Publication: Magyar Közlöny
Issue: MK-2009-155 (Year: 2009, Number: 155)
Era: 2004-2010
Section: 2009. évi CV. törvény
Paragraph Index: 116

(32) „Transportation Contract” shall mean any commercial agreement between Nabucco International Company and Shippers for the Transportation of Natural Gas through the Nabucco Pipeline System. Unless the context otherwise requires, reference to the singular includes a reference to the plural, and vice-versa. Reference to any Person under the Agreement shall include reference to any successors or permitted assignees of that Person. A reference to any agreement, treaty, statute, statutory provision, subordinate legislation, regulation or other instrument is a reference to it as it is in force, taking account of any amendment, re-enactment or replacement. ARTICLE 3 3.1 The Agreement shall not affect any treaty rights and obligations of the States Parties, including those deriving from the Energy Charter Treaty to which the States Parties are all party, and from the Treaties establishing the European Union for the Republic of Austria, the Republic of Bulgaria, the Republic of Hungary, and Romania. 3.2 Each State Party shall provide the most favourable, non-discriminatory regulatory conditions for the implementation of the Nabucco Project, subject to any provisions set out in the Agreement. Consistent with national, European Community and internationallaweachState Party shalluse its best endeavoursto take alllegislativemeasuresthat are reasonably required to enable the implementation of the Project Activities. This provision shall not be construed as to apply to the tax treatment of the Nabucco Companies. Nothing in the Agreement obliges the States Parties to finance the Nabucco Project or to accept financial liabilities in regard to the Nabucco Project. 3.3 For a period of 25 years from the date where the first construction stage of the Nabucco Project is put into initial operation, in respect of the Nabucco Project each State Party shall ensure that its relevant State Party Authority gives effect to the two following regulatory permissions on the basis of the requirements set out in Articles 3.3.1 to 3.3.3, which permissions and requirements are as detailed in the Annex, namely: – fifty percent (50%) of the maximum available total technical annual Transportation capacity in the Nabucco Project, but not more than 15 billioncubic meters per year in the event of a final expansionof capacity to 31 billion cubic meters per year, shall initially be offered to, and if accepted, reserved by the Shareholders, or their affiliates or transferees provided that the remaining capacity will be offered in a transparent, objective and non-discriminatory procedure for Shipper access; and – pursuant to the tariff methodology defined in the Annex, Nabucco International Company may determine a stable tariff to attract financing and Shippers’ commitments; the determination of the applicable tariffs derived from such methodology shall be in the sole discretion of Nabucco International Company. Having regard to the fact that exemptions from Articles 18 and 25 (2), (3) and (4) of the Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC have been requested from the State Party Authorities of the Republic of Austria, the Republic of Bulgaria, the Republic of Hungary and of Romania before the entry into force of the Agreement, and noting that these States Parties have, in accordance with that Directive, granted the respective exemptions and notified them to the European Commission, these States Parties will have entirely satisfied their obligations under this Article 3.3. Having regard to the fact that the obligations under this Article 3.3 are directly effective in the Republic of Turkey, the Republic of Turkey will upon entry into force of the Agreement have entirely satisfied its obligations under this Article 3.3. 3.3.1 The capacity in the Nabucco Project shall be allocated by way of an Open Season or other transparent, objective and non-discriminatory allocation procedures. Further to the allocation procedures, the State Party Authorities shall be informed of the results of these procedures; 3.3.2 A mechanism for the release of unutilised capacity shall be implemented in order to prevent the hoarding of such capacity by Shippers. The State Party Authorities shall be informed of the mechanism; 3.3.3 Long-term binding capacity requests for the Nabucco Project, necessitating the build-up of the Nabucco Project up to its final maximum Transportation capacity, are to be satisfied provided that this build-up is technically possible, economically feasible and that the binding capacity requests amount to at least 1.0 bcm/year. Each State Party shall facilitate the compliance of Nabucco International Company with possible regulatory obligations foreseen by State Party Authorities to build additional capacity. States Parties shall ensure that the capacity of the Nabucco Project between the Initial Entry Points and Baumgarten in Austria including any capacity leased by Nabucco International Company or made available to it, is marketed on the basis of a One-Stop-Shop Shipper Access. 