Wednesday 18 June 2008
P6_TC1-COD(2007)0197

Position of the European Parliament adopted at first reading on 18 June 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council on establishing an Agency for the Cooperation of Energy Regulators

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission ║,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1)

The Communication of the Commission of 10 January 2007 entitled ‘An Energy Policy for Europe’ ║ highlighted the importance of completing the internal market for electricity and natural gas. Improving the regulatory framework at Community level was identified as a key measure to achieve that objective.

(2)

An independent advisory group on electricity and gas, ║ the ║ European Regulators Group for Electricity and Gas║ (ERGEG), was established by Commission Decision 2003/796/EC (4) to facilitate consultation, coordination and cooperation between the regulatory bodies in Member States, and between those bodies and the Commission, with a view to consolidating the internal market for electricity and ║ gas. The ERGEG is composed of representatives of the national regulatory authorities established pursuant to Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity ║ (5) and Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas ║ (6).

(3)

The work undertaken by the ERGEG since its establishment has made a positive contribution to the internal market in electricity and gas. ║It is, however, widely recognised in the sector, and has been proposed by the ERGEG itself, that voluntary cooperation between national regulatory authorities should now take place within a Community structure with clear competences and with the power to adopt ▐ regulatory decisions in a number of specific cases.

(4)	The 2007 Spring European Council║ invited the Commission to propose measures to set up an independent mechanism for national regulatory authorities to cooperate.

(5)

Тhe Member States should cooperate closely, eliminating obstacles to cross-border exchanges of electricity and gas with a view to achieving the objectives of the Community's energy policy. Establishing an Agency for the Cooperation of Energy Regulators (the Agency) for this purpose should incorporate the Community perspective into the national regulatory authorities’ practices and enhance the effectiveness of the Community principles of equal treatment and fair conditions of access to the trans-European networks for transporting electricity and gas, and thus contribute to the proper functioning of the internal energy market. The Agency should also enable national regulatory authorities to enhance their cooperation at Community level and participate, on a mutual basis, in the exercise of Community-related functions.

(6)	On the basis of the impact assessment of the resource requirements for a central entity, it was concluded that an independent central entity offered a number of long-term advantages over other options. ║

(7)

The Agency should ensure that regulatory functions performed by the national regulatory authorities at national level ║ in accordance with Directives 2003/54/EC and ║ 2003/55/EC are properly coordinated and, where necessary, completed at the Community level. To that end, it is necessary to guarantee the independence of the Agency and its members vis-à-vis consumers, energy producers and transmission and distribution system operators, whether public or private, and to ensure conformity of its actions with Community legislation , its technical capacity, its capacity to adjust to regulatory developments and its transparency , amenability to democratic control and efficiency.

(8)

The Agency should monitor the cooperation between transmission system operators in the electricity and gas sectors as well as the execution of the tasks of the European networks of transmission system operators for electricity and gas. The involvement of the Agency is essential in order to ensure that the cooperation between transmission system operators proceeds in an efficient and transparent way for the benefit of the internal market.

(9)	The Agency should systematically monitor markets for market distortions, and inform the European Parliament, the Commission and national authorities thereof where appropriate.

(10)

It is appropriate to provide an integrated framework within which national regulatory authorities are able to participate and cooperate. Such a framework should facilitate the uniform application of the legislation on the internal market for electricity and gas throughout the Community. As regards situations concerning more than one Member State, the Agency should be granted the power to adopt individual decisions. Such power should cover the regulatory regime for infrastructure connecting at least two Member States including exemptions from the internal market rules for new electricity interconnectors and new gas infrastructures located in more than one Member State.

(11)

Since the Agency has an overview of the national regulatory authorities and other sources of information and expertise , it should have an advisory role in relation to the Commission , other Community institutions and the national regulatory authorities of at least two Member States as regards market regulation issues. The Agency should also be required to inform the Commission where it finds that ║ cooperation between transmission system operators fails to produce the results ║needed or that a national regulatory authority whose decision has violated guidelines is not willing to comply with the Agency's opinions, recommendations or decisions.

(12)	The Agency should also be able to issue binding guidelines to assist regulatory authorities and market players in sharing good practices.

(13)	The Agency should consult interested parties, where appropriate, and provide them with a reasonable opportunity to comment on proposed measures, such as draft network codes and rules.

(14)	The structure of the Agency should be adapted to meet the specific needs of energy regulation. In particular, the specific role of the national regulatory authorities ▐ needs to be taken fully into account and their independence guaranteed.

(15)	The Administrative Board should have the necessary powers to establish the budget, check its implementation, draw up internal rules, adopt financial regulations and appoint the Director.

(16)

The Agency should have the necessary powers to perform the regulatory functions in an efficient , transparent, reasoned and, above all, independent manner. The independence of regulatory authorities vis-à-vis energy producers and transmission and distribution system operators is ▐ a key principle of good governance ▐ and a fundamental condition for ensuring market confidence. Reflecting the situation at Community and national level, the Board of Regulators and its members should therefore act independently of any market interest , should avoid conflicts of interests and should seek or take no instructions and accept no recommendations from any government or other public or private entity. The Board of Regulators should, at the same time, comply with Community legislation concerning energy, the environment, the internal energy market and competition and should report to the Community institutions as regards its decisions and proposals.

(17)

Where the Agency has decision-making powers, interested parties should, for reasons of procedural economy, be granted a right of appeal, in the first instance , to a Board of Appeal, which should be part of the Agency, but independent from its administrative and regulatory structure. The decision of the Board of Appeal should be subject to appeal to the Court of Justice.

