1. New direct current interconnectors may, upon request, be exempted from the provisions of Article 6(6) of this Regulation and Articles 20 and 23(2), (3) and (4) of Directive 2003/54/EC under the following conditions:
(a)
the investment must enhance competition in electricity supply;
(b)
the level of risk attached to the investment is such that the investment would not take place unless an exemption is granted;
(c)
the interconnector 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 interconnector will be built;
(d)
charges are levied on users of that interconnector;
(e)
since the partial market opening referred to in Article 19 of Directive 96/92/EC, no part of the capital or operating costs of the interconnector has been recovered from any component of charges made for the use of transmission or distribution systems linked by the interconnector;
(f)
the exemption is not to the detriment of competition or the effective functioning of the internal electricity market, or the efficient functioning of the regulated system to which the interconnector is linked.
2. Paragraph 1 shall apply also, in exceptional cases, to alternating current interconnectors provided that the costs and risks of the investment in question are particularly high when compared with the costs and risks normally incurred when connecting two neighbouring national transmission systems by an alternating current interconnector.
3. Paragraph 1 shall apply also to significant increases of capacity in existing interconnectors.
4.
(a)
The regulatory authority may, on a case by case basis, decide on the exemption referred to in paragraphs 1 and 2. However, Member States may provide that the regulatory authorities shall submit, for formal decision, to the relevant body in the Member State its opinion on the request for an exemption. This opinion shall be published together with the decision.
(b)
(i)
The exemption may cover all or part of the capacity of the new interconnector, or of the existing interconnector with significantly increased capacity.
(ii)
In deciding to grant an exemption, consideration shall be given, on a case by case basis, to the need to impose conditions regarding the duration of the exemption and non discriminatory access to the interconnector.
(iii)
When deciding on the conditions in (i) and (ii) account shall, in particular, be taken of the additional capacity to be built, the expected time horizon of the project and national circumstances.
(c)
When granting an exemption the relevant authority may approve or fix the rules and/or mechanisms on the management and allocation of capacity.
(d)
The exemption decision, including any conditions referred to in (b), shall be duly reasoned and published.
(e)
Any exemption decision shall be taken after consultation with other Member States or regulatory authorities concerned.
5. The exemption decision shall be notified, without delay, by the competent authority to the Commission, together with all the information relevant 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:
—
the detailed reasons on the basis of which the regulatory authority, or Member State, granted the exemption, including the financial information justifying the need for the exemption;
—
the analysis undertaken of the effect on competition and the effective functioning of the internal electricity market resulting from the grant of the exemption;
—
the reasons for the time period and the share of the total capacity of the interconnector in question for which the exemption is granted;
—
the result of the consultation with the Member States or regulatory authorities concerned;
Within two months after receiving a notification, the Commission may request that the regulatory authority or the Member State concerned amend or withdraw the decision to grant an exemption. The two months period may be extended by one additional month where additional information is sought by the Commission.
If the regulatory authority or Member State concerned does not comply with the request within a period of four weeks, a final decision shall be taken in accordance with the procedure referred to in Article 13(3).
The Commission shall preserve the confidentiality of commercially sensitive information.