text: Commission's Interpretative Note 'The Unbundling Regime', 2010.

identifier: ACER Opinion No 03/2026

title: ACER Opinion 03-2026 on the certification of Gaz-System as a hydrogen transmission network operator

text: No 03/2026

text: OPINION

text: 2024/1789 on the draft decision of the Polish Energy Regulatory Authority regarding the certification of OGP GAZ-SYSTEM S.A. as a hydrogen transmission network operator

text: 24 February 2026

text: A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: Executive summary

text: Purpose and scope of the Opinion

text: The purpose of this Opinion is to assist the European Commission in its assessment of the draft decision notified by the Polish Energy Regulatory Authority (URE) concerning the certification of the hydrogen transmission network operator GAZ-SYSTEM in accordance with Article 68(1) and

text: Article 60 of Directive (EU) 2024/1788

text: and

text: Article 14(1) of Regulation (EU) 2024/1789

text: This Opinion is limited to assessing whether the draft decision complies with the requirements on ownership unbundling laid down in

text: Directive (EU) 2024/1788

text: . The scope of this Opinion does not cover the decision adopted by URE granting GAZ-SYSTEM a derogation from horizontal unbundling pursuant to

text: Article 69(2) of Directive (EU) 2024/1788

text: Key remarks by ACER

text: ACER has the following observations related to the unbundling requirements for hydrogen transmission network operators with regard to GAZ-SYSTEM:

text: • The Government Plenipotentiary’s reliance on the Ministry for Energy’s administrative and budgetary resources may create a context in which at least indirect influence by the Ministry or Minister for Energy cannot be entirely excluded. However, currently this is unlikely to affect the fulfilment of the requirements under

text: Article 60(5)

text: , since, at present, the Minister for Energy does not exercise any rights of the State Treasury with regard to companies trading in, or manufacturing, or generating (producing) gaseous fuels, hydrogen or electricity.

text: • The Minister of Assets’ special oversight powers over GAZ-SYSTEM could warrant careful attention in terms of GAZ-SYSTEM’s Management Board’s autonomy.

text: • In addition to GAZ-SYSTEM, the Government Plenipotentiary holds shares in other State-owned entities, including PEJ. PEJ’s potential involvement in the future operation of a nuclear power plant could affect compliance with Articles 68(1) and 60 of Directive 2024/1788.

text: • ACER supports URE’s intention to request annual declarations of the management board and supervisory board members regarding their compliance with the independence criteria laid down in

text: Article 60

text: (d). This monitoring should, however, also cover compliance with the criteria set out in

text: Article 60

text: (c).

text: • GAZ-SYSTEM remains subject to the obligation of accounting unbundling pursuant to Articles 70 and 75 of Directive 2024/1788. URE should assess, in its final decision, whether compliance with the corresponding requirements is ensured with regard to hydrogen transport activities.

text: Overall conclusion

text: In conclusion, ACER agrees with URE’s assessment that the Government Plenipotentiary and the Minister of Assets constitute two separate and independent public entities that are not under the joint influence of another public authority. ACER nevertheless notes that the points raised above may warrant careful and regular monitoring in practice. Accordingly, based on the information provided, GAZ-SYSTEM appears to meet the requirements of the ownership unbundling model under the Polish legislation transposing Directive 2024/1788 and could therefore be considered eligible for certification.

text: A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: 1. Background

text: 1. On 17 June 2025, the Polish Energy Regulatory Authority, Urząd Regulacji Energetyki (hereafter ‘URE’), received a request from the Warsaw-based energy undertaking operator Operator Gazociągów Przesyłowych GAZ-SYSTEM Spółka Akcyjna (hereafter ‘GAZ-SYSTEM’) for a certification as hydrogen transmission network operator under the ownership unbundling model for hydrogen pursuant to

text: Article 68(1)

text: and

text: Article 60 of Directive (EU) 2024/1788

text: (hereafter ‘Directive 2024/1788’). Together with its request for certification as hydrogen transmission network operator, GAZ-SYSTEM requested a derogation from horizontal unbundling pursuant to Article 69(2) of Directive 2024/1788. By decision of 27 October 2025, URE granted the derogation for the period from 5 August 2026 to 30 June 2039 (hereafter ‘the derogation decision’).

text: 2. On 5 November 2025, the European Commission (hereafter ‘the Commission’) received a notification from URE of a draft decision regarding the certification of GAZ-SYSTEM as hydrogen transmission network operator (hereafter ‘the draft decision’).

text: 3. Pursuant to

text: (hereafter ‘Regulation 2024/1789’) and Article 71(6) of Directive 2024/1788, the Commission is required to examine the notified decision regarding the certification of hydrogen transmission network operators and to deliver an opinion to the relevant national regulatory authority as to its compatibility with Article 68 of Directive 2024/1788. When preparing its opinion, the Commission may request ACER to provide its opinion on the regulatory authority’s decision.

text: 4. On 18 November 2025, ACER received the Commission's request to provide its opinion on the draft decision.

text: 2. ACER competence

text: 5. In accordance with

text: Article 14(1)

text: second subparagraph of Regulation 2024/1789, ACER is competent to provide its opinion on URE’s draft decision on the certification of the hydrogen transmission network operator GAZ-SYSTEM, following the Commission’s request.

text: 3. Procedure

text: 6. After ACER received the Commission’s request to provide its opinion on 18 November 2025, ACER met with the Commission on 3 December 2025 to discuss the procedure and the relevant deadlines.

text: 7. On 17 December 2025, ACER held a meeting with URE to obtain clarifications on URE’s assessment for the purposes of the procedure.

text: 4. Summary of the draft decision

text: 8. The draft decision provides for granting GAZ-SYSTEM the certification as hydrogen transmission network operator. URE concludes that GAZ-SYSTEM has demonstrated compliance with the ownership unbundling requirements under Polish legislation implementing Directive 2024/1788 and is therefore eligible for certification. This conclusion is essentially based on the following considerations: A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: 4.1. About GAZ-SYSTEM

text: 9. GAZ-SYSTEM is a public limited company. It is designated as a gas transmission system operator in the territory of Poland until 6 December 2068 ; it is the sole operator and owner of the national gas transmission system. GAZ-SYSTEM holds a licence for the transmission of gaseous fuels until 6 December 2068 (hereafter ‘GFT Licence’). The GFT Licence covers the economic activity of the transmission of gaseous fuels through transmission networks within the territory of Poland.

text: 10. GAZ-SYSTEM also holds a licence for liquefaction of natural gas and regasification of liquefied natural gas in liquefied natural gas installations, which expires on 31 December 2030 (hereafter ‘LNG License’). The LNG Licence covers economic activities consisting of the liquefaction of natural gas and the regasification of liquefied natural gas in LNG installations located in Świnoujście. GAZ-SYSTEM is designated as a natural gas liquefaction system operator until 31 December 2030.

text: 11. With its request for certification as hydrogen transmission network operator and request for derogation from horizontal unbundling, GAZ-SYSTEM by the operation of law became the only hydrogen transmission network operator in Poland for the period until 4 August 2026.

text: 4.2. Exercise of shareholder rights within the state

text: 12. 100 % of the shares in GAZ-SYSTEM are owned by the State Treasury. In principle, the rights attached to shares held by the State Treasury are exercised by the Minister for State Assets. The Minister for State Assets exercises the State Treasury’s rights with regard to the largest companies trading in, or manufacturing, or generating (producing) gaseous fuels, hydrogen or electricity (such as: TAURON Polska Energia S.A. and TAURON Wytwarzanie S.A., ORLEN S.A., ENEA S.A. and PGE Polska Grupa Energetyczna S.A).

