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23 1999

ELECTRICITY REGULATION ACT, 1999

PART III

Licences and Authorisations

Licences to generate and supply electricity.

14. —(1) The Commission may grant or may refuse to grant to any person a licence—

(a) to generate electricity,

(b) to supply electricity to eligible customers,

(c) subject to section 28 , to supply electricity to final customers which in aggregate does not exceed the amount of electricity which is available to the supplier and which is produced using renewable, sustainable or alternative forms of energy or electricity purchased, in place of such electricity, in accordance with the trading arrangements provided for in regulations to be made by the Commission under section 9 (1) (d), or

(d) to supply to the single premises of the main heat customer electricity which is produced using combined heat and power at the generating station from which that main heat customer is supplied with heat, or electricity purchased, in place of such electricity, in accordance with the trading arrangements provided for in regulations to be made by the Commission under section 9 (1) (d),

on such terms and conditions as may be specified in the licence.

(2) The Commission may grant to the Board a licence to supply electricity to eligible customers, subject to terms and conditions as may be specified in the licence.

(3) Any licence granted under this section shall be deemed to contain a condition that it shall be subject to modification for the purposes of compliance with any enactment implementing, whether in whole or in part, Council Directive No. 96/92/EC of the European Parliament and of the Council of 19 December, 1996 concerning common rules for the internal market in electricity.

(4) An application for a licence under this section shall be in writing and be in such form and contain such information as the Commission may request.

(5) An application for a licence under this section shall be accompanied by such a fee, if any, as the Commission may determine to be appropriate, having regard to the application being made, and the Commission shall make information on such fees available on request.

(6) A licence granted by the Commission shall be subject to—

(a) modification in accordance with section 19 , or

(b) revocation by the Commission in accordance with this Act.

(7) Where the Commission refuses to grant a licence to a person—

(a) the person shall be notified, in writing, by the Commission of the reasons for the refusal,

(b) within 28 days of the making of a refusal, the Commission shall notify, in writing, the Commission of the European Communities of the reasons for the refusal, and

(c) the person may appeal the refusal in accordance with section 29 .

(8) The holder of a licence granted under paragraph (a) of subsection (1) may supply electricity to the holder of a licence granted under paragraph (b), (c) or (d) of that subsection or to the Board.

(9) A licence granted under paragraph (b), (c) or (d) of subsection (1) shall not authorise the supply of electricity to an eligible customer or final customer until after the 19th day of February, 2000.

(10) For the purposes of subsection (1), “main heat customer” means a person who has entered into a contract with a producer of combined heat and power to purchase, in a calendar year, an amount of heat produced by that producer, which amount of heat is greater than that contracted to be purchased in that year from that producer by any other person (if any).

(11) The Commission shall monitor licensees to ensure that they continue to conform to all the conditions and requirements of their licences.

(12) The Board shall be obliged to supply electricity to the holder of a licence under subsection (1) in accordance with the trading arrangements provided for in regulations to be made by the Commission under section 9 (1) (d).

Permits under section 37 of Principal Act.

15. —(1) A person who has been granted a permit under section 37 of the Principal Act on or after the 1st day of September, 1998, shall apply for a licence or an authorisation within 3 months of the coming into operation of this section or such other period as may be agreed by the Commission.

(2) An application to the Board for a permit under section 37 of the Principal Act which has not been the subject of a decision by the Board before the commencement of this section shall be deemed to be an application for a licence under section 14 and an authorisation under section 17 and shall be dealt with accordingly.

(3) A permit granted under section 37 of the Principal Act on or after the 1st day of September, 1998, shall expire 12 months after the commencement of this section or on the granting on an earlier date of a licence or authorisation by the Commission.

(4) A permit granted under section 37 of the Principal Act before the 1st day of September, 1998, shall, subject to the provisions of this Act, continue in full force and effect.

(5) The power of modification or revocation of a permit referred to in subsection (3) or (4) shall be exercisable by the Commission and not by the Board, and any powers conferred on the Board by such a permit shall be exercisable by the Commission and not by the Board.

Authorisations to construct or reconstruct a generating station.

