Common Position (EC) No 10/2009 of 9 January 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council establishing an Agency for the Cooperation of Energy Regulators (Text with EEA relevance )
Date: 2009-03-31
Institutions: Council of the European Union
Subjects: EU office or agency, energy grid, energy transport, operation of the Institutions

31.3.2009

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C 75 E/1

III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 10/2009

adopted by the Council on 9 January 2009

with a view to the adoption of Regulation (EC) No …/2009 of the European Parliament and of the
Council of … establishing an Agency for the Cooperation of Energy Regulators

(Text with EEA relevance)

(2009/C 75 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Economic and
Social Committee (1),

Having regard to the Opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

(2)

The Communication of the Commission of 10 January
2007 entitled ‘An Energy Policy for Europe’ highlighted
the importance of completing the internal market in elec-
tricity and natural gas. Improving the regulatory frame-
work at Community level was identified as a key measure
to achieve that objective.

An independent advisory group on electricity and gas,
called the European Regulators Group for Electricity and
(‘the ERGEG’) was established by Commission
Gas
Decision 2003/796/EC (4)
consultation,

to facilitate

(1) OJ C 211, 19.8.2008, p. 23.
(2) OJ C 172, 5.7.2008, p. 55.
(3) Opinion of

the European Parliament of 18 June 2008 (not yet
Journal), Council Common Position of
published in the Official
9 January 2009 and Position of the European Parliament of … (not yet
published in the Official Journal).

(4) OJ L 296, 14.11.2003, p. 34.

coordination and cooperation between the regulatory
bodies in Member States, and between those bodies and
the Commission, with a view to consolidating the
internal market in electricity and natural gas. That group
is composed of representatives of the national regulatory
authorities established pursuant to Directive 2003/54/EC
of the European Parliament and of the Council of 26 June
2003 concerning common rules for the internal market
in electricity (5)
the
European Parliament and of the Council of 26 June 2003
concerning common rules for the internal market
in
natural gas (6).

and Directive 2003/55/EC of

The work undertaken by ERGEG since its establishment
has made a positive contribution to the internal market
in electricity and gas. However, it is widely recognised by
the sector, and has been proposed by ERGEG itself, that
voluntary cooperation between national regulatory autho-
rities should now take place within a Community struc-
ture with clear competences and with the power to adopt
individual regulatory decisions in a number of specific
cases.

The European Council of March 2007 invited the
Commission to propose measures to set up an indepen-
dent mechanism for national regulators to cooperate.

On the basis of the impact assessment of the resource
requirements for a central entity, it was concluded that an
independent central entity offered a number of long-term
advantages over other options. An Agency for the Coop-
eration of Energy Regulators (‘the Agency’) should there-
fore be established.

(3)

(4)

(5)

(5) OJ L 176, 15.7.2003, p. 37.
(6) OJ L 176, 15.7.2003, p. 57.

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(6)

(7)

(8)

(9)

(10)

regulatory authorities

regulatory functions
The Agency should ensure that
performed by the national
in
accordance with Directive 2009/…/EC of the European
Parliament and of the Council of … concerning common
rules for the internal market in electricity (1) and Direc-
tive 2009/…/EC of the European Parliament and of the
Council of … concerning common rules for the internal
market in natural gas (1) are properly coordinated and,
where necessary, completed at the Community level. To
that end, it is necessary to guarantee the independence of
the Agency, its technical and regulatory capacities and its
transparency and efficiency.

regional

should monitor

The Agency
cooperation
between transmission system operators in the electricity
and gas sectors as well as the execution of the tasks of
the European Network of Transmission System Operators
for Electricity (‘the ENTSO for Electricity’), and the
European Network of Transmission System Operators for
Gas (‘the ENTSO for Gas’). The involvement of
the
Agency is essential in order to ensure that the coopera-
tion between transmission system operators proceeds in
an efficient and transparent way for the benefit of the
internal markets in electricity and natural gas.

role

The Agency has an important
in developing
non-binding framework Guidelines with which network
codes must be in line. It is also considered appropriate
for the Agency, and consistent with its purpose, to have a
role in reviewing network codes (both when created and
upon modification) to ensure that they are in line with
the non-binding framework Guidelines, before it may
recommend them to the Commission for adoption.

It is appropriate to provide a framework within which
national regulatory authorities are able to cooperate. That
framework should facilitate the uniform application of
the legislation on the internal market in electricity and
gas throughout the Community. As regards situations
concerning more than one Member State, the Agency
should be granted the power to adopt individual deci-
sions. That power should under certain conditions cover
technical issues, the regulatory regime for electricity and
gas infrastructure connecting or that might connect at
least two Member States and, as a last resort, exemptions
from the internal market rules for new electricity inter-
connectors and new gas infrastructure located in more
than one Member State.

Since the Agency has an overview of the national regula-
tory authorities, it should have an advisory role towards
the Commission as regards market regulation issues. It
should also be required to inform the Commission where
it
the cooperation between transmission
system operators does not produce the results which are
needed or that a national regulatory authority whose
decision is not in compliance with Guidelines does not
adequately follow up the opinion of the Agency.

finds

that

(11)

The Agency should also be able to issue non-binding
Guidelines to assist regulatory authorities and market
players in sharing good practices.

(12)

(13)

(14)

The structure of the Agency should be adapted to meet
the specific needs of energy regulation. In particular, the
specific role of the national regulatory authorities and
their independence need to be taken fully into account.

The Administrative Board should have the necessary
powers to establish the budget, check its implementation,
draw up internal rules, adopt financial regulations and
appoint the Director. A rotation system should be used
for the renewal of the members of the Administrative
Board who are appointed by the Council so as to ensure
a balanced participation of Member States over time.

The Agency should have the necessary powers
to
perform the regulatory functions in an efficient and
above all
independent manner. The independence of
regulatory authorities is not only a key principle of good
governance but also a fundamental condition to ensure
market confidence. Without prejudice to its members
acting on behalf of their respective national authorities,
the Board of Regulators should therefore act indepen-
dently from any market interest and shall not seek or
take instructions from any government of a Member
State,
the Commission or from any other public or
private entity.

(15) Where the Agency has decision-making powers,

inter-
ested parties should, for reasons of procedural economy,
be granted a right of appeal to a Board of Appeal, which
should be part of the Agency, but independent from its
administrative and regulatory structure. In the interest of
continuity, the appointment or renewal of the members
of the Board of Appeal should allow for partial replace-
ment of that Board.

