The Electricity from Non-Fossil Fuel Sources (Scotland) Saving Arrangements Order 2005

The Requirements – duties of the nominated person

4.—(1) The Requirements are that–

(a) the nominated person must before 11th March 2006 have made arrangements (“the new arrangements”) which replace (in so far as it is necessary to comply with this Order) with effect from the commencement of the order period the original arrangements but with the nominated person replacing the relevant supply successor company as contracting party to those arrangements in each case;

(b) subject to paragraph (2) below, the new arrangements must secure that there is available to the nominated person from the non-fossil fuel generating stations described in SRO Orders 1, 2 & 3 the aggregate amount of generating capacity which, immediately before the commencement of the order period, was required by those Orders as applied by the Saving Arrangements Orders to have been available to supply successor companies during the order period;

(c) having entered into the new arrangements, the nominated person must not by any act or omission of himself prevent those arrangements made by him from securing the result mentioned in sub paragraph (b) above;

(d) the nominated person both before and after any withdrawal of approval of the Scottish Ministers under article 5(2), and whether nominated by the supply successor companies or the Scottish Ministers must produce evidence to the Authority of having made the new arrangements before 11th March 2006 including such information, or information of a particular kind, requested by the Authority and which in his opinion is relevant to the question whether the nominated person is discharging his obligations in this Order and information requested by the Authority must be given to the Authority in whatever form he requires;

(e) the new arrangements must be on terms such that generators who are party to them are in substantially the same economic position as regards matters relating to contract price, indexation and term under those new arrangements as they had been in as party to the original arrangements;

(f) all electricity made available to the nominated person under the new arrangements must be offered for sale to persons who shall include all licensed electricity suppliers;

(g) the nominated person must use reasonable endeavours to receive the best price reasonably attainable for such electricity;

(h) the nominated person must conduct himself at all times in relation to his operations in general and in particular in relation to the selling of such electricity in a manner so as to ensure and satisfy the Authority that he does not show any undue preference or exercise any undue discrimination in relation to any licensed electricity supplier or class of licensed electricity supplier; and

(i) any owner must not gain any advantage (other than the payment of fees for the provision of services) from its ownership (save that expressly permitted under either this Order or regulations made under section 33 of the Electricity Act 1989) in relation to the purchase or sale by the nominated person of electricity which has been made available to him under the new arrangements and arrangements must be in place so as to ensure at all times that any owner does not gain such advantage.

(2) The amount of generating capacity required by article 4(1)(b) to be available to the nominated person shall be reduced in the same manner that article 4 of the SRO Order 2 reduced the amount of generating capacity required to be made available to public electricity suppliers by that Order, but the reduction in generating capacity provided for in this paragraph shall be calculated by reference to any adapted conditions instead of by reference to the conditions precedent and termination events set out in Schedules 2 and 3 to the SRO Order 2.

(3) For the purposes of this article an “adapted condition” means a condition set out in the new arrangements which has broadly equivalent effect to a provision contained in Schedule 2 or 3 to the SRO Order 2 taking into account the existence of any new or changed electricity trading arrangements and the fact that it is the nominated person, not a public electricity supplier or supply successor company, who enters into the new arrangements.

(4) Any case of dispute as to whether a condition in the new arrangements is an “adapted condition” may be referred to and determined by the Scottish Ministers on application by either the nominated person or a generator who is party to those new arrangements.