# EUR-Lex - 52011PC0540 - EN

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# 52011PC0540

**Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL setting up an information exchange mechanism with regard to intergovernmental agreements between Member States and third countries in the field of energy /* COM/2011/0540 final - 2011/0238 (COD) */**

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EXPLANATORY MEMORANDUM

The European Council of 4 February 2011
concluded that there is a need for better coordination of Union and Member
States' activities with a view to ensuring consistency and coherence in the
EU’s external energy relations with key producer, transit, and consumer
countries. The Council therefore invited Member States to inform from 1 January
2012 the Commission of all their new and existing bilateral energy agreements
with third countries.[1]

This proposal transforms the conclusions of
the European Council into a mechanism with detailed procedures for the exchange
of information between Member States and the Commission with regard to
intergovernmental agreements, i.e., legally binding agreements between Member
States and third countries which are likely to have an impact on the operation or
the functioning of the internal market for energy or on the security of energy
supply in the Union.

The proposal accompanies the Commission
Communication on security of energy supply and international cooperation - "The
EU Energy Policy: Engaging with Partners beyond Our Borders."[2]

1.
POLICY OBJECTIVE

The share of imported energy in the Union is
constantly rising.[3] The Member States and energy companies consequently seek new energy
sources outside of the EU. Negotiations with powerful energy suppliers in third
countries typically demand political support in the form of the conclusion of intergovernmental
agreements between Member States and third countries. These intergovernmental
agreements are normally negotiated bilaterally and are
often the basis for more detailed commercial contracts.

Following the liberalisation of the
electricity and gas markets in the European Union, in particular with the
implementation of the Third Energy Package[4],
the Member States have introduced significant changes in their energy
legislation. Complying with these legislative changes is not always in the
commercial interest of third country energy suppliers. Facing a possible supply
shortage, Member States are under increasing pressure to accept regulatory
concessions in their intergovernmental agreements with third countries which
are incompatible with Union energy law. Such regulatory concessions threaten
the operation and proper functioning of the Union internal market for energy.

For example,
when an intergovernmental agreement is concluded to support a specific gas
pipeline project, it should not include any clauses that reserve the right of a
particular shipper to contract for the full capacity or part of the capacity of
the pipeline, unless such a clause is allowed under Union law subsequent to a
favourable decision taken by the relevant authorities at national and Union level
concerning an exemption from the third party access requirements of the Union energy
legislation and subject to conditions specified in this legislation. Otherwise,
the agreement will be contrary to Union law and as a result it will not provide
legal certainty for investors. Furthermore, the pipeline project will not be
eligible for possible EU funding. As Member States cannot simply unilaterally
modify intergovernmental agreements concluded with third countries in case
certain provisions therein are found to infringe internal market rules,
intergovernmental agreements that contain unlawful provisions put Member States
into a situation of conflicting legal obligations and threaten
the operation and proper functioning of the Union internal market for energy.
Such agreements shall therefore not be signed by the
Member States.

Furthermore, as
was demonstrated during the gas dispute between the Russian Federation and
Ukraine in January 2009, when the internal market is not functioning properly,
the EU is more vulnerable to security of supply risks. Therefore it is
important that the Member States and the Commission are aware of the amount and
sources of energy imported.

To address these problems, it is important
to improve the exchange of information between Member States and between Member
States and the Commission on existing, provisionally applied and future
intergovernmental agreements. This will facilitate the coordination at Union level
and the effective implementation of the energy policy of the Union. In addition
it will enhance the negotiating position of individual Member States vis-à-vis
third countries to ensure security of supply, the proper
operation and functioning of the Union internal energy market and create legal
certainty for investment decisions and make possible potential EU funding of
the project. Improved transparency with regard to intergovernmental
agreements will also ultimately increase consistency
and coherence, in a spirit of solidarity, in the Union's external energy relations
and allow Member States to better benefit from the political and economic
weight of the Union and the expertise of the Commission with respect to Union
law. For this reason it is foreseen that Member States may request assistance
from the Commission during the negotiations. The new instrument will therefore
allow the Commission to support the Member States effectively.

