L211/94 Official Journal of the European Union 14.8.2009 DIRECTIVE 2009/73/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- PEAN UNION, Having regard to the Treaty establishing the European Commu- nity, and in particular Article 47(2) and Articles 55 and 95 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Economic and Social Committee (1), Having regard to the opinion of the Committee of the Regions (2), Acting in accordance with the procedure laid down in Article 251 of the Treaty (?), Whereas: (1) The internal market in natural gas, which has been pro- gressively implemented throughout the Community since 1999, aims to deliver real choice for all consumers of the European Union, be they citizens or businesses, new busi- ness opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, and higher standards of service, and to contribute to security of sup- ply and sustainability. (2)  Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas (*) has made a significant contribution towards the creation of such an internal mar- ket in natural gas. (3)  The freedoms which the Treaty guarantees the citizens of the Union — inter alia, the free movement of goods, the freedom of establishment and the freedom to provide ser- vices — are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers. (4) However, at present, there are obstacles to the sale of gas on equal terms and without discrimination or disadvan- tages in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist. (1) OJ C 211, 19.8.2008, p. 23. (2) 0 C 172, 5.7.2008, p. 55. (*) Opinion of the European Parliament of 9 July 2008 (not yet published in the Official Journal), Council Common Position of 9 January 2009 (OJ C70E, 24.3.2009, p. 37) and Position of the European Parliament of 22 April 2009 (not yet published in the Official Journal). Council Decision of 25 June 2009. (% OJL 176, 15.7.2003, p. 57. (5)  The Communication of the Commission of 10 January 2007 entitled ‘An Energy Policy for Europe’ highlighted the importance of completing the internal market in natural gas and of creating a level playing field for all natural gas undertakings established in the Community. The Commu- nications of the Commission of 10 January 2007 entitled ‘Prospects for the internal gas and electricity market’ and ‘Inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 into the European gas and electricity sectors (Final Report)’ showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well-functioning internal market. (6)  Without effective separation of networks from activities of production and supply (effective unbundling), there is a risk of discrimination not only in the operation of the net- work but also in the incentives for vertically integrated undertakings to invest adequately in their networks. (7)  The rules on legal and functional unbundling as provided for in Directive 2003/55/EC have not, however, led to effective unbundling of the transmission system operators. At its meeting on 8 and 9 March 2007, the European Council therefore invited the Commission to develop leg- islative proposals for the ‘effective separation of supply and production activities from network operations’. (8)  Only the removal of the incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effec- tive unbundling. Ownership unbundling, which implies the appointment of the network owner as the system operator and its independence from any supply and pro- duction interests, is clearly an effective and stable way to solve the inherent conflict of interests and to ensure secu- rity of supply. For that reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market (°) referred to ownership unbun- dling at transmission level as the most effective tool by which to promote investments in infrastructure in a non- discriminatory way, fair access to the network for new entrants and transparency in the market. Under ownership unbundling, Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control over a production or supply undertaking () OJ C 175 E, 10.7.2008, p. 206.