GAS ACT, 1976

AN ACT TO MAKE PROVISION WITH RESPECT TO GAS SUPPLY AND FOR THAT PURPOSE TO ESTABLISH A BODY TO BE KNOWN IN THE IRISH LANGUAGE AS BORD GAIS EIREANN AND IN THE ENGLISH LANGUAGE AS THE IRISH GAS BOARD AND TO DEFINE ITS FUNCTIONS, TO MAKE CERTAIN PROVISIONS TO ENABLE THAT BODY TO ACQUIRE LAND AND CERTAIN RIGHTS RELATING TO LAND, TO AMEND CERTAIN ENACTMENTS AND TO MAKE OTHER PROVISIONS CONNECTED WITH THE FOREGOING. [19th July, 1976]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I Preliminary and General

1. Short title and commencement.

1. — (1) This Act may be cited as the Gas Act, 1976.

• (2) This Act, other than this section and sections 2, 3, 6, 34, 35, 36 and 44, shall come into force on the establishment day.

2. Interpretation.

2. — F1[(1)] In this Act—

“the Act of 1960” means the Petroleum and Other Minerals Development Act, 1960, as extended by section 4 (2) of the Continental Shelf Act, 1968;

F2["Act of 2014" means the Companies Act 2014;]

“the Board” means the body established by section 7;

F3[“the Commission”means the Commission for Energy Regulation;]

“the Company” means Bord Gáis Éireann Teoranta;

F4[“customer” means a wholesale or final customer of natural gas and natural gas undertakings who purchases natural gas;]

F5[“Department” means the Department of the Environment, Climate and Communications;]

F6[“designated area” has the same meaning as it has in the Maritime Jurisdiction Act 2021;]

“deviation limits” has the meaning assigned to it by Article 1 of the Second Schedule;

F5[“effects on the environment” includes, in relation to a proposed pipeline, the effects of the construction and operation of that pipeline on the environment;]

F5[“EIA Directive” means Directive 2011/92/EU of the European Union and of the Council of 13 December 2011¹, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014²;]

F5[“Environmental Assessment Unit” has the meaning assigned to it by section 40C;]

F5[“environmental impact assessment”, in relation to a pipeline which is the subject of application for consent under section 39A(1) or 40(1), means a process in respect of the construction and operation of the pipeline—

• (a) consisting of—

• (i) the preparation of an environmental impact assessment report in accordance with section 40A(1)(f),

• (ii) the carrying out of consultation in accordance with section 40A(2) and, where relevant, section 40A(7),

• (iii) the examination by the Commission or the Environmental Assessment Unit, as the case may be, of—

• (I) the information presented in the environmental impact assessment report,

• (II) any additional information provided in accordance with section 40A(5)(b), and

• (III) any relevant information received through consultation under section 40A(2) and, where relevant, under section 40A(7),

• (iv) the reaching by the Commission or the Environmental Assessment Unit, as the case may be, of a reasoned conclusion in accordance with section 40B(5) on the significant effects on the environment of the proposed pipeline, taking into account the results of the examination referred to in subparagraph (iii) and, where appropriate, its own supplementary examination, and

• (v) the integration by the Commission or the Minister, as the case may be, of the reasoned conclusion referred to in subparagraph (iv) into the decision made by the Commission or the Minister, as the case may be, under section 39A(1) or 40(1), as the case may be,

and

• (b) including an examination, analysis and evaluation by the Commission or the Environmental Assessment Unit, as the case may be, under section 40B (5) to identify, describe and assess the direct and indirect significant effects on the environment of the proposed pipeline, including the expected significant effects derived from the vulnerability of the proposed pipeline to risks of major accidents and disasters relevant to it, on—

• (i) population and human health,

• (ii) biodiversity, with particular attention to species and habitats protected under Council Directive 92/43/EEC of 21 May 1992³ and Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009¹⁰,

• (iii) land, soil, water, air and climate,

• (iv) material assets, cultural heritage and the landscape, and

• (v) the interaction between the factors mentioned in subparagraphs (i) to (iv);]

F5[“environmental impact assessment report” shall be construed in accordance with section 40A(1)(f);]

“the establishment day” means the day appointed by the Minister pursuant to section 3;

“exploration licence” has the meaning assigned to it by section 8 of the Act of 1960;

