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  • Order power to apply certain provisions (with mods) conferred by 2009 c. 23, s. 79A(7) as inserted by 2013 c. 10 (N.I.) s. 42
  • Order power to modify certain provisions conferred by 2009 c. 23, s. 79A(8) as inserted by 2013 c. 10 (N.I.) s. 42

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PART IN.I.INTRODUCTORY

Title and commencementN.I.

1.  (1)  This Order may be cited as the Electricity (Northern Ireland) Order 1992.

(2) This Order shall come into operation on such day or days as the Head of the Department may by order appointF1.

(3) An order under paragraph (2) may also appoint a day for the coming into operation of any provision of an order made under section 38(2) of the Northern Ireland Constitution Act 1973F2 as necessary or expedient in consequence of this Order which appears to the Head of the Department to be consequential on any provision of this Order brought into operation by the order.

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F1fully exercised by SR 1992/63,117,1998/441

InterpretationN.I.

2.  (1)  The Interpretation Act (Northern Ireland) 1954F3 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

(2) In this Order—

  • “the Department” means the Department of Economic Development;

  • Definition rep. by 2003 NI 6

  • “modifications” includes additions, omissions, amendments and substitutions;

  • “prescribed” means prescribed by regulations;

  • “regulations”

    (a)

    except in Article 42 and Schedule 7, means regulations made by the Department;

    (b)

    in Article 42 and Schedule 7, means regulations made by the Director, with the consent of the Department;

  • “statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954.

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PART IIN.I.ELECTRICITY SUPPLY

IntroductoryN.I.

Interpretation of Part IIN.I.

3.  In this Part—

  • “the 1973 Act” means the Fair Trading Act 1973F4;

  • “the 1980 Act” means the Competition Act 1980F5;

  • [F6the 2011 Regulations” means the Gas and Electricity (Internal Markets)Regulations (Northern Ireland) 2011;]

  • F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • [F8the Directive” means European Parliament and Council Directive 2009/72/EC concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC;]

  • [F9distribute” in relation to electricity, means distribute by means of a distribution system, that is to say, a system which consists (wholly or mainly) of low voltage lines and electrical plant and is used for conveying electricity to any premises or to any other distribution system;]

  • [F10distribution licence” means a licence under Article 10(1)(bb);]

  • “electrical plant” means any plant, equipment, apparatus or appliance used for, or for purposes connected with, the generation, transmission [F11, distribution] or supply of electricity, other than—

    (a)

    an electric line;

    (b)

    a meter used for ascertaining the quantity of electricity supplied to any premises; or

    (c)

    an electrical appliance under the control of a consumer;

  • “electric line” means any line which is used for carrying electricity for any purpose and includes—

    (a)

    any support for any such line, that is to say, any structure, pole or other thing in, on, by or from which any such line is or may be supported, carried or suspended;

    (b)

    any apparatus connected to any such line for the purpose of carrying electricity; and

    (c)

    any wire, cable, tube, pipe or other similar thing (including its casing or coating) which surrounds or supports, or is surrounded or supported by, or is installed in close proximity to, or is supported, carried or suspended in association with, any such line;

  • [F12electricity distributor” means any person who is authorised by a licence under Article [F1310(1)(bb)]except where he is acting otherwise than for purposes connected with the distribution by him of electricity;

  • electricity supplier” means any person who is authorised by a licence under Article 10(1)(c) to supply electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;]

  • “exemption” means an exemption under Article 9;

  • “extension” in relation to a generating station, includes the use by the person operating the station of any land (wherever situated) for a purpose directly related to the generation of electricity by that station;

  • Definition rep. by 2003 NI 6

  • “generating station”, in relation to a generating station wholly or mainly driven by water, includes all structures and works for holding or channelling water for a purpose directly related to the generation of electricity by that station;

  • “high voltage line” means an electric line of a nominal voltage [F14of or] exceeding 110 kilovolts; and “low voltage line” shall be construed accordingly;

  • “information” includes accounts, estimates and returns;

  • [F15the SEM”, “the SEM Committee”, “the Irish Minister” and “CER” have the same meanings as in the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007;]

  • “licence” means a licence granted under Article 10;

  • “licence holder” means the holder of a licence granted under Article 10;

  • “line” means any wire, cable, tube, pipe or other similar thing (including its casing or coating) which is designed or adapted for use in carrying electricity;

  • Definition rep. by SI 1999/506

  • “notice” means notice in writing;

  • “premises” includes any land, building or structure;

  • F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • Definition rep. by 2003 NI 6

  • F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • Definitions rep. by 2003 NI 6

  • “supply”, in relation to electricity, means supply through electric lines otherwise than to premises occupied by a licence holder for the purpose of carrying on the activities which he is authorised by his licence to carry on;

  • F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “transferred provision” has the meaning assigned to it by section 1(g) of the Interpretation Act (Northern Ireland) 1954F17;

  • [F18transmission”, in relation to electricity, means transmission by means of a transmission system;

  • transmission licence” means a licence under Article 10(1)(b);

  • transmission system” means a system which—

    (a)

    consists (wholly or mainly) of high voltage lines and electrical plant; and

    (b)

    is used for conveying electricity—

    (b)
    (i)

    from a generating station to a substation;

    (ii)

    from one generating station to another;

    (iii)

    from one substation to another;

    (iv)

    to a substation in Northern Ireland from a place outside Northern Ireland; or

    (v)

    from a substation in Northern Ireland to a place outside Northern Ireland]

  • [F19vertically integrated undertaking” has the meaning given in Article 2(21) of the Directive;]

  • “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday within the meaning of the Banking and Financial Dealings Act 1971F20.

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F7Art. 3: definition of "authorised area" repealed (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 4(a)

F9Art. 3: definition of "distribute" inserted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 4(b)

F11Words in art. 3 in definition of "electrical plant" inserted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 4(d)

F12Art. 3: definitions of "electricity distributor" "electricity supplier" inserted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 4(c)

F13Words in art. 3 in definition of "electricity distributor" substituted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 16(b)

F14Words in art. 3 in definition of "high voltage line" inserted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 1

F15Art. 3: definition of "the SEM" "the SEM Committee" "the Irish Minister" and "CER" inserted (1.11.2007) by Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 (S.I. 2007/913 (N.I. 7)), arts. 1(3), 12, Sch. 4 para. 1; S.R. 2007/444, art. 2, Sch. 1

F16Art. 3: definitions of "private electricity supplier" "public electricity supplier" "tariff customer" repealed (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 4(e)

F18Art. 3: definitions of "transmission" "transmission licence" "transmission system" substituted (3.7.2007) for definition of "transmit" by Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)), arts. 1(2), 65, Sch. 3 para. 1(1) (subject to Sch. 4); S.R. 2007/320, art. 2, Sch. 1

F19Art. 3: definition of "vertically integrated undertaking" inserted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 80(b)

Arts.4‐7 rep. by 2003 NI 6

Licensing of supply, etc.N.I.

Prohibition on unlicensed supply, etc.N.I.

8.  (1)  A person who—

F21(a)generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

[F22(b)participates in the transmission of electricity for that purpose; F23. . . ]

[F24(bb)distributes electricity for that purpose;]

F21(c)supplies electricity to any premises,[F25 or

(d)acts as SEM operator,]

shall be guilty of an offence unless he is authorised to do so by a licence or exemption.

(2) A person guilty of an offence under this Article shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(3) No proceedings shall be instituted in respect of an offence under this Article except by or on behalf of the Department or the Director.

[F26(4) For the purposes of this Part, a person participates in the transmission of electricity if—

(a)he co-ordinates, and directs, the flow of electricity onto and over a transmission system by means of which the transmission of electricity takes place; or

(b)he makes available for use for the purposes of such a transmission system anything which forms part of it.

(5) Where different people have different interests in anything which forms part of a transmission system, only the person in actual possession of the thing may be regarded for the purposes of paragraph (4) as making it available for use.]

[F27(6) For the purposes of this Part a person acts as SEM operator if his responsibilities include responsibility, pursuant to the trading and settlement code referred to in the SEM Memorandum, for calculating charges and other payments due under that code.

(7) In paragraph (6) “the SEM Memorandum” means the Memorandum of Understanding referred to in Article 2(3) of the Electricity (Single Wholesale Market)(Northern Ireland) Order 2007.]

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F21mod. by SR 1999/352

Modifications etc. (not altering text)

Exemptions from Article 8N.I.

9.  (1)  The Department may, after consultation with the Director, by order grant exemption from sub-paragraph (a) [F28, [F29(bb)] (c) or (d)] of Article 8(1).

(2) An exemption granted to persons of a particular class shall be published in such manner as the Department considers appropriate for bringing it to the attention of persons of that class.

[F30(3) An exemption granted under paragraph (1)—

(a)shall, if the order under paragraph (1) so provides, have effect for such period as may be specified in or determined under the order;

[F31(aa)may be granted subject to such conditions as appear to the Department to be requisite or expedient to ensure that the activity authorised by the exemption is carried out in compliance with the relevant requirements and prohibitions laid down by the Directive; and]

(b)may be revoked or amended by a subsequent order under that paragraph.]

(4) The requirement to consult imposed by paragraph (1) shall not apply to the granting of any exemptions which, having regard to the provisions of Article 8, need to be granted before that Article comes into operation.

[F32(5) If any condition pursuant to paragraph 3(aa) of an exemption granted to persons of a class is not complied with by any person of that class, the Department may give to that person a direction declaring that the exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.]

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Licences authorising supply, etc.N.I.

10.  (1)  The [F33Authority] may grant a licence authorising any person—

(a)to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

[F34(b)to participate in the transmission of electricity for that purpose; F35. . . ]

[F36(bb)to distribute electricity for that purpose;]

[F37(c)to supply electricity to any premises.]

[F38(d)to act as SEM operator.]

[F39(2) A licence under Article 10(1)(c) may authorise the holder to supply electricity—

(a)to any premises;

(b)only to premises specified in the licence, or to premises of a description so specified; or

(c)only to any premises situated in a specified area, or to premises of a specified description which are so situated.

(2A) The [F40Authority] may, with the consent of the holder of a supply licence, modify terms included in the licence in pursuance of paragraph (2) so as to extend or restrict the premises to which the licence holder may give a supply of electricity.]

(3) An application for a licence F41. . . shall be made in the prescribed manner and shall be accompanied by such fee (if any) as may be prescribed; and within 14 days from the making of such an application, the applicant shall publish a copy of the application in the prescribed manner.

(4) Before granting a licence under this Article, [F42the Authority] shall give notice—

(a)stating that [F43the Authority] proposes to grant the licence;

(b)stating the reasons why it is proposed to grant the licence; and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) A notice under paragraph (4) shall be given by publishing the notice in such manner as [F44the Authority] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence.

(6) A licence shall be in writing and, unless previously revoked in accordance with any term contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence.

[F45(7) F46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) As soon as practicable after granting any licence under paragraph (1)(b) [F47or (1)(bb)] the Authority shall send a copy of the licence to any licence holder under that sub-paragraph whose interests may be affected by the grant.]

(9) Neither the requirement to consult imposed by paragraph (1) or (2) nor paragraphs (3) and (4) shall apply to the granting of any licences which, having regard to the provisions of Article 8, need to be granted before that Article comes into operation.

(10) Any sums received by the Director under this Article shall be paid into the Consolidated Fund.

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F37Art. 10(1)(c) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 6(1) (with transitional provisions in Pt. IV)

F39Art. 10(2)(2A) substituted (1.11.2007) for art. 10(2) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 6(2) (with transitional provisions in Pt. IV)

F41Words in art. 10(3) deleted (1.11.2007) by virtue of Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 6(3) (with transitional provisions in Pt. IV)

F45Art. 10(7)(8) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 6(4) (with transitional provisions in Pt. IV)

[F48Transmission licencesN.I.

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10A.  (1)  A transmission licence may authorise the holder to participate in the transmission of electricity in any area, or only in an area specified in the licence.

(2) The Authority may, with the consent of the holder of a transmission licence, modify any term included in the licence in pursuance of paragraph (1).

(3) Without prejudice to the generality of Article 11(1)(a), conditions included in a transmission licence by virtue of that sub-paragraph may—

(a)require the licence holder not to carry on an activity which he would otherwise be authorised by the licence to carry on; or

(b)restrict where he may carry on an activity which he is authorised by the licence to carry on.]

[F49Distribution licencesN.I.

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10AA.  (1)  A distribution licence may authorise the holder to distribute electricity in any area, or only in an area specified in the licence.

(2) The Authority may, with the consent of the holder of a distribution licence, modify any term included in the licence in pursuance of paragraph (1).

(3) Without prejudice to the generality of Article 11(1)(a), conditions included in a distribution licence by virtue of that sub-paragraph may restrict where the licence holder may carry on an activity which he is authorised by the licence to carry on.]

[F50Electricity transmission: requirement for participants to be certified as independentN.I.

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10B.  (1)  A person who participates in the transmission of electricity within the meaning of sub-paragraph (b) or both sub-paragraphs (a) and (b) of Article 8(4) and who holds a transmission licence immediately before the coming into operation of the 2011 Regulations must, on and after the relevant date, ensure that he is certified at all times when he acts under the authority of that licence.

(2) Any person who intends to participate in the transmission of electricity within the meaning of Article 8(4)(b) and who is granted a transmission licence after the coming into operation of the 2011 Regulations must ensure that he is certified at all times when he acts under the authority of the licence.

(3) In paragraph (1) the “relevant date” in respect of a person is 3rd March 2012 or any later date before 4th March 2013 which the Authority specifies under paragraph (4) or (5) in respect of that person.

(4) The Authority may specify a later date in respect of a person if—

(a)the person has asked the Authority to specify a later date;

(b)the person is not, and is not part of, a vertically integrated undertaking; and

(c)no senior officer of the person is also a senior officer of a relevant producer or supplier.

(5) The Authority may also specify a later date in respect of a person if the Authority decides that, for reasons beyond its and the person's control, the Authority will not reasonably be able to make a final decision before 3rd March 2012 as to whether or not to certify the person.

Application for certificationN.I.

10C.  (1)  An application for certification may not be made unless the applicant has first consulted, in such manner and within such period as the Authority may specify in writing, with any related transmission licensee in respect of the application.

(2) An application for certification must be made—

(a)in writing to the Authority; and

(b)before such date and in such form and contain such information as the Authority may specify in writing.

(3) The applicant must, at the same time as it makes an application for certification, send a copy of it to any related transmission licensee.

(4) If the application is made on or after 3rd March 2013 and either—

(a)the applicant is; or

(b)the application is made on the basis of the third certification ground under Article 10F(5) and the applicant nominates as an independent system operator,

a person from a third country or a person controlled by a person from a third country, the Authority must notify the Department and the European Commission as soon as is reasonably practicable.

(5) A related transmission licensee may, make such representations to the Authority as it thinks fit in respect of the application for certification in question, including representations as to any qualification measures whether or not proposed by the applicant.

(6) The Authority may specify a date by which such representations must be made.

(7) The Authority may request from an applicant for certification any further information the Authority considers is relevant to the application, and the applicant must supply that information if—

(a)it is in the applicant's possession or control; or

(b)it is information which the applicant could reasonably be expected to obtain.

(8) The Authority may request a relevant producer or supplier, and any related transmission licensee, for any information the Authority considers relevant to an application for certification, and the person so requested must supply that information if—

(a)it is in his possession or control; or

(b)it is information which he could reasonably be expected to obtain.

(9) A person requested to supply information under paragraph (7) or (8) must do so by the date specified by the Authority in the request.

(10) The Authority shall have regard to any representations made by a related transmission licensee in accordance with paragraphs (5) and (6) in making a decision as to whether or not the applicant should be certified and what, if any, qualification measures should be taken.

Report where applicant connected with a country outside the European Economic AreaN.I.

10D.  (1)  This Article applies if the Department is notified by the Authority under Article 10C(4) that an application has been made by, or nominating as an independent system operator, a person from a third country or a person controlled by a person from a third country.

(2) The Department must prepare a report on whether the security of electricity supplies in the United Kingdom and the European Economic Area would be put at risk by the certification of the applicant.

(3) In preparing the report, the Department must take into account—

(a)any relevant international law; and

(b)any relevant agreement between the government of the United Kingdom and the government of the third country in question.

(4) The Department must send the report to the Authority within the 6 weeks beginning with the day on which the notification under Article 10C(4) is received by it.

CertificationN.I.

10E.  (1)  The Authority must, within the 4 months beginning with the day on which it receives an application for certification, make a preliminary decision as to whether it should certify the applicant.

(2) If—

(a)the Authority has asked an applicant or a relevant producer or supplier or related transmission licensee for information under Article 10C(7) or (8); and

(b)the information has not been supplied by the date specified by the Authority under Article 10C(9),

then the period of 4 months referred to in paragraph (1) shall be extended by the period of delay in supplying such information.

(3) As soon as is reasonably practicable after making the preliminary decision under paragraph (1), the Authority must notify the decision and the reasons for it to—

(a)the applicant;

(b)any related transmission licensee;

(c)the Department; and

(d)the European Commission.

(4) The Authority must enclose with the notification under paragraph (3)(a), (b) or (d) a copy of any report which the Department has prepared under Article 10D in respect of the applicant and which the Authority receives before giving the notification.

(5) Article 3 of the Electricity Regulation sets out the obligation to make a final decision, together with related processes, time limits, matters to be taken into account and conditions.

(6) As soon as is reasonably practicable after making the final decision in any case, the Authority must notify the decision and the reasons for it to—

(a)the applicant;

(b)any related transmission licensee;

(c)the Department; and

(d)the European Commission.

Grounds for certificationN.I.

10F.  (1)  This Article applies to—

(a)a preliminary decision under Article 10E as to whether an applicant should be certified; and

(b)a final decision under Article 3 of the Electricity Regulation as to whether to certify an applicant.

(2) Subject to paragraph (7), the Authority may only decide that the applicant should be certified, or decide to certify the applicant, if one of the following four grounds (“the certification grounds”) applies.

(3) The first certification ground is that the ownership unbundling requirement in Article 10G is met in relation to the applicant and to any related transmission licensee.

(4) The second certification ground is that the applicant has applied for a derogation from the ownership unbundling requirement on the grounds in paragraph (9) of Article 9 of the Directive (alternative arrangements for independence), and the Authority has determined that the requirements of that paragraph are met.

(5) The third certification ground is that—

(a)the applicant has applied for a derogation from the ownership unbundling requirement on the grounds in paragraphs (1) and (2) of Article 13 of the Directive (independent system operator);

(b)the applicant has nominated an independent system operator for designation in accordance with those paragraphs; and

(c)the Authority—

(i)has determined that the requirements of those paragraphs and of paragraphs (1) and (2) of Article 14 of the Directive (unbundling of transmission system owners) are met; and

(ii)is minded to designate the nominated independent system operator.

(6) The fourth certification ground is that the applicant has been granted an exemption under Article 17 of the Electricity Regulation (new interconnectors) and remains entitled to the benefit of it.