(16)

the

resources

In particular,

The Agency should be financed mainly from the general
budget of the European Union, by fees and by voluntary
contributions.
currently
pooled by regulatory authorities for their cooperation at
Community level should continue to be available to the
Agency. The Community budgetary procedure should
remain applicable as far as any subsidies chargeable to
the general budget of the European Union are concerned.
Moreover, the auditing of accounts should be undertaken
by the Court of Auditors in accordance with Article 91
of Commission Regulation (EC, Euratom) No 2343/2002
of 19 November 2002 on the framework Financial Regu-
lation for the bodies referred to in Article 185 of Council
Regulation (EC, Euratom) No 1605/2002 on the Finan-
cial Regulation applicable to the general budget of the
European Communities (2).

(1) OJ L …

(2) OJ L 357, 31.12.2002, p. 72.

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(17)

(18)

(19)

(20)

(21)

(22)

The Agency should have highly professional staff. In par-
ticular, it should benefit from the competence and experi-
ence of staff seconded by the national regulatory authori-
ties, the Commission and the Member States. The Staff
Regulations of Officials of the European Communities
and the Conditions of employment of other servants of
the European Communities, hereinafter referred to as ‘the
Staff Regulations’ and ‘the Conditions of employment’
laid down in Regulation (EEC, Euratom,
respectively,
ECSC) No 259/68 (1) and the rules adopted jointly by the
European Community institutions for the purpose of
applying these regulations should apply to the staff of the
Agency. The Administrative Board, in agreement with the
Commission, should adopt the necessary implementing
measures.

The Agency should apply the general rules regarding
public access to documents held by Community bodies.
The Administrative Board should establish the practical
measures to protect commercially sensitive data and
personal data.

Countries which are not members of the Community
should be able to participate in the work of the Agency
in accordance with appropriate
to be
concluded by the Community.

agreements

The measures necessary for the implementation of this
Regulation 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 (2).

In particular, the Commission should be empowered to
adopt the Guidelines necessary in situations in which the
Agency becomes competent to decide upon the terms
and conditions for access to and operational security of
cross-border infrastructure. Since those measures are of
general scope and are designed to amend non-essential
elements of this Regulation, by supplementing it with
new non-essential elements, they must be adopted in
accordance with the regulatory procedure with scrutiny
provided for in Article 5a of Decision 1999/468/EC.

this Regulation, cooperation of
Since the objective of
national
regulatory authorities at Community level,
cannot be sufficiently achieved by the Member States and
can therefore be better achieved at Community level, the
Community may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Regulation does not
go beyond what is necessary in order to achieve that
objective,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

Establishment and legal status

Article 1

Establishment

This Regulation establishes an Agency for the Cooperation

1.
of Energy Regulators (‘the Agency’).

2.
The purpose of the Agency shall be to assist the regulatory
authorities referred to in Article 34 of Directive 2009/…/EC
and Article 38 of Directive 2009/…/EC in exercising at Com-
munity level the regulatory tasks performed in the Member
States and, where necessary, to coordinate their action.

Until the premises of the Agency are ready,

3.
hosted on Commission premises.

it will be

Article 2

Legal status

The Agency shall be a Community body with legal

1.
personality.

2.
In each Member State, the Agency shall enjoy the most
extensive legal capacity accorded to legal persons under national
in particular, acquire or dispose of movable and
law. It may,
immovable property and be a party to legal proceedings.

3.

The Agency shall be represented by its Director.

Article 3

Composition

The Agency shall comprise:

(a) an Administrative Board, which shall exercise the tasks set

out in Article 12;

(b) a Board of Regulators, which shall exercise the tasks set out

in Article 14;

(c) a Director, who shall exercise the tasks set out in Article 16;

(d) a Board of Appeal, which shall exercise the tasks set out in

Article 18.

Article 4

Type of acts of the Agency

The Agency may:

(1) OJ L 56, 4.3.1968, p. 1.
(2) OJ L 184, 17.7.1999, p. 23.

(a) issue opinions and recommendations addressed to transmis-

sion system operators;

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(b) issue opinions addressed to regulatory authorities;

(c) issue opinions and recommendations addressed to the

Commission;

(d) take individual decisions in specific cases referred to in Arti-

cles 7, 8 and 9.

CHAPTER II

Tasks

Article 5

General tasks

The Agency may, upon a request from the Commission or on
its own initiative, provide an opinion to the Commission on all
issues related to the purpose for which it has been established.

Article 6

Tasks as regards the cooperation of transmission system
operators

1.
The Agency shall provide an opinion to the Commission
on the draft statutes, list of members and draft rules of proce-
dure of the ENTSO for Electricity in accordance with Article 5(2)
of Regulation (EC) No …/2009 of the European Parliament and
of the Council of … on conditions for access to the network for
cross-border exchanges in electricity (1) and on those of the
ENTSO for Gas in accordance with Article 5(2) of Regulation
(EC) No …/2009 of
the
Council of … on conditions for access to the natural gas trans-
mission networks (1).

the European Parliament and of

2.
The Agency shall monitor the execution of the tasks of
the ENTSO for Electricity as provided for in Article 9 of Regu-
lation (EC) No …/2009 and of the ENTSO for Gas as provided
for Article 9 of Regulation (EC) No …/2009.

3.

The Agency may provide an opinion:

(a) to the ENTSO for Electricity as provided for in Article 8(2)
of Regulation (EC) No …/2009 and to the ENTSO for Gas
as provided for
in Article 8(2) of Regulation (EC)
No …/2009 on the network codes; and

(b) to the ENTSO for Electricity as provided for in the first sub-
paragraph of Article 9(2) of Regulation (EC) No …/2009
and to the ENTSO for Gas as provided for in the first sub-
paragraph of Article 9(2) of Regulation (EC) No …/2009 on
the
draft
and
non-binding 10-year network development plan.

annual work

programme

draft

the

market or a sufficient
open to third-party access.

level of cross-border interconnection

The Agency shall submit a draft non-binding framework Guide-
line to the Commission where requested to do so under
Article 6(2) of Regulation (EC) No …/2009 and Article 6(2) of
Regulation (EC) No …/2009. The Agency shall review the draft
to the
non-binding framework Guideline and re-submit
Commission where requested to do so under Article 6(4) of
Regulation (EC) No …/2009 and Article 6(4) of Regulation (EC)
No …/2009.

it

The Agency shall provide a reasoned opinion to the ENTSO for
Electricity and the ENTSO for Gas on the network code in
accordance with Article 6(7) of Regulation (EC) No …/2009
and Article 6(7) of Regulation (EC) No …/2009.

