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)
Date: 2008-10-22
Institutions: Council of the European Union, European Parliament
Subjects: consumer protection, drafting of EU law, electrical energy, gas, price of energy, publishing of prices

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DIRECTIVES

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
Community, and in particular Article 285(1) thereof,

establishing the European

Having regard to the proposal from the Commission,

Acting in accordance with the procedure
Article 251 of the Treaty (1),

laid down in

Whereas:

(1)

(2)

(3)

(4)

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,
for
reasons of clarity,
in question
should be recast.

the provisions

is desirable,

that

it

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.

Transparency can help to obviate discrimination against
users by increasing their freedom to choose between
different energy sources and different suppliers.

At present, the degree of transparency varies from one
energy source and one Member State or one Community
region to another,
calling into question the
achievement of an internal energy market.

thus

(1) Opinion of the European Parliament of 17 June 2008 (not yet
and Council Decision of

Journal)

published in the Official
25 September 2008.

(2) OJ L 185, 17.7.1990, p. 16.
(3) See Annex III, Part A.

(5)

(6)

(7)

(8)

(9)

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.

the European Communities (Eurostat)

The system of standard consumers used by the Statistical
Office of
in its
price publications and the price system introduced for
major industrial electricity users ensure that transparency
is not an obstacle to confidentiality.

It is necessary to extend the consumer categories used by
Eurostat up to the limits at which the consumers remain
representative.

In this way end-users price transparency would be
achieved without endangering the necessary confiden­
In order to respect confidentiality
tiality of contracts.
three consumers in a given
least
there must be at
consumption category for a price to be published.

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, indepen­
dently of the application of this Directive, subject to the
Treaty’s
the
Commission can require communication of prices and
conditions of sale.

consequently

competition

rules

and

(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.

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(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
to decide, as necessary, on appropriate action or
it
proposals in the light of the situation of the internal
energy market.

(24)

This Directive should be without prejudice to the obli­
gations 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:

(14)

The data supplied to Eurostat will be more reliable if the
undertakings themselves compile these data.

Article 1

(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.

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;

(17)

(18)

The achievement of transparency presupposes the publi­
cation and circulation of prices and price systems as
widely as possible among consumers.

2. the price systems in use;

To implement energy price transparency the system
should be based on the proven expertise and methods
developed and applied by Eurostat
the
processing, checking and publication of data.

regarding

3. the breakdown of

corresponding
volumes by category of consumption to ensure the represen­
tativeness of these categories at national level.

consumers

and the

(19) With the prospect of the achievement of the internal
the system of price transparency

market
should be rendered operational as soon as possible.

in energy,

(20)

(21)

(22)

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.

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
implementing powers
the exercise of
conferred on the Commission (1).

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
they must be
adopted in accordance with the regulatory procedure
with scrutiny provided for in Article 5a of Decision
1999/468/EC.

this Directive,

elements of

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.

On the basis of

the data referred to in paragraph 1,
2.
in an
Eurostat shall publish each May and each November,
appropriate form, the prices of gas and electricity for industrial
users in the Member States and the pricing systems used to that
end.

The information provided for in Article 1(3) shall be sent
to Eurostat and to the Member States’

3.
every two years
competent authorities.

This information shall not be published.

(23)

Since the new elements introduced into this Directive
concern committee procedure only, they do not need
to be transposed by the Member States.

(1) OJ L 184, 17.7.1999, p. 23.

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.

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Article 4

Article 8

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.

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 implemen­
ted 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.

Article 7

1.

The Commission shall be assisted by a committee.

Done at Strasbourg, 22 October 2008.

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.

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J.-P. JOUYET

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ANNEX I

GAS PRICES

Gas prices for industrial end-users (1) to be collected and compiled according to the following methodology.

(a) Prices to be reported are prices paid by industrial end-users buying natural gas distributed through mains for their

own use.

(b) All industrial uses of gas are considered. However, the system excludes consumers who use gas:

— for electricity generation in power plants or in CHP plants,

— in non-energy uses (e.g. in the chemical industry),

— above 4 000 000 gigajoule (GJ) per year.

(c) Prices recorded to be based on a system of standard consumption bands defined by a range of annual gas

consumption.

(d) Prices will be collected twice per year, at the beginning of each six-month period (January and July) and will refer to
the average prices paid by industrial end-users for gas over the previous six months. The first communication of price
data to the Statistical Office of the European Communities (Eurostat) will refer to the situation on 1 January 2008.

