LegalizeCommission Implementing Regulation (EU) 2021/280 of 22 February 2021 amending Regulations (EU) 2015/1222, (EU) 2016/1719, (EU) 2017/2195 and (EU) 2017/1485 in order to align them with Regulation (EU) 2019/943 (Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (1), and in particular Article 59(1) and (2) and Article 60(1) thereof,
Whereas:
(1) The introduction of harmonised rules on electricity trade and grid operation through electricity network codes and guidelines has proven to be crucial for the achievement of an integrated electricity market in the Union.
(2) Commission Regulation (EU) 2015/1222 (2), Commission Regulation (EU) 2016/1719 (3), Commission Regulation (EU) 2017/2195 (4) and Commission Regulation (EU) 2017/1485 (5) provide important rules for the well-functioning of the internal market for electricity, as they set out detailed rules to be followed by regulatory authorities to jointly define the terms and conditions or methodologies necessary for the alignment of electricity trade and grid operation in the Union.
(3) The practice with the adoption process of TCM has shown that two aspects of the adoption process should be clarified.
(4) Regulations (EU) 2019/942 of the European Parliament and of the Council (6) and (EU) 2019/943 modified the regulatory framework of the internal market for electricity, including the process to agree on terms and conditions or methodologies.
(5) As set out in Article 5(2) of Regulation (EU) 2019/942, terms and conditions or methodologies which previously required the approval of all regulatory authorities are now directly adopted by the Agency for the Cooperation of European Energy Regulators (‘the Agency’). Regulations (EU) 2019/942 and (EU) 2019/943 also provide that national regulatory authorities and the Agency are entitled to revise and amend the proposals for terms and conditions or methodologies submitted by transmission system operators (‘TSOs’) and nominated electricity market Operators (‘NEMOs’).
(6) Regulations (EU) 2019/942 and (EU) 2019/943 also establish that national regulators and the Agency are responsible for the adoption of the final texts of terms and conditions or methodologies, and that they have the right to revise and amend the proposals from TSOs or NEMOs in order to ensure that they are in line with the objectives of Regulations (EU) 2015/1222, (EU) 2016/1719, (EU) 2017/2195 and (EU) 2017/1485 and contribute to market integration, non-discrimination, effective competition and the proper functioning of the electricity market.
(7) Those changes should be reflected in Regulations (EU) 2015/1222, (EU) 2016/1719, (EU) 2017/2195 and (EU) 2017/1485.
(8) Experience with the existing development process of terms and conditions or methodologies, including recent jurisprudence and delays in agreeing on certain terms and conditions or methodologies, have made it necessary to revise the regulatory procedure for defining terms and conditions or methodologies in order to ensure their timely adoption.
(9) In accordance with the recent Court case-law (7), Regulation (EU) 2015/1222 allows every single national regulatory authorities to request amendments to proposals for terms and conditions or methodologies by TSOs or NEMOs. Such a possibility may potentially lead to a sequence of multiple individual amendment requests and respective amended proposals for terms and conditions or methodologies, with no realistic perspective of a timely approval and implementation. This could not only lead to significant delays in the development of terms and conditions or methodologies, but uncoordinated individual requests for changes of proposals for terms and conditions or methodologies could also create legal uncertainty, as it would remain uncertain which amendment request should ultimately prevail. In order to avoid that situation, Regulations (EU) 2015/1222, (EU) 2016/1719, (EU) 2017/2195 and (EU) 2017/1485 should set out a clear procedure for the coordination of amendment requests for terms and conditions or methodologies.
(10) The procedure of coordinated decisions on terms and conditions or methodologies is identical in Regulations (EU) 2015/1222, (EU) 2016/1719, (EU) 2017/2195 and (EU) 2017/1485. Also the process for the amendment of those four Regulations is identical. It is therefore warranted to adopt the changes to those four Regulations by way of one single amending Regulation.
(11) The measures provided for in this Regulation are in accordance with the opinion of the Committee referred to in Article 67(2) of Regulation (EU) 2019/943,
HAS ADOPTED THIS REGULATION:
Article 1
Amendments to Regulation (EU) 2015/1222
Article 9 of Regulation (EU) 2015/1222 is replaced by the following:
‘Article 9
Adoption of terms and conditions or methodologies
TSOs and NEMOs shall develop the terms and conditions or methodologies required by this Regulation and submit them for approval to the Agency or the competent regulatory authorities within the respective deadlines set out in this Regulation. In exceptional circumstances, notably in cases where a deadline cannot be met due to circumstances external to the sphere of TSOs or NEMOs, the deadlines for terms and conditions or methodologies may be prolonged by the Agency in procedures pursuant to paragraph 6, jointly by all competent regulatory authorities in procedures pursuant to paragraph 7, and by the competent regulatory authority in procedures pursuant to paragraph 8.
Where a proposal for terms and conditions or methodologies pursuant to this Regulation needs to be developed and agreed by more than one TSO or NEMO, the participating TSOs and NEMOs shall closely cooperate. TSOs, with the assistance of the ENTSO for Electricity, and all NEMOs shall regularly inform the competent regulatory authorities and the Agency about the progress of developing those terms and conditions or methodologies.