F7[“foreshore” means the bed and shore, below the line of high water of ordinary or medium tides, of the sea and of every tidal river and tidal estuary and of every channel, creek and bay of the sea or of any such river or estuary and the outer limit of the foreshore shall be determined in accordance with section 1A (inserted by section 60 of the Maritime Safety Act 2005) of the Foreshore Act 1933;]

“functions” includes powers and duties;

F7[“harbour authority” means—

• (a) in the case of a harbour to which the Harbours Act 1996 applies, the harbour company concerned,

• (b) in the case of a harbour to which the Harbours Acts 1946 to 1976 apply, the harbour authority concerned,

• (c) in the case of a fishery harbour centre to which the Fishery Harbour Centres Act 1968 applies or any other harbour under the control or management of the Minister for Communications, Marine and Natural Resources, that Minister,

• (d) in the case of a harbour under the control or management of a local authority, the local authority concerned,

• (e) in the case of a harbour under the control or management of Iarnród Éireann – Irish Rail, that company,

• (f) in the case of any other harbour, the owner;]

F8[“industrial customer” means large industrial and commercial customers with a peak hourly demand greater than 50 Megawatt and a connection pressure of 16 barg or above;]

F9[“interconnector”, in relation to natural gas, means a natural gas transmission line—

• (a) which crosses or spans a border between Member States for the purpose of connecting the national transmission systems of those States, or

• (b) between a Member State and a third country up to—

• (i) the territory of that Member State, or

• (ii) the territorial seas of that Member State;]

F10[…]

“land” includes seashore, land covered with water and foreshore other than foreshore which is the property of the State;

F11[“LNG” means liquefied natural gas;]

F12[“local authority” means a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014);]

F13["majority-shareholding Minister" has the same meaning as it has in the Gas (Amendment) and Miscellaneous Provisions Act 2024;]

“the Minister” means the Minister for Transport and Power;

F14[“natural gas” means any gas derived from natural strata (whether or not it has been subjected to liquification or any other process or treatment) and in this Act, a reference to natural gas may also be construed as including, where the Commission considers it appropriate and where, in the opinion of the Commission, such gas may be technically and safely injected into, and transported through, the natural gas system, biogas, gas from biomass and other types of gas;]

F15[“Natural Gas Market Directive” means Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009² as amended by Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019¹;]

F16[“Natural Gas Market Regulations” means European Communities (Internal Market in Natural Gas and Electricity) Regulations 2015 (S.I. No. 16 of 2015);]

“owner”, except in section 32 (7) and subject to Article 12 of the Second Schedule, in relation to land means,

• (a) a person other than a mortgagee not in possession, who, whether in his own right or as trustee or agent for any other person, is entitled to receive the rack rent of the land or, where the land is not let at a rack rent, would be so entitled if it were so let,

• (b) a lessee or occupier (other than a tenant for a month or a less period than a month);

“petroleum lease” has the meaning assigned to it by section 13 of the Act of 1960;

“pipeline” means a pipeline used or intended to be used for the F3[transportation] of gas and includes part of a pipeline, and, except in F17[section 8(3)(e)], includes any apparatus, equipment or other thing which is ancillary to such a pipeline;

“prescribed” means prescribed by regulations made by the Minister under this Act;

F5[“proposed pipeline” means—

• (a) where an application has been made under section 39A(1) or 40(1) in respect of a pipeline, that pipeline, or

• (b) where a request has been made under section 40A(1)(bb) in respect of a pipeline, that pipeline;]

F5[“relevant specified bodies”—

• (a) in relation to a proposed pipeline other than an upstream pipeline, means—

• (i) all local authorities in whose functional area the proposed pipeline would be situated,

• (ii) the Commissioners of Public Works in Ireland,

• (iii) An Taisce,

• (iv) the Minister,

• (v) the Minister for Agriculture, Food and the Marine,

• (vi) the Minister for Housing, Local Government and Heritage,

• (vii) the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media,

• (viii) the Minister for Transport,

• (ix) the Health and Safety Authority,

• (x) the Environmental Pillar,

• (xi) the Heritage Council,

• (xii) Teagasc,

• (xiii) Inland Fisheries Ireland,

• (xiv) Inland Waterways Ireland, and

• (xv) Bord Fáilte, and

• (b) in relation to a proposed pipeline being an upstream pipeline, means—

• (i) all local authorities contiguous to whose functional area the proposed upstream pipeline would be situated,

• (ii) An Taisce,

• (iii) the Minister for Agriculture, Food and the Marine,

• (iv) the Minister for Housing, Local Government and Heritage,

• (v) the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media,

• (vi) the Minister for Transport,

• (vii) the Health and Safety Authority,

• (viii) the Sea-Fisheries Protection Agency,

• (ix) Bord Iascaigh Mhara,

• (x) the Marine Institute,

• (xi) the Environmental Pillar,

• (xii) the Irish Whale and Dolphin Group, and

• (xiii) the Heritage Council.]

