Section 1 — Ownership unbundling
Unbundling of transmission systems and transmission system operators
1. Member States shall ensure that:
(a)
each undertaking which owns a transmission system acts as a transmission system operator;
(b)
the same person is entitled neither:
(i)
directly or indirectly to exercise control over an undertaking performing any of the functions of production or supply, and directly or indirectly to exercise control or exercise any right over a transmission system operator or over a transmission system; nor
(ii)
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 production or supply;
(c)
the same person is 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 production or supply;
(d)
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 production or supply and a transmission system operator or a transmission system.
2. The rights referred to in paragraph 1, points (b) and (c), 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, point (b), the term ‘undertaking performing any of the functions of production or supply’ shall be understood as including ‘undertaking performing any of the functions of generation or supply’ within the meaning of Directive (EU) 2019/944, and the terms ‘transmission system operator’ and ‘transmission system’ shall be understood as including ‘transmission system operator’ and ‘transmission system’ within the meaning of that Directive.
4. The obligation set out in paragraph 1, point (a), of this Article 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 part of the joint venture, unless it has been approved pursuant to Article 61 as an independent system operator or as an independent transmission operator for the purposes of Section 3.
5. For the implementation of this Article, where the person referred to in paragraph 1, points (b), (c) and (d), 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 production or supply on the other, shall be deemed not to be the same person.
6. Member States shall ensure that neither commercially sensitive information referred to in Article 40 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 production and supply.
7. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking, a Member State may decide not to apply paragraph 1. As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State’s network, where on 23 May 2019 the transmission system belonged 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 61; or
(b)
comply with the provisions of Section 3.
8. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking and arrangements are in place which guarantee more effective independence of the transmission system operator than the provisions of Section 3, a Member State may decide not to apply paragraph 1 of this Article.
As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State’s network, where on 23 May 2019 the transmission system belonged to a vertically integrated undertaking and arrangements are in place which guarantee more effective independence of the transmission system operator than the provisions of Section 3, that Member State may decide not to apply paragraph 1 of this Article.
9. Before an undertaking is approved and designated as a transmission system operator pursuant to paragraph 8 of this Article, it shall be certified in accordance with the procedures laid down in Article 71(4), (5) and (6) of this Directive and in Article 14 of Regulation (EU) 2024/1789. After that, 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.
10. Vertically integrated undertakings which own a transmission system shall not in any event be prevented from taking steps to comply with paragraph 1.
11. Undertakings performing any of the functions of production 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 operators
Independent system operators
1. Where on 3 September 2009 the transmission system belonged to a vertically integrated undertaking, a Member State may decide not to apply Article 60(1) and to designate an independent system operator upon a proposal from the transmission system owner.
As regards the part of the transmission system connecting a Member State with a third country between the border of that Member State and the first connection point with that Member State’s network, where on 23 May 2019 the transmission system belonged to a vertically integrated undertaking, that Member State may decide not to apply Article 60(1) and to designate an independent system operator upon a proposal from the transmission system owner.
The designation of an independent system operator shall be subject to approval by the Commission.
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 60(1), points (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 pursuant to Article 39;
(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 pursuant to paragraph 5, to which end it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity;
(e)
the candidate operator has demonstrated its ability to comply with its obligations pursuant to Regulation (EU) 2024/1789 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 72 and of paragraph 2 of this Article shall be approved and designated as independent system operators by Member States. The certification procedure in either Article 71 of this Directive and Article 14 of Regulation (EU) 2024/1789 or in Article 72 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 and congestion charges, for operating, maintaining and developing the transmission system, as well as 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 the authorisation procedure, construction and commissioning of the new infrastructure. For that purpose, the independent system operator shall act as a transmission system operator in accordance with this 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 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;
(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 pursuant to paragraph 5.
Unbundling of transmission system owners, hydrogen transmission network owners, natural gas storage system operators and hydrogen storage operators
1. Transmission system and hydrogen transmission network owners, where an independent system operator or an independent hydrogen transmission network operator has been appointed, and natural gas storage system operators or hydrogen storage operators which are part of vertically integrated undertakings shall be independent at least in terms of their legal form, organisation and decision making from other activities not relating to transmission, distribution, transport and storage of natural gas and hydrogen.