(7) The Authority may make a preliminary decision to certify an applicant where it is satisfied that the certification ground to which his application relates applies in the case of the applicant or would apply if particular qualification measures were taken and that—

(a)those qualification measures are within the powers of the Authority to impose under regulations 11 and 94 of the 2011 Regulations or any other powers of the Authority under this Order or the Energy (Northern Ireland) Order 2003 and the Authority is minded so to exercise those powers; or

(b)the Authority is otherwise satisfied that such qualification measures will be taken.

(8) But, regardless of whether a certification ground applies under paragraph (2), the Authority must not certify the applicant—

(a)if, on the basis of an opinion expressed by the European Commission under Article 11 of the Directive (certification in relation to persons from countries outside the European Economic Area), the Authority considers that the certification of the applicant would put at risk the security of electricity supplies in the European Economic Area;

(b)if a report prepared by the Department under Article 10D states that the certification of the applicant would put at risk the security of electricity supplies in the United Kingdom or the European Economic Area;

(c)on the second certification ground if the European Commission has not verified, in accordance with paragraph (10) of Article 9 of the Directive (verification of independence under alternative arrangements), that the requirement in that paragraph as to arrangements for effective independence is met.

The ownership unbundling requirementN.I.

10G.  (1)  For the purposes of Article 10F(3), the ownership unbundling requirement is met by an applicant for certification or (as the case may be) a related transmission licensee (“a relevant person”) if the Authority considers that each of the following five tests is passed.

(2) The first test is that the relevant person—

(a)does not control a relevant producer or supplier;

(b)does not have a majority shareholding in a relevant producer or supplier; and

(c)will not, on or after the relevant date (within the meaning of Article 10B(3)), exercise any shareholder rights it holds, or becomes the holder of, in relation to a relevant producer or supplier.

(3) For the purposes of paragraph (2)(c), the Authority is entitled to think that the relevant person will not exercise any shareholder rights it holds, or becomes the holder of, if the relevant person has given an undertaking that it will not exercise those shareholder rights.

(4) The second test is that the relevant person is not controlled by a person who controls a relevant producer or supplier.

(5) But even where the second test is not passed, the Authority is entitled to treat it as passed if—

(a)the control over the relevant person was gained through the exercise of a right conferred as a condition of the provision of financial support or a guarantee in relation to the relevant person's business; or

(b)the control over the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.

(6) The third test is that the relevant person is not controlled by a person who has a majority shareholding in a relevant producer or supplier.

(7) But even where the third test is not passed, the Authority is entitled to treat it as passed if—

(a)the control over the relevant person was gained through the exercise of a right conferred as a condition of the provision of financial support or a guarantee in relation to the relevant person's business; or

(b)the majority shareholding in the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.

(8) Where the Authority treats the second or third test as having been passed only by virtue of paragraph (5) or (7), it must specify a time limit after which it will cease to treat that test as having been passed; and it may extend the time limit if it thinks it necessary or expedient to do so.

(9) Paragraphs (10) and (11) apply where the Authority is entitled to treat the second or third test as having been passed only by virtue of paragraph (5) or (7).

(10) In deciding whether to treat the test as having been passed, the Authority—

(a)must take into account—

(i)whether the relationship (direct or indirect) between the relevant person and the relevant producer or supplier has led or might lead the relevant person to discriminate in favour of the relevant producer or supplier; and

(ii)the length of time for which that is likely to continue to be so; and

(b)may, in particular, take into account any information or undertakings given to the Authority by the relevant person, the relevant producer or supplier or the person who controls the relevant person and controls or has a majority shareholding in the relevant producer or supplier.

(11) The information and undertakings that may be taken into account under paragraph (10)(b) include information and undertakings regarding any measures that have been or will be put in place to ensure the effective separation of the business of the relevant person and the business of the relevant producer or supplier.

(12) The fourth test is that, where the relevant person is a company, partnership or other business, none of its senior officers has been, or may be, appointed by a person who—

(a)controls a relevant producer or supplier other than a gas producer or gas supply undertaking; or

(b)has a majority shareholding in a relevant producer or supplier other than a gas producer or gas supply undertaking.

(13) The fifth test is that, where the relevant person is a company, partnership or other business, none of its senior officers is also a senior officer of a relevant producer or supplier other than a gas producer or gas supply undertaking.

Designation for the purposes of EU electricity legislationN.I.

10H.  (1)  This Article applies for any period during which a person—

(a)holds a transmission licence in relation to which the duty under Article 10B(1) or (2) applies; and

(b)is certified.

(2) If the person is certified on the first or second certification ground in Article 10F, the Department shall designate that person as an electricity transmission system operator for the purposes of Article 10(2) of the Directive (designation of transmission system operators).

(3) If the person is certified on the third certification ground in Article 10F, the Department shall designate the independent system operator nominated in the application for certification as an electricity transmission system operator for the purposes of that Article.

(4) As soon as is reasonably practicable after a person is designated by virtue of this Article, the Department must give notice of the designation to—

(a)the person so designated;

(b)the applicant (if different);

(c)the Authority; and

(d)the European Commission.

(5) Where, in the case of a person certified on the first or second certification ground, there is a related transmission licensee, conditions included pursuant to Article 11A(1) in the transmission licences of the certified person and the related transmission licensee may make provision for determining which of them is to act as transmission system operator for the purposes of any provision of the Electricity Regulation and any designation under this Article is without prejudice to any such provision.

Monitoring and review of certificationN.I.

10I.  (1)  The Authority must monitor, in respect of each certified person, whether the grounds on which the person was certified continue to apply.

(2) Where for the purposes of certifying any person, the Authority has treated the second or third test in Article 10G as having been passed only by virtue of paragraph (5) or (7) of that Article, then where after the expiry of the time limit provided under paragraph (8) of that Article it has ceased to treat that test as having been passed by such virtue, the certification shall be withdrawn unless the Authority reviews the certification and is satisfied that the test in question is otherwise passed.

(3) If, on or after 3rd March 2013, as a result of information it has received or obtained, the Authority considers that a person from a third country has taken or may take control of a certified person or a person designated as independent system operator, the Authority must, as soon as is reasonably practicable, notify the information to the Department and the European Commission.

(4) The Authority may review the final certification for any person if—

(a)the certified person or any related transmission licensee notifies it of any event or circumstance which may affect the grounds on which that person was certified; or

(b)for any other reason the Authority considers that the grounds for the certification of that person may no longer apply.

(5) A review under paragraph (2) or (4) is to be carried out within the 4 months beginning with—

(a)if paragraph (4)(a) applies, the day on which the Authority receives the notification under that paragraph;

(b)if the review is in pursuance of paragraph (2), the expiry of the time limit referred to in that paragraph; or

(c)otherwise, the first day on which the Authority considers that the grounds for certification may no longer apply.

(6) The Authority must also review a final certification if the European Commission asks it to do so.

(7) A review under paragraph (6) is to be carried out within the 4 months beginning with the day on which the Authority receives the request from the European Commission.

(8) But where the Authority considers that the circumstances giving rise to the review of the certification of any person under paragraph (4) or (6) represent or result from the contravention of a relevant condition or requirement for the purposes of Article 41 of the Energy (Northern Ireland) Order 2003, by a related transmission licensee, the Authority may suspend the carrying out of the review while the Authority is taking steps in relation to such contravention pursuant to Part VI of that Order and during any period allowed to the related transmission licensee for complying with any enforcement order.

(9) As soon as is reasonably practicable after beginning a review under this Article, the Authority must notify the certified person to whom the review relates and any related transmission licensee that the review is being carried out and the reasons for it.

(10) The Authority may ask the certified person for any information the Authority thinks is relevant to the review, and the person must supply the information if—

(a)it is in the certified person's possession or control; or

(b)it is information which the certified person could reasonably be expected to obtain.

(11) The Authority may ask a relevant producer or supplier or related transmission licensee for any information the Authority thinks is relevant to a review under this Article, and the relevant producer or supplier or related transmission licensee must supply that information if—

(a)it is in the possession or control of the relevant producer or supplier or related transmission licensee; or

(b)it is information which the relevant producer or supplier or related transmission licensee could reasonably be expected to obtain.

(12) A person required to supply information under paragraph (10) or (11) must do so by any deadline specified by the Authority in the request.

Report as to any connection of a certified person with a country outside the European Economic AreaN.I.

10J.  (1)  This Article applies if the Department is notified by the Authority under Article 10I(3) that a person from a third country has taken or may take control of a certified person or (in relation to a certified person) a person designated as an independent system operator.

(2) The Department must prepare a report on whether the security of electricity supplies in the United Kingdom and the European Economic Area would be put at risk by the continued certification of the person.

(3) In preparing the report, the Department must take into account—

(a)any relevant international law; and

(b)any relevant agreement between the government of the United Kingdom and the government of the third country in question.

(4) The Department must prepare the report and send it to the Authority within the 6 weeks beginning with the day on which the notification is received.

Continuation or withdrawal of certificationN.I.

10K.  (1)  Where the Authority reviews under Article 10I whether the grounds for the certification of a person apply or continue to apply, it may, within the review period, make a preliminary decision that either—

(a)the certification should be continued on the certification ground in question; or

(b)the certification should be withdrawn.

(2) If the Authority does not make a decision under paragraph (1) within the review period, it is to be taken as having decided at the end of the review period that the certification should be continued on the certification ground in question.

(3) As soon as is reasonably practicable after a preliminary decision is made (or taken to be made) under this Article, the Authority must—

(a)notify the European Commission of the decision; and

(b)enclose the information it considers relevant to the decision.

(4) Article 3 of the Electricity Regulation sets out an obligation to make a final review decision, together with related processes, time limits, matters to be taken into account and conditions.

(5) Paragraphs (6) to (8) apply in relation to the Authority's final decision under Article 3 of the Electricity Regulation whether or not to confirm the certification.

(6) As soon as is reasonably practicable after making the final decision, the Authority must notify the decision and the reasons for it to—

(a)the person in relation to whom the review was carried out;

(b)any related transmission licensee;

(c)the Department; and

(d)the European Commission

(7) If the final decision is to continue the certification, the person in question is to be taken as continuing to be certified by the Authority.

(8) Otherwise, the person is to be taken as no longer certified.

(9) Article 10F(8)(a) and (b) applies in relation to a decision mentioned in this Article as it applies in relation to a decision mentioned in Article 10F(1), but as if the reference in Article 10F(8)(b) to a report under Article 10D were a reference to a report under Article 10J.

InterpretationN.I.

10L.  (1)  In Articles 10B to 10K and this Article—

certification ground” shall be construed in accordance with Article 10F(2);

certified” means, in relation to any person, certified in accordance with Article 10E or continued to be certified in accordance with Article 10K;

control”, in relation to one person having control over another, has the meaning given in Article 2(34) of the Directive, but in determining whether one person (“person A”) controls another person (“person B”) no account is to be taken of any power to exercise a contractual or other right which would give person A decisive influence over person B where the right was conferred as a condition of the provision of any financial support or guarantee by person A in relation to the business of person B; and references to one person controlling another are to be interpreted accordingly;

electricity generation undertaking” means a person who generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

electricity supply undertaking” means a person who supplies electricity to any premises;

Electricity Regulation” means Regulation (EC) No. 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No. 1228/2003;

gas producer” means a gas undertaking carrying out the function of production mentioned in Article 2(1) of European Parliament and Council Directive 2009/73/EC concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC;

gas supply undertaking” means a person who sells gas to one or more customers, including by the supply to any premises of gas which has been conveyed to those premises through pipes;

licence” means—

(a)

in relation to an electricity generation undertaking or an electricity supply undertaking, a licence under Article 10(1)(a) or (c); and

(b)

in relation to a gas supply undertaking, a licence under Article 8(1)(c) of the Gas (Northern Ireland) Order 1996;

majority shareholding” means a simple majority of shares;

person from a third country” means any person the Authority thinks is a person from a third country;

qualification measures”, in relation to an applicant for certification, means measures taken or arrangements made to ensure that the certification ground to which his application relates applies in his case;

related transmission licensee” means, in relation to an applicant for certification or a certified person, any other person (including a person nominated or designated as independent system operator for the purposes of the third certification ground) who—

(a)

holds; or

(b)

in the case of an applicant for certification would, pursuant to any qualification measures proposed in the application, hold, a transmission licence under which that person participates or would participate in the transmission of electricity (within the meaning of Article 8(4)(a)) by means of the transmission system of the applicant or certified person;

review period”, in relation to a review under Article 10I, means the period specified in paragraph (5) or (7) of that Article as extended by any period of suspension under paragraph (8) of that Article;

senior officer” means—

(a)

in relation to a company, a director;

(b)

in relation to a partnership, a partner;

(c)

in relation to any other business, a person holding a position equivalent to that of a director or partner;

shareholder right”, in relation to a company, means a right conferred by the holding of a share in the company's share capital—

(a)

to vote at general meetings of the company; or

(b)

to appoint or remove a member of the company's board of directors;

third country” means a country that is not, and is not part of, a European Economic Area state.

(2) In Article 10B to 10K and this Article, “relevant producer or supplier”, in relation to an applicant for certification or a certified person, means—

(a)an electricity generation undertaking, an electricity supply undertaking or a gas supply undertaking which meets the requirements of paragraph (3); or

(b)a gas producer which meets the requirements of paragraph (4).

(3) An undertaking mentioned in paragraph (2)(a) meets the requirements of this paragraph if it carries out its generation or supply activity in a European Economic Area state and it—

(a)requires a licence or similar authority to do so;

(b)would, in the Authority's opinion, require a licence to do so if it carried out the activity in Northern Ireland; or

(c)has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of it.

(4) A gas producer meets the requirements of this paragraph if it—

(a)carries out its production activity in a European Economic Area state; and

(b)has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of it.]

Conditions of licencesN.I.

11.  (1)  A licence may include—

(a)such conditions (whether or not relating to the activities authorised by the licence) as appear to the grantor to be requisite or expedient having regard to the duties imposed by[F51 Article 12 of the Energy (Northern Ireland) Order 2003][F52 or Article 9 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007]; and

(b)conditions requiring the rendering to the grantor of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.

(2) Without prejudice to the generality of paragraph (1)(a), conditions included in a licence by virtue of that sub-paragraph—

(a)may require the licence holder to enter into agreements with other persons for the use of any electric lines and electrical plant[F53owned, leased or operated by him] (wherever situated and whether or not used for the purpose of carrying on the activities authorised by the licence) for such purposes as may be specified in the conditions; and

(b)may include provision for determining the terms on which such agreements are to be entered into.

(3) [F51Without prejudice to the generality of paragraph (1)(a), conditions included in a licence by virtue of that sub-paragraph] may require the licence holder—

(a)to comply with any direction given by the Director as to such matters as are specified in the licence or are of a description so specified;

(b)except in so far as the Director consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;

(c)to refer for determination by the Director such questions arising under the licence[F51, or under any document referred to in the licence,] as are specified in the licence or are of a description so specified; and

(d)to refer for approval by the Director such things falling to be done under the licence, and such contracts or agreements made before the grant of the licence, as are specified in the licence or are of a description so specified.

[F51(3A) Conditions included in a licence under Article 10(1)(b) [F54, (bb)] or (c) by virtue of paragraph (1)(a) may require the holder, in such circumstances as are specified in the licence—

(a)so to increase his charges in connection with the transmission [F55, distribution] or supply of electricity as to raise such amounts as may be determined by or under the conditions; and

(b)to pay the amounts so raised to such persons as may be so determined]

(4) Conditions included in a licence under paragraph (1)(a) may—

(a)instead of specifying or describing any contracts or agreements to which they apply, refer to contracts or agreements designated (whether before or after the imposition of the conditions) by the Department or the Director; and

(b)instead of containing any provisions which fall to be made, refer to provisions set out in documents so designated and direct that those provisions shall have such effect as may be specified in the conditions.

[F51(5) Conditions included in a licence may contain provision for the conditions—

(a)to have effect or cease to have effect at such times and in such circumstances as may be determined by or under the conditons; or

(b)to be modified in such manner as may be specified in the conditions at such times and in such circumstances as may be so determined.]

(6) Any provision included under paragraph (5) in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.

[F51(6A) Conditions included in a licence may provide for references in the conditions to any document to operate as references to that document as revised or re-issued from time to time.]

[F56(6B) Conditions included in a licence may relate to activities whether or not they are carried out in Northern Ireland.]

(7) Any sums received by the Director in consequence of any condition of a licence shall be paid into the Consolidated Fund.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

F512003 NI 6

Compliance with Community obligationsN.I.

[F5711A.  (1)  Without prejudice to the generality of Article 11(1), a licence shall include such conditions as appear to the grantor to be requisite or expedient to ensure any activity authorised by it is carried out in compliance with the relevant requirements and prohibitions laid down by the Directive.

(2) The conditions included in a licence in accordance with paragraph (1) shall, in particular—

(a)require the licence holder to give to the Authority, in each year it is required by the Authority to do so, a report containing such information as the Authority may require in relation to—

(i)the present and likely future balance between supply of and demand for electricity in Northern Ireland and Ireland;

(ii)additional generating capacity under construction or being planned in Northern Ireland and Ireland;

(iii)the quality and level of maintenance of the generating plant and equipment and of the transmission, distribution and supply systems in Northern Ireland and Ireland;

(iv)measures taken and planned to ensure that peak demand for electricity is met and to deal with shortfalls in electricity supply in Northern Ireland and Ireland,

and to give a copy of that report to the Department;

(b)require the licence holder to keep accounts in accordance with the requirements of Article 31 of the Directive and to have them audited in accordance with those requirements and shall confer on the Department and the Authority a right of access to his accounts for the purpose of ensuring compliance with those requirements; and

(c)ensure that any person who is an eligible customer for the purposes of Article 33 of the Directive can exercise his freedom to purchase electricity from the supplier of his choice within the meaning of that Article.

(3) The conditions referred to in paragraph (1) shall, in particular, in the case of a transmission licence ensure that the holder does not disclose information contrary to Article 16 of the Directive and shall require the holder, as appropriate having regard to the activities authorised by the licence—

(a)to carry out the tasks laid down for him by Article 12 or 15(1) of the Directive;

(b)where he carries out the tasks laid down by Article 15(1) of the Directive, to do so in accordance with such criteria as may be determined and published by the Authority for the purposes of paragraph (2) of that Article;

(c)in relation to any task referred to in Article 15(3) to (5) of the Directive, to follow such rules for priority as may be specified in the conditions for the purposes of those provisions;

(d)to comply with the requirements of Article 15(6) of the Directive in procuring the energy used in the carrying out of his functions;

(e)where he balances electricity inputs to and offtakes from any transmission system used under the licence, to adopt and follow rules which comply with the relevant requirements of Article 15(7) of the Directive; and

(f)to comply with the requirements for system access laid down by Article 32 of the Directive.

