The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011

• (c) in Article 39(5) after “transmission” there shall be inserted “, distribution”.

PART VI — NATIONAL REGULATORY AUTHORITY

Designation of the Authority as the national regulatory authority for Northern Ireland

35

After Article 3 (The Northern Ireland Authority for Energy Regulation) of the Energy Order there shall be inserted the following Article—

(3A) (1) The Authority is designated as the national regulatory authority for Northern Ireland in accordance with Article 35(3) of the Electricity Directive and Article 39(3) of the Gas Directive. (2) The Authority shall ensure that its staff do not— (a) seek or take any instructions that might compromise, or might reasonably be seen to compromise, the Authority’s independence in relation to its functions as designated regulatory authority for Northern Ireland; or (b) carry out any other activity, or have any financial or other interest, that might compromise, or might reasonably be seen to compromise, the Authority’s independence in relation to those functions. (3) The Authority may make representations to the regulatory authority for Great Britain designated under section 3A of the Utilities Act 2000 about matters to be discussed or decided at any meeting of the Board of Regulators of the Agency; and whenever the Authority receives from that regulatory authority any documents or other information related to any such meeting, the Authority shall consider whether or not to do so.

Annual reports and implementation of binding decisions

36

After Article 6 of the Energy Order there shall be inserted the following Articles—

(6A) (1) The Authority shall, each year, prepare a report (the “regulatory authority report”) on the activities it has carried out in the preceding 12 months in its capacity as designated regulatory authority for Northern Ireland. (2) The regulatory authority report shall include, in particular, a general survey of the steps taken and results achieved by the Authority in the performance of its functions under Article 37 of the Electricity Directive and Article 41 of the Gas Directive. (3) In preparing the regulatory authority report, the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body. (4) The first regulatory authority report shall be prepared by 1stJuly2012. (5) Subsequent regulatory authority reports shall be prepared by 1stJuly each year. (6) As soon as is practicable after preparing a regulatory authority report, the Authority shall— (a) send a copy of it to— (i) the Department; (ii) the European Commission; and (iii) the Agency; and (b) publish it in such manner as the Authority considers appropriate for bringing it to the attention of others who may be interested in it. (6B) The Authority shall carry out its functions in the manner that it considers is best calculated to implement, or to ensure compliance with, any binding decision of the Agency or the European Commission made under the Electricity Directive, the Gas Directive, the Electricity Regulation, the Gas Regulation or the Agency Regulation.

Duty on the Authority to publish guidance for consumers

37

After Article 7(4) of the Energy Order there shall be inserted the following paragraphs—

(5) The Authority shall— (a) prepare and keep under review, with a view to making any necessary changes, guidance for consumers of gas and electricity which: (i) addresses all matters included in any document published by the European Commission pursuant to Article 3(16) of the Electricity Directive and Article 3(12) of the Gas Directive; and (ii) may include any other information relating to the rights of the consumers which the Authority considers appropriate; (b) consult the Council when preparing and keeping under review the guidance referred to in paragraph (a); and (c) publish that guidance by making it available on its website and any other manner as the Authority considers appropriate for the purpose of bringing it to the attention of the consumers and others likely to be interested. (6) The first such guidance shall be published on or before 1stDecember2011.

Duty on the Authority to consult and co-operate with other authorities

38

After Article 8 of the Energy Order there shall be inserted the following Article—

(8A) (1) When carrying out its functions as designated regulatory authority for Northern Ireland, the Authority shall, to the extent it considers necessary, consider whether there is a need to— (a) consult and co-operate with the Agency or the designated regulatory authorities of Great Britain or other Member States; (b) provide the Agency or the designated regulatory authorities of Great Britain or other Member States with information they may require in order to carry out their functions under the Electricity Directive, the Gas Directive, the Electricity Regulation, the Gas Regulation or the Agency Regulation; and (c) consult relevant national authorities. (2) In meeting its duty under paragraph (1) the Authority shall, wherever it thinks fit, co-operate with the designated regulatory authorities of Great Britain or other Member States within a regions with a view to achieving, within that region, compliance with those requirements of the Third Package which apply in relation to regions to provide for regional co-operation. (3) In this Article.— - “region” means—in relation to electricity, any geographical area defined in accordance with Article 12(3) of the Electricity Regulation which includes Northern Ireland; andin relation to gas, any geographical area defined in accordance with Article 12(3) of the Gas Regulation which includes Northern Ireland; - “relevant national authority” means any of the following—the Competition Commission;the Office of Communications; andthe Office of Fair Trading. (4) The provisions of this Article are without prejudice to any provision of the SEM Order.

Amendment of the Authority’s principal objective in relation to electricity

39

After Article 12(1) of the Energy Order, there shall be inserted the following paragraph—

(1A) The interests of consumers include their interests in the fulfilment by the Authority, when carrying out its functions as designated regulatory authority for Northern Ireland, of the objectives set out in Article 36(a) to (h) of the Electricity Directive.

40

In Article 13(2)(b) of the Energy Order, after “Article 8” there shall be inserted “and Article 8A”.

Amendment of the Authority’s principal objective in relation to gas

41

For Article 14(1) of the Energy Order there shall be substituted the following paragraph—

(1) The principal objective of the Department and the Authority in carrying out their respective gas functions is to promote the development and maintenance of an efficient, economic and co-ordinated gas industry in Northern Ireland, and to do so in a way that is consistent with the fulfilment by the Authority, pursuant to Article 40 of the Gas Directive, of the objectives set out in paragraphs (a) to (h) of that Article.

42

In Article 15(2)(b) of the Energy Order, after “Article 8” there shall be inserted “and Article 8A”.

Amendment to provision dealing with reasons for decisions

43

In Article 62 of the Energy Order, after paragraph(1)(f) there shall be inserted the following sub-paragraph—

(g) any other decision of the Authority when carrying out its functions as designated regulatory authority for Northern Ireland.

44

In Article 62(3) of the Energy Order, after “(f)” there shall be inserted “or (g)”.

Amendments to Schedule 1 to the Energy Order – Members of the Authority

45

In Schedule 1 to the Energy Order—

• (a) after paragraph 2 there shall be inserted the following paragraph—

(2A) A person holding office as chairman or other member shall not— (a) carry out any activity or have any financial or other interest that might compromise or might reasonably be seen to compromise that person’s impartiality; or (b) seek or take any instructions from any person or body that might compromise or might reasonably be seen to compromise the independence of the Authority when the Authority is carrying out functions in its capacity as national regulatory authority for Northern Ireland.

; and

• (b) for paragraph 3 there shall be substituted the following paragraph—

(3) (1) No person shall be appointed to hold office as chairman or other member for a term of less than 5 years or for a term of more than 7 years. (2) If a person who is on the Authority’s staff, is appointed as chairman or other member, the Department of Finance and Personnel may make the appointment subject to the condition that the appointment will end if that person ceases to be on the Authority’s staff. (3) The appointment of a person as chairman or other member may be renewed only once. (4) To ensure continuity of the functioning of the Authority, the Department of Finance and Personnel shall ensure that there is a rotation of the Authority’s membership. To do this, that Department shall appoint members so that their terms of office will not all expire at the same time. (5) A person holding office as chairman or other member may resign that office by giving notice in writing to the Department of Finance and Personnel. (6) A person holding office as chairman or other member may only be removed from office by the Department of Finance and Personnel, and on one of the following grounds only— (a) a breach of paragraph 2A; (b) incapacity; or (c) misbehaviour.

Amendment to the Energy Order

46

In Article 6(3) of the Energy Order, for the words “general directions” there shall be substituted the word “guidance”.

Amendments to the Electricity Order – Grant of electricity licences

47

In Article 10(1) of the Electricity Order, for the words “Department after consultation with the Director, or the Director with the consent of, or in accordance with a general authority given by, the Department,” there shall be substituted the word “Authority”.

48

In Article 10(2A) of the Electricity Order, for the word “grantor” there shall be substituted the word “Authority”.

