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(1) This Order may be cited as the Gas (Northern Ireland) Order 1996.
(2) This Order shall come into operation on such day or days as the Head of the Department may by order appoint .
(3) An order under paragraph (2) may contain such transitional or saving provisions as appear to the Head of the Department to be necessary or expedient.
(1) The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) In this Order—
“ the CMA ” means the Competition and Markets Authority;
“construction”, in relation to a pipe-line, includes placing;
“the Department” means the Department of Economic Development;
Definition rep. by 2003 NI 6
“government department” means a department of the Government of the United Kingdom or a Northern Ireland department;
“modifications” includes additions, omissions, amendments and substitutions;
“notice” means notice in writing;
“pipe-line” means a pipe (together with any apparatus and works associated therewith), or system of pipes (together with any apparatus and works associated therewith) for the conveyance of gas, not being—
a pipe or system of pipes constituting or comprised in apparatus for heating or cooling or for domestic purposes; or
a pipe or system of pipes wholly situated—
within the site of any apparatus or works to which certain provisions of the Factories Act (Northern Ireland) 1965 apply by virtue of section 125(1) of that Act (building operations and works of engineering construction);
within the boundaries of any land occupied as a unit for purposes of agriculture (within the meaning of the Agriculture Act (Northern Ireland) 1949), where the pipe or system of pipes is designed for use for purposes of agriculture; or
in premises used for the purposes of education or research;
“premises” includes any land, building or structure;
“prescribed” means prescribed by regulations;
“regulations” (except in Articles 22, 35 and 37) means regulations made by the Department;
“statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954.
(3) For the purposes of this Order the following apparatus and works, and no other, shall be treated as being associated with a pipe, or system of pipes, namely,—
(a) apparatus for inducing or facilitating the flow of gas through, or through a part of, the pipe or system;
(b) valves, valve chambers, manholes, inspection pits and similar works, being works annexed to, or incorporated in the course of, the pipe or system;
(c) apparatus for supplying energy for the operation of any such apparatus or works as are mentioned in sub-paragraph (a) or (b);
(d) apparatus for the transmission of information for the operation of the pipe or system;
(e) apparatus for affording cathodic protection to the pipe or system;
(f) a structure for the exclusive support of a part of the pipe or system.
(4) For the purposes of this Order the length of a pipe-line shall be taken to be the total length of pipe comprised in it; but where, in a system of pipes, a number of adjacent parallel lengths of pipe serve the same purpose as would be served by a single pipe of a diameter greater than that of any of those lengths, that number shall be taken to constitute a single pipe.
(5) For the purposes of this Order the execution of works in land for the purpose of determining whether or not it is suitable for the placing in it of a pipe-line and the carrying out of surveying operations for the purpose of settling the route of a proposed pipe-line shall be deemed not to constitute the execution of works for the construction of a pipe-line.
(1) In this Part—
“the 1973 Act” means the Fair Trading Act 1973;
“the 1980 Act” means the Competition Act 1980;
“ the 2011 Regulations ” means The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011;
“ the Authority ” means the Northern Ireland Authority for Utility Regulation;
“ 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;
“ the Directive ” means European Parliament and Council Directive 2009/73/EC concerning common rules for the internal market in natural gas as amended by European Parliament and Council Directive 2019/692;
“exemption” means an exemption under Article 7;
“gas plant” includes any plant, equipment, pipe-line or apparatus used for, or for purposes connected with, the conveyance, storage or supply of gas;
“gas storage facility” means any facility ... designed or adapted for the storage of gas in bulk (whether in a liquid state or not), but does not include—
a pipe or other conduit for the conveyance of gas; or
a facility that is an LNG facility;
“the General Consumer Council” means the General Consumer Council for Northern Ireland;
“information” includes accounts, estimates and returns;
“ LNG ” means liquid gas, and gas which has been, or is to be, treated in an LNG facility;
“ LNG facility ” means a terminal which is used for the liquefication of natural gas or the importation, offloading and regasification of LNG, and includes ancillary services and temporary storage necessary for the regasification process and subsequent delivery to a gas transmission system, but does not include any part of an LNG terminal used for storage;
“licence” means a licence granted under Article 8;
“licence holder” means the holder of a licence granted under Article 8;
“the Monopolies Commission” means the Monopolies and Mergers Commission ;
“ operate ” in relation to an LNG facility includes the carrying out of the functions of liquefication of natural gas or the importation, offloading and regasification of LNG;
“ vertically integrated undertaking ” has the meaning given in Article 2(20) of the Directive.
(2) In this Part “gas” means any substance which is in a gaseous state at a temperature of 15°C and a pressure of 1013.25 millibars and—
(a) consists wholly or mainly of methane; or
(b) is specified in an order made by the Department; or
(c) consists wholly or mainly of—
(i) a mixture of two or more substances falling within sub-paragraph (a) or (b); or
(ii) a combustible mixture of one or more such substances and air.
(3) This Part applies only in relation to gas supplied, or intended to be supplied, through pipes; and references in this Part to gas shall be construed accordingly.
(1) Subject to Article 7, a person who—
(a) conveys gas from one place to another;
(b) stores gas in a gas storage facility; . . .
(c) supplies gas to any other person or to any premises ; or
(d) operates an LNG facility,
shall be guilty of an offence unless he is authorised to do so by a licence.
(2) A person guilty of an offence under this Article shall be liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(3) No proceedings shall be instituted in respect of an offence under this Article except by or on behalf of the Department or the Director.
(6) For the purposes of this Order a person stores gas in a gas storage facility if (and only if) that person is the operator of that facility.
(1) The Department may, after consultation with the Authority , by order grant exemption from sub-paragraph (a), (b) , (c) or (d) of Article 6(1)—
(a) either to a person or to persons of a class;
(b) either generally or to such extent as may be specified in the order; and
(c) either unconditionally or subject to such conditions as may be so specified.
(2) An exemption granted to persons of a class, and the revocation of such an exemption, shall be published in such manner as the Department considers appropriate for bringing it to the attention of persons likely to be affected.
(3) An exemption, unless previously revoked in accordance with any term contained in the exemption, shall continue in operation for such period as may be specified in or determined by or under the exemption.
(4) Without prejudice to the generality of paragraph (1)(c), conditions included by virtue of that sub-paragraph in an exemption may require any person carrying on any activity in pursuance of the exemption—
(a) to comply with any direction given by the Department or the Authority as to such matters as are specified in the exemption or are of a description so specified;
(b) except in so far as the Department or the Authority consents to his doing or not doing them, not to do or to do such things as are specified in the exemption or are of a description so specified; and
(c) to refer for determination by the Department or the Authority such questions arising under the exemption as are specified in the exemption or are of a description so specified.
(4A) Without prejudice to the generality of paragraph (1)(c) an order under this Article shall specify such conditions as appear to the Department to be requisite or expedient to ensure that the activity authorised by the exemption is carried out in compliance with relevant requirements and prohibitions contained in any provision of assimilated law .
(4B) If any condition to which any exemption is subject in pursuance of paragraph (4A) is not complied with by any person who carries on an activity under the authority of the exemption, the Department may give to that person a direction declaring that the exemption is revoked so far as it relates to that person to such extent and as from such date as may be specified in the direction.
(5) If any condition of an exemption granted to persons of a class is not complied with by any person of that class, the Department may give to that person a direction declaring that the exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.
(1) A conveyance exemption holder may apply to the Authority for any distribution system through which gas is conveyed under his exemption to be classified as a closed distribution system.
(2) Where the Authority has received an application under paragraph (1) in relation to any distribution system, it must classify that system as a closed distribution system if the Authority considers that all of the following criteria are met, that is to say—
(a) the distribution system is not used for the purpose of supplying gas to household customers, or is used to supply fewer than 50 household customers who—
(i) are employees of, or work for or otherwise render services to, the conveyance exemption holder or a person related to the conveyance exemption holder; and
(ii) take a supply of gas that is wholly or mainly from a gas production site embedded in the distribution system;
(b) the distribution system is wholly or mainly used for distributing gas within a geographically self contained industrial, commercial or shared services site and is not integrated with any pipe-line system operated by the holder of a licence under Article 8(1)(a); and
(c) the distribution system is wholly or mainly used either—
(i) by system users whose businesses, for technical or safety related reasons, have operational or production premises that are integrated with those of other system users of that distribution system; or
(ii) for the purpose of supplying gas to premises owned or occupied by the conveyance exemption holder or by a person related to the conveyance exemption holder.
(3) An application under paragraph (1) must—
(a) identify the distribution system to which the application relates;
(b) include any evidence available to the applicant in support of the application; and
(c) provide any further information or documents that the Authority may request in respect of the application.
(4) The Authority must decide whether to classify a distribution system as a closed distribution system as soon as is reasonably practical after the Authority has received—
(a) the application under paragraph (1); and
(b) any further information or documents requested by it under paragraph (3)(c).
(5) The Authority must notify the person making the application under paragraph (1) of its decision as soon as is reasonably practicable after that decision has been made.
(1) Any condition specified in an order under Article 7(1)(c) in respect of a conveyance exemption which requires the approval of the Authority for the methodology of calculating a system charge in relation to a distribution system or which imposes any obligation on the holder of the exemption in relation to that approval, shall not apply in relation to any closed distribution system.
(2) Where the holder of a conveyance exemption who operates or has control of a closed distribution system receives an expression of interest from a customer who owns or occupies premises that are connected to the system, he must—
(a) inform that customer that the distribution system in question is a closed distribution system; and
(b) within 7 working days, beginning on the day on which he receives the expression of interest, by notice inform any third party supplier identified in the expression of interest that the distribution system in question is a closed distribution system.
(3) Where a customer has served an expression of interest in respect of a closed distribution system and—
(a) the customer, or a third party supplier identified in that expression of interest, serves a notice on the holder of the exemption relating to that distribution system requesting that the methodology for a proposed system charge be submitted to the Authority for approval; and
(b) at the time of receiving the request the holder of the exemption has not received any confirmation that the customer has entered into a contract with a third party, then paragraph (4) applies.
(4) From the time the holder of the conveyance exemption receives the request referred to in paragraph (3)(a), the conditions referred to in paragraph (1) shall have effect as if the distribution system in question were not a closed distribution system.
(5) Where a customer who owns or occupies premises that are connected to a closed distribution system has served a notice on the holder of a conveyance exemption relating to that system that he has entered into a contract with a third party supplier (“the confirmed third party supplier”) and—
(a) the customer or the confirmed third party supplier serves on the holder of the exemption a notice requesting that the methodology for use of the system charge that is being applied be submitted to the Authority for approval; and
(b) the methodology for calculating the charge has not previously been approved by the Authority,
paragraphs (6) to (11) apply.