The Agency shall submit the network code to the Commission
and may recommend that it be adopted in accordance with
Article 6(9) of Regulation (EC) No …/2009 and Article 6(9) of
Regulation (EC) No …8/2009. The Agency shall prepare and
submit a draft network code to the Commission where
requested to do so under Article 6(10) of Regulation (EC)
No …/2009 and Article 6(10) of Regulation (EC) No …/2009.

5.
The Agency shall provide a duly reasoned opinion to the
Commission, in accordance with Article 9(1) of Regulation (EC)
No …/2009 and Article 9(1) of Regulation (EC) No …/2009,
where the ENTSO for Electricity or the ENTSO for Gas has
failed to implement a network code elaborated under Article 8
(2) of Regulation (EC) No …/2009 and Article 8(2) of Regu-
lation (EC) No …/2009 or a network code which has been
established in accordance with Article 6(1) to (10) of those
Regulations but which has not been adopted by the Commis-
sion under Article 6(11) of those Regulations.

The Agency shall monitor and analyse the implementation
6.
the network codes and the Guidelines adopted by the
of
Commission as laid down in Article 6(11) of Regulation (EC)
No …/2009 and in Article 6(11) of Regulation (EC)
No …/2009, and their effect on the harmonisation of applicable
rules aimed at facilitating market integration as well as on non-
func-
discrimination, effective competition and the efficient
tioning of the market, and report to the Commission.

7.
The Agency shall monitor the regional cooperation of
transmission system operators referred to in Article 12 of Regu-
lation (EC) No …/2009 and Article 12 of Regulation (EC)
No …/2009, and take due account of the outcome of this coop-
eration when formulating its opinions, recommendations and
decisions.

4.
The Agency shall provide a duly reasoned opinion as well
as recommendations to the ENTSO for Electricity, the ENTSO
for Gas and the Commission, where it considers that the draft
the draft non-binding 10-year
annual work programme or
network development plan submitted to it in accordance with
the second subparagraph of Article 9(2) of Regulation (EC) No
…/2009 and the second subparagraph of Article 9(2) of Regu-
lation (EC) No …/2009 do not contribute to non-discrimina-
tion, effective competition and the efficient functioning of the

(1) OJ L …

Article 7

Tasks as regards the national regulatory authorities

The Agency shall adopt individual decisions on technical
1.
issues where those decisions are provided for in Directive 2009/
…/EC, Directive 2009/…/EC, Regulation (EC) No …/2009 or
Regulation (EC) No …/2009.

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2.
The Agency may, in accordance with its work programme
or at the request of the Commission, adopt non-binding Guide-
lines to assist regulatory authorities and market players in
sharing good practice.

3.
The Agency shall promote cooperation between the
national regulatory authorities and between regulatory authori-
ties at regional level, and take due account of the outcome of
this cooperation when formulating its opinions, recommenda-
tions and decisions. Where the Agency considers that binding
rules on such cooperation are required, it shall make the appro-
priate recommendations to the Commission.

4.
The Agency shall provide an opinion, at the request of any
regulatory authority or of the Commission, on whether a deci-
sion taken by a regulatory authority complies with the Guide-
lines referred to in Directive 2009/…/EC, Directive 2009/…/EC,
Regulation (EC) No …/2009 or Regulation (EC) No …/2009.

5. Where a national regulatory authority does not adequately
follow the opinion of the Agency as referred to in paragraph 4
within four months from the day of receipt, the Agency shall
inform the Commission.

in a
6. When a national regulatory authority encounters,
specific case, difficulties with the application of the Guidelines
referred to in Directive 2009/…/EC, Directive 2009/…/EC,
Regulation (EC) No …/2009 or Regulation (EC) No …/2009, it
may request
the Agency for an opinion. The Agency shall
deliver its opinion, after consulting the Commission, within four
months of receiving such request.

7.
The Agency shall decide on the terms and conditions for
access to and operational security of electricity and gas infra-
structure connecting or that might connect at least two Member
States, hereinafter referred to as ‘cross-border infrastructure’, in
accordance with Article 8.

Article 8

Tasks as regards terms and conditions for access to and
operational security of cross-border infrastructure

1.
For cross-border infrastructure, the Agency shall decide
upon those regulatory issues that fall within the competence of
national regulatory authorities, which may include the terms
and conditions for access and operational security, only:

(a) where the competent national regulatory authorities have
not been able to reach an agreement within a period of six
months from when the case was referred to the last of those
regulatory authorities; or

(b) upon a joint request from the competent national regulatory

authorities.

The competent national
regulatory authorities may jointly
request that the period referred to in point (a) is extended by a
period of up to six months.

When preparing its decision,
the
national regulatory authorities and the transmission system

the Agency shall consult

operators concerned and shall be informed of the proposals and
observations
system operators
concerned.

transmission

the

all

of

The terms and conditions for access to cross-border infra-

2.
structure shall include:

(a) procedure for capacity allocation;

(b) time frames for allocation;

(c) sharing of congestion revenues;

(d) charges levied on the users of the infrastructure referred to
in Article 17(1)(d) of Regulation (EC) No …/2009 and
Article 35(1)(d) of Directive 2009/…/EC.

3. Where a case has been referred to the Agency under para-
graph 1, the Agency:

(a) shall provide its decision within a period of 6 months from

the day of referral;

(b) may, if necessary, provide an interim decision to ensure that
security of supply or operational security of the infrastruc-
ture in question is protected.

4.
The Commission may adopt Guidelines on the situations
in which the Agency becomes competent to decide upon the
terms and conditions for access to and operational security of
cross-border infrastructure. Those measures, designed to amend
non-essential elements of this Regulation by supplementing it,
shall be adopted in accordance with the regulatory procedure
with scrutiny referred to in Article 31(2) of this Regulation.

Article 9

Other tasks

1.
The Agency may, as a last resort, decide on exemptions, as
provided for in Article 17(5) of Regulation (EC) No …/2009.
The Agency may also decide on exemptions as provided for in
Article 35(4) of Directive 2009/…/EC where the infrastructure
concerned is located in the territory of more than one Member
State.

2.
The Agency shall provide an opinion, upon request by the
Commission in accordance with Article 3(1)(b) of Regulation
(EC) No …/2009 or Article 3(1)(b) of Regulation (EC)
No …/2009,on decisions of national regulatory authorities on
certification.

Article 10

Consultations

In carrying out its tasks, the Agency shall consult extensively
and at an early stage with market participants, transmission
system operators, consumers, end-users and, where relevant,
competition authorities, without prejudice to their respective
competence, in an open and transparent manner, in particular
when its tasks concern transmission system operators.