49

In Article 10(4) of the Electricity Order—

• (a) in the first line for the words “the Department or the Director” there shall be substituted the words “the Authority”; and

• (b) in paragraph (a) for the words “the Department or the Director, as the case may require,” there shall be substituted the words “the Authority”.

50

In Article 10(5) of the Electricity Order, for the words “the Department or the Director” there shall be substituted the words “the Authority”.

51

Article 10 (7) of the Electricity Order shall be omitted.

52

After Article 11A of the Electricity Order there shall be inserted the following Article—

(11AA) (1) Such conditions as may be determined by the Department, and published by it in such manner as it considers appropriate, in relation to licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1), shall be standard conditions for the purposes of licences under that sub-paragraph. (2) The standard conditions for the purposes of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1) may contain provision— (a) for any standard condition included in such a licence not to have effect until brought into operation in such manner and in such circumstances as may be specified in or determined under the standard conditions; (b) for the effect of any standard condition included in such a licence to be suspended in such manner, and in such circumstances, as may be so specified or determined; or (c) for any standard condition included in such a licence which is for the time being suspended to be brought back into operation in such manner and in such circumstances as may be so specified or determined. (3) Subject to paragraph (5) and Article 14(1)(b), each condition which by virtue of paragraph (1) is a standard condition for the purposes of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1) shall be incorporated (that is to say, incorporated by reference, or in the case of a licence in force at the time of any determination under paragraph (1), deemed to be incorporated by reference) in each licence under that sub-paragraph. (4) The modification under Article 14(1)(b) of a condition of a licence shall not prevent so much of the condition as is not modified being regarded as a standard condition for the purposes of this Part. (5) In relation to a licence in force at the time of any determination under paragraph (1), except with the consent of the licence holder, paragraph (3) shall not have effect in relation to a particular standard condition or part thereof if the effect of paragraph (3) would be to modify the conditions of that licence.

53

Paragraph (1) of Article 14 of the Electricity Order shall be substituted with the following paragraph—

(1) Subject to the following provisions of this Article, the Authority may— (a) modify the conditions of a licence if the licence holder consents to the modifications; (b) in granting a licence, modify any of the standard conditions to such extent as the Authority considers requisite to meet the circumstances of the particular case; or (c) modify the standard conditions of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1).

54

After paragraph (4) of Article 14 of the Electricity Order there shall be inserted the following paragraphs—

(5) The Authority shall not make any modifications of standard conditions under paragraph 1(c) unless— (a) no licence holder whose licence incorporates the standard conditions (a “relevant licence holder”) has objected, within the period specified under paragraph (2)(c), to the modifications, unless any such objection has been withdrawn; or (b) the Authority is of the opinion that— (i) the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying out of activities to which the modifications relate; (ii) the modifications would remove or reduce the burden without removing any necessary protection; and (iii) the modifications are such that no relevant licence holder would be unduly disadvantaged in competing with other relevant licence holders. (6) Where at any time the Authority modifies standard conditions under paragraph (1)(c) for the purposes of their incorporation in licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 8(1) granted after that time, it shall publish the modifications in such manner as it considers appropriate.

Authority’s dispute resolution functions in relation to electricity

55

For paragraph (1) of Article 31A of the Electricity Order there shall be substituted the following paragraph—

(1) Any person may make a complaint under this Article (hereinafter referred to as “a complaint”) if— (a) the subject matter of the complaint constitutes a dispute between the complainant and— (i) the holder of a transmission licence; (ii) the holder of a distribution licence; or (iii) a distribution exemption holder; (b) it is wholly or mainly a complaint against that holder regarding an obligation imposed upon him pursuant to the Directive; and (c) the subject matter of the complaint— (i) does not fall to be dealt with under Article 26 or Article 42A; and (ii) is not capable of being determined pursuant to any other provision of this Order.

Amendment to the Electricity Order

56

In Article 50(2) of the Electricity Order for the words “give general directions” there shall be substituted the words “issue guidance”.

Authority’s monitoring functions in relation to electricity

57

After Article 50(3A) of the Electricity Order there shall be inserted the following paragraph—

(3B) the activities to which paragraph (1) applies include, in particular, the matters specified in the following provisions of the Directive as matters to be monitored— (a) Article 26(3); (b) Article 37(1)(g) to (k), (m) and (q) to (t); and (c) where an independent system operator has been designated under Article 10H of this Order, Article 37(3)(a), (b) and (f).

Amendments to the Gas Order – grant of gas licences

58

In Article 8(1) and (2) of the Gas Order, for the words “Department after consultation with the Director, or the Director with the consent of, or in accordance with a general authority given by, the Department,” there shall be substituted the word “Authority”.

59

In Article 8(4) of the Gas Order—

• (a) in the first line for the words “the Department or the Director” there shall be substituted the words “the Authority”; and

• (b) in sub-paragraph (a) for the words “the Department or the Director, as the case may require,” there shall be substituted the words “the Authority”.

60

In Article 8(6) of the Gas Order, for the words “the Department or Director” there shall be substituted with the words “the Authority”.

61

In Article 8(7) of the Gas Order for the words “the Department or the Director” there shall be substituted with the words “the Authority”.

62

In Article 8(7A) of the Gas Order, the words “the Department or” and the words “Department or” shall be omitted where and in the order they appear and the words “, as the case may be,” shall also be omitted.

63

In Article 11(2) of the Gas Order, in the first line for the words “paragraph (3)” there shall be substituted the words “Article 14(1)(aa)”.

64

Paragraph (3) of Article 11 of the Gas Order shall be omitted.

65

In Article 11(4) of the Gas Order, in the first line for the words “paragraph (3)” there shall be substituted the words “Article 14(1)(aa)”.

66

In Article 14(1) of the Gas Order, at the end of paragraph (a) there shall be omitted the word “or” and there shall be inserted the following sub-paragraph—

(aa) in granting a licence, modify any of the standard conditions to such extent as the Authority considers requisite to meet the circumstances of the particular case; or

Amendments to the Gas Order

67

In Article 27(2) of the Gas Order for the words “give general directions” there shall be substituted with the words “issue guidance”.

68

In Article 30(2) of the Gas Order the words “, with the consent of the Department,” shall be omitted.

Authority’s monitoring functions in relation to gas

69

After Article 27(3A) of the Gas Order there shall be inserted the following paragraph—

(3B) The activities to which paragraph (1) applies include, in particular, the matters specified in the following provisions of the Directive as matters to be monitored— (a) Article 26(3); (b) Article 41(1)(g) to (k), (m), (n) and (r) to (t); (c) where an independent system operator has been designated under Article 8H of this Order, Article 41(3)(a) and (b); and (d) where a person has been certified on the basis of the third certification ground (independent transmission operator) in Article 8F and designated as a gas transmission operator under Article 8H of this Order, Article 41(5)(b) and (d); and (e) Article 41(9).

Authority’s dispute resolution functions in relation to gas

70

For Article 27A(1) of the Gas Order there shall be substituted the following paragraph—

(27A) (1) Any person may make a complaint under this Article (hereinafter referred to as “a complaint”) if— (a) the subject matter of the complaint constitutes a dispute between the complainant and— (i) a person holding a licence under Article 8(1)(a); (ii) a person holding a licence under Article 8(1)(b); (iii) a gas conveyance exemption holder; or (iv) a gas storage exemption holder; (b) it is wholly or mainly a complaint against that holder regarding an obligation imposed on him pursuant to the Directive; and (c) the subject matter of the complaint is not capable of being determined pursuant to any other Article of this Order or any condition of the licence held by the holder.

PART VII — ENFORCEMENT

Amendment of the enforcement provisions of the Energy Order

71

In Articles 42 to 51 of the Energy Order, for “licence holder”, substitute “regulated person” wherever it appears, except where the words “licence holder” appears in the following places—

• (a) Article 45(2) of the Energy Order;

• (b) paragraphs (b) and (c) of Article 51(1) of the Energy Order.

72

In Article 41(1)(a) of the Energy Order, after the words “electricity licences” there shall be inserted the words “and exemptions”.

