EUROPEAN
COMMISSION

Brussels, 30.11.2016
COM(2016) 864 final
2016/0380 (COD)

Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on common rules for the internal market in electricity
(recast)
(Text with EEA relevance)
{SWD(2016) 410}
{SWD(2016) 411}
{SWD(2016) 412}
{SWD(2016) 413}

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EXPLANATORY MEMORANDUM
1.

CONTEXT OF THE PROPOSAL

•

Reasons for and objectives of the proposal

Policy Context
European citizens spend a significant part of their income on energy, and energy is an
important input for European industry. At the same time, the energy sector plays a key role in
the obligation to reduce greenhouse gas emissions in the Union by at least 40% until 2030
with an expected share of 50% of renewables by 2030.
The proposals for a recast of the Directive on common rules for the internal market in
electricity, the Regulation on the electricity market and the Regulation establishing a
European Union Agency for the Cooperation of Energy Regulators are part of the
Commission's broader package of initiatives ("Clean Energy for All Europeans"). The
Package comprises the Commission's key proposals to implement the Energy Union, as
foreseen in the Energy Union Roadmap1. It includes both legislative proposals as well as nonlegislative initiatives to create a conducive enabling framework to deliver tangible benefits for
citizens, jobs, growth and investments while contributing to all five dimensions of the Energy
Union. The key priorities for the package are thus energy efficiency first, the EU's global
leadership in renewables, and a fair deal for energy consumers.
Both the European Council2 and the European Parliament3 have repeatedly stressed that a
well-functioning integrated energy market is the best tool to guarantee affordable energy
prices, secure energy supplies and to allow for the integration and development of larger
volumes of electricity produced from renewable sources in a cost efficient manner.
Competitive prices are essential for achieving growth and consumer welfare in the European
Union, and hence are at the heart of EU energy policy. The current electricity market design is
based on the rules of the "Third Energy Package4", adopted in 2009. These rules have
subsequently been complemented by legislation against market abuses5 and implementing
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Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee, the Committee of the Regions and the European Investment Bank: A
Framework Strategy for a Resilient Energy Union with a Forward-Looking Climate Change Policy
COM/2015/080 final.
Outcome of the Council Meeting 3429th Meeting, transport, Telecommunications and Energy, 26
November 2015 14632/15, Outcome of the Council Meeting, 3472nd Meeting, Transport,
Telecommunications and Energy, 6 June 2016 9736/16.
European Parliament Resolution of 13 September 2016 on Towards a new Market Design (P8_T
A(2016) 0333).
Directive 2009/72 of the European Parliament and of the Council of 13 July 2009 concerning common
rules for the internal market in electricity and repealing Directive 2003/54/EC, OJ L 211, 14.8.2009, p.
55–93 (henceforth the "Electricity Directive"); Regulation (EC) No 714/2009 of the European
Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border
exchanges in electricity repealing Regulation (EC) No 1228/2003, OJ L 211, 14.8.2009, p. 15–35
(henceforth "Electricity Regulation"); Regulation (EC) No 713/2009 of the European Parliament and of
the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators. OJ L
211, 14.8.2009, p. 1–14 (henceforth "ACER Regulation"),
Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on
wholesale energy market integrity and transparency OJ L 326, 8.12.2011, p. 1–16; Commission
Implementing Regulation (EU) No 1348/2014 of 17 December 2014 on data reporting implementing
Article 8(2) and Article 8(6) of Regulation (EU) No 1227/2011 of the European Parliament and of the
Council OJ L 363, 18.12.2014, p. 121–142.

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legislation concerning electricity trade and grid operation rules6. The EU internal energy
market is built on well-established principles, such as the right of access for third parties to
electricity grids, free choice of suppliers for consumers, robust unbundling rules, the removal
of barriers to cross-border trade, market supervision by independent energy regulators, and
the EU-wide cooperation of regulators and grid operators within the Agency for the
Cooperation of Energy Regulators (ACER) and the European Network of Transmission
System Operators (ENTSO).
The Third Energy Package has brought tangible progress for consumers. It has led to
increased liquidity of European electricity markets and significantly increased cross-border
trade. Consumers in many Member States can now benefit from more choice. Increased
competition notably on wholesale markets helped to keep wholesale prices in check. New
consumer rights introduced by the Third Energy Package have clearly improved the position
of consumers in energy markets.
New developments have led to fundamental changes in European electricity markets. The
share of electricity generated from renewable energy sources (RES-E) has steeply increased.
This shift towards RES-E will continue as it is a key condition to fulfil the Union's obligations
under the Paris Agreement on climate. The physical nature of RES-E – more variable, less
predictable and decentralised than traditional generation – requires an adaptation of market
and grid operation rules to the more flexible nature of the market. In parallel, state
interventions, often designed in an uncoordinated manner, have led to distortions of the
wholesale electricity market, with negative consequences for investments and cross-border
trade7. Significant changes are also taking place on the technological side. Electricity is traded
almost European-wide through so-called "market coupling", jointly organised by power
exchanges and transmission system operators. Digitalisation and the rapid development of
internet-based metering and trading solutions enable industry, businesses and even households
to generate and store electricity, as well as participate in electricity markets via so-called
'demand response' solutions. The electricity market of the next decade will be characterised by
more variable and decentralised electricity production, an increased interdependence between
Member States and new technological opportunities for consumers to reduce their bills and
actively participate in electricity markets through demand response, self-consumption or
storage.

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Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on
wholesale energy market integrity and transparency OJ L 326, 8.12.2011, p. 1–16; Commission
Regulation (EU) No 543/2013 of 14 June 2013 on submission and publication of data in electricity
markets and amending Annex I to Regulation (EC) No 714/2009 of the European Parliament and of the
Council OJ L 163, 15.6.2013, p. 1–12; Commission Regulation (EU) 2015/1222 of 24 July 2015
establishing a guideline on capacity allocation and congestion management OJ L 197, 25.7.2015, p. 24–
72; Commission Regulation (EU) 2016/631 of 14 April 2016 establishing a network code on
requirements for grid connection of generators OJ L 112, 27.4.2016, p. 1–68; Commission Regulation
(EU) 2016/1388 of 17 August 2016 establishing a Network Code on Demand Connection OJ L 223,
18.8.2016, p. 10–54; Commission Regulation (EU) 2016/1447 of 26 August 2016 establishing a
network code on requirements for grid connection of high voltage direct current systems and direct
current-connected power park modules OJ L 241, 8.9.2016, p. 1–65; Commission Regulation (EU)
2016/1719 of 26 September 2016 establishing a guideline on forward capacity allocation OJ L 259,
27.9.2016, p. 42–68; other Guidelines and network codes have been endorsed Member States' approval
and are awaiting adoption.
See Communication from the Commission "Delivering the internal electricity market and making the
most of public intervention", C(2013) 7243 final of 5.11.2013.

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The present electricity market design initiative thus aims to adapt the current market rules to
new market realities, by allowing electricity to move freely to where it is most needed when it
is most needed via undistorted price signals, whilst empowering consumers, reaping
maximum benefits for society from cross-border competition and providing the right signals
and incentives to drive the necessary investments to decarbonise our energy system. It will
also give priority to energy efficiency solutions, and contribute to the goal of becoming a
world leader in energy production from renewable energy sources, thus contributing to the
Union's target to create jobs, growth and attract investments.
Adapting market rules
The existing market rules are based on the predominant generation technologies of the last
decade, i.e. centralised, large-scale fossil fuel-based power plants with limited participation of
consumers. As variable RES-E will play an increasing role in the generation mix in future,
and consumers should be enabled to participate in the markets if they wish so, the rules need
to be adapted. Short-term electricity markets which allow trading RES-E across borders are
key for the successful integration of RES-E into the market. This is because most generation
from renewables can only be accurately forecasted shortly before the actual production (due
to weather uncertainties). The creation of markets which allow participation at short notice
before actual delivery (so-called "intraday" or "balancing" markets) are a crucial step to
enable RES-E producers to sell their energy at fair terms and it will also increase liquidity in
the market. Short-term markets will provide new business opportunities for participants to
offer "back-up" energy solutions at times of high demand and scarce renewable generation.
This includes the possibility for consumers to shift their demand ("demand response"), storage
operators or flexible generators. While dealing with variability in small regions can be very
expensive, aggregation of variable production over larger areas could help consumers save
significant amounts of money. Yet, integrated short-term markets are still missing.
The shortcomings of the current market arrangements reduce the attractiveness of the energy
sector for new investment. An adequately interconnected, market-based energy system in
which prices follow market signals will stimulate the necessary investments into generation
and transmission in an effective manner and ensure that they are made where they are most
needed by the market, thereby minimising the need for state-planned investments.
National market rules (e.g. price caps) and state interventions currently hinder prices from
reflecting when electricity is scarce. Furthermore, price zones do not always reflect actual
scarcity if poorly configured and instead follow political borders. The new market design
aims to improve price signals to drive investment in areas where it is needed most, reflecting
grid constraints and demand centres, rather than national borders. Price signals should also
allow for adequate remuneration of flexible resources (including demand-response and
storage), as these resources rely on rewards for shorter periods of time (e.g. modern gas plants
which are only used for peak hours or the reduction of industrial demand at times of peak
demand or system stress). Effective price signals also ensure the efficient dispatch of existing
generation assets. It is therefore critical to review any existing rules that distort price
formation (such as rules prioritising the dispatch of certain installations) in order to activate
and fully realise the flexibility potential that the demand side can offer
Putting consumers at the heart of the energy market
Fully integrating industrial, commercial and residential consumers into the energy system can
avoid significant costs for 'backup' generation; costs which consumers would otherwise end
up paying. It even allows consumers to benefit from price fluctuations and to earn money

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through participation in the market. Activating consumer participation is therefore a
prerequisite for managing the energy transition successfully and in a cost-effective way.
Delivering a new deal for energy consumers is a key commitment of the Energy Union.
However, current market rules often do not allow consumers to benefit from these new
opportunities. Although consumers can generate and store electricity as well as manage their
energy consumption more easily than ever, the current design of the retail market prevents
them from being able to fully benefit from such opportunities.
In most Member States, consumers have little or no incentive to change their consumption in
response to changing prices in the markets, as real-time price signals are not passed on to final
consumers. The market design package is an opportunity to deliver on this commitment. More
transparent real time price signals will stimulate consumer participation, either individually or
through aggregation, and make the electricity system more flexible, facilitating the integration
of electricity from renewable energy sources. Besides offering great energy saving potential
for households, technological developments mean that appliances and systems, such as smart
white electronics, electric vehicles, electric heating, air conditioning and heat pumps in
insulated buildings and district heating and cooling, can automatically follow price
fluctuations and, on a large scale, offer a significant and flexible contribution to the electricity
grid. In order to enable consumers to benefit financially from those new opportunities, they
must have access to fit-for-purpose smart systems as well as electricity supply contracts with
dynamic prices linked to the spot market. In addition to consumers adjusting their
consumption to price signals, new demand services are currently emerging whereby new
market actors offer to manage the electricity consumption of a number of consumers by
paying them a compensation for their flexibility. Although such services are already
encouraged under existing EU legislation, the evidence suggests that these provisions have
not been effective in removing the primary market barriers for those service providers to enter
the market. Sharpening these provisions is necessary to further encourage such new services.
In many Member States, electricity prices do not follow demand and supply, but are regulated
by the public authorities. Price regulation can limit the development of effective competition,
discourage investments and the emergence of new market players. The Commission therefore
committed in its Energy Union Framework Strategy8 to phase-out regulated prices below cost
and to encourage Member States to establish a road map for the phasing-out of all regulated
prices. The new market design aims at ensuring that supply prices are free of any public
intervention, and only with duly justified exceptions.
Rapidly falling technology costs mean that more and more consumers are able to reduce their
energy bills by using technologies such as rooftop solar panels and batteries. However, selfgeneration is still hampered by a lack of common rules for 'prosumers'. Appropriate rules
could remove these barriers, e.g. by guaranteeing consumers' rights to generate energy for
their own consumption and sell surplus into the grid, while taking into account the costs and
benefits for the system as a whole (e.g. appropriate participation in grid costs).
Local energy communities can be an efficient way of managing energy at community level by
consuming the electricity they generate either directly for power or for (district) heating and
cooling, with or without a connection to distribution systems. To ensure that such initiatives
can freely develop, the new market design requires Member States to put in place appropriate
legal frameworks to enable their activities.

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See Communication "A Framework Strategy for a Resilient Energy Union with a Forward-Looking
Climate Change Policy ", COM/2015/080.

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Today, more than 90% of variable renewable electricity sources are connected to distribution
grids. The integration of local generation has in fact contributed to a significant increase in
network tariffs for household consumers. In addition, taxes and levies to finance grid
extensions and renewables' investments have risen drastically. The new market design and the
revision of the Renewables Directive provide an opportunity to address these shortcomings,
which can disproportionately impact certain household consumers.
Allowing Distribution System Operators (DSOs) to manage some of the challenges associated
with variable generation more locally (e.g. by managing local flexibility resources) could
significantly reduce network costs. However, since many DSOs are part of vertically
integrated companies which are also active in the supply business, regulatory safeguards are
necessary to guarantee the DSOs' neutrality in their new functions, e.g. in terms of data
management and when using flexibility to manage local congestions.
Another key driver to competition and consumer engagement is information. Previous
Commission consultations and studies have shown that consumers complain about a lack of
transparency in electricity markets, reducing their ability to benefit from competition and
actively participate in markets. Consumers do not feel informed enough about alternative
suppliers, the availability of new energy services and complain about the complexity of offers
and procedures for switching suppliers. The reform will also ensure data protection as an
increased use of new technologies (notably smart metering systems) will generate a range of
energy data carrying high commercial value.
In putting consumers at the heart of the energy market, an essential consideration in the new
market design is how to ensure that the most vulnerable in society are protected and that the
overall number of energy-poor households will not further increase. With rising levels of
energy poverty as well as a lack of clarity on the most appropriate means of tackling
consumer vulnerability and energy poverty, the new market design proposal requires Member
States to duly measure and regularly monitor energy poverty based on principles defined at
EU level. The revised Energy Efficiency and Energy Performance of Building Directives
provide for further measures to tackle energy poverty.
Security of electricity supply
Security of electricity supply is indispensable in modern societies which largely depend on
electricity and internet driven systems. It is therefore necessary to assess the ability of the
European electricity system to offer sufficient generation and flexibility to ensure reliable
electricity supply at all times (resource adequacy). Ensuring security of supply is not only a
national obligation, but a key pillar of European energy policy9. This is because security of
supply can, in a fully interconnected and synchronised network with well-functioning
markets, be organised far more efficiently and competitively than on a purely national basis.
Grid stability in individual Member States often heavily depends on electricity flows from
neighbouring countries and potential security of supply problems therefore usually have a
regional impact. For this reason, the most efficient remedies to national generation deficits are
often regional solutions, allowing Member States to benefit from generation surpluses in other
countries. A coordinated European adequacy assessment should therefore be introduced,
following a jointly agreed methodology, in order to obtain a realistic picture of possible
generation needs, taking into account the integration of electricity markets and potential flows
from other countries. If the coordinated adequacy assessment shows that capacity mechanisms
are necessary in certain countries or regions, such mechanisms should be designed so as to
minimise distortions to the internal market. Clear and transparent criteria to minimise
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See Article 194(1)(b) TFEU.

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distortions of cross-border trade, maximise use of demand response, and reduce impacts
affecting decarbonisation should therefore be defined to avoid the risk of fragmented national
capacity mechanisms creating new market barriers and undermining competition10.
Strengthening regional cooperation
The close interconnection of EU Member States through the common trans-European grid is
unique in the world and a great asset when it comes to dealing efficiently with the energy
transition. Without the ability to rely on generation or demand resources from other Member
States, the costs of the energy transition for consumers would increase significantly. Today,
system operation across borders is much more interrelated than it was in the past. This is due
to the increase in variable and decentralised generation, together with closer market
integration, especially in shorter market time intervals. This also means that national actions
by regulators or grid operators can have an immediate effect on other EU Member States.
Experience has shown that uncoordinated national decisions can lead to significant costs for
European consumers.
The fact that some interconnectors are only used to 25% of their capacities, often due to
uncoordinated national limitations, and that Member States have not been able to agree on
appropriate price zones illustrates that there is a need for more coordination between
Transmission System Operators (TSOs) and regulators. Successful examples of voluntary and
mandatory cooperation between TSOs, regulators and governments have shown that regional
cooperation can improve market functioning and reduce costs significantly. In certain areas,
e.g. for the EU-wide 'market coupling' mechanism, TSO cooperation has already become
mandatory, and the system of majority voting on some issues has proven to be successful in
areas where voluntary cooperation (leaving each TSO a veto right) did not lead to efficient
results for regional problems. Following this successful example, mandatory cooperation
should be expanded to other areas in the regulatory framework. To this end, TSOs could
decide within 'Regional Operational Centres' (ROCs) on those issues where fragmented and
uncoordinated national actions could negatively affect the market and consumers (e.g. in the
fields of system operation, capacity calculation for interconnectors, security of supply and risk
preparedness).
Adapting regulatory oversight to regional markets
It appears appropriate to also adapt regulatory oversight to the new realities of the market. All
main regulatory decisions are currently taken by national regulators, even in cases where a
common regional solution is needed. While ACER has been successful in providing a forum
for the coordination of national regulators with diverging interests, its main role is currently
confined to coordination, advising and monitoring. While market actors increasingly
cooperate across borders and decide on certain matters concerning grid operation and
electricity trading with qualified majority at a regional or even Union level11, there is no
equivalent for these regional decision-making procedures at regulatory level. Regulatory
oversight therefore remains fragmented, leading to a risk of diverging decisions and
unnecessary delays. Strengthening the powers of ACER for those cross-border issues which
require a coordinated regional decision would contribute to faster and more effective

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See in this context also the proposal for a Regulation of the European Parliament and the Council on
risk preparedness in the electricity sector, covering risks to security of supply related to the management
of electricity crisis situations.
See e.g. Article 9 of Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline
on capacity allocation and congestion management, OJ L 197, 25.7.2015, p. 24–72.

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decision-making on cross-border issues. National regulators, deciding within ACER on those
issues through majority voting, would remain fully involved in the process.
It also appears appropriate to better define the role of ENTSO-E in order to strengthen its
coordination role and render its decision-making process more transparent.
Text clarifications
Finally, the recast of the Electricity Regulation, the Agency Regulation and the Electricity
Directive will be used to provide some editorial clarifications on some of the existing rules
and to restructure some of them in order to make the-highly technical-rules of the three acts
more comprehensible, without touching upon the substance of the provisions.
•

Consistency with other provisions and proposals in the policy area

The market design initiative is strongly linked to other energy and climate legislative
proposals brought forward in parallel. These notably include initiatives to improve Europe's
energy efficiency, a renewable energy package, and the overarching initiative addressing
governance and reporting mechanisms for the Energy Union. All those initiatives aim at
implementing the necessary measures to achieve the objective of a competitive, secure and
sustainable Energy Union. The intention of packaging the different initiatives, consisting of
multiple legislative and non-legislative levers, is to ensure utmost coherence of the different
but closely interlinked policy proposals.
Therefore, although the current proposal is centred on updating market rules so as to make a
clean energy transition economically advantageous, these provisions work in synergy with the
wider EU climate and energy policy framework. These links are further explained in the
Commission's Impact Assessment12.
The proposal is closely linked to the proposal for a revised Renewable Energy Directive,
providing for a framework to achieve the 2030 renewable target, including also principles in
relation to support schemes for renewable energy sources, which would make them more
market-oriented, cost-effective and more regionalised in scope in cases where Member States
are opting to keep support schemes. Those measures aimed at the integration of renewable
energies in the market, such as provisions on dispatching, market-related barriers to selfconsumption and other market access rules – previously contained in the Renewable Energy
Directive –, have now been integrated in the Electricity Regulation and the Electricity
Directive.
The proposal for a Regulation on the Governance of the Energy Union will contribute to
ensuring policy coherence by streamlining planning and reporting obligations by Member
States so as to better support the convergence towards energy and climate goals set at EU
level. As a new planning, reporting and monitoring instrument, it shall provide a temperature
gauge on the state of progress from a Member State on the implementation of European-wide
market requirements introduced by the present acts.
The proposal for a Regulation on risk preparedness in the electricity sector complements the
current proposal, focusing in particularly on government actions to manage electricity crisis
situations and to prevent short term risks for the electricity system.

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[OP: Please insert Link to Impact Assessment]

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The current proposal is closely aligned with the Commission's competition policy in the field
of energy. It incorporates notably the results of the Commission's Sector Inquiry on Capacity
Mechanisms, ensuring full coherence with the Commission's energy state aid enforcement
policy.
•

Consistency with other Union policies

The proposal seeks to implement key objectives of the Energy Union, as defined in the
Framework Strategy for a resilient Energy Union with a forward-looking climate change
policy. As already stated above, the details of the package are also in line with the recent
global-level engagement by the Union to achieve ambitious climate targets under the
agreement found in Paris at the 21st UN Conference of the Parties (COP21). The current
proposal is mutually reinforcing and complementary to the proposal for the revision of the EU
Emissions Trading System made in July 2015.
Further, to the extent that a revision of the electricity market design is aimed at making
Europe's energy market more competitive and accessible for new energy technologies, the
proposal also contributes to fulfilling the Union's objectives to generate jobs and growth. By
offering market opportunities for new technologies, the proposal will spur the uptake of a
number of services and products that would give European businesses a first-mover advantage
as the clean energy transition advances globally.
2.

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

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Legal basis

The legal basis for the proposed measures is Article 194 of the Treaty on the Functioning of
the European Union (TFEU), which consolidated and clarified the competences of the EU in
the field of energy. According to Article 194 TFEU, the main aims of the EU’s energy policy
are to: ensure the functioning of the energy market; ensure security of energy supply in the
Union; promote energy efficiency and energy saving and the development of new and
renewable forms of energy; and promote the interconnection of energy networks.
The present initiative also builds upon a comprehensive set of legislative acts that have been
adopted and updated during the past two decades. With the objective of creating an internal
energy market, the EU has adopted three consecutive legislative packages between 1996 and
2009, with the overarching aim of integrating markets and liberalising national electricity and
gas markets. These provisions cover a wide range of aspects, from market access to
transparency, consumer rights and the independence of regulatory authorities, to name a few.
With an eye on existing legislation and the general trajectory of growing energy market
integration, the current initiative should thus also be seen as part of an ongoing effort to
ensure the integration and effective operation of Europe’s energy markets.
Recent calls from the European Council13 and the European Parliament for action at EU level
to complete the European energy market have also created further ground for action.

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In February 2011, the European Council set the objective of completing the internal energy market by
2014 and developing interconnection to end the grid isolation of certain Member States by 2015. In
June 2016, the European Council also called for a Single Market Strategy in the field of energy, with
action plans to be proposed by the Commission and to be implemented by 2018.

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•

Subsidiarity

The proposed changes to the provisions of the Regulation on electricity markets, the Directive
on common rules for the internal electricity market and the Regulation establishing a
European Agency for the Cooperation of Energy Regulators are necessary to achieve the
purpose of an integrated EU electricity market and cannot be reached at national level in an
equally efficient manner. As set out in detail in the evaluation of the recast legislative acts14,
evidence has shown that isolated national approaches have led to delays in the implementation
of the internal energy market, leading to sub-optimal and incompatible regulatory measures,
unnecessary duplication of interventions and delays in correcting market inefficiencies. The
creation of an internal energy market that delivers competitive and sustainable energy for all
cannot be achieved on the basis of fragmented national rules where they concern the trading
of energy, the operation of the shared grid and a certain amount of product standardisation.
The increasing interconnection of EU electricity markets requires closer coordination between
national actors. National policy interventions in the electricity sector have a direct impact on
neighbouring Member States due to energy interdependence and grid interconnections.
Ensuring the stability of the grid and its efficient operation is increasingly difficult to do at
national level alone, as rising cross-border trade, the uptake of decentralised generation and
enhanced consumer participation, all increase the potential for spill-over effects. No state can
effectively act alone and the consequences of unilateral action have become more pronounced
over time. This general principle applies across the range of measures introduced by the
current proposal, whether they concern energy trading, the operation of the grid and
consumers’ effective participation.
Since common regional issues which require a coordinated decision often have a significant
economic impact on individual Member States, past experience has shown that voluntary
cooperation, while useful in many areas of cooperation between Member States, has often not
been able to overcome technically complex conflicts with significant distributive effects
between Member States15. Existing voluntary initiatives, such as the Pentalateral Energy
Forum, are also limited in their geography, as they only cover parts of the EU electricity
market and do not necessarily combine all countries which are physically most closely
interconnected.
To illustrate on a concrete example, uncoordinated national policies concerning the principles
for distribution tariffs may distort the internal market to an extent that distributed generation
or energy storage services will be under very different incentives to participate in the market.
With the uptake of new technologies and energy services increasingly traded across borders,
EU action has a significant value in ensuring a level playing field and more efficient market
outcomes for all parties involved.
The coordinating function of ACER has been adapted to new developments in energy
markets, such as the increased need for coordination in times of higher energy flows across
borders and the rise of energy production from volatile RES-E. The independent national
regulatory authorities (NRAs) play a major role in providing regulatory oversight over their
national energy sector. A system which becomes more and more interdependent between the
Member States both when it comes to market transactions and system operation requires,
however, regulatory oversight beyond national borders. ACER is the body established to
provide such regulatory oversight as far as situations are concerned which cover more than
14
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[OP please add link to Impact assessment – evaluation part].
See e.g. the discussion on congestion management in central Europe, where divergent national interests
led to significant delays on the way to more market integration.

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two Member States. The main role of ACER as a coordinator of the action of national
regulators has been preserved; limited additional competences have been assigned to ACER
in those areas where fragmented national decision-making on issues with cross-border
relevance would lead to problems or inconsistencies for the internal market. For example, the
creation of regional operational centres (ROCs) in the [recast of Regulation 714/2009 as
proposed by COM(2016)861/2] calls for supra-national monitoring which needs to be
performed by ACER, as the ROCs cover several Member States. Similarly, the introduction
of an EU-wide coordinated adequacy assessment in the [recast of Regulation 714/2009 as
proposed by COM(2016)861/2] calls for a regulatory approval of its methodology and
calculations that may only be attributed to ACER as the adequacy assessment is to be
performed across Member States.
While the assignment of new tasks to ACER will require a reinforcement of its staff, the
coordinating role of ACER will lead to a lower burden for national authorities, thus freeing up
administrative resources at national level. The proposed approach will streamline regulatory
procedures (e.g. by introducing direct approval within ACER instead of 28 separate
approvals). The coordinated development of methodologies (e.g. concerning adequacy
assessment) will reduce the workload for national authorities and avoid extra work resulting
from potential problems through non-aligned national regulatory action.
•

Proportionality

The policy choices covered by the Electricity Regulation, the Electricity Directive and the
Agency Regulation seek to adapt the electricity market design to the increasing share of
decentralized generation and to ongoing technological developments.
The proposed reforms are strictly oriented on what is indispensable to achieve the necessary
progress for the internal market, while leaving utmost competencies and responsibilities for
Member States, national regulators and national actors.
Options considering a more far-reaching harmonisation, e.g. by proposing a single
independent European energy regulator, a single integrated European transmission system
operator or more straightforward prohibitions of state interventions without exemption
possibilities have been consistently dismissed in the Impact Assessment. Instead the proposals
aim at well-balanced solutions which only restrict the national scope for regulatory action
where coordinated action clearly brings more benefits for the consumer.
The policy options adopted are aimed at creating a level playing field amongst all generation
technologies and removing market distortions so that, amongst other things, renewable energy
sources may compete on an equal footing in the energy market. In addition, all market
participants would bear a financial responsibility for keeping the grid in balance. Barriers to
services that provide flexibility to the grid, such as demand-response services, will be
removed. Further, the measures seek to create a more liquid short-term market, so that price
fluctuations can properly reflect scarcity and offer adequate incentives for a flexible grid.
At retail market level, Member States will also be encouraged to progressively phase-out
blanket price regulation, starting with prices below cost. Vulnerable consumers can be
protected by a transitional price regulation. To further increase competition, the use of
contract termination fees will be restricted, so as to encourage switching. Equally, high-level
principles shall ensure that energy bills are clear and easy to understand, and nondiscriminatory access to consumer data will be granted, all whilst keeping in place general
privacy provisions.
In line with the evolution of cross-border trade in electricity and the gradual integration of the
market, the institutional framework will be adapted in line with the need for additional

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regulatory cooperation and new tasks. ACER is to be given additional tasks, especially in the
regional operation of the energy system, all whilst keeping the national regulators' centre role
in energy regulation.
All of the options have been extensively checked to meet the requirements of proportionality,
in the Impact Assessment accompanying the proposal. It should be noted here that the
proposed policies present a compromise between bottom-up initiatives and top-down steering
of the market. In keeping with proportionality, the measures do not in any way substitute the
role of national governments, NRAs and TSOs in carrying out a variety of critical functions.
If anything, national regulators are encouraged to come together more effectively in a regional
setting, both formally and informally, to address issues arising from the management of the
electricity system at a scale that is commensurate with the scale of the problem.
Far from endorsing a "full harmonisation" approach, the measures seek to create a level
playing field for all market players, particularly where market opportunities extend beyond
national borders. Ultimately, a certain standardisation of rules and products is essential to the
effective trading of electricity across borders; whilst decisions concerning the operation of the
grid would lead to sub-optimal market outcomes if left to single Member States and regulators
acting in isolation. Direct experience in the formulation and adoption of common network and
trading rules (so called “Network Codes” and "Guidelines") since the Third Energy Package
of 2009 has shown a clear added value in having regulators and national authorities coming
around the table to agree common rules and methodologies, both on high level and technical
principles.
There is an increasing competitiveness gap between retail and wholesale markets, with the
former still lagging behind in terms of service offer and tangible benefits to consumers. By
monitoring energy poverty, transparency and clarity of consumer information and access to
data, the proposed measures will not unduly limit national prerogatives.
•

Choice of legal instrument

The proposal will amend the key legal acts that were part of the Third Energy Package. These
include the Electricity Regulation (No 714/2009) and the Electricity Directive (No
2009/72/EC), alongside the Regulation establishing ACER (No 713/2009). The choice of a
recast of said legal acts will enhance legal clarity. Recourse to an amending act may have
been inadequate to address a wide set of new provisions. The choice of the instrument thus
calls for a revision of rules already adopted and implemented, as a natural evolution of current
legislation.
3.