This Article shall apply only to natural gas storage facilities that are technically or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 33.
2. In order to ensure the independence of the transmission system or hydrogen transmission network owner and natural gas storage system operator or hydrogen storage operator referred to in paragraph 1, the following minimum criteria shall apply:
(a)
persons responsible for the management of the transmission system or hydrogen transmission network owner and natural gas storage system operator or hydrogen storage operator shall not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production and supply of natural gas and hydrogen;
(b)
appropriate measures shall be taken to ensure that the professional interests of persons responsible for the management of the transmission system or hydrogen transmission network owner and natural gas storage system operator or hydrogen storage operator are taken into account in a manner that ensures that they are capable of acting independently;
(c)
the natural gas storage system operator or hydrogen storage operator shall have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the storage facilities; this shall not preclude 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 78(7) in a subsidiary are protected; it shall enable in particular the parent company to approve the annual financial plan, or any equivalent instrument, of the natural gas storage system operator or hydrogen storage 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 storage facilities, that do not exceed the terms of the approved financial plan, or any equivalent instrument;
(d)
the transmission system or hydrogen transmission network owner and the natural gas storage system operator or hydrogen storage operator shall establish a compliance programme, which shall set out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored; it shall also 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 is empowered to adopt delegated acts in accordance with Article 90 to supplement this Directive in order to set guidelines to ensure full and effective compliance of the transmission system or hydrogen transmission network owner and of the natural gas storage system operator or hydrogen storage operator with paragraph 2 of this Article.
Section 3 — Independent transmission operators
Assets, equipment, staff and identity
1. 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 natural gas transmission, in particular:
(a)
assets that are necessary for the activity of natural gas transmission, including the transmission system, shall be owned by the transmission system operator;
(b)
personnel necessary for the activity of natural gas 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, but, a transmission system operator may render services to the vertically integrated undertaking, provided that:
(i)
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 production or supply;
(ii)
the terms and conditions of the provision of those services are approved by the regulatory authority;
(d)
without prejudice to the decisions of the Supervisory Body pursuant to Article 66, appropriate financial resources for future investment projects 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 natural gas transmission shall include at least the following tasks in addition to those listed in Article 39:
(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 ENTSO for Gas;
(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 natural gas treatment, purchasing of services (balancing costs, energy for losses);
(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, natural gas exchanges, and the other relevant market participants pursuing the objective to develop the creation of regional markets or to facilitate the liberalisation process;
(h)
all corporate services, including legal services, accountancy and IT services.
3. Transmission system operators shall be organised in a legal form as referred to in Annex II to Directive (EU) 2017/1132 of the European Parliament and of the Council ( 50 ) .
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, or for 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.
Independence of the transmission system operator
1. Without prejudice to the decisions of the Supervisory Body pursuant to Article 66, 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;
(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. Subsidiaries of the vertically integrated undertaking performing functions of production 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 production 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 Section. 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 preparation of the ten-year network development plan developed pursuant to Article 55.
5. In fulfilling their tasks listed in Article 39 and Article 63(2) of this Directive, and in complying with Article 6(1), point (a), Article 10(2), (3) and (4), Article 13(1), Article 17(1) and Article 33(6) of Regulation (EU) 2024/1789, transmission system operators shall not discriminate against different persons or entities and shall not restrict, distort or prevent competition in production 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 63(1), point (d), available for future investment projects 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 Section 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 Section shall be approved and designated as a transmission system operator by the Member State concerned. The certification procedure in either Article 71 of this Directive and Article 14 of Regulation (EU) 2024/1789 or in Article 72 of this Directive shall apply.
11. The transmission system operator shall make public detailed information regarding the quality of the natural gas transported in its networks, based on Articles 16 and 17 of Commission Regulation (EU) 2015/703 ( 51 ) .
Independence of the staff and the management of the transmission system operator
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 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 66.
2. The identity of, 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 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 the notification.
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 or a 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 or members of the administrative bodies of the transmission system operator who are subject to this paragraph.
4. The persons responsible for the management 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 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 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 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 or members of the administrative bodies of the transmission system operator.
The persons responsible for the management 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.
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 in relation to activities necessary for the preparation of the ten-year network development plan developed pursuant to Article 55.
