Electricity Regulation Act 1999

(b) For the purposes ofparagraph (a), the Commission may give an operator such direction as it considers appropriate in relation to what is a reasonable fee.]]

13AD. F293[Contraventions in the licensed area.

13AD.—A contravention of any provision of this Part (including a failure to comply with the conditions of a safety permit) which occurs in any part of—

(a) the licensed area to whichsubparagraphs (i)or(ii), or both, ofparagraph(a) of the definition of“licensed area”relates, or

(b) a designated area,

shall be treated as having occurred in the State.]

PART III Licences and Authorisations

14. Licences to generate and supply electricity.

F294[14.—(1) The Commission may grant or refuse to grant toF295[any person who is an electricity undertaking or who intends to carry out a function of an electricity undertaking]a licence—

(a) to generate electricity,

(b) to supply electricity to eligible customers,

(c)F296[…]

(d)F296[…]

(e) to discharge the functions of the transmission system operator,

(f) to discharge the functions of the transmission system owner,

(g) to discharge the functions of theF297[distribution system operator,]

(h) to discharge the functions of theF298[public electricity supplier, or]

F299[(i) to transport electricity across andF300[maintain an interconnector,]]

F301[(j) to act as the Single Electricity Market operator,]

F302[(k) to discharge the functions of Distribution SystemF303[Owner,]]

F304[(l)to carry out the function of aggregation,

(m) to carry out the function of demand response, and

(n) to carry out the function of energy storage,]

F305[(o) to discharge the functions of an electricity undertaking engaged in purchasing electricity, not for own use]

and where the Commission grants such a licence, that licence shall be subject to such terms and conditions as may be specified in the licence.]

F306[(1A) The Commission may by order provide that a person generating electricity by means of a specified class or classes of generating station shall stand licensed to generate electricity subject to such terms and conditions as may be specified in such order.

(1B) The Commission may by order amend or revoke an order made undersubsection (1A)of this subsection.

(1C) The Commission shall not make an order undersubsection (1A)or(1B)unless a notice of intention to make such an order is published in at least one newspaper circulating in the State at least one month before the making of the order.

(1D) The draft order shall be published by the Commission in such manner as it shall determine, so as to bring it to the attention of those likely to be affected by it and the notice of intention published undersubsection (1C)shall state the manner in which a copy of the draft order may be obtained.]

(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.

F307[(2A) A licence underparagraph(e) ofsubsection (1)shall only be granted to EirGrid.

F323[(2AA) A licence underparagraph (e)ofsubsection (1)shall provide for the ownership, by the transmission system operator concerned, of transmission assets for the following purposes:

(a) the development or proposed development of a transmission system which is offshore;

(b) the extension or proposed extension of an existing transmission system to a transmission system referred to inparagraph (a);

(c) facilities that are not offshore but that relate, or will relate, to connecting a transmission system (or part thereof) referred to inparagraph (a)to an existing transmission system;

(d) any transmission assets as may be determined by the Commission as assets of the transmission system operator.]

(2B) A licence underparagraph(f) ofsubsection (1)shall only be granted to the Board or a subsidiary of the Board.

(2C) A licence underparagraph(g) ofsubsection (1)shall only be granted to the Board or a subsidiary of the Board.

(2D) A licence underparagraph(h) ofsubsection (1)shall only be granted to the Board.]

F308[(2DA) A licence under paragraph (k), ofsubsection (1)shall—

(a) only be granted to the Board, and

(b) not take effect prior to the transfer date fixed under the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2007.]

F309[(2E) A licence undersubsection (1)may include such terms and conditions relating to participation in and the operation of the Single Electricity Market as the Commission considers necessary or expedient.

(2F) The Commission may grant an exemption from the requirement to hold a licence to act as the Single Electricity Market operator to a person who holds a licence to perform corresponding functions in Northern Ireland.]

F310[(2G) A licence underparagraphs(b), (c) or (d) ofsubsection (1)may include conditions to ensure that where the holder of the licence is registered in another Member State, the holder of the licence shall comply with—

(a) the conditions of the licence, and

(b) the requirements of this Act.]

F311[(2H) The holder of an electricity supply licence undersubsection (1)(b)and(1)(h)shall maintain for not less than 5 years and make available on a request being made by the Commission, the Competition and Consumer Protection Commission or the European Commission all relevant data relating to all transactions in electricity supply contracts and electricity derivatives with wholesale customers and transmission system operators.

(2I) The data referred to insubsection (2H)shall include details on the characteristics of relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled electricity supply contracts and electricity derivatives.

(2J) The Commission may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This subsection shall not apply to information about financial instruments which fall within the scope ofF312[Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014].

(2K)F313[…]

(2L) In the event that the authorities referred to insubsection (2H)require access to data kept by entities falling within the scope ofF312[Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014], the authorities responsible under that Directive shall provide them with the required data.]

F314[(2M) (a) The Commission may, in carrying out its function undersection 9(1F), in a licence undersubsection (1)(b), specify such standards of performance and quality in connection with the supply of electricity to final customers as the Commission determines ought to be achieved.

(b) The holder of a licence referred to inparagraph (a)shall comply with such standards of performance as may be specified by the Commission in the licence concerned.]

(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.

F315[(8)(a) The holder of a licence granted underparagraph (a)ofsubsection (1)may supply electricity to the holder of a licence granted underparagraph (b), (c)or(d)of that subsection or to the Board.

(b) The holder of a licence underparagraph (a)ofsubsection (1)may supply an amount of electricity to its own premises or to its own subsidiary, or subsidiaries, whether or not eligible, which does not exceed the amount of electricity produced by the holder of the licence or electricity which is purchased, in place of such electricity, in accordance with the trading arrangements provided for in any Regulations made by the Commission undersection 9(1)(d).]

(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) F316[…]

(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).

F317[(13) (a) Subject to such arrangements as the Commission may approve in the interest of economic efficiency in relation to the discharge by the holders of licences of their functions underparagraphs (f)and(g)ofF318[subsection (1)], the Commission shall ensure that the licence granted pursuant to the saidparagraph (f)shall contain provisions which—

(i) secure the complete and effective separation of that part of the business of the licensee as relates to any of the ownership, maintenance and construction of the transmission system (or any part thereof) from all other parts of its business, and

(ii) require the preparation of separate accounts in respect of that part of the licensee’s business which relates to the ownership, maintenance and construction of the transmission system (or any part thereof).

