Article 65 Independence of the staff and the management of the transmission system operator
1. Decisions regarding the appointment and renewal, working conditions including remuneration, and termination of the term of office of the persons responsible for the management or members of the administrative bodies of the transmission system operator shall be taken by the Supervisory Body of the transmission system operator appointed in accordance with Article 66. 2. The identity of, and the conditions governing the term, the duration and the termination of office of, the persons nominated by the Supervisory Body for appointment or renewal as persons responsible for the executive management or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if the regulatory authority has raised no objections within three weeks of the notification. The regulatory authority may object to the decisions referred to in paragraph 1 where: (a) doubts arise as to the professional independence of a nominated person responsible for the management or a member of the administrative bodies; or (b) in the case of premature termination of a term of office, doubts exist regarding the justification of such premature termination. 3. No professional position or responsibility, interest or business relationship, directly or indirectly, with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator shall be exercised for a period of three years before the appointment of the persons responsible for the management or members of the administrative bodies of the transmission system operator who are subject to this paragraph. 4. The persons responsible for the management or members of the administrative bodies, and employees of the transmission system operator shall have no other professional position or responsibility, interest or business relationship, directly or indirectly, with any other part of the vertically integrated undertaking or with its controlling shareholders. 5. The persons responsible for the management or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive any financial benefit, directly or indirectly, from any part of the vertically integrated undertaking other than the transmission system operator. Their remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator. 6. Effective rights of appeal to the regulatory authority shall be guaranteed for any complaints by the persons responsible for the management or members of the administrative bodies of the transmission system operator against premature terminations of their term of office. 7. After termination of their term of office in the transmission system operator, the persons responsible for its management or members of its administrative bodies shall have no professional position or responsibility, interest or business relationship with any part of the vertically integrated undertaking other than the transmission system operator, or with its controlling shareholders, for a period of not less than four years. 8. Paragraph 3 shall apply to the majority of the persons responsible for the management or members of the administrative bodies of the transmission system operator. The persons responsible for the management or members of the administrative bodies of the transmission system operator who are not subject to paragraph 3 shall have exercised no management or other relevant activity in the vertically integrated undertaking for a period of at least six months before their appointment. The first subparagraph of this paragraph and paragraphs 4 to 7 shall be applicable to all the persons belonging to the executive management and to those directly reporting to them on matters related to the operation, maintenance or development of the network.
Article 66 Supervisory Body
1. The transmission system operator shall have a Supervisory Body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual and longer-term financial plans, the level of indebtedness of the transmission system operator and the amount of dividends distributed to shareholders. The decisions falling under the remit of the Supervisory Body shall exclude those that are related to the day-to-day activities of the transmission system operator and management of the network, and in relation to activities necessary for the preparation of the ten-year network development plan developed pursuant to Article 55. 2. The Supervisory Body shall be composed of members representing the vertically integrated undertaking, members representing third party shareholders and, where the relevant national law so provides, members representing other interested parties such as employees of the transmission system operator. 3. Article 65(2), first subparagraph, and Article 65(3) to (7) shall apply to at least half of the members of the Supervisory Body minus one. Article 65(2), second subparagraph, point (b), shall apply to all the members of the Supervisory Body.
Article 67 Compliance programme and compliance officer
1. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that discriminatory conduct is excluded, and ensure that compliance with that programme is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. It shall be subject to approval by the regulatory authority. Without prejudice to the powers of the regulatory authority, compliance with the programme shall be independently monitored by a compliance officer. 2. The compliance officer shall be appointed by the Supervisory Body, subject to approval by the regulatory authority. The regulatory authority may refuse the approval of the compliance officer only for reasons of lack of independence or professional capacity. The compliance officer may be a natural or legal person. Article 65(2) to (8) shall apply to the compliance officer. 3. The compliance officer shall be in charge of: (a) monitoring the implementation of the compliance programme; (b) elaborating an annual report setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority; (c) reporting to the Supervisory Body and issuing recommendations on the compliance programme and its implementation; (d) notifying the regulatory authority on any substantial breaches with regard to the implementation of the compliance programme; (e) reporting to the regulatory authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator. 4. The compliance officer shall submit the proposed decisions on the investment plan or on individual investments in the network to the regulatory authority. This shall occur at the latest when the management or the competent administrative body of the transmission system operator submits them to the Supervisory Body. 5. Where the vertically integrated undertaking, in the general assembly or through the vote of the members of the Supervisory Body it has appointed, has prevented the adoption of a decision with the effect of preventing or delaying investments, which under the ten-year network development plan was to be executed in the following three years, the compliance officer shall report this to the regulatory authority, which then shall act in accordance with Article 55. 6. The conditions governing the mandate or the employment conditions of the compliance officer, including the duration of its mandate, shall be subject to approval by the regulatory authority. Those conditions shall ensure the independence of the compliance officer, including by providing it with all the resources necessary for fulfilling its duties. During its mandate, the compliance officer shall have no other professional position, responsibility or interest, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders. 7. The compliance officer shall report regularly, either orally or in writing, to the regulatory authority and shall have the right to report regularly, either orally or in writing, to the Supervisory Body of the transmission system operator. 8. The compliance officer may attend all meetings of the management or administrative bodies of the transmission system operator, and those of the Supervisory Body and the general assembly. The compliance officer shall attend all meetings that address the following matters: (a) conditions for access to the network established by Regulation (EU) 2024/1789, in particular regarding tariffs, third-party access services, capacity allocation and congestion management, transparency, balancing and secondary markets; (b) projects undertaken in order to operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity and in optimisation of existing capacity; (c) energy purchases or sales necessary for the operation of the transmission system. 9. The compliance officer shall monitor the compliance of the transmission system operator with Article 40. 10. The compliance officer shall have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of the compliance officer’s task. 11. After prior approval by the regulatory authority, the Supervisory Body may dismiss the compliance officer. It shall dismiss the compliance officer for reasons of lack of independence or professional capacity upon request of the regulatory authority. 12. The compliance officer shall have access to the offices of the transmission system operator without prior announcement.
Article 68 Unbundling of hydrogen transmission network operators
1. Member States shall ensure that from 5 August 2026 hydrogen transmission network operators are unbundled in accordance with the rules for natural gas transmission system operators set out in Article 60. 2. For the purpose of this Article, of Articles 46 and 60 of this Directive, and of Articles 35 and 43 of Directive (EU) 2019/944, production or supply shall include production and supply of hydrogen, and transmission shall include transport of hydrogen. 3. A Member State may decide not to apply paragraph 1 of this Article to hydrogen transmission networks belonging to a vertically integrated undertaking. In such case, the Member State concerned shall designate an independent hydrogen transmission network operator unbundled in accordance with the rules on independent system operators for natural gas set out in Article 61. Hydrogen transmission network operators and transmission system operators for natural gas unbundled in accordance with Article 60(1) may act as independent hydrogen transmission network operators, subject to the requirements pursuant to Article 69. 4. Where a hydrogen transmission network belongs to one or more certified transmission system operators for natural gas or where, on 4 August 2024, a hydrogen transmission network belongs to a vertically integrated undertaking active in hydrogen production or supply, Member States may decide not to apply paragraph 1 of this Article and designate an entity under the sole control of the transmission system operator or the joint control of two or more transmission system operators, or under the sole control of the vertically integrated undertaking active in hydrogen production or supply as an integrated hydrogen transmission network operator unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of this Chapter. Notwithstanding the first subparagraph of this paragraph, where a Member State has granted a derogation from the requirements of Article 69 pursuant to paragraph 2 of that Article and a hydrogen transmission network belongs to one or more certified transmission system operators for natural gas unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of this Chapter, Member States may decide not to apply paragraph 1 of this Article and to designate that entity or an entity under the joint control of two or more transmission system operators as an integrated hydrogen transmission network operator unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of this Chapter. Where an undertaking includes a transmission system operator unbundled in accordance with Article 60(1) and an integrated hydrogen transmission network operator, that undertaking may be active in hydrogen production or supply, but not in the production or supply of natural gas or electricity. Where such undertaking engages in hydrogen production or supply, the transmission system operator for natural gas shall comply with the requirements set out in Section 3 of this Chapter, and the undertaking and all parts thereof shall not book or use capacity rights to inject any hydrogen into a transmission or distribution system for natural gas operated by the undertaking. 5. The rules applicable to transmission system operators set out in Article 72 shall apply to hydrogen transmission network operators.