“right over land ” includes any wayleave or other easement or any profit à prendre or any right in, on or over any land;

“seashore ” means every beach, bank and cliff contiguous to the foreshore and includes all sands and rocks contiguous to the foreshore.

F4[“upstream pipeline” has the meaning assigned to it by section 2 of the Gas (Interim) (Regulation) Act, 2002;]

• F18[(2)
• (a) A reference in this Act to an Annex is a reference to an Annex to the EIA Directive.

• (b) A word or expression that is used in this Act that is also used in the EIA Directive has the same meaning in this Act as it has in the Directive.]

3. Establishment day.

3. — The Minister may by order appoint a day to be the establishment day for the purposes of this Act.

4. Regulations.

4. — (1) The Minister may make regulations for prescribing any matter referred to in this Act as prescribed.

• (2) Every regulation made under this Act by the Minister shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

5. Service of notices, etc.

5. — (1) Where a notice is required by this Act to be served on a person, it shall be addressed to him and may be served on him in some one of the following ways:

• (a) where it is addressed to him by name, by delivering it to him,

• (b) by leaving it at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address,

• (c) by sending it by post in a prepaid registered letter addressed to him at the address at which he ordinarily resides or, in a case in which an address for service has been furnished, at that address,

• (d) where the address at which he ordinarily resides cannot be ascertained by reasonable inquiry and the notice or copy is so required to be served in respect of any land or right over land, by delivering the notice or copy to some person over sixteen years of age resident or employed on the land concerned or by affixing it in a conspicuous position on or near such land.

• (2) Where a notice is required by this Act to be served on an occupier and the name of the occupier cannot be ascertained by reasonable inquiry, it may be addressed to “ the occupier ” without naming him.

• (3) For the purposes of this section, a company within the meaning of the Companies Act, 1963, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

6. Expenses.

6. — The expenses F19[incurred by a Minister of the Government (other than the Minister for Finance)] in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART II Bord Gáis Éireann Irish Gas Board

7. Bord Gáis Éireann Irish Gas Board.

7. — (1) On the establishment day there shall be established a body to be known in the Irish language as Bord Gáis Éireann and in the English language as The Irish Gas Board (which body is in this Act referred to as “ the Board ”) to perform the functions assigned to it by this Act.

• (2) The provisions of the First Schedule to this Act shall have effect with respect to the Board.

7A. F20[Definitions.

7A.— F21[…]]

7B. F22[Power to create and issue capital stock.

7B.—F23[…]]

7C. F24[Exercise of powers by Ministers in respect of capital stock

7C.—F25[…]]

7D. F26[Conversion of capital stock into company shares.

7D.— F27[…]]

7E. F28[Arrangements relating to rights and obligations relating to capital stock.

7E.— F29[…]]

7F. F30[Power of Board to establish approved scheme.

7F.— F31[…]]

7G. F32[Payment of dividend into Exchequer.

7G.— F33[…]]

8. Functions of Board.

8. — F34[(1) (a) The Board shall own, operate, develop and maintain a system for the transmission and distribution of natural gas being a system that is both economical and efficient and appears to the Board to be requisite for the time being.

• (b) Nothing in paragraph (a) shall be construed as imposing on the Board, either directly or indirectly, any form of duty or liability enforceable by proceedings before any court to which it would not otherwise be subject.

• (2) The Board shall carry out its obligations under this Act in accordance with F35[the Natural Gas Market Directive] and having regard to the need to ensure the safety and security of the transmission, distribution and supply of natural gas.

