PART 2

Amendments to Act of 1999

3 .— The Act of 1999 is amended by the insertion after section 9A of the following section:

“Functions of Commission regarding all-island energy market.

9B.— (1) It shall be, and be deemed always to have been, a function of the Commission to participate in the development of an all-island energy market, including the preparation of proposals and the provision of advice to the Minister in regard to any part or aspect of the establishment, management and operation of such a market.

(2) The Commission may take all actions it considers necessary, in carrying out its function under subsection (1).

(3) The powers conferred on the Commission by subsection (1) include the power to direct—

(a) a person holding a licence under section 14(1)(e) or ESB National Grid to negotiate with any person holding an analogous licence as respects any part of Northern Ireland and to enter into an agreement with any such person to establish an entity to be known as a single market operator,

(b) the holder of a licence under section 14(1)(e) or ESB National Grid to take such steps as are necessary to ensure the proper functioning and operation of the system of trading in electricity for which it is responsible on foot of a direction from the Commission under this Act or the European Communities (Internal Market in Electricity) Regulations 2000 and 2005, and

(c) the holder of a licence granted under section 14 or a person who stands licensed to generate electricity by virtue of subsection (1A) or (1B) of section 14 to comply with any directions, codes or rules made by the Commission under this Act or the European Communities (Internal Market in Electricity) Regulations 2000 and 2005.

(4) The power of the Commission under subsection (3) includes the power to direct that necessary expenditure be undertaken by the holder of a licence under section 14(1)(e) or ESB National Grid.

(5) Without prejudice to the generality of subsection (2) the Commission in exercising its powers under this section may—

(a) liaise,

(b) co-operate, or

(c) enter into arrangements including arrangements involving—

(i) the sharing of information, or

(ii) the sharing of expenditure,

with a relevant person in any other Member State of the European Union and in particular the Northern Ireland Authority for Energy Regulation.

(6) In this section—

‘ all-island energy market ’ means a market in energy for the island of Ireland resulting from the integration of the equivalent markets in Ireland with those of Northern Ireland;

‘ island of Ireland ’ includes its islands and seas;

‘ ESB National Grid ’ means the National Grid Business Unit of the Board performing the functions of the transmission system operator under this Act and the European Communities (Internal Market in Electricity) Regulations 2000 and 2005, pending the granting of a licence under section 14(1)(e);

‘ market in energy ’ includes a market in respect of—

(a) the generation, supply, transmission, distribution and trading, including the export or import, of electricity, including electricity generated from renewable sources,

(b) the storage, supply, transmission, distribution and trading, including the export and import, of natural gas,

(c) energy efficiency services,

(d) energy research and development, and

(e) other sustainable energy activities;

‘ relevant person ’ means—

(a) any person exercising a function in relation to an energy market which corresponds to any of the functions of the Commission or the Minister under—

(i) the Electricity and Gas Regulation Acts 1999 to 2002,

(ii) European Communities (Internal Market in Electricity) Regulations 2000 and 2005,

and

(b) any person engaged in—

(i) generation, supply, including the export or import, transmission or distribution of electricity, or

(ii) storage, supply including the export or import, transmission or distribution of natural gas;

‘ single market operator ’ means an entity established pursuant to an agreement made under subsection (3) for the purpose of establishing and operating a system of contracts and arrangements (including such rights and obligations as appear to the Commission to be necessary) for trading in electricity on the island of Ireland.”.

4 .— The Act of 1999 is amended by the insertion after section 9B (inserted by section 3 ) of the following sections—

“Function of Commission relating to electrical safety.

9C.— It shall be a function of the Commission to regulate the activities of electrical contractors with respect to safety.

Regulation of electrical contractors.

9D.— (1) (a) The Commission may appoint a person or persons to be a designated body for the purposes of this section and such body may be referred to as an Electrical Safety Supervisory Body.

