DIRECTIVE 2008/92/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 22 October 2008
concerning a Community procedure to improve the transparency of gas and electricity prices charged to industrial end-users (recast)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 285(1) thereof,
Having regard to the proposal from the Commission,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (1),
Whereas:
(1)
Council Directive 90/377/EEC of 29 June 1990 concerning a Community procedure to improve the transparency of gas and electricity prices charged to industrial end-users (2) has been significantly amended on several occasions (3). Now that new amendments are being made to the said Directive, it is desirable, for reasons of clarity, that the provisions in question should be recast.
(2)
Energy price transparency, to the extent that it reinforces the conditions ensuring that competition is not distorted in the common market, is essential to the achievement and smooth functioning of the internal energy market.
(3)
Transparency can help to obviate discrimination against users by increasing their freedom to choose between different energy sources and different suppliers.
(4)
At present, the degree of transparency varies from one energy source and one Member State or one Community region to another, thus calling into question the achievement of an internal energy market.
(5)
However, the price paid by industry in the Community for the energy which it uses is one of the factors which influence its competitiveness and should therefore remain confidential.
(6)
The system of standard consumers used by the Statistical Office of the European Communities (Eurostat) in its price publications and the price system introduced for major industrial electricity users ensure that transparency is not an obstacle to confidentiality.
(7)
It is necessary to extend the consumer categories used by Eurostat up to the limits at which the consumers remain representative.
(8)
In this way end-users price transparency would be achieved without endangering the necessary confidentiality of contracts. In order to respect confidentiality there must be at least three consumers in a given consumption category for a price to be published.
(9)
This information, which concerns gas and electricity consumed by industry for energy end-users, will also enable comparisons to be drawn with other energy sources (oil, coal, fossil and renewable energy sources) and other consumers.
(10)
Undertakings which supply gas and electricity as well as industrial gas and electricity consumers remain, independently of the application of this Directive, subject to the Treaty’s competition rules and consequently the Commission can require communication of prices and conditions of sale.
(11)
Knowledge of the price systems in force forms part of price transparency.
(12)
Knowledge of the breakdown of consumers by category and their respective market shares also forms part of price transparency.
(13)
The communication to Eurostat of prices and conditions of sale to consumers and price systems in operation as well as the breakdown of consumers by consumption category should inform the Commission sufficiently for it to decide, as necessary, on appropriate action or proposals in the light of the situation of the internal energy market.
(14)
The data supplied to Eurostat will be more reliable if the undertakings themselves compile these data.
(15)
Familiarity with the taxation and parafiscal charges existing in each Member State is important to ensure price transparency.
(16)
It must be possible to check the reliability of the data supplied to Eurostat.
(17)
The achievement of transparency presupposes the publication and circulation of prices and price systems as widely as possible among consumers.
(18)
To implement energy price transparency the system should be based on the proven expertise and methods developed and applied by Eurostat regarding the processing, checking and publication of data.
(19)
With the prospect of the achievement of the internal market in energy, the system of price transparency should be rendered operational as soon as possible.
(20)
The uniform implementation of this Directive can only take place in all the Member States when the natural gas market, in particular with regard to infrastructure, has reached a sufficient level of development.
(21)
The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (4).
(22)
In particular, the Commission should be empowered to make the necessary changes to Annexes I and II in the light of specific problems identified. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
(23)
Since the new elements introduced into this Directive concern committee procedure only, they do not need to be transposed by the Member States.
(24)
This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex III, Part B,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Member States shall take the steps necessary to ensure that undertakings which supply gas or electricity to industrial end-users, as defined in Annexes I and II, communicate to the Statistical Office of the European Communities (Eurostat) in the form provided for in Article 3:
1.
the prices and terms of sale of gas and electricity to industrial end-users;
2.
the price systems in use;
3.
the breakdown of consumers and the corresponding volumes by category of consumption to ensure the representativeness of these categories at national level.
Article 2
1. The undertakings referred to in Article 1 shall assemble the data provided for in Article 1(1) and (2) on 1 January and 1 July of each year.
These data, drawn up in conformity with the provisions referred to in Article 3, shall be sent to Eurostat and the competent authorities of the Member States within two months.
2. On the basis of the data referred to in paragraph 1, Eurostat shall publish each May and each November, in an appropriate form, the prices of gas and electricity for industrial users in the Member States and the pricing systems used to that end.
3. The information provided for in Article 1(3) shall be sent every two years to Eurostat and to the Member States’ competent authorities.
This information shall not be published.
Article 3
The implementing provisions concerning the form, content and all other features of the information provided for in Article 1 are set out in Annexes I and II.
Article 4
Eurostat shall not disclose data supplied to it pursuant to Article 1 which might, by their nature, be subject to commercial confidentiality. Such confidential statistical data transmitted to Eurostat shall be accessible only to officials of Eurostat and may be used only for statistical purposes.
The first paragraph shall not, however, prevent the publication of such data in an aggregated form which does not enable individual commercial transactions to be identified.
Article 5
Where Eurostat notes statistically significant anomalies or inconsistencies in data transmitted under this Directive, it may ask the national bodies to allow it to inspect the appropriate disaggregated data as well as the methods of calculation or evaluation upon which the aggregated data are based, in order to assess, or even amend, any information deemed irregular.
Article 6
Where appropriate, the Commission shall make the necessary changes to Annexes I and II in the light of specific problems identified. Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 7(2).
Such changes shall, however, cover only the technical features of Annexes I and II and shall not be of a nature such as to alter the general structure of the system.
Article 7
1. The Commission shall be assisted by a committee.
2. Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
Article 8
Once a year the Commission shall present a summary report on the operation of this Directive to the European Parliament, the Council and the European Economic and Social Committee.
Article 9
In the case of natural gas, this Directive will not be implemented in a Member State until five years after the introduction of that form of energy on the market in question.
The date of introduction of that energy source on a national market shall be explicitly reported to the Commission by the Member State concerned without delay.
Article 10
Directive 90/377/EEC, as amended by the acts listed in Annex III, Part A, is repealed without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex III, Part B.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex IV.
Article 11
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 12
This Directive is addressed to the Member States.
Done at Strasbourg, 22 October 2008.