Article 69 Horizontal unbundling of hydrogen transmission network operators
1. Where a hydrogen transmission network operator is part of an undertaking active in transmission or distribution of natural gas or electricity, it shall be independent at least in terms of its legal form. 2. Member States may grant derogations, on the basis of a publicly available positive cost-benefit analysis, from the requirements of paragraph 1 to hydrogen transmission network operators, subject to a positive assessment by the regulatory authority in accordance with paragraph 4. 3. Derogations granted pursuant to paragraph 2 shall be published and notified to the Commission, accompanied by the assessment concerned referred to in paragraph 4, while preserving the confidentiality of commercially sensitive information. 4. At the moment of granting a derogation pursuant to paragraph 2, and at least every seven years thereafter, or upon a reasoned request by the Commission, the regulatory authority of the Member State granting the derogation shall publish an assessment of the impact of the derogation on transparency, cross subsidies, network tariffs and cross-border trade. Such an assessment shall include at least the calendar of expected transfers of assets from the natural gas sector to the hydrogen sector. If the regulatory authority concludes, on the basis of an assessment, that the continued application of the derogation would have a negative impact on transparency, cross-subsidies, network tariffs and cross-border trade, or when the transfer of assets from the natural gas sector to the hydrogen sector has concluded, the Member State shall withdraw the derogation. 5. By way of derogation from paragraphs 2, 3 and 4, Estonia, Latvia and Lithuania may grant derogations from the requirements of paragraph 1 to hydrogen transmission network operators. Any such derogation shall be notified to the Commission and shall expire by 31 December 2030. After the date of expiration of a derogation granted pursuant to this paragraph, Estonia, Latvia and Lithuania may grant derogations pursuant to paragraphs 2, 3 and 4.
Article 70 Unbundling of accounts for hydrogen network operators
Member States shall ensure that the accounts of hydrogen network operators are kept in accordance with Article 75.
Article 71 Designation and certification of transmission system operators and hydrogen transmission network operators
1. Before an undertaking is approved and designated as transmission system operator or hydrogen transmission network operator, it shall be certified in accordance with paragraphs 4, 5 and 6 of this Article and with Article 14 of Regulation (EU) 2024/1789. 2. Undertakings which have been certified by the regulatory authority as having complied with the requirements of Article 60 or 68, pursuant to the certification procedure, shall be approved and designated as transmission system operators or hydrogen transmission network operators by Member States. The designation of transmission system operators and hydrogen transmission network operators shall be notified to the Commission and published in the Official Journal of the European Union. 3. Certified undertakings shall notify to the regulatory authority any planned transaction which may require a reassessment of their compliance with the requirements of Article 60 or 68. 4. The regulatory authorities shall monitor the continuing compliance of certified undertakings with the requirements of Article 60 or 68. They shall open a certification procedure to ensure such compliance: (a) upon notification by the certified undertaking pursuant to paragraph 3; (b) on their own initiative where they have knowledge that a planned change in rights or influence over certified undertakings or transmission system owners may lead to an infringement of Article 60 or 68 or where they have reason to believe that such an infringement may have occurred; or (c) upon a reasoned request from the Commission. 5. The regulatory authorities shall adopt a decision on the certification of a transmission system operator or a hydrogen transmission network operator within 100 working days from the date of the notification by the transmission system operator or the hydrogen transmission network operator or from the date of the Commission request. After expiry of that period, the certification shall be deemed to be granted. The explicit or tacit decision of the regulatory authority shall become effective only after the conclusion of the procedure set out in paragraph 6. 6. The explicit or tacit decision on the certification shall be notified without delay to the Commission by the regulatory authority, together with all the relevant information with respect to that decision. The Commission shall act in accordance with the procedure laid down in Article 14 of Regulation (EU) 2024/1789. 7. The regulatory authorities and the Commission may request from transmission system operators, hydrogen transmission network operators and undertakings performing any of the functions of production or supply any information relevant for the fulfilment of their tasks under this Article. 8. The regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.
Article 72 Certification in relation to third countries
1. Where certification is requested by a transmission system owner, a transmission system operator, a hydrogen transmission network operator or a hydrogen transmission network owner which is controlled by a person from a third country, the regulatory authority shall notify the Commission. The regulatory authority shall also notify to the Commission without delay any circumstances that would result in a person from a third country acquiring control of a transmission system, a transmission system operator, a hydrogen transmission network or a hydrogen transmission network operator. 2. The transmission system operator or hydrogen transmission network operator shall notify to the regulatory authority any circumstances that would result in a person from a third country acquiring control of the transmission system, the transmission system operator, the hydrogen transmission network or the hydrogen transmission network operator. 3. The regulatory authority shall adopt a draft decision on the certification of a transmission system operator or hydrogen transmission network operator within 100 working days from the date of notification by the transmission system operator or hydrogen network operator. It shall refuse the certification if it has not been demonstrated: (a) that the entity concerned complies with the requirements of Article 60 or 68; and (b) to the regulatory authority, or to another competent authority designated by the Member State, that granting certification will not put at risk the security of energy supply or the essential security interests of the Member State and the Union; in considering that question the regulatory authority or other competent authority so designated shall take into account: (i) the rights and obligations of the Union with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of energy supply; (ii) the rights and obligations of the Member State with respect to that third country arising under agreements concluded with it, insofar as they are in compliance with Union law; (iii) ownership, supply or other commercial relationships that could negatively affect the incentives and the ability of the transmission system owner, the transmission system operator, the hydrogen transmission network owner or the hydrogen transmission network operator to deliver natural gas or hydrogen to the Member State or the Union; (iv) other specific facts and circumstances of the case and the third country concerned. 4. The regulatory authority shall notify the draft decision to the Commission without delay, together with all the relevant information with respect to that decision. 5. Member States shall provide for the regulatory authority or the designated competent authority referred to in paragraph 3, point (b), of this Article before the regulatory authority adopts a decision on the certification, to request an opinion from the Commission on whether: (a) the entity concerned complies with the requirements of Article 60 or 68; and (b) granting certification will put at risk the security of energy supply to the Union. 6. The Commission shall examine the request referred to in paragraph 5 as soon as it is received. Within a period of 50 working days after receiving the request, it shall deliver its opinion to the regulatory authority or, if the request was made by the designated competent authority, to that authority. In preparing its opinion, the Commission may request the views of ACER, the Member State concerned and interested parties. In the event that the Commission makes such a request, the 50-working day period shall be extended by a further 50 working days. In the absence of an opinion by the Commission within the period referred to in the first and second subparagraphs, the Commission is deemed not to raise objections to the decision of the regulatory authority. 7. When assessing whether the control by a person from a third country will put at risk the security of energy supply or the essential security interests of the Union or of any Member State, the Commission shall take into account: (a) the specific facts of the case and the third country concerned, including evidence of the influence of the third country concerned over the situation described in the paragraph 3, point (b)(iii); and (b) the rights and obligations of the Union with respect to that third country arising under international law, including an agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of supply. 8. The regulatory authority shall, within a period of 50 working days after the expiry of the period referred to in paragraph 6, adopt its final decision on the certification. In adopting its final decision, the regulatory authority shall take utmost account of the Commission’s opinion. In any event a Member State shall have the right to refuse certification where granting certification puts at risk the Member State’s security of energy supply or the security of energy supply of another Member State. Where the Member State has designated another competent authority pursuant to paragraph 3, point (b), it may require the regulatory authority to adopt its final decision in accordance with the assessment of that competent authority. The regulatory authority’s final decision and the Commission’s opinion shall be published together. Where the final decision diverges from the Commission’s opinion, the Member State concerned shall provide and publish, together with that decision, the reasoning underlying that decision. 9. Nothing in this Article shall affect the right of Member States to exercise, in compliance with Union law, national legal controls to protect legitimate public security interests. 10. The Commission is empowered to adopt delegated acts in accordance with Article 90 in order to supplement this Directive by providing guidelines setting out the details of the procedure to be followed for the application of this Article.