• (3) Without prejudice to the generality of subsection (1) or to any provision of this Act apart from this section, within or outside the State, and subject to any requirements of law the Board may—

• (a) transmit and distribute natural gas (whether or not such gas has been prepared, processed or treated),

• (b) liquify or otherwise prepare, F36[store, transport,] process or treat natural gas,

• (c) fix, make and recover charges for any service or facility provided or thing undertaken pursuant to this section by the Board, or fix and accept subscriptions for any service or facility so provided,

• (d) attach such terms and conditions as the Board shall think fit to any service or facility provided by it,

• (e) provide, operate or maintain, F37[…] whether for use by the Board or any other person, such pipelines, terminals, pressure-reducing stations, F36[compressor stations,] off-take stations, vessels, vehicles, works, services, facilities or other things as are necessary or expedient in relation to, or ancillary to, the provision, development or maintenance of a gas transmission system and a distribution system,

• (f) provide any or all of the following services and facilities relating to the development, transmission or distribution of gas, namely, advice or assistance, research services or research or training facilities,

• F36[(fa) take such measures as are appropriate to enhance or protect security of supply of natural gas, or]

• (g) F37[…]

• (h) F37[…]

• (i) F37[…]

• (j) carry on any activity which appears to the Board to be requisite, advantageous or incidental to, or which appears to the Board to facilitate, the performance by the Board of any function under this Act.

• (4) F38[…]

• (5) F38[…]

• (6) Where the Board proposes to transfer to another person an interest in a pipeline or a part thereof that has been constructed by it pursuant to and in accordance with a consent given under this Act the Board shall obtain the prior consent of the majority-shareholding Minister, given with the approval of the Government, for such a transfer and the majority-shareholding Minister may attach such conditions as he or she deems appropriate to such a prior consent.

• (7) In subsection (6)—

"interest" means any estate, right, title or other interest, legal or equitable and includes a licence;

"transfer" includes grant, demise and assign or, as appropriate, a grant, demise and an assignment.]

8A. F39[Extension of powers of Bord Gáis Éireann to effect certain commercial transactions.

8A. — (1) In this section "company" means—

• (a) a company within the meaning of the Companies Act, 1963, or

• (b) a body formed or established under the laws of a state other than the State and corresponding to a body referred to in paragraph (a) of this subsection.

• (2) The Board may promote and take part in the formation or establishment of a company.

• (3) The Board may acquire, hold and dispose of shares or other interests in a company and become a member of a company.

• (4) The Board may exercise total or partial control of the composition of the board of directors of, or other authority, by whatever name called, that controls or manages a company.

• (5) The Board may—

• (a) lend or advance money upon such terms and conditions as it may determine, and

• (b) (i) guarantee in such form and manner and on such terms and conditions as it thinks fit, the due repayment by any person of the principal of any moneys (including moneys in a currency other than the currency of the State) borrowed by the person or the payment of interest on such moneys or both the repayment of the principal and the payment of the interest and any such guarantee may include a guarantee of payment of incidental expenses arising in connection with such borrowings and may be a guarantee of payment of a promissory note made by any person or a bill of exchange drawn or accepted by any person,

• (ii) otherwise give guarantees or indemnities in respect of any obligation of, or contract entered into by, any person,

where such lending or advancing of money, or other activity aforesaid appears to the Board to be requisite, advantageous or incidental to, or appears to the Board to facilitate, the performance by it of any function under this Act.

• F40[(6) The exercise by the Board of any power conferred on it by this section shall be subject to the prior written consent of the majority-shareholding Minister after consultation with any other Minister of the Government who, in the opinion of the majority-shareholding Minister having regard to the functions of that other Minister, ought to be consulted.]]

• F41[(7) Without prejudice to the exercise by the Board of any of its functions, a subsidiary of the Board formed or established under this section or under any enactment may exercise such and so many of the Board’s functions as are provided for in the memorandum and articles of association of the subsidiary.]

8B. F42[Conferring of functions in relation to telecommunications infrastructure on Board

8B. — (1) Subject to subsection (2), the majority-shareholding Minister may, by order, confer on the Board such function of developing, maintaining and operating telecommunications infrastructure as the majority shareholding Minister thinks proper and specifies in the order, and any such order may provide for the performance of the function subject to conditions specified in the order and may contain such incidental and supplementary provisions as the majority shareholding Minister thinks necessary or expedient for giving full effect to the order.

