HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 231/16
EN
Official Journal of the European Union
28.8.2012
COMMISSION DECISION
of 24 August 2012
on amending Annex I to Regulation (EC) No 715/2009 of the European Parliament and of the
Council on conditions for access to the natural gas transmission networks
(Text with EEA relevance)
(2012/490/EU)
THE EUROPEAN COMMISSION,
resolving those events by bringing unused capacity back
to the market to be reallocated in the course of the
regular allocation processes.
Having regard to the Treaty on the Functioning of the European
Union,
(4) Where
an
interconnection
point
is
frequently
subject
to
Having regard to Regulation (EC) No 715/2009 of the European
the occurrence of physical congestion, congestion
Parliament and of the Council of 13 July 2009 on conditions
management procedures may often be of no avail. In
for access to the natural gas transmission networks and
those cases a solution should be examined from a
repealing Regulation (EC) No 1775/2005 (
network planning and investment point of view.

1 ), and in particular
Article 23(2) thereof,
(5) In
accordance
with
Regulation
(EC)
No
713/2009
of
the
Whereas:
European Parliament and of the Council ( 3 ) the Agency
for the Cooperation of Energy Regulators (‘the Agency’)
should monitor and analyse the implementation of these
(1) Regulation
(EC)
No
715/2009
sets
non-discriminatory
guidelines. It is necessary that transmission system
rules for access conditions to natural gas transmission
operators publish the information necessary to identify
systems to ensure the proper functioning of the
the occurrence of contractual congestion in a workable
internal market in gas. Since the duplication of gas trans
format.
mission systems is in most cases not economic and effi
cient, competition in natural gas markets is stimulated by
third-party access opening infrastructure to all suppliers
(6) In
accordance
with
Article
24
of
Regulation
(EC)
No
in a transparent and non-discriminatory way. The
715/2009 the national regulatory authorities ensure
frequent occurrence of contractual congestion where
compliance with those guidelines.
network users cannot gain access to gas transmission
systems in spite of the physical availability of the
capacity is an obstacle on the road towards completing
(7) In
order
to
ensure
that
congestion
management
the internal energy market.
procedures are applied in the most effective way at all
interconnection points and with a view to maximising
available capacities in all adjacent entry-exit systems, it is
(2) The
practice
has
shown
that
despite
the
application
of
certain congestion-management principles such as the
of great importance that national regulatory authorities
offering of interruptible capacities as provided for by
and transmission system operators from different
Regulation (EC) No 1775/2005 of the European
Member States and within Member States closely
Parliament and of the Council of 28 September 2005
cooperate amongst themselves and with each other. In
on conditions for access to the natural gas transmission
particular national regulatory authorities and trans
networks (
mission system operators should have regard to best

2 ) and Regulation (EC) No 715/2009,
contractual congestion in the Union gas transmission
practices and endeavour to harmonise processes for the
networks remains an obstacle to the development of a
implementation of these Guidelines. Acting in accordance
well-functioning internal market in gas. Therefore it is
with Article 7 of Regulation (EC) No 713/2009 the
necessary to amend the guidelines on the application of
Agency and the national regulatory authorities should
congestion-management procedures in the event of
ensure that the most effective congestion management
contractual congestion. In accordance with Article 23(3)
procedures are implemented at the applicable entry and
of Regulation (EC) No 715/2009 the proposed guidelines
exit points across the Union.
should reflect differences between national gas systems
and may set minimum requirements to be met to achieve
non-discriminatory and transparent network access
(8) Whereas
transmission
system
operators
possess
detailed
conditions with respect to congestion management
information about the physical use of the system and are
procedures.
best placed to assess future flows, it is appropriate for

them to determine an amount of additional capacity to
be made available in addition to the calculated technical
(3) The
congestion-management
procedures
should
apply
in
capacity. By offering more firm capacity than technically
the event of contractual congestion and are aimed at
available through taking into consideration flow
scenarios and contracted capacities, transmission system
( 1 ) OJ L 211, 14.8.2009, p. 36.
( 2 ) OJ L 289, 3.11.2005, p. 1.
( 3 ) OJ L 211, 14.8.2009, p. 1.