text: 13. However, for GAZ-SYSTEM, as for certain other companies, the rights attached to shares held by the State Treasury are exercised not by the Minister for State Assets but by the Government Plenipotentiary, as provided for in Article 10(1) of the Polish Cabinet Act (hereafter ‘Cabinet Act’) and specified for GAZ-SYSTEM in

text: Article 12

text: a(2) of the of the Polish Energy Law of 10 April 1997 (hereafter ‘Energy Law’). The function of the Government Plenipotentiary may be performed, in particular, by a secretary of state or an undersecretary of state. It is appointed and dismissed by the Prime Minister and operates within the Ministry of Energy, uses its administrative support and is financed from the budget managed by the Minister for Energy.

text: 14. URE considers that the Government Plenipotentiary and the Minister for State Assets constitute two separate and independent public entities that are not under the joint influence of another public authority. They have independent decision-making powers in the areas for which they are responsible and are independent from other entities in this respect. This assessment is essentially based on the following considerations:

text: 15. The competences of ministers, including the Minister for State Assets, are established by an attribution regulation issued by the Prime Minister under Article 33 of the Cabinet Act. Under

text: Article 34

text: a of the Cabinet Act, ministers may issue binding guidance and instructions only to heads of authorities and organisational units subordinate to or supervised by them. Ministers may not encroach upon the competences of other ministers or undertake actions that breach the statutory division of responsibilities. Each minister is responsible for the implementation of policies within the scope of their assigned government administration department. The Prime Minister’s remit is defined by Article 148 of the Polish Constitution, according to which the Prime Minister shall, inter alia, “coordinate and control the work of members of the Cabinet”.

text: 16. URE emphasizes that the position of the Prime Minister is determined “by competences which enable him or her to shape the works of the Council of Ministers, while at the same time giving independence to both the Council itself and to its specific members with regard to substantive A C E R O P I N I O N N O 0 3 / 2 0 2 6 activity”. URE points out that the control exercised by the Prime Minister is coordinative in nature and is exercised for the sole purpose of guiding the actions of Cabinet members. The Prime Minister has no right to issue binding instructions to ministers regarding actions they are to carry out within the areas of government administration attributed to them. Accordingly, URE concludes that ministers, including the Minister for State Assets, act independently within the competences assigned to them, and that the Prime Minister’s authority is limited to coordinative oversight without the power to issue binding instructions regarding these competences.

text: 17. URE further points out that although the Government Plenipotentiary is positioned within the organizational structure of the Ministry of Energy and may be a secretary or undersecretary of state, the exercise of the rights attached to State Treasury shares under

text: Article 12

text: a Energy Law does not fall within the scope of tasks delegated by the Minister for Energy. Nor does any other provision confer supervisory or instructive powers on the Minister for Energy or the Minister for State Assets in this respect. Accordingly, when exercising State Treasury shareholder rights, including in relation to GAZ-SYSTEM, the Government Plenipotentiary acts autonomously and is not subject to instructions from other ministers.

text: 18. As indicated by URE, the fact that the Minister for State Assets, the Minister for Energy and the Government Plenipotentiary participate in, or are institutionally linked to, the Cabinet does not create any dependencies in the private-law sphere. The Cabinet operates exclusively within the sphere of public authority and has no competence to influence the representation of the State Treasury in private-law relations, which is governed solely by statutory mandates as explained above.

text: 19. Pursuant to the Act of 18 March 2010 on specific powers of the Minister for State Assets and the exercise thereof in certain capital companies or corporate groups active in the electricity, oil and gaseous fuels sectors (hereafter ‘Specific Powers Act’), the Minister for State Assets has special oversight powers over companies operating critical infrastructure, including gas transmission networks and LNG terminals, and may object, by administrative decision, to resolutions or actions of the Management Board that could threaten the functioning, continuity or integrity of such infrastructure, in particular those relating to: • changes in the purpose or decommissioning of assets, • changes in the company’s objectives, sale or lease of the enterprise, • adoption of investment or strategic plans, or • relocation of the registered office abroad.

text: 20. While the Minister for State Assets’s objection is pending, the contested resolution is not enforceable and any legal act by the management board has no legal effect.

text: 21. URE emphasises the special nature of this prerogative. The Minister for State Assets is entitled to lodge an objection only in strictly defined cases, where there is a real threat to the functioning, continuity of operation, or integrity of critical infrastructure, and where such objection is justified by reasons of national energy security and by the special importance of critical infrastructure for that security. Therefore, URE concludes that the limited objection powers of the Minister for State Assets under the Specific Powers Act do not undermine GAZ-SYSTEM’s independence as a transmission system operator and do not constitute the types of influence set out in

text: Article 60(1)

text: (b) to (d) of the Directive 2024/1788, as they do not amount to shareholder rights or decisive influence.

text: 22. Beyond these powers, no public or private entity other than the Government Plenipotentiary exercises decisive influence over GAZ-SYSTEM, and GAZ-SYSTEM itself neither holds nor exercises decisive influence over any energy undertaking active in the production, generation, manufacturing or trade of gaseous fuels, electricity or hydrogen. A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: 4.3. Shareholder rights in other state-owned entities

text: 23. In addition to GAZ-SYSTEM, the Government Plenipotentiary exercises rights attached to shares in other State-owned entities, namely • PSE S.A.: operates as an electricity transmission system operator, responsible for the secure operation, maintenance, development, and balancing of the national electricity transmission system. • PERN S.A. and its subsidiaries, including Naftoport, Naftoserwis, Naftor, Siarkopol, and Sarmatia: operate in oil and liquid fuels logistics, providing transport, storage, transshipment, and technical services, but are not engaged in the production, generation, or trade of gaseous fuels, electricity, or hydrogen. • PEJ: a single-member company created to implement Poland’s nuclear energy program, is primarily engaged in project development and investment activities for nuclear power plants, without undertaking electricity generation or trading.

text: 24. URE considers that the owners’ supervision exercised by the Government Plenipotentiary over these entities does not infringe Article 60 of Directive 2024/1788. Those entities do not engage in the production of gaseous fuels, trade in those fuels or the production of electricity or trade in that energy, or the production of hydrogen or trade in hydrogen.

text: 25. In turn, the rights deriving from the State Treasury’s property rights in relation to energy companies involved in the production, production or trading of gaseous fuels or the generation or trading of electricity are exercised by the Minister for State Assets.

text: 4.4. GAZ-SYSTEM’s governance

text: 26. GAZ-SYSTEM’s governance is regulated by the Polish Commercial Companies Code (CCC), which ensures a strict separation between ownership and management. The Management Board, Supervisory Board, and General Meeting have clearly defined roles, and members of the Management and Supervisory Boards are subject to strict independence requirements, with no involvement or influence in other energy undertakings. The State, acting through the Government Plenipotentiary, exercises shareholder rights only in relation to key corporate decisions. GAZ- SYSTEM is solely active as a transmission system operator, holding licenses only for gas transmission and LNG regasification, and is not engaged in energy or hydrogen production or trading.

text: 5. ACER assessment

text: 27. Pursuant to Article 68(1) of the Directive 2024/1788, Member States shall ensure that from 5 August 2026 hydrogen transmission network operators are unbundled in accordance with the rules for natural gas transmission system operators set out in Article 60 of the same Directive.

