(12)

The following chapters shall be inserted after Chapter IV : ‘ CHAPTER IVb Independent transmission system operators Article 12a Scope The provisions of this Chapter shall apply when a Member State decides not to apply Article 7(1) in accordance with Article 7(7) . Article 12b Assets, equipment, staff and identity 1. Transmission system operators shall be equipped with all human, physical and financial resources necessary for fulfilling their obligations under this Directive and carrying out the business of gas transmission, provided that: (a) assets that are necessary for the business of gas transmission, including the transmission network, shall be owned by the transmission system operator; (b) personnel necessary for the business of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator; (c) leasing of personnel and rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited; (d) appropriate financial resources for future investment projects and/or for the replacement of existing assets shall be kept available notably by the vertically integrated undertaking following an appropriate request from the transmission system operator in the framework of the annual financial plan referred to in Article 12f; (e) transmission system operators shall not use the same external contractors or consultants as the vertically integrated undertaking and they must not share information technology systems or equipment, physical premises and security access systems. 2. The business of gas transmission shall at least include the following activities in addition to those listed in Article 8: (a) representation of the transmission system operator and contacts in relation to third parties and the regulatory authorities; (b) representation of the transmission system operator within the European network of transmission system operators; (c) granting and managing third-party access; (d) collection of all charges related to the transmission system including the access charges, balancing charges for ancillary services such as gas treatment, purchasing of services (balancing costs, energy for losses); (e) operation, maintenance and development of the transmission system; (f) investment planning ensuring the long-term ability of the system to meet reasonable demand and guaranteeing security of supply; (g) setting up appropriate joint ventures, including with one or more transmission system operators, gas exchanges, pursuing the objective to develop the creation of regional markets or to facilitate the liberalisation process; (h) all corporate services, including legal services, accountancy and IT services. 3. Transmission system operators shall be organised in the legal form of a limited liability company as referred to in Article 1 of Directive 68/151/EEC. 4. The transmission system operator shall not, in its corporate identity, communication, branding and premises, create confusion in respect of the separate identity of the vertically integrated undertaking. 5. The accounts of transmission system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part of it. Article 12c Independence of the transmission system operator 1. Without prejudice to the powers of the members of the supervisory body appointed by the vertically integrated undertaking under Article 12f, the transmission system operator shall have effective decision-making rights, independent from the vertically integrated undertaking, with respect to assets necessary to operate, maintain or develop the network. The transmission system operator shall have the power to raise money on the capital market in particular through borrowing and capital increase in the framework of the annual financial plan referred to in Article 12f. 2. Subsidiaries of the vertically integrated undertaking performing functions of production or supply shall not have any direct or indirect shareholding in the transmission system operator. The transmission system operator shall neither hold direct or indirect shares in any subsidiary of the vertically integrated undertaking performing functions of production or supply, nor receive dividends or any other financial benefit from such a subsidiary except for the revenues derived from the use of the network. 3. The overall management structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator as referred to in this Chapter. The vertically integrated undertaking shall not determine, whether directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day-to-day activities of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the 10-year investment plan developed pursuant to Article 12h. 4. Any commercial and financial relations between the vertically integrated undertaking and the transmission system operator, including loans from the transmission system operator to the vertically integrated undertaking, shall be subject to market conditions. The transmission system operator shall keep detailed records of such commercial and financial relations and make them available to the national regulatory authority on request. 5. The transmission system operator shall submit to the national regulatory authority all commercial and financial agreements with the vertically integrated undertaking. 6. The transmission system operator shall inform the national regulatory authority of the available financial resources referred to in Article 12b(1)(d). 7. An undertaking which has been certified by the national regulatory authority as complying with the requirements of this Chapter shall be approved and designated as a transmission system operator by the Member State concerned. The certification procedure in Article 7b shall be applicable . 8. Transparency shall be mandatory to ensure non-discrimination, in particular in relation to references for tariffs, third-party access services, capacity allocation and balancing. Vertically integrated undertaking shall be required to refrain from any activities that impede the transmission system operators in fulfilment of those obligations. Article 12d Independence of staff and management of the transmission system operator 1. Decisions regarding appointment and renewal, working conditions including remuneration and termination of the term of office of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the supervisory body of the transmission system operator appointed in accordance with Article 12f. 2. The identity and the conditions governing the term, the duration and the termination of office of the persons nominated by the supervisory body for appointment or renewal as persons responsible for the management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the national regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if, within a period of three weeks after notification, the national regulatory authority has not objected to them. The national regulatory authority may object if serious doubts arise as to the professional independence of a nominated person responsible for the management and/or member of the administrative bodies, or in the case of premature termination of his/her term of office, if serious doubts exist regarding its justification. 