory authorities or by all regulators of the concerned region, the terms and conditions or methodologies shall be submitted for revision and approval to the Agency. Before approving the terms and conditions or methodologies, the Agency shall revise and change them where necessary in order to ensure that they are in line with the purpose of the network code or guideline and contribute to market integration, non-discrimination and the efficient functioning of the market. The procedure for the coordination of regional tasks in accordance with Article 7 shall apply.	2.  In cases where the network codes and guidelines developed pursuant to Chapter VII of [recast Electricity Regulation as proposed by COM(2016) 861/2] provide for the development of proposals for terms and conditions or methodologies for the implementation of those network codes and guidelines which require approval by the regulatory authorities of all Member States, the proposed terms and conditions or methodologies shall be submitted for revision and approval to the Agency.
Amendment    37 Proposal for a regulation Article 5 – paragraph 2 a (new)
Text proposed by the Commission	Amendment
	2 a.  In cases where the network codes and guidelines developed pursuant to Chapter VII of Regulation (EU) .../... [proposed recast Electricity Regulation, COD (2016)0379] provide for the development of proposals for joint regional terms and conditions or methodologies for the implementation of network codes and guidelines which require approval by all regulatory authorities of the region concerned, the proposed terms and conditions or methodologies shall be notified to the Agency.
	Within one month of such notification, the Director may, on his or her own initiative after consulting the Board of Regulators, or at the request of the Board of Regulators, require the regulatory authorities of the region concerned to refer the proposal to the Agency for approval where the proposal has a tangible impact on the internal energy market.
	A proposal shall be considered to have a tangible impact on the internal energy market where it would:
	(i)   have a tangible impact on end-consumers beyond the region concerned, or
	(ii)   significantly affect the Union's energy interests beyond the region concerned.
	In such cases, or in cases referred to in Article 6(8)(a) and (b) the Agency shall take a decision within the period specified in the relevant network codes and guidelines. That period shall begin on the day following that on which the proposal was notified.
	Before approving the terms and conditions or methodologies, the Agency shall revise and change them where necessary in order to ensure that they are in line with the purpose of the network code or guideline and contribute to market integration, non-discrimination, effective competition and the proper functioning of the market.
Amendment    38 Proposal for a regulation Article 5 – paragraph 3
Text proposed by the Commission	Amendment
3.  In the context of the bidding zone review, the Agency shall approve and may request amendments to the methodology and assumptions that will be used in the bidding zone review process pursuant to Article 13 paragraph 3 of [recast Electricity Regulation as proposed by COM(2016) 861/2].	3.  The bidding zone review process shall be effected pursuant to Article 13 paragraph 3 of [recast Electricity Regulation as proposed by COM(2016) 861/2].
Amendment    39 Proposal for a regulation Article 6 – paragraph 2
Text proposed by the Commission	Amendment
2.  The Agency may, in accordance with its work programme, at the request of the Commission or at its own initiative, make recommendations to assist regulatory authorities and market players in sharing good practices.	2.  The Agency may, in accordance with its work programme, at the request of the Commission or at its own initiative, make recommendations to assist regulatory authorities and market players in sharing good practices and ensuring full compliance with existing regulation.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    40 Proposal for a regulation Article 6 – paragraph 2 a (new)
Text proposed by the Commission	Amendment
	2a.  The Agency may provide the Commission with an opinion regarding a particular national regulatory authority’s independence or lack of resources and technical capabilities upon its own initiative.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    41 Proposal for a regulation Article 6 – paragraph 3
Text proposed by the Commission	Amendment
3.  The Agency shall provide a framework within which national regulatory authorities can cooperate. It shall promote cooperation between the national regulatory authorities and between regulatory authorities at regional and Union level to ensure interoperability, communication and monitoring of regional performance in those areas which are still not harmonised at Union level and shall take into account the outcome of such cooperation when formulating its opinions, recommendations and decisions. Where the Agency considers that binding rules on such cooperation are required, it shall make the appropriate recommendations to the Commission.	3.  The Agency shall provide a framework within which national regulatory authorities can cooperate in order to ensure efficient decision-making on issues with cross border relevance. It shall promote cooperation between the national regulatory authorities and between regulatory authorities at regional and Union level to ensure interoperability, communication and monitoring of regional performance in those areas which are still not harmonised at Union level and shall take into account the outcome of such cooperation when formulating its opinions, recommendations and decisions. Where the Agency considers that binding rules on such cooperation are required, it shall make the appropriate recommendations to the Commission.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    42 Proposal for a regulation Article 6 – paragraph 4
Text proposed by the Commission	Amendment
4.  The Agency shall provide a factual opinion at the request of a regulatory authority or of the Commission, on whether a decision taken by a regulatory authority complies with the guidelines referred to in [recast Electricity Directive as proposed by COM(2016) 864/2], Directive 2009/73/EC, [recast Electricity Regulation as proposed by COM(2016) 861/2] or Regulation (EC) No 715/2009 or with other relevant provisions of those Directives or Regulations.	4.  The Agency shall provide a factual opinion at the request of one or more regulatory authorities or of the Commission, on whether a decision taken by a regulatory authority complies with the guidelines referred to in [recast Electricity Directive as proposed by COM(2016) 864/2], Directive 2009/73/EC, [recast Electricity Regulation as proposed by COM(2016) 861/2] or Regulation (EC) No 715/2009 or with other relevant provisions of those Directives or Regulations.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    43 Proposal for a regulation Article 6 – paragraph 6 a (new)
Text proposed by the Commission	Amendment
	6 a.  Upon the request of a national regulatory authority, the Agency may decide to provide operational assistance to the national regulatory authority concerned in the investigation, including for the purpose of enforcement with regard to non-compliance with rules relating to market abuse, market manipulation and insider trading, ursuant to Regulation (EU) No 1227/2011 of the European Parliament and of the Council1a.
	________________
	1a Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p. 1).
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    44 Proposal for a regulation Article 6 – paragraph 7
Text proposed by the Commission	Amendment
7.  The Agency shall decide on the terms and conditions for access to and operational security of electricity and gas infrastructure connecting or that might connect at least two Member States ("cross-border infrastructure"), in accordance with paragraph 8 .	7.  The Agency shall decide on the terms and conditions for access to and operational security of electricity and gas infrastructure connecting or that might connect at least two Member States ("cross-border infrastructure"), in accordance with paragraphs 8, 9 and 10.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    45 Proposal for a regulation Article 6 – paragraph 10 a (new)
Text proposed by the Commission	Amendment
	10 a.  The national regulatory authorities shall ensure enforcement of the Agency’s decisions.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    46 Proposal for a regulation Article 7
Text proposed by the Commission	Amendment
[…]	deleted
Amendment    47 Proposal for a regulation Article 8 – title
Text proposed by the Commission	Amendment
Tasks of the Agency as regards regional operational centres	Tasks of the Agency as regards regional coordination centres
Amendment    48 Proposal for a regulation Article 8 – paragraph 1
Text proposed by the Commission	Amendment
1.  The Agency, in close cooperation with the national regulatory authorities and the ENTSO for Electricity, shall monitor and analyse the performance of regional operational centres, taking into account the reports provided for in [Article 43 paragraph 4 recast Electricity Regulation as proposed by COM(2016) 861/2].	1.  The Agency, in close cooperation with the national regulatory authorities and the ENTSO for Electricity, shall monitor and analyse the performance and compliance of regional coordination centres, taking into account the reports provided for in [Article 43(4)] of Regulation ... [recast Electricity Regulation as proposed by COM(2016) 861/2] and their compliance with obligations under Regulation (EU) .../... [recast Electricity Regulation as proposed by COM(2016) 861/2], the network codes adopted pursuant to Articles 54 and 55 thereof and the guidelines adopted pursuant to Article 57 thereof.
Amendment    49 Proposal for a regulation Article 8 – paragraph 2 – point b
Text proposed by the Commission	Amendment
(b)  request information from regional operational centres where appropriate pursuant to Article 43 of [recast Electricity Regulation as proposed by COM(2016) 861/2];	(b)  request information from regional coordination centres where appropriate pursuant to Article 43 of [recast Electricity Regulation as proposed by COM(2016) 861/2];
Amendment    50 Proposal for a regulation Article 8 – paragraph 2 – point d
Text proposed by the Commission	Amendment