(b) Subject to such arrangements as the Commission may approve in the interest of economic efficiency in relation to the discharge by the holders of licences of their functions underparagraphs (f)and(g)ofF319[subsection (1)], the Commission shall ensure that the licence granted pursuant to the saidparagraph (g)shall contain provisions which—

(i) secure the complete and effective separation of that part of the business of the licensee as relates to any of the operation, maintenance and development of the distribution system (or any part thereof) from all other parts of its business, and

(ii) require the preparation of separate accounts in respect of that part of the licensee’s business which relates to the operation, maintenance and development of the distribution system (or any part thereof).]

F320[(14) The Commission shall grant a licence to generate electricity pursuant tosubsection (1)(a)to the Board in respect of existing generating stations which are not already licensed under this Act as soon as practicable after the coming into operation of this subsection.]

F321[(15) For the purposes of this section a person acts as Single Electricity Market operator if the responsibilities of that person include responsibility, pursuant to the Trading and Settlement Code under the Single Electricity Market, for calculating charges and other payments due under that code.]

F322[(16) For the purposes of this section, "any person" means an electricity undertaking.]

14A. F324[Transitional power to modify licence conditions concerning Single Electricity Market, etc.

14A.—(1) The Commission may, in accordance with this section, modify the conditions of a particular licence where the Commission considers it necessary or expedient to do so—

(a) for the purpose of implementing, or facilitating the operation of, the Single Electricity Market, or

(b) in consequence of, or for giving full effect to, those arrangements.

(2) The power to modify licence conditions under this section includes the power—

(a) to make modifications relating to the operation of the transmission system or the distribution system, and

(b) to make incidental, consequential or transitional modifications.

(3) Conditions included in a licence by virtue of the power conferred by this section—

(a) need not relate to the activity authorised by the licence,

(b) may require the holder of a licence undersection 14(1)(e) to carry out the responsibilities referred to insection 14(15)and to apply for or cause an affiliated company or a subsidiary company to apply for a licence undersection 14(1)(j) in such form as may be approved by the Commission,

(c) may do any of the things authorised bysection 14,

(d) may require the holder of a licence to enter into such new contracts or other arrangements, or new contracts or other arrangements for such purposes or of such description, as may be specified in or determined by or under the conditions,

(e) may include provision for determining the terms on which such new contracts or other arrangements are to be entered into, including terms for the contract or arrangement to be governed by a law other than the law of the State,

(f) may require the licence holder to amend or terminate, or agree to the amendment or termination of, such existing contracts or other arrangements, or existing contracts or other arrangements of such description, as may be specified in or determined by or under the conditions.

(4) Before making modifications under this section, the Commission shall consult—

(a) the holder of any licence being modified, and

(b) such other persons as the Commission considers appropriate.

(5)Subsection (4)may be satisfied by consultation before, or after or both, the coming into operation of this section.

(6) Notwithstandingsection 8A(4), consultation referred to insubsections (4)and(5)may, subject tosubsection (8), be performed by the Commission otherwise than in accordance withsection 8A(4)where such consultation is performed jointly with the Authority.

(7) Notwithstandingsection 8A, modifications under this section may, subject tosubsection (8), be made by the Commission otherwise than in accordance withsection 8A(4), but in such event it shall consult the Authority before making any such modification.

(8)Subsections (6)and(7)shall cease to have effect where the SEM Committee referred to insection 8Ahas been appointed in accordance withSchedule 1A, but without prejudice to any things done or steps taken prior to those subsections ceasing to have effect.

(9) The Commission shall publish any modifications under this section in such manner as it considers appropriate.

(10) The power of the Commission to modify a licence under this section may not be exercised after the end of the period of 2 years beginning with the day on which this section comes into operation.

(11) Subject tosubsection (12), nothing in this section prejudices the generality of any other power to modify a licence, and nothing insubsection (2)or(3)prejudices the generality ofsubsection (1).

(12) Where a licence is modified under this section,sections 19to22andsections 29to31shall not apply in relation to any such modification.]

14B. F325[Supplementary power to modify licence conditions

14B.—F16[…]]

15. Permits under section 37 of Principal Act.

15.—(1) A person who has been granted a permit undersection 37of 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 37of 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.

16. Authorisations to construct or reconstruct a generating station.

16.—F327[(1) A person shall not—

(a) construct or reconstruct a generating station for the purpose of supply to final customers, or

(b) construct an interconnector,

unless an appropriate 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.

F328[(3) Subject tosection 17, the Commission may grant or may refuse to grant to any person an authorisation—

(a) to construct or reconstruct a generating station, or,

(b) to construct an interconnector,

and where the Commission grants such an authorisation, that authorisation shall be subject to such terms and conditions as may be specified in the authorisation, including, as respects a generating station, the generating capacity of such station.]

F329[(3A) The Commission may by order provide for—

(a) the authorisation of persons in relation to the construction or reconstruction of a class or classes of generating station, subject to such terms and conditions, including conditions relating to generating capacity and notification to the Commission, as may be specified in the order, and

(b) such ancillary matters, including application procedures or the dispensing with such procedures, as may be specified in the order.

(3B) The Commission may by order amend or revoke an order made undersubsection (3A)of this section.

(3C) The Commission shall not make an order undersubsections (3A)or(3B)unless a notice of intention to make such an order is published in at least one newspaper circulating in the State at least one month before the making of the order.

(3D) the draft order shall be published by the Commission in such manner as it shall determine, so as to bring it to the attention of those likely to be affected by it, and the notice of intention published undersubsection (3C)shall state the manner in which a copy of the draft order may be obtained.]

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

16A. F330[Construction of an interconnector.

16A.—The Commission may, with the consent of the MinisterF331[, who shall take into account the electricity interconnection targets set out in point (1) of Article 4(d) of Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action^5], secure the construction of an interconnector or interconnectors by one or more of the following means:

(a) a competitive tender;

(b) an authorisation granted to a person without a prior competitive tender where the person demonstrates, to the satisfaction of the Commission, that the granting of an authorisation, subject to such conditions as the Commission deems necessary and appropriate, is in the long term interests of final customers; or

(c) requesting the transmission system operator to provide for the construction of an interconnector in its development plan.]

17. Application for authorisation.

17.—(1) An application for an authorisation under section 16 shall be in writing F332[unless that it is not required by virtue of an order made undersection 16(3A)or(3B),] and be in such form and contain such information as the Commission may reasonably request.

F333[(1A) The Commission shall publish the authorisation procedures as determined by it in such manner as it shall determine so as to bring it to the attention of those likely to be affected by it.]

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

F334[(2A) The Commission shall determine an application in accordance with the criteria specified in an order made undersection 18.