16. —(1) A person shall not construct or reconstruct a generating station, for the purpose of supply to final customers, unless an authorisation has been granted to the person by the Commission.

(2) Notwithstanding the Electricity (Supply) Acts, 1927 to 1995, the Board may not construct or reconstruct a generating station unless an authorisation has been granted to it by the Commission.

(3) Subject to section 17 , the Commission may grant or may refuse to grant to any person an authorisation to construct or reconstruct a generating station, subject to such terms and conditions as may be specified in the authorisation including terms and conditions as to generating capacity of the proposed generating station.

(4) A person who contravenes subsection (1) shall be liable on conviction on indictment to a fine not exceeding £100,000.

Application for authorisation.

17. —(1) An application for an authorisation under section 16 shall be in writing and be in such form and contain such information as the Commission may reasonably request.

(2) An application for an authorisation shall be accompanied by such a fee, if any, as the Commission may determine.

(3) An authorisation granted by the Commission shall be subject to—

(a) modification in accordance with section 19 , or

(b) revocation by the Commission in accordance with this Act.

(4) Where the Commission refuses to grant an authorisation—

(a) the person shall be notified, in writing, by the Commission of the reasons for the refusal, and

(b) within 28 days of the making of the refusal, the Commission shall notify, in writing, the Commission of the European Communities of the reasons for the refusal, and

(c) the person may appeal the refusal in accordance with section 29 .

Orders specifying criteria for considering applications for authorisations.

18. —(1) The Minister shall specify by order the criteria in accordance with which an application for an authorisation may be determined by the Commission.

(2) The criteria specified by the Minister under subsection (1) may relate to—

(a) the safety and security of the electricity system, electric plant and domestic lines,

(b) the protection of the environment including the limitation of emissions to the atmosphere, water or land,

(c) the siting of a generating station and associated land use,

(d) the efficient use of energy,

(e) the nature of the primary source of energy to be used by a generating station,

(f) the qualifications of an applicant, including the technical and financial qualifications of the applicant, and

(g) public service obligations provided for in an order under section 39 .

(3) The Minister may by order amend or revoke an order under this section including an order made under this subsection.

(4) An order under subsection (3) shall not be made unless a notice of intention to make such an order is published in a daily newspaper published and circulating in the State at least one month before the making of the order.

(5) A copy of the draft order proposed to be made under subsection (3) shall, on payment of the prescribed fee, if any, be given by the Minister to any person who requests it, and the notice of intention published under subsection (4) shall state that such a copy may be so obtained.

(6) An order under this section shall not provide for the use of nuclear fission for the generation of electricity.

Modification of licence or authorisation.

19. —(1) Where the holder of a licence or an authorisation so requests the Commission may modify the conditions or requirements of the licence or authorisation.

(2) Where the Commission is of the opinion that a licence or an authorisation should be amended it may do so with or without the consent of the holder of the licence or the authorisation, as the case may be.

(3) Where the Commission is of the opinion that a modification of a condition or requirement of a licence or an authorisation is a modification of a class required by an order of the Minister made under section 39 or 40 the Commission may modify the conditions or requirements of the licence or authorisation concerned without the consent of the holder of that licence or authorisation, as the case may be.

Procedures to be followed before modifying licences or authorisations.

20. —(1) Subsections (2) to (6) shall apply to all modifications of a licence or an authorisation other than a modification made to give effect to an order under section 39 or 40.

(2) Before modifying a licence or an authorisation the Commission shall issue a notice—

(a) stating that it proposes to make such modification,

(b) stating the nature of such modification and the reasons therefor, and

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

(3) The Commission shall consider any representations or objections which are made under subsection (2) and not withdrawn.

(4) A notice under subsection (2) shall be given—

(a) by publishing the notice in a newspaper circulating in the State, and

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

(5) The Commission shall send a copy of a notice issued under subsection (2) to the Minister who shall arrange, without undue delay, to provide a copy of the notice to the Oireachtas library.

(6) Where, within the period specified in subsection (2) (c), no objections or representations are made or such objections or representations as are made in that period are subsequently withdrawn, the modification of the licence or authorisation concerned shall have effect accordingly.