(b) Where the Commission has not appointed a person or persons to be a designated body, or a designated body is, in the opinion of the Commission, no longer able to carry out its functions under this section, the Commission may, with the consent of the Minister, appoint an employee of the Commission to carry out those functions on a temporary basis.

(2) (a) In determining the number of persons appointed under subsection (1) the Commission shall have regard to the costs likely to be incurred—

(i) by the Commission in carrying out its functions under this section, and

(ii) by final customers.

(b) Paragraph 16 of Schedule 1 shall apply to any costs incurred by the Commission in carrying out its functions under this section.

(c) In paragraph (b) the words ‘any costs incurred by the Commission’ includes any moneys provided by the Commission to a designated body, following its appointment under subsection (1), to facilitate that body in establishing and carrying out its functions.

(3) A person shall not be appointed to be a designated body, or if so appointed shall cease to act as a designated body, if that person is or becomes a trade association or performs representative functions on behalf of persons working in the electrical industry.

(4) A person who does not for the time being stand appointed as a designated body shall not describe himself or herself as an Electrical Safety Supervisory Body or in a manner likely to suggest that such person is a designated body for the purposes of this section.

(5) (a) The Commission shall publish criteria (in this section referred to as ‘the criteria’) relating to—

(i) electrical safety supervision,

(ii) the safety standards to be achieved and maintained by electrical contractors, and

(iii) the procedures to be operated by a person appointed as a designated body.

(b) The criteria to be published in connection with paragraph (a) shall include, but shall not be limited to, the following information:

(i) the procedures to be adopted by a designated body for the registration of its members;

(ii) the procedures to be followed by a person applying for membership of a designated body;

(iii) the services which a designated body may carry out on behalf of its members to facilitate the performance of its functions;

(iv) the standards of training and safety to be achieved and maintained by members of a designated body and the procedures to be followed by a designated body in monitoring such standards;

(v) the procedures to be followed by a designated body for the inspection of any work carried out by one of its members, or by a person who is not a registered electrical contractor;

(vi) the procedures to be followed by a designated body in connection with the suspension or revocation of the membership of one of its members;

(vii) the matters to be covered by a completion certificate in respect of different categories or classes of electrical works and the circumstances in which each such class of certificate shall be used;

(viii) the type of accounts to be kept by the designated body, and the manner in which such accounts should be audited;

(ix) the method by which the accounts kept under subparagraph (viii) should be published; and

(x) the procedures to be followed, and the records to be maintained, by a designated body or its members (where appropriate), in connection with subparagraphs (i) to (ix).

(c) The Commission may review or amend the criteria as often as it considers necessary.

(6) The Commission shall not appoint a person to be a designated body unless it is satisfied that the person is capable of complying with the criteria, and as respects each person who is a member (in this section referred to as a ‘ registered electrical contractor ’) of that designated body that the body has, or will have if appointed, the capability and entitlement to—

(a) inspect any work carried out by a registered electrical contractor,

(b) monitor the training and safety standards of a person who is a registered electrical contractor,

(c) review training undertaken by a person engaged either as an employee or as an independent contractor of a registered electrical contractor,

(d) issue directions to a registered electrical contractor regarding the training to be given to or undertaken by a class or classes of persons engaged either as employees or as independent contractors,

(e) suspend the membership of a registered electrical contractor in a designated body where that registered electrical contractor is the subject of an investigation by that body into whether—

(i) work carried out by the registered electrical contractor concerned is unsafe or otherwise of an unsatisfactory standard,

(ii) the training of employees and independent contractors engaged by the registered electrical contractor concerned is materially inadequate, or

(iii) the registered electrical contractor has acted in contravention of the criteria to a material extent,

(f) suspend or revoke the membership of a registered electrical contractor in the designated body where that body is satisfied that any of the matters specified in subparagraphs (i) to (iii) of paragraph (e) apply as respects the contractor concerned.