OF
EX-POST
EVALUATIONS,
RESULTS
CONSULTATIONS AND IMPACT ASSESSMENTS

STAKEHOLDER

•

Ex-post evaluations/fit-for-purpose checks of existing legislation

The Commission services have evaluated the performance of the current legislative
framework (Third Energy Package) against five set criteria: relevance, effectiveness,
efficiency, coherence and EU added value. A stand-alone evaluation has been carried out
alongside the Impact Assessment, and the results of the evaluation have been reflected in the
problem identification of the impact assessment.
The evaluation found that, overall, the Third Energy Package's aim to increase competition
and remove obstacles to cross-border competition in electricity markets has been met. Active
enforcement of the legislation has led to positive results for electricity markets and
consumers, and markets are in general less concentrated and more integrated than in 2009. As

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regards retail markets, the set of new consumer rights introduced by the Third Energy
Package have clearly improved the position of the consumer in energy markets.
However, the success of the rules of the Third Energy Package in developing the internal
electricity market remains limited in a number of fields, both at the wholesale and the retail
level. In general, the evaluation showed that large gains can still be made by an improvement
of the market design framework, as shown by untapped general welfare gains and ultimate
benefits to consumers. At the level of wholesale markets, barriers to cross-border trade persist
and interconnector capacities are rarely fully exploited. These originate, amongst other things,
from insufficient cooperation between national grid operators and regulators on the shared use
of interconnectors. The national perspective of the parties involved still prevents effective
cross-border solutions in many cases and ultimately limits otherwise beneficial cross-border
flows. The picture is not the same across all markets and timeframes, with varying degrees of
integration across day-ahead, intra-day and balancing markets.
With regards to retail markets, competition performance could be significantly improved.
Electricity prices still vary significantly from Member State to Member State for non-market
reasons, and prices have risen steadily for households as a result of significant increases in
non-contestable charges in recent years; these being network charges, taxes and levies. With
regard to consumer protection, rising energy poverty, as well as lack of clarity on the most
appropriate means of tackling consumer vulnerability and energy poverty, have been a drag on
the further deepening of the internal energy market. Switching-related fees such as contract
termination charges continue to constitute a significant financial barrier to consumer
engagement. In addition, the high number of complaints related to billing16 suggests that there
is still scope to improve the comparability and clarity of billing information.
In addition to shortcomings in meeting the original objectives sought by the Third Energy
Package, a new set of challenges has emerged which had not been envisaged at the time of
preparing the Third Energy Package. These include, as mentioned above, the very strong
increase of renewable sources in electricity generation, the increase of state interventions in
the electricity markets for security of supply purposes, and changes taking place on the
technological side. These have all led to significant changes in the way markets operate,
especially during the past five years, to a dampening of the positive effect of the reforms for
consumers and also an untapped potential from modernisation. This has opened a gap in the
existing legislation regarding how to deal with these developments.
In line with the outcome of the evaluation and the related Impact Assessment, the current
proposal seeks to close the gap and present an enabling framework to reflect technological
developments in the sector as our energy systems' transition to new production and
consumption models.
•

Stakeholder consultations

In preparation for the present initiative, the Commission has conducted several public
consultations. These were open to EU citizens and Member States' authorities, energy market
participants and their associations, as well as to any other relevant stakeholders, including
SMEs and energy consumers.
Three consultations and their respective results shall be highlighted in particular:
16

EN

European Commission (2016), ' Second Consumer Market Study on the functioning of retail electricity
markets for consumers in the EU ',

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1) Resource adequacy related issues were the subject of a public consultation17 conducted
from 15 November 2012 to 7 February 2013, as per the "Consultation on generation
adequacy, capacity mechanisms, and the internal market in electricity". This was aimed at
obtaining stakeholders' views on ensuring resource adequacy and security of electricity supply
in the internal market.
The consultation received 148 individual responses from public bodies, industry (both energy
producing and consuming) and academia. A detailed chart of responses to the consultation is
available online18, as well as all individual contributions and a summary of results from the
consultation19.
2) A public consultation dedicated to electricity retail markets and end-consumers20 was
conducted from 22 January 2014 to 17 April 2014. The Commission received 237 responses
to the consultation, with about 20% of submissions coming from energy suppliers, 14% from
DSOs, 7% from consumer organisations, and 4% from NRAs. A significant number of
individual citizens also participated in the consultation. A full summary of responses is
available on the Commission's website21.
3) A wide public consultation22 on a new energy market design was conducted from 15 July
2015 to 9 October 2015.
The Commission received 320 replies to this consultation. About 50% of submissions have
come from national or EU-wide industry associations. 26% of answers originated from
companies active in the energy sector (suppliers, intermediaries, consumers) and 9% from
network operators. 17 national governments and several NRAs also fed back on the
consultation. A significant number of individual citizens and academic institutes participated
to the consultation as well. A detailed description of stakeholders' opinions under each of the
specific policy options is available in the Impact Assessment accompanying this legislative
initiative.
•

Collection and use of expertise

The preparation of the proposed regulation and the Impact Assessment is based on a large
body of material, all of which is referenced in the footnotes in the Impact Assessment. These
include close to 30 studies and modelling tools, conducted mostly by independent external
parties, aimed at assessing specific options under the current proposal. These are listed in full

17

European Commission (2012) 'Consultation Paper on generation adequacy, capacity mechanisms and
the internal market in electricity'
https://ec.europa.eu/energy/sites/ener/files/documents/20130207_generation_adequacy_consultation_do
cument.pdf

18

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20

https://ec.europa.eu/energy/sites/ener/files/documents/Charts_Public%20Consultation%20Reta
il%20Energy%20Market.pdf
European Commission (2012) Consultation on generation adequacy, capacity mechanisms, and the
internal market in electricity
https://ec.europa.eu/energy/en/consultations/consultation-generation-adequacy-capacity-mechanismsand-internal-market-electricity
European Commission (2014) Consultation on the retail energy market
https://ec.europa.eu/energy/en/consultations/consultation-retail-energy-market

21

22

EN

https://ec.europa.eu/energy/sites/ener/files/documents/Charts_Public%20Consultation%20Reta
il%20Energy%20Market.pdf
European Commission (2015) Consultation on a new Energy Market Design COM(2015) 340 final
https://ec.europa.eu/energy/en/consultations/public-consultation-new-energy-market-design

14

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under Annex V of the Impact Assessment. The studies cover a range of methodologies, with a
focus on quantitative estimates of economic and social cost benefit analyses.
In addition, the Commission has also been conducting a sector inquiry into national capacity
mechanisms whose interim outcomes were promptly fed into the preparatory phase of the
current proposal23. The results from these studies have complemented the extensive feedback
obtained by stakeholders as described above and, overall, have given the Commission an
extensive evidence basis on which to ground the current proposals.
•

Impact assessment

All proposed measures are supported by the Impact Assessment. The Regulatory Scrutiny
Board issued a positive opinion on 7 November 2016. The manner in which the Regulatory
Scrutiny Board's views were taken into account is set out in Annex I of the Impact
Assessment.
The Impact Assessment looked at a number of policy options for each problem set identified.
These problem sets and the alternative routes for intervention are listed below:
Adapting Market Design to the rise in renewables and technological development:
The Impact Assessment endorsed an enhancement of current market rules in order to create a
level-playing field among all generation technologies and resources by removing existing
market distortions. It addresses rules that discriminate between resources and which limit or
favour the access of certain technologies to the electricity grid. In addition, all market
participants would bear financial responsibility for imbalances caused on the grid and all
resources would be remunerated in the market on equal terms. Barriers to demand-response
would be removed. The chosen option would also strengthen short-term markets by bringing
them closer to real-time in order to provide maximum opportunity to meet flexibility needs
and by rendering balancing markets more efficient. The chosen option includes measures that
would help pulling all flexible distributed resources concerning generation, demand and
storage, into the market via proper incentives and a market framework better adapted to them
and measures to better incentivise DSOs.
A non-regulatory approach was dismissed as providing little scope for improving the market
and ensuring a level-playing field among resources. Indeed, the current EU regulatory
framework in the relevant areas is limited or even non-existent for other areas. Furthermore,
voluntary cooperation was deemed not to provide the appropriate level of harmonisation or
certainty to the market. Equally, the option of full harmonisation of market rules was also
discarded as the changes might breach proportionality principles and would generally be
unnecessary given the state of European energy markets at present.
Addressing future generation investments and uncoordinated capacity mechanisms
Various policy options going beyond the baseline scenario were assessed, with each option
proposing varying degrees of alignment and coordination among Member States at EU level,
and a different extent to which market participants would rely on energy market payments.
A so-called 'energy-only market' option would see European markets being sufficiently
improved and interconnected that it provides the necessary price signals to spur investments
in new resources and in the right places. In such a scenario, no capacity mechanisms would be
required any longer.

23

EN

Interim Report of the Sector Inquiry on capacity Mechanisms, C(2016) 2107 final.

15

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The chosen option builds on this energy-only market scenario but does not discard the
possibility for Member States of using capacity mechanisms, provided however these are
based on a shared resource adequacy assessment methodology carried out in full transparency
through ENTSO-E and ACER and comply with common design features for better
compatibility between national capacity mechanisms and harmonised cross-border
cooperation. This option builds on the European Commission Guidelines on state aid for
environmental protection and energy 2014-2020, alongside the Sector Inquiry on capacity
mechanisms.
A non-regulatory approach was rejected as existing provisions under EU legislation are not
sufficiently clear and robust to cope with the challenges facing the European electricity
system. In addition, voluntary cooperation may not provide for appropriate levels of
harmonisation across all Member States or certainty to the market. Legislation is needed in
this area to address the issues in a consistent way. The option in which, based on regional or
EU-wide generation adequacy assessments, entire regions or ultimately all EU Member States
would be required to roll out capacity mechanisms on a mandatory basis was discarded as
being disproportionate.
Under-performance of Retail Markets: slow deployment and low levels of services
The endorsed option includes a gradual phasing-out by Member States of blanket price
regulation by a deadline set in EU legislation, starting with prices below costs. This option
allows for transitional price regulation for vulnerable consumers. To increase consumer
engagement, the use of contract termination fees is restricted. Consumer confidence in
comparison websites is to be fostered through national authorities implementing a
certification tool. In addition, high-level principles will ensure that energy bills are clear and
easy to understand, through minimum content requirements. Member States are also required
to monitor the number of households on energy poverty. Finally, to allow the development of
new services by new entrants and energy service companies, non-discriminatory access to
consumer data is ensured.
Other options considered, but discarded, included a full harmonization of consumer
legislation alongside extensive consumer safeguards; exemptions to price regulation defined
at EU level on the basis of either a consumption threshold or a price threshold; a standard data
handling model to be enforced and the responsibility assigned to a neutral market actor such
as a TSO; all switching fees including contract termination fees would be banned and the
content of energy bills partially harmonized; and finally, an EU framework to monitor energy
poverty based on an energy efficiency survey done by Member States of the housing stock as
well as preventive measures to avoid disconnections are put in place. These options were all
discarded on grounds of subsidiarity and proportionality principles. Maintaining the status
quo was not considered a viable option either by almost all of the stakeholders consulted.
Improvement of the institutional framework and role of the Agency
The Third Package institutional framework aims at fostering the cooperation of NRAs as well
as between TSOs. Since their establishment, ACER and the ENTSOs have played a key role
in the progress towards a functioning internal energy market. However, the recent
developments in the European energy markets that are considered in the current Impact
Assessment and the subsequent proposals of the Market Design Initiative require an
adaptation of the institutional framwork. In addition, the implementation of the Third Package
has also highlighted areas with room for improvement concerning the framework applicable
to ACER and the ENTSOs. In terms of options considered for reforming the institutional
framework, a business as usual scenario was discarded for it would open up regulatory and

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market surveillance gaps, in line with evolving market provisions introduced elsewhere in this
proposal as well as with the ongoing progress at EU level of secondary legislation.
A non-regulatory approach of "stronger enforcement" and voluntary collaboration without
any new, additional measures to adapt the institutional framework was considered. Improved
enforcement of existing legislation entails the continued implementation of the Third Package
and full implementation of network codes and guidelines – as described under option
"business as usual" – combined with stronger enforcement. However, stronger enforcement
alone would not provide any improvement to the current institutional framework.
A legislative option transforming ACER to something closer to a pan-European regulator was
also considered but ultimately discarded. In order for the Agency to perform such a role, it
would require a significant reinforcement of ACER's budget and staff as this would make a
strong concentration of experts in the Agency necessary. It appears also appropriate to
maintain the involvement of national regulators in the Agency's decision-making process and
not to substitute systematically majority decisions by national regulators through decisions by
the director.
Legislative options to improve ACER on the basis of the existing framework were thus
considered. The option endorsed by the Impact Assessment enables the adaptation of the EU
institutional framework to the new realities of the electricity system. It also addresses the
resulting need for additional regional cooperation and the existing and anticipated regulatory
gaps in the energy market, thereby providing for flexibility by a combination of bottom-up
and top-down approaches.
In addition, in order to address the existing regulatory gap as regards NRAs' regulatory
functions at regional level, the policy initiatives under this option would set out a flexible
regional regulatory framework to enhance the regional coordination and decision-making of
NRAs. This option would introduce a system of coordinated regional decisions and oversight
of certain topics by NRAs of the region (e.g. ROCs and others deriving from the proposed
market design initiatives) and would give ACER a role for safeguarding the EU-interest.
Fundamental rights
The present proposal may have an impact on a number of fundamental rights established by
the Charter on Fundamental Rights of the EU, in particular: the respect for private and family
life (Article 7), the right to protection of personal data (Article 8), the prohibition of
discrimination (Article 21), the right to social assistance (Article 34), access to services of
general economic interest (Article 36), the integration of a high level of environmental
protection (Article 37) and the right to an effective remedy (Article 47).
This is addressed in particular through a number of provisions concerning consumer
protection, energy poverty, protection of vulnerable customers, access to services of general
economic interest, data protection and privacy.
A summary of the Impact Assessment can be found on the Commission website24, alongside
the positive opinion of the Regulatory Scrutiny Board.
•

Regulatory fitness and simplification

The proposal may increase administrative requirements, albeit to a limited extent. For
example, by bringing in a level-playing field for all technologies to participate fully in energy

24

EN

[OP: Please insert Link to Impact Assessment]

17

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markets, these technologies would have to abide with a number of market compliance
requirements that may generate some administrative workload.
The measures envisaged to improve the liquidity and integration of energy markets may also
generate some short-term impact to businesses as these would have to adapt for new energy
trading arrangements. These are however considered minimal compared to the baseline
scenario of no action, as the economic gains of the reform would very largely surpass any
short or long-term administrative reorganization.
Equally, the gradual phasing out of regulated prices at Member State level will require NRAs
to step up efforts in monitoring markets, ensuring efficient competition and guaranteeing
consumer protection. These impacts may be offset by increased consumer engagement, which
would naturally act to foster competition in the market.
The range of activities to be performed under the updated institutional setting shall also
generate a new set of requirements for engagement at administrative level on the part of
national regulators and transmission operators. These include participation within ACER and
through the decision-making processes leading to the agreement of methodologies and
practices for the smooth trading of energy at the border.
A detailed administrative and economic impact on business and public authorities for each of
the policy options considered can be found in chapter 6 of the Impact Assessment.
4.

BUDGETARY IMPLICATIONS

The budgetary impact associated to the proposal under this package concerns the resources of
the Agency for the Cooperation of Energy Regulators (ACER) which are described in the
Legislative Financial Statement accompanying the Commission proposal for a recast of the
Regulation establishing ACER. Essentially, the new tasks to be carried out by ACER, notably
as regards the assessment of system adequacy and the establishment of Regional Operation
Centres, require a phasing in of up to 18 additional FTE in the Agency in 2020, as well as
corresponding financial resources.
5.

OTHER ELEMENTS

•

Implementation plans and monitoring, evaluation and reporting arrangements

The Commission will monitor the transposition and compliance of the Member States and
other actors with the measures that shall be ultimately adopted, and shall take enforcement
measures if and when required. In addition, as it has already done in the context of the
implementation of the Third Energy Package, the Commission will provide guidance
documents providing assistance on the implementation of the adopted measures.
Across monitoring and implementation purposes, the Commission will notably be supported
by ACER. The annual reporting by the Agency and parallel evaluations carried out by the
Commission, together with the reporting from the Electricity Coordination Group are all part
of the provisions in the current initiative. The Agency will be invited to further review its
monitoring indicators to ensure their continuing relevance for monitoring progress towards
the objectives underlying the present proposals, so that these may be adequately reflected,
amongst other things, through ACER's annual market monitoring report document.
Parallel to the proposed initiatives, the Commission will bring forward an initiative
concerning the governance of the Energy Union that will streamline the planning, reporting
and monitoring requirements. Based on the initiative of the governance of the Energy Union,
the current monitoring and reporting requirements of the Commission and Member States in

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the Third Energy Package will be integrated in horizontal progress and monitoring reports.
More information on the streamlining of the monitoring and reporting requirements can be
found in the impact assessment for the governance of the European Union.
A more extensive treatment of monitoring mechanisms and benchmark indicators can be
found in Chapter 8 of the Impact Assessment.
6.

EXPLANATION OF THE SPECIFIC PROVISIONS OF THE PROPOSALS

•

Proposal for a Directive of the European Parliament and of the Council
on common rules for the internal market in electricity (Recast)

Chapter I of the proposed Directive provides some clarifications to the scope and subject
matter of the Directive, emphasising the focus on consumers and the importance of the
internal market and its main principles. It provides also for an update of the main definitions
used in the Directive.
Chapter II of the proposed Directive lays down the general principle that Member States have
to ensure that the EU electricity market is competitive, consumer-centred, flexible and nondiscriminatory. It emphasises that national measures should not unduly hamper cross-border
flows, consumer participation or investments. It further enshrines the principle that supply
prices shall be market-based, subject to duly justified exceptions. The chapter also clarifies
certain principles relating to the functioning of the EU electricity markets, such as the right to
choose a supplier. It also provides for updated rules on possible public service obligations
which may be imposed by Member States on energy undertakings under certain
circumstances.
Chapter III of the proposed Directive reinforces pre-existing consumer rights and introduces
new rights that aim at putting consumers at the heart of the energy markets by ensuring that
they are empowered and better protected. It sets rules on clearer billing information and on
certified comparison tools. It contains provisions ensuring that consumers are able to freely
choose and change suppliers or aggregators, are entitled to a dynamic price contract and are
able to engage in demand response, self-generation and self-consumption of electricity. It
entitles every consumer to request a smart meter equipped with a minimum set of
functionalities. It also improves pre-existing rules on the consumers' possibility to share their
data with suppliers and service providers by clarifying the role of the parties responsible for
data management and by setting a common European data format to be developed by the
Commission in an implementing act. It also aims to ensure that energy poverty is addressed
by Member States. It further requires Member States to define frameworks for independent
aggregators and for demand response along principles that enable their full participation in the
market. It defines a framework for local energy communities which may engage in local
energy generation, distribution, aggregation, storage, supply or energy efficiency services. It
further provides some clarifications to pre-existing provisions on smart meters, single points
of contacts, and rights to out-of-court settlement, universal service and vulnerable consumers.
Chapter IV of the proposed Directive provides for some clarifications concerning the tasks of
DSOs, notably relating to the activities of DSOs concerning the procurement of network
services to ensure flexibility, the integration of electrical vehicles and data management. It
also clarifies the role of DSOs with respect to storage and recharging points for electric
vehicles.
Chapter V of the proposed Directive summarises the general rules applicable to TSOs, largely
based on existing text, providing only some clarifications concerning ancillary services and
the new Regional Operational Centres.

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Chapter VI of the proposed Directive, setting out the rules on unbundling as developed in the
Third Energy Package, remains unchanged as concerns the main substantive rules on
unbundling, notably with respect to the three regimes for TSOs (ownership unbundling,
independent system operator and independent transmission operator), as well as with respect
to the provisions on TSO designation and certification. It only provides a clarification on the
possibility for TSOs to own storage or to provide ancillary services.
Chapter VII of the proposed Directive contains the rules on establishment, scope of powers
and duties as well as rules of functioning of the independent national energy regulators. The
proposal notably emphasises the obligation of regulators to cooperate with neighbouring
regulators and ACER in case issues of cross-border relevance are concerned and updates the
list of tasks of regulators, inter alia with respect to the supervision of the newly created
Regional Operational Centres.
Chapter VIII of the proposed Directive changes some general provisions, inter alia on
derogations to the Directive, exercise of delegated powers by the Commission and the
Committee established under comitology rules pursuant to Regulation (EU) No 182/2011
The new Annexes to the proposed Directive set out more requirements on comparison tools,
billing and billing information and amends pre-existing requirements for smart meters and
their roll-out.
•

Proposal for a Regulation of the European Parliament and of the Council on the
internal electricity market (Recast)

Chapter I of the proposed Regulation sets out the scope and subject matter and the definitions
of terms used in it. It emphasises the importance of undistorted market signals to provide for
increased flexibility, decarbonisation and innovation and updates and complements the main
definitions used in the Regulation.
Chapter II of the proposed Regulation introduces a new Article which sets out the key
principles to be respected by national energy legislation in order to allow for a functioning
internal electricity market. It also sets out the main legal principles for electricity trading rules
within different trading timeframes (balancing, intraday, day-ahead and forward markets),
including principles for price formation. It clarifies the principle of balancing responsibility
and provides for a framework for more market compatible rules for the dispatch and
curtailment of generation and demand response, including conditions for any exceptions
thereof.
Chapter III of the proposed Regulation describes the process to define bidding zones in a
coordinated manner, in line with the review process created in Regulation 1222/2015
establishing a Guideline on Capacity Calculation and Congestion Management25. In order to
address the persisting problem of significant national limitations to cross-border electricity
flows, the conditions for such exceptional limitations are clarified, notably by rules that shall
ensure that electricity imports and exports are not restricted by national actors for economic
reasons. This Chapter further contains amendments to pre-existing principles for transmission
and distribution network tariffs and sets a procedure for fostering the progressive convergence

25

EN

Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation
and congestion management OJ L 197, 25.7.2015, p. 24–72.

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of transmission and distribution tariff methodologies. It also sets out amended rules for the
usage of congestion rents.
Chapter IV of the proposed Regulation sets out new general principles for addressing resource
adequacy concerns by Member States in a coordinated manner. It sets out principles and a
procedure for the development of a European resource adequacy assessment to better
determine the need for capacity mechanisms and, if appropriate, the setting of a reliability
standard by Member States. It clarifies how and under which conditions capacity mechanisms
can be introduced in a market-compatible manner. It also clarifies market compatible design
principles for capacity mechanisms, including rules for the participation of capacity located in
another Member State and for interconnection usage. It sets out how Regional Operational
Centres, national TSOs, the ENTSO for electricity and national regulators via ACER will be
involved in the development of technical parameters for the participation of capacities located
in another Member State as well as the operational rules for their participation.
Chapter V of the proposed Regulation sets out the tasks and duties of the ENTSO for
Electricity and the monitoring tasks of ACER in this regard whilst clarifying its duty to act
independently and for the European good. It defines the mission of Regional Operational
Centres and provides for criteria and a procedure for defining system operation regions
covered by each Regional Operational Centre and the coordination functions that these
centres perform. It also sets out working and organisational arrangements, consultation
requirements, requirements and procedures for the adoption of decisions and
recommendations and their revision, the composition and responsibilities of the management
board and liability arrangements of Regional Operational Centres. The chapter also
incorporates rules on the connection if cogeneration units, previously included in Directive
2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy
efficiency. The rules on a ten-year network development plan, inter-transmission system
operator compensation, information exchange and certification remain largely unchanged.
Chapter VI of the proposed Regulation sets up a European entity for DSOs, defines a
procedure for its establishment and its tasks including with regard to the consultation of
stakeholders. It also provides detailed rules on the cooperation between DSOs and TSOs with
regard to the planning and operation of their networks.
Chapter VII of the proposed Regulation sets out pre-existing powers and rules for the
Commission to adopt delegated acts in the form of network codes or guidelines. It provides
for clarifications as to the legal nature and the adoption of network codes and guidelines and
enlarges their possible content to areas such as distribution tariff structures; rules for the
provision of non-frequency ancillary services; demand response, energy storage and demand
curtailment rules; cyber security rules; rules regarding to Regional Operational Centres; and,
the curtailment of generation and redispatch of generation and demand. It simplifies and
streamlines the procedure for the elaboration of electricity network codes and gives national
regulators the possibility to decide within ACER on issues concerning the implementation of
network codes and guidelines. It also includes the European entity for DSOs and other
stakeholders more closely in the procedure of the development of proposals for electricity
network codes.
Chapter VIII of the proposed Regulation sets out the final provisions of the proposed
Regulation. It includes the pre-existing rules for the exemption of new direct current
interconnectors from certain requirement of the Electricity Directive and Regulation whilst
clarifying the procedure for subsequent amendments made by NRAs thereof.
The Annex to the proposed Regulation defines in more detail the functions attributed to the
Regional Operational Centers created by the Regulation.

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•

Proposal for a Regulation of the European Parliament and of the Council
establishing a European Union Agency for the Cooperation of Energy Regulators
(recast)

In general, the rules concerning ACER are proposed to be adapted to the "Common
Approach" EU on decentralised agencies agreed between the European Parliament, the
Council of the EU and the European Commission (Common Approach)26. Keeping limited
deviations from the "Common Approach" is, however, warranted for ACER at the present
stage.
Chapter I of the proposed Regulation describes the role, objectives and tasks of ACER and the
type of acts that it can adopt, and provides for rules on consultations and monitoring. The list
of tasks has been updated to include ACER's duties in the field of wholesale market
supervision and cross-border infrastructure which were attributed to ACER subsequent to the
adoption of the Regulation.
With respect to the adoption of electricity network codes, ACER is given more responsibility
in elaborating and submitting the final proposal for a network code to the Commission, while
maintaining ENTSO-E's role as a technical expert. The proposal also includes a formal place
for DSOs to be represented at EU level, notably in the development of network code
proposals, in line with an increase in their responsibilities. The Agency is given the
competence to decide on terms, methodologies and algorithms for the implementation of
electricity network codes and guidelines.
For tasks in a regional context concerning only a limited number of national regulators, a
regional decision-making process is introduced. Accordingly, the Director would have to give
his opinion on whether the issue in question is primarily of regional relevance. If the Board of
Regulators agrees that this is the case a regional sub-committee of the Board of Regulators
should prepare the decision in question which would finally be taken or rejected by the Board
of Regulators itself. Otherwise the Board of Regulators would decide without the intervention
of a regional sub-committee.
The Chapter also defines a number of new tasks for ACER concerning the coordination of
certain functions related to the Regional Operational Centres within the Agency, concerning
the supervision of Nominated Electricity Market Operators and related to the approval of
methods and proposal related to generation adequacy and risk preparedness.
Chapter II of the proposed Regulation contains organisational rules relating to the
Administrative Board, the Board of Regulators, the Director, the Board of Appeal and, as a
new provision, on the Agency's working groups. While adapting several individual provisions
to the Common Approach EU on decentralised agencies or to the new Council voting rules,
the main features of the existing governance structure, in particular the Board of Regulators,
are preserved.
This deviation of ACER, from the Common Approach is justified as follows:
The main objectives of European Electricity Policy, security of supply, affordability of
electricity and decarbonisation could be reached most cost effectively by an integrated
European electricity market. Accordingly, the electricity transmission infrastructure is
progressively interconnected, increasing volumes of electricity are traded cross border,
generation capacities are shared at a European scale and the transmission system is operated
26

EN

See joint Statement of the European Parliament, the Council of the EU and the European Commission
on decentralised agencies of 19.7.2012.

22

EN

taking regional, cross-border aspects into account. The present legislative packages further
enhance these trends which are expected to result in efficiencies to the benefit of European
customers.
A precondition for the creation of an internal electricity market is the opening of the sector to
competition. As in other sectors of economy as well, the opening of the electricity market
required new regulations, in particular with regard to the transmission and distribution system,
and regulatory oversight. To this effect, independent regulatory authorities were put in place.
These entities remain with a particular responsibility when it comes to overseeing national
and European rules applicable to the electricity sector.
However, with the increasing cross-border trade and system operation which takes the
regional and European context into account, NRAs were required to increasingly coordinate
their action with NRAs from other Member States. ACER was designed to become the
platform for this interaction and fulfils this duty since its creation in 2011. The body within
the Agency where most opinions, recommendations and decisions of the Agency are
prepared, together with ACER staff, is thus the Board of Regulators comprising senior
representatives of the NRAs and a non-voting representative of the Commission. The first
years of the existence of the Agency have shown that the Board of Regulators managed to
contribute effectively to the fulfilment of the tasks of the Agency.
Since energy markets are still largely regulated at national level, national regulators are actors
with a key role for energy markets. The main role of ACER is not the execution of delegated
regulatory Commission competencies, but the coordination of the regulatory decisions of
independent national regulators. The present legislative proposal still largely preserves this
distribution of roles. The current structure strikes a fine-tuned balance of powers between the
different actors, having regard to the special features of the developing internal energy
market. Changing the balance at this stage might risk jeopardising the implementation of the
policy initiatives in the legislative proposals and thereby would pose obstacles to the further
integration of the energy market which is the main purpose of the present proposal. It
therefore appears as premature to transfer decision-making powers to a Management Board as
provided for in the Common Approach. Instead it seems rather appropriate to keep the current
structure which ensures that the national regulators act without any direct intervention of EU
institutions or Member States in the specific matters. At the same time, the overall work of the
regulators remains subject to the approval of the EU institutions via programming, budgetary
and strategic documents. EU institutions are also involved in administrative matters. As a
consequence, it is not proposed to change the set-up and operation of the existing Board of
Regulators.
Likewise, it is not proposed to adapt the concept of the Administrative Board to the model of
the Common Approach Management Board. The Agency's Administrative Board in its
existing composition proved to be particularly effective and efficient over the last years. Its
operation is assured by representatives of the European Parliament, the Council and the
Commission.
Even though at this stage, the Commission does not find it appropriate to adapt the
governance structure of the Agency fully to the Common Approach, it will continue to
monitor if the described deviations from the Common Approach are still justified, with the
next evaluation scheduled for 2021 which in addition to an assessment of the Agency's
objectives, mandate and tasks will have a particular focus on the governance structure of the
Agency.
Chapter III of the proposed Regulation contains financial provisions. Several individual
provisions are proposed to be adapted to the Common Approach on decentralised agencies.