text: 28. According to

text: Article 60(1)

text: (a) of Directive 2024/1788 Member States shall ensure that each undertaking which owns a transmission system acts as a transmission system operator (hereafter ‘TSO’). A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: 29. GAZ-SYSTEM is designated as a hydrogen transmission network operator; however, it is not yet the owner of a corresponding transmission network.

text: 30. Given the early stage of development of the European hydrogen market, it is necessary that future hydrogen transmission network operators can already be designated and certified in accordance with Article 14 of Regulation 2024/1789, in order to enable them to plan, finance and construct the relevant infrastructure.

text: 31. On that basis, ACER considers that the absence of a corresponding hydrogen transmission network should not, by itself, preclude the certification of GAZ-SYSTEM as a hydrogen transmission network operator, but URE should include details on GAZ-SYSTEM’s plans for the timely development of such a network in its final decision.

text: Article 60(1)

text: (b)(i) of Directive 2024/1788 prohibits the same person(s) from directly or indirectly exercising control over an undertaking performing any of the functions of production or supply, and directly or indirectly exercising control or exercising any right over a TSO or over a transmission system.

text: Article 60(1)

text: (b)(ii) of the Directive 2024/1788 provides for an equivalent rule for the reverse situation of a person exercising control over a TSO, and exercising control or any right over an undertaking performing any of the functions of production or supply. • the power to exercise voting rights; • the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or • the holding of a majority share.

text: 34. According to Article 2(55) of Directive 2024/1788, ‘control’ means any rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by: • ownership or the right to use all or part of the assets of an undertaking; • rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.

text: 35. As examined in the Commission’s Interpretative Note ‘The Unbundling Regime’ of 22 January 2010 the key consideration in this regard is the concept of ‘decisive influence’.

text: Council Regulation (EC) No 139/2004 of 20 January 2004

text: on the control of concentrations between undertakings (hereafter ‘the EC Merger Regulation’) clarifies that decisive influence can arise in particular from: • ownership or the right to use all or part of the assets of an undertaking; or • rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking. A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: 36. The reference to control encompasses both de iure and de facto control and includes both direct and indirect control. Article 3(3) of the EC Merger Regulation clarifies that control is acquired by persons or undertakings which: • are holders of the rights or entitled to rights under the contracts concerned; or • while not being holders of such rights or entitled to rights under such contracts, have the power to exercise the rights deriving therefrom.

text: 37. In accordance with Article 60(5) of Directive 2024/1788, entities owned by a Member State or another public body can ensure compliance with the unbundling requirement by two separate public bodies exercising control over a TSO or over a transmission system on the one hand, and over an undertaking performing any of the functions of production or supply on the other hand.

text: 38. In the present case, 100 % of the shares in GAZ-SYSTEM (as gas and hydrogen TSO) are owned by the State Treasury. The rights attached to these shares are exercised by the Government Plenipotentiary. At the same time, the Minister of Assets is the State authority that exercises the rights of the State Treasury with regard to the largest companies trading in, or manufacturing, or generating (producing) gaseous fuels, hydrogen or electricity.

text: 39. Regarding the competences of the Prime Minister, ACER agrees with URE’s assessment that these are compatible with the independence requirements for TSOs. Ministers, including the Prime Minister, may issue binding instructions only to subordinate bodies and cannot interfere with the competences of other ministers, ensuring a clear separation of responsibilities. The Prime Minister’s role is strictly coordinative, guiding the work of the Cabinet without issuing binding instructions in individual ministerial domains. In particular, he or she neither exercises any rights of the State Treasury with respect to companies trading in, manufacturing, or generating gaseous fuels, hydrogen, or electricity.

text: 40. Regarding the Government Plenipotentiary’s placement within the Ministry of Energy, ACER generally agrees with URE’s assessment that formal legal independence under Article 60 of Directive 2024/1788 is ensured, as the Government Plenipotentiary exercises State Treasury shareholder rights autonomously and cannot receive binding instructions from the Minister for Energy. Nonetheless, ACER would like to note that reliance on the Ministry’s administrative and budgetary resources may, in practice, create a context in which indirect influence cannot be entirely excluded. However, in ACER’s view, this is unlikely to affect the fulfilment of the requirements under

text: Article 60(5)

text: , since, at present, the Minister for Energy – unlike the Minister of Assets – does not exercise any rights of the State Treasury with regard to companies trading in, or manufacturing, or generating (producing) gaseous fuels, hydrogen or electricity.

text: 41. The Minister of Assets holds a narrowly defined objection right over certain Management Board resolutions in companies operating critical infrastructure, including GAZ-SYSTEM. This right applies, for example, in relation to changes in the purpose or decommissioning of assets, changes in the company’s objectives, the sale or lease of the enterprise, adoption of investment or strategic plans, or relocation of the registered office abroad. While this prerogative is narrowly defined – applying only where a resolution could threaten the functioning, continuity, or integrity of such infrastructure – it should be noted that, in exceptional circumstances, the existence of this veto could warrant careful attention in terms of the Management Board’s autonomy. In this context, consideration could be given to entrusting the supervision and exercise of the aforementioned veto rights to a third entity not involved in the State Treasury’s interests in companies trading, producing, or generating gaseous fuels, hydrogen, or electricity.

text: 42. While noting the above, ACER generally agrees with URE’s conclusion that the limited objection powers of the Minister of Assets under the Specific Powers Act do not undermine GAZ- SYSTEM’s independence as a hydrogen transmission network operator and do not constitute the types of influence set out in

text: Article 60(1)

text: (b) of Directive 2024/1788.

text: 43. In addition to GAZ-SYSTEM, the Government Plenipotentiary exercises rights attached to shares in other State-owned entities, inter alia Polskie Elektrownie Jądrowe Sp. z o.o. (hereafter A C E R O P I N I O N N O 0 3 / 2 0 2 6 ‘PEJ’). PEJ is a single-member company created to implement Poland’s nuclear energy program, primarily engaged in project development and investment activities for nuclear power plants, without undertaking electricity generation or trading.

text: 44. Although these activities do not currently conflict with the unbundling requirements, they could, once a nuclear power plant becomes operational, affect compliance with Articles 68(1) and 60 of Directive 2024/1788. ACER therefore notes that it must be ensured that oversight of GAZ- SYSTEM continues to be exercised by a person or entity who does not exercise any control or right over an undertaking performing any of the functions of production or supply.

text: 45. In conclusion, ACER agrees with URE’s assessment that the Government Plenipotentiary and the Minister of Assets constitute two separate and independent public entities that are not under the joint influence of another public authority. ACER nevertheless notes that the points raised above may warrant careful and regular monitoring in practice.

text: 5.1.3. Independence of governance from production and supply companies,

text: Article 60

text: (c)

text: 46. Pursuant to

text: Article 60

text: (c) of Directive 2024/1788, the same person is not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator or a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply.

text: 47. The Government Plenipotentiary is empowered to exercise the functions of the general meeting, and thus to appoint members of the supervisory board. It does not directly or indirectly exercise decisive influence or hold rights in respect of any energy undertaking active in the production, manufacture or trade of gaseous fuels, the generation or trade of electricity, or the production or trade of hydrogen.

text: 48. The same applies to the members of the supervisory board and to the persons empowered to appoint members of the management board. It follows from the supervisory board members’ declarations that none of them exercises decisive influence or rights over such energy undertakings. Furthermore, although members of the management board are empowered to appoint proxies legally representing the company, such appointments require a unanimous resolution, and the management board members have declared that they likewise do not exercise decisive influence or rights over relevant energy undertakings.