(e) Prices must be expressed in national currency per gigajoule. The unit of energy used is measured on the basis of the

gross calorific value (GCV).

(f)

Prices must include all charges payable: network charges plus energy consumed minus any rebates or premiums, plus
other charges (meter rental, standing charges, etc.). Initial connection charges are not to be included.

(g) Prices are to be recorded as national average prices.

(h) The Member States develop and implement cost-effective procedures to ensure a representative data compilation

system based on the following rules:

— prices will represent weighted average prices, using the market shares of the gas supply undertakings surveyed as
weighting factors; arithmetic average prices will be provided only when weighted figures cannot be calculated. In
either case, Member States will ensure that a representative share of the national market is covered by the survey,

— market shares should be based on the quantity of gas invoiced by the gas supply undertakings to industrial end-
users. If possible, the market shares will be calculated separately for each band. The information used for
calculating weighted average prices will be managed by Member States, respecting confidentiality rules,

— in the interest of confidentiality, data relating to prices will be communicated only where there are,
Member State concerned, at least three end-users in each of the categories referred to under point (j).

in the

(i) Three levels of prices are to be provided:

— prices excluding taxes and levies,

— prices excluding VAT and other recoverable taxes,

— prices including all taxes, levies and VAT.

(1) Industrial end-user may include other non-residential users.

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(j) Gas prices will be surveyed for the following categories of industrial end-user:

Annual gas consumption (GJ)

Industrial end-user

Band-I1

Band-I2

Band-I3

Band-I4

Band-I5

Lowest

1 000

10 000

100 000

1 000 000

Highest

< 1 000

< 10 000

< 100 000

< 1 000 000

<= 4 000 000

(k) Once every two years, together with the January price reporting, information about the compilation system applied
will be communicated to Eurostat and particularly: a description of the survey and its scope (number of supply
undertakings surveyed, aggregated percentage of the market represented, etc.) and the criteria used to calculate
weighted average prices as well as the aggregated consumption volumes represented by each band. The first
communication related to the compilation system will concern the situation on 1 January 2008.

(l) Once per year, together with the January price reporting, information about the main average characteristics and

factors affecting the prices reported for each consumption band will be communicated to Eurostat.

The information will include:

— average load factors for industrial end-users corresponding to each consumption band calculated on the basis of

the total energy supplied and average maximum demand,

— a description on discounts given for interruptible supplies,

— a description of standing charges, meter rentals or any other charges relevant at national level.

(m) Once per year, together with the January reporting, the rates and method of calculation as well as a description of the
taxes levied on gas sales to industrial end-users should also be reported. The description must include any non-tax
levy covering system costs and public service obligations.

The description of taxes to be provided will include three clearly separated sections:

— taxes, levies, non-tax levies, fees and any other fiscal charges not identified in the invoices provided to industrial
end-users. The items described under this point will be included under the reported figures for the price level:
‘Prices excluding taxes and levies’,

— taxes and levies identified in the invoices provided to industrial end-users and considered as non-recoverable. The
items described under this point will therefore be included under the reported figures for the price level: ‘Prices
excluding VAT and other recoverable taxes’,

— value added tax (VAT) and other recoverable taxes identified in the invoices provided to industrial end-users. The
items described under this point will be included under the reported figures for the price level: ‘Prices including
all taxes, levies and VAT’.

An outline of the different taxes, levies, non-tax levies, fees and fiscal charges applicable are:

— value added tax,

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— concession fees. This usually refers to licences and fees for the occupation of land and public or private property

by networks or other gas devices,

— environmental taxes or levies. This usually refers either to the promotion of renewable energy sources or CHP or

as a burden for CO2, SO2 or another agent emissions related to climate change,

— other taxes or levies linked with the energy sector: public service obligations/charges, levies to financing energy

regulatory authorities, etc.,

— other taxes or levies not linked with the energy sector: national,

local or regional fiscal taxes on energy

consumed, taxes on gas distribution, etc.

Taxes on income, property-related taxes, oil for motor cars, road taxes, taxes on licences for telecom, radio,
advertising, fees for licences, taxes on waste, etc. will not be taken into consideration and are excluded from this
description, because they are undoubtedly part of the operators' costs and apply also to other industries or activities.

(n)

In Member States where one company covers all the industrial sales, the information may be communicated by that
company. In Member States where more than one company operates, the information should be communicated by
an independent statistical body.