(7) (a) Where a designated body decides to suspend or revoke the membership of a registered electrical contractor in that body, such designated body shall inform, in writing, both—

(i) the Commission, and

(ii) the registered electrical contractor concerned,

of its decision to suspend or revoke the membership of a registered electrical contractor in the designated body.

(b) A registered electrical contractor, the subject of a decision under paragraph (a), may submit an appeal, in writing, of the decision to the Commission within 28 days of being informed of the decision.

(8) (a) The Commission shall appoint one or more persons (‘ Appeals Officer ’) to—

(i) duly consider, and

(ii) furnish a report to the Commission on,

any appeal submitted by a registered electrical contractor relating to a decision made by the designated body to suspend or revoke his or her membership in the designated body.

(b) The Commission shall have regard to the report of the Appeals Officer under paragraph (a) and shall advise the designated body, the Appeals Officer and the registered electrical contractor concerned of its decision to confirm, vary or set aside the decision of the designated body concerned.

(c) An appeal shall not be considered under this subsection if—

(i) it relates to any matter the subject of proceedings before a court or other tribunal, until those proceedings are determined, or

(ii) it is not submitted to the Commission within 28 days of the registered electrical contractor concerned being informed of the decision.

(9) Notwithstanding the generality of subsections (7) and (8), the Commission may specify the procedures to be followed by:

(a) the Appeals Officer in considering the appeal;

(b) the Appeals Officer in drafting his or her report to the Commission;

(c) the designated body when suspending or revoking the membership of a registered electrical contractor; and

(d) a registered electrical contractor who is the subject of a decision by the designated body to suspend or revoke his or her membership in the designated body,

in the criteria published under subsection (5).

(10) (a) The tariff of fees and charges imposed by a designated body relating to—

(i) membership of an electrical contractor in that body,

(ii) registration of an electrical contractor as a registered electrical contractor,

(iii) inspections of electrical works, and

(iv) any service provided to a member of a designated body by or on behalf of that body,

shall be subject to the approval of the Commission.

(b) All expenses and costs incurred by a designated body in carrying out any of its functions under this section shall be defrayed by the designated body out of funds at its disposal which are obtained in accordance with paragraph (a).

(11) A person may not be a member of more than one designated body.

(12) Where a registered electrical contractor carries out electrical works, the works shall be carried out in accordance with the safety requirements approved by the Commission from time to time.

(13) Where a registered electrical contractor carries out electrical works, which by reason of a determination by the Commission under subsection (27) are specified works, the registered electrical contractor concerned shall issue a completion certificate to the person who requested the works to be carried out.

(14) Where specified works are carried out by an electrical contractor who is not a member of a designated body, the person on whose behalf the specified works are being carried out shall request a designated body to arrange for the carrying out of an inspection of the works and, if the works meet the safety requirements approved by the Commission, for the issue of a completion certificate.

(15) A designated body which receives a request under subsection (14) shall arrange for the carrying out of the inspection as soon as practicable and, if appropriate, the issue of a completion certificate.

(16) Subject to subsection (17), a designated body shall be entitled to payment of fees and charges in respect of the inspection of the works, and those fees and charges shall be no greater than is set out in the tariff of fees and charges published by the designated body concerned.

(17) The tariff of fees and charges referred to in subsection (16) shall not have effect until approved by the Commission, which approval shall not be given unless the Commission is satisfied that the fees and charges are calculated on the basis of the reasonable costs attributable to the carrying out of inspections under this section.

(18) The Commission shall specify a form of completion certificate to be used for the purposes of this section and may specify different forms for different circumstances or different classes of electrical work and may make provision relating to—

(a) procedures to be followed, and

(b) records to be maintained,

by registered electrical contractors and a designated body in connection with the issue of such certificates.

(19) (a) The Commission may conduct an inspection or audit of a designated body to verify compliance by the designated body with the requirements of this section, the terms and conditions of appointment and the criteria of the Commission.

(b) The Commission may appoint a person to assist it in performing inspections or audits referred to in paragraph (a).