Where TSOs or NEMOs deciding on proposals for terms and conditions or methodologies listed in paragraph 6 are not able to reach an agreement, they shall decide by qualified majority voting. The qualified majority shall be reached within each of the respective voting classes of TSOs and NEMOs. A qualified majority for proposals listed in paragraph 6 shall require the following majority:
(a) TSOs or NEMOs representing at least 55 % of the Member States; and
(b) TSOs or NEMOs representing Member States comprising at least 65 % of the population of the Union.
A blocking minority for decisions on proposals for terms and conditions or methodologies listed in paragraph 6 shall include TSOs or NEMOs representing at least four Member States, failing of which the qualified majority shall be deemed attained.
For TSO decisions on proposals for terms and conditions or methodologies listed in paragraph 6, one vote shall be attributed per Member State. If there is more than one TSO in the territory of a Member State, the Member State shall allocate the voting powers among the TSOs.
For NEMOs deciding on proposals for terms and conditions or methodologies listed in paragraph 6, one vote shall be attributed per Member State. Each NEMO shall have a number of votes equal to the number of Member States where it is designated. If more than one NEMO is designated in the territory of a Member State, the Member State shall allocate the voting powers among the NEMOs, taking into account their respective volume of transacted electricity in that particular Member State in the preceding financial year.
Except for Article 43(1), Article 44, Article 56(1), Article 63 and Article 74(1), where TSOs deciding on proposals for terms and conditions or methodologies listed in paragraph (7) are not able to reach an agreement and where the regions concerned are composed of more than five Member States, they shall decide by qualified majority voting. The qualified majority shall be reached within each of the respective voting classes of TSOs and NEMOs. A qualified majority for proposals for terms and conditions or methodologies listed in paragraph 7 shall require the following majority:
(a) TSOs representing at least 72 % of the Member States concerned; and
(b) TSOs representing Member States comprising at least 65 % of the population of the concerned region.
A blocking minority for decisions on proposals for terms and conditions or methodologies listed in paragraph 7 shall include at least the minimum number of TSOs representing more than 35 % of the population of the participating Member States, plus TSOs representing at least one additional Member State concerned, failing of which the qualified majority shall be deemed attained.
TSOs deciding on proposals for terms and conditions or methodologies listed in paragraph 7 in relation to regions composed of five Member States or less shall decide by consensus.
For TSO decisions on proposals for terms and conditions or methodologies listed in paragraph 7, one vote shall be attributed per Member State. If there is more than one TSO in the territory of a Member State, the Member State shall allocate the voting powers among the TSOs.
NEMOs deciding on proposals for terms and conditions or methodologies listed in paragraph 7 shall decide by consensus.
If TSOs or NEMOs fail to submit an initial or amended proposal for terms and conditions or methodologies to the competent regulatory authorities or the Agency in accordance with paragraphs 6 to 8 or 12 within the deadlines set out in this Regulation, they shall provide the competent regulatory authorities and the Agency with the relevant drafts of the proposals for the terms and conditions or methodologies, and explain what has prevented an agreement. The Agency, all competent regulatory authorities jointly, or the competent regulatory authority shall take the appropriate steps for the adoption of the required terms and conditions or methodologies in accordance with paragraphs 6, 7 and 8 respectively, for instance by requesting amendments or revising and completing the drafts pursuant to this paragraph, including where no drafts have been submitted, and approve them.
Each regulatory authority or where applicable the Agency, as the case may be, shall approve the terms and conditions or methodologies used to calculate or set out the single day-ahead and intraday coupling developed by TSOs and NEMOs. They shall be responsible for approving the terms and conditions or methodologies referred to in paragraphs 6, 7 and 8. Before approving the terms and conditions or methodologies, the Agency or the competent regulatory authorities shall revise the proposals where necessary, after consulting the respective TSOs or NEMOs, in order to ensure that they are in line with the purpose of this Regulation and contribute to market integration, non-discrimination, effective competition and the proper functioning of the market.
The proposals for the following terms and conditions or methodologies and any amendments thereof shall be subject to approval by the Agency:
(a) the plan on joint performance of MCO functions in accordance with Article 7(3);
(b) the capacity calculation regions in accordance with Article 15(1);
(c) the generation and load data provision methodology in accordance with Article 16(1);
(d) the common grid model methodology in accordance with Article 17(1);
(e) the proposal for a harmonised capacity calculation methodology in accordance with Article 21(4);
(f) back-up methodology in accordance with Article 36(3);
(g) the algorithm submitted by NEMOs in accordance with Article 37(5), including the TSOs’ and NEMOs’ sets of requirements for algorithm development in accordance with Article 37(1);
(h) products that can be taken into account by NEMOs in the single day-ahead and intraday coupling process in accordance with Articles 40 and 53;
(i) the maximum and minimum prices in accordance with Articles 41(1) and 54(2);
(j) the intraday capacity pricing methodology to be developed in accordance with Article 55(1);
(k) the intraday cross–zonal gate opening and intraday cross-zonal gate closure times in accordance with Article 59(1);
(l) the day-ahead firmness deadline in accordance with Article 69;
(m) the congestion income distribution methodology in accordance with Article 73(1).