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CHAPTER III

Organisation

Article 11

Administrative Board

Article 12

Tasks of the Administrative Board

1.
The Administrative Board shall, after having consulted the
Board of Regulators and obtained its favourable opinion in
accordance with Article 14(2), appoint the Director in accord-
ance with Article 15(2).

1.
six
The Administrative Board shall be composed of
members. Each member shall have an alternate. One member
and his alternate shall be appointed by the Commission, and
five members and their alternates by the Council. The term of
office shall be four years, renewable once. For the first mandate,
the term of office shall be six years for half of the members and
their alternates.

The Administrative Board shall appoint its Chairman and
2.
its Vice-Chairman from among its members. The Vice-Chairman
shall automatically replace the Chairman if the latter is not in a
position to perform his duties. The term of office of
the
Chairman and of the Vice-Chairman shall be two years and shall
be renewable once. In any event, however, the term of office of
the Chairman and that of the Vice-Chairman shall expire when
they cease to be members of the Administrative Board.

3. Meetings of the Administrative Board shall be convened
by its Chairman. The Chairman of the Board of Regulators, or
the nominee of that Board, and the Director of the Agency shall
participate in the deliberations unless the Administrative Board
decides otherwise as regards the Director. The Administrative
Board shall meet at least twice a year in ordinary session. It
shall also meet at the initiative of its Chairman, at the request of
the Commission or at the request of at least a third of its
members. The Administrative Board may invite any person with
a potentially relevant opinion to attend its meetings in the capa-
city of an observer. The members of the Administrative Board
may, subject to the rules of procedure, be assisted by advisers or
experts. The Administrative Board's secretarial services shall be
provided by the Agency.

Decisions of the Administrative Board shall be adopted on

4.
the basis of a two-thirds majority of the members present.

Each member shall have one vote. The rules of procedure

5.
of the Administrative Board shall set out in greater detail:

(a) the arrangements governing voting, especially the conditions
on the basis of which one member may act on behalf of
another and also, where appropriate, the rules governing
quorums;

(b) the arrangements governing the rotation applicable for the
renewal of the members of the Board who are appointed by
the Council so as to ensure a balanced participation of
Member States over time.

A member of the Administrative Board shall not be a

6.
member of the Board of Regulators.

7.
The members of the Administrative Board shall undertake
to act independently in the public interest. For that purpose,
each shall make a declaration of commitments and a declaration
of interests indicating either the absence of any interest which
may be considered prejudicial to his independence or any direct
or indirect interest which might be considered prejudicial to his
independence. Those declarations shall be made public annually
and in writing.

The Administrative Board shall

the Board of Regulators

2.
members of
Article 13(1).

formally appoint

the
in accordance with

The Administrative Board shall
the Board of Appeal

3.
members of
Article 17(1).

formally appoint
the
in accordance with

The Administrative Board shall ensure that the Agency
4.
carries out its mission and performs the tasks assigned to it in
accordance with this Regulation.

The Administrative Board shall adopt, before 30 September
5.
each year, after consulting the Commission and after approval
by the Board of Regulators in accordance with Article 14(3), the
work programme of the Agency for the coming year and shall
transmit it to the European Parliament, the Council and the
Commission. The work programme shall be adopted without
prejudice to the annual budgetary procedure and shall be made
public.

The Administrative Board shall adopt and,

6.
if necessary,
revise a multi-annual programme. That revision shall be based
on an evaluation report, made by an independent external
expert at the request of the Administrative Board. Those docu-
ments shall be made public.

The Administrative Board shall exercise its budgetary

7.
powers in accordance with Articles 20 to 23.

8.
The Administrative Board shall decide, after having
obtained the agreement of the Commission, whether to accept
any legacies, donations or grants
from other Community
sources or any voluntary contribution from the Member States
or from their regulatory authorities. The opinion that the Board
shall deliver pursuant to Article 23(5) shall explicitly address the
sources of funding listed in this paragraph.

The Administrative Board, in consultation with the Board
the

9.
of Regulators, shall exercise disciplinary authority over
Director.

The Administrative Board shall, where necessary, draw

10.
up the Agency's staff policy pursuant to Article 27(2).

The Administrative Board shall adopt the special provi-
in

11.
sions on right of access to the documents of the Agency,
accordance with Article 29.

it

to the European Parliament,

The Administrative Board shall adopt and publish the
12.
annual report on the activities of the Agency, on the basis of
the draft annual report referred to in Article 16(8), and shall
transmit
the
Commission, the Court of Auditors and the European Economic
and Social Committee by 15 June. The annual report shall
contain an independent section, approved by the Board of Regu-
lators, concerning the regulatory activities of the Agency during
the year considered.

the Council,

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The Administrative Board shall adopt and publish its

13.
own rules of procedure.

Article 13

Board of Regulators

1.

The Board of Regulators shall be composed of:

(a) senior

representatives of

the regulatory authorities, as
referred to in Article 34(1) of Directive 2009/…/EC and
Article 38(1) of Directive 2009/…/EC, and one alternate per
Member State from current senior staff of these authorities;

(b) one non-voting representative of the Commission.

The Board of Regulators shall elect a Chairman and a
2.
Vice-Chairman from among its members. The Vice-Chairman
shall replace the Chairman if the latter is not in a position to
perform his duties. The term of office of the Chairman and of
the Vice-Chairman shall be two-and-a-half years and shall be
renewable. In any event, however, the term of office of the
Chairman and that of the Vice-Chairman shall expire when they
cease to be members of the Board of Regulators.

The Board of Regulators shall act by a two-thirds majority
3.
of its members present. Each member or alternate shall have
one vote.

The Board of Regulators shall adopt and publish its Rules
4.
of procedure. The rules of procedure shall set out in greater
detail the arrangements governing voting, especially the condi-
tions whereby one member may act on behalf of another and
also, where appropriate, the rules governing quorums. The rule
of procedures may provide for specific working methods for the
consideration of issues arising in the context of regional coop-
eration initiatives.

5. When carrying out the tasks conferred upon it by this
Regulation and without prejudice to its members acting on
behalf of
their respective regulatory authority, the Board of
Regulators shall act independently and shall not seek or take
instructions from any government of a Member State, from the
Commission, or from any public or private entity.

The Board of Regulators' secretarial services shall be

6.
provided by the Agency.