2.
POLICY OPTIONS AND CONSULTATIONS WITH INTERESTED
PARTIES

Given
the limited economic and social impacts
of this proposal, it was not considered necessary to carry out a formal impact assessment. Taking into
account the stated policy objectives, the Commission nevertheless evaluated a
number of options to achieve the proper transposition of the European Council
conclusions. A public consultation on the external dimension
of the EU energy policy took place between 21 December
2010 and 7 March 2011. The consultation raised questions concerning the need
for coordination between Member States and the
Commission with regard to intergovernmental agreements
to ensure security of supply and the proper operation
and functioning of the Union internal energy market. In total, over 90 replies
were received. The responses received highlighted the important role of the
Union in promoting a reliable legal and institutional framework in order to
achieve mutually advantageous relations with its main energy suppliers and
transit countries. A meeting with energy experts was also held on 6 April 2011 in
Brussels.

The status quo

The Commission is currently not aware of
most intergovernmental agreements between Member States and third countries as
no obligation exists to inform the Commission comprehensively about these
agreements.[5]
The Commission very roughly estimates that around 30 intergovernmental
agreements may exist between Member States and third countries on oil and
around 60 on gas.[6]
These are likely to relate either to the volumes of oil or gas imported into
the Union from third countries or to the conditions for the supply of these
volumes through fixed infrastructure.With regard to intergovernmental agreements
between Member States and third countries on electricity, the total number is
estimated to be lower. These agreements include the so called BRELL RING
agreement between Belarus, Russia, Estonia, Lithuania and Latvia) on operating
and use of the networks in the Baltic States. Similar agreements are likely to
exist also with Balkan countries where the networks of third countries are
synchronously connected with the Union Member States. A precise approximation
on how regularly these intergovernmental agreements are modified or how many new
ones may be concluded is not possible. The Member States also lack a mechanism
to keep abreast of developments in the 27 Member States in this field. While some transparency requirements have already
been adopted,[7]
these only relate to  the gas sector (existing intergovernmental agreements and
new agreements when concluded) and to information exchange between the
Commission and the Member States (no exchange between the Member States
themselves) and, already for these reasons, fall short of transposing the European Council conclusions. The status quo is therefore unsatisfactory and the Commission considers it necessary to suggest the
establishment of a new more detailed and comprehensive information exchange
mechanism.

A legal instrument or voluntary
measures

Only clear obligations with regard to
exchange of information on intergovernmental agreements between the Member
States and between the Member States and the Commission are capable of ensuring
the necessary transparency required for coordination at
Union level. While the proposed mechanism also
incorporates soft law elements such as the joint development of standard
clauses, voluntary measures on their own have so far not proven to be sufficient
to guarantee the type of exchange of information necessary to ensure that
agreements concluded between Member States and third countries are lawful and
do not threaten the proper operation
and functioning of the Union internal energy market. A
legal instrument for mandatory exchange of information
is therefore the only option that will guarantee that the stated policy
objectives are met, most appropriately in the form of a
Decision.[8]

Scope

In order to accurately transpose the
Council conclusions, it is proposed that the Decision covers all existing, provisionally
applied and new intergovernmental agreements which are
likely to have an impact on the operation or the functioning of the internal
market for energy or on the security of energy supply in the Union as these two
issues are intrinsically linked. It is particularly important that the Decision comprises all intergovernmental agreements which have an
impact on the supply of gas, oil or electricity through fixed infrastructure
(such as pipelines and networks) or on the overall amounts of energy imported
into the EU.

Appropriate timing for exchange of
information

Early information to the other Member
States and to the Commission on future intergovernmental agreements appears to
be crucial. Full knowledge of the content of the intergovernmental agreements
already in force is also necessary. It is therefore considered pertinent that
Member States first of all inform the Commission of their intention to open
negotiations and communicate the ratified version of the intergovernmental
agreement. The Commission should have a central role in promptly disseminating
this information to the other Member States taking into account requests of
Member States for confidential treatment.

However, without exchange of information
already during the course of the negotiations, it will be difficult to influence
future intergovernmental agreements towards conformity with the Union energy
legislation and the Union policy on security of supply. Importantly, there would
be a missed opportunity to provide the necessary legal certainty concerning the
status and validity of intergovernmental agreements for major energy projects
and consequent funding. This would be detrimental for Union investments and therefore
Union security of energy supply.

