EUROPEAN COMMISSION
Brussels, 5.12.2022
COM(2022) 714 final
2022/0415(NLE)
Proposal for a
COUNCIL DECISION
on the position to be taken on behalf of the European Union in the Ministerial Council of the Energy Community and in the Permanent High Level Group of the Energy Community (14-15 December 2022, Vienna, Austria)
EXPLANATORY MEMORANDUM
1.Subject matter of the proposal
This proposal concerns the decision establishing the position to be adopted on the Union's behalf in the Ministerial Council of the Energy Community (‘Ministerial Council’) and in the Permanent High Level Group ('PHLG') of the Energy Community in connection with a number of acts, which these two bodies envisage adopting on 14 and 15 December 2022.
2.Context of the proposal
2.1.The Energy Community Treaty
The Energy Community Treaty (‘ECT’) aims to create a stable regulatory and market framework and a single regulatory space for trade in network energy by implementing agreed parts of the EU acquis on energy in the non-EU Parties. The agreement entered into force on 1 July 2006. The European Union is a party to the ECT. 1 The ECT refers to the nine non-EU Parties as ‘Contracting Parties’.
2.2.The Ministerial Council and the PHLG of the Energy Community
The Ministerial Council ensures that the objectives set out in the ECT are attained. It provides general policy guidelines, takes Measures and adopts Procedural Acts. Each Party has one vote and the Ministerial Council acts by different voting rules depending on the subject matter. The EU is one of the ten Parties and has one vote, also depending on the subject matter concerned.
Unanimity vote applies with respect to the envisaged acts listed below under Section 2.3. point 9 (Art. 92(1) ECT).
Simple majority vote applies with respect to the envisaged acts listed below under Section 2.3 points 2, 3, 4 (Art. 79, 81 ECT), point 8 (Art. 91 (1) (a) ECT).
Two-third majority of the votes cast, including a positive vote of the European Union, applies to the envisaged acts under Section 2.3 points 1, 5, 6, 7 (Art. 83 86, 87 ECT).
The PHLG is an important subsidiary body of the Ministerial Council. It may, amongst other tasks, take Measures, if so empowered by the Ministerial Council. The EU is represented in the PHLG and has one vote.
Article 47 ECT provides: ‘The Ministerial Council shall ensure that the objectives set out in this Treaty are attained. It shall: […] (b) take Measures […]’.
Simple majority vote applies with respect to the envisaged act to be voted by the Permanent High Level Group.
2.3.The envisaged acts of the Ministerial Council and the PHLG
The present proposal for a decision under Article 218(9) TFEU concerns the position to be adopted on the Union's behalf with respect to the following envisaged acts of the Ministerial Council:
(1)Decision 2022/…/MC-EnC on the incorporation of Regulation (EU) 2019/942, Regulation (EU) 2019/943, Regulation (EU) 2015/1222, Regulation (EU) 2016/1719, Regulation (EU) 2017/2195, Regulation (EU) 2017/2196, Regulation (EU) 2017/1485 in the Energy Community acquis, amending Annex I of the Energy Community Treaty, and on the amendments of the MC Decisions No 2021/13/MC-EnC and No 2011/02/MC-EnC and for the adoption by the MC of a Procedural Act on Regional Energy Market integration;
(2)Decision 2022/…/MC-EnC on amending Ministerial Council Decision No 2021/14/MC-EnC amending Annex I to the Treaty Establishing the Energy Community and incorporating Directive (EU) 2018/2001, Directive (EU) 2018/2002, Regulation (EU) 2018/1999, Delegated Regulation (EU) 2020/1044, and Implementing Regulation (EU) 2020/1208 in the Energy Community acquis communautaire;
(3)Decision 2022/…/MC-EnC adapting and incorporating certain Delegated Regulations on energy-related products, introducing rescaled labels in the Energy Community acquis communautaire and repealing Delegated Regulations (EU) 1059/2010, (EU) 1060/2010, (EU) 1061/2010, (EU) 1062/2010, (EU) 874/2012, and Directive 96/60/EC;
(4)Decision 2022/xx/MC-EnC amending Annex I to the Treaty establishing the Energy Community and incorporating Implementing Regulation (EU) 2018/2066, Implementing Regulation (EU) 2018/2067 and Directive 2003/87/EC in the Energy Community acquis communautaire;
(5)Procedural Act 2022/…/MC-EnC amending budget implementation, staff regulations and recruitment rules;
(6)Procedural Act 2022/…/MC-EnC amending Procedural Act of the Ministerial Council 2008/01/MC-EnC of 27 June 2008 on Rules of Procedure for Dispute Settlement under the Treaty, as amended;
(7)Procedural Act 2022/…/MC-EnC adopting the Secretariat’s Organigramme;
(8)Decisions under Article 91(1) ECT establishing the existence of a breach of the ECT in the following cases:
(a)Decision 2022/…/MC-EnC on the failure of Republic of North Macedonia to comply with the Energy Community Treaty in Case ECS-4/22;
(b)Decision 2022/…/MC-EnC on the failure of Kosovo* to comply with the Energy Community Treaty in Case ECS-5/22;
(c)Decision 2022/…/MC-EnC on the failure of Bosnia and Herzegovina to comply with the Energy Community Treaty in Case ECS-5/17.
(9)Decisions under Article 92(1) ECT:
(a)Decision 2022/…/MC-EnC on the adoption of measures in response to serious and persistent breaches by Bosnia and Herzegovina under Article 92(1) of the Energy Community Treaty in Cases ECS-8/11S, ECS-2/13S and ECS-6/16S;
(b)Decision 2021/12/C-EnC on establishing a serious and persistent breach against Serbia under Art. 92(1) of the Treaty in Case ECS-10/17S and in Case ECS-13/17S.
The present proposal for a decision under Article 218(9) TFEU concerns the position to be adopted on the Union's behalf with respect to the following envisaged act of the PHLG:
Decision 2022/…/PHLG-EnC adapting and implementing Commission Regulation (EU) 2022/132 of 28 January 2022 amending Regulation (EC) No 1099/2008 of the European Parliament and of the Council, as regards the implementation of updates for the annual, monthly and short-term monthly energy statistics.
The purpose of the envisaged acts of the Ministerial Council and the PHLG (hereafter collectively referred to as ‘the envisaged acts’) is to facilitate the achievement of the objectives of the ECT and the functioning of the Energy Community Secretariat (ECS) in Vienna which, among other things, provides administrative support to the Ministerial Council.
2.4.Other items on the agenda
For the sake of completeness, it is noted that, in addition to the envisaged acts, there will be a number of other items for voting on the agenda of the meetings of the Ministerial Council and the PHLG:
·Annual Report on the Activities of the Energy Community;
·Decision 2022/…/MC-EnC on Financial Discharge of the Director of the Secretariat of the Energy Community.
On behalf of the European Union, the Commission intends to support the adoption of those items, subject to prior endorsement by the Council.
3.Position to be taken on the Union's behalf
3.1.Envisaged acts of the Ministerial Council
3.1.1.Decision 2022/…/MC-EnC on the incorporation of Regulation (EU) 2019/942, Regulation (EU) 2019/943, Regulation (EU) 2015/1222, Regulation (EU) 2016/1719, Regulation (EU) 2017/2195, Regulation (EU) 2017/2196, Regulation (EU) 2017/1485 in the Energy Community acquis, amending Annex I of the Energy Community Treaty, and on the amendments of the MC Decisions No 2021/13/MC-EnC and No 2011/02/MC-EnC and Procedural Act 2022/…/MC-EnC on Regional Energy Market integration
Following the Ministerial Council in November 2021 and pending ECT amendments, the Commission has developed in close cooperation with the Contracting Parties, the ECS and the EU Member States alternative solutions within the framework of the current ECT in order to achieve progress on the integration of electricity markets, including through measures in the electricity field under relevant Title of the ECT.