2. The Supervisory Body shall be composed of members representing the vertically integrated undertaking, members representing third party shareholders and, where the relevant national law so provides, members representing other interested parties such as employees of the transmission system operator.
3. Article 65(2), first subparagraph, and Article 65(3) to (7) shall apply to at least half of the members of the Supervisory Body minus one.
Article 65(2), second subparagraph, point (b), shall apply to all the members of the Supervisory Body.
Compliance programme and compliance officer
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 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 regulatory authority, compliance with the programme shall be independently monitored by a compliance officer.
2. The compliance officer shall be appointed by the Supervisory Body, subject to 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 65(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;
(d)
notifying the regulatory authority on any substantial breaches with regard to the implementation of the compliance programme;
(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 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 55.
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 it with all the resources necessary for fulfilling its duties. During its 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 established by Regulation (EU) 2024/1789, in particular regarding tariffs, third-party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b)
projects undertaken in order to operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity and in optimisation of existing capacity;
(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 40.
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 the compliance officer’s 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.
Section 4 — Unbundling of hydrogen network operators
Unbundling of hydrogen transmission network operators
1. Member States shall ensure that from 5 August 2026 hydrogen transmission network operators are unbundled in accordance with the rules for natural gas transmission system operators set out in Article 60.
2. For the purpose of this Article, of Articles 46 and 60 of this Directive, and of Articles 35 and 43 of Directive (EU) 2019/944, production or supply shall include production and supply of hydrogen, and transmission shall include transport of hydrogen.
3. A Member State may decide not to apply paragraph 1 of this Article to hydrogen transmission networks belonging to a vertically integrated undertaking. In such case, the Member State concerned shall designate an independent hydrogen transmission network operator unbundled in accordance with the rules on independent system operators for natural gas set out in Article 61. Hydrogen transmission network operators and transmission system operators for natural gas unbundled in accordance with Article 60(1) may act as independent hydrogen transmission network operators, subject to the requirements pursuant to Article 69.
4. Where a hydrogen transmission network belongs to one or more certified transmission system operators for natural gas or where, on 4 August 2024, a hydrogen transmission network belongs to a vertically integrated undertaking active in hydrogen production or supply, Member States may decide not to apply paragraph 1 of this Article and designate an entity under the sole control of the transmission system operator or the joint control of two or more transmission system operators, or under the sole control of the vertically integrated undertaking active in hydrogen production or supply as an integrated hydrogen transmission network operator unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of this Chapter.
Notwithstanding the first subparagraph of this paragraph, where a Member State has granted a derogation from the requirements of Article 69 pursuant to paragraph 2 of that Article and a hydrogen transmission network belongs to one or more certified transmission system operators for natural gas unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of this Chapter, Member States may decide not to apply paragraph 1 of this Article and to designate that entity or an entity under the joint control of two or more transmission system operators as an integrated hydrogen transmission network operator unbundled in accordance with the rules on independent transmission operators for natural gas set out in Section 3 of this Chapter.
Where an undertaking includes a transmission system operator unbundled in accordance with Article 60(1) and an integrated hydrogen transmission network operator, that undertaking may be active in hydrogen production or supply, but not in the production or supply of natural gas or electricity. Where such undertaking engages in hydrogen production or supply, the transmission system operator for natural gas shall comply with the requirements set out in Section 3 of this Chapter, and the undertaking and all parts thereof shall not book or use capacity rights to inject any hydrogen into a transmission or distribution system for natural gas operated by the undertaking.
5. The rules applicable to transmission system operators set out in Article 72 shall apply to hydrogen transmission network operators.
Horizontal unbundling of hydrogen transmission network operators
1. Where a hydrogen transmission network operator is part of an undertaking active in transmission or distribution of natural gas or electricity, it shall be independent at least in terms of its legal form.
2. Member States may grant derogations, on the basis of a publicly available positive cost-benefit analysis, from the requirements of paragraph 1 to hydrogen transmission network operators, subject to a positive assessment by the regulatory authority in accordance with paragraph 4.
3. Derogations granted pursuant to paragraph 2 shall be published and notified to the Commission, accompanied by the assessment concerned referred to in paragraph 4, while preserving the confidentiality of commercially sensitive information.
