432 tal-2004 - Regolamenti tal-2004 dwar il-Bejgħ fis-Suq ta’ Gass Naturali

L.N. 432 of 2004

MALTA RESOURCES AUTHORITY ACT, 2000

(ACT NO. XXV OF 2000)

Natural Gas (Marketing) Regulations, 2004

BY virtue of the powers conferred by article 28 of the Malta

Resources Authority Act, 2000, hereinafter referred to as “the Act”, the

Minister for Resources and Infrastructure, after consultation with the

Malta Resources Authority, has made the following regulations>-

(1) The title of these regulations is the Natural Gas Title,

commencement

(Marketing) Regulations, 2004.

and scope.

(2) These regulations shall be deemed to have come into

force on the 1st July, 2004.

(3) These regulations establish rules relating to the

organisation and functioning of the natural gas sector.

(4) These regulations give effect to Directive 2003#55#EC

of the European Parliament and of the Council of the 26th June, 2003

concerning common rules for the internal market in natural gas and

repealing Directive 98#30#EC.

In these regulations, unless the context otherwise requires>

Measures on consumer protection

Without prejudice to rules on consumer protection, the measures referred to in

regulation 11 are to ensure that customers>

(a)

have a right to a contract with their gas service provider that specifies>

–

the identity and address of the supplier<

– the services provided, the service quality levels offered, as well as

the time for the initial connection<

–

if offered, the types of maintenance service offered<

– the means by which up-to-date information on all applicable tariffs

and maintenance charges may be obtained<

– the duration of the contract, the conditions for renewal and

termination of services and of the contract, the existence of any right of

withdrawal<

– any compensation and the refund arrangements which apply if

contracted service quality levels are not met< and

–

the method of initiating procedures for settlement of disputes.

Conditions shall be fair and well known in advance. In any case, this information

should be provided prior to the conclusion or confirmation of the contract. Where

contracts are concluded through intermediaries, the above information shall also be

provided prior to the conclusion of the contract<

(b) are given adequate notice of any intention to modify contractual

conditions and are informed about their right of withdrawal when the notice is

given. Service providers shall notify their subscribers directly of any increase in

charges, at an appropriate time no later than one normal billing period after the

increase comes into effect. Member States shall ensure that customers are free to

withdraw from contracts if they do not accept the new conditions, notified to

them by their gas service provider<

(c) receive transparent information on applicable prices and tariffs and on

standard terms and conditions, in respect of access to and use of gas services<

(d) are offered a wide choice of payment methods. Any difference in terms

and conditions shall reflect the costs to the supplier of the different payment

B

systems. General terms and conditions shall be fair and transparent. They shall

be given in clear and comprehensible language. Customers shall be protected

against unfair or misleading selling methods<

(e)

shall not be charged for changing supplier.

(f) should they be connected to the gas system, are informed about their

rights to be supplied, under the national legislation applicable, with natural gas of

a specified quality at reasonable prices.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press

Interpretation.