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EN
28.8.2012 Official
Journal
of
the
European
Union L
231/17
operators take a risk that should be rewarded accord
HAS ADOPTED THIS DECISION:
ingly. For the purpose of determining transmission
system operators’ revenues, such additional capacity
should however only be allocated if all other capacity,
Article 1
including capacity resulting from the application of other
Annex I to Regulation (EC) No 715/2009 is amended in
congestion-management procedures, has been allocated.
accordance with the Annex to this Decision.
Transmission system operators should closely cooperate
to set the technical capacity. In order to resolve a
potential situation of physical congestion the trans
Article 2
mission system operators should apply the most cost-
This Decision shall enter into force on the twentieth day
effective measure, including either buying back capacity
following that of its publication in the Official Journal of the
or taking other technical or commercial measures.
European Union.
(9) Regulation
(EC)
No
715/2009
should
therefore
be
amended accordingly.
Done at Brussels, 24 August 2012.
(10) The
measures provided for in this Decision are in
For the Commission
accordance with the opinion of the Committee estab
lished by Article 51 of Directive 2009/73/EC of the
The President
European Parliament and of the Council ( 1 ),
José Manuel BARROSO
( 1 ) OJ L 211, 14.8.2009, p. 94.

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L 231/18
EN
Official Journal of the European Union
28.8.2012
ANNEX
Annex I to Regulation (EC) No 715/2009 is amended as follows:
1. point 2.2 is replaced by the following:
‘2.2. Congestion
management
procedures
in
the
event
of
contractual
congestion
2.2.1. General Provisions
1. The
provisions
of
point
2.2
shall
apply
to
interconnection
points
between
adjacent
entry-exit
systems,
irre
spective of whether they are physical or virtual, between two or more Member States or within the same
Member State in so far as the points are subject to booking procedures by users. They may also apply to entry
points from and exit points to third countries, subject to the decision of the relevant national regulatory
authority. Exit points to end-consumers and distribution networks, entry points from LNG terminals and
production facilities, and entry-exit points from and to storage facilities are not subject to the provisions of
point 2.2.
2.
On the basis of the information published by the transmission system operators pursuant to Section 3 of this
Annex and, where appropriate, validated by national regulatory authorities, the Agency shall publish by 1
March of every year, commencing with the year 2014, a monitoring report on congestion at interconnection
points with respect to firm capacity products sold in the preceding year, taking into consideration to the extent
possible capacity trading on the secondary market and the use of interruptible capacity.
3.
Any additional capacity made available through the application of one of the congestion-management
procedures as provided for in points 2.2.2, 2.2.3, 2.2.4 and 2.2.5 shall be offered by the respective transmission
system operator(s) in the regular allocation process.
4. The
measures
provided
for
in
points
2.2.2,
2.2.4
and
2.2.5
shall
be
implemented
as
of
1
October
2013.
Points
2.2.3(1) to 2.2.3(5) shall apply as of 1 July 2016.
2.2.2. Capacity increase through oversubscription and buy-back scheme
1.
Transmission system operators shall propose and, after approval by the national regulatory authority,
implement an incentive-based oversubscription and buy-back scheme in order to offer additional capacity on
a firm basis. Before implementation, the national regulatory authority shall consult with the national regulatory
authorities of adjacent Member States and take account of the adjacent national regulatory authorities’ opinions.
Additional capacity is defined as the firm capacity offered in addition to the technical capacity of an inter
connection point calculated on the basis of Article 16(1) of this Regulation.
2. The
oversubscription
and
buy-back
scheme
shall
provide
transmission
system
operators
with
an
incentive
to
make available additional capacity, taking account of the technical conditions, such as the calorific value,
temperature and expected consumption, of the relevant entry-exit system and the capacities in adjacent
networks. Transmission system operators shall apply a dynamic approach with regard to the recalculation of
the technical or additional capacity of the entry-exit system.
3.
The oversubscription and buy-back scheme shall be based on an incentive regime reflecting the risks of
transmission system operators in offering additional capacity. The scheme shall be structured in such a way
that revenues from selling additional capacity and costs arising from the buy-back scheme or measures pursuant
to paragraph 6 are shared between the transmission system operators and the network users. National regu
latory authorities shall decide on the distribution of revenues and costs between the transmission system
operator and the network user.
4. For
the
purpose
of
determining
transmission
system
operators’
revenues,
technical
capacity,
in
particular
surrendered capacity as well as, where relevant, capacity arising from the application of firm day-ahead use-
it-or-lose-it and long term use-it-or-lose-it mechanisms, shall be considered to be allocated prior to any
additional capacity.
5.
In determining the additional capacity, the transmission system operator shall take into account statistical
scenarios for the likely amount of physically unused capacity at any given time at interconnection points. It
shall also take into account a risk profile for offering additional capacity which does not lead to excessive buy-
back obligation. The oversubscription and buy-back scheme shall also estimate the likelihood and the costs of
buying back capacity on the market and reflect this in the amount of additional capacity to be made available.
6.
Where necessary to maintain system integrity, transmission system operators shall apply a market-based buy-
back procedure in which network users can offer capacity. Network users shall be informed about the
applicable buy-back procedure. The application of a buy-back procedure is without prejudice to the applicable
emergency measures.
7. Transmission
system
operators
shall,
before
applying
a
buy-back
procedure,
verify
whether
alternative
technical
and commercial measures can maintain system integrity in a more cost-efficient manner.