(7) Where objections or representations made within the period specified in subsection (2) (c) are not withdrawn—

(a) the Commission may either accept or reject such objections or representations, in whole or in part, and the modification shall have effect accordingly, or

(b) where it is satisfied that sufficient grounds exist to warrant a public hearing, the Commission may cause such a public hearing to be held.

(8) Where the Commission rejects any objections or representations made under this section without a public hearing being held, the reasons for the rejection and the refusal of a public hearing shall be notified to the persons who made those objections or representations and the proposed modification shall be effected in accordance with section 22 (3).

Public hearings of Commission.

21. —(1) Where the Commission proposes to hold a public hearing under section 20 (7) (b) it shall issue a notice stating—

(a) the date (being not less than 28 days from the date of giving notice) on which it is intended to hold the hearing, and

(b) the location at which it is intended to hold the hearing.

(2) A notice referred to in subsection (1) shall be given—

(a) by publishing the notice in a newspaper circulating in the State, and

(b) by serving the notice on the holder of the licence or authorisation concerned and any persons by whom objections or representations were made in the period referred to in section 20 (2) (c).

(3) All hearing of the Commission shall be open to members of the public and may be held before the Commission or any other person authorised by the Commission to hold such a hearing and references to the Commission in subsection (4) shall include references to any other person so authorised.

(4) At a public hearing held for the purposes of this section—

(a) those persons by whom objections or representations were made in the period referred to in section 20 (2) (c) may be heard,

(b) the Commission may assess the interest of any person who applies to be a party to the hearing and may admit or exclude them for stated reasons, and

(c) the Commission may administer oaths, issue notices, issue subpoenas, compel the attendance of witnesses and the production of books, accounts, papers, records, documents and material and take and receive evidence.

(5) The Commission may, following consultation with the Minister, make rules concerning the practice and procedures to be adopted at such public hearings.

(6) A witness before a public hearing shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.

Determination by Commission following public hearing.

22. —(1) The Commission shall, within a reasonable period from the date of completion of a public hearing, make a determination—

(a) to modify a licence or an authorisation in accordance with the proposed modification set out in the notice issued under section 20 (2)(b) or otherwise, or

(b) not to make the modification concerned.

(2) Notice of a determination made under subsection (1) shall be given to the holder of the licence or authorisation concerned and any parties to the hearing and the determination shall be made available by the Commission to any other person on request.

(3) Subject to subsection (4), the modification of a licence or authorisation shall be effected—

(a) by serving notice of the modification on the holder of the licence or authorisation concerned, and

(b) by publishing the notice in a newspaper circulating in the State.

(4) A modification of a licence or authorisation shall take effect on the day which is 28 days after the day on which—

(a) service of notice of modification on the holder of the licence or authorisation concerned is effected, or

(b) notice of modification of the licence or authorisation concerned is published in a newspaper circulating in the State.

whichever is the later, unless an appeal is made under section 29 (2) in which case the modification shall not come into effect, unless confirmed under section 30 (7).

Directions by Commission to protect public health, etc.

23. —(1) In this section and in sections 24, 25 and 26 “condition or requirement” means any term or condition of a licence or an authorisation or any requirement imposed by or under this Act.

(2) Where the Commission is satisfied that all or any of the circumstances set out in subsection (3) have arisen or are likely to arise it may direct the holder of the licence or authorisation concerned or the Board in respect of the transmission and distribution system to discontinue or to refrain from specified practices.

(3) The circumstances referred to in subsection (2) are—

(a) where the Commission is of the opinion that immediate action is necessary to protect—

(i) public health or safety or the environment,

(ii) the continuity of supplies of electricity,

(iii) the interests of other holders of licences or authorisations;

(b) where the Commission is of the opinion that the holder of a licence or an authorisation is contravening or is likely to contravene a condition or a requirement and immediate action is necessary to cease or prevent such contravention; or

(c) where the Commission is of the opinion that immediate action is necessary to prevent dissipation of the assets of the holder of a licence or an authorisation.

(4) Nothing in this section shall authorise the Commission to give directions relating to industrial disputes.

Issue of notice by Commission concerning contraventions, etc.

