Article 78 New natural gas and hydrogen infrastructure
1. Major new natural gas infrastructure, namely interconnectors, LNG facilities and natural gas storage facilities, may, upon request, be exempted, for a set period, from the application of provisions of this Regulation, except from Article 34(5) and (6), and from the application of Article 31(1), Article 32, Article 33, Article 60, Article 78(7) and (9) and Article 79(1) of Directive (EU) 2024/1788. Major new hydrogen infrastructure, namely interconnectors, hydrogen terminals and underground hydrogen storage facilities, may, upon request, be exempted, for a set period, from the application of provisions of this Regulation, except from Article 34(5) and (6), and from the application of Articles 35, 36, 37 and 68 of Directive (EU) 2024/1788. Any such exemption shall be subject to all of the following conditions: (a) the investment enhances competition in natural gas supply or hydrogen supply and enhance security of supply; (b) the investment contributes to decarbonisation and the achievement of the Union’s climate and energy targets and was decided by applying the energy efficiency first principle; (c) the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted; (d) the infrastructure is owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built; (e) charges are levied on users of that infrastructure; (f) the exemption is not detrimental to competition in the relevant markets which are likely to be affected by the investment, to the proper functioning of the internal integrated market for natural gas or hydrogen, to the proper functioning of the regulated systems concerned, to decarbonisation or to the security of supply of the Union; (g) the infrastructure has not received Union financial assistance for works under Regulation (EU) 2021/1153 of the European Parliament and of the Council ( 40 ) . The conditions referred to in the third subparagraph shall be assessed taking into account the principle of energy solidarity. Competent national authorities shall take into account the situation in other affected Member States and balance possible negative effects with the beneficial effects on its territory. 2. The exemption referred to in paragraph 1 shall also apply to significant increases of capacity in existing infrastructure and to modifications of such infrastructure which enable the development of new sources of renewable gas and low-carbon gas supply. 3. The regulatory authority may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2. Before the adoption of the decision on the exemption, the regulatory authority, or, where appropriate, another competent authority of the Member State concerned, shall consult: (a) the regulatory authorities of the Member States the markets of which are likely to be affected by the new infrastructure; and (b) the relevant authorities of the third countries, where the infrastructure concerned is connected with the Union network under the jurisdiction of a Member State, and originates from or ends in one or more third countries. Where the third-country authorities consulted do not respond to the consultation within a reasonable period or by a set deadline not exceeding three months, the regulatory authority concerned may adopt the necessary decision. 4. Where the infrastructure concerned is located in the territory of more than one Member State, ACER may submit an advisory opinion to the regulatory authorities of the Member States concerned within two months of the date on which the request for exemption was received by the last of those regulatory authorities. Such an advisory opinion may be used as a basis for the decision of the regulatory authorities. Where all the regulatory authorities concerned agree on the request for exemption within six months of the date on which it was received by the last of the regulatory authorities, they shall inform ACER of their decision. Where the infrastructure concerned is a transmission line between a Member State and a third country, the regulatory authority, or, where appropriate, another competent authority of the Member State where the first interconnection point with the Member States’ network is located, may consult before the adoption of the decision on the exemption the relevant authority of that third country with a view to ensuring, as regards the infrastructure concerned, that this Regulation is applied consistently in the territory and, where applicable, in the territorial sea of that Member State. Where the third-country authority consulted does not respond to the consultation within a reasonable period or by a set deadline not exceeding three months, the regulatory authority concerned may adopt the necessary decision. ACER shall exercise, in accordance with Article 10 of Regulation (EU) 2019/942, the tasks conferred on the regulatory authorities of the Member States pursuant to this Article: (a) where all regulatory authorities concerned have not been able to reach an agreement within a period of six months of the date on which the request for exemption was received by the last of those regulatory authorities; or (b) upon a joint request from the regulatory authorities concerned. All regulatory authorities concerned may, jointly, request that the period referred to in the third subparagraph, point (a), is extended by up to three months. 5. Before adopting a decision, ACER shall consult the relevant regulatory authorities and the applicants. 6. An exemption may cover all or part of the capacity of the new infrastructure or of the existing infrastructure with significantly increased capacity. In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. In deciding on those conditions, account shall be taken, in particular, of the additional capacity to be built or the modification of existing capacity, the projected period of the project and national circumstances. Before granting an exemption, the regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the infrastructure to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in paragraph 1, points (a), (c) and (f), the regulatory authority shall take into account the results of that capacity allocation procedure. The exemption decision, including any conditions referred to in the second subparagraph, shall be duly reasoned and published. 