(6) The holder of the exemption must, within 20 working days, beginning with the day on which he receives the request under paragraph (5)—
(a) provide the Authority with a charging statement in respect of the methodology for any system charge applied at the time the request was made and such other information or documents as the Authority may specify; and
(b) provide the customer and the confirmed third party supplier with a copy of that charging statement.
(7) Where the Authority has requested further documents or information in accordance with paragraph (6)(a) at a time when there are fewer than 10 working days remaining in the 20 working day period mentioned in that sub-paragraph, those further documents or information must be provided within 10 working days beginning with the day on which the holder of the exemption received the request for further documents or information.
(8) Where the holder of the exemption has complied with paragraph (6)(a), the Authority must as soon as is reasonably practicable—
(a) decide whether to approve the methodology set out in the charging statement; and
(b) notify the conveyance exemption holder and the confirmed third party supplier of its decision.
(9) Where the Authority does not approve the methodology, it must give reasons for that decision.
(10) Where the Authority has notified the holder of the exemption of a decision that it does not approve the methodology, that holder must not continue to impose a system charge except where the Authority has considered the methodology for such a charge and has approved it.
(11) Where the Authority has not approved a methodology submitted under paragraph (6), the holder of the exemption may—
(a) submit to the Authority a charging statement containing details of a revised methodology;
(b) provide the Authority with such other information and documents as the Authority may specify; and
(c) send a copy of the charging statement to the customer and the confirmed third party supplier.
(12) If the holder of the exemption takes the steps mentioned in paragraph (11), paragraphs (8) and (9) apply as if he had complied with paragraph (6).
(1) If, after a system has been classified as a closed distribution system, there is a change of circumstances which affects or might affect whether the system continues to meet the criteria set out in Article 7A(2), the holder of the exemption relating to the distribution system must notify the Authority of the change as soon as is reasonably practicable after it occurs.
(2) If the holder of the exemption wishes the system to continue to be classified as a closed distribution system, he must include in the notice an application to the Authority asking the Authority to confirm the classification.
(3) Any application under paragraph (2) must—
(a) identify the distribution system to which the application relates;
(b) include any evidence available to the applicant in support of the application; and
(c) provide any further information or documentation that the Authority may request in respect of the application.
(4) Where the Authority has received a notice under paragraph (1) it must as soon as is reasonably practicable either—
(a) revoke the classification; or
(b) confirm the classification if—
(i) the notice includes an application under paragraph (2);
(ii) the Authority has received any further information or documents requested by it; and
(iii) the Authority considers that the criteria set out in Article 7A(2) continue to be met.
(5) The Authority must notify the applicant of its decision under this Article as soon as is reasonably practicable after that decision has been made.
(1) In Article 7A to 7C—
“ charging statement ” in relation to a conveyance exemption holder who proposes to impose a system charge means a statement containing details of the proposed methodology for calculating the system charge;
“ closed distribution system ” means a system classified as such by the Authority under Article 7A(2);
“ conveyance exemption ” means an exemption from Article 6(1)(a) and “ conveyance exemption holder ” means a person who carries on an activity under the authority of the exemption;
“ customer ” means a person who purchases gas for the person's own consumption;
“ distribution system ” means a pipe-line system by means of which the person who operates or has control of the system conveys gas in circumstances such as that that person is carrying on an activity which amounts to the distribution of gas within the meaning given by Article 2(5) of the Directive;
“ expression of interest ” in relation to the holder of a conveyance exemption means a notice served on that holder by a customer who—
owns or occupies premises which are connected to any distribution system to which the exemption relates;
takes a supply of gas through that system from the holder or a person related to the holder,
which expresses the customer's interest in taking a supply of gas from a third party supplier through the system, which contains or is accompanied by evidence that at least one third party supplier would be willing to supply the customer with gas through that system and which identifies any such third party;
“ gas producer ” means a gas undertaking carrying out the function of production mentioned in Article 2(1) of the Directive;
“ gas production site ” means a site at which a person carries out an activity by virtue of which he is a gas producer;
“ household customer ” means a customer who purchases gas for consumption by the customer's own household;
“ system user ” in relation to a distribution system means—
a person supplying gas that is being conveyed by means of that distribution system; or
a customer who owns or occupies premises that are connected to that distribution system;
“ third party supplier ” in relation to a conveyance exemption holder means any person authorised by licence or exemption to supply gas who is not or is not related to the conveyance exemption holder;
“ system charge ” in relation to a conveyance exemption holder means a charge which—
is levied by the holder on a third party supplier identified in an expression of interest that has been served on the holder; and
is for use of the distribution system to which the expression of interest relates.
(2) For the purposes of Article 7A to 7C and the definitions in paragraph (1), a person (“A”) is related to another person (“B”) where A is—
(a) an undertaking in which B has a participating interest within the meaning of Section 421A of the Financial Services and Markets Act 2000;
(b) a holding company of B;
(c) a subsidiary of B; or
(d) a subsidiary of a holding company of B.
(3) For the purposes of paragraph (2), “holding company” and “subsidiary” are to be construed in accordance with section 1159 of the Companies Act 2006.
(1) The Authority may grant a licence authorising any person to do all or any of the following, namely—
(a) to convey gas from one place to another in an area authorised by the licence;
(b) to store gas in a specified gas storage facility;
(c) to supply gas to specified persons or premises ;
(d) to operate an LNG facility.
In this paragraph and paragraph (2) “specified” means specified in the licence, or of a class or description, or in an area, so specified.
(2) The Authority may—
(a) extend a licence granted under paragraph (1) (a) or (c) by increasing the area authorised by the licence; or
(b) extend a licence granted under paragraph (1)(b) by adding to the specified gas storage facilities;
(c) extend a licence granted under paragraph (1)(c) by adding to the specified persons or premises ;
(d) extend a licence granted under paragraph (1)(d) by adding to the specified LNG facility.
(3) An application for a licence or extension shall be made in the prescribed manner and shall be accompanied by such fee (if any) as may be prescribed; and within 14 days from the making of such an application, the applicant shall publish a copy of the application in the prescribed manner.
(4) Before granting a licence or extension under this Article, the Authority shall give notice—
(a) stating that the Authority proposes to grant the licence or extension;
(b) stating the reasons why it is proposed to grant the licence or extension; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence or extension may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(4A) A licence shall not be granted or extended unless the applicant therefor and, if appropriate, the construction or operation of any pipe-line , facility or associated apparatus used or to be used in connection with any activity carried out under the licence meets the published criteria.
(5) A licence or extension shall be in writing and, unless previously revoked in accordance with any term contained in it, a licence shall continue in force for such period as may be specified in or determined by or under the licence.
(6) As soon as practicable after granting or extending a licence, the Authority shall give notice stating that the licence or extension has been granted.
(7) A notice under paragraph (4) or (6) shall be given by publishing the notice in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the grant or extension of the licence.
(7A) Where . . . the Authority refuses to grant to any applicant a licence or an extension, the . . . Authority . . . shall by notice in writing—
(a) inform the person making the application of the fact;
(b) give him the reasons for that refusal; and
(c) inform him of any right to challenge the refusal.
(7B) In paragraph (4A) “ published criteria ” means criteria determined by the Department and published by it from time to time which are objective and non-discriminatory.
(7C) Paragraph (4A) shall not apply in relation to any—
(a) direct line used for a supply of gas to which Article 1 of the Commission Decision for the time being applies; or
(b) direct line, pipe-line or facility used for a supply of gas to which Article 2 of the Commission Decision for the time being applies.
(8) Neither the requirement to consult imposed by paragraph (1) nor paragraphs (3) and (4) shall apply to the granting of any licences which are granted in the period of 3 months beginning with the day on which this Article comes into operation.
(9) Any sums received by the Director under this Article shall be paid into the Consolidated Fund.
(1) A licence under Article 8(1)(a) may authorise the holder to participate in the conveyance of gas in any area, or only in an area specified in the licence.
(2) The Authority may, with the consent of the holder of a licence under Article 8(1)(a), modify any term included in the licence in pursuance of paragraph (1).
(3) Conditions included in a licence under Article 8(1)(a) by virtue of Article 10(1)(a) may (without prejudice to the generality of that sub-paragraph)—
(a) require the licence holder not to carry on an activity which he would otherwise be authorised by the licence to carry on; or
(b) restrict where he may carry on an activity which he is authorised by the licence to carry on.
(1) A person who conveys gas through a gas transmission pipe-line and holds a licence under Article 8(1)(a) immediately before the coming into operation of the 2011 Regulations must, on and after the relevant date, ensure that he is certified at all times when he acts under the authority of that licence.
(2) Any person who intends to convey gas through a gas transmission pipe-line and who is granted a licence under Article 8(1)(a) after the coming into operation of the 2011 Regulations must ensure that he is certified at all times when he acts under the authority of the licence.
(3) In paragraph (1) the “relevant date” in respect of a person is 3rd March 2012 or any later date before 4th March 2013 which the Authority specifies under paragraph (4) or (5) in respect of that person.
(4) The Authority may specify a later date in respect of a person if—
(a) the person has asked the Authority to specify a later date;
(b) the person is not, and is not part of, a vertically integrated undertaking; and
(c) no senior officer of the person is also a senior officer of a relevant producer or supplier.
(5) The Authority may also specify a later date in respect of a person if the Authority decides that, for reasons beyond its and the person's control, the Authority will not reasonably be able to make a final decision before 3rd March 2012 as to whether or not to certify the person.
(6) For the purposes of this Article, a person conveys gas through a gas transmission pipe-line where he—
(a) makes a gas transmission pipe-line available for use for the purposes of the conveyance of gas; or
(b) makes such a pipe-line available and coordinates and directs the flow of gas into and through such pipe-line.
(1) An application for certification must be made—
(a) in writing to the Authority; and
(b) before such date and in such form and contain such information as the Authority may specify in writing.
(2) If the application is made on or after 3rd March 2013 and the applicant is a person from a country outside the United Kingdom or a person controlled by a person from a country outside the United Kingdom, the Authority must notify the Department as soon as is reasonably practicable.
(3) The Authority may request from an applicant for certification any further information the Authority thinks is relevant to the application, and the applicant must supply that information if—
(a) it is in the applicant's possession or control; or
(b) it is information which the applicant could reasonably be expected to obtain.
(4) The Authority may request a relevant producer or supplier, and any related conveyance licensee, for any information the Authority considers relevant to an application for certification, and the person so requested must supply that information if—
(a) it is in his possession or control; or
(b) it is information which he could reasonably be expected to obtain.
(5) A person requested to supply information under paragraph (3) or (4) must do so by the date specified by the Authority in the request.