73

In Article 41(2) of the Energy Order, before the definition of “relevant conditions” there shall be inserted the following definition—

• “regulated person” means any person who is—a licence holder; oran exemption holder;

74

In Article 41(2) of the Energy Order, for the definition of “relevant conditions” there shall be substituted the following definition—

• “relevant conditions” means—in relation to any licence holder, any condition of his licence;in relation to any exemption holder, any condition of his exemption.

75

In Article 41(2) of the Energy Order, for the definition of “relevant requirement” there shall be substituted the following definition—

• “relevant requirement” has the meaning given to it in Articles 41A and 41B.

76

After Article 41 of the Energy Order there shall be inserted the following new Articles—

(41A) (1) In the case of electricity, “relevant requirement” in respect of any regulated person means any duty or other requirement imposed on that person by or under a provision— (a) specified in this Article; or (b) in the Electricity Regulation and designated under this Article, in respect of that person. (2) In respect of any licence holders, Article 27(4)(b) is specified for the purposes of paragraph (1). (3) In respect of holders of an electricity generation licence— (a) Part VII (Electricity from renewable sources); (b) designated provisions of the Electricity Regulation; (c) Articles 10C(8) and (9) of the Electricity Order (Certification procedure); (d) Articles 10I(11) and (12) of the Electricity Order (Monitoring and review of certification); (e) Articles 8C(4) and (5) of the Gas Order (Certification procedure); and (f) Articles 8I(11) and (12) of the Gas Order (Monitoring and review of certification), are specified for the purposes of paragraph (1). (4) In respect of holders of an electricity supply licence— (a) Article 43(3) of the Electricity Order (Overall standards of performance: electricity supply); (b) Article 44(3) of the Electricity Order (Promotion of efficient use of electricity); (c) Article 45A of the Electricity Order (Information to be given to customers about overall performance); (d) Article 45B of the Electricity Order (Procedures for dealing with complaints); (e) those in Part VII (Electricity from renewable sources); (f) the Electricity and Gas (Billing) (No. 2) Regulations (Northern Ireland) 2010; (g) Articles 10C(8) and (9) of the Electricity Order (Certification procedure); (h) Articles 10I(10), (11) and (12) of the Electricity Order (Monitoring and review of certification) insofar as they apply to that person; (i) Articles 8C(4) and (5) of the Gas Order (Certification procedure); and (j) Articles 8I(11) and (12) of the Gas Order (Monitoring and review of certification), are specified for the purposes of paragraph (1). (5) In respect of holders of an electricity distribution licence— (a) Article 12(1) of the Electricity Order (General duties of electricity distributors and transmission licence holders); (b) Articles 19 to 26 of the Electricity Order (Duty to connect on request); (c) Article 43A of the Electricity Order (Overall standards of performance: electricity distributors); and (d) Article 45A of the Electricity Order (Information to be given to customers about overall performance), are specified for the purposes of paragraph (1). (6) In respect of holders of an electricity transmission licence— (a) Article 12(2) of the Electricity Order (General duties of electricity distributors and transmission licence holders); (b) Article 10B(1) or (2) and Article 10C(3) of the Electricity Order insofar as they apply to that person; and (c) Articles 10C(7) or (8) and (9) and 10I(10), (11) and (12) of the Electricity Order insofar as they apply to that person, are specified for the purposes of paragraph (1). (7) The Department shall for the purposes of paragraph (1) designate those provisions of the Electricity Regulation which impose a duty or requirement on any or on any particular regulated person in respect of such persons and shall publish any such designation in the Belfast Gazette (41B) (1) In the case of gas, “relevant requirement” in respect of any regulated person means any duty or other requirement imposed on that person by or under a provision (a) specified in this Article; or (b) in the Gas Regulation and designated under this Article, in respect of that person. (2) In respect of any licence holders, Article 27(4)(b) is specified for the purposes of paragraph (1). (3) In respect of holders of a gas supply licence— (a) Section 3(4) of the Energy Act (Northern Ireland) 2011 (Overall standards of performance); (b) Section 5(3) of the Energy Act (Northern Ireland) 2011 (Standards for promoting efficient use of gas); (c) Section 7 of the Energy Act (Northern Ireland) 2011 (Information to be given to customers about overall performance); (d) Section 8 of the Energy Act (Northern Ireland) 2011 (Procedures for dealing with complaints); (e) the Electricity and Gas (Billing) (No. 2) Regulations (Northern Ireland) 2010; (f) Articles 10C(8) and (9) of the Electricity Order (Certification procedure); (g) Articles 10I(11) and (12) of the Electricity Order (Monitoring and review of certification); (h) articles 8C(4) and (5) of the Gas Order (Certification procedure); and (i) Articles 8I(11) and (12) of the Gas Order (Monitoring and review of certification). are specified for the purposes of paragraph (1). (4) In respect of holders of a gas conveyance licence — (a) Section 3(4) of the Energy Act (Northern Ireland) 2011 (Overall standards of performance); (b) Section 7 of the Energy Act (Northern Ireland) 2011 (Information to be given to customers about overall performance), are specified for the purposes of paragraph (1). (5) In respect of holders of a gas conveyance licence involved in gas transmission— (a) Article 8B(1) or (2) of the Gas Order and Article 8B(1) or (2) of the Electricity Order insofar as they apply to that person; and (b) Article 8C(3), (4) and (5) and 8I(10), (11) and (12) of the Gas Order insofar as they apply to that person, are specified for the purposes of paragraph (1). (6) The Department shall for the purposes of paragraph (1) designate those provisions of the Gas Regulation which impose a duty or requirement, on any or on any particular, regulated person in respect of such persons and shall publish any such designation in the Belfast Gazette.

Amendment to the Energy Order – penalties

77

For paragraph (9) of Article 45 there shall be substituted the following paragraph—

(9) No penalty imposed by the Authority under this Article may exceed— (a) subject to sub-paragraph (b), 10 per cent of the turnover of the regulated person; or (b) where the regulated person is or is part of a vertically integrated undertaking and the relevant condition or requirement to which the contravention relates is imposed on a vertically integrated undertaking pursuant to the Electricity Directive or the Gas Directive, 10 per cent of the turnover of the vertically integrated undertaking, in each case determined in accordance with provisions specified in an order made by the Department.

Amendments to the Energy Order – miscellaneous provisions

78

For paragraph (11) of Article 45 there shall be substituted the following paragraph—

(11) “Community Regulation” means the Electricity Regulation or the Gas Regulation.

79

After Article 51(1) of the Energy Order there shall be inserted the following paragraph—

(1A) The Authority may, for the purposes of its monitoring functions under Article 50 of the Electricity Order and Article 27 of the Gas Order, serve a notice under paragraph (2) on any regulated person, but only where the activities being monitored are the activities set out in paragraph (3B) of Article 50 of the Electricity Order and paragraph (3B) of Article 27 of the Gas Order, as the case may be.

PART VIII — MISCELLANEOUS PROVISIONS

Amendments to the Electricity Order

80

In Article 3 of the Electricity Order—

• (a) for the definition of “the Directive” there shall be substituted the following definition—

• “the Directive” means European Parliament and Council Directive 2009/72/EC concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC;

• (b) there shall be inserted at the appropriate places the following definitions—

• “the 2011 Regulations” means the Gas and Electricity (Internal Markets)Regulations (Northern Ireland) 2011;

; and

• “vertically integrated undertaking” has the meaning given in Article 2(21) of the Directive;

81

In Article 11B of the Electricity Order—

• (a) in paragraph(1)(b), for the words “Article 7” there shall be substituted the words “Article 8”; and

• (b) in paragraph 5, for the words “Article 7” there shall be substituted the words “Article 8”.

82

In Article 40(6), for the words “Article 22(2)” there shall be substituted the words “Article 34(2)”.