On this basis, the Commission has tabled to the Energy Community a proposal for a Decision of the Ministerial Council to incorporate the following EU legal acts into Energy Community aquis:
–Regulation (EU) 2019/943 on the internal market for electricity 2 ,
–Commission Regulation (EU) 2015/1222 on capacity allocation and congestion management 3 ,
–Commission Regulation (EU) 2016/1719 on forward capacity allocation 4 ,
–Commission Regulation (EU) 2017/2195 on electricity balancing 5 ,
–Commission Regulation (EU) 2017/2196 on electricity emergency and restoration 6 ,
–Commission Regulation (EU) 2017/1485 on electricity transmission system operation 7
–Regulation (EU) 2019/942 on establishing a European Union Agency for the Cooperation of Energy Regulators 8 ,
This proposal also includes an amendment of the following Ministerial Council Decisions, allowing an integrated electricity market between the Contracting Parties and the neighboring EU Member States: Decisions No 2021/13/MC-EnC 9 and No 2011/02/MC-EnC 10 on the incorporation of Directive (EU) 2019/944 on internal market for electricity 11 and Regulation (EU) 2019/941 on risk-preparedness 12 in the Energy Community acquis accordingly.
In this context, the Commission has also tabled to the Energy Community a proposal for a Procedural Act of the Ministerial Council on Regional Energy Market integration
This Procedural Act would, once adopted, be binding on the Contracting Parties and the EU alike and allow for mandating EU agencies (ACER) and bodies (ENTSO-E) with task on cross-border issues between the Contracting Parties and the EU Member States.
On behalf of the European Union, the Commission intends to support the adoption by the Ministerial Council of the Energy Community of the Decision and the Procedural Act.
3.1.2.Decision 2022/…/MC-EnC on amending Ministerial Council Decision No 2021/14/MC-EnC amending Annex I to the Treaty Establishing the Energy Community and incorporating Directive (EU) 2018/2001, Directive (EU) 2018/2002, Regulation (EU) 2018/1999, Delegated Regulation (EU) 2020/1044, and Implementing Regulation (EU) 2020/1208 in the Energy Community acquis communautaire;
In November 2021, the Ministerial Council of the Energy Community established the Energy Community legal framework for the 2030 energy efficiency, renewables and greenhouse gas emissions targets for the nine non-EU Contracting by adopting the key legislative acts stemming from the EU’s Clean Energy for all Europeans package (2018 Energy Efficiency Directive, 2018 Renewables Directive and the 2018 Governance Regulation). In these acts, the Ministerial Council did not specify the figures for the 2030 targets.
The Commission has tabled a proposal to the Energy Community setting the figures for each of the nine non-EU Contracting Parties. These figures were negotiated with the Contracting Parties in numerous bilateral and multilateral meetings before, during and after the Informal Ministerial Council meeting in July. They take into account the results of a modelling study completed by the Commission earlier this year as well as the Contracting Parties’ own national targets and plans. They also respect the 2018 Policy Guidelines of the Ministerial Council which provide that the 2030 targets should ‘represent an equal ambition for the Contracting Parties and take into account relevant socio-economic differences, technological developments and the Paris Agreement on Climate Change.’
On behalf of the European Union, the Commission intends to support the adoption of the Decision.
3.1.3.Decision 2022/…/MC-EnC adapting and incorporating certain Delegated Regulations on energy-related products, introducing rescaled labels in the Energy Community acquis communautaire and repealing Delegated Regulations (EU) 1059/2010, (EU) 1060/2010, (EU) 1061/2010, (EU) 1062/2010, (EU) 874/2012, and Directive 96/60/EC
The Commission has tabled to the Energy Community a proposal to incorporate the following EU legal acts into the Energy Community aquis:
:
-Delegated Regulation (EU) 2019/2013 on energy labelling of electronic displays 13 ;
-Delegated Regulation (EU) 2019/2014 on energy labelling of households washing machines and households washer-dryers 14 ;
-Delegated Regulation (EU) 2019/2015 on energy labelling of light sources 15 ;
-Delegated Regulation (EU) 2019/2016 on energy labelling of refrigerating appliances 16 ;
-Delegated Regulation (EU) 2019/2017 on energy labelling of household dishwashers 17 ;
-Regulation (EU) 2021/340 amending further Delegated Regulations (EU) 2019/2013, (EU) 2019/2014, (EU) 2019/2015, (EU) 2019/2016, (EU) 2019/2017 and (EU) 2019/2018 with regard to energy labelling requirements for electronic displays, household washing machines and household washer-dryers, light sources, refrigerating appliances, household dishwashers, and refrigerating appliances with a direct sales function 18 ;
introducing rescaled labels in the Energy Community acquis communautaire and repealing Delegated Regulations (EU) 1059/2010, (EU) 1060/2010, (EU) 1061/2010, (EU) 1062/2010, (EU) 874/2012, and Directive 96/60/EC.
The new rules will ensure a harmonized and stable regulatory framework for the manufacturers, and, more importantly, increase transparency for all consumers thanks to same energy labelling scaling between the EU Member States and the Contracting Parties.
On behalf of the European Union, the Commission intends to support the adoption of the Decision.
3.1.4.Decision 2022/xx/MC-EnC amending Annex I to the Treaty establishing the Energy Community and incorporating Implementing Regulation (EU) 2018/2066, Implementing Regulation (EU) 2018/2067 and Directive 2003/87/EC in the Energy Community acquis communautaire
The Ministerial Council of November 2021 adopted the Decarbonisation Roadmap for the Contracting Parties, a political document outlining the sequence of adoption, transposition and implementation of decarbonisation-focused legislation in order to put the Contracting Parties on a path towards achieving 2030 and mid-century decarbonisation targets.
The immediate focus of the Decarbonisation Roadmap was on the Governance Regulation, the Renewables Directive, and the Energy Efficiency Directive. These three pieces of legislation were all adopted at the Energy Community Ministerial in November 2021, and the Commission has tabled a proposal to the Energy Community for setting the figures for each Contracting Party (see point 3.1.3 above).
The next step is the incorporation into the Energy Community acquis of more technical acts, which represent the necessary basis for the implementation of any carbon pricing policy that would also be suitable for an emissions trading system (ETS).
Therefore, in accordance with the Decarbonisation Roadmap, the Commission has tabled a proposal for the Ministerial Council to adopt measures related to monitoring, reporting and verification of emissions (MRV), as well as selected provisions of the EU ETS, which are necessary in order for the MRV legislation to make any sense for the Energy Contracting Parties. These do not involve carbon pricing.
On behalf of the European Union, the Commission intends to support the adoption of the Decision.
3.1.5.Procedural Act 2022/…/MC-EnC amending budget implementation, staff regulations and recruitment rules;
The ECS has tabled, in close cooperation with the Commission, to the Energy Community a proposal for a Procedural Act of the Ministerial Council to amend:
–Procedural Act No 2006/03/MC-EnC on the adoption of Energy Community Procedures for the Establishment and lmplementation of Budget, Auditing and lnspection;
–Procedural Act No 2009/04/MC-EnC, the Energy Community Staff Regulations of 18 December 2007 as amended by Procedural Act No 2009/04/MC-EnC; and
–Procedural Act No 2006/02/MC-EnC on the adoption of Rules for Recruitment, Working Conditions and Geographical Equilibrium of the Secretariat's Staff of the Energy Community, as amended by Procedural Act No 2016/01/MC-EnC.