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EN
28.8.2012 Official
Journal
of
the
European
Union L
231/19
8. When
proposing
the
oversubscription
and
buy-back
scheme
the
transmission
system
operator
shall
provide
all
relevant data, estimates, and models to the national regulatory authority in order for the latter to assess the
scheme. The transmission system operator shall regularly report to the national regulatory authority on the
functioning of the scheme and, upon request of the national regulatory authority, provide all relevant data. The
national regulatory authority may request the transmission system operator to revise the scheme.
2.2.3. Firm day-ahead use-it-or-lose-it mechanism
1. National
regulatory
authorities
shall
require
transmission
system
operators
to
apply
at
least
the
rules
laid
down
in paragraph 3 per network user at interconnection points with respect to altering the initial nomination if, on
the basis of the yearly monitoring report of the Agency in accordance with point 2.2.1(2), it is shown that at
interconnection points demand exceeded offer, at the reserve price when auctions are used, in the course of
capacity allocation procedures in the year covered by the monitoring report for products for use in either that
year or in one of the subsequent two years,
(a) for at least three firm capacity products with a duration of one month or
(b) for at least two firm capacity products with a duration of one quarter or
(c) for at least one firm capacity product with a duration of one year or more or
(d) where no firm capacity product with a duration of one month or more has been offered.
2.
If, on the basis of the yearly monitoring report, it is shown that a situation as defined in paragraph 1 is unlikely
to reoccur in the following three years, for example as a result of capacity becoming available from physical
expansion of the network or termination of long-term contracts, the relevant national regulatory authorities
may decide to terminate the firm day-ahead use-it-or-lose-it mechanism.
3.
Firm renomination is permitted up to 90 % and down to 10 % of the contracted capacity by the network user
at the interconnection point. However, if the nomination exceeds 80 % of the contracted capacity, half of the
non-nominated volume may be renominated upwards. If the nomination does not exceed 20 % of the
contracted capacity, half of the nominated volume may be renominated downwards. The application of this
paragraph is without prejudice to the applicable emergency measures.
4.
The original holder of the contracted capacity may renominate the restricted part of its contracted firm capacity
on an interruptible basis.
5.
Paragraph 3 shall not apply to network users — persons or undertakings and the undertakings they control
pursuant to Article 3 of Regulation (EC) No 139/2004 — holding less than 10 % of the average technical
capacity in the preceding year at the interconnection point.
6. On
interconnection
points
where
a
firm
day-ahead
use-it-or-lose-it
mechanism
in
accordance
with
paragraph
3
is applied, an evaluation of the relationship with the oversubscription and buy-back scheme pursuant to point
2.2.2 shall be carried out by the national regulatory authority, which may result in a decision by the national
regulatory authority not to apply the provisions of point 2.2.2 at those interconnection points. Such a decision
shall be notified, without delay, to the Agency and the Commission.
7. A
national
regulatory
authority
may
decide
to
implement
a
firm
day-ahead
use-it-or-lose-it
mechanism
pursuant
to paragraph 3 on an interconnection point. Before adopting its decision, the national regulatory authority shall
consult with the national regulatory authorities of adjacent Member States. In adopting its decision the national
regulatory authority shall take account of the adjacent national regulatory authorities’ opinions.
2.2.4. Surrender of contracted capacity
Transmission system operators shall accept any surrender of firm capacity which is contracted by the network
user at an interconnection point, with the exception of capacity products with a duration of a day and shorter.
The network user shall retain its rights and obligations under the capacity contract until the capacity is
reallocated by the transmission system operator and to the extent the capacity is not reallocated by the
transmission system operator. Surrendered capacity shall be considered to be reallocated only after all the
available capacity has been allocated. The transmission system operator shall notify the network user without
delay of any reallocation of its surrendered capacity. Specific terms and conditions for surrendering capacity, in
particular for cases where several network users surrender their capacity, shall be approved by the national
regulatory authority.