(4) The conditions referred to in paragraph (1) shall, in particular, in the case of a distribution licence ensure that the holder does not disclose information contrary to Article 27 of the Directive and shall require the holder—

(a)to carry out the tasks laid down for him by Articles 25(1) and (7) of the Directive;

(b)to act in accordance with paragraph (2) of Article 25 of the Directive and to provide the information required by paragraph (3) of that Article;

(c)in relation to any task referred to in Article 25(4) of the Directive, to follow such rules for priority as may be specified in the conditions for the purposes of those provisions;

(d)to comply with the requirements of Article 25(5) of the Directive in procuring the energy used in the carrying out of his functions;

(e)where he balances electricity inputs to and offtakes from any distribution system used under the licence, to adopt and follow rules which comply with the relevant requirements of Article 25(6) of the Directive;

(f)to comply with the requirements for system access laid down by Article 32 of the Directive;

(g)to facilitate (to the extent within his control) the ability of customers to change suppliers within 3 weeks, as required by Article 3(5)(a) of the Directive; and

(h)to facilitate (to the extent within his control) the ability of customers to have access to consumption data, as required by Article 3(5)(b) of, and items (h) and (i) of paragraph 1 of Annex I to, the Directive.

(5) The conditions included in a licence in accordance with paragraph (1) shall, in particular, in the case of a transmission licence—

(a)where the holder, or a holder of a transmission licence in relation to whom the holder is a related transmission licensee, is certified under the first certification ground in Article 10F, require that the ownership unbundling requirement in Article 10G continues to be met in relation to the holder;

(b)where the holder, or a holder of a transmission licence in relation to whom the holder is a related transmission licensee, is certified under the second certification ground in Article 10F, require the maintenance in force of the arrangements by virtue of which the requirements of Article 9(9) of the Directive were met;

(c)where the holder is certified under the third certification ground in Article 10F or is designated as independent system operator for the purposes of that certification ground—

(i)require that the requirements of Articles 13(2) and 14(1) and (2) of the Directive which are relevant to the holder continue to be met; and

(ii)require that the requirements of Article 13(4) or 13(5) of the Directive which are relevant to the holder continue to be met; and

(d)require the holder to notify the Authority if any of the other conditions referred to in this paragraph ceases or is likely to cease to be met.

(6) Subject to paragraph (5), the conditions included in a licence in accordance with paragraph (1) shall, in particular, in the case of a distribution licence granted to a person forming part of a vertically integrated undertaking—

(a)require that person to comply with the requirements for independence in terms of his legal form, organisation and decision-making laid down by Article 26(1) of the Directive;

(b)require that person to comply with the requirements for independence in terms of his management and decision-making rights laid down by Article 26(2) of the Directive; and

(c)require that person to comply with the requirements laid down by Article 26(3) of the Directive.

(7) The conditions included in a licence in accordance with paragraph (1) shall, in particular, in the case of a transmission licence granted to a person forming part of a vertically integrated undertaking who carries on the combination of activities to which Article 29 of the Directive applies, as appropriate having regard to the activities authorised by the licence, require that person to comply with the requirements laid down by that provision in relation to those activities.

(8) The conditions referred to in paragraph (1) shall, in particular, in the case of a transmission or distribution licence or a licence under Article 10(1)(c) require that any supply of electricity by the licence holder to a household customer, or (as the case may be) any transmission or distribution by a licence holder in connection with such a supply, meets specified quality standards.

(9) The conditions referred to in paragraph (1) shall, in particular, in the case of a licence under Article 10(1)(c)—

(a)require that any supply of electricity by the licence holder to a household customer is given at reasonable, easily and clearly comparable, transparent and non-discriminatory prices as required by Article 3(3) of the Directive;

(b)require the introduction and maintenance of safeguards to help any consumers referred to in Article 12(3) of the Energy (Northern Ireland) Order 2003 in particular to avoid disconnection from an electricity supply;

(c)ensure that consumers of electricity have access to the information required by Article 3(9) of the Directive;

(d)ensure that household customers are not charged for changing supplier, in compliance with paragraph 1(e) of Annex I to the Directive, and are able to use procedures which comply with paragraph 1(f) of Annex I to the Directive;

(e)require that information provided to consumers of electricity (including information about the contractual terms and conditions offered to such consumers) by the holder of such a licence complies with the requirements of Article 3(7) of the Directive;

(f)make provision for customers wishing to change suppliers to be able to do so within 3 weeks, as required by Articles 3(5)(a) and 3(7) of the Directive;

(g)ensure that customers have consumption data at their disposal and are able to give access to that data to other suppliers, as required by Article 3(5)(b) and items (h) and (i) of paragraph 1 of Annex I to the Directive;

(h)ensure that customers have access to information about sources of energy efficiency advice, as required by Articles 3(8) and 3(11) of the Directive;

(i)require that the holder of the licence provides its customers with a copy of the guidance, which is to be published by the Authority pursuant to Article 7(5) of the Energy (Northern Ireland) Order 2003, as required by Article 3(16) of the Directive;

(j)ensure that household customers are offered a wide choice of payment methods, which do not unduly discriminate between customers, as required by paragraph 1(d) of Annex I to the Directive;

(k)ensure that the terms and conditions of supply contracts offered by the licence holder to household customers comply with items (a) and (d) of paragraph 1 of Annex I to the Directive;

(l)make provision for customers to be protected from unfair or misleading selling methods, as required by paragraph 1(d) of Annex I to the Directive;

(m)ensure that household customers receive a final bill following changing suppliers within the time frame required by paragraph 1(j) of Annex I to the Directive; and

(n)ensure that the holder of the licence maintains the records required by Article 40 of the Directive.]

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[F58Standard conditions of licencesN.I.

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11AA.  (1)  Such conditions as may be determined by the Department, and published by it in such manner as it considers appropriate, in relation to licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1), shall be standard conditions for the purposes of licences under that sub-paragraph.

(2) The standard conditions for the purposes of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1) may contain provision—

(a)for any standard condition included in such a licence not to have effect until brought into operation in such manner and in such circumstances as may be specified in or determined under the standard conditions;

(b)for the effect of any standard condition included in such a licence to be suspended in such manner, and in such circumstances, as may be so specified or determined; or

(c)for any standard condition included in such a licence which is for the time being suspended to be brought back into operation in such manner and in such circumstances as may be so specified or determined.

(3) Subject to paragraph (5) and Article 14(1)(b), each condition which by virtue of paragraph (1) is a standard condition for the purposes of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1) shall be incorporated (that is to say, incorporated by reference, or in the case of a licence in force at the time of any determination under paragraph (1), deemed to be incorporated by reference) in each licence under that sub-paragraph.

(4) The modification under Article 14(1)(b) of a condition of a licence shall not prevent so much of the condition as is not modified being regarded as a standard condition for the purposes of this Part.

(5) In relation to a licence in force at the time of any determination under paragraph (1), except with the consent of the licence holder, paragraph (3) shall not have effect in relation to a particular standard condition or part thereof if the effect of paragraph (3) would be to modify the conditions of that licence.]

[F59Conditions on transmission licences relating to priority dispatchN.I.

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11AB.  (1)  Without prejudice to the generality of Article 11(1), a transmission licence shall include such conditions as appear to the grantor to be requisite or expedient to ensure that in the dispatch of electricity generating installations, priority is given to:

(a)generating installations using only energy from renewable sources;

(b)generating installations using energy from renewable sources and other energy sources, but which qualify to be treated as hybrid plants in accordance with the criteria set out in the SEM Decision Document;

(c)installations generating electricity from high efficiency co-generation; and

(d)waste energy plants,

in accordance with Article 16(2)(c) of Directive 2009/28/EC and, in particular, the criteria for priority dispatch specified in the SEM Decision Document.

(2) The conditions included in a licence in pursuance of paragraph (1) are subject to the requirement and prohibitions imposed on the holder of that licence under this Order for the maintenance of a safe and secure electricity supply but where the licence holder takes any measure for that purpose which would, but for this paragraph, significantly contravene those conditions, the licence holder shall take such corrective action as is necessary to ensure that such contravention is minimised.

(3) Where a licence holder takes any measure and any corrective action under paragraph (2), the licence holder shall report to the Authority on those measures and on the corrective action.

(4) In this Article—

Directive 2009/28/EC” means 2009/28/EC of the European Parliament and of the Council on the promotion of the use of energy from renewable sources;

high efficiency co-generation” means co-generation of electricity that meets the criteria of Annex III of Directive 2004/8/EC of the European Parliament and of the Counsel on the promotion of co-generation based on useful heat demand in the internal energy market and amending Directive 92/42/EEC;

energy from renewable sources” has the meaning given in Article 2(a) of Directive 2009/28/EC;

waste energy plant” means any stationary or mobile technical unit and equipment dedicated to the thermal treatment of waste with recovery and beneficial use of the combustion heat generated, including the incineration by oxidation of waste as well as other thermal waste treatment processes such as pyrolysis, gasification or plasma processes insofar as the substances resulting from the treatment are subsequently combusted with recovery and beneficial use of the combustion heat generated;

SEM Decision Document” means the Decision Paper SEM-11-062 of the Single Electricity Market Committee of 26th August 2011.]

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Modifications etc. (not altering text)

Provision of additional capacity or energy efficiency measuresN.I.

11B.  (1)  Where it appears to the Department, on the basis of a report given in pursuance of a condition included in a licence under Article 11A(2)(a) or otherwise, that there is insufficient capacity existing, under construction or planned to meet the projected demand for electricity at any time in the future, it may itself invite tenders for, or may direct the Authority to invite tenders for—

(a)such further generating capacity; or

(b)the provision of such energy efficiency or demand-side management measures (within the meaning of [F60Article 8] of the Directive),

as, in its opinion, will meet any such projected shortfall in supply.

(2) Where the Department has invited tenders under paragraph (1) it may enter into such arrangements as it considers necessary or expedient to ensure that any capacity or measures tendered for are used to meet the projected shortfall in supply.

(3) Where the Authority has invited tenders in pursuance of a direction under paragraph (1) in relation to any generating capacity or energy efficiency or demand-side management measures, the Department may by further direction require it to enter into such arrangements as may be specified therein to ensure that the capacity or measures tendered for are provided and used to meet the projected shortfall in supply.

(4) A direction under paragraph (3) may include in particular provision for ensuring adequate finance for the provision and use of any capacity or measures to which it relates.

(5) Where the Department invites tenders under paragraph (1), or the Authority invited tenders in pursuance of a direction under that paragraph, each shall do so in accordance with such procedures as may be specified by the Department and which comply with the requirements of [F61Article 8] of the Directive and shall select the successful tenderer on the basis of criteria determined and published by the Department in accordance with and for the purposes of that Article.

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[F62General duties of electricity distributors and transmission licence holdersN.I.

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F62Art. 12 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 7 (with transitional provisions in Pt. IV)

12.  (1)  It shall be the duty of an electricity distributor to—

(a)develop and maintain an efficient, coordinated and economical system of electricity distribution [F63which has the long-term ability to meet reasonable demands for the distribution of electricity] ; and

(b)facilitate competition in the supply and generation of electricity.

(2) It shall be the duty of the holder of a licence under Article 10(1)(b), as appropriate having regard to the activities authorised by the licence, to—

(a)take such steps as are reasonably practicable to—

(i)ensure the development and maintenance of an efficient, co-ordinated and economical system of electricity transmission which has the long-term ability to meet reasonable demands for the transmission of electricity; and

(ii)contribute to security of supply through adequate transmission capacity and system reliability; and

(b)facilitate competition in the supply and generation of electricity.]

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Powers, etc., of licence holdersN.I.

13.  [F64(1)  Subject to paragraph (2), Schedule 3 (which makes provision with respect to the compulsory acquisition of land) and Schedule 4 (which confers other powers and makes other provision) shall have effect—

[F65(a)in relation to the holder of a licence under Article 10(1)(b);

(b)in relation to the holder of a licence under Article 10(1)(bb) to the extent that his licence so provides; and]

(c)to the extent that his licence so provides, in relation to any other licence holder;

and references in those Schedules to a licence holder shall be construed accordingly.]

(2) Where any provision of either of the Schedules mentioned in paragraph (1) is applied to a licence holder by his licence, it shall have effect subject to such restrictions, exceptions and conditions as may be included in the licence for the purpose of qualifying that provision as so applied or any power or right conferred by or under it.

(3) A licence under Article 10(1)(a) may provide that Schedule 4 shall have effect in relation to the licence holder as if—

(a)any reference to any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on included a reference to any purpose connected with the supply to any premises of heat produced in association with electricity and steam produced from, and air and water heated by, such heat; and

(b)any reference to electric lines or electrical plant included a reference to pipes and associated works used or intended to be used for conveying heat so produced, and steam produced from, and air and water heated by, such heat;

and in this paragraph “associated works”, in relation to pipes, means any of the following connected with the pipes, namely, any valve, filter, stopcock, pump, meter, inspection chamber and manhole and such other works as may be prescribed.

(4) F66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F67(4A) A transmission licence [F68or a distribution licence] may provide that, where the licence is modified so as to reduce in any respect the area in which the licence holder may carry on activities, Schedule 4 shall have effect in relation to the licence holder as if any reference to the activities which he is authorised by his licence to carry on included a reference to the activities which he was previously so authorised to carry on.]

(5) The provisions of Schedule 5 (which provides for water rights for hydro-electric stations) shall have effect.

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F64Art. 13(1) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 8(1) (with transitional provisions in Pt. IV)

F66Art. 13(4) repealed (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 8(2) (with transitional provisions in Pt. IV)

Modification of licencesN.I.

Modification by agreementN.I.

14.  [F69(1)  Subject to the following provisions of this Article, the Authority may—

(a)modify the conditions of a licence if the licence holder consents to the modifications;

(b)in granting a licence, modify any of the standard conditions to such extent as the Authority considers requisite to meet the circumstances of the particular case; or

(c)modify the standard conditions of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1).]

(2) Before making modifications under this Article, the Director shall give notice—

(a)stating that he proposes to make the modifications and setting out their effect;

(b)stating the reasons why he proposes to make the modifications; and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(3) A notice under paragraph (2) shall be given—

(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the licence holder.

(4) The Director shall also send a copy of a notice under paragraph (2) to the Department; and if, within the period specified in the notice, the Department directs the Director not to make any modifications, the Director shall comply with the direction.

[F70(5) The Authority shall not make any modifications of standard conditions under paragraph 1(c) unless—

(a)no licence holder whose licence incorporates the standard conditions (a “relevant licence holder”) has objected, within the period specified under paragraph (2)(c), to the modifications, unless any such objection has been withdrawn; or

(b)the Authority is of the opinion that—

(i)the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying out of activities to which the modifications relate;

(ii)the modifications would remove or reduce the burden without removing any necessary protection; and

(iii)the modifications are such that no relevant licence holder would be unduly disadvantaged in competing with other relevant licence holders.

(6) Where at any time the Authority modifies standard conditions under paragraph (1)(c) for the purposes of their incorporation in licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 8(1) granted after that time, it shall publish the modifications in such manner as it considers appropriate.]

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Modification references to Monopolies CommissionN.I.

15.  (1)  The Director may make to the[F71 Competition Commission] a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which—

(i)relate to the[F72 carrying on of activities authorised or regulated by a particular] licence; and

(ii)are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.

(2) The Director may, at any time, by notice given to the[F71 Competition Commission] vary a reference under this Article by adding to the matters specified in the reference or by excluding from the reference some or all of the matters so specified; and on receipt of any such notice the Commission shall give effect to the variation.

(3) The Director may specify in a reference under this Article, or a variation of such a reference, for the purpose of assisting the[F71 Competition Commission] in carrying out the investigation on the reference—

(a)any effects adverse to the public interest which, in his opinion, the matters specified in the reference or variation have or may be expected to have; and

(b)any modifications of the conditions of the licence by which, in his opinion, those effects could be remedied or prevented.

(4) As soon as practicable after making a reference under this Article or a variation of such a reference, the Director—

(a)shall serve a copy of the reference or variation on the licence holder; and

(b)shall publish particulars of the reference or variation in such manner as he considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5) The Director shall also send a copy of a reference under this Article, or a variation of such a reference, to the Department; and if, before the end of the period of 28 days from the day on which the Department receives the copy of the reference or variation, the Department directs the[F71 Competition Commission] not to proceed with the reference or, as the case may require, not to give effect to the variation, the Commission shall comply with the direction.

(6) It shall be the duty of the Director, for the purpose of assisting the[F71 Competition Commission] in carrying out an investigation on a reference under this Article[F72 or in carrying out functions under Article 17A], to give to the Commission—

(a)any information in his possession which relates to matters falling within the scope of the investigation[F72 or the carrying out of those functions] and—

(i)is requested by the Commission for that purpose; or

(ii)is information which, in his opinion, it would be appropriate for that purpose to give to the Commission without any such request; and

(b)any other assistance which the Commission may require, and which it is within his power to give, in relation to any such matters;

and the Commission, for the purpose of carrying out any such investigation[F72 or such functions], shall take account of any information given to them for that purpose under this paragraph.

(7) In determining for the purposes of this Article whether any particular matter operates, or may be expected to operate, against the public interest, the[F71 Competition Commission] shall have regard to the matters as respects which duties are imposed on the Department and the Director by[F72 Article 12 of the Energy (Northern Ireland) Order 2003][F73 or Article 9 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007.]

[F74Paras. (8) and (8A) rep. by 2002 c. 40

(9) The Secretary of State may appoint members of the Competition Commission for the purposes of references under this Article.

(9A) In selecting a group to perform the Commission's functions in relation to any such reference, the chairman of the Commission must select up to three of the members appointed under paragraph (9) to be members of the group.]

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F71SI 1999/506

F722003 NI 6

[F75References under Article 15: time limitsN.I.

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15A  (1)  Every reference under Article 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the Competition Commission on a reference under Article 15 shall not have effect (and no action shall be taken in relation to it under Article 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under paragraph (3).

(3) The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under paragraph (3) in relation to the same reference.

(5) The Director shall, in the case of an extension made by him under paragraph (3)—

(a)publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b)send a copy of what has been published by him under sub-paragraph (a) to the licence holder.]

References under Article 15: powers of investigationN.I.

15B  (1)  The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 15 as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if—

(a)subsection (2) were omitted; and

(b)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3) Section 111(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—

(a)for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “ made ”;

(b)for the words “published (or given)”, in both places where they appear, there were substituted “ made ”; and

(c)the words “by this Part” were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.

(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.

Reports on modification referencesN.I.

16.  (1)  In making a report on a reference under Article 15, the[F76 Competition Commission]

(a)shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;

(b)where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c)where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify in the report modifications by which those effects could be remedied or prevented.

[F77(1A) For the purposes of[F78 Articles 17 and 17A], a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.]

Para. (2) rep. by 1998 c.41

[F79(3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under Article 15.

(3A) In making any report on a reference under Article 15 the Competition Commission must have regard to the following considerations before disclosing any information.

(3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (3C)(a) or (b) is necessary for the purposes of the report.]

(4) A report of the[F76 Competition Commission] on a reference under Article 15 shall be made to the Director.

(5) Subject to paragraph (6), the Director—

(a)shall, on receiving such a report, send a copy of it to the licence holder to which the report relates and to the Department; and

(b)shall, not less than 14 days from the day on which the Department receives that copy, publish the report in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(6) If it appears to the Department that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, the Department may, before the end of the period of 14 days mentioned in paragraph (5)(b), direct the Director to exclude that matter from every copy of the report to be published under that sub-paragraph.