These amendments aim to improve the working methods of the ECS in respect of transparency, efficacity and accountability. They will notably ensure more clarity to the Energy Community’s budgetary rules in a number of aspects such as the treatment of external funding for the Energy Community through grants and contracts, the annual work programme, the establishment plan and the organigram of the ECS, the transfer of appropriations the accounting function and internal control of budget implementation within the ECS as well as the tasks of the Budget Committee and external auditors. The Energy Community’s Staff and Recruitment Regulations and Rules will be amended with respect to the mandate of the Director specifying a maximum of two terms with a period of five years each and defining the position of a Deputy Director.
On behalf of the European Union, the Commission intends to support the adoption of the Decision.
3.1.6.Procedural Act 2022/…/MC-EnC amending Procedural Act of the Ministerial Council 2008/01/MC-EnC of 27 June 2008 on Rules of Procedure for Dispute Settlement under the Treaty, as amended;
The ECS has tabled, in close cooperation with the Commission, a proposal to the Energy Community to amend the Rules on Dispute Settlement as regards the Advisory Committee which consists of five high-level members and renders opinions on reasoned requests submitted by the ECS under Article 90 of the ECT. The proposed amendments will introduce a provision on their reimbursement and remuneration from the Energy Community budget.
Another amendment concerns the deadlines for submission of documents for adoption by the Ministerial Council. These amendments will allow more time for the EU and Contracting Parties to carry out their internal approval procedures ahead of institutional meetings.
On behalf of the European Union, the Commission intends to support the adoption of the Decision.
3.1.7.Procedural Act 2022/…/MC-EnC adopting the Secretariat’s Organigramme
The ECS has tabled a proposal to the Ministerial Council to adopt a new ECS Organigramme, since the currently applicable Organigramme dates back to 2007 and should be updated.
The proposed new Organigramme aims to be correspond to the needs of the Contracting Parties and the EU.
On behalf of the European Union, the Commission therefore intends to support the adoption of the Procedural Act.
3.1.8.Decisions under Article 91(1) ECT establishing the existence of a breach of the ECT in the following cases:
The dispute settlement proceedings are set out in Title III, Chapter 1, and Title IV, Chapter 1 of the Rules of Procedure on dispute settlement under the Treaty. 19
(a)Decision 2022/…/MC-EnC on the failure of Republic of North Macedonia to comply with the ECT in Case ECS-4/22;
Article 1 of the Ministerial Council Decision 2018/10/MC-EnC requires the Contracting Parties to transpose the REMIT Regulaton by 29 November 2019 and to implement it by 29 May 2020. Article 1(3) requires the Contracting Parties to notify the ECS of the measures transposing the Decision, and any aubsequent changes made to those measures, within two weeks following the adoption of suc measures. Article 6 of the ECT imposes upon the Contracting Parties the general obligation to take all appropriate measures to ensure fulfilment of the obligations arising out of the ECT. Article 89 requires them to implement Decisions addressed to them in their domestic legal system within the period specified in the Decision.
The time limit for North Macedonia to take measures to comply with the above mentioned obligations expired on 29 November 2019 but no such measures have been adopted to date, thus, on 14 July 2022 the ECS submitted a Reasoned Request to the Ministerial Council against the Republic of North Macedonia for failure to transpose the Regulation (EU) No 1227/2011 (REMIT Regulation) by 29 November 2019 and notify those measures to the ECS.
The Ministerial Council is requested to adopt a Decision declaring that by failing to adopt and apply the laws, regulations and administrative provisions necessary to comply with Regulation (EU) No 1227/2011 on wholesale energy market integrity and transparency, as adapted and adopted by Ministerial Decision 2018/10/MC-EnC, by 29 November 2019, and by failing to forthwith notify those measures to the ECS, the Republic of North Macedonia failed to comply with Articles 6 and 89 of the Energy Community Treaty as well as with Article 1(1) and (3) of Ministerial Council Decision 2018/10/MC-EnC.
The Advisory Committee of the Energy Community has not yet delivered its opinion.
In the light of the facts and arguments set out in the Reasoned Request, the position to be taken on behalf of the Union in the Ministerial Council should be to approve the decision establishing the existence of a breach in Case ECS-4/22, provided that the Advisory Committee of the Energy Community timely delivers an opinion supporting the findings of the ECS, i.e. prior to the meeting of the Ministerial Council.
(b)Decision 2022/…/MC-EnC on the failure of Kosovo* to comply with the ECT in Case ECS-5/22;
Directive 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment was incorporated in the Energy Community by Ministerial Council Decision 2016/12/MC-EnC. Article 2 of this Decision envisages that Contracting Parties shall transpose the Directive 2014/52/EU by 1 January 2019 with the exception of the provisions referring to Directives not covered by Article 16 of the ECT and to communicate to the ECS the text of the main provisions of national law they adopt in the field covered by this Decision of the Ministerial Council.
Since the time limit for Kosovo* to take measures to comply with the above mentioned obligations expired on 1 January 2019 but no measures have been adopted to date on 14 July 2022, the ECS submitted a Reasoned Request to the Ministerial Council against Kosovo* for failing to transpose the Directive 2014/52/EU by 1 January 2019 and by this failing to comply with Articles 6 and 89 of the ECT as well as Article 2 of the Minsterial Council Decision 2016/12/MC-EnC.
The Ministerial Council is requested to adopt a Decision declaring that by failing to adopt and apply the laws, regulations and administrative provisions necessary to comply with Directive 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, as adapted and adopted by Ministerial Decision 2016/12/MC-EnC, by 1 January 2019, and by failing to forthwith notify those measures to the ECS, Kosovo* failed to comply with Articles 6 and 89 of the Energy Community Treaty as well as with Article 2 of Ministerial Council Decision Decision 2016/12/MC-EnC
The Advisory Committee of the Energy Community has not yet delivered its opinion.
In the light of the facts and arguments set out in the Reasoned Request, the position to be taken on behalf of the Union in the Ministerial Council should be to approve the decision establishing the existence of a breach in Case ECS-5/22, provided that the Advisory Committee of the Energy Community timely delivers an opinion supporting the findings of the ECS, i.e. prior to the meeting of the Ministerial Council.
(c)Decision 2021/02/MC-EnC on the failure of Bosnia and Herzegovina to comply with the ECT in Case ECS-5/17;
On 16 January 2018, the ECS sent an Opening Letter to Bosnia and Herzegovina in accordance with Article 12 of the Rules of Procedure for Dispute Settlement. In this Opening Letter, the ECS took the preliminary view that Bosnia and Herzegovina failed to fulfil its obligations under the ECT:
–by failing to transpose the requirements of Article 26 paragraph 2 litera (d) of Electricity Directive 2009/72/EC requiring the establishment of a compliance officer and program in the Federation of Bosnia and Herzegovina in line with the deadline of 1 January 2015 foreseen by the acquis;
–by failing to transpose Article 26 of Directive 2009/72/EC on legal and functional unbundling of electricity distribution system operators in Republika Srpska in line with the same deadline; and
–by failing to adopt, within the prescribed time limit, the national measures to ensure legal and functional unbundling of Elektropriveda BiH d.d. Sarajevo, Elektropriveda HZHB d.d Mostar and Elektropriveda BiH d.d. Sarajevo in practice.
As a second step, on 11 November 2020, the ECS sent a Reasoned Opinion to Bosnia and Herzegovina under Article 90 of the ECT for failing to transpose and implement the requirements for legal and functional unbundling in accordance with the requirements of Article 26 of the Directive 2009/72/EC. Bosnia and Herzegovina was requested to rectify the issues of non-compliance with the ECT identified in the Reasoned Opinion within a time-limit of two months.
