(1)

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 (3) has made a significant contribution towards the creation of an internal market for gas. It is now necessary to provide for structural changes in the regulatory framework to tackle remaining barriers to the completion of the internal market in particular regarding the trade of gas. Additional technical rules are necessary, in particular regarding third party access services, principles of capacity allocation mechanisms, congestion management procedures and transparency requirements.

(2)

Experience gained in the implementation and monitoring of a first set of Guidelines for Good Practice, adopted by the European Gas Regulatory Forum (the Forum) in 2002, demonstrates that in order to ensure the full implementation of the rules set out in the Guidelines in all Member States, and in order to provide a minimum guarantee of equal market access conditions in practice, it is necessary to provide for them to become legally enforceable.

(3)

A second set of common rules entitled ‘the Second Guidelines for Good Practice’ was adopted at the meeting of the Forum on 24-25 September 2003 and the purpose of this Regulation is to lay down, on the basis of those Guidelines, basic principles and rules regarding network access and third party access services, congestion management, transparency, balancing and the trading of capacity rights.

(4)

Article 15 of Directive 2003/55/EC allows for a combined transmission and distribution system operator. Therefore, the rules set out in this Regulation do not require modification of the organisation of national transmission and distribution systems that are consistent with the relevant provisions of Directive 2003/55/EC and in particular Article 15 thereof.

(5)

High pressure pipelines linking up local distributors to the gas network which are not primarily used in the context of local distribution are included in the scope of this Regulation.

(6)

It is necessary to specify the criteria according to which tariffs for access to the network are determined, in order to ensure that they fully comply with the principle of non-discrimination and the needs of a well-functioning internal market and take fully into account the need for system integrity and reflect actual costs incurred, insofar as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, whilst including appropriate return on investments, and where appropriate taking account of the benchmarking of tariffs by the regulatory authorities.

(7)

In calculating tariffs for access to networks it is important to take account of actual costs incurred, insofar as such costs correspond to those of an efficient and structurally comparable network operator and are transparent, as well as of the need to provide appropriate return on investments and incentives to construct new infrastructure. In this respect, and in particular if effective pipeline-to-pipeline competition exists, the benchmarking of tariffs by the regulatory authorities will be a relevant consideration.

(8)

The use of market-based arrangements, such as auctions, to determine tariffs has to be compatible with the provisions laid down in Directive 2003/55/EC.

(9)

A common minimum set of third party access services is necessary to provide a common minimum standard of access in practice throughout the Community, to ensure that third party access services are sufficiently compatible and to allow the benefits accruing from a well-functioning internal market for gas to be exploited.

(10)

References to harmonised transportation contracts in the context of non-discriminatory access to the network of transmission system operators do not mean that the terms and conditions of the transportation contracts of a particular system operator in a Member State must be the same as those of another transmission system operator in that Member State or in another Member State, unless minimum requirements are set which must be met by all transportation contracts.

(11)

The management of contractual congestion of networks is an important issue in completing the internal gas market. It is necessary to develop common rules which balance the need to free up unused capacity in accordance with the ‘use-it-or-lose-it’ principle with the rights of the holders of the capacity to use it when necessary, while at the same time enhancing liquidity of capacity.

(12)

Although physical congestion of networks is rarely a problem at present in the Community, it may become one in the future. It is important therefore to provide the basic principle for the allocation of congested capacity in such circumstances.

(13)

For network users to gain effective access to gas networks they need information in particular on technical requirements and available capacity to enable them to exploit business opportunities occurring within the framework of the internal market. Common minimum standards on such transparency requirements are necessary. The publication of such information may be done by different means, including electronic means.

(14)

Non-discriminatory and transparent balancing systems for gas, operated by transmission system operators, are important mechanisms, particularly for new market entrants which may have more difficulty balancing their overall sales portfolio than companies already established within a relevant market. It is therefore necessary to lay down rules to ensure that transmission system operators operate such mechanisms in a manner compatible with non-discriminatory, transparent and effective access conditions to the network.