“natural gas undertaking” means any natural or legal person

carrying out at least one of the following functions> production,

transmission, distribution, supply, purchase or storage of natural

gas, including LNG, which is responsible for the commercial,

technical and, or maintenance tasks related to those functions, but

shall not include final customers<

“upstream pipeline network” means any pipeline or network

of pipelines operated and, or constructed as part of an oil or gas

production project, or used to convey natural gas from one or more

such projects to a processing plant or terminal or final coastal

landing terminal<

“transmission” means the transport of natural gas through a

high-pressure pipeline network other than an upstream pipeline

network with a view to its delivery to customers, but not including

supply<

“transmission system operator” means a natural or legal person

who carries out the function of transmission and is responsible for

operating, ensuring the maintenance of, and, if necessary,

developing the transmission system in a given area and, where

applicable, its interconnections with other systems, and for ensuring

the long-term ability of the system to meet reasonable demands

for the transportation of gas<

“distribution” means the transport of natural gas through local

or regional pipeline networks with a view to its delivery to

customers, but not including supply<

“distribution system operator” means a natural or legal person

who carries out the function of distribution and is responsible for

operating, ensuring the maintenance of, and, if necessary,

developing the distribution system in a given area and, where

applicable, its interconnections with other systems, and for ensuring

the long-term ability of the system to meet reasonable demands

for the distribution of gas<

“supply” means the sale, including resale, of natural gas,

including LNG, to customers<

“supply undertaking” means any natural or legal person who

carries out the function of supply<

“storage facility” means a facility used for the stocking of

natural gas and owned and, or operated by a natural gas undertaking,

including the part of LNG facilities used for storage but excluding

the portion used for production operations, and excluding facilities

reserved exclusively for transmission system operators in carrying

out their functions<

“storage system operator” means a natural or legal person

who carries out the function of storage and is responsible for

operating a storage facility<

“LNG facility” means a terminal which is used for the

liquefaction of natural gas or the importation, offloading, and re-

gasification of LNG, and shall include ancillary services and

temporary storage necessary for the re-gasification process and

subsequent delivery to the transmission system, but shall not

include any part of LNG terminals used for storage<

“LNG system operator” means a natural or legal person who

carries out the function of liquefaction of natural gas, or the

importation, offloading, and re-gasification of LNG and is

responsible for operating a LNG facility<

“system” means any transmission networks, distribution

networks, LNG facilities and, or storage facilities owned and, or

operated by a natural gas undertaking, including linepack and its

facilities supplying ancillary services and those of related

undertakings necessary for providing access to transmission,

distribution and LNG<

“ancillary services” means all services necessary for access

to and the operation of transmission and, or distribution networks

and, or LNG facilities and, or storage facilities including load

balancing and blending, but excluding facilities reserved

exclusively for transmission system operators carrying out their

functions<

“linepack” means the storage of gas by compression in gas

transmission and distribution systems, but excluding facilities

reserved for transmission system operators carrying out their

functions<

“interconnected system” means a number of systems which

are linked with each other<

“interconnector” means a transmission line which crosses or

spans a border between Member States for the sole purpose of

connecting the national transmission systems of these Member

States<

“direct line” means a natural gas pipeline complementary to

the interconnected system<

“integrated natural gas undertaking” means a vertically or

horizontally integrated undertaking<

“vertically integrated undertaking” means a natural gas

undertaking or a group of undertakings and where the undertaking

or group concerned is performing at least one of the functions of

transmission, distribution, LNG or storage, and at least one of the

functions of production or supply of natural gas<

“horizontally integrated undertaking” means an undertaking

performing at least one of the functions of production, transmission,

distribution, supply or storage of natural gas, and a non-gas activity<

“related undertakings” means affiliated undertakings and, or

associated undertakings, and, or undertakings which belong to the

same shareholders<

“system users” means any natural or legal persons supplying

to, or being supplied by, the system<

“customers” means wholesale and final customers of natural

gas and natural gas undertakings which purchase natural gas<

“household customers” means customers purchasing natural

gas for their own household consumption<

“non-household customers” means customers purchasing

natural gas which is not for their own household use<

“final customers” means customers purchasing natural gas

for their own use<

“eligible customers” means customers who are free to

purchase gas from the supplier of their choice<

“wholesale customers” means any natural or legal persons

other than transmission system operators and distribution system

operators who purchase natural gas for the purpose of resale inside

or outside the system where they are established<

“long-term planning” means the planning of supply and

transportation capacity of natural gas undertakings on a long-term

basis with a view to meeting the demand for natural gas of the

system, diversification of sources and securing supplies to

customers<

“emergent market” means a market in which the first

commercial supply of its first long-term natural gas supply contract

was made not more than 10 years earlier<

“security “ means both security of supply of natural gas and

technical safety<

“new infrastructure” means an infrastructure not completed

by the entry into force of this Directive<

“operator” means transmission system operator or distribution

system operator<

“Minister” means the Minister responsible for resources<

“Authority” means the Malta Resource Authority<

“Commission” means the European Commission of the

European Communities<

No person shall carry out the functions of a natural gas Licensing.

undertaking except under licence of the Authority and on such terms

and conditions as may be specified in the licence.

