Regulation (EU) 2017/1938 of the European Parliament and of the Council of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No 994/2010 (Text with EEA relevance. )

Article 1

Subject matter

This Regulation establishes provisions aiming to safeguard the security of gas supply in the Union by ensuring the proper and continuous functioning of the internal market for gas by allowing for exceptional measures to be implemented when the market can no longer deliver the gas supplies required, including solidarity measure of a last resort, and by providing for the clear definition and attribution of responsibilities among natural gas undertakings, the Member States and the Union regarding both preventive action and the reaction to concrete disruptions of gas supply. This Regulation also establishes transparent mechanisms concerning, in a spirit of solidarity, the coordination of planning for, and response to, emergencies at national, regional and Union level.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(2) ‘customer’ means customer as defined in point 24 of Article 2 of Directive 2009/73/EC;

(3) ‘household customer’ means household customer as defined in point 25 of Article 2 of Directive 2009/73/EC;

(4) ‘essential social service’ means a service related to healthcare, essential social care, emergency, security, education or public administration;

(5) ‘protected customer’ means a household customer who is connected to a gas distribution network and, in addition, where the Member State concerned so decides, may also mean one or more of the following, provided that enterprises or services as referred to in points (a) and (b) do not, jointly, represent more than 20 % of the total annual final gas consumption in that Member State: (a) a small or medium-sized enterprise, provided that it is connected to a gas distribution network; (b) an essential social service, provided that it is connected to a gas distribution or transmission network; (c) a district heating installation to the extent that it delivers heating to household customers, small or medium-sized enterprises, or essential social services, provided that such installation is not able to switch to other fuels than gas;

(6) ‘solidarity protected customer’ means a household customer who is connected to a gas distribution network, and, in addition, may include one or both of the following: (a) a district heating installation if it is a protected customer in the relevant Member State and only in so far as it delivers heating to households or essential social services other than educational and public administration services; (b) an essential social service if it is a protected customer in the relevant Member State, other than educational and public administration services;

(7) ‘competent authority’ means a national governmental authority or a national regulatory authority designated by a Member State to ensure the implementation of the measures provided for in this Regulation;

(8) ‘national regulatory authority’ means a national regulatory authority designated in accordance with Article 39(1) of Directive 2009/73/EC;

(9) ‘natural gas undertaking’ means natural gas undertaking as defined in point 1 of Article 2 of Directive 2009/73/EC;

(10) ‘gas supply contract’ means gas supply contract as defined in point 34 of Article 2 of Directive 2009/73/EC;

(11) ‘transmission’ means transmission as defined in point 3 of Article 2 of Directive 2009/73/EC;

(12) ‘transmission system operator’ means transmission system operator as defined in point 4 of Article 2 of Directive 2009/73/EC;

(13) ‘distribution’ means distribution as defined in point 5 of Article 2 of Directive 2009/73/EC;

(14) ‘distribution system operator’ means distribution system operator as defined in point 6 of Article 2 of Directive 2009/73/EC;

(15) ‘interconnector’ means interconnector as defined in point 17 of Article 2 of Directive 2009/73/EC;

(16) ‘emergency supply corridors’ means Union gas supply routes that help Member States to better mitigate the effects of potential disruption of supply or infrastructure;

(17) ‘storage capacity’ means storage capacity as defined in point 28 of Article 2 of Regulation (EC) No 715/2009;

(18) ‘technical capacity’ means technical capacity as defined in point 18 of Article 2 of Regulation (EC) No 715/2009;

(19) ‘firm capacity’ means firm capacity as defined in point 16 of Article 2 of Regulation (EC) No 715/2009;

(20) ‘interruptible capacity’ means interruptible capacity as defined in point 13 of Article 2 of Regulation (EC) No 715/2009;

(21) ‘LNG facility capacity’ means LNG facility capacity as defined in point 24 of Article 2 of Regulation (EC) No 715/2009;

(22) ‘LNG facility’ means LNG facility as defined in point 11 of Article 2 of Directive 2009/73/EC;

(23) ‘storage facility’ means storage facility as defined in point 9 of Article 2 of Directive 2009/73/EC;

(24) ‘system’ means system as defined in point 13 of Article 2 of Directive 2009/73/EC;

(25) ‘system user’ means system user as defined in point 23 of Article 2 of Directive 2009/73/EC;

(26) ‘ancillary services’ means ancillary services as defined in point 14 of Article 2 of Directive 2009/73/EC;

(27) ‘filling trajectory’ means a series of indicative intermediate targets for the underground gas storage facilities of each Member State, representing the filling plan of that Member State, set in accordance with Article 6a(7);

(28) ‘filling target’ means a binding target for the filling level of the aggregated capacity of the underground gas storage facilities;

(29) ‘strategic storage’ means underground storage or part of underground storage of non-liquefied natural gas which is purchased, managed and stored by transmission systems operators, an entity designated by the Member States or an undertaking, and which may be released only after prior notification or public authority authorisation for release, and is generally released in the case of: (a) major supply scarcity; (b) a supply disruption; or (c) the declaration of an emergency as referred to in Article 11(1), point (c);