(18)

The Agency should be financed mainly from the general budget of the EuropeanUnion, by fees and ▐ contributions. In particular, the resources currently pooled by regulatory authorities for their cooperation at European level should continue to be available to the Agency. The Community budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the European Union are concerned. Moreover, the auditing of accounts should be undertaken by the Court of Auditors in accordance with Article 91 of Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (7).

(19)

After the establishment of the Agency, its budget should be assessed by the budgetary authority on an ongoing basis, with reference to the Agency's workload and performance. That assessment should determine whether sufficient human and financial resources are available. The budgetary authority should ensure that the best standards of efficiency are met.

(20)

The Agency should have highly professional staff. In particular, it should benefit from the competence and experience of staff seconded from the Commission, the Member States and the national regulatory authorities. The Staff Regulations of Officials of the European Communities, the regulations applicable to other servants of the European Communities and the rules adopted jointly by the ║ Community institutions for the purpose of applying those regulations should apply to the staff of the Agency. The Administrative Board, in agreement with the Commission, should adopt the necessary implementing measures.

(21)	The Agency should apply the general rules regarding public access to documents held by Community bodies. The Administrative board should establish the practical measures to protect commercially sensitive data and personal data.

(22)	Participation of third countries in the work of the Agency should be possible in accordance with appropriate agreements to be concluded by the Community.

(23)

The Commission should present to the European Parliament and to the Council, no later than three years after the first director of the Agency has taken up his/her duties and every three years thereafter, an evaluation report on the Agency's specific tasks and the results achieved, accompanied by any appropriate proposals.

(24)

Since the objectives of this Regulation, namely the participation and cooperation of national regulatory authorities at Community level, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(25)	The Agency should be fully accountable to the European Parliament,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation establishes an Agency for the Cooperation of Energy Regulators (hereinafter referred to as ‘the Agency’) ║ for the purpose of complementing at Community level the regulatory tasks performed at national level by the regulatory authorities referred to in Article 22a of Directive 2003/54/EC and Article 24a of Directive 2003/55/EC, and, where necessary, to coordinate their action.

Article 2

Legal status and seat

1.   The Agency shall be a Community body with legal personality.

2.   In each Member State, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under national law. It may, in particular, acquire or dispose of movable and immovable property and be a party to legal proceedings.

3.   The Agency shall be represented by its Director.

4.   The seat of the Agency shall be located in Brussels . Until its premises are ready, it will be hosted on Commission premises.

Article 3

Composition

The Agency shall comprise:

(a)	an Administrative Board, which shall exercise the responsibilities set out in Article 14;

(b)	a Board of Regulators, which shall exercise the responsibilities set out in Article 17;

(c)	a Director, who shall exercise the responsibilities set out in Article 19; and

(d)	a Board of Appeal, which shall exercise the responsibilities set out in Article 21.

Article 4

Tasks of the Agency

The Agency shall, in the fulfilment of the purpose set out in Article 1 :

(a)	issue opinions , recommendations and decisions addressed to transmission system operators , in relation to all technical matters pertaining to the good functioning of the internal energy market ;

(b)	issue opinions addressed to regulatory authorities;

(c)	issue opinions and recommendations addressed to the European Parliament, the Council, or the Commission;

(d)	take ▐ decisions in specific cases referred to in Articles 6 to 12;

(e)	provide a framework within which national regulatory authorities can participate and cooperate;

(f)	overview the execution of the tasks of the European networks of transmission system operators for electricity and gas;

(g)

establish economic and technical terms and conditions for the development of codes and rules drafted by the European networks of transmission system operators for electricity and gas and approve the codes and rules in order to ensure the efficient and secure functioning of the internal energy market;

(h)	set methodologies and tariffs for compensation mechanisms between transmission system operators, based on an assessment of their actual costs;

(i)	coordinate the national regulatory authorities concerned in relation to their operations on regional electricity or gas markets;

(j)	together with the Commission, promote interregional cooperation among energy markets and integrate regional energy markets into the internal energy market;

(k)	undertake EU-wide public consultations relating to the matters set out in points (e) to (h).

Article 5

General tasks

The Agency may, on a request from the European Parliament, the Council or the Commission or on its own initiative, provide an opinion or a recommendation to the European Parliament, the Council and the Commission on all issues related to the purpose for which it has been established.

Article 6

Tasks as regards the cooperation of transmission system operators

1.   The Agency shall provide an opinion to the Commission on the draft statutes, list of members and draft rules of procedure of the European networks of transmission system operators for electricity and gas in accordance with Article 2b(2) of Regulation (EC) No 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity  (8) and ║ Article 2b(2) of Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks  (9).

2.   The Agency shall monitor the execution of the tasks of the European networks of transmission system operators for electricity and gas as provided for in Article 2d of Regulation (EC) No 1228/2003 and ║ Article 2d of Regulation (EC) No 1775/2005.

3.   The Agency shall approve the 10-year investment plans of the European networks of transmission system operators for electricity and gas, referred to in Article 2c of Regulation (EC) No 1228/2003 and ▐ in Article 2c of Regulation (EC) No 1775/2005 , ensuring non-discrimination, effective competition and the efficient and secure functioning of the internal energy market .