7. When analysing whether a major new infrastructure is expected to enhance security of supply pursuant to paragraph 1, point (a), of this Article, the competent authority shall consider to what extent the new infrastructure is expected to improve Member States’ compliance with their obligations under Regulation (EU) 2017/1938, both at regional and national level. 8. Where an authority other than the regulatory authority is competent to adopt exemption decisions, Member States may provide that their regulatory authority or ACER, as the case may be, is to submit an opinion on the request for an exemption to that competent authority in the Member State concerned, before the adoption of the formal exemption decision. That opinion shall be published together with the decision. 9. The competent authority shall transmit to the Commission, without delay, a copy of every request for exemption following receipt. The competent authority shall notify, without delay, the Commission of the exemption decision together with all the relevant information. That information may be submitted to the Commission in aggregate form, enabling the Commission to assess the exemption decision and shall contain, in particular: (a) the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to the relevant point or points of paragraph 1 setting out the conditions on which that decision is based, including the financial information justifying the need for the exemption; (b) the analysis undertaken of the effect on competition and the proper functioning of the internal market resulting from the granting of the exemption; (c) the reasons for the duration of the exemption and the share of the total capacity of the infrastructure for which the exemption is granted; (d) where the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; (e) the contribution of the infrastructure to the diversification of supply. 10. Within 50 working days of the day following that of receipt of the notification under paragraph 9, the Commission may adopt a decision requesting the notifying bodies to amend or withdraw the decision to grant an exemption. Before adopting the decision on the exemption, the Commission may seek an opinion of the European Scientific Advisory Board on Climate Change established under Article 10a of Regulation (EC) No 401/2009 of the European Parliament and of the Council ( 41 ) as to whether the exemption contributes to achieving the Union’s climate and energy targets. That period may be extended by an additional 50 working days where further information is requested by the Commission. The additional period shall begin on the day following receipt of the complete information. The initial period may also be extended by consent of both the Commission and the notifying bodies. Where the requested information is not provided within the period set out in the request, the notification shall be considered to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete. The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly. The Commission shall preserve the confidentiality of commercially sensitive information. Where the Commission approves an exemption decision, that approval shall lose its effect: (a) after two years from its adoption where the construction of the infrastructure has not yet started; (b) after five years from its adoption where the infrastructure has not become operational within that period, unless the Commission decides that any delay is due to major obstacles beyond the control of the person to whom the exemption has been granted. 11. The Commission is empowered to adopt delegated acts in accordance with Article 80 in order to supplement this Regulation by setting guidelines for the application of the conditions laid down in paragraph 1 of this Article and for the procedure to be followed for the application of paragraphs 3, 6, 8 and 9 of this Article.
Article 79 Derogations
This Regulation shall not apply to natural gas transmission systems situated in Member States for the duration of derogations granted pursuant to Article 86 of Directive (EU) 2024/1788.
Article 80 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 Article 14(5), Article 18(3), Article 31(3), Article 71(1), Article 72(1), Article 74(3) and (4) and Article 78(11) shall be conferred on the Commission for an indeterminate period of time from 4 August 2024. 3. The delegation of power referred to in Article 14(5), Article 18(3), Article 31(3), Article 71(1), Article 72(1), Article 74(3) and (4) and Article 78(11) 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 acts 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 14(5), Article 18(3), Article 31(3), Article 71(1), Article 72(1), Article 74(3) or (4) or Article 78(11) 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 to 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 81 Committee procedure
1. The Commission shall be assisted by the committee established by Article 91 of Directive (EU) 2024/1788. 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 82 Review and reporting
1. By 31 December 2030, the Commission shall review this Regulation and shall submit a report to the European Parliament and to the Council, accompanied, where appropriate, by legislative proposals. 2. By 5 August 2029, the Commission may prepare a report assessing how to enable stronger system integration and harness further synergies across the hydrogen, electricity and natural gas sectors, including assessing the possibility of enhanced cooperation between, or integration of, the ENTSO for Electricity, the ENTSO for Gas and the ENNOH. That report shall be accompanied, where appropriate, by legislative proposals.
Article 83 Amendments to Regulation (EU) No 1227/2011
Regulation (EU) No 1227/2011 is amended as follows: (1) in Article 2, point (1)(b) and points (4) and (5), Article 3(3) and (4), point (c), Article 4(1) and Article 8(5), the term ‘electricity or natural gas’ is replaced by the term ‘electricity, hydrogen or natural gas’; (2) in Article 6(2), points (a) and (b), the term ‘electricity and gas markets’ is replaced by the term ‘electricity, hydrogen and natural gas markets’.