(d)  issue opinions and recommendations to regional operational centres.	(d)  issue opinions and recommendations to regional coordination centres.
Amendment    51 Proposal for a regulation Article 8 – paragraph 2 a (new)
Text proposed by the Commission	Amendment
	2 a.  The Agency may issue decisions addressed to the regional coordination centres to require them to comply with their obligations as specified in
	(a)   Regulation (EU) .../... [proposed recast Electricity Regulation, COD (2016)0379];
	(b)   the network codes adopted pursuant to Articles 54 and 55 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016)0379 ];
	(c)   the guidelines adopted pursuant to Article 57 of Regulation (EU) .../... [proposed Electricity Regulation, COD(2016) 0379].
Amendment    52 Proposal for a regulation Article 8 – paragraph 2 b (new)
Text proposed by the Commission	Amendment
	2 b.  The Agency shall take a decision pursuant to paragraph 2a only where:
	(a)   the failure to comply affects the efficient functioning of the internal energy market; and
	(b)   no competent authority has taken measures or the measures taken by one or more competent authorities have not been sufficient to ensure compliance.
Amendment    53 Proposal for a regulation Article 10 – paragraph 1 – point a
Text proposed by the Commission	Amendment
(a)  the proposals for methodologies and calculations related to the European resource adequacy assessment pursuant to Article 19(2), (3) and (5) of [recast Electricity Regulation as proposed by COM(2016) 861/2].	(a)  the proposals for methodologies and calculations related to the European resource adequacy assessment pursuant to Article 19(2), (3) and (5) of [recast Electricity Regulation as proposed by COM(2016) 861/2] as well as the results of the European resource adequacy assessment pursuant to Article 19(6) of Regulation (EU) ... [recast Electricity Regulation as proposed by COM(2016) 861/2].
Amendment    54 Proposal for a regulation Article 13 – paragraph 1 – point a
Text proposed by the Commission	Amendment
(a)  monitor wholesale markets, collect data and register market participants in accordance with Article 7 to 9 of Regulation (EU) 1227/201137 ;	(a)  monitor wholesale markets, including regional markets, collect and share data and establish a European register of market participants in accordance with Article 7 to 12 of Regulation (EU)1227/201137;
__________________	__________________
37 Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency OJ L 326, 8.12.2011, p. 1–16.	37 Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency OJ L 326, 8.12.2011, p. 1–16.
Amendment    55 Proposal for a regulation Article 15 a (new)
Text proposed by the Commission	Amendment
	Article 15 a
	Procedural safeguards for addressees of the Agency’s decisions
	1.  Before taking the decisions provided for in this Regulation, the Agency shall inform the parties concerned of the decisions and shall invite them to submit observations by a particular time-limit, taking full account of the urgency, complexity and potential consequences of the matter.
	2.   Decisions taken by the Agency shall be fully reasoned for the purpose of allowing an appeal on the merits.
	3.  The parties concerned shall be informed of the legal remedies available to challenge decisions pursuant to this Regulation.
	4.  The Agency shall adopt and publish adequate and proportionate rules of procedure relating to the Agency’s tasks under Chapter I. For all Agency decisions, the rules of procedure shall at least set the standards specified in paragraphs 1, 2 and 3 of this Article and shall ensure a transparent and reasonable decision-making process, guaranteeing fundamental procedural rights based on the rule of law. For all other Agency tasks under Chapter I, the rules of procedure shall at least ensure that fundamental procedural rights are guaranteed.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    56 Proposal for a regulation Article 16 – paragraph 1
Text proposed by the Commission	Amendment
1.  The Agency, in close cooperation with the Commission, the Member States and the relevant national authorities including the national regulatory authorities and without prejudice to the competences of competition authorities, shall monitor the wholesale and retail markets in electricity and natural gas, in particular the retail prices of electricity and natural gas, compliance with the consumer rights laid down in [recast Electricity Directive as proposed by COM(2016) 864/2] and Directive 2009/73/EC, access to the networks including access of electricity produced from renewable energy sources, potential barriers to cross-border trade, state interventions preventing prices from reflecting actual scarcity, the performance of the Member States in the area of electricity security of supply based on the results of the European resource adequacy assessment as referred to in Article 19 of [recast Electricity Regulation], in particular taking into account the ex-post evaluation referred to in Article 16 of [Risk Preparedness Regulation as proposed by COM(2016) 862] .	1.  The Agency, in close cooperation with the Commission, the Member States and the relevant national authorities including the national regulatory authorities and without prejudice to the competences of competition authorities, shall monitor the wholesale and retail markets in electricity and natural gas, in particular the retail prices of electricity and natural gas, compliance with the consumer rights laid down in [recast Electricity Directive as proposed by COM(2016) 864/2] and Directive 2009/73/EC, the impact of market developments on household customers access to the networks including access of electricity produced from renewable energy sources, the progress made with regard to interconnections, potential barriers to cross-border trade, regulatory barriers for new market entrants and smaller actors, including energy communities, state interventions preventing prices from reflecting actual scarcity, the performance of the Member States in the area of electricity security of supply based on the results of the European resource adequacy assessment as referred to in Article 19 of [recast Electricity Regulation], in particular taking into account the ex-post evaluation referred to in Article 16 of [Risk Preparedness Regulation as proposed by COM(2016)862].
Amendment    57 Proposal for a regulation Article 16 – paragraph 3 a (new)
Text proposed by the Commission	Amendment
	3 a.  The Agency may request the national regulatory authorities, the ENTSO for Electricity, the ENTSO for Gas, the regional coordination centres, the EU DSO entity and the nominated electricity market operators to make available any information necessary for the purpose of carrying out of monitoring pursuant to this Article. For that purpose the Agency shall have the power to issue decisions. In its decisions the Agency shall make a reference to the legal basis under which the information is requested, the time limit within which the information is to be provided, and the purpose of the request. The Agency shall use confidential information received pursuant to this Article only for the purposes of carrying out the tasks assigned to it in this Regulation. The Agency shall ensure appropriate data protection of all the information pursuant to Article 41.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    58 Proposal for a regulation Article 17 – paragraph 4 – subparagraph 2
Text proposed by the Commission	Amendment
The Agency may establish local offices in the Member States, subject to their consent and in accordance with Article 25(j).	The Agency may establish local offices in the Member States, in accordance with Article 25(k).
Amendment    59 Proposal for a regulation Article 19 – paragraph 5
Text proposed by the Commission	Amendment
5.  Decisions of the Administrative Board shall be adopted on the basis of a simple majority of the members present, unless provided otherwise in this Regulation. Each member of the Administrative Board or alternate shall have one vote.	5.  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. Each member of the Administrative Board or, in his or her absence, an alternate shall have one vote.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    60 Proposal for a regulation Article 19 – paragraph 8
Text proposed by the Commission	Amendment
8.  The members of the Administrative Board shall undertake to act independently and objectively in the public interest For that purpose, each member shall make a written declaration of commitments and a written declaration of interests indicating either the absence of any interest which may be considered prejudicial to his independence or any direct or indirect interest which might be considered prejudicial to his independence. Those declarations shall be made public annually.	8.  The members of the Administrative Board shall undertake to act independently and objectively in the interest of the Union as a whole and shall neither seek nor follow instructions from the Union institutions or bodies, from any government of a Member State or from any other public or private body. For that purpose, each member shall make a written declaration of commitments and a written declaration of interests indicating either the absence of any interest which may be considered prejudicial to his independence or any direct or indirect interest which might be considered prejudicial to his independence. Those declarations shall be made public annually.
Amendment    61 Proposal for a regulation Article 20 – paragraph 1 – point e
Text proposed by the Commission	Amendment
(e)  adopt, each year the draft programming document referred to in Article 21 before its submission to the Commission for its opinion, and shall, following the opinion of the Commission and after having received approval by the Board of Regulators in accordance with Article 23(5)(c), adopt the programming document of the Agency by a two thirds majority its members 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.	(e)  adopt, each year by 31January the draft programming document referred to in Article 21 and submit it to the Commission, the European Parliament and the Council. It shall, following the opinion of the Commission, and in relation to the multiannual programming after presenting it to the European Parliament and after having received approval by the Board of Regulators in accordance with Article 23(5)(c), adopt the programming document of the Agency by a two thirds majority of its members and shall transmit it to the European Parliament, the Council and the Commission by 31 October. The programming document shall be adopted without prejudice to the annual budgetary procedure and shall be made public.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    62 Proposal for a regulation Article 20 – paragraph 2