text: 49. ACER agrees with URE’s conclusion that neither the persons empowered to appoint members of the supervisory board or management board, nor any other persons legally representing GAZ- SYSTEM, exercise decisive influence over energy undertakings engaged in competitive activities.

text: 5.1.4. Prohibition of dual board memberships,

text: Article 60

text: (d)

text: Article 60

text: (d) of Directive 2024/1788 prohibits the same person from being a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of production or supply and a transmission system operator or a transmission system.

text: 51. To demonstrate compliance with the above criterion, GAZ-SYSTEM has submitted declarations from members of its supervisory and management boards, confirming that none of these individuals holds a position as a member of the management board, a member of the supervisory board, a proxy, or any other body legally representing an energy undertaking active in the production, manufacture, or trade of gaseous fuels, in the generation or trade of electricity, or in the production or trade of hydrogen, and that they do not exercise decisive influence or any of the rights in respect of such an energy undertaking. A C E R O P I N I O N N O 0 3 / 2 0 2 6

text: 52. ACER agrees with URE’s conclusion that the independence criteria laid down in

text: Article 60

text: (d) are also complied with. ACER supports URE’s intention to request annual declarations of the management board and supervisory board members regarding their compliance with the independence criteria laid down in

text: Article 60

text: Article 60

text: (c).

text: 5.2. Horizontal unbundling of hydrogen transmission operators, Article 69 of Directive 1788/2024

text: 53. As noted at the outset, ACER did not review the legality of URE’s decision regarding the derogation from horizontal unbundling pursuant to Article 69(2) of Directive 2024/1788. ACER merely notes that according to Article 69(4) of Directive 2024/1788, at least every seven years after granting a derogation pursuant to

text: Article 69(2)

text: , or upon a reasoned request by the Commission, URE shall publish an assessment of the impact of the derogation on transparency, cross subsidies, network tariffs and cross-border trade.

text: 54. It should also be noted that the derogation, unlike the draft certification decision, is limited in time until 30 June 2039. Upon the expiry of the derogation, an extension thereof may be required. In the absence of such an extension, a reassessment of the certification decision will be necessary in order to determine whether the conditions for GAZ-SYSTEM’s certification continue to be fulfilled.

text: 5.3. Unbundling of accounts for hydrogen network operators, Article 70 of Directive 2024/1788

text: 55. According to Article 70 of Directive 2024/1788, Member States shall ensure that the accounts of hydrogen network operators are kept in accordance with Article 75 of Directive 2024/1788.

text: 56. ACER notes that GAZ-SYSTEM remains subject to the obligation of accounting unbundling pursuant to Articles 70 and 75 of Directive 2024/1788. Incompliance with the requirements of account unbundling may fail to comply with Articles 5 and 17 of Regulation 2024/1789, as it creates risk of cross-subsidisation between the gas and hydrogen transmission networks due to the absence of horizontal unbundling. Separating accounts is necessary to ensure that tariffs reflect the actual costs incurred for the operation of gas and hydrogen networks separately thereby preventing distortions in the pricing of gas and hydrogen, respectively. URE should assess, in its final decision, whether compliance with the corresponding requirements is ensured with regard to hydrogen transport activities.

text: 6. Conclusions

text: 57. The points raised above may warrant careful and regular monitoring in practice. ACER, having regard to these considerations, concludes that GAZ-SYSTEM meets the requirements of the ownership unbundling model under Directive 2024/1788 and is therefore eligible for certification. The considerations set out above, in particular, are summarized as follows:

text: 58. The Government Plenipotentiary’s reliance on the Ministry for Energy’s administrative and budgetary resources may create a context in which at least indirect influence by the Ministry or Minister for Energy cannot be entirely excluded. However, this is unlikely to affect the fulfilment of the requirements under

text: Article 60(5)

text: 59. The Minister of Assets’ special oversight powers over companies operating critical infrastructure, including GAZ-SYSTEM, could warrant careful attention in terms of GAZ-SYSTEM’s A C E R O P I N I O N N O 0 3 / 2 0 2 6 Management Board’s autonomy. Consideration could be given to entrusting the supervision and exercise of these powers to a third entity not involved in the State Treasury’s interests in companies trading, producing, or generating gaseous fuels, hydrogen, or electricity.

text: 60. While PEJ’s current project development activities do not raise unbundling concerns, the future operation of a nuclear power plant could affect compliance with Articles 68(1) and 60 of Directive 2024/1788. It must be ensured that oversight of GAZ-SYSTEM continues to be exercised by a person or entity who does not exercise any control or right over an undertaking performing any of the functions of production or supply.

text: 61. ACER supports URE’s intention to request annual declarations of the management board and supervisory board members regarding their compliance with the independence criteria laid down in

text: Article 60

text: Article 60

text: (c).

text: 62. GAZ-SYSTEM remains subject to the obligation of accounting unbundling pursuant to Articles 70 and 75 of Directive 2024/1788. URE should assess, in its final decision, whether compliance with the corresponding requirements is ensured with regard to hydrogen transport activities. This Opinion is addressed to the European Commission. Done at Ljubljana, on 24 February 2026. — SIGNED — V. ZULEGER, ACER Director ad interim


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text: OJ L158, 14.6.2019, p. 22. 2 OJ L280, 28.10.2017, p.1.

text: Opinion No 04/2020

text: The Ministry of State Assets is an office of government administration providing services to the Minister of State Assets. The Ministry was created by the ordinance of the Council of Ministers of November 19, 2019 amending the ordinance establishing the Ministry of Energy (Journal of Laws item 2290). Cf. https://www.gov.pl/web/aktywa-panstwowe/podstawowe-informacje. 4 https://www.gascade.de/nc/presse/presseinformationen/pressemitteilung/news/konsultation-bidirektionalekapazitaeten-am-grenzuebergangspunkt-deutschneudorf-eugal/

text: Opinion No 04/2020

text: Listed in Annex I. 1 (b) to the SoS Regulation.

text: Opinion No 04/2020

text: Regulation (EU) No 347/2013

text: of the European Parliament and of the Council of 17 April 2013 on guidelines for trans-European energy infrastructure and repealing Decision No

text: and amending Regulations

text: (EC) No 713/2009

text: (EC) No 714/2009

text: and

text: (EC) No 715/2009

text: , OJ L 115, 25.4.2013, p. 39. 7 It does not meet the requirements of the gas CBA methodology pursuant to

text: Article 11 of Regulation (EU) 347/2013

text: currently in force, which is ENTSOG’s CBA methodology 2.0, cf. https://www.entsog.eu/sites/default/files/2019-03/1. ADAPTED_2nd CBA Methodology_Main document_EC APPROVED.pdf. 8 PRISMA. 9 Assessment provided to ACER by the Joint Research Centre (JRC) of the European Commission, report JRC120428.