4. At the moment of granting a derogation pursuant to paragraph 2, and at least every seven years thereafter, or upon a reasoned request by the Commission, the regulatory authority of the Member State granting the derogation shall publish an assessment of the impact of the derogation on transparency, cross subsidies, network tariffs and cross-border trade. Such an assessment shall include at least the calendar of expected transfers of assets from the natural gas sector to the hydrogen sector.
If the regulatory authority concludes, on the basis of an assessment, that the continued application of the derogation would have a negative impact on transparency, cross-subsidies, network tariffs and cross-border trade, or when the transfer of assets from the natural gas sector to the hydrogen sector has concluded, the Member State shall withdraw the derogation.
5. By way of derogation from paragraphs 2, 3 and 4, Estonia, Latvia and Lithuania may grant derogations from the requirements of paragraph 1 to hydrogen transmission network operators. Any such derogation shall be notified to the Commission and shall expire by 31 December 2030. After the date of expiration of a derogation granted pursuant to this paragraph, Estonia, Latvia and Lithuania may grant derogations pursuant to paragraphs 2, 3 and 4.
Unbundling of accounts for hydrogen network operators
Member States shall ensure that the accounts of hydrogen network operators are kept in accordance with Article 75.
Section 5 — Designation and certification of transmission system operators and hydrogen transmission network operators
Designation and certification of transmission system operators and hydrogen transmission network operators
1. Before an undertaking is approved and designated as transmission system operator or hydrogen transmission network operator, it shall be certified in accordance with paragraphs 4, 5 and 6 of this Article and with Article 14 of Regulation (EU) 2024/1789.
2. Undertakings which have been certified by the regulatory authority as having complied with the requirements of Article 60 or 68, pursuant to the certification procedure, shall be approved and designated as transmission system operators or hydrogen transmission network operators by Member States. The designation of transmission system operators and hydrogen transmission network operators shall be notified to the Commission and published in the Official Journal of the European Union.
3. Certified undertakings shall notify to the regulatory authority any planned transaction which may require a reassessment of their compliance with the requirements of Article 60 or 68.
4. The regulatory authorities shall monitor the continuing compliance of certified undertakings with the requirements of Article 60 or 68. They shall open a certification procedure to ensure such compliance:
(a)
upon notification by the certified undertaking pursuant to paragraph 3;
(b)
on their own initiative where they have knowledge that a planned change in rights or influence over certified undertakings or transmission system owners may lead to an infringement of Article 60 or 68 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 or a hydrogen transmission network operator within 100 working days from the date of the notification by the transmission system operator or the hydrogen transmission network 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 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 14 of Regulation (EU) 2024/1789.
7. The regulatory authorities and the Commission may request from transmission system operators, hydrogen transmission network operators and undertakings performing any of the functions of production or supply any information relevant for the fulfilment of their tasks under this Article.
8. The regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.
Certification in relation to third countries
1. Where certification is requested by a transmission system owner, a transmission system operator, a hydrogen transmission network operator or a hydrogen transmission network owner which is controlled by a person from a third country, 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 from a third country acquiring control of a transmission system, a transmission system operator, a hydrogen transmission network or a hydrogen transmission network operator.
2. The transmission system operator or hydrogen transmission network operator shall notify to the regulatory authority any circumstances that would result in a person from a third country acquiring control of the transmission system, the transmission system operator, the hydrogen transmission network or the hydrogen transmission network operator.
3. The regulatory authority shall adopt a draft decision on the certification of a transmission system operator or hydrogen transmission network operator within 100 working days from the date of notification by the transmission system operator or hydrogen network operator. It shall refuse the certification if it has not been demonstrated:
(a)
that the entity concerned complies with the requirements of Article 60 or 68; 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 or the essential security interests of the Member State and the Union; in considering that question the regulatory authority or other competent authority so designated shall take into account:
(i)
the rights and obligations of the Union with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of energy supply;
(ii)
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 Union law;
(iii)
ownership, supply or other commercial relationships that could negatively affect the incentives and the ability of the transmission system owner, the transmission system operator, the hydrogen transmission network owner or the hydrogen transmission network operator to deliver natural gas or hydrogen to the Member State or the Union;
(iv)
other specific facts and circumstances of the case and the third country concerned.
4. The regulatory authority shall notify the draft 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, point (b), of this Article 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 60 or 68; and
(b)
granting certification will put at risk the security of energy supply to the Union.