(2B) The Commission shall ensure that authorisation procedures for small generators and distributed generation take into account their limited size and potential impact.

(2C) An authorisation granted by the Commission under this section, shall be in writing and, unless previously revoked in accordance with any term contained in the authorisation, shall continue in force for such period as may be specified in or determined by or under the authorisation.

(2D)Subsection (2C)shall not apply to an authorisation provided for in an order made undersection 16(3A)or(3B).]

(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.

F335[(3A) A person who is granted an authorisation other than pursuant to an order made undersection 16(3A)or(3B), may appeal the terms and conditions of that authorisation undersection 29.

(3B) Where the Commission modifies an authorisation or the terms and conditions of an authorisation the holder of the authorisation may appeal the modification in accordance withsection 29.]

F336[(4) Where the Commission refuses to grant an authorisation—

(a) the reasons for such refusal shall be objective, non-discriminatory, well founded and duly substantiated,

(b) the applicant for the authorisation shall be notified, in writing, by the Commission of the reasons for the refusal, and

(c) the applicant may appeal the refusal in accordance withsection 29.]

18. 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 F337[to construct or reconstruct a generating station] may be determined by the Commission.

F338[(2) The criteria specified by the Minister undersubsection (1), in relation to an authorisation to construct or reconstruct a generating station, may relate to—

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

(b) protection of public health and safety,

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

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

(e) use of public ground,

(f) the efficient production and use of energy,

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

(h) the qualifications of an applicant, including the technical, economical and financial qualifications of the applicant,F339[…]

(i) public service obligations provided for in an order underF340[under section 39, and]]

F341[F342[(j)the contribution of generating capacity to meeting the overall European Union target of at least a 32% share of energy from renewable sources in the Union’s gross final consumption of energy in 2030 referred to in Article 3(1) of Directive (EU) 2018/2001 of the European Parliament and of the Council^6, and]

(k) the contribution of generating capacity to reducing emissions.]

(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.

F343[(5) The draft order shall be published by the Minister, in such manner as he shall determine, so as to bring it to the attention of those likely to be affected by it, and the notice of intention published undersubsection (4)shall state the manner in which a copy of the draft order may be obtained.]

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

19. 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.

20. 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 F344[in the State, and (where the proposed modification relates to the Single Electricity Market) in Northern Ireland, 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).

F345[(9) Where a modification relates to the Single Electricity Market, the Commission shall have due regard in exercising its functions under this section and sections 21 to 23 to the desirability of similar modifications (including similar modifications in Northern Ireland) having effect at the same time.]

21. 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 F346[in the State, and (where the proposed modification relates to the Single Electricity Market) in Northern Ireland, 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.

22. 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 F347[in the State, and (where the proposed modification relates to the Single Electricity Market) in Northern Ireland, and]

(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).

23. 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.

24. 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 F348[has contravened,] 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 F349[has contravened,] may be contravening or may be likely to contravene, or

(ii) the acts or omissions which in the opinion of the Commission F349[constitute,] 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.

F350[(4) On consideration of any representations or objections, the Commission may give a direction to the holder of a licence or an authorisation—

(a) to take such measures as are necessary to cease the contravention or to prevent a future contravention, and

(b) where there has been a contravention, to undertake such remedial actions as are necessary to rectify the situation and to prevent a re-occurrence of the contravention concerned.]

(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 F351[in the State, andF352[(where the direction or revocation concerned relates to the Single Electricity Market)]in Northern Ireland, 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.

25. 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 F353[in the State, andF354[(where the determination relates to the Single Electricity Market)]in Northern Ireland, 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.

26. Compliance with direction or determination.

26.—(1) In order to ensure compliance with a direction given under F355[section 23(2)or] 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.

27. Eligible customers.

27.—F356[…]

28. Purchase of electricity from combined heat and power.

28.—F357[…]

PART IIIA Registration of market participants that are not electricity undertakings

28A. F359[ Interpretation (Part IIIA).

28A.—In this Part—

"active customer" means a final customer, or a group of jointly acting final customers, who consumes or stores electricity generated within its premises located within confined boundaries or, where so provided for in rules made by the Commission in that regard under Regulation 10 of the Regulations of 2022, within other premises, or who sells self-generated electricity or participates in flexibility or energy efficiency schemes, provided that those activities do not constitute its primary commercial or professional activity;

"electricity activity" means—

(a) in relation to a relevant market participant other than a relevant market participant that is an active customer or a citizen energy community, an activity referred to in the definition of “market participant” in Article 2(25) of the 2019 Internal Electricity Market Regulation,

(b) in relation to a relevant market participant that is an active customer, an activity referred to in the definition of “active customer” in Regulation 2(1) of the Regulations of 2022, and

(c) in relation to a relevant market participant that is a citizen energy community, an activity referred to inparagraph (c)of the definition of “citizen energy community” insection 2(1).

"Register" means the register established and maintained undersection 28AB;

"registration" means a registration granted to a relevant market participant by the Commission undersection 28AE;

"Regulations of 2022" means the European Union (Renewable Energy) Regulations 2022 ( S.I. No. 76 of 2022);

"relevant market participant" means a market participant that is not an electricity undertaking;

"terms and conditions" means terms and conditions specified in a registration for the purpose of ensuring compliance by a relevant market participant with the obligations referred to in Article 59(1)(b) of the 2019 Internal Electricity Market Directive in so far as those obligations relate to the relevant market participant.]

28AB. F360[Register of relevant market participants.

28AB.—(1) The Commission shall establish and maintain a register of relevant market participants registered under this Part which shall, in particular, include—

(a) the name of the relevant market participant,

(b) the names, addresses and contact numbers of relevant contact persons, including, in the case of a body corporate, the names, addresses and contact details of the directors of the company,

(c) the address of the relevant market participant or in the case of a body corporate, its registered office,

(d) the electricity activity that is the subject of the registration,

(e) the date on which the relevant market participant will commence the electricity activity that is the subject of the registration.

(2) The Register may be in book form, electronic form or such other form as the Commission may determine.

(3) The holder of a registration to which an entry in the Register relates, shall as soon as practicable after the holder becomes aware of any error in the entry, or any change in circumstances that is likely to have a bearing on the accuracy of the entry, give notice in writing to the Commission of the error, or change in circumstances, as the case may be.]

28AC. F361[Registration for purpose of engaging in electricity activity.

28AC.—(1) Subject tosubsection (2), a relevant market participant who wishes to engage in an electricity activity may not engage in the activity unless the relevant market participant has been registered under this Part in respect of that activity.