24. —(1) Where the Commission is of the opinion that the holder of a licence or an authorisation may be contravening or may be likely to contravene a condition or requirement, it may issue a notice under subsection (2) to the holder of the licence or authorisation.

(2) The notice referred to in subsection (1) shall—

(a) specify—

(i) the condition or requirement which the Commission considers that the holder of the licence or authorisation may be contravening or may be likely to contravene, or

(ii) the acts or omissions which in the opinion of the Commission may constitute or would be likely to constitute contravention of the condition or requirement concerned,

and

(b) specify the period (being not less than 28 days from the date of the issuing of the notice) within which representations or objections may be made.

(3) The Commission shall consider any representations or objections which are made under subsection (2) and not withdrawn.

(4) On consideration of any representations or objections, the Commission may give a direction to the holder of a licence or an authorisation to take such measures as are necessary to cease the contravention or to prevent a future contravention.

(5) As soon as practicable after giving a direction in accordance with subsection (4) or section 23 (2) the Commission shall give notice of the direction in accordance with subsection (10).

(6) Subject to subsection (7), the Commission may revoke a direction given under this section.

(7) Before revoking a direction the Commission shall give notice in accordance with subsection (10)

(a) stating that it proposes to revoke the direction and setting out the effect of the revocation, and

(b) specifying the period (being not less than 28 days from the publication of the notice) within which representations or objections with respect to the proposed revocation may be made.

(8) The Commission shall consider any representations or objections which are made under subsection (7) and not withdrawn.

(9) If, after giving notice of a revocation made in accordance with subsection (6), the Commission decides not to revoke the direction to which the notice refers, it shall give notice of its decision.

(10) A notice under this section shall be given—

(a) by publishing the notice in a newspaper circulating in the State, and

(b) by serving a copy of the notice and a copy of the direction or revocation, as the case may be, on the holder of the licence or authorisation to whom the notice, direction or revocation relates.

Determination by Commission of specified breach.

25. —(1) Where the Commission decides not to give a direction under section 24 (4), the Commission may make a determination that the holder of a licence or an authorisation has committed a specified breach of a condition or requirement.

(2) As soon as practicable after making a determination under subsection (1) the Commission shall—

(a) publish a notice of the determination in a newspaper circulating in the State, and

(b) serve a copy of the notice and a copy of the determination on the holder of the licence or authorisation to whom the determination relates.

Compliance with direction or determination.

26. —(1) In order to ensure compliance with a direction given under section 24 , the Commission may apply in a summary manner ex parte or on notice to the High Court for an order requiring the holder of a licence or an authorisation who, in the opinion of the Commission, is contravening or who is likely to contravene a condition or requirement to discontinue or to refrain from specified practices.

(2) The High Court may make such order as it thinks fit and may confirm, revoke or vary a direction given by the Commission.

Eligible customers.

27. —(1) The Commission, with the consent of the Minister, may prescribe the means by which the consumption of electricity is estimated and calculated for the purpose of this section and references in this section to calculation or estimation of electricity consumption shall be references to calculations or estimates made under those regulations.

(2) A consumer of electricity whose consumption of electricity at any single premises in any 12 month period is estimated and calculated to be or likely to be greater than 4 Giga Watt hours shall be deemed to be an eligible customer at that premises for the purposes of this Act.

(3) Subject to subsection (4), the Minister may be order vary the figure of 4 Giga Watt hours referred to in subsection (2).

(4) The Minister shall give notice of his or her intention to make an order under subsection (3) or (5) by publishing it in a newspaper circulating in the State at least 28 days before the making of the order.

(5) The Minister may by order amend or revoke an order made under subsection (3) including an order made under this subsection.

(6) Where an order is proposed to be made under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

Purchase of electricity from combined heat and power.

28. —(1) The Minister, after consultation with the Commission, may, from time to time, prescribe the total amount or amounts of electricity from combined heat and power which may be supplied to final customers under section 14 (1) (d) in any specified period.

(2) The Minister may prescribe procedures, including procedures relating to access to the transmission or distribution system and the circumstances in which the Board shall supply electricity to such final customers, to be followed for the purposes of this section.