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 6 U.K.

The United Kingdom shall require British Energy to undertake, for a period of six years from the date of this decision, not to own or have rights of control over:

• registered operational fossil-fuelled generating capacity(1) in the European Economic Area,

  or

• large scale registered hydro-electric, as defined in the Renewables Obligation Order 2002, generating capacity in the United Kingdom,

(both types of capacity being known hereunder as restricted capacity) which in aggregate exceeds 2 020 MW provided that:

(a)

during a pending disposal period (as defined below), British Energy shall be entitled to own or have rights of control over restricted capacity in excess of 2 020 MW on condition that it does not operate such excess restricted capacity or divests itself of all operational control and interest in the excess restricted capacity or the power generated from the excess restricted capacity. For this purpose, a ‘pending disposal period’ is the period between:

(i)

the receipt by Eggborough Power Limited or Eggborough Power Holdings Limited of a notice that: 1. an option to acquire the shares in Eggborough Power Limited or the Eggborough station is to be exercised; or any of the security over the shares in Eggborough Power Limited or the Eggborough station is to be exercised;

and

(ii)

the date on which the registered generating capacity of the Eggborough station is no longer available to the British Energy group;

(b)

if one of the disposal options over the shares in Eggborough Power Limited or the Eggborough station is completed, British Energy shall be entitled to own or have rights of control over restricted capacity not exceeding 2 222 MW on condition that it declares its restricted capacity to the operator of the National Grid as 2 020 MW and does not operate more than 2 020 MW of restricted capacity;

or

(c)

if the capacity at the Eggborough stations becomes unavailable to the British Energy group through irreparable failure or force majeure, British Energy shall be entitled to own or have rights of control over restricted capacity not exceeding 2 222 MW on condition that it declares its restricted capacity to the operator of the National Grid as 2 020 MW and does not operate more than 2 020 MW of restricted capacity.

(1)

Excluding auxiliary fossil-fuelled capacity at its nuclear stations.