1. Where a project promoter incurs higher risks for the development, construction, operation or maintenance of a project of common interest falling under the categories set out in Annex II.1(a), (b) and (d) and Annex II.2, compared to the risks normally incurred by a comparable infrastructure project, Member States and national regulatory authorities shall ensure that appropriate incentives are granted to that project in accordance with Article 37(8) of Directive 2009/72/EC, Article 41(8) of Directive 2009/73/EC, Article 14 of Regulation (EC) No 714/2009, and Article 13 of Regulation (EC) No 715/2009.
The first subparagraph shall not apply where the project of common interest has received:
(a)
an exemption from Articles 32, 33, 34 and Article 41(6), (8) and (10) of Directive 2009/73/EC pursuant to Article 36 of Directive 2009/73/EC;
(b)
an exemption from Article 16(6) of Regulation (EC) No 714/2009 or an exemption from Article 32 and Article 37(6) and (10) of Directive 2009/72/EC pursuant to Article 17 of Regulation (EC) No 714/2009;
(c)
an exemption under Article 22 of Directive 2003/55/EC; or
(d)
an exemption under Article 7 of Regulation (EC) No 1228/2003.
2. The decision of the national regulatory authorities for granting the incentives referred to in paragraph 1 shall consider the results of the cost-benefit analysis on the basis of the methodology drawn up pursuant to Article 11 and in particular the regional or Union-wide positive externalities generated by the project. The national regulatory authorities shall further analyse the specific risks incurred by the project promoters, the risk mitigation measures taken and the justification of this risk profile in view of the net positive impact provided by the project, when compared to a lower-risk alternative. Eligible risks shall notably include risks related to new transmission technologies, both onshore and offshore, risks related to under-recovery of costs and development risks.
3. The incentive granted by the decision shall take account of the specific nature of the risk incurred and may cover inter alia:
(a)
the rules for anticipatory investment; or
(b)
the rules for recognition of efficiently incurred costs before commissioning of the project; or
(c)
the rules for providing additional return on the capital invested for the project; or
(d)
the any other measure deemed necessary and appropriate.
4. By 31 July 2013, each national regulatory authority shall submit to the Agency its methodology and the criteria used to evaluate investments in electricity and gas infrastructure projects and the higher risks incurred by them, where available.
5. By 31 December 2013, taking due account of the information received pursuant to paragraph 4 of this Article, the Agency shall facilitate the sharing of good practices and make recommendations in accordance with Article 7(2) of Regulation (EC) No 713/2009 regarding:
(a)
the incentives referred to in paragraph 1 on the basis of a benchmarking of best practice by national regulatory authorities;
(b)
a common methodology to evaluate the incurred higher risks of investments in electricity and gas infrastructure projects.
6. By 31 March 2014, each national regulatory authority shall publish its methodology and the criteria used to evaluate investments in electricity and gas infrastructure projects and the higher risks incurred by them.
7. Where the measures referred to in paragraphs 5 and 6 are not sufficient to ensure the timely implementation of projects of common interest, the Commission may issue guidelines regarding the incentives laid down in this Article.