(1) An application for a new licence or for its renewal under Applications.

these regulations shall be>

(i) in writing and in such form and contain such information

as the Authority may request<

(ii) accompanied by such fees, bank guarantees and

insurance policies as the Authority may determine and prescribe

to be appropriate. All fees shall be payable on application and any

bank guarantees and, or insurance policies shall be effective as

from the date of the issue of the licence and must subsist throughout

its duration. Interests and penalties, as established by the Authority,

shall be payable in the event of default in the due payment of fees>

Provided that a licence granted under these Regulations shall not

relieve the licensee from the requirement of any other licence, permit

or other authorization, or from an obligation arising from any other

law.

(2) A licence granted under these regulations may include

such conditions as appear to the Authority to be requisite or expedient,

having regard to the duties of the Authority.

The refusal of the Authority to grant a licence shall be Grant or refusal of

licence.

communicated to the applicant in writing not later than 28 days from its

decision together with a statement of reasons.

(1) The Authority shall monitor the activities of licensees to Monitoring of

ensure that they conform to the conditions and requirements of the licensees.

licence.

(2) A licensee shall allow the Authority, and any other

person authorized by it for such purpose, full access to any premises,

installations, accounts and any other records and any information under

the control of the licensee as the Authority may reasonably require and

as it may request for the purpose of investigating any matter relevant to

the licensee’s compliance with these Regulations, the Act, the terms

and conditions of the licence or any directive issued by or given by the

Authority>

Provided that when allowing access to or providing documentation

or information to the Authority, the licensee may indicate what

information he considers to be of a commercially sensitive nature and

may request the Authority to keep such information confidential. It shall

be the Authority to decide whether the information is of a commercially

sensitive nature>

Provided further that the Authority shall, in relation to the

commercially sensitive information obtained from the licensee, be under

the obligation of confidentiality and shall not divulge such information

unless required to do so by law or by a court order.

Where a licensee fails to comply with any condition or

conditions of the licence, the Authority may withdraw, amend or suspend

such licence or impose specific measures which it deems necessary and

appropriate to achieve compliance>

Provided that such measures must be proportionate to the degree

of non-compliance with the conditions of the licence.

The licensee shall monitor, record and maintain all such

technical, financial, customer service, administrative and operational

information and records concerning licensed activities that are prescribed

in the licence or that the Authority may deem necessary>

Provided that the Authority may prescribe the manner in which

the licensee keeps the records and documents which fall under this

regulation.

(1) The licensee may not transfer or assign the licence to

any other person or undertaking without the prior written approval of

the Authority and unless such transfer fees, as may be prescribed by the

Authority, have been paid>

Provided that the Authority may only refuse its consent to such

transfer for a good and valid reason and that such refusal is

communicated to the licensee and the proposed transferee in writing.

(2) Where the licensee is a body corporate or any other body of

persons, a change in the control of the ownership or management of

that body shall be deemed to be equivalent to the transfer of the licence,

and shall be subject to the approval by the Authority. For the purpose

of this sub-regulation, a transfer in the control of the ownership of a

body corporate or other body of persons shall be deemed to occur in

any case where a transfer of the capital, shares, stocks or other rights

held in the body corporate or other body of persons leads to a change in

the person holding the controlling interest therein.

(1) A licence granted by the Authority shall be subject to Amendment,

revocation and

modification, revocation or termination in accordance with these termination of

licences.

regulations.

(2) A licence shall be modified>

(i) where the licensee so requests, in which case the

Authority may modify the conditions or requirements of the said

licence< and

(ii) where the Authority is of the opinion that a licence

should be amended, it may amend such licence with or without

the consent of the licensee>

Provided that, other than in the case of modifications pursuant to

paragraph (ii), and required urgently in the general economic interest,

the Authority shall issue a notice in the Gazette before modifying a

licence stating the proposed modification or modifications, the nature

of such modification or modifications and the reasons thereof.

Representations or objections with respect to the proposed modifications

may be made to the Authority within 28 days of the publication of such

notice.

(3) A licence shall cease to be valid, in whole or in part,

upon>

(i) the expiration of the term therein specified<

(ii) the occurrence of an event or of circumstances which

under the terms and conditions of the licence result in its

termination<

(iii) the renunciation thereto by the licensee<

(iv) the insolvency, liquidation or bankruptcy of the licensee,

or a composition with his creditors.