Since Bosnia and Herzegovina failed to rectify the breaches identified by the ECS related to unbundling of the distribution system operators in accordance with the requirements of Article 26 of the Directive 2009/72/EC, on 27 May 2021, the ECS submitted a Reasoned Request to the Ministerial Council in Case ECS-5/17.
This draft Decision was already included in the Ministerial Council agenda in 2021 but it was not adopted due to the missing opinion by the Advisory Committee of the Energy Community. The Advisory Committee was asked to issue an opinion on 7 June 2021 which it has not done yet. Therefore, this draft Decision is again included in the 2022 Ministerial Council agenda.
In the light of the facts and arguments set out in the Reasoned Request, the position to be taken on behalf of the Union in the Ministerial Council should be to approve the decision establishing the existence of a breach in Case ECS-5/17, provided that the Advisory Committee of the Energy Community timely delivers an opinion supporting the findings of the ECS, i.e. prior to the meeting of the Ministerial Council.
3.1.10 Decisions under Article 92(1) ECT:
(a)Decision 2022/…/MC-EnC on the adoption of measures in response to serious and persistent breaches by Bosnia and Herzegovina under Article 92(1) of the ECT in Cases ECS-8/11S, ECS-2/13S and ECS-6/16S;
The ECS is requesting the Ministerial Council to extend the measures imposed on Bosnia and Herzegovina by Article 2 of Decision 2015/10/MC-EnC in Cases ECS-8/11S, ECS-2/13S and ECS-6/16S for two years after the adoption of the Decision by the Ministerial Council in December.
This follows the Decision adopted by the Ministerial Council in 2020 (2020/02/MC-EnC of 29 December 2020) that extended the measures until the meeting of the Ministerial Council in end 2022.
The measures are: suspension of the right of Bosnia and Herzegovina to vote for Measures and Procedural Acts adopted under Chapter VI of Title V (Budgetary issues) and suspension of the application of its Reimbursement Rules to the representatives of Bosnia and Herzegovina for all meetings organized by the Energy Community for two years. Based on a report by the ECS, the Ministerial Council will review the effectiveness and the need for maintaining these measures further at its meeting in the second half of 2023.
In the light of the facts and arguments set out in the Request, the position to be taken on behalf of the Union in the Ministerial Council should be to approve the proposed extension of the measures adopted in response to serious and persistent breaches in Cases ECS-8/11S, ECS-2/13S and ECS-6/16S.
(b)Decision 2021/12/C-EnC on establishing a serious and persistent breach against Serbia under Art. 92(1) of the ECT in Case ECS-10/17S and in Case ECS-13/17S.
This Decision is re-submitted because it was not adopted last year due to the lack of unanimity at the Ministerial Council.
Case ECS-10/17S concerns a breach of unbundling and certification rules of the Third Energy Package. Unbundling of TSOs constitutes one of the key concepts enshrined in the Third Energy Package. It requires the effective separation of activities of energy transmission from production and supply interests. In case of certification of a TSO which is controlled by a person or persons from a third country or third countries, Article 11 of Directive 2009/73/EC 7 applies. Article 10 of Directive 2009/73/EC provides that before an undertaking is approved and designated as TSO, it needs to be certified. In order to be certified, the undertaking needs to comply with the unbundling requirements of the Third Energy Package, i.e. with Article 9 of Directive 2009/73/EC.
The Directive 2009/73/EC as well as the Regulation 715/20098 were incorporated in the Energy Community acquis by Decision 2011/02/MC-EnC of the Ministerial Council of 6 October 2011.
The ECS found that by certifying Yugorosgaz-Transport under the ISO-model, the Republic of Serbia has failed to comply with its obligations under Articles 10, 14(2)(a), 14(2)(b), 14(2)(d), 15 and 11 of Directive 2009/73/EC as well as Article 24 of Regulation 715/2009, as incorporated in the Energy Community.
In 2019, the Ministerial Council declared in its Decision 2019/02/MC-EnC that the Republic of Serbia failed to fulfil its obligations arising from Directive 2009/73/EC and Regulation 715/2009.
Case ECS-13/17S concerns the unjustified exclusion by Srbijagas of the Horgoš entry point from unrestricted and non-discriminatory third party access and from open capacity allocation procedures as required under Directive 2009/73/EC and Regulation 715/2009.
On 25 January 2021, the Advisory Committee of the Energy Community confirmed the ECS’ position in the Reasoned Request that no valid ground for justification of such exclusion exists and therefore, Serbia violates Energy Community law.
On 30 April 2021, the Ministerial Council upheld the Reasoned Request submitted by the ECS and followed the opinion of the Advisory Committee by taking a decision by written procedure regarding the failure of Serbia to comply with its obligations under the ECT.
The Ministerial Council declared the existence of a breach by Serbia of Article 32 of Directive 2009/73/EC and Article 16 of Regulation 715/2009 and therefore of Articles 6, 10 and 11 of the ECT.
The Decision stipulates that Serbia shall take all appropriate measures to rectify the breach identified and ensure compliance with Energy Community law immediately.
On 24 September 2021, the ECS submitted a Request to the Ministerial Council in both Case ECS-10/17S and in Case ECS-13/17S pursuant to Article 92(1) of the ECT seeking a Decision from the Ministerial Council that the failure by the Republic of Serbia to implement Ministerial Council Decisions 2019/02/MC-EnC and 2021/1/MC-EnC and thus to rectify the breaches identified therein constitutes a serious and persistent breach within the meaning of Article 92(1) of the ECT.
The Ministerial Council is requested to declare that:
1. The failure by the Republic of Serbia to implement Ministerial Council Decisions - 2019/02/MC-EnC and 2021/01/MC-EnC and thus to rectify the breaches identified therein constitutes a serious and persistent breach within the meaning of Article 92(1) of the Treaty.
2. The Republic of Serbia shall take all appropriate measures to rectify the breaches identified in Ministerial Council Decisions 2019/02/MC-EnC and 2021/01/MC-EnC in cooperation with the Secretariat and shall report to the Ministerial Council about the implementation measures taken in 2023.
3. The Secretariat is invited to monitor compliance of the measures taken by the Republic of Serbia with the acquis communautaire. If the breaches have not been rectified by 1 July 2023, the Secretariat is invited to initiate a procedure for imposing measures under Article 92 of the Treaty.
In the light of the facts and arguments set out in the Request of the ECS, the position to be adopted on behalf of the Union in the Ministerial Council should be to approve the decision determining the existence of a serious and persistent breaches in Case ECS-10/17S and in Case ECS-13/17S.
3.2.Envisaged act of the PHLG
Decision 2022/…/PHLG-EnC adapting and implementing Commission Regulation (EU) 2022/132 of 28 January 2022 amending Regulation (EC) No 1099/2008 of the European Parliament and of the Council, as regards the implementation of updates for the annual, monthly and short-term monthly energy statistics
In the area of energy statistics, the Commission adopted Regulation (EU) 2022/132 amending Regulation (EC) No 1099/2008 of the European Parliament and of the Council on energy statistics, as regards the implementation of updates for the annual, monthly and short-term monthly energy statistics 20 . Regulation (EC) No 1099/2008, which is already part of the Energy Community’s acquis communautaire, should be amended accordingly.