Article 14

Tasks of the Board of Regulators

The Board of Regulators shall provide an opinion to the
1.
Director on the opinions,
recommendations and decisions
referred to in Articles 5, 6, 7, 8 and 9 that are considered for
adoption. In addition, the Board of Regulators, within its field of
competence, shall provide guidance to the Director in the execu-
tion of the Director's tasks.

2.
The Board of Regulators shall deliver an opinion to the
Administrative Board on the candidate to be appointed as
Director in accordance with Article 12(1) and Article 15(2). The
Board of Regulators shall reach that decision on the basis of a
three-quarters majority of its members.

shall,

The Board of Regulators

3.
in accordance with
Article 12(5) and Article 16(6) and in line with the preliminary
draft budget established according to Article 22(1), approve the
the Agency for the coming year and
work programme of
present it before 1 September for adoption by the Administra-
tive Board.

The Board of Regulators shall approve the independent
4.
section on regulatory activities of the annual report, as provided
for in Article 12(12) and Article 16(8).

Article 15

Director

1.
The Agency shall be managed by its Director, who shall
act in accordance with the guidance referred to in the second
sentence of Article 14(1) and, where provided for in this Regu-
lation, the opinions of the Board of Regulators. Without preju-
dice to the respective roles of the Administrative Board and the
Board of Regulators in relation to the tasks of the Director, the
Director shall neither seek nor accept any instruction from any
government, from the Commission, or from any other public or
private entity.

2.
The Director shall be appointed by the Administrative
Board following a favourable opinion of the Board of Regula-
tors, on the basis of merit as well as skills and experience, from
a list of at least three candidates proposed by the Commission,
following a public call for expression of interest. Before appoint-
ment, the candidate selected by the Administrative Board may
be invited to make a statement before the competent committee
of the European Parliament and to answer questions put by its
members.

3.
The Director's term of office shall be five years. In the
course of the nine months preceding the end of this period, the
Commission shall undertake an assessment addressing in par-
ticular:

(a) the performance of the Director;

(b) the Agency's duties and requirements in the coming years.

The assessment concerning point (b) shall be carried out with
the assistance of an independent external expert.

taking into account

The Administrative Board, acting on a proposal from the
4.
Commission,
the assessment and the
opinion of the Board of Regulators on this assessment and only
in those cases where it can be justified by the duties and require-
ments of the Agency, may extend once the term of office of the
Director for not more than three years.

The Administrative Board shall

5.
inform the European
its intention to extend the Director's term of
Parliament of
office. Within one month before the extension of his term of
office, the Director may be invited to make a statement before
the competent committee of the Parliament and to answer ques-
tions put by its members.

If his term of office is not extended, the Director shall

6.
remain in office until the appointment of his successor.

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7.
The Director may be removed from office only upon a
decision of the Administrative Board, after having obtained a
favourable
Regulators.
the
The Administrative Board shall reach this decision on the basis
of a three-quarters majority of its members.

opinion

Board

of

of

8.
The European Parliament and the Council may call upon
the Director to submit a report on the performance of his
duties.

Article 16

Tasks of the Director

The Director shall be responsible for representing the

1.
Agency and shall be in charge of its management.

2.
The Director shall prepare the work of the Administrative
Board. He shall participate, without having the right to vote, in
the work of the Administrative Board.

3.
The Director shall adopt and publish the opinions, recom-
mendations and decisions referred to in Articles 5, 6, 7, 8 and 9,
that have received a favourable opinion of
the Board of
Regulators.

4.
The Director shall be responsible for implementing the
annual work programme of the Agency under the guidance of
the Board of Regulators and under the administrative control of
the Administrative Board.

The Director shall take the necessary measures, notably
5.
the adoption of
internal administrative instructions and the
publication of notices, to ensure the functioning of the Agency
in accordance with this Regulation.

Each year

the Director

6.
shall prepare a draft work
programme of the Agency for the following year, and submit it
to the Board of Regulators and to the Commission by 30 June
of that year.

7.
The Director shall draw up a preliminary draft budget of
the Agency pursuant to Article 22(1) and shall implement the
budget of the Agency pursuant to Article 23.

8.
Each year the Director shall prepare a draft annual report
with an independent section on the regulatory activities of the
Agency and a section on financial and administrative matters.

9. With regard to the staff of the Agency, the Director shall
exercise the powers provided for in Article 27(3).

Article 17

Board of Appeal

The Board of Appeal shall be composed of six members
1.
and six alternates selected from among current or former senior
staff of the national regulatory authorities, competition authori-
ties or other national or Community institutions with relevant
experience in the energy sector. The Board of Appeal designates
its Chairman. The decisions of the Board of Appeal shall be
adopted on the basis of a qualified majority of at least four of
its six members. The Board of Appeal shall be convened when
necessary.

2.
The members of the Board of Appeal shall be appointed
by the Administrative Board, on a proposal from the Commis-
sion, following a public call for expression of
interest, after
consultation of the Board of Regulators.

3.
The term of office of the members of the Board of Appeal
shall be five years. This term shall be renewable. The members
of the Board of Appeal shall be independent in making their
decisions. They shall not be bound by any instructions. They
may not perform any other duties in the Agency, in its Adminis-
trative Board or in its Board of Regulators. A member of the
Board of Appeal may not be removed during his term of office,
unless he has been found guilty of serious misconduct, and the
Administrative Board, after consulting the Board of Regulators,
takes a decision to this effect.

4. Members of the Board of Appeal may not take part in any
appeal proceedings if they have any personal interest therein, or
if they have previously been involved as representatives of one
of the parties to the proceedings, or if they participated in the
decision under appeal.

5.
If, for one of the reasons referred to in paragraph 4 or for
any other reason, a member of a Board of Appeal considers that
a fellow member should not take part in any appeal proceed-
inform the Board of Appeal
ings, the former member shall
accordingly. Any party to the appeal proceedings may object to
the participation of a member of the Board of Appeal on any of
the grounds referred to in paragraph 4, or if suspected of bias.
An objection may not be based on the nationality of members
nor shall it be admissible if, while being aware of a reason for
objecting, the party to the appeal proceedings has nonetheless
taken a procedural step other than objecting to the composition
of the Board of Appeal.

6.
The Board of Appeal shall decide on the action to be
taken in the cases specified in paragraphs 4 and 5 without the
participation of the member concerned. For the purpose of
taking that decision, the member concerned shall be replaced
on the Board of Appeal by his alternate, unless the alternate
finds himself in a similar situation. Should this be the case, the
Chairman shall designate a replacement from among the avail-
able alternates.