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ANNEX II

ELECTRICITY PRICES

Electricity prices for industrial end-users (1) to be collected and compiled according to the following methodology:

(a) Prices to be reported are prices paid by industrial end-users buying electricity for their own use.

(b) All industrial uses of electricity are considered.

(c) Prices recorded to be based on a system of standard consumption bands defined by a range of annual electricity

consumption.

(d) Prices will be collected twice per year, at the beginning of each six-month period (January and July) and will refer to
the average prices paid by the industrial end-user for electricity over the previous six months. The first commu­
nication of price data to Eurostat will refer to the situation on 1 January 2008.

(e) Prices must be expressed in national currency per kWh.

(f)

Prices must include all charges payable: network charges plus energy consumed minus any rebates or premiums, plus
other charges (capacity charges, commercialisation, meter rental, etc.). Initial connection charges are not to be
included.

(g) Prices are to be recorded as national average prices.

(h) The Member States develop and implement cost-effective procedures to ensure a representative data compilation

system based on the following rules:

— prices will represent weighted average prices, using the market share of the electricity supply undertakings
surveyed as weighting factors. Arithmetic average prices will be provided only when weighted figures cannot
be calculated. In either case, Member States will ensure that a representative share of the national market is
covered in the survey,

— market shares should be based on the quantity of electricity invoiced by electricity supply undertakings to
industrial end-users. If possible, the market shares will be calculated separately for each band. The information
used for calculating weighted average prices will be managed by Member States, respecting confidentiality rules,

— in the interest of confidentiality, data relating to prices will be communicated only where there are,
Member State concerned, at least three end-users in each of the categories referred to under point (j).

in the

(i) Three levels of prices are to be provided:

— prices excluding taxes and levies,

— prices excluding VAT and other recoverable taxes,

— prices including all taxes, levies and VAT.

(j)

Electricity prices will be surveyed for the following categories of industrial end-user:

Industrial end-user

Annual electricity consumption (MWh)

Lowest

Highest

Band IA

Band IB

Band IC

Band ID

Band IE

Band IF

20

500

2 000

20 000

70 000

< 20

< 500

< 2 000

< 20 000

< 70 000

<= 150 000

(1) Industrial end-user may include other non-residential user.

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(k) Once every two years, together with the January price reporting, information about the compilation system applied
will be communicated to Eurostat and particularly: a description of the survey and its scope (number of supply
undertakings surveyed, aggregated percentage of the market represented, etc.) and the criteria used to calculate the
weighted average prices as well as the aggregated consumption volumes represented by each band. The first
communication related to the compilation system will concern the situation on 1 January 2008.

(l) Once per year, together with the January price reporting, information about the main average characteristics and

factors affecting the prices reported for each consumption band will be communicated to Eurostat.

The information to be provided will include:

— average load factors for industrial end-users corresponding to each consumption band calculated on the basis of

the total energy supplied and average maximum demand,

— a table indicating the voltage limits per country,

— a description of standing charges, meter rentals or any other charges relevant at national level.

(m) Once per year, together with the January price reporting, the rates and method of calculation as well as a description
of the taxes levied on electricity sales to industrial end-users should be reported. The description must include any
non-tax levy covering system costs and public service obligations.

The description on taxes to be provided will include three clearly separated sections:

— taxes, levies, non-tax levies, fees and any other fiscal charges not identified in the invoices provided to industrial
end-users. The items described under this point will be included under the reported figure for the price level:
‘Prices excluding taxes and levies’,

— taxes and levies identified in the invoices provided to industrial end-users and considered as non-recoverable. The
items described under this point will be included under the reported figures for the price level: ‘Prices excluding
VAT and other recoverable taxes’,

— value added tax (VAT) and other recoverable taxes identified in the invoices provided to industrial end-users. The
items described under this point will be included under the reported figures for the price level: ‘Prices including
all taxes, levies and VAT’.

An outline of the different taxes, levies, non-tax levies, fees and fiscal charges that can be applicable are:

— value added tax,

— concession fees. This usually refers to licences and fees for the occupation of land and public or private property

by networks or other electricity devices,

— environmental taxes or levies. This usually refers either to the promotion of renewable energy sources or CHP, or

as a burden for CO2, SO2 or another agents emissions related with the climate change,

— nuclear and other inspection taxes: nuclear decommissioning charges, inspection and fees for nuclear installations,

etc.,

— other taxes or levies linked with the energy sector: public service obligations/charges, levies to financing energy

regulatory authorities, etc.,

— other taxes or levies not linked with the energy sector: national,

local or regional fiscal taxes on energy

consumed, taxes on electricity distribution, etc.