Article 73 Designation of operators of natural gas storage, hydrogen storage, LNG facilities and hydrogen terminals
Member States shall designate, or shall require undertakings which own natural gas storage, hydrogen storage, LNG facilities and hydrogen terminals to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more operators for such infrastructure.
Article 74 Right of access to accounts
1. Member States or any competent authority they designate, including the regulatory authorities and the dispute settlement authorities referred to in Article 32(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas and hydrogen undertakings as set out in Article 75. 2. Member States and any designated competent authority, including the regulatory authorities and the dispute settlement authorities, shall preserve the confidentiality of commercially sensitive information. Member States may provide for the disclosure of such information where this is necessary in order for the competent authorities to carry out their functions.
Article 75 Unbundling of accounts
1. Member States shall take the necessary steps to ensure that the accounts of natural gas and hydrogen undertakings are kept in accordance with paragraphs 2 to 5. 2. Natural gas and hydrogen undertakings, whatever their system of ownership or legal form, shall draw up, submit to audit and publish their annual accounts in accordance with the rules of national law concerning the annual accounts of limited liability companies adopted pursuant to Directive 2013/34/EU. Undertakings which are not legally obliged to publish their annual accounts shall keep a copy thereof at the disposal of the public at their head office. 3. Undertakings shall, in their internal accounting, keep separate accounts for each of their transmission, distribution, LNG, hydrogen terminal, natural gas and hydrogen storage and hydrogen transport activities as they would be required to do if the activities in question were carried out by separate undertakings, with a view to avoiding discrimination, cross-subsidisation and distortion of competition. Infrastructure assets of the undertakings shall be allocated to the relevant accounts and regulatory asset bases separately for natural gas, electricity or hydrogen assets and that allocation shall be made transparent. Undertakings shall also keep accounts, which may be consolidated, for other activities not relating to transmission, distribution, LNG, hydrogen terminal, natural gas or hydrogen storage or hydrogen transport activities. Revenue from ownership of the transmission, distribution or hydrogen network shall be specified in the accounts. Where appropriate, undertakings shall keep consolidated accounts for other, non-natural gas and non-hydrogen activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity. The separation of accounts shall be audited in accordance with the rules laid down in paragraph 2 and reported to the regulatory authority concerned. 4. The audit referred to in paragraph 2 of this Article shall, in particular, verify that the obligation to avoid discrimination and cross-subsidies referred to in paragraph 3 of this Article is respected. Without prejudice to Article 5 of Regulation (EU) 2024/1789, there shall be no cross-subsidisation between natural gas system users and hydrogen network users. 5. Undertakings shall specify in their internal accounting the rules for the allocation of assets and liabilities, expenditure and income as well as for depreciation, without prejudice to nationally applicable accounting rules, which they follow in drawing up the separate accounts referred to in paragraph 3. Those internal rules may be amended only in exceptional cases. Such amendments shall be notified to the regulatory authority and duly substantiated. 6. The annual accounts shall indicate in notes any transaction of a certain size conducted with related undertakings.
Article 76 Designation and independence of regulatory authorities
1. Each Member State shall designate a single regulatory authority at national level. 2. Paragraph 1 of this Article shall be without prejudice to the designation of other regulatory authorities at regional level within Member States, provided that there is one senior representative for representation and contact purposes at Union level within the Board of Regulators of ACER in accordance with Article 7(1) of Regulation (EU) 2019/942. 3. By way of derogation from paragraph 1 of this Article, a Member State may designate regulatory authorities for small systems in a geographically separate region whose consumption, in 2008, accounted for less than 3 % of the total consumption of the Member State of which it is part. That derogation shall be without prejudice to the appointment of one senior representative for representation and contact purposes at Union level within the Board of Regulators of ACER in compliance with Article 7(1) of Regulation (EU) 2019/942. 4. Member States shall guarantee the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For that purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred on it by this Directive and related legal acts, the regulatory authority: (a) is legally distinct and functionally independent from any other public or private entity; (b) ensures that its staff and the persons responsible for its management: (i) act independently from any market interest; (ii) do not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks. That requirement is without prejudice to close cooperation, as appropriate, with other relevant national authorities or to general policy guidelines issued by the government and not related to the regulatory powers and duties pursuant to Article 78. 5. In order to protect the independence of the regulatory authority, Member States shall in particular ensure that: (a) the regulatory authority can take autonomous decisions, independently from any political body; (b) the regulatory authority has all the necessary human and financial resources it needs to carry out its duties and exercise its powers in an effective and efficient manner; (c) the regulatory authority has a separate annual budget allocation and autonomy in the implementation of that allocated budget; (d) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed for a fixed term of between five and seven years, renewable once; (e) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed based on objective, transparent and published criteria, in an independent and impartial procedure that ensures that the candidates have the necessary skills and experience for any relevant position in the regulatory authority; (f) provisions on conflict of interest are in place and confidentiality obligations extend beyond the end of the mandate of the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management; (g) the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management can be dismissed only based on transparent criteria in place. In regard to the first subparagraph, point (d), Member States shall ensure an appropriate rotation scheme for the board or the top management. The members of the board or, in the absence of a board, members of the top management may be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of misconduct under national law. Member States may provide for the ex post control of the regulatory authorities’ annual accounts by an independent auditor. 6. By 5 July 2026 and every four years thereafter, the Commission shall submit a report to the European Parliament and to the Council on the compliance of national authorities with the principle of independence set out in this Article. The Commission shall make such reports publicly available.
