Commission Regulation (EU) 2016/1719 of 26 September 2016 establishing a guideline on forward capacity allocation (Text with EEA relevance)
Modified by
Commission Implementing Regulation (EU) 2021/280of 22 February 2021amending Regulations (EU) 2015/1222, (EU) 2016/1719, (EU) 2017/2195 and (EU) 2017/1485 in order to align them with Regulation (EU) 2019/943(Text with EEA relevance), 32021R0280, February 23, 2021
Commission Regulation (EU) 2016/1719of 26 September 2016establishing a guideline on forward capacity allocation(Text with EEA relevance)TITLE IGENERAL PROVISIONSArticle 1Subject matter and scope1.This Regulation lays down detailed rules on cross-zonal capacity allocation in the forward markets, on the establishment of a common methodology to determine long-term cross-zonal capacity, on the establishment of a single allocation platform at European level offering long-term transmission rights, and on the possibility to return long-term transmission rights for subsequent forward capacity allocation or transfer long-term transmission rights between market participants.2.This Regulation shall apply to all transmission systems and interconnections in the Union, except the transmission systems on islands which are not connected with other transmission systems via interconnectors.3.In Member States where more than one TSO exists, this Regulation shall apply to all TSOs within that Member State. Where a TSO does not have a function relevant to one or more obligations under this Regulation, Member States may provide that the responsibility for complying with those obligations is assigned to one or more different, specific TSOs.4.The single allocation platform may be opened to market operators and TSOs operating in Switzerland on the condition that its national law implements the main provisions of Union electricity market legislation and that there is an intergovernmental agreement on electricity cooperation between the Union and Switzerland.5.Subject to the conditions of paragraph 4, the participation of Switzerland in the single allocation platform shall be decided by the Commission based on an opinion given by the Agency. The rights and responsibilities of Swiss TSOs joining the single allocation platform shall be consistent with the rights and responsibilities of TSOs operating in the Union, allowing for a smooth functioning of the allocation of the long-term transmission rights implemented at Union level and a level playing field for all stakeholders.Article 2DefinitionsFor the purposes of this Regulation, the definitions in Article 2 of Regulation (EC) No 714/2009, Article 2 of Regulation (EU) 2015/1222, Article 2 of Commission Regulation (EU) No 543/2013Commission Regulation (EU) No 543/2013 of 14 June 2013 on submission and publication of data in electricity markets and amending Annex I to Regulation (EC) No 714/2009 of the European Parliament and of the Council (OJ L 163, 15.6.2013, p. 1). as well as Article 2 of Directive 2009/72/EC of the European Parliament and of the CouncilDirective 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ L 211, 14.8.2009, p. 55). shall apply.In addition, the following definitions shall apply:(1)"forward capacity allocation" means the attribution of long-term cross-zonal capacity through an auction before the day-ahead time frame;(2)"long-term transmission right" means a physical transmission right or a FTR — option or a FTR — obligation acquired in the forward capacity allocation;(3)"allocation rules" means the rules for forward capacity allocation applied by the single allocation platform;(4)"single allocation platform" means the European platform established by all TSOs for forward capacity allocation;(5)"auction" means the process by which long-term cross-zonal capacity is offered and allocated to market participants who submit bids;(6)"UIOSI" means the principle according to which the underlying cross-zonal capacity of physical transmission rights purchased and non-nominated is automatically made available for day-ahead capacity allocation and according to which the holder of these physical transmission rights receives remuneration from the TSOs.(7)"nomination" means the notification of the use of long-term cross-zonal capacity by a physical transmission rights holder and its counterparty, or an authorised third party, to the respective TSOs;(8)"nomination rules" means the rules with regard to the notification of use of long-term cross-zonal capacity by a physical transmission rights holder and their counterparty, or an authorised third party, to the respective TSOs;(9)"market spread" means the difference between the hourly day-ahead prices of the two concerned bidding zones for the respective market time unit in a specific direction;(10)"compensation rules" means the rules according to which each TSO responsible for the bidding zone border, where long-term transmission rights have been allocated, compensates transmission right holders for curtailing the long-term transmission rights.Article 3Objectives of forward capacity allocationThis Regulation aims at:(a)promoting effective long-term cross-zonal trade with long-term cross-zonal hedging opportunities for market participants;(b)optimising the calculation and allocation of long-term cross-zonal capacity;(c)providing non-discriminatory access to long-term cross-zonal capacity;(d)ensuring fair and non-discriminatory treatment of TSOs, the Agency, regulatory authorities and market participants;(e)respecting the need for a fair and orderly forward capacity allocation and orderly price formation;(f)ensuring and enhancing the transparency and reliability of information on forward capacity allocation;(g)contributing to the efficient long-term operation and development of the electricity transmission system and electricity sector in the Union.Article 4Adoption of terms and conditions or methodologies1.TSOs shall develop the terms and conditions or methodologies required by this Regulation and submit them for approval to the Agency or the competent regulatory authorities within the respective deadlines set out in this Regulation. In exceptional circumstances, notably in cases where a deadline cannot be met due to circumstances external to the sphere of TSOs, the deadlines for terms and conditions or methodologies may be prolonged by the Agency in procedures pursuant to paragraph 6, and jointly by all competent regulatory