3.4 Each State Party shall endeavour to ensure the capability of Transportation of Natural Gas in reverse flow direction for the whole length of the Nabucco Project at a specific tariff agreed between Nabucco International Company or the relevant Nabucco National Company and Shippers as far as technically possible and economically feasible. Where reverse flow capacity is offered on the Nabucco Project, the States Parties shall ensure that the Transportation Contracts and tariffs by Nabucco International Company to Shippers are offered on a transparent and non-discriminatory basis, and communicated to the respective State Party Authority as required in the Territory. 3.5 Each State Party shall conclude, under mutually agreed terms and conditions, a Project Support Agreement with the Nabucco International Company and the relevant Nabucco National Company as a means to facilitate the private sector financing and the realisation of the Nabucco Project. ARTICLE 4 4.1 Each State Party agrees that no discriminatory requirements or obligations will be applied to pipeline owners or operators who obtain or seek to obtain connections for their Natural Gas pipelines to the Nabucco Pipeline System or to Shippers who obtain or seek to obtain transportation services via the Nabucco Pipeline System. 4.2 States Parties may establish a limit to the application of Article 4.1 in order to address duly substantiated national security concerns, which shall be presented to the Nabucco Committee. ARTICLE 5 The States Parties shalluse their best endeavours to extend the protections set out in Article 7 of the Agreement to any pipelines and attendant technical Facilities to be used by Shippers for the Transportation of Natural Gas within their Territories to the Nabucco Project. The Nabucco Committee may determine, where necessary, which pipelines are covered by this Article. ARTICLE 6 The States Parties shall respect Commercial Arrangements between any Nabucco Companies (or their affiliates or Shareholders) inter se, between the Nabucco Companies (or their affiliates or Shareholders) and the States Parties, and/or the Nabucco Companies (or their affiliates or Shareholders) with third parties to address the security of supply concerns of the States Parties provided that such Commercial Arrangements are consistent with applicable national legislation, international law and, in the case of those States Parties that are Member States of the European Union, European Union law. ARTICLE 7 7.1 States Parties shall refrain from imposing any additional Nabucco Project specific Taxes, or discriminatory tax or legal requirements,or ostensiblygeneralmeasuresthat areof equivalenteffect, onthe NabuccoCompaniesor the Nabucco Project that affect the economicsor financingconditionsof the Nabucco Project. In particular,this prohibitionrefers to any requirement with respect to title, including the cession or transfer thereof, including the geographical point of transfer of title, or ownership of Natural Gas in the Nabucco Project or any part thereof. This provision does not refer to any general measures of tax law or company law. 7.2 Without prejudice to Articles 7.3 and 7.4, States Parties shall not permit nor require the Interruption of or restriction on the freedom of Transportationof Natural Gasin the NabuccoProjectand shalltakeallmeasuresand actionswhichmay be necessary or required to avoid and prevent the interruption or curtailment of such freedom of Transportation. 7.3 No State Party shall interrupt, curtail, or delay the realisation of the Nabucco Project or the Project Activities in its Territory, unless justified in advance to the other States Parties with reference to a legitimate purpose and agreed with them. 7.4 Notwithstanding Article 7.3, a State Party may interrupt the Project Activities in its Territory only to the extent and for the length of time necessary to remove a Hazard, or to require the Nabucco Companies to remove the Hazard if it directly arises from Project Activities. In the event of a Hazard, whether or not it interrupts Project Activities, the State Party shall provide without undue delay all necessary information to the other States Parties. The non-performance of any supply or Transportation Contract can neither constitute an Hazard nor cause an Hazard to occur. 7.5 States Parties shall use all lawful and reasonable endeavours to remove or avoid Impediments. The non-performance of any supply or Transportation Contract can neither constitute an Impediment nor cause an Impediment to occur. 7.6 If any other event occurs or any other situation arises which interrupts, curtails, or otherwise restricts Project Activities, an „Interruption” for the purpose of this Article, the State Party in, or in respect of whose Territory the relevant Interruption has arisen, shall give notice to the other States Parties and to Nabucco International Company without undue delay, and will use all lawful and reasonable endeavours to remove the reasons underlying such interruption and to promote restoration of such Project Activities at the earliest possible opportunity. ARTICLE 8 8.1 The States Parties shall ensure that the Nabucco National Companies benefit from a legal and regulatory regime that allowsthem to have ownershipand operatingrights over their respectivesectionsof the Nabucco Project and allother assets intended to be used for the Project within the respective Territories within the limits of Article 3 above, subject to any sector specific legislation or other general legal requirements. 8.2 The States Parties shall:

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