Article 77 General objectives of the regulatory authority
In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of its duties and powers as laid down in Article 78, in close consultation with other relevant national authorities, including competition authorities and relevant authorities from neighbouring Member States and neighbouring third countries, as appropriate, and without prejudice to their competencies: (a) promoting, in close cooperation with regulatory authorities of other Member States, the Commission and ACER, competitive, flexible, secure and environmentally sustainable internal markets for natural gas, renewable gas, low-carbon gas and hydrogen within the Union, and ensuring appropriate conditions for the effective and reliable operation of natural gas and hydrogen networks and advancing energy system integration, taking into account long-term objectives, thus contributing to the consistent, efficient and effective application of Union law in order to achieve the Union’s climate and energy goals; (b) developing competitive and properly functioning regional cross-border markets within the Union with a view to the achievement of the objectives referred to in point (a); (c) eliminating restrictions on trade in natural gas and hydrogen between Member States, including eliminating restrictions due to differences in the quality of natural gas and hydrogen or in the volume of hydrogen blended into the natural gas system or due to differences in the quality of hydrogen in the hydrogen system, developing appropriate cross-border transmission or transport capacities to meet demand and enhancing the integration of national markets ensuring the interoperability of the interconnected Union natural gas system or Union hydrogen system, which may facilitate natural gas flow across the Union; (d) helping to achieve, in the most cost-effective manner and while taking into account the energy efficiency first principle, the development of secure, reliable and efficient non-discriminatory systems that are consumer oriented, and promoting system adequacy and, in accordance with general energy and climate policy objectives, energy efficiency as well as the integration of large and small-scale production of gas from renewable sources and distributed production in both transmission and distribution networks and facilitating their operation in relation to other energy networks of electricity and heat; (e) facilitating connection and access to the network for new production capacity, in particular removing barriers that could prevent connection and access for entrants on the markets for gas and hydrogen from renewable sources; (f) ensuring that system operators and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies, especially energy efficiency, in system performance and foster market integration; (g) ensuring that customers benefit through the efficient functioning of their national market, promoting effective competition and helping to ensure high levels of consumer protection in close cooperation with relevant consumer protection authorities and consultation with relevant consumer bodies; (h) helping to achieve high standards of public service for natural gas, contributing to the protection of vulnerable customers and contributing to the compatibility of necessary data exchange processes for customer switching.
Article 78 Duties and powers of the regulatory authority
1. The regulatory authority shall have the following duties: (a) fixing or approving, in accordance with transparent criteria, transmission, or distribution tariffs or their methodologies, or both; (b) approving the joint scenarios for the ten-year network development plans in accordance with Article 55(2), point (f), where such approval is provided for by the Member State; (c) fixing or approving, in accordance with transparent criteria, tariffs for hydrogen network access or their methodologies, or both, without prejudice to Member States’ decisions pursuant to Article 35(4); (d) fixing or approving, in accordance with transparent criteria: (i) the size and duration of the dedicated charge and financial transfer or their methodologies, or both; (ii) the value of transferred assets and the destination of any profits and losses that may occur as a result; and (iii) the allocation of contributions to the dedicated charge; (e) ensuring compliance of transmission system operators and distribution system operators and, where relevant, system owners, as well as hydrogen network operators, any natural gas and hydrogen undertaking and other market participants with their obligations under this Directive and Regulation (EU) 2024/1789, the network codes and guidelines adopted pursuant to Articles 70, 71 and 72 of Regulation (EU) 2024/1789, Regulation (EU) 2017/1938 and other relevant Union law, including as regards cross-border issues, as well as ACER’s decisions; (f) in close coordination with the other regulatory authorities, ensuring the compliance of the ENTSO for Gas, the European entity for distribution system operators (the ‘EU DSO entity’) set up in accordance with Articles 52 to 57 of Regulation (EU) 2019/943 and the European Network of Network Operators for Hydrogen (the ‘ENNOH’) set out in accordance with Article 57 of Regulation (EU) 2024/1789 with their obligations under this Directive and Regulation (EU) 2024/1789, the network codes and guidelines adopted pursuant to Articles 70 to 74 of Regulation (EU) 2024/1789, and other relevant Union law, including as regards cross-border issues, as well as with ACER’s decisions, and jointly identifying non-compliance of the ENTSO for Gas, the EU DSO entity and the ENNOH with their respective obligations; where the regulatory authorities have not been able to reach an agreement within a period of four months after the start of consultations for the purpose of jointly identifying non-compliance, referring the matter to ACER for a decision, pursuant to Article 6(10) of Regulation (EU) 2019/942; (g) monitoring the development of gas qualities and gas quality management by transmission system operators and where relevant by distribution system operators, including monitoring the development of costs related to the management of gas quality by system operators and the developments related to the blending and deblending of hydrogen into the natural gas system, by natural gas storage system operators and by LNG facility operators and, where a Member State has mandated another competent authority to collect information, that competent authority shall share the information with the regulatory authority; (h) monitoring the development of hydrogen quality and hydrogen quality management by hydrogen network operators where relevant as referred to in Article 50, including monitoring the development of costs related to the management of hydrogen quality; (i) taking into account the examination and assessment of the plans of the development of the hydrogen transport infrastructure submitted by hydrogen network operators pursuant to Articles 55 and 56 of this Directive when it approves the dedicated charges within the meaning of Article 5 of Regulation (EU) 2024/1789; (j) cooperating with regard to cross-border issues with the regulatory authority or authorities of the Member States concerned and with ACER, in particular through participation in the work of ACER’s Board of Regulators pursuant to Article 21 of Regulation (EU) 2019/942. In respect of infrastructure to and from a third country, the regulatory authority of the Member State where the first interconnection point with the Member States’ network is located may cooperate with the relevant authorities of the third country, including those of the Energy Community Contracting Parties, after consulting the regulatory authorities of other Member States concerned, with the aim of, as regards that infrastructure, consistent application of this Directive in the territory of the Member States; (k) complying with, and implementing, any relevant legally binding decisions of ACER and of the Commission; (l) reporting annually on its activity and the fulfilment of its duties to the relevant authorities of the Member States, ACER and the Commission, covering the steps taken and the results obtained as regards each of the tasks listed in this Article; (m) ensuring that there are no cross-subsidies between transmission, distribution, hydrogen transport, natural gas and hydrogen storage, LNG and hydrogen terminals and natural gas and hydrogen supply activities, without prejudice to Article 5(2) of Regulation (EU) 2024/1789; (n) monitoring investment plans of the transmission system operators and hydrogen transmission network operators, providing in its annual report an assessment of the investment plans of the transmission system operators and hydrogen transmission network operators as regards their consistency with the Union-wide network development plans referred to in Articles 32 and 60 of Regulation (EU) 2024/1789, and including in those assessments recommendations to amend those investment plans; (o) monitoring compliance with and reviewing the past performance of network security and reliability rules and setting or approving standards and requirements for quality of service and supply or contributing thereto together with other competent authorities; (p) monitoring the level of transparency, including of wholesale prices, and ensuring compliance of natural gas and hydrogen undertakings with transparency obligations; (q) monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on natural gas and hydrogen exchanges, prices for household customers including prepayment systems, transparency of offers, price spikes and their impact on wholesale and consumer prices, the relationship between household prices and wholesale prices, switching rates, disconnection rates, charges for and the execution of maintenance services, complaints by household customers, and any distortion or restriction of competition, including providing any relevant information, and bringing any relevant cases to the attention of the relevant competition authorities, in particular with regard to vulnerable customers and customers who are affected by energy poverty; (r) monitoring the occurrence of restrictive contractual practices, including exclusivity clauses, which may prevent large non-household customers from contracting simultaneously with more than one supplier or restrict their choice to do so, and, where appropriate, informing the national competition authorities of such practices; (s) respecting contractual freedom with regard to long-term contracts provided that they comply with Union law, are consistent with Union policies and contribute to decarbonisation objectives, provided that no long-term contracts for supply of unabated fossil gas are concluded with a duration beyond 31 December 2049; (t) monitoring the time taken by natural gas transmission and distribution system operators or hydrogen network operators to make connections and repairs, including network connection requests by biomethane production facilities; (u) monitoring and reviewing the access conditions to natural gas storage, linepack and other ancillary services as provided for in Article 33 or 37, excluding, in the event that the access regime to natural gas storage is established pursuant to Article 33(3), the reviewing of tariffs; (v) helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex I, are effective and enforced, and, in particular, assessing the existence of barriers for customers to exercise their rights such as switching, termination of contract, and access to out-of-court dispute settlement mechanisms; (w) publishing recommendations, at least annually, in relation to compliance of supply prices with Article 7, and providing those to the competition authorities, where appropriate; (x) ensuring non-discriminatory access to customer consumption data, the provision for optional use of an easily understandable harmonised format at national level for consumption data and prompt access for all customers to such data pursuant to Articles 23 and 24; (y) monitoring the implementation