Commission decision of 22 September 2004 on the State aid which the United Kingdom is planning to implement for British Energy plc (notified under document number C(2004)3474) (Only the English text is authentic) (Text with EEA relevance) (2005/407/EC)

Article 10 U.K.

1. The tests used for the purpose of deciding whether exceptional market circumstances occur shall be the following:

(a) in any period of […] (ending not more than […] before the date of the Amber Notice as defined below), […] of those existing British Energy non-domestic end-users to whom British Energy has made offers of supply on terms where the margin on the supply of energy element of the contract over the prevailing wholesale price is […] have rejected British Energy’s offer;

(b) volumes traded in the wholesale electricity market over a […] period have dropped to less than […] of the average of those traded in the same period in the last […] for which data is available;

(c) British Energy offers to supply a minimum of […] of electricity in the wholesale market […] and that volume is not sold within a period of […].

2. When faced with circumstances approaching these and if British Energy considers it was possible it might need to invoke exceptional market circumstances, British Energy shall first inform the Independent Expert, outlining its analysis of the situation and the position in relation to the objective tests (Amber Notice).

3. If circumstances do not improve following the Amber Notice, and if test (a) together with test (b) or test (c) above is met, British Energy shall notify the Independent Expert that it is going to respond to competition by pricing below the wholesale price and supplies the most recent evidence available to British Energy. The independent expert shall have then no more than 24 hours to confirm or otherwise that test (a) together with (b) or (c) above are met and accordingly declare the existence of Exceptional Market Circumstances.

4. If the independent expert declares the existence of exceptional market circumstances, British Energy shall be entitled for a period of […] of the Independent Expert’s decision to make bona fide offers at prices to meet competition in the direct sales to business market.

5. The […] period may be renewed by the independent expert for as long as test c) above is met.

6. At the end of the period, the price restriction set out in Article 9 shall apply again to British Energy.

7. After the period, British Energy shall provide a report to the independent expert summarising its sales activities during the period. This information shall be reviewed in the Independent Expert’s yearly report.

8. Following the end of the contract round during which Exceptional Market Circumstances occurred, the Independent Expert shall publish the fact that he had made a determination of such circumstances and how long they lasted.