Specific adaptations to Regulation (EC) No 715/2009 as adapted and adopted in the Energy Community
Article 4
Regulation (EC) No 715/2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005, as adapted and adopted by Ministerial Council Decision 2011/02/MC-EnC of 6 October 2011 and as adapted by Permanent High-Level Group Decision No 2018/01/PHLG-EnC of 12 January 2018, shall be adapted as follows: (1) the following Article is inserted: ‘Article 3a Certification of storage system operators 1. Contracting Parties shall ensure that each storage system operator, including any storage system operator controlled by a transmission system operator, is certified in accordance with the procedure laid down in this Article, either by the national regulatory authority or by another competent authority designated by the Contracting Party concerned pursuant to Article 3(2) of Regulation (EU) 2017/1938 of the European Parliament and of the Council, as adapted and adopted by Ministerial Council Decision 2021/15/MC-EnC (in either case, “certifying authority”). This Article also applies to storage system operators controlled by transmission system operators which have already been certified under the unbundling rules laid down in Articles 9, 10 and 11 of Directive 2009/73/EC, as adapted and adopted by Ministerial Council Decision 2011/02/MC-EnC. 2. The certifying authority shall issue a draft certification decision in respect of storage system operators that operate underground gas storage facilities with a capacity of over 3,5 TWh where, regardless of the number of storage system operators, total storage facilities were filled on 31 March 2021 and on 31 March 2022 at a level which, on average, was less than 30 % of their maximum capacity by ... [150 working days after the date of entry into force of this Decision] or within 150 working days of the date of receipt of a notification pursuant to paragraph 9. In respect of storage system operators as referred to in the first subparagraph, the certifying authority shall make its best efforts to issue a draft certification decision by 1 January 2023. In respect of all other storage system operators, the certifying authority shall issue a draft certification decision by ... [18 months after the date of entry into force of this Decision] or within 18 months of the date of receipt of a notification pursuant to paragraph 8 or 9. 3. In considering the risk to the security of energy supply, the certifying authority shall take into account any security of gas supply risk at national or Energy Community level as well as any mitigation of such risk, resulting, inter alia, from: (a) ownership, supply or other commercial relationships that could negatively affect the incentives and the ability of the storage system operator to fill the underground gas storage facility; (b) the rights and obligations of the Energy Community with respect to a third country arising under international law; (c) the rights and obligations of the Contracting Parties concerned with respect to a third country arising under agreements concluded by the Contracting Parties concerned with one or more third countries, in so far as those agreements comply with Energy Community law; or (d) any other specific facts and circumstances of the case. 4. If the certifying authority concludes that a person who directly or indirectly controls, or exercises any right over, the storage system operator within the meaning of Article 9 of Directive 2009/73/EC as adapted and adopted by Ministerial Council Decision 2011/02/MC-EnC could endanger the security of energy supply or the essential security interests of the Energy Community or of any Contracting Party, the certifying authority shall refuse the certification. Alternatively, the certifying authority may issue a certification decision subject to conditions to ensure the sufficient mitigation of the risks which could negatively influence the filling of the underground gas storage facilities, provided that the practicability of the conditions can be fully ensured by effective implementation and monitoring. Such conditions may include, in particular, a requirement that the storage system owner or storage system operator transfer management of the storage system. 5. Where the certifying authority concludes that the gas supply risks cannot be mitigated by conditions pursuant to paragraph 4, including by requiring the storage system owner or storage system operator to transfer management of the storage system, and therefore refuses the certification, it shall: (a) require the storage system owner or storage system operator or any person that it considers could endanger the security of energy supply or the essential security interests of the Energy Community or of any Contracting Party to dispose of the shareholding or rights they have over the storage system ownership or storage system operator ownership, and set a time limit for such disposal; (b) order, where appropriate, interim measures, to ensure that such a person is not able to exercise any control or right over that storage system owner or storage system operator until the disposal of the shareholding or rights; and (c) provide for appropriate compensatory measures in accordance with national law. 6. The certifying authority shall notify its draft certification decision to the Energy Community Secretariat without delay, together with all relevant information. The Energy Community Secretariat shall deliver a binding opinion on the draft certification decision to the certifying authority within 25 working days of such notification. The certifying authority shall comply with the Energy Community Secretariat’s opinion. 7. The certifying authority shall issue the certification decision within 25 working days of receipt of the Energy Community Secretariat’s opinion. 8. Before a newly built underground gas storage facility is put into operation, the storage system operator shall be certified in accordance with paragraphs 1 to 7. The storage system operator shall notify the certifying authority of its intention to put the storage facility into operation. 9. Storage system operators shall notify the relevant certifying authority of any planned transaction which would require a reassessment of their compliance with the certification requirements set out in paragraphs 1 to 4. 10. Certifying authorities shall continuously monitor storage system operators as regards compliance with the certification requirements set out in paragraphs 1 to 4. They shall open a certification procedure to reassess compliance in any of the following circumstances: (a) upon receipt of a notification by the storage system operator pursuant to paragraph 8 or 9; (b) on their own initiative where they have knowledge that a planned change in rights or in influence over a storage system operator could lead to non-compliance with the requirements of paragraphs 1, 2 and 3; (c) upon a reasoned request from the Energy Community Secretariat. 11. The Contracting Parties shall take all necessary measures to ensure the continuous operation of the underground gas storage facilities on their respective territories. Those underground gas storage facilities may cease operations only where technical and safety requirements are not met or where the certifying authority concludes, after having conducted an assessment and having taken into account the opinion of the Energy Community Secretariat, that such a cessation would not weaken the security of gas supply at Energy Community or national level. Appropriate compensatory measures shall be taken, where appropriate, if cessation of operations is not allowed. 12. The Energy Community Secretariat may issue guidance on the application of this Article. 13. This Article shall not apply to parts of LNG facilities that are used for storage.’; (2) in Article 13, the following paragraph is added: ‘3. The national regulatory authority may apply a discount of up to 100 % to capacity-based transmission and distribution tariffs at entry points from, and exit points to, underground gas storage facilities and LNG facilities, unless and to the extent that such a facility which is connected to more than one transmission or distribution network is used to compete with an interconnection point. This paragraph shall apply until 31 December 2025.’.