of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, hydrogen network operators, suppliers and customers and other market participants pursuant to Regulation (EU) 2024/1789; (z) monitoring the correct application of the criteria that determine whether a natural gas storage facility falls under Article 33(3) or (4); (aa) monitoring the implementation of safeguards measures as referred to in Article 83; (bb) contributing to the compatibility of data exchange processes for the most important market processes at regional level; (cc) implementing the network codes and guidelines adopted pursuant to Articles 70 to 74 of Regulation (EU) 2024/1789 through national measures or, where so required, coordinated regional or Union-wide measures; (dd) ensuring an open, transparent, efficient and inclusive process for the setting up of the national ten-year network development plan in line with the requirements set out in Article 55, of the hydrogen distribution network development plan in line with the requirements set out in Article 56 and, where relevant, of the network decommissioning plan in line with the requirements set out in Article 57; (ee) approving and amending the network development plans referred to in Article 55 and, where relevant, in Article 57; (ff) examining and, where applicable, requiring amendments to the hydrogen distribution network development plan referred to in Article 56(4), where such a task is provided for by the Member State pursuant to paragraph 6 of that Article;; (gg) setting up guidelines as referred to in Article 57(6) providing criteria and methodologies for a structural approach to the decommissioning of parts of the natural gas distribution network taking into account costs of decommissioning and the specific case of those assets that might require decommissioning before their originally projected life cycle and providing guidance as regards tariff setting in such cases; (hh) monitoring the availability of comparison websites, including comparison tools that fulfil the criteria in Article 14; (ii) monitoring the removal of unjustified obstacles to and restrictions on the development of consumption of self-generated renewable natural gas; (jj) carrying out any other duties conferred on the regulatory authority pursuant to this Directive and Regulation (EU) 2024/1789. 2. Where a Member State has so provided, the monitoring duties set out in paragraph 1 may be carried out by other authorities than the regulatory authority. In such a case, the information resulting from such monitoring shall be made available to the regulatory authority as soon as possible. While preserving their independence, without prejudice to their own specific competencies and consistent with the principles of better regulation, the regulatory authority shall, as appropriate, consult natural gas transmission system and hydrogen network operators and, as appropriate, closely cooperate with other relevant national authorities when carrying out the duties set out in paragraph 1. Any approvals given by a regulatory authority or ACER under this Directive are without prejudice to any duly justified future use of its powers by the regulatory authority under this Article or to any penalties imposed by other relevant authorities or the Commission. 3. In addition to the duties conferred on it pursuant to paragraph 1 of this Article, where an independent system operator or an independent hydrogen transmission network operator has been designated pursuant to Article 61 or 68, the regulatory authority shall: (a) monitor the compliance of the transmission system owner, the independent system operator or of the hydrogen transmission network owner and independent hydrogen transmission network operator, with their obligations under this Directive, and impose penalties for non-compliance with their obligations, pursuant to paragraph 4, point (d); (b) monitor the relations and communications between the independent system operator and the transmission system owner, or between the hydrogen transmission network owner and the independent hydrogen transmission network operator, so as to ensure compliance of the independent system operator or the independent hydrogen transmission network operator with its obligations, and in particular approve contracts and act as a dispute settlement authority between the independent system operator and the transmission system owner, or between the hydrogen transmission network owner and the independent hydrogen transmission network operator, in respect of any complaint submitted by either party pursuant to paragraph 11; (c) without prejudice to the procedure laid down in Article 61(2), point (c), for the first ten-year network development plan, approve the investments planning and the multi-annual network development plan presented annually by the independent system operator or the independent hydrogen transmission network operator; (d) ensure that network access tariffs collected by the independent system operator or the independent hydrogen network operator include remuneration for the network owner or network owners which provides for adequate remuneration of the network assets and of any new investments made therein, provided they are economically and efficiently incurred; (e) have the powers to carry out inspections, including unannounced inspections, at the premises of the transmission system owner and the independent system operator, or of the hydrogen transmission network owner and the independent hydrogen transmission network operator. 4. Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraphs 1, 3 and 6 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers: (a) to issue binding decisions on natural gas and hydrogen undertakings; (b) to carry out investigations into the functioning of the markets for natural gas and hydrogen, and to decide upon and impose any necessary and proportionate measures to promote effective competition and ensure the proper functioning of the markets for natural gas and hydrogen and, where appropriate, to cooperate with the national competition authority and the financial market regulators or the Commission in conducting an investigation relating to competition law; (c) to require any information from natural gas and hydrogen undertakings relevant for the fulfilment of its tasks, including the justification for any refusal to grant third-party access, and any information on measures necessary to reinforce the network; (d) to impose effective, proportionate and dissuasive penalties on natural gas and hydrogen undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of ACER, or to propose to a competent court to impose such penalties, including the power to impose or propose the imposition of penalties of up to 10 % of the annual turnover of the transmission system operator or hydrogen network operator or of up to 10 % of the annual turnover of the vertically integrated undertaking on the transmission system operator or hydrogen network operator or on the vertically integrated undertaking, as the case may be, for non-compliance with their respective obligations pursuant to this Directive; (e) appropriate rights of investigations and relevant powers of instructions for dispute settlement pursuant to paragraphs 11 and 12. 5. The regulatory authority located in the Member State in which the ENTSO for Gas, the ENNOH or the EU DSO entity has its seat shall have the power to impose effective, proportionate and dissuasive penalties on those entities where they do not comply with their obligations under this Directive, Regulation (EU) 2024/1789 or any relevant legally binding decisions of the regulatory authority or of ACER, or to propose that a competent court impose such penalties. 6. In addition to the duties and powers conferred on it pursuant to paragraphs 1 and 4 of this Article, where an independent transmission operator or an integrated hydrogen transmission network operator has been designated in accordance with Section 3 of Chapter IX, the regulatory authority shall be granted at least the following duties and powers: (a) to impose penalties pursuant to paragraph 4, point (d), for discriminatory behaviour in favour of the vertically integrated undertaking; (b) to monitor communications between the transmission system operator or the integrated hydrogen transmission network operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator or the integrated hydrogen transmission network operator with its obligations; (c) to act as a dispute settlement authority between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen transmission network operator in respect of any complaint submitted pursuant to paragraph 11; (d) to monitor commercial and financial relations including loans between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen transmission network operator; (e) to approve all commercial and financial agreements between the vertically integrated undertaking and the transmission system operator or the integrated hydrogen transmission network operator, on the condition that they comply with market conditions; (f) to request justification from the vertically integrated undertaking when notified by the compliance officer in accordance with Article 67(4), in particular including evidence to the effect that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred; (g) to carry out inspections, including unannounced inspections, at the premises of the vertically integrated undertaking and the transmission system operator or the integrated hydrogen transmission network operator; (h) to assign all or specific tasks of the transmission system operator or the integrated hydrogen transmission network operator to an independent system operator or an independent hydrogen transmission network operator appointed in accordance with Article 68 in the case of a persistent breach by the transmission system operator or the integrated hydrogen network operator of its obligations under this Directive, in particular in the case of repeated discriminatory behaviour to the benefit of the vertically integrated undertaking. 7. The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force at least the methodologies used to calculate or establish the terms and conditions for: (a) connection and access to national natural gas networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities, whereby tariffs or methodologies allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing those investments to ensure the viability of the networks and LNG facilities; (b) connection and access to national hydrogen networks, including hydrogen network tariffs, where applicable, and terms and conditions and tariffs for access to hydrogen storage and hydrogen terminals; (c) the provision of balancing services to be performed in the most economic manner, to provide appropriate incentives for network users to balance their input and off-takes in a fair and non-discriminatory manner and to be based on objective criteria; (d) approving and monitoring dedicated charges in accordance with Article 5 of Regulation (EU) 2024/1789; (e) access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management. 8. The methodologies or the terms and conditions referred to in paragraph 7 shall be published. 9. In fixing or approving the tariffs or methodologies and the balancing services referred to in paragraph 7, the regulatory authorities shall ensure that transmission and distribution system operators and, without prejudice to a Member State’s decision pursuant to Article 35(4), hydrogen network operators are granted appropriate incentives, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities. 10. The regulatory authorities shall monitor congestion management of national transmission networks and hydrogen transmission networks including interconnectors and hydrogen interconnectors, and the implementation of congestion management rules. To that end, transmission system operators, hydrogen transmission network operators or market operators shall submit their congestion management rules, including capacity allocation, to the regulatory authorities. Regulatory authorities may request amendments to those rules.