• (2) An order made under subsection (1) shall be made subject to—

• (a) the consent of the Minister for Finance, where the majority shareholding Minister is not the Minister for Finance,

• (b) the consultation of the Minister,

• (c) the consultation of the Minister for Public Expenditure, National Development Plan Delivery and Reform, and

• (d) the consultation of any other Minister of the Government (other than the Minister for Finance where the consent of that Minister is required in accordance with paragraph (a)), who in the opinion of the majority-shareholding Minister having regard to the functions of that other Minister ought to be consulted.

• (3) When an order under this section is proposed to be made by the majority-shareholding Minister, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.

• (4) In this section, "telecommunications infrastructure" means infrastructure and equipment which permit the conveyance of signals for telecommunications and electronic communications.]

9. Conferring of additional functions on Board.

F43[9. — (1) The majority-shareholding Minister may, with the approval of the Government, by order confer on the Board such functions, being related to the ownership, operation, maintenance and development of a gas transmission and distribution system, as the majority-shareholding Minister thinks proper and specifies in the order, and any such order may provide for the performance of the function subject to conditions specified in the order and may contain such incidental and supplementary provisions as the majority-shareholding Minister thinks necessary or expedient for giving full effect to the order.

• (2) The majority-shareholding Minister may, with the approval of the Government, revoke or amend an order under this section (including an order under this subsection).

• (3) When an order under this section is proposed to be made by the majority-shareholding Minister, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.]

10. Board to cover outgoings and earn reasonable return on capital.

10. — Subject to section 11 of this Act, it shall be the duty of the Board in performing its functions, as soon as may be after the establishment day to secure that taking one year with another.

• (a) its operating expenditure, including all charges properly chargeable to revenue, shall not be greater than its revenue, and

• (b) it earns a reasonable return on any capital it employs.

10A. F44[Transmission of natural gas by pipeline operators on behalf of other persons - role of Commission.

F45[10A. — (1) In this section—

F46["Directive" means the Natural Gas Market Directive;]

"facility" means a transmission or distribution pipeline, an LNG facility or a natural gas storage facility;

"LNG" means liquefied natural gas;

"LNG facility" has the same meaning as in the Directive;

"operator" means the holder of a natural gas licence in respect of the operation of a downstream distribution or transmission pipeline, an LNG facility, or a natural gas storage facility;

"pipeline operator" means the holder of a natural gas licence in respect of the operation of a distribution or transmission pipeline;

"storage facility" has the same meaning as in the Directive;

"third party access" means—

• (a) in the case of a downstream natural gas pipeline transportation of natural gas through a pipeline operator’s pipeline,

• (b) in the case of an LNG facility, access to and use of an LNG facility under the control of the operator, and

• (c) in the case of a storage facility, access to and use of a storage facility, or to related ancillary services under the control of the operator in circumstances where the Commission considers that it is technically or economically necessary for providing efficient access to the natural gas system for the supply of customers, (but excluding temporary storage and ancillary services that are related to LNG facilities and are necessary for the re-gasification process and subsequent delivery to the transmission system)

and the Commission shall determine that which constitutes "circumstances where it is technically or economically necessary for providing efficient access to the natural gas system for the supply of customers" referred to in subparagraph (c).

• F47[(2)
• (a) Subject to subsection (7) and subject to such exemptions as may be granted in accordance with F48[Article 36 of the Directive], where an application is received for third party access from or on behalf of an eligible customer in respect of a downstream facility operated by a person licensed under section 16 of the Gas (Interim) (Regulation) Act 2002, the facility operator shall offer to enter into an agreement for such access, subject to terms and conditions specified in directions issued by the Commission under subsection (5).

• (b) In paragraph (a), "eligible customer" means—

• (i) the holder of a natural gas licence under section 16 of the Gas (Interim) (Regulation) Act 2002 , for the purpose of carrying out any activity for which the holder is licensed,

• (ii) the holder of a petroleum lease under section 13 of the Petroleum and Other Minerals Development Act 1960 , for the purpose of carrying out any activity connected with the lease,

• (iii) a person in respect of whom an order has been made under section 2(1) of the Gas (Amendment) Act 1987 , for the purpose of carrying out the functions conferred on the person by the order,

• (iv) a person who operates a gas-fired generating station, irrespective of its annual consumption level, for the purpose of providing energy for the generation of electricity at that station,

• (v) a customer purchasing natural gas which is not exclusively for his or her household use, and

• (vi) subject to the provisions of section 17 (2) of the Energy (Miscellaneous Provisions) Act 2006, with effect from the coming into operation of this paragraph, any person.]