The existing ex-post control mechanism in
the form of infringement procedures does not address this problem in the most
efficient way.[9]
This is because, once intergovernmental agreements have been signed and even more once they are ratified, Member States
cannot unilaterally modify them in case certain provisions therein are found to
infringe internal market rules but would need to renegotiate the intergovernmental agreements with the third
countries in question. Continuous contacts and exchange
of information during the negotiations and the possibility for a compatibility
check on request of the Member State concerned or of the Commission before the intergovernmental
agreement is signed is therefore considered essential. In addition, it is
proposed that the Member States may request the assistance of the Commission
services during the negotiations. The experience gained through these exchange
mechanisms should enable the joint development of voluntary
standard clauses that Member States can use in future intergovernmental
agreements. The use of such standard clauses would help
preventing conflicts of intergovernmental agreements with Union law.

Mandatory ex-ante control or more
flexible compatibility check

It is not proposed to create an exhaustive mandatory
ex-ante control mechanism applicable to all relevant intergovernmental agreements
as such a mechanism would put a too heavy burden on Member States and would
delay the conclusion of all future intergovernmental agreements by at least a
few months.

Instead, it is considered sufficient to
provide a more flexible compatibility control mechanism where the Commission,
on its own request or on request of the Member State that is negotiating the intergovernmental
agreement, assesses the compatibility of the negotiated agreement with Union law
before the agreement is signed. In
case a compatibility check has been done on request of
the Member State concerned or of the Commission, in order not to unduly delay
the negotiation, in the absence of an explicit opinion by the Commission within
four months, the Commission would be deemed not to have raised objections.

The proposed option will significantly
increase the ability of the Union to maintain the proper operation and functioning
of its internal energy market and safeguard security of energy supply and the
realisation of major energy projects through a
coordinated and therefore efficient use of the Union bargaining power. In this
respect, the positive impacts of the proposal outweigh the rather limited extra
burden in terms of transparency obligations put on Member States when
negotiating intergovernmental agreements with third countries.

3.
LEGAL ELEMENTS OF THE PROPOSAL

The aim of this proposal is to transform
the 4 February 2011 European Council conclusions into a mechanism with detailed
procedures for the exchange of information between Member States and the
Commission with regard to intergovernmental agreements
in order to facilitate coordination at Union level to ensure security of
supply, the proper operation and functioning of the Union
internal energy market and create legal certainty for investment decisions.

On an individual level, it is difficult for
Member States to ensure that these policy objectives are met. Member States do currently
not have sufficient information to judge the overall implications of their intergovernmental
agreements on the security of supply situation in the EU. Member States' own
assessments concerning the proper implementation of the Union energy rules in
relation to these intergovernmental agreements also do not bring sufficient
legal certainty for investors. Union coordination will on the other hand benefit
all the stated objectives. As the proposed exchange of information will increase
the Member States' negotiating position vis-à-vis third
countries, it will ensure the proper implementation of the Union rules and
policies. It will allow taking the perspective of the collective security of
supply situation in the EU, instead of a national perspective. The use of commonly
developed standard clauses and the proposed compatibility check will
furthermore provide investors with increased legal certainty as regards the
likely compatibility of the intergovernmental agreement with EU legislation. The
proposal is therefore justified on grounds of subsidiarity. The proposal also respects the proportionality principle as the
voluntary alternatives examined do not guarantee that sufficient exchange of
information takes place to ensure that the policy objectives are met.

Intergovernmental agreements are defined as all legally binding agreements between Member States
and third countries which are likely to have an impact on the operation or the
functioning of the internal market for energy or on the security of energy
supply in the EU.

To avoid duplication, intergovernmental
agreements for which a specific notification to the Commission
is already foreseen in other acts of Union legislation are excluded from the
proposal, except intergovernmental agreements which must be submitted to the Commission according to the Security
of Gas Supply Regulation.[10]
It is also proposed that the new mechanism shall not concern agreements between
commercial operators except and only as far as the intergovernmental agreement
explicitly refers to these commercial agreements.

Member States shall send all existing and
provisionally applied intergovernmental agreements between them and third
countries to the Commission at the latest three months after the entry into
force of the proposed Decision. The Commission shall also be informed as early
as possible of their intention to open negotiations on future intergovernmental
agreements or to amend existing intergovernmental agreements. The Commission
shall be regularly informed on the negotiations. On request, the Commission
shall participate as an observer to the negotiations. In this context, Member States also have the right to ask the Commission for
assistance during their negotiations with third countries.

Once the intergovernmental agreement is
ratified, the ratified text shall be sent to the Commission. Intergovernmental
agreements shall be submitted in their entirety, including their annexes, other
texts they refer to and all amendments thereto. The Commission will make all information
received available to the Member States via a database. When providing information
to the Commission, a Member State may indicate whether any part of the
information in the agreements submitted is to be regarded as confidential.