Article 79 Decisions and complaints
1. Regulatory authorities shall have the authority to require natural gas transmission, natural gas storage, LNG and distribution system operators, hydrogen storage and terminal operators, and hydrogen network operators if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to natural gas storage is established pursuant to Article 33(3), that task shall exclude the modification of tariffs. In the event that the access regime to hydrogen networks, hydrogen facilities or hydrogen storage is based on negotiated third-party access in accordance with Article 35(4), Article 36(1) or Article 37(2), that task shall exclude the modification of tariffs. In the event of delay in the fixing of natural gas transmission and distribution tariffs and, where appropriate, hydrogen network tariffs, regulatory authorities shall have the power to fix or approve provisional transmission and distribution tariffs or methodologies and hydrogen network tariffs or methodologies and to decide on the appropriate compensatory measures if the final tariffs or methodologies deviate from those provisional tariffs or methodologies. 2. Any party having a complaint against a natural gas transmission, natural gas storage, LNG or distribution system operator or a hydrogen network, storage or terminal operator in relation to that operator’s obligations under this Directive may refer the complaint to the regulatory authority which, acting as a dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the regulatory authority. That extended period may be further extended with the agreement of the complainant. The regulatory authority’s decision shall have binding effect unless and until overruled on appeal. 3. Any party who is affected and who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, may, within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect. 4. Member States shall create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. Those mechanisms shall take account of the provisions of the TFEU, and in particular Article 102 thereof. 5. Member States shall ensure that the appropriate measures are taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where confidentiality rules imposed by this Directive have not been respected. 6. Complaints referred to in paragraphs 2 and 3 shall be without prejudice to the exercise of rights of appeal under Union or national law. 7. Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information. 8. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
Article 80 Regional cooperation between regulatory authorities on cross-border issues
1. Regulatory authorities shall closely consult and cooperate with each other, and in particular within ACER, and shall provide each other and ACER with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority. 2. Regulatory authorities shall cooperate at least at a regional level to: (a) foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint natural gas and hydrogen exchanges and the allocation of cross-border capacity, and enable an adequate level of interconnection capacity, including through new interconnections, within the region and between regions to allow for development of effective competition and improvement of security of supply without discriminating between supply undertakings in different Member States; (b) coordinate the development of all network codes for the relevant transmission system operators, hydrogen network operators and other market participants; (c) coordinate the development of the rules governing the management of congestion; (d) ensure regulatory compliance of legal entities fulfilling transmission operators’ and network operators’ tasks at cross-border or regional level. 3. Regulatory authorities shall have the right to enter into cooperative arrangements with each other to foster regulatory cooperation. 4. The actions referred to in paragraph 2 shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies. 5. The Commission is empowered to adopt delegated acts in accordance with Article 90 in order to supplement this Directive by establishing guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with ACER. 6. Regulatory authorities, or where appropriate other competent authorities, may consult and cooperate with the relevant authorities of third countries, including Energy Community Contracting Parties, in relation to the operation of natural gas and hydrogen infrastructure to and from third countries with a view to ensuring, as regards the infrastructure concerned, that this Directive is applied consistently in the territory and territorial sea of a Member State.
Article 81 Compliance with the network codes and guidelines
1. Any regulatory authority and the Commission may request the opinion of ACER on the compliance of a decision taken by a regulatory authority with the network codes and the guidelines adopted pursuant to this Directive or to Regulation (EU) 2024/1789. 2. ACER shall provide its opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within three months from the date of receipt of the request. 3. Where the regulatory authority which has taken the decision does not comply with ACER’s opinion within four months from the date of receipt of that opinion, ACER shall inform the Commission accordingly. 4. Any regulatory authority may inform the Commission where it considers that a decision relevant for cross-border trade taken by another regulatory authority does not comply with the network codes and guidelines adopted pursuant to this Directive or to Regulation (EU) 2024/1789 within two months from the date of that decision. 5. Where the Commission, within two months of having been informed by ACER in accordance with paragraph 3 or by a regulatory authority in accordance with paragraph 4, or on its own initiative within three months from the date of the decision, finds that the decision of a regulatory authority raises serious doubts as to its compatibility with the network codes and the guidelines adopted pursuant to this Directive or to Regulation (EU) 2024/1789, the Commission may decide to examine the case further. In such a case, it shall invite the regulatory authority and the parties to the proceedings before the regulatory authority to submit observations. 6. Where the Commission takes a decision to examine the case in accordance with paragraph 5, it shall, within four months of the date of such decision, issue a final decision: (a) not to raise objections against the decision of the regulatory authority; or (b) to require the regulatory authority concerned to withdraw its decision on the basis that the network codes and the guidelines have not been complied with. 7. Where the Commission has not taken a decision to examine the case further or a final decision within the time-limits set in paragraphs 5 and 6, it shall be deemed not to have raised objections to the decision of the regulatory authority. 8. The regulatory authority shall comply with the Commission decision to withdraw its decision within a period of two months and shall inform the Commission accordingly. 9. The Commission is empowered to adopt delegated acts in accordance with Article 90 to supplement this Directive by establishing guidelines setting out the details of the procedure to be followed for the application of this Article.