EN

23

EN

Chapter IV of the proposed Regulation updates several individual provisions in line with the
Common Approach and contains otherwise largely unchanged provisions on staffand liability.

EN

24

EN

2009/72/EC (adapted)
2016/0380 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
concerning ⌦ on ⌫ common rules for the internal market in electricity and repealing
Directive 2003/54/EC
(recast)
(Text with EEA relevance)

2009/72/EC (adapted)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community ⌦ on the Functioning of
the European Union ⌫ , and in particular Article 47(2) and Article 55 and 95 ⌦ 194(2) ⌫
thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee27,
Having regard to the opinion of the Committee of the Regions28,
Acting in accordance with the ordinary legislative procedure,
Whereas:

2009/72/EC (adapted) recital 1
(1)

The internal market in electricity, which has been progressively implemented
throughout the Community ⌦ Union ⌫ since 1999, aims, by organising competitive
electricity markets across country borders, to deliver real choice for all consumers of
the European Union, be they citizens or businesses, new business opportunities,
competitive prices, efficient investment signals, higher standards of service, and to
contribute to security of supply and sustainability.

27

OJ C 211, 19.8.2008, p. 23.
OJ C 172, 5.7.2008, p. 55.

28

EN

25

EN

2009/72/EC (adapted) recital 2
new
(2)

Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003
concerning common rules for the internal market in electricity29
and Directive
2009/72/EC of the European Parliament and of the Council  has have made a
significant contribution towards the creation of such an internal market in electricity.
However, Europe's energy system is in the middle of a profound change. The
common goal to decarbonise the energy system creates new opportunities and
challenges for market participants. At the same time, technological developments
allow for new forms of consumer participation and cross-border cooperation. There is
a need to adapt the Union market rules to a new market reality .

new
(3)

The Energy Union Framework Strategy sets out the vision of an Energy Union with
citizens at its core, where citizens take ownership of the energy transition, benefit from
new technologies to reduce their bills, participate actively in the market, and where
vulnerable consumers are protected.

new
(4)

The Communication from the Commission of 15 July 2015 'Delivering a new deal for
energy consumers30' put forward the Commission's vision for a retail market that better
serves energy consumers, including by better linking wholesale and retail markets.
Taking advantage of new technology, new and innovative energy service companies
should enable all consumers to fully participate in the energy transition, managing
their consumption to deliver energy efficient solutions which save them money and
contribute to overall reduction of energy consumption.

new
(5)

The Communication from the Commission of 15 July 2015 'Launching the public
consultation process on a new energy market design'31 highlighted that the move away
from generation in large central power plants towards de-centralized production from
renewable energy sources and decarbonized markets requires an adaptation of the
current rules of electricity trading and changes to the existing market roles. It
underlined needs to organise electricity markets in a more flexible manner and to fully
integrate all market players – including renewable energy producers, new energy
service providers, energy storage and flexible demand.

29

OJ L 176, 15.7.2003, p. 37–56.
COM (2015) 339 final of 15.7.2015.
COM (2015) 340 final of 15.7.2015.

30
31

EN

26

EN

new
(6)

Apart from the new challenges, the Directive seeks also to address the persisting
obstacles to the completion of the internal market in electricity. Refined regulatory
framework needs to contribute to overcoming the current problems of fragmented
national markets which are still often determined by a high degree of regulatory
interventions. Such interventions have led to obstacles to the sale of electricity on
equal terms as well as higher costs in comparison to solutions based on cross-border
cooperation and market-based principles.

new
(7)

Consumers are essential to achieving the flexibility necessary to adapt the electricity
system to variable, distributed renewable generation. Technological progress in grid
management and renewable generation has unlocked many opportunities for
consumers, and healthy competition on retail markets will be essential to ensuring the
market-driven deployment of innovative new services that cater to the consumers'
changing needs and abilities, while increasing system flexibility. By empowering
consumers to participate in the energy market more, and participate in new ways,
citizens should benefit from the internal market in electricity and the Union's
renewable targets should be attained.

2009/72/EC recital 3
(8)

The freedoms which the Treaty guarantees the citizens of the Union — inter alia, the
free movement of goods, the freedom of establishment and the freedom to provide
services — are achievable only in a fully open market, which enables all consumers
freely to choose their suppliers and all suppliers freely to deliver to their customers.

2009/72/EC recital 57
(9)

Promoting fair competition and easy access for different suppliers and fostering
capacity for new electricity generation should be of the utmost importance for Member
States in order to allow consumers to take full advantage of the opportunities of a
liberalised internal market in electricity.

2009/72/EC recital 8
new
(10)

EN

In order to secure competition and the supply of electricity at the most competitive
price, Member States and national regulatory authorities should facilitate cross-border
access for new suppliers of electricity from different energy sources as well as for new
providers of power generation. ,storage and demand response. 

27

EN

2009/72/EC recital 60
(11)

Securing common rules for a true internal market and a broad supply of electricity
accessible to all should also be one of the main goals of this Directive. To that end,
undistorted market prices would provide an incentive for cross-border
interconnections and for investments in new power generation while leading, in the
long term, to price convergence.

2009/72/EC recital 56
(12)

Market prices should give the right incentives for the development of the network and
for investing in new electricity generation.

2009/72/EC
(adapted)
(13)

recital

22

Under this Directive dDifferent types of market organisation will exist in the internal
market in electricity. The measures that Member States could take in order to ensure a
level playing field should be based on overriding requirements of general interest. The
Commission should be consulted on the compatibility of the measures with the Treaty
and Community ⌦ Union ⌫ law.

new
(14)

EN

Member States should maintain a wide discretion to impose public service obligations
on electricity undertakings in pursuing objectives of general economic interest.
Member States should ensure that household customers and, where Member States
deem it appropriate, small enterprises, enjoy the right to be supplied with electricity of
a specified quality at clearly comparable, transparent and competitive prices.
Nevertheless, public service obligations in the form of supply price regulation
constitute a fundamentally distortive measure that often leads to the accumulation of
tariff deficits, limitation of consumer choice, poorer incentives for energy saving and
energy efficiency investments, lower standards of service, lower levels of consumer
engagement and satisfaction, restriction of competition as well as fewer innovative
products and services on the market. Consequently, Member States should apply other
policy tools, and in particular targeted social policy measures, to safeguard the
affordability of electricity supply to their citizens. Interventions in price setting should
only be applied in limited exceptional circumstances. A fully liberalised retail
electricity market would stimulate price and non-price competition among existing
suppliers and incentivise new market entries therefore improving consumers' choice
and satisfaction.

28

EN

2009/72/EC recital 45 (adapted)
(15)

Member States should ensure that household customers and, where Member States
deem it appropriate, small enterprises, enjoy the right to be supplied with electricity of
a specified quality at clearly comparable, and transparent and reasonable prices. In
order to ensure the maintenance of the high standards of public service in the
⌦ Union ⌫ Community, all measures taken by Member States to achieve the
objective of this Directive should be regularly notified to the Commission. The
Commission should regularly publish a report analysing measures taken at national
level to achieve public service objectives and comparing their effectiveness, with a
view to making recommendations as regards measures to be taken at national level to
achieve high public service standards. Member States should take the necessary
measures to protect vulnerable customers in the context of the internal market in
electricity. Such measures may differ according to the particular circumstances in the
Member States in question and may include specific measures relating to the payment
of electricity bills, or more general measures taken in the social security system.
Where universal service is also provided to small enterprises, measures to ensure that
such universal service is provided may differ according to whether they are aimed at
household customers or small enterprises.

2009/72/EC recital 47
(16)

It should be possible for Member States to appoint a supplier of last resort. That
supplier may be the sales division of a vertically integrated undertaking, which also
performs the functions of distribution, provided that it meets the unbundling
requirements of this Directive.

2009/72/EC recital 48 (adapted)
(17)

It should be possible for measures implemented by Member States to achieve the
objectives of social and economic cohesion to include, in particular, the provision of
adequate economic incentives, using, where appropriate, all existing national and
Community ⌦ Union ⌫ tools. Such tools may include liability mechanisms to
guarantee the necessary investment.

2009/72/EC
(adapted)
(18)

EN

recital

49

To the extent to which measures taken by Member States to fulfil public service
obligations constitute State aid under Article 87(1) ⌦ 107(1) ⌫ of the Treaty, there
is an obligation under Article 88(3) ⌦ 108(3) ⌫ of the Treaty to notify them to the
Commission.

29

EN

2009/72/EC recital 52 (adapted)
new
(19)

Clear and comprehensible information should be made available to consumers
concerning their rights in relation to the energy sector. The Commission should
establish ⌦ has established ⌫ , after consulting relevant stakeholders including
Member States, national regulatory authorities, consumer organisations and electricity
undertakings, an accessible, user-friendly energy consumer checklist providing
consumers with practical information about their rights. That checklist should be
maintained up to date  provided to all consumers and should be made publicly
available.

2009/72/EC recital 52 (adapted)
new
(20)

Clear and comprehensible information should be made available to consumers
concerning their rights in relation to the energy sector. The Commission should
establish ⌦ has established ⌫, after consulting relevant stakeholders including
Member States, national regulatory authorities, consumer organisations and electricity
undertakings, an accessible, user-friendly energy consumer checklist providing
consumers with practical information about their rights. That checklist should be
maintained up to date,  provided to all consumers and should be made publicly
available.

new
(21)

At present, several factors impede consumers from accessing, understanding and
acting upon the various sources of market information available to them. To that end,
the comparability of offers should be improved and barriers to switching minimised to
the greatest practicable extent without unduly limiting consumer choice.

new
(22)

Customers are still being charged a broad range of fees directly or indirectly as a result
of switching energy supplier. Such fees make calculating the best product or service
more difficult and diminish the immediate financial advantage of switching. Although
removing such fees may limit consumer choice by eliminating products based on
rewarding consumer loyalty, restricting their use further should improve consumer
welfare, consumer engagement and competition in the market.

new
(23)

EN

Independent comparison tools including websites are an effective means for customers
to assess the merits of different energy offers available on the market. Search costs are
lower as they no longer need to collect information from individual suppliers and

30

EN

service providers. Such tools can provide the right balance between the need for
information to be clear and concise and the need for it to be complete and
comprehensive. They should aim at including the broadest possible range of available
offers, and at covering the market as completely as is feasible so as to give the
customer a representative overview. They can also reduce search costs as customers
will not need to collect information separately from individual suppliers and service
providers. It is crucial that the information given on such tools be trustworthy,
impartial and transparent.

2009/72/EC recital 54
(24)

Greater consumer protection is guaranteed by the availability of effective means of
dispute settlement for all consumers. Member States should introduce speedy and
effective complaint handling procedures.

new

EN

(25)

All consumers should be able to benefit from directly participating in the market, in
particular by adjusting their consumption according to market signals and in return
benefit from lower electricity prices or other incentive payments. The benefits of this
active participation are likely to increase over time when electric vehicles, heat pumps
and other flexible loads become more competitive. Consumers should be enabled to
participate in all forms of demand response and therefore should have the possibility
to opt for having a smart metering system and a dynamic electricity pricing contract.
This should allow them to adjust their consumption according to real time price
signals that reflect the value and cost of electricity or transportation in different time
periods, while Member States should ensure a reasonable exposure of consumers to
the wholesale price risk. Member States should also ensure that those consumers who
choose not to actively engage in the market are not penalised but instead their
informed decision making on the options available to them should be facilitated in the
manner that is the most suitable for domestic market conditions.

(26)

All customer groups (industrial, commercial and households) should have access to
the energy markets to trade their flexibility and self-generated electricity. Customers
should be allowed to make full use of the advantages of aggregation of production and
supply over larger regions and benefit from cross-border competition. Aggregators are
likely to play an important role as intermediaries between customer groups and the
market. Transparent and fair rules should be established to also allow independent
aggregators to fulfil this role. Products should be defined on all organised energy
markets, including ancillary services and capacity markets so as to encourage the
participation of demand response.

(27)

The 'European Strategy for Low Emission Mobility'32 stresses the need for the
decarbonisation of the transport sector and the reduction of its emissions especially in
urban areas and highlights the important role that electro-mobility can play in
contributing to these objectives. Moreover, the deployment of electro-mobility
constitutes an important element of the energy transition. Market rules set out in this

32

SWD(2016) 244 final

31

EN

Directive should therefore contribute to creating favourable conditions for electric
vehicles of all kinds. In particular, they should safeguard the effective deployment of
publicly accessible and private recharging points for electric vehicles and ensure the
efficient integration of vehicle charging into system operation.

EN

(28)

Demand response will be pivotal to enable smart charging of electric vehicles and
thereby enable the efficient integration of electric vehicles into the electricity grid
which will be crucial for the decarbonisation of transport.

(29)

Consumers should be able to consume, store and/or sell self-generated electricity to
the market. New technology developments will facilitate these activities in the future.
However, existing legal and commercial barriers exist including for example
disproportionate fees for internally consumed electricity, obligations to feed selfgenerated electricity to the energy system, administrative burdens such as for selfgenerators who sell electricity to the system to comply with the requirements for
suppliers, etc. All these obstacles that prevent consumers from self-generating and
from consuming, storing or selling self-generated electricity to the market should be
removed while it should be ensured that self-generating consumers contribute
adequately to system costs.

(30)

Distributed energy technologies and consumer empowerment have made community
energy and energy cooperatives an effective and cost-efficient way to meet citizens'
needs and expectations regarding energy sources, services and local participation.
Community energy offers an inclusive option for all consumers to have a direct stake
in producing, consuming and or sharing energy between each other within a
geographically confined community network that may operate in an isolated mode or
be connected to the public distribution network. Community energy initiatives focus
primarily on providing affordable energy of a specific kind such as renewable energy,
for their members or shareholders rather than prioritising profit-making like a
traditional energy company. By directly engaging with consumers community energy
initiatives are demonstrating their potential in facilitating the up-take of new
technologies and consumption patterns, including smart distribution grids and demand
response, in an integrated manner. Community energy can also advance energy
efficiency at household level and help fight energy poverty through reduced
consumption and lower supply tariffs. Community energy also enables certain groups
of household consumers to participate in the energy market who otherwise might not
have been able to do so. Where they have been successfully operated such initiatives
have delivered economic, social and environmental value to the community that goes
beyond the mere benefits derived from the provision of energy services. Local energy
communities should be allowed to operate on the market on a level-playing field
without distorting competition. Household consumers should be allowed to voluntarily
participate in a community energy initiative as well as to leave, without losing access
to the network operated by the community energy initiative or their rights as
consumers. Access to a local energy community's network should be granted on fair
and cost-reflective terms.

(31)

Energy bills and annual statements are an important means through which customers
are informed. As well as data on consumption and costs, they can also convey other
information that helps consumers to compare their current deal with other offers.
However, considering that bill-related disputes are a very common source of consumer
complaints, a factor which contributes to persistently low levels of consumer
satisfaction and engagement in the energy sector, it is necessary to make bills and
annual statements clearer and easier to understand, as well as to ensure that bills

32

EN

contain all the information necessary to enable consumers to regulate their energy
consumption, compare offers and switch suppliers.

2009/72/EC recital 27
(32)

Member States should encourage the modernisation of distribution networks, such as
through the introduction of smart grids, which should be built in a way that encourages
decentralised generation and energy efficiency.

new
(33)

Engaging consumers requires appropriate incentives and technologies such as smart
metering. Smart metering systems empower consumers as they allow them to receive
accurate and near-real time feedback on their energy consumption or generation
allowing them to manage it better, participate in and reap benefits from demand side
response programmes and other services, and lower their electricity bill. Smart
metering also enables distribution system operators to have better visibility of their
networks, and consequently reduce their operation and maintenance costs and pass
those savings to the distribution tariffs which are ultimately borne by consumers.

2009/72/EC recital 55
new
(34)

When it comes to deciding at national level on the smart metering deployment ,
Iit should be possible to base this on an economic assessment. Should that assessment
conclude that the introduction of such metering systems is economically reasonable
and cost-effective only for consumers with a certain amount of electricity
consumption, Member States should be able to take that into account when proceeding
with implementation.

new

EN

(35)

Member States that are not systematically rolling out smart metering should give the
possibility to consumers to benefit, upon request and under fair and reasonable
conditions, and by providing them with all the relevant information, from the
installation of an electricity smart meter. Where consumers do not have smart meters,
they should be entitled to meters that fulfil the minimum requirements necessary to
provide them with the billing information specified in this Directive.

(36)

In order to assist consumers' active participation in the electricity market, the smart
metering systems to be deployed by Member States in their territory should be
interoperable, not represent a barrier to switching of supplier, and should be equipped
with fit-for-purpose functionalities that allow consumers to have near-real time access
to their consumption data, modulate their energy consumption and, to the extent that
the supporting infrastructure permits, offer their flexibility to the network and to
energy services companies, be rewarded for it, and achieve savings in their electricity
bill.

33

EN

2009/72/EC recital 50 (adapted)
new
(37)

The public service requirements, including as regards the universal service, and the
common minimum standards that follow from them need to be further strengthened to
make sure that all consumers, especially vulnerable ones, are able to benefit from
competition and fair prices. The public service requirements should be defined at
national level, taking into account national circumstances; Community law should,
however, be respected by the Member States. The citizens of the Union and, where
Member States deem it appropriate, small enterprises, should be able to enjoy public
service obligations, in particular with regard to security of supply, and reasonable
prices. A key aspect of supplying customers is access to objective and transparent
consumption data. Thus, consumers should have access to their consumption data and
associated prices and services costs so that they can invite competitors to make an
offer based on those data. Consumers should also have the right to be properly
informed about their energy consumption. Prepayments
should not place a
disproportionate disadvantage at their users, while  reflect the likely consumption of
electricity and different payment systems should be non-discriminatory. Information
on energy costs provided to consumers frequently enough will create incentives for
energy savings because it will give customers direct feedback on the effects of
investment in energy efficiency and change of behaviour. In this respect, full
implementation of Directive 2006/32/EC of the European Parliament and of the
Council of 5 April 2006 on energy end-use efficiency and energy services33 will help
consumer to reduce their energy costs.

new
(38)

Currently different models for the management of data have been developed or are
under development in the Member States following the deployment of smart metering
systems. Independently of the data management model it is important that Member
States put in place transparent rules under which data can be accessed under nondiscriminatory conditions and ensure the highest level of cybersecurity and data
protection as well as the impartiality of the entities which handle data.

2009/72/EC recital 45 (adapted)

EN

(39)

Member States should ensure that household customers and, where Member States
deem it appropriate, small enterprises, enjoy the right to be supplied with electricity of
a specified quality at clearly comparable, transparent and reasonable prices. In order to
ensure the maintenance of the high standards of public service in the Community, all
measures taken by Member States to achieve the objective of this Directive should be
regularly notified to the Commission. The Commission should regularly publish a
report analysing measures taken at national level to achieve public service objectives
and comparing their effectiveness, with a view to making recommendations as regards

33

OJ L 114, 27.4.2006, p. 64.

34

EN

measures to be taken at national level to achieve high public service standards.
Member States should take the necessary measures to protect vulnerable and energy
poor customers in the context of the internal market in electricity. Such measures may
differ according to the particular circumstances in the Member States in question and
may include social or energy policy measures relating to the payment of electricity
bills, investment in residential energy efficiency or consumer protection such as
disconnection safeguards. Where universal service is also provided to small
enterprises, measures to ensure that such universal service is provided may differ
according to whether they are aimed at customers or small enterprises.

new
(40)

Energy services are fundamental to safeguard the well-being of the Union citizens.
Adequate warmth, cooling, lighting and the energy to power appliances are essential
services to guarantee a decent standard of living and citizens' health. Furthermore,
access to these energy services empowers European citizens to fulfil their potential
and it enhances social inclusion. Energy poor households are unable to afford these
energy services due to a combination of low income, high energy expenditure and
poor energy efficiency of their homes. Member States should collect the right
information to monitor the number of households in energy poverty. Accurate
measurement should assist Member States to identify those households affected by
energy poverty in order to provide targeted support. The Commission should actively
support the implementation of the provisions on energy poverty by facilitating the
sharing of good practices between Member States.

2009/72/EC recital 53 (adapted)
new
(41)

Energy poverty is a growing problem in the Community. Member States which are
affected
by energy poverty  and which have not yet done so should therefore
develop national action plans or other appropriate frameworks to tackle energy poverty
this problem  , aiming at decreasing the number of people suffering such
situation. Low income, high energy expenditure, and poor energy efficiency of homes
are relevant factors in designing indicators for the measurement of energy poverty. In
any event, Member States should ensure the necessary energy supply for vulnerable
and energy poor  customers. In doing so, an integrated approach, such as in the
framework of
energy and  social policy, could be used and measures could
include social policies or energy efficiency improvements for housing. At the very
least, this Directive should allow national policies in favour of vulnerable
and
energy poor  customers.

new
(42)

EN

Distribution system operators have to cost-efficiently integrate new electricity
generation especially generating installations using renewable energy sources and new
loads such as heat pumps and electric vehicles. For this purpose distributions system
operators should be enabled and incentivised to use services from distributed energy

35

EN

resources such as demand response and energy storage, based on market procedures,
in order to efficiently operate their networks and avoid costly network expansions.
Member States should put in place appropriate measures such as national network
codes and market rules, and incentivise distribution system operators through network
tariffs which do not create obstacles to flexibility or to the improvement of energy
efficiency in the grid. Member States should also introduce network development
plans for distribution systems in order to support the integration of generating
installations using renewable energy sources, facilitate the development of storage
facilities and the electrification of the transport sector, and provide to system users
adequate information regarding the foreseen expansions or upgrades of the network, as
currently such procedure does not exist in the majority of Member States.

2009/72/EC recital 26

(43)

Non-discriminatory access to the distribution network determines downstream access
to customers at retail level. The scope for discrimination as regards third-party access
and investment, however, is less significant at distribution level than at transmission
level where congestion and the influence of generation or supply interests are
generally greater than at distribution level. The rules on legal and functional
unbundling currently in place can lead to effective unbundling provided they are more
clearly defined, properly implemented and closely monitored. To create a level playing
field at retail level, the activities of distribution system operators should therefore be
monitored so that they are prevented from taking advantage of their vertical
integration as regards their competitive position on the market, in particular in relation
to household and small non-household customers.

2009/72/EC recital 30
(44)

Where a closed distribution system is used to ensure the optimal efficiency of an
integrated energy supply requiring specific operational standards, or a closed
distribution system is maintained primarily for the use of the owner of the system, it
should be possible to exempt the distribution system operator from obligations which
would constitute an unnecessary administrative burden because of the particular nature
of the relationship between the distribution system operator and the users of the
system. Industrial, commercial or shared services sites such as train station buildings,
airports, hospitals, large camping sites with integrated facilities or chemical industry
sites can include closed distribution systems because of the specialised nature of their
operations.

2009/72/EC recital 8
(45)

EN

In order to secure competition and the supply of electricity at the most competitive
price, Member States and national regulatory authorities should facilitate cross-border
access for new suppliers of electricity from different energy sources as well as for new
providers of power generation.

36

EN

2009/72/EC recital 9
(46)

Without effective separation of networks from activities of generation and supply
(effective unbundling), there is an inherent risk of discrimination not only in the
operation of the network but also in the incentives for vertically integrated
undertakings to invest adequately in their networks.

2009/72/EC recital 11
(47)

Only the removal of the incentive for vertically integrated undertakings to discriminate
against competitors as regards network access and investment can ensure effective
unbundling. Ownership unbundling, which implies the appointment of the network
owner as the system operator and its independence from any supply and production
interests, is clearly an effective and stable way to solve the inherent conflict of
interests and to ensure security of supply. For that reason, the European Parliament, in
its resolution of 10 July 2007 on prospects for the internal gas and electricity market34
referred to ownership unbundling at transmission level as the most effective tool by
which to promote investments in infrastructure in a non-discriminatory way, fair
access to the network for new entrants and transparency in the market. Under
ownership unbundling, Member States should therefore be required to ensure that the
same person or persons are not entitled to exercise control over a generation or supply
undertaking and, at the same time, exercise control or any right over a transmission
system operator or transmission system. Conversely, control over a transmission
system or transmission system operator should preclude the possibility of exercising
control or any right over a generation or supply undertaking. Within those limits, a
generation or supply undertaking should be able to have a minority shareholding in a
transmission system operator or transmission system.

2009/72/EC recital 12
(48)

Any system for unbundling should be effective in removing any conflict of interests
between producers, suppliers and transmission system operators, in order to create
incentives for the necessary investments and guarantee the access of new market
entrants under a transparent and efficient regulatory regime and should not create an
overly onerous regulatory regime for national regulatory authorities.

2009/72/EC recital 14

EN

(49)

Since ownership unbundling requires, in some instances, the restructuring of
undertakings, Member States that decide to implement ownership unbundling should
be granted additional time to apply the relevant provisions. In view of the vertical
links between the electricity and gas sectors, the unbundling provisions should apply
across the two sectors.

34

OJ C 175 E, 10.7.2008, p.206.

37

EN

2009/72/EC recital 15
(50)

Under ownership unbundling, to ensure full independence of network operation from
supply and generation interests and to prevent exchanges of any confidential
information, the same person should not be a member of the managing boards of both
a transmission system operator or a transmission system and an undertaking
performing any of the functions of generation or supply. For the same reason, the same
person should not be entitled to appoint members of the managing boards of a
transmission system operator or a transmission system and to exercise control or any
right over a generation or supply undertaking.

2009/72/EC recital 16
(51)

The setting up of a system operator or a transmission operator that is independent from
supply and generation interests should enable a vertically integrated undertaking to
maintain its ownership of network assets whilst ensuring effective separation of
interests, provided that such independent system operator or such independent
transmission operator performs all the functions of a system operator and detailed
regulation and extensive regulatory control mechanisms are put in place.

2009/72/EC (adapted) recital 17
(52)

Where, on 3 September 2009, an undertaking owning a transmission system
⌦ was ⌫ is part of a vertically integrated undertaking, Member States should
therefore be given a choice between ownership unbundling and setting up a system
operator or transmission operator which is independent from supply and generation
interests.

2009/72/EC recital 18
(53)

To preserve fully the interests of the shareholders of vertically integrated undertakings,
Member States should have the choice of implementing ownership unbundling either
by direct divestiture or by splitting the shares of the integrated undertaking into shares
of the network undertaking and shares of the remaining supply and generation
undertaking, provided that the requirements resulting from ownership unbundling are
complied with.

2009/72/EC recital 19
(54)

EN

The full effectiveness of the independent system operator or independent transmission
operator solutions should be ensured by way of specific additional rules. The rules on
the independent transmission operator provide an appropriate regulatory framework to
guarantee fair competition, sufficient investment, access for new market entrants and
the integration of electricity markets. Effective unbundling through the independent
transmission operator provisions should be based on a pillar of organisational

38

EN

measures and measures relating to the governance of transmission system operators
and on a pillar of measures relating to investment, connecting new production
capacities to the network and market integration through regional cooperation. The
independence of the transmission operator should also, inter alia, be ensured through
certain ‘cooling-off’ periods during which no management or other relevant activity
giving access to the same information as could have been obtained in a managerial
position is exercised in the vertically integrated undertaking. The independent
transmission operator model of effective unbundling is in line with the requirements
laid down by the European Council at its meeting on 8 and 9 March 2007.

2009/72/EC recital 21
(55)

A Member State has the right to opt for full ownership unbundling in its territory.
Where a Member State has exercised that right, an undertaking does not have the right
to set up an independent system operator or an independent transmission operator.
Furthermore, an undertaking performing any of the functions of generation or supply
cannot directly or indirectly exercise control or any right over a transmission system
operator from a Member State that has opted for full ownership unbundling.

2009/72/EC recital 23
(56)

The implementation of effective unbundling should respect the principle of nondiscrimination between the public and private sectors. To that end, the same person
should not be able to exercise control or any right, in violation of the rules of
ownership unbundling or the independent system operator option, solely or jointly,
over the composition, voting or decision of the bodies of both the transmission system
operators or the transmission systems and the generation or supply undertakings. With
regard to ownership unbundling and the independent system operator solution,
provided that the Member State in question is able to demonstrate that the requirement
is complied with, two separate public bodies should be able to control generation and
supply activities on the one hand and transmission activities on the other.

2009/72/EC (adapted) recital 24
(57)

EN

Fully effective separation of network activities from supply and generation activities
should apply throughout the Community ⌦ Union ⌫ to both Community
⌦ Union ⌫ and non-Community ⌦ Union ⌫ undertakings. To ensure that
network activities and supply and generation activities throughout the Community
⌦ Union ⌫ remain independent from each other, regulatory authorities should be
empowered to refuse certification to transmission system operators that do not comply
with the unbundling rules. To ensure the consistent application of those rules across
the Community ⌦ Union ⌫, the regulatory authorities should take utmost account
of the Commission’s opinion when the former take decisions on certification. To
ensure, in addition, respect for the international obligations of the Community

39

EN

⌦ Union ⌫, and solidarity and energy security within the Community
⌦ Union ⌫, the Commission should have the right to give an opinion on
certification in relation to a transmission system owner or a transmission system
operator which is controlled by a person or persons from a third country or third
countries.

2009/72/EC recital 31
(58)

Authorisation procedures should not lead to an administrative burden disproportionate
to the size and potential impact of electricity producers. Unduly lengthy authorisation
procedures may constitute a barrier to access for new market entrants.

2009/72/EC recital 34
(59)

Energy regulators need to be able to take decisions in relation to all relevant regulatory
issues if the internal market in electricity is to function properly, and to be fully
independent from any other public or private interests. This precludes neither judicial
review nor parliamentary supervision in accordance with the constitutional laws of the
Member States. In addition, approval of the budget of the regulator by the national
legislator does not constitute an obstacle to budgetary autonomy. The provisions
relating to the autonomy in the implementation of the allocated budget of the
regulatory authority should be implemented in the framework defined by national
budgetary law and rules. While contributing to the independence of the national
regulatory authority from any political or economic interest through an appropriate
rotation scheme, it should be possible for Member States to take due account of the
availability of human resources and of the size of the board.