Amendments to the Energy Order

83

In Article 2 of the Energy Order, there shall be inserted at the appropriate places the following definitions—

• “the Agency” means the Agency for the Cooperation of Energy Regulators, established under the Agency Regulation;

• “designated regulatory authority” means an authority designated in accordance with Article 35 of the Electricity Directive or Article 39 of the Gas Directive;

• “exemption holder” means any person who is—an electricity generation exemption holder;an electricity distribution exemption holder;an electricity supply exemption holder;a gas conveyance exemption holder;a gas storage exemption holder; ora gas supply exemption holder;

• “the Agency Regulation” means Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13July2009 establishing an Agency for the Cooperation of Energy Regulators;

• “the Electricity Directive” means Directive 2009/72/EC of the European Parliament and of the Council of 13July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC;

• “the Electricity Regulation” means Regulation (EC) No. 714/2009 of the European Parliament and of the Council of 13July2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No. 1228/2003;

• “electricity distribution exemption holder” means a person who carries on the activity referred to in Article 8(1)(bb) of the Electricity Order under the authority of an exemption granted pursuant to Article 9 of that Order;

• “electricity generation exemption holder” means a person who carries on the activity referred to in Article 8(1)(a) of the Electricity Order under the authority of an exemption granted pursuant to Article 9 of that Order;

• “electricity supply exemption holder” means a person who carries on the activity referred to in Article 8(1)(c) of the Electricity Order under the authority of an exemption granted pursuant to Article 9 of that Order;

• “the Gas Directive” means Directive 2009/73/EC of the European Parliament and of the Council of 13July2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC;

• “the Gas Regulation” means Regulation (EC) No. 715/2009 of the European Parliament and of the Council of 13July2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No. 1775/2005;

• “gas conveyance exemption holder” means a person who carries on the activity referred to in Article 6(1)(a) of the Gas Order under the authority of an exemption granted pursuant to Article 7 of that Order;

• “gas storage exemption holder” means a person who carries on the activity referred to in Article 6(1)(b) of the Gas Order under the authority of an exemption granted pursuant to Article 7 of that Order;

• “gas supply exemption holder” means a person who carries on the activity referred to in Article 6(1)(c) of the Gas Order under the authority of an exemption granted pursuant to Article 7 of that Order;

; and

• “Third Package” means—the Electricity Directive;the Gas Directive;the Agency Regulation;the Electricity Regulation; andthe Gas Regulation.

84

In Article 38 of the Energy Order—

• (a) In paragraph (1), for the words “European Parliament and Council Directive 2003/54/EC concerning common rules for the internal market in electricity and repealing Directive 96/92/EC” there shall be substituted the words “the Electricity Directive”; and

• (b) in paragraph (2), for the words “European Parliament and Council Directive 2003/55/EC concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC” there shall be substituted “the Gas Directive”.

Amendments to the Gas Order

85

In Article 3 of the Gas Order—

• (a) for the definition of “the Directive” there shall be substituted the following definition—

• “the Directive” means European Parliament and Council Directive 2009/73/EC concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC;

• (b) for the definition of “the Commission Decision” there shall be substituted the following definition—

• “the Commission Decision” means Commission Decision PH (2005) 0791 granting a derogation from certain provisions of Directive 2003/55/EC of the European Parliament and of the Council in respect of Northern Ireland;

; and

• (c) there shall be inserted at the appropriate places the following definitions—

• “the 2011 Regulations” means The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011;

; and

• “vertically integrated undertaking” has the meaning given in Article 2(20) of the Directive.

86

In Article 8(7B)(b), for the words “Article 24(2)” there shall be substituted the words “Article 38(2)”.

87

In Article 9A(1)(a), for the words “Article 24(1)” there shall be substituted the words “Article 38(1)”.

88

In Article 45(1A), for the words “Article 10 or 14” there shall be substituted the words “Article 16 or 27”.

Amendments to the Energy Act (Northern Ireland) 2011

89

In Section 17(5) of the Energy Act (Northern Ireland) 2011, in paragraph (a) of the definition of “relevant licence”, after the words “Article 10(1)(b)” there shall be inserted the words “or Article 10(1)(bb)”.

PART IX — TRANSITIONAL PROVISIONS

Separation of existing electricity transmission licence

90

• (1) The transmission licence held by Northern Ireland Electricity plc immediately before the date these Regulations come into operation (“the existing transmission licence”) shall have effect as if it were—

• (a) a licence under Article 10(1)(b) of the Electricity Order to participate in the transmission of electricity (“the successor transmission licence”); and

• (b) a licence under Article 10(1)(bb) of the Electricity Order to distribute electricity (“the successor distribution licence”),

authorising, in each case, the activities thereunder in the area specified in the existing transmission licence.

• (2) Subject to paragraph (3) and subject to any modification made under paragraph (5), each condition (or part of a condition) of the existing transmission licence which—

• (a) relates only to electricity transmission shall be included as a condition in the successor transmission licence;

• (b) relates only to electricity distribution shall be included as a condition in the successor distribution licence;

• (c) does not relate only to electricity transmission or only to electricity distribution shall be included as a condition in both the successor transmission licence and the successor distribution licence.

• (3) Condition 42 (and Annex 2 to the Conditions) of the existing transmission licence shall be included as a condition in both the successor transmission licence and the successor distribution licence and shall be taken as relating to the activities authorised by both licences taken together.

• (4) Where any question arises as to the effect of paragraph (2) in relation to a particular licence condition, the Authority, after consultation with Northern Ireland Electricity plc, shall determine such question and may modify the successor transmission or distribution licence accordingly.

• (5) The Authority, after consultation with the Department, may by notice in writing make such incidental, consequential or transitional modifications to the terms and conditions of the successor transmission licence or the successor distribution licence as the Authority may consider necessary or expedient in connection with paragraph (1).

• (6) Before making modifications under this regulation, the Authority shall consult Northern Ireland Electricity plc.

• (7) The requirements of paragraphs (4) and (5) as to consultation may be satisfied by consultation before, as well as by consultation after, the coming into operation of this regulation.

• (8) Where the Authority makes any modifications of the successor transmission licence or the successor distribution licence under this regulation, it—

• (a) shall publish those modifications in such manner as it considers appropriate; and

• (b) may publish the modified licence in such manner as it considers appropriate, either as a composite document comprising both licences or as separate documents each comprising one of the licences.

• (9) The power to make modifications under this regulation may not be exercised after the end of the period of 12 months beginning with the day on which this regulation comes into operation.

• (10) The Department may, prior to the date referred to in paragraph (9), and if it considers there are good reasons for doing so, extend that date by a period of no more than 12 months.

• (11) Article 38(1) of the Energy Order applies in relation to the power to modify a licence under this regulation as it applies in relation to a power to amend a licence under the Electricity Order.

• (12) Nothing else in this regulation prejudices the generality of any other power to modify a licence.

• (13) Anything done in pursuance of the existing transmission licence, or any condition thereof, in connection with the transmission or distribution by Northern Ireland Electricity plc of electricity shall be deemed to have been done in pursuance of the successor transmission licence or the successor distribution licence respectively.

• (14) Each of the successor transmission licence and the successor distribution licence shall be treated as an existing electricity licence for the purposes of regulation 94.

Modification of existing electricity licences

91

• (1) The Department, after consultation with the Authority, or the Authority with the consent of the Department, may by notice in writing make such modifications to the conditions of an existing electricity licence as the Department or the Authority, as the case may be, considers requisite or expedient—

• (a) to ensure that any activity authorised by the licence is carried out in compliance with the relevant requirements and prohibitions laid down by the Electricity Directive; or

• (b) otherwise for the purpose of the Electricity Directive.

• (2) A notice under paragraph (1) may in particular—

• (a) revoke or modify such conditions of; or

• (b) include such new conditions in,

an existing licence as the Department or the Authority, as the case may be, considers requisite or expedient for the purposes of that paragraph.

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

• (a) may do any of the things authorised by Articles 11(2) to (6B) of the Electricity Order;

• (b) shall, in particular, ensure that existing electricity licences comply with the requirements of Article 11A of the Electricity Order.

• (4) Before making modifications under this regulation, the Department or the Authority shall consult the holders of the licences being modified and such other persons as it considers appropriate.