The Commission shall
facilitate the coordination among Member States with a view to reviewing
developments in relation to intergovernmental agreements, identifying common problems and solutions, and
developing standard clauses that Member States can use
in future intergovernmental agreements.

In addition, the
Commission shall, on its own initiative at the latest within four weeks after
it has been informed that negotiations have been closed, or on request from the
Member State which has negotiated the intergovernmental
agreement, have the right to assess
the compatibility of the negotiated agreement with Union law in order to ensure
that the agreement is lawful. In this case, Member States have to submit the
fully negotiated intergovernmental agreement to the Commission before the intergovernmental agreement is signed. The Commission has an assessment period of four months. If
such compatibility check has been requested, in the absence of an opinion of the
Commission within this examination period, the Commission is deemed not to have
raised any objections.

The Commission shall prepare a report on
the application of the proposed Decision four years after its entry into force.

The proposed decision will enter into force
20 days following its publication in the Official Journal.

4.
BUDGETARY IMPLICATIONS OF THE PROPOSAL

The proposal has no implication for the Union
budget. The limited additional administrative burden for the European
Commission does not imply any additional costs.

2011/0238 (COD)

Proposal for a

DECISION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

setting up an information exchange
mechanism with regard to intergovernmental agreements between Member States and
third countries in the field of energy

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 194 thereof,

Having regard to the proposal from the European
Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[11],

Having regard to the opinion of the
Committee of the Regions[12],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)
The European Council has asked Member States to
inform from 1 January 2012 the Commission on all their new and existing
bilateral energy agreements with third countries. The Commission should make
this information available to all other Member States in an appropriate form,
having regard to the need for protection of commercially sensitive information.

(2)
Union-law requires Member States to take all
appropriate measures to ensure fulfilment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union. Member
States should therefore avoid or eliminate any incompatibilities between Union law
and international agreements concluded between Member States and third
countries.

(3)
The proper functioning of the internal energy
market requires that the energy imported into the Union from third countries,
is fully governed by the rules establishing an internal energy market. An internal energy market that is not functioning properly puts the
EU in a vulnerable position with regard to security of energy supply. A high degree of transparency with regard to agreements between
Member States and third countries in the field of energy would allow the Union to
take coordinated action, in a spirit of solidarity, in order to ensure that
such agreements are in accordance with Union legislation and effectively secure
the supply of energy.

(4)
The new information exchange mechanism should
only cover intergovernmental agreements which are likley to have an impact on
the internal market for energy or on the security of energy supply as these two
issues are intrinsically linked. It should comprise in particular all
intergovernmental agreements which have an impact on the supply of gas, oil or
electricity through fixed infrastructure or which have an impact on the amount
of energy imported into the Union from third countries.

(5)
Intergovernmental agreements which need to be
notified in their entirety to the Commission on the basis of other Union acts
such as [Regulation (EU) No .../... of the European
Parliament and of the Council of ... establishing transitional arrangements for
bilateral investment agreements between Member States and third countries[13]] should
be excluded from the information exchange mechanism established by this
Decision.

(6)
The exemption from the notification obligation
mentioned should not apply to intergovernmental agreements which must be
submitted to the Commission in accordance with Article 13(6) of Regulation (EU)
No 994/2010 of the European Parliament and of the Council of 20 October 2010
concerning measures to safeguard security of gas supply and repealing Council
Directive 2004/67/EC.[14]
Such intergovernmental agreements with third countries which have an impact on
the development and use of gas infrastructure and gas supplies should
henceforth be notified according to the rules laid down in this Decision. To
avoid duplication, a notification submitted in accordance with this Decision
should be considered to fulfil the notification obligation set out in
Regulation (EU) No 994/2010.

(7)
This Decision should not concern agreements
between commercial entities, except and only as far as the intergovernmental
agreements refer explicitly to such commercial agreements. Commercial operators
negotiating commercial agreements with operators from third countries may
nevertheless seek guidance from the Commission in order to avoid potential
conflicts with Union law.

(8)
Member States should submit to the Commission all
existing, provisionally applied within the meaning of Article 25 of the Vienna
Convention[15]
and new intergovernmental agreements.