4.     The 10-year investment plans shall contain provisions for the transition to smart metres and grids within 10 years of the entry into force of this Regulation. The Agency and the national regulatory authorities shall monitor the progress of transmission system operators towards the development of smart metres and grids. To this end, the Agency and national regulatory authorities shall establish an incremental timetable including a deadline for completion.

The Agency shall ensure that those information and communication systems, including smart metres and grids, that are implemented, facilitate the development of the internal energy market and do not introduce any new technical barriers.

5.     The Agency shall draft and adopt guidelines establishing basic, clear and objective principles for the harmonisation of network rules, following the process set out in Article 2e of Regulation (EC) No 1228/2003 and in Article 2e of Regulation (EC) No 1775/2005. The Agency shall adopt the draft network codes developed by the European networks of transmission system operators for electricity and gas, following the procedure set out in Article 2f of Regulation (EC) No 1228/ 2003 and Article 2f of Regulation (EC) No 1775/ 2005 and shall monitor their implementation. The Agency may make a recommendation to the Commission under Article 2f(7) of Regulation (EC) No 1228/2003 or Article 2f(7) of Regulation (EC) No 1775/2005.

6.     The Agency shall coordinate communications between EU and third-country transmission system operators.

7.   The Agency shall provide a duly justified opinion to the European Parliament, the Council and the Commission , in the event that it considers that the draft annual work programme or the draft 10-year investment plan submitted to it in accordance with Article 2d(2) of Regulation (EC) No 1228/2003 and Article 2d(2) of Regulation (EC) No 1775/2005 do not ensure non-discrimination, effective competition or the efficient functioning of the market , or are not in conformity with the energy policy set out in Community law .

8.    By delegation of the Commission's powers and in compliance with Article 2f(2) of Regulation (EC) No 1228/2003 and Article 2f(2) of Regulation (EC) No 1775/2005, the Agency may take enforcement decisions and propose that the Commission impose fines where it considers ▐ that a draft technical ▐ code has not been adopted within a reasonable period of time or that the transmission system operators fail to implement a technical ▐ code.

9.   The Agency shall monitor the regional cooperation of transmission system operators referred to in Article 2i of Regulation (EC) No 1228/2003 and Article 2i of Regulation (EC) No 1775/2005.

10.     The Agency shall monitor the authorisation process of the construction of new cross-border capacities, and ensure the speeding up of this process within the confines of enhanced regional cooperation.

11.     The Agency shall monitor the cross-border capacity calculations by transmission system operators and the actual (aggregate) use of the interconnection capacity between the grids, as well as resolving problems of unfair, discriminatory or inefficient access across national borders.

12.     The Agency may impose effective sanctions if barriers to cross-border trade are not removed.

13.     The Agency may take binding decisions in regard to all issues affecting access and use of connected transmission systems involving more than one Member State if joint agreement has not been reached by the relevant national regulatory authorities.

Article 7

Tasks as regards the national regulatory authorities

1.   The Agency shall adopt individual decisions on technical issues where these decisions are provided for in Guidelines pursuant to Directive 2003/54/EC, Directive 2003/55/EC, Regulation (EC) No 1228/2003 or Regulation (EC) No 1775/2005.

2.   The Agency may, in accordance with its work programme or at the request of the Commission, adopt non-binding guidelines to assist regulatory authorities and market players in sharing good practices.

3.   The Agency shall ensure cooperation between the national regulatory authorities ▐ at Community and regional level. Where the Agency considers that binding rules relating to such cooperation are required, it shall make the appropriate recommendations to the Commission.

4.   The Agency shall provide an opinion, at the request of any regulatory authority ▐, on whether a decision taken by a regulatory authority complies with the Guidelines referred to in Directive 2003/54/EC, Directive 2003/55/EC, Regulation (EC) No 1228/2003 or Regulation (EC) No 1775/2005 and other Community law relating to energy policy .

5.   Where a national regulatory authority fails to comply with the opinion of the Agency as referred to in paragraph 4 within four months from the date of receipt, the Agency shall advise the Commission and the government of the Member State in question accordingly .

6.   When a national regulatory authority encounters, in a specific case, difficulties with the application of the Guidelines referred to in Directive 2003/54/EC, Directive 2003/55/EC, Regulation (EC) No 1228/2003 or Regulation (EC) No 1775/2005, it may ask the Agency for an opinion. The Agency shall deliver its opinion ▐ within two months of that request.

7.   The Agency shall decide on the regulatory regime for infrastructure connecting at least two Member States, in accordance with Article 22d(3) of Directive 2003/54/EC and Article 24d(3) of Directive 2003/55/EC.

8 .    The Agency shall monitor developments in the electricity and gas markets, in particular the access of energy from renewable sources to the grid, by ensuring positive benchmarking of national rules on such access and by facilitating such access in other Member States.

Article 8

Other tasks

1.   The Agency may grant exemptions, as provided for in Article 7(4)(a) of Regulation (EC) No 1228/2003. The Agency may also grant exemptions as provided for in Article 22(3)(a) of Directive 2003/55/EC where the infrastructure concerned is located in the territory of more than one Member State.

In the event that the Agency fails to adopt a decision in relation to an application for a grant of exemption under this paragraph within three months of receipt of the application, the Commission shall take such a decision in its place.

2.   The Agency shall propose an independent system operator in accordance with Article 10(4) of Directive 2003/54/EC and Article 9(4) of Directive 2003/55/EC.

3 .    The Agency shall promote efforts to give practical shape to the guidelines on trans-European energy networks as laid down in Decision No 1364/2006/EC of the European Parliament and of the Council of 6 September 2006 laying down guidelines for trans-European energy networks  (10).