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F76SI 1999/506

F782003 NI 6

Modification following reportN.I.

17.  (1)  Where a report of the[F80 Competition Commission] on a reference under Article 15—

(a)includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;

(b)specifies effects adverse to the public interest which those matters have or may be expected to have;

(c)includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of the licence; and

(d)specifies modifications by which those effects could be remedied or prevented,

the Director shall, subject to the following provisions of this Article, make such modifications of the conditions of that licence as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(2) Before making modifications under this Article, the Director shall have regard to the modifications specified in the report.

(3) Before making modifications under this Article, the Director shall give notice—

(a)stating that he proposes to make the modifications and setting out their effect;

(b)stating the reasons why he proposes to make the modifications; and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under paragraph (3) shall be given—

(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the licence holder.

[F81(5) After considering any representations or objections made in response to proposals set out in a notice under paragraph (3) the Authority shall give notice to the Competition Commission—

(a)setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and

(b)stating the reasons for making the modifications.

(6) The Authority shall include with the notice under paragraph (5) a copy of any representations or objections received in relation to the notice under paragraph (3).

(7) If the period of four weeks from the date on which the notice under paragraph (5) is given elapses without a direction under Article 17A(1)(a) having been given to it, the Authority shall—

(a)make the modifications set out in the notice; or

(b)if a direction under Article 17A(1)(b) has been given, make the modifications which are not specified in the direction.]

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F80SI 1999/506

F812003 NI 6

[F82Competition Commission's power to veto modifications following reportN.I.

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F822003 NI 6

17A.  (1)  The Competition Commission (in this Article referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under Article 17(5), direct the Authority—

(a)not to make the modifications set out in that notice; or

(b)not to make such of the modifications as may be specified in the direction;

and the Authority shall comply with any such direction.

(2) The Department may, within the period of four weeks after the date on which the Commission is given a notice under Article 17(5) and on the application of the Commission, direct that the period for giving a direction under paragraph (1) (and, accordingly, the period mentioned in Article 17(7)) shall be extended by 14 days.

(3) The power to give a direction under paragraph (1) may only be exercised in respect of such of the modifications set out in the notice under Article 17 (5)(a) as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.

(4) If the Commission gives a direction under paragraph (1), the Commission—

(a)shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and

(b)shall itself make such modifications of the conditions of the licence as appear to it to be requisite for the purpose of remedying or preventing—

(i)if the direction was given under paragraph (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications;

(ii)if the direction was given under paragraph (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under Article 17(7)(b).

(5) In exercising its function under paragraph (4)(b) the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a licence.

(6) Before making modifications under paragraph (4)(b) the Commission shall give notice—

(a)stating that it proposes to make the modifications and setting them out;

(b)stating the reason why it proposes to make them;

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7) A notice under paragraph (4)(a) or (6) shall be given—

(a)by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy on the Authority and the holder of the licence in question.

(8) After making modifications under this Article the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.

(9) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph (4)(a), (6) or (8).

(10) In giving any notice under paragraph (4)(a) or (6), or publishing any notice under paragraph (8), the Commission shall have regard to the following considerations before disclosing any information.

(11) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

(12) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.

(13) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (12)(a) or (b) is necessary for the purposes of the notice.

(14) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (15) and (16), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this Article, as they apply for the purposes of any investigation on references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(15) Section 110 shall, in its application by virtue of paragraph (14), have effect as if—

(a)subsection (2) were omitted;

(b)in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “ the publication by the Commission of a notice under Article 17A (8) of the Electricity (Northern Ireland) Order 1992 in connection with the reference concerned or, if no direction has been given by the Commission under Article 17A(1) of that Order in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period ”;

(c)in subsection (9) the words from “or section” to “section 65 (3))” were omitted.

(16) Section 111 (5)(b) shall, in its application by virtue of paragraph (14), have effect as if for sub-paragraph (ii) there were substituted—

(ii)if earlier, the day on which a notice is published by the Commission under Article 17A (8) of the Electricity (Northern Ireland) Order 1992 in connection with the reference concerned or, if no direction is given by the Commission under Article 17A(1) of that Order in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period. .

(17) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (14), have effect in relation to those sections as applied by virtue of that paragraph.

(18) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.]

Modification by order under other statutory provisionsN.I.

18 .F83  (1)  Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this Article “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

(2) In paragraph (1) “relevant order” means—

(a)an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

(i)one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

(ii)one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

(b)an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission [F84, distribution] or supply of electricity.

(3) In paragraph (2) expressions which are also used in Part 3 or, as the case may be, Part 4 of the Enterprise Act 2002 have the same meanings as in that Part of that Act.

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F83mod. by SI 2003/1592

Art. 18A rep. by 2003 NI 6

Supply by public electricity suppliersN.I.

[F85 Duty to connect on requestN.I.

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F85Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

19.  (1)  An electricity distributor is under a duty—

(a)to make a connection between a distribution system of his and any premises, when required to do so by—

(i)the owner or occupier of the premises; or

(ii)an electricity supplier or person supplying electricity under an exemption acting with the consent of the owner or occupier of the premises, for the purpose of enabling electricity to be conveyed to or from the premises;

(b)to make a connection between a distribution system of his and any distribution system of another electricity distributor, when required to do so by that distributor for the purpose of enabling electricity to be conveyed to or from that other system.

(2) Any duty under paragraph (1) includes a duty to provide such electric lines or electrical plant as may be necessary to enable the connection to be used for the purpose for which it is required.

(3) The duties under this Article shall be performed subject to such terms as may be agreed under Article 20 for so long as the connection is required.

(4) In this Article and Articles 20 to 26—

(a)any reference to making a connection includes a reference to maintaining the connection (and continuing to provide the necessary electric lines or electrical plant);

(b)any reference to requiring a connection includes a reference to requiring the connection to be maintained (and the continued provision of the necessary electric lines and electrical plant); and

(c)any reference to the provision of any electric line or electrical plant is a reference to the provision of such a line or an item of electrical plant either by the installation of a new one or by the modification of an existing one.

(5) The duties under this Article are subject to the following provisions of this Part and any regulations made under those provisions.]

[F86 Procedure for requiring a connectionN.I.

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F86Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

20.  (1)  Where a person requires a connection to be made by an electricity distributor in pursuance of Article 19(1), he shall give the distributor a notice requiring him to offer terms for making the connection.

(2) That notice must specify—

(a)the premises or distribution system to which a connection to the distributor's system is required;

(b)the date on or by which the connection is to be made; and

(c)the maximum power at which electricity may be required to be conveyed through the connection.

(3) The person requiring a connection shall also give the distributor such other information in relation to the required connection as the distributor may reasonably request.

(4) A request under paragraph (3) shall be made as soon as practicable after the notice under paragraph (1) is given (if not made before that time).

(5) As soon as practicable after receiving the notice under paragraph (1) and any information requested under paragraph (3) the distributor shall give to the person requiring the connection a notice—

(a)stating the extent to which the proposals specified in the other person's notice under paragraph (1) are acceptable to the distributor and specifying any counter proposals made by the distributor;

(b)specifying any payment which that person will be required to make under Article 22(1), or under regulations made under Article 22(2);

(c)specifying any security which that person will be required to give under Article 23;

(d)specifying any other terms which that person will be required to accept under Article 24; and

(e)stating the effect of Article 26.]

[F87 Exceptions from duty to connectN.I.

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F87Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

21.  (1)  Nothing in Article 19(1) requires an electricity distributor to make a connection if and to the extent that—

(a)he is prevented from doing so by circumstances beyond his control;

(b)circumstances exist by reason of which his doing so would or might involve his being in breach of regulations under Article 32, and he has taken all such steps as it was reasonable to take both to prevent the circumstances from occurring and to prevent them from having that effect; or

(c)there is a lack of capacity or there are exceptional circumstances which render it impracticable for him to do so.

(2) Without prejudice to the generality of paragraph (1) an electricity distributor is not required to make a connection if—

(a)making the connection involves the distributor doing something which, without the consent of another person, would require the exercise of a power conferred on him by any provision of Schedule 3 or 4;

(b)those provisions do not have effect in relation to him; and

(c)any necessary consent has not, at the time the request is made, been given.

(3) Paragraph (1)(c) does not permit an electricity distributor to disconnect any premises or distribution system to which a connection is being maintained by him unless the distributor gives—

(a)where the connection is to premises, to the occupier or to the owner if the premises are not occupied;

(b)where the connection is to another distribution system, to the electricity distributor who runs that system,

not less than seven working days' notice of his intention to disconnect the premises or distribution system.]

[F88 Power to recover expenditureN.I.

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F88Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

22.  (1)  Where any electric line or electrical plant is provided by an electricity distributor under Article 19(1), the distributor may require any expenses reasonably incurred in providing it to be defrayed by the person requiring the connection to such extent as is reasonable in all the circumstances.

(2) Regulations made, after consultation with the Authority, may make provision for entitling an electricity distributor to require a person requiring a connection in pursuance of Article 19(1) to pay to the distributor, in respect of any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of making the connection, such amount as may be reasonable in all the circumstances if—

(a)the connection is required within the prescribed period after the provision of the line or plant; and

(b)a person (“the initial contributor”) has made a payment to the distributor in respect of those expenses, the line or plant having been provided for the purpose of making a connection to any premises or distribution system as required by that person.

(3) Regulations under paragraph (2) may require an electricity distributor who, in pursuance of this Article or the regulations, has recovered any amount in respect of expenses reasonably incurred in providing any electric line or electrical plant—

(a)to exercise his rights under the regulations in respect of those expenses; and

(b)to apply any payments received by him in the exercise of those rights in making such payments as may be appropriate towards reimbursing the initial contributor and any persons previously required to make payments under the regulations.

(4) Any reference in this Article to any expenses reasonably incurred in providing an electric line or electrical plant includes a reference to the capitalised value of any expenses likely to be so incurred in continuing to provide it.]

[F89 Power to require securityN.I.

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F89Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

23.  (1)  Subject to the following provisions of this Article, an electricity distributor may require any person who requires a connection in pursuance of Article 19(1) to give him reasonable security for the payment to him of all money which may become due to him under Article 22 in respect of the provision of any electric line or electrical plant.

(2) If a person fails to give any security required under paragraph (1), or the security given has become invalid or insufficient, and he fails to provide alternative or additional security, the electricity distributor may if he thinks fit—

(a)if the connection has not been made, refuse to provide the line or plant for so long as the failure continues; or

(b)if the connection is being maintained, disconnect the premises or distribution system in question.

(3) Where any money is deposited with an electricity distributor by way of security in pursuance of this Article, the distributor shall pay interest, at such rate as may from time to time be fixed by the distributor with the approval of the Authority, on every sum of 50p so deposited for every three months during which it remains in the hands of the distributor.]

[F90 Additional terms of connectionN.I.

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F90Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

24.  An electricity distributor may require any person who requires a connection in pursuance of Article 19(1) above to accept in respect of the making of the connection—

(a)any restrictions which must be imposed for the purpose of enabling the distributor to comply with regulations under Article 32;

(b)any terms which it is reasonable in all the circumstances for that person to be required to accept; and

(c)without prejudice to the generality of sub-paragraph (b), any terms restricting any liability of the distributor for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept.]

[F91 Special agreements with respect to connectionN.I.

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F91Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

25.  (1)  Notwithstanding anything in Articles 19 to 24, a person who requires a connection in pursuance of Article 19(1) may enter into an agreement with the electricity distributor (referred to in this Part as a “special connection agreement”) for the making of the connection on such terms as may be agreed by the parties.

(2) So long as a special connection agreement is effective, the rights and liabilities of the parties shall be those arising under the agreement and not those provided for by Articles 19 to 24.

(3) Nothing in paragraph (2) prevents the giving of a notice under Article 20(1) requiring a connection to be made as from the time when a special connection agreement ceases to be effective.]

[F92 Determination of disputesN.I.

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F92Arts. 19-26 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 9 (with transitional provisions in Pt. IV)

26.  (1)  A dispute arising under Articles 19 to 25 between an electricity distributor and a person requiring a connection.

[F93(a)may be referred to the Authority by either party, and such a reference shall be accompanied by such information as is necessary or expedient to allow a determination to be made in relation to the dispute; and]

(b)on such a reference, shall be determined by order made either by the Authority or, if the Authority thinks fit, by an arbitrator appointed by the Authority,

[F94and, subject to paragraph (1A), the practice and procedure] to be followed in connection with any such determination shall be such as the Authority may consider appropriate.

[F95(1A) The procedures established under paragraph (1) shall provide for the determination of the dispute to be notified to the party making the reference within the requisite period or such longer period as the Authority may agree with that person.

(1B) For the purposes of paragraph (1A), the requisite period in any case means—

(a)the period of 2 months from the date when the dispute was referred to the Authority; or

(b)where the information sent to the Authority under paragraph (1)(a) was in its opinion insufficient to enable it to make a determination, the period of 4 months from the date when the dispute was referred to the Authority.]

(2) No dispute arising under Articles 19 to 25 which relates to the making of a connection between any premises and a distribution system may be referred to the Authority after the end of the period of 12 months beginning with the time when the connection is made.

(3) Where a dispute arising under Articles 19 to 25 between an electricity distributor and a person requiring a connection falls to be determined under this Article, the Authority may give directions as to the circumstances in which, and the terms on which, the distributor is to make or (as the case may be) to maintain a connection pending the determination of the dispute.

(4) Where any dispute arising under Article 23(1) falls to be determined under this Article, the Authority may give directions as to the security (if any) to be given pending the determination of the dispute.

(5) Directions under paragraphs (3) or (4) may apply either in cases of particular descriptions or in particular cases.

(6) A person making an order under this Article shall include in the order his reasons for reaching his decision with respect to the dispute.

(7) An order under this Article—

(a)may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person making the order) as that person considers appropriate; and

(b)shall be final and shall be enforceable, in so far as it includes such provision as to costs or expenses, as if it were a judgment of the county court.

(8) In including in an order under this Article any such provision as to costs or expenses as is mentioned in paragraph (7), the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.

(9) Article 19(4)(a) does not apply to the references in this Article to making a connection.]

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[F96 Electricity Supply CodeN.I.

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F96Art. 27 substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 5(1) (with transitional provisions in Pt. IV)

27.  Schedule 6 (which relates to the distribution and supply of electricity) shall have effect.]

Enforcement of preceding provisionsN.I.

Arts. 28‐30 rep. by 2003 NI 6

Power to require information, etc.N.I.

31.  (1)  Where it appears to the Director that a licence holder may be contravening, or may have contravened, any relevant condition or requirement[F97 (as defined in Article 41 of the Energy (Northern Ireland) Order 2003)], the Director may, for any purpose connected with such of his functions under ArticleF97. . . [F98F97. . . 45B] as are exercisable in relation to that matter, serve a notice under paragraph (2) on any person.

(2) A notice under this paragraph is a notice signed by the Director and—

(a)requiring the person on whom it is served to produce, at a time and place specified in the notice, to the Director or to any person appointed by the Director for the purpose, any documents which are specified or described in the notice and are in that person's custody or under his control; or

(b)requiring that person, if he is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the Director such information as may be specified or described in the notice.

(3) No person shall be required under this Article to produce any documents which he could not be compelled to produce in civil proceedings in the High Court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.

(4) A person who without reasonable excuse fails to do anything required of him by notice under paragraph (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under paragraph (2) to produce shall be guilty of an offence and shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(6) If a person makes default in complying with a notice under paragraph (2), the High Court may, on the application of the Director, make such order as the Court thinks fit for requiring the default to be made good; and any such order may provide that all the costs of and incidental to the application shall be borne by the person in default or by any officers of a company or other body or association who are responsible for its default.

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F972003 NI 6

F981992 NI 13

[F99Dispute resolutionN.I.

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F99SR 2005/335

31A.  [F100(1)  Any person may make a complaint under this Article (hereinafter referred to as “a complaint”) if—

(a)the subject matter of the complaint constitutes a dispute between the complainant and—

(i)the holder of a transmission licence;

(ii)the holder of a distribution licence; F101. . .

(iii)a distribution exemption holder; [F102or]

[F103(iv)a supply exemption holder;]

(b)it is wholly or mainly a complaint against that holder regarding an obligation imposed upon him pursuant to the Directive; and

(c)the subject matter of the complaint—

(i)does not fall to be dealt with under Article 26 or Article 42A; and

(ii)is not capable of being determined pursuant to any other provision of this Order.]

(2) A complaint shall be made in writing to the Authority and shall be accompanied by such information as is necessary or expedient to allow the Authority to make a determination in relation to the complaint.

(3) The Authority shall establish and publish such procedures as it thinks appropriate for the determination by it of a complaint.

(4) The procedures established under paragraph (3) shall provide for the determination of the complaint to be notified to the complainant within the requisite period or such longer period as the Authority may agree with the complainant.

(5) For the purposes of paragraph (4) the requisite period in any case means—

(a)the period of two months from the date when the complaint was received by the Authority; or

(b)where the information sent to the Authority under paragraph (2) was in its opinion insufficient to enable it to make a determination, the period of four months from the date the complaint was received by the Authority.

[F104(5A) Where the Authority makes a determination under this Article, it may include in the determination an order requiring any party to the dispute to pay such sum in respect of the costs or expenses incurred by the Authority in making the determination as the Authority considers appropriate and this order shall be final and shall be enforceable as if it were a judgement of the county court.

(5B) In making an order under paragraph (5A), the Authority shall have regard to the conduct and means of the parties and other relevant circumstances.]

(6) For the purposes of this Article “determination” in relation to any complaint means a determination about the exercise of any power or duty conferred or imposed on the Authority in relation to electricity under this Order or the Energy (Northern Ireland) Order 2003 insofar as that power or duty relates to the subject matter of the complaint.

[F105(7) In this Article—

(a)distribution exemption holder” means a person who carries on the activity referred to in Article 8(1)(bb) under the authority of an exemption granted pursuant to Article 9; and

(b)supply exemption holder” means a person who carries on the activity referred to in Article 8(1)(c) under the authority of an exemption granted pursuant to Article 9.]]

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Provisions with respect to supply generallyN.I.

Regulations relating to supply and safetyN.I.

32.  (1)  Regulations may make such provision as the Department thinks fit for the purpose of—

(a)securing that supplies of electricity are regular and efficient;

(b)protecting the public from dangers arising from the generation, transmission [F106, distribution] or supply of electricity, from the use of electricity supplied or from the installation, maintenance or use of any electric line or electrical plant; and

(c)without prejudice to the generality of sub-paragraph (b), eliminating or reducing the risks of personal injury, or damage to property or interference with its use, arising as mentioned in that sub-paragraph.