(1) This Article applies if the Department is notified by the Authority under Article 8C(2) that an application has been made by, or nominating as an independent system operator, a person from a country outside the United Kingdom or a person controlled by a person from a country outside the United Kingdom .
(2) The Department must prepare a report on whether the security of gas supplies in the United Kingdom ... would be put at risk by the certification of the applicant.
(3) In preparing the report, the Department must take into account—
(a) any relevant international law; and
(b) any relevant agreement between the government of the United Kingdom and the government of the ... country in question.
(4) The Department must send the report to the Authority within the 6 weeks beginning with the day on which the notification under Article 8C(2) is received by it.
(1) The Authority must, within the 4 months beginning with the day on which it receives an application for certification, make a ... decision as to whether to certify the applicant.
(2) If—
(a) the Authority has asked an applicant or a relevant producer or supplier or related conveyance licensee for information under Article 8C(3) or (4); and
(b) the information has not been supplied by the date specified by the Authority under Article 8C(5),
then the period of 4 months referred to in paragraph (1) shall be extended by the period of delay in supplying such information.
(3) As soon as is reasonably practicable after making the ... decision under paragraph (1), the Authority must notify the decision and the reasons for it to—
(a) the applicant;
(b) any related conveyance licensee; and
(c) the Department; ...
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The Authority must enclose with the notification under paragraph (3) (a) or (b) a copy of any report which the Department has prepared under Article 8D in respect of the applicant and which the Authority receives before giving the notification.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) The Authority must publish its decision to certify or refuse to certify the applicant, together with the reasons for it, in such manner as it considers appropriate.
(1) This Article applies to a decision under Article 8E as to whether to certify an applicant.
(2) Subject to paragraph (7), the Authority may only decide to certify the applicant if one of the following ... grounds (“the certification grounds”) applies.
(3) The first certification ground is that the ownership unbundling requirement in Article 8G is met in relation to the applicant and to any related conveyance licensee.
(4) The second certification ground is that—
(a) the applicant has applied for a derogation from the ownership unbundling requirement on the grounds in paragraphs (1) and (2) of Article 14 of the Directive (independent system operator);
(b) the applicant has nominated an independent system operator for designation in accordance with those paragraphs; and
(c) the Authority—
(i) has determined that the requirements of those paragraphs and of paragraphs (1) and (2) of Article 15 of the Directive (unbundling of transmission system owners and storage system operators) are met; and
(ii) is minded to designate the nominated independent system operator.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) The fourth certification ground is that the applicant has been granted an exemption (effective by virtue of the conditions which apply in his licence, or by way of exemption under Article 7(1)) ....
(7) The Authority may make a ... decision to certify an applicant where it is satisfied that the certification ground to which his application relates applies in the case of the applicant or would apply if particular qualification measures were taken and that—
(a) those qualification measures are within the powers of the Authority to impose under regulations 13 and 94 of the 2011 Regulations or any other powers of the Authority under this Order or the Energy (Northern Ireland) Order 2003, and the Authority is minded so to exercise those powers; or
(b) the Authority is otherwise satisfied that such qualification measures will be taken.
(8) But, regardless of whether a certification ground applies under paragraph (2), the Authority must not certify the applicant if a report prepared by the Department under Article 8D states that the certification of the applicant would put at risk the security of gas supplies in the United Kingdom.
(9) The references in paragraph (4) to Article 14(1) and (2) and 15(1) of the Directive are to be treated as references to those provisions with the following modifications—
(a) in paragraph (1) of Article 14 the reference to “Member State” in the first sentence is to be read as if it were a reference to the Authority;
(b) paragraph (1) of Article 14 is to be read as if the second and third sentences were omitted;
(ba) in paragraph (2) of Article 14 the reference to “Member State” is to be read as if it were a reference to the Authority;
(c) paragraph (2)(b) of Article 14 is to be read as if after “Article 13” there were inserted “as implemented in relation to Northern Ireland immediately before IP completion day, disregarding for this purpose—
(i) paragraph 2,
(ii) paragraph 3 so far as relating to Article 41(6)(c), and
(iii) paragraph 4 except as it relates to such minimum standards, if any, as apply in Northern Ireland”;
(d) paragraph (2)(e) of Article 14 is to be read as if—
(i) the words “Regulation (EC) No. 715/2009 ” were a reference to the Gas Regulation, and
(ii) the words from “including” to the end were omitted;
(e) paragraph (1) of Article 15 is to be read as if, in the second sentence, “pursuant to Article 33” were omitted.
(1) For the purposes of Article 8F(3), the ownership unbundling requirement is met by an applicant for certification or (as the case may be) a related conveyance licensee (“a relevant person”) if in relation to each of the five tests below—
(a) the Authority considers that it is passed; or
(b) it is treated as passed by virtue of paragraphs (5), (7) or (13A) .
(2) The first test is that the relevant person—
(a) does not control a relevant producer or supplier;
(b) does not have a majority shareholding in a relevant producer or supplier; and
(c) will not, on or after the relevant date (within the meaning of Article 8B(3)) exercise any shareholder rights it holds, or becomes the holder of, in relation to a relevant producer or supplier.
(3) For the purposes of paragraph (2)(c), the Authority is entitled to think that the relevant person will not exercise any shareholder rights it holds, or becomes the holder of, if the relevant person has given an undertaking that it will not exercise those shareholder rights.
(4) The second test is that the relevant person is not controlled by a person who controls a relevant producer or supplier.
(5) But even where the second test is not passed, the Authority is entitled to treat it as passed if—
(a) the control over the relevant person was gained through the exercise of a right conferred as a condition of the provision of financial support or a guarantee in relation to the relevant person's business; or
(b) the control over the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.
(6) The third test is that the relevant person is not controlled by a person who has a majority shareholding in a relevant producer or supplier.
(7) But even where the third test is not passed, the Authority is entitled to treat it as passed if—
(a) the control over the relevant person was gained through the exercise of a right conferred as a condition of the provision of financial support or a guarantee in relation to the relevant person's business; or
(b) the majority shareholding in the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.
(8) Where the Authority treats the second or third test as having been passed only by virtue of paragraph (5) or (7), it must specify a time limit after which it will cease to treat that test as having been passed; and it may extend the time limit if it thinks it necessary or expedient to do so.
(9) Paragraphs (10) and (11) apply where the Authority is entitled to treat the second or third test as having been passed only by virtue of paragraph (5) or (7).
(10) In deciding whether to treat the test as having been passed, the Authority—
(a) must take into account—
(i) whether the relationship (direct or indirect) between the relevant person and the relevant producer or supplier has led or might lead the relevant person to discriminate in favour of the relevant producer or supplier; and
(ii) the length of time for which that is likely to continue to be so; and
(b) may, in particular take into account any information or undertakings given to the Authority by the relevant person, the relevant producer or supplier or the person who controls the relevant person and controls or has a majority shareholding in the relevant producer or supplier.
(11) The information and undertakings that may be taken into account under paragraph (10)(b) include information and undertakings regarding any measures that have been or will be put in place to ensure the effective separation of the business of the relevant person and the business of the relevant producer or supplier.
(12) The fourth test is that, where the relevant person is a company, partnership or other business, none of its senior officers has been, or may be, appointed by a person who—
(a) controls a relevant producer or supplier other than an electricity generation undertaking or electricity supply undertaking; or
(b) has a majority shareholding in a relevant producer or supplier other than an electricity generation undertaking or electricity supply undertaking.
(13) The fifth test is that, where the relevant person is a company, partnership or other business, none of its senior officers is also a senior officer of a relevant producer or supplier other than an electricity generation undertaking or electricity supply undertaking.
(13A) The Authority may treat one or more of the five tests in this Article as passed if—
(a) the test or tests are not passed in relation to a relevant producer or supplier;
(b) the applicant has demonstrated to the Authority's satisfaction that the applicant does not have a relationship with the relevant producer or supplier which might lead the applicant to discriminate in favour of the relevant producer or supplier; and
(c) the Authority thinks it appropriate to treat the test or tests as passed.
(1) This Article applies for any period during which a person—
(a) holds a licence under Article 8(1)(a); and
(b) is certified.
(2) If the person is certified on the first ... certification ground in Article 8F, the Department shall designate that person as a gas transmission system operator for the purposes of the Gas Regulation .
(3) If the person is certified on the second certification ground in Article 8F, the Department shall designate the independent system operator nominated in the application for certification as a gas transmission system operator for the purposes of the Gas Regulation .
(4) As soon as is reasonably practicable after a person is designated by virtue of this Article, the Department must give notice of the designation to—
(a) the person so designated;
(b) the applicant (if different); and
(c) the Authority; ...
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Where, in the case of a person certified on the first certification ground, there is a related conveyance licensee, conditions included pursuant to Article 10A(1) in the licences under Article 8(1)(a) of the certified person and the related conveyance licensee may make provision for determining which of them is to act as transmission system operator for the purposes of any provision of the Gas Regulation and any designation under this Article is without prejudice to any such provision.
(1) The Authority must monitor, in respect of each certified person, whether the grounds on which the person was certified continue to apply.
(2) Where, for the purposes of certifying any person, the Authority has treated the second or third test in Article 8G as having been passed only by virtue of paragraph (5) or (7) of that Article, then where after the expiry of the time limit provided under paragraph (8) of that Article it has ceased to treat that test as having been passed by such virtue, the certification shall be withdrawn unless the Authority reviews the certification and is satisfied that the test in question is otherwise passed.
(3) If, on or after IP completion day , as a result of information it has received or obtained, the Authority considers that a person from a country outside the United Kingdom has taken or may take control of a certified person or a person designated as independent system operator, the Authority must, as soon as is reasonably practicable, notify the information to the Department ....
(4) The Authority may review the ... certification for any person if—
(a) the certified person or any related conveyance licensee notifies it of any event or circumstance which may affect the grounds on which that person was certified; or
(b) for any other reason the Authority considers that the grounds for the certification of that person may no longer apply.
(5) A review under paragraph (2) or (4) is to be carried out within the 4 months beginning with—
(a) if paragraph (4)(a) applies, the day on which the Authority receives the notification under that paragraph;
(b) if the review is in pursuance of paragraph (2), the expiry of the time limit referred to in that paragraph; or
(c) otherwise, the first day on which the Authority considers that the grounds for certification may no longer apply.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) But where the Authority considers that the circumstances giving rise to the review of the certification of any person under paragraph (4) ... represent or result from the contravention of a relevant condition or requirement for the purposes of Article 41 of the Energy (Northern Ireland) Order 2003, by a related conveyance licensee, the Authority may suspend the carrying out of the review while the Authority is taking steps in relation to such contravention pursuant to Part VI of that Order and during any period allowed to the related conveyance licensee for complying with any enforcement order.