7.
The members of the Board of Appeal shall undertake to
act independently in the public interest. For that purpose, they
shall make a declaration of commitments and a declaration of
interests indicating either the absence of any interest which may
be considered prejudicial to their independence or any direct or
indirect interest which might be considered prejudicial to their
independence. Those declarations shall be made public annually
and in writing.

Article 18

Appeals

1.
Any natural or legal person, including national regulatory
authorities, may appeal against a decision referred to in Arti-
cles 7, 8 and/or 9 which is addressed to that person, or against
a decision which, although in the form of a decision addressed
to another person, is of direct and individual concern to that
person.

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The appeal,

2.
together with the statement of grounds
thereof, shall be filed in writing at the Agency within two
months of the day of notification of the decision to the person
concerned, or, in the absence thereof, of the day on which the
Agency has published its decision. The Board of Appeal shall
decide upon the appeal within two months after the appeal has
been lodged.

An appeal lodged pursuant to paragraph 1 shall not have
3.
suspensory effect. The Board of Appeal may, however,
it
considers that circumstances so require, suspend the application
of the contested decision.

if

If

the appeal

4.
is admissible, the Board of Appeal shall
examine whether it is well-founded. It shall invite the parties as
often as necessary to the appeal proceedings to file observations
on notifications issued by itself or on communications from the
other parties to the appeal proceedings, within specified time
limits. Parties to the appeal proceedings shall be entitled to
make an oral presentation.

The Board of Appeal may, within the terms of this Article,
5.
exercise any power which lies within the competence of the
Agency, or it may remit the case to the competent body of the
Agency. The latter shall be bound by the decision of the Board
of Appeal.

The Board of Appeal shall adopt and publish its rules of

6.
procedure.

The decisions taken by the Board of Appeal shall be

7.
published by the Agency.

Article 19

Actions before the Court of First Instance and the Court of
Justice

1.
An action may be brought before the Court of First
Instance or the Court of Justice, in accordance with Article 230
the Treaty, contesting a decision taken by the Board of
of
Appeal or,
in cases where no right lies before the Board of
Appeal, by the Agency.

2.
In the event that the Agency fails to take a decision,
proceedings for failure to act may be brought before the Court
of First Instance or the Court of Justice in accordance with
Article 232 of the Treaty.

3.
The Agency shall be required to take the necessary
measures to comply with the judgment of the Court of First
Instance or the Court of Justice.

CHAPTER IV

Financial provisions

Article 20

Budget of the Agency

(b) the fees paid to the Agency pursuant to Article 21;

(c) any voluntary contribution from the Member States or from
their regulatory authorities, as referred to in Article 12(8);

(d) any legacies, donations or grants

as

referred to in

Article 12(8).

The expenditure shall cover staff, administrative,

2.
structure, and operational expenses.

infra-

3.

Revenue and expenditure shall be in balance.

All Agency revenue and expenditure shall be the subject of
4.
forecasts for each financial year, coinciding with the calendar
year, and shall be entered in its budget.

Article 21

Fees

Fees shall be due to the Agency for requesting an exemp-

1.
tion decision pursuant to Article 9(1).

The fees referred to in paragraph 1 shall be set by the

2.
Commission.

Article 22

Establishment of the budget

1.
By 15 February each year, the Director shall draw up a
preliminary draft budget covering the operational expenditure
and the programme of work anticipated for the following finan-
cial year, and shall forward this preliminary draft budget to the
Administrative Board, together with a list of provisional posts.
Each year, the Administrative Board shall, on the basis of the
preliminary draft budget prepared by the Director, make an esti-
the
mate of
following financial year. That estimate, including a draft estab-
lishment plan, shall be transmitted by the Administrative Board
to the Commission by 31 March. Prior to adoption of the esti-
mate, the draft prepared by the Director shall be transmitted to
the Board of Regulators, which may deliver an opinion on the
draft.

revenue and expenditure of

the Agency for

2.
The estimate shall be transmitted by the Commission to
the European Parliament and to the Council, hereinafter referred
to as the ‘budgetary authority’, together with the preliminary
draft general budget of the European Union.

3.
On the basis of the estimates, the Commission shall enter
in the preliminary draft general budget of the European Union
the forecasts it considers necessary in respect of the establish-
ment plan and the amount of the grant to be charged to the
general budget of
the European Union in accordance with
Article 272 of the Treaty.

The budgetary authority shall adopt

4.
plan for the Agency.

the establishment

1.

The revenues of the Agency shall consist, in particular, of:

(a) a subsidy from the Community, entered in the general

budget of the European Union (Commission Section);

The budget of

the Agency shall be drawn up by the
5.
Administrative Board. It shall become final after the final adop-
tion of the general budget of the European Union. Where neces-
sary, it shall be adjusted accordingly.

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financial

6.
The Administrative Board shall, without delay, notify the
budgetary authority of its intention to implement any project
which may have significant
the
funding of its budget, in particular any project relating to prop-
erty such as the rental or purchase of buildings. It shall inform
the Commission thereof. If either branch of the budget authority
intends to issue an opinion, it shall, within two weeks of receipt
of the information on the building project, notify the Agency of
its intention to issue such an opinion. In the absence of a reply,
the agency may proceed with the planned operation.

implications

for

Article 23

Implementation and control of the budget

The Director shall act as authorising officer and shall

1.
implement the Agency's budget.

shall

By 1 March following the completion of each financial
2.
year,
forward to the
the Agency accounting officer
Commission's accounting officer and the Court of Auditors the
provisional accounts, accompanied by the report on budgetary
and financial management over the financial year. The Agency
accounting officer shall also send the report on budgetary and
financial management
to the European Parliament and the
Council by 31 March of the following year. The Commission's
accounting officer
the provisional
accounts of the institutions and decentralised bodies in accord-
ance with Article 128 of Council Regulation (EC, Euratom)
No 1605/2002 of 25 June 2002 on the Financial Regulation
applicable
the
European Communities (1) (‘the Financial Regulation’).

then consolidate

general

budget

shall

the

to

of

3.
By 31 March following the completion of each financial
forward the
year,
the Commission's accounting officer shall
provisional accounts of the Agency, accompanied by the report
on budgetary and financial management over the financial year,
to the Court of Auditors. The report on budgetary and financial
management over the financial year shall also be forwarded to
the European Parliament and the Council.

4.
After receiving the observations of the Court of Auditors
on the provisional accounts of the Agency in accordance with
the provisions of Article 129 of the Financial Regulation, the
Director, acting on his own responsibility, shall draw up the
final accounts of the Agency and transmit them, for opinion, to
the Administrative Board.

The Administrative Board shall deliver an opinion on the

5.
final accounts of the Agency.