(15)

The trading of primary capacity rights is an important part of developing a competitive market and creating liquidity. This Regulation should therefore lay down basic rules on that issue.

(16)

It is necessary to ensure that undertakings acquiring capacity rights are able to sell them to other licensed undertakings in order to ensure an appropriate level of liquidity on the capacity market. This approach, however, does not preclude a system where capacity unused for a given period, determined at national level, is made re-available to the market on a firm basis.

(17)

National regulatory authorities should ensure compliance with the rules contained in this Regulation and the guidelines adopted pursuant to it.

(18)

In the Guidelines annexed to this Regulation, specific detailed implementing rules are defined on the basis of the second Guidelines for Good Practice. Where appropriate, these rules will evolve over time, taking into account the differences of national gas systems.

(19)

When proposing to amend the Guidelines laid down in the Annex to this Regulation, the Commission should ensure prior consultation of all relevant parties concerned with the Guidelines, represented by the professional organisations, and of the Member States within the Forum and should request the input of the European Regulators Group for Electricity and Gas.

(20)

The Member States and the competent national authorities should be required to provide relevant information to the Commission. Such information should be treated confidentially by the Commission.

(21)

This Regulation and the guidelines adopted in accordance with it are without prejudice to the application of the Community rules on competition.

(22)

The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (4).

(23)

Since the objective of this Regulation, namely the setting of fair rules for access conditions to natural gas transmission systems, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, 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 that objective,

(a)

natural gas transmission systems situated in Member States for the duration of derogations granted under Article 28 of Directive 2003/55/EC; Member States which have been granted derogations under Article 28 of Directive 2003/55/EC may apply to the Commission for a temporary derogation from the application of this Regulation, for a period of up to two years from the date at which the derogation referred to in this point expires;

(b)

interconnectors between Member States and significant increases of capacity in existing infrastructures and modifications of such infrastructures which enable the development of new sources of gas supply as referred to in Article 22(1) and (2) of Directive 2003/55/EC which are exempted from the provisions of Articles 18, 19, 20 and 25(2), (3) and (4) of that Directive as long as they are exempted from the provisions referred to in this subparagraph; or

(c)

natural gas transmission systems which have been granted derogations under Article 27 of Directive 2003/55/EC.

(1)

It is essential to ensure the continuity of Community support for enterprise and entrepreneurship, and in particular for small and medium-sized enterprises (SMEs).

(2)

It is therefore appropriate to extend the period of validity of Decision 2000/819/EC (3) by another year until 31 December 2006 and increase the financial reference amount by EUR 88,5 million.

(3)

Decision 2000/819/EC should be amended accordingly.

(4)

The Committee of the Regions was consulted, but has not delivered an opinion,

1.

in Article 7(1), the financial reference amount of ‘EUR 450 million’ shall be replaced by ‘EUR 538 500 000’;

2.

in Article 8, the date of 31 December 2005 shall be replaced by that of 31 December 2006.

(1)

With a view to consolidating and giving structure to European research policy, the Commission considered it necessary in January 2000 to establish the European Research Area as the lynchpin of the Community’s future action in this field.

(2)

Endorsing the European Research Area, the Lisbon European Council in March 2000 set the Community the objective of becoming the most competitive and dynamic knowledge-based economy in the world by 2010.

(3)

The globalisation of the economy calls for greater mobility of researchers, something which was recognised by the sixth framework programme of the European Community (4), when it opened up its programmes further to researchers from outside the European Union.

(4)

The number of researchers which the Community will need by 2010 to meet the target set by the Barcelona European Council in March 2002 of 3 % of GDP invested in research is estimated at 700 000. This target is to be met through a series of interlocking measures, such as making scientific careers more attractive to young people, promoting women’s involvement in scientific research, extending the opportunities for training and mobility in research, improving career prospects for researchers in the Community and opening up the Community to third-country nationals who might be admitted for the purposes of research.