2009/72/EC recital 36
(60)

National regulatory authorities should be able to fix or approve tariffs, or the
methodologies underlying the calculation of the tariffs, on the basis of a proposal by
the transmission system operator or distribution system operator(s), or on the basis of a
proposal agreed between those operator(s) and the users of the network. In carrying
out those tasks, national regulatory authorities should ensure that transmission and
distribution tariffs are non-discriminatory and cost-reflective, and should take account
of the long-term, marginal, avoided network costs from distributed generation and
demand-side management measures.

2009/72/EC recital 37
1 2009/72/EC recital 38
(61)

EN

Energy regulators should have the power to issue binding decisions in relation to
electricity undertakings and to impose effective, proportionate and dissuasive penalties
on electricity undertakings which fail to comply with their obligations or to propose
that a competent court impose such penalties on them.
1 To this end, regulatory
authorities should be able to request relevant information from electricity

40

EN

undertakings, make appropriate and sufficient investigations and settle disputes. 
Energy regulators should also be granted the power to decide, irrespective of the
application of competition rules, on appropriate measures ensuring customer benefits
through the promotion of effective competition necessary for the proper functioning of
the internal market in electricity. The establishment of virtual power plants —
electricity release programmes whereby electricity undertakings are obliged to sell or
to make available a certain volume of electricity or to grant access to part of their
generation capacity to interested suppliers for a certain period of time — is one of the
possible measures that can be used to promote effective competition and ensure the
proper functioning of the market. Energy regulators should also be granted the power
to contribute to ensuring high standards of universal and public service in compliance
with market opening, to the protection of vulnerable customers, and to the full
effectiveness of consumer protection measures. Those provisions should be without
prejudice to both the Commission’s powers concerning the application of competition
rules including the examination of mergers with a Community dimension, and the
rules on the internal market such as the free movement of capital. The independent
body to which a party affected by the decision of a national regulator has a right to
appeal could be a court or other tribunal empowered to conduct a judicial review.

2009/72/EC recital 37 (adapted)
(62)

Energy regulators should have the power to issue binding decisions in relation to
electricity undertakings and to impose effective, proportionate and dissuasive penalties
on electricity undertakings which fail to comply with their obligations or to propose
that a competent court impose such penalties on them. Energy regulators should also
be granted the power to decide, irrespective of the application of competition rules, on
appropriate measures ensuring customer benefits through the promotion of effective
competition necessary for the proper functioning of the internal market in electricity.
The establishment of virtual power plants — electricity release programmes whereby
electricity undertakings are obliged to sell or to make available a certain volume of
electricity or to grant access to part of their generation capacity to interested suppliers
for a certain period of time — is one of the possible measures that can be used to
promote effective competition and ensure the proper functioning of the market. Energy
regulators should also be granted the power to contribute to ensuring high standards of
universal and public service in compliance with market opening, to the protection of
vulnerable customers, and to the full effectiveness of consumer protection measures.
Those provisions should be without prejudice to both the Commission’s powers
concerning the application of competition rules including the examination of mergers
with a Community ⌦ Union ⌫ dimension, and the rules on the internal market such
as the free movement of capital. The independent body to which a party affected by
the decision of a national regulator has a right to appeal could be a court or other
tribunal empowered to conduct a judicial review.

2009/72/EC recital 63
new
(63)

EN

Under [recast of Regulation 714/2009 as proposed by COM(2016)861/2]Regulation
(EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on

41

EN

conditions for access to the network for cross-border exchanges in electricity (10), the
Commission may adopt Guidelines Guidelines or Network Codes  to achieve the
necessary degree of harmonisation. Such Guidelines
or Network Codes , which
constitute binding implementing measures, are, also with regard to certain provisions
of this Directive, a useful tool which can be adapted quickly where necessary.

new
(64)

Member States and the Energy Community Contracting Parties should closely
cooperate on all matters concerning the development of an integrated electricity
trading region and should take no measures that endanger the further integration of
electricity markets or security of supply of Member States and Contracting Parties.

(65)

This Directive should be read together with [recast of Regulation 714/2009 as
proposed by COM(2016)861/2] which lays down key principles of the new market
design for electricity which will enable better reward for flexibility, provide adequate
price signals and ensure the development of functioning integrated short-term markets.
[recast of Regulation 714/2009 as proposed by COM(2016)861/2] also sets out new
rules in various areas including capacity mechanisms and cooperation between
transmission system operators.

2009/72/EC recital 62 (adapted)
(66)

Since the objective of this Directive, namely the creation of a fully operational internal
electricity market, cannot be sufficiently achieved by the Member States and can
therefore be better achieved at Community ⌦ Union ⌫ level, the Community
⌦ Union ⌫ may adopt measures, in accordance with the principle of subsidiarity as
set out in Article 5 of the Treaty ⌦ on the European Union ⌫. In accordance with
the principle of proportionality, as set out in that Article, this Directive does not go
beyond what is necessary in order to achieve that objective.

2009/72/EC recital 68
(67)

This Directive respects the fundamental rights, and observes the principles, recognised
in particular by the Charter of Fundamental Rights of the European Union.

new

EN

(68)

The obligation to transpose this Directive into national law should be confined to those
provisions which represent a substantive amendment as compared to the earlier
Directive. The obligation to transpose the provisions which are unchanged arises under
the earlier Directive.

(69)

In accordance with the Joint Political Declaration of 28 September 2011 of Member
States and the Commission on explanatory documents 35, Member States have

35

OJ C 369, 17.12.2011, p. 14.

42

EN

undertaken to accompany, in justified cases, the notification of their transposition
measures with one or more documents explaining the relationship between the
components of a directive and the corresponding parts of national transposition
instruments. With regard to this Directive, the legislator considers the transmission of
such documents to be justified.

new
(70)

This Directive should be without prejudice to the obligations of the Member States
relating to the time-limit for the transposition into national law and the date of
application of the Directive set out in Annex X

2009/72/EC recital 67
new
(71)

Given the scope of the amendments made to Directive 2009/72/EC of the European
Parliament and of the Council36  Directive 2003/54/EC herein, it is desirable, for
reasons of clarity and rationalisation, that the provisions in question should be recast
by bringing them all together in a single text in a new Directive.

2009/72/EC recital 5
A secure supply of electricity is of vital importance for the development of European society,
the implementation of a sustainable climate change policy, and the fostering of
competitiveness within the internal market. To that end, cross-border interconnections should
be further developed in order to secure the supply of all energy sources at the most
competitive prices to consumers and industry within the Community.

2009/72/EC recital 59
The development of a true internal market in electricity, through a network connected across
the Community, should be one of the main goals of this Directive and regulatory issues on
cross-border interconnections and regional markets should, therefore, be one of the main tasks
of the regulatory authorities, in close cooperation with the Agency where relevant.

2009/72/EC recital 7
The Communication of the Commission of 10 January 2007 entitled ‘An Energy Policy for
Europe’ highlighted the importance of completing the internal market in electricity and of
creating a level playing field for all electricity undertakings established in the Community.
The Communications of the Commission of 10 January 2007 entitled ‘Prospects for the
36

EN

OJ L 211, 14.8.2009, p. 55–93.

43

EN

internal gas and electricity market’ and‘Inquiry pursuant to Article 17 of Regulation (EC) No
1/2003 into the European gas and electricity sectors (Final Report)’ showed that the present
rules and measures do not provide the necessary framework for achieving the objective of a
well-functioning internal market.

2009/72/EC recital 4
However, at present, there are obstacles to the sale of electricity on equal terms and without
discrimination or disadvantages in the Community. In particular, non-discriminatory network
access and an equally effective level of regulatory supervision in each Member State do not
yet exist.

2009/72/EC recital 41
Member States or, where a Member State has so provided, the regulatory authority, should
encourage the development of interruptible supply contracts.

2009/72/EC recital
A well-functioning internal market in electricity should provide producers with the
appropriate incentives for investing in new power generation, including in electricity from
renewable energy sources, paying special attention to the most isolated countries and regions
in the Community ’s energy market. A well-functioning market should also provide
consumers with adequate measures to promote the more efficient use of energy for which a
secure supply of energy is a precondition.

2009/72/EC recital 32
Further measures should be taken in order to ensure transparent and non-discriminatory tariffs
for access to networks. Those tariffs should be applicable to all system users on a nondiscriminatory basis.

2009/72/EC recital 20
In order to develop competition in the internal market in electricity, large non-household
customers should be able to choose their suppliers and enter into contracts with several
suppliers to secure their electricity requirements. Such customers should be protected against
exclusivity clauses the effect of which is to exclude competing or complementary offers.

EN

44

EN

2009/72/EC recital 51
Consumer interests should be at the heart of this Directive and quality of service should be a
central responsibility of electricity undertakings. Existing rights of consumers need to be
strengthened and guaranteed, and should include greater transparency. Consumer protection
should ensure that all consumers in the wider remit of the Community benefit from a
competitive market. Consumer rights should be enforced by Member States or, where
a Member State has so provided, by the regulatory authorities.

2009/72/EC recital 29
To avoid imposing a disproportionate financial and administrative burden on small
distribution system operators, Member States should be able, where necessary, to exempt the
undertakings concerned from the legal distribution unbundling requirements.

2009/72/EC recital 28
In the case of small systems it may be necessary that the provision of ancillary services is
ensured by transmission system operators interconnected with small systems.

2009/72/EC recital 10
The rules on legal and functional unbundling as provided for in Directive 2003/54/EC have
not, however, led to effective unbundling of the transmission system operators. At its meeting
on 8 and 9 March 2007, the European Council therefore invited the Commission to develop
legislative proposals for the ‘effective separation of supply and generation activities from
network operations’.

2009/72/EC recital 13
The definition of the term ‘control’ is taken from Council Regulation (EC) No 139/2004 of
20 January 2004 on the control of concentrations between undertakings (the EC Merger
Regulation)37.

2009/72/EC recital 43
Nearly all Member States have chosen to ensure competition in the electricity generation
market through a transparent authorisation procedure. However, Member States should ensure
the possibility to contribute to security of supply through the launching of a tendering
procedure or an equivalent procedure in the event that sufficient electricity generation
37

EN

OJ L 24, 29.1.2004, p. 1

45

EN

capacity is not built on the basis of the authorisation procedure. Member States should have
the possibility, in the interests of environmental protection and the promotion of new infant
technologies, of tendering for new capacity on the basis of published criteria. Such new
capacity includes, inter alia, electricity from renewable energy sources and combined heat and
power.

2009/72/EC recital 33
Directive 2003/54/EC introduced a requirement for Member States to establish regulators
with specific competences. However, experience shows that the effectiveness of regulation is
frequently hampered through a lack of independence of regulators from government, and
insufficient powers and discretion. For that reason, at its meeting on 8 and 9 March 2007, the
European Council invited the Commission to develop legislative proposals providing for
further harmonisation of the powers and strengthening of the independence of national energy
regulators. It should be possible for those national regulatory authorities to cover both the
electricity and the gas sectors.

2009/72/EC recital 38
Any harmonisation of the powers of national regulatory authorities should include the powers
to provide incentives to electricity undertakings, and to impose effective, proportionate and
dissuasive penalties on electricity undertakings or to propose that a competent court impose
such penalties. Moreover, regulatory authorities should have the power to request relevant
information from electricity undertakings, make appropriate and sufficient investigations and
settle disputes.

2009/72/EC recital 61
Regulatory authorities should also provide information on the market to permit the
Commission to exercise its role of observing and monitoring the internal market in electricity
and its short, medium and long-term evolution, including aspects such as generation capacity,
different sources of electricity generation, transmission and distribution infrastructure, quality
of service, cross-border trade, congestion management, investments, wholesale and consumer
prices, market liquidity and environmental and efficiency improvements. National regulatory
authorities should report to the competition authorities and the Commission those Member
States in which prices impair competition and proper functioning of the market.

2009/72/EC recital 42
All Community industry and commerce, including small and medium-sized enterprises, and
all citizens of the Union that enjoy the economic benefits of the internal market should also be
able to enjoy high levels of consumer protection, and in particular household customers and,
where Member States deem it appropriate, small enterprises should also be able to enjoy
public service guarantees, in particular with regard to security of supply and reasonable
tariffs, for reasons of fairness, competitiveness and, indirectly, to create employment. Those

EN

46

EN

customers should also have access to choice, fairness, representation and dispute settlement
mechanisms.

2009/72/EC recital 45
Member States should ensure that household customers and, where Member States deem it
appropriate, small enterprises, enjoy the right to be supplied with electricity of a specified
quality at clearly comparable, transparent prices. In order to ensure the maintenance of the
high standards of public service in the Community, all measures taken by Member States to
achieve the objective of this Directive should be regularly notified to the Commission. The
Commission should regularly publish a report analysing measures taken at national level to
achieve public service objectives and comparing their effectiveness, with a view to making
recommendations as regards measures to be taken at national level to achieve high public
service standards. Member States should take the necessary measures to protect vulnerable
customers in the context of the internal market in electricity. Such measures may differ
according to the particular circumstances in the Member States in question and may include
specific measures relating to the payment of electricity bills, or more general measures taken
in the social security system. Where universal service is also provided to small enterprises,
measures to ensure that such universal service is provided may differ according to whether
they are aimed at household customers or small enterprises.

2009/72/EC recital 46
Respect for the public service requirements is a fundamental requirement of this Directive,
and it is important that common minimum standards, respected by all Member States, are
specified in this Directive, which takes into account the objectives of consumer protection,
security of supply, environmental protection and equivalent levels of competition in all
Member States. It is important that the public service requirements can be interpreted on a
national basis, taking into account national circumstances and subject to the respect of
Community law.

2009/72/EC recital 50
The public service requirements, including as regards the universal service, and the common
minimum standards that follow from them need to be further strengthened to make sure that
all consumers, especially vulnerable ones, are able to benefit from competition and fair prices.
The public service requirements should be defined at national level, taking into account
national circumstances; Community law should, however, be respected by the Member States.
The citizens of the Union and, where Member States deem it appropriate, small enterprises,
should be able to enjoy public service obligations, in particular with regard to security of
supply, and reasonable prices. A key aspect of supplying customers is access to objective and
transparent consumption data. Thus, consumers should have access to their consumption data
and associated prices and services costs so that they can invite competitors to make an offer
based on those data. Consumers should also have the right to be properly informed about their
energy consumption. Prepayments should reflect the likely consumption of electricity and
different payment systems should be non-discriminatory. Information on energy costs

EN

47

EN

provided to consumers frequently enough will create incentives for energy savings because it
will give customers direct feedback on the effects of investment in energy efficiency and
change of behaviour. In this respect, full implementation of Directive 2006/32/EC of the
European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and
energy services38 will help consumers to reduce their energy costs.

new
In order to provide the minimum degree of harmonisation required to achieve the aim of this
Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the
Functioning of the European Union should be delegated to the Commission in respect of
items referred to under Article 59 and 61. It is of particular importance that the Commission
carry out appropriate consultations during its preparatory work, including at expert level, and
that those consultations be conducted in accordance with the principles laid down in the
Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to ensure
equal participation in the preparation of delegated acts, the European Parliament and the
Council receive all documents at the same time as Member States' experts, and their experts
systematically have access to meetings of Commission expert groups dealing with the
preparation of the delegated acts.

2009/72/EC recital 64 and 65
The measures necessary for the implementation of this Directive should be adopted in
accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures
for the exercise of implementing powers conferred on the Commission
In particular, the Commission should be empowered to adopt the Guidelines necessary for
providing the minimum degree of harmonisation required to achieve the aim of this Directive.
Since those measures are of general scope and are designed to amend non-essential elements
of this Directive, by supplementing it with new non-essential elements, they must be adopted
in accordance with the regulatory procedure with scrutiny provided for in Article 5a of
Decision 1999/468/EC.

2009/72/EC recital 66
In accordance with point 34 of the Interinstitutional Agreement on better law-making39
Member States are encouraged to draw up, for themselves and in the interest of the
Community, their own tables, illustrating, as far as possible, the correlation between this
Directive and the transposition measures, and to make them public.

EN

38

OJ L 114, 27.4.2006, p. 64.

39

OJ C 321, 31.12.2003, p. 1

48

EN

2009/72/EC recital 25
The security of energy supply is an essential element of public security and is therefore
inherently connected to the efficient functioning of the internal market in electricity and the
integration of the isolated electricity markets of Member States. Electricity can reach the
citizens of the Union only through the network. Functioning electricity markets and, in
particular, the networks and other assets associated with electricity supply are essential for
public security, for the competitiveness of the economy and for the well-being of the citizens
of the Union. Persons from third countries should therefore be allowed to control a
transmission system or a transmission system operator only if they comply with the
requirements of effective separation that apply inside the Community. Without prejudice to
the international obligations of the Community, the Community considers that the electricity
transmission system sector is of high importance to the Community and therefore additional
safeguards are necessary regarding the preservation of the security of supply of energy to the
Community to avoid any threats to public order and public security in the Community and the
welfare of the citizens of the Union. The security of supply of energy to the Community
requires, in particular, an assessment of the independence of network operation, the level of
the Community’s and individual Member States’ dependence on energy supply from third
countries, and the treatment of both domestic and foreign trade and investment in energy in a
particular third country. Security of supply should therefore be assessed in the light of the
factual circumstances of each case as well as the rights and obligations arising under
international law, in particular the international agreements between the Community and the
third country concerned. Where appropriate the Commission is encouraged to submit
recommendations to negotiate relevant agreements with third countries addressing the
security of supply of energy to the Community or to include the necessary issues in other
negotiations with those third countries.

2009/72/EC recital 35
In order to ensure effective market access for all market players, including new entrants, nondiscriminatory and cost-reflective balancing mechanisms are necessary. As soon as the
electricity market is sufficiently liquid, this should be achieved through the setting up of
transparent market-based mechanisms for the supply and purchase of electricity, needed in the
framework of balancing requirements. In the absence of such a liquid market, national
regulatory authorities should play an active role to ensure that balancing tariffs are nondiscriminatory and cost-reflective. At the same time, appropriate incentives should be
provided to balance the in-put and off-take of electricity and not to endanger the system.
Transmission system operators should facilitate participation of final customers and final
customers’ aggregators in reserve and balancing markets.

2009/72/EC recital 39 and 40
The internal market in electricity suffers from a lack of liquidity and transparency hindering
the efficient allocation of resources, risk hedging and new entry. There is a need for

EN

49

EN

enhancement of competition and security of supply through facilitated integration of new
power plants into the electricity network in all Member States, in particular encouraging new
market entrants. Trust in the market, its liquidity and the number of market participants needs
to increase, and, therefore, regulatory oversight of undertakings active in the supply of
electricity needs to be increased. Such requirements should be without prejudice to, and
compatible with, existing Community law in relation to the financial markets. Energy
regulators and financial market regulators need to cooperate in order to enable each other to
have an overview over the markets concerned.
Prior to the adoption by the Commission of Guidelines defining further the record-keeping
requirements, the Agency for the Cooperation of Energy Regulators established by Regulation
(EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009
establishing an Agency for the Cooperation of Energy Regulators (40) (the ‘Agency’), and the
Committee of European Securities Regulators (the ‘CESR’), established by Commission
Decision 2009/77/EC (41), should confer and advise the Commission in regard to their
content. The Agency and the CESR should also cooperate to investigate further and advise on
whether transactions in electricity supply contracts and electricity derivatives should be
subject to pre-or post-trade transparency requirements and, if so, what the content of those
requirements should be.

2009/72/EC recital 44
In the interests of security of supply, the balance between supply and demand in individual
Member States should be monitored, and such monitoring should be followed by a report on
the situation at Community level, taking account of interconnection capacity between areas.
Such monitoring should be carried out sufficiently early to enable appropriate measures to be
taken if security of supply is compromised. The construction and maintenance of the
necessary network infrastructure, including interconnection capacity, should contribute to
ensuring a stable electricity supply. The maintenance and construction of the necessary
network infrastructure, including interconnection capacity and decentralised electricity
generation, are important elements in ensuring a stable electricity supply.

2009/72/EC recital 58
With a view to creating an internal market in electricity, Member States should foster the
integration of their national markets and the cooperation of system operators at Community
and regional level, also incorporating isolated systems forming electricity islands that persist
in the Community.

40
41

EN

OJ L 211, 14.8.2009, p.1.
OJ L025, 29.1.2009, p.18.

50

EN

2009/72/EC Article 1 (adapted)
new
HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter and scope
This Directive establishes common rules for the generation, transmission, distribution
,
storage  and supply of electricity, together with consumer protection provisions, with a view
to improving and
creating truly integrated  integrating competitive
, consumercentered and flexible  electricity markets in the Community ⌦ Union ⌫.
Using the
advantages of an integrated market, the Directive aims at ensuring affordable energy prices
for consumers, a high degree of security of supply and a smooth transition towards a
decarbonised energy system . It lays down the key  rules relating to the organisation
and functioning of the ⌦ European ⌫ electricity sector,
in particular rules on consumer
empowerment and protection, on  open access to the
integrated  market,
on third
party access to transmission and distribution infrastructure, unbundling rules, and on
independent national energy regulators. the criteria and procedures applicable to calls for
tenders and the granting of authorisations and the operation of systems. It also lays down
universal service obligations and the rights of electricity consumers and clarifies competition
requirements.
Article 2
Definitions
For the purpose of this Directive, the following definitions apply:
1. 'customer’ means a wholesale or final customer of electricity;
82. 'wholesale customer' means a natural or legal person purchasing electricity for the purpose
of resale inside or outside the system where he is established;
93. ‘final customer’ means a customer purchasing electricity for his own use;
104. 'household customer' means a customer purchasing electricity for his own household
consumption, excluding commercial or professional activities;
115. 'non-household customer' means a natural or legal person purchasing electricity which is
not for their own household use and includes producers
industrial customers, small and
medium sized enterprises, businesses  and wholesale customers;
12. 'eligible customer’ means a customer who is free to purchase electricity from the supplier
of his choice within the meaning of Article 33;

EN

51

EN

new
6. ‘active customer’ means a customer or a group of jointly acting customers who consume,
store or sell electricity generated on their premises, including through aggregators, or
participate in demand response or energy efficiency schemes provided that these activities do
not constitute their primary commercial or professional activity;
7. 'local energy community' means: an association, a cooperative, a partnership, a non-profit
organisation or other legal entity which is effectively controlled by local shareholders or
members, generally value rather than profit-driven, involved in distributed generation and in
performing activities of a distribution system operator, supplier or aggregator at local level,
including across borders;

2009/72/EC
198. 'supply' means the sale, including resale, of electricity to customers;
329. ‘electricity supply contract’ means a contract for the supply of electricity, but does not
include an electricity derivative;
3310. ‘electricity derivative’ means a financial instrument specified in points 5, 6 or 7 of
Section C of Annex I to Directive 2004/39/EC of the European Parliament and of the Council
of 21 April 2004 on markets in financial instruments42, where that instrument relates to
electricity;

new
11. ‘dynamic electricity price contract’ means an electricity supply contract between a
supplier and a final customer that reflects the price at the spot market or at the day ahead
market at intervals at least equal to the market settlement frequency;
12. 'contract termination fee‘ means any charge or penalty imposed on customers by suppliers
or aggregators for withdrawing from an electricity supply or service contract;
13. 'switching related fee' means any charge or penalty imposed on customers by suppliers or
system operators directly or indirectly for changing suppliers, including contract termination
fees;
14. ‘aggregator’ means a market participant that combines multiple customer loads or
generated electricity for sale, for purchase or auction in any organised energy market;
15. 'independent aggregator' means an aggregator that is not affiliated to a supplier or any
other market participant;
16. 'demand response' means the change of electricity load by final customers from their
normal or current consumption patterns in response to market signals, including time-variable
electricity prices or incentive payments, or in response to acceptance of the final customer's

42

EN

Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in
financial instruments (OJ L 145, 30.4.2004, p. 1).

52

EN

bid, alone or through aggregation, to sell demand reduction or increase at a price in organised
markets as defined in Commission Implementing Regulation (EU) No 1348/201443;
17. ‘conventional meter’ means an analogue meter or an electronic meter with no capability to
both transmit and receive data;
18. ‘smart metering system’ means an electronic system that can measure energy
consumption, providing more information than a conventional meter, and can transmit and
receive data for information, monitoring and control purposes, using a form of electronic
communication;
19. ‘interoperability’ means, in the context of smart metering, the ability of two or more
energy or communication networks, systems, devices, applications or components to
interwork, to exchange and use information in order to perform required functions;
20. ‘near-real time’ means, in the context of smart metering, the time, usually down to
seconds, that elapses between data recording and their automated processing and transmission
for use or information purposes;
21. ‘best available techniques’ means, in the context of data protection and security in a smart
metering environment, the most effective and advanced stage in the development of activities
and their methods of operation, which indicates the practical suitability of particular
techniques, designed to prevent or mitigate risks on privacy, personal data and security, for
providing in principle the basis for complying with the Union data protection framework;

2009/72/EC
new
522. 'distribution' means the transport of electricity on high-voltage, medium-voltage and lowvoltage distribution systems with a view to its delivery to customers, but does not include
supply;
623. 'distribution system operator' means a natural or legal person responsible for operating,
ensuring the maintenance of and, if necessary, developing the distribution system in a given
area and, where applicable, its interconnections with other systems and for ensuring the longterm ability of the system to meet reasonable demands for the distribution of electricity;
2924. ‘energy efficiency /demand-side management’ means
the ratio of output of
performance, service, goods or energy, to input of energy  a global or integrated approach
aimed at influencing the amount and timing of electricity consumption in order to reduce
primary energy consumption and peak loads by giving precedence to investments in energy
efficiency measures, or other measures, such as interruptible supply contracts, over
investments to increase generation capacity, if the former are the most effective and
economical option, taking into account the positive environmental impact of reduced energy
consumption and the security of supply and distribution cost aspects related to it;
3025. ‘ energy from  renewable energy sources’ means energy from  renewable nonfossil energy sources
, in particular  (wind, solar
(solar thermal and solar
photovoltaic)  , geothermal energy, ambient heat, hydropower and tide, ocean , wave
43

EN

Commission Implementing Regulation (EU) No 1348/2014 of 17 December 2014 on data reporting
implementing Article 8(2) and Article 8(6) of Regulation (EU) No 1227/2011 of the European
Parliament and the Council on wholesale energy market integrity and transparency (OJ L 363,
18.12.2014, p. 121).

53

EN

energy , and combustible renewables: biofuels, bioliquids, biogas, solid biofuels and
combustible wastes of renewable origin , tidal, hydropower, biomass, landfill gas, sewage
treatment plant gas and biogases);
3126. ‘distributed generation’ means generation plants connected to the distribution system;

new
27. 'recharging point' means an interface that is capable of charging one electric vehicle at a
time or exchanging a battery of one electric vehicle at a time;

2009/72/EC (adapted)
new
328. 'transmission' means the transport of electricity on the extra high-voltage and highvoltage interconnected system with a view to its delivery to final customers or to distributors,
but does not include supply;
429. 'transmission system operator' means a natural or legal person responsible for operating,
ensuring the maintenance of and, if necessary, developing the transmission system in a given
area and, where applicable, its interconnections with other systems, and for ensuring the longterm ability of the system to meet reasonable demands for the transmission of electricity;
1830. 'system user' means a natural or legal person supplying to, or being supplied by, a
transmission or distribution system;
131. 'generation' means the production of electricity;
232. 'producer' means a natural or legal person generating electricity;
1333. 'interconnector' means a transmission line which crosses or spans a border between
bidding zones, between Member States or, up to the border of EU jurisdiction, between
Member States and third countries  equipment used to link electricity systems;
1434. ‘interconnected system’ means a number of transmission and distribution systems
linked together by means of one or more interconnectors;
1535. ‘direct line’ means either an electricity line linking an isolated generation site with an
isolated customer or an electricity line linking an electricity producer and an electricity supply
undertaking to supply directly their own premises, subsidiaries and eligible customers;
25. ‘long-term planning’ means the planning of the need for investment in generation and
transmission and distribution capacity on a long-term basis, with a view to meeting the
demand of the system for electricity and securing supplies to customers;
2636. ‘small isolated system’ means any system with consumption of less than 3 000 GWh in
the year 1996, where less than 5 % of annual consumption is obtained through interconnection
with other systems;
2737. ‘micro isolated system’ means any system with consumption less than 500 GWh in the
year 1996, where there is no connection with other systems;
16. ‘economic precedence’ means the ranking of sources of electricity supply in accordance
with economic criteria;

EN

54

EN

1738. ‘ancillary service’ means a service necessary for the operation of a transmission or
distribution system
including balancing and non-frequency ancillary services but not
congestion management  ;

new
39. 'non-frequency ancillary service' means a service used by a transmission or distribution
system operator for steady state voltage control, fast reactive current injections, inertia and
black start capability;
40. 'regional operational centre' means the regional operational centre as defined in Article 32
of the [recast of Regulation 714/2009 as proposed by COM(2016)861/2].

2009/72/EC
2041. 'integrated electricity undertaking' means a vertically or horizontally integrated
undertaking;
2142. 'vertically integrated undertaking' means an electricity undertaking or a group of
electricity undertakings where the same person or the same persons are entitled, directly or
indirectly, to exercise control, and where the undertaking or group of undertakings perform at
least one of the functions of transmission or distribution, and at least one of the functions of
generation or supply of electricity;
2243. 'related undertaking' means affiliated undertakings, within the meaning of Article 2(12)
of Directive 2013/34/EU of the European Parliament and of the Council44 41 of the Seventh
Council Directive 83/349/EEC of 13 June 1983 based on Article 44(2)(g) (13) of the Treaty
on consolidated accounts (14), and/or associated undertakings, within the meaning of
Article 33(1) of that Directive, and/or undertakings which belong to the same shareholders;
2344. 'horizontally integrated undertaking' means an undertaking performing at least one of
the functions of generation for sale, or transmission, or distribution, or supply of electricity,
and another non-electricity activity;
3445. 'control' means rights, contracts or any other means which, either separately or in
combination and having regard to the considerations of fact or law involved, confer the
possibility of exercising decisive influence on an undertaking, in particular by:
(1)

ownership or the right to use all or part of the assets of an undertaking;

(2)

rights or contracts which confer decisive influence on the composition, voting
or decisions of the organs of an undertaking;

3546. 'electricity undertaking' means any natural or legal person carrying out at least one of
the following functions: generation, transmission, distribution, supply, or purchase of
electricity, which is responsible for the commercial, technical or maintenance tasks related to
those functions, but does not include final customers;
44

EN

Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual
financial statements, consolidated financial statements and related reports of certain types of
undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and
repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).