6.
The Director shall transmit those final accounts, accompa-
nied by the opinion of the Administrative Board, by 1 July
following the completion of the financial year, to the European
Parliament,
the Commission and the Court of
Justice.

the Council,

7.

The final accounts shall be published.

8.
The Director shall send the Court of Auditors a reply to
the latter's observations by 15 October. He shall also send a
reply to the Administrative Board and the
this
copy of
Commission.

9.
The Director shall submit to the European Parliament, at
the latter's request and as provided for in Article 146(3) of the
Financial Regulation, any information necessary for the smooth
application of the discharge procedure for the financial year in
question.

10.
The European Parliament, following a recommendation
from the Council acting by qualified majority, shall, before
15 May of the year N + 2, grant a discharge to the Director for
the implementation of the budget for the financial year N.

Article 24

Financial rules

The financial rules applicable to the Agency shall be drawn up
by the Administrative Board after consulting the Commission.
Those rules may deviate from Regulation (EC, Euratom)
No 2343/2002 if the specific operational needs for the func-
tioning of the Agency so require and only with the prior agree-
ment of the Commission.

Article 25

Anti-fraud measures

illegal

activity,

For the purposes of combating fraud, corruption and any
1.
other
the provisions of Regulation (EC)
No 1073/1999 of the European Parliament and of the Council
of 25 May 1999 concerning investigations conducted by the
European Anti-Fraud Office (OLAF) (2)
shall apply to the
Agency without any restriction.

2.
The Agency shall accede to the Interinstitutional Agree-
ment of 25 May 1999 between the European Parliament, the
Council of the European Union and the Commission of the
investigations by
European Communities concerning internal
the European Anti-Fraud Office (OLAF) (3) and shall
immedi-
ately adopt appropriate provisions for all staff of the Agency.

The funding decisions and the agreements and the imple-
3.
menting instruments resulting from them shall explicitly stipu-
late that the Court of Auditors and OLAF may, if need be, carry
out on-the-spot checks on the beneficiaries of monies disbursed
by the Agency as well as on the staff responsible for allocating
these monies.

CHAPTER V

General provisions

Article 26

Privileges and immunities

The Protocol on Privileges and Immunities of the European
Communities shall apply to the Agency.

(1) OJ L 248, 16.9.2002, p. 1.

(2) OJ L 136, 31.5.1999, p. 1.
(3) OJ L 136, 31.5.1999, p. 15.

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Article 27

Staff

Article 30

Participation of third countries

1.
The Staff Regulations, the Conditions of employment and
the rules adopted jointly by the European Community institu-
tions for the purpose of applying the Staff Regulations and the
the
Conditions of employment shall apply to the staff of
Agency, including its Director.

1.
The Agency shall be open to the participation of third
countries which have concluded agreements with the Com-
munity whereby they have adopted and are applying Com-
munity law in the field of energy and, if relevant, in the fields of
environment and competitiveness.

2.
The Administrative Board, in agreement with the Commis-
in
sion, shall adopt
accordance with the arrangements provided for in Article 110
of the Staff Regulations.

the necessary implementing measures,

In respect of its staff, the Agency shall exercise the powers
3.
conferred on the appointing authority by the Staff Regulations
and on the authority entitled to conclude contracts by the
Conditions of Employment.

4.
The Administrative Board may adopt provisions to allow
national experts from Member States to be employed on
secondment at the Agency.

Article 28

Liability of the Agency

the

Under

2.
those agreements,
relevant provisions of
arrangements shall be made specifying, in particular, the nature,
scope and procedural aspects of the involvement of those coun-
tries in the work of the Agency, including provisions relating to
financial contributions and to staff.

Article 31

Committee

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.

1.
In the case of non-contractual liability, the Agency shall,
in accordance with the general principles common to the laws
of the Member States, make good any damage caused by it or
by its staff in the performance of their duties. The Court of
Justice shall have jurisdiction in any dispute over the remedying
of such damage.

Article 32

Language arrangements

1.
The provisions of Council Regulation No 1 of 15 April
1958 determining the languages to be used by the European
Economic Community (2) shall apply to the Agency.

The personal financial liability and disciplinary liability of
2.
Agency staff towards the Agency shall be governed by the rele-
vant provisions applying to the staff of the Agency.

The Administrative Board shall decide on the internal

2.
language arrangements for the Agency.

Article 29

Access to documents

3.
The translation services required for the functioning of the
Agency shall be provided by the Translation Centre for the
Bodies of the European Union.

Regulation (EC) No 1049/2001 of

1.
European
Parliament and of the Council of 30 May 2001 regarding public
access to European Parliament, Council and Commission docu-
ments (1) shall apply to documents held by the Agency.

the

The Administrative Board shall adopt practical measures

2.
for applying Regulation (EC) No 1049/2001 by … (*).

3.
Decisions taken by the Agency pursuant to Article 8 of
Regulation (EC) No 1049/2001 may be the subject of a
complaint to the Ombudsman or of proceedings before the
Court of Justice, in accordance with the conditions laid down in
Articles 195 and 230 of the Treaty respectively.

CHAPTER VI

Final provisions

Article 33

Evaluation

1.
The Commission, with the assistance of an independent
external expert, shall carry out an evaluation of the activities of
the Agency. This shall cover the results achieved by the Agency
and its working methods, in relation with its objective, mandate
and tasks defined in this Regulation and in its annual work
programmes.

(1) OJ L 145, 31.5.2001, p. 43.
(*) Six months from the date of entry into force of this Regulation.

(2) OJ 17, 6.10.1958, p. 385.

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2.
The Board of Regulators shall receive the findings of the
evaluation and issue recommendations regarding changes to this
Regulation,
to the
Commission, which may forward them, together with its own
opinion as well as appropriate proposals,
to the European
Parliament and the Council.

the Agency and its working methods

3.
The first evaluation report shall be presented by the
Commission to the European Parliament and the Council within
four years after the first Director has taken up his duties. The

Commission shall then present an evaluation report at least
every five years.

Article 34

Entry into force and transitory measures

This Regulation shall enter into force on the twentieth day
Journal of the

1.
following that of its publication in the Official
European Union.

2.

Articles 5, 6, 7, 8, 9 and 10 shall apply from … (*).

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at, Brussels, …

For the European Parliament

The President

…

For the Council

The President

…

(*) 18 months after entry into force of this Regulation.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 19 September 2007, the Commission presented a proposal for a Regulation establishing an
Agency for the Cooperation of Energy Regulators, based on Article 95 of the Treaty, together in a
package with four other proposals concerning the internal energy market.