Text proposed by the Commission	Amendment
2.  The Administrative Board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment of Other Servants, delegating relevant appointing authority powers to the Director and defining the conditions under which that delegation of powers can be suspended. The Director shall be authorised to sub-delegate those powers.	2.  The Administrative Board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment of Other Servants, delegating relevant appointing authority powers to the Director. The Director shall be authorised to sub-delegate those powers.
Amendment    63 Proposal for a regulation Article 20 – paragraph 3
Text proposed by the Commission	Amendment
3.  Where exceptional circumstances so require, the Administrative Board may by way of a decision temporarily suspend the delegation of the appointing authority powers to the Director and those sub-delegated by the latter and in favour of itself or delegate them to one of its members or to a staff member other than the Director.	deleted
Amendment    64 Proposal for a regulation Article 21 – paragraph 1 – subparagraph 1
Text proposed by the Commission	Amendment
Each year, the Administrative Board shall adopt a programming document containing multi-annual and annual programming, based on a draft put forward by the Director, taking into account the opinion of the Commission and in relation to multiannual programming after consulting the European Parliament. It shall forward it to the European Parliament, the Council and the Commission no later than 31 January each year.	Each year, the Administrative Board shall adopt a draft programming document containing annual and multi-annual programming in accordance with Article 32 of Commission Delegation Regulation (EU) No 1271/2013, based on a draft put forward by the Director. The Administrative Board shall adopt the programming document taking into account the opinion of the Commission, after approval of the Board of Regulators for the annual work programme of the Agency and in relation to multiannual programming after presenting it to the European Parliament. It shall forward it to the European Parliament, the Council and the Commission no later than 31 October each year.
Amendment    65 Proposal for a regulation Article 22 – paragraph 1 – subparagraph 1 – point b a (new)
Text proposed by the Commission	Amendment
	(b a)  one non-voting representative of the European Parliament;
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    66 Proposal for a regulation Article 23 – paragraph 1
Text proposed by the Commission	Amendment
1.  The Board of Regulators and sub-committees pursuant to Article 7 shall act by a simple majority of the members present, with one vote for each member, except for the opinion pursuant to paragraph 5(b) which shall be taken on the basis of a two-thirds majority of its members present .	1.  The Board of Regulators shall act by a two-thirds majority of the members present, with one vote for each member.
Amendment    67 Proposal for a regulation Article 23 – paragraph 5 – point -a (new)
Text proposed by the Commission	Amendment
	(-a)  where it considers it to be appropriate, provide comments, including proposals for amendments to the Director on draft opinions, recommendations and decisions referred to in Articles 3 to 11 and Article 14. The Director shall consider those comments before submitting the opinions, recommendations and decisions to the Board of Regulators for opinion and shall issue a written justification if he or she does not follow the position issued by the Board of Regulators.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    68 Proposal for a regulation Article 23 – paragraph 5 – point a
Text proposed by the Commission	Amendment
(a)  provide opinions to the Director on the opinions, recommendations and decisions referred to in Articles 4 to 14, which are considered for adoption. In addition, the Board of Regulators, within its field of competence, shall provide guidance to the Director in the execution of his tasks, with the exception of decisions pursuant to Article 16(6) of Regulation 1227/200138 .	(a)  provide opinions to the Director on opinions, recommendations and decisions referred to in Articles 3 to 11 and Article 14, which are considered for adoption. In addition, the Board of Regulators, within its field of competence, shall provide guidance to the Director in the execution of his or her tasks, with the exception of the Agency’s activities under Regulation 1227/2011 and provide guidance to the Agency’s working groups established pursuant to Article 30.
__________________	__________________
38 Regulation (EU) 1227/2011 of the European Parliament and of the Council of 25 October on wholesale energy market integrity and transparency, OJ L 326, 8.12.2011, p. 1.	38 Regulation (EU) 1227/2011 of the European Parliament and of the Council of 25 October on wholesale energy market integrity and transparency, OJ L 326, 8.12.2011, p. 1.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    69 Proposal for a regulation Article 23 – paragraph 5 – point c
Text proposed by the Commission	Amendment
(c)  in accordance with Article 20(1)(e) and Article 25(f) and in line with the preliminary draft budget established in accordance with Article 33(3)(1), approve the work programme of the Agency for the coming year and present it by 1 September of each year for adoption by the Administrative Board.	(c)  in accordance with Article 20(1)(e) and Article25(f) and in line with the provisional draft estimate established in accordance with Article 33 (1) to (3), approve the draft programming document including the annual work programme of the Agency and present it by 30 September of each year for adoption by the Administrative Board.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    70 Proposal for a regulation Article 24 – paragraph 1
Text proposed by the Commission	Amendment
1.  The Agency shall be managed by its Director, who shall act in accordance with the guidance referred to in Article 23(5)(a) (1) and, where provided for in this Regulation, the opinions of the Board of Regulators. Without prejudice to the respective roles of the Administrative Board and the Board of Regulators in relation to the tasks of the Director, the Director shall neither seek nor follow any instruction from any government, from the Union institutions, or from any other public or private entity or person. The Director shall be accountable to the Administrative Board. The Director may attend the meetings of the Board of Regulators as an observer.	1.  The Agency shall be managed by its Director, who shall act in accordance with the guidance referred to in the second sentence of Article 23(5)(a) and, where provided for in this Regulation, the opinions of the Board of Regulators. Without prejudice to the respective roles of the Administrative Board and the Board of Regulators in relation to the tasks of the Director, the Director shall neither seek nor follow any instruction from any government, from the Union institutions, or from any other public or private entity or person. The Director shall report to the Administrative Board. The Director may attend the meetings of the Board of Regulators as an observer.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    71 Proposal for a regulation Article 24 – paragraph 2
Text proposed by the Commission	Amendment
2.  The Director shall be appointed by the Administrative Board following a favourable opinion 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 at least three candidates proposed by the Commission, following an open and transparent selection procedure . Before appointment, the candidate selected by the Administrative Board may be invited to make a statement before the competent committee of the European Parliament and to answer questions put by its members. For the purpose of concluding the contract with the Director, the Agency shall be represented by the Chairman of the Administrative Board	2.  The Director shall be appointed by the Administrative Board following a favourable opinion of the Board of Regulators and after approval of the European Parliament, on the basis of merit as well as skills and experience relevant to the energy sector, from a list of at least three candidates proposed by the Commission, following an open and transparent selection procedure. 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 to answer questions put by its members. For the purpose of concluding the contract with the Director, the Agency shall be represented by the Chairman of the Administrative Board.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    72 Proposal for a regulation Article 25 – paragraph 1 – point c
Text proposed by the Commission	Amendment
(c)  draft , adopt and publish opinions, recommendations and decisions. Opinions, recommendations and decisions referred to in Articles 3 to 11 and 14 , shall only be adopted if they have received a favourable opinion of the Board of Regulators;	(c)  draft, adopt and publish opinions, recommendations and decisions. Opinions, recommendations and decisions referred to in Articles 3 to 11 and Article 14 shall only be adopted if they have received a favourable opinion of the Board of Regulators;
Amendment    73 Proposal for a regulation Article 25 – paragraph 1 – point f
Text proposed by the Commission	Amendment
(f)  each year prepare a draft work programme of the Agency for the following year, and shall , after the adoption of the draft by the Administrative Board submit it to the Board of Regulators, to the European Parliament and to the Commission by 31 January every year. The Director shall be responsible for implementing the programming document and reporting to the Administrative Board of its implementation;	(f)  each year prepare a draft programming document of the Agency, containing multi-annual programming and the annual work programme for the following year in accordance with Article 21. The Director shall be responsible for implementing the programming document and reporting to the Administrative Board of its implementation;