authorities in procedures pursuant to paragraph 7. Where a proposal for terms and conditions or methodologies pursuant to this Regulation needs to be developed and agreed by more than one TSO, the participating TSOs shall closely cooperate. TSOs, with the assistance of the ENTSO for Electricity, shall regularly inform the competent regulatory authorities and the Agency about the progress of the development of those terms and conditions or methodologies.2.Where TSOs deciding on proposals for terms and conditions or methodologies listed in paragraph 6 are not able to reach an agreement, they shall decide by qualified majority voting. A qualified majority for proposals in accordance with paragraph 6 shall require the following majority:(a)TSOs representing at least 55 % of the Member States; and(b)TSOs representing Member States comprising at least 65 % of the population of the Union.A blocking minority for decisions on proposals for terms and conditions or methodologies listed in paragraph 6 shall include TSOs representing at least four Member States, failing of which the qualified majority shall be deemed attained.For TSO decisions on proposals for terms and conditions or methodologies listed in paragraph 6, one vote shall be attributed per Member State. If there is more than one TSO in the territory of a Member State, the Member State shall allocate the voting powers among the TSOs.3.Where TSOs deciding on proposals for terms and conditions or methodologies listed in paragraph 7 are not able to reach an agreement and where regions concerned are composed of more than five Member States, they shall decide by qualified majority voting. A qualified majority for proposals in accordance with paragraph 7 shall require the following majority:(a)TSOs representing at least 72 % of the Member States concerned; and(b)TSOs representing Member States comprising at least 65 % of the population of the concerned region.A blocking minority for decisions on proposals for terms and conditions or methodologies listed in paragraph 7 shall include at least the minimum number of TSOs representing more than 35 % of the population of the participating Member States, plus TSOs representing at least one additional Member State concerned, failing of which the qualified majority shall be deemed attained.TSOs deciding on proposals for terms and conditions or methodologies listed in paragraph 7 in relation to regions composed of five Member States or less shall decide by consensus.For TSO decisions on proposals for terms and conditions or methodologies listed in paragraph 7, one vote shall be attributed per Member State. If there is more than one TSO in the territory of a Member State, the Member State shall allocate the voting powers among the TSOs.4.If TSOs fail to submit an initial or amended proposal for terms and conditions or methodologies to the competent regulatory authorities or the Agency in accordance with paragraphs 6 and 7 or 11 within the deadlines set out in this Regulation, they shall provide the competent regulatory authorities and the Agency with the relevant drafts of the proposals for the terms and conditions or methodologies, and explain what has prevented an agreement. The Agency or all competent regulatory authorities jointly, shall take the appropriate steps for the adoption of the required terms and conditions or methodologies in accordance with paragraphs 6 or 7 respectively, for instance by requesting amendments or revising and completing the drafts pursuant to this paragraph, including where no drafts have been submitted, and approve them.5.Each regulatory authority or where applicable the Agency, as the case may be, shall be responsible for approving the terms and conditions or methodologies referred to in paragraphs 6 and 7. Before approving the terms and conditions or methodologies, the Agency or the competent regulatory authorities shall revise the proposals where necessary, after consulting the respective TSOs, in order to ensure that they are in line with the purpose of this Regulation and contribute to market integration, non-discrimination, effective competition and the proper functioning of the market.6.The proposals for the following terms and conditions or methodologies and any amendments thereof shall be subject to approval by the Agency:(a)the generation and load data provision methodology pursuant to Article 17;(b)the common grid model methodology pursuant to Article 18;(c)the requirements for the single allocation platform pursuant to Article 49;(d)the harmonised allocation rules pursuant to Article 51;(e)the congestion income distribution methodology pursuant to Article 57;(f)the methodology for sharing costs of establishing, developing and operating the single allocation platform pursuant to Article 59;(g)the methodology for sharing costs incurred to ensure firmness and remuneration of long-term transmission rights pursuant to Article 61.7.The proposals for the following terms and conditions or methodologies and any amendments thereof shall be subject to approval by all regulatory authorities of the concerned region:(a)the capacity calculation methodology pursuant to Article 10;(b)the methodology for splitting cross-zonal capacity pursuant to Article 16;(c)the regional design of long-term transmission rights pursuant to Article 31;(d)the establishment of fallback procedures in accordance with Article 42;(e)the regional requirements of the harmonised allocation rules pursuant to Article 52, including the regional compensation rules pursuant to Article 55.8.The proposal for terms and conditions or methodologies shall include a proposed timescale for their implementation and a description of their expected impact on the objectives of this Regulation. Proposals for terms and conditions or methodologies subject to the approval by several or all regulatory authorities in accordance with paragraph 7 shall be submitted to the Agency within 1 week of their submission to the regulatory authorities. Upon request by the competent regulatory authorities, the Agency shall issue an opinion within 3 months on the proposals for terms and conditions or methodologies.9.Where the approval of the terms and conditions or methodologies in accordance with paragraph 7 or the amendment in accordance with paragraph 11 requires a decision by more than one regulatory authority, the competent regulatory authorities shall