S.L. 545.34 Art. 39Ownership unbundling of transmission systems and transmission system operators.

(1) (a) Each undertaking that owns a transmission system shall act as a transmission system operator.

(b) The same person or persons shall not be entitled to either:

(i) directly or indirectly to exercise control over an undertaking performing any of the functions of generation or supply, and directly or indirectly to exercise control or exercise any right over a transmission system operator or over a transmission system; or

(ii) directly or indirectly to exercise control over a transmission system operator or over a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of generation or supply;

(c) The same person or persons shall not be 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 generation or supply; and

(d) The same person shall not be entitled to be 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 generation or supply and a transmission system operator or a transmission system.

(2) The rights referred to in (b) and (c) of sub-regulation (1) shall include, in particular:

(a) the power to exercise voting rights;

(b) the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or

(c) the holding of a majority share.

(3) For the purpose of sub-regulation 1(b), the notion "undertaking performing any of the functions of generation or supply" shall include "undertaking performing any of the functions of production and supply" within the meaning of Directive 2009/73/EC, and the terms "transmission system operator" and "transmission system" shall include "transmission system operator" and "transmission system" within the meaning of that Directive.

(4) The obligation set out in sub-regulation 1(a) shall be deemed to be fulfilled in a situation where two or more undertakings which own transmission systems have created a joint venture which acts as a transmission system operator in two or more Member States for the transmission systems concerned.

No other undertaking may be part of the joint venture, unless it has been approved under Article 44 of the Directive as an independent system operator or as an independent transmission operator for the purposes of Section 3 of the Directive.

(5) For the implementation of this regulation, where the person referred to sub-regulation 1(b), (c) and (d) is a public body, two separate public bodies exercising control over a transmission system operator or over a transmission system on the one hand, and over an undertaking performing any of the functions of generation or supply on the other, shall be deemed not to be the same person or persons.

(6) Undertakings performing any of the functions of generation or supply shall not in any event be able to directly or indirectly take control over or exercise any right over unbundled transmission system operators on whom paragraph 1 of Article 43 of the Directive is applied.

(7) This regulation shall not apply to transmission system operators in Malta until such date the derogation from Article 43 of the Directive applies.