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PART IIN.I.NEW REGULATORY ARRANGEMENTS

The Northern Ireland Authority for Energy RegulationN.I.

The Northern Ireland Authority for Energy RegulationN.I.

3.—(1) There shall be a body corporate to be known as the Northern Ireland Authority for Energy Regulation (in this Order referred to as “the Authority”) for the purpose of carrying out—

(a)functions transferred to the Authority from the Director General of Gas for Northern Ireland and the Director General of Electricity Supply for Northern Ireland; and

(b)the other functions of the Authority under this Order.

(2) The functions of the Authority are performed on behalf of the Crown.

(3) The expenses of the Authority shall be defrayed out of money appropriated for that purpose by Act of the Assembly.

(4) The offices of Director General of Gas for Northern Ireland and Director General of Electricity Supply for Northern Ireland are abolished.

(5) Schedule 1 has effect with respect to the Authority.

[F1Designation of Authority as national regulatory authority for Northern Ireland[F2: electricity] N.I.

3A.(1) The Authority is designated as the national regulatory authority for Northern Ireland in accordance with [F3Article 57(3)] of the Electricity Directive F4....

(2) The Authority shall ensure that its staff do not—

(a)seek or take any instructions that might compromise, or might reasonably be seen to compromise, the Authority's independence in relation to its functions as designated regulatory authority for Northern Ireland; or

(b)carry out any other activity, or have any financial or other interest, that might compromise, or might reasonably be seen to compromise, the Authority's independence in relation to those functions.

(3) The Authority may make representations to the regulatory authority for Great Britain designated under section 3A of the Utilities Act 2000 about matters to be discussed or decided at any meeting of the Board of Regulators of the Agency; and whenever the Authority receives from that regulatory authority any documents or other information related to any such meeting, the Authority shall consider whether or not to do so.

[F5(4) The Authority must provide the European Commission with such information as it may reasonably request in order to comply with its duty under paragraph (7) of Article 57 of the Electricity Directive to report on compliance by and in relation to the Authority with the principle of independence set out in that Article.]]

[F6Exercise of designated regulatory gas functions etcN.I.

3B.  The Authority shall ensure that its staff do not—

(a)seek or take any instructions that might compromise, or might reasonably be seen to compromise, the Authority’s independence in relation to its designated regulatory gas functions; or

(b)carry out any other activity, or have any financial or other interest, that might compromise, or might reasonably be seen to compromise, the Authority’s independence in relation to those functions.]

Transfer to Authority of functions, property, etc. of DirectorsN.I.

4.—(1) The functions, property, rights and liabilities of the Director General of Gas for Northern Ireland and the Director General of Electricity Supply for Northern Ireland ( “the Directors”) are transferred to the Authority.

(2) Any statutory provision or any document which—

(a)refers to either of the Directors; and

(b)was passed or made before the transfer effected by paragraph (1),

shall have effect after the transfer, so far as necessary for the purposes of or in consequence of the transfer, as if references to the Director were references to the Authority.

(3) Anything which —

(a)has been done by or in relation to either of the Directors for the purpose of or in connection with anything transferred by this Article; and

(b)is in effect immediately before it is transferred,

shall be treated as if done by or in relation to the Authority.

(4) Anything (including legal proceedings) which—

(a)relates to anything transferred; and

(b)is in the process of being done by or in relation to either of the Directors immediately before it is transferred,

may be continued by or in relation to the Authority.

(5) Nothing in this Article affects the validity of anything done by or in relation to either of the Directors before the transfer takes effect.

Forward work programme of the AuthorityN.I.

5.—(1) The Authority shall, before each financial year, publish a document (the “forward work programme”) containing a general description of the projects, [F7which it plans to undertake during the year in the exercise of its relevant functions (other than projects comprising routine activities in the exercise of those functions)].

(2) That description shall include the objectives of each project.

(3) The forward work programme for any year shall also include an estimate of the overall expenditure which the Authority expects to incur during the year in the exercise of its [F8relevant functions] .

[F9(3A) The forward work programme prepared under this Article may, if the Authority so decides, be combined in a single programme with the forward work programme of the Authority prepared under Article 4 of the Water and Sewerage Services (Northern Ireland) Order 2006: and references in the following provisions of this Article to a forward work programme include references to such a combined programme.]