(20) The Commission may determine the appointment of a designated body—

(a) in accordance with the terms and conditions of the appointment,

(b) where the Commission is of the opinion that an act or default by the designated body is a cause of serious danger to the public, with immediate effect, or

(c) where it is, in the opinion of the Commission, in the interests of consumers that the appointment be determined, and paragraph (b) does not apply, on giving not less than 3 months notice or such shorter period as may be specified in the terms and conditions of appointment in that respect.

(21) The Commission may appoint a person, including a person who is an employee of a designated body, to be an authorised officer for the purposes of carrying out inspections of electrical work—

(a) of registered electrical contractors on any land where the authorised officer believes such work is being or has been carried out by such a contractor, or

(b) which has been the subject of a completion certificate,

but an authorised officer who is an employee of a designated body shall not exercise the powers conferred under this section as respects the work of a person who is a member of a designated body other than the designated body by which the authorised officer concerned is employed.

(22) A person appointed to be an authorised officer under subsection (21) shall on his or her appointment be furnished with a certificate of his or her appointment, and when exercising a power conferred by this section shall, if requested by any person thereby affected, produce such certificate to that person for inspection.

(23) A registered electrical contractor and every employee or independent contractor of a registered electrical contractor shall give all reasonable assistance to—

(a) an authorised officer in the exercise of his or her powers under this section, and

(b) the Commission in exercising its powers under subsection (19) including a person assisting the Commission pursuant to subsection (19).

(24) A person shall not obstruct—

(a) an authorised officer performing any function he or she is authorised to exercise or perform under this section,

(b) the Commission in exercising its powers under this section, or

(c) a person assisting the Commission pursuant to subsection (19).

(25) A person shall not describe himself or herself as a registered electrical contractor or in a manner likely to suggest that such person is a registered electrical contractor unless that person is for the time being a member of a designated body.

(26) A person who contravenes subsection (4), (24) or (25) is guilty of an offence and liable—

(a) on summary conviction to a fine not exceeding €5,000 or a term of imprisonment not exceeding 6 months or to both, or

(b) on conviction on indictment to a fine not exceeding €15,000 or a term of imprisonment not exceeding 3 years or to both.

(27) The Commission, having consulted with such persons as it considers appropriate, may determine that a class or classes of electrical works be specified works.

(28) In this section—

‘completion certificate’ means a certificate the form of which has been specified by the Commission under subsection (18);

‘ designated body ’ means a person appointed under subsection (1) to be a designated body for the purposes of this section;

‘ specified works ’ means such class or classes of works as have been determined to be such by the Commission in accordance with subsection (27).

Designated electrical works.

9E.— (1) The Commission, having consulted with such persons as it considers appropriate, and with the consent of the Minister, may by regulations designate a class or classes of electrical works to be designated electrical works.

(2) Where the Commission proposes to make regulations under subsection (1) the Minister, where he or she has approved the draft of such regulations, shall cause a draft of the regulations to be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

(3) A person shall not carry out electrical works which are designated electrical works unless that person is a registered electrical contractor.

(4) A person who contravenes subsection (3) is guilty of an offence and liable—

(a) on summary conviction to a fine not exceeding €5,000 or a term of imprisonment not exceeding 6 months or to both, or

(b) on conviction on indictment to a fine not exceeding €15,000 or a term of imprisonment not exceeding 3 years or to both.”.

5 .— The Act of 1999 is amended in section 14(1) by the substitution for paragraphs (c) and (d) of the following paragraphs:

“(c) to supply electricity to final customers which is generated by that supplier or purchased by that supplier and which electricity is generated, in whole or in part, using renewable, sustainable or alternative forms of energy, in accordance with any trading arrangements provided for in regulations made under section 9(1)(d),

(d) to supply electricity to final customers which is generated by that supplier or purchased by that supplier and which electricity is generated, in whole or in part, using combined heat and power, in accordance with any trading arrangements provided for in regulations made from time to time by the Commission under section 9(1)(d),”.