(2) (a) The Commission may, by order, specify—

(i) a class or classes of relevant market participant who are not required to be registered under this Part, or

(ii) a class or classes of electricity activity the engaging in which by relevant market participants does not require the relevant market participants to be registered under this Part,

or both.

(b) In specifying a class or classes of relevant market participant for the purposes ofparagraph (a)(i), the Commission shall have regard to—

(i) a the obligations of the class or classes of relevant market participant concerned were the class or classes concerned to be required to register, and

(ii) the requirements of Regulations 3(2)(a) and 7(3)(b) of the Regulations of 2022.

(c) In specifying a class or classes of electricity activity for the purposes ofparagraph (a)(ii), the Commission shall specify the class or classes by reference to the scale of the class or classes of electricity activities concerned.

(d) The Commission may by order amend or revoke an order under this subsection.

(e) The Commission shall not make an order under this subsection unless a notice of intention to make such an order is published on its website at least one month before the making of the order.

(f) The draft order shall be published by the Commission in such manner as it shall determine, so as to bring it to the attention of those likely to be affected by it and the notice of intention published underparagraph (e)shall state the manner in which a copy of the draft order may be obtained.

(3) An application to be registered shall be made in accordance withsection 28AD.]

28AD. F362[Application for registration.

28AD.—(1) An application by a relevant market participant for registration under this Part shall—

(a) be in writing,

(b) specify—

(i) the name of the relevant market participant proposing to engage in the electricity activity that is to be the subject of the registration, including, in the case of a body corporate, the company registration number,

(ii) the names, addresses and contact numbers of relevant contact persons including, in the case of a body corporate, the names, addresses and contact details of the directors of the company,

(iii) the address of the relevant market participant or in the case of a body corporate, the address of its registered office,

(iv) the electricity activity that is to be the subject of the registration,

(v) the date on which it is estimated that the relevant market participant will commence the electricity activity that is to be the subject of the registration,

(c) be in such form, contain such other information and be accompanied by such documents, if any, as the Commission shall specify on its website in accordance withsubsection (3), and

(d) be accompanied by such fee as the Commission may determine.

(2) The Commission may request an applicant to provide it with such additional information and documents as the Commission may reasonably request for the purpose of the application and where such a request is made the applicant shall provide such information and documents to the Commission.

(3) The Commission shall publish on its website the procedures for making an application under this section and any other requirements relating to the making of such an application.]

28AE. F363[Consideration of application by Commission.

28AE.—(1) The Commission shall grant an application for registration duly made in accordance withsection 28ADby a relevant market participant who is required, pursuant tosection 28AC, to be registered, unless the Commission is satisfied, having regard to the application and the information and documentation (if any) provided to it undersection 28AD, that the relevant market participant concerned would, if registered, not be able to comply with the terms and conditions to be specified in the registration.

(2) Where an application for registration is granted, the registration granted shall be subject to such terms and conditions as may be specified in the registration and the Commission shall—

(a) record the appropriate particulars in the Register, and

(b) issue the relevant market participant with a registration permitting it to engage in the electricity activity concerned in accordance with the registration and the terms and conditions specified therein.

(3) (a) Where the Commission proposes to refuse an application for registration it shall give a written notice of the proposal to refuse to the relevant market participant concerned and the notice shall—

(i) state the reasons for the proposal to refuse, and

(ii) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections with respect to the proposal to refuse may be made.

(b) The Commission shall consider such representations or objections, if any, as are made under paragraph (a) and not withdrawn and shall respond in writing to the relevant market participant concerned in respect of any such representations and objections within a reasonable period of the Commission having received them.

(c) Where the Commission, having considered such, if any, representations or objections referred to inparagraph (b), decides to refuse to grant the application, it shall give a written notice of the decision to the applicant accordingly and such notice shall state the reasons for the decision and inform the applicant that it may, within a period of 28 days from the date the notice is given, appeal the decision to the Circuit Court.

(d) On hearing an appeal underparagraph (c)in relation to the decision of the Commission to refuse to grant the application, the Court may either confirm the decision or allow the appeal and where the appeal is allowed, the Commission shall grant the application andsubsection (2)shall apply accordingly.]

28AF. F364[Modification of registration.

28AF.—(1) Where the Commission is of the opinion that a registration granted to a relevant market participant under this Part, including any terms and conditions specified in the registration, should be modified, it may make such modification in accordance with this section.

(2) Where the Commission proposes to make a modification undersubsection (1), it shall serve a written notice of the proposal on the relevant market participant concerned and the notice shall—

(a) state the nature of the modification,

(b) state the date on which it is proposed the modification is to come into effect, which date shall be stated to be subject to the making of representations or objections or the taking of an appeal, under this section in respect of the modification,

(c) state the reasons for the modification, and

(d) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections with respect to the modification may be made.

(3) The Commission shall consider any representations or objections which are made undersubsection (2) (d)and not withdrawn and shall respond in writing to the relevant market participant concerned in respect of any such representations and objections within a reasonable period of the Commission having received them.

(4) The Commission, having considered such, if any, representations and objections referred to in subsection (3) shall decide whether or not to make the modification proposed undersubsection (2), and, where representations or objections are made and the Commission considers, on foot of those representations or objections, that a modification other than that proposed should be made, it may decide to make that other modification.

(5) The Commission shall give the relevant market participant a written notice of its decision undersubsection (4)and, where its decision is to make the modification proposed undersubsection (2)or to make, in accordance withsubsection (4), a modification other than that modification, the notice shall state the reasons for that decision and shall inform the relevant market participant of the matters set out insubsections (6)to(8).

(6) A modification under this section shall come into effect on the day that is 28 days after the date on which the notice referred to insubsection (5)is given, unless an appeal is made undersubsection (7), in which case the modification shall not come into effect unless confirmed in accordance with that subsection in which case it shall come into effect in accordance withsubsection (8).

(7) A relevant market participant may, not later than 28 days from the date on which a notice is given undersubsection (5), appeal to the Circuit Court and on hearing an appeal under this subsection the Court may confirm or vary the modification or allow the appeal and cancel the modification.

(8) Where an appeal is taken undersubsection (7), the modification shall, unless cancelled by the Court, come into effect on the day next following the day on which the modification is confirmed or varied, on appeal or the appeal is withdrawn, or on such day as is specified by the Court, whichever is later.

28AG. F365[Functions of Commission for purpose of ensuring compliance by relevant market participant with registration.

28AG.(1) The Commission shall monitor, in accordance with this Act, the compliance by relevant market participants with registrations granted to them and any terms and conditions specified in those registrations (in this section referred to as "obligations").