• (3) Notwithstanding the generality of subsection (2),—

• (a) an offer made under that subsection may include an offer to grant access at a rate or for a volume or at a rate and for a volume different from that requested—

• (i) where the offer is as well as an offer of access at the requested rate and volume, or

• (ii) where the request may be refused in accordance with subsection (7);

• (b) the Commission shall have the power to examine the reasons for making an offer under paragraph (a) and to give appropriate directions with regard to the volume and rate to be offered, without prejudice to any direction given under subsection (4);

• (c) where connection to the facility of the operator is required by the applicant or enhancement of that facility would be necessary to grant the application, an offer made under that subsection—

• (i) shall include the terms for such a connection or enhancement including any charges for connection or enhancement, and details of all technical aspects relating to the connection or enhancement that might be reasonably required by that person, and

• (ii) at the request of the applicant, may be on the basis that the applicant constructs, or that either or both the applicant and the operator make arrangements to have constructed, the connection to the facility, and the ownership of any such connection constructed or arranged to be constructed by the applicant shall, subject to subsection (10), be a matter for agreement between the parties.

• (4) The Commission may by direction provide for—

• (a) the matters to be specified in an agreement for third party access, including terms and conditions relating to price;

• (b) the matters to be specified in an agreement for connection to or enhancement of the facility of the operator;

• (c) the terms and conditions, including terms and conditions relating to price of the connection or enhancement, upon which an offer for connection to or enhancement of the facility of the operator is made;

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

• (e) the terms and conditions upon which applications for an agreement are to be made and the period of time within which an offer or refusal pursuant to an application is to be made by the F48[operator;]

• F48[(f) publication by a storage operator of information on the specific storage facility, or the parts of the storage facility, or the ancillary services to which access is offered;]

• F49[(g) publication by an operator of information on the access procedure proposed; and

• (h) any other matters which the Commission considers necessary or expedient for the purpose of making an offer for third party access, or connection to a facility.]

• F49[(4A) The Commission shall—

• (a) define the non-discriminatory criteria according to which access to a storage facility may be determined,

• (b) determine, based on non-discriminatory criteria, what constitutes "circumstances where the Commission considers that it is technically or economically necessary for providing efficient access to the natural gas system for the supply of customers" referred to in paragraph (c) of the definition of third party access in subsection (1) of section 10A, and

• (c) ensure that the non-discriminatory criteria at paragraphs (a) and (b) are published.]

• (5) An operator shall comply with any direction made by the Commission under subsection (3) or (4) within such time period as may be specified by the Commission in the direction.

• (6) An operator shall not make an offer under subsection (2) of this section other than to a person who is an eligible customer within the meaning of subsection (2).

• (7) F48[Subject to subsection (7A), an operator may refuse] to enter into an agreement under subsection (2)—

• (a) on the basis of a lack of capacity in its facility save where it is economical for the operator to make the necessary enhancements to the capacity of the facility in accordance with such conditions as may be specified by the Commission in a direction made under subsection (4);

• (b) on the basis of a lack of connection to that facility save where the person making the request is willing to pay for such a connection in accordance with such conditions as may be specified by the Commission in a direction made under subsection (4);

• (c) where, to enter into an agreement under this section would be likely to involve the operator in a contravention or a breach of—

• (i) this Act, the Electricity Regulation Act 1999, the Gas (Amendment Act 2000 , or the Gas (Interim) (Regulation) Act 2002;

• (ii) regulations made under any of the aforesaid Acts;

• (iii) the conditions of any licence granted or consent given to the pipeline operator under this Act or the Gas (Interim)(Regulation) Act 2002;

• (iv) the code of operations (within the meaning of section 13 of the Gas (Interim)(Regulation) Act 2002) of the operator; or

• (v) a public service obligation imposed on the operator by an order made under section 21 (1) of the Gas (Interim) (Regulation) Act 2002, or

• (d) the person making the application does not undertake to be bound by the terms of the code of operations of the operator referred to in paragraph (c)(iv) in so far as those terms are applicable to that person.