(9) As soon as is reasonably practicable after beginning a review under this Article, the Authority must notify the certified person to whom the review relates and any related conveyance licensee that the review is being carried out and the reasons for it.
(10) The Authority may ask the certified person for any information the Authority thinks is relevant to the review, and the person must supply the information if—
(a) it is in the certified person's possession or control; or
(b) it is information which the certified person could reasonably be expected to obtain.
(11) The Authority may ask a relevant producer or supplier or related conveyance licensee for any information the Authority thinks is relevant to a review under this Article, and the relevant producer or supplier or related conveyance licensee must supply that information if—
(a) it is in the possession or control of the relevant producer or supplier or related conveyance licensee; or
(b) it is information which the relevant producer or supplier or related conveyance licensee could reasonably be expected to obtain.
(12) A person required to supply information under paragraph (10) or (11) must do so by any deadline specified by the Authority in the request.
(12A) If, before any of the deadlines mentioned in paragraph (5) (or before such deadline as previously extended under this paragraph), the Authority asks the certified person or a relevant producer or supplier for information under paragraph (10) or (11), the relevant deadline is the end of the 4 months beginning with the day on which the last of that information is received.
(1) This Article applies if the Department is notified by the Authority under Article 8I(3) that a person from a country outside the United Kingdom has taken or may take control of a certified person or (in relation to a certified person) a person designated as an independent system operator.
(2) The Department must prepare a report on whether the security of gas supplies in the United Kingdom ... would be put at risk by the continued certification of the person.
(3) In preparing the report, the Department must take into account—
(a) any relevant international law; and
(b) any relevant agreement between the government of the United Kingdom and the government of the ... country in question.
(4) The Department must prepare the report and send it to the Authority within the 6 weeks beginning with the day on which the notification is received.
(1) Where the Authority reviews under Article 8I whether the grounds for the certification of a person apply or continue to apply, it may, within the review period, make a ... decision ... —
(a) to continue the certification on the certification ground in question; or
(b) to withdraw the certification;
(2) If the Authority does not make a decision under paragraph (1) within the review period, it is to be taken as having decided at the end of the review period to continue the certification on the certification ground in question.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) As soon as is reasonably practicable after making the ... decision, the Authority must notify the decision and the reasons for it to—
(a) the person in relation to whom the review was carried out;
(b) any related conveyance licensee; and
(c) the Department; ...
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) If the ... decision is to continue the certification the person in question is to be taken as continuing to be certified by the Authority.
(8) Otherwise, the person is to be taken as no longer certified.
(8A) The Authority must publish its decision to continue a certification, or to withdraw a certification, together with the reasons for it, in such manner as it considers appropriate.
(9) Article 8F(8) applies in relation to a decision mentioned in this Article as it applies in relation to a decision mentioned in Article 8F(1), but as if the reference in Article 8F(8) to a report under Article 8D were a reference to a report under Article 8J.
(1) In Articles 8B to 8K and this Article—
“ certification ground ” shall be construed in accordance with Article 8F(2);
“ certified ” means, in relation to any person, certified in accordance with Article 8E or continued to be certified in accordance with Article 8K;
“ control ”, in relation to one person having control over another, has the meaning given in Article 2(36) of the Directive, but in determining whether one person (“person A”) controls another person (“person B”) no account is to be taken of any power to exercise a contractual or other right which would give person A decisive influence over person B where the right was conferred as a condition of the provision of any financial support or guarantee by person A in relation to the business of person B; and references to one person controlling another are to be interpreted accordingly;
“ electricity generation undertaking ” means a person who generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;
“ electricity supply undertaking ” means a person who supplies electricity to any premises;
“ gas producer ” means a gas undertaking carrying out the function of production mentioned in Article 2(1) of the Directive;
“ gas supply undertaking ” means a person who sells gas to one or more customers, including by the supply to any premises of gas which has been conveyed to those premises through pipes;
“ the Gas Regulation ” means Regulation ( EC ) No. 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation ( EC ) No. 1775/2005 ;
“ gas transmission pipe-line ” means a gas pipe-line used for the purposes of transmission within the meaning of the Directive;
“ licence ” means—
in relation to an electricity generation undertaking or an electricity supply undertaking, a licence under Article 10(1)(a) or (c) of the Electricity (Northern Ireland) Order 1992; and
in relation to a gas supply undertaking, a licence under Article 8(1)(c);
“ majority shareholding ” means a simple majority of shares;
“ person from a country outside the United Kingdom ” means any person the Authority thinks is a person from a country outside the United Kingdom ;
“ qualification measures ” in relation to an applicant for certification, means measures taken or arrangements made to ensure that the certification ground to which his application relates applies in his case;
“ related conveyance licensee ” means, in relation to an applicant for certification or a certified person, any other person (including a person nominated or designated as independent system operator for the purposes of the second certification ground) who—
holds; or
in the case of an applicant for certification would, pursuant to any qualification measures proposed in the application, hold, a licence under Article 8(1)(a) under which that person co-ordinates, and directs, the flow of gas into and through a gas transmission pipe-line of the applicant or certified person;
“ review period ” in relation to a review under Article 8I means the period specified in paragraph (5) ... of that Article as extended, if appropriate, by—
any period of suspension under paragraph (8) of that Article, or
the 4 months mentioned in paragraph (12A) of that Article;
“ senior officer ” means—
in relation to a company, a director;
in relation to a partnership, a partner;
in relation to any other business, a person holding a position equivalent to that of a director or partner;
“ shareholder right ”, in relation to a company, means a right conferred by the holding of a share in the company's share capital—
to vote at general meetings of the company; or
to appoint or remove a member of the company's board of directors;
...
(2) In Articles 8B to 8K and this Article, “ relevant producer or supplier ”, in relation to an applicant for certification or a certified person, means—
(a) an electricity generation undertaking, an electricity supply undertaking or a gas supply undertaking which meets the requirements of paragraph (3); or
(b) a gas producer which meets the requirements of paragraph (4).
(3) An undertaking mentioned in paragraph (2)(a) meets the requirements of this paragraph if it carries out its generation or supply activity in a country outside the United Kingdom and it—
(a) requires a licence or similar authority to do so;
(b) would, in the Authority's opinion, require a licence to do so if it carried out the activity in Northern Ireland; or
(c) has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of it.
(4) A gas producer meets the requirements of this paragraph if it—
(a) carries out its production activity in a country outside the United Kingdom ; and
(b) has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of it.
(1) A licence granted under Article 8(1)(a) or (c) may, if the grantor having regard to the duties imposed by Article 14 of the Energy (Northern Ireland) Order 2003 considers it appropriate, confer on the holder of the licence, for a period specified in the licence, exclusive authority to carry on designated activities.
(1A) The period specified in a licence under paragraph (1) shall, in relation to any designated activities, expire—
(a) where the activities are designated by reference to a class or description of activities, not later than the twentieth anniversary of the commencement of any of those activities under the licence; and
(b) where the activities are designated by reference to an area, not later than the twentieth anniversary of the first supply of gas to customers in the area.
(2) In this Article, in relation to a licence—
“designated activities” means such of the activities authorised by the licence as are designated in the licence for the purposes of this Article, and activities may be so designated by reference to a class or description of activities or by reference to any area in which they are authorised to be carried on by the licence;
“specified period” means the period specified in the licence under paragraph (1) or substituted for that period under paragraph (5)(a) or (7)(a).
(3) Subject to Article 9A, where a licence granted under Article 8(1)(a) or (c) confers on the holder exclusive authority to carry on designated activities, no other licence shall be granted under Article 8(1)(a) or (c) so as to authorise any other person to carry on any such designated activities in the specified period.
(4) Conditions included under Article 10(1)(a) in a licence conferring on the holder exclusive authority to carry on any designated activities may make special provision in relation to the carrying on of such activities within the specified period.
(5) Where the grantor is satisfied on reasonable grounds that the holder of a licence conferring exclusive authority to carry on designated activities has contravened any relevant condition of his licence, the grantor may modify the licence—
(a) so as to substitute for the specified period such shorter period as the grantor may determine;
(b) so as to exclude from those activities which are designated activities for the purposes of this Article such activities as the grantor may determine; or
(c) so as to remove from the licence those provisions which confer exclusive authority to carry on designated activities.
(6) In paragraph (5) “relevant condition” means a condition of the licence (whether one included by virtue of paragraph (4) or not) which is identified in the licence as a relevant condition for the purposes of this Article.
(7) The grantor may, with the consent of the holder of a licence conferring exclusive authority to carry on designated activities, modify the licence—
(a) so as to substitute for the specified period such longer period as the grantor may determine;
(b) so as to add to those activities which are designated activities for the purposes of this Article such other activities as the grantor may determine.
(7A) The grantor may not under paragraph (7)(a) substitute a longer period than that allowed under paragraph (1A) unless the grantor is satisfied that it is necessary or expedient to do so in the interests of the efficient operation of the designated activities.
(8) Before making any modifications under paragraph (5) or (7) the grantor shall give notice—
(a) stating that the grantor proposes to make the modifications and setting out their effect;
(b) stating the reasons why the grantor proposes to make the modifications; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are so made and not withdrawn.
(9) A notice under paragraph (8) shall be given—
(a) by publishing the notice in such manner as the grantor considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and
(b) by sending a copy of the notice to the holder of the licence.
The prohibition in Article 9(3) does not apply to the grant by the Department or the Authority of a licence under Article 8(1)(c) authorising the holder to supply a customer where the gas is supplied and conveyed through a direct line.
(1) A licence may include—
(a) such conditions (whether or not relating to the activities authorised by the licence) as appear to the grantor to be requisite or expedient having regard to the duties imposed by Article 14 of the Energy (Northern Ireland) Order 2003 ; and
(b) conditions requiring the rendering to the grantor of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.
(2) Without prejudice to the generality of paragraph (1)(a), conditions included in a licence by virtue of that sub-paragraph—
(a) may require the licence holder to enter into agreements with other persons for the use of any gas plant owned, leased or operated by him (wherever situated and whether or not used for the purpose of carrying on the activities authorised by the licence) for such purposes as may be specified in the conditions; and
(b) may include provision for determining the terms on which such agreements are to be entered into.
(3) Without prejudice to the generality of paragraph (1)(a), conditions included in a licence by virtue of that sub-paragraph may require the licence holder—
(a) to comply with any direction given by the Department or the Director as to such matters as are specified in the licence or are of a description so specified;
(b) except in so far as the Department or the Director consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;
(c) to refer for determination by the Department or the Director such questions arising under the licence , or under any document referred to in the licence, as are specified in the licence or are of a description so specified;
(d) to refer for approval by the Department or the Director such things falling to be done under the licence, and such arrangements, contracts or agreements made before the grant of the licence, as are specified in the licence or are of a description so specified; and
(e) to provide the Department or the Director with, or publish, such information relating to the activities authorised by the licence as appear to the Department or the Director to be requisite or expedient having regard to the duties imposed by Article 14 of the Energy (Northern Ireland) Order 2003 .