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    74 Proposal for a regulation Article 25 – paragraph 1 – point k
Text proposed by the Commission	Amendment
(k)  be responsible for deciding whether it is necessary for the purpose of carrying out the Agency's tasks in an efficient and effective manner to locate one or more staff in one or more Member States for the purpose of carrying out the Agency's tasks in an efficient and effective manner. The decision to establish a local office requires the prior consent of the Commission, the Administrative Board and the Member State or Member States concerned. The decision shall specify the scope of the activities to be carried out at that local office in a manner that avoids unnecessary costs and duplication of administrative functions of the Agency.	(k)  be responsible for deciding whether it is necessary for the purpose of carrying out the Agency's tasks in an efficient and effective manner to locate one or more staff in one or more Member States for the purpose of carrying out the Agency's tasks in an efficient and effective manner. The decision to establish a local office requires the prior consent of the Administrative Board. The decision shall specify the scope of the activities to be carried out at that local office in a manner that avoids unnecessary costs and duplication of administrative functions of the Agency;
Amendment    75 Proposal for a regulation Article 25 – paragraph 1 – point k a (new)
Text proposed by the Commission	Amendment
	(k a)  with respect to the staff of the Agency, exercise the powers referred to in Article 39(3).
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    76 Proposal for a regulation Article 29 – paragraph 5
Text proposed by the Commission	Amendment
5.  The Board of Appeal may 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.	5.  The Board of Appeal may confirm the decision, 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.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    77 Proposal for a regulation Article 29 a (new)
Text proposed by the Commission	Amendment
	Article 29 a
	Actions before the Court of Justice
	Actions for the annulment of a decision issued by the Agency pursuant to this Regulation and for failure to act within the applicable time limits, may be brought before the Court of Justice of the European Union only after exhaustion of the appeal procedure referred to in Article 29. The Agency shall take all necessary measures to comply with the judgment of the Court of Justice of the European Union.
Amendment    78 Proposal for a regulation Article 30 – paragraph 1
Text proposed by the Commission	Amendment
1.  Where justified and in particular to support the regulatory work of the Director and of the Board of Regulators on regulatory issues, the Administrative Board may establish working groups.	1.  Where justified and in particular to support the regulatory work of the Director and of the Board of Regulators on regulatory issues, the Director and the Board of Regulators may, jointly, establish working groups.
Amendment    79 Proposal for a regulation Article 30 – paragraph 2
Text proposed by the Commission	Amendment
2.  The working groups shall be composed of experts from the staff of the Agency, from national regulatory authorities and from the Commission, as necessary. The Agency shall not be responsible for the costs of the participation of experts from the staff of national regulatory authorities in the Agency working groups.	2.  The working groups shall be composed of experts from the staff of the Agency and from national regulatory authorities. Experts from the Commission shall participate as observers, if necessary. The Agency shall not be responsible for the costs of the participation of experts from the staff of national regulatory authorities in the Agency working groups.
Amendment    80 Proposal for a regulation Article 30 – paragraph 3
Text proposed by the Commission	Amendment
3.  The Administrative Board shall adopt and publish internal rules of procedure for the functioning of the working groups.	3.  The Director, after consulting the Board of Regulators, shall adopt and publish internal rules of procedure for the functioning of the working groups.
Amendment    81 Proposal for a regulation Article 30 – paragraph 3 a (new)
Text proposed by the Commission	Amendment
	3 a.  The working groups shall carry out the activities assigned to them in the programming document adopted pursuant Article 21.
Amendment    82 Proposal for a regulation Article 31 – paragraph 1 – point c
Text proposed by the Commission	Amendment
(c)  any voluntary contributions from the Member States or from the regulatory authorities, under Article 20(1)(g);	(c)  any voluntary contributions from the Member States or from the regulatory authorities, under Article 20(1)(g), without compromising the Agency's neutrality or independence;
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    83 Proposal for a regulation Article 31 – paragraph 4 a (new)
Text proposed by the Commission	Amendment
	4a.  The revenue received by the Agency shall not compromise its independence or objectivity.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    84 Proposal for a regulation Article 32 – paragraph 1
Text proposed by the Commission	Amendment
1.  Fees shall be due to the Agency for requesting an exemption decision pursuant to Article 11(1) and for decisions on cross border cost allocation provided by the Agency pursuant to Article 12 of Regulation (EU) No 347/201339 .	1.  Fees shall be due to the Agency for the following:
	(a)   exemption decisions pursuant to Article 11(1) and decisions on cross border cost allocation provided by the Agency pursuant to Article 12 of Regulation (EU) No 347/201339;
	(b)   registrations as reporting party pursuant to Article 8 of Regulation (EU) 1227/2011;
	(c)   the oversight of activities and of the cooperation of transmission and distribution system operators, including through the ENTSO for Electricity, the ENTSO for Gas, and the EU DSO entity.
__________________	__________________
39 OJ L 115, 25.4.2013, p. 39.	39 OJ L 115, 25.4.2013, p. 39.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    85 Proposal for a regulation Article 32 – paragraph 2
Text proposed by the Commission	Amendment
2.  The fees referred to in paragraph 1 shall be set by the Commission.	2.  The fees referred to in paragraph 1 shall be set by the Commission after consulting the Administrative Board. The Commission shall determine the level of the fees and charges and the manner in which they are to be paid. The level of the fees and charges shall be fixed such as to ensure that the revenue in respect thereof is sufficient to cover the full cost of the services delivered. The Commission shall evaluate, when necessary, the level of the fees and charges in light of the need to impose such fees and charges.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    86 Proposal for a regulation Article 33 – paragraph 1 a (new)
Text proposed by the Commission	Amendment
	1a.  The provisional draft estimate shall be based on the objectives and expected results of the annual programming document referred to in Article 21(1) and shall take into account the financial resources necessary to achieve those objectives and expected results, in accordance with the principle of performance-based budgeting.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    87 Proposal for a regulation Article 33 – paragraph 8 a (new)
Text proposed by the Commission	Amendment
	8a.  By ... [12 months after the date of entry into force of this Regulation], the Commission shall evaluate the Agency’s assigned budget with the aim of securing adequate funding and human resources allowing the Agency to fulfil its role of working towards an internal energy market and contributing to energy security to the benefit of consumers in the Union. The Commission shall, if appropriate, submit proposals to amend the Agency’s budget.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    88 Proposal for a regulation Article 44 – paragraph 3
Text proposed by the Commission	Amendment
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.	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 or other translation service providers in accordance with the procurement rules and in accordance with the relevant financial rules.
Justification
Amendment necessary for pressing reasons relating to the internal logic of the text or inextricably linked to other admissible amendments
Amendment    89 Proposal for a regulation Article 45 – paragraph 1
Text proposed by the Commission	Amendment
1.  No later than five years after the entry into force of the present regulation, and every five years thereafter, the Commission, with the assistance of an independent external expert, shall carry out an evaluation to assess the Agency's performance in relation to its objectives, mandate and tasks. The evaluation shall in particular address the possible need to modify the mandate of the Agency, and the financial implications of any such modification.	1.  No later than five years after the entry into force of the present regulation, and every five years thereafter, the Commission, with the assistance of an independent external expert, shall carry out an evaluation to assess the Agency's performance in relation to its objectives, mandate and tasks. The evaluation shall in particular address the possible need to modify the mandate of the Agency, and the financial implications of any such modification, in accordance with the principle of performance-based budgeting.
Amendment    90 Proposal for a regulation Article 45 – paragraph 2
Text proposed by the Commission	Amendment
2.  Where the Commission considers that the continuation of the Agency is no longer justified with regard to its assigned objectives, mandate and tasks, it may propose that this Regulation be amended accordingly or repealed	2.  Where the Commission considers that the continuation of the Agency is no longer justified with regard to its assigned objectives, mandate and tasks, it shall consult the Board of Regulators. The Board of Regulators shall issue an opinion on the future role of the Agency within 12 months of receiving the Commission request. The Commission, while taking duly into account the opinion of the Board of Regulators, may propose that this Regulation is amended accordingly or repealed.