(5)

This Directive is intended to contribute to achieving these goals by fostering the admission and mobility for research purposes of third-country nationals for stays of more than three months, in order to make the Community more attractive to researchers from around the world and to boost its position as an international centre for research.

(6)

Implementation of this Directive should not encourage a brain drain from emerging or developing countries. Back-up measures to support researchers’ reintegration into their countries of origin as well as the movement of researchers should be taken in partnership with the countries of origin with a view to establishing a comprehensive migration policy.

(7)

For the achievement of the objectives of the Lisbon process it is also important to foster the mobility within the Union of researchers who are EU citizens, and in particular researchers from the Member States which acceded in 2004, for the purpose of carrying out scientific research.

(8)

Given the openness imposed by changes in the world economy and the likely requirements to meet the 3 % of GDP target for investment in research, third-country researchers potentially eligible under this Directive should be defined broadly in accordance with their qualifications and the research project which they intend to carry out.

(9)

As the effort to be made to achieve the said 3 % target largely concerns the private sector, which must therefore recruit more researchers in the years to come, the research organisations potentially eligible under this Directive belong to both the public and private sectors.

(10)

Each Member State should ensure that the most comprehensive information possible, regularly kept up to date, is made publicly available, via the Internet in particular, on the research organisations, approved under this Directive, with which researchers could conclude a hosting agreement, and on the conditions and procedures for entry and residence on its territory for the purposes of carrying out research, as adopted under this Directive.

(11)

It is appropriate to facilitate the admission of researchers by establishing an admission procedure which does not depend on their legal relationship with the host research organisation and by no longer requiring a work permit in addition to a residence permit. Member States could apply similar rules for third-country nationals requesting admission for the purposes of teaching in a higher education establishment in accordance with national legislation or administrative practice, in the context of a research project.

(12)

At the same time, the traditional avenues of admission (such as employment and traineeship) should be maintained, especially for doctoral students carrying out research as students, who should be excluded from the scope of this Directive and are covered by Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (5).

(13)

The specific procedure for researchers is based on collaboration between the research organisations and the immigration authorities in the Member States: it gives the former a key role in the admission procedure with a view to facilitating and speeding up the entry and residence of third-country researchers in the Community while preserving Member States’ prerogatives with respect to immigration policing.

(14)

Research organisations approved in advance by the Member States should be able to sign a hosting agreement with a third-country national for the purposes of carrying out a research project. Member States will issue a residence permit on the basis of the hosting agreement if the conditions for entry and residence are met.

(15)

In order to make the Community more attractive to third-country researchers, they should be granted, during their stay, equal social and economic rights with nationals of the host Member State in a number of areas and the possibility to teach in higher education establishments.

(16)

This Directive adds a very important improvement in the field of social security as the non-discrimination principle also applies directly to persons coming to a Member State directly from a third country. Nevertheless, this Directive should not confer more rights than those already provided in existing Community legislation in the field of social security for third-country nationals who have cross-border elements between Member States. This Directive furthermore should not grant rights in relation to situations which lie outside the scope of Community legislation like for example family members residing in a third country.

(17)

It is important to foster the mobility of third-country nationals admitted for the purposes of carrying out scientific research as a means of developing and consolidating contacts and networks between partners and establishing the role of the European Research Area at world level. Researchers should be able to exercise mobility under the conditions established by this Directive. The conditions for exercising mobility under this Directive should not affect the rules currently governing recognition of the validity of the travel documents.

(18)

Special attention should be paid to the facilitation and support of the preservation of the unity of family members of the researchers, according to the Council Recommendation of 12 October 2005 to facilitate the admission of third-country nationals to carry out scientific research in the European Community (6).

(19)

In order to preserve family unity and to enable mobility, family members should be able to join the researcher in another Member State under the conditions determined by the national law of such Member State, including its obligations arising from bilateral or multilateral agreements.