In particular, the Agency shall into take account those guidelines when it approves the 10-year investment plans in accordance with Article 6(3).

4 .    The Agency shall, at the request of the Commission, take on specific additional tasks that relate to its purpose.

Article 9

Energy storage and crisis management

1 .    When publishing its annual report, the Agency shall identify the European Union's storage requirements, in both cyclical and security terms, and shall set out guidelines relating to investment in production and transmission infrastructure .

2 .    The Agency shall coordinate the national energy crisis management mechanisms at Community level.

3 .    The Agency shall coordinate communications between EU and third-country operators.

Article 10

Consultation and Transparency

1 .    Before adopting any measure, the Agency shall formally consult market participants, consumers and end-users in an open and transparent manner, in particular with regard to its tasks as regards the cooperation of transmission system operators.

The Agency shall, where appropriate, give interested parties a reasonable opportunity to comment on the proposed measure and shall make public the results of the consultation procedure.

2 .    The Agency shall carry out its activities with a high level of transparency

3 .    The Agency shall ensure that the public and any interested parties are given objective, reliable and easily accessible information, in particular with regard to the results of its work, where appropriate.

4 .    The Agency shall establish, in its internal rules of procedure, the practical arrangements for implementing the transparency requirements referred to in paragraphs 2 and 3.

5 .    The Agency shall publish, on its own website, at least the agenda, background documents and minutes of the meetings of its Administrative Board, Board of Regulators and Board of Appeal.

Article 11

Monitoring and reporting on the energy sector

1 .    The Agency shall monitor developments in the electricity and gas markets, and in particular the retail prices of electricity and gas and compliance with the consumer rights set out in Directives 2003/55/EC and 2003/54/EC.

2 .    The Agency shall publish an annual report on the developments in the electricity and gas markets, including consumer issues, in which it shall identify any remaining barriers to the completion of the internal energy market.

3 .    When publishing its annual report, the Agency may submit to the European Parliament and to the Commission, an opinion on the measures that might be taken to remove any barriers referred to in paragraph 2.

Article 12

Supervision, enforcement and penalties

1 .    The Agency, in consultation with the Commission, may impose financial penalties on transmission system operators that fail to comply with Article 7 or that fail to provide information requested by the Agency to perform its tasks. Those penalties shall be effective, proportionate and dissuasive.

2 .    The national regulatory authorities, in cooperation with the Agency, shall be responsible for verifying compliance by transmission system operators with obligations arising from the provisions of this Regulation.

3 .    When penalties are imposed under this Article, the Authority shall publish the names of the transmission system operators involved and the amounts of and reasons for the financial penalties imposed.

Article 13

Administrative Board

1.   The Administrative Board shall be composed of six members. Two shall be appointed by the Commission, two by the Council and two by the European Parliament. No member of the Administrative Board shall also be a Member of the European Parliament. The term of office shall be five years, renewable once.

2.   The Administrative Board shall appoint its Chairperson and its Vice-Chairperson from among its members. The Vice-Chairperson shall automatically replace the Chairperson if the latter is not in a position to perform his/her duties. The term of office of the Chairperson and of the Vice-Chairperson shall be two and a half years and shall be renewable. In any event, however, the term of office of the Chairperson and that of the Vice-Chairperson shall expire the moment they cease to be members of the Administrative Board.

3.   Meetings of the Administrative Board shall be convened by its Chairperson. The Chairperson of the Board of Regulators or his/her nominee from that Board and the Director of the Agency shall participate in the deliberations without the right to vote . The Administrative Board shall meet at least twice a year in ordinary session. It shall also meet at the initiative of its Chairperson, at the request of the Commission or at the request of at least a third of its members. The Administrative Board may invite any person with potentially relevant opinions to attend its meetings in the capacity of an observer. The members of the Administrative Board may, subject to the rules of procedure, be assisted by advisers or by experts. The Administrative Board's secretarial services shall be provided by the Agency.

4.   Decisions of the Administrative Board shall be adopted on the basis of a two-thirds majority of the members present , unless provided otherwise in this Regulation or in the Agency's statute .

5.   Each member shall have one vote. The rules of procedure shall set out in greater detail the arrangements governing voting, especially the conditions whereby one member can act on behalf of another and also, where appropriate, the rules governing quorums.

6 .    Members of the Administrative Board shall undertake to act independently in the public interest. For that purpose, they shall make annual written declaration of commitments and a written declaration of interests indicating either the absence of any interest which may be considered prejudicial to their independence or any direct or indirect interest which might be considered prejudicial to their independence. Those declarations shall be made public.

7 .    The Administrative Board shall carry out its tasks independently, objectively and in the public interest, without seeking or taking any instructions from national or regional governments.

8 .    No member of the Administrative Board shall also be a member of the Board of Regulators.

9 .    The Administrative Board may be removed from office upon the proposal of the Commission and by a decision taken by the European Parliament. The European Parliament shall take its decision by absolute majority vote.

Article 14

Tasks of the Administrative Board

1.   The Administrative Board shall, with the assent of the Board of Regulators and subject to a vote of approval by the European Parliament , appoint the Director in accordance with Article 18(2).

▐

2.   The Administrative Board shall appoint the members of the Board of Appeal in accordance with Article 20(1).

3.   The Administrative Board shall adopt, before 30 September each year, ║ after consulting the European Parliament and the Commission and after approval by the Board of Regulators in accordance with Article 17(3), the work programme of the Agency for the coming year and shall transmit it to the European Parliament, the Council and the Commission. The work programme shall be adopted without prejudice to the annual budgetary procedure and shall be made public .