(2) Without prejudice to the generality of paragraph (1), regulations under this Article may—

(a)prohibit the [F107distribution] or transmission of electricity except by means of a system approved by the Department;

(b)make provision requiring notice in the prescribed form to be given to the Department, in such cases as may be specified in the regulations, of accidents and of failures of [F108in the distribution or transmission] of electricity;

(c)[F109make provision as to the keeping, by electricity distributors or persons authorised by a licence or exemption to participate in the transmission of electricity, of maps, plans and sections as to their productions (on payment if so required of a reasonable fee) for inspection or copying;]

[F110(d)make provision for relieving electricity distributors from any duty under Article 19 or for authorising them to disconnect any premises or distribution system in such cases as may be prescribed;]

(e)make provision requiring compliance with notices given by the Department specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer, for the purpose of—

(i)preventing or ending a breach of regulations under this Article; or

(ii)eliminating or reducing a risk of personal injury or damage to property or interference with its use;

(f)provide for particular requirements of the regulations to be deemed to be complied with in the case of any electric line or electrical plant complying with specified standards or requirements;

(g)provide for the granting of exemptions from any requirement of the regulations for such periods as may be determined by or under the regulations;

(h)provide for references in the regulations to any specified document to operate as references to that document as revised or re-issued from time to time.

(3) Regulations under this Article may provide that any person—

(a)who contravenes any specified provision of the regulations; or

(b)who does so in specified circumstances,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale; but nothing in this paragraph shall affect any liability of any such person to pay compensation in respect of any damage or injury which may have been caused by the contravention.

(4) No proceedings shall be instituted in respect of an offence under the regulations except by or on behalf of the Department or the Director of Public Prosecutions for Northern Ireland.

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Electrical inspectorsN.I.

33.  (1)  The Department may appoint competent and impartial persons to be electrical inspectors under this Part.

(2) The duties of an electrical inspector under this Part shall be as follows—

(a)to inspect and test, periodically and in special cases, electric lines and electrical plant belonging to persons authorised by a licence or exemption to generate,[F111supply [F112, distribute] or participate in the transmission of] electricity;

(b)to examine, periodically and in special cases, the generation, transmission [F113, distribution] or supply of electricity by such persons;

(c)to inspect and test, if and when required by any consumer, any such lines and plant on the consumer's premises, for the purpose of determining whether any requirement imposed by or under this Part in respect of the lines or plant or the [F114conveyance] of electricity through or by them has been complied with; and

(d)such other duties as may be imposed by regulations under this Article or as the Department may determine.

(3) Regulations may—

(a)prescribe the manner in which and the times at which any duties are to be performed by electrical inspectors;

(b)require persons authorised by a licence or exemption to generate,[F115supply or participate in the transmission of] electricity—

(i)to furnish electrical inspectors with records or other information; and

(ii)to allow such inspectors access to premises and the use of electrical plant and other facilities;

[F116(c)make provision for relieving electricity distributors from any duty under Article 19 or for authorising them to disconnect any premises or distribution system in such cases as may be prescribed;]

(d)prescribe the amount of the fees which are to be payable to such inspectors.

(4) Any fees received by electrical inspectors shall be paid to the Department.

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Use, etc., of metersN.I.

34.  The provisions of Schedule 7 (which relate to the use, certification, testing and maintenance of electricity meters) shall have effect.

Protection of public interestN.I.

F117Electricity from non-fossil fuel sourcesN.I.

35.  (1)  The Department may, after consultation with the Director and with the licence holders concerned, by order require[F118 any holder] of a licence under Article 10(1)(b) or (c), before a day specified in the order, to make (in so far as he has not already done so) and produce evidence to the Director showing that he has made—

(a)such arrangements; or

(b)where a previous order under this paragraph has had effect in relation to him, such additional arrangements,

as will secure the result mentioned in paragraph (2).

(2) The result referred to in paragraph (1) is that, for a period specified in the order, there will be available to the licence holder—

(a)from non-fossil fuel generating stations; or

(b)if the order so provides, from non-fossil fuel generating stations of any particular description,

an aggregate amount of generating capacity which is not less than that specified in relation to him in the order.

(3) A holder of a licence under Article 10(1)(b) or (c) who—

(a)fails to comply with an order under paragraph (1); or

(b)having complied with such an order, by any act of his prevents the arrangements made by him from securing the result mentioned in paragraph (2),

shall be guilty of an offence and shall be liable on conviction on indictment to a fine.

(4) No proceedings shall be instituted in respect of an offence under this Article except by or on behalf of the Department.

(5) Regulations may—

(a)make provision as to the method of calculating the capacity of generating stations, and the manner in which such capacity shall be treated as available for the purposes of this Article;

(b)provide that this Article shall have effect in relation to any non-fossil fuel generating station which is driven by water, wind or solar power with such modifications as may be prescribed; and

(c)provide that electricity generated outside Northern Ireland shall be treated for the purposes of this Article as generated by a non-fossil fuel generating station in such circumstances and to such extent as may be prescribed.

(6) In this Article—

  • “coal products” means any substances produced directly or indirectly from coal;

  • “fossil fuel” means coal, coal products, peat, lignite, crude liquid petroleum or petroleum products;

  • “non-fossil fuel generating station” means a generating station which is (or may be) fuelled or driven otherwise than by a fossil fuel;

  • “petroleum products” has the same meaning as in the Energy Act 1976F119.

(7) In relation to any time before Article 8 comes into operation, any requirement imposed by paragraph (1) to consult with holders of a licence under Article 10(1)(b) or (c) shall be construed as a requirement to consult with Northern Ireland Electricity.

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F117prosp. rep. with saving by 2003 NI 6

F1182003 NI 6

Fossil fuel levyN.I.

36.  Where the Department has made one or more orders under Article 35 in relation to holders of a licence under Article 10(1)(b) or (c), regulations may provide—

[F120(a)for the imposition on such licence holders, and on other persons authorised by a licence under Article 10(1)(c), of a levy;]

(b)for the collection of payments in respect of that levy by a prescribed person; and

(c)for the making by that person of payments out of that levy.

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Fuel stocks, etc., at generating stationsN.I.

37.  (1)  This Article applies to any generating station which—

(a)is of a capacity not less than 10 megawatts; and

(b)is fuelled otherwise than by waste or manufactured gases;

and in this paragraph “waste” has the same meaning as in Article 36(1) of the Pollution Control and Local Government (Northern Ireland) Order 1978F121.

(2) The Department may by order provide that paragraph (1) shall have effect as if for the capacity mentioned in that paragraph there were substituted such other capacity (not exceeding 100 megawatts) as may be specified in the order.

(3) In respect of any generating station to which this Article applies, the Department may give a direction requiring the person who operates it—

(a)to make such arrangements with respect to stocks of fuel and other materials held at or near that generating station for the purposes of its operation as will—

(i)enable those stocks to be brought within a specified time to, and thereafter maintained at, a specified level; and

(ii)ensure that they do not fall below that level, except as may be permitted by the terms of the direction or by a direction under paragraph (4);

(b)to create such stocks and make such arrangements with respect to them;

and the amount of any stocks may be specified by reference to the period for which it would enable the generating station to be maintained in operation.

(4) In respect of any generating station to which this Article applies, the Department may give a direction—

(a)authorising or requiring the person who operates it to make such use as may be specified of any stocks held at or near that generating station; and

(b)requiring that person to operate, or not to operate, that generating station for specified periods, at specified levels of capacity or using specified fuels.

(5) In paragraphs (3) and (4) “specified” means specified by or under the Department's direction; and a direction may—

(a)specify the cases and circumstances in which any stocks are to be treated as held at or near any generating station;

(b)specify the extent to which the direction may be treated as complied with where, under arrangements made or approved by the Department, access can be had to stocks held for the use of a number of consumers;

(c)specify the manner in which any period mentioned in paragraph (3) or (4) is to be determined;

(d)require anything falling to be specified under the direction to be specified by such persons and by reference to such matters as may be specified.

(6) A direction under paragraph (3) or (4) which confers on any person the function of specifying anything falling to be specifed under the direction may require that person to exercise that function and to do so in such manner as may be specified by the direction.

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F1211978 NI 19

Provisions supplementary to Article 37N.I.

38.  [F122(1)  The Department may give a direction requiring the holder of a transmission licence [F123or a distribution licence] to give to the Department, after consultation with specified persons, any information or advice which the Department may reasonably require for purposes connected with the exercise of its functions under Article 37.

(2) The Department may give a direction requiring any person who is authorised by a licence to [F124distribute or] participate in the transmission of electricity to carry on the activities which the licence authorises or regulates (or any of them), at any time when a direction under Article 37 (4) is in force, either in a specified manner or with a view to achieving specified objectives.

(3) In paragraphs (1) and (2) “specified” means specified by or under the Department’s direction; and a person subject to a direction under paragraph (2) shall give effect to it notwithstanding any other duty imposed on him by or under this Part.]

(4) The Department shall lay before the Assembly a copy of every direction given under Article 37 or this Article unless the Department is of the opinion that disclosure of the direction is against the interests of national security or the commercial interests of any person.

(5) A person who, without reasonable excuse, contravenes a direction of the Department under Article 37 or this Article shall be guilty of an offence and shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(6) No proceedings shall be instituted in respect of an offence under this Article except by or on behalf of the Department.

(7) Paragraphs 1 to 4, 7 and 8 of Schedule 2 to the Energy Act 1976F125 (administration of Act and other matters) shall have effect as if—

(a)Article 37 were contained in that Act;

(b)the powers of paragraph 1 were exercisable for any purpose connected with securing compliance with a direction under that Article;

(c)information obtained by virtue of that paragraph could lawfully be disclosed to any person by whom anything falls to be specified under such a direction; and

(d)the powers conferred by sub-paragraph (1)(c) of that paragraph included power to direct that information and forecasts be furnished to any such person.

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Consent required for construction, etc., of generating stationsN.I.

39.  (1)  Subject to paragraphs (2) and (4), a generating station shall not be constructed, extended or operated except in accordance with a consent granted by the Department.

(2) Paragraph (1) shall not apply to a generating station whose capacity—

(a)does not exceed the permitted capacity, that is to say,[F126 10] megawatts; and

(b)in the case of a generating station which is to be constructed or extended, will not exceed the permitted capacity when it is constructed or extended.

[F127(2A) The Department shall only grant a consent under paragraph (1) in relation to the construction or extension of a generating station where it is satisfied that the station to which the consent relates will meet the published criteria.

(2B) Where the Department refuses to grant to any person a consent under paragraph (1), it shall by notice in writing—

(a)inform him of the fact;

(b)give him the reasons for that refusal; and

(c)inform him of his right to challenge the refusal.]

(3) The Department may by order provide that paragraph (2) shall have effect as if for the permitted capacity mentioned in sub-paragraph (a) there were substituted such other capacity as may be specified in the order.

(4) The Department may by order direct that paragraph (1) shall not apply to generating stations of a particular class or description, either generally or for such purposes as may be specified in the order.

(5) A consent under this Article—

(a)may include such conditions (including conditions as to the ownership or operation of the station) as appear to the Department to be appropriate; and

(b)shall continue in force for such period as may be specified in or determined by or under the consent.

(6) Any person who without reasonable excuse contravenes the provisions of this Article shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(7) No proceedings shall be instituted in respect of an offence under this Article except by or on behalf of the Department.

(8) The provisions of Schedule 8 (which relate to consents under this Article and Article 40) shall have effect.

[F127(9) In this Article, “published criteria” means the criteria determined by the Department from time to time in accordance with and for the purposes of [F128Article 7(2)] of the Directive and published by it.]

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F126SR 1994/180

F127SR 2005/335

Modifications etc. (not altering text)

Consent required for overhead linesN.I.

40.  (1)  Subject to paragraph (2), an electric line shall not be installed or kept installed above ground except in accordance with a consent granted by the Department.

(2) Paragraph (1) shall not apply—

(a)in relation to an electric line which has a nominal voltage not exceeding 20 kilovolts and is used or intended to be used for supplying a single consumer;

(b)in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or

(c)in such other cases as may be prescribed.

[F129(2A) The Department shall only grant a consent under paragraph (1) in relation to a direct line (within the meaning of the Directive) where it is satisfied that it will meet the published criteria.

(2B) Where the Department refuses to grant to any person a consent under paragraph (1), it shall by notice in writing—

(a)inform him of the fact;

(b)give him the reasons for that refusal; and

(c)inform him of his right to challenge the refusal.]

(3) A consent under this Article—

(a)may include such conditions (including conditions as to the ownership and operation of the line) as appear to the Department to be appropriate;

(b)may be varied or revoked by the Department at any time after the end of such period as may be specified in the consent; and

(c)subject to sub-paragraph (b), shall continue in force for such period as may be specified in or determined by or under the consent.

(4) Any person who without reasonable excuse contravenes the provisions of this Article shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) No proceedings shall be instituted in respect of an offence under this Article except by or on behalf of the Department.

[F129(6) In this Article, “published criteria” means the criteria determined by the Department from time to time in accordance with and for the purposes of [F130Article 34(2)] of the Directive and published by it.]

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F129SR 2005/335

Preservation of amenity and fisheriesN.I.

41.  The provisions of Schedule 9 (which relate to the preservation of amenity and fisheries) shall have effect.

Consumer protection: standards of performanceN.I.

[F131 Electricity supply and distribution: performance in individual cases.N.I.

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F131Arts. 42, 42A, 43, 43A, 43B substituted (3.7.2007 for art. 43B for certain purposes otherwise 1.11.2007) for arts. 42, 43 by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2)(3), 10 (with transitional provisions in Pt. IV)

42.  (1)  Regulations may, after consultation with persons or bodies appearing to the Authority to be representative of persons likely to be affected and arranging for such research as the Authority considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected and considering the results, prescribe such standards of performance in connection with—

(a)the activities of electricity suppliers, so far as affecting customers or potential customers of theirs, as in the Authority's opinion ought to be achieved in individual cases; and

(b)the activities of electricity distributors, so far as affecting customers or potential customers of electricity suppliers, as in the Authority's opinion ought to be achieved in individual cases.

(2) Regulations under paragraph (1)(a) may—

(a)prescribe circumstances in which electricity suppliers are to inform persons of their rights under this Article;

(b)prescribe such standards of performance in relation to any duty arising under sub-paragraph (a) as, in the Authority's opinion, ought to be achieved in all cases;

(c)prescribe circumstances in which electricity suppliers are to be exempted from any requirements of the regulations or this Article; and

(d)if the Authority is of the opinion that the differences are such that no electricity supplier would be unduly disadvantaged in competing with other electricity suppliers, make different provision with respect to different electricity suppliers.

(3) Regulations under paragraph (1)(b) may—

(a)prescribe circumstances in which electricity distributors are to inform customers or potential customers of electricity suppliers of their rights under this Article;

(b)prescribe such standards of performance in relation to any duty arising under sub-paragraph (a) as, in the Authority's opinion, ought to be achieved in all cases;

(c)make provision as to the manner in which compensation under this Article is to be made;

(d)prescribe circumstances in which electricity distributors are to be exempted from any requirements of the regulations or this Article; and

(e)if the Authority is of the opinion that the differences are such that no electricity distributor would be unduly disadvantaged in competing with other electricity distributors, make different provision with respect to different electricity distributors.

(4) If an electricity supplier or an electricity distributor fails to meet a prescribed standard, he shall make to any person who is affected by the failure and is of a prescribed description such compensation as may be determined by or under the regulations.

(5) Provision made under paragraph (3)(c) may—

(a)require or permit compensation to be made on behalf of electricity distributors by electricity suppliers to customers or potential customers; and

(b)require electricity suppliers to provide services to electricity distributors in connection with the making of compensation under this Article.

(6) The making of compensation under this Article in respect of any failure to meet a prescribed standard shall not prejudice any other remedy which may be available in respect of the act or omission which constituted that failure.

(7) In paragraph (1), any reference to research or consultation includes research or consultation carried out in anticipation of the coming into operation of this Article.]

[F132Standards of performance in individual cases: disputesN.I.

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F132Arts. 42, 42A, 43, 43A, 43B substituted (3.7.2007 for art. 43B for certain purposes otherwise 1.11.2007) for arts. 42, 43 by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2)(3), 10 (with transitional provisions in Pt. IV)

42A.  (1)  Any dispute arising under Article 42 or regulations made under that Article—

[F133(a)may be referred to the Authority by either party or, with the agreement of either party, by the General Consumer Council, and such a reference shall be accompanied by such information as is necessary or expedient to allow a determination to be made in relation to the dispute; and]

(b)on such a reference, shall be determined by order made by the Authority.

(2) A person making an order under paragraph (1) shall include in the order his reasons for reaching his decision with respect to the dispute.

(3) [F134Subject to paragraph (3A), the practice and procedure] to be followed in connection with any such determination shall be such as may be prescribed.

[F135(3A) The procedures established under paragraph (3) shall provide for the determination of the dispute to be notified to the person making the reference within the requisite period or such longer period as the Authority may agree with that person.

(3B) For the purposes of paragraph (3A), the requisite period in any case means—

(a)the period of 2 months from the date when the dispute was referred to the Authority; or

(b)where the information sent to the Authority under paragraph (1)(a) was in its opinion insufficient to enable it to make a determination, the period of 4 months from the date when the dispute was referred to the Authority.]

(4) An order under paragraph (1) shall be final and shall be enforceable as if it were a judgment of a county court.]

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[F136 Overall standards of performance: electricity supplyN.I.

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F136Arts. 42, 42A, 43, 43A, 43B substituted (3.7.2007 for art. 43B for certain purposes otherwise 1.11.2007) for arts. 42, 43 by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2)(3), 10 (with transitional provisions in Pt. IV)

43.  (1)  The Authority may, from time to time—

(a)determine such standards of overall performance in connection with the provision of electricity supply services as, in its opinion, ought to be achieved by electricity suppliers; and

(b)arrange for the publication, in such form and in such manner as it considers appropriate, of the standards so determined.

(2) Different standards may be determined under this Article for different electricity suppliers if the Authority is of the opinion that the differences are such that no electricity supplier would be unduly disadvantaged in competing with other electricity suppliers.

(3) It shall be the duty of every electricity supplier to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this Article.]

[F137Overall standards of performance: electricity distributorsN.I.

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F137Arts. 42, 42A, 43, 43A, 43B substituted (3.7.2007 for art. 43B for certain purposes otherwise 1.11.2007) for arts. 42, 43 by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2)(3), 10 (with transitional provisions in Pt. IV)

43A.  (1)  The Authority may from time to time—

(a)determine such standards of overall performance in connection with the activities of electricity distributors as, in its opinion, ought to be achieved by them; and

(b)arrange for the publication, in such form and in such manner as it considers appropriate, of the standards so determined.

(2) Different standards may be determined for different electricity distributors if the Authority is of the opinion that the differences are such that no electricity distributor would be unduly disadvantaged in competing with other electricity distributors.

(3) It shall be the duty of every electricity distributor to conduct his business in such a way as can reasonably be expected to lead to his achieving the standards set under this Article.]

[F138Procedures for prescribing or determining standards of performanceN.I.

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F138Arts. 42, 42A, 43, 43A, 43B substituted (3.7.2007 for art. 43B for certain purposes otherwise 1.11.2007) for arts. 42, 43 by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2)(3), 10 (with transitional provisions in Pt. IV)

43B.  (1)  Before determining standards of performance under Article 43 or 43A, the Authority shall—

(a)arrange for such research as the Authority considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected and consider the results;

(b)publish a notice of its proposals in accordance with paragraphs (2) and (3) and consider any representations which are duly made in respect of those proposals; and

(c)consult the General Consumer Council and other persons or bodies mentioned in paragraph (4).