(2) If, in the opinion of the Commission, a relevant market participant may not be, or is likely to not be, complying with its obligations, the Commission may give a written notice in accordance withsubsection (3)to the relevant market participant concerned.

(3) A notice undersubsection (2)shall—

(a) specify the acts or omissions that in the opinion of the Commission, may constitute, or would be likely to constitute, a failure to comply with the registration concerned, and

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

(4) The Commission shall consider any representations or objections which are made undersubsection (3)and not withdrawn.

(5) The Commission, having considered any representations or objections, referred to insubsection (4), may make a determination that a relevant market participant is not complying with its obligations.

(6) The Commission may issue a direction to a relevant market participant where it has made a determination undersubsection (5)that a relevant market participant is not complying with its obligations.

(7) A direction issued undersubsection (6)shall specify the acts or omissions that in the opinion of the Commission constitute the failure by the relevant market participant to comply with its obligations and shall direct the relevant market participant to take, within the period of time specified in the direction, such remedial actions as are specified in the direction.

(8) As soon as practicable after giving a direction undersubsection (6), the Commission shall give a written notice of the direction to the relevant market participant concerned.

(9) A relevant market participant may make representations or objections to the Commission in respect of a direction issued to it undersubsection (6)within a period of 28 days from the date on which the notice of the direction is given.

(10) The Commission shall consider any representations or objections made to it in accordance withsubsection (9)and shall respond in writing to the relevant market participant concerned in respect of any such representations or objections within a reasonable period of the Commission having received them.

(11) The Commission may withdraw a direction and where it does so it shall give a written notice of the withdrawal to the relevant market participant concerned that sets out the effect of the withdrawal.

(12) A relevant market participant that is aggrieved by a direction issued to it undersubsection (6)may—

(a) if no representations or objections are made undersubsection (9), within the period of 28 days from the date on which the notice of the direction is given, or

(b) if representations or objections are made undersubsection (9), within the period of 28 days from the date of the response of the Commission in respect of those representations or objections,

appeal to the Circuit Court against the direction, and in determining the appeal, the Court may make such order as it considers appropriate, including to confirm, vary or revoke the direction.

(13) Where a relevant market participant fails to comply in full or in part with a direction issued undersubsection (6)within the period specified in the direction or fails to cooperate with the Commission with regard to the direction, and the period within which an appeal may be made undersubsection (12)has passed, the Commission may apply to the Circuit Court for an order directing the relevant market participant to comply with the direction.

(14) Where a direction is issued to a relevant market participant undersubsection (6)(in this subsection referred to as the "current direction") and a direction under this section has previously been issued to the market participant concerned (in this subsection referred to as the "previous direction") in circumstances where—

(a) the previous direction was not withdrawn or revoked by the Circuit Court under this section, or

(b) an appeal in respect of the previous direction is not awaiting determination by the Circuit Court under this section,

the Commission may, where it considers it necessary to do so, temporarily suspend the registration of the relevant market participant concerned in accordance with this section until the non-compliance with the obligations which is the subject of the current direction has been rectified, and where it does so the Commission shall give a written notice, in accordance with this section, to the relevant market participant of the temporary suspension and the relevant market participant shall not engage in the activity during the period of the temporary suspension.

(15) Where the Commission proposes to temporarily suspend a registration, it shall give a written notice to the relevant market participant concerned of the proposal and the notice shall—

(a) state the reasons for the proposed temporary suspension, and

(b) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections with respect to the proposal may be made.

(16) The Commission shall consider such representations or objections, if any, as are made undersubsection (15)(b)and shall respond in writing to the relevant market participant concerned in respect of any such representations and objections within a reasonable period of the Commission having received them.

(17) Where the Commission, having considered such, if any, representations or objections as are made undersubsection (15)(b), decides to temporarily suspend a registration, it shall give a written notice to the relevant market participant concerned of the decision and that notice shall state the reasons for the decision.

(18) Where the Commission decides to temporarily suspend a registration, the relevant market participant concerned may, not later than 28 days from the date of the notice referred to insubsection (17)is given, appeal to the Circuit Court.

(19) On hearing an appeal undersubsection (18), the Circuit Court may either confirm or vary the decision of the Commission or allow the appeal and annul the decision.

(20) Where an appeal is taken undersubsection (18), the decision of the Commission undersubsection (17)shall, unless cancelled by the Circuit Court, take effect on the day following the day on which the decision is confirmed on appeal or the appeal is withdrawn, or on such day as is specified by the Circuit Court, whichever is later.

(21) Where no appeal is made undersubsection (18), the decision of the Commission undersubsection (17)shall take effect on the day on which the time allowed for an appeal has elapsed.

(22) Any decision of the Circuit Court on an appeal undersubsection (18)shall be final, save that, an appeal from the decision may be made to the High Court on a specified point of law.

(23)Sections 23to26shall not apply in respect of the holder of a licence or an authorisation in respect of the obligations of such a person that arise by reason of holding a registration granted under this Part.

PART IV Appeal Panels

29. Establishment of Appeal Panel.

29.—F366[(1) This section applies to—

(a) a person whose application for a licence or an authorisation is refused,

(b) a person who is a holder of a licence or an authorisation and who wishes to appeal against a decision of the Commission—

(i) to modify the licence or authorisation concerned, other than a modification of a class required by an order made undersection 39of40, or

(ii) to refuse to modify the licence or authorisation concerned at the request of the holder of that licence or authorisation.]

F367[(2) A person to whom this section applies may, within 28 days of the making of a decision—

(a) to refuse to grant a licence or an authorisation,

(b) to modify a licence or an authorisation, or

(c) to refuse to modify a licence or an authorisation,

request the Minister to establish a panel to be known and in this Act referred to as an“Appeal Panel”.]

(3) When requested to establish an Appeal Panel, following consultation with the Competition Authority as to the composition of the Appeal Panel, the Minister shall, within one month, establish an Appeal Panel to consider an appeal made under this section.

(4) An Appeal Panel established under this section shall consist of at least three persons, one of whom shall be appointed by the Minister to be the chairperson of the Appeal Panel.

(5) An Appeal Panel shall have all the powers and duties of the Commission that are necessary to carry out the functions of the Appeal Panel under this Act.

(6) An Appeal Panel shall be independent in the performance of its functions.

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

(8) All appeals under Part IV of this Act shall be determined within six months.