4.   The Administrative Board shall exercise its budgetary powers in accordance with Articles 23 to 26.

5.   The Administrative Board shall decide, after having obtained the agreement of the Commission, whether to accept any legacies or donations or grants from other Community sources.

6.   The Administrative Board shall , in consultation with the Board of Regulators, exercise disciplinary authority over the Director.

7 .    The European Parliament may invite any member or members of the Administrative Board to make a statement before its competent committee and answer questions put by members of that committee

8.   The Administrative Board shall, where necessary, draw up the Agency's staff policy pursuant to Article 30(2).

9.   The Administrative Board shall adopt the special provisions on right of access to the documents of the Agency, in accordance with Article 32.

10.   The Administrative Board shall adopt the annual report on the activities of the Agency, referred to in Article 19(9), and the annual report on the developments in the electricity and gas markets, referred to in Article 11(2). The Agency shall transmit the annual reports to the European Parliament, the Council, the Commission, the European Economic and Social Committee , the Committee of the Regions and the Court of Auditors by 15 April . The report on the activities of the Agency shall contain an independent section, approved by the Board of Regulators, concerning the regulatory activities of the Agency during the year considered. The abovementioned Community institutions and bodies shall grant or refuse approval of the implementation by the Agency of EU policies on energy, the internal energy market and competition.

11.   The Administrative Board shall adopt its own rules of procedure.

Article 15

Reporting by the Administrative Board

The European Parliament and the Council may call upon the Administrative Board to submit a report on the performance of its duties.

Article 16

Board of Regulators

1.   The Board of Regulators shall be composed of one representative per Member State from the heads of the national regulatory authorities or their representative pursuant to Article 22a of Directive 2003/54/EC and Article 24a of Directive 2003/55/EC, and one non-voting representative of the Commission. Only one representative per Member State from the national regulatory authority may be admitted to the Board of Regulators. Each national regulatory authority shall be responsible for nominating the alternate from current staff of the national regulatory authority .

2.   The Board of Regulators shall elect a Chairperson and a Vice-Chairperson from among its members. The Vice-Chairperson shall replace the Chairperson if the latter is not in a position to perform his/her duties. The term of office of the Chairperson and of the Vice-Chairperson shall be two and a half years and shall be renewable. In any event, however, the term of office of the Chairperson and that of the Vice-chairperson shall expire the moment they cease to be members of the Board of Regulators.

3.   The Board of Regulators shall act by a two-thirds majority of its members present . Each member or alternate shall have one vote.

4.   The Board of Regulators shall adopt its Rules of procedure. The rules of procedure shall set out in greater detail the arrangements governing voting, especially voting by proxy, and also, where appropriate, the rules governing quorums. The rule of procedures may foresee specific working methods for the consideration of issues arising in the context of regional cooperation initiatives.

5.   When carrying out the tasks conferred upon it by this Regulation, the Board of Regulators shall act independently and ║ shall seek or take no instructions from any government of a Member State or from any public or private entity.

6.   The Board of Regulators’ secretarial services shall be provided by the Agency.

7 .    The European Parliament and the Council may call upon the Chairperson of the Board of Regulators to submit a report on the performance of his/her duties .

Article 17

Tasks of the Board of Regulators

1.   The Board of Regulators shall provide its assent to the Director before the adoption of the opinions, recommendations and decisions referred to in Articles 5 to 11 in accordance with Article 19(3) . In addition, the Board of Regulators, within its field of competence, shall provide guidance to the Director in the execution of the Director's tasks. The Director shall execute his/her tasks in accordance with the decisions of the Board of Regulators, which should be the only decision-making body of the Agency as regards energy market regulation.

2.   The Board of Regulators shall deliver its assent on the candidate to be appointed as Director in accordance with Articles 14(1) and 18(2). The Board of Regulators shall reach this decision on the basis of a majority of three quarters of its members.

3.   The Board of Regulators shall, in accordance with Articles 14(3) and 19(7) and in line with the draft budget established according to Article 25(1), approve the work programme of the Agency for the coming year and present it before 1 September for adoption by the Administrative Board.

4.   The Board of Regulators shall approve the independent section on regulatory activities of the annual report, as provided for in Articles 14(10) and 19(9).

5 .    The European Parliament may invite any member or members of the Board of Regulators to make a statement before its competent committee and answer questions put by members of that committee.

Article 18

Director

1.   The Agency shall be managed by its Director, who shall act in accordance with decisions adopted by the Board of Regulators . Without prejudice to the respective powers of the Commission, the Administrative Board and the Board of Regulators, the Director shall ║ seek or take no instructions from any government or from any body.

2.   The Director shall be appointed by the Administrative Board upon the assent of the Board of Regulators , on the basis of merit as well as skills and experience relevant to the energy sector , from a list of a minimum of two candidates proposed by the Commission, following a public call for expression of interest. Before appointment, the candidate selected by the Administrative Board shall be invited to make a statement before the competent committee of the European Parliament and answer questions put by its members and shall be subject to a vote of approval by the European Parliament .

3.   The Director's term of office shall be five years. In the course of the nine months preceding the end of that period, the Commission shall undertake an assessment . In that assessment , the Commission shall examine, in particular:

(a)	the performance of the Director; and

(b)	the Agency's duties and requirements in the coming years.

