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.