• (5) The requirements of paragraphs (1) and (4) as to consultation may be satisfied by consultation before, as well as by consultation after, the coming into operation of this regulation.

• (6) Where the Department or the Authority makes any modifications under this regulation, it shall publish those modifications in such manner as it considers appropriate.

• (7) The power to make modifications under this regulation may not be exercised after the end of the period of 12months beginning with the day on which this regulation comes into operation.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) Article 38(1) of the Energy Order applies in relation to the power to modify a licence under this regulation as it applies in relation to a power to amend a licence under the Electricity Order.

• (10) Nothing in this regulation prejudices the generality of any other power to modify a licence; and nothing in paragraph (3) prejudices the generality of paragraph (1).

Modification of existing gas licences

92

• (1) The Department, after consultation with the Authority, or the Authority with the consent of the Department, may by notice in writing make such modifications to the conditions of an existing gas licence as the Department or the Authority, as the case may be, considers requisite or expedient—

• (a) to ensure that any activity authorised by the licence is carried out in compliance with the relevant requirements and prohibitions laid down by the Gas Directive; or

• (b) otherwise for the purpose of the Gas Directive.

• (2) A notice under paragraph (1) may in particular—

• (a) revoke or modify such conditions of; or

• (b) include such new conditions in,

an existing licence as the Department or the Authority, as the case may be, considers requisite or expedient for the purposes of that paragraph.

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

• (a) may do any of the things authorised by Articles 10(2) to (6A) of the Gas Order;

• (b) shall, in particular, ensure that existing gas licences comply with the requirements of Article 10A of the Gas Order.

• (4) Before making modifications under this regulation, the Department or the Authority shall consult the holders of the licences being modified and such other persons as it considers appropriate.

• (5) The requirements of paragraphs (1) and (4) as to consultation may be satisfied by consultation before, as well as by consultation after, the coming into operation of this regulation.

• (6) Where the Department or the Authority makes any modifications under this regulation, it shall publish those modifications in such manner as it considers appropriate.

• (7) The power to make modifications under this regulation may not be exercised after the end of the period of 12 months beginning with the day on which this regulation comes into operation.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) Article 38(2) of the Energy Order applies in relation to the power to modify a licence under this regulation as it applies in relation to a power to amend a licence under the Gas Order.

• (10) Nothing in this regulation prejudices the generality of any other power to modify a licence; and nothing in paragraph (3) prejudices the generality of paragraph (1).

Existing members of the Authority

93

For the purposes of sub-paragraph (3) of paragraph (3) of Schedule 1 to the Energy Order, a person who at the date these Regulations come into operation has been appointed to hold office as chairman or other member of the Authority for one or more terms in total not exceeding 7 years shall be treated as having been appointed only once.

Property arrangements schemes

94

Schedule 1 (which makes provision about property arrangements schemes in respect of certain licence holders) shall have effect.

SCHEDULE 1 — Property Arrangements Schemes

Scheme-making power

1

• (1) The Authority may, on application, make a scheme providing for—

• (a) the transfer to the nominated transferee of; or

• (b) the creation in favour of the nominated transferee of any rights in relation to,

property, rights or liabilities of an applicant for certification.

• (2) A scheme under sub-paragraph (1) (“a property arrangements scheme”) may also contain—

• (a) provision for the creation, in relation to property which the scheme transfers, of an interest in or right over the property in favour of the applicant for certification;

• (b) provision for the creation of any rights or liabilities as between the applicant for certification and the nominated transferee;

• (c) provision for imposing on the applicant for certification or the nominated transferee an obligation to enter into a written agreement with, or to execute an instrument of another kind in favour of, the other; and

• (d) supplemental, incidental and consequential provision.

• (3) The property, rights or liabilities which may be transferred by a property arrangements scheme include property, rights or liabilities which would not otherwise be capable of being transferred.

• (4) If a property arrangements scheme provides for the division of an estate in land and any rent is—

• (a) payable in respect of the estate under a lease; or

• (b) charged on the estate,

the scheme may contain provision for apportionment or division so that one part is payable in respect of, or charged on, only one part of the estate and the other part is payable in respect of, or charged on, only the other part of the estate.

• (5) A property arrangements scheme that contains provision which adversely affects a third party may also contain provision requiring the nominated transferee or the applicant for certification to pay the third party compensation.

Applications for schemes

2

• (1) An application for the making of a property arrangements scheme may be made where—

• (a) a qualifying application for certification has been made to the Authority;

• (b) a person is nominated in that application for certification as a person to whom any property, rights or liabilities of the applicant for certification should be transferred, or in favour of whom any rights in relation thereto should be created, for unbundling purposes; and

• (c) the person so nominated either has consented in writing to such nomination or is an existing related licensee.

• (2) An application for the making of a property arrangements scheme may be made by—

• (a) the nominated transferee;

• (b) the applicant for certification; or

• (c) by both jointly.

• (3) Except with the consent of the Authority, no application for a property arrangements scheme may be made more than 6 weeks after the making of the qualifying application for certification in connection with which it is made.

• (4) An application for a property arrangements scheme shall specify the property, rights or liabilities in relation to which provision of a kind mentioned in paragraph 1(1) is proposed to be included in the scheme.

The Authority’s functions in relation to applications

3

• (1) On an application for the making of a property arrangements scheme, the Authority shall, in relation to any property, rights or liabilities in respect of which the application proposes provision of a kind mentioned in paragraph 1(1), determine whether provision of such a kind is, in relation to that property, or those rights or liabilities, necessary or expedient for unbundling purposes.

• (2) Sub-paragraph (1) does not apply if the nominated transferee and the applicant for certification agree that provision of a kind mentioned in paragraph 1(1) is, in relation to the property, rights or liabilities concerned, necessary or expedient for unbundling purposes.

• (3) If the Authority determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is not, in relation to any property, rights or liabilities, necessary or expedient for unbundling purposes, it shall refuse the application in relation to that property, or those rights or liabilities.

• (4) If the Authority is minded to make a final decision to certify the applicant for certification pursuant to the qualifying application for certification and—

• (a) the Authority determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is, in relation to any property, rights or liabilities, necessary or expedient for unbundling purposes; or

• (b) the nominated transferee and the applicant for certification agree that that is the case,

the Authority shall, subject to paragraph 4(2), make a property arrangements scheme in relation to that property, or those rights or liabilities.

• (5) The Authority shall publish the terms of any property arrangements scheme in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the scheme.

4

• (1) Subject to the following provisions of this paragraph, where the Authority is required to make a property arrangements scheme, the terms of the scheme shall be such as the nominated transferee and the applicant for certification may agree or, if they fail to agree, as the Authority may determine.

• (2) The Authority may not include in a property arrangements scheme provision which would adversely affect a third party unless it determines that it is necessary or expedient for unbundling purposes for the provision to be made.

• (3) Where the Authority does include in a property arrangements scheme provision which would adversely affect a third party, the Authority shall determine whether the scheme should include provision for compensation and, if so, what that provision should be.

• (4) A property arrangements scheme shall not provide for any provision to come into operation before the end of the period of 21 days beginning with the day on which the scheme is made.

5

• (1) A determination under paragraph 4, so far as relating to any financial matter, shall be made on the basis of what is just in all the circumstances of the case.

• (2) A determination under paragraph 4, so far as relating to any other matter, shall be made on the basis of what appears to the Authority to be appropriate in all the circumstances of the case having regard, in particular, to what is necessary or expedient for unbundling purposes.

6

The Authority may require any of the following persons to give it information and assistance in connection with the making of a determination under this Schedule, that is to say—

• (a) the nominated transferee;

• (b) the applicant for certification; and

• (c) any person who makes representations to the Authority about the application for certification to which the determination relates.

7

The Authority may engage such consultants as it thinks fit for the purpose of advising it in relation to the making of a determination under this Schedule.

Effect of property arrangements scheme

8

A property arrangements scheme shall, by virtue of this paragraph, have effect according to its terms.