(4) Without prejudice to regulation 8, the Authority may

revoke the licence, in whole or in part, for any of the following reasons>

(i) if the licence has been granted on the basis of information

which was incomplete, misleading or incorrect in any material

aspect<

(ii) if the licensee fails to act on the licence by failing to

provide the service or product for which he was licensed for a

period exceeding 180 days from the date of issue of the licence, or

if he suspends such activity for a period exceeding 180 days in

any twelve month period>

Provided that the Authority may extend or curtail the period

aforesaid for a good and valid reason which shall be communicated

in the licence conditions<

(iii) if the licensee is in breach of an obligation imposed by

or under these regulations or contained in the licence, which in the

opinion of the Authority is of a sufficient degree of severity to

justify the revocation of the licence, and, in such case where the

breach is capable of remedy, where the licensee has failed to remedy

the breach within such reasonable time as the Authority may have

given him for that purpose>

Provided that in any action taken further to this paragraph,

the Authority shall respect the principle of proportionality and it

shall communicate its intention to revoke the licence and the

reasons therefor to the licensee in writing<

(iv) in the case of the occurrence of any event or

circumstance which, in accordance with the terms and conditions

of the licence, these Regulations and, or the Act, authorise the

Authority to revoke it.

(5) Upon revocation of the whole of the licence, such licence

shall cease to be a valid licence>

Provided that where the licence is revoked only in part, the

validity of the licence as a whole shall only be effected if the part

of the licence revoked appears to the Authority not to be severable

from the entire licence>

Provided further that the revocation of a licence shall not relieve

the licensee of any liability arising from any act or omission which

occurred prior to such revocation.

(1) Enemalta Corporation, or a related undertaking set up Natural gas

undertakings.

for the purpose, shall be responsible for examining the impacts of, and

if necessary developing, interconnections with other systems. This shall

be monitored by, and where necessary directed by, the Authority, in

view of the possible impact of such development on competition within

the market.

(2) The following rules shall apply to operators>

(a) Each distribution system operator shall operate, maintain

and develop under economic conditions a secure, reliable and

efficient system, with due regard for the environment.

(b) In any event, the distribution system operator shall not

discriminate between system users or classes of system users,

particularly in favour of its related undertakings.

(c) Each distribution system operator shall provide any other

distribution system operator, and, or any transmission, and, or LNG

system operator, and, or storage system operator with sufficient

information to ensure that the transport and storage of natural gas

takes place in a manner compatible with the secure and efficient

operation of the interconnected system.

(d) Each distribution system operator shall provide system

users with the information they need for efficient access to the

system.

(e) Without prejudice to any legal duty to disclose

information, each operator shall preserve the confidentiality of

commercially sensitive information obtained in the course of

carrying out its business, and shall prevent information about its

own activities which may be commercially advantageous from

being disclosed in a discriminatory manner. Operators shall not,

in the context of sales or purchases of natural gas by related

undertakings, abuse commercially sensitive information obtained

from third parties in the context of providing or negotiating access

to the system.

(f) Within such time and following such consultation as the

Authority may establish, the Authority may direct any distribution

system operator to prepare and publish a network code, subject to

the approval of the Authority, establishing the basic technical design

and operational requirements for the connection to the distribution

system of LNG facilities, storage facilities, other transmission or

distribution systems, and direct lines, which are developed and

made public. The network code shall be objective and non-

discriminatory. The network code shall be notified in accordance

with the Procedure for the Provision of Information in the field of

Technical Standards and Regulations and of Rules of Information

Society Services Regulations, 2001.

(g) The undertaking shall implement the consumer

protection measures in Schedule A to these regulations, to

household customers.

(1) An application for the construction of new infrastructure

shall include proposals for tariffs for access to, and conditions for the

organisation of, storage, linepack and ancillary services and to upstream

pipeline networks, for approval by the Authority. Such access shall not

extend to ancillary services and temporary storage that are related to

LNG facilites and are necessary for the re-gasification process and

subsequent delivery to the transmission system and to parts of upstream

pipeline networks and facilities which are used for the local production

operations at the site of a field where gas is produced.