55

EN

24. 'tendering procedure' means the procedure through which planned additional requirements
and replacement capacity are covered by supplies from new or existing generating capacity;
2847. ‘security’ means both security of supply and provision of electricity, and technical
safety;

new
48. 'energy storage' means, in the electricity system, deferring an amount of the electricity that
was generated to the moment of use, either as final energy or converted into another energy
carrier.
49. 'balancing responsible party' means market participants financially responsible for
imbalances who have not delegated their responsibility pursuant to Article 4(1) [recast of
Regulation 714/2009 as proposed by COM(2016)861/2].

2009/72/EC

CHAPTER II
GENERAL RULES FOR THE ORGANISATION OF THE
SECTOR

new
Article 3
Competitive, consumer-centered, flexible and non-discriminatory electricity market
1.

Member States shall ensure that their national legislation does not unduly hamper
cross-border flows of electricity, consumer participation including through demand–
side response, investments into flexible energy generation, energy storage, the
deployment of electro-mobility or new interconnectors, and that electricity prices
reflect actual demand and supply.

2.

Members States shall ensure that no undue barriers exist for market entry and market
exit of electricity generation and electricity supply undertakings.

2009/72/EC Article 33
new
Article 433
Free choice of electricity supplier
3.

EN

Member States shall ensure that all customers are free to purchase electricity from
the supplier of their choice.

56

EN

until 1 July 2004, the eligible customers as specified in Article 19(1) to (3) of Directive
96/92/EC. Member States shall publish by 31 January each year the criteria for the definition
of those eligible customers;
from 1 July 2004, all non-household customers;
from 1 July 2007, all customers.
To avoid imbalance in the opening of electricity markets:
contracts for the supply of electricity with an eligible customer in the system of another
Member State shall not be prohibited if the customer is considered as eligible in both systems
involved; and
where transactions as described in point (a) are refused because the customer is eligible in
only one of the two systems, the Commission may, taking into account the situation in the
market and the common interest, oblige the refusing party to execute the requested supply at
the request of the Member State where the eligible customer is located.

new
Article 5
Market based supply prices
1.

Electricity suppliers shall be free to determine the price at which they supply
electricity to customers. Member States shall take appropriate actions to ensure
effective competition between electricity suppliers.

2.

Member States shall ensure the protection of energy poor or vulnerable customers in
a targeted manner by other means than public interventions in the price-setting for
the supply of electricity.

3.

By way of derogation from paragraphs 1 and 2, Member States who apply public
interventions in price setting for the supply of electricity for energy poor or
vulnerable household customers at the date of entry into force of this Directive may
continue to apply such public interventions during five years from the entry into
force of this Directive. Such public interventions shall pursue a general economic
interest, be clearly defined, transparent, non-discriminatory, verifiable and guarantee
equal access for Union electricity companies to customers. The interventions shall
not go beyond what is necessary to achieve the general economic interest which they
pursue, be limited in time and proportionate as regards their beneficiaries.

4.

After the period referred to in paragraph 3, Member States may still apply public
interventions in the price-setting for the supply of electricity for vulnerable
household customers in so far as it is strictly necessary for reasons of extreme
urgency. Such interventions shall comply with the conditions set out in paragraph 3.
Member States shall notify the measures taken in accordance with the first
subparagraph to the Commission within one month after adoption and may apply
them immediately. The notification shall be accompanied by an explanation why
other instruments could not sufficiently address the situation and how the
beneficiaries and the duration of the measure have been determined. The notification
shall be considered as complete if, within two months from its receipt, or from the
receipt of any additional information requested, the Commission does not request
any further information.

EN

57

EN

The Commission may take a decision asking the national authorities to amend or
withdraw the measures within two months from receipt of a complete notification
where it considers that the requirements set out in the first subparagraph are not
fulfilled. The decision-making period can be extended with the consent of both the
Commission and the Member State concerned.
The public intervention applied on the basis of this paragraph shall be deemed valid
as long as the Commission has not taken a Decision asking the national authorities to
amend or withdraw the measure.

2009/72/EC (adapted)
new
Article 632
Third-party access
1.

Member States shall ensure the implementation of a system of third party access to
the transmission and distribution systems based on published tariffs, applicable to all
eligible customers and applied objectively and without discrimination between
system users. Member States shall ensure that those tariffs, or the methodologies
underlying their calculation, are approved prior to their entry into force in accordance
with Article 59 37 and that those tariffs, and the methodologies — where only
methodologies are approved — are published prior to their entry into force.

2.

The transmission or distribution system operator may refuse access where it lacks the
necessary capacity. Duly substantiated reasons must ⌦ shall ⌫ be given for such
refusal, in particular having regard to Article 3 9, and based on objective and
technically and economically justified criteria. Member States or, where Member
States have so provided, the regulatory authorities shall ensure that those criteria are
consistently applied and that the system user who has been refused access can make
use of a dispute settlement procedure. The regulatory authorities shall also ensure,
where appropriate and when refusal of access takes place, that the transmission or
distribution system operator provides relevant information on measures that would
be necessary to reinforce the network. Such information shall be provided in all
cases when access for recharging points was denied.  The party requesting such
information may be charged a reasonable fee reflecting the cost of providing such
information.
Article 734
Direct lines

EN

1.

Member States shall take the measures necessary to enable:

(a)

all electricity producers and electricity supply undertakings established within their
territory to supply their own premises, subsidiaries and eligible customers through a
direct line; and

(b)

all eligible customers within their territory to be supplied through a direct line by a
producer and supply undertakings.

58

EN

2.

Member States shall lay down the criteria for the grant of authorisations for the
construction of direct lines in their territory. Those criteria shall be objective and
non-discriminatory.

3.

The possibility of supplying electricity through a direct line as referred to in
paragraph 1 of this Article shall not affect the possibility of contracting electricity in
accordance with Article 7 32.

4.

Member States may issue an authorisation to construct a direct line subject either to
the refusal of system access on the basis, as appropriate, of Article 7 32 or to the
opening of a dispute settlement procedure under Article 60 37.

5.

Member States may refuse to authorise a direct line if the granting of such an
authorisation would obstruct ⌦ application of ⌫ the ⌦ provisions on public
service obligations pursuant to ⌫ of Article 9 3. Duly substantiated reasons shall be
given for such refusal.
Article 87
Authorisation procedure for new capacity

1.

For the construction of new generating capacity, Member States shall adopt an
authorisation procedure, which shall be conducted in accordance with objective,
transparent and non-discriminatory criteria.

2.

Member States shall lay down the criteria for the grant of authorisations for the
construction of generating capacity in their territory. In determining appropriate
criteria, Member States shall consider:

(a)

the safety and security of the electricity system, installations and associated
equipment;

(b)

the protection of public health and safety;

(c)

the protection of the environment;

(d)

land use and siting;

(e)

the use of public ground;

(f)

energy efficiency;

(g)

the nature of the primary sources;

(h)

the characteristics particular to the applicant, such as technical, economic and
financial capabilities;

(i)

the contribution of the generating capacity to meeting the overall Community
⌦ Union ⌫ target of at least a 20 % share of energy from renewable sources in the
Community ⌦ Union ⌫ ’s gross final consumption of energy in 2020 referred to
in Article 3(1) of Directive 2009/28/EC of the European Parliament and of the
Council of 23 April 2009 on the promotion of the use of energy from renewable
sources45; and

(j)

(k) the contribution of generating capacity to reducing emissions.

45

EN

Directive 2009/28/EC of the European Parliament and the Council of 23 April 2009 on the promotion
of the use of energy sources (OJ L 140, 5.6.2009, p. 16).

59

EN

3.

Member States shall ensure that specific authorisation procedures exist for small
decentralised and/or distributed generation, which take into account their limited size
and potential impact.
Member States may set guidelines for that specific authorisation procedure. National
regulatory authorities or other competent national authorities including planning
authorities shall review those guidelines and may recommend amendments thereto.
Where Member States have established particular land use permit procedures
applying to major new infrastructure projects in generation capacity, Member States
shall, where appropriate, include the construction of new generation capacity within
the scope of those procedures and shall implement them in a non-discriminatory
manner and within an appropriate time-frame.

4.

The authorisation procedures and criteria shall be made public. Applicants shall be
informed of the reasons for any refusal to grant an authorisation. Those reasons shall
be objective, non-discriminatory, well-founded and duly substantiated. Appeal
procedures shall be made available to the applicant.

new
Article 9
Public service obligations

2009/72/EC Article 3.1
1.

Member States shall ensure, on the basis of their institutional organisation and with
due regard to the principle of subsidiarity, that, without prejudice to paragraph 2,
electricity undertakings are operated in accordance with the principles of this
Directive with a view to achieving a competitive, secure and environmentally
sustainable market in electricity, and shall not discriminate between those
undertakings as regards either rights or obligations.

2009/72/EC (adapted) Article
3.2
new
2.

EN

Having full regard to the relevant provisions of the Treaty, in particular Article 86
⌦ 106 ⌫ thereof, Member States may impose on undertakings operating in the
electricity sector, in the general economic interest, public service obligations which
may relate to security, including security of supply, regularity, quality and price of
supplies and environmental protection, including energy efficiency, energy from
renewable sources and climate protection. Such obligations shall be clearly defined,
transparent, non-discriminatory, verifiable and shall guarantee equality of access for
electricity undertakings of the Community ⌦ Union ⌫ to national consumers. In
relation to security of supply, energy efficiency/demand-side management and for
the fulfilment of environmental goals and goals for energy from renewable sources,
as referred to in this paragraph, Member States may introduce the implementation of

60

EN

long-term planning, taking into account the possibility of third parties seeking access
to the system.
Public service obligations which concern the price setting for the
supply of electricity shall comply with the requirements set out in Article 5. 

2009/72/EC (adapted) Article
3.6
3.

6Where financial compensation, other forms of compensation and exclusive rights
which a Member State grants for the fulfilment of the obligations set out in
paragraphs 2 and 3 ⌦ 2 or for the provision of universal service as set out in Article
27 ⌫ are provided, this shall be done in a non-discriminatory and transparent way.

2009/72/EC Article 15
4.

15. Member States shall, upon implementation of this Directive, inform the
Commission of all measures adopted to fulfil universal service and public service
obligations, including consumer protection and environmental protection, and their
possible effect on national and international competition, whether or not such
measures require a derogation from this Directive. They shall inform the
Commission subsequently every two years of any changes to such measures, whether
or not they require a derogation from this Directive.

2009/72/EC (adapted) Article
3.14
5.

EN

Member States may decide not to apply the provisions of Articles 6, 7 and 8 7, 8, 32
and/or 34 insofar as their application would obstruct the performance, in law or in
fact, of the obligations imposed on electricity undertakings in the general economic
interest and insofar as the development of trade would not be affected to such an
extent as would be contrary to the interests of the ⌦ Union ⌫ Community. The
interests of the Community ⌦ Union ⌫ include, inter alia, competition with regard
to eligible customers in accordance with this Directive and Article 86 ⌦ 106 ⌫ of
the Treaty.

61

EN

2009/72/EC

CHAPTER III
GENERATION

2009/72/EC
Article 8
Tendering for new capacity
1.

Member States shall ensure the possibility, in the interests of security of supply, of
providing for new capacity or energy efficiency/demand-side management measures
through a tendering procedure or any procedure equivalent in terms of transparency
and non-discrimination, on the basis of published criteria. Those procedures may,
however, be launched only where, on the basis of the authorisation procedure, the
generating capacity to be built or the energy efficiency/demand-side management
measures to be taken are insufficient to ensure security of supply.

2.

Member States may ensure the possibility, in the interests of environmental
protection and the promotion of infant new technologies, of tendering for new
capacity on the basis of published criteria. Such tendering may relate to new capacity
or to energy efficiency/demand-side management measures. A tendering procedure
may, however, be launched only where, on the basis of the authorisation procedure
the generating capacity to be built or the measures to be taken, are insufficient to
achieve those objectives.

3.

Details of the tendering procedure for means of generating capacity and energy
efficiency/demand-side management measures shall be published in the Official
Journal of the European Union at least six months prior to the closing date for
tenders.
The tender specifications shall be made available to any interested undertaking
established in the territory of a Member State so that it has sufficient time in which to
submit a tender.
With a view to ensuring transparency and non-discrimination, the tender
specifications shall contain a detailed description of the contract specifications and of
the procedure to be followed by all tenderers and an exhaustive list of criteria
governing the selection of tenderers and the award of the contract, including
incentives, such as subsidies, which are covered by the tender. Those specifications
may also relate to the fields referred to in Article 7(2).

EN

4.

In invitations to tender for the requisite generating capacity, consideration must also
be given to electricity supply offers with long-term guarantees from existing
generating units, provided that additional requirements can be met in this way.

5.

Member States shall designate an authority or a public or private body independent
from electricity generation, transmission, distribution and supply activities, which
may be a regulatory authority referred to in Article 35(1), to be responsible for the

62

EN

organisation, monitoring and control of the tendering procedure referred to in
paragraphs 1 to 4 of this Article. Where a transmission system operator is fully
independent from other activities not relating to the transmission system in
ownership terms, the transmission system operator may be designated as the body
responsible for organising, monitoring and controlling the tendering procedure. That
authority or body shall take all necessary steps to ensure confidentiality of the
information contained in the tenders.

new

CHAPTER III
CONSUMER EMPOWERMENT AND PROTECTION

2009/72/EC (adapted)
Article 103
⌦Basic contractual rights⌫
1.

4. Member States shall ensure that all customers are entitled to have their electricity
provided by a supplier, subject to the supplier’s agreement, regardless of the Member
State in which the supplier is registered, as long as the supplier follows the applicable
trading and balancing rules. In this regard, Member States shall take all measures
necessary to ensure that administrative procedures do not discriminate against supply
undertakings already registered in another Member State.

5. Member States shall ensure that:
(a)

Where a customer, while respecting contractual conditions wishes to change
supplier, the change is effected by the operator(s) concerned within three
weeks; and

(b)

Customers are entitled to receive all relevant consumption data.

Member States shall ensure that the rights referred to in points (a) and (b) are granted to
customers in a non-discriminatory manner as regards cost, effort or time.

2009/72/EC
(adapted)
new
2.

46

EN

Annex

I.1

1.Without prejudice to ⌦ Union ⌫ Community rules on consumer protection, in
particular Directive 97/7/EC of the European Parliament and of the Council of 20
May 1997 on the protection of consumers in respect of distance contracts
Directive 2011/83/EU of the European Parliament and of the Council46  and
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer

OJ L 304, 22.11.2011, p. 64–88

63

EN

contracts(47), Member States shall ensure the measures referred to in Article 3 are to
ensure that customers:
(a)

have a right to a contract with their electricity service provider that specifies:

–

the identity and address of the supplier,

–

the services provided, the service quality levels offered, as well as the time for the
initial connection,

–

the types of maintenance service offered,

–

the means by which up-to-date information on all applicable tariffs and maintenance
charges may be obtained,

–

the duration of the contract, the conditions for renewal and termination of services
and of the contract and whether withdrawal from the contract without charge is
permitted,

–

any compensation and the refund arrangements which apply if contracted service
quality levels are not met, including inaccurate and delayed billing,

–

the method of initiating procedures for settlement of disputes in accordance with
Article 26 point (f),

–

information relating to consumer rights, including on the complaint handling and all
of the information referred to in this point, clearly communicated through billing or
the electricity undertaking’s web site.
Conditions shall be fair and well-known in advance. In any case, this information
should be provided prior to the conclusion or confirmation of the contract. Where
contracts are concluded through intermediaries, the information relating to the
matters set out in this point shall also be provided prior to the conclusion of the
contract;

(b)

are given adequate notice of any intention to modify contractual conditions and are
informed about their right of withdrawal
to dissolve the contract  when the
notice is given. Service providers
Suppliers  shall notify their subscribers
customers  directly of any increase
adjustment  in charges
the supply
price as well as of the reasons and preconditions for the adjustment and its scope ,
at an appropriate time no later than one normal billing period after the increase
before the adjustment  comes into effect in a transparent and comprehensible
manner. Member States shall ensure that customers are free to withdraw from
contracts if they do not accept the new contractual  conditions or adjustments
in the supply price  notified to them by their electricity
supplier  service
provider;

(c)

receive transparent information on applicable prices and tariffs and on standard terms
and conditions, in respect of access to and use of electricity services;

(d)

are offered a wide choice of payment methods, which do not unduly discriminate
between customers. Prepayment systems shall be fair and adequately reflect likely
consumption. Any difference in charges related to payment methods shall reflect
the relevant costs incurred by the supplier  terms and conditions shall reflect the
costs to the supplier of the different payment systems.

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EN

OJ L 95, 21.4.1993, p. 29–34

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(e)

Prepayment systems shall
are not placed at an excessive disadvantage in
comparison to the average market price by the prepayment systems. 

(f)

are offered fair and transparent  general terms and conditions shall be fair and
transparent. They general terms and conditions  shall be given in clear and
comprehensible language and shall not include non-contractual barriers to the
exercise of customers’ rights, for example excessive contractual documentation.
Customers shall be protected against unfair or misleading selling methods;
(e) are not charged for changing supplier;

(g)

(f) benefit from transparent, simple and inexpensive procedures for dealing with their
complaints. In particular, all consumers shall have the right to a good standard of
service and complaint handling by their electricity service provider. Such out-ofcourt dispute settlements procedures shall enable disputes to be settled fairly and
promptly, preferably within three months, with provision, where warranted, for a
system of reimbursement and/or compensation. They should, wherever possible, be
in line with the principles set out in Commission Recommendation 98/257/EC of
30 March 1998 on the principles applicable to the bodies responsible for out-of-court
settlement of consumer disputes (3); have the right to a good standard of service
and complaint handling by their electricity service provider. Electricity service
providers shall handle complaints in a simple, fair and prompt manner. 

(h)

when having access to universal service under the provisions adopted by Member
States pursuant to Article 27 3(3), are informed about their rights regarding universal
service;
h) have at their disposal their consumption data, and shall be able to, by explicit
agreement and free of charge, give any registered supply undertaking access to its
metering data. The party responsible for data management shall be obliged to give
those data to the undertaking. Member States shall define a format for the data and a
procedure for suppliers and consumers to have access to the data. No additional costs
shall be charged to the consumer for that service;
(i) are properly informed of actual electricity consumption and costs frequently
enough to enable them to regulate their own electricity consumption. That
information shall be given by using a sufficient time frame, which takes account of
the capability of customer’s metering equipment and the electricity product in
question. Due account shall be taken of the cost-efficiency of such measures. No
additional costs shall be charged to the consumer for that service;

(i)

are given adequate information on alternatives to disconnection sufficiently in
advance before the planned disconnection. These alternatives may refer to sources of
support to avoid disconnection, alternative payment plans, debt management advice
or disconnection moratorium and should not constitute an extra cost to customers.

(j)

(j) receive a final closure account following any change of electricity supplier no
later than six weeks after the change of supplier has taken place.

new
Article 11
Entitlement to a dynamic price contract

EN

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EN

1.

Member States shall ensure that every final customer is entitled, on request, to a
dynamic electricity price contract by his supplier.

2.

Member States shall ensure that final customers are fully informed by the suppliers
of the opportunities and risks of such dynamic electricity price contract.

3.

Member States, through their National Regulatory Authorities, shall monitor and
report annually, for at least a ten-year period after such contracts become available,
on the main developments of such contracts including market offers, the impact on
consumers' bills and specifically the level of price volatility, and on consumers'
sensitivity to the level of financial risk.
Article 12
Right to switch supplier and rules on switching-related fees

1.

Member States shall ensure that a customer wishing to change supplier, while
respecting contractual conditions, is entitled to such change within three weeks.

2.

Member States shall ensure that customers are not charged any switching-related
fees.

3.

By way of derogation from paragraph 2, Member States may choose to permit
suppliers to charge contract termination fees to customers willingly terminating fixed
term supply contracts before their maturity. Such fees may only be charged if
customers receive a demonstrable advantage from these contracts. In addition, such
fees shall not exceed the direct economic loss to the supplier of the customer
terminating the contract, including the cost of any bundled investments or services
already provided to the customer as part of the contract.

4.

Member States shall ensure that the right to switch suppliers is granted to customers
in a non-discriminatory manner as regards cost, effort or time.

Article 13
Contract with an aggregator

EN

1.

Member States shall ensure that, where a final customer wishes to conclude a
contract with an aggregator, such engagement shall not require the consent of the
final customer's supplier.

2.

Member States shall ensure that a final customer wishing to terminate the contract
with an aggregator, while respecting contractual conditions, is entitled to such
termination within three weeks.

3.

Member States shall ensure that final customers terminating a fixed term contract
with an aggregator before its maturity are not charged any termination fee that
exceeds the direct economic loss to the aggregator, including the cost of any bundled
investments or services already provided to the final customer as part of the contract.

4.

Member States shall ensure that final customers are entitled to receive all relevant
demand response data or data on supplied and sold electricity at least once per year.

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EN

5.

Member States shall ensure that the rights referred to in paragraphs 1, 2, 3 and 4 are
granted to final customers in a non-discriminatory manner as regards cost, effort or
time.
Article 14
Comparison tools

1.

Member States shall ensure that customers have access, free of charge, to at least one
tool comparing the offers of suppliers that meets the certification criteria set out in
Annex I. The comparison tools may be operated by any entity, including private
companies and public authorities or bodies. Customers should be informed of the
availability of such tools.

2.

Member States shall appoint an independent competent authority responsible for
certifying comparison tools and ensuring that certified comparison tools continue to
meet the criteria set out in Annex I.

3.

Member States may require the comparison tools referred to in paragraph 1 to
include comparative determinants relating to the nature of the services offered by the
suppliers.

4.

Any tool comparing the offers of suppliers shall be eligible to apply for certification
in accordance with this Article on a voluntary and non-discriminatory basis.
Article 15
Active customers

1.

Member States shall ensure that final customers:

(a)

are entitled to generate, store, consume and sell self-generated electricity in all
organised markets either individually or through aggregators without being subject to
disproportionately burdensome procedures and charges that are not cost reflective;

(b)

are subject to cost reflective, transparent and non-discriminatory network charges,
accounting separately for the electricity fed into the grid and the electricity consumed
from the grid, in line with Article 59.

1.1.

The energy installation required for the activities of the active customer may be
managed by a third party for installation, operation, including metering and
maintenance.
Article 16
Local energy communities

EN

1.

Member States shall ensure that local energy communities:

(a)

are entitled to own, establish, or lease community networks and to autonomously
manage them;

(b)

can access all organised markets either directly or through aggregators or suppliers in
a non-discriminatory manner;

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EN

(c)

benefit from a non-discriminatory treatment with regard to their activities, rights and
obligations as final customers, generators, distribution system operators or
aggregators;

(d)

are subject to fair, proportionate and transparent procedures and cost reflective
charges;

(e)

where relevant, may conclude agreements with the distribution system operator to
which their network is connected on the operation of the community network

2.

Member States shall provide an enabling regulatory framework that ensures that:

(a)

participation in a local energy community is voluntary;

(b)

shareholders or members of a local energy community shall not lose their rights as
household customers or active customers;

(c)

shareholders or members are allowed to leave a local energy community; in such
cases Article 12 shall apply;

(d)

Article 8 paragraph 3 applies to generating capacity installed by local energy
communities as long as such capacity can be considered small decentralised or
distributed generation;

(e)

provisions of Chapter IV apply to local energy communities that perform activities of
a distribution system operator;

(f)

where relevant, a local energy community may conclude an agreement with a
distribution system operator to which their network is connected on the operation of
the local energy community's network;

(g)

where relevant system users that are not shareholders or members of the local energy
community connected to the distribution network operated by a local energy
community shall be subject to fair and cost-reflective network charges. If such
system users and local energy communities cannot reach an agreement on network
charges, both parties may request the regulatory authority to determine the level of
network charges in a relevant decision;

(h)

where relevant local energy communities are subject to appropriate network charges
at the connection points between the community network and the distribution
network outside the energy community. Such network charges shall account
separately for the electricity fed into distribution network and the electricity
consumed from the distribution network outside the local energy community in line
with Article 59 paragraph 8.
Article 17
Demand response

EN

1.

Member States shall ensure that national regulatory authorities encourage final
customers, including those offering demand response through aggregators, to
participate alongside generators in a non-discriminatory manner in all organised
markets.

2.

Member States shall ensure that transmission system operators and distribution
system operators when procuring ancillary services, treat demand response providers,
including independent aggregators, in a non-discriminatory manner, on the basis of
their technical capabilities.

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EN

3.

Member States shall ensure that their regulatory framework encourages the
participation of aggregators in the retail market and that it contains at least the
following elements:

(a)

the right for each aggregator to enter the market without consent from other market
participants;

(b)

transparent rules clearly assigning roles and responsibilities to all market
participants;

(c)

transparent rules and procedures for data exchange between market participants that
ensure easy access to data on equal and non-discriminatory terms while fully
protecting commercial data;

(d)

aggregators shall not be required to pay compensation to suppliers or generators;

(e)

a conflict resolution mechanism between market participants.

4.

In order to ensure that balancing costs and benefits induced by aggregators are fairly
assigned to market participants, Member States may exceptionally allow
compensation payments between aggregators and balancing responsible parties. Such
compensation payments must be limited to situations where one market participant
induces imbalances to another market participant resulting in a financial cost.
Such exceptional compensation payments shall be subject to approval by the national
regulatory authorities and monitored by the Agency.

5.

Member States shall ensure access to and foster participation of demand response,
including through independent aggregators in all organised markets. Member States
shall ensure that national regulatory authorities or, where their national legal system
so requires, transmission system operators and distribution system operators in close
cooperation with demand service providers and final customers define technical
modalities for participation of demand response in these markets on the basis of the
technical requirements of these markets and the capabilities of demand response.
Such specifications shall include the participation of aggregators.

Article 18
Billing and billing information
1.

Member States shall ensure that bills fulfil the minimum requirements for billing and
billing information as set out in Annex II. The information contained in bills shall be
correct, clear, concise and presented in a manner that facilitates comparison by
consumers.

2.

Member States ensure that final customers receive all their bills and billing
information for energy consumption free of charge and that bills are clear, accurate
and easy to understand.

3.

Billing shall take place on the basis of actual consumption at least once a year.
Billing information shall be made available at least once every three months, upon
request or where the final customers have opted to receive electronic billing or else
twice a year.
This obligation may be fulfilled by a system of regular self-reading by the final
customers whereby they communicate readings from their meter to the supplier.

EN

69

EN

Only when the final customer has not been provided a meter reading for a given
billing interval may billing be based on estimated consumption or a flat rate.
4.

Where final customers have meters that allow remote reading by the operator,
accurate billing information based on actual consumption shall be provided at least
once a month.

5.

Member States shall require that, to the extent that information on the energy billing
and historical consumption is available, it is made available, at the request of the
final customer, to a supplier or service provider designated by the consumer in
accordance with point 3 of Annex II.

6.

Member States shall ensure that final customers are offered the option of electronic
billing information and bills and that they receive, on request, a clear and
understandable explanation of how their bill was derived, especially where bills are
not based on actual consumption.

7.

Member States may lay down that, at the request of the final customers, the
information contained in these bills shall not be considered to constitute a request for
payment. In such cases, Member States shall ensure that suppliers offer flexible
arrangements for payments.

8.

Member States shall require that information and estimates for energy costs are
provided to final customers on demand in a timely manner and in an easily
understandable format.

2009/72/EC (adapted) Article
3.10
10. Member States shall implement measures to achieve the objectives of social and economic
cohesion and environmental protection, which shall include energy efficiency/demand-side
management measures and means to combat climate change, and security of supply, where
appropriate. Such measures may include, in particular, the provision of adequate economic
incentives, using, where appropriate, all existing national and Community tools, for the
maintenance and construction of the necessary network infrastructure, including
interconnection capacity.

2009/72/EC (adapted)
new
Article 319
⌦ Smart metering ⌫
1.

EN

10 In order to promote energy efficiency
and empower customers  , Member
States or, where a Member State has so provided, the regulatory authority shall
strongly recommend that electricity undertakings and aggregators  optimise the
use of electricity, for example inter alia by providing energy management services,
developing innovative pricing formulas, or introducing interoperable  intelligent
smart  metering systems or smart grids, where appropriate.

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EN

new
2.

Member States shall ensure the implementation of smart metering systems in their
territories that shall assist the active participation of customers in the electricity
market. Such implementation may be subject to a cost-benefit assessment which
shall be undertaken according to the principles laid down in Annex III.

3.

Member States that proceed with deployment shall adopt and publish the minimum
functional and technical requirements for the smart metering systems to be rolled out
in their territories in line with the provisions laid down in Article 20 and Annex III.
Member States shall ensure the interoperability of these smart metering systems as
well as their connectivity with consumer energy management platforms. To this
respect, Member States shall have due regard to the use of relevant available
standards including those enabling interoperability, best practices and the importance
of the development of the internal market in electricity.

4.

Member States that proceed with smart metering deployment shall ensure that final
customers contribute to the associated costs of the roll-out in a transparent and nondiscriminatory manner. Member States shall regularly monitor this deployment in
their territories to track the evolution of costs and benefits for the whole value chain,
including the delivery of net benefits to consumers.

5.