6 .— The Act of 1999 is amended—

(a) in subsection (1) of section 2—

(i) by the substitution for the definition of “combined heat and power” of the following:

“ ‘ combined heat and power ’ means the simultaneous generation in one process of—

(a) thermal energy and electrical energy,

(b) thermal energy and mechanical energy, or

(c) thermal, electrical and mechanical energy;”,

and

(ii) by the insertion of the following new definitions in alphabetical order:

“‘ economically justifiable demand ’ means the demand that does not exceed the needs for heat or cooling and which would otherwise be satisfied at market conditions by energy generation processes other than cogeneration;

‘ electricity production from combined heat and power ’ means electricity produced from combined heat and power calculated in accordance with section 7;

‘ high efficiency combined heat and power ’ means combined heat and power production which on an annual basis—

(a) in the case of small scale combined heat and power and micro-combined heat and power, achieves primary energy savings calculated in accordance with paragraphs 3 and 4 of Schedule 3, and

(b) in the case of all other combined heat and power, achieves primary energy savings calculated in accordance with paragraphs 3 and 4 of Schedule 3 of at least 10 per cent compared with the references for separate production of heat and electricity;

‘ micro-combined heat and power unit ’ means a combined heat and power unit with a maximum capacity of less than 50 kWe;

‘ small scale combined heat and power ’ means combined heat and power units with an installed capacity greater than 50 kWe and less than 1 MWe;

‘ useful heat ’ means heat produced in a cogeneration process to satisfy an economically justifiable demand for heat or cooling.”,

(b) by the substitution of the following section for section 7—

“Combined heat and power.

7.— (1) Electricity production from combined heat and power shall be calculated in accordance with paragraphs 1 and 2 of Schedule 3.

(2) The Minister may by order appoint a person to calculate and certify the actual power to heat ratios of such classes of combined heat and power units as are specified in the order, and such person shall have such powers and duties as are specified in the order.

(3) A person appointed under subsection (2) shall calculate the actual power to heat ratios of combined heat and power units in accordance with this Act and the Directive.

(4) The Minister may by order specify power to heat ratio default values for any technology or technologies which satisfy the definition of combined heat and power, provided that—

(a) in respect of the technologies referred to in paragraphs (a), (b), (c), (d) and (e) of Annex I of the Directive, such default values shall be consistent with those specified in paragraph (b) of Annex II of the Directive,

(b) in respect of technologies other than those referred to in paragraph (a) of this subsection, such default values shall be notified to the European Commission.

(5) The relative amount of primary energy savings provided by combined heat and power production shall be calculated in accordance with paragraphs 3 and 4 of Schedule 3.

(6) Subject to subsection (7) the Minister may by order determine efficiency reference values for separate electricity and heat production, which values shall be determined in accordance with the principles specified in paragraph 5 of Schedule 3, and the Minister may amend or revoke an order made under this subsection.

(7) Where the European Commission has, in accordance with the procedure referred to in Article 14(2) of the Directive, established detailed guidelines for the implementation and application of Annex II of the Directive—

(a) the Minister shall not make an order under subsection (6) in relation to matters which are the subject of such guidelines,

(b) the efficiency reference values determined by the Minister in an order made under this subsection shall cease to have effect, and

(c) those guidelines shall apply for the purpose of determining the power to heat ratio of electricity produced from combined heat and power.

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

(9) The provisions of this section and Schedule 3 apply to installations or generating stations whether first licensed before or after the coming into operation of section 6 of the Energy (Miscellaneous Provisions) Act 2006.

(10) In this section ‘ Directive’ means Directive 2004/8/EC of 11 February 2004. ¹ ”,

(c) in section 14(1) by the substitution for paragraph (d) (inserted by section 5 ) of the following paragraph:

“(d) to supply electricity to final customers which is generated by that supplier or purchased by that supplier, and which electricity is generated, in whole or in part, using high efficiency combined heat and power, in accordance with the trading arrangements provided for in regulations made by the Commission under section 9(1)(d),”,

and

(d) by the insertion after Schedule 2 (inserted by the Sustainable Energy Act 2002 ) of the matter in the Schedule to this Act as Schedule 3 to the Act of 1999.

