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.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