(9)
Member States should already notify the
intention to open negotiations to the Commission with regard to new
intergovernmental agreements or amendments to existing intergovernmental
agreements. The Commission should be kept informed regularly on the ongoing
negotiations. It should have the right to participate as an observer in the
negotiations. Member States may also request the Commission to assist them during
their negotiations with third countries.

(10)
The Commission should, on its own initiative or
on request from the Member State which has negotiated the intergovernmental
agreement, have the right to assess the compatibility of the negotiated agreement
with Union law before the agreement has been signed.

(11)
All final, ratified agreements covered by this
Decision should be transmitted to the Commission in order to allow for full
information of all other Member States.

(12)
The Commission should make all received
information available to all other Member States in electronic form. The
Commission should respect requests from Member States to treat information, in
particular commercial information, submitted as confidential. Requests for
confidentiality should however not restrict access of the Commission itself to
confidential information as the Commission needs to have comprehensive information
for its own assessment. The requests for confidentiality are without prejudice
to the right of access to documents as provided for in Regulation (EC) No
1049/2001 of the European Parliament and of the Council of 30 May 2001
regarding public access to European Parliament, Council and Commission
documents.[16]

(13)
A permanent exchange of information on
intergovernmental agreements at Union level should allow to develop best
practices. On the basis of those best practices the Commission should recommend
standard clauses for the use in intergovernmental agreements between Member
States and third countries. The use of these non-binding standard clauses
should exclude conflicts of intergovernmental agreements with Union law.

(14)
The improved mutual knowledge of existing and new
intergovernmental agreements should allow for a better co-ordination in energy
matters between the Member States themselves and between the Member States and
the Commission. Such improved co-ordination should enable Member States to
fully benefit from the political and economic weight of the Union.

(15)
The mechanism for the exchange of information provided
for in this Decision should be without prejudice to the application of the
Union rules on infringements and competition.

HAVE ADOPTED THIS DECISION:

Article 1
Subject matter and scope

1. This Decision establishes a mechanism
for the exchange of information between Member States and the Commission with
regard to intergovernmental agreements.

2. Intergovernmental agreements which are
already in their entirety subject to other specific notification procedures
under Union law, except for intergovernmental agreements which shall be
submitted to the Commission in accordance with Article 13(6) of Regulation (EU)
No 994/2010, shall not be covered by this Decision.

Article 2
Definitions

For the purposes of this Decision the
following definitions apply:

(1) "intergovernmental agreements"
means any legally binding agreements between Member States and third countries
which are likely to have an impact on the operation or the functioning of the
internal market for energy or on the security of energy supply in the Union;

(2) "existing intergovernmental
agreements" means intergovernmental agreements which have entered into
force prior to the entry into force of this Decision.

Article 3
Exchange of information between Commission and Member States

1. Member States shall submit all existing and
provisionally applied intergovernmental agreements between them and third
countries in their entirety, including their annexes and other texts they refer
to explicitly and all amendments thereto to the Commission at the latest three
months after the entry into force of this Decision. The
Commission shall make the received documents accessible in electronic form to
all other Member States. Existing or provisionally applied intergovernmental
agreements which have already been communicated in accordance with Regulation
(EU) No 994/2010 to the Commission at the date of entry into force of this
Decision, which are fulfilling the requirements of this paragraph, shall be
considered as communicated for the purposes of this Decision.

2. When a Member
State intends to enter into negotiations with a third country in order to amend
an existing intergovernmental agreement or to conclude a new intergovernmental
agreement, the Member State shall inform the Commission in writing of its
intention at the earliest possible moment before the envisaged opening of the
negotiations. The information provided to the Commission shall include the
relevant documentation, an indication of the provisions to be addressed in the
negotiations, the objectives of the negotiations and other relevant
information. In case of amendments to an existing agreement, the provisions
that are to be renegotiated shall be indicated in the information provided to
the Commission. The Commission shall make the received information accessible
to all Member States in electronic form. The Member State concerned shall keep
the Commission informed regularly of the ongoing negotiations. On request of
the Commission or the Member State concerned, the Commission may participate as
an observer in the negotiations.

3. Upon ratification of
an intergovernmental agreement or of an amendment to an intergovernmental
agreement, the Member State concerned shall submit the agreement or the
amendment of the agreement, including their annexes and
other texts these agreements or amendments refer to explicitly, to the Commission which shall make the received documents,
with the exception of confidential parts identified according to Article 7, accessible
to all other Member States in electronic form.