text: Opinion No 04/2020

text: Figure 1: Illustrative map of the considered region and main IPs

text: Figure 1 uses part of ENTSOG’s map of the European gas transmission network 2019, cf. https://www.entsog.eu/sites/default/files/2020-01/ENTSOG_CAP_2019_A0_1189x841_FULL_401.pdf

text: In particular, by using information provided by JRC in report JRC120428. Scope is in line with the scope indicated in Annex I.1.a to the SoS Regulation, wherein Germany and the Czech Republic are also included along with the countries assessed here. Technical firm capacities considered are the ones reported by ENTSOG for the entire 2019. Technical firm capacities for Deutschneudorf EUGAL - Brandov are as reported for the four associates of EUGAL until 2025. Recent changes in some capacities are also considered. According to information provided by the Ministry of Industry and Trade of the Czech Republic, the EUGAL pipeline is already connected to the Hora Svaté Kateřiny IP between the Czech Republic and Germany, which provides bi-directional capacity. Physically, the distance between the Brandov IP and the Hora Svaté Kateřiny IP is only 9 km, and the two IPs are interconnected with two large diameter, high pressure pipelines (DN 900 and DN 1000). All available capacity at the Deutschneudorf-EUGAL IP, the Brandov IP, and the Hora Svaté Kateřiny IP are offered as the sum of their capacity at the VIP Brandov-GASPOOL- EUGAL. Here and below (including Figures 2, 3, and 4), cf. JRC report JRC120428. Based on ENTSOG Capacity Map, edition of October 2019: https://www.entsog.eu/maps#

text: Opinion No 04/2020

text: Figure 2: Patterns of physical flows associated with the VIP Brandov-GASPOOL- EUGAL in the direction from Germany to the Czech Republic (1 January 2018 – 22 March 2020)

text: 01/01/2018 01/02/2018 01/03/2018 01/04/2018 01/05/2018 01/06/2018 01/07/2018 01/08/2018 01/09/2018 01/10/2018 01/11/2018 01/12/2018 01/01/2019 01/02/2019 01/03/2019 01/04/2019 01/05/2019 01/06/2019 01/07/2019 01/08/2019 01/09/2019 01/10/2019 01/11/2019 01/12/2019 01/01/2020 01/02/2020 01/03/2020 Brandov‐OPAL (DE) (regulated), OPAL Gastransport exit, Physical flow [GWh/day] Brandov‐OPAL (DE) (regulated), LBTG exit, Physical flow [GWh/day] Deutschneudorf EUGAL Brandov, GASCADE Gastransport exit, Physical flow [GWh/day] Deutschneudorf EUGAL Brandov, ONTRAS exit, Physical flow [GWh/day] Deutschneudorf EUGAL Brandov, Gasunie Deutschland exit, Physical flow [GWh/day] Hora Svaté Kateřiny (CZ) / Deutschneudorf (Sayda) (DE), ONTRAS exit, Physical flow [GWh/day] Olbernhau (DE) / Hora Svaté Kateřiny (CZ), GASCADE Gastransport exit, Physical flow [GWh/day] VIP Brandov‐GASPOOL, GASCADE Gastransport exit, Physical flow [GWh/day]

text: * The brown shorter line on top represents an aggregation of flows crossing the border from Germany to the Czech Republic. Based on data from ENTSOG’s Transparency Platform.

text: Cf. Press Release of General Court of the European Union, 10 September 2019 - Judgment in

text: Case T-883/16

text: , Poland v Commission, https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-09/cp190107en.pdf ‘Line fill’ is the volume of gas required to fill an empty pipeline (e.g. a newly constructed one) before the pipeline can be put in operation and deliveries can be made at take-off points.

text: Opinion No 04/2020

text: Figure 3: Physical flow patterns from the Czech Republic to Slovakia

text: 01/01/2018 01/02/2018 01/03/2018 01/04/2018 01/05/2018 01/06/2018 01/07/2018 01/08/2018 01/09/2018 01/10/2018 01/11/2018 01/12/2018 01/01/2019 01/02/2019 01/03/2019 01/04/2019 01/05/2019 01/06/2019 01/07/2019 01/08/2019 01/09/2019 01/10/2019 01/11/2019 01/12/2019 01/01/2020 01/02/2020 01/03/2020 Lanžhot, NET4GAS, s.r.o. exit Lanžhot, eustream entry

text: Figure 4: Physical flow patterns from Ukraine to Slovakia

text: 01/01/2018 01/02/2018 01/03/2018 01/04/2018 01/05/2018 01/06/2018 01/07/2018 01/08/2018 01/09/2018 01/10/2018 01/11/2018 01/12/2018 01/01/2019 01/02/2019 01/03/2019 01/04/2019 01/05/2019 01/06/2019 01/07/2019 01/08/2019 01/09/2019 01/10/2019 01/11/2019 01/12/2019 01/01/2020 01/02/2020 01/03/2020 Uzhgorod (UA) ‐ Velké Kapušany (SK), eustream entry Uzhgorod‐1, Ukrtransgaz exit Uzhgorod‐2, Ukrtransgaz exit Uzhgorod‐3, Ukrtransgaz exit Uzhgorod‐4 Ukrtransgaz exit

text: Opinion No 04/2020

text: Figure 5: Flows from Poland to Germany, Mallnow IP

text: PRISMA. 17 For Figures 5 and 6, cf. JRC report JRC120428, pp. 9-10.

text: Opinion No 04/2020

text: Figure 6: Flows from Germany to Poland, Mallnow IP

text: Opinion No 04/2020

text: Cf. Art. 5(6) of the SoS Regulation. Also cf., for example, Recommendation No 05/2015 of ACER of 18 December 2015, pt. 2.10: https://www.acer.europa.eu/Official_documents/Acts_of_the_Agency/Recommendations/ACER%20Recommen dation%2005-2015.pdf 19 There is no definition of feasibility study under the SoS Regulation. However, the European Commission Guide to Cost-Benefit Analysis from 2014 of Investment Projects provides guidelines on the elements to be included in a feasibility study (cf. Section 2.6, p. 36-37 in https://ec.europa.eu/regional_policy/sources/docgener/studies/pdf/cba_guide.pdf)

text: Opinion No 04/2020

text: In particular, installed compression power, technology choice, and scope of other adaptations of the transmission lines, with quantifications in physical and cost terms. 21 Cf. JRC report JRC120428, p. 13.

text: Opinion No 04/2020

text: Table 1: Infrastructure standard indicator levels (N-1) as published in recent PAPs

text: AT* CZ DE PL SK Date of PAP 2019/08/02 2019/02 2019/06/21 2019 2019/12 Baumgarten Largest SSRP Veľké (GCA, Lanžhot Mallnow infrastructure Włocławek Kapušany WAG, TAG) Unit MNm³/d MSm³/d Mm³/d Mm³/d MSm³/d EPm 163.16 296.8 565.74 59.2 282.1 Pm 3.22 0.5 25.16 5.7 0.2 Sm_100% 672.16 53.5 49.9 Sm_30% 42.04 57.6 526.56 46.7 39.5 LNGm 0 0 0 13.7 0 Im 140.34 146.6 86.01 24.0 181.7 Dmax 52.40 65.0 517.44 91.5 44.4 N-1_100% 227% 118% 339% N-1_30% 130% 321% 199% 111% 316% Note: *Table compiled by JRC based on recent PAPs. For AT, a distinction per facility is available. Cf. JRC report JRC120428, p. 11.

text: Opinion No 04/2020

text: Cf. JRC report JRC120428, p. 13.

text: Opinion No 04/2020

text: https://ec.europa.eu/energy/sites/ener/files/documents/2019.06.21-de-pappraventionsplan_englisch_final_1.pdf. 24 https://ec.europa.eu/energy/sites/ener/files/documents/2019.03.18-pap_czech_rep_en.pdf. 25 https://ec.europa.eu/energy/sites/ener/files/documents/preventive_action_plan_2019_en.pdf.