9

• (1) A transaction of any description effected by or under a property arrangements scheme shall have effect subject to the provisions of any statutory provision which provides for transactions of that description to be registered in any statutory register.

• (2) Subject to sub-paragraph (1), a transaction of any description effected by or under a property arrangements scheme shall be binding on all persons, notwithstanding that it would, apart from this provision, have required the consent or concurrence of any person.

Review of determinations

10

• (1) Any person aggrieved by a determination of the Authority under this Schedule may apply to the Competition Appeal Tribunal for a review of the determination.

• (2) Subject to sub-paragraph (3), no application under sub-paragraph (1) may be made after the end of the period of 7 days beginning with the day on which the determination is made.

• (3) Where the Authority has made a property arrangements scheme, an application under sub-paragraph (1) may be made in respect of a determination relating to the scheme at any time before the end of the period of 7 days beginning with the day on which the scheme is made.

• (4) On an application under sub-paragraph (1), the Competition Appeal Tribunal may—

• (a) dismiss the application; or

• (b) make an order substituting its own determination.

11

• (1) This paragraph applies where—

• (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b);

• (b) the Authority has made a property arrangements scheme in relation to the property, rights or liabilities concerned; and

• (c) the scheme has not come into operation.

• (2) Where the Tribunal’s determination is that provision of the kind mentioned in paragraph 1(1) is not, in relation to the property, rights or liabilities concerned, necessary or expedient for unbundling purposes, it may include in the order provision quashing the scheme.

• (3) In any other case, the Tribunal may include in the order—

• (a) provision for the scheme to have effect with such amendments with respect to any matter dealt with by the Authority’s determination as it thinks fit; and

• (b) to the extent that the Authority’s determination dealt with any financial matter, provision requiring the Authority to redetermine the matter in accordance with the order and to amend the scheme accordingly.

12

• (1) This paragraph applies where—

• (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b);

• (b) the Authority has made a property arrangements scheme in relation to the property, rights or liabilities concerned; and

• (c) the scheme has come into operation.

• (2) The Tribunal may include in the order such provision as it thinks fit for the purpose of doing justice between—

• (a) the nominated transferee;

• (b) the applicant for certification; and

• (c) any third party adversely affected by the scheme,

in the light of its determination.

• (3) Without prejudice to the generality of sub-paragraph (2), the Tribunal may include in the order—

• (a) provision for retransfer;

• (b) provision for the surrender or extinction of rights; and

• (c) provision for the payment of compensation.

13

An order under paragraph 10(4)(b) may include provision for the award of interest at such rate and for such period as the Competition Appeal Tribunal thinks fit.

14

Sections 120(6) to (8) of the Enterprise Act 2002 (c.40) (appeal with leave on point of law from decision of Competition Appeal Tribunal to Court of Appeal) shall apply in relation to decisions of the Tribunal under this Schedule as they apply in relation to decisions under that section.

Interim arrangements pending review of determination

15

• (1) This paragraph applies where—

• (a) a person makes an application under paragraph 10(1) for the review of a determination; and

• (b) the Authority has not made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates.

• (2) The Competition Appeal Tribunal may on application by the nominated transferee or the applicant for certification make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.

• (3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power to make provision for the nominated transferee to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.

• (4) No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made.

16

• (1) This paragraph applies where—

• (a) a person makes an application under paragraph 10(1) for the review of a determination; and

• (b) the Authority has made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates.

• (2) The Competition Appeal Tribunal may on application by—

• (a) the nominated transferee;

• (b) the applicant for certification; or

• (c) a third party who is adversely affected by any provision of the scheme,

make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.

• (3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power—

• (a) to make provision postponing or suspending the operation of any provision of the scheme for such period, and on such terms, as the Tribunal thinks fit;

• (b) to make provision for the nominated transferee to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.

• (4) No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made.

17

In exercising its powers under paragraph 15 or 16, the Competition Appeal Tribunal shall have regard, in particular, to what is necessary or expedient for unbundling purposes.

18

Paragraphs 15 and 16 are without prejudice to any powers of the Competition Appeal Tribunal to make orders on an interim basis under rules under section 15 of the Enterprise Act 2002 (c.40).

19

• (1) If an order under paragraph 15 or 16 is registered in the High Court, it shall be enforceable as an order of the High Court.

• (2) An order under paragraph 15 or 16 may be registered by a person entitled to any right under the interim arrangements for which the order makes provision.

• (3) Sub-paragraphs (1) and (2) have effect subject to any provision made by rules of court.

• (4) Sub-paragraphs (1) and (2) apply to an order on an interim basis made under rules under section 15 of the Enterprise Act 2002 (c.40) in connection with an application under paragraph 10(1) as they apply to an order under paragraph 15 or 16.

Supplementary

20

An application under this Schedule shall not be made orally.

21

• (1) In this Schedule—

• “application for certification” means an application for certification under Article 10C of the Electricity Order or Article 8C of the Gas Order;

• “certification ground” has the meaning given to it in Article 10F of the Electricity Order or Article 8F of the Gas Order as the context requires;

• “certification” means certification in accordance with Article 10E of the Electricity Order or Article 8E of the Gas Order as appropriate;

• “existing related licensee” means, in relation to an applicant for certification—a related transmission licensee falling within paragraph (a) of the definition thereof in Article 10L(1) of the Electricity Order; ora related conveyance licensee falling within paragraph (a) of the definition thereof in Article 8L of the Gas Order,

as the case may be;

• “nominated transferee” means the person nominated (as described in paragraph 2(1)(b)) in a qualifying application for certification;

• “property arrangements scheme” has the meaning given by paragraph 1(2);

• “qualifying application for certification” means—an application for certification on the first or third certification ground in Article 10F of the Electricity Order; oran application for certification on the first, second or third certification ground in Article 8F of the Gas Order,

which is made by a person who holds a transmission licence at the date these Regulations come into operation and who has not previously been certified;

• “third party”, in relation to a property arrangements scheme, means a person other than the nominated transferee or the applicant for certification; and

• “unbundling purposes”, in relation to a property arrangements scheme, or an application for such a scheme, means the purposes of satisfying or facilitating the satisfaction of any condition required for the relevant certification ground to be met (where the relevant certification ground is the certification ground on the basis of which the relevant qualifying application for certification was made).

• (2) In this Schedule, a reference to the applicant for certification, in relation to a property arrangements scheme, or an application for such a scheme, means the applicant for certification to whose property, rights or liabilities the scheme, or application, relates.

• (3) For the purposes of this Schedule, a provision of a property arrangements scheme adversely affects a third party if—

• (a) his consent or concurrence would be required to the making of the provision otherwise than by means of the scheme; and

• (b) he does not consent to the making of the provision by means of the scheme.

SCHEDULE 2

Signed

Sealed with the Official Seal of the Department of Enterprise, Trade and Investment on 23rd March 2011.

A F Hepper — A senior officer of the — Department of Enterprise, Trade and Investment

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations inter alia amend the Electricity (Northern Ireland) Order 1992 (“the Electricity Order”), the Gas (Northern Ireland) Order 1996 (“the 1996 Gas Order”), the Energy (Northern Ireland) Order 2003 (“the Energy Order”), the Energy Act (Northern Ireland) 2011 (“the Energy Act”) and the Electricity (Applications for Licences and Extensions of Licences) (No. 2) Regulations (Northern Ireland) 2007 to ensure that they conform with the requirements of:

• (1) Directive 2009/72/EC of the European Parliament and of the Council concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (“the Electricity Directive”);

• (2) Directive 2009/73/EC of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (“the Gas Directive”);

• (3) Regulation (EC) No. 714/2009 of the European Parliament and of the Council of 13July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No. 1228/2003 (“the Electricity Regulation”);

• (4) Regulation (EC) No. 715/2009 of the European Parliament and of the Council of 13July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No. 1775/2005 (“the Gas Regulation”); and

• (5) Regulation (EC) No. 713/2009 of the European Parliament and of the Council of 13July 2009 establishing an Agency for the Cooperation of Energy Regulators (“the Agency Regulation”).