(3A) Conditions included in a licence Article 8(1)(a) by virtue of paragraph (1)(a) may require the holder, in such circumstances as are specified in the licence—
(a) so to increase his charges in connection with the conveyance of gas as to raise such amounts as may be determined by or under the conditions; and
(b) to pay the amounts so raised to such persons as may be so determined.
(4) Conditions included in a licence under paragraph (1)(a) may—
(a) instead of specifying or describing any arrangements, contracts or agreements to which they apply, refer to arrangements, contracts or agreements designated (whether before or after the imposition of the conditions) by the Department or the Director; and
(b) instead of containing any provisions which fall to be made, refer to provisions set out in documents so designated and direct that those provisions shall have such effect as may be specified in the conditions.
(5) Conditions included in a licence may contain provision for the conditions—
(a) to have effect or cease to have effect at such times and in such circumstances as may be determined by or under the conditions; or
(b) to be modified in such manner as may be specified in the conditions at such times and in such circumstances as may be so determined.
(6) Any provision included under paragraph (5) in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.
(6A) Conditions included in a licence may provide for references in the conditions to any document to operate as references to that document as revised or re-issued from time to time.
(7) Any sums received by the Director in consequence of any condition of a licence shall be paid into the Consolidated Fund.
(1) The conditions included in a licence must—
(a) ensure that the licence holder and, if appropriate, any activity authorised by the licence and the construction or operation of any pipe-line, facility or associated apparatus used in connection with that activity meets the published criteria referred to in Article 8(7B);
(b) require the licence holder to develop and publish technical safety criteria and rules which are objective and non-discriminatory;
(c) require the licence holder to keep accounts in accordance with requirements corresponding to the requirements in Article 31 of the Directive and to have them audited in accordance with those requirements and must confer on the Department and the Authority a right of access to the licence holder's accounts for the purpose of ensuring compliance with those requirements.
(2) For the purposes of paragraph (1)(c), the reference to Article 31 of the Directive is to be read as a reference to that Article with the modifications that—
(a) in paragraph (2), in the first sub-paragraph, the words from “adopted pursuant” to the end are omitted; and
(b) in paragraph (3), the third sentence is omitted.
(3) Conditions included in a licence under Article 8(1)(a) must, having regard to the activities authorised by the licence, require the holder—
(a) where the holder balances gas inputs to and offtakes from any pipeline used under the licence, to adopt, follow, and make publicly available, rules which are objective, transparent and non-discriminatory;
(b) to procure energy used for carrying out the holder's functions in accordance with procedures which are transparent, non-discriminatory and market based;
(c) where appropriate in relation to the holder's circumstances, to carry out tasks corresponding to the tasks mentioned in Article 25(1) of the Directive;
(d) to refrain from discriminating between persons or classes of person using or intending to use any pipe-line, facility or associated apparatus operated for the purposes of the licence;
(e) to provide such persons with the information they need for efficient access to and use of the system;
(f) to provide any other licence holder mentioned in Article 25(3) of the Directive with sufficient information to achieve an outcome that corresponds to the outcome mentioned in that provision;
(g) to comply with requirements for system access corresponding to the requirements mentioned in Article 32 of the Directive (as read with Article 2 of the Commission Decision);
(ga) to comply with requirements for access to upstream pipeline networks, and requirements about the manner in which that access is to be provided, corresponding to the requirements mentioned in Article 34(1) and (2) of the Directive;
(h) to take any measures necessary for the purpose of ensuring that information necessary for effective competition and for the effective functioning of the market is made public;
(i) to facilitate (to the extent within the holder's control) the ability of customers to change suppliers within 3 weeks;
(j) to facilitate (to the extent within the holder's control) the ability of customers to have access to consumption data.
(4) For the purposes of paragraph (3)(g), the reference to Article 32 of the Directive is to be read as a reference to that Article with the modifications that—
(a) for references to “Member States” there were substituted references to “ the Department ” ;
(b) in paragraph (1), for the words “in accordance with Article 41 by a regulatory authority referred to in Article 39(1)” there were substituted “ by the Authority ” ;
(c) in paragraph (3), for the reference to “Community competition rules” there were substituted a reference to “ assimilated law relating to competition ” .
(4A) For the purposes of paragraph (3)(ga)—
(a) “upstream pipeline networks” has the meaning given in Article 2(2) of the Directive; and
(b) the references to Article 34(1) and (2) of the Directive are to be read as references to those provisions with the following modifications—
(i) references to “Member States” are to be read as references to “the Department”;
(ii) in Article 34(1) the last sentence is to be omitted; and
(iii) in Article 34(2)(d), the reference to “Community law” is to be read as a reference to “ assimilated law”.
(5) Conditions included in a licence under Article 8(1)(a) must—
(a) provide for the Authority to approve, in advance of their coming into operation, any terms and conditions—
(i) for the connection and access to any pipe-line, facility or associated apparatus operated by the holder for the purposes of the licence including but not limited to the tariffs, or the method of determining the tariffs for such connection or access; and
(ii) for the provision of any balancing services; and
(b) provide that where the licence holder enters into a contract directly with a household customer (within the meaning given in Article 7D) for the provision to that customer of services under the licence, or makes arrangements in pursuance of which a household customer enters into a contract with another person for a supply of gas to that customer, then to the extent that this is within the licence holder's control—
(i) the terms and conditions of any such contract comply with requirements which correspond to those mentioned in points (a) and (d) of paragraph 1 of Annex I to the Directive; and
(ii) requirements corresponding to those mentioned in points (b), (c) and (g) of paragraph 1 of Annex I to the Directive are complied with in relation to the customer.
(6) For the purposes of paragraph (5)(b)(ii), point (g) of paragraph 1 of Annex I to the Directive is to be read as if for the words “the national legislation applicable” there were substituted “ the Gas (Northern Ireland) Order 1996 ” .
(7) The conditions included in a licence under Article 8(1)(a) granted to a person forming part of a vertically integrated undertaking must—
(a) require that person to continue to be independent in terms of that person's legal form, organisation and decision-making in relation to that person's activities under the licence and to comply with requirements corresponding to those mentioned in Article 26(2) of the Directive for independence in terms of organisation and decision making, in particular the minimum criteria laid down thereby and to comply with requirements corresponding to the requirements in relation to communication and branding mentioned in Article 26(3) of the Directive; and
(b) if the person carries on combined activity as the holder of a licence under Article 8(1)(a), (b), (c) and (d), require that person to comply with requirements corresponding to those mentioned in Article 29 of the Directive for independence in terms of legal form, organisation and decision making in relation to activities under the licence.
(8) Paragraph (7)(a) does not prevent a person from acting as the holder of a licence of more than one type under Article 8(1).
(9) For the purposes of paragraph (7)—
(a) Article 26(2) of the Directive is to be read as if—
(i) in point (c), for the words “in accordance with Article 41(6)”, there is substituted “ by the Authority ” ;
(ii) in point (d), for the words “to the regulatory authority referred to in Article 39(1)”, there is substituted “ to the Authority ” ;
(b) Article 26(3) of the Directive is be read as if for the words from “the Member States” to “or other competent bodies” there were substituted “ the Authority must monitor all the activities of the distribution system operator ” .
(10) Paragraph (7)(a) does not apply in the case of a licence holder who does not supply gas to persons or premises, but who conveys gas from one place to another through one or more pipeline systems to which there are fewer than 100,000 premises connected.
(11) The conditions included in a licence under Article 8(1)(a) must—
(a) where the holder, or a person who holds a licence under Article 8(1)(a) in relation to whom the holder is a related conveyance licensee, is certified under the first certification ground in Article 8F, require the ownership unbundling requirement in Article 8G to continue to be met in relation to the holder;
(b) where the holder is certified under the second certification ground in Article 8F or is designated as independent system operator for the purposes of that certification ground—
(i) require that requirements corresponding to those mentioned in Articles 14(1) and (2) and 15(1) and (2) of the Directive which are relevant to the holder continue to be met; and
(ii) require that requirements corresponding to those mentioned in Article 14(4) or 14(5) of the Directive which are relevant to the holder continue to be met; and
(c) require the holder to notify the Authority if any of the other conditions referred to in this paragraph ceases or is likely to cease to be met.
(12) For the purposes of paragraph (11)—
(a) the references to Article 14 are to be read as references to that provision as if it contained the modifications in Article 8F(9) of this Order;
(b) Article 14(4) is to be read as if the words “in accordance with this Chapter” were omitted;
(c) Article 14(5) and 15(2) are to be read as if references to “the regulatory authority” were references to “the Authority”;
(d) paragraph (1) of Article 15 is to be read as if, in the second sentence, “pursuant to Article 33” were omitted;
(e) item (c) in Article 15(2) is to be read as if for the words “in accordance with Article 41(6)”, there were substituted “ by the Authority ” .
(13) The conditions included in a licence under Article 8(1)(a), as appropriate having regard to the activities authorised by the licence, must require the holder to carry out tasks corresponding to those mentioned in Article 13(1) of the Directive.
(14) The conditions included in a licence under Article 8(1)(b) must require the holder, as appropriate, having regard to the activities authorised by the licence—
(a) to carry out tasks corresponding to the tasks mentioned in Article 13(1) of the Directive;
(b) to comply with requirements corresponding to the requirements for access to storage mentioned in Article 33 of the Directive in accordance with criteria published by the Authority; and
(c) where the person forms part of a vertically integrated undertaking, to comply with requirements corresponding to those mentioned in Article 15 of the Directive concerning independence in terms of legal form, organisation and decision-making in relation to its activities under the licence and, in particular, to comply with minimum criteria corresponding to those mentioned in Article 15(2) of the Directive.
(15) For the purposes of paragraph (14)—
(a) the reference to Article 15 of the Directive is to be read as a reference to that Article with the modifications set out in paragraph (12)(c), (d) and (e);
(b) Article 33 is to be read as if—
(i) in paragraph (1), the reference to “Member States” in the first sub-paragraph were a reference to the Department;
(ia) in paragraphs (1), (3) and (4), any reference (however expressed) to “the regulatory authorities where Member States have so provided or Member States” were a reference to the Authority;
(ii) in paragraph (1), the third sub-paragraph were omitted;
(iii) in paragraph (3), in the second sub-paragraph the words from “by 1 January 2005” were a reference to “on an annual basis”.
