Amendments to Regulation (EU) 2019/942
Article 85
Regulation (EU) 2019/942 is amended as follows: (1) in Article 2, point (a) is replaced by the following: ‘(a) issue opinions and recommendations addressed to transmission system operators, the ENTSO for Electricity, the ENTSO for Gas, the European Network of Network Operators for Hydrogen (ENNOH), the EU DSO entity, regional coordination centres, nominated electricity market operators, and entities established by transmission system operators for natural gas, LNG system operators, natural gas storage system operators or hydrogen storage operators or hydrogen network operators;’ ; (2) in Article 3(2), the first subparagraph is replaced by the following: ‘At ACER’s request, the regulatory authorities, the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the regional coordination centres, the EU DSO entity, the transmission system operators for natural gas, hydrogen network operators, the nominated electricity market operators, and entities established by transmission system operators for natural gas, LNG system operators, natural gas storage system operators or hydrogen storage operators or hydrogen terminal operators shall provide to ACER the information in the same level of detail necessary for the purpose of carrying out ACER’s tasks under this Regulation, unless ACER has already requested and received such information.’ ; (3) Article 4 is amended as follows: (a) paragraphs 1, 2 and 3 are replaced by the following: ‘1. ACER shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure of the ENTSO for Electricity in accordance with Article 29(2) of Regulation (EU) 2019/943 and on those of the ENTSO for Gas in accordance with Article 25(2) of Regulation (EU) 2024/1789 of the European Parliament and of the Council ( *3 ) and on those of the ENNOH in accordance with Article 57(9) of Regulation (EU) 2024/1789 and on those of the EU DSO entity in accordance with Article 53(3) of Regulation (EU) 2019/943 and Article 40(4) of Regulation (EU) 2024/1789. 2. ACER shall monitor the execution of the tasks of the ENTSO for Electricity in accordance with Article 32 of Regulation (EU) 2019/943, of the ENTSO for Gas in accordance with Article 27 of Regulation (EU) 2024/1789 and of the ENNOH in accordance with Article 64 of Regulation (EU) 2024/1789 and of the EU DSO entity as set out in Article 55 of Regulation (EU) 2019/943 and Article 41 of Regulation (EU) 2024/1789. 3. ACER may provide an opinion: (a) to the ENTSO for Electricity in accordance with Article 30(1), point (a), of Regulation (EU) 2019/943, to the ENTSO for Gas in accordance with Article 26(2) of Regulation (EU) 2024/1789 and to the ENNOH in accordance with Article 59(1) of that Regulation on the network codes; (b) to the ENTSO for Electricity in accordance with Article 32(2) of Regulation (EU) 2019/943, to the ENTSO for Gas in accordance with the Article 26(2) of Regulation (EU) 2024/1789 and to the ENNOH in accordance with Article 60(2) of Regulation (EU) 2024/1789 on the draft Union-wide network development plan and on other relevant documents referred to in Article 30(1) of Regulation (EU) 2019/943 and Article 26(3) and Article 59(1) of Regulation (EU) 2024/1789, taking into account the objectives of non-discrimination, effective competition and the proper and secure functioning of the internal markets for electricity, hydrogen and natural gas; (c) to the EU DSO entity on the draft annual work programme and other relevant documents referred to in Article 55(2) of Regulation (EU) 2019/943 and Article 41(3) of Regulation (EU) 2024/1789, taking into account the objectives of non-discrimination, effective competition and the proper and secure functioning of the internal market for electricity, hydrogen and natural gas. ( *3 ) Regulation (EU) 2024/1789 of the European Parliament and of the Council of 13 June 2024 on the internal markets for renewable gas, natural gas and hydrogen, amending Regulations (EU) No 1227/2011, (EU) 2017/1938, (EU) 2019/942 and (EU) 2022/869 and Decision (EU) 2017/684 and repealing Regulation (EC) No 715/2009 ( OJ L, 2024/1789, 15.7.2024, ELI: http://data.europa.eu/eli/reg/2024/1789/oj ).’;" (b) paragraphs 6, 7 and 8 are replaced by the following: ‘6. The relevant regulatory authorities shall coordinate in order to jointly identify whether there is non-compliance of the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or regional coordination centres with their obligations under Union law, and shall take appropriate action in accordance with Article 59(1), point (c), and Article 62(1), point (f), of Directive (EU) 2019/944 or with Article 78(1), point (e), of Directive (EU) 2024/1788 of the European Parliament and of the Council ( ** ) . At the request of one or more regulatory authorities or at its own initiative, ACER shall issue a reasoned opinion as well as a recommendation to the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or the regional coordination centres with regard to compliance with their obligations. 