• [1]  OJ C 288, 31.8.2017, p. 91.
• [2]  OJ C 342, 12.10.2017, p. 79.
• [3]  OJ C 77, 28.3.2002, p. 1.

EXPLANATORY STATEMENT

Introduction

On 30 November 2016, the European Commission presented the “Clean Energy for All Europeans” package of proposed measures to keep the European Union competitive, as the clean energy transition is changing the global energy landscape. As part of this package, the Commission proposed a recast of Regulation (EU) No 713/2009 establishing the Agency for the Cooperation of Energy Regulators (ACER).

The proposal aims to adapt the legal framework for ACER to changes in the energy markets and addresses the need for enhanced regional cooperation. It gives ACER a stronger role in the development of network codes and the coordination of regional decision-making. It furthermore assigns ACER a number of new tasks related to the Regional Operational Centres (ROCs) that are to be established, the supervision of Nominated Electricity Market Operators (NEMOs) and the assessment of generation adequacy and risk preparedness.

The rapporteur believes that ACER will play a central role in the implementation of the clean energy package and in ensuring a well-functioning energy market to the benefit of all EU energy consumers (private households, SMEs, large-scale businesses and industries). He therefore broadly welcomes the Commission’s proposal and the increased scope of responsibilities it foresees for the Agency.

However, the rapporteur considers that the proposed Regulation needs to be improved and clarified in some respects to further strengthen the Agency’s ability to effectively fulfil its tasks.

Regional regulatory governance

The Commission’s proposal under Article 5(2) provides for the development of proposals for terms and conditions or methodologies for the implementation of network codes and guidelines, which require regulatory approval by all regulatory authorities or by all regulators of the concerned region, to be submitted for revision and approval to the Agency.

The Agency is best placed to deal with proposals for terms and conditions or methodologies, which are to be applied EU-wide, i.e. those which require regulatory approval by all regulatory authorities. For regional terms and conditions or methodologies, the primary responsibility should rest with the regulatory authorities of the region concerned and they should only referred for decision to the Agency, where the issue at stake has a tangible impact on the internal energy market, where the concerned regulatory authorities fail to agree or upon their joint request.

Therefore, the amendments proposed by the rapporteur are intended to differentiate the decision making process. This entails an assessment of the impact of the joint regional proposals on the internal energy market. Where the proposals do not have a tangible impact on the internal energy market, the decisions are taken by the regulators of the region concerned after having consulted ACER’s Director. Subsequently, after the Agency has been notified of the joint agreements, the Agency shall issue a recommendation where those agreements are not consistent with the objectives and the provisions of the Directive and Regulation and the network codes and guidelines.

ACER’s oversight of EU-wide and regional entities in the electricity and gas sectors

With greater emphasis put on regional and pan-European cooperation and coordination, effective oversight at this level becomes essential to ensure the completion and well-functioning of the Internal Energy Market.

The Agency’s oversight activity has, in the past, mainly focused on the ENTSOs, but has more recently been expanded to include the Nominated Electricity Market Operators (NEMOs) and should be further extended under the proposed recast to cover the Regional Operational Centres (ROCs). In fact, these entities will have operational responsibilities, which make effective oversight even more relevant. Compliance of these entities with their obligations under the legislation must therefore be ensured. Furthermore, effective oversight rests on the Agency having access and being able to require the necessary information.

When the Agency detects that one of the ENTSOs, a NEMO, a ROC – or any other entity operating at cross-border, regional or EU-wide level, e.g. the future EU DSO entity - does not comply with the objectives and the provisions in the Electricity Directive and Regulation and the Network Codes and Guidelines, thus jeopardising the well-functioning of the Internal Energy Market, the Agency should be able to intervene with a binding decision.

ACER’s ability to obtain the information it requires to perform its monitoring function

ACER already has extensive monitoring responsibilities under the current Regulation 713/2009. These are further expanded by the recast proposal to cover also the performance of ROCs and NEMOs. However, these monitoring responsibilities are not matched by general powers to request and obtain the relevant information.