Therefore, the Commission has tabled a proposal for a decision of the PHLG to incorporate the Regulation (EU) 2022/132. The changes introduced by Regulation (EU) 2022/132 contribute to support the Energy Union and Green Deal by adopting new requirements to cover data gaps, such as decentralised electricity production by sector, breakdown of final energy consumption in services sector and for transport, non-energy use of renewables, hydrogen, energy storage (batteries), new data on electricity generation and capacities, detailed breakdown of solar PV data, details on heat pumps, energy consumption of data centres, improved timeliness of annual data and supply data to estimate energy balances and indicators six months after the year-end.
On behalf of the European Union, the Commission intends to support the adoption of the Decision.
4.Legal basis
4.1.Procedural legal basis
4.1.1.Principles
Article 218(9) TFEU provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 21 .
4.1.2.Application to the present case
The Ministerial Council and the PHLG are bodies set up by an agreement, namely the Energy Community Treaty.
The acts which the Ministerial Council and the PHLG are called upon to adopt constitute acts having legal effects. The envisaged act will be binding under international law in accordance with Article 76 of the ECT, according to which a decision is legally binding upon those to whom it is addressed.
The envisaged acts do not supplement or amend the institutional framework of the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2.Substantive legal basis
4.2.1.Principles
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is adopted on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
4.2.2.Application to the present case
The main objective and content of the envisaged acts relate to energy.
Therefore, the substantive legal basis of the proposed decision is Article 194 TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 194, in conjunction with Article 218(9) TFEU.
2022/0415 (NLE)
Proposal for a
COUNCIL DECISION
on the position to be taken on behalf of the European Union in the Ministerial Council of the Energy Community and in the Permanent High Level Group of the Energy Community (14-15 December 2022, Vienna, Austria)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 194, in conjunction with Article 218(9) thereof,
Having regard to the proposal from the European Commission,
(1)The Energy Community Treaty (‘the Treaty’) was concluded by the Union by Council Decision 2006/500/EC of 29 May 2006 22 and entered into force on 1 July 2006.
(2)Pursuant to Articles 47 and 76 of the Treaty, the Ministerial Council may adopt measures taking the form of a Decision or a Recommendation.
(3)The Ministerial Council, during its 20th session on 15 December 2022, is to adopt a number of acts listed in Annex I to this Decision.
(4)The Permanent High Level Group, during its 66th meeting on 14th December 2022, is to adopt the act listed in Annex II to this Decision.
(5)The purpose of the envisaged acts is to facilitate the achievement of the objectives of the Treaty and the functioning of the Energy Community Secretariat in Vienna which, among other things, provides administrative support to the Ministerial Council.
(6)It is appropriate to establish the position to be adopted on the Union's behalf in the Ministerial Council and the Permanent High Level Group, as the envisaged acts will have legal effects for the Union.
HAS ADOPTED THIS DECISION:
Article 1
The position to be adopted on the Union's behalf in the 20th session of the Ministerial Council to be held in Vienna, Austria, on 15 December 2022 is set out in Annex I to this Decision.
Article 2
The position to be adopted on the Union's behalf in the 66th meeting of the Permanent High Level Group to be held in Vienna, Austria, on 14 December 2022 is set out in Annex II to this Decision.
Article 3
This Decision is addressed to the Commission.
Done at Brussels,
For the Council
The President
Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity, OJL 158, 14.6.2019, p. 24-124
Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management, OJL 197, 25.7.2015, p. 24-72
Commission Regulation (EU) 2016/1719 of 26 September 2016 establishing a guideline on forward capacity allocation, OJL 259, 27.9.20156, p. 42-68
Commission Regulation (EU) 2017/2195 of 23 November 2017 establishing a guideline on electricity balancing, OJL 312, 28.11.2017, p. 6-53
Commission Regulation (EU) 2017/2196 of 24 November 2017 establishing a network code on electricity emergency and restoration, OJL 312, 28.112017
Commission Regulation (EU) 2017/1485 of 2 August 2017 establishing a guideline on electricity transmission system operation, OJL 220, 25.8.2017, p. 1-120
Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators; OJL 158, 14.6.2019, p. 22-53
Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity, OJL 158, 14.6.2019, p. 1252-199
Regulation (EU) 2019/941 of the European Parliament and of the Council of 5 June 2019 on risk-preparedness in the electricity sector, OJL 158, 14.6.2019, p. 1-21
Commission Delegated Regulation (EU) 2019/2013 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of electronic display, OJL 315, 5.12.2019, p. 1-28
Commission Delegated Regulation (EU) 2019/2014 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of household washing machines and household washer-dryers, OJL 315, 5.12.2019, p. 29-67
Commission Delegated Regulation (EU) 2019/2015 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of light source, OJL 315, 5.12.2019, p. 68-101
Commission Delegated Regulation (EU) 2019/2016 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of refrigerating appliances; OJL 315, 5.12.2019, p. 102-133
Commission Delegated Regulation (EU) 2019/2017 of 11 March 2019 supplementing Regulation (EU) 2017/1369 of the European Parliament and of the Council with regard to energy labelling of household dishwashers, OJL 315, 5.12.209, p. 134-154
Commission Delegated Regulation (EU) 2021/340 of 17 December 2020 amending Delegated Regulations (EU) 2019/2013, (EU) 2019/2014, (EU) 2019/2015, (EU) 2019/2016, (EU) 2019/2017 and (EU) 2019/2018 with regard to energy labelling requirements for electronic displays, household washing machines and household washer-dryers, light sources, refrigerating appliances, household dishwashers, and refrigerating appliances with a direct sales function, OJL 68, 26.2.201, p. 62-107
EUROPEAN COMMISSION
Brussels, 5.12.2022
COM(2022) 714 final
ANNEXES
to the
Proposal for a Council Decision
on the position to be taken on behalf of the European Union in the Ministerial Council of the Energy Community and in the Permanent High Level Group of the Energy Community (14-15 December 2022, Vienna, Austria)
ANNEX I
Ministerial Council
1.1.1.Decision 2022/…/MC-EnC on the incorporation of Regulation (EU) 2019/942, Regulation (EU) 2019/943, Regulation (EU) 2015/1222, Regulation (EU) 2016/1719, Regulation (EU) 2017/2195, Regulation (EU) 2017/2196, Regulation (EU) 2017/1485 in the Energy Community acquis, amending Annex I of the Energy Community Treaty, and on the amendments of the MC Decisions No 2021/13/MC-EnC and No 2011/02/MC-EnC and Procedural Act 2022/…/MC-EnC on Regional Energy Market integration
The position to be adopted on behalf of the European Union is to approve the draft Decision and the draft Procedural Act in accordance with Commission Decision of 17/10/2022 establishing a Commission proposal to the Ministerial Council of the Energy Community for a Decision of the Ministerial Council of the Energy Community on the incorporation of Regulation (EU) 2019/942, Regulation (EU) 2019/943, Regulation (EU) 2015/1222, Regulation (EU) 2016/1719, Regulation (EU) 2017/2195, Regulation (EU) 2017/2196, Regulation (EU) 2017/1485 in the Energy Community acquis, amending Annex I of the Energy Community Treaty, and on the amendments of the MC Decisions No 2021/13/MC-EnC and No 2011/02/MC-EnC, and for the adoption by the Ministerial Council of a Procedural Act on Regional Energy Market integration [C(2022) 7271 final].
An adaption shall be made in Annex I in respect to:
–new recital should be added:
“The provisions of this Decision are without prejudice to the obligations of the Contracting Parties to comply with the Energy Community acquis and the rules applying under Title V of the Treaty establishing the Energy Community in case of non-compliance. In case ENTSO-E is not in a position to carry out its tasks due to the non-compliance of a Contracting Party of the Energy Community with the Energy Community acquis, its duties relating to the tasks in question should be suspended.”