7. Where a reasoned opinion of ACER identifies a case of potential non-compliance of the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or a regional coordination centre with their respective obligations, the regulatory authorities concerned shall unanimously take coordinated decisions establishing whether there is non-compliance with the relevant obligations and, where applicable, determining the measures to be taken by the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or the regional coordination centre to remedy that non-compliance. Where the regulatory authorities fail to take such coordinated decisions unanimously within four months of the date of receipt of ACER’s reasoned opinion, the matter shall be referred to ACER for a decision pursuant to Article 6(10). 8. Where the non-compliance by the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or a regional coordination centre that was identified pursuant to paragraph 6 or 7 of this Article has not been remedied within three months, or where the regulatory authority in the Member State in which the entity has its seat has not taken action to ensure compliance, ACER shall issue a recommendation to the regulatory authority to take action in accordance with Article 59(1), point (c), and Article 62(1), point (f), of Directive (EU) 2019/944 or with Article 78(1), point (f), of Directive (EU) 2024/1788, in order to ensure that the ENTSO for Electricity, the ENTSO for Gas, the ENNOH, the EU DSO entity or the regional coordination centre comply with their obligations, and shall inform the Commission. ( ** ) Directive (EU) 2024/1788 of the European Parliament and of the Council of 13 June 2024 on common rules for the internal markets in renewable gas, natural gas and hydrogen, amending Directive (EU) 2023/1791 and repealing Directive 2009/73/EC ( OJ L, 2024/1788, 15.7.2024, ELI: http://data.europa.eu/eli/dir/2024/1788/oj ).’;" (4) Article 5(1) is replaced by the following: ‘1. ACER shall participate in the development of network codes in accordance with Article 59 of Regulation (EU) 2019/943 and Articles 71 and 72 of Regulation (EU) 2024/1789 and of guidelines in accordance with Article 61(6) of Regulation (EU) 2019/943 and Article 74(5) of Regulation (EU) 2024/1789. It shall in particular: (a) submit non-binding framework guidelines to the Commission where it is requested to do so under Article 59(4) of Regulation (EU) 2019/943 or Article 71(4) or Article 72(4) of Regulation (EU) 2024/1789. ACER shall review the framework guidelines and re-submit them to the Commission where requested to do so under Article 59(7) of Regulation (EU) 2019/943 or Article 71(7) or Article 72(7) of Regulation (EU) 2024/1789; (b) revise the network code in accordance with Article 59(11) of Regulation (EU) 2019/943 or Article 71(11) or Article 72(11) of Regulation (EU) 2024/1789. In its revision, ACER shall take account of the views provided by the parties involved during the drafting of that revised network code led by the ENTSO for Electricity, the ENTSO for Gas, the ENNOH or the EU DSO entity, and shall consult the relevant stakeholders on the version to be submitted to the Commission. To that end, ACER may use the drafting committee established under the network codes where appropriate. ACER shall report to the Commission on the outcome of the consultations. Subsequently, ACER shall submit the revised network code to the Commission in accordance with Article 59(11) of Regulation (EU) 2019/943 or Article 71(11) or Article 72(11) of Regulation (EU) 2024/1789. Where the ENTSO for Electricity, the ENTSO for Gas, the ENNOH or the EU DSO entity have failed to develop a network code, ACER shall prepare and submit a draft network code to the Commission where it is requested to do so under Article 59(12) of Regulation (EU) 2019/943 or Article 71(12) or Article 72(12) of Regulation (EU) 2024/1789; (c) provide a duly reasoned opinion to the Commission, in accordance with Article 32(1) of Regulation (EU) 2019/943 or Article 27(1) or Article 64(2) of Regulation (EU) 2024/1789, where the ENTSO for Electricity, the ENTSO for Gas, the ENNOH or the EU DSO entity has failed to implement a network code elaborated under Article 30(1), point (a), of Regulation (EU) 2019/943 or Article 26(1) or Article 59(1), point (a), of Regulation (EU) 2024/1789 or a network code which has been established in accordance with Article 59(3) to (12) of Regulation (EU) 2019/943 or Article 71(3) to (12) or Article 72(3) to (12) of Regulation (EU) 2024/1789 but which has not been adopted by the Commission under Article 59(13) of Regulation (EU) 2019/943 or under Article 71(13) or Article 72(13) of Regulation (EU) 2024/1789; (d) monitor and analyse the implementation of the network codes adopted by the Commission in accordance with Article 59 of Regulation (EU) 2019/943 and Articles 71 and 72 of Regulation (EU) 2024/1789 and the guidelines adopted in accordance with Article 61 of Regulation (EU) 2019/943 and Article 74 of Regulation (EU) 2024/1789, and their effect on the harmonisation of applicable rules aimed at facilitating market integration as well as on non-discrimination, effective competition and the proper functioning of the market, and report to the Commission.’ ; (5) Article 6 is amended as follows: (a) paragraph 3 is replaced by the following: ‘3. By 5 July 2022, and every four years thereafter the Commission shall submit a report to the European Parliament and the Council on the independence of regulatory authorities pursuant to Article 57(7) of Directive (EU) 2019/944 and Article 76(6) of Directive (EU) 2024/1788.’ ; (b) paragraph 5 is replaced by the following: ‘5. ACER shall provide a factual opinion at the request of one or more regulatory authorities or of the Commission, on whether a decision taken by a regulatory authority complies with the network codes and guidelines referred to in Regulation (EU) 2019/943, Regulation (EU) 2024/1789, Directive (EU) 2019/944 or Directive (EU) 2024/1788, with other relevant provisions of those regulations or directives, or with Article 13 of Regulation (EU) 2017/1938.’ ; (c) the following paragraphs are inserted: ‘9a. ACER shall issue recommendations to transmission system operators, distribution system operators, hydrogen network operators and regulatory authorities, with regard to the methodologies for setting the inter-temporal cost allocation pursuant to Article 5(6), first subparagraph, of Regulation (EU) 2024/1789. ACER may issue recommendations to transmission system operators, distribution system operators, hydrogen network operators and regulatory authorities, with regard to the regulatory asset bases pursuant to Article 5(6), third subparagraph, of Regulation (EU) 2024/1789. 9b. ACER may issue recommendations to regulatory authorities on the allocation of costs of solutions for restrictions to cross-border flows due to differences in gas quality pursuant to Article 21(11) of Regulation (EU) 2024/1789. 9c. ACER may issue recommendations to regulatory authorities on the allocation of costs of solutions for restrictions to cross-border flows due to differences in hydrogen quality pursuant to Article 55(8) of Regulation (EU) 2024/1789. 9d. ACER shall publish monitoring reports on congestion at interconnection points pursuant to point 2.2.1(2) of Annex I to Regulation (EU) 2024/1789.’ ; (d) paragraph 10 is amended as follows: (i) the first subparagraph is replaced by the following: ‘ACER shall be competent to adopt individual decisions on regulatory issues having effects on cross-border trade or cross-border system security which require a joint decision by at least two regulatory authorities, where such competences have been conferred on the regulatory authorities under one of the following legal acts: (a) a legislative act of the Union adopted under the ordinary legislative procedure; (b) network codes and guidelines referred to in Articles 59 to 61 of Regulation (EU) 2019/943 adopted before 4 July 2019 and subsequent revisions of those network codes and guidelines; (c) network codes and guidelines referred to in Articles 59 to 61 of Regulation (EU) 2019/943 adopted as implementing acts pursuant to Article 5 of Regulation (EU) No 182/2011; (d) guidelines pursuant to Annex I to Regulation (EU) 2024/1789; or (e) network codes and guidelines referred to in Articles 71 to 74 of Regulation (EU) 2024/1789.’ ; (ii) in the second subparagraph, point (a) is replaced by the following: ‘(a) where the competent regulatory authorities have not been able to reach an agreement within six months of referral of the case to the last of those regulatory authorities, or within four months with regard to cases under Article 4(7) of this Regulation or under Article 59(1), point (c), or Article 62(1), point (f), of Directive (EU) 2019/944 or Article 78(1), point (f), of Directive (EU) 2024/1788;’ ; (iii) the third and fourth subparagraphs are replaced by the following: ‘The competent regulatory authorities may jointly request that the period referred to in point (a) of the second subparagraph of this paragraph be extended by a period of up to six months, except with regard to cases under Article 4(7) of this Regulation or under Article 59(1), point (c), or Article 62(1), point (f), of Directive (EU) 2019/944 or Article 78(1), point (f), of Directive (EU) 2024/1788. Where the competences to decide on cross-border issues referred to in the first subparagraph of this paragraph have been conferred on the regulatory authorities in new network codes or guidelines referred to in Articles 59 to 61 of Regulation (EU) 2019/943 adopted as delegated acts after 4 July 2019, ACER shall only be competent on a voluntary basis pursuant to point (b) of the second subparagraph of this paragraph, upon a request from at least 60 % of the competent regulatory authorities. Where only two regulatory authorities are involved, either one may refer the case to ACER.’ ; (e) in paragraph 12, point (a) is replaced by the following: ‘(a) shall issue a decision within six months of the date of referral, or within four months thereof with regard to cases pursuant to Article 4(7) of this Regulation or Article (59)(1), point (c), or Article 62(1), point (f), of Directive (EU) 2019/944 or Article 78(1), point (f), of Directive (EU) 2024/1788; and’ ; (6) Article 14(1) is replaced by the following: ‘1. In carrying out its tasks, in particular in the process of developing framework guidelines in accordance with Article 59 of Regulation (EU) 2019/943 or Articles 71 and 72 of Regulation (EU) 2024/1789, and in the process of proposing amendments of network codes under Article 60 of Regulation (EU) 2019/943 or Article 73 of Regulation (EU) 2024/1789. ACER shall, extensively consult at an early stage market participants, transmission system operators, hydrogen transmission network operators, consumers, end-users and, where relevant, competition authorities, without prejudice to their respective competence, in an open and transparent manner, in particular when its tasks concern transmission system operators and hydrogen transmission network operators.’ ; (7) Article 15 is amended as follows: (a) paragraph 1 is replaced by the following: ‘1. ACER, in close cooperation with the Commission, the Member States and the relevant national authorities, including the regulatory authorities, and without prejudice to the competences of competition authorities, shall monitor the wholesale and retail markets in electricity and natural gas, in particular the levels and the formation of retail and wholesale prices, in order to facilitate that relevant authorities can identify possible anti-competitive, unfair or untransparent behaviour by market operators, and with regard to compliance with the consumer rights laid down in Directive (EU) 2019/944 and Directive (EU) 2024/1788, the impact of market developments on household customers, access to the networks including access of electricity produced from renewable energy sources, the progress made with regard to interconnectors, potential barriers to cross-border trade, including the impact of blending hydrogen into the natural gas system and barriers to the cross-border flow of biomethane, regulatory barriers for new entrants on the market and smaller market participants, including citizen energy communities and renewable energy communities, State interventions preventing prices from reflecting actual scarcity, such as those set out in Article 10(4) of Regulation (EU) 2019/943, the performance of the Member States in the area of security of supply of electricity on the basis of the results of the European resource adequacy assessment as referred to in Article 23 of that Regulation, taking into account, in particular, the ex post evaluation referred to in Article 17 of Regulation (EU) 2019/941. ACER, in close cooperation with the Commission, the Member States and the relevant national authorities, including the regulatory authorities, and without prejudice to the competences of competition authorities, shall monitor the hydrogen markets, in particular the impact of market developments on hydrogen customers, access to the hydrogen network, including access to the network of hydrogen produced from renewable energy sources, the progress made with regard to interconnectors and potential barriers to cross-border trade.’ ; (b) paragraph 2 is replaced by the following: ‘2. ACER shall publish annually a report on the results of the monitoring referred to in paragraph 1. In that report, it shall identify any barriers to the completion of the internal markets for electricity, natural gas and hydrogen.’ ; (c) the following paragraphs are added: ‘6. ACER shall publish studies comparing the efficiency of Union transmission system operators’ costs pursuant to Article 19(2) of Regulation (EU) 2024/1789. 7. ACER shall submit opinions providing a harmonised format for the publication of technical information on access to hydrogen transmission networks and publish a monitoring report on congestion at interconnection points pursuant to the guidelines laid down in Annex I to Regulation (EU) 2024/1789.’.