Therefore, the Rapporteur tabled amendments giving the Agency the power to request any information it requires to effectively carry out its tasks from market participants and other entities, if necessary trough binding decisions. To avoid the duplication of reporting obligations for energy market participants, that information should normally be provided by the national regulatory authorities, the ENTSOs, ROCs, the EU DSO Entity and NEMOs, which are closest to the energy market participants and should take into account already existing statistics. However, as a last resort, the Agency should be able to address a duly justified and reasoned request for information directly to an energy market participant where a national regulatory authority does not or cannot provide such information in a timely fashion. Member States’ national regulatory authorities should be obliged to assist the Agency in enforcing such direct requests.

ACER’s lack of financial and human resources

The rapporteur is extremely concerned by the persistent shortage of funding for the Agency, which is seriously undermining its ability to fulfil its existing statutory mandate, in particular with regard to the REMIT Regulation. If this situation is not addressed in the context of the 2018 budget, the completion of the internal energy market may be delayed and the integrity and transparency of wholesale energy trading put at risk, imposing higher costs to EU energy consumers. Furthermore, the additional tasks and responsibilities for ACER need to be accompanied by an adequate reinforcement of ACER’s resources.

In light of the ongoing restrictions in the EU Budget, one way to overcome the current budgetary problems of the Agency would be to allow it to charge fees for some of its activities. Therefore, the rapporteur proposes amendments allowing ACER to collect fees for the registration of Registered Reporting Mechanisms, reporting trade and fundamental data under REMIT, and for the oversight of TSOs’ activities, including their cooperation through the ENTSOs.

Other issues

The rapporteur also proposes an Article which specifies ACER’s decision making procedure to ensure that decisions are fully reasoned and justified to allow judicial review. The decisions must be made public, whilst preserving the confidentiality of commercially sensitive information. Finally, a number of amendments are proposed with regard to the organisation of the Agency, among which are amendments to preserve the Director’s power to take certain management decisions, to ensure the independence of ACER’s Administrative Board from political instructions and to adjust certain procedures.

ANNEX: LIST OF ENTITIESFROM WHOM THE RAPPORTEUR HAS RECEIVED INPUT

The following list is drawn up on a purely voluntary basis under the exclusive responsibility of the rapporteur. The rapporteur has received input from the following entities in the preparation of the draft report:

ABB
ACER, Director
ACER, Administrative Board
ACER, Board of Regulators
Amprion
BEUC
Bundesnetzagentur
Business Europe
Climate Action Network (CAN) Europe
CEDEC - European federation of Local Energy Companies
CEER
Coalition France pour l'efficacité énergétique (CFEE)
Danish Energy
Danish Industry
Danish Ministry of Energy, Utilities and Climate
EDSO for Smart Grids
Energie-Control Austria
Energinet
Energitilsynet
ENGIE
ENTSO-E
EPEXSPOT
European Commission, DG ENER
European Commission, DG CLIMA
EVN
German Association of Local Public Utilities
German Federal Ministry for Economic Affairs and Energy
IBERDROLA
Institut du développement durable et des relations internationales (IDDRI)
Nordpool
Orgalime
PKA
Shell
SolarPower Europe
Statnett
Statoil
T&D Europe
WindEurope

ANNEX: LETTER FROM THE COMMITTEE ON LEGAL AFFAIRS

D(2017)31009

Jerzy Buzek

Chair, Committee on Industry, Research and Energy

PHS 08B046

Brussels

Subject:  Proposal for a regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators (recast)

  (COM(2016)0863 – C8‑0494/2016 – 2016/0378(COD))

Dear Chair,

The Committee on Legal Affairs has examined the proposal referred to above, pursuant to Rule 104 on Recasting, as introduced into the Parliament's Rules of Procedure.

Paragraph 3 of that Rule reads as follows:

“If the committee responsible for legal affairs considers that the proposal does not entail any substantive changes other than those identified as such in the proposal, it shall inform the committee responsible.

In such a case, over and above the conditions laid down in Rules 169 and 170, amendments shall be admissible within the committee responsible for the subject-matter only if they concern those parts of the proposal which contain changes.

However, amendments to parts of the proposal which remain unchanged may, by way of exception and on a case-by-case basis, be accepted by the Chair of the committee responsible for the subject matter if he or she considers that this is necessary for pressing reasons relating to the internal logic of the text or because the amendments are inextricably linked to other admissible amendments. Such reasons must be stated in a written justification to the amendments.”

Following the opinion of the Consultative Working Party of the legal services of the Parliament, the Council and the Commission, which has examined the recast proposal, and in keeping with the recommendations of the rapporteur, the Committee on Legal Affairs considers that the proposal in question does not include any substantive changes other than those identified as such in the proposal and by the Consultative Working Party and that, as regards the codification of the unchanged provisions of the earlier acts with those changes, the proposal contains a straightforward codification of the existing texts, without any change in their substance.

In conclusion, at its meeting of 13 July 2017, the Committee on Legal Affairs, by 20 votes in favour and 3 abstentions[1], recommends that the Committee on Industry, research and Energy, as the committee responsible, can proceed to examine the above proposal in accordance with Rule 104.

Yours sincerely,

Pavel Svoboda

Encl.: Report signed by the President of the Consultative Working Party.

• [1]  The following Members were present: Isabella Adinolfi, Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Lynn Boylan, Daniel Buda, Jean-Marie Cavada, Kostas Chrysogonos, Mady Delvaux, Angel Dzhambazki, Rosa Estaràs Ferragut, Lidia Joanna Geringer de Oedenberg, Heidi Hautala, Mary Honeyball, Sylvia-Yvonne Kaufmann, Gilles Lebreton, António Marinho e Pinto, Angelika Niebler, Julia Reda, Evelyn Regner, Jens Rohde, Pavel Svoboda, Axel Voss, Tadeusz Zwiefka.

ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION

	CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES

Brussels, 20 June 2017

OPINION

  FOR THE ATTENTION OF  THE EUROPEAN PARLIAMENT

    THE COUNCIL

    THE COMMISSION

Proposal for a regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators

COM(2016)0863 of 23.2.2017 – 2016/0378(COD)

Having regard to the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission met on 25 April and 3 May 2017 for the purpose of examining the aforementioned proposal submitted by the Commission.

At those meetings[1], an examination of the proposal for a Regulation of the European Parliament and of the Council recasting Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators resulted in the Consultative Working Party’s establishing, by common accord, that the following should have been marked with the grey-shaded type generally used for identifying substantive changes:

- in Article 2(d), the reference to Article 8;

- the deletion of paragraphs 7 and 8 of Article 6 of Regulation (EC) No 713/2009;

- in Article 20(1)(e), the deletion of the words 'before 30 September';

- in Articles 23(5)(a) and 25(c), the reference to Articles 3 to 11;

- in Articles 26(3), the sentence 'The Board of Appeal shall adopt and publish its rules of procedure';

- in Article 29(1), the replacement of the current reference to 'Articles 7, 8 or 9' with a reference to 'Articles 4 to 14';

- in Article 33(1), the deletion of the words 'by 15 February';

- in Article 33(3), the replacement of the words 'by 31 March' with the words 'by 31 January each year';

- in Article 33(6), the adding of the words 'Council in its' and 'role';

- the entire wording of Article 33(8);

- the entire wordings of Article 35(1) and (2);

- in Article 35(4), the replacement of the word 'Director' with the words 'accounting officer';

- in Article 35(6), the replacement of the word 'Director' with the words 'Agency's accounting officer';

- in Article 35(7), the adding of the words 'by 15 November of year N+1';

- in Article 35(8), the replacement of the words '15 October' with the words '30 September of year N+1';

- in Article 43(1), the deletion of the words 'if relevant';

- in Article 45(3), the words 'together with its conclusions to the European Parliament, the Council'.