4.   The Administrative Board, acting on a proposal from the Commission, after having consulted and given the utmost consideration to the opinion of the Board of Regulators, taking into account the assessment report and only in those cases where it can be justified by the duties and requirements of the Agency, may extend the term of office of the Director once, for no longer than three years.

5.   The Administrative Board shall inform the European Parliament about its intention to extend the Director's term of office. Within a month before the extension of his/her term of office, the director may be invited to make a statement before the competent committee of the Parliament and answer questions put by its members. Such an extension of the Director's term of office shall be subject to a vote of approval by the European Parliament.

6.   If the term of office is not extended, the Director shall remain in office until the appointment of his/her successor.

7.   The Director may be removed from office only by a decision by the Administrative Board and with the assent of the Board of Regulators. The Administrative Board shall reach its decision on the basis of a two-thirds majority of ▐ of its members.

8 .    In addition to the requirement set out in Article 14(10), the European Parliament and the Council may call upon the Director to submit a report on the performance of his/her duties.

Article 19

Tasks of the Director

1.   The Director shall be responsible for representing the Agency and shall be in charge of its management.

2.   The Director shall prepare the work of the Administrative Board. He/she shall participate, without having the right to vote, in the work of the Administrative Board.

3.   The Director shall adopt the opinions, recommendations and decisions referred to in Articles 5 to 11 , subject to the assent of the Board of Regulators.

4.   The Director shall be responsible for implementing the annual work programme of the Agency under the guidance of the Board of Regulators and under the administrative control of the Administrative Board.

5 .    The European Parliament may invite the Director to make a statement before its competent committee and answer questions put by members of that committee.

6.   The Director shall take the necessary measures, notably adopting internal administrative instructions and the publication of notices, to ensure the functioning of the Agency in accordance with this Regulation.

7.   ║ The Director shall prepare an annual draft work programme of the Agency for the following year, and submit it to the Board of Regulators , the European Parliament and ║ the Commission before 30 June of that year. The European Parliament shall draw up recommendations for the work programme.

8.   The Director shall make an estimate of the revenue and expenditure of the Agency pursuant to Article 30 and shall implement the budget of the Agency pursuant to Article 26.

9.   Each year the Director shall prepare a draft annual report with a section on the regulatory activities of the Agency and a section on financial and administrative matters.

10.   With regard to the staff of the Agency, the Director shall exercise the powers provided for in Article 30(3).

Article 20

Board of Appeal

1.   The Board of Appeal shall be composed of six members and six alternates selected from among current or former senior staff of the national regulatory authorities, competition authorities or other national or Community institutions with relevant experience in the energy sector. The Board of Appeal shall designate its Chairperson. The decisions of the Board of Appeal shall be adopted on the basis of a qualified majority of at least four out of its six members. The Board of Appeal shall be convened when necessary.

2.   The members of the Board of Appeal shall be appointed by the Administrative Board, on a proposal from the Commission, following a public call for expression of interest, after consulting the Board of Regulators. Before their appointment, the candidates selected by the Administrative Board shall make a statement before the competent committee of the European Parliament and answer questions put by the members of that committee.

3.   The term of office of the members of the Board of Appeal shall be five years. That term shall be renewable. The members of the Board of Appeal shall be independent in making their decisions; they shall not be bound by any instructions. They may not perform any other duties in the Agency, in its Administrative Board or in its Board of Regulators. A member of the Board of Appeal may not be removed during his/her term of office, unless he/she has been found guilty of serious misconduct, and the Administrative Board, after consulting the Board of Regulators, takes a decision to that effect.

4.   Members of the Board of Appeal may not take part in any appeal proceedings if they have any personal interest therein, ║ if they were previously been involved as representatives of one of the parties to the proceedings, or if they participated in the decision under appeal.

5.   If, for one of the reasons referred to in paragraph 4 or for any other reason, a member of a Board of Appeal considers that a fellow member should not take part in any appeal proceedings, the member shall inform the Board of Appeal accordingly. Any party to the appeal proceedings may object to a member of the Board of Appeal ║ on any of the grounds referred to in paragraph 4, or if the member is suspected of partiality. Such an objection shall not be based on the nationality of the member and shall ║ be inadmissible if, while ║ aware of a reason for objecting, the party to the appeal proceedings objecting to the member has taken a procedural step.

6.   The Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 4 and 5 without the participation of the member concerned. For the purposes of taking that decision, the member concerned shall be replaced on the Board of Appeal by his/her alternate, unless the alternate finds himself in a similar situation. Should this be the case, the Chairperson shall designate a replacement from among the available alternates.

7 .    The European Parliament may invite any member or members of the Board of Appeal to make a statement before its competent committee and answer questions put by members of that committee.

Article 21

Appeals

1.   Any natural or legal person may appeal against a decision as referred to in Articles 7 or 8 and which is addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to that person.

2.   The appeal, together with the statement of grounds thereof, shall be filed in writing at the Agency within two months of the notification of the decision to the person concerned, or, in the absence thereof, within two months of the publication of the decision by the Agency. The Board of Appeal shall decide upon the appeal within two months of the lodging of the appeal.

3.   An appeal lodged pursuant to paragraph 1 shall not have suspensory effect. The Board of Appeal may, however, if it considers that circumstances so require, suspend the application of the contested decision.