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L 231/20
EN
Official Journal of the European Union
28.8.2012
2.2.5. Long-term use-it-or-lose-it mechanism
1. National
regulatory
authorities
shall
require
transmission
system
operators
to
partially
or
fully
withdraw
system
atically underutilised contracted capacity on an interconnection point by a network user where that user has
not sold or offered under reasonable conditions its unused capacity and where other network users request firm
capacity. Contracted capacity is considered to be systematically underutilised in particular if:
(a) the network user uses less than on average 80 % of its contracted capacity both from 1 April until 30
September and from 1 October until 31 March with an effective contract duration of more than one year
for which no proper justification could be provided; or
(b) the network user systematically nominates close to 100 % of its contracted capacity and renominates
downwards with a view to circumventing the rules laid down in point 2.2.3(3).
2. The
application
of
a
firm
day-ahead
use-it-or-lose-it
mechanism
shall
not
be
regarded
as
justification
to
prevent
the application of paragraph 1.
3. Withdrawal
shall
result
in
the
network
user
losing
its
contracted
capacity
partially
or
completely
for
a
given
period or for the remaining effective contractual term. The network user shall retain its rights and obligations
under the capacity contract until the capacity is reallocated by the transmission system operator and to the
extent the capacity is not reallocated by the transmission system operator.
4. Transmission
system
operators
shall
regularly
provide
national
regulatory
authorities
with
all
the
data
necessary
to monitor the extent to which contracted capacities with effective contract duration of more than one year or
recurring quarters covering at least two years are used.’;
2. point 3.1.1(1) is amended as follows:
(a) point (e) is replaced by the following:
‘(e) in a downloadable format that has been agreed between transmission system operators and the national
regulatory authorities — on the basis of an opinion on a harmonised format that shall be provided by the
Agency — and that allows for quantitative analyses;’;
(b) the following point (h) is added:
‘(h) all data shall be made available as of 1 October 2013 on one Union-wide central platform, established by
ENTSOG on a cost-efficient basis.’;
3. in point 3.3(1) the following points (h), (i), (j), (k) and (l) are added:
‘(h) occurrence of unsuccessful, legally valid requests for firm capacity products with a duration of one month or
longer including the number and volume of the unsuccessful requests; and
(i) in the case of auctions, where and when firm capacity products with a duration of one month or longer have
cleared at prices higher than the reserve price;
(j) where
and
when
no
firm
capacity
product
with
a
duration
of
one
month
or
longer
has
been
offered
in
the
regular
allocation process;
(k) total capacity made available through the application of the congestion-management procedures laid down in
points 2.2.2, 2.2.3, 2.2.4 and 2.2.5 per applied congestion-management procedure;
(l) points (h) to (k) shall apply from 1 October 2013.’.

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