(16) The conditions included in a licence under Article 8(1)(c) must—
(a) require the introduction and maintenance of safeguards to help any consumers referred to in Article 14(3) of the Energy (Northern Ireland) Order 2003 and individuals who are consumers in rural areas in particular to avoid disconnection from the gas pipe-line system;
(b) ensure that consumers of gas have access to information (including information about the contractual terms and conditions offered to such consumers);
(c) ensure that all customers can exercise their freedom to purchase gas from the supplier of their choice;
(d) ensure that persons exercising that freedom are not charged therefor and are able to use transparent, simple and inexpensive complaints procedures;
(e) require that information provided to consumers of gas (including information about the contractual terms and conditions offered to such consumers) by the holder of the licence are sufficiently transparent to enable the consumer to exercise that freedom;
(f) make provision for customers wishing to change suppliers to be able to do so within 3 weeks;
(g) ensure that customers have consumption data at their disposal and are able to give access to that data to other suppliers;
(h) ensure that customers have access to information about sources of energy efficiency advice;
(i) require that the holder of the licence provides its customers with a copy of the guidance which is to be published by the Authority pursuant to Article 7(5) of the Energy (Northern Ireland) Order 2003;
(j) ensure that household customers are offered a wide choice of payment methods which do not unduly discriminate between customers;
(k) ensure that the terms and conditions of supply contracts offered by the licence holder to household customers comply with requirements corresponding to those mentioned in points (a) and (d) of paragraph 1 of Annex I to the Directive;
(l) make provision for customers to be protected from unfair or misleading selling methods;
(m) ensure that household customers receive a final bill following changing suppliers no later than six weeks from the date on which the change occurs; and
(n) ensure that the holder of the licence for at least five years maintains records of data corresponding to that required by Article 44 of the Directive.
(17) Conditions included in a licence under Article 8(1)(d) must require the holder as appropriate having regard to the activities authorised by the licence—
(a) to carry out tasks corresponding to the tasks mentioned in Article 13(1) of the Directive;
(b) to keep accounts in terms corresponding to the requirements of Article 31 of the Directive and to have them audited in a manner corresponding to those requirements; and
(c) to comply with requirements for access to LNG facilities corresponding to those mentioned in Article 32 of the Directive (as read with Article 2 of the Commission Decision).
(18) Conditions included in a licence under Article 8(1)(d) must confer on the Department or the Authority a right of access to the licence holder's accounts for the purposes of ensuring compliance with the requirements mentioned in paragraph (17).
(19) For the purposes of paragraph (17)—
(a) the reference to Article 31 of the Directive is to be read as a reference to that Article with the modifications set out in paragraph (2);
(b) the reference to Article 32 of the Directive is to be read as a reference to that Article with the modifications set out in paragraph (4).
(20) Conditions included in a licence under Article 8(1) must ensure that the holder—
(a) does not disclose commercially sensitive information obtained in the course of carrying out its business, except in accordance with a legal duty to disclose information; and
(b) prevents information about its own activities which might be commercially advantageous from being disclosed in a discriminatory manner.
(1) Where any licence under Article 8(1)(a) or (d) is subject to a relevant condition, the holder of such a licence may apply to the Authority for an exemption under this Article with respect to the system or any part of the system to which the condition applies.
(2) An application under paragraph (1) may be sent to the Authority only after a person has applied for access to the system or part of the system in question in accordance with a relevant condition.
(3) Such an application may be made before or after the holder of the licence has refused access.
(4) An application made after such a refusal must, however, be made before the end of the 7 days beginning with the date of the refusal.
(5) An application under paragraph (1) may only be made if the holder of the licence considers that allowing the application for system access would cause serious financial difficulties because of take or pay commitments of the licence holder under one or more gas purchase contracts.
(6) An application under paragraph (1) must enclose all relevant information, including in particular information with respect to—
(a) the nature and extent of the difficulties mentioned in paragraph (5) which the holder of the licence considers would arise (“the difficulties”);
(b) any steps taken by the holder of the licence to prevent the difficulties from arising; and
(c) the period over which the holder considers the difficulties would arise.
(7) The Authority may give an exemption under this Article if it considers that—
(a) having regard to any steps taken by the holder of the licence to prevent the difficulties from arising, the only reasonably available means of prevention is an exemption under this Article; and
(b) an exemption ought to be given having regard to—
(i) the objective of achieving a competitive gas market;
(ii) the need for the holder to comply with any relevant public service obligations which apply to the holder ;
(iii) the need to ensure security of supply of gas;
(iv) the position of the holder of the licence in the gas market and the level of competition in the market;
(v) the level of seriousness of the difficulties;
(vi) the time when the gas purchase contract was entered into and the extent to which the holder could reasonably have foreseen at that time that the difficulties were likely to arise;
(vii) the terms of the gas purchase contract, including the extent to which the contract allows for market changes;
(viii) the significance of the system or part of the system to which the application under paragraph (1) applies; and
(ix) the overall effect of the exemption on the operation of an economically efficient gas market.
(8) An exemption under this Article must be given for a limited period and in writing and must specify—
(a) the period of the exemption; and
(b) any conditions the Authority considers necessary in order to ensure that the holder of the licence to whom the exemption is granted takes all reasonably practical steps to ensure that, by the time that the exemption expires, the difficulties would no longer arise.
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(10) An exemption under this Article may be modified or revoked by the Authority—
(a) in accordance with its provisions;
(b) at any other time, if the Authority considers that an exemption under this Article is no longer required.
(10A) An obligation is a public service obligation for the purposes of this Article if—
(a) it is imposed by or under a statutory provision, and
(b) the provision is identified in a notice issued by the Department as a provision imposing or enabling the imposition of, a public service obligation within the meaning of Article 3(2) of the Directive (as it had effect immediately before IP completion day).
(10B) For the purposes of paragraph (10A), the reference to Article 3(2) is to be read as if the reference in that provision to natural gas undertakings of the Community were a reference to natural gas undertakings of the United Kingdom.
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(12) In this Article,
(a) “ relevant condition ” means a condition included in a licence under Article 10A(3) or (17) and relating to compliance with the requirement for system access laid down by Article 32 of the Directive; and
(b) “ system ” includes in relation to the holder of a licence under Article 8(1)(d) an LNG facility;
(c) “take or pay commitment” and “ gas purchase contract ” has the same meaning as in Article 48(1) of the Directive.
(1) Subject to paragraph (5), where a customer of the holder of a licence granted under Article 8(1)(c) takes a supply of gas through a smart meter, the conditions included in that licence must require the holder of the licence to ensure that—
(a) the meter complies with standards corresponding to those set out in Article 9(2)(a) and 10(2) of the Energy Efficiency Directive and where the customer so requests, Article 9(2)(c) of that Directive;
(b) the customer is provided with the information specified in Article 9(2)(a) and 10(2) of the Energy Efficiency Directive;
(c) the customer is provided with the information specified in Article 10(2)(b) of the Energy Efficiency Directive in the manner mentioned in that provision;
(d) where the customer so requests, the customer or another person acting on the customer's behalf is provided with the information specified in Article 9(2)(d) of the Energy Efficiency Directive in the manner mentioned in that provision;
(e) the meter is physically secure and any information provided by it is held in a manner that complies with the requirements of any relevant legislation relating to data protection; and
(f) advice and information specified in Article 9(2)(e) of the Energy Efficiency Directive is provided to the customer.
(2) For the purposes of paragraph (1)(b) and (c), the reference to Article 10(2) of the Energy Efficiency Directive is to be read as a reference to that Article with the modifications that—
(a) the words “installed in accordance with Directives 2009/72/EC and 2009/73/EC ” are to be omitted; and
(b) the reference to “Member States” is to be read as a reference to “the Authority”.
(3) Where a customer of the holder of a licence under Article 8(1)(c) does not take a supply of gas through a smart meter, the conditions included in that licence must require the holder of the licence to ensure that any bill or statement of account provided to the customer is accurate and based on actual consumption and that the information specified in paragraph 1.1 of Annex VII to the Energy Efficiency Directive is provided to the customer in the manner specified in that provision.
(4) The conditions included in a licence under Article 8(1)(c) must require the holder of the licence to ensure that—
(a) where a customer so requests, the information specified in Article 10(3)(a) of the Energy Efficiency Directive is provided to an energy service provider designated by the customer;
(b) any bill or statement of account sent to the customer—
(i) contains the information specified in Article 10(3)(c) of and paragraph 1.2 and 1.3 of Annex VII to the Energy Efficiency Directive;
(ii) complies with any guidance issued and published by the Authority; and
(iii) where the customer so requests, is provided in an electronic format;
(c) where a customer so requests, the information specified in Article 10(3)(b) of the Energy Efficiency Directive is provided to the customer;
(d) any customer taking a supply of gas from the licence holder is provided with the information specified in paragraph 1.3 of Annex VII to the Energy Efficiency Directive in contract documentation;
(e) any information provided to a customer in accordance with conditions included under this paragraph is provided in a timely manner and in an easily understandable format enabling customers to compare deals on a like-for-like basis;
(f) a charge is not made in respect of any bill or statement of account sent to a customer or in respect of any information provided to the customer (whether in the bill or statement of account or otherwise).
(5) The duty on the Authority in paragraph (1) to include conditions in a licence only has effect where the Department—
(a) has determined that it is technically possible, financially reasonable and proportionate in relation to the potential energy savings to implement a programme for the widespread provision of smart meters; and
(b) notifies the Authority in writing to that effect.
(6) In this Article—
(a) “ the Energy Efficiency Directive ” means the European Parliament and Council Directive 2012/27/EU on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC ;
(b) “ smart meter ” means—
(i) a gas meter which can send and receive information using an electronic communications network; or
(ii) a gas meter and a device which is associated with or ancillary to that meter and which enables information to be sent and received by the meter using an electronic communication network;
(c) “ electronic communications network ” has the same meaning as in section 32 of the Communications Act 2003; and
(d) other expressions which are also used in the Energy Efficiency Directive have the same meaning as in that Directive.
(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) , (c) or (d) of Article 8(1) shall be standard conditions for the purposes of licences under that sub-paragraph.
(1A) The standard conditions for the purposes of licences under sub-paragraph (a), (b) , (c) or (d) of Article 8(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.
(2) Subject to Articles 14(1)(b) and 18(2) and to Article 60(5) of the Energy (Northern Ireland) Order 2003 and to section 89 of the Energy Act 2023 , each condition which by virtue of paragraph (1) is a standard condition for the purposes of licences under sub-paragraph (a), (b) , (c) or (d) of Article 8(1) shall be incorporated (that is to say, incorporated by reference) in each licence under that sub-paragraph.
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(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.