4.   If the appeal is admissible, the Board of Appeal shall examine whether it is well-founded. It shall invite the parties as often as necessary to the appeal proceedings to file observations on notifications issued by itself or on communications from the other parties to the appeal proceedings, within specified time limits. Parties to the appeal proceedings shall be entitled to make an oral presentation.

5.   The Board of Appeal may, within the terms of this Article, exercise any power which lies within the competence of the Agency, or it may remit the case to the competent body of the Agency. The latter shall be bound by the decision of the Board of Appeal.

6.   The Board of Appeal shall adopt its rules of procedure.

Article 22

Actions before the Court of First Instance and the Court of Justice

1.   An action may be brought before the Court of First Instance of the Court of Justice, in accordance with Article 230 of the Treaty, contesting a decision taken by the Board of Appeal or, in cases where there is no right of appeal to the Board of Appeal, by the Agency.

2.   Should the Agency fail to take a decision, proceedings for failure to act may be brought before the Court of First Instance or the Court of Justice in accordance with Article 232 of the Treaty.

3.   The Agency shall be required to take the necessary measures to comply with a judgment of the Court of First Instance or the Court of Justice.

Article 23

Budget of the Agency

1.   The revenues of the Agency shall comprise, notably ║:

(a)

a subsidy from the Community, entered under the appropriate headings of the general budget of the European Union (Commission Section) , as decided by the European Parliament and the Council (hereinafter referred to as the ‘budgetary authority’) and in accordance with point 47 of the Interinstitutional Agreement ;

(b)	the fees paid to the Agency pursuant to Article 24;

(c)	a financial contribution from each of the national regulatory authorities , from every Member State ;

(d)	any proposed alternative financing methods, notably through a charge on the flows of electricity and gas; and

(e)	any legacies, donations or grants as referred to in Article 14(5).

The Board of Regulators shall agree by … (11) the level of the financial contribution to be made by each Member State under point (c).

2.   The expenditure shall cover staff, administrative, infrastructure, and operational expenses.

3.   Revenue and expenditure shall be in balance.

4.   All Agency revenue and expenditure shall be the subject of forecasts for each financial year, coinciding with the calendar year, and shall be entered in its budget.

Article 24

Fees

1.   Fees shall be due to the Agency for requesting an exemption decision pursuant to Article 8(1) or specific or special advice, recommendations, decisions or monitoring tasks in relation to the European networks of transmission system operators for electricity and gas .

2.   The ║ fees referred to in paragraph 1 shall be set by the Commission.

Article 25

Establishment of the budget

1.   By 15 February of each year at the latest, the Director shall drawn up a preliminary draft budget covering the operational expenditure and the programme of work anticipated for the following financial year, and shall forward this preliminary draft to the Administrative Board, together with a list of provisional posts. Each year the Administrative Board shall, on the basis of the draft prepared by the Director, make an estimate of revenue and expenditure of the Agency for the following financial year. That estimate, including a draft establishment plan, shall be transmitted by the Administrative Board to the Commission by 31 March at the latest. Prior to adoption of the estimate, the draft prepared by the Director shall be transmitted to the Regulatory Board, which may deliver a reasoned opinion on the draft.

2.   The estimate shall be transmitted by the Commission to the ║ budgetary authority ║ together with the preliminary draft general budget of the European Union.

3.   On the basis of the estimates, the Commission shall enter in the preliminary draft general budget of the European Union the forecasts it considers necessary in respect of the establishment plan and the amount of the grant to be charged to the general budget in accordance with Article 272 of the Treaty.

4.   The budgetary authority shall adopt the establishment plan for the Agency.

5.   The budget of the Agency shall be drawn up by the Administrative Board. It shall become final after the final adoption of the general budget of the European Union. Where necessary, it shall be adjusted accordingly.

6.   The Administrative Board shall, without delay, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of its budget, in particular any project relating to property such as the renting or purchase of buildings. The Administrative Board shall also inform the Commission thereof. If either branch of the budgetary authority intends to issue an opinion, it shall notify the Agency of its intention to do so within two weeks after receipt of the information on the building project. In the absence of a reply to such notification, the Agency may proceed with the implementation of the project.

Article 26

Implementation and control of the budget

1.   The Director shall act as authorising officer and shall implement the Agency's budget.

2.   By 1 March at the latest following the completion of each financial year, the Agency accounting officer shall forward to the Commission's accounting officer and the Court of Auditors the provisional accounts, accompanied by the report on budgetary and financial management over the financial year. The Agency accounting officer shall also send the report on budgetary and financial management to the European Parliament and the Council by 31 March of the following year at the latest. The Commission's accounting officer shall then consolidate the provisional accounts of the Community institutions and decentralised bodies in accordance with Article 128 of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities  (12).

3.   By 31 March at the latest following the completion of each financial year, the Commission's accounting officer shall forward the provisional accounts of the Agency, accompanied by the report on budgetary and financial management over the financial year, to the Court of Auditors. The report on budgetary and financial management over the financial year shall also be forwarded to the European Parliament and the Council.

4.   After receiving the observations of the Court of Auditors on the provisional accounts of the Agency in accordance with the provisions of Article 129 of Regulation (EC, Euratom) No 1605/2002, the Director, acting on his/her own responsibility, shall draw up the final accounts of the Agency and transmit them, for opinion, to the Administrative Board.

5.   The Administrative Board shall deliver an opinion on the final accounts of the Agency.

6.   The Director shall transmit those final accounts, accompanied by the opinion of the Administrative Board, no later than 1 July following the completion of the financial year, to the European Parliament, the Council, the Commission and the Court of Justice.