Part IPart I contains certain introductory provisions and definitions of terms used in these Regulations.

Part IIPart II implements certain provisions of the Electricity Directive and the Gas Directive dealing with the protection of electricity and gas consumers. In particular—aRegulation 3 amends Article 12(3) of the Energy Order to require the Department of Enterprise, Trade and Investment (“the Department”) and the Northern Ireland Authority for Utility Regulation (“the Authority), in carrying out their electricity functions, to have regard to the need to protect certain categories of electricity customers, consistent with the Electricity Directive;bRegulation 4 amends Article 14(3) of the Energy Order to require the Department and the Authority, in carrying out their gas functions, to have regard to the need to protect certain categories of gas customers, consistent with the Gas Directive;cRegulations 5 and 6 amend Articles 26 and 42A of the Electricity Order to provide for a defined period of time for resolution of disputes;dRegulation 7 substitutes a new Article 47A in the Electricity Order, in place of the existing Article 47A, giving the Authority, or an arbitrator appointed by the Authority, power to determine electricity billing disputes and sets out requirements regarding such determination;eRegulation 8 inserts a new Article 24A into the Gas Order, giving the Authority, or an arbitrator appointed by the Authority, power to determine gas billing disputes and sets out requirements regarding such determination; andfRegulation 9 amends Section 2 of the Energy Act to provide for a defined period of time for resolution of disputes.

Part IIIPart III implements certain provisions of the Electricity Directive and the Gas Directive which provide for a new unbundling regime for transmission system operators. This new regime requires the full separation of electricity and gas transmission activities from production and supply activities and for the certification of operators approved under procedures laid down in the Electricity Regulation and the Gas Regulation. Under the Directives there are a number of different models for the achievement of this unbundling and the Regulations set out the different grounds that an operator must satisfy for each model. In particular—aRegulation 10 inserts new Articles 10B to 10L into the Electricity Order, which sets out the process for the certification and designation of electricity transmission system operators;bRegulation 11 provides for the modification of electricity licence conditions where the Authority is minded to make a final decision on certification;cRegulation 12 inserts new Articles 8B to 8L into the Gas Order, which set out the process for the certification and designation of persons who convey gas through gas transmission pipelines; anddRegulation 13 provides for the modification of gas licence conditions where the Authority is minded to make a final decision on certification.

Part IVPart IV provides for the modification of gas and electricity licence conditions to implement certain requirements of the Electricity Directive and the Gas Directive. In particular—aRegulation 14 substitutes a new Article 11A in the Electricity Order, requiring the inclusion of appropriate conditions in licences to ensure that the authorised activities comply with various requirements of the Electricity Directive; andbRegulation 15 substitutes a new Article 10A in the Gas Order, requiring the inclusion of appropriate conditions in licences to ensure that the authorised activities comply with various requirements of the Gas Directive.

Part VPart V provides for the introduction, under the Electricity Order, of a separate prohibition on the unauthorised distribution of electricity, creates a licensing regime for distribution and widens the scope of duties of electricity distribution system operators. In particular—aRegulation 16 amends Article 3 of the Electricity Order to include a new definition of “distribution licence” and an amended definition of “electricity distributor”;bRegulation 17 inserts a new sub-paragraph (bb) into Article 8(1) of the Electricity Order to introduce a new prohibition on unauthorised distribution of electricity for the purposes of giving a supply to any premises or enabling a supply to be so given;cRegulation 18 amends Article 9 of the Electricity Order to provide for the Department to make exemptions from the requirement to hold a distribution licence, to provide for electricity licence exemptions to be granted subject to conditions and to provide for a power of revocation of such exemptions where the conditions are not complied with;dRegulation 19 amends Article 10 of the Electricity Order to provide for the grant of distribution licences;eRegulation 20 inserts a new Article 10AA into the Electricity Order to provide for distribution licences to be granted for a particular area;fRegulation21 and Regulations 23 to 30 make consequential amendments to the Electricity Order;gRegulation 22 amends Article 12 of the Electricity Order to widen the scope of duties of the holder of a distribution licence, to ensure that those duties reflect the requirements of the Electricity Directive for long-term planning and security of supply;hRegulation 31 suspends the effect of the new prohibition on the unauthorised distribution of electricity until 30 September 2012 and Regulation 32 provides for the extension of that date;iRegulation 33 amends the Electricity (Applications for Licences and Extensions of Licences) (No. 2) Regulations (Northern Ireland) 2007 to provide for the making of applications for distribution licences, and given effect to Schedule 2 of these Regulations which provide for the form or application for a distribution licence and the documents and particulars that to accompany the application; andjRegulation 34 makes consequential amendments to the Energy Order.

Part VIPart VI implements certain provisions of the Electricity Directive and the Gas Directive dealing with national regulatory authorities and cross-border co-operation within the European Union. In particular—aArticle 35 inserts:ia new Article 3A(1) into the Energy Order, designating the Authority as national regulatory authority for Northern Ireland;iia new Article 3A(2) into the Energy Order, requiring the Authority to ensure that its staff act independently; andiiia new Article 3A(3) into the Energy Order, providing for the Authority to make representations to the energy regulator in Great Britain for the purposes of representing the interests of Northern Ireland at meetings of the Agency for the Cooperation of Energy Regulators;bRegulation 36 inserts:ia new Article 6A into the Energy Order requiring the Authority to prepare each year a report on its activities as designated regulatory authority for Northern Ireland; andiia new Article 6B into the Energy Order to provide for the implementation by the Authority of decisions of the Agency for the Cooperation of Energy Regulators and of the European Commission;cRegulation 37 inserts new paragraphs (5) and (6) into Article 7 of the Energy Order to provide for the preparation by the Authority of guidance for customers (the consumer checklist);dRegulation 38 inserts a new Article 8A into the Energy Order, requiring the Authority to have regard to the need for consultation and cooperation with other regulatory authorities;eRegulations 39 to 42 amends Articles 12(1) and 14(1) of the Energy Order, as well as making some consequential amendments, to align the Authority’s principal objectives for electricity and gas with the Directives;fRegulations 43 and 44 amend Article 62 of the Energy Order to expand the Authority’s obligation to give reasons for its decisions;gRegulation 45 amends Schedule 2 to the Energy Order, by inserting a new paragraph 2A and substituting paragraph 3, to strengthen the provisions dealing with the independence of the Authority and its board members;hRegulation 46 amends Article 6(3) of the Energy Order to strengthen the autonomy of the Authority;iRegulations 47 to 54 make various amendments to the Electricity Order to vest in the Authority, rather than the Department, the power to grant electricity licences and to allow for the determination, publication and modification of standard licence conditions for electricity licences, to align the licence provisions with those under the Gas Order;jRegulation 55 substitutes a new Article 31A(1) in the Electricity Order to widen the scope of disputes to be resolved by the Authority pursuant to that Article;kRegulation 56 amends Article 50(2) of the Electricity Order to strengthen the autonomy of the Authority;lRegulation 57 inserts a new paragraph 3B into Article 50 of the Electricity Order, to widen the Authority’s monitoring functions in relation to electricity;mRegulations 58 to 66 make various amendments to provisions of the Gas Order to vest in the Authority, rather than the Department, the power to grant gas licences;nRegulations 67 and 68 amend Article 27(2) and Article 30(2) of the Gas Order respectively, to strengthen the autonomy of the Authority;oRegulation 69 inserts a new paragraph 3B into Article 27 of the Gas Order, to widen the Authority’s monitoring functions in elation to gas; andpRegulation 70 substitutes a new Article 27A(1) in the Gas Order to widen the scope of disputes to be resolved by the Authority pursuant to that Article.