(2) Undertakings may be exempted by the Authority from

the requirement to provide access to third parties to their interconnectors,

LNG and storage facilities, under the following conditions>

(a) the investment must enhance competition in gas supply

and enhance security of supply<

(b) the level of risk attached to the investment is such that

the investment would not take place unless an exemption was

granted<

(c) the infrastructure must be owned by a natural or legal

person which is separate, at least in terms of its legal form, from

the system operators in whose systems that infrastructure will be

built<

(d) charges are levied on users of that infrastructure<

(e) the exemption is not detrimental to competition or the

effective functioning of the internal gas market, or the efficient

functioning of the regulated system to which the infrastructure is

connected.

(3) The authority shall submit to the Minister for his

approval any exemptions granted under this regulation, together with

any conditions attached to this exemption.

(4) The exemption decision, including any conditions, shall

be duly reasoned and published.

(5) In the case of an interconnector any exemption decision

shall be taken after consultation with the other Member States or

regulatory authorities concerned.

(6) The exemption decision shall be notified, without delay,

by the Authority to the Commission, together with all the relevant

information with respect to the decision. This information may be

submitted to the Commission in aggregate form, enabling the

Commission to reach a well-founded decision. In particular, the

information shall contain>

(a) the detailed reasons on the basis of which the regulatory

authority granted the exemption, including the financial information

justifying the need for the exemption<

(b) the analysis undertaken of the effect on competition and

the effective functioning of the internal gas market resulting from

the grant of the exemption<

(c) the reasons for the time period and the share of the total

capacity of the gas infrastructure in question for which the

exemption is granted<

(d) in case the exemption relates to an interconnector, the

result of the consultation with the Member States concerned or

regulatory authorities<

(e) the contribution of the infrastructure to the diversification

of gas supply.

(7) The Authority shall amend or withdraw the decision to

grant an exemption as instructed by the Commission or the Minister.

(1) The Authority shall be responsible for ensuring non-

discrimination, effective competition and the efficient functioning and

monitoring of the market in natural gas. The Authority shall monitor in

particular>

(i) the rules on the management and allocation of

interconnection capacity, in conjunction with the regulatory

authority or authorities of those Member States with which

interconnection exists<

(ii) any mechanisms to deal with congested capacity within

the national gas system<

(iii) the time taken by operators to make connections and

repairs<

(iv) the publication of appropriate information by system

operators concerning interconnectors, grid usage and capacity

allocation to interested parties, taking into account the need to treat

non-aggregated information as commercially confidential<

(v) the effective unbundling of accounts, to ensure there

are no cross-subsidies between transmission, distribution, storage,

LNG and supply activities<

(vi) the access conditions to storage, linepack and to other

ancillary services as provided for in Regulation 12(1)<

(vii) the extent to which undertakings fulfil their tasks in

accordance with Regulation 11< and

(viii) the level of transparency and competition.

The Authority shall publish an annual report on the outcome of its

monitoring activities.

(2) The Authority shall be responsible for fixing or

approving prior to their entry into force, at least the methodologies used

to calculate or establish the terms and conditions for>

(i) connection and access to national networks, including

transmission and distribution tariffs. These tariffs, or

methodologies, shall allow the necessary investments in the

networks to be carried out in a manner allowing these investments

to ensure the viability of the networks<

(ii) the provision of balancing services.

(3) Notwithstanding sub-regulation (2), the Authority shall

submit, for formal decision, to the Minister the tariffs or at least the

methodologies referred to in that sub-regulation as well as the

modifications in sub-regulation (4). The Minister shall, in such a case,

have the power to either approve or reject a draft decision submitted by

the Authority, and may refer such tariffs back to the Authority for

revision. The Authority shall be bound by any directions given by the

Minister.

These tariffs or the methodologies or modifications thereto shall

be published together with the decision on formal adoption. Any formal

rejection of a draft decision shall also be published, including its

justification.

(4) The Authority may require transmission, LNG and

distribution system operators, if necessary, to modify the terms and

conditions, including tariffs and methodologies referred to in sub-

regulations (1), (2) and (3), to ensure that they are proportionate and

applied in a non-discriminatory manner.