–new words in the last sentence of paragraph 3 of Article 2 of paragraph 52 (Annex IV) of Article 5 and in the last sentence of Article 4 of paragraph 52 (Annex IV) of Article 5 should be added:
“unless all concerned neighbouring transmission system operators of the European Union agree to a Regional Coordination Centre located in a Contracting Party.”
–Article 3 of paragraph 52 (Annex IV) of Article 5 should be replaced by:
“Upon agreement of the shareholders of the respective Regional Coordination Centres, the Regional Coordination Centres for the Eastern Europe System Operation Region (EE SOR) shall be the Regional Coordination Centre for the Central Europe SOR.”
–new paragraphs should be added between paragraphs 4 and 5 in Article 2 of paragraph 53 (Annex V) of Article 5:
“4a. Adjustments to the configuration of Regional Coordination Centres listed in this Annex shall be subject to a proposal of all transmission system operators of a system operation region defined in this Annex and the approval procedures pursuant to Article 35 of Regulation (EU) 2019/943.”
4b. In case of amendments to the determination of Capacity Calculation Regions pursuant to Article 15 of the Commission Regulation (EU) 2015/ 1222 and until such amendments are incorporated in this document, the list of bidding zones, bidding zone borders and transmission system operators in system operation regions defined pursuant to paragraph 5 shall be understood as reflecting the changes to the determination of Capacity Calculation Regions. This is without prejudice to the relevant transmission system operators’ right under Article 36(4) of Regulation 2019/943 to submit a proposal to ACER for amendments.”
4c. When developing procedures for the adoption and revision of coordinated actions and recommendations, in line with Article 42 of the Regulation 2019/943 as adapted and adopted by Ministerial Council Decision 2022/xx/MC-EnC, TSOs of Shadow SEE SOR shall consult with the relevant TSOs of adjacent SORs where the bidding zone borders listed in paragraph 1 are concerned. In doing so, the TSOs of the Shadow SEE SOR shall take the utmost account of the views expressed by the relevant TSOs of adjacent SORs.”
–third bullet of paragraph 10 of Article 6 and third bullet of paragraph 4 of Article 7 shall be replaced by:
“in paragraph 3, the term “Member State” is replaced by the term “Contracting Party and/or Member State”
–fourth bullet of paragraph 4 of Article 8 shall be replaced by:
“in paragraph 4, the term “Member State” is replaced by the term “Contracting Party and/or Member State”
–fourth bullet of paragraph 5 of Article 10 shall be replaced by:
“in paragraph 5, the term “Member State” is replaced by the term “Contracting Party and/or Member State”
–fifth bullet of paragraph 4 of Article 8 and first indent in the fifth bullet of paragraph 5 of Article 10 shall be deleted.
Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the Council.
1.1.2.Decision 2022/…/MC-EnC on amending Ministerial Council Decision No 2021/14/MC-EnC amending Annex I to the Treaty Establishing the Energy Community and incorporating Directive (EU) 2018/2001, Directive (EU) 2018/2002, Regulation (EU) 2018/1999, Delegated Regulation (EU) 2020/1044, and Implementing Regulation (EU) 2020/1208 in the Energy Community acquis communautaire;
The position to be adopted on behalf of the European Union is to approve the draft Decision in accordance with Commission Decision of 14/10/2022 establishing a Commission proposal to the Ministerial Council of the Energy Community for a Decision of that Council amending Decision D/2021/14/MC-EnC amending Annex I to the Treaty establishing the Energy Community and incorporating Directive (EU) 2018/2001, Directive (EU) 2018/2002, Regulation (EU) 2018/1999, Delegated Regulation (EU) 2020/1044, and Implementing Regulation (EU) 2020/1208 in the Energy Community acquis communautaire [C(2022) 7210 final].
Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the Council.
1.1.3.Decision 2022/…/MC-EnC adapting and incorporating certain Delegated Regulations on energy-related products, introducing rescaled labels in the Energy Community acquis communautaire and repealing Delegated Regulations (EU) 1059/2010, (EU) 1060/2010, (EU) 1061/2010, (EU) 1062/2010, (EU) 874/2012, and Directive 96/60/EC
The position to be adopted on behalf of the European Union is to approve the draft Decision in accordance with Commission Decision of 14/10/2022 establishing a Commission proposal to the Ministerial Council of the Energy Community for a Decision of the Ministerial Council of the Energy Community on adapting and incorporating certain Delegated Regulations on energy-related products, introducing rescaled labels in the Energy Community acquis communautaire and repealing Delegated Regulations (EU) 1059/2010, (EU) 1060/2010, (EU) 1061/2010, (EU) 1062/2010, (EU) 874/2012, and Directive 96/60/EC [C(2022) 7257 final].
Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the Council.
1.1.4.Decision 2022/xx/MC-EnC amending Annex I to the Treaty establishing the Energy Community and incorporating Implementing Regulation (EU) 2018/2066, Implementing Regulation (EU) 2018/2067 and Directive 2003/87/EC in the Energy Community acquis communautaire
The position to be adopted on behalf of the European Union is to approve the draft Decision in accordance with Commission Decision of 14/10/2022 establishing a Commission proposal to the Ministerial Council of the Energy Community for a Decision of the Ministerial Council of the Energy Community amending Annex I to the Treaty establishing the Energy Community and incorporating Implementing Regulation (EU) 2018/2066, Implementing Regulation (EU) 2018/2067 and Directive 2003/87/EC in the Energy Community acquis communautaire [C(2022) 7204 final].
1.1.5.Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the procedural act 2022/…/mc-enc amending budget implementation, staff regulations and recruitment rules;
The position to be adopted on behalf of the European Union is to approve the draft Procedural Act in accordance with the Addendum 2 to this Annex I.
Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the Council.
1.1.6.procedural act 2022/…/mc-enc amending Procedural act of the ministerial council 2008/01/mc-enc of 27 june 2008 on rules of procedure for dispute settlement undert the treaty, as amended;
The position to be adopted on behalf of the European Union is to approve the draft Procedural Act in accordance with the Addendum 3 to this Annex I.
Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the Council.
1.1.7.procedural act 2022/…/mc-enc adopting the Secretariat’s organigramme;
The position to be adopted on behalf of the European Union is to approve the draft Procedural Act in accordance with the Addendum 3 to this Annex I.
Minor changes may be agreed to, in the light of comments from the Energy Community Contracting Parties before or at the Ministerial Council, by the Commission, without a further decision of the Council.
1.1.8.Decisions under Article 91(1) ECT establishing the existence of a breach of the ECT in the following cases:
The position to be adopted on behalf of the European Union is to approve the draft Decisions under Article 91(1) ECT, provided that the Advisory Committee of the Energy Community timely delivers an opinion supporting the findings of the ECS, establishing the existence of a breach in:
(a)Decision 2022/xx/MC-EnC on the failure of Republic of North Macedonia to comply with the Energy Community Treaty in Case ECS-4/22;
(b)Decision 2022/xx/MC-EnC on the failure of Kosovo* to comply with the Energy Community Treaty in Case ECS-5/22;
(c)Decision 2021/02/MC-EnC on the failure of Bosnia and Herzegovina to comply with the Energy Community Treaty in Case ECS-5/17.
1.1.9.DECISIONS UNDER ARTICLE 92(1) ECT:
The position to be adopted on behalf of the European Union is to approve the draft Decisions under Article 92(1) ECT on the adoption of measures and on establishing the existence of a serious and persistent breach in:
(a)Decision 2022/…/MC-EnC on the adoption of measures in response to serious and persistent breaches by Bosnia and Herzegovina under Article 92(1) of the Energy Community Treaty in Cases ECS-8/11S, ECS-2/13S and ECS-6/16S;
(b)Decision 2021/12/C-EnC on establishing a serious and persistent breach against Serbia under Art. 92(1) of the Treaty in Case ECS-10/17S and in Case ECS-13/17S.