• F49[(7A) The transmission system operator shall not be entitled to refuse the connection of a new storage facility, LNG facility or industrial customer on the grounds of possible future limitations to available network capacities or additional costs linked with necessary capacity increase. The said operator shall ensure sufficient entry and exit capacity for the new connection within a reasonable timeframe.]

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

• (9) For the purposes of F50[Article 41 of the Directive] the Commission shall be the competent authority in the State to settle expeditiously disputes concerning refusal to offer to enter into an agreement under this section within the scope of the Directive.

• (10) Any dispute between an operator and any person who is, or claims to be, a person to whom the operator is obliged to make an offer for third party access or, where appropriate, connection to a facility of the operator (and whether as to the making of an offer, the terms offered, the proposed charges or otherwise) where the operator makes an offer or refuses to make an offer, may, upon the application of that person be determined by the Commission and the operator shall comply with and be bound by any such determination.

• (11) Where an application is made under subsection (10) to the Commission in relation to a dispute concerning a downstream pipeline, part of which is situated in the territory of another state, on the seabed under the territorial seas of another state or on the continental shelf belonging to another state, the Commission shall consult the relevant authorities in that other state with respect to the application.

• (12) In the event of a cross border dispute, the deciding regulatory authority shall be the regulatory authority which has jurisdiction in respect of the system operator which refuses use of, or access to, the system.

• (13) The parties to a dispute referred to in subsection (9) shall provide all documents records, accounts, estimates and other information, whether oral or written, requested from time to time, by the Commission in the form and at the times specified by the Commission, for the purpose of making a determination under subsection (10).

• (14) In order to ensure compliance with a determination made under this section the Commission may apply in a summary manner on notice to the High Court for an order requiring an operator to comply with the determination.

• (15) Where providing for third party access or where offering terms for the carrying out of works for the purpose of connection to a facility of an operator, the operator shall not discriminate unfairly as between any persons or classes of persons.

• (16) An operator shall not, in the context of sales or purchases of natural gas by that operator or related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating third party access to a facility under the control of the operator.

• (17)
• (a) Subject to paragraph (b) and subsection (19), an operator shall, within such time as the Commission may direct, prepare a statement for the approval of the Commission setting out the basis upon which charges are imposed—

• (i) for third party access to a facility of an operator, and

• (ii) for connection to a facility operated by that operator.

• (b) The Commission may—

• (i) give directions to an operator from time to time in respect of the basis for charges for third party access to, or connection to, a facility under the control of the operator, and

• (ii) issue a direction specifying those classes of operators to whom paragraph (a) does not apply.

• (c) Notwithstanding the generality of paragraph (b), directions given by the Commission under this subsection may provide for—

• (i) the methods of charging to be included in the statement to be prepared by an operator,

• (ii) the form and the extent of the information to be provided by an operator to applicants,

• (iii) the form of charges and information about those charges to be included in the statement to be prepared by an operator,

• (iv) the procedure to be adopted in the submission by an operator of a statement of charges and the approval by the Commission of such statement, and

• (v) the nature of information to be provided to applicants seeking third party access to, or connection to a facility under the control of the operator and its presentation and transparency.

• (d) An operator shall comply with directions given to it by the Commission under this subsection.

• (e) A charge for third party access to, or connection to, a facility under the control of the operator shall be calculated in accordance with directions given by the Commission under this section so as to enable the operator to recover—

• (i) the appropriate proportion of the costs directly or indirectly incurred in carrying out any necessary works, and

• (ii) a reasonable rate of return on the capital represented by such costs.

• (f) The Commission, solely, shall determine that which constitutes an "appropriate proportion" referred to in paragraph (e)(i) and a “reasonable rate of return” referred to in paragraph (e)(ii).

• (18)
• (a) An operator shall send each statement prepared in accordance with subsection (17) (in this section referred to as the "statement") to the Commission for its approval.

• (b) The Commission shall consult with an operator and have regard to any submission made by the operator to the Commission prior to making a decision as to whether to approve of or not, as the case may be, a statement submitted by the operator to the Commission for approval.

• (c) A statement and, in particular, charges referred to such statement, shall not take effect until such time as it is approved of by the Commission, subject to such modifications, if any, as the Commission considers appropriate, and published, including publication in electronic form.

• (d) Any charges imposed by an operator on or before the coming into operation of this section shall, subject to the approval of the Commission continue in force until a statement has been approved of by the Commission under this Section and thereafter all charges shall be in accordance with a statement approved of by the Commission.