(5) Any party having a complaint against a transmission,

LNG or distribution system operator with respect to the issues mentioned

in sub-regulations (1), (2) and (4) and in regulation 3(h) may refer the

complaint to the Authority which, acting as dispute settlement authority,

shall issue a decision within two months after receipt of the complaint.

This period may be extended by two months where additional

information is sought by the Authority. This period may be further

extended with the agreement of the complainant. Such a decision shall

have binding effect unless and until overruled on appeal.

(6) Any party to whom a decision of the Authority relates

and who has a right to complain from a decision on methodologies

taken pursuant to sub-regulations (2), (3) or (4) or, where the Authority

has a duty to consult, concerning the proposed methodologies, may,

not later than two months from the date of publication of the decision

or of the proposal for a decision, submit a request to the Authority in

writing to revise such a proposal or decision. Such a complaint shall

not have suspensive effect.

(7) The Authority shall contribute to the development of

the internal market and of a level playing field by cooperating with

regulatory authorities in other Member States and with the Commission

in a transparent manner.

(8) The Authority shall monitor, in particular, the balance

between supply and demand on the national market, the level of expected

future demand and available supplies, envisaged additional capacity

being planned or under construction, and the quality and level of

maintenance of the networks, as well as measures to cover peak demand

and to deal with shortfalls of one or more suppliers. The Authority

shall publish, by the 31st July of each year at the latest a report outlining

the findings resulting from the monitoring of these issues, as well as

any measures taken or envisaged to address them and shall forward this

report to the Commission forthwith.

(9) In the event of a sudden crisis in the energy market or

where the physical safety or security of persons, apparatus or installations

or system integrity are threatened, the Authority may be instructed by

the Minister to temporarily take the necessary safeguard measures which

shall cause the least possible disturbance to the functioning of the internal

market and shall not be wider in scope than is strictly necessary to remedy

the sudden difficulties which have arisen.

(10) The Authority shall, insofar as necessary to carry out

the functions assigned to it by these regulations, have right of access to

the accounts of natural gas undertakings. The Authority shall preserve

the confidentiality of commercially sensitive information.

(1) Where the Authority becomes aware, whether through

carrying out an investigation or otherwise, that any person subject to

these regulations has contravened any of the provisions contained

therein, it shall issue a compliance order to the person concerned,

ordering him to comply immediately with the provisions of the said

regulations.

(2) Any person who fails to abide by the provisions of a

compliance order issued by the Authority shall, without prejudice to

any other liability under these regulations, the Act or any other law, be

guilty of an offence and be liable, on conviction, to a fine (multa) of not

less than one hundred liri and not more than one thousand liri for each

day during which the offence subsists>

Provided that such aggregate fines (multa) shall, not exceed the

amount of ten thousand liri.

(1) Any undertaking who contravenes any of the provisions

of these regulations or of a licence or approval issued thereunder, shall

be guilty of an offence and shall, on conviction, be liable to a fine (multa)

of not more than ten thousand liri.

(2) Any person who, when information with respect to these

regulations is requested by the Authority, knowingly or recklessly>

(a)

gives any false, inaccurate or misleading information<

or

(b) supplies incomplete information< or

(c) fails without reasonable cause to supply information

requested within the time given< or

(d) prevents or hinders any investigation< or

(e) produces or furnishes, or causes or knowingly allows to

be produced or furnished, any document or information which he

knows to be false in any material respect,

shall be guilty of an offence and shall, on conviction, be liable to a fine

(multa) of not less than one hundred liri and not more than one thousand

liri.

(3) Without prejudice to sub-regulations (1) and (2) of this

regulation, where any person fails to comply with the provisions of

these regulations for a period exceeding six months, the Authority may

revoke his or her licence.

(1) The Gas Transit (Grid Requirements) Regulations, 2003 Repeals L.N. 13 of

2003 and L.N. 238

shall be repealed with effect from the 1st July, 2004, without prejudice of 2002.

to contracts concluded pursuant to the said regulations, which shall

continue to be valid and to be implemented under the terms of the said

Directive.

(2) The Natural Gas (Marketing) Regulations, 2002 shall

be repealed with effect from the 1st July, 2004.