Article 82 Record keeping
1. Member States shall require supply undertakings to keep at the disposal of the national authorities, including the regulatory authority and the national competition authorities, and of the Commission, for the fulfilment of their tasks, for at least five years, the relevant data relating to all transactions in natural gas and hydrogen supply contracts and natural gas and hydrogen derivatives with wholesale customers and transmission system operators, natural gas storage and LNG operators as well as hydrogen network, storage and terminal operators. 2. The data shall include details on the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled natural gas and hydrogen supply contracts and natural gas and hydrogen derivatives. 3. The regulatory authority may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market participants or individual transactions is not released. This paragraph shall not apply to information about financial instruments which fall within the scope of Directive 2014/65/EU. 4. The Commission is empowered to adopt delegated acts to supplement this Directive in accordance with Article 90, by establishing guidelines which define the methods and arrangements for record keeping as well as the form and content of the data that shall be kept. 5. With respect to transactions in natural gas and hydrogen derivatives of supply undertakings with wholesale customers and natural gas transmission system operators, natural gas storage and LNG operators as well as hydrogen network, storage and terminal operators, this Article shall apply only once the Commission has adopted the guidelines referred to in paragraph 4. 6. This Article shall not create additional obligations towards the authorities referred to in paragraph 1 of this Article for entities falling within the scope of Directive 2014/65/EU. 7. In the event that the authorities referred to in paragraph 1 of this Article need access to data kept by entities falling within the scope of Directive 2014/65/EU, the authorities responsible under that Directive shall provide them with the required data.
Article 83 Safeguard measures
In the event of a sudden crisis in the energy market or where the physical safety or security of persons, apparatus or installations or system integrity is threatened, a Member State may take the measures provided for in the national emergency plan and declare, if applicable, one of the crisis levels pursuant to Article 11 of Regulation (EU) 2017/1938.
Article 84 Level playing field
1. Measures that the Member States may take pursuant to this Directive in order to ensure a level playing field shall be compatible with the TFEU, in particular Article 36 thereof, and with other Union law. 2. The measures referred to in paragraph 1 shall be proportionate, non-discriminatory and transparent. Those measures may be put into effect only following notification to and approval by the Commission. 3. The Commission shall act on the notification referred to in paragraph 2 within two months of the date of receipt of the notification. That period shall begin on the day following receipt of the complete information. In the event that the Commission has not acted within that two-month period, it shall be deemed not to have raised objections to the notified measures.
Article 85 Technical agreements regarding the operation of natural gas and hydrogen pipelines with third countries
This Directive shall not affect the freedom of transmission system operators, hydrogen network operators or other economic operators to maintain in force or to conclude technical agreements on issues concerning the operation of pipelines between a Member State and a third country, insofar as those agreements are compatible with Union law and relevant decisions of the regulatory authorities of the Member States concerned. Such agreements shall be notified to the regulatory authorities of the Member States concerned.
Article 86 Derogations for natural gas system
1. Member States which are not directly connected to the interconnected system of any other Member State may derogate from Article 3, 8, 34 or 60 or Article 31(1). Any such derogation shall expire from the moment when the first interconnector to the Member State is completed. Any such derogation shall be notified to the Commission. 2. Member States may apply to the Commission for derogations from applying Article 3, 8, 60 or 31 to outermost regions within the meaning of Article 349 TFEU or to other geographically isolated areas. Any such derogation shall expire from the moment a connection from the region or area to a Member State with an interconnected system is completed. 3. Luxembourg may derogate from Article 60. Any such derogation shall be notified to the Commission. 4. The Commission shall inform the Member States of applications for derogations pursuant to paragraph 2 before taking a decision, taking into account justified requests for confidentiality of commercially sensitive information. 5. Derogations granted by the Commission pursuant to paragraph 2 shall be limited in time and subject to conditions that aim to increase competition in and the integration of the internal market and to ensure that the derogations do not hamper the transition towards renewable energy or the application of the energy efficiency first principle. 6. Derogations granted pursuant to Directive 2009/73/EC without a date of expiry or without a set period of application shall expire on 31 December 2025. Member States that on 4 August 2024 still benefit from such derogations may decide to apply a new derogation pursuant to paragraph 1 or 7 of this Article, or they may apply to the Commission fora new derogation pursuant to paragraph 2 of this Article. 7. Member States that receive the first commercial supply of their first long-term natural gas supply contract after 4 August 2024 may derogate from Article 3(1) to (4), Article 4(1), Article 8, Article 31(1), Article 32(1), Article 34, Article 39(1) to (5), Article 43, Article 44(6) and Articles 46, 60, 61 and 75. Any such derogation shall be notified to the Commission. The derogation shall expire 10 years after the reception of the first commercial supply of their first long-term natural gas supply contract. 8. Notifications of derogations granted by Member States pursuant to paragraphs 1, 3 and 7, and Commission decisions to grant derogations pursuant to in paragraphs 2, 5 and 6, shall be published in the Official Journal of the European Union.
Article 87 Hydrogen networks in isolated regions
1. Member States may grant derogations from the application of Article 46, 68 or 71 to hydrogen networks located in outermost regions within the meaning of Article 349 TFEU and in isolated regions with the following NUTS 2 and NUTS 3 codes of Nomenclature for Territorial Units for Statistics (NUTS) established by Regulation (EC) No 1059/2003 of the European Parliament and of the Council ( 52 ) : (i) Cyprus (NUTS 2 CY00); (ii) Kainuu (NUTS 3 FI1D8); (iii) Lapland (NUTS 3 FI1D7); (iv) Malta (NUTS 2 MT00); (v) Northern Ostrobothnia (NUTS 3 FI1D9); (vi) Upper Norrland (NUTS 2 SE33). 2. Any derogation granted pursuant to paragraph 1 shall be made public and notified to the Commission. 3. Derogations granted pursuant to paragraph 1 shall expire 15 years from the date on which they are granted, and in any event no later than 31 December 2044. Such derogations shall not be renewed. Member States shall withdraw a derogation granted pursuant to paragraph 1 where a hydrogen network benefitting from such derogation is extended beyond the isolated region or becomes connected to hydrogen networks located outside the region. 4. Every seven years from the date of granting of a derogation pursuant to paragraph 1, or upon a reasoned request by the Commission, the regulatory authority of the Member State which granted that derogation shall publish an assessment of the impact of that derogation on competition, infrastructure development and market functioning. If the regulatory authority concludes after such assessment that the continued application of the derogation would carry the risk of impeding competition or adversely affecting the efficient deployment of hydrogen infrastructure or the development of the market for hydrogen in the Member State or the Union, the Member State shall withdraw the derogation.
Article 88 Derogations in relation to natural gas transmission lines to and from third countries
1. In respect of natural gas transmission lines between a Member State and a third country completed before 23 May 2019, the Member State where the first connection point of such a transmission line with a Member State’s network is located may decide to derogate from Articles 31, 60, 71 and 72, Article 78(7) and (9) and Article 79(1) for the sections of such natural gas transmission line located in its territory and territorial sea, for objective reasons such as to enable the recovery of the investment made or for reasons of security of supply, provided that the derogation is not detrimental to competition on or the effective functioning of the internal market for natural gas, or to security of supply in the Union. The derogation shall be limited in time up to 20 years based on objective justification, renewable if justified and may be subject to conditions which contribute to the achievement of the conditions in the first subparagraph. Such derogations shall not apply to transmission lines between a Member State and a third country which has the obligation to transpose this Directive and which effectively implements this Directive in its legal order under an agreement concluded with the Union. 2. Where the transmission line concerned is located in the territory of more than one Member State, the Member State in the territory of which the first connection point with the Member States’ network is located shall decide whether to grant a derogation for that transmission line after consulting all the Member States concerned. Upon request by the Member States concerned, the Commission may decide to act as an observer in the consultation between the Member State in the territory of which the first connection point is located and the third country concerning the consistent application of this Directive in the territory and territorial sea of the Member State where the first interconnection point is located, including the granting of derogations for such transmission lines. 3. Decisions pursuant to paragraphs 1 and 2 shall be adopted by 24 May 2020. Member States shall notify any such decisions to the Commission and shall publish them. 4. By 5 August 2026, the Commission shall submit a report to the European Parliament and to the Council on derogations granted under this Article. The report shall, in particular, assess the impact of such derogations on the effective functioning of the internal market for natural gas as well as on security of energy supply and the essential security interests of the Union and the Member States.