7 .— The Act of 1999 is amended by the insertion after section 10 of the following section:

“Policy directions to Commission.

10A.— (1) (a) In the interests of the proper and effective regulation of the electricity and natural gas markets and the formulation of policy applicable to such proper and effective regulation, the Minister may give such general policy directions to the Commission, as he or she considers appropriate, to be followed by the Commission in the exercise of its functions.

(b) Notwithstanding the generality of paragraph (a), such general policy directions may have regard to the following issues—

(i) security of energy supply,

(ii) sustainability of energy supply,

(iii) competitiveness of energy supply, or

(iv) such other matter which the Minister considers appropriate.

(2) The Commission shall comply with any direction given under subsection (1), and shall report to the Minister on the implementation (including the costs of such implementation) of any directions given under subsection (1) in the report prepared in accordance with paragraph 25(b) of Schedule 1 to this Act.

(3) Before giving a direction under subsection (1), the Minister shall—

(a) provide a draft of the proposed direction to—

(i) the Commission,

(ii) the Joint Committee referred to in paragraph 26 of Schedule 1 of this Act, and

(iii) any other person the Minister deems appropriate,

inviting them, in writing, to make representations on the proposal and specifying the period (being not less than 30 days from the giving of the draft to the Commission or such publication, whichever is the later) within which representations relating to the proposal may be made by them, and

(b) publish a draft of the proposed policy direction to the Commission, which shall—

(i) include details of the proposed policy direction, including the reasons for giving the direction, and

(ii) specifying the period (being not less than 30 days from the giving of the draft to the Commission or such publication, whichever is the later) within which representations relating to the proposal may be made by interested parties.

(4) The Minister, having considered any representations made under subsection (3), may give the direction under subsection (1), with or without amendment.

(5) Where, in the opinion of the Minister, a direction which the Minister proposes to give to the Commission under subsection (1) relates or may relate to the functions of another Minister of the Government, the Minister shall consult with that Minister of the Government prior to the carrying out of any obligation imposed on him or her under subsection (3).

(6) The Minister shall not give a direction under subsection (1) in respect of—

(a) a person who has applied for, or holds a licence, authorisation or consent, or

(b) a person to whom a licence, authorisation or consent may be granted by the Commission, or

(c) the performance of the functions of the Commission in relation to individual energy undertakings or persons.

(7) Where the Minister gives a direction under subsection (1), a notice of such direction and details thereof, including reasons for giving the direction, shall be published in the Iris Oifigiúil.”.

8 .— (1) Subsection (1) of section 2 of the Act of 1999 is amended by the insertion in the definition of “transmission” of “subject to section 2A,” before “in relation to electricity”.

(2) The Act of 1999 is amended by the insertion of the following section after section 2:

“Position of interconnectors as respects transmission system.

2A.— (1) An interconnector owned by the Board shall be part of the transmission system.

(2) Subject to subsection (3) an interconnector owned by a person other than the Board shall not be part of the transmission system.

(3) Notwithstanding subsection (2), an interconnector owned by a person other than the Board shall be considered to be part of the transmission system for the purposes of calculating charges and imposing charges for use of the transmission system.”.

(3) Subsection (1) of section 14 of the Act of 1999 is amended—

(a) in paragraph (g) by the substitution of “distribution system operator,” for “distribution system operator, or”,

(b) in paragraph (h) by the substitution of “public electricity supplier, or” for “public electricity supplier”, and

(c) by the insertion after paragraph (h) of the following paragraph:

“(i) to transport electricity across and maintain an interconnector,”.

