Article 37 — Power to grant derogations

1. National regulatory authorities may, at the request of an entity which operates an interconnector that has benefited from an exemption from Article 41(6), (8) and (10) of Directive 2009/73/EC in accordance with Article 36 of that Directive or a similar exemption, jointly grant such entity a derogation from the application of one or more Articles of this Regulation in accordance with paragraphs 2 to 6 of this Article where the application of those Articles to such entity would have one or several of the following negative consequences. It would:
   1. not facilitate efficient gas trade and competition;
   2. not provide incentives for investment for new capacity or to maintain existing levels of capacity;
   3. unreasonably distort cross-border trade;
   4. distort competition with other infrastructure operators that offer services of a similar nature to those of the interconnector;
   5. not be implementable when taking into account the specific nature of interconnectors.
2. The entity requesting a derogation under paragraph 1 shall include in its request a detailed reasoning, with all supporting documents, including, where appropriate, a cost-benefit analysis, demonstrating that one or more of the conditions in paragraph 1(a) to (e) are complied with.
3. The national regulatory authorities concerned shall jointly assess the request for a derogation and deal with it in close cooperation. Where the relevant national regulatory authorities grant a derogation, they shall specify its duration in their decisions.
4. The national regulatory authorities shall notify their decisions granting such derogations to the Agency and the Commission.
5. The national regulatory authorities may revoke a derogation if the circumstances or underlying reasons, or both, no longer apply or upon a reasoned recommendation of the Agency or the Commission to revoke a derogation due to a lack of justification.