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Taxes on income, property-related taxes, excise duties on oil products and fuels other than for electricity generation,
oil for motor cars, road taxes, taxes on licences for telecom, radio, advertising, fees for licences, taxes on waste, etc.,
will not be taken into consideration and are excluded from this description, because they are undoubtedly part of the
operators’ costs and apply to other industries or activities.

(n) Once per year,

together with the January price reporting, a breakdown of electricity prices into their main
components will be communicated to Eurostat. This breakdown of electricity prices into their main components
will be based on the following methodology.

The complete price for electricity per consumption band can be considered as the global sum of ‘network’ prices,
‘energy and supply’ prices (i.e. from generation to commercialisation, except networks) and all taxes and levies.

— ‘network’ price is the ratio between the revenue related to transmission and distribution tariffs and (if possible)
the corresponding volume of kWh per consumption band. If separate volumes of kWh per band are not
available, estimates should be provided,

— ‘energy and supply’ price is the total price minus the ‘network’ price and minus all taxes and levies,

— taxes and levies. For this component an additional breakdown will be provided:

— taxes and levies on ‘network’ prices,

— taxes and levies on ‘energy and supply’ prices,

— VAT and other recoverable taxes.

N.B.: If complementary services are identified separately, then they can be allocated into one of the two main
components as follows:

— ‘network’ price will include the following costs: transmission and distribution tariffs, transmission and distribution

losses, network costs, after-sale services, system service costs and meter rental,

— ‘energy and supply’ price will include the following costs: generation, aggregation, balancing energy, supplied

energy costs, customer services, after-sales management, metering, and other supply costs,

— other specific costs. This item represents costs which are neither network costs nor energy and supply costs nor

taxes. If this kind of costs exists, they will be reported separately.

(o)

In Member States where one company covers all the industrial sales, the information may be communicated by that
company. In Member States where more than one company operates, the information should be communicated by
an independent statistical body.

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ANNEX III

PART A

Repealed Directive with list of its successive amendments

(referred to in Article 10)

Council Directive 90/377/EEC
(OJ L 185, 17.7.1990, p. 16).

Commission Directive 93/87/EEC
(OJ L 277, 10.11.1993, p. 32).

Annex I to the 1994 Act of Accession
(OJ C 241, 29.8.1994, p. 21).

Point 12(A)(3)(a) and (b) of Annex II to the 2003
Act of Accession
(OJ L 236, 23.9.2003, p. 33).

Regulation (EC) No 1882/2003 of the European
Parliament and of the Council
(OJ L 284, 31.10.2003, p. 1).

Council Directive 2006/108/EC
(OJ L 363, 20.12.2006, p. 414).

Commission Decision 2007/394/EC
(OJ L 148, 9.6.2007, p. 11).

Annex I, point 3 only

Only as regards the reference to Directive 90/377/EEC in
Article 1 and points 1(a) and (b) of Annex I

PART B

List of time limits for transposition into national law

(referred to in Article 10)

Directive

90/377/EEC

93/87/EEC

2006/108/EC

Time limit for transposition

30 July 1991

—

1 January 2007

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ANNEX IV

Correlation table

Directive 90/377/EEC

Article 1

Article 2(1), first sentence

Article 2(1), second sentence

Article 2(2)

Article 2(3), first sentence

Article 2(3), second sentence

Article 2(3), third sentence

Articles 3 to 5

Article 6, first sentence

—

Article 6, second sentence

Article 7(1) and (2)

Article 7(3)

Article 8

Article 9, first paragraph

This Directive

Article 1

Article 2(1), first subparagraph

Article 2(1), second subparagraph

Article 2(2)

Article 2(3), first subparagraph

—

Article 2(3), second subparagraph

Articles 3 to 5

Article 6, first paragraph, first sentence

Article 6, first paragraph, second sentence

Article 6, second paragraph

Article 7

—

Article 8

—

Article 9, second paragraph, first sentence

Article 9, first paragraph

Article 9, second paragraph, second sentence

Article 9, second paragraph

—

Article 10

Annexes I and II

—

—

Articles 10 and 11

Article 12

Annexes I and II

Annex III

Annex IV