Article 89 Empowerment procedure
1. Without prejudice to other obligations under Union law, and to the allocation of competence between the Union and the Member States, existing agreements between a Member State and a third country on the operation of a transmission line or an upstream pipeline network may be maintained in force until the entry into force of a subsequent agreement between the Union and the same third country or until the procedure laid down in paragraphs 2 to 15 applies. 2. Without prejudice to the allocation of competence between the Union and the Member States, where a Member State intends to enter into negotiations with a third country in order to amend, extend, adapt, renew or conclude an agreement on the operation of a transmission line with a third country or a hydrogen interconnector with a third country concerning matters falling, entirely or partly, within the scope of this Directive or of Regulation (EU) 2024/1789, it shall notify the Commission of its intention in writing. Such a notification shall include the relevant documentation and an indication of the provisions to be addressed in the negotiations or to be renegotiated, the objectives of the negotiations and any other relevant information, and shall be transmitted to the Commission at least five months before the intended start of the negotiations. 3. Further to any notification pursuant to paragraph 2, the Commission shall authorise the Member State concerned to enter into formal negotiations with a third country for the part which may affect Union common rules unless it considers that the opening of such negotiations would: (a) be in conflict with Union law other than the incompatibilities arising from the allocation of competence between the Union and the Member States; (b) be detrimental to the functioning of the internal markets for natural gas or hydrogen, competition or security of supply in a Member State or in the Union, taking into account the principle of solidarity between Member States pursuant to Article 194(1) TFEU; (c) undermine the objectives of pending negotiations of international agreements by the Union with a third country; (d) be discriminatory. 4. When carrying out the assessment pursuant to paragraph 3, the Commission shall take into account whether the intended agreement concerns a transmission line or an upstream pipeline that contributes to the diversification of natural gas supplies and suppliers by means of new natural gas sources. 5. Within 90 days of receipt of the notification referred to in paragraph 2, the Commission shall adopt a decision authorising or refusing to authorise a Member State to enter into negotiations in order to amend, extend, adapt, renew or conclude an agreement with a third country. Where additional information is needed to adopt a decision, the 90-day period shall run from the date of receipt of such additional information. 6. In the event that the Commission adopts a decision refusing to authorise a Member State to enter into negotiations in order to amend, extend, adapt, renew or conclude an agreement with a third country, it shall inform the Member State concerned accordingly and shall give the reasons therefor. 7. Decisions authorising or refusing to authorise a Member State to enter into negotiations in order to amend, extend, adapt, renew or conclude an agreement with a third country shall be adopted, by means of implementing acts, in accordance with the procedure referred to in Article 90(2). 8. The Commission may provide guidance and may request the inclusion of particular clauses in the proposed agreement, in order to ensure compatibility with Union law in accordance with Decision (EU) 2017/684 of the European Parliament and of the Council ( 53 ) . 9. The Commission shall be kept informed of the progress and results of the negotiations to amend, extend, adapt, renew or to conclude an agreement throughout the different stages of such negotiations and may request to participate in such negotiations between the Member State and the third country in accordance with Decision (EU) 2017/684. 10. The Commission shall inform the European Parliament and the Council of the decisions adopted pursuant to paragraph 5. 11. Before signing an agreement with a third country, the Member State concerned shall notify the Commission of the outcome of negotiations and shall transmit the text of the negotiated agreement to the Commission. 12. Upon notification pursuant to paragraph 11, the Commission shall assess the negotiated agreement pursuant to paragraph 3. Where the Commission finds that the negotiations have resulted in an agreement which complies with paragraph 3, it shall authorise the Member State to sign and conclude the agreement. 13. Within 90 days of receipt of the notification referred to in paragraph 11, the Commission shall adopt a decision authorising or refusing to authorise a Member State to sign and conclude the agreement with a third country. Where additional information is needed to adopt a decision, the 90-day period shall run from the date of receipt of such additional information. 14. Where the Commission adopts a decision pursuant to paragraph 13, authorising a Member State to sign and conclude the agreement with a third country, the Member State concerned shall notify the Commission of the conclusion and entry into force of the agreement, and of any subsequent changes to the status of that agreement. 15. In the event that the Commission adopts a decision refusing to authorise a Member State to sign and conclude the agreement with a third country pursuant to paragraph 13, it shall inform the Member State concerned accordingly and shall give the reasons therefor.
Article 90 Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Articles 9, 62, 72, 80, 81 and 82 shall be conferred on the Commission for an indeterminate period of time from 4 August 2024. 3. The delegation of power referred to in Articles 9, 62, 72, 80, 81 and 82 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated act already in force. 4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 9, 62, 72, 80, 81 or 82 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Article 91 Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply. 3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 92 Review and reporting
1. By 31 December 2030, the Commission shall review this Directive and shall submit a report to the European Parliament and to the Council, accompanied, if necessary, by appropriate legislative proposals. The review shall in particular examine the application of Article 9, and related definitions in Article 2, to assess whether facilities that begin operation from 1 January 2031 demonstrate higher greenhouse gas emission savings from the use of low-carbon fuels and low-carbon hydrogen to receive certification pursuant to that Article. 2. By 5 August 2035, the Commission shall publish a communication assessing the implementation of Article 46 with regard to hydrogen distribution network operators, and the implementation of Articles 68 and 69 with regard to hydrogen transmission network operators. 3. By 5 August 2034, ACER shall, for the purpose of the Commission’s communication pursuant to paragraph 2 of this Article, publish a report on the impact of Articles 46, 68 and 69 on the functioning, competition, liquidity, hydrogen infrastructure development and transparency of the market for hydrogen. ACER’s report shall include a consultation of the relevant stakeholders.
Article 94 Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles 2 to 6, Articles 8 to 31, Article 33, Articles 35 to 38, Article 39(1), point (a), Article 39(3), (4), (7), (8) and (9), Article 40(1), Articles 41, 42 and 43, Article 44(1), (2), (7) and (8), Article 45, Article 46(2) and (3), Articles 50 to 59, Article 62, Article 64(11), Articles 68 to 75, Article 76(5), Articles 77, 78 and 79, Article 81(1) and (6), Articles 82 and 83, and Annexes I and II by 5 August 2026. They shall immediately communicate the text of those measures to the Commission. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made and how that statement is to be formulated. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 95 Repeal
Directive 2009/73/EC, as amended by the acts listed in Annex III, Part A of this Directive, is repealed with effect from 4 August 2024, without prejudice to the obligations of Member States relating to the time-limits for the transposition into national law and the date of application of the Directives set out in Annex III, Part B of this Directive. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.
Article 96 Entry into force and application
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 93 shall apply from 5 August 2026.
Article 97 Addressees
This Directive is addressed to the Member States.