S.L. 545.34 Art. 40Network development and powers to make investment decisions.

(1) At least every two (2) years, transmission system operators shall submit to the Regulator a ten-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. That network development plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply. The transmission system operator shall publish the ten-year network development plan on its website.

(2) The ten-year network development plan shall in particular:

(a) indicate to market participants the main transmission infrastructure that needs to be built or upgraded over the next ten(10) years;

(b) contain all the investments already decided and identify new investments which have to be executed in the next three (3) years; and

(c) provide for a time frame for all investment projects.

(3) When elaborating the ten-year network development plan, the transmission system operator shall fully take into account the potential for the use of demand response, energy storage facilities or other resources as alternatives to system expansion, as well as expected consumption, trade with other countries and investment plans for Union-wide and regional networks.

(4) The Regulator shall consult all actual or potential system users on the ten-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential system users may be required to substantiate such claims. The Regulator shall publish the result of the consultation process, in particular possible needs for investments.

(5) (a) The Regulator shall examine whether the ten-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the non-binding Union-wide ten-year network development plan ("Union-wide network development plan") referred to in point (b) of Article 30(1) of Regulation (EU) 2019/943. If any doubt arises as to the consistency with the Union-wide network development plan, the Regulator shall consult ACER. The Regulator may require the transmission system operator to amend its ten-year network development plan.

(b) The competent authority responsible for the national energy and climate plan submitted in accordance with Regulation (EU) 2018/1999 shall examine the consistency of the ten-year network development plan with the national energy and climate plan.

(6) The Regulator shall monitor and evaluate the implementation of the ten-year network development plan.

(7) In circumstances where the transmission system operator, other than for overriding reasons beyond its control, does not execute an investment, which, under the ten-year network development plan, was to be executed in the following three (3) years, the Regulator shall take at least one of the following measures to ensure that the investment in question is made if such investment is still relevant on the basis of the most recent ten-year network development plan:

(a) to require the transmission system operator to execute the investments in question;

(b) to organise a tender procedure, open to any investors for the investment in question; or

(c) to oblige the transmission system operator to accept a capital increase to finance the necessary investments and allow independent investors to participate in the capital.

(8) Where the Regulator has made use of its powers under paragraph (b) of sub-regulation (7), it may oblige the transmission system operator to agree to one or more of the following:

(a) financing by any third party;

(b) construction by any third party;

(c) building the new assets concerned itself;

(d) operating the new asset concerned itself.

The transmission system operator shall provide the investors with all information needed to realise the investment, shall connect new assets to the transmission network and shall generally make its best efforts to facilitate the implementation of the investment project. The relevant financial arrangements shall be subject to approval by the Regulator.

(9) Where the Regulator has made use of its powers under sub-regulation (7), the relevant tariff regulations shall cover the costs of the investments in question.