The proposals for the following terms and conditions or methodologies and any amendments thereof shall be subject to approval by all regulatory authorities of the concerned region:
(a) the common capacity calculation methodology in accordance with Article 20(2);
(b) decisions on the introduction and postponement of flow-based calculation in accordance with Article 20(2) to (6) and on exemptions in accordance with Article 20(7);
(c) the methodology for coordinated redispatching and countertrading in accordance with Article 35(1);
(d) the common methodologies for the calculation of scheduled exchanges in accordance with Articles 43(1) and 56(1);
(e) the fallback procedures in accordance with Article 44;
(f) complementary regional auctions in accordance with Article 63(1);
(g) the conditions for the provision of explicit allocation in accordance with Article 64(2);
(h) the redispatching or countertrading cost sharing methodology in accordance with Article 74(1).
The following terms and conditions or methodologies and any amendments thereof shall be subject to individual approval by each regulatory authority or other competent authority of the Member States concerned:
(a) where applicable, NEMO designation and revocation or suspension of designation in accordance with Article 4(2), (8) and (9);
(b) if applicable, the fees or the methodologies used to calculate the fees of NEMOs relating to trading in the day-ahead and intraday markets in accordance with Article 5(1);
(c) proposals of individual TSOs for a review of the bidding zone configuration in accordance with Article 32(1)(d);
(d) where applicable, the proposal for cross-zonal capacity allocation and other arrangements in accordance with Articles 45 and 57;
(e) capacity allocation and congestion management costs in accordance with Articles 75 to 79;
(f) if applicable, cost sharing of regional costs of single day-ahead and intraday coupling in accordance with Article 80(4).
The proposal for terms and conditions or methodologies shall include a proposed timescale for their implementation and a description of their expected impact on the objectives of this Regulation. Proposals for terms and conditions or methodologies subject to the approval by several regulatory authorities in accordance with paragraph 7 shall be submitted to the Agency within 1 week of their submission to regulatory authorities. Proposals for terms and conditions or methodologies subject to the approval by one regulatory authority in accordance with paragraph 8 may be submitted to the Agency within 1 month of their submission at the discretion of the regulatory authority while they shall be submitted upon the Agency’s request for information purposes in accordance with Article 3 paragraph 2 of the Regulation (EU) 2019/942 if the Agency considers the proposal to have a cross-border impact. Upon request by the competent regulatory authorities, the Agency shall issue an opinion within 3 months on the proposals for terms and conditions or methodologies.
Where the approval of the terms and conditions or methodologies in accordance with paragraph 7 or the amendment in accordance with paragraph 12 requires a decision by more than one regulatory authority, the competent regulatory authorities shall consult and closely cooperate and coordinate with each other in order to reach an agreement. Where applicable, the competent regulatory authorities shall take into account the opinion of the Agency. Regulatory authorities or, where competent, the Agency shall take decisions concerning the submitted terms and conditions or methodologies in accordance with paragraphs 6, 7 and 8, within 6 months following the receipt of the terms and conditions or methodologies by the Agency or the regulatory authority or, where applicable, by the last regulatory authority concerned. The period shall begin on the day following that on which the proposal was submitted to the Agency in accordance with paragraph 6, to the last regulatory authority concerned in accordance with paragraph 7 or, where applicable, to the regulatory authority in accordance with paragraph 8.
Where the regulatory authorities have not been able to reach agreement within the period referred to in paragraph 10, or upon their joint request, or upon the Agency’s request according to the third subparagraph of Article 5(3) of Regulation (EU) 2019/942, the Agency shall adopt a decision concerning the submitted proposals for terms and conditions or methodologies within 6 months, in accordance with Article 5(3) and the second subparagraph of Article 6(10) of Regulation (EU) 2019/942.
In the event that the Agency, or all competent regulatory authorities jointly, or the competent regulatory authority request an amendment to approve the terms and conditions or methodologies submitted in accordance with paragraphs 6, 7 and 8 respectively, the relevant TSOs or NEMOs shall submit a proposal for amended terms and conditions or methodologies for approval within 2 months following the request from the Agency or the competent regulatory authorities or the competent regulatory authority. The Agency or the competent regulatory authorities or the competent regulatory authority shall decide on the amended terms and conditions or methodologies within 2 months following their submission. Where the competent regulatory authorities have not been able to reach an agreement on terms and conditions or methodologies pursuant to paragraph 7 within the 2-month deadline, or upon their joint request, or upon the Agency’s request according to the third subparagraph of Article 5(3) of Regulation (EU) 2019/942, the Agency shall adopt a decision concerning the amended terms and conditions or methodologies within 6 months, in accordance with Article 5(3) and the second subparagraph of Article 6(10) of Regulation (EU) 2019/942. If the relevant TSOs or NEMOs fail to submit a proposal for amended terms and conditions or methodologies, the procedure provided for in paragraph 4 of this Article shall apply.
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