Part VIIPart VII amends the Authority’s enforcement powers under the Energy Order, to implement certain requirements of the Electricity Directive and the Gas Directive and to give the Authority power to enforce certain requirements of the Electricity Regulation and the Gas Regulation. In particular;aRegulations 71 to 74 amend Articles 41 to 52 of the Energy Order, to extend the enforcement power to all persons regulated under the Electricity Order and the Gas Order, not just licence holders;bRegulation 75 substitutes the definition of “relevant requirements” in Article 42(2) of the Energy Order to refer to new Articles 41A and 41B of the Energy Order;cRegulation 76 inserts a new Article 41A into the Energy Order to clarify the meaning of “relevant requirements” in the context of electricity and to include relevant provisions under the Electricity Directive and the Electricity Regulation. It also inserts a new Article 41B into the Energy Order to clarify the meaning of “relevant requirements” in the context of gas and to include relevant provisions under the Gas Directive and the Gas Regulation;dRegulation 77 substitutes a new Article 45(9) in the Energy Order to allow the maximum penalty that may be imposed by the Authority in relation to the contravention of certain requirements of the Directives to be calculated by reference to the turnover of vertically integrated undertakings; andeRegulations 78 and 79 make consequential amendments to the Electricity Order.

Part VIIIPart VIII (Regulations 89 to 89) makes consequential amendments to the Electricity Order, the Gas Order, the Energy Order and the Energy Act.

Part IXPart IX sets out various transitional provisions. In particular—aRegulation 90 provides for the existing transmission licence held by Northern Ireland Electricity plc to be treated as a transmission licence and distribution licence, and also provides for the separation of the terms and conditions of the existing licence into the two successor licences;bRegulations 91 and92 provide for the modification of existing electricity and gas licences to ensure compliance with the provisions of the Electricity Directive and the Gas Directive;cRegulation 93 provides for transitional provisions dealing with the terms of appointment of members of the Board of the Authority, applying to those members of the Board who have already been appointed at the date these Regulations come into operation; anddRegulation 94 gives effect to Schedule 1 of these Regulations. Schedule 1 gives the authority powers to make certain property arrangements schemes, where required pursuant to the transmission unbundling provisions set out in Part III.

Footnotes

[^f00001]: 1972 c.68

[^f00002]: The European Communities (Designation) Order 2010 S.I. 2010/761

[^f00003]: 1954 c.33 (N.I.)

[^f00004]: S.I. 1992/231 (N.I. 1)

[^f00005]: S.I. 2003/419 (N.I.6)

[^f00006]: S.I. 1996/275 (N.I.2)

[^f00007]: S.R. 2007 No. 289

Editorial notes

[^key-8a81d9a999fe296ed0945e186cf11b96]: Reg. 1 in operation at 15.4.2011, see reg. 1

[^key-e4ffafce6e6749c74fa79ebf6da8fb02]: Reg. 2 in operation at 15.4.2011, see reg. 1

[^key-b53e356a2bca297fc1cfa4e1999cf142]: Reg. 3 in operation at 15.4.2011, see reg. 1

[^key-6b699f70234dd30690857f03ef3caf15]: Reg. 4 in operation at 15.4.2011, see reg. 1

[^key-b814edcc6d91a24a30df4a74fbd22dea]: Reg. 5 in operation at 15.4.2011, see reg. 1

[^key-38d8457eb5c5208ef55c89e22bd05593]: Reg. 6 in operation at 15.4.2011, see reg. 1

[^key-ca8e6412df419f002db9036b98a11642]: Reg. 9 in operation at 15.4.2011, see reg. 1

[^key-f62f9d5d44ac46244e49d3fd990b5fe4]: Reg. 10 in operation at 15.4.2011, see reg. 1

[^key-1d6b4ed6b0810b554c004aab3f39b439]: Reg. 11 in operation at 15.4.2011, see reg. 1

[^key-359fae914aa763e11d2b321bbc106ee3]: Reg. 12 in operation at 15.4.2011, see reg. 1

[^key-55a7c2f5f139424f42cf088158bf5e55]: Reg. 13 in operation at 15.4.2011, see reg. 1

[^key-38c3dafd8d387dc9448b62e06bbedce2]: Reg. 14 in operation at 15.4.2011, see reg. 1

[^key-24a53f83dbf4eb784df29a7fdc004b2c]: Reg. 15 in operation at 15.4.2011, see reg. 1

[^key-1b629c5ca9684eb8ac5cdb6d85a5e0ef]: Reg. 16 in operation at 15.4.2011, see reg. 1

[^key-2a85cfb4e3efeb7c90eb89139cdde237]: Reg. 17 in operation at 15.4.2011, see reg. 1

[^key-7193a8db3a6b074cf5221a26bdd03092]: Reg. 18 in operation at 15.4.2011, see reg. 1

[^key-839f2e4b69c5dd6e89702423bd58a496]: Reg. 19 in operation at 15.4.2011, see reg. 1

[^key-bbc1b11f055c8ed133e194826ad728ed]: Reg. 20 in operation at 15.4.2011, see reg. 1

[^key-703285be44fe19175d48950f9a7a4aad]: Reg. 21 in operation at 15.4.2011, see reg. 1

[^key-e48536df5e100b75f8f29aeefbd9372b]: Reg. 22 in operation at 15.4.2011, see reg. 1

[^key-35380e1bc8b834b482e9fcd45a11bffd]: Reg. 23 in operation at 15.4.2011, see reg. 1

[^key-a0065fc7cd023b1fe34f41f190fc0c5c]: Reg. 24 in operation at 15.4.2011, see reg. 1

[^key-605e9341ef72ed72c6c5f2f847f15701]: Reg. 25 in operation at 15.4.2011, see reg. 1

[^key-c75ef77710cbd815bc488bab7a015f23]: Reg. 26 in operation at 15.4.2011, see reg. 1

[^key-c232deb182c3b232e0db478c286167b9]: Reg. 27 in operation at 15.4.2011, see reg. 1

[^key-6bf8d121e90f8f837a3886579bd6e93e]: Reg. 28 in operation at 15.4.2011, see reg. 1

[^key-0d8b101b843b022d6ca4fe194dbaa11e]: Reg. 29 in operation at 15.4.2011, see reg. 1

[^key-405de6bf2d256de655749a2009fca16f]: Reg. 30 in operation at 15.4.2011, see reg. 1

[^key-15034d1e231ab77dd4252860d90f402f]: Reg. 31 in operation at 15.4.2011, see reg. 1

[^key-202c887cce82943ca782c655bcf239f4]: Reg. 32 in operation at 15.4.2011, see reg. 1

[^key-3b07544f8e5b4636416484fa688523b1]: Reg. 33 in operation at 15.4.2011, see reg. 1

[^key-5438c9468834d139561de4b65b0f9bfa]: Reg. 34 in operation at 15.4.2011, see reg. 1

[^key-9097ab83d8fc63e2026c37507d743a08]: Reg. 35 in operation at 15.4.2011, see reg. 1

[^key-02a43922b4bc8757f24af0056b6a0c5a]: Reg. 36 in operation at 15.4.2011, see reg. 1

[^key-f240399430ebe3807d23c9bac5a5c357]: Reg. 37 in operation at 15.4.2011, see reg. 1

[^key-ca65d04ae2cb16d03f2e918376138f6b]: Reg. 38 in operation at 15.4.2011, see reg. 1

[^key-a56e6502976486a0a79abcc093b1f8e2]: Reg. 39 in operation at 15.4.2011, see reg. 1

[^key-f4044b18292dcadd7f633340cac34e19]: Reg. 40 in operation at 15.4.2011, see reg. 1

[^key-090e1c3d1b895a80d8980d4ec624110e]: Reg. 41 in operation at 15.4.2011, see reg. 1

[^key-7b674dc638151335f800f48c2e093532]: Reg. 42 in operation at 15.4.2011, see reg. 1

[^key-2743ab2061494958f5ae05d3ccc8ab74]: Reg. 43 in operation at 15.4.2011, see reg. 1

[^key-6e42ef59a08738826c29ae1c8e4c18c2]: Reg. 44 in operation at 15.4.2011, see reg. 1

[^key-6d680369f3a18eafe2c3f293964d004a]: Reg. 45 in operation at 15.4.2011, see reg. 1

[^key-b9c9d2f3c84f5fd41c5c8764e04ccea9]: Reg. 46 in operation at 15.4.2011, see reg. 1