Article 4
Assistance from the Commission

When a Member State
informs the Commission pursuant to Article 3(2) of its intention to enter into
negotiations in order to amend an existing intergovernmental agreement or to
conclude a new intergovernmental agreement, the Member State may request the
assistance of the Commission in the negotiations with the third country.

Article 5
Ex-ante compatibility control

The Commission may on
its own initiative until four weeks after it has been informed of the closure
of the negotiations at the latest or on request from the Member State which has
negotiated the intergovernmental agreement, assess the compatibility of the
negotiated agreement with Union
law before the agreement has been signed. In case the Commission or the Member
State concerned ask for such an ex-ante assessment of the negotiated
intergovernmental agreement with Union law,
the negotiated but not yet signed draft intergovernmental agreement shall be
submitted to the Commission for examination. The Member State concerned shall
refrain from signing the agreement for a period of four months following the
submission of the draft intergovernmental agreement. In agreement with the
Member State concerned, the examination period might be prolonged. When a
compatibility control has been requested, in the absence of an opinion by the
Commission within the examination period, the Commission shall be deemed not to
have raised objections.

Article 6
Coordination with Member States

1. The Commission shall facilitate the
coordination among Member States with the view to:

(a) review developments in relation to
intergovernmental agreements;

(b) identify common problems in relation to
intergovernmental agreements and to consider appropriate action to address
these problems;

(c) on the basis of
best practice, develop standard clauses the use of which would ensure full
compliance of future intergovernmental agreements with Union
energy legislation.

Article 7
Confidentiality

When providing information to the
Commission in accordance with Article 3, the Member State may indicate whether
any part of the information, in particular commercial information, is to be
regarded as confidential and whether the information provided can be shared
with other Member States. The Commission shall respect these indications.
Requests for confidentiality do not restrict access of the Commission itself to
confidential information.

Article 8
Review

1. Four years after its entry into force,
the Commission shall submit a report on the application of this Decision to the
European Parliament, the Council and the European Economic and Social
Committee.

2. The report shall in particular assess
whether this Decision provides for a sufficient framework in order to ensure
full compliance of intergovernmental agreements with Union law and a high level
of coordination between Member States with regard to intergovernmental
agreements.

Article 9
Entry into force

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

Article 10
Addressees

This Decision is addressed to the Member
States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               This conclusion was confirmed by the Energy Council
of 28 February 2011: "Improved and timely exchange of information between
the Commission and Member States including Member States information to
Commission on their new and existing bilateral energy agreements with third countries".

[2]               COM(2011) 539

[3]               According to scenarios for 2030, total imports of
energy from third countries may reach 57%.

[4]               OJ L 211, 14.8.2009

[5]               The only obligation which exists so far is foreseen
in Article 13 (6) of Regulation (EU) No 994/2010 of the European Parliament and
of the Council of 20 October 2010 concerning measures to safeguard security of
gas supply and repealing Council Directive 2004/67/EC (Security of Gas Supply
Regulation), OJ 295, 12.11.2010, p. 1 - 22. That provision imposes on Member
States the obligation to notify intergovernmental agreements in the area of gas
to the Commission. Existing intergovernemtal agreeements only need to be
notified before 3 December 2011.

[6]               Taking into account the few known IGAs between the
Member States and third countries, for example concerning the South Stream gas
pipeline, this very conservative assessment is made under the assumption that a
number of Member States have such IGAs with main suppliers of oil and gas, in
particular when the oil or gas is delivered through pipelines.

[7]               See Article 13 (6) of the Security of Gas Supply
Regulation.

[8]               Although both a Regulation and a Decision appear
possible, a Decision is deemed more appropriate as the legal instrument will
not have direct effect on individuals but is exclusively addressed to Member
States.

[9]               It should be noted that the notification of existing
intergovernmental agreements would not prevent the Commission from starting
infringement procedures if necessary, i.e., if it can be shown in a given case
how a particular agreement infringes the internal market rules.

[10]             Duplications are as well avoided in the case of the Securitry
of Gas Supply Regulation as a notification in accordance with the more detailed
rules foreseen in this proposal would fulfil the requirements set out in the
Security of Gas Supply Regulation.

[11]             OJ C, p. . .

[12]             OJ C, p. . .

[13]             [COM 2010 (344) final, not yet adopted]

[14]             OJ L 295, 12.11.2010, p. 1

[15]             Vienna Convention on the Laws of the Treaties 1969

[16]             OJ L 8 of 12.01.2001, p. 28