ADDENDUM 1 TO ANNEX I
65 PHLG/Annex 8/06-09-2022
PROCEDURAL ACT OF THE MINISTERIAL COUNCIL OF THE ENERGY COMMUNITY
Amending Procedural Act No 2006/03/MC-EnC on the adoption of Energy Community Procedures for the Establishment and lmplementation of Budget, Auditing and lnspection, Procedural Act No 2009/04/MC-EnC, the Energy Community Staff Regulations of 18 December 2007 as amended by Procedural Act No 2009/04/MC-EnC, and Procedural Act No 2006/02/MC-EnC on the adoption of Rules for Recruitment, Working Conditions and Geographical Equilibrium of the Secretariat's Staff of the Energy Community, as amended by Procedural Act No 2016/01/MC-EnC
THE MINISTERIAL COUNCIL OF THE ENERGY COMMUNITY,
Having regard to the Treaty establishing the Energy Community, and in particular Articles 69, 74, 82, 83, 86, 87 and 88 thereof,
Whereas the Energy Community’s Budgetary Rules require more clarity in a number of aspects such as the treatment of external funding for the Energy Community through grants and contracts, the annual work programme, the establishment plan and the organigram of the Secretariat, the transfer of appropriations the accounting function and internal control of budget implementation within the Secretariat, and the tasks of the Budget Committee and External Auditors,
Whereas the Energy Community’s Staff and Recruitment Regulations and Rules should be amended with respect to the mandate of the Director and the function of a Deputy Director,
Whereas the Permanent High Level Group, at its meeting on […] endorsed the present Procedural Act,
Having regard to the joint proposal by the Secretariat and the European Commission,
HAS ADOPTED THIS PROCEDURAL ACT:
Article 1
Amendments to Procedural Act No 2006/03/MC-EnC on the adoption of Energy Community Procedures for the Establishment and implementation of Budget, Auditing and Inspection
(1)The second paragraph of Article 2 shall be amended to read as follows:
“2. The Parties shall transfer 75% of their financial contributions to the Energy Community no later than 31 March of each year. The Parties shall transfer the remaining 25% of their contributions no later than 30 June of each year.”
(2)The first paragraph of Article 14 shall be amended to read as follows:
“Revenue earmarked for specific purposes in the form of grants, contracts and donations shall be used only to finance them in accordance with these Rules.”
(3)The first paragraph of Article 15 shall be amended to read as follows:
“The Director may accept revenue within the meaning of Article 14 paragraph 1 only upon and in advance agreement of the Budget Committee, based on written information about the amount and the purpose of the donation and the financial charges involved.”
(4)A second sentence shall be inserted in the second paragraph of Article 15 with the following text:
“It will also include information about the number of posts actually filled against the number of authorised number of posts in the establishment plan.”
(5)A third paragraph shall be inserted in Article 15 with the following text:
“3. Revenue earmarked for specific purposes in the form of grants, contracts and donations shall be included in an estimate of the revenue and expenditure pursuant to Article 25 of the present Rules if this revenue is known for the upcoming budgetary period.”
(6)The first paragraph of Article 18 shall be amended to read as follows:
“The Director may decide on transfers of appropriations within the overall budget, other than human resources within the total limit of 10% of the appropriations of the budget line from which the transfer is done, where those transfers do not significantly affect the nature of the actions and the objectives of the work programme.”
(7)In the fifth paragraph of Article 20, the following text shall be inserted at the end:
“;The budgetary allocation per activity; all earmarked revenue and related expenditure per activity and its mode of implementation.”
(8)A new Chapter 9 shall be inserted at the end of Title III with the following text:
“Chapter 9
INTERNAL CONTROL OF BUDGET IMPLEMENTATION
Article 21bis
(1)The budget of the Energy Community shall be implemented in compliance with effective and efficient internal control.
(2)For the purposes of the implementation of the budget, internal control is defined as a process applicable at all levels of the management and designed to provide reasonable assurance of achieving the following objectives:
(a)effectiveness, efficiency and economy of operations;
(b)reliability of reporting;
(c)safeguarding of assets and information;
(d)prevention, detection, correction and follow-up of fraud and irregularities;
(e)adequate management of the risks relating to the legality and regularity of the underlying transactions, taking into account the multi-annual character of programmes as well as the nature of the payments concerned.
(3)Effective and efficient internal control shall be based on best international practices and include, in particular, the elements laid down in Article 36(3) and (4) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and the Council1, taking into account the structure and size of the Energy Community, the nature of the tasks entrusted to it and the amounts and financial and operational risks involved.
1 Regulation (EU, Euratom) 2018/1046 of the European Parliament and the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union (OJ EU L 193, 30.7.2018, p.1).
(9)A fourth paragraph shall be inserted in Article 22 with the following text:
“4. All internal rules and procedural acts having an impact on budgetary and financial management shall be consulted timely with the Budget Committee before adoption. The Budget Committee may propose modifications of internal rules and procedural acts having an impact on budgetary and financial management.”
(10)The fourth paragraph of Article 23 shall be amended to read as follows:
“The Budget Committee shall hold at least two ordinary meetings a year. Optionally the Budget Committee can meet using the options available through web based media. ln addition, it shall meet at the instance of the Chairperson or at the request of at least one third of its members. The Budget Committee may also meet upon proposal by the Director.”
(11)In letter b. of the third paragraph of Article 25, the following text shall be inserted at the end:
“, per type of funding (annual contributions, earmarked revenue including grants, contracts and donations).”
(12)In the third paragraph of Article 25, the following two letters shall be inserted after letter c.:
“d. An organisation chart
e. A short description of the mission and activities of the different units.”
(13)Article 26 shall be amended to read as follows:
“Any required amendment to the budget related to the estimated expenditures, including the number staff of the Secretariat, shall be subject of an amended budget, preceded by an opinion of the Budget Committee and adopted by the Ministerial Council by the same procedure as the initial budget.”
(14)In the first subparagraph of Article 29, the following second sentence shall be inserted: “The establishment plan will include the requisites included in Article 25(3)(b).”
(15)The first paragraph of Article 37 shall be amended to read as follows:
“Having due regard to the risks associated with the management environment and the nature of the actions financed, and without prejudice to the rules for recruitment of the staff of the Secretariat requiring approval of the organigramme by the Ministerial Council, the authorising officer shall put in place the organisational structure, the internal management, control systems and procedures (hereinafter "lnternal Management Rules of the Energy Community") suited to the performance of his duties, including where appropriate ex post verifications.”
(16)The second paragraph of Article 41 shall be amended to read as follows:
“The Director may decide on the outsourcing of accounting support tasks upon justified request based on a cost/benefit analysis. The accounting function cannot be outsourced.”
(17)In the third paragraph of Article 43, the following text shall be deleted:
“or decide on an outsourcing of the accounting function to the professional service provider as referred to in Article 41 above.”
(18)An additional sentence shall be inserted in the third paragraph of Article 81 after the first sentence with the following text:
“The audit report shall describe the work performed in accordance with the approved Terms of Reference.”