(20)

Holders of residence permits should be in principle allowed to submit an application for admission while remaining on the territory of the Member State concerned.

(21)

Member States should have the right to charge applicants for the processing of applications for residence permits.

(22)

This Directive should not affect in any circumstances the application of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (7).

(23)

The objectives of this Directive, namely the introduction of a special admission procedure and the adoption of conditions of entry and residence applicable to third-country nationals for stays of more than three months in the Member States for the purposes of conducting a research project under a hosting agreement with a research organisation, cannot be sufficiently achieved by the Member States, especially as regards ensuring mobility between Member States, and can therefore be better achieved by the Community. The Community is therefore entitled to take measures in accordance with the subsidiarity principle laid down in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that article, this Directive does not go beyond what is necessary to achieve those objectives.

(24)

Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation.

(25)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(26)

In accordance with paragraph 34 of the Interinstitutional agreement on better law-making, Member States will be encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make them public.

(27)

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, Ireland has given notice by letter of 1 July 2004 of its wish to participate in the adoption and application of this Directive.

(28)

In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom is not participating in the adoption of this Directive and is not bound by it or subject to its application.

(29)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this Directive, and is not bound by it or subject to its application,

(1)

With a view to consolidating and restructuring European research policy, the Commission stated in its Communication of 18 January 2000 entitled ‘Towards a European Research Area’ that it was necessary to create a European research area as the centrepiece of future action by the Community in this field.

(2)

At its meeting in Lisbon of 23 and 24 March 2000, the European Council, endorsing the European Research Area, set the Community the target of becoming the most competitive and dynamic knowledge-based economy in the world by the year 2010.

(3)

The globalisation of the economy calls for greater mobility for researchers, which was recognised by the Community's sixth framework programme for research (4) when it opened up, to an even greater extent, its programmes to researchers from third countries.

(4)

The number of researchers which the Community will need if it is to meet the target set by the European Council at its meeting in Barcelona of 15 and 16 March 2002 of investing 3 % of GDP in research is put at 700 000. This target should be met through a series of interlocking measures, such as making scientific careers more attractive to young people, promoting women's involvement in scientific research, increasing the opportunities for training and mobility in research, improving career prospects for researchers within the Community and opening up the Community to third-country nationals who might be allowed to enter and travel within the common area for the purposes of research.

(5)

In order to be competitive and attractive at international level, Member States should take the necessary steps to make it easier for researchers to enter and move within the Community for short periods.

(6)

For short stays, Member States should undertake to consider researchers from third countries, subject to a visa requirement under Regulation (EC) No 539/2001 (5), as persons acting in good faith and extend to them the advantages provided for in the acquis communautaire for the purpose of the procedures for issuing short-stay visas.

(7)

Measures should be taken to encourage the exchange of information and best practices in order to improve the procedures for issuing short-stay visas for researchers.

(8)

This Recommendation respects the fundamental rights and observes the principles laid down in particular by the Charter of Fundamental Rights of the European Union.

(9)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Recommendation and is not affected by it. Given that this Recommendation builds upon the Schengen acquis, under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide within a period of six months after the European Parliament and the Council have adopted this Recommendation whether it will implement it in its national law.

(10)

This Recommendation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (6); the United Kingdom is therefore not taking part in its adoption and is not affected by it.

(11)

This Recommendation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis (7); Ireland is therefore not taking part in its adoption and is not affected by it.

(12)

As regards Iceland and Norway, this Recommendation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (8), which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement (9).

(13)

As regards Switzerland, this Recommendation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point B of Decision 1999/437/EC read in conjunction with Article 4(1) of Council Decision 2004/849/EC (10) and of Council Decision 2004/860/EC (11), on the signing, on behalf of the European Union, and on the signing, on behalf of the European Community, and on the provisional application of certain provisions, of that Agreement.

(14)

This Recommendation constitutes an act building upon the Schengen acquis or otherwise related to it, within the meaning of Article 3(2) of the 2003 Act of Accession.