(1) A licence shall be capable of being assigned either generally or—
(a) in the case of a licence under Article 8(1)(a), so far as relating to the whole or any part of an authorised area;
(b) in the case of a licence under Article 8(1)(b), so far as relating to any specified gas storage facility;
(c) in the case of a licence under Article 8(1)(c), so far as relating to any specified persons or premises ;
(d) in the case of a licence under Article 8(1)(d), so far as relating to any specified LNG facility,
but only if it includes a condition authorising such assignment.
In this paragraph “specified” means specified in the licence, or of a class or description, or in an area, so specified.
(2) A licence shall not be capable of being assigned except with the consent of the Director.
(3) In deciding whether to give his consent under paragraph (2), the Director shall apply the same criteria as he would apply if—
(a) in the case of a general assignment, he were deciding whether to grant a corresponding licence to the assignee;
(b) in the case of any other assignment, he were deciding whether—
(i) to grant to the assignee a licence corresponding to so much of the licence as is proposed to be assigned; and
(ii) to grant to the assignor a licence corresponding to so much of the licence as is proposed to be retained.
(4) Subject to paragraph (5), a consent under paragraph (2) may be given subject to compliance with—
(a) such modification or other conditions as the Director considers necessary or expedient for the purpose of protecting the interests of consumers; and
(b) such incidental or consequential modification conditions as he considers necessary or expedient.
(5) The Director shall give the Department not less than 28 days' notice of any proposal of his to impose a modification condition; and if, before the expiry of the time specified in the notice, the Department directs the Director not to impose the condition, the Director shall comply with the direction.
(6) A licence may include conditions which must be complied with before the licence can be assigned.
(7) An assignment, or purported assignment, of a licence shall be void—
(a) if the licence is not capable of assignment;
(b) if the assignment, or purported assignment, is in breach of a condition of the licence; or
(c) if there has, before the assignment or purported assignment, been a contravention of a condition subject to compliance with which the consent required by paragraph (2) is given.
(8) A licence shall not be capable of being assigned under any other provision of this Part.
(9) In this Article—
“assignment” includes any form of transfer;
“modification condition” means a condition requiring or otherwise providing for the making of modifications to the conditions of a licence;
and the reference in this paragraph to a licence includes (where applicable) a reference to so much of a licence as is retained by an assignor.
(1) Subject to paragraph (2)—
(a) Schedule 2 (which makes provision with respect to the compulsory acquisition of land); and
(b) Schedule 3 (which confers other powers in relation to land and makes other provision),
shall, to the extent that his licence so provides, have effect in relation to the holder of a licence under Article 8(1)(a) , (b) or (d) ; and references in those Schedules to a licence holder shall be construed accordingly.
(2) Where any provision of either of the Schedules mentioned in paragraph (1) is applied to a licence holder by his licence, it shall have effect subject to such restrictions, exceptions and conditions as may be included in the licence for the purpose of qualifying that provision as so applied or any power or right conferred by or under it.
(1) The Authority may make modifications of—
(a) the conditions of a particular licence;
(b) the standard conditions of licences of any type under Article 8(1).
(2) Before making any modifications under this Article, the Authority must give notice—
(a) stating that it proposes to make modifications;
(b) setting out the proposed modifications and their effect;
(c) stating the reasons why it proposes to make the modifications; and
(d) specifying the time within which representations with respect to the proposed modifications may be made.
(3) The time specified by virtue of paragraph (2)(d) may not be less than 28 days from the date of the publication of the notice.
(4) A notice under paragraph (2) must be given—
(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications, and
(b) by sending a copy of the notice to—
(i) each relevant licence holder,
(ii) the Department, and
(iii) the General Consumer Council.
(5) The Authority must consider any representations which are duly made.
(6) If, within the time specified by virtue of paragraph (2)(d), the Department directs the Authority not to make any modification, the Authority shall comply with the direction.
(7) Paragraphs (8) to (10) apply where, having complied with paragraphs (2) to (5), the Authority decides to proceed with the making of modifications of the conditions of any licence under this Article.
(8) The Authority must—
(a) publish the decision and the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications;
(b) state the effect of the modifications;
(c) state how it has taken account of any representations duly made; and
(d) state the reason for any differences between the modifications and those set out in the notice by virtue of paragraph (2)(b).
(9) Each modification has effect from the date specified by the Authority in relation to that modification (subject to the giving of a direction under paragraph 2 of Schedule 3A).
(10) The date specified by virtue of paragraph (9) may not be less than 56 days from the publication of the decision to proceed with the making of modifications under this Article.
(11) In this Article “relevant licence holder”—
(a) in relation to the modification of standard conditions of licences of any type, means the holder of a licence of that type—
(i) which is to be modified by the inclusion of any new standard condition, or
(ii) which includes any standard conditions to which the modifications relate which are in effect at the time specified by virtue of paragraph (2)(d); or
(b) in relation to the modification of a condition of a particular licence (other than a standard condition), means the holder of that particular licence.
(1) Paragraphs (2) and (3) apply where at any time the Authority modifies the conditions of licences of any type under Article 14.
(2) If the conditions modified are standard conditions, the Authority must—
(a) also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time, and
(b) publish the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications.
(3) The Authority may make such incidental or consequential modifications of any conditions of licences of any type as it considers necessary or expedient.
(4) The modification of part of a standard condition of a particular licence under Article 14 does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(5) The modification of a condition of a licence under this Article has effect subject to the giving of a direction under paragraph 2 of Schedule 3A in relation to the decision to which the modification relates.
(1) An appeal lies to the CMA against a decision by the Authority to proceed with the modification of a condition of a licence under Article 14.
(2) An appeal may be brought under this Article only by—
(a) a relevant licence holder (within the meaning of Article 14);
(b) any other person who holds a licence of any type under Article 8(1) whose interests are materially affected by the decision;
(c) a qualifying body or association in the capacity of representing a person falling within sub-paragraph (a) or (b);
(d) the General Consumer Council in the capacity of representing consumers whose interests are materially affected by the decision.
(3) The permission of the CMA is required for the bringing of an appeal under this Article.
(4) The CMA may refuse permission to bring an appeal only on one of the following grounds—
(a) in relation to an appeal brought by a person falling within paragraph (2)(b), that the interests of the person are not materially affected by the decision;
(b) in relation to an appeal brought by a qualifying body or association, that the interests of the person represented are not materially affected by the decision;
(c) in relation to an appeal brought by the General Consumer Council, that the interests of the consumers represented are not materially affected by the decision;
(d) in relation to any appeal—
(i) that the appeal is brought for reasons that are trivial or vexatious;
(ii) that the appeal has no reasonable prospect of success.
(5) References in this Article to a qualifying body or association are to a body or association whose functions are or include representing persons in respect of interests of theirs which are materially affected by the decision in question.
(1) Schedule 3A has effect.
(2) Except where specified otherwise in Schedule 3A, the functions of the CMA with respect to an appeal under Article 14B are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 .
(1) This Article applies to every appeal brought under Article 14B.
(2) In determining an appeal the CMA must have regard, to the same extent as is required of the Authority, to the matters to which the Authority must have regard—
(a) in the carrying out of its principal objective under Article 14 of the Energy Order; and
(b) in the performance of its duties under that Article and Article 6B of the Energy Order.
(3) In determining the appeal the CMA—
(a) may have regard to any matter to which the Authority was not able to have regard in relation to the decision which is the subject of the appeal; but
(b) must not, in the exercise of that power, have regard to any matter to which the Authority would not have been entitled to have regard in reaching its decision had it had the opportunity of doing so.
(4) The CMA may allow the appeal only to the extent that it is satisfied that the decision appealed against was wrong on one or more of the following grounds—
(a) that the Authority failed properly to have regard to any matter mentioned in paragraph (2);
(b) that the Authority failed to give the appropriate weight to any matter mentioned in paragraph (2);
(c) that the decision was based, wholly or partly, on an error of fact;
(d) that the modifications fail to achieve, in whole or in part, the effect stated by the Authority by virtue of Article 14(8)(b);
(e) that the decision was wrong in law.
(5) To the extent that the CMA does not allow the appeal, it must confirm the decision appealed against.
(1) This Article applies where the CMA allows an appeal to any extent.
(2) If the appeal is in relation to a price control decision, the CMA must do one or more of the following—
(a) quash the decision (to the extent that the appeal is allowed);
(b) remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the CMA;
(c) substitute the CMA's decision for that of the Authority (to the extent that the appeal is allowed) and give any directions to the Authority or any other party to the appeal.
(3) If the appeal is in relation to any other decision, the CMA must do one or both of the following—
(a) quash the decision (to the extent that the appeal is allowed);
(b) remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the CMA.
(4) A direction under paragraph (2) or (3) must not require a person to do anything that the person would not have power to do (apart from the direction).
(5) A person to whom a direction is given under paragraph (2) or (3) must comply with it.
(6) A direction given under paragraph (2) or (3) to a person other than the Authority is enforceable as if it were an order of the High Court.
(7) For the purposes of this Article a decision is a price control decision, in relation to the modification of a condition of a licence, if the purpose of the condition is, in the CMA's opinion, to limit or control the charges on, or the revenue of, the holder of the licence.
(8) In determining for the purposes of paragraph (7) what the purpose of a condition is the condition may be assessed on its own or in combination with any other conditions of the licence.
(9) In this Article and Articles 14F and 14G any reference to a party to an appeal is to be read in accordance with Schedule 3A.
(1) The CMA must—
(a) determine an appeal against a price control decision within the period of 6 months beginning with the permission date;
(b) determine an appeal against any other decision within the period of 4 months beginning with the permission date.
(2) Paragraph (1)(a) or (b) does not apply if paragraph (3) applies.
(3) This paragraph applies where—
(a) the CMA has received representations on the timing of the determination from a party to the appeal; and
(b) it is satisfied that there are special reasons why the determination cannot be made within the period specified in paragraph (1)(a) or (b).
(4) Where paragraph (3) applies, the CMA must—
(a) determine an appeal against a price control decision within the period specified by it, not being longer than the period of 7 months beginning with the permission date;
(b) determine an appeal against any other decision within the period specified by it, not being longer than the period of 5 months beginning with the permission date.
(5) Where paragraph (3) applies, the CMA must also—
(a) inform the parties to the appeal of the time limit for determining the appeal, and
(b) publish that time limit in such manner as it considers appropriate for the purpose of bringing it to the attention of any other persons likely to be affected by the determination.
(6) In this Article “ price control decision ” is to be read in accordance with Article 14E.
(7) References in this Article to the permission date are to the date on which the CMA gave permission to bring the appeal in accordance with Article 14B(3).
(1) A determination by the CMA on an appeal—
(a) must be contained in an order made by the CMA;
(b) must set out the reasons for the determination;
(c) takes effect at the time specified in the order or determined in accordance with provision made in the order;
(d) must be notified by the CMA to the parties to the appeal;
(e) must be published by the CMA—
(i) as soon as reasonably practicable after the determination is made;
(ii) in such manner as the CMA considers appropriate for the purpose of bringing the determination to the attention of any person likely to be affected by it (other than a party to the appeal).