30. Functions of Appeal Panel.

30.—F368[(1) An Appeal Panel shall hear and determine an appeal against-

(a) a refusal to grant a licence or an authorisation,

(b) a modification, or

(c) a refusal to modify a licence or an authorisation,

and shall specify, on notice to the Commission and the appellant, the date on which the appeal shall be heard.]

(2) An Appeal Panel shall have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of—

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and

(b) the compelling of the production of documents.

(3) A summons signed by the chairperson of the Appeal Panel or by such other member of the Appeal Panel as may be authorised by the Appeal Panel may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents.

(4) Where a person—

(a) being duly summoned to attend before an Appeal Panel makes a default in attending,

(b) being in attendance as a witness before an Appeal Panel refuses to take an oath lawfully required by that Panel to be taken or to produce any document in his or her power or control lawfully required by that Appeal Panel to be produced by him or her or to answer any question to which the Appeal Panel may lawfully require an answer, or

(c) being in attendance before an Appeal Panel does anything which, if the Appeal Panel were a court of law having power to commit for contempt, would be contempt of court,

that person shall be guilty of an offence and shall be liable on summary conviction to a F369[class A fine].

(5) A witness before an Appeal Panel shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.

(6) An Appeal Panel may confirm the refusal to grant a licence or an authorisation or may direct the Commission to grant a licence or an authorisation with or without conditions laid down by the Appeal Panel and where such a direction is made the Commission shall, in accordance with the decision of the Appeal Panel, grant the licence or authorisation, subject to such conditions as may be specified by the Commission which are not inconsistent with the decision of the Appeal Panel.

(7) In the case of a modification of a licence or an authorisation, the Appeal Panel may either confirm the modification or direct the Commission not to make it.

(8) In the case of a refusal to modify a licence or an authorisation, the Appeal Panel may either confirm the decision of the Commission or may direct the Commission to modify the licence or authorisation.

(9) The Appeal Panel shall notify the persons concerned of its decision in respect of an appeal under this section.

31. Orders for establishment of Appeal Panels and related matters.

31.—(1) An order made by the Minister under section 29(3) for the purpose of establishing an Appeal Panel may provide for—

(a) the membership, on such terms and conditions as the Minister considers appropriate, of the Appeal Panel,

(b) the procedure to be adopted by the Appeal Panel in considering any matter referred to it, and

(c) any other matters which the Minister considers incidental or expedient for the proper and efficient conduct of an appeal by the Appeal Panel.

(2) The remuneration and allowances for expenses, if any, of a member of an Appeal Panel shall be such as may be determined by the Minister, with the approval of the Minister for Finance, and shall form part of the expenses of the Commission.

32. Review of determination of Commission.

32.—F370[(1) Without prejudice to any right under this Act to appeal to an Appeal Panel, a person shall not question in any legal proceedings—

(a)the validity of a decision of the Commission on an application made to it for the grant of a licence or an authorisation or for the modification of a licence or an authorisation,

(b)a modification by the Commission of a licence or an authorisation,

(c)a decision of an Appeal Panel undersection 30, or

(d)any decision (whether described as a decision, selection or determination or otherwise) made by the Commission underthe Gas (Amendment) Act 2000, or under regulations under that Act,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as“the Order”).]

F371[(2) An application for leave to apply for judicial review in respect of any matter referred to in subsection (1) shall—

(a) subject tosubsection (2A), be made within the period of two months commencing on the date on which the decision is given, and

(b) be made by motion on notice to—

(i) the Commission,

(ii) if the application relates to a decision concerning a matter referred to inparagraph(a), (b) or (c) ofsubsection (1)and the applicant for leave is not the applicant for, or holder of, the licence or authorisation concerned, the applicant for, or holder of, that licence or authorisation,

(iii) if the application relates to a decision referred to inparagraph(d) ofsubsection (1)and the applicant for leave is not the person in respect of whom the decision was made, that person, and

(iv) any other person specified for that purpose by order of the High Court,

and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.

(2A) The Court may extend the period referred to insubsection (2)(a) within which an application for leave to apply for judicial review under the Order may be made in relation to a matter referred to in that subsection if, but only if, it is satisfied that each of the following conditions is fulfilled—

(a) the applicant—

(i) did not become aware until after the expiration of the period referred to in that subsection of the material facts on which the grounds for the said application for leave are based, or

(ii) did, before that period's expiration, become aware of those facts but only after such number of days of that period had elapsed as would not have made it reasonably practicable for the applicant to have made the said application for leave before that period's expiration,

(b) the applicant could not with reasonable diligence have become aware of those facts until after the expiration of that period, or, as the case may be, those number of days had elapsed,

(c) the said application for leave has been made as soon as is reasonably practicable after the applicant has become aware of those facts.]

(3) (a) The determination of the High Court of such an application for leave to apply for judicial review or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

PART V Access to Transmission and Distribution Systems

33. Preparation of grid code and distribution code.

33.—(1) Subject to subsection (2), within such time and following such consultation as the Commission may direct, the Board shall make regulations, subject to the approval of the Commission, setting out a grid code in relation to the transmission system of the Board and a distribution code in relation to the distribution system of the Board.

(2) The Commission may from time to time give directions to the Board in respect of—

(a) the matters to be specified in the grid code and the distribution code, and

(b) the review and revision by the Board from time to time of the grid code and the distribution code,

and the Board shall comply with directions given by the Commission under this section.

(3) All releases of information under this section shall be made available within one month of any request for same.

34. Terms for connection to and use of transmission or distribution system.

34.—(1) Subject to subsection (4), where an application is made to the Board by any person, the Board shall offer to enter into an agreement for connection to or use of the transmission or distribution system, subject to terms and conditions specified in accordance with directions given to the Board by the Commission under this section from time to time.

F372[(1A) An offer undersubsection (1)may, on request of the applicant, be on the basis that the applicant constructs, or that either or both the applicant and the transmission system operator arranges to have constructed, the connection to the transmission system, and any such connection constructed or arranged to be constructed by the applicant shall be the property of the person with whom the agreement is made, and shall, for the purposes ofF373[section 37(4)], be deemed to be a direct line.]

F374[(1B) An offer undersubsection (1), made for the purpose of connecting a generating station to the distribution system, may, on request of the applicant, be on the basis that the applicant constructs, or that either or both the applicant and the distribution system operator arranges to have constructed, the connection to the distribution system, and any such connection constructed or arranged to be constructed by the applicant shall be the property of the person with whom the agreement is made, and shall, for the purposes ofsection 37(4), be deemed to be a direct line.]

F375[(1C) The Commission shall publish directions that are given by it to the Board under this section.]