(15)

This Recommendation is also intended to provide a flexible formula for researchers who wish to maintain a professional link with an organisation of their country of origin (e.g. by spending periods of up to three months every semester in a European host research organisation located in the common area while continuing to work the rest of the time in the research organisation of origin),

(1)

With a view to consolidating and giving structure to European research policy, the Commission considered it necessary in January 2000 to establish the European Research Area as the lynchpin of the Community’s future action in this field.

(2)

Endorsing the European Research Area, the Lisbon European Council in March 2000 set the Community the objective of becoming the most competitive and dynamic knowledge-based economy in the world by the year 2010.

(3)

The globalisation of the economy calls for greater mobility of researchers, something which was recognised by the sixth framework programme of the European Community (4) when it opened up its programmes further to researchers from outside the European Union.

(4)

The number of researchers which the Community will need by 2010 if it is to meet the target set by the Barcelona European Council in March 2002 of investing 3 % of GDP in research is estimated at 700 000. This target is to be met through a series of interlocking measures, such as making scientific careers more attractive to young people, promoting women’s involvement in scientific research, extending the opportunities for training and mobility in research, improving career prospects for researchers in the Community and opening up the Community to third-country nationals who might be admitted for the purposes of research.

(5)

Pending the implementation of Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (5), this recommendation calls on Member States to facilitate the admission of such individuals already.

(6)

Because of the shortage of researchers in the Community and the need to facilitate their admission, steps should be taken to promote access to research posts in the labour market, for example by waiving work permit requirements.

(7)

In order to be competitive and attractive at international level, Member States should simplify and speed up their procedures for issuing and renewing visas and residence permits for researchers.

(8)

Implementation of this recommendation should not encourage a brain drain from emerging economies or developing countries. Back-up measures aimed at encouraging the integration of researchers in their countries of origin and promoting mobility among researchers should therefore be taken in these cases, as part of the partnership with the countries of origin with a view to establishing a comprehensive migration policy. In this context, Member States should endeavour to establish a balance between the reception of researchers from third countries and the appraisal of the needs of their country of origin in the field of research. In doing so, they should take into account also the personal situation of the researchers, in particular where the person concerned has a contractual relationship with a research organisation in his/her country of origin.

(9)

Because matters relating to family reunification are a crucial factor in researchers’ decisions to choose the Community as the location for their research, Member States should facilitate the reunification of the researchers’ family members, for example with respect to access to the labour market and the possibility for family members to apply when they are legally present on the territory of the Member State concerned.

(10)

In determining the duration of the residence permit to be issued to the family members, Member States should take into account whether the person concerned should complete his/her schooling needs or not.

(11)

The exchange of information and best practice should be encouraged in order to improve admission procedures for researchers. This recommendation also identifies contacts between the competent authorities and networking as factors contributing to improvement. In particular, the ‘Pan-European Researchers Mobility Web Portal’ and the equivalent national tools constitute an important source of information for researchers.

(12)

According to the 2003 Act of Accession, the then Member States are, during any period when national measures or those resulting from bilateral agreements are applied, to give preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to the labour market.

(13)

Czech, Cypriot, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovakian and Slovenian migrant workers and their families legally resident and working in another Member State or migrant workers from other Member States and their families legally resident and working in the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia shall not be treated in a more restrictive way than those from third countries resident and working in that Member State or the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia respectively.

(14)

This recommendation respects fundamental rights and complies with the principles laid down, in particular, in the Charter of Fundamental Rights of the European Union.

(15)

In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol, Ireland is not taking part in the adoption of this recommendation and the provisions thereof do not apply to it.

(16)

In accordance with Articles 1 and 2 of the Protocol in the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of the said Protocol, the United Kingdom is not taking part in the adoption of this recommendation and the provisions thereof do not apply to it.

(17)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not take part in the adoption of this recommendation and the provisions thereof do not apply to it,