(2) The notice required by paragraph (1)(b) is a notice—

(a)stating that the Authority proposes to determine standards of performance and setting out the standards of performance proposed;

(b)stating the reasons why it proposes to determine those standards of performance; and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations with respect to the proposals may be made.

(3) A notice required by paragraph (1)(b) shall be published in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of those likely to be affected by the proposals.

(4) The persons or bodies to be consulted by the Authority under paragraph (1)(c) are—

(a)electricity suppliers (in the case of standards of performance under Article 43) or electricity distributors and electricity suppliers (in the case of standards of performance under Article 43A); and

(b)persons or bodies appearing to the Authority to be representative of persons likely to be affected by the determination.

(5) The Authority shall make arrangements for securing that notices under paragraph (1)(b) and determinations under Article 43 and 43A are made available to the public by whatever means it considers appropriate.

(6) Any requirement for research or consultation under this Article may be satisfied by research and consultation carried out in anticipation of its coming into operation.]

Promotion of efficient use of electricityN.I.

44.  (1)  The Director may, after consultation with [F139electricity suppliers] and with persons or bodies appearing to him to be representative of persons likely to be affected,—

(a)determine such standards of performance in connection with the promotion of the efficient use of electricity by consumers as, in his opinion, ought to be achieved by such suppliers; and

(b)arrange for the publication, in such form and in such manner as he considers appropriate, of the standards so determined.

(2) Different standards may be determined under this Article for different [F139electricity suppliers].

[F140(3) Each [F141electricity supplier] shall, in such form and manner and with such frequency as [F142the Authority] may direct, take steps to inform his customers of—

(a)the standards determined under this Article which are applicable to that supplier; and

(b)that supplier's level of performance as respects those standards.]

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F1401992 NI 13

F141Words in art. 44(3) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 8(b) (with transitional provisions in Pt. IV)

F142Words in art. 44(3) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 8(c) (with transitional provisions in Pt. IV)

Information with respect to levels of performanceN.I.

45.  (1)  [F143the Authority] shall collect information with respect to—

(a)the compensation made by [F144electricity suppliers and electricity distributors] under Article 42;

(b)the levels of overall performance achieved by such suppliers in connection with the provision of electricity supply services; and

(c)the levels of performance achieved by such suppliers in connection with the promotion of the efficient use of electricity by consumers.

(2) On or before such date in each year as may be specified in a direction given by the Director, each [F145electricity supplier] shall furnish to the Director the following information, namely—

(a)as respects each standard prescribed by regulations under Article 42, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and

(b)as respects each standard determined under Article 43 or 44, such information with respect to the level of performance achieved by the supplier as may be so specified.

[F146(2A) At such times as may be specified in a direction given by the Authority, each electricity distributor shall furnish to the Authority the following information, namely—

(a)as respects each standard prescribed by regulations under Article 42, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and

(b)as respects each standard determined under Article 43A, such information with respect to the level of performance achieved by the distributor as may be so specified.

(2B) The Authority shall from time to time collect information with respect to—

(a)the compensation made by electricity distributors under Article 42;

(b)the levels of overall performance achieved by electricity distributors.

(2C) At such times as may be specified in a direction given by the Authority, each electricity distributor shall furnish to the Authority the following information, namely—

(a)as respects each standard prescribed by regulations under Article 42, the number of cases in which compensation was made and the aggregate amount or value of that compensation; and

(b)as respects each standard determined under Article 43A, such information with respect to the level of performance achieved by the distributor as may be so specified.]

(3) [F147An electricity supplier] who without reasonable excuse fails to do anything required of him by paragraph (2) [F148and any electricity distributor who without reasonable excuse fails to do anything required of him by paragraph (2A) or (2C)] shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) [F143the Authority] shall at least once in every year arrange for the publication, in such form and in such manner as he considers appropriate, of such of the information collected by or furnished to him under this Article as it may appear to him expedient to give to customers or potential customers of [F149electricity suppliers or electricity distributors].

(5) In arranging for the publication of any such information [F143the Authority] shall have regard to the need for excluding, so far as that is practicable—

(a)any matter which relates to the affairs of an individual, where publication of that matter would or might, in the opinion of [F143the Authority], seriously and prejudicially affect the interests of that individual; and

(b)any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporate, where publication of that matter would or might, in the opinion of [F143the Authority], seriously and prejudicially affect the interests of that body.

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F145Words in art. 45(2) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 9(c) (with transitional provisions in Pt. IV)

F147Words in art. 45(3) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 9(e) (with transitional provisions in Pt. IV)

F149Words in art. 45(4) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 9(f) (with transitional provisions in Pt. IV)

[F150Information to be given to customers about overall performanceN.I.

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F1501992 NI 13

45A.  (1)  Each [F151electricity supplier and each electricity distributor] shall, in such form and manner and with such frequency as the Director may direct, take steps to inform [F152customers of electricity suppliers] of—

(a)the standards of overall performance determined under Article 43 [F153or, as the case may be Article 43A] which are applicable to that supplier [F154or distributor]; and

(b)that supplier's [F155or that distributor's] level of performance as respects each of those standards.

(2) In giving any such direction, the Director shall not specify a frequency of less than once in every period of 12 months.]

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F151Words in art. 45A(1) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 10(a) (with transitional provisions in Pt. IV)

F152Words in art. 45A(1) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 10(b) (with transitional provisions in Pt. IV)

Modifications etc. (not altering text)

[F156Procedures for dealing with complaintsN.I.

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F1561992 NI 13

45B.  (1)  Each [F157electricity supplier] shall establish a procedure for dealing with complaints made by his customers or potential customers in connection with the provision of electricity supply services.

(2) No such procedure shall be established, and no modification of such a procedure shall be made, unless—

(a)the supplier has consulted the[F158 General Consumer Council]; and

(b)the proposed procedure or modification has been approved by [F159the Authority].

(3) The supplier shall—

(a)publicise the procedure in such manner as may be approved by [F159the Authority]; and

(b)send a description of the procedure, free of charge, to any person who asks for one.

(4) [F159the Authority] may give a direction to any [F160electricity supplier] requiring the supplier to review his procedure or the manner in which it operates.

(5) A direction under paragraph (4)—

(a)may specify the manner in which the review is to be conducted; and

(b)shall require a written report of the review to be made to [F159the Authority].

(6) Where [F159the Authority] receives a report under paragraph (5)(b), he may, after consulting the supplier, direct him to make such modifications of—

(a)the procedure; or

(b)the manner in which the procedure operates,

as may be specified in the direction.

(7) Paragraph (2) does not apply to any modification made in compliance with a direction under paragraph (6).]

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F157Words in art. 45B(1) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 11(a) (with transitional provisions in Pt. IV)

F1582003 NI 6

F160Words in art. 45B(4) substituted (1.11.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(2), 11(1), Sch. 2 para. 11(a) (with transitional provisions in Pt. IV)

Consumer protection: miscellaneousN.I.

Functions with respect to competitionN.I.

46.  Para. (1) rep. by 2002 c. 40

[F161(2) The functions to which paragraph (2A) applies shall be concurrent functions of the Director and the Office of Fair Trading.

(2A) This paragraph applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to commercial activities connected with the generation, transmission [F162, distribution] or supply of electricity.

(2B) So far as necessary for the purposes of, or in connection with, paragraphs (2) and (2A), references in Part 4 of the Act of 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).]

[F163[F164(3) The Director shall be entitled to exercise, concurrently with the Office of Fair Trading, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51),so far as relating to—

(a)agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b)conduct of the kind mentioned in section 18(1) of that Act,

(c)agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or

(d)conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community,

which relate to commercial activities connected with the generation, transmission [F162, distribution] or supply of electricity.]

(3A) So far as necessary for the purposes of, or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 to[F161 the Office of Fair Trading] are to be read as including a reference to the Director ([F164 except in sections 31D(1) to (6), 38(1) to (6)], 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).]

[F161(4) Before the Office of Fair Trading or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2), it or he shall consult the other.

(4A) Neither the Office of Fair Trading nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2) if functions which are so exercisable have been exercised in relation to that matter by the other.]

(5) It shall be the duty of the Director, for the purpose of assisting the[F165 Competition Commission] in carrying out an investigation on a reference made to them by the Director by virtue of paragraph (2)F163. . . , to give to the Commission—

(a)any information which is in his possession and which relates to matters falling within the scope of the investigation and—

(i)is requested by the Commission for that purpose; or

(ii)is information which in his opinion it would be appropriate for that purpose to give to the Commission without any such request; and

(b)any other assistance which the Commission may require and which it is within his power to give, in relation to any such matters,

and the Commission shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this paragraph.

(6) If any question arises[F166 in any particular case as to the jurisdiction of the Director under any of the provisions mentioned in][F161 paragraph (2A)] or (3)F167. . . F166. . . , that question shall be referred to and determined by the Department; and no objection shall be taken to anything done under—

(a)[F161Part 4 of the Enterprise Act 2002] (reports of[F165 Competition Commission]); or

[F163(b)Part I of the Competition Act 1998 ([F164 other than sections 31D(1) to (6), 38(1) to (6)] and 51),]

by or in relation to the Director on the ground that it should have been done by or in relation to[F161 the Office of Fair Trading].

[F161(6A) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Director by virtue of paragraph (2) as if the references in section 117(1)(a) and (2) to the Office of Fair Trading included references to the Director.]

Para. (7) rep. by 2002 c. 40

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F164SI 2004/1261

F165SI 1999/506

Fixing of maximum charges for reselling electricityN.I.

47.  (1)  This Article applies to electricity supplied to a consumer's premises by an authorised electricity supplier, that is to say, a person who is authorised by a licence or exemption to supply electricity.

(2) The Director may fix maximum prices at which electricity to which this Article applies may be resold, and shall publish any prices so fixed in such manner as in his opinion will secure adequate publicity for them.

(3) Different prices may be fixed under this Article in different classes of cases, which may be defined by reference to areas, tariffs applicable to electricity supplied by the authorised electricity suppliers or any other relevant circumstances.

(4) If any person resells electricity to which this Article applies at a price exceeding the maximum price fixed under this Article and applicable thereto, the amount of the excess shall be recoverable summarily by the person to whom the electricity was resold.

[F168 Billing disputesN.I.

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47A.  (1)  A billing dispute—

(a)may be referred by the customer who is party to the dispute to the Authority for determination in accordance with this Article; and

(b)on such a reference, shall be determined by order made by the Authority or, if the Authority thinks fit, an arbitrator appointed by the Authority.

(2) In this Article “billing dispute” means a dispute between an electricity supplier and a customer concerning the amount of the charge which the supplier is entitled to recover from the customer in connection with the provision of electricity supply services.

(3) The practice and procedure to be followed in connection with the determination of billing disputes shall be such as the Authority thinks appropriate and shall be published by the Authority.

(4) Except with the consent of the Authority, no billing dispute may be referred for determination under this Article—

(a)unless the matter in dispute has first been referred to the General Consumer Council pursuant to Article 22 of the Energy (Northern Ireland) Order 2003 and the matter has not been resolved to the satisfaction of the customer within 3 months of the matter being referred to the General Consumer Council;

(b)after the end of the period of 12 months after the end of the period in respect of which the charge which is the subject of the dispute applies.

(5) Where a billing dispute is referred to the Authority, an order under this Article shall be made and notified to the parties to the dispute within the requisite period or such longer period as the Authority may agree with the person referring the dispute.

(6) For the purposes of paragraph (5), the requisite period in any case means—

(a)the period of 2 months from the date when the dispute was referred to the Authority; or

(b)where information given to the Authority in relation to the dispute was in its opinion insufficient to enable it to make a determination, the period of 4 months from the date the dispute was referred to the Authority.

(7) A person making an order under this Article shall include in the order his reasons for reaching his decision with respect to the dispute.

(8) An order under this Article—

(a)may include provision requiring either party to the dispute to pay a sum in respect of the costs and expenses of the person making the order; and

(b)shall be final and enforceable as if it were a judgment of the county court.

(9) In including in an order under this Article any such provision as to costs or expenses as is mentioned in paragraph (8)(a), the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.

(10) The Authority or an arbitrator appointed by him shall not determine any billing dispute which is the subject of proceedings before, or with respect to which judgment has been given by, any court.

(11) Neither party to any billing dispute which has been referred to the Authority for determination in accordance with this Article shall commence proceedings before any court in respect of that dispute pending the determination of the dispute in accordance with this Article.

(12) An electricity supplier may not commence proceedings before any court in respect of any charge in connection with the provision by him of electricity supply services unless, not less than 28 days before doing so, the customer concerned was informed by him, in such form and manner (if any) as may be required by any conditions of the electricity supplier's licence, of—

(a)his intention to commence proceedings;

(b)the customer's rights by virtue of this Article; and

(c)such other matters (if any) as may be prescribed.

(13) The powers of the Authority under Article 31 shall also be exercisable for any purpose connected with the determination of any billing dispute referred to him in accordance with this Article as they are exercisable for a purpose mentioned in paragraph (1) of that Article.]

Arts. 48 and 49 rep. by 2003 NI 6

Other functions of DirectorN.I.

General functionsN.I.

50.  (1)  It shall be the duty of the Director, so far as it appears to him practicable to do so—

(a)to keep under review the carrying on both in Northern Ireland and elsewhere of activities to which this paragraph applies; and

(b)to collect information with respect to those activities, and the persons by whom they are carried on, with a view to facilitating the exercise of his[F169 electricity functions];

and this paragraph applies to any activities connected with the generation, transmission [F170, distribution] and supply of electricity, including in particular activities connected with the supply to any premises of heat produced in association with electricity and steam produced from and air and water heated by such heat.

(2) The Department may [F171issue guidance] indicating—

(a)considerations to which the Director should have particular regard in determining the order of priority in which matters are to be brought under review in performing his duty under paragraph (1)(a) or (b); and

(b)considerations to which, in cases where it appears to the Director that any of his[F169 electricity functions] are exercisable, he should have particular regard in determining whether to exercise those functions.

[F172(2A) A direction under paragraph (2) does not apply in relation to—

(a)the exercise by the SEM Committee of its functions under Article 6(2) or 8 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007;

(b)the Authority in giving effect to any decision of the SEM Committee'.]

(3) It shall be the duty of the Director, where either he considers it expedient or he is requested by the Department or[F173 the Office of Fair Trading] to do so, to give information, advice and assistance to the Department or[F173 the Office of Fair Trading] with respect to any matter in respect of which any[F169 of the electricity functions of the Authority] is exercisable.

[F169(3A) In this Article “electricity functions” means—

(a)functions under this Part; and

(b)functions under the Energy (Northern Ireland) Order 2003 relating to electricity[F174 and

(c)functions under the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007.]]

[F175(3B) the activities to which paragraph (1) applies include, in particular, the matters specified in the following provisions of the Directive as matters to be monitored—

(a)Article 26(3);

(b)Article 37(1)(g) to (k), (m) and (q) to (t); and

(c)where an independent system operator has been designated under Article 10H of this Order, Article 37(3)(a), (b) and (f).]

Para. (4) rep. by 2003 NI 6

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F1692003 NI 6

Art. 51 rep. by 2003 NI 6

Keeping of registerN.I.

52.  (1)  The Director shall, at such premises and in such form as he may determine, maintain a register for the purposes of this Part.

(2) Subject to paragraph (3) and to any direction given under paragraph (4), the Director shall cause to be entered in the register the provisions of—

(a)every licence and every exemption granted to a particular person;

(b)every modification or revocation of a licence;

(c)every direction or consent given or determination made under a licence;

[F176(d)every final or provisional order under Article 42 of the Energy (Northern Ireland) Order 2003 relating to a licence holder, every confirmation of a provisional order so relating, every revocation of a final or provisional order so relating and every notice under paragraph (7) of that Article so relating; and

(e)every penalty imposed under Article 45 of the Energy (Northern Ireland) Order 2003 on a licence holder and every notice under Article 45 (6) of that Order relating to such a penalty.]

(3) In entering any provision in the register, the Director shall have regard to the need for excluding, so far as that is practicable, the matters specified in Article 45(5)(a) and (b).

(4) If it appears to the Department that the entry of any provision in the register would be against the public interest or the commercial interests of any person, the Department may direct the Director not to enter that provision in the register.

(5) The contents of the register shall be available for inspection by the public during such hours and subject to the payment of such fee as may be specified in an order made by the Department.

(6) Any person may, on the payment of such fee as may be specified in an order so made, require the Director to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the Director to be a true copy or extract.

(7) Any sums received by the Director under this Article shall be paid into the Consolidated Fund.

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F1762003 NI 6

Annual and other reportsN.I.

53.  F177(1)  The Director shall, as soon as practicable after the end of each calendar year—

(a)make to the Department a report on—

(i)his activities during that year; and

(ii)the[F178 Competition Commission] activities during that year so far as relating to references made by him; and

(b)send a copy of that report to the chairman of the consumer committee.

F177(2) Every such report shall—

(a)include a general survey of developments, during the year to which it relates, in respect of matters falling within the scope of the Director's functions;

(b)set out any final or provisional orders made, and provisional orders confirmed, by the Director during that year;

(c)set out any general directions given to the Director during that year under Article 50(2); and

(d)include a general survey of the activities during that year of the consumer committee and a summary of any reports made to him by the committee under Article 55.

F177(3) The Department shall lay a copy of every report made by the Director under paragraph (1) before the Assembly and shall arrange for copies of every such report to be published in such manner as the Department considers appropriate.

Para. (4) rep. by 2003 NI 6

F177(5) In making or preparing any report under this Article the Director shall have regard to the need for excluding, so far as that is practicable, the matters specified in Article 45(5)(a) and (b).

F177(6) Section 125(1) of the 1973 Act (annual and other reports) shall not apply to activities of the[F178 Competition Commission] on which the Director is required to report by this Article.

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F177prosp. rep. by 2003 NI 6

F178SI 1999/506

Arts. 54‐57 rep. by 2003 NI 6

MiscellaneousN.I.

Directions for preserving security of electricity supplies, etc.N.I.

58.  (1)  The Department may, after consultation with a person to whom this Article applies, give to that person such directions of a general character as appear to the Department to be requisite or expedient for the purpose of—

(a)preserving the security of buildings or installations used for, or for purposes connected with, the generation, transmission [F179, distribution] or supply of electricity; or

(b)mitigating the effects of any civil emergency which may occur.

(2) If it appears to the Department to be requisite or expedient to do so for any such purpose as is mentioned in paragraph (1), the Department may, after consultation with a person to whom this Article applies, give to that person a direction requiring him (according to the circumstances of the case) to do, or not to do, a particular thing specified in the direction.

(3) A person to whom this Article applies shall give effect to any direction given to him by the Department under this Article notwithstanding any other duty imposed on him by or under this Order.

(4) A copy of every direction given under this Article shall be laid before the Assembly unless the Department is of the opinion that disclosure of the direction is against the interests of national security or the commercial interests of any person.

(5) A person shall not disclose, or be required under any statutory provision or otherwise to disclose, anything done by virtue of this Article if the Department has notified him that the Department is of the opinion that disclosure of that thing is against the interests of national security or the commercial interests of some other person.