(30) ‘balancing stock’ means non-liquefied natural gas which is: (a) purchased, managed and stored underground by transmission system operators or by an entity designated by the Member State, for the sole purposes of carrying out the functions of transmission system operators and of the security of gas supply; and (b) dispatched only where required to keep the system in operation under secure and reliable conditions in accordance with Article 13 of Directive 2009/73/EC and with Articles 8 and 9 of Regulation (EU) No 312/2014;

(31) ‘underground gas storage facility’ means a storage facility as defined in Article 2, point (9), of Directive 2009/73/EC that is used for the stocking of natural gas, including balancing stock, and that is connected to a transmission or distribution system, excluding above-ground spherical or linepack storage;

(32) ‘gas’ means natural gas as defined in Article 2, point (1), of Directive (EU) 2024/1788 (¹);

(33) ‘take-or-pay provision’ means a contractual provision which obliges the buyer to take delivery of, or alternatively pay for, a specified minimum quantity of gas within a given period, regardless of whether the gas is actually received;

(34) ‘deliver-or-pay provision’ means a contractual provision which obliges the seller to pay a contractual fine in the case of a non-delivery of gas.

Article 3

Responsibility for the security of gas supply

The list of such risk groups and their composition are set out in Annex I. The composition of the risk groups shall not prevent any other form of regional cooperation benefiting security of supply.

Article 4

Gas Coordination Group

The GCG shall be consulted and shall assist the Commission in particular on the following issues:

(a) the security of gas supply, at any time and more specifically in the event of an emergency;

(b) all information relevant to the security of gas supply at national, regional and Union level;

(c) best practices and possible guidelines to all the parties concerned;

(d) the level of the security of gas supply, benchmarks and assessment methodologies;

(e) national, regional and Union scenarios and testing the levels of preparedness;

(f) the assessment of the preventive action plans and the emergency plans, the coherence across the various plans, and the implementation of the measures provided for therein;

(g) the coordination of measures to deal with an Union emergency, with the Energy Community Contracting Parties and with other third countries;

(h) assistance needed by the most affected Member States.

Article 5

Infrastructure standard

The obligation set out in the first subparagraph of this paragraph shall be without prejudice to the responsibility of the transmission system operators to make the corresponding investments and to the obligations of transmission system operators as laid down in Regulation (EC) No 715/2009 and Directive 2009/73/EC.

The transmission system operators shall enable permanent physical capacity to transport gas in both directions (‘bi-directional capacity’) on all interconnections between Member States, except:

(a) in the case of connections to production facilities, to LNG facilities and to distribution networks; or

(b) where an exemption from that obligation has been granted, after detailed assessment and after consulting other Member States and with the Commission in accordance with Annex III.

For the procedure to enable or enhance bi-directional capacity on an interconnection or to obtain or prolong an exemption from that obligation Annex III shall apply. The Commission shall make public the list of exemptions and keep it updated.

A proposal for enabling or enhancing bi-directional capacity or a request for granting or prolongation of an exemption shall include a cost-benefit analysis prepared on the basis of the methodology pursuant to Article 11 of Regulation (EU) No 347/2013 of the European Parliament and of the Council (²) and shall be based on the following elements:

(a) an assessment of market demand;

(b) projections for demand and supply;

(c) the possible economic impact on existing infrastructure;

(d) a feasibility study;

(e) the costs of bi-directional capacity including the necessary reinforcement of the transmission system; and

(f) the benefits to the security of gas supply taking into account the possible contribution of bi-directional capacity to meeting the infrastructure standard set out in this Article.

The competent authority shall assess in the risk assessment whether, with an integrated perspective on gas and electricity systems, internal bottlenecks exist and national entry capacity and infrastructure, in particular transmission networks, are capable of adapting the national and cross-border gas flows to the scenario of disruption of the single largest gas infrastructure at national level and the single largest gas infrastructure of common interest to the risk group identified in the risk assessment.

The exception shall apply to Luxembourg provided it has:

(a) at least two interconnectors with other Member States;

(b) at least two different sources of gas supply; and

(c) no gas storage facilities on its territory.

The exception shall apply to Slovenia provided it has:

(a) at least two interconnectors with other Member States;

(b) at least two different sources of gas supply; and

(c) no gas storage facilities or an LNG facility on its territory.

The exception shall apply to Sweden provided it has:

(a) no gas transit to other Member States on its territory;

(b) an annual gross inland gas consumption of less than 2 Mtoe; and

(c) less than 5 % of total primary energy consumption from gas.

Luxembourg, Slovenia and Sweden shall inform the Commission of any change affecting the conditions laid down in this paragraph. The exception laid down in this paragraph shall cease to apply where at least one of those conditions is no longer fulfilled.

As part of the national risk assessment carried out in accordance with Article 7(3) Luxembourg, Slovenia and Sweden shall describe the situation with respect to the respective conditions laid down in this paragraph and the prospects for compliance with the obligation in paragraph 1 of this Article, taking into account the economic impact of meeting the infrastructure standard, the gas market development and gas infrastructure projects in the risk group. On the basis of the information provided in the national risk assessment and if the respective conditions laid down in this paragraph are still met, the Commission may decide that the exception can continue to apply for four more years. In the event of a positive decision, the procedure set out in this subparagraph shall be repeated after four years.