(19)The fifth paragraph of Article 81 shall be amended to read as follows:
“The External Auditors shall submit an audit report and certified accounts, together with a statement of assurance relating to the reliability of the accounts, and the legality and regularity of the underlying transactions, the adequate functioning of an effective and efficient internal control system and the correct allocation of expenditure between ordinary and extraordinary budget, to the Budget Committee so that they may be available to the Ministerial Council not later than eight months after the end of the financial year to which the accounts relate. The Budget Committee shall make to the Ministerial Council such observations on the documents submitted by the Auditors as it may consider appropriate.”
(20)A sixth paragraph shall be inserted in Article 81 with the following text:
“6. External audit reports on expenditure funded by earmarked revenue shall be communicated to the budget committee.”
(21)In Article 82, the following text shall be inserted at the end:
“, as well as the Director’s annual report on the execution of the budget.”
(22)A second sentence shall be inserted in Article 83 with the following text:
“The annual discharge shall be adopted by Procedural Act of the Ministerial Council, following an opinion of the Budget Committee.”
Article 2
Amendments to the Energy Community Staff Regulations of 18 December 2007 as amended by Procedural Act No 2009/04/MC-EnC
(1)The second sentence of Section 4.1. (“Appointment of the Director”) shall be amended to read as follows:
“This Procedural Act shall be proposed by the European Commission for a fixed term of five years renewable no more than once.”
(2)A new Section 4.1.bis shall be inserted after Section 4.1 with the following text: “Deputy Director
The Director may assign the function of Deputy Director to one of the existing heads of unit in the Secretariat. The Director shall define the scope of the function of Deputy Director.”
(3)In Section 4.6. (“Substitute”), the following letter shall be inserted after letter b):
“c) The Director shall not be substitute of the Head of Administration and Finance for more than 6 months.”
Article 3
Amendments to Procedural Act No 2006/02/MC-EnC on the adoption of Rules for Recruitment, Working Conditions and Geographical Equilibrium of the Secretariat's Staff of the Energy Community, as amended by Procedural Act No 2016/01/MC-EnC
(1)Section II.1 shall be amended to read as follows:
“II.1. The Director of the Secretariat shall be appointed by a Procedural Act of the Ministerial Council on a proposal from the European Commission for a fixed term of five years renewable no more than once.”
(2)A second sentence shall be inserted in Section II.10 with the following text:
“The draft Act of Appointment shall be included in the annex to the Ministerial Council decision on the appointment of the Director”.
(3)A new Section II.bis shall be inserted after Section II with the following text: “Section II.bis
Deputy Director
The Director may assign the function of Deputy Director to one of the existing heads of unit in the Secretariat. The Director shall define the scope of the function of Deputy Director.”
(4)Section III.2 shall be amended to read as follows:
“III.2. The Ministerial Council shall adopt the Secretariat Organigramme, and any subsequent changes, based on a proposal of the Director of the Secretariat.”
Article 4
Entry into force
(1)This Procedural Act shall enter into force upon adoption.
(2)By Articles 2(1) and 3(1) of this Procedural Act, the first mandate of the present Director of the Secretariat shall be extended from three to five years. Article 3(2) of this Procedural Act shall not apply to the present Director of the Secretariat.
Done in..., on ….
For the Presidency
…..........................
ADDENDUM 2 TO ANNEX I
65th PHLG/Annex/8a/06-09-2022
PROCEDURAL ACT OF THE MINISTERIAL COUNCIL OF THE ENERGY COMMUNITY
2022/…./MC-EnC amending Procedural Act of the Ministerial Council 2008/01/MC-EnC of 27 June 2008 on Rules of Procedure for Dispute Settlement under the Treaty, as amended
The Ministerial Council of the Energy Community,
Having regard to the Treaty establishing the Energy Community (“the Treaty”), and in particular Articles 47(c), 82, 83, 86 and 87 thereof,
Having regard to the Procedural Act of the Ministerial Council 2008/01/MC-EnC of 27 June 2008 on Rules of Procedure for Dispute Settlement under the Treaty, as amended by Procedural Act of the Ministerial Council 2015/04/MC-EnC of 16 October 2015 (“the Procedural Act on Dispute Settlement Procedures”),
Whereas Article 32 of the Procedural Act on Dispute Settlement Procedures establishes an Advisory Committee consisting of five high-level members whose independence is beyond doubt, to render opinions on reasoned requests submitted by the Secretariat under Article 90 of the Treaty,
Whereas the Ministerial Council in 2020 emphasized the Advisory Committee’s valuable contribution to the rule of law and independent enforcement in the Energy Community,
Whereas their reimbursement and remuneration from the Energy Community budget should be based on an explicit provision in the Procedural Act on Dispute Settlement Procedures,
Whereas the deadlines for submitting Requests for Decision to the Ministerial Council should be streamlined with those stipulated in the Rules of Procedure of the Ministerial Council and the Permanent High Level Group,
Whereas the Permanent High Level Group, at ist meeting on 20 April 2022 discussed the present Procedural Act and proposed to the Ministerial Council to adopt it by correspondence,
Upon proposal by the Secretariat,
ADOPTS THE FOLLOWING PROCEDURAL ACT:
Article 1
The following additional paragraph is included in Article 32 of the Procedural Act on Dispute Settlement Procedures:
“(7) The members of the Advisory Committee shall be eligible for reimbursement for the costs incurred in performing their tasks, and shall be remunerated in accordance with the applicable Reimbursement Rules.”
Article 2
In paragraph 4 of Article 40, the words “at least 60 days before the respective meeting” shall be replaced by words “at least three months before the respective meeting.”
Article 3
This Procedural Act shall enter into force upon adoption. It shall be published on the Energy Community website.
Done by correspondence on … 2022
For the Presidency ..........
ADDENDUM 3 TO ANNEX I
65 PHLG/Annex 8b/06-09-2022
PROCEDURAL ACT 2022/xx/MC-EnC OF THE MINISTERIAL COUNCIL OF THE ENERGY COMMUNITY
on adopting the Organigramme of the Secretariat
The Ministerial Council of the Energy Community,
Having regard to the Treaty Establishing the Energy Community (the Treaty), and in particular Articles 67 and 68 thereof,
Having regard to Procedural Act 2006/02/MC-EnC of 17 November 2006 on adoption of Rules for Recruitment, Working Conditions and Geographical Equilibrium of the Secretariat's Staff of the Energy Community, as amended, and in particular Item III. 2 thereof,
Whereas;
(1)The Ministerial Council shall adopt the Secretariat Organigramme, based on a proposal of the Director of the Secretariat;
(2)The presently applicable Secretariat Organigarmme dates back to 2007 and should be updated
Having regard to the proposal made by the Director of the Secretariat,
HAS ADOPTED THIS PROCEDURAL ACT:
Sole Article
(1)The Secretariat Organigramme annexed to this Procedural Act is hereby adopted.
(2)This Procedural Act shall enter into force on the day of its adoption.
For the Ministerial Council
Presidency
Annex: Secretariat Organigramme
ANNEX II
PHLG
Decision 2022/…/PHLG-EnC adapting and implementing Commission Regulation (EU) 2022/132 of 28 January 2022 amending Regulation (EC) No 1099/2008 of the European Parliament and of the Council, as regards the implementation of updates for the annual, monthly and short-term monthly energy statistics
The position to be adopted on behalf of the European Union is to approve the draft Decision in accordance with Commission Decision of 14/10/2022 on establishing a proposal to be submitted by the Commission to the Permanent High Level Group of the Energy Community (PHLG) for a Decision of the PHLG adapting and implementing Commission Regulation (EU) 2022/132 of 28 January 2022 amending Regulation (EC) No 1099/2008 of the European Parliament and of the Council, as regards the implementation of updates for the annual, monthly and short-term monthly energy statistics [C(2022) 7197 final].