(2) The CMA may exclude from publication under paragraph (1)(e) any information which it is satisfied is—
(a) commercial information, the disclosure of which would, or might in the CMA's opinion, significantly harm the legitimate business interests of an undertaking to which it relates; or
(b) information relating to the private affairs of an individual, the disclosure of which would, or might in the CMA's opinion, significantly harm the individual's interests.
(3) The Authority must take such steps as it considers requisite for it to comply with an order of the CMA made by virtue of paragraph (1)(a).
(4) The steps must be taken—
(a) if a time is specified in (or is to be determined in accordance with) the order, within that time;
(b) in any other case, within a reasonable time.
(5) Paragraphs (2) to (4) of Article 14A apply where a condition of a licence is modified in accordance with Article 14E as they apply where a condition of a licence is modified under Article 14.
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(1) Where the CMA or (as the case may be) the Secretary of State (in this Article “the relevant authority”) makes a relevant order, the order may also provide for the modification of—
(a) the conditions of a particular licence; or
(b) the standard conditions of licences under sub-paragraph (a), (b) , (c) or (d) of Article 8(1),
to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.
(1A) In paragraph (1) “relevant order” means—
(a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—
(i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or
(ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or
(b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market or markets in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to activities authorised or regulated by a licence.
(1A) The modification under paragraph (1)(i) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(2) Where at any time the relevant authority modifies under paragraph (1)(b) the standard conditions of licences under sub-paragraph (a), (b) , (c) or (d) of Article 8(1), the relevant authority
(a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences under that sub-paragraph granted after that time; and
(b) may, after consultation with the Director, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of licences under that sub-paragraph granted before that time.
Para. (3) rep. by 2002 c. 40
(4) Where at any time the relevant authority modifies standard conditions under paragraph (2)(a) for the purposes of their incorporation in licences under sub-paragraph (a), (b) , (c) or (d) of Article 8(1) granted after that time, the relevant authority shall publish the modifications in such manner as the relevant authority considers appropriate.
(5) Expressions used in paragraph (1A) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that paragraph as in that Part.
(1) Where a customer of a gas supplier is to be charged for his supply wholly or partly by reference to the quantity of gas supplied, the supply shall be given through, and the quantity of gas shall be ascertained by, a meter which complies with Article 22.
(2) Any charge in respect of the provision of such a meter (whether that provision is by way of sale, hire or loan) shall be no higher than the competitive market rate.
(1) No meter shall be used for the purpose of ascertaining the quantity of gas supplied to any person unless it is stamped either by, or on the authority of, a meter examiner appointed under this Article or in such other manner as may be authorised by regulations.
(2) Subject to paragraphs (3) to (5), it shall be the duty of a meter examiner . . . , on being required to do so by any person and on payment of the prescribed fee, to examine any meter used or intended to be used for ascertaining the quantity of gas supplied to any person, and to stamp, or authorise the stamping of, that meter.
(3) A meter examiner shall not stamp, or authorise the stamping of, any meter unless he is satisfied that it is of such pattern and construction and is marked in such manner as is approved by the Director and that the meter conforms with such standards as may be prescribed.
(4) A meter examiner may stamp or authorise another person to stamp a meter, notwithstanding that he has not himself examined it, if—
(a) the meter was manufactured or repaired by the person submitting it to the examiner;
(b) that person has obtained the consent of the Director to his submission; and
(c) any conditions subject to which the consent was given have been satisfied.
(5) A meter examiner may authorise another person to stamp a meter, notwithstanding that he himself has not examined it, if—
(a) the meter was manufactured or repaired by that person;
(b) that person has obtained the consent of the Director to his stamping of the meter; and
(c) any conditions subject to which the consent was given have been satisfied.
(6) Regulations may make provision—
(a) for re-examining meters already stamped, and for the cancellation of stamps in the case of meters which no longer conform with the prescribed standards and in such other circumstances as may be prescribed;
(b) for requiring meters to be periodically overhauled;
(c) for the revocation of any approval given by the Director to any particular pattern or construction of meter, and for requiring existing meters of that pattern or construction to be replaced within such period as may be prescribed; and
(d) for the expenses of any such re-examination, overhaul or replacement of a meter to be defrayed in such manner as may be prescribed.
(7) All fees payable to meter examiners . . . for the performance of functions conferred by or under this Article shall be paid to the Director; and any sums received by him under this paragraph shall be paid into the Consolidated Fund.
(8) The fees to be paid to meter examiners . . . for the performance of functions conferred by or under this Article, and the persons by whom they are to be paid, shall be such as may be prescribed.
(9) The Director shall appoint competent and impartial persons as meter examiners for the purposes of this Article.
(10) If any person—
(a) supplies gas through a meter which has not been stamped under this Article; or
(b) uses, for ascertaining the quantity of gas supplied to any person or premises, a meter which has not been stamped under this Article,
he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(11) Where the commission by any person of an offence under paragraph (10) is due to the act or default of some other person, that other person shall be guilty of the offence; and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.
(12) In any proceedings for an offence under paragraph (10) it shall be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid committing the offence.
(13) Regulations may exempt meters of a prescribed class or description from provisions of this Article.
(14) In this Article “regulations” means regulations made by the Director.
Para. (1) rep. by 2002 c. 40
(2) The functions to which paragraph (2A) applies shall be concurrent functions of the Director and the CMA .
(2A) This paragraph applies to the functions of the CMA under Part 4 of the Enterprise Act 2002 (other than sections 166 , 167C , 171 and 174E ) so far as those functions—
(a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and
(b) relate to
commercial activities connected with the conveyance, storage or supply of gas.
(2B) So far as necessary for the purposes of, or in connection with, paragraphs (2) and (2A)—
(a) references in Part 4 of the Act of 2002 to the CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 , 167C , 171 and 174E of that Act and in any other provision of that Act where the context otherwise requires);
(b) references in that Part to section 5 of the Act of 2002 are to be construed as including references to Article 27(1) of this Order.
(2C) Section 130A of the Enterprise Act 2002 is to have effect in its application to the Authority by virtue of paragraphs (2) and (2A)—
(a) as if for subsection (1) of that section there were substituted—
(1) Where the Northern Ireland Authority for Utility Regulation—
(a) is proposing to carry out its functions under Article 27(1) of the Gas (Northern Ireland) Order 1996 in relation to a matter for the purposes mentioned in subsection (2), and
(b) considers that the matter is one in respect of which it would be appropriate for the Authority to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,
the Authority must publish a notice under this section (referred to in this Part as a “ market study notice ”).
(b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “ commercial activities connected with the conveyance, storage or supply of gas ” .
(3) The Director shall be entitled to exercise, concurrently with the CMA , the functions of the CMA under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) , 35C , 38(1) to (6) , 40B(1) to (4) and 51), so far as relating to—
(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,
(b) conduct of the kind mentioned in section 18(1) of that Act, or
(c) transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),
connected with the conveyance, storage or supply of gas.
(3A) So far as necessary for the purposes of , or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 (including references in provisions of the Enterprise Act 2002 applied by that Part) to the CMA are to be read as including a reference to the Director ( except in sections 31D(1) to (6) , 35C , 38(1) to (6) , 40B(1) to (4) , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
(4) Before the CMA or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2), it or he shall consult the other.
(4A) Neither the CMA nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2) if functions which are so exercisable have been exercised in relation to that matter by the other.
(5) It shall be the duty of the Director, for the purpose of assisting a CMA group in carrying out an investigation on a market investigation reference made by the Authority (under section 131 of the Act of 2002) by virtue of paragraph (2) . . . , to give to the group —
(a) any information which is in his possession and which relates to matters falling within the scope of the investigation and—
(i) is requested by the group for that purpose; or
(ii) is information which in his opinion it would be appropriate for that purpose to give to the group without any such request; and
(b) any other assistance which the group may require and which it is within his power to give, in relation to any such matters,
and the group shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this paragraph.
(5A) In paragraph (5) “ CMA group ” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.
(6) If any question arises as to whether paragraph (2) or (3) applies to any particular case, that question shall be referred to and determined by the Department; and no objection shall be taken to anything done under—
(a) Part 4 of the Enterprise Act 2002 ( market investigations ); or
(b) Part I of the Competition Act 1998 ( other than sections 31D(1) to (6) , 35C , 38(1) to (6) , 40B(1) to (4) and 51),
by or in relation to the Director on the ground that it should have been done by or in relation to the CMA .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Para. (8) rep. by 2002 c. 40
(9) References in this Part to functions of the Director under this Part include references to functions exercisable by the Director by virtue of paragraph (2) or (3) .
(10) In making any decision, or otherwise taking action, for the purposes of any of its functions that—
(a) by virtue of this Article, are functions exercisable concurrently with the CMA, and
(b) in the case of functions under the Competition Act 1998, are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule,
the Authority must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.
(1) This Article applies to gas supplied to a consumer's premises by an authorised gas supplier, that is to say, a person who is authorised by a licence or exemption to supply gas to those premises.
(2) The Director shall from time to time direct that the maximum prices at which gas to which this Article applies may be resold—
(a) shall be such as may be specified in the direction; or
(b) shall be calculated by such method and by reference to such matters as may be so specified,
and shall publish directions under this Article in such manner as in his opinion will secure adequate publicity for them.
(3) A direction under this Article may—
(a) require any person who resells gas to which this Article applies to furnish the purchaser with such information as may be specified or described in the direction; and
(b) provide that, in the event of his failing to do so, the maximum price applicable to the resale shall be such as may be specified in the direction or shall be reduced by such amount or such percentage as may be so specified.
(4) Different directions may be given under this Article in different classes of cases, which may be defined by reference to areas, tariffs applicable to gas supplied by the authorised gas suppliers or any other relevant circumstances.
(5) If any person resells gas to which this Article applies at a price exceeding the maximum price determined by or under a direction under this Article and applicable to the resale—
(a) the amount of the excess; and
(b) if the direction so provides, interest on that amount at a rate specified or described in the direction,
shall be recoverable by the purchaser.
(6) Nothing in this Article shall apply in relation to the resale of gas for use in a motor vehicle which is constructed or adapted to use gas as fuel for its propulsion.
The Gas (Northern Ireland) Order 1996 (legislation.gov.uk, OGL v3.0). Retrieved via LawPlayer, https://lawplayer.com/uk/act/nisi-1996-275
Contains public sector information licensed under the Open Government Licence v3.0.
本頁資料來源：legislation.gov.uk (The National Archives)·整理提供：法律人 LawPlayer· lawplayer.com