In consequence, examination of the proposal has enabled the Consultative Working Party to conclude, without dissent, that the proposal does not comprise any substantive amendments other than those identified as such. The Working Party also concluded, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing legal text, without any change in its substance.

F. DREXLER      H. LEGAL      L. ROMERO REQUENA

Jurisconsult      Jurisconsult      Director General

• [1]   The Consultative Working Party worked on the basis of the English language version of the proposal, being the master-copy language version of the text under discussion.

OPINION of the Committee on Budgets (31.8.2017)

for the Committee on Industry, Research and Energy

on the proposal for a regulation of the European Parliament and of the Council establishing a European Union Agency for the Cooperation of Energy Regulators (recast)
(COM(2016)0863 – C8‑0494/2016 – 2016/0378(COD))

Rapporteur: Jens Geier

AMENDMENTS

The Committee on Budgets calls on the Committee on Industry, Research and Energy, as the committee responsible, to take into account the following amendments:

Amendment    1 Proposal for a regulation Recital 29
Text proposed by the Commission	Amendment
(29)  The Agency should be mainly financed from the general budget of the Union, by fees and by voluntary contributions. In particular, the resources currently pooled by regulatory authorities for their cooperation at  Union  level should continue to be available to the Agency. The   Union  budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the Union are concerned. Moreover, the auditing of accounts should be undertaken by  an independent external auditor  in accordance with Article  107  of  Commission Delegated Regulation (EU) No 1271/201333.	(29)  The Agency should be mainly financed from the general budget of the Union, by fees and by voluntary contributions, without compromising the Agency's neutrality or independence. In particular, the resources currently pooled by regulatory authorities for their cooperation at Union level should continue to be available to the Agency. The Union budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the Union are concerned. Moreover, the auditing of accounts should be undertaken by an independent external auditor in accordance with Article 107 of Commission Delegated Regulation (EU) No 1271/2013 33
_________________
33 Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).	33 Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    2 Proposal for a regulation Recital 29 a (new)
Text proposed by the Commission	Amendment
	(29a)  The Agency should set its fees in a transparent, fair, non-discriminatory and uniform manner. The fees should not jeopardise the competitiveness of the industry concerned or the independence and impartiality of the Agency.
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    3 Proposal for a regulation Recital 29 b (new)
Text proposed by the Commission	Amendment
	(29b)  The Agency's budget should be prepared in accordance with the principle of performance-based budgeting, taking into account its objectives and the expected results of its tasks.
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    4 Proposal for a regulation Article 1 – paragraph 2 – subparagraph 1 a (new)
Text proposed by the Commission	Amendment
	The Agency shall perform it functions in an independent and objective manner.
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    5 Proposal for a regulation Article 19 – paragraph 8
Text proposed by the Commission	Amendment
8.  The members of the Administrative Board shall undertake to act independently and objectively in the public interest For that purpose, each member shall make a written declaration of commitments and a written declaration of interests indicating either the absence of any interest which may be considered prejudicial to his independence or any direct or indirect interest which might be considered prejudicial to his independence. Those declarations shall be made public annually.	8.  Without prejudice to the role of the members appointed by the Commission, the members of the Administrative Board shall undertake to act independently and objectively in the public interest, without seeking or following any political instructions. For that purpose, each member shall make a written declaration of commitments and a written declaration of interests indicating either the absence of any interest which may be considered prejudicial to his independence or any direct or indirect interest which might be considered prejudicial to his independence. Those declarations shall be made public annually.
Justification
Protection of members of the administrative board from political instruction should be maintained while recognising the special role of the Commission-appointed members. This AM is necessary for pressing reasons relating to the internal logic of the governance of the Agency.
Amendment    6 Proposal for a regulation Article 21 – paragraph 3 – subparagraph 2 a (new)
Text proposed by the Commission	Amendment
	In the context of a substantial amendment as referred to in the second subparagraph, reprioritisation of activities shall always be considered before assigning additional financial and human resources.
Amendment    7 Proposal for a regulation Article 31 – paragraph 1 – point c
Text proposed by the Commission	Amendment
(c)  any voluntary contributions from the Member States or from the regulatory authorities, under Article 20(1)(g);	(c)  any voluntary contributions from the Member States or from the regulatory authorities, under Article 20(1)(g), without compromising the Agency's neutrality or independence;
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    8 Proposal for a regulation Article 31 – paragraph 4 a (new)
Text proposed by the Commission	Amendment
	4a.  The revenue received by the Agency shall not compromise its independence or objectivity.
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    9 Proposal for a regulation Article 32 – paragraph 1
Text proposed by the Commission	Amendment
1.  Fees shall be due to the Agency for requesting an exemption decision pursuant to Article 11(1) and for decisions on cross border cost allocation provided by the Agency pursuant to Article 12 of Regulation (EU) No 347/201339.	1.  Fees shall be due to the Agency for each of the following:
	(a)   requesting an exemption decision pursuant to Article 11(1) of this Regulation;
	(b)   requesting decisions on cross-border cost allocation provided by the Agency pursuant to Article 12 of Regulation (EU) No 347/201339;
	(c)   registration of reporting parties in accordance with the third subparagraph of Article 11(1) of Commission Implementing Regulation (EU) No 1348/201439a;
	(d)   monitoring the execution of the tasks of the ENTSO for Electricity and of the ENTSO for Gas pursuant to Article 4(2) of this Regulation.
__________________	__________________
39 OJ L 115, 25.4.2013, p. 39.	39 OJ L 115, 25.4.2013, p. 39.
	39a Commission Implementing Regulation (EU) No 1348/2014 of 17 December 2014 on data reporting implementing Article 8(2) and Article 8(6) of Regulation (EU) No 1227/2011 of the European Parliament and of the Council (OJ L 363, 18.12.2014, p. 121).
Justification
The possibility to charge fees to Registered Reporting Mechanisms under REMIT and to TSOs would be an efficient manner for overcoming the current shortcoming of financial resources and should be given to the Agency. This AM is necessary for pressing reasons relating to the internal logic of the budgetary capacity of the Agency. This may allow the Agency to be to fully operate its new tasks assigned by REMIT and Regulation (EU) No 347/2013.
Amendment    10 Proposal for a regulation Article 33 – paragraph 1 a (new)
Text proposed by the Commission	Amendment
	1a.  The provisional draft estimate shall be based on the objectives and expected results of the annual programming document referred to in Article 21(1) and shall take into account the financial resources necessary to achieve those objectives and expected results, in accordance with the principle of performance-based budgeting.
Justification
This amendment is inextricably linked to other admissible amendments suggested by the rapporteur to the Commission proposal.
Amendment    11 Proposal for a regulation Article 44 – paragraph 3
Text proposed by the Commission	Amendment
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.	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 or other translation service providers in accordance with the procurement rules and within the limits established by the relevant financial rules.
Justification
The CdT may impose delays in translations jeopardising the work of the Agency. Given the current lack of financial resources, the Agency should be allowed to resort to cheaper alternatives in order to carry out its activities, it is necessary that ACER be able to outsource translation service.
Amendment    12 Proposal for a regulation Article 45 – paragraph 1
Text proposed by the Commission	Amendment
1.  No later than five years after the entry into force of the present regulation, and every five years thereafter, the Commission, with the assistance of an independent external expert, shall carry out an evaluation to assess the Agency's performance in relation to its objectives, mandate and tasks. The evaluation shall in particular address the possible need to modify the mandate of the Agency, and the financial implications of any such modification.	1.  No later than five years after the entry into force of the present regulation, and every five years thereafter, the Commission, with the assistance of an independent external expert, shall carry out an evaluation to assess the Agency's performance in relation to its objectives, mandate and tasks. The evaluation shall in particular address the possible need to modify the mandate of the Agency, and the financial implications of any such modification, in accordance with the principle of performance-based budgeting.
Justification
The principle of performance-based budgeting is one of the political priorities developed by the Commission and endorsed by Parliament. This AM should reflect the overall institutional logic of a better use of the EU Budget.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title	European Union Agency for the Cooperation of Energy Regulators (recast)
References	COM(2016)0863 – C8-0494/2016 – 2016/0378(COD)
Committee responsible        Date announced in plenary	ITRE 19.1.2017
Opinion by        Date announced in plenary	BUDG 19.1.2017
Rapporteur        Date appointed	Jens Geier 12.1.2017
Date adopted	30.8.2017
Result of final vote	+: –: 0:	34 2 1
Members present for the final vote	Jonathan Arnott, Jean Arthuis, Richard Ashworth, Reimer Böge, Lefteris Christoforou, Gérard Deprez, Manuel dos Santos, André Elissen, José Manuel Fernandes, Eider Gardiazabal Rubial, Jens Geier, Ingeborg Gräßle, Iris Hoffmann, Monika Hohlmeier, John Howarth, Bernd Kölmel, Zbigniew Kuźmiuk, Vladimír Maňka, Siegfried Mureşan, Liadh Ní Riada, Jan Olbrycht, Younous Omarjee, Urmas Paet, Paul Rübig, Petri Sarvamaa, Jordi Solé, Patricija Šulin, Indrek Tarand, Isabelle Thomas, Inese Vaidere, Monika Vana, Daniele Viotti, Tiemo Wölken, Marco Zanni
Substitutes present for the final vote	Nicola Caputo, Anneli Jäätteenmäki, Tomáš Zdechovský