3. The persons responsible for the management and/or the members of the administrative bodies of the transmission system operator appointed by the supervisory body shall hold no professional position or responsibility, interest or business relationship, directly or indirectly, in or with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator for a period of five years before their appointment. 4. The persons responsible for the management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no other professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders. 5. The persons responsible for the management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive financial benefit from any part of the vertically integrated undertaking, whether directly or indirectly, other than the transmission system operator. Their remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator. 6. Effective rights of appeal to the national regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term of office. 7. After termination of their term of office in the transmission system operator, the persons responsible for its management and/or members of its administrative bodies shall have no professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking other than the transmission system operator, or its controlling shareholders for a period of no less than five years. Article 12e Trustee 1. An independent Trustee shall be appointed by the national regulatory authority on the proposal and at the expense of the vertically integrated undertaking. The Trustee shall act exclusively in the legitimate interest of the vertically integrated undertaking in the preservation of the asset value of the transmission system operator, while safeguarding the independence of the transmission system operator from the vertically integrated undertaking. In the exercise of its functions, the Trustee shall have no regard to the interest of the production and supply business of the vertically integrated undertaking. 2. The Trustee shall have no professional position or responsibility, interest or business relationship, directly or indirectly, in or with the vertically integrated undertaking or any part thereof, its controlling shareholders, or any undertaking performing functions of production or supply, for a period of five years before its appointment. The terms of the mandate of the Trustee, including the duration, the conditions for termination and the financial conditions, shall be subject to approval by the national regulatory authority. During its mandate, the Trustee may have no other professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders. Following termination of the mandate, the Trustee shall have no professional position or responsibility, interest or business relationship, directly or indirectly, in or with any part of the vertically integrated undertaking or its controlling shareholders for a period of no less than five years. 3. The Trustee shall be responsible for: (a) the appointment, renewal and dismissal of the members, other than those referred to in Article 12f(2)(a), of the supervisory body of the transmission system operator; and (b) the exercise of its voting rights in the supervisory body. Article 12f Supervisory body 1. The transmission system operator shall have a supervisory body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual financial plan, the level of indebtedness of the transmission system operator and the amount of dividends distributed to shareholders. 2. The supervisory body shall be composed of: (a) members representing the vertically integrated undertaking, (b) members representing third-party shareholders, (c) members representing the transmission system operator, (d) the Trustee, and (e) where the relevant legislation of a Member State so provides, members representing other interested parties such as employees of the transmission system operator. 3. Article 12d(2) to (7) shall apply to the members of the supervisory body. 4. The Trustee shall have the right of veto with respect to decisions that in his/her view may significantly reduce the asset value of the transmission system operator. When assessing whether a decision may significantly reduce the value of the assets, the annual financial plan and the amount of debts of the transmission system operator shall be of particular importance. In the event that two thirds of the members of the supervisory body overrule such veto, Article 12h(7) shall apply. Article 12g Compliance programme and compliance officer 1. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that discriminatory conduct is excluded, and ensure that the compliance with this programme is adequately monitored. The programme shall set out the specific obligations of employees to meet this objective. It shall be subject to approval by the national regulatory authority. Without prejudice to the powers of the national regulatory authority, compliance with the programme shall be independently monitored by the compliance officer. 2. The supervisory body shall appoint a compliance officer. The compliance officer may be a natural or legal person. Article 12d(2) to (7) shall apply to the compliance officer. The national regulatory authority may object to the appointment of a compliance officer for reasons of lack of independence or professional capacity . 3. The compliance officer shall be in charge of: (a) monitoring the implementation of the compliance programme; (b) elaborating an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the national regulatory authority; (c) reporting to the supervisory body and issuing recommendations on the compliance programme and its implementation; (d) reporting to the national regulatory authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator. 4. The compliance officer shall submit the proposed decisions on the investment plan or on individual investments in the network to the national regulatory authority. Such decisions shall be submitted no later than when the management and/or the competent administrative body of the transmission system operator submit them to the supervisory body. 5. The compliance officer shall notify the national regulatory authority in the event that the vertically integrated undertaking, in the general assembly or through the vote of the members of its supervisory body, has prevented the adoption of a decision with the effect of preventing or delaying investments in the network. 6. The conditions governing the mandate or the employment conditions of the compliance officer shall be subject to the approval of the national regulatory authority and shall ensure the independence of the compliance officer. 7. The compliance officer shall regularly report, either orally or in writing, to the national regulatory authority and shall have the right regularly to report, either orally or in writing, to the supervisory body of the transmission system operator. 8. The compliance officer may attend all meetings of the management or administrative bodies of the transmission system operator and those of the supervisory body and the general assembly. The compliance officer shall attend all meetings that address the following matters: (a) conditions for access to the network, as defined in Regulation (EC) No 1775/2005, in particular regarding tariffs, third-party access services, capacity allocation and congestion management, transparency, balancing and secondary markets; (b) projects undertaken in order to operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity and in optimisation of existing capacity; (c) energy purchases or sales necessary for the operation of the transmission system. 