text: Opinion No 04/2020

identifier: ACER Opinion No 04/2020

title: ACER Opinion 04-2020 on Reverse flow DE-CZ

text: PUBLIC

text: OPINION No 04/2020 OF THE EUROPEAN UNION AGENCY FOR THE COOPERATION OF ENERGY REGULATORS of 8 May 2020 on the elements of the coordinated decision on the request for exemption from the obligation to enable permanent physical bi-directional capacity at the "Deutschneudorf EUGAL" cross-border interconnection point from Germany to the Czech Republic

type: rubrik

text: THE EUROPEAN UNION AGENCY FOR THE COOPERATION OF ENERGY REGULATORS,

text: Having regard to

text: Regulation (EU) 2019/942

text: of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (‘ACER’) , and, in particular,

text: Article 9(4)

text: thereof,

text: Having regard to

text: Regulation (EU) 2017/1938

text: of the European Parliament and of the Council of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing

text: Regulation (EU) No 994/2010

text: (‘SoS Regulation’), and, in particular,

text: Article 5(4)

text: and (5) and point 8 of Annex III thereof,

text: Having regard to the consultation with the national regulatory authorities concerned, the competent authorities concerned and the competent authorities,

text: Having regard to the information provided by the competent authorities concerned and the transmission system operators concerned,

text: Whereas:

text: 1. INTRODUCTION

text: (1) On 5 February 2020, ACER received from Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (‘Bundesnetzagentur’) Decision Ref 609-18- 64-Reverse Flow Germany/Czechia (sic) (‘the Decision’) of the same day. The Decision is on the request for exemption (‘the request’) from the obligation to enable permanent

text: physical bi-directional capacity (‘bi-directional capacity’) at the Deutschneudorf- EUGAL cross-border interconnection point (‘Deutschneudorf-EUGAL (DE-CZ) IP’) in accordance with

text: Article 5(4)

text: , first sub-paragraph, and point 2 of Annex III SoS Regulation. The request was submitted on 26 July 2019 by Gascade Gastransport GmbH (‘Gascade’).

text: (2) The Decision, coordinated with the Ministry of Industry and Trade of the Czech Republic, grants an exemption from the obligation to enable bi-directional capacity at the Deutschneudorf-EUGAL (DE-CZ) IP, for a period of four years from 5 February 2020 onwards.

text: (3) On 10 February 2020, Bundesnetzagentur informed ACER that it had forwarded the Decision also to the German Ministry of Trade and Energy and to the Polish Ministry of State Assets .

text: (4) On 5 March 2020, ACER published on its website a “Notice on ACER’s pending Opinion on the Decision to exempt the Deutschneudorf-EUGAL (DE-CZ) Interconnection Point from the obligation to enable permanent physical bi-directional capacity”. ACER invited third parties to provide any comments and observations they may have on this subject matter to ACER by 27 March 2020. By that date, no comments or observations were received.

text: 2. SCOPE OF THE OPINION

text: (5) ACER shall deliver an opinion on the elements of the Decision taking into account the requirements of the SoS Regulation, in particular

text: Article 5

text: and Annex III SoS Regulation, including any possible objection received pursuant to point 7 of Annex III SoS Regulation.

text: 3. OBJECTIONS RECEIVED AND OTHER RELEVANT DOCUMENTS

text: (6) By 5 April 2020, i.e. within 2 months of the receipt of the coordinated Decision, the Competent Authorities did not submit objections.

text: 4. ASSESSMENT OF THE PROCEDURE

text: (7) On 3 July 2019, Gascade, in line with point 2 of Annex III SoS Regulation, announced on its website its intention to submit a request for exemption from the obligation to enable bi-directional capacity, and invited responses to the consultation until 10 July

text: 2019, i.e. within a week. On 5 August 2019, Bundesnetzagentur communicated the request to ACER.

text: (8) Only the Polish TSO, Gaz-System S.A. (‘Gaz-System’), responded to the consultation by a letter dated 20 July 2019. Gaz-System expressed the view that the conditions required by the SoS Regulation for granting an exemption are not met. In particular, Gaz- System referred to Recital 28 of SoS Regulation, which posits that the overall objective of the SoS Regulation is to have a growing bi-directional capacity and keep onedirectional capacity in future cross-border projects to a minimum. Gaz-System took the view that enabling bidirectional capacity should be seen from a broader perspective and should include in the cost-benefit analysis (‘CBA’) the whole transportation corridor. Gaz-System argued that the granting of an exemption would perpetuate liquidity differences between Western and Eastern gas wholesale markets. Moreover, Gaz-System expressed concerns regarding a potential worsening of security of gas supply in the whole region, including Poland, if the flow of gas from Russia to Germany via Poland, through the Yamal pipeline, were to be interrupted and a supply crisis were to occur in the northern part of Germany due to such interruption.

text: (9) Contrary to the views of Gaz-System, Gascade argued that the costs caused by a reverse flow project would exceed by far the expected benefit for the security of gas supply and concluded that the prerequisites for granting an exemption as provided by

text: Article 5(4)

text: (b) SoS Regulation are met. Accordingly, Gascade argued in the request that security of supply will not be considerably improved in any Member State or in any region by expanding the capacity from the Czech Republic to Germany through the Deutschneudorf-EUGAL (DE-CZ) IP. This conclusion was, in their view, supported by the fact that market demand for additional transport capacities from the Czech Republic to Germany was lacking at the time of the request and similarly was not expected to materialise in the foreseeable future.

text: (10) With respect to the consultation, ACER is of the opinion that Gascade, in addition to posting a notice about the consultation on its website, should have invited to the consultation individually at least the TSOs from the Member States listed in the Eastern Gas Supply risk group . ACER considers the consultation period of one week too short to ensure sufficient opportunity for participation.

text: 5. ASSESSMENT OF THE ELEMENTS OF THE DECISION

text: (11) Gascade’s request includes a succinct argumentation dealing with the elements set out in

text: Article 5(5)

text: SoS Regulation, which are also described in the Decision.

text: (12) The Decision grants an exemption from the obligation to enable or enhance bidirectional capacity at the Deutschneudorf-EUGAL (DE-CZ) IP for a duration of four years

text: following the analysis of the conditions foreseen in

text: Article 5

text: , paragraph (4) and (5), and Annex III SoS Regulation.

text: (13) Bundesnetzagentur includes in the Decision the relevant facts, background and main steps of the procedure, and the legal basis of the request leading to the Decision.

text: (14) Bundesnetzagentur further assesses the substantive conditions contained in the request and essential for granting an exemption in line with

text: Article 5(5)

text: SoS Regulation.

text: CBA prepared on the basis of the methodology pursuant to

text: Article 11 of Regulation (EU) No 347/2013

text: (16) ACER considers that there is no sufficient evidence that the CBA included in the request follows sufficiently the CBA methodology pursuant to

text: . The CBA submitted by Gascade is a summary of five pages covering the elements set out in Article 5(5) of the SoS Regulation.

text: Assessment of market demand

text: (17) Bundesnetzagentur concludes that the applicants have shown in an objective and comprehensible way that shippers do not need any additional bi-directional capacity in the relevant region. In particular, Bundesnetzagentur points out that, according to the data available on the relevant capacity-booking platform’s portal, in the past four years, (i) demand for yearly capacity from the Czech Republic to Germany did not materialise, (ii) the bookings of capacity products that did materialise, concerned shorter durations (quarterly, monthly, daily, within-day) and occurred sporadically.