When the deployment of smart metering is negatively assessed as a result of costbenefit assessment referred to in paragraph 2, Member States shall ensure that this
assessment is revised periodically in response to changes in the underlying
assumptions and to technology and market developments. Member States shall notify
to the responsible Commission services the outcome of their updated economic
assessment as it becomes available.

new
Article 20
Smart metering functionalities
Where smart metering is positively assessed as a result of cost-benefit assessment referred to
in Article 19(2), or systematically rolled out, Member States shall implement smart metering
systems in accordance with European standards, the provisions in Annex III, and in line with
the following principles:

EN

(a)

the metering systems accurately measure actual electricity consumption and provide
to final customers information on actual time of use. That information shall be made
easily available and visualised to final customers at no additional cost and at nearreal time in order to support automated energy efficiency programmes, demand
response and other services;

(b)

the security of the smart metering systems and data communication is ensured in
compliance with relevant European Union security legislation having due regard of
the best available techniques for ensuring the highest level of cybersecurity
protection;

71

EN

(c)

the privacy and data protection of final customers is ensured in compliance with
relevant Union data protection and privacy legislation;

(d)

meter operators shall ensure that the meter or meters of active customers who selfgenerate electricity can account for electricity put into the grid from the active
customers' premises;

(e)

if final customers request it, metering data on their electricity input and off-take shall
be made available to them, via a local standardised communication interface and/or
remote access, or to a third party acting on their behalf, in an easily understandable
format as provided for in Article 24, allowing them to compare deals on a like-forlike basis;

(f)

appropriate advice and information shall be given to final customers at the time of
installation of smart meters, in particular about their full potential with regard to
meter reading management and the monitoring of energy consumption, and on the
collection and processing of personal data in accordance with the applicable Union
data protection legislation;

(g)

smart metering systems shall enable final customers to be metered and settled at the
same time resolution as the imbalance period in the national market.

new
Article 21
Entitlement to a smart meter

EN

1.

Where smart metering is negatively assessed as a result of cost-benefit assessment
referred to in Article 19(2), nor systematically rolled out, Member States shall ensure
that every final customer is entitled to have installed or, where applicable, to have
upgraded, on request and under fair and reasonable conditions, a smart meter that
complies with the following requirements:

(a)

is equipped where technically feasible with functionalities referred to in Article 20,
or with a minimum set of functionalities to be defined and published by Member
States at national level and in line with the provisions in Annex III,

(b)

is interoperable and able to deliver the desired connectivity of the metering
infrastructure with consumer energy management systems in near-real time.

2.

In the context of a customer request for a smart meter pursuant to paragraph 1,
Member States or, where a Member State has so provided, the designated competent
authorities shall:

(a)

ensure that the offer to the final customer requesting the installation of a smart meter
explicitly states and clearly describes:
–

the functions and interoperability that can be supported by the smart meter and
the services that are feasible as well as the benefits that can be realistically
attained by having that smart meter at that moment in time;

–

any associated costs to be borne by the final customer;

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EN

(b)

ensure that it is installed within a reasonable time and no later than three months after
the customer's request;

(c)

regularly, and at least every two years, review and make publicly available the
associated costs, and trace their evolution as a result of technology developments and
potential metering system upgrades.
Article 22
Conventional metering

1.

Where final customers do not have smart meters, Member States shall ensure that
they are provided with individual conventional meters that accurately measure their
actual consumption.

2.

Member States shall ensure that final customers are able to easily read their
conventional meters, either directly or indirectly through an on-line interface or
through another appropriate interface.
Article 23
Data management

EN

1.

When setting up the rules regarding the management and exchange of data, Member
States or, where a Member State has so provided, the designated competent
authorities shall specify the eligible parties which may have access to data of the
final customer with their explicit consent in accordance with Regulation (EU)
2016/679. For the purpose of this Directive, data shall include metering and
consumption data as well as data required for consumer switching. Eligible parties
shall include at least customers, suppliers, transmission and distribution system
operators, aggregators, energy service companies, and other parties which provide
energy or other services to customers.

2.

Member States shall organise the management of data in order to ensure efficient
data access and exchange. Independently of the data management model applied in
each Member State, the party or parties responsible for data management shall
provide to any eligible party with the explicit consent of the final customer, access to
the data of the final customer. Eligible parties should have at their disposal in a nondiscriminatory manner and simultaneously the requested data. Access to data shall be
easy, while relevant procedures shall be made publicly available.

3.

Member States or, where a Member State has so provided, the designated competent
authorities shall authorise and certify the parties which are managing data in order to
ensure that these parties comply with the requirements of this Directive. Without
prejudice to the tasks of the data protection officers under Regulation (EU)
2016/67948, Member States may decide to require from parties managing data the
appointment of compliance officers who shall be responsible for monitoring the
implementation of measures taken by the relevant parties for ensuring non-

48

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
p. 1)

73

EN

discriminatory access to data and compliance with the requirements of this Directive.
Compliance officers or bodies designated pursuant Article 35(2)(d) may be required
to fulfil the obligations of this paragraph.
Article 24
Data format
1.

Member States shall define a common data format and a transparent procedure for
eligible parties to have access to the data listed under paragraph 1 of Article 23, in
order to promote competition in the retail market and avoid excessive administrative
costs for the eligible parties.

2.

The Commission, by means of implementing acts adopted in accordance with the
advisory procedure referred to in Article 68, shall determine a common European
data format and non-discriminatory and transparent procedures for accessing the
data, listed under paragraph 1 of Article 23, that will replace national data format and
procedure adopted by Member States in accordance with paragraph 1. Member
States shall ensure that market participants apply a common European data format.

3.

No additional costs shall be charged to final customers for access to their data.
Member States shall be responsible for setting the relevant costs for access to data by
eligible parties. Regulated entities which provide data services shall not profit from
that activity.

2009/72/EC (adapted) recital 12
Article 3 25
⌦ Single points of contact ⌫
12. Member States shall ensure the provision of single points of contact to provide customers
with all necessary information concerning their rights, current legislation and the means of
dispute settlement available to them in the event of a dispute. Such contact points may be part
of general consumer information points.

2009/72/EC (adapted)
16. The Commission shall establish, in consultation with relevant stakeholders including
Member States, the national regulatory authorities, consumer organisations, electricity
undertakings and, building on the progress achieved to date, social partners, a clear and
concise energy consumer checklist of practical information relating to energy consumer
rights. Member States shall ensure that electricity suppliers or distribution system operators,
in cooperation with the regulatory authority, take the necessary steps to provide their
consumers with a copy of the energy consumer checklist and ensure that it is made publicly
available.

EN

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2009/72/EC (adapted)
new
Article 3 26
⌦ Right to out-of-court dispute settlement ⌫
13.
Member States shall ensure that an independent mechanism such as an energy
ombudsman or a consumer body is in place in order to ensure efficient treatment of
complaints and out-of-court dispute settlements.
customers have access to simple, fair,
transparent, independent, effective and efficient out-of-court dispute resolution mechanisms
for the settlement of disputes concerning rights and obligations established under this
Directive. Where the costumer is a consumer within the meaning of the Directive 2013/11/EU
of 21 May 2013 on alternative dispute resolution for consumer disputes and amending
Regulation (EC) No 2006/2004 and Directive 2009/22/EC 49, such out-of-court mechanisms
shall comply with the quality requirements established in Directive 2013/11/EU and provide,
where warranted, for a system of reimbursement and/or compensation .

2009/72/EC
new
Article 3 27
Universal service 

2009/72/EC (adapted)
1.

3. Member States shall ensure that all household customers, and, where Member
States deem it appropriate, small enterprises (namely enterprises with fewer than 50
occupied persons and an annual turnover or balance sheet not exceeding
EUR 10 million), enjoy universal service, that is the right to be supplied with
electricity of a specified quality within their territory at ⌦ competitive ⌫
reasonable, easily and clearly comparable, transparent and non-discriminatory prices.
To ensure the provision of universal service, Member States may appoint a supplier
of last resort. Member States shall impose on distribution companies an obligation to
connect customers to their network under terms, conditions and tariffs set in
accordance with the procedure laid down in Article 59(6) 37(6). Nothing in tThis
Directive shall ⌦ not ⌫ prevent Member States from strengthening the market
position of the household, small and medium-sized consumers by promoting the
possibilities of voluntary aggregation of representation for that class of consumers.

2.

The first subparagraph shall be implemented in a transparent and non-discriminatory
way and shall not impede the opening of the market ⌦ the free choice of
supplier ⌫ provided for in Article 4 33.

49

EN

OJ L 165, 18.6.2013, p. 63–79

75

EN

2009/72/EC
new
Article 3 28
Vulnerable customers 

2009/72/EC
1.

7. Member States shall take appropriate measures to protect final customers and
shall, in particular, ensure that there are adequate safeguards to protect vulnerable
customers. In this context, each Member State shall define the concept of vulnerable
customers which may refer to energy poverty and, inter alia, to the prohibition of
disconnection of electricity to such customers in critical times. Member States shall
ensure that rights and obligations linked to vulnerable customers are applied. In
particular, they shall take measures to protect customers in remote areas. They shall
ensure high levels of consumer protection, particularly with respect to transparency
regarding contractual terms and conditions, general information and dispute
settlement mechanisms. Member States shall ensure that the eligible customer is in
fact able easily to switch to a new supplier. As regards at least household customers,
those measures shall include those set out in Annex I.

2.

8. Member States shall take appropriate measures, such as formulating national
energy action plans, providing benefits in social security systems to ensure the
necessary electricity supply to vulnerable customers, or providing for support for
energy efficiency improvements, to address energy poverty where identified,
including in the broader context of poverty. Such measures shall not impede the
effective opening of the market set out in Article 4 33 or market functioning and
shall be notified to the Commission, where relevant, in accordance with the
provisions of Article 9(4) paragraph 15 of this Article. Such notification may also
include measures taken within the general social security system.

new
Article 29
Energy poverty
Member States shall define a set of criteria for the purposes of measuring energy poverty.
Member States shall continuously monitor the number of households in energy poverty and
shall report on the evolution of energy poverty and measures taken to prevent it to the
Commission every two years as part of their Integrated National Energy and Climate Progress
Reports in accordance with Article 21 of [Governance Regulation as proposed by
COM(2016)759].

EN

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2009/72/EC (adapted)
new
Article 4
Monitoring of security of supply
Member States shall ensure the monitoring of security of supply issues. Where Member States
consider it appropriate, they may delegate that task to the regulatory authorities referred to in
Article 35. Such monitoring shall, in particular, cover the balance of supply and demand on
the national market, the level of expected future demand and envisaged additional capacity
being planned or under construction, and the quality and level of maintenance of the
networks, as well as measures to cover peak demand and to deal with shortfalls of one or
more suppliers. The competent authorities shall publish every two years, by 31 July, a report
outlining the findings resulting from the monitoring of those issues, as well as any measures
taken or envisaged to address them and shall forward that report to the Commission forthwith.
Article 5
Technical rules
The regulatory authorities where Member States have so provided or Member States shall
ensure that technical safety criteria are defined and that technical rules establishing the
minimum technical design and operational requirements for the connection to the system of
generating installations, distribution systems, directly connected consumers’ equipment,
interconnector circuits and direct lines are developed and made public. Those technical rules
shall ensure the interoperability of systems and shall be objective and non-discriminatory. The
Agency may make appropriate recommendations towards achieving compatibility of those
rules, where appropriate. Those rules shall be notified to the Commission in accordance with
Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June
1998 laying down a procedure for the provision of information in the field of technical
standards and regulations and of rules on Information Society services (16).
Article 6
Promotion of regional cooperation

EN

1.

Member States as well as the regulatory authorities shall cooperate with each other
for the purpose of integrating their national markets at one or more regional levels, as
a first step towards the creation of a fully liberalised internal market. In particular,
the regulatory authorities where Member States have so provided or Member States
shall promote and facilitate the cooperation of transmission system operators at a
regional level, including on cross-border issues, with the aim of creating a
competitive internal market in electricity, foster the consistency of their legal,
regulatory and technical framework and facilitate integration of the isolated systems
forming electricity islands that persist in the Community. The geographical areas
covered by such regional cooperation shall include cooperation in geographical areas
defined in accordance with Article 12(3) of Regulation (EC) No 714/2009. Such
cooperation may cover other geographical areas.

2.

The Agency shall cooperate with national regulatory authorities and transmission
system operators to ensure the compatibility of regulatory frameworks between the
regions with the aim of creating a competitive internal market in electricity. Where

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EN

the Agency considers that binding rules on such cooperation are required, it shall
make appropriate recommendations.
3.

Member States shall ensure, through the implementation of this Directive, that
transmission system operators have one or more integrated system(s) at regional
level covering two or more Member States for capacity allocation and for checking
the security of the network.

4.

Where vertically integrated transmission system operators participate in a joint
undertaking established for implementing such cooperation, the joint undertaking
shall establish and implement a compliance programme which sets out the measures
to be taken to ensure that discriminatory and anticompetitive conduct is excluded.
That compliance programme shall set out the specific obligations of employees to
meet the objective of excluding discriminatory and anticompetitive conduct. It shall
be subject to the approval of the Agency. Compliance with the programme shall be
independently monitored by the compliance officers of the vertically integrated
transmission system operators.

CHAPTER IVVI
DISTRIBUTION SYSTEM OPERATION
Article 30 24
Designation of distribution system operators
Member States shall designate or shall require undertakings that own or are responsible for
distribution systems 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 distribution
system operators. Member States shall ensure that distribution system operators act in
accordance with Articles 25, 26 and 27.
Article 31 25
Tasks of distribution system operators

EN

1.

The distribution system operator shall be responsible for ensuring the long-term
ability of the system to meet reasonable demands for the distribution of electricity,
for operating, maintaining and developing under economic conditions a secure,
reliable and efficient electricity distribution system in its area with due regard for the
environment and energy efficiency.

2.

In any event, it must not discriminate between system users or classes of system
users, particularly in favour of its related undertakings.

3.

The distribution system operator shall provide system users with the information they
need for efficient access to, including use of, the system.

4.

A Member State may require the distribution system operator, when dispatching
generating installations, to give priority to generating installations using renewable
energy sources or waste or producing combined heat and power,
in accordance
with Article 11 [recast of Regulation 714/2009 as proposed by COM(2016)861/2] .

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EN

5.

Each distribution system operator shall procure the energy it uses to cover energy
losses and reserve capacity the non-frequency ancillary services  in its system
according to transparent, non-discriminatory and market based procedures, whenever
it has such a function. That requirement shall be without prejudice to using electricity
acquired under contracts concluded before 1 January 2002. Unless justified by a
cost-benefit analysis, the procurement of non-frequency ancillary services by a
distribution system operator shall be transparent, non-discriminatory and marketbased ensuring effective participation of all market participants including renewable
energy sources, demand response, energy storage facilities and aggregators, in
particular by requiring regulatory authorities or distribution system operators in close
cooperation with all market participants, to define technical modalities for
participation in these markets on the basis of the technical requirements of these
markets and the capabilities of all market participants .
6. Where a distribution system operator is responsible for balancing the distribution
system, rules adopted by it for that purpose shall be objective, transparent and nondiscriminatory, including rules for the charging of system users of their networks for
energy imbalance. Terms and conditions, including rules and tariffs, for the provision
of such services by distribution system operators shall be established in accordance
with Article 37(6) in a non-discriminatory and cost-reflective way and shall be
published.
7. When planning the development of the distribution network, energy
efficiency/demand-side management measures or distributed generation that might
supplant the need to upgrade or replace electricity capacity shall be considered by the
distribution system operator.

new
Article 32
Tasks of distribution system operators in the use of flexibility
1.

Member States shall provide the necessary regulatory framework to allow and
incentivise distribution system operators to procure services in order to improve
efficiencies in the operation and development of the distribution system, including
local congestion management. In particular, regulatory frameworks shall enable
distribution system operators to procure services from resources such as distributed
generation, demand response or storage and consider energy efficiency measures,
which may supplant the need to upgrade or replace electricity capacity and which
support the efficient and secure operation of the distribution system. Distribution
system operators shall procure these services according to transparent, nondiscriminatory and market based procedures.
Distribution system operators shall define standardised market products for the
services procured ensuring effective participation of all market participants including
renewable energy sources, demand response, and aggregators. Distribution system
operators shall exchange all necessary information and coordinate with transmission
system operators in order to ensure the optimal utilisation of resources, ensure the
secure and efficient operation of the system and facilitate market development.

EN

79

EN

Distribution system operators shall be adequately remunerated for the procurement
of such services in order to recover at least the corresponding expenses, including the
necessary information and communication technologies expenses, including
expenses which correspond to the necessary information and communication
infrastructure.
2.

The development of a distribution system shall be based on a transparent network
development plan that distribution system operators shall submit every two years to
the regulatory authority. The network development plan shall contain the planned
investments for the next five to ten years, with particular emphasis on the main
distribution infrastructure which is required in order to connect new generation
capacity and new loads including re-charging points for electric vehicles. The
network development plan shall also demonstrate the use of demand response,
energy efficiency, energy storage facilities or other resources that distribution system
operator is using as an alternative to system expansion.
The regulatory authority shall consult all current or potential system users on the
network development plan. The regulatory authority shall publish the result of the
consultation process on the proposed investments.
Member States may decide not to apply this obligation to integrated undertakings
serving less than 100 000 connected consumers, or serving isolated systems.
Article 33
Integration of electro-mobility into the electricity network

EN

1.

Member States shall provide the necessary regulatory framework to facilitate the
connection of publicly accessible and private recharging points to the distribution
networks. Member States shall ensure that distribution system operators cooperate on
a non-discriminatory basis with any undertaking that owns, develops, operates or
manages recharging points for electric vehicles, including with regard to connection
to the grid.

2.

Member States may allow distribution system operators to own, develop, manage or
operate recharging points for electric vehicles only if the following conditions are
fulfilled:

(a)

other parties, following an open and transparent tendering procedure, have not
expressed their interest to own, develop, manage or operate recharging points for
electric vehicles;

(b)

the regulatory authority has granted its approval.

3.

Articles 35 and 56 shall apply to distribution system operators engaged in ownership,
development, operation or management of recharging points.

4.

Member States shall perform at regular intervals or at least every five years a public
consultation in order to re-assess the potential interest of market parties to own,
develop, operate or manage recharging points for electric vehicles. In case the public
consultation indicates that third parties are able to own, develop, operate or manage
such points, Member States shall ensure that distribution system operators' activities
in this regard are phased-out.

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EN

Article 34
Tasks of distribution system operators in data management
Member States shall ensure that all eligible parties have non-discriminatory access to data
under clear and equal terms. In Member States where smart metering systems have been
implemented according to Article 19 and distribution system operators are involved in data
management, compliance programmes as set in Article 35(2)(d) shall include specific
measures in order to exclude discriminatory access to data from eligible parties as provided
for in Article 23. Where distribution system operators are not subject to Article 35(1), (2) and
(3), Member States shall take all necessary measures to ensure that the vertically integrated
undertaking do not have privileged access to data for the conduct of its supply activity.

2009/72/EC
Article 35 26
Unbundling of distribution system operators

EN

1.

Where the distribution system operator is part of a vertically integrated undertaking,
it shall be independent at least in terms of its legal form, organisation and decision
making from other activities not relating to distribution. Those rules shall not create
an obligation to separate the ownership of assets of the distribution system operator
from the vertically integrated undertaking.

2.

In addition to the requirements under paragraph 1, where the distribution system
operator is part of a vertically integrated undertaking, it shall be independent in terms
of its organisation and decision-making from the other activities not related to
distribution. In order to achieve this, the following minimum criteria shall apply:

(a)

those persons responsible for the management of the distribution system operator
must not participate in company structures of the integrated electricity undertaking
responsible, directly or indirectly, for the day-to-day operation of the generation,
transmission or supply of electricity;

(b)

appropriate measures must be taken to ensure that the professional interests of the
persons responsible for the management of the distribution system operator are taken
into account in a manner that ensures that they are capable of acting independently;

(c)

the distribution system operator must have effective decision-making rights,
independent from the integrated electricity undertaking, with respect to assets
necessary to operate, maintain or develop the network. In order to fulfil those tasks,
the distribution system operator shall have at its disposal the necessary resources
including human, technical, physical and financial resources. This should not prevent
the existence of appropriate coordination mechanisms to ensure that the economic
and management supervision rights of the parent company in respect of return on
assets, regulated indirectly in accordance with Article 3759(6), in a subsidiary are
protected. In particular, this shall enable the parent company to approve the annual
financial plan, or any equivalent instrument, of the distribution system operator and
to set global limits on the levels of indebtedness of its subsidiary. It shall not permit
the parent company to give instructions regarding day-to-day operations, nor with
respect to individual decisions concerning the construction or upgrading of

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EN

distribution lines, that do not exceed the terms of the approved financial plan, or any
equivalent instrument; and
(d)

the distribution system operator must establish a compliance programme, which sets
out measures taken to ensure that discriminatory conduct is excluded, and ensure that
observance of it is adequately monitored. The compliance programme shall set out
the specific obligations of employees to meet that objective. An annual report, setting
out the measures taken, shall be submitted by the person or body responsible for
monitoring the compliance programme, the compliance officer of the distribution
system operator, to the regulatory authority referred to in Article 3557(1) and shall
be published. The compliance officer of the distribution system operator shall be
fully independent and shall have access to all the necessary information of the
distribution system operator and any affiliated undertaking to fulfil his task.

3.

Where the distribution system operator is part of a vertically integrated undertaking,
the Member States shall ensure that the activities of the distribution system operator
are monitored by regulatory authorities or other competent bodies so that it cannot
take advantage of its vertical integration to distort competition. In particular,
vertically integrated distribution system operators shall not, in their communication
and branding, create confusion in respect of the separate identity of the supply
branch of the vertically integrated undertaking.

4.

Member States may decide not to apply paragraphs 1, 2 and 3 to integrated electricity
undertakings serving less than 100000 connected customers, or serving small isolated
systems.

new
Article 36
Ownership of storage facilities

EN

1.

Distribution system operators shall not be allowed to own, develop, manage or
operate energy storage facilities.

2.

By way of derogation from paragraph 1, Member States may allow distribution
system operators to own, develop, manage or operate storage facilities only if the
following conditions are fulfilled:

(a)

other parties, following an open and transparent tendering procedure, have not
expressed their interest to own, develop, manage or operate storage facilities;

(b)

such facilities are necessary for the distribution system operators to fulfil its
obligations under this regulation for the efficient, reliable and secure operation of the
distribution system; and

(c)

the regulatory authority has assessed the necessity of such derogation taking into
account the conditions under points (a) and (b) of this paragraph and has granted its
approval.

3.

Articles 35 and Article 56 shall apply to distribution system operators engaged in
ownership, development, operation or management of energy storage facilities.

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EN

4.

Regulatory authorities shall perform at regular intervals or at least every five years a
public consultation in order to re-assess the potential interest of market parties to
invest, develop, operate or manage energy storage facilities. In case the public
consultation indicates that third parties are able to own, develop, operate or manage
such facilities, Member States shall ensure that distribution system operators'
activities in this regard are phased-out.

2009/72/EC (adapted)
Article 37 27
Confidentiality obligation of distribution system operators
Without prejudice to Article 55 30 or any other legal duty to disclose information, the
distribution system operator must preserve the confidentiality of commercially sensitive
information obtained in the course of carrying out its business, and shall prevent information
about its own activities which may be commercially advantageous being disclosed in a
discriminatory manner.
Article 38 28
Closed distribution systems

EN

1.

Member States may provide for national regulatory authorities or other competent
authorities to classify a system which distributes electricity within a geographically
confined industrial, commercial or shared services site and does not, without
prejudice to paragraph 4, supply household customers, as a closed distribution
system if:

(a)

for specific technical or safety reasons, the operations or the production process of
the users of that system are integrated; or

(b)

that system distributes electricity primarily to the owner or operator of the system or
their related undertakings.

2.

Member States may provide for national regulatory authorities to exempt the
operator of a closed distribution system from:

(a)

the requirement under Article 31 25(5) to procure the energy it uses to cover energy
losses and reserve capacity in its system according to transparent, non-discriminatory
and market based procedures;

(b)

the requirement under Article 6 32(1) that tariffs, or the methodologies underlying
their calculation, are approved prior to their entry into force in accordance with
Article 59 (1) 37.

3.

Where an exemption is granted under paragraph 2, the applicable tariffs, or the
methodologies underlying their calculation, shall be reviewed and approved in
accordance with Article 59 paragraph 1 37 upon request by a user of the closed
distribution system.

4.

Incidental use by a small number of households with employment or similar
associations with the owner of the distribution system and located within the area

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EN

served by a closed distribution system shall not preclude an exemption under
paragraph 2 being granted.

new
5.

Closed distribution systems shall be considered as distribution systems for the
purpose of the Directive.

2009/72/EC (adapted)
new
Article 39 29
Combined operator
Article 2635(1) shall not prevent the operation of a combined transmission and distribution
system operator provided that operator complies with Articles 9 43(1), or 4413 and 4514, or
Section 3Chapter V or falls under Article 4466(2).

Chapter IV V
⌦ GENERAL RULES APPLICABLE TO THE ⌫
TRANSMISSION SYSTEM OPERATION ⌦ OPERATOR ⌫
Article 40 12
Tasks of transmission system operators

EN

1.

1. Each transmission system operator shall be responsible for:

(a)

ensuring the long-term ability of the system to meet reasonable demands for the
transmission of electricity, operating, maintaining and developing under economic
conditions secure, reliable and efficient transmission systems with due regard to the
environment
, in close cooperation with neighbouring transmission system
operators and distribution system operators and transparency ;

(b)

ensuring adequate means to meet service ⌦ its ⌫ obligations;

(c)

contributing to security of supply through adequate transmission capacity and system
reliability;

(d)

managing electricity flows on the system, taking into account exchanges with other
interconnected systems. To that end, the transmission system operator shall be
responsible for ensuring a secure, reliable and efficient electricity system and, in that
context, for ensuring the availability of all necessary ancillary services, including
those provided by demand response
and energy storage , insofar as such
availability is independent from any other transmission system with which its system
is interconnected;

84

EN

(e)

providing to the operator of any other system with which its system is interconnected
sufficient information to ensure the secure and efficient operation, coordinated
development and interoperability of the interconnected system;

(f)

ensuring non-discrimination as between system users or classes of system users,
particularly in favour of its related undertakings;

(g)

providing system users with the information they need for efficient access to the
system; and

(h)

collecting congestion rents and payments under the inter-transmission system
operator compensation mechanism, in compliance with Article 46 13 of [recast of
Regulation 714/2009 as proposed by COM(2016)861/2], granting and managing
third-party access and giving reasoned explanations when it denies such access,
which shall be monitored by the national regulatory authorities; in carrying out their
tasks under this Article transmission system operators shall primarily facilitate
market integration.

new

EN

(i)

procuring ancillary services from market participants to ensure operational security.

(j)

adopting a framework for the cooperation and coordination between regional
operational centres.

2.

Member States may provide that one or several responsibilities listed under points (a)
to (j) of paragraph 1 be assigned to a transmission system operator other than the one
which owns the transmission system to which the concerned responsibilities would
otherwise be applicable. The transmission system operator to which the tasks are
assigned shall be certified as ownership unbundled and fulfil the requirements
provided for in Article 43, but does not have to own the transmission system it is
responsible for. The transmission system operator which owns the transmission
system shall fulfil the requirements provided for in Chapter IV and be certified in
accordance with 43.

3.

In performing the tasks listed in paragraph 1, the transmission system operator shall
take into account the functions performed by the regional operational centres and
cooperate as necessary with neighbouring transmission system operators.

4.

In performing the task described in paragraph 1(i), the transmission system operator
shall ensure that the procurement of balancing services and, unless justified by a
cost-benefit analysis, non-frequency ancillary services, is:

(a)

transparent, non-discriminatory and market-based;

(b)

ensures effective participation of all market participants including renewable energy
sources, demand response, energy storage facilities and aggregators, in particular by
requiring regulatory authorities or transmission system operators in close cooperation
with all market participants, to define technical modalities for participation in these
markets on the basis of the technical requirements of these markets and the
capabilities of all market participants.

5.

Transmission system operators shall not own assets that provide ancillary services
safe under the conditions set out in Article 54.

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EN

Article 15
Dispatching and balancing
1.

Without prejudice to the supply of electricity on the basis of contractual obligations,
including those which derive from the tendering specifications, the transmission
system operator shall, where it has such a function, be responsible for dispatching the
generating installations in its area and for determining the use of interconnectors with
other systems.

2.

The dispatching of generating installations and the use of interconnectors shall be
determined on the basis of criteria which shall be approved by national regulatory
authorities where competent and which must be objective, published and applied in a
non-discriminatory manner, ensuring the proper functioning of the internal market in
electricity. The criteria shall take into account the economic precedence of electricity
from available generating installations or interconnector transfers and the technical
constraints on the system.

3.

A Member State shall require system operators to act in accordance with Article 16
of Directive 2009/28/EC when dispatching generating installations using renewable
energy sources. They also may require the system operator to give priority when
dispatching generating installations producing combined heat and power.

4.

A Member State may, for reasons of security of supply, direct that priority be given
to the dispatch of generating installations using indigenous primary energy fuel
sources, to an extent not exceeding, in any calendar year, 15 % of the overall primary
energy necessary to produce the electricity consumed in the Member State
concerned.

5.

The regulatory authorities where Member States have so provided or Member States
shall require transmission system operators to comply with minimum standards for
the maintenance and development of the transmission system, including
interconnection capacity.

6.

Transmission system operators shall procure the energy they use to cover energy
losses and reserve capacity in their system according to transparent, nondiscriminatory and market-based procedures, whenever they have such a function.

7.

Rules adopted by transmission system operators for balancing the electricity system
shall be objective, transparent and non-discriminatory, including rules for charging
system users of their networks for energy imbalance. The terms and conditions,
including the rules and tariffs, for the provision of such services by transmission
system operators shall be established pursuant to a methodology compatible with
Article 37(6) in a non-discriminatory and cost-reflective way and shall be published.

2009/72/EC (adapted)
new
Article 41 16
Confidentiality ⌦ and transparency requirements ⌫ for transmission system
operators and transmission system owners
8.

EN

Without prejudice to Article 5530 or any other legal duty to disclose information,

86

EN

each transmission system operator and each transmission system owner shall
preserve the confidentiality of commercially sensitive information obtained in the
course of carrying out its activities, and shall prevent information about its own
activities which may be commercially advantageous from being disclosed in a
discriminatory manner. In particular it shall not disclose any commercially sensitive
information to the remaining parts of the undertaking, unless this is necessary for
carrying out a business transaction. In order to ensure the full respect of the rules on
information unbundling, Member States shall ensure that the transmission system
owner and the remaining part of the undertaking do not use joint services, such as
joint legal services, apart from purely administrative or IT functions.
9.

Transmission system operators shall not, in the context of sales or purchases of
electricity by related undertakings, misuse commercially sensitive information
obtained from third parties in the context of providing or negotiating access to the
system.

10.

Information necessary for effective competition and the efficient functioning of the
market shall be made public. That obligation shall be without prejudice to preserving
the confidentiality of commercially sensitive information.

Article 4223
Decision-making powers regarding the connection of new power plant to the
transmission system
11.

The transmission system operator shall establish and publish transparent and
efficient procedures for non-discriminatory connection of new power plants
and
energy storage facilities  to the transmission system. Those procedures shall be
subject to the approval of national regulatory authorities.

12.

The transmission system operator shall not be entitled to refuse the connection of a
new power plant
or energy storage facility  on the grounds of possible future
limitations to available network capacities, such as congestion in distant parts of the
transmission system. The transmission system operator shall supply necessary
information.

13.

The transmission system operator shall not be entitled to refuse a new connection
point, on the ground that it will lead to additional costs linked with necessary
capacity increase of system elements in the close-up range to the connection point.

⌦ Chapter VI
UNBUNDLING OF TRANSMISSION SYSTEM
OPERATORS ⌫
⌦ SECTION 1
OWNERSHIP UNBUNDLING AND CERTIFICATION ⌫

Article 43 9
⌦Ownership ⌫Uunbundling of transmission systems and transmission system

EN

87

EN

operators
1.

Member States shall ensure that from 3 March 2012:

(a)

each undertaking which owns a transmission system acts as a transmission system
operator;

(b)

the same person or persons are entitled neither:

(c)

directly or indirectly to exercise control over an undertaking performing any of the
functions of generation or supply, and directly or indirectly to exercise control or
exercise any right over a transmission system operator or over a transmission system;
nor

(d)

directly or indirectly to exercise control over a transmission system operator or over
a transmission system, and directly or indirectly to exercise control or exercise any
right over an undertaking performing any of the functions of generation or supply;

(e)

the same person or persons are not entitled to appoint members of the supervisory
board, the administrative board or bodies legally representing the undertaking, of a
transmission system operator or a transmission system, and directly or indirectly to
exercise control or exercise any right over an undertaking performing any of the
functions of generation or supply; and

(f)

the same person is not entitled to be a member of the supervisory board, the
administrative board or bodies legally representing the undertaking, of both an
undertaking performing any of the functions of generation or supply and a
transmission system operator or a transmission system.

2.

The rights referred to in points (b) and (c) of paragraph 1 shall include, in particular:

(a)

the power to exercise voting rights;

(b)

the power to appoint members of the supervisory board, the administrative board or
bodies legally representing the undertaking; or

(c)

the holding of a majority share.

3.

For the purpose of paragraph 1(b), the notion ‘undertaking performing any of the
functions of generation or supply’ shall include ‘undertaking performing any of the
functions of production and supply’ within the meaning of Directive 2009/73/EC of
the European Parliament and of the Council of 13 July 2009 concerning common
rules for the internal market in natural gas50, and the terms ‘transmission system
operator’ and ‘transmission system’ shall include ‘transmission system operator’ and
‘transmission system’ within the meaning of that Directive.
4. Member States may allow for derogations from points (b) and (c) of paragraph 1
until 3 March 2013, provided that transmission system operators are not part of a
vertically integrated undertaking.

EN

4.

5. The obligation set out in paragraph 1(a) shall be deemed to be fulfilled in a
situation where two or more undertakings which own transmission systems have
created a joint venture which acts as a transmission system operator in two or more
Member States for the transmission systems concerned. No other undertaking may be

50

Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning
common rules for the internal market in natural gas (OJ L 211, 14.8.2009, p. 94)–136

88

EN

part of the joint venture, unless it has been approved under Article 44 13 as an
independent system operator or as an independent transmission operator for the
purposes of Section 3Chapter V.
5.

6. For the implementation of this Article, where the person referred to in points (b),
(c) and (d) of paragraph 1 is the Member State or another public body, two separate
public bodies exercising control over a transmission system operator or over a
transmission system on the one hand, and over an undertaking performing any of the
functions of generation or supply on the other, shall be deemed not to be the same
person or persons.

6.

7. Member States shall ensure that neither commercially sensitive information
referred to in Article 41 16 held by a transmission system operator which was part of
a vertically integrated undertaking, nor the staff of such a transmission system
operator, is transferred to undertakings performing any of the functions of generation
and supply.

7.

8. Where on 3 September 2009, the transmission system belongs to a vertically
integrated undertaking a Member State may decide not to apply paragraph 1.
In such case, the Member State concerned shall either:
(a)

designate an independent system operator in accordance with Article 44 13; or

(b)

comply with the provisions of Section 3 Chapter V.

8.

9. Where, on 3 September 2009, the transmission system belongs to a vertically
integrated undertaking and there are arrangements in place which guarantee more
effective independence of the transmission system operator than the provisions of
Section 3 Chapter V, a Member State may decide not to apply paragraph 1.

9.

10. Before an undertaking is approved and designated as a transmission system
operator under paragraph 9 of this Article, it shall be certified according to the
procedures laid down in Article 1052(4), (5), and (6), of this Directive and in Article
3 48 of [recast of Regulation 714/2009 as proposed by COM(2016)861/2], pursuant
to which the Commission shall verify that the arrangements in place clearly
guarantee more effective independence of the transmission system operator than the
provisions of Section 3 Chapter V.

10.

11. Vertically integrated undertakings which own a transmission system shall not in
any event be prevented from taking steps to comply with paragraph 1.

11.

12. Undertakings performing any of the functions of generation or supply shall not in
any event be able to directly or indirectly take control over or exercise any right over
unbundled transmission system operators in Member States which apply paragraph 1.

⌦ SECTION 2
INDEPENDENT SYSTEM OPERATOR ⌫
Article 4413
Independent system operator
1.

EN

Where the transmission system belongs to a vertically integrated undertaking on
3 September 2009, Member States may decide not to apply Article 43 9(1) and
designate an independent system operator upon a proposal from the transmission
system owner. Such designation shall be subject to approval by the Commission.

89

EN

EN

2.

The Member State may approve and designate an independent system operator only
where:

(a)

the candidate operator has demonstrated that it complies with the requirements of
Article 43 9(1)(b), (c) and (d);

(b)

the candidate operator has demonstrated that it has at its disposal the required
financial, technical, physical and human resources to carry out its tasks under Article
40 12;

(c)

the candidate operator has undertaken to comply with a ten-year network
development plan monitored by the regulatory authority;

(d)

the transmission system owner has demonstrated its ability to comply with its
obligations under paragraph 5. To that end, it shall provide all the draft contractual
arrangements with the candidate undertaking and any other relevant entity; and

(e)

the candidate operator has demonstrated its ability to comply with its obligations
under [recast of Regulation 714/2009 as proposed by COM(2016)861/2] including
the cooperation of transmission system operators at European and regional level.

3.

Undertakings which have been certified by the regulatory authority as having
complied with the requirements of Article 53 11 and paragraph 2 of this Article shall
be approved and designated as independent system operators by Member States. The
certification procedure in either Article 52 10 of this Directive and Article 483 of
[recast of Regulation 714/2009 as proposed by COM(2016)861/2] or in Article 53 11
of this Directive shall be applicable.

4.

Each independent system operator shall be responsible for granting and managing
third-party access, including the collection of access charges, congestion charges,
and payments under the inter-transmission system operator compensation mechanism
in compliance with Article 46 13 of [recast of Regulation 714/2009 as proposed by
COM(2016)861/2], as well as for operating, maintaining and developing the
transmission system, and for ensuring the long-term ability of the system to meet
reasonable demand through investment planning. When developing the transmission
system, the independent system operator shall be responsible for planning (including
authorisation procedure), construction and commissioning of the new infrastructure.
For this purpose, the independent system operator shall act as a transmission system
operator in accordance with this Section Chapter. The transmission system owner
shall not be responsible for granting and managing third-party access, nor for
investment planning.

5.

Where an independent system operator has been designated, the transmission system
owner shall:

(a)

provide all the relevant cooperation and support to the independent system operator
for the fulfilment of its tasks, including in particular all relevant information;

(b)

finance the investments decided by the independent system operator and approved by
the regulatory authority, or give its agreement to financing by any interested party
including the independent system operator. The relevant financing arrangements
shall be subject to approval by the regulatory authority. Prior to such approval, the
regulatory authority shall consult the transmission system owner together with the
other interested parties;

(c)

provide for the coverage of liability relating to the network assets, excluding the
liability relating to the tasks of the independent system operator; and

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EN

(d)

provide guarantees to facilitate financing any network expansions with the exception
of those investments where, pursuant to point (b), it has given its agreement to
financing by any interested party including the independent system operator.

6.

In close cooperation with the regulatory authority, the relevant national competition
authority shall be granted all relevant powers to effectively monitor compliance of
the transmission system owner with its obligations under paragraph 5.
Article 45 14
Unbundling of transmission system owners

1.

A transmission system owner, where an independent system operator has been
appointed, which is part of a vertically integrated undertaking shall be independent at
least in terms of its legal form, organisation and decision making from other
activities not relating to transmission.

2.

In order to ensure the independence of the transmission system owner referred to in
paragraph 1, the following minimum criteria shall apply:

(a)

persons responsible for the management of the transmission system owner shall not
participate in company structures of the integrated electricity undertaking
responsible, directly or indirectly, for the day-to-day operation of the generation,
distribution and supply of electricity;

(b)

appropriate measures shall be taken to ensure that the professional interests of
persons responsible for the management of the transmission system owner are taken
into account in a manner that ensures that they are capable of acting independently;
and

(c)

the transmission system owner shall establish a compliance programme, which sets
out measures taken to ensure that discriminatory conduct is excluded, and ensure that
observance of it is adequately monitored. The compliance programme shall set out
the specific obligations of employees to meet those objectives. An annual report,
setting out the measures taken, shall be submitted by the person or body responsible
for monitoring the compliance programme to the regulatory authority and shall be
published.

3. The Commission may adopt Guidelines to ensure full and effective compliance of the
transmission system owner with paragraph 2 of this Article. Those measures, designed to
amend non-essential elements of this Directive by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny referred to in Article 46(2).

CHAPTER V Section 3
INDEPENDENT TRANSMISSION OPERATOR
Article 46 17
Assets, equipment, staff and identity
1.

EN

Transmission system operators shall be equipped with all human, technical, physical
and financial resources necessary for fulfilling their obligations under this Directive
and carrying out the activity of electricity transmission, in particular:

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EN

EN

(a)

assets that are necessary for the activity of electricity transmission, including the
transmission system, shall be owned by the transmission system operator;

(b)

personnel, necessary for the activity of electricity transmission, including the
performance of all corporate tasks, shall be employed by the transmission system
operator;

(c)

leasing of personnel and rendering of services, to and from any other parts of the
vertically integrated undertaking shall be prohibited. A transmission system operator
may, however, render services to the vertically integrated undertaking as long as:

(d)

the provision of those services does not discriminate between system users, is
available to all system users on the same terms and conditions and does not restrict,
distort or prevent competition in generation or supply; and

(e)

the terms and conditions of the provision of those services are approved by the
regulatory authority;

(f)

without prejudice to the decisions of the Supervisory Body under Article 49 20,
appropriate financial resources for future investment projects and/or for the
replacement of existing assets shall be made available to the transmission system
operator in due time by the vertically integrated undertaking following an appropriate
request from the transmission system operator.

2.

The activity of electricity transmission shall include at least the following tasks in
addition to those listed in Article 40 12:

(a)

the representation of the transmission system operator and contacts to third parties
and the regulatory authorities;

(b)

the representation of the transmission system operator within the European Network
of Transmission System Operators for Electricity (ENTSO for Electricity);

(c)

granting and managing third-party access on a non-discriminatory basis between
system users or classes of system users;

(d)

the collection of all the transmission system related charges including access charges,
balancing charges for ancillary services such as purchasing of services (balancing
costs, energy for losses) and ancillary services charges  ;

(e)

the operation, maintenance and development of a secure, efficient and economic
transmission system;

(f)

investment planning ensuring the long-term ability of the system to meet reasonable
demand and guaranteeing security of supply;

(g)

the setting up of appropriate joint ventures, including with one or more transmission
system operators, power exchanges, and the other relevant actors pursuing the
objectives to develop the creation of regional markets or to facilitate the
liberalisation process; and

(h)

all corporate services, including legal services, accountancy and IT services.

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3.

Transmission system operators shall be organised in a legal form as referred to in
Article 1 of Directive 2009/101/EC of the European Parliament and of the Council 51
Council Directive 68/151/EEC (19).

4.

The transmission system operator shall not, in its corporate identity, communication,
branding and premises, create confusion in respect of the separate identity of the
vertically integrated undertaking or any part thereof.

5.

The transmission system operator shall not share IT systems or equipment, physical
premises and security access systems with any part of the vertically integrated
undertaking nor use the same consultants or external contractors for IT systems or
equipment, and security access systems.

6.

The accounts of transmission system operators shall be audited by an auditor other
than the one auditing the vertically integrated undertaking or any part thereof.
Article 47 18
Independence of the transmission system operator

EN

1.

Without prejudice to the decisions of the Supervisory Body under Article 49 20, the
transmission system operator shall have:

(a)

effective decision-making rights, independent from the vertically integrated
undertaking, with respect to assets necessary to operate, maintain or develop the
transmission system; and

(b)

the power to raise money on the capital market in particular through borrowing and
capital increase.

2.

The transmission system operator shall at all times act so as to ensure it has the
resources it needs in order to carry out the activity of transmission properly and
efficiently and develop and maintain an efficient, secure and economic transmission
system.

3.

⌦ The vertically integrated undertaking and its ⌫ Ssubsidiaries of the vertically
integrated undertaking performing functions of generation or supply shall not have
any direct or indirect shareholding in the transmission system operator. The
transmission system operator shall neither have any direct or indirect shareholding in
any subsidiary of the vertically integrated undertaking performing functions of
generation or supply, nor receive dividends or any other financial benefit from that
subsidiary.

4.

The overall management structure and the corporate statutes of the transmission
system operator shall ensure effective independence of the transmission system
operator in compliance with this Chapter. The vertically integrated undertaking shall
not determine, directly or indirectly, the competitive behaviour of the transmission
system operator in relation to the day to day activities of the transmission system
operator and management of the network, or in relation to activities necessary for the

51

Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on
coordination of safeguards which, for the protection of the interests of members and third parties, are
required by Member States of companies within the meaning of the second paragraph of Article 48 of
the Treaty, with a view to making such safeguards equivalent (OJ L 258, 1.10.2009, p. 11)–19.

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preparation of the ten-year network development plan developed pursuant to Article
51 22.
5.

In fulfilling their tasks in Article 40 12 and Article 46 17(2) of this Directive, and in
complying with ⌦ obligations set out in ⌫ Articles 14, 15 and 16 of [of recast of
Regulation 714/2009 as proposed by COM(2016)861/2], transmission system
operators shall not discriminate against different persons or entities and shall not
restrict, distort or prevent competition in generation or supply.

6.

Any commercial and financial relations between the vertically integrated undertaking
and the transmission system operator, including loans from the transmission system
operator to the vertically integrated undertaking, shall comply with market
conditions. The transmission system operator shall keep detailed records of such
commercial and financial relations and make them available to the regulatory
authority upon request.

7.

The transmission system operator shall submit for approval by the regulatory
authority all commercial and financial agreements with the vertically integrated
undertaking.

8.

The transmission system operator shall inform the regulatory authority of the
financial resources, referred to in Article 46 17(1)(d), available for future investment
projects and/or for the replacement of existing assets.

9.

The vertically integrated undertaking shall refrain from any action impeding or
prejudicing the transmission system operator from complying with its obligations in
this Chapter and shall not require the transmission system operator to seek
permission from the vertically integrated undertaking in fulfilling those obligations.

10.

An undertaking which has been certified by the regulatory authority as being in
compliance with the requirements of this Chapter shall be approved and designated
as a transmission system operator by the Member State concerned. The certification
procedure in either Article 52 10 of this Directive and [Article 3 48 of of Regulation
714/2009 as proposed by COM(2016)861/2] or in Article 53 11 of this Directive
shall apply.

Article 48 19
Independence of the staff and the management of the transmission system operator

EN

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 and/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 4920.

2.

The identity 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 and/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 notification.

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EN

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 and/or 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 and/or members of the administrative bodies of the
transmission system operator who are subject to this paragraph.

4.

The persons responsible for the management and/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 and/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 and/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 and/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 and/or members of the administrative bodies of the transmission system
operator.
The persons responsible for the management and/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.

EN

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EN

Article 49 20
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 to activities
necessary for the preparation of the ten-year network development plan developed
pursuant to Article 5122.

2.

The Supervisory Body shall be composed of members representing the vertically
integrated undertaking, members representing third party shareholders and, where the
relevant legislation of a Member State so provides, members representing other
interested parties such as employees of the transmission system operator.

3.

The first subparagraph of Article 4819(2) and Article 4819(3) to (7) shall apply to at
least half of the members of the Supervisory Body minus one.
Point (b) of the second subparagraph of Article 4819(2) shall apply to all the members
of the Supervisory Body.

Article 50 21
Compliance programme and compliance officer

EN

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 the 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 national
regulator, compliance with the program shall be independently monitored by a
compliance officer.

2.

The compliance officer shall be appointed by the Supervisory Body, subject to the
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 4819(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;

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EN

EN

(d)

notifying the regulatory authority on any substantial breaches with regard to the
implementation of the compliance programme; and

(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 and/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 5122.

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 him with all the resources necessary for
fulfilling his duties. During his 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, as defined in [recast of Regulation 714/2009 as
proposed by COM(2016)861/2], in particular regarding tariffs, third party access
services, capacity allocation and congestion management, transparency, balancing
ancillary services  and secondary markets;

(b)

projects undertaken in order to operate, maintain and develop the transmission
system, including interconnection and connection investments;

(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 4116.

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 his 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.

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EN

Article 51 22
Network development and powers to make investment decisions

EN

1.

Every year
At least every two years  , transmission system operators shall
submit to the regulatory authority a ten-year network development plan based on
existing and forecast supply and demand after having consulted all the relevant
stakeholders. That network development plan shall contain efficient measures in
order to guarantee the adequacy of the system and the security of supply.

2.

The ten-year network development plan shall in particular:

(a)

indicate to market participants the main transmission infrastructure that needs to be
built or upgraded over the next ten years;

(b)

contain all the investments already decided and identify new investments which have
to be executed in the next three years; and

(c)

provide for a time frame for all investment projects.

3.

When elaborating the ten-year network development plan, the transmission system
operator shall make reasonable assumptions about the evolution of the generation,
supply,
energy storage,  consumption and exchanges with other countries,
taking into account investment plans for regional and ⌦ Union ⌫ Communitywide networks.

4.

The regulatory authority shall consult all actual or potential system users on the tenyear network development plan in an open and transparent manner. Persons or
undertakings claiming to be potential system users may be required to substantiate
such claims. The regulatory authority shall publish the result of the consultation
process, in particular possible needs for investments.

5.

The regulatory authority shall examine whether the ten-year network development
plan covers all investment needs identified during the consultation process, and
whether it is consistent with the non-binding ⌦ Union ⌫ Community-wide tenyear network development plan (⌦ Union ⌫ Community-wide network
development plan) referred to in [Article 27(b) 8(3)(b) of recast of Regulation
714/2009 as proposed by COM(2016)861/2]. If any doubt arises as to the consistency
with the Community ⌦ Union ⌫ -wide network development plan, the regulatory
authority shall consult the Agency. The regulatory authority may require the
transmission system operator to amend its ten-year network development plan.

6.

The regulatory authority shall monitor and evaluate the implementation of the tenyear network development plan.

7.

In circumstances where the transmission system operator, other than for overriding
reasons beyond its control, does not execute an investment, which, under the ten-year
network development plan, was to be executed in the following three years, Member
States shall ensure that the regulatory authority is required to take at least one of the
following measures to ensure that the investment in question is made if such
investment is still relevant on the basis of the most recent ten-year network
development plan:

(a)

to require the transmission system operator to execute the investments in question;

(b)

to organise a tender procedure open to any investors for the investment in question;
or

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EN

(c)

to oblige the transmission system operator to accept a capital increase to finance the
necessary investments and allow independent investors to participate in the capital.
Where the regulatory authority has made use of its powers under point (b) of the first
subparagraph, it may oblige the transmission system operator to agree to one or more
of the following:

(d)

financing by any third party;

(e)

construction by any third party;

(f)

building the new assets concerned itself;

(g)

operating the new asset concerned itself.
The transmission system operator shall provide the investors with all information
needed to realise the investment, shall connect new assets to the transmission
network and shall generally make its best efforts to facilitate the implementation of
the investment project.
The relevant financial arrangements shall be subject to approval by the regulatory
authority.

8.

Where the regulatory authority has made use of its powers under the first
subparagraph of paragraph 7, the relevant tariff regulations shall cover the costs of
the investments in question.

⌦ SECTION 4
DESIGNATION AND CERTIFICATION OF TRANSMISSION SYSTEM OPERATORS ⌫
Article 52 10
Designation and certification of transmission system operators

EN

1.

Before an undertaking is approved and designated as transmission system operator, it
shall be certified according to the procedures laid down in paragraphs 4, 5, 6 of this
Article and in Article 3 49 of [recast of Regulation 714/2009 as proposed by
COM(2016)861/2].

2.

Undertakings which own a transmission system and which have been certified by the
national regulatory authority as having complied with the requirements of Article
43 9, pursuant to the certification procedure below, shall be approved and designated
as transmission system operators by Member States. The designation of transmission
system operators shall be notified to the Commission and published in the Official
Journal of the European Union.

3.

Transmission system operators shall notify to the regulatory authority any planned
transaction which may require a reassessment of their compliance with the
requirements of Article 439.

4.

Regulatory authorities shall monitor the continuing compliance of transmission
system operators with the requirements of Article 439. They shall open a certification
procedure to ensure such compliance:

(a)

upon notification by the transmission system operator pursuant to paragraph 3;

(b)

on their own initiative where they have knowledge that a planned change in rights or
influence over transmission system owners or transmission system operators may

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EN

lead to an infringement of Article 439, 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 within a period of four months from the date of the notification by
the transmission system 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 of a transmission system operator
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 3 48 of
recast of Regulation 714/2009 as proposed by COM(2016)861/2].

7.

The regulatory authorities and the Commission may request from transmission
system operators and undertakings performing any of the functions of generation or
supply any information relevant for the fulfilment of their tasks under this Article.

8.

Regulatory authorities and the Commission shall preserve the confidentiality of
commercially sensitive information.
Article 53 11
Certification in relation to third countries

1.

Where certification is requested by a transmission system owner or a transmission
system operator which is controlled by a person or persons from a third country or
third countries, 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 or persons from a third country or third
countries acquiring control of a transmission system or a transmission system
operator.

EN

2.

The transmission system operator shall notify to the regulatory authority any
circumstances that would result in a person or persons from a third country or third
countries acquiring control of the transmission system or the transmission system
operator.

3.

The regulatory authority shall adopt a draft decision on the certification of a
transmission system operator within four months from the date of notification by the
transmission system operator. It shall refuse the certification if it has not been
demonstrated:

(a)

that the entity concerned complies with the requirements of Article 439; 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 of the Member State and the Community ⌦ Union ⌫. In considering that
question the regulatory authority or other competent authority so designated shall
take into account:

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–

the rights and obligations of the Community ⌦ Union ⌫ with respect to that
third country arising under international law, including any agreement
concluded with one or more third countries to which the Community
⌦ Union ⌫ is a party and which addresses the issues of security of energy
supply;

–

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 Community ⌦ Union ⌫ law; and

–

other specific facts and circumstances of the case and the third country
concerned.

4.

The regulatory authority shall notify the 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(b), 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 439; and

(b)

granting certification will not put at risk the security of energy supply to the
Community ⌦ Union ⌫ .

6.

The Commission shall examine the request referred to in paragraph 5 as soon as it is
received. Within a period of two months after receiving the request, it shall deliver
its opinion to the national regulatory authority or, if the request was made by the
designated competent authority, to that authority.
In preparing the opinion, the Commission may request the views of the Agency, the
Member State concerned, and interested parties. In the event that the Commission
makes such a request, the two-month period of shall be extended by two months.
In the absence of an opinion by the Commission within the period referred to in the
first and second subparagraphs, the Commission shall be deemed not to raise
objections to the decision of the regulatory authority.

EN

7.

When assessing whether the control by a person or persons from a third country or
third countries will put at risk the security of energy supply to the Community
⌦ Union ⌫ , the Commission shall take into account:

(a)

the specific facts of the case and the third country or third countries concerned; and

(b)

the rights and obligations of the Community ⌦ European Union ⌫ with respect to
that third country or third countries arising under international law, including an
agreement concluded with one or more third countries to which the Community
⌦ Union ⌫ is a party and which addresses the issues of security of supply.

8.

The national regulatory authority shall, within a period of two months after the
expiry of the period referred to in paragraph 6, adopt its final decision on the
certification. In adopting its final decision the national regulatory authority shall take
utmost account of the Commission’s opinion. In any event Member States 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 to assess
paragraph 3(b), it may require the national regulatory authority to adopt its final
decision in accordance with the assessment of that competent authority. The national

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EN

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 such decision.
9.

Nothing in this Article shall affect the right of Member States to exercise, in
compliance with Community ⌦ Union ⌫ law, national legal controls to protect
legitimate public security interests.

10. The Commission may adopt Guidelines setting out the details of the procedure to be
followed for the application of this Article. Those measures, designed to amend non-essential
elements of this Directive by supplementing it, shall be adopted in accordance with the
regulatory procedure with scrutiny referred to in Article 46(2).
10.

10. This Article, with exception of paragraph 3(a), shall also apply to Member States
which are subject to a derogation under Article 6644.

new
Article 54
Ownership of storage and provision of ancillary services
by transmission system operators

EN

1.

Transmission system operators shall not be allowed to own, manage or operate
energy storage facilities and shall not own directly or indirectly control assets that
provide ancillary services.

2.

By way of derogation from paragraph 1, Member States may allow transmission
system operators to own, manage or operate storage facilities and provide nonfrequency ancillary services if the following conditions are fulfilled:

(a)

other parties, following an open and transparent tendering procedure, have not
expressed their interest to own, control, manage or operate such facilities offering
storage and/or non-frequency ancillary services to the transmission system operator;

(b)

such facilities or non-frequency ancillary services are necessary for the transmission
system operators to fulfil its obligations under this regulation for the efficient,
reliable and secure operation of the transmission system and they are not used to sell
electricity to the market; and

(c)

the regulatory authority has assessed the necessity of such derogation taking into
account the conditions under points (a) and (b) of this paragraph and has granted its
approval.

3.

The decision to grant derogation shall be notified to the Agency and the Commission
along with relevant information about the request and the reasons for granting the
derogation.

4.

The transmission system operator shall perform at regular intervals or at least every
five years a public consultation for the required storage services in order to assess the
potential interest of market parties to invest in such facilities and terminate its own
storage activities in case third parties can provide the service in a cost-effective
manner.

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2009/72/EC (adapted)

CHAPTER VII Section 5
Unbundling and transparency of accounts
Article 55 30
Right of access to accounts
1.

Member States or any competent authority they designate, including the regulatory
authorities referred to in Article 5735, shall, insofar as necessary to carry out their
functions, have right of access to the accounts of electricity undertakings as set out in
Article 5631.

2.

Member States and any designated competent authority, including the regulatory
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 56 31
Unbundling of accounts

1.

Member States shall take the necessary steps to ensure that the accounts of electricity
undertakings are kept in accordance with paragraphs 2 and 3.

2.

Electricity 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 of the European Parliament and of the
Council52 ⌫ the Fourth Council Directive 78/660/EEC of 25 July 1978 based on
Article 44(2)(g)53 of the Treaty on the annual accounts of certain types of
companies54.
Undertakings which are not legally obliged to publish their annual accounts shall
keep a copy of these at the disposal of the public in their head office.

3.

Electricity undertakings shall, in their internal accounting, keep separate accounts for
each of their transmission and distribution 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. They shall
also keep accounts, which may be consolidated, for other electricity activities not
relating to transmission or distribution. Until 1 July 2007, they shall keep separate

52

Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual
financial statements, consolidated financial statements and related reports of certain types of
undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and
repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19)
The title of Directive 78/660/EEC has been adjusted to take account of the renumbering of the Articles
of the Treaty establishing the European Community in accordance with Article 12 of the Treaty of
Amsterdam; the original reference was to Article 54(3)(g).
OJ L 222, 14.8.1978, p. 11.

53

54

EN

103

EN

accounts for supply activities for eligible customers and supply activities for noneligible customers. Revenue from ownership of the transmission or distribution
system shall be specified in the accounts. Where appropriate, they shall keep
consolidated accounts for other, non-electricity activities. The internal accounts shall
include a balance sheet and a profit and loss account for each activity.
4.

The audit referred to in paragraph 2 shall, in particular, verify that the obligation to
avoid discrimination and cross-subsidies referred to in paragraph 3 is respected.

CHAPTER VIII
ORGANISATION OF ACCESS TO THE SYSTEM
CHAPTER VII IX
NATIONAL REGULATORY AUTHORITIES

2009/72/EC (adapted)
Article 5735
Designation and independence of regulatory authorities
1.

Each Member State shall designate a single national 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 Community
⌦ Union ⌫ level within the Board of Regulators of the Agency in accordance with
Article 14(1) of [recast of Regulation 713/2009 as proposed by COM(2016)863/2].

3.

By way of derogation from paragraph 1 of this Article, a Member State may
designate regulatory authorities for small systems on 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. This derogation shall be
without prejudice to the appointment of one senior representative for representation
and contact purposes at Community ⌦ Union ⌫ level within the Board of
Regulators of the Agency in compliance with [Article 19 14(1) of recast of
Regulation 713/2009 as proposed by COM(2016)863/2].

4.

Member States shall guarantee the independence of the regulatory authority and shall
ensure that it exercises its powers impartially and transparently. For this purpose,
Member State shall ensure that, when carrying out the regulatory tasks conferred
upon it by this Directive and related legislation, 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)

EN

act independently from any market interest; and

104

EN

(ii)

do not seek or take direct instructions from any government or other public or
private entity when carrying out the regulatory tasks. This requirement is
without prejudice to close cooperation, as appropriate, with other relevant
national authorities or to general policy guidelines issued by the government
not related to the regulatory powers and duties under Article 5937.

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, and has separate annual budget allocations, with autonomy in the
implementation of the allocated budget, and adequate human and financial resources
to carry out its duties; and

(b)

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 five up
to seven years, renewable once;

new
(c)

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, which
ensures that the candidates have the necessary skills and experience for any relevant
position in the national regulatory authority and that parliamentary hearings are held;

(d)

conflict of interest provisions 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 in
the national regulatory authority;

(e)

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.

2009/72/EC
In regard to point (b) of the first subparagraph, 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.

EN

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2009/72/EC (adapted)
new
Article 5836
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
their duties and powers as laid down in Article 5937, in close consultation with other relevant
national authorities including competition authorities and authorities from neighbouring
countries, including third countries  as appropriate, and without prejudice to their
competencies:
(a)

promoting, in close cooperation with the Agency, regulatory authorities of other
Member States and the Commission, a competitive,
flexible, secure and
environmentally sustainable internal market in electricity within the Community
⌦ Union ⌫, and effective market opening for all customers and suppliers in the
Community ⌦ Union ⌫ and ensuring appropriate conditions for the effective and
reliable operation of electricity networks, taking into account long-term objectives;

(b)

developing competitive and properly functioning regional cross-border, markets
within the Community ⌦ Union ⌫ in view of the achievement of the objectives
referred to in point (a);

(c)

eliminating restrictions on trade in electricity between Member States, including
developing appropriate cross-border transmission capacities to meet demand and
enhancing the integration of national markets which may facilitate electricity flows
across the Community ⌦ Union ⌫;

(d)

helping to achieve, in the most cost-effective way, the development of secure,
reliable and efficient non-discriminatory systems that are consumer oriented, and
promoting system adequacy and, in line with general energy policy objectives,
energy efficiency as well as the integration of large and small-scale production of
electricity from renewable energy sources and distributed generation in both
transmission and distribution networks
and in facilitating their operation in
relation to other energy networks of gas or heat  ;

(e)

facilitating access to the network for new generation capacity and energy storage
facilities  , in particular removing barriers that could prevent access for new market
entrants and of electricity from renewable energy 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;

2009/72/EC (adapted)
new
(g)

EN

(g) ensuring that customers benefit through the efficient functioning of their national
market, promoting effective competition and helping to ensure consumer protection;

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(h)

(h) helping to achieve high standards of universal and public service in electricity
supply, contributing to the protection of vulnerable customers and contributing to the
compatibility of necessary data exchange processes for customer switching.
Article 59 37
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 ⌦ and ⌫ their methodologies;

(b)

ensuring compliance of transmission and distribution system operators and, where
relevant, system owners, as well as of any electricity undertakings
and other
market participants,  with their obligations under this Directive , the [recast of
Regulation 714/2009 as proposed by COM(2016)861/2], the network codes adopted
pursuant to Article 55 [recast of Regulation 714/2009 as proposed by
COM(2016)861/2], and the guidelines adopted pursuant to Article 57 of [recast of
Regulation 714/2009 as proposed by COM(2016)861/2  and other relevant
Community ⌦ Union ⌫ legislation, including as regards cross-border issues;

new
(c)

approving products and procurement process for non-frequency ancillary services;

(d)

implementing the network codes and Guidelines adopted pursuant to Article 55 to 57
of the [recast of Regulation 714/2009 as proposed by COM(2016)861/2] through
national measures or, where so required, coordinated regional or Union-wide
measures ;

2009/72/EC
new
(e)

c) cooperating in regard to cross-border issues with the regulatory authority or
authorities of the Member States concerned and with the Agency,
in particular
through participation in the work of the Agency's Board of Regulators pursuant to
Article 20 of [recast of Regulation 713/2009 as proposed by COM(2016)863/2];

(f)

d) complying with, and implementing, any relevant legally binding decisions of the
Agency and of the Commission;

new
(g)

EN

ensuring that interconnector capacities are made available to the utmost extent
pursuant to Article 14 of [recast of Regulation 714/2009 as proposed by
COM(2016)861/2];

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2009/72/EC (adapted)
new
(h)

e) reporting annually on its activity and the fulfilment of its duties to the relevant
authorities of the Member States, the Agency and the Commission. Such reports
shall cover the steps taken and the results obtained as regards each of the tasks listed
in this Article;

(i)

f) ensuring that there are no cross-subsidies between transmission, distribution, and
supply activities;

(j)

g) monitoring investment plans of the transmission system operators, and providing
in its annual report an assessment of the investment plans of the transmission system
operators as regards their consistency with the Community ⌦ Union ⌫ -wide
network development plan referred to in Article 8(3(b) 27(1)(b) of the [recast of
Regulation 714/2009 as proposed by COM(2016)861/2] Regulation (EC)
No 714/2009; such assessment may include recommendations to amend those
investment plans;

new
(k)

measuring the performance of the TSOs and DSOs in relation to the development of
a smart grid that promotes energy efficiency and the integration of RES based on a
limited set of Union-wide indicators, and publish a national report every 2 years,
including recommendations for improvement where necessary;

2009/72/EC (adapted)
new

EN

(l)

h) setting or approving standards and requirements for quality of service and supply
or contributing thereto together with other competent authorities and 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;

(m)

(i) monitoring the level of transparency, including of wholesale prices, and ensuring
compliance of electricity undertakings with transparency obligations;

(n)

j) monitoring the level and effectiveness of market opening and competition at
wholesale and retail levels, including on electricity exchanges, prices for household
customers including prepayment systems, switching rates, disconnection rates,
charges for and the execution of maintenance services, and complaints by household
customers, as well as any distortion or restriction of competition, including providing
any relevant information, and bringing any relevant cases to the relevant competition
authorities;

(o)

k) 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

108

EN

so, and, where appropriate, informing the national competition authorities of such
practices;
(p)

n) respecting contractual freedom with regard to interruptible supply contracts and
with regard to long-term contracts provided that they are compatible with
Community law and consistent with Community policies;

(q)

m) monitoring the time taken by transmission and distribution system operators to
make connections and repairs;

(r)

n) helping to ensure, together with other relevant authorities, that the consumer
protection measures, including those set out in Annex I, are effective and enforced;

(s)

o) publishing recommendations, at least annually, in relation to compliance of supply
prices with Article 5 3, and providing these to the competition authorities, where
appropriate;

(t)

p) ensuring 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 ⌦ Article 24 and
Article 35 ⌫ under point (h) of Annex I;

(u)

q) monitoring the implementation of rules relating to the roles and responsibilities of
transmission system operators, distribution system operators, suppliers and
customers and other market parties pursuant to [recast of Regulation 714/2009 as
proposed by COM(2016)861/2]Regulation (EC) No 714/2009;

(v)

r) monitoring investment in generation
security of supply;

(w)

(s) monitoring technical cooperation between Community ⌦ Union ⌫ and thirdcountry transmission system operators;

(x)

v) monitoring the implementation of safeguards measures as referred to in Article 42;
and

(y)

contributing to the compatibility of data exchange processes for the most important
market processes at regional level.

and storage  capacities in relation to

new
(z)

monitoring the availability of comparison websites, including comparison tools that
fulfil the criteria in Article 14.

2009/72/EC
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 transmission system operators and, as

EN

109

EN

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 the Agency 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.

2009/72/EC (adapted)
new

EN

3.

4. Member States shall ensure that regulatory authorities are granted the powers
enabling them to carry out the duties referred to in ⌦ this Article ⌫ 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 electricity undertakings;

(b)

to carry out investigations into the functioning of the electricity markets, and to
decide upon and impose any necessary and proportionate measures to promote
effective competition and ensure the proper functioning of the market. Where
appropriate, the regulatory authority shall also have the power 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 electricity 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 electricity
undertakings not complying with their obligations under this Directive or any
relevant legally binding decisions of the regulatory authority or of the Agency, or to
propose that a competent court impose such penalties. This shall include the power to
impose or propose the imposition of penalties of up to 10 % of the annual turnover of
the transmission system operator on the transmission system operator or of up
to 10 % of the annual turnover of the vertically integrated undertaking on the
vertically integrated undertaking, as the case may be, for non-compliance with their
respective obligations pursuant to this Directive; and

(e)

appropriate rights of investigations and relevant powers of instructions for dispute
settlement under paragraphs 11 and 12.

4.

3. In addition to the duties conferred upon it under paragraph 1 and 3 of this Article,
when an independent system operator has been designated under Article 44 13, the
regulatory authority shall:

(a)

monitor the transmission system owner’s and the independent system operator’s
compliance with their obligations under this Article, and issue penalties for noncompliance in accordance with paragraph 3 4(d);

(b)

monitor the relations and communications between the independent system operator
and the transmission system owner so as to ensure compliance of the independent
system operator with its obligations, and in particular approve contracts and act as a
dispute settlement authority between the independent system operator and the

110

EN

transmission system owner in respect of any complaint submitted by either party
pursuant to paragraph 11;

EN

(c)

without prejudice to the procedure under Article 4413(2)(c), for the first ten-year
network development plan, approve the investments planning and the multi-annual
network development plan presented at least every two years  annually by the
independent system operator;

(d)

ensure that network access tariffs collected by the independent system 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 transmission system owner and independent system operator; and

(f)

monitor the use of congestion charges collected by the independent system operator
in accordance with [Article 17(2)16(6) of recast of Regulation 714/2009 as proposed
by COM(2016)861/2].

5.

In addition to the duties and powers conferred on it under paragraphs 1 and 3 4 of
this Article, when a transmission system operator has been designated in accordance
with Chapter XV, the regulatory authority shall be granted at least the following
duties and powers:

(a)

to issue penalties in accordance with paragraph 4(d) for discriminatory behaviour in
favour of the vertically integrated undertaking;

(b)

to monitor communications between the transmission system operator and the
vertically integrated undertaking so as to ensure compliance of the transmission
system operator with its obligations;

(c)

to act as dispute settlement authority between the vertically integrated undertaking
and the transmission system 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;

(e)

to approve all commercial and financial agreements between the vertically integrated
undertaking and the transmission system 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 5021(4). Such justification shall, in
particular, include evidence to the end that no discriminatory behaviour to the
advantage of the vertically integrated undertaking has occurred;

(g)

to carry out inspections, including unannounced ones, on the premises of the
vertically integrated undertaking and the transmission system operator; and

(h)

to assign all or specific tasks of the transmission system operator to an independent
system operator appointed in accordance with Article 4413 in case of a persistent
breach by the transmission system operator of its obligations under this Directive, in
particular in case of repeated discriminatory behaviour to the benefit of the vertically
integrated undertaking.

111

EN

6.

The regulatory authorities shall , except in cases where the Agency is competent to
fix and approve the terms and conditions or methodologies for the implementation of
network codes and guidelines under Chapter VII of [recast of Regulation 714/2009
as proposed by COM(2016)861/2] pursuant to Article 5(2) of [recast of Regulation
713/2009 as proposed by COM(2016)863/2] because of their coordinated nature, 
be responsible for fixing or approving sufficiently in advance of their entry into force
at least the national  methodologies used to calculate or establish the terms and
conditions for:

(a)

connection and access to national networks, including transmission and distribution
tariffs or their methodologies. Those tariffs or methodologies shall allow the
necessary investments in the networks to be carried out in a manner allowing those
investments to ensure the viability of the networks;

(b)

the provision of balancing
ancillary  services which shall be performed in the
most economic manner possible and provide appropriate incentives for network users
to balance their input and off-takes. The balancing ancillary  services shall be
provided in a fair and non-discriminatory manner and be based on objective criteria;
and

(c)

access to cross-border infrastructures, including the procedures for the allocation of
capacity and congestion management.

7.

The methodologies or the terms and conditions referred to in paragraph 6 shall be
published.
8. In fixing or approving the tariffs or methodologies and the balancing services, the
regulatory authorities shall ensure that transmission and distribution system operators
are granted appropriate incentive, over both the short and long term, to increase
efficiencies, foster market integration and security of supply and support the related
research activities.

new
8.

With a view to increasing transparency in the market and provide to all interested
parties all necessary information, decisions or proposals for a decision concerning
transmission and distribution tariffs as referred in Article 60(12), regulatory
authorities shall make available to market parties the detailed methodology and
underlying costs used for the calculation of the relevant network tariffs.

2009/72/EC
9.

EN

The regulatory authorities shall monitor congestion management of national
electricity systems including interconnectors, and the implementation of congestion
management rules. To that end, transmission system operators or market operators
shall submit their congestion management rules, including capacity allocation, to the
national regulatory authorities. National regulatory authorities may request
amendments to those rules.

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2009/72/EC (adapted)
new
Article 60 37
⌦ Decisions and complaints ⌫

EN

1.

10. Regulatory authorities shall have the authority to require transmission and
distribution system operators, if necessary, to modify the terms and conditions,
including tariffs or methodologies referred to in this Article, to ensure that they are
proportionate and applied in a non-discriminatory manner , in line with Article 16
of [recast of Regulation 714/2009 as proposed by COM(2016)861/2] . In the event
of delay in the fixing of transmission and distribution tariffs, regulatory authorities
shall have the power to fix or approve provisional transmission and distribution
tariffs or methodologies and to decide on the appropriate compensatory measures if
the final transmission and distribution tariffs or methodologies deviate from those
provisional tariffs or methodologies.

2.

11. Any party having a complaint against a transmission or distribution system
operator in relation to that operator’s obligations under this Directive may refer the
complaint to the regulatory authority which, acting as 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.

12. 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, at the
latest 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.

13. 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 Treaty, and in particular
Article 82 thereof.

5.

14. 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.

15. Complaints referred to in paragraphs 11 and 12 shall be without prejudice to the
exercise of rights of appeal under Community ⌦ Union ⌫ or national law.

7.

16. 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.

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EN

8.

17. 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 6138
⌦ Regional cooperation between regulators on ⌫ Regulatory regime for cross-border
issues
1.

Regulatory authorities shall closely consult and cooperate with each other
, in
particular within the Agency,  and shall provide each other and the Agency 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 electricity exchanges and the allocation of
cross-border capacity, and to enable an adequate level of interconnection capacity,
including through new interconnection, 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;

new
(b)

coordinate the joint oversight of entities performing functions at regional level;

(c)

coordinate, in cooperation with other involved authorities, the joint oversight of
national, regional and European-wide adequacy assessments;

2009/72/EC (adapted)
new

EN

(d)

coordinate the development of all network codes and Guidelines for the relevant
transmission system operators and other market actors ; and

(e)

coordinate the development of the rules governing the management of congestion.

3.

National 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 may ⌦ is empowered ⌫ to adopt
delegated acts in accordance
with Article 66 to establish  Gguidelines on the extent of the duties of the
regulatory authorities to cooperate with each other and with the Agency. Those
measures, designed to amend non-essential elements of this Directive by
supplementing it, shall be adopted in accordance with the regulatory procedure with
scrutiny referred to in Article 46(2).

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EN

new
Article 62
Duties and powers of regulatory authorities with respect to regional operational centres
1.

The regional regulatory authorities of the geographical area where a regional
operational centre is established shall, in close coordination with each other:

(a)

approve the statutes and rules of procedure;

(b)

approve the annual budget;

(c)

approve the cooperative decision-making process;

(d)

assess if the regional operational centre has the appropriate competences, resources
and impartiality to carry out independently the functions and tasks assigned to it,
including security, liability and contingency arrangements;

(e)

ensure its compliance with the obligations under this Regulation and other relevant
Union legislation, notably as regards cross-border issues;

(f)

monitor the performance of their functions and report annually to the Agency in this
respect.

2.

Member States shall ensure that regulatory authorities are granted the powers
enabling them to carry out the duties referred to in paragraph 1 in an efficient and
expeditious manner. For this purpose, the regulatory authorities shall have at least the
following powers:

(a)

to request information from regional operational centres;

(b)

to carry out inspections, including unannounced inspections, at the premises of
regional operational centres;

(c)

to issue joint binding decisions on regional operational centres.

2009/72/EC (adapted)
new

Compliances with the

EN

Article 63 39
network codes and Guidelines

1.

Any regulatory authority and the Commission may request the opinion of the Agency
on the compliance of a decision taken by a regulatory authority with the network
codes and  Guidelines referred to in this Directive or in [recast of Regulation
714/2009 as proposed by COM(2016)861/2]Regulation (EC) No 714/2009.

2.

The Agency 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.

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EN

3.

Where the regulatory authority which has taken the decision does not comply with
the Agency’s opinion within four months from the date of receipt of that opinion, the
Agency 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 referred to in this Directive
or in [recast of Regulation 714/2009 as proposed by COM(2016)861/2]Regulation
(EC) No 714/2009 within two months from the date of that decision.

5.

Where the Commission, within two months after having been informed by the
Agency 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  Guidelines referred to in this
Directive or in [recast of Regulation 714/2009 as proposed by COM(2016)861/2]
Regulation (EC) No 714/2009, 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 further, 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 that the
the network codes and  gGuidelines 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 respectively, 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
their decision within a period of two months and shall inform the Commission
accordingly.

9.

The Commission may ⌦ is empowered to ⌫ adopt delegated acts in accordance
with Article 66 to establish  gGuidelines setting out the details of the procedure to
be followed for the application of this Article. Those measures, designed to amend
non-essential elements of this Directive by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny referred to in Article 46(2).
Article 64 40
Record keeping

EN

1.

Member States shall require supply undertakings to keep at the disposal of the
national authorities, including the national regulatory authority, the national
competition authorities and the Commission, for the fulfilment of their tasks, for at
least five years, the relevant data relating to all transactions in electricity supply
contracts and electricity derivatives with wholesale customers and transmission
system 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

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concerned, as well as specified details of all unsettled electricity supply contracts and
electricity derivatives.
3.

The regulatory authority may decide to make available to market participants
elements of that information provided that commercially sensitive information on
individual market players or individual transactions is not released. This paragraph
shall not apply to information about financial instruments which fall within the scope
of Directive 2004/39/EC.
4. To ensure the uniform application of this Article, the Commission may adopt
Guidelines which defining the methods and arrangements for record keeping as well
as the form and content of the data that shall be kept. Those measures, designed to
amend non-essential elements of this Directive by supplementing it, shall be adopted
in accordance with the regulatory procedure with scrutiny referred to in
Article 46(2).

4.

5. With respect to transactions in electricity derivatives of supply undertakings with
wholesale customers and transmission system operators, this Article shall apply only
once the Commission has adopted the Guidelines referred to in paragraph 4.

5.

6. The provisions of this Article shall not create additional obligations towards the
authorities referred to in paragraph 1 for entities falling within the scope of Directive
2004/39/EC.

6.

7. In the event that the authorities referred to in paragraph 1 need access to data kept
by entities falling within the scope of Directive 2004/39/EC, the authorities
responsible under that Directive shall provide them with the required data.

2009/72/EC

CHAPTER X
RETAIL MARKETS

2009/72/EC
Article 41
Retail markets
In order to facilitate the emergence of well functioning and transparent retail markets in the
Community, Member States shall ensure that the roles and responsibilities of transmission
system operators, distribution system operators, supply undertakings and customers and if
necessary other market participants are defined with respect to contractual arrangements,
commitment to customers, data exchange and settlement rules, data ownership and metering
responsibility.
Those rules shall be made public, be designed with the aim to facilitate customers’ and
suppliers’ access to networks, and they shall be subject to review by the regulatory authorities
or other relevant national authorities.

EN

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Large non-household customers shall have the right to contract simultaneously with several
suppliers.

2009/72/EC

CHAPTER VIIIXII
FINAL PROVISIONS

2009/72/EC (adapted)
Article 42
Safeguard measures
In the event of a sudden crisis in the energy market and where the physical safety or security
of persons, apparatus or installations or system integrity is threatened, a Member State may
temporarily take the necessary safeguard measures.
Such measures must cause the least possible disturbance in the functioning of the internal
market and must not be wider in scope than is strictly necessary to remedy the sudden
difficulties which have arisen.
The Member State concerned shall, without delay, notify those measures to the other Member
States, and to the Commission, which may decide that the Member State concerned must
amend or abolish such measures, insofar as they distort competition and adversely affect trade
in a manner which is at variance with the common interest.

Article 6543
Level playing field

EN

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 Treaty, notably
Article ⌦ 36 ⌫ 30 thereof, and with Community ⌦ 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 the
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 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.

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Article 66 44
Derogations
1.

Member States which can demonstrate, after this Directive has been brought into
force, that there are substantial problems for the operation of their small isolated
systems, may apply for derogations from the relevant provisions of Chapters II, IV,
V, and Section 4 of Chapter VI IV, VI, VII, and VIII, as well as Chapter III, in the
case of micro isolated systems, as far as refurbishing, upgrading and expanding
existing capacity are concerned, which may be granted to them by the Commission.
The Commission shall inform the Member States of those applications before taking
a decision, taking into account respect for confidentiality. That decision shall be
published in the Official Journal of the European Union.

2.

Article 439 shall not apply to Cyprus, Luxembourg and/or Malta. In addition,
Articles 7 and 36 26, 32 and 33 shall not apply to Malta.
For the purposes of Article 43 9(1)(b), the notion ‘undertaking performing any of the
functions of generation or supply’ shall not include final customers who perform any
of the functions of generation and/or supply of electricity, either directly or via
undertakings over which they exercise control, either individually or jointly,
provided that the final customers including their shares of the electricity produced in
controlled undertakings are, on an annual average, net consumers of electricity and
provided that the economic value of the electricity they sell to third parties is
insignificant in proportion to their other business operations.
Article 45
Review procedure

In the event that in the report referred to in Article 47(6) the Commission reaches the
conclusion that given the effective manner in which network access has been carried out in a
Member State — which gives rise to fully effective, non-discriminatory and unhindered
network access — certain obligations imposed by this Directive on undertakings (including
those with respect to legal unbundling for distribution system operators) are not proportionate
to the objective pursued, the Member State in question may submit a request to the
Commission for exemption from the requirement in question.
Such request shall be notified, without delay, by the Member State to the Commission,
together with all the relevant information necessary to demonstrate that the conclusion
reached in the report on effective network access being ensured will be maintained.
Within three months of its receipt of a notification, the Commission shall adopt an opinion
with respect to the request by the Member State concerned, and where appropriate, submit
proposals to the European Parliament and to the Council to amend the relevant provisions of
this Directive. The Commission may propose, in the proposals to amend this Directive, to
exempt the Member State concerned from specific requirements, subject to that Member State
implementing equally effective measures as appropriate.
Article 46
Committee
1.

EN

The Commission shall be assisted by a committee.

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2.

Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of
Decision 1999/468/EC shall apply, having regard to the provisions of Article 8
thereof.
Article 47
Reporting

1.

The Commission shall monitor and review the application of this Directive and
submit an overall progress report to the European Parliament and the Council for the
first time by 4 August 2004, and thereafter on an annual basis. The progress report
shall cover at least:

(a)

the experience gained and progress made in creating a complete and fully operational
internal market in electricity and the obstacles that remain in this respect, including
aspects of market dominance, concentration in the market, predatory or anticompetitive behaviour and the effect thereof in terms of market distortion;

(b)

the extent to which the unbundling and tarification requirements contained in this
Directive have been successful in ensuring fair and non-discriminatory access to the
Community’s electricity system and equivalent levels of competition, as well as the
economic, environmental and social consequences of the opening of the electricity
market to customers;

(c)

an examination of issues relating to system capacity levels and security of supply of
electricity in the Community, and in particular the existing and projected balance
between demand and supply, taking into account the physical capacity for exchanges
between areas;

(d)

special attention will be given to measures taken in Member States to cover peak
demand and to deal with shortfalls of one or more suppliers;

(e)

the implementation of the derogation provided under Article 26(4) with a view to a
possible revision of the threshold;

(f)

a general assessment of the progress achieved with regard to bilateral relations with
third countries which produce and export or transport electricity, including progress
in market integration, the social and environmental consequences of the trade in
electricity and access to the networks of such third countries;

(g)

the need for possible harmonisation requirements that are not linked to the provisions
of this Directive; and

(h)

the manner in which Member States have implemented in practice the requirements
regarding energy labelling contained in Article 3(9), and the manner in which any
Commission recommendations on that issue have been taken into account.

Where appropriate, the progress report may include recommendations as regards, in
particular, the scope and modalities of labelling provisions, including the way in which
reference is made to existing reference sources and the content of those sources, and, notably,
how information relating to environmental impact, as regards at least CO2 emissions, and
radioactive waste, resulting from electricity generation from different energy sources could be
made available in a transparent, easily accessible and comparable manner throughout the
Community, how the measures taken by the Member States to control the accuracy of the
information provided by suppliers could be streamlined, and which measures could counteract
the negative effects of market dominance and market concentration.

EN

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EN

2.

Every two years, the progress report referred to in paragraph 1 shall also include an
analysis of the different measures taken in the Member States to meet public service
obligations, together with an examination of the effectiveness of those measures and,
in particular, their effects on competition in the electricity market. Where
appropriate, the report may include recommendations as to the measures to be taken
at national level to achieve high public service standards, or measures intended to
prevent market foreclosure.

3.

The Commission shall, by 3 March 2013, submit, as part of the general review, to the
European Parliament and the Council, a detailed specific report outlining the extent
to which the unbundling requirements under Chapter V have been successful in
ensuring full and effective independence of transmission system operators, using
effective and efficient unbundling as a benchmark.

4.

For the purpose of its assessment under paragraph 3, the Commission shall take into
account in particular the following criteria: fair and non-discriminatory network
access, effective regulation, the development of the network to meet market needs,
undistorted incentives to invest, the development of interconnection infrastructure,
effective competition in the energy markets of the Community and the security of
supply situation in the Community.

5.

Where appropriate, and in particular in the event that the detailed specific report
referred to in paragraph 3 determines that the conditions referred to in paragraph 4
have not been guaranteed in practice, the Commission shall submit proposals to the
European Parliament and the Council to ensure fully effective independence of
transmission system operators by 3 March 2014.

6.

The Commission shall, by 1 January 2006, forward to the European Parliament and
Council, a detailed report outlining progress in creating the internal electricity
market. That report shall, in particular, consider:

–

the existence of non-discriminatory network access,

–

effective regulation,

–

the development of interconnection infrastructure and the security of supply situation
in the Community,

–

the extent to which the full benefits of the opening of markets are accruing to small
enterprises and household customers, notably with respect to public service and
universal service standards,

–

the extent to which markets are in practice open to effective competition, including
aspects of market dominance, market concentration and predatory or anticompetitive behaviour,

–

the extent to which customers are actually switching suppliers and renegotiating
tariffs,

–

price developments, including supply prices, in relation to the degree of the opening
of markets; and,

–

the experience gained in the application of this Directive as far as the effective
independence of system operators in vertically integrated undertakings is concerned
and whether other measures in addition to functional independence and separation of
accounts have been developed which have effects equivalent to legal unbundling.

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Where appropriate, the Commission shall submit proposals to the European Parliament and
the Council, in particular to guarantee high public service standards.
Where appropriate, the Commission shall submit proposals to the European Parliament and
the Council, in particular to ensure full and effective independence of distribution system
operators before 1 July 2007. When necessary, those proposals shall, in conformity with
competition law, also concern measures to address issues of market dominance, market
concentration and predatory or anti-competitive behaviour.

new
Article 67
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 61 and Article 63 shall be
conferred on the Commission for an undetermined period of time from the (OP:
please insert the date of entry into force).

3.

The delegation of power referred to in Article 61 and 63 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 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 on Better Law-Making of 13 April 2016.

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 61 and 63 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 68
Committee procedure

EN

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.

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Article 69
Reporting
The Commission shall monitor and review the application of this Directive and submit an
overall progress report to the European Parliament and the Council as an annex to the State of
the Energy Union Report referred to in [Article 29 of Governance Regulation as proposed by
COM (2016) 549.

2009/72/EC (adapted)
Article 49 70
Transposition
1.

Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive ⌦ Articles 2, 3, 5, 6(2), 9(2),
10(2), 11 to 24, 26, 29, 31 to 34, 36, 38(5), 40 42, 51, 54, 57 to 59, 61 to 63 and
Annexes I to III ⌫ by ⌦ [12 months from entry into force] ⌫ 3 March 2011.
They shall forthwith inform ⌦ immediately communicate the text of those
provisions to ⌫ the Commission thereof.
They shall apply those measures from ⌦ [12 months from entry into force with the
exception of Article 5(3) which they shall apply from [date of entry into force] ⌫
3 March 2011, with the exception of Article 11, which they shall apply from 3 March
2013.]
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. ⌦ They shall also include a statement that references in existing laws,
regulations and administrative provisions to the Directive repealed by this Directive
shall be construed as references to this Directive. ⌫ The methods of making
⌦ Member States shall determine how ⌫ such reference ⌦ is to be made and how
that statement is to be formulated ⌫ shall be laid down by Member States.

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 71 48
Repeal

Directive 2003/54/EC ⌦ 2009/72/EC ⌫ is repealed ⌦ with effect ⌫ from 3 March 2011
⌦ [12 months from entry into force], ⌫ without prejudice to the obligations of Member
States concerning ⌦ relating to ⌫ the deadlines ⌦ time-limits ⌫ for ⌦ the ⌫
transposition ⌦ into national law ⌫ and ⌦ the dates of ⌫ application of the said Directive
⌦ set out in Annex V ⌫.
References to the repealed Directive shall be construed as references to this Directive and
shall be read in accordance with the correlation table ⌦ set out ⌫ in Annex IV.

EN

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2009/72/EC (adapted)
Article 7250
Entry into force
This Directive shall enter into force on the 20th ⌦ twentieth ⌫ day following ⌦ that of ⌫
its publication in the Official Journal of the European Union.

2009/72/EC
Article 7351
Addressees
This Directive is addressed to the Member States.
Done at Brussels,

For the European Parliament
The President

EN

For the Council
The President

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