(6) This Article applies to any licence holder and any person authorised by an exemption to generate [F180, distribute] or supply electricity.

(7) In this Article “civil emergency” means any natural disaster or other emergency which, in the opinion of the Department, is or may be likely to disrupt electricity supplies.

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Provision of statistical informationN.I.

59.  (1)  The Department may, if the Department considers it expedient for the purpose of obtaining statistical information relating to the generation, transmission [F181, distribution] or supply of electricity, serve a notice under this Article on any licence holder or any person who is authorised by an exemption to generate [F182, distribute] or supply electricity.

(2) A notice under this Article may require the person on whom it is served to furnish, at a time and place specified in the notice, to the Department such statistical information about that person's business as may be so specified.

(3) Subject to paragraphs (4) and (5), no information with respect to any particular business which—

(a)has been obtained under this Article; and

(b)relates to the affairs of any individual or to any particular business,

shall, during the lifetime of that individual or so long as that business continues to be carried on, be published or otherwise disclosed without the consent of that individual or the person for the time being carrying on that business.

(4) Paragraph (3) does not apply in relation to any disclosure which is made after consultation with the individual concerned, or the person for the time being carrying on the business concerned, and is of information relating to—

(a)the quantities of electricity generated by particular methods or by the use of particular fuels;

(b)the quantities of particular fuels used for the generation of electricity;

(c)the quantities of electricity transferred between Northern Ireland and countries or territories outside Northern Ireland; or

(d)the quantities of electricity supplied in Northern Ireland either generally or to persons of any particular class or description.

(5) Paragraph (3) does not apply in relation to any disclosure which is made to any Northern Ireland department or any department of the Government of the United Kingdom or for the purposes of any proceedings under this Article.

(6) The Department may, after consultation with persons or bodies appearing to the Department to be representative of persons likely to be affected, by order amend paragraph (4) so as to add other descriptions of information which may be disclosed notwithstanding that it may relate to a particular person or business.

(7) Any person who without reasonable excuse fails to furnish information in compliance with a requirement under this Article shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

(8) Any person who publishes or discloses any information in contravention of paragraph (3) or, in purported compliance with a requirement under this Article, knowingly or recklessly furnishes any information which is false in any material particular shall be guilty of an offence and shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

(9) In this Article “information” does not include estimates as to future matters.

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Promotion of new techniques in national interestN.I.

60.  (1)  The Secretary of State shall exercise the power conferred on him by section 5 of the Science and Technology Act 1965F183 (expenditure on research and development in science or technology) for the purpose of promoting such research into, and such development of, new techniques relating to the generation, transmission [F184, distribution] or supply of electricity as appears to him to be necessary in the national interest.

(2) The Secretary of State may, if he considers it expedient for purposes connected with the performance of his duty under this Article, serve notice under this paragraph on any licence holder or any person who is authorised by an exemption to generate [F185, distribute] or supply electricity.

(3) A notice under paragraph (2) may require the person on whom it is served to furnish, at a time and place specified in the notice, to the Secretary of State such information about that person's business as may be so specified.

(4) Paragraphs (3), (5) and (7) to (9) of Article 59 shall apply for the purposes of this Article as they apply for the purposes of that Article.

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Art. 61 rep. by 2003 NI 6

Directions restricting the use of certain informationN.I.

62.  (1)  The Department may give to[F186the holder of a transmission licence] ( “the authorised person”) such directions as appear to the Department to be requisite or expedient for the purpose of securing that, in any case where paragraph (2) applies, neither the person by whom the information mentioned in that paragraph is acquired nor any other person obtains any unfair commercial advantage from his possession of the information.

(2) This paragraph applies where, in the course of any dealings with an outside person who is, or is an associate of, a person authorised by a licence or exemption to generate,[F187supply [F188, distribute]or participate in the transmission of] electricity [F189or to act as SEM operator], the authorised person or any associate of his is furnished with or otherwise acquires any information which relates to the affairs of that outside person or any associate of his.

(3) As soon as practicable after giving any directions under paragraph (1), the Department shall publish a copy of the directions in such manner as the Department considers appropriate for the purpose of bringing the directions to the attention of persons likely to be affected by a contravention of them.

(4) The obligation to comply with any directions under paragraph (1) is a duty owed to any person who may be affected by a contravention of them.

(5) Where a duty is owed under paragraph (4) to any person any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.

(6) In any proceedings brought against any person under paragraph (5), it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the directions.

(7) Without prejudice to any right which any person may have by virtue of paragraph (5) to bring civil proceedings in respect of any contravention or apprehended contravention of any directions under this Article, compliance with any such directions shall be enforceable by civil proceedings by the Department for an injunction or for any other appropriate relief.

(8) In this Article—

  • “dealings” includes dealings entered into otherwise than for purposes connected with the transmission of electricity;

  • “outside person”, in relation to any person, means any person who is not an associate of his;

  • and for the purposes of this Article a person is an associate of another if he and that other are connected with each other within the meaning of [F190 section 1122 of the Corporation Tax Act 2010].

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F190Words in art. 62(8) substituted (1.4.2010 with effect as mentioned in s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), ss. 1177, 1184(1), Sch. 1 para. 271 (subject to Sch. 2)

Making of false statements, etc.N.I.

63.  (1)  If any person, in giving any information or making any application under or for the purposes of any[F191 relevant provision], makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, he shall be guilty of an offence and shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

[F191(1A) In paragraph (1) “relevant provision” means—

(a)any provision of this Part or of any regulations made under this Part; and

(b)any provision of the Energy (Northern Ireland) Order 2003 or of any regulations made under that Order.]

(2) Any person who seeks to obtain entry to any premises by falsely pretending to be—

[F192(a)an employee of, or other person acting on behalf of, an electricity supplier or electricity distributor;]

(b)an electrical inspector; or

(c)a meter examiner,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) No proceedings shall be instituted in respect of an offence under paragraph (1) except by or with the consent of the Department or the Director of Public Prosecutions for Northern Ireland.

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F1912003 NI 6

SupplementalN.I.

Powers to make regulationsN.I.

64.  (1)  Regulations made under any provision of this Part may provide for the determination of questions of fact or of law which may arise in giving effect to the regulations and for regulating (otherwise than in relation to any court proceedings) any matters relating to the practice and procedure to be followed in connection with the determination of such questions, including provision—

(a)as to the mode of proof of any matter;

(b)as to parties and their representation;

(c)for the right to appear before and be heard by the Department, the Director and other authorities; and

(d)as to awarding costs of proceedings for the determination of such questions, including the amount of the costs and the enforcement of the awards.

(2) Regulations made under any provision of this Part which prescribe a period within which things are to be done may provide for extending the period so prescribed.

(3) Regulations made under any provision of this Part may—

(a)provide for anything falling to be determined under the regulations to be determined by such persons, in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be prescribed;

(b)make such supplemental, consequential and transitional provision as the Department or, as the case may be, the Director considers appropriate.

Concurrent proceedingsN.I.

65.  (1)  Where an application or a reference is made by a licence holder under this Part in connection with any matter, the proceedings which—

(a)are required under this Part to be taken in relation to that application or reference; and

(b)if applicable, are required by Articles 20 to 24 of the Planning (Northern Ireland) Order 1991F193 to be taken for the purpose of planning permission;

may, where the Department concerned so directs, be taken concurrently (so far as practicable).

(2) In this Article “the Department concerned” means the Department, or where the matter to which the application or reference relates is a function of some other Department, the Department and that other Department acting jointly.

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F1931991 NI 11

Public inquiriesN.I.

66.  (1)  The Department may cause an inquiry to be held in any case where the Department considers it advisable to do so in connection with

[F194(a)any matter arising under this Part or the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007; or

(b)any matter relating to electricity arising under the Energy (Northern Ireland) Order 2003 (other than a matter in respect of which any functions of the Authority under Part VI of that Order are or may be exercisable).]

(2) Without prejudice to section 23 of the Interpretation Act (Northern Ireland) 1954F195, the Department may make rules regulating the procedure to be followed in connection with inquiries held by or on behalf of the Department under this Part.

(3) Where—

(a)an inquiry is to be held under this Part in connection with any matter; and

(b)in the case of some other matter required or authorised (whether by this Part or by any other statutory provision) to be the subject of an inquiry ( “the other inquiry”), it appears to the Department concerned that the matters are so far cognate that they should be considered together,

the Department concerned may direct that the 2 inquiries be held concurrently or combined as one inquiry.

(4) In paragraph (3) “the Department concerned” means the Department, or where causing the other inquiry to be held is a function of some other Department, the Department and that other Department acting jointly.

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Application to Crown landN.I.

67.  (1)  Subject to paragraphs (2) to (4), the provisions of this Part shall have effect in relation to Crown land as they have effect in relation to land which is not Crown land.

(2) The powers conferred by or under Schedule 3 shall not be exercisable in relation to Crown land, to the extent of the estate therein held by or on behalf of the Crown.

(3) The powers conferred by or under—

(a)Schedules 3 and 4; and

(b)subject to paragraph (4), Schedule 6,

shall not, except with the consent of the appropriate authority, be exercisable in relation to Crown land.

(4) The powers conferred by or under Schedule 6 shall, without the consent of the appropriate authority, be exercisable in relation to Crown land, to the extent of any estate therein for the time being held otherwise than by or on behalf of the Crown.

(5) For the purposes of paragraph (1) a Northern Ireland department may dispose of land vested in that department on such financial and other conditions as that department may consider appropriate.

(6) In this Article any reference to the Crown includes a reference to Her Majesty's Government in Northern Ireland.

(7) In this Article—

  • “the appropriate authority”, in relation to any land, means—

    (a)

    in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, the Crown Estate Commissioners;

    (b)

    in the case of any other land belonging to Her Majesty in right of the Crown, the government department having the management of that land;

    (c)

    in the case of land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, that government department;

    and, if any question arises as to what authority is the appropriate authority in relation to any land, that question shall be referred to the Department of Finance and Personnel or, as the case may be, the Treasury, whose decision shall be final;

  • “Crown estate” means an estate—

    (a)

    belonging to Her Majesty in right of the Crown; or

    (b)

    belonging to a government department or held in trust for Her Majesty for the purposes of a government department;

  • “Crown land” means land in which there is a Crown estate;

  • “government department” includes a department of the Government of the United Kingdom.

(8) A person who is entitled to occupy Crown land by virtue of a licence in writing shall be treated for the purposes of this Article as having an estate in land.

PART IIIN.I.REORGANISATION OF THE INDUSTRY

IntroductoryN.I.

Interpretation of Part IIIN.I.

68.  (1)  In this Part

  • “debentures” includes debenture stock;

  • “generating company” means a company designated as such by the Department;

  • “securities”, in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;

  • “shares” includes stock;

  • “successor company” means a company nominated under Article 69(2) for the purposes of Article 69(1);

  • “the transfer date” means the day appointed under Article 69(3) for the purposes of Article 69(4);

  • “transferee”, in relation to any transfer of assets and liabilities effected or proposed to be effected under this Part, means the person to whom they are or are to be so transferred;

  • “transfer scheme” means a scheme under Article 69(1);

  • “transitional period”, in relation to Northern Ireland Electricity, means the period of Northern Ireland Electricity's continued existence under Article 86(2) after the transfer date and until it is dissolved under Article 86(4);

  • “transmission and supply company” means the company designated as such by the Department.

(2) Subject to Article 70(5), in this Part any reference to the Crown is a reference to the Crown in right of Her Majesty's Government in Northern Ireland.

(3) A company shall be regarded for the purposes of this Part as wholly owned by the Crown at any time when none of the issued shares in the company is held otherwise than—

(a)by, or by a nominee of, the Department or the Department of Finance and Personnel; or

(b)by a company which is itself wholly owned by the Crown.

(4) References in this Part to assets and liabilities of Northern Ireland Electricity are references to all such assets and liabilities, whether or not capable of being transferred or assigned by Northern Ireland Electricity.

(5) It is hereby declared for the avoidance of doubt that any reference in this Part to assets and liabilities of Northern Ireland Electricity—

(a)in relation to assets which consist of property of Northern Ireland Electricity, is a reference to property whether situated in Northern Ireland or elsewhere; and

(b)in relation to assets which consist of other rights and to liabilities of Northern Ireland Electricity is a reference to rights to which Northern Ireland Electricity is entitled, or (as the case may be) liabilities to which Northern Ireland Electricity is subject, whether under the law of Northern Ireland or under the law of any country or territory outside Northern Ireland.

Transfers to successor companiesN.I.

Transfer of assets, etc., of Northern Ireland ElectricityN.I.

69.  (1)  Before such date as the Department may direct, Northern Ireland Electricity shall make a scheme (a “transfer scheme”) for the division of all its assets and liabilities (other than excepted rights and liabilities) between 2 or more companies nominated by the Department for the purposes of this paragraph; and of the companies so nominated—

(a)one shall be designated as a generating company; and

(b)one shall be designated as a transmission and supply company.

(2) Subject to paragraph (3), the Department may, after consultation with Northern Ireland Electricity, by order nominate for the purposes of paragraph (1) any company formed and registered under the Companies (Northern Ireland) Order 1986F196 (a “successor company”).

(3) On such day as the Department may by order appoint for the purposes of paragraph (4) (the “transfer date”) each successor company must be a company limited by shares which is wholly owned by the Crown.

(4) Subject to the provisions of Article 72, on the transfer date all assets and liabilities to which immediately before that date Northern Ireland Electricity was entitled or subject (other than excepted rights and liabilities) shall become by virtue of this paragraph, assets and liabilities of the successor company to which they are allocated by a scheme under paragraph (1).

(5) The Department shall not exercise any power conferred by this Article or Article 70 or 71 except with the consent of the Department of Finance and Personnel.

(6) In this Article “excepted rights and liabilities” means—

(a)any rights and liabilities with respect to corporation tax (including rights to receive any sums by way of repayment supplement and liabilities to pay any sums by way of interest or penalty);

(b)any rights and liabilities arising under an agreement which relates to any such assets and liabilities as are mentioned in sub-paragraph (a) and is specified or is of a description specified by the transfer scheme;

(c)any rights and liabilities transferred by Article 90; and

(d)such other rights and liabilities as the Department may determine.

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F1961986 NI 6

Transfer schemes under Article 69N.I.

70.  (1)  A transfer scheme may—

(a)define the assets and liabilities to be allocated to a particular successor company—

(i)by specifying or describing the assets and liabilities in question;

(ii)by referring to all the assets and liabilities comprised in a specified part of Northern Ireland Electricity's undertaking; or

(iii)partly in the one way and partly in the other;

(b)provide that any assets or liabilities specified or described in the scheme shall be enforceable either by or against either or any, or by or against both or all, of 2 or more successor companies;

(c)impose on any successor company an obligation to enter into such written agreements with, or execute such other instruments in favour of, any other successor company as may be specified in the scheme; and

(d)make such supplemental, incidental and consequential provision as Northern Ireland Electricity considers appropriate (including provision specifying the order in which any transfers or transactions are to be regarded as taking effect).

(2) An obligation imposed by a provision included in a transfer scheme under paragraph (1)(c) shall be enforceable by civil proceedings by the other successor company for an injunction or for any other appropriate relief.

(3) A transaction of any description which is effected under such a provision as is mentioned in paragraph (2)—

(a)shall have effect subject to the provisions of any statutory provision which provides for transactions of that description to be registered in any statutory register; but

(b)subject to that, shall be binding on all other persons, notwithstanding that it would, apart from this paragraph, have required the consent or concurrence of any other person.

(4) Where a lease of any land is granted in pursuance of such a provision as is mentioned in paragraph (2), any right or obligation affecting that land—

(a)shall not become exercisable or enforceable by reason of the grant of the lease; but

(b)shall have effect as if the lessee were the same person in law as the lessor.

(5) It is hereby declared that the provisions of a transfer scheme in so far as they relate to any asset or liability of Northern Ireland Electricity in which there is a Crown interest bind the Crown, including the Crown in right of Her Majesty's Government in the United Kingdom to the full extent authorised or permitted by the constitutional laws of Northern Ireland.

Functions of the Department in relation to transfer schemesN.I.

71.  (1)  A transfer scheme shall not take effect unless it is approved by the Department; and the Department may modify such a scheme before approving it.

(2) If, in relation to a transfer scheme—

(a)Northern Ireland Electricity fails, before the date specified in the Department's direction under Article 69(1), to submit the scheme for the approval of the Department; or

(b)the Department decides not to approve the scheme that has been submitted to the Department by Northern Ireland Electricity (either with or without modifications),

the Department may make the scheme.

(3) It shall be the duty of Northern Ireland Electricity to provide the Department with all such information and other assistance as the Department may require for the purposes of or in connection with the exercise, in relation to a transfer scheme, of any power conferred on the Department by paragraph (1) or (2).

(4) The Department shall not exercise any power conferred on the Department by paragraph (1) or (2) except after consultation with Northern Ireland Electricity.

Supplementary provisions as to transfers under Article 69N.I.

72.  The provisions of Schedule 10 shall apply, to the extent there mentioned, to any transfer which is effected by Article 69(4); and that paragraph shall have effect subject to the provisions of that Schedule.

Ownership of successor companiesN.I.

Initial Government holding in the companiesN.I.

73.  (1)  As a consequence of the vesting in a successor company of any assets and liabilities, the company shall issue such securities of the company as the Department may direct—

(a)to the Department or the Department of Finance and Personnel; or

(b)to any person entitled to require the issue of the securities following their initial allotment to the Department or the Department of Finance and Personnel.

(2) The Department shall not give a direction under paragraph (1) in relation to a successor company at a time when the company has ceased to be wholly owned by the Crown.

(3) Securities required to be issued under this Article shall be issued or allotted at such time or times and on such terms as the Department may direct.

(4) Shares in a company which are issued under this Article—

(a)shall be of such nominal value as the Department may direct; and

(b)shall be issued as fully paid and treated for the purposes of [F197the Companies Acts (as defined in section 2(1) of the Companies Act 2006)] as if they had been paid up by virtue of the payment to the company of their nominal value in cash.

(5) The Department shall not exercise any power conferred by this Article, or dispose of any securities issued or of any rights to securities initially allotted to the Department under this Article, without the consent of the Department of Finance and Personnel.

F198(6) For the purposes of [F199the Companies Acts (as defined in section 2 of the Companies Act 2006)],[F200 the Company Directors Disqualification (Northern Ireland) Order 2002] and the Insolvency (Northern Ireland) Order 1989F201 the Crown is not to be treated as a shadow director of any successor company by reason that the company is wholly owned by the Crown or that the directors of that company are accustomed to act in accordance with the Crown's directions or instructions.

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F198By Companies Act 2006 (Consequential Amendments etc) Order 2008 (S.I. 2008/948), arts. 2(2), 3(1)(b), Sch. 1 para. 189(2) (with arts. 6, 11, 12) it is provided that in art. 73(6) for "the Companies (Northern Ireland) Order 1986" substitute (6.4.2008) "the Companies Acts (as defined in section 2 of the Companies Act 2006)"

F2002002 NI 4

F2011989 NI 19

Government investment in securities of the companiesN.I.