text: (18) ACER assessed the data available about the patterns of gas transportation capacity bookings and actual physical flows by market participants over the period from 1 January 2018 to 22 March 2020, for all capacities and flows for all interconnection points between

text: Germany, the Czech Republic, Poland, Slovakia, and Austria, as well as flows to and from neighbouring countries to these ones, such as Ukraine, Hungary, and Slovenia.

text: (19) ACER notes that the virtual interconnection point (‘VIP’) Brandov-GASPOOL- EUGAL is versatile , as it allows redirecting flows in multiple ways to destinations in many countries included in Annex 1.1.a and 1.1.b of the SoS Regulation (cf. Figure 1). Over the period between 1 January 2018 and 22 March 2020, the capacity bookings and, particularly, as reported below in Figure 2, the physical flows have taken place, for the major part, in the direction from Germany to the Czech Republic. Flows in the opposite direction have been significantly smaller.

text: (20) Changes in patterns of physical flows can clearly be observed after the re-establishment

text: of the cap on OPAL (flow drop in September 2019). ACER also notes that flows have

text: clearly increased after the line fill of EUGAL was completed by mid-December 2019, and then again from 1 January 2020 (cf. green line in Figure 2), thus bringing the overall flows in early 2020 to a level exceeding the average flow levels observed in 2019. Due to this pattern of flow via EUGAL, as reported in Figure 3 below, physical flows from the Czech Republic to Slovakia have re-started on 1 January 2020. ACER notes that, in general, the start of EUGAL has had the effect of increasing flows downstream to Austria, Hungary, Italy, and Slovenia. These changes in flow patterns may compensate

text: the drop in physical flows from Ukraine to Slovakia that has taken place as of 1 January

text: 2020 (cf. Figure 4).

text: (21) Regarding reverse flows across the border between Germany and Poland, ACER notes that reverse flow from Germany to Poland has been employed only twice over the period from 1 January 2018 to 22 March 2020.

text: (22) ACER furthermore concurs with the view that there has been no demand for yearly capacity from the Czech Republic to Germany on the European gas transport capacity market. This conclusion is supported not only by the data available on the relevant booking platform , but also by the ‘more capacity process’ (sic, i.e. incremental capacity process) for the year 2015 and by the most recent incremental capacity processes covering the years 2017-2019 and 2019-2021.

text: (23) Based on the foregoing, and in particular having regard to the insufficient evidence of the need of reverse flow from the Czech Republic to Germany resulting from the assessment of the data available as indicated above, ACER considers that the Decision correctly concluded that sufficient unused entry capacity exists from the Czech Republic to Germany, both physically (flows) and commercially (capacity).

text: (24) In addition, contrary to Gaz-System’s view according to which the exemption would entail a potential worsening of the security of gas supply in the whole region, including Poland, as indicated above at (8), ACER concurs with Bundenetzagentur’s view that it is possible to supply Poland from Germany on a firm basis using the Mallnow cross-border IP. The latter IP in fact has available capacity (cf. Figures 5 and 6 below) .

text: (25) In addition, the Brandov-Gaspool VIP between the Czech Republic and Germany (GASPOOL market area) already offers bundled capacity at interconnections points adjacent to the Deutschneudorf-EUGAL (DE-CZ) IP. Consequently, regarding security of gas supply, ACER considers that, contrary to Gaz-System’s view, Poland would not be affected if the flow of gas from Russia to Germany via Poland via the Yamal pipeline were to be interrupted and a supply crisis were to occur in Northern Germany due to the interruption.

text: Projections for demand and supply

text: (26) ACER concurs with Bundesnetzagentur’s statement that neither the current market situation nor long-term forecasts show at the time of the submission of the request a need to increase the capacity from the Czech Republic to the GASPOOL market area in Germany. ACER supports Bundesnetzagentur’s view that this consideration also applies specifically to the Deutschneudorf-EUGAL (DE-CZ) IP.

text: Possible economic impact on existing infrastructure

text: (27) Bundesnetzagentur is of the view that the request correctly indicated that, due to the lack of demand and revenues from capacity bookings, the costs of the project to enable bidirectional capacity would be borne by all network users, leading to a possible increase of transmission tariffs.

text: (28) In this regard, ACER considers that the efficiently incurred costs of a project should be taken into account via tariffs.

text: Results of the feasibility study

text: (29) ACER notes that the request did not contain a comprehensive feasibility study, and that the failure to meet this requirement was not rectified in the course of the procedure.

text: (30) Bundesnetzagentur is of the view that the expenses and the time involved in conducting such a study would have been disproportionate in light of the clear lack of demand for reverse flow.

text: (31) ACER is of the opinion that the lack of demand cannot relieve transmission system operators from the obligation to prepare and present the results of a feasibility study as a part of a submission of a request for exemption, as this obligation constitutes an essential requirement pursuant to

text: Article 5(5)

text: SoS Regulation.

text: (32) ACER furthermore notes that a feasibility study covers, as a rule, techno-economic elements which provide essential information about the basic design parameters of the main facilities, the associated cost estimates, and the possible implementation schedule of a potential reverse flow project proposal, even when the study concludes that the project is not feasible. The feasibility study could have therefore provided information relevant for the purpose of deciding upon the request.

text: Costs of implementing bi-directional capacity

text: (33) ACER notes that Bundesnetzagentur deemed that the request contained plausible estimates of the costs of enabling bi-directional capacity. The cost estimates are associated with (i) the need to build an additional compressor station and (ii) the relevant operating expenses. Bundesnetzagentur states that costs are in line with those used for comparable measures in recent National Development Plans.

text: (34) ACER notes that a proper assessment of the costs to enable bi-directional capacity requires knowledge about (i) the estimated compressor power and technology solutions needed to enable physical reverse flows at the interconnection point and (ii) other major infrastructure elements which would be required to enable bi-directional capacity.

text: (35) The request, the Decision, and the additional information provided within the context of the procedure before ACER do not include sufficient information about the main technical features of a potential reverse flow project for enabling permanent bidirectional capacities at the Deutschneudorf-EUGAL (DE-CZ) IP. The absence of this information does not allow ACER to properly evaluate the costs associated with potentially implementing bi-directional capacity at the Deutschneudorf-EUGAL (DE- CZ) IP, should a new compression station and other associated infrastructure be required.

text: (36) ACER also notes that the Decision does not indicate whether the possibility to flow gas via EUGAL from the Czech Republic to Germany without new compressor station (‘CS’) has been studied. The Deutschneudorf receiving station, according to EUGAL’s webpage, is already adapted to get flows from the Czech network. Pressure in the Czech network could be used to flow gas to Germany, should a sufficient pressure differential be feasible. Should the pipelines arriving at Hora Sv. Kateřiny be running at pressures around 70 bar, moderate gas flows to Germany via EUGAL are likely to be feasible, possibly up to 50% of the pipeline’s design flow, and the pressure drop until CS Radeland 2 would be fairly small. In case CS Radeland 2 is equipped with reverse flow capabilities, flowing gas into the JAGAL-YAMAL system or FGL 306 would probably be feasible as well. ACER notes that the verification of these options could have been part of a feasibility study for enabling permanent bi-directional capacities at the Deutschneudorf- EUGAL (DE-CZ) IP. However, as such study has not been performed, the various options for flowing gas from the Czech Republic to Germany and the cost associated with these options has not been properly assessed for the purpose of the Decision.