Article 6

Gas supply standard

The competent authority shall require the natural gas undertakings that it identifies, to take measures to ensure the gas supply to the protected customers of the Member State in each of the following cases:

(a) extreme temperatures during a 7-day peak period occurring with a statistical probability of once in 20 years;

(b) any period of 30 days of exceptionally high gas demand, occurring with a statistical probability of once in 20 years;

(c) for a period of 30 days in the case of disruption of the single largest gas infrastructure under average winter conditions.

By 2 February 2018, each Member State shall notify to the Commission its definition of protected customers, the annual gas consumption volumes of the protected customers and the percentage that those consumption volumes represent of the total annual final gas consumption in that Member State. Where a Member State includes in its definition of protected customers the categories referred to in point (5)(a) or (b) of Article 2, it shall specify the gas consumption volumes corresponding to customers belonging to those categories and the percentage that each of those groups of customers represents in total annual final gas consumption.

The competent authority shall identify the natural gas undertakings referred to in the first subparagraph of this paragraph and shall specify them in the preventive action plan.

Any new non-market-based measures envisaged to ensure the gas supply standard shall comply with the procedure established in Article 9(4) to (9).

Member States may comply with the obligation laid down in the first subparagraph through the implementation of energy efficiency measures or by replacing the gas with a different source of energy, inter alia, renewable energy sources, to the extent that the same level of protection is achieved.

Any increased gas supply standard beyond the 30-day period referred to in points (b) and (c) of paragraph 1 or any additional obligation imposed for reasons of security of gas supply shall be based on the risk assessment, shall be reflected in the preventive action plan and shall:

(a) comply with Article 8(1);

(b) not impact negatively on the ability of any other Member State to supply gas to its protected customers in accordance with this Article in the event of a national, regional or Union emergency; and

(c) comply with Article 12(5) in the event of a regional or Union emergency.

The Commission may require a justification showing compliance of any measure referred to in the first subparagraph with the conditions laid down therein. Such a justification shall be made public by the competent authority of the Member State that introduces the measure.

Any new non-market-based measure pursuant to the first subparagraph of this paragraph, adopted on or after 1 November 2017, shall comply with the procedure established in Article 9(4) to (9).

Article 6a

Filling targets and filling trajectories

Subject to paragraphs 2 to 5f, Member States shall meet the following filling targets for the aggregated capacity of all underground gas storage facilities that are located on their territory and directly interconnected to a market area in their territory and for storage facilities listed in Annex Ib at any point in time between 1 October and 1 December each year:

(a) for 2022: 80 %;

(b) from 2023: 90 %.

For the purpose of complying with this paragraph, Member States shall take into account the objective of safeguarding the security of gas supply in the Union in accordance with Article 1.

A Member State may partially meet the filling target by counting the LNG physically stored and available in its LNG facilities if both of the following conditions are met:

(a) the gas system includes significant capacity of LNG storage, accounting annually for more than 4 % of the average national consumption over the preceding five years;

(b) the Member State has imposed an obligation on gas suppliers to store minimum volumes of gas in underground gas storage facilities and/or LNG facilities in accordance with Article 6b(1), point (a).

Notwithstanding paragraph 1, in addition to a possible deviation in accordance with the paragraph 5a and without prejudice to the obligation of other Member States to fill the underground gas storage facilities concerned, each Member State may decide to deviate from the filling target set out in paragraph 1, point (b) by up to five percentage points, if:

(a) its national gas production exceeds its average annual gas consumption over the preceding two years; or

(b) specific technical characteristics of an individual underground storage facility with technical capacity above 40 TWh located on its territory require a slow injection rate causing an exceptionally long injection period of more than 115 days.

A Member State may only use the flexibilities provided under the first subparagraph, as long as this does not negatively impact the ability of directly connected Member States to supply gas to their protected customers or this does not negatively impact the functioning of the internal market in gas. The Commission, in cooperation with the Member States using the flexibilities referred to in this subparagraph, shall assess the potential consequences of implementing those flexibilities, and inform the GCG immediately.

For Member States for which the filling target is reduced to 35 % of their average annual gas consumption pursuant to paragraph 2, the intermediate targets of the filling trajectory shall be reduced accordingly.

The Commission shall inform the GCG of the aggregated filling trajectories submitted by Member States without undue delay.

Article 6b

Implementation of filling targets

To the extent that any of the measures provided for in this Article are duties and powers of the national regulatory authority pursuant to Article 41 of Directive 2009/73/EC, the national regulatory authorities shall be responsible for taking those measures.

Measures taken pursuant to this paragraph may, in particular, include:

(a) requiring gas suppliers to store minimum volumes of gas in storage facilities, including in underground gas storage facilities and/or in LNG storage facilities, those volumes to be determined on the basis of the amount of gas supplied by gas suppliers to protected customers;