74.  (1)  The Department of Finance and Personnel or, with the consent of the Department of Finance and Personnel, the Department may at any time acquire—

(a)securities of a successor company; or

(b)rights to subscribe for any such securities.

(2) The Department shall not dispose of any securities or rights acquired under this Article without the consent of the Department of Finance and Personnel.

Exercise of functions through nomineesN.I.

75.  (1)  The Department of Finance and Personnel or, with the consent of the Department of Finance and Personnel, the Department may, for the purposes of Article 73, 74 or 82, appoint any person to act as the nominee, or one of the nominees, of the Department of Finance and Personnel or the Department; and—

(a)securities of a successor company may be issued under Article 73 to any nominee of the Department or the Department of Finance and Personnel appointed for the purposes of that Article or to any person entitled to require the issue of the securities following their initial allotment to any such nominee; and

(b)any such nominee appointed for the purposes of Article 74 may acquire securities or rights under that Article,

in accordance with directions given by the Department of Finance and Personnel or, with the consent of the Department of Finance and Personnel, by the Department.

(2) Any person holding any securities or rights as a nominee of the Department or the Department of Finance and Personnel under paragraph (1) shall hold and deal with them (or any of them) on such terms and in such manner as the Department of Finance and Personnel or, with the consent of the Department of Finance and Personnel, the Department may direct.

Target investment limit for Government shareholdingN.I.

76.  (1)  As soon as the Department considers expedient and, in any case, not later than 6 months after any successor company ceases to be wholly owned by the Crown, the Department shall by order fix a target investment limit in relation to the shares for the time being held in that company by virtue of any provision of this Part by the Department, the Department of Finance and Personnel and their respective nominees ( “the Government shareholding”).

(2) The target investment limit for the Government shareholding in a successor company shall be expressed as a proportion of the voting rights which are exercisable in all circumstances at general meetings of the company ( “the ordinary voting rights”).

(3) The first target investment limit fixed under this Article for the Government shareholding in a particular company shall not exceed, by more than 0.5 per cent. of the ordinary voting rights, the proportion of those rights which is in fact carried by the Government shareholding in that company at the time when the order fixing the limit is made.

(4) The Department may by order fix a new target investment limit for the Government shareholding in a successor company in place of the one previously in force under this Article; but—

(a)any new limit must be lower than the one it replaces; and

(b)an order under this Article may, notwithstanding section 17(2) of the Interpretation Act (Northern Ireland) 1954F202, only be revoked by an order fixing a new limit.

(5) It shall be the duty of the Department and of the Department of Finance and Personnel so to exercise—

(a)their powers under Article 74 and any power to dispose of any shares held under any provision of this Part; and

(b)their power to give directions to their respective nominees,

as to secure in relation to each successor company that the Government shareholding in that company does not carry a proportion of the ordinary voting rights exceeding any target investment limit for the time being in force under this Article in relation to that company.

(6) Notwithstanding paragraph (5) but subject to paragraph (7), the Department or the Department of Finance and Personnel may take up, or direct any nominee of the Department or of the Department of Finance and Personnel to take up, any rights which are for the time being available to them, or to the nominee, either—

(a)as an existing holder of shares or other securities of a successor company; or

(b)by reason of the rescission of any contracts for the sale of such shares or securities.

(7) If, as a result of anything done under paragraph (6), the proportion of the ordinary voting rights carried by the Government shareholding in a successor company at any time exceeds the target investment limit for the time being in force under this Article in relation to that company, it shall be the duty of the Department or, as the case may be, the Department of Finance and Personnel to comply with paragraph (5) as soon after that time as is reasonably practicable.

(8) For the purposes of this Article the temporary suspension of any of the ordinary voting rights shall be disregarded.

(9) The Department shall not exercise any power conferred on it by this Article except with the consent of the Department of Finance and Personnel.

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Finances of successor companiesN.I.

Statutory reservesN.I.

77.  (1)  If the Department with the approval of the Department of Finance and Personnel so directs at any time before a successor company ceases to be wholly owned by the Crown, such sum as may be specified in the direction but not exceeding such proportion of the accumulated realised profits of Northern Ireland Electricity as is determined by or under the transfer scheme shall be carried by the company to a reserve ( “the statutory reserve”).

(2) A company having a statutory reserve shall not apply it except in paying up unissued shares of the company to be allotted to members of the company as fully paid bonus shares.

(3) Notwithstanding paragraph (2), the statutory reserve of a company shall not count as an undistributable reserve of the company for the purposes of [F203section 831(4)(d) of the Companies Act 2006]; but for the purpose of determining under [F204that section] whether a company with a statutory reserve may make a distribution at any time any amount for the time being standing to the credit of the reserve shall be treated for the purposes of [F205section 831(4)(c) of that Act] as if it were unrealised profits of the company.

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Statutory accountsN.I.

78.  (1)  The following provisions of this Article shall have effect for the purposes of any statutory accounts of a successor company, that is to say, any accounts prepared by such a company for the purpose of any provision of [F206the Companies Acts (as defined in section 2 of the Companies Act 2006)] (including group accounts).

(2) The vesting in the company effected under this Part shall be taken to have been effected immediately after the end of the last complete accounting year of Northern Ireland Electricity to end on or before the transfer date and to have been a vesting of such of the assets and liabilities to which Northern Ireland Electricity was entitled or subject immediately before the end of the year as are determined by or under the transfer scheme.

(3) The value of any asset and the amount of any liability which is taken under paragraph (2) to have been vested in the company shall be taken to have been—

(a)the value or amount assigned to the asset or liability for the purposes of the corresponding statement of accounts prepared by Northern Ireland Electricity in respect of the last complete accounting year of Northern Ireland Electricity to end before the transfer date; or

(b)if the asset or liability is part only of an asset or liability to which a value or amount is so assigned, so much of that value or amount as may be determined by or under the transfer scheme.

(4) The amount to be included in respect of any item shall be determined as if—

(a)anything done by Northern Ireland Electricity (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise); or

(b)so much of anything so done as may be determined by or under the transfer scheme,

had been done by the company.

(5) Without prejudice to the generality of the preceding provisions, the amount to be included in any reserves of the company as representing the company's accumulated realised profits or, as the case may be, losses shall be determined as if such proportion of—

(a)any profits realised and retained; or

(b)any losses realised; or

(c)any other provision made,

by Northern Ireland Electricity as is determined by or under the transfer scheme, had been realised and retained, realised or made, as the case may require, by the company.

(6) In this Article “complete accounting year”, in relation to Northern Ireland Electricity, means an accounting year of Northern Ireland Electricity ending on 31st March.

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Temporary restrictions on borrowings, etc.N.I.

79.  (1)  If articles of association of a successor company confer on the Department powers exercisable with the consent of the Department of Finance and Personnel for, or in connection with, restricting the sums of money which may be borrowed or raised by the group during any period, those powers shall be exercisable in the public interest notwithstanding any rule of law and any statutory provision.

(2) For the purposes of this Article an alteration of the articles of association of a successor company shall be disregarded if the alteration—

(a)has the effect of conferring or extending any such power as is mentioned in paragraph (1); and

(b)is made at a time when that company has ceased to be wholly owned by the Crown.

(3) In this Article—

  • “group”, in relation to a company, means that company and all of its subsidiaries taken together;

  • “subsidiary” has the meaning given by [F207section 1159 of the Companies Act 2006].

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Government lending to the companiesN.I.

80.  (1)  Subject to Article 83, the Department may, with the approval of the Department of Finance and Personnel, make loans of such amounts and on such terms and conditions, including terms and conditions as to security, as the Department thinks fit to any successor company which is for the time being wholly owned by the Crown.

(2) Subject to Article 82, any loans which the Department makes under this Article shall be repaid to the Department at such times and by such methods, and interest thereon shall be paid to the Department at such rates and at such times, as the Department may, with the approval of the Department of Finance and Personnel, direct.

(3) Expenditure incurred or to be incurred by the Department in making loans under this Article shall be defrayed by means of sums charged on and issued out of the Consolidated Fund.

Government guarantees for loans made to the companiesN.I.

81.  (1)  Subject to Article 83, the Department may guarantee, in such manner and on such terms as the Department, with the approval of the Department of Finance and Personnel, may think fit, the repayment of the principal of, the payment of interest on, and the discharge of any other financial obligation in connection with, any sums which are borrowed from a person other than the Department by any successor company which is for the time being wholly owned by the Crown.

(2) Immediately after a guarantee is given under this Article, the Department shall lay a statement of the guarantee before the Assembly; and immediately after any sum is issued for fulfilling a guarantee so given, the Department shall so lay a statement relating to that sum.

(3) Any sums required by the Department for fulfilling a guarantee under this Article shall be charged on and issued out of the Consolidated Fund.

(4) The Department of Finance and Personnel may borrow money for the purpose of providing for issues out of the Consolidated Fund under paragraph (3).

(5) If any sums are issued in fulfilment of a guarantee given under this Article the company whose obligations are so fulfilled shall make to the Department, at such times and in such manner as the Department may direct,—

(a)payments of such amounts as the Department may so direct in or towards repayment of the sums so issued; and

(b)payments of interest on what is outstanding for the time being in respect of sums so issued at such rate as the Department may so direct.

Conversion or discharge of certain loans or advances, etc.N.I.

82.  (1)  The Department may by order extinguish all or any of the liabilities of Northern Ireland Electricity or, as the case may be, a successor company in respect of the principal of such relevant loans as may be specified in the order.

(2) Where the Department has made an order under paragraph (1) and the Department considers it appropriate to do so, the Department may give a direction under this paragraph to Northern Ireland Electricity or, as the case may be, the successor company whose liabilities are extinguished by the order; and Northern Ireland Electricity or that company as the case may require shall, as a consequence of the making of the order, issue such securities as may be specified or described in the direction—

(a)to the Department or to the Department of Finance and Personnel; or

(b)to any person entitled to require the issue of the securities following their initial allotment to the Department or the Department of Finance and Personnel.

(3) For the purposes of any statutory accounts of a successor company, the value at the time of its issue of any such security shall be taken—

(a)in the case of a share, to have been equal to its nominal value; and

(b)in the case of a debenture, to have been equal to the principal sum payable under the debenture,

and such nominal value or principal sum shall be taken in those accounts to be accumulated realised profits.

(4) In paragraph (3) “statutory accounts of a company” means any accounts prepared by the company for the purpose of any provision of [F208the Companies Acts (as defined in section 2 of the Companies Act 2006)] (including group accounts).

(5) The Department shall not—

(a)make an order under paragraph (1) extinguishing the liability of any successor company; or

(b)give a direction under paragraph (2) for the issue of securities,

except at a time when the company is wholly owned by the Crown.

(6) Except as may be agreed between the Department and Northern Ireland Electricity or, as the case may be, a successor company which is directed to issue debentures under this Article,—

(a)the aggregate of the principal sums payable under the debentures to which the direction relates shall be equal to the aggregate of the sums the liability to repay which is extinguished by the order; and

(b)the terms as to the payment of the principal sums payable on the debentures to which the direction relates, and as to the payment of interest thereon, shall be the same as the corresponding terms of the loans specified in the order.

(7) For the purposes of paragraph (6) any express or implied terms of a loan shall be disregarded in so far as they relate to the early discharge of liabilities to make repayments of principal and payments of interest.

(8) The Department may direct Northern Ireland Electricity to do anything specified in the direction which is requisite or expedient for the purpose of securing, on such terms as the Department, with the approval of the Department of Finance and Personnel, thinks fit, the discharge, or the transfer to the Department, of Northern Ireland Electricity's liabilities in respect of any foreign currency loan made to Northern Ireland Electricity.

(9) Paragraphs (3) to (5) of Article 73 shall apply for the purposes of this Article as they apply for the purposes of that Article.

(10) In this Article—

  • “foreign currency” means a currency other than sterling;

  • “foreign currency loan” means a loan made wholly or mainly in a foreign currency;

  • “relevant loan” means—

    (a)

    any loan made, or deemed to have been made, by the Department or from the Consolidated Fund the liability to repay which vests or will vest in the successor company by virtue of Article 69(4);

    (b)

    any loan made to that company by the Department under Article 80; and

    (c)

    any sums payable under debentures issued as a consequence of the making of an order under this Article.

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Financial limits on borrowings, etc.N.I.

83.  The aggregate of any amounts outstanding by way of principal in respect of—

(a)sums issued under Article 81 in ful lment of guarantees given in respect of loans made to such companies; and

(b)relevant loans within the meaning of Article 82,

shall not exceed £750 million.

Provisions with respect to floatationN.I.

Responsibility for composite listing particularsN.I.

84.  (1)  Where—

(a)the same document contains listing particulars for securities of 2 or more successor companies; and

(b)any person's responsibility for any information included in the document is stated in the document to be confined to its inclusion as part of the listing particulars for securities of any one of those companies,

that person shall not be treated as responsible for that information in so far as it is stated in the document to form part of the listing particulars for securities of any other of those companies.

(2) In this Article—

  • “the 1986 Act” means the Financial Services Act 1986F209;

  • “listing particulars” means any listing particulars or supplementary listing particulars within the meaning of the 1986 Act;

  • “responsible” means responsible for the purposes of Part IV of the 1986 Act.

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Art. 85 rep. by 2001 c. 14 (NI)

Provisions with respect to Northern Ireland ElectricityN.I.

Dissolution, etc., of Northern Ireland ElectricityN.I.

86.  (1)  Any person who, immediately before the transfer date, holds office as Chairman or other member of Northern Ireland Electricity, shall cease to hold office on that date.

(2) Northern Ireland Electricity shall continue in existence after the transfer date until it is dissolved under paragraph (4).

(3) During the transitional period, Northern Ireland Electricity—

(a)shall consist of a chairman appointed by the Department and such one or more other persons as may be so appointed; and

(b)shall prepare such statements of accounts as the Department may direct;

and a direction under this paragraph may require the auditing of any such statements of accounts by such person as may be specified in the direction.

(4) The Department may by order, after consulting Northern Ireland Electricity and its successor company or companies, dissolve Northern Ireland Electricity on a day specified in the order, as soon as the Department is satisfied that nothing further remains to be done by Northern Ireland Electricity (whether under Schedule 13 or otherwise).

(5) An order under paragraph (4) may provide—

(a)for the transfer of any remaining functions, assets and liabilities of Northern Ireland Electricity to the Department;

(b)for the preparation by such persons as may be specified in the order of a statement of accounts for the period from the end of that dealt with in the last statement of accounts prepared under paragraph (3) by Northern Ireland Electricity down to the dissolution of Northern Ireland Electricity; and

(c)for the auditing of any such statement of accounts by such person as may be so specified;

and the Department may, with the approval of the Department of Finance and Personnel, pay to any person on whom duties are imposed by such an order such remuneration, and such travelling and other allowances, as the Department, with the approval of the Department of Finance and Personnel, may determine.

Compensation to members and employees of Northern Ireland ElectricityN.I.

87.  (1)  The Department may pay to any person who, immediately before the transfer date, is the Chairman or other member of Northern Ireland Electricity such sums by way of compensation for loss of office, or loss or diminution of pension rights, as the Department may with the approval of the Department of Finance and Personnel determine.

(2) The Department may also pay to persons who, immediately before the transfer date, are employees of Northern Ireland Electricity such sums by way of compensation for loss of employment, or loss or diminution of remuneration or pension rights, as the Department may, with the approval of the Department of Finance and Personnel, determine.

Grants towards expenditure during transitional periodN.I.

88.  (1)  The Department may, with the approval of the Department of Finance and Personnel, make grants to Northern Ireland Electricity of such amounts as the Department thinks fit towards such expenditure incurred by Northern Ireland Electricity during its transitional period as is not met under Schedule 13 by such of its successor companies as may be designated by or under the transfer scheme.

(2) Grants under this Article may be made subject to such conditions as the Department, with the approval of the Department of Finance and Personnel, may determine.

Amendment of pension scheme, etc.N.I.

89.  The provisions of Schedule 11 (which provide for pensions and for amending the Northern Ireland Electricity Superannuation Scheme and for giving special protection to certain persons who have or may acquire rights under that scheme) shall have effect.

MiscellaneousN.I.

Northern Ireland Electricity StockN.I.

90.  (1)  On the transfer date all the rights and liabilities to which Northern Ireland Electricity was entitled or subject immediately before that date under the terms of issue of Northern Ireland Electricity Stock shall become by virtue of this Article rights and liabilities of the Department of Finance and Personnel.

(2) Before the transfer date Northern Ireland Electricity shall pay to such bank as the Department of Finance and Personnel may direct a sum equal to the amounts accruing in respect of unclaimed interest or redemption money on Northern Ireland Electricity Stock before that date but excluding any amounts represented by money in the hands of that bank.

(3) In this Article “Northern Ireland Electricity Stock” means any stock created and issued under Article 20 of the Electricity Supply (Northern Ireland) Order 1972F210 or under section 28 of the Electricity (Supply) Act (Northern Ireland) 1931F211.

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F2101972 NI 9

Assembly disqualificationN.I.

91.  In the Northern Ireland Assembly Disqualification Act 1975F212, in Part III of Schedule 1 (other disqualifying offices) there shall be inserted (at the appropriate place) the following entry—

“Director of a successor company (within the meaning of Part III of the Electricity (Northern Ireland) Order 1992), being a director nominated or appointed by a Northern Ireland department or by a person acting on behalf of a Northern Ireland department”.

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PART IVN.I.SUPPLEMENTAL

Repayment of feesN.I.

92.  (1)  Regulations under this Order which prescribe any fee for the purpose of any provision of this Order may make provision for the repayment of any such fee paid or purported to be paid, in pursuance of that provision of this Order, including provision—

(a)that repayment shall be made only if a specified person is satisfied that specified conditions are met or in other circumstances;

(b)that repayment shall be made in part only;

(c)that, in the case of partial repayment, the amount repaid shall be a specified sum or determined in a specified manner; and

(d)for repayment of different amounts in different circumstances.

(2) In this Article “specified” means specified in the regulations.

Regulations and ordersN.I.

93.  (1)  Any regulations or orders made by the Department under this Order (other than orders made under Article 69(2) or paragraph 14(6) of Schedule 4) shall be subject to negative resolution.

(2) Any regulations made by the Director under this Order shall be laid before the Assembly by the Department and shall be subject to negative resolution.

DirectionsN.I.

94.  (1)  It shall be the duty of any person to whom a direction is given under this Order to give effect to that direction.

(2) Any power conferred by this Order to give a direction shall include power to vary or revoke the direction.

(3) Any direction given under this Order shall be in writing.

Amendments, transitional provisions, savings and repealsN.I.

95.  Para. (1)—Amendments

(2) Without prejudice to section 17(2) of the Interpretation Act (Northern Ireland) 1954F213, the Department may by order make such modifications of instruments made under statutory provisions as appear to the Department necessary or expedient in consequence of the provisions of this Order; and in this paragraph “instrument” has the meaning assigned to it by section 1(c) of that Act of 1954.

(3) The transitional provisions and savings contained in Schedule 13 shall have effect.

Para. (4)—Repeals

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