consult and closely cooperate and coordinate with each other in order to reach an agreement. Where applicable, the competent regulatory authorities shall take into account the opinion of the Agency. Regulatory authorities or, where competent, the Agency shall take decisions concerning the submitted terms and conditions or methodologies in accordance with paragraphs 6 and 7, within 6 months following the receipt of the terms and conditions or methodologies by the Agency or, where applicable, by the last regulatory authority concerned. The period shall begin on the day following that on which the proposal was submitted to the Agency in accordance with paragraph 6 or to the last regulatory authority concerned in accordance with paragraph 7.10.Where the regulatory authorities have not been able to reach an agreement within the period referred to in paragraph 9, or upon their joint request, or upon the Agency’s request according to the third subparagraph of Article 5(3) of Regulation (EU) 2019/942, the Agency shall adopt a decision concerning the submitted proposals for terms and conditions or methodologies within 6 months, in accordance with Article 5(3) and the second subparagraph of Article 6(10) of Regulation (EU) 2019/942.11.In the event that the Agency or all competent regulatory authorities jointly request an amendment to approve the terms and conditions or methodologies submitted in accordance with paragraphs 6 and 7, the relevant TSOs shall submit a proposal for amended terms and conditions or methodologies for approval within 2 months following the request from the Agency or the regulatory authorities. The Agency or the competent regulatory authorities shall decide on the amended terms and conditions or methodologies within 2 months following their submission. Where the competent regulatory authorities have not been able to reach an agreement on terms and conditions or methodologies pursuant to paragraph 7 within the 2-month deadline, or upon their joint request, or upon the Agency’s request according to the third subparagraph of Article 5(3) of Regulation (EU) 2019/942, the Agency shall adopt a decision concerning the amended terms and conditions or methodologies within 6 months, in accordance with Article 5(3) and the second subparagraph of Article 6(10) of Regulation (EU) 2019/942. If the relevant TSOs fail to submit a proposal for amended terms and conditions or methodologies, the procedure provided for in paragraph 4 shall apply.12.The Agency or the regulatory authorities jointly, where they are responsible for the adoption of terms and conditions or methodologies in accordance with paragraphs 6 and 7, may respectively request proposals for amendments of those terms and conditions or methodologies and determine a deadline for the submission of those proposals. TSOs responsible for developing a proposal for terms and conditions or methodologies may propose amendments to regulatory authorities and the Agency.The proposals for amendment to the terms and conditions or methodologies shall be submitted to consultation in accordance with the procedure set out in Article 6 and approved in accordance with the procedure set out in this Article.13.TSOs responsible for establishing the terms and conditions or methodologies in accordance with this Regulation shall publish them on the internet after approval by the Agency or the competent regulatory authorities or, if no such approval is required, after their establishment, except where such information is considered as confidential in accordance with Article 7.Article 5Stakeholder involvementThe Agency, in close cooperation with ENTSO for Electricity, shall organise stakeholder involvement regarding forward capacity allocation and other aspects of the implementation of this Regulation. This shall include regular meetings with stakeholders to identify problems and propose improvements notably related to the operation and development of the forward capacity allocation, including the harmonisation of auction rules. This shall not replace the stakeholder consultations in accordance with Article 6.Article 6Consultation1.TSOs responsible for submitting proposals for terms and conditions or methodologies or their amendments in accordance with this Regulation shall consult stakeholders, including the relevant authorities of each Member State, on the draft proposals for terms and conditions or methodologies where explicitly set out in this Regulation. The consultation shall last for a period of not less than one month.2.The proposals for terms and conditions or methodologies submitted by the TSOs at Union level shall be published and submitted to consultation at Union level. Proposals submitted by the TSOs at regional level shall be submitted to consultation at least at regional level. Parties submitting proposals at bilateral or at multilateral level shall consult at least the Member States concerned.3.The entities responsible for the proposal for terms and conditions or methodologies shall duly consider the views of stakeholders resulting from the consultations undertaken in accordance with paragraph 1, prior to its submission for regulatory approval if required in accordance with Article 4 or prior to publication in all other cases. In all cases, a clear and robust justification for including or not the views resulting from the consultation shall be developed and published in a timely manner before or simultaneously with the publication of the proposal for terms and conditions or methodologies.Article 7Confidentiality obligations1.Any confidential information received, exchanged or transmitted pursuant to this Regulation shall be subject to the conditions of professional secrecy laid down in paragraphs 2, 3 and 4.2.The obligation of professional secrecy shall apply to any persons subject to the provisions of this Regulation.3.Confidential information received by the persons referred to in paragraph 2 in the course of their duties may not be divulged to any other person or authority, without prejudice to cases covered by national law, the other provisions of this Regulation or other relevant Union legislation.4.Without prejudice to cases covered by national law or Union law, regulatory authorities, bodies or persons which receive confidential information pursuant to this Regulation may use it only for the purpose of the performance of their functions under this Regulation.