(4) Section 16 of the Act of 1999 is amended—

(a) by the substitution for subsection (1) of the following subsection:

“(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.”,

(b) by the substitution for subsection (3) of the following subsection:

“(3) Subject to section 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.”.

(5) The Act of 1999 is amended by the insertion after section 16 of the following section:

“Construction of an interconnector.

16A.— The Commission may, with the consent of the Minister, 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.”.

(6) Section 18 of the Act of 1999 is amended in subsection (1) by the insertion of “to construct or reconstruct a generating station” after “authorisation”.

(7) The Act of 1999 is amended by the insertion after section 34 of the following section:

“Terms for access to interconnector.

34A.— (1) Subject to subsection (3) the holder of a licence under section 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 of subsection (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 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 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.”.

9 .— The Act of 1999 is amended by the insertion after Part VI of the following part:

“PART VIA

Emergency Measures in Event of Sudden Crisis

Emergency measures.

40A.— (1) In the event of a sudden crisis in the energy market and where the physical safety or security of persons, apparatus or installations, or the integrity of the natural gas or electricity transmission system or the natural gas or electricity distribution system is threatened the Minister may by order direct—

(a) the Commission,

(b) the holder of a licence under section 14,

(c) a person referred to in section 10A(2)(b)(i), (ii), (iii) or (iv) of the Gas Act 1976 ,

to take such safeguard measures as the Minister considers necessary, and the person to whom the order is directed shall comply with the direction.

(2) In making an order under this section the Minister shall have regard to the objective that the measures subject to a direction under the order—

(a) should cause the least possible disturbance to the functioning of the internal market in gas or electricity, and

(b) are not wider in scope than is strictly necessary to remedy the sudden difficulties.

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

10 .— (1) The Act of 1999 is amended—

(a) by the renumbering of the Schedule to that Act as Schedule 1 to that Act, and

(b) in section 8(3) by substituting “Schedule 1” for “The Schedule”.

(2) Schedule 1 to the Act of 1999 (as renumbered by subsection (1)) is amended—

(a) in paragraph 2, by the deletion of “, to hold office in a full-time capacity for a period of not less than three and not more than five years”,

(b) by the insertion, after paragraph 2 of the following paragraphs:

“2A. Where the chairperson appointed pursuant to paragraph 2 is not available to perform his or her duties, the Minister may appoint another member of the Commission to be the acting chairperson of the Commission for a specified period not exceeding 6 months, and a person so appointed shall perform the duties and functions of the chairperson.

2B. Where there is more than one member of the Commission, each member of the Commission, including the chairperson, shall have a vote and any matter on which a decision is to be taken by the Commission shall be determined by a majority of the votes of the members of the Commission present when the vote is called and voting on the question and in the case of an equal division of votes the chairperson of the Commission appointed pursuant to paragraph 2 or 2A shall, if present and voting, have a second and casting vote.”,

(c) in paragraph 3 by the substitution of “A member of the Commission whose term of office expires” for “A member of the Commission, including the chairperson, whose term of office expires”,

(d) in paragraph 4 by the substitution of “two terms of office as a member” for “two terms of office”,

and

(e) in paragraph 25—

(i) by the substitution of the following for subparagraph (b):

“(b) submit accounts kept under subparagraph (a) in respect of each year to the Comptroller and Auditor General for audit and those accounts when so audited shall, together with—

(i) the report of the Comptroller and Auditor General thereon, and

(ii) a report of the Commission to the Minister in relation to the performance of its functions in the previous year,

be presented within 6 months of the end of the financial year to the Minister, who shall cause copies of the accounts, the report of the Comptroller and Auditor General, and the report of the Commission in relation to its functions to be laid before each House of the Oireachtas, and”,

and

(ii) by the substitution for subparagraph (c) of the following:

“(c) not later than 30 November in each year make a report to the Minister in relation to its proposed work programme for the following year and the Minister shall cause copies of the report to be laid before each House of the Oireachtas as soon as practicable.”.

¹O.J. L52, 21.2.2004, p.50