(4) Before publishing the forward work programme for any year, the Authority shall give notice—

(a)containing a draft of the forward work programme; and

(b)specifying the time within which representations or objections to the proposals contained in it may be made,

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

(5) The notice under paragraph (4) shall be published by the Authority in such manner as it considers appropriate for the purpose of bringing the matters contained in it to the attention of persons likely to be affected by them.

[F10(6) The Authority shall send a copy of any notice given by it under paragraph (4) to the Council and the Department and also (in the case of notice concerning a combined single programme under paragraph (3A)) to the Department for Regional Development.

(7) In this Article and the following provisions of this Order references to the Authority's relevant functions are references to the functions of the Authority under—

(a)the Electricity Order;

(b)the Gas Order; and

(c)this Order.]

Annual and other reports of AuthorityN.I.

6.—(1) The Authority shall, as soon as practicable after the end of each financial year, make to the Department of Enterprise, Trade and Investment (in this Order referred to as “the Department”) a report (the “annual report” for that year) on—

(a)its activities during that year [F11in the exercise of its relevant functions] ; and

[F12(b)the Competition and Market Authority's activities during that year so far as relating to appeals under Article 14B of the Electricity Order or Article 14B of the Gas Order;]

(2) The annual report for each year shall include—

(a)a general survey of developments in respect of matters falling within the scope of the Authority's [F13relevant functions] ;

(b)a report on the progress of the projects described in the forward work programme for that year [F14prepared under Article 5] ;

(c)a summary of final and provisional orders made, and penalties imposed, by the Authority under Part VI during the year; and

(d)a report on such other matters as the Department may from time to time require.

(3) The annual report for each year shall set out any [F15guidance] given by the Department under—

(a)Article 50(2) of the Electricity (Northern Ireland) Order 1992 (NI 1) (in this Order referred to as “the Electricity Order”); or

(b)Article 27(2) of the Gas (Northern Ireland) Order 1996 (NI 2) (in this Order referred to as “the Gas Order”).

(4) The Department shall consult the Authority before exercising the power under paragraph (2)(d) in relation to any matter.

[F16(4A) The annual report prepared under this Article may, if the Authority so decides, be combined in a single report with the annual report of the Authority prepared under Article 5 of the Water and Sewerage Services (Northern Ireland) Order 2006; and references in the following provisions of this Article to an annual report include references to such a combined report.]

(5) The Department shall—

(a)lay a copy of each annual report before the Assembly; and

(b)arrange for the report to be published in such manner as the Department considers appropriate.

(6) The Authority shall also make to the Department such reports with respect to the matters mentioned in paragraph (2)(a) or (b) as the Department may require and the Authority shall, if the Department so directs, arrange for copies of any report under this paragraph to be published in such manner as is specified in the direction.

(7) The Authority may also prepare other reports with respect to any matter falling within the scope of its functions and may arrange for any such report to be published in such manner as it considers appropriate.

(8) The Authority shall send—

(a)a copy of each annual or other report published under this Article to the General Consumer Council for Northern Ireland (in this Order referred to as “the Council”); and

(b)a copy of each report under paragraph (7) to the Department.

(9) In making or preparing any report under this Article the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

(10) F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F18Report on activities as designated regulatory authority[F19: electricity] N.I.

6A.(1) The Authority shall, each year, prepare a report (the “regulatory authority report”) on the activities it has carried out in the preceding 12 months in its capacity as designated regulatory authority for Northern Ireland.

(2) The regulatory authority report shall include, in particular, a general survey of the steps taken and results achieved by the Authority in the performance of its functions under [F20Articles 59 and 60] of the Electricity Directive F21....

(3) In preparing the regulatory authority report, the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

(4) The first regulatory authority report shall be prepared by 1st July 2012.

(5) Subsequent regulatory authority reports shall be prepared by 1st July each year.

(6) As soon as is practicable after preparing a regulatory authority report, the Authority shall—

(a)send a copy of it to—

(i)the Department;

(ii)the European Commission; and

(iii)the Agency; and

(b)publish it in such manner as the Authority considers appropriate for bringing it to the attention of others who may be interested in it.