6. The Commission shall examine the request referred to in paragraph 5 as soon as it is received. Within a period of 50 working days after receiving the request, it shall deliver its opinion to the regulatory authority or, if the request was made by the designated competent authority, to that authority.
In preparing its opinion, the Commission may request the views of ACER, the Member State concerned and interested parties. In the event that the Commission makes such a request, the 50-working day period shall be extended by a further 50 working days.
In the absence of an opinion by the Commission within the period referred to in the first and second subparagraphs, the Commission is deemed not to raise objections to the decision of the regulatory authority.
7. When assessing whether the control by a person from a third country will put at risk the security of energy supply or the essential security interests of the Union or of any Member State, the Commission shall take into account:
(a)
the specific facts of the case and the third country concerned, including evidence of the influence of the third country concerned over the situation described in the paragraph 3, point (b)(iii); and
(b)
the rights and obligations of the Union with respect to that third country arising under international law, including an agreement concluded with one or more third countries to which the Union is a party and which addresses the issues of security of supply.
8. The regulatory authority shall, within a period of 50 working days after the expiry of the period referred to in paragraph 6, adopt its final decision on the certification. In adopting its final decision, the regulatory authority shall take utmost account of the Commission’s opinion. In any event a Member State 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 pursuant to paragraph 3, point (b), it may require the regulatory authority to adopt its final decision in accordance with the assessment of that competent authority. The 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 that decision.
9. Nothing in this Article shall affect the right of Member States to exercise, in compliance with Union law, national legal controls to protect legitimate public security interests.
10. The Commission is empowered to adopt delegated acts in accordance with Article 90 in order to supplement this Directive by providing guidelines setting out the details of the procedure to be followed for the application of this Article.
Designation of operators of natural gas storage, hydrogen storage, LNG facilities and hydrogen terminals
Member States shall designate, or shall require undertakings which own natural gas storage, hydrogen storage, LNG facilities and hydrogen terminals 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 operators for such infrastructure.
Section 6 — Unbundling and transparency of accounts
Right of access to accounts
1. Member States or any competent authority they designate, including the regulatory authorities and the dispute settlement authorities referred to in Article 32(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas and hydrogen undertakings as set out in Article 75.
2. Member States and any designated competent authority, including the regulatory authorities and the dispute settlement 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.
Unbundling of accounts
1. Member States shall take the necessary steps to ensure that the accounts of natural gas and hydrogen undertakings are kept in accordance with paragraphs 2 to 5.
2. Natural gas and hydrogen 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.
Undertakings which are not legally obliged to publish their annual accounts shall keep a copy thereof at the disposal of the public at their head office.
3. Undertakings shall, in their internal accounting, keep separate accounts for each of their transmission, distribution, LNG, hydrogen terminal, natural gas and hydrogen storage and hydrogen transport 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. Infrastructure assets of the undertakings shall be allocated to the relevant accounts and regulatory asset bases separately for natural gas, electricity or hydrogen assets and that allocation shall be made transparent. Undertakings shall also keep accounts, which may be consolidated, for other activities not relating to transmission, distribution, LNG, hydrogen terminal, natural gas or hydrogen storage or hydrogen transport activities. Revenue from ownership of the transmission, distribution or hydrogen network shall be specified in the accounts. Where appropriate, undertakings shall keep consolidated accounts for other, non-natural gas and non-hydrogen activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity. The separation of accounts shall be audited in accordance with the rules laid down in paragraph 2 and reported to the regulatory authority concerned.
4. The audit referred to in paragraph 2 of this Article shall, in particular, verify that the obligation to avoid discrimination and cross-subsidies referred to in paragraph 3 of this Article is respected. Without prejudice to Article 5 of Regulation (EU) 2024/1789, there shall be no cross-subsidisation between natural gas system users and hydrogen network users.
5. Undertakings shall specify in their internal accounting the rules for the allocation of assets and liabilities, expenditure and income as well as for depreciation, without prejudice to nationally applicable accounting rules, which they follow in drawing up the separate accounts referred to in paragraph 3. Those internal rules may be amended only in exceptional cases. Such amendments shall be notified to the regulatory authority and duly substantiated.
6. The annual accounts shall indicate in notes any transaction of a certain size conducted with related undertakings.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
