Article 1 Subject matter and scope
1. This Decision establishes a mechanism for the exchange of information between Member States and the Commission with regard to intergovernmental agreements in the field of energy as defined in Article 2, in order to optimise the functioning of the internal energy market. 2. This Decision shall not apply to intergovernmental agreements which are already, in their entirety, subject to other specific notification procedures under Union law. Notwithstanding the first subparagraph, this Decision shall apply to intergovernmental agreements which are to be communicated to the Commission pursuant to point (a) of Article 13(6) of Regulation (EU) No 994/ 2010.
Article 2 Definitions
For the purposes of this Decision the following definitions apply: (1) ‘intergovernmental agreement’ means any legally binding agreement between one or more Member States and one or more third countries having an impact on the operation or the functioning of the internal energy market or on the security of energy supply in the Union; however, where such a legally binding agreement also covers other issues, only those provisions that relate to energy, including general provisions applicable to those energy-related provisions, shall constitute an ‘intergovernmental agreement’; (2) ‘existing intergovernmental agreement’ means an intergovernmental agreement which entered into force or is applied provisionally prior to the entry into force of this Decision.
Article 3 Exchange of information between Member States and the Commission
1. By 17 February 2013 Member States shall submit to the Commission all existing intergovernmental agreements, including annexes and amendments to those agreements. Where those existing intergovernmental agreements refer explicitly to other texts, Member States shall also submit to the Commission those other texts, in so far as they contain elements which have an impact on the functioning of the internal energy market or on the security of energy supply in the Union. However, that obligation shall not apply in respect of agreements between commercial entities. Existing intergovernmental agreements which have already been communicated to the Commission in accordance with point (a) of Article 13(6) of Regulation (EU) No 994/2010 at the date of entry into force of this Decision shall be considered as having been submitted for the purposes of this paragraph, provided that that communication meets the requirements of the first subparagraph of this paragraph. By 17 February 2013 Member States shall inform the Commission whether any part of such intergovernmental agreements is to be regarded as confidential and whether the information provided may be shared with other Member States. Where, pursuant to this paragraph, a Member State submits existing intergovernmental agreements also falling within the scope of point (a) of Article 13(6) of Regulation (EU) No 994/2010 to the Commission, it shall be considered to have complied with the communication obligation set out in that Article. 2. Where following its first assessment, the Commission has doubts as to the compatibility with Union law of agreements submitted to it under paragraph 1, in particular with Union competition law and internal energy market legislation, the Commission shall inform the Member States concerned accordingly within nine months of the submission of those agreements. 3. Before or during negotiations with a third country on an intergovernmental agreement or on the amendment of an existing intergovernmental agreement, a Member State may inform the Commission in writing of the objectives of, and the provisions to be addressed in, the negotiations and may communicate any other relevant information to the Commission. Where the Member State gives the Commission such notice of negotiations, the Member State concerned shall keep the Commission regularly informed of the progress of the negotiations. The Member State concerned shall indicate to the Commission whether information submitted under the first subparagraph may be shared with all other Member States. Where the Member State concerned has indicated that the information may be shared, the Commission shall make the information received accessible to all Member States in secure electronic form, with the exception of any confidential parts identified in accordance with Article 4. 4. Where a Member State gives the Commission notice of negotiations pursuant to paragraph 3, the Commission may provide it with advice on how to avoid incompatibility of the intergovernmental agreement or of the amendment to an existing intergovernmental agreement under negotiation with Union law. 5. Upon ratification of an intergovernmental agreement or of an amendment to an intergovernmental agreement, the Member State concerned shall submit the intergovernmental agreement or the amendment, including any annexes to the agreement or the amendment, to the Commission. Where the intergovernmental agreement or the amendment to the intergovernmental agreement refers explicitly to other texts, Member States shall also submit those other texts in so far as they contain elements which have an impact on the functioning of the internal energy market or on the security of energy supply in the Union. However, that obligation does not apply in respect of agreements between commercial entities. 6. Without prejudice to paragraph 7 of this Article and Article 4, the Commission shall make the documents which it has received under paragraphs 1 and 5 accessible in secure electronic form to all other Member States. 7. Where a Member State instructs the Commission, in accordance with Article 4, not to make an existing intergovernmental agreement, an amendment to an existing intergovernmental agreement or a new intergovernmental agreement accessible to other Member States, it shall make available a summary of the information submitted. That summary shall contain at least the following information regarding the agreement or amendment in question: (a) the subject matter; (b) the aim and the scope; (c) the duration; (d) the contracting parties; (e) information on the main elements. The Commission shall make the summaries accessible in electronic form to all other Member States.