2. The Committee of the Regions and the European Economic and Social Committee delivered their

opinions on the complete package on 10 (1) and 22 April 2008 (2) respectively.

3. The European Parliament adopted its Opinion (3) at first reading on 18 June 2008, approving

73 amendments. The Commission did not present a modified proposal.

4. On 9 January 2009, the Council adopted its Common Position in accordance with Article 251 of the

Treaty.

II. OBJECTIVE OF THE PROPOSAL

5. The proposal

is part of the third internal energy market package, together with the Directive
concerning common rules for the internal market in natural gas, the Regulation on conditions for
access to the natural gas transmission networks, the Directive concerning common rules for the
internal market in electricity and the Regulation on conditions for access to the network for cross-
border exchanges in electricity. It contributes to putting in place the regulatory framework needed to
make market opening fully effective and create a single gas and electricity market by establishing an
Agency for the purpose of assisting regulatory authorities in exercising at Community level the regu-
latory tasks performed at national level, and where necessary to coordinate their action.

III. ANALYSIS OF THE COMMON POSITION

6. General Remarks

6.1. The Commission has accepted all the changes introduced by the Council to its proposal.

6.2. Concerning the 73 amendments adopted by the European Parliament, the Council has followed the

Commission in

— accepting the following 25 amendments:

fully (sometimes with redrafting): 9, 12, 45, 47, 48, 49, 53, 54, 58, 59 and 66

partly/in principle/in spirit: 3, 4, 11 (first part), 13, 15, 16, 40, 44, 51, 57, 61, 64, 68 and 76;
and

— rejecting the following 25 amendments: 8, 17, 18, 20, 21, 22, 25, 29, 30, 34, 36, 37, 38, 46,
50, 52, 55, 56, 60, 62, 63, 67, 69, 71 and 73, on grounds of substance, form or consistency.

6.3. The Council has deviated from the Commission position in

— accepting in substance amendment 65 and

— rejecting the following 23 amendments: 5, 6, 7, 10, 11 (second part), 14, 19, 24, 26, 27, 28,

31, 32, 33, 35, 39, 41, 42, 43, 70, 72, 74 and 75.

(1) OJ C 172, 5.7.2008, p. 55.
(2) OJ C 211, 19.8.2008, p. 23.
(3) Not yet published in the Official Journal.

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7.

Specific Remarks

7.1. Regarding the EP amendments where the Council has deviated from the Commission position:

a) The Council has accepted amdt. 65 (in line with the Director having to act strictly in accordance

with the Board of Regulators' instructions).

b) The Council has rejected the 23 amendments listed above (point 6.3.) on the following grounds:

i) amdt. 5: duplicates tasks already carried out by the Commission and is not in line with

the tasks foreseen in the Commission proposal

ii) amdt. 6: no added value and incorrect as cooperation of national regulators will continue

to take place outside the framework provided by the Agency

iii) amdt. 7: renders the Agency's scope unclear and contradicts the non-binding nature of

some of its acts

iv) amdt. 10: mixes up the independence of national regulators, provided for by the Electricity

and Gas Directives, with that of the Agency's bodies.

v) amdt. 11 (second part): no added value and not consistent with the Director's tasks

vi) amdt. 14: not in line with the operative provisions of the Regulation

vii) amdt. 19: mixes up the acts of the Agency with its tasks as described in articles 5 to 10

viii) amdt. 24: Art. 30 (participation of third countries) suffices to ensure adequate involve-

ment of third countries in the Agency's work

ix) amdt. 26: the Council notes that the Commission could only accept this amdt. for indivi-
dual decisions in specific cases under precisely defined conditions. Moreover the Council
sees no basis to delegate the Commission's powers in these matters and further notes that
the amendment would restrict the powers of the Agency to technical codes only while
market codes should be covered as well by the Agency's opinions

x) amdt. 27 and 28: largely covered by Art. 6(6), 7(3) and 8(1) third sub-paragraph

xi) amdt. 31: the Agency cannot ensure cooperation between regulators

xii) amdt. 32: and 33: these tasks normally fall under the Commission's remit

xiii) amdt. 39: duplicates tasks foreseen under Directive 2004/67 on the security of natural gas
supply and Directive 2005/89 on the security of electricity supply and infrastructure
investment

xiv) amdt. 42: art. 7 of the proposal is directed at national regulators not at TSOs

xv) amdt. 35, 41 and 43: amdt. 35 and 41 duplicate each other and, as well as amdt. 43,
duplicate tasks already carried out by the Commission pursuant to the Electricity and Gas
Directives.

xvi) amdt. 70: contrary (c) to the voluntary nature of national contributions and (ca) unwork-

able in practice

xvii) amdt. 72: it could be left to the rules of procedures of the Regulatory Board how it

should formulate its opinion

xviii) amdt. 74: it should be left to the Commission to decide whether and how widely to

consult when carrying out its evaluation

xix) amdt. 75: the time period envisaged in this amendment is too short to allow for a mean-

ingful evaluation.

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7.2 Concerning the Commission proposal, the Council has introduced certain other modifications (of
substance and/or of form) so as to provide for a regulatory Agency, independent from the Member
States and the Commission, with well circumscribed tasks that strictly reflects the tasks entrusted
to the Agency by the Electricity and Gas Directives and Regulations. The Agency focuses on issues
involving more than one Member State as far as binding decision-making is concerned; its involve-
ment in technical matters (establishment of network codes) has been strengthened, but is still of an
advisory nature. It generally allows for the national levels to play their parts (e.g. two-step approach
for defining terms and conditions for access and operational security for cross-border infrastructure
(Art. 8)). In all these tasks, market participants and authorities at national levels are duly consulted
(Art. 8(1), 10) and due account is taken of the outcomes of regional cooperation between TSOs
and between regulators (Art. 6(6) and 7(3)).

The Common Position provides (Art. 13) for a strong Regulatory Board, composed of senior repre-
sentatives of national regulators, and a Director of the Agency acting in accordance with the Regu-
latory Board. It also foresees a lean and efficient Administrative Board (Art. 11), consisting of
6 members (as suggested by the EP, amdt 44), five of them being appointed by the Council and
one by the Commission, with partial rotation ensuring adequate participation of Member States
over time. With a view to improving democratic accountability, transparency provisions have been
significantly strengthened, e.g. on the interests of Board members (e.g. Art. 11(7))).

With a view to adapting the Agency in the light of experience the Common Position introduces a
review mechanism (Art. 33(2)) with a strong input from the Regulatory Board.