7.   The final accounts shall be published.

8.   The Director shall send the Court of Auditors a reply to the latter's observations by 15 October at the latest. He/she shall also send a copy of this reply to the Administrative Board and the Commission.

9.   The Director shall submit to the European Parliament, at the latter's request and as provided for in Article 146(3) of Regulation (EC, Euratom) No 1605/2002, any information necessary for the smooth running of the discharge procedure for the financial year in question.

10.   The European Parliament, following a recommendation from the Council and acting on a qualified majority, shall, before 15 May of the year N + 2, grant a discharge to the Director for the implementation of the budget for the financial year N.

Article 27

Financial rules

The financial rules applicable to the Agency shall be drawn up by the Administrative Board after consulting the Commission. Those rules may deviate from ║ Regulation (EC, Euratom) No 2343/2002 if the specific operational needs for the functioning of the Agency so require and only with the prior agreement of the Commission.

Article 28

Anti-fraud measures

1.   For the purposes of combating fraud, corruption and other illegal acts, the provisions of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)  (13) shall apply to the Agency without any restriction.

2.   The Agency shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF) (14) and shall immediately adopt appropriate provisions for all staff of the Agency.

3.   The funding decisions and the agreements and the implementing instruments resulting from them shall explicitly stipulate that the Court of Auditors and OLAF may, if need be, carry out on-the-spot checks on the beneficiaries of monies disbursed by the Agency as well as on the staff responsible for allocating these monies.

Article 29

Privileges and immunities

The Protocol on Privileges and Immunities of the European Communities shall apply to the Agency.

Article 30

Staff

1.   The Staff Regulations of Officials of the European Communities, the Conditions of employment of other servants of the European Communities and the rules adopted jointly by the ║ Community institutions for the purpose of applying these staff regulations and conditions of employment shall apply to the staff of the Agency.

2.   The Administrative Board, in agreement with the Commission, shall adopt the necessary implementing measures, in accordance with the arrangements provided for in Article 110 of the Staff Regulations of officials of the European Communities.

3.   In respect of its staff, the Agency shall exercise the powers conferred on the appointing authority by the Staff Regulations of officials of the European Communities and on the authority entitled to conclude contracts by the Conditions of Employment of other servants of the European Communities.

4.   The Administrative Board may adopt provisions to allow national experts from Member States to be employed on secondment at the Agency in exceptional cases .

Article 31

Liability of the Agency

1.   In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or by its staff in the performance of their duties. The Court of Justice ║ shall have jurisdiction in any dispute over the remedying of such damage.

2.   The personal financial liability and disciplinary liability of Agency staff towards the Agency shall be governed by the relevant provisions applying to the staff of the Agency.

Article 32

Access to documents

1.   Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents  (15) shall apply to documents held by the Agency.

2.   The Administrative Board shall adopt practical measures for applying Regulation (EC) No 1049/2001 within six months from the date of entry into force of this Regulation.

3.   Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may be the subject of a complaint to the Ombudsman or of proceedings before the Court of Justice, in accordance with the conditions laid down, respectively, in Articles 195 and 230 ║ of the Treaty.

Article 33

Participation of third countries

The Agency shall be open to the participation of countries which are not members of the European Union and which have concluded agreements with the Community to this effect. Under the relevant provisions of those agreements, arrangements shall be made specifying, in particular, the nature, scope and procedural aspects of the involvement of these countries in the work of the Agency, including provisions relating to financial contributions and to staff.

Article 34

Language arrangements

1.   The provisions of Council Regulation No 1 of 15 April 1958determining the languages to be used by the European Economic Community  (16) shall apply to the Agency.

2.   The Administrative Board shall decide on the internal language arrangements for the Agency.

3.   The translation services required for the functioning of the Agency shall be provided by the Translation Centre for the Bodies of the European Union.

Article 35

Evaluation

1.   The Commission shall carry out an evaluation of the activities of the Agency. This shall cover the results achieved by the Agency and its working methods, in relation with its objective, mandate and tasks defined in this Regulation and in its annual work programmes. That evaluation shall be based on extensive consultation.

2.   The first evaluation report shall be presented by the Commission to the European Parliament and the Council no later than three years after the first director has taken up his/her duties. The Commission shall ║ present an evaluation report at least every three years thereafter .

Article 36

Entry into force and transitory measures

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.    Articles 5 to 12 shall apply as from … (17)

---

(1)  OJ C 211, 19.8.2008, p. 23.

(2)  OJ C 172, 5.7.2008, p. 55.

(3)  Position of the European Parliament of 18 June 2008.

(4)  OJ L 296, 14.11.2003, p. 34.

(5)  OJ L 176, 15.7.2003, p. 37.

(6)  OJ L 176, 15.7.2003, p. 57.

(7)  OJ L 357, 31.12.2002, p. 72.

(8)   OJ L 176, 15.7.2003, p. 1.

(9)   OJ L 289, 3.11.2005, p. 1.

(10)   OJ L 262, 22.9.2006, p. 1 .

(11)   12 months after entry into force of this Regulation.

(12)  OJ L 248, 16.9.2002, p. 1.

(13)  OJ L 136, 31.5.1999, p. 1.

(14)  OJ L 136, 31.5.1999, p. 15.

(15)  OJ L 145, 31.5.2001, p. 43.

(16)   OJ 17, 6.10.1958, p. 385/58.

(17)  18 months from entry into force of this Regulation.