9. The compliance officer shall monitor the compliance of the transmission system operator with Article 10. 10. The compliance officer shall have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of its task. 11. After prior approval by the national regulatory authority, the supervisory body may dismiss the compliance officer. 12. Obligations of the transmission system operator and vertically integrated undertaking in particular for commercial and financial agreements between transmission system operator and vertically integrated undertaking should only be notified to the national regulatory authority without the need for approval. The appointment and working conditions of management and of the compliance officer shall be notified to the national regulatory authority without the need for approval. Article 12h Network development and powers to make investment decisions 1. Every year, transmission system operators shall submit to the national regulatory authority a 10-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. The plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply. 2. The 10-year network development plan shall in particular: (a) indicate to market participants the main transmission infrastructures that need to be built or upgraded over the next ten years; (b) contain all the investments already decided and identify new investments which have to be executed in the next three years; (c) provide for a time frame for all investment projects. 3. When elaborating the 10-year network development plan, the transmission system operator shall make reasonable assumptions about the evolution of its production, supply, consumption and exchanges with other countries, taking into account investment plans for regional and EU-wide networks, as well as investment plans for storage and LNG regasification facilities. 4. The national regulatory authority shall consult all actual or potential network users on the 10-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential users may be required to substantiate such claims. It shall publish the result of the consultation process, in particular possible needs for investments. 5. The national regulatory authority shall examine whether the 10-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the Community-wide 10-year network development plan referred to in Article 2c(1) of Regulation (EC) No 1775/2005. If any doubt arises as to the consistency with the Community-wide 10-year network development plan, the national regulatory authority shall consult the Agency. The national regulatory authority may require the transmission system operator to amend its plan. 6. The national regulatory authority shall monitor and evaluate the implementation of the 10-year network development plan. 7. In circumstances where the transmission system operator, other than for overriding reasons beyond its control, does not execute an investment, which, according to the 10-year network development plan, was supposed to be executed in the following three years, Members States shall ensure that the national regulatory authority has the obligation to take at least one of the following measures to ensure that the investment in question is made: (a) require the transmission system operator to execute the investments in question in coherence with the annual financial plan referred to in Article 12f, or, (b) organise a tender procedure open to any investors for the investment in question. When the national regulatory authority has made use of its powers under point (b), it may require the transmission system operator to accept any of the following: (a) third-party financing, (b) third-party construction, (c) building the respective new assets, or (d) operating the respective new asset. The transmission system operator shall provide the investors with all information needed to realise the investment, connect new assets to the transmission network and generally make its best efforts to facilitate the implementation of the investment project. The relevant financial arrangements shall be subject to approval by the national regulatory authority. 8. In the event that the national regulatory authority makes use of its powers under paragraph 7, the relevant tariff regulations shall cover the costs of the investments in question. Article 12i Decision-making powers regarding the connection of storage facilities, LNG regasification facilities and industrial consumers to the transmission network 1. Transmission system operators shall establish and publish transparent and efficient procedures and tariffs for non-discriminatory connection of storage facilities, LNG regasification facilities and industrial consumers to the network. The procedures shall be subject to approval by the national regulatory authority. 2. Transmission system operators shall not be entitled to refuse the connection of a new storage facility, LNG regasification facility or industrial consumer on the grounds of possible future limitations to available network capacities or additional costs linked with necessary capacity increase. The transmission system operator shall ensure sufficient entry and exit capacity for the new connection. 3. Transmission system operators shall grant and manage third-party access to the network, especially the access for new market operators and producers of biogas with respect to the safety rules of the network. CHAPTER IVb Article 12j Revision clause 1. The Agency shall, by … (21), submit to the European Parliament and Council, a detailed report outlining the extent to which the unbundling requirements under this Directive have been successful in ensuring full and effective independence of transmission system operators. 2. For the purpose of its assessment under paragraph 1, the Agency shall take into account in particular the following criteria: fair and non-discriminatory network access, effective regulation, the development of the network, investments and undistorted incentives to invest, the development of interconnection infrastructure, and the security of supply situation in the Community . 3. The Commission shall, by … (21), submit to the European Parliament and the Council, a detailed report outlining the feasibility of creating a single European transmission system operator and analyse the costs and benefits with respect, notably, to property rights, market integration as well as the effective and secure operation of the transmission network. The report shall be drafted in consultation with the stakeholders in particular the transmission system operators and the Agency . 4. Where appropriate, and in particular in the event that the detailed report referred to in paragraph 1 determines that the conditions referred to in paragraph 2 have not been guaranteed in practice, the Commission shall submit proposals to the European Parliament and the Council to ensure full and effective independence of transmission system operators by … (22) .