F376[(1D) In relation to an application to the transmission system operator undersubsection (1), by any person, including new generation installations and energy storage facilities, the terms and conditions mentioned in that subsection shall be published by the transmission system operator, following their approval by the Commission.]

(2) Without prejudice to the generality of subsection (1), directions given by the Commission under this section may provide for:

(a) the matters to be specified in an agreement for connection to and use of the transmission or distribution system;

(b) the matters to be specified in an agreement for use of the transmission or distribution system;

(c) the terms and conditions upon which an offer for connection to the transmission or distribution system is made;

(d) the methods for determining the proportion of the costs to be borne by the person making the application for connection to the transmission or distribution system and to be borne by the Board being costs which are directly or indirectly incurred in carrying out works under an agreement or making a connection or modifying an existing connection;

(e) the terms and conditions upon which applications for an agreement are to be made and the period of time within which an offer or refusal pursuant to an application is to be made by the Board; and

(f) any other matters which the Commission considers necessary or expedient for the purpose of making an offer for connection to or use of the transmission or distribution system,

and the Board shall comply with directions given by the Commission under this section within such time period as may be specified by the Commission.

F375[(2A) In a case where the Agency is competent to fix and approve the terms and conditions or methodologies for the implementation of network codes and guidelines under Chapter VII of the 2019 Internal Electricity Market Regulation pursuant to Article 5(2) of the 2019 ACER Regulation because of their coordinated nature, then subsection (1), in so far as it provides for the giving of directions by the Commission to the Board, and subsection (2) shall not apply and, in such a case, the terms and conditions to be specified in the agreement referred to in subsection (1) shall be those fixed and approved by the Agency.]

(3) An offer made under subsection (1) to a person who is not the holder of a licence under section 14 or an authorisation under section 16 F377[or a registration granted underPart IIIA] or an eligible customer shall be subject to the grant of a licence or authorisation F377[or registration] to that person or to that person becoming an eligible customer F377[or to that person being a relevant market participant of a class specified by order under section 28AC(2)(a)(i) or engaging in a class of electricity activity specified by order under 28AC(2)(a)(ii)].

(4) The Board shall not be required under subsection (1) to enter into an agreement where—

(a) it has demonstrated to the satisfaction of the Commission that it is not in the public interest to provide additional capacity to meet the requirements to be imposed by that agreement,

(b) to enter into an agreement under this section would be likely to involve the Board:

(i) in a breach of this Act;

(ii) in a breach of regulations made under this Act;

(iii) in a breach of the grid code or distribution code; or

(iv) in a breach of the conditions of any licence or authorisation granted to the Board under this Act,

or

(c) the person making the application does not undertake to be bound by the terms of the grid code or distribution code in so far as those terms are applicable to that person.

F378[(5) (a) Where the Board refuses to offer to enter into an agreement under this section, it shall serve notice on the applicant of the reasons for such refusal, having regard to Article 9 of the 2019 Internal Electricity Market Directive.

(b) The reasons referred to insubparagraph (a)shall be based on objective and technically and economically justified criteria.

(c) The Commission shall ensure that the criteria referred to insubparagraph (b)are consistently applied.]

F379[(5A) (a) The transmission system operator or the distribution system operator, as the case may be, shall, where refusal of access takes place, provide relevant information to the applicant on measures that would be necessary to reinforce the network.

(b) The information specified in subparagraph (a) shall be provided in all cases when access for recharging points has been denied.

(c) The party requesting such information may be charged by the transmission system operator a fee reflective of the administrative cost of providing the information referred to in paragraph (a) and any such fee shall be displayed by the transmission system operator on its website.]

F380[(5B) (a) The transmission system operator shall not be entitled to refuse the connection of a new generating installation or energy storage facility on the grounds of possible future limitations to available network capacities, such as congestion in distant parts of the transmission system;

(b) The transmission system operator shall supply necessary information if refusing connection to those seeking connection;

(c)Paragraphs (a)and(b)shall be without prejudice to the possibility for the transmission system operator to limit the guaranteed connection capacity or to offer connections subject to operational limitations, in order to ensure economic efficiency regarding new generating installations or energy storage facilities, provided that such limitations have been approved by the Commission;

(d)The Commission shall ensure that any limitations in guaranteed connection capacity or operational limitations are introduced on the basis of transparent and non-discriminatory procedures and do not create undue barriers to market entry;

(e) Where the generating installation or energy storage facility bears the costs related to ensuring unlimited connection, no limitation shall apply;

(f) The transmission system operator shall not be entitled to refuse a new connection point, on the ground that it would lead to additional costs resulting from the necessary capacity increase of system elements in the close-up range to the connection point.]

F381[(6)(a) Any dispute between the transmission system operator or the distribution system operator and any person who is, or claims to be, a person to whom the transmission system operator or the distribution system operator, as the case may be,F382[is obliged –

(i) to make an offer for connection to and use of the transmission system or distribution system, or

(ii) to consult with regarding proposed charges in accordance withsection 36(2),

as the case may be,]whether as to the terms and conditions (including proposed charges) or otherwise, shall, upon the application of such person, be determined by the Commission, and the Commission shall issue a direction regarding its determination and the transmission system operator or the distribution system operator, as the case may be shall comply with and be bound by any such direction.

(b) Any dispute between a transmission system operator or a distribution system operator in regard to duties under theF382[2019 Internal Electricity Market Directive]and a person as respects matters specified insection 9(1B)in relation to electricity shall, upon the application of such person, be determined by the Commission, and the Commission shall issue a direction regarding its determination and such direction shall be binding on all parties concerned.

(c)(i) The Commission shall issue the determination referred to inparagraphs(a) and (b) within 2 months from the date of the receipt of the complaint.

(ii) The period referred to insubparagraph (i)may be extended by 2 months where the Commission seeks additional information in the matter, and such further extension as may be consented to by the applicant.

(iii) Where the applicant concerns connection tariffs for major new generation facilities, the period concerned may be extended by the Commission without the consent of the applicant.

(d) In the event of cross border disputes, the Commission has jurisdiction if the transmission system operator licensed undersection 14(1)(e) is the system operator which refuses use of or access to the transmission system.]

(7) In order to secure compliance with a determination made under this section the Commission may apply in a summary manner on notice to the High Court for an order requiring the Board to comply with the determination of the Commission made under this section.

(8) Where providing for use of the transmission or distribution system or where offering terms for the carrying out of works for the purpose of connection to the transmission or distribution system of the Board, the Board shall not discriminate unfairly as between any persons or classes of persons.