text: Benefits for the security of gas supply

text: (37) The Decision confirms that the calculations contained in the request with regard to the infrastructure standard (N-1) have been performed in accordance with the SoS Regulation.

text: (38) In particular, the Decision notes that the exact calculation of the N-1 formula for the national risk assessment was carried out by using the criteria set out in Annex II SoS Regulation. In addition, the Decision reports that the latest edition of the German national risk assessment (2018) confirms that if the largest single entry point to Germany (the Mallnow cross-border interconnection between Germany and Poland) were to be disrupted, there would still be sufficient transport capacity to satisfy a day of exceptionally high gas demand, as specified in the SoS Regulation. In particular, the Decision highlights that the indicator of the N-1 standard in Germany scores at least 198%, well over the minimum requirement of 100% for the N-1 indicator set out in the SoS Regulation.

text: (39) ACER assessed the level of the N-1 indicator as available in recent (as of 2019) published national Preventive Action Plans (‘PAPs’) of Austria, the Czech Republic, Germany, Poland, and Slovakia (cf. Table 1). ACER notes that in all of these Member States the N- 1 indicator stands at a level well over the minimum required by the SoS Regulation.

text: (40) In light of the above, ACER considers that the Decision concludes, on the basis of sufficient evidence, that further entry capacity from the Czech Republic to Germany is unnecessary for the purpose of ensuring a sufficient level of security of gas supply.

text: Common risk assessment

text: (41) The Decision indicates that Gascade used the results of the common risk assessment in accordance with Article 7(2) of the SoS Regulation of the Eastern gas supply risk group, Belarus (cf. Annex 1.1.b of the SoS Regulation). The assessment was led by Poland and included Germany and the Czech Republic, as well as other Member States in accordance with Annex I.1.b of the SoS Regulation. ACER notes that all ten scenarios compiled to assess the security of supply in the region in that common risk assessment found that it would not be necessary to use significant capacity from the Czech Republic to Germany and from Germany to Poland to ensure the required level of security of gas supply. The Decision also reports that an assessment of a disruption at the Kondratki entry point from Belarus to Poland provides levels for the N-1 indicator over the minimum requirement pursuant to the SoS Regulation.

text: (42) Furthermore, ACER notes that even in the case of most severe disruption of gas supply from Russia to Poland, and even without EUGAL, the German network should be capable to provide considerable support to Poland in case of need, for example via the

text: STEGAL-JAGAL route and underground gas facilities nearby, or via the NEL-OPAL route.

text: (43) In light of the above, ACER considers that the Decision relies on reasonably certain results of the common risk assessment conducted in 2018 in accordance with

text: Article 7(2)

text: SoS Regulation by the Eastern gas supply risk group.

text: Duration of the exemption

text: (44) The Decision grants an exemption for a period of four years from the date of its adoption. The duration of the exemption is based on (i) the lack of demand for more capacity from the Czech Republic to Germany at the time of the Decision, and (ii) a forecast of absence of any such demand in the short and medium term. The Decision further refers to the future incremental capacity process which will test the possible need of capacity in the future, as well as to the continuous monitoring of security of supply situation, and aims to revise the exemption once it expires in 2024.

text: (45) ACER notes that, given the duration of the exemption and the lengthy lead time for implementing actual physical capacity projects involving additional major infrastructure (in this instance, compression power and associated network adaptations in Germany), the availability of bi-directional capacity at the Deutschneudorf-EUGAL (DE-CZ) IP may materialize at the earliest in 2025.

text: (46) ACER is of the view that the demand and risk patterns could be different in the short to medium term (within the validity of the exemption) and in the longer term, beyond 2025. As a result, bi-directional capacity at the Deutschneudorf-EUGAL (DE-CZ) IP will not be available at least until 2025, even if market demand or security of supply considerations would materially change in the meantime.

text: (47) In light of the above, ACER considers advisable that the level of adequacy of gas security of supply standards and potential market demand for reverse flow capacity is closely monitored by the competent authorities in the future, with a focus on the period of time from two years as of the adoption of the Decision and until the end of the duration of the exemption,

text: HAS ADOPTED THIS OPINION:

text: 1. The Decision fulfils the requirements of the SoS Regulation applicable to the elements of decisions on requests for exemption from the obligation to enable permanent physical bi-directional capacity. However, it is based on a request for an exemption that does not include:

text: a. a feasibility study;

text: c. a consultation process fully enabling the participation of the TSOs from the Member States listed in the Eastern Gas Supply risk group.

text: 2. The inclusion of a feasibility study is a regulatory requirement. The study should provide essential information about the design, the cost estimates, and the implementation schedule of the project. The study is of critical importance for providing information needed to carry out the CBA required by

text: Article 5(5)

text: SoS Regulation.

text: 3. In addition to posting a notice about the consultation on its website, Gascade should have individually invited to the consultation at least the TSOs from the Member States listed in the Eastern Gas Supply risk group. The duration of the consultation period of one week is too short to ensure sufficient opportunity for participation.

text: 4. The reasoning contained in the Decision about the infrastructure standard indicators of the SoS Regulation is compelling. These indicators seem to be at adequate levels in Germany, and also in the Czech Republic and in Poland. None of the ten supply disruption scenarios compiled to assess security of supply in the region found that it would be necessary to use significant capacity from the Czech Republic to Germany or from Germany to Poland. Moreover, there is already available permanent bi-directional capacity from the Czech Republic to Germany at the VIP Brandov, which offers the sum of capacities at existing and adjacent IPs. Furthermore, there is no indication of market demand for additional capacities from the Czech Republic to Germany, and the national 23 24 25 preventive action plans of Germany , the Czech Republic and Poland have not signalled any need for additional permanent physical capacities from the Czech Republic to Germany.

text: 5. The increase of the capacity from the Czech Republic to Germany in the short- to medium-term may result in inefficient investments. The assessment contained in the Decision correctly points out to the fact that the investment costs would significantly outweigh the prospective benefits for the security of gas supply – which is a substantive condition to grant the exemption in Germany, and thus appears to be justified.

text: 6. The duration of the exemption of four years appears to be justified insofar as no substantial changes occur in the market or in the infrastructure’s conditions under which the exemption was granted (i.e. only if the risk factors remain similar to the ones observed at that time). While these conditions are unlikely to change in the near- and mid-term future, the risk patterns may be different in the long term. To hedge against this possible change of risk patterns, the Decision could have included options for the monitoring of the level of adequacy of gas security of supply standards or future market demand for

text: capacity, with a focus on the period of time after two years as of the adoption of the Decision and until the end of the duration of the exemption.

text: 7. Once exemption requests within the meaning of

text: Article 5(4)

text: , first sub-paragraph, and point 2 of Annex III SoS Regulation are submitted to the competent authorities concerned, those shall ensure that the procedure foreseen under Annex III of the SoS Regulation is duly respected and that the detailed requirements foreseen in Annex III SoS Regulation and

text: Article 5(4)

text: and (5) are fulfilled by the Transmission System Operators to ensure that the purpose, spirit and objective of the SoS Regulation, and, in particular, coordination, cooperation, and solidarity are preserved.

text: This Opinion is submitted to the Commission for consequential actions deemed necessary, all competent authorities concerned, and the national regulatory authorities referred to in points 3 and 6 of Annex III SoS Regulation.

text: Done at Ljubljana, on 8 May 2020.

text: - SIGNED -

text: Fоr the Agency The Director

text: C. ZINGLERSEN