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

34	+
ALDE	Jean Arthuis, Gérard Deprez, Anneli Jäätteenmäki, Urmas Paet
ECR	Richard Ashworth, Bernd Kölmel, Zbigniew Kuźmiuk
ENF	Marco Zanni
GUE/NGL	Younous Omarjee
PPE	Reimer Böge, Lefteris Christoforou, José Manuel Fernandes, Ingeborg Gräßle, Monika Hohlmeier, Siegfried Mureşan, Jan Olbrycht, Paul Rübig, Petri Sarvamaa, Patricija Šulin, Inese Vaidere, Tomáš Zdechovský
S&D	Nicola Caputo, Eider Gardiazabal Rubial, Jens Geier, Iris Hoffmann, John Howarth, Vladimír Maňka, Isabelle Thomas, Daniele Viotti, Tiemo Wölken, Manuel dos Santos
Verts/ALE	Jordi Solé, Indrek Tarand, Monika Vana

2	-
EFDD	Jonathan Arnott
ENF	André Elissen

1	0
GUE/NGL	Liadh Ní Riada

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

PROCEDURE – COMMITTEE RESPONSIBLE ()

Title	European Union Agency for the Cooperation of Energy Regulators (recast)
References	COM(2016)0863 – C8-0494/2016 – 2016/0378(COD)
Date submitted to Parliament	30.11.2016
Committee responsible        Date announced in plenary	ITRE 19.1.2017
Committees asked for opinions        Date announced in plenary	BUDG 19.1.2017	ECON 19.1.2017	IMCO 19.1.2017
Not delivering opinions        Date of decision	ECON 15.12.2016	IMCO 25.1.2017
Rapporteurs        Date appointed	Morten Helveg Petersen 25.1.2017
Discussed in committee	24.4.2017	11.7.2017	12.10.2017
Date adopted	21.2.2018
Result of final vote	+: –: 0:	52 7 0
Members present for the final vote	Zigmantas Balčytis, Bendt Bendtsen, Xabier Benito Ziluaga, José Blanco López, Jonathan Bullock, Cristian-Silviu Buşoi, Jerzy Buzek, Angelo Ciocca, Edward Czesak, Jakop Dalunde, Pilar del Castillo Vera, Christian Ehler, Fredrick Federley, Ashley Fox, Adam Gierek, Theresa Griffin, András Gyürk, Rebecca Harms, Hans-Olaf Henkel, Eva Kaili, Kaja Kallas, Barbara Kappel, Krišjānis Kariņš, Jeppe Kofod, Peter Kouroumbashev, Zdzisław Krasnodębski, Miapetra Kumpula-Natri, Christelle Lechevalier, Janusz Lewandowski, Paloma López Bermejo, Edouard Martin, Nadine Morano, Dan Nica, Angelika Niebler, Morten Helveg Petersen, Miroslav Poche, Paul Rübig, Massimiliano Salini, Algirdas Saudargas, Sven Schulze, Neoklis Sylikiotis, Dario Tamburrano, Evžen Tošenovský, Claude Turmes, Vladimir Urutchev, Kathleen Van Brempt, Henna Virkkunen, Martina Werner, Lieve Wierinck, Hermann Winkler, Anna Záborská, Carlos Zorrinho
Substitutes present for the final vote	Cornelia Ernst, Gerben-Jan Gerbrandy, Françoise Grossetête, Werner Langen, Dominique Riquet, Davor Škrlec
Substitutes under Rule 200(2) present for the final vote	Jan Keller
Date tabled	26.2.2018

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

52	+
ALDE	Fredrick Federley, Gerben-Jan Gerbrandy, Kaja Kallas, Morten Helveg Petersen, Dominique Riquet, Lieve Wierinck
ECR	Edward Czesak, Ashley Fox, Hans-Olaf Henkel, Zdzisław Krasnodębski, Evžen Tošenovský
EFDD	Dario Tamburrano
ENF	Barbara Kappel
PPE	Bendt Bendtsen, Cristian-Silviu Buşoi, Jerzy Buzek, Pilar del Castillo Vera, Christian Ehler, Françoise Grossetête, András Gyürk, Krišjānis Kariņš, Werner Langen, Janusz Lewandowski, Nadine Morano, Angelika Niebler, Paul Rübig, Massimiliano Salini, Algirdas Saudargas, Sven Schulze, Vladimir Urutchev, Henna Virkkunen, Hermann Winkler, Anna Záborská
S&D	Zigmantas Balčytis, José Blanco López, Adam Gierek, Theresa Griffin, Eva Kaili, Jan Keller, Jeppe Kofod, Peter Kouroumbashev, Miapetra Kumpula-Natri, Edouard Martin, Dan Nica, Miroslav Poche, Kathleen Van Brempt, Martina Werner, Carlos Zorrinho
VERTS/ALE	Jakop Dalunde, Rebecca Harms, Davor Škrlec, Claude Turmes

7	-
EFDD	Jonathan Bullock
ENF	Angelo Ciocca, Christelle Lechevalier
GUE/NGL	Xabier Benito Ziluaga, Cornelia Ernst, Paloma López Bermejo, Neoklis Sylikiotis

0	0

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention