Enabling investments with a cross-border impact
Article 16
Open ↗1. The efficiently incurred investment costs, which exclude maintenance costs, related to a project of common interest falling under the energy infrastructure categories set out in point (1)(a), (b), (c), (d) and (f) of Annex II, and projects of common interest falling under the energy infrastructure category set out in point (3) of Annex II, where they fall under the competence of national regulatory authorities in each Member State concerned, shall be borne by the relevant TSO or the project promoters of the transmission infrastructure of the Member States to which the project provides a net positive impact, and, to the extent not covered by congestion rents or other charges, be paid for by network users through tariffs for network access in that or those Member States. 2. The provisions of this Article shall apply to a project of common interest falling under the energy infrastructure categories set out in point (1)(a), (b), (c), (d), (f) and point (3) of Annex II, where at least one project promoter requests the relevant national authorities their application for the costs of the project. Projects falling under the energy infrastructure category set out in point (1)(e) and point (2) of Annex II may benefit from the provisions of this Article where at least one project promoter requests its application from the relevant national authorities. Where a project has several project promoters, the relevant national regulatory authorities shall without delay request all project promoters to submit the investment request jointly in accordance with paragraph 4. 3. For a project of common interest to which paragraph 1 applies, the project promoters shall keep all relevant national regulatory authorities regularly informed, at least once per year, and until the project is commissioned, of the progress of that project and the identification of costs and the impact associated with it. 4. As soon as such a project of common interest has reached sufficient maturity, and is estimated to be ready to start the construction phase within the next 36 months, the project promoters, after having consulted the TSOs from the Member States which receive a significant net positive impact from it, shall submit an investment request. That investment request shall include a request for a cross-border cost allocation and shall be submitted to all the relevant national regulatory authorities concerned, accompanied by all of the following: (a) up-to-date project-specific cost-benefit analysis consistent with the methodology drawn up pursuant to Article 11 and taking into account benefits beyond the borders of the Member States on the territory of which the project is located by considering at least the joint scenarios established for network development planning referred to in Article 12. Where additional scenarios are used, those shall be consistent with the Union’s 2030 targets for energy and climate and its 2050 climate neutrality objective and be subject to the same level of consultation and scrutiny as the process provided for in Article 12. The Agency shall be responsible for assessing any additional scenarios and ensuring their compliance with this paragraph; (b) a business plan evaluating the financial viability of the project, including the chosen financing solution, and, for a project of common interest falling under the energy infrastructure category referred to in point (3) of Annex II, the results of market testing; (c) where the project promoters agree, a substantiated proposal for a cross-border cost allocation. Where a project is promoted by several project promoters, they shall submit their investment request jointly. The relevant national regulatory authorities shall, upon receipt, transmit to the Agency, without delay, a copy of each investment request, for information purposes. The relevant national regulatory authorities and the Agency shall preserve the confidentiality of commercially sensitive information. 5. Within six months of the date on which the investment request is received by the last of the relevant national regulatory authorities, those authorities shall, after consulting the project promoters concerned, take joint coordinated decisions on the allocation of efficiently incurred investment costs to be borne by each system operator for the project, as well as their inclusion in tariffs, or on the rejection of the investment request, in whole or in part, if the common analysis of the relevant national regulatory authorities concludes that the project or a part of it fails to provide a significant net benefit in any of the Member States of the relevant national regulatory authorities. The relevant national regulatory authorities shall include the relevant efficiently incurred investment costs in tariffs, as defined in the recommendation referred to in paragraph 11, in line with the allocation of investment costs to be borne by each system operator for the project. For projects in the territories of their respective Member State, the relevant national regulatory authorities, shall thereafter assess, where appropriate, whether any affordability issues might arise due to the inclusion of the investment costs in tariffs. In allocating the costs, the relevant national regulatory authorities shall take into account actual or estimated: (a) congestion rents or other charges; (b) revenues stemming from the inter-transmission system operator compensation mechanism established under Article 49 of Regulation (EU) 2019/943. The allocation of costs across borders shall take into account, the economic, social and environmental costs and benefits of the projects in the Member States concerned and the need to ensure a stable financing framework for the development of projects of common interest while minimising the need for financial support. In allocating costs across borders, the relevant national regulatory authorities, after consulting the TSOs concerned, shall seek a mutual agreement based on, but not limited to, the information specified in paragraphs 4, first subparagraph, points (a) and (b), of this Article. Their assessment shall consider all the relevant scenarios referred to in Article 12 and other scenarios for network development planning, allowing a robust analysis of the contribution of the project of common interest to the Union energy policy of decarbonisation, market integration, competition, sustainability and security of supply. Where additional scenarios are used, they shall be consistent with the Union’s 2030 targets for energy and climate and its 2050 climate neutrality objective and be subject to the same level of consultation and scrutiny as the process provided for in Article 12. Where a project of common interest mitigates negative externalities, such as loop flows, and that project of common interest is implemented in the Member State at the origin of the negative externality, such mitigation shall not be regarded as a cross-border benefit and shall therefore not constitute a basis for allocating costs to the TSO of the Member States affected by those negative externalities. 6. The relevant national regulatory authorities shall, on the basis of the cross-border cost allocation referred to in paragraph 5 of this Article, take into account actual costs incurred by a TSO or other project promoter as a result of the investments when fixing or approving tariffs in accordance with Article 41(1), point (a), of Directive 2009/73/EC and Article 59(1), point (a), of Directive (EU) 2019/944, insofar as those costs correspond to those of an efficient and structurally comparable operator. The relevant national regulatory authorities shall notify the cost allocation decision to the Agency, without delay, together with all the relevant information with respect to that decision. In particular, the cost allocation decision shall set out detailed reasons for the allocation of costs among Member States, including the following: (a) an evaluation of the identified impact on each of the concerned Member States, including those concerning network tariffs; (b) an evaluation of the business plan referred to in paragraph 4, first subparagraph, point (b); (c) regional or Union-wide positive externalities, such as security of supply, system flexibility, solidarity or innovation, which the project would generate; (d) the result of the consultation of the project promoters concerned. The cost allocation decision shall be published. 7. Where the relevant national regulatory authorities have not reached an agreement on the investment request within six months of the date on which the request was received by the last of the relevant national regulatory authorities, they shall inform the Agency without delay. In that case, or upon a joint request from the relevant national regulatory authorities, the decision on the investment request including cross-border cost allocation referred to in paragraph 5 shall be taken by the Agency within three months of the date of referral to the Agency. Before taking such a decision, the Agency shall consult the relevant national regulatory authorities and the project promoters. The three-month period referred to in the second subparagraph may be extended by an additional period of two months where further information is sought by the Agency. That additional period shall begin on the day following receipt of the complete information. The assessment of the Agency shall consider all relevant scenarios established under Article 12 and other scenarios for network development planning, allowing a robust analysis of the contribution of the project of common interest to the Union energy policy targets of decarbonisation, market integration, competition, sustainability and security of supply. Where additional scenarios are used, they shall be consistent with the Union’s 2030 targets for energy and climate and its 2050 climate neutrality objective and be subject to the same level of consultation and scrutiny as the process provided for in Article 12. The Agency, in its decision on the investment request including cross-border cost allocation, shall leave the determination of the way the investment costs are included in the tariffs in line with the cross-border cost allocation prescribed, to the relevant national authorities at the time of the implementation of that decision in accordance with national law. The decision on the investment request including cross-border cost allocation shall be published. Article 25(3) and Articles 28 and 29 of Regulation (EU) 2019/942 shall apply. 8. A copy of all cost allocation decisions, together with all the relevant information with respect to each decision, shall be notified, without delay, by the Agency to the Commission. That information may be submitted in aggregate form. The Commission shall preserve the confidentiality of commercially sensitive information. 9. Cost allocation decisions shall not affect the right of TSOs to apply and of national regulatory authorities to approve charges for access to networks in accordance with Article 13 of Regulation (EC) No 715/2009, Article 18(1) and Article 18(3) to (6) of Regulation (EU) 2019/943, Article 32 of Directive 2009/73/EC and Article 6 of Directive (EU) 2019/944. 10. This Article shall not apply to projects of common interest which have received an exemption from: (a) Articles 32, 33 and 34 and Article 41(6), (8) and (10) of Directive 2009/73/EC, pursuant to Article 36 of that Directive; (b) Article 19(2) and (3) of Regulation (EU) 2019/943 or Article 6, Article 59(7) and Article 60(1) of Directive (EU) 2019/944, pursuant to Article 63 of Regulation (EU) 2019/943; (c) unbundling or third party access rules, pursuant to Article 17 of Regulation (EC) No 714/2009 of the European Parliament and of the Council ( 32 ) or to Article 64 of Regulation (EU) 2019/943 and Article 66 of Directive (EU) 2019/944. 11. By 24 June 2023, the Agency shall adopt a recommendation for identifying good practices for the treatment of investment requests for projects of common interest. That recommendation shall be regularly updated as necessary, in particular to ensure consistency with the principles on the offshore grids for renewable energy cross-border cost sharing as referred to in Article 15(1). In adopting or amending the recommendation, the Agency shall carry out an extensive consultation process, involving all relevant stakeholders. 12. This Article shall apply mutatis mutandis to projects of mutual interest.