F383[(9) The provisions of this section shall also apply to citizen energy communities that manage distribution networks.]

34A. F384[Terms for access to interconnector.

34A.—(1) Subject tosubsection (3)the holder of a licence undersection 14(1)(i) (in this section referred to as the“interconnector operator”) shall offer access to the interconnector concerned on the basis of published non-discriminatory terms which shall be subject to the approval of and directions given by the Commission.

(2) Without prejudice to the generality ofsubsection (1)the Commission may give directions to the interconnector operator which provide for—

(a) the matters to be specified in an agreement for use of the interconnector,

(b) the terms and conditions upon which an offer for access to the interconnector is made,

(c) the basis upon which charges may be made for access to the interconnector,

(d) the terms and conditions upon which applications for access are to be made and the period of time within which an offer or refusal pursuant to an application is to be made by the interconnector operator, and

(e) any other matters which the Commission considers necessary or expedient for the purpose of making an offer of access to the interconnector,

and the interconnector operator shall comply with directions given by the Commission under this section within such period of time as may be specified by the Commission.

(3) The interconnector operator shall not be required undersubsection (1)to enter into an agreement where—

(a) it has demonstrated to the satisfaction of the Commission that it is not in the public interest to do so,

(b) to enter into an agreement under this section would be likely to involve the interconnector operator—

(i) in a breach of this Act,

(ii) in a breach of regulations made under this Act,

(iii) in a breach of the grid code or distribution code, or

(iv) in a breach of the conditions of any licence or authorisation granted to the interconnector operator under this Act.

(4) Where the interconnector operator refuses to enter into an agreement under this section the interconnector operator shall serve notice on the applicant of the reasons for such refusal.

(5) Any dispute between the interconnector operator and a person who is, or claims to be, a person to whom the interconnector operator is obliged to make an offer of access to the interconnector (and whether the dispute relates to the making of an offer, the terms offered, the proposed charge or otherwise)—

(a) where the offer is made by the interconnector operator, or

(b) where an offer is refused by the interconnector operator,

may, upon the application of that person, be determined by the Commission and the interconnector operator shall comply with and be bound by any such determination.]

F385[(6) A person who transports electricity across an interconnector without being duly licensed to do so undersection 14(1)commits an offence and is liable—

(a) on summary conviction to a fine not exceeding€5,000 or a term of imprisonment not exceeding 12 months or to both, or

(b) on conviction on indictment to a fine not exceeding€50,000 or a term of imprisonment not exceeding3 years or to both.

(7) Summary proceedings for an offence under this section may be brought and prosecuted by the Commission.]

34B. F386[Arrangements and agreements relating to transmission system and All-Island Transmission Networks.

34B.—(1) Where the Single Electricity Market is in operation the Commission may direct the transmission system operator to seek to enter into and maintain in force such arrangements as are necessary to—

(a) enable the transmission system operator, subject to such terms and conditions as may be specified by the Commission in any direction, to offer any person who makes an application pursuant tosection 34(1), an agreement for connection to the transmission system or use of the All-Island Transmission Networks,

(b) enable the Northern Ireland System Operator to offer any person who makes an application to the Northern Ireland System Operator, an agreement for connection to the Northern Ireland Transmission System or use of the All-Island Transmission Networks.

(2) The Commission may make regulations for the purposes ofsubsection (1).

(3) Without prejudice to the generality ofsubsection (2), regulations undersubsection (2)may—

(a) prescribe those matters in respect of which the Commission may make directions including, without limitation, directions in relation to—

(i) the basis upon which payments are to be made by the transmission system operator to the Northern Ireland System Operator and by the Northern Ireland System Operator to the transmission system operator, in each case in relation to connection to the transmission system, connection to the Northern Ireland Transmission System and use of the All-Island Transmission Networks, and

(ii) the method for determining the proportion of the costs to be borne by the person making an application for connection to the transmission system and the proportion to be borne by the transmission system operator,

(b) prescribe the circumstances in which the transmission system operator can refuse to make an offer to an applicant to enter into an agreement for connection to the transmission system or use of the All-Island Transmission Networks,

(c) prescribe the circumstances in which the transmission system operator can refuse to make an offer to enter into an arrangement with the Northern Ireland System Operator pursuant tosubsection (1),

(d) provide for the resolution of disputes between the transmission system operator and any applicant for an offer to enter into an agreement for connection to the transmission system or use of the All-Island Transmission Networks or any person who has entered into an agreement with the transmission system operator for connection to the transmission system or use of the All-Island Transmission Networks,

(e) provide for the resolution of disputes between the transmission system operator and the Northern Ireland System Operator in connection with any arrangement entered into or sought to be entered into pursuant tosubsection (1),

(f) provide for the basis upon which charges are determined for connection to the transmission system and for use of the All-Island Transmission Networks, and

(g) prescribe the circumstances (if any) in which the transmission system operator shall continue to be obliged to make an offer to enter into an agreement for connection to or use of the transmission system pursuant tosection 34(1).

(4) In this section—

“All-Island Transmission Networks”means the transmission system together with the Northern Ireland Transmission System;

“Northern Ireland System Operator”means the holder of a transmission licence granted under Article 10(1)(b) of the Electricity (Northern Ireland) Order 1992 and who is, from time to time, designated by the Authority as the transmission system operator for Northern Ireland;

“Northern Ireland Transmission System”shall have the meaning given to the term“transmission system”in the licence granted to the Northern Ireland System Operator under Article 10(1)(b) of the Electricity (Northern Ireland) Order 1992.]

35. Charges for connection to and use of transmission or distribution system.

35.—(1) Subject to subsection (2), within such time as the Commission may direct, the Board shall prepare a statement for the approval of the Commission setting out the basis upon which charges are imposed—

(a) for use of the transmission or distribution system of the Board, and

(b) for connection to the transmission or distribution system of the Board.

(2) The Commission may give directions to the Board from time to time in respect of the basis for charges for use of and connection to the transmission or distribution system of the Board.

(3) Notwithstanding the generality of subsection (2), directions given by the Commission under this section may provide for—

(a) the methods of charging to be included in the statement to be prepared by the Board,

(b) the form and the extent of the information to be provided by the Board to applicants,

(c) the form of charges and information about those charges to be included in the statement to be prepared by the Board,

(d) the procedure to be adopted in the submission by the Board of a statement of charges and the approval by the Commission of such statement, and

(e) the nature of information to be provided to applicants seeking connection to or use of the transmission or distribution systems and its presentation and transparency,

and the Board shall comply with directions given by the Commission under this section.