F19Word in art. 6A heading inserted (31.12.2020) by S.I. 2019/530, reg. 130(2) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(44))

F21Words in art. 6A(2) omitted (31.12.2020) by virtue of S.I. 2019/530, reg. 130(3) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(44))

Decisions of the Agency for the Cooperation of Energy Regulators and of the European CommissionN.I.

6B.[F22(1)]  The Authority shall carry out its functions in the manner that it considers is best calculated to implement, or to ensure compliance with, any binding decision of the Agency or the European Commission made under [F23the 2009 Electricity Directive,] the Electricity Directive, the Gas Directive, [F24the 2009 Electricity Market Regulation,] the Electricity Regulation, the Gas Regulation [F25, the 2009 Agency Regulation] or the Agency Regulation.

[F26(2) For the purposes of paragraph (1), a binding decision [F27made under the Gas Directive or the Gas Regulation] does not include a decision that is not, or so much of a decision as is not, [F28assimilated] law.]]

Publication by Authority of advice and information about consumer mattersN.I.

7.—(1) If it appears to the Authority that the publication of any advice and information would promote the interests of consumers in relation to gas or electricity supplied by authorised suppliers, the Authority may publish that advice or information in such manner as it thinks fit.

(2) In publishing advice or information under this Article the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

(3) Before deciding to publish under this Article any advice or information relating to a particular individual or body of persons the Authority shall consult that individual or body.

(4) The [F29CMA] shall consult the Authority before publishing under section 6 of the Enterprise Act 2002 (c.40) any information or advice which may be published by the Authority under this Article.

[F30(5) The Authority shall—

(a)prepare and keep under review, with a view to making any necessary changes, guidance for consumers of gas F31... which:

(i)addresses all matters included in any document published by the European Commission [F32before [F33IP completion day]] pursuant to F31... Article 3(12) of the Gas Directive; and

(ii)may include any other information relating to the rights of the consumers which the Authority considers appropriate;

(b)consult the Council when preparing and keeping under review the guidance referred to in paragraph (a); and

(c)publish that guidance by making it available on its website and any other manner as the Authority considers appropriate for the purpose of bringing it to the attention of the consumers and others likely to be interested.

F34(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Powers of Authority in relation to external mattersN.I.

8.—(1) The Authority may liaise, co-operate and enter into arrangements with relevant persons in—

(a)any other part of the United Kingdom;

F35(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)any other State in which there is a gas pipe-line or electricity transmission system which is or may be connected (directly or indirectly) to a gas pipe-line or electricity transmission system in Northern Ireland.

[F36(1A) The Authority may consult and co-operate with the Agency.]

[F37(1B) The Authority may, in relation to electricity, liaise, co-operate and enter into arrangements with relevant persons in any member State.

(1C) The Authority may in particular enter into arrangements with the designated regulatory authority of any member State for the purpose of issuing joint binding decisions as referred to in Article 62(2)(c) of the Electricity Directive.]

(2) In [F38paragraphs (1) and (1B).] “relevant persons” means—

(a)persons exercising functions in relation to electricity or gas which correspond to any of those of the Authority or the Department; and

(b) persons whose activities consist of or include—

(i)generating, supplying [F39, distributing] or participating in the transmission of electricity; or

(ii)storing, supplying or participating in the conveyance of gas.

[F40Duty on the authority to have regard to the need for consultation and co-operation with other authorities [F41: electricity] N.I.

8A.(1) When carrying out its functions as designated regulatory authority for Northern Ireland, the Authority shall, to the extent it considers necessary, consider whether there is a need to—

(a)consult and co-operate with the Agency or the designated regulatory authorities of Great Britain or other Member States;

(b)provide the Agency or the designated regulatory authorities of Great Britain or other Member States with information they may require in order to carry out their functions under the Electricity Directive, F42... the Electricity Regulation, F42... or the Agency Regulation; and

(c)consult relevant national authorities.

[F43(1A) When carrying out its functions as designated regulatory authority for Northern Ireland, the Authority shall to the extent it considers necessary, consider whether there is a need to consult and co-operate with any person exercising functions in relation to gas which correspond to any of those of the Authority or the Department in a State to which Article 8(1)(c) applies.]