Article 4 Confidentiality
1. When providing information to the Commission in accordance with Article 3(1) to (6), a Member State may indicate whether any part of the information, be it commercial or other information the disclosure of which could harm the activities of the parties involved, is to be regarded as confidential and whether the information provided can be shared with other Member States. The Commission shall respect those indications. 2. Requests for confidentiality under this Article shall not restrict access of the Commission itself to confidential information. The Commission shall ensure that access to the confidential information is strictly limited to the Commission services for which it is absolutely necessary to have the information available.
Article 5 Assistance from the Commission
Where a Member State gives the Commission notice of negotiations pursuant to Article 3(3), that Member State may request the assistance of the Commission in those negotiations. At the request of the Member State concerned, or at the request of the Commission and with the written approval of the Member State concerned, the Commission may participate in the negotiations as an observer. Where the Commission participates in the negotiations as an observer, it may provide the Member State concerned with advice on how to avoid incompatibility of the intergovernmental agreement or amendment under negotiation with Union law.
Article 6 Compatibility assessment
1. Where a Member State is negotiating an intergovernmental agreement or an amendment to an existing intergovernmental agreement and it has been unable, on the basis of its own assessment, to reach a firm conclusion as to the compatibility of the intergovernmental agreement or amendment under negotiation with Union law, it shall inform the Commission thereof before the closure of the negotiations and submit the draft agreement or amendment together with any annexes to it. 2. The Commission shall, within four weeks of the date of receipt of the draft agreement or amendment, including annexes thereto, inform the Member State concerned of any doubts it may have as to the compatibility of the draft intergovernmental agreement or amendment with Union law. In the absence of a response from the Commission within that period, the Commission shall be deemed not to have any doubts. 3. Where the Commission informs the Member State concerned pursuant to paragraph 2 that it has doubts, it shall inform the Member State concerned of its opinion on the compatibility with Union law of the draft agreement or amendment concerned within 10 weeks of the date of receipt referred to in paragraph 2 (the examination period). With the approval of the Member State concerned, the examination period may be extended. In the absence of an opinion from the Commission within the examination period, the Commission shall be deemed not to have raised any objections. 4. The time periods referred to in paragraphs 2 and 3 shall be shortened in agreement with the Commission if circumstances so warrant.
Article 7 Coordination among Member States
The Commission shall facilitate and encourage coordination among Member States with a view to: (a) reviewing developments in relation to intergovernmental agreements and striving for consistency and coherence in the Union’s external energy relations with producer, transit, and consumer countries; (b) identifying common problems in relation to intergovernmental agreements and considering appropriate action to address those problems and, where appropriate, proposing solutions; (c) on the basis of best practice and in consultation with Member States, developing optional model clauses, which, if applied, would significantly improve compliance of future intergovernmental agreements with Union law; (d) supporting, where appropriate, the development of multilateral intergovernmental agreements involving several Member States or the Union as a whole.
Article 8 Reporting and review
1. By 1 January 2016, the Commission shall submit a report on the application of this Decision to the European Parliament, the Council and the European Economic and Social Committee. 2. The report shall, in particular, assess the extent to which this Decision promotes compliance of intergovernmental agreements with Union law and a high level of coordination between Member States with regard to intergovernmental agreements. It shall also assess the impact that this Decision has on Member States’ negotiations with third countries and whether the scope of this Decision and the procedures it lays down are appropriate. 3. After submission of the first report referred to in paragraph 1 of this Article, the Commission shall report every three years to the European Parliament and the Council on the information received pursuant to Article 3, having due regard to the confidentiality provisions of this Decision.
Article 9 Entry into force
This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
Article 10 Addressees
This Decision is addressed to the Member States.