(2) In meeting its duty under paragraph (1) the Authority shall, wherever it thinks fit, co-operate with [F44the Agency and] the designated regulatory authorities of Great Britain or other Member States within a regions with a view to achieving, within that region, compliance with those requirements of the [F45Electricity Directive] [F46, the Agency Regulation and the Electricity Regulation] which apply in relation to regions to provide for regional co-operation.

[F47(2A) In meeting its duty under paragraph (1) the Authority shall, wherever it thinks fit, co-operate and consult with the Agency or the designated regulatory authorities in Great Britain or the Member States in relation to cross border issues (within the meaning of the Gas Directive) with a view to ensuring that the purposes of the Gas Directive in relation to such issues are achieved.

(2B) In meeting its duty under paragraph (1A) the Authority shall, wherever it thinks fit, co-operate and consult with any person exercising, in relation to a pipe-line to which Article 8(1)(c) applies, functions which correspond to any of those of the Authority or the Department.]

[F48(2C) In meeting its duty under paragraph (1) the Authority must, wherever it thinks fit, co-operate with the designated regulatory authorities of member States with a view to ensuring compliance by the ENTSO for electricity and the EU DSO entity with the obligations mentioned in Article 59(1)(c) of the Electricity Directive.

(2D) For the purposes of paragraph (2C) “the ENTSO for electricity” and “the EU DSO entity” have the same meaning as in the Electricity Directive.

(2E) Without prejudice to paragraph (2) the Authority must, in particular, to the extent it considers necessary, consider whether there is a need to enter into arrangements with the designated regulatory authorities of member States—

(a)for the purposes laid down in Articles 59(1)(b), (c) and (f) and 61(2) of the Electricity Directive; and

(b)for carrying out the functions referred to in Article 62(1) and (2) of the Electricity Directive.

(2F) In exercising its functions under paragraphs (2) and (2E)(a), the Authority must have due regard to any guidelines adopted under Article 61(5) of the Electricity Directive.]

(3) In this Article.—

region” means—

(a)

F49... any geographical area defined in accordance with [F50Article 34(3)] of the Electricity Regulation which includes Northern Ireland; F51...

(b)

F51...

relevant national authority” means [F52either] of the following—

(a)

F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)

the Office of Communications; and

(c)

the [F54CMA].

[F55(4) Article 9 of the SEM Order does not apply in relation to the exercise of any function of the Authority under this Article but otherwise the provisions of this Article are without prejudice to any provisions of the SEM Order.]]

F41Word in art. 8A heading inserted (31.12.2020) by S.I. 2019/530, reg. 134(2) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(47))

F42Words in art. 8A(1)(b) omitted (31.12.2020) by virtue of S.I. 2019/530, reg. 134(3) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(47))

F43Art. 8A(1A) inserted (temp.) (16.12.2020) by virtue of The Gas (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/279), regs. 1, 16(2) (with reg. 19)

F45Words in art. 8A(2) substituted (31.12.2020) by S.I. 2019/530, reg. 134(4) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(47))

F47Art. 8A(2A)(2B) inserted (temp.) (16.12.2020) by virtue of The Gas (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/279), regs. 1, 16(3) (with reg. 19)

F49Words in art. 8A(3) omitted (31.12.2020) by virtue of S.I. 2019/530, reg. 134(5)(a) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(47))

F51Words in art. 8A(3) omitted (31.12.2020) by virtue of S.I. 2019/530, reg. 134(5)(b) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(47))

F53Art. 8A(3): words in the definition of "relevant national authority" omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 236(b) (with art. 3)

[F56Duty on the authority to have regard to the need for consultation and co-operation with regard to other authorities: gasN.I.

8B.(1) When carrying out its designated regulatory gas functions, the Authority shall, to the extent it considers necessary, consider whether there is a need to—

(a)consult and co-operate with the Great Britain authority or the regulatory authorities of other countries or territories;

(b)provide the Great Britain authority with information it may require in order to carry out any functions of the Great Britain authority corresponding to the Authority’s designated regulatory gas functions; and

(c)consult relevant national authorities.

(2) In this Article, “relevant national authorities” has the same meaning as in Article 8A(3).]