F48[(19)(a) Notwithstanding the generality of subsections (3) and (17), the Commission may, on a case by case basis, following an application in writing by an operator of an interconnector F51[…], an LNG or a storage facility, constructed after the making of F46[the European Communities (Internal Market in Natural Gas and Electricity) Regulations 2011 (S.I No. 630 of 2011)], grant an exemption on such terms and conditions as the Commission considers appropriate to an operator from the provisions of those subsections in relation to the terms, conditions and charges for access to the facilities under the control of that operator.

• (b) An operator that proposes to expand or modify existing infrastructure to provide for a significant increase of capacity may also apply for an exemption under paragraph (a) of this subsection.

• (c) Any request under paragraph (a) or (b) shall be transmitted to the European Commission, in writing.

• (d) When granting an exemption under paragraph (a), the Commission shall ensure that—

• (i) the investment enhances competition in gas supply and enhances security of supply,

• (ii) the level of risk attached to the investment is such that the investment would not take place unless an exemption was granted,

• (iii) the infrastructure referred to at paragraph (a) is owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built,

• (iv) charges are levied on users of the infrastructure referred to at paragraph (a),

• F46[(v) the exemption is not detrimental to —

• (I) competition in the relevant markets which are likely to be affected by the investment,

• (II) the effective functioning of the internal market in natural gas,

• (III) the efficient functioning of the regulated systems concerned, or

• (IV) the security of the supply of natural gas in the European Union, and]

• (vi) it acts in accordance with the rules and mechanisms for the management and allocation of capacity at (e).

• (e) Before granting any exemption under paragraph (a), the Commission shall decide rules and mechanisms for management and allocation of capacity, in particular—

• (i) that all potential users of the infrastructure shall be invited to express their interest in contracting capacity in the infrastructure,

• (ii) that no capacity allocation shall occur prior to receipt by the Commission of expressions of interest being sought, and

• (iii) that any unused capacity shall be offered on the market with users of the infrastructure being entitled to trade their contracted capacities.

• (f) F46[Subject to subsection (19A), in making] a decision in regard to an exemption at paragraph (a) the Commission shall follow the procedures laid down in Article 36(8)(a) to (e) of the Directive.

• (g) On completion of the review procedure under Article 36 of the Directive referred to in paragraph (f), the Commission shall publish its decisions in respect of any application made to it pursuant to paragraph (a).

• (h) Any decision by the Commission in regard to an application under paragraph (a) shall be subject to review by the European Commission in accordance with the review procedure laid down at Article 36(9) of the Directive.

• (i) Where an application under paragraph (a) is from an operator located in the territory of more than one Member State, F52[or refers to a natural gas transmission line with a third country,] the Commission shall comply with the procedures at Article 36(4) of the Directive.

• (j) An operator that makes an application under paragraph (i) is also bound by the procedures at Article 36(4) of the Directive.

• (k) The Commission, shall by direction, provide for the procedures and conditions under which access to the storage facility under the control of the operator shall be negotiated.

• (l) The holder of an exemption under paragraph (a) shall negotiate the terms, conditions and charges for access to the storage facilities under the control of that operator in good faith and in accordance with the procedure and conditions referred to in paragraph (k).

• (m) The Commission shall direct the holder of an exemption under paragraph (a) to publish, on a publically available website, the main commercial conditions for the use of the facilities under his or her control within 6 months of the grant of that exemption and on an annual basis thereafter.

• (n) The Commission shall determine, in its sole determination, that which constitutes the "main commercial conditions" referred to in paragraph (m).]

• F52[(19A)
• (a) Before the Commission makes a decision in regard to an exemption under subsection (19)(a), it shall consult—

• (i) with the national regulatory authorities of the other Member States which are likely to be affected by the new infrastructure, and

• (ii) subject to paragraph (b), where the infrastructure concerned is connected with the European Union network under the jurisdiction of another Member State and originates from, or ends in, one or more than one third country, with the relevant authorities of each such third country.

• (b) Where paragraph (a)(ii) has been complied with but none of the relevant authorities referred to in that paragraph makes a response to the consultation sought within a reasonable timeframe or, as appropriate, within a set deadline not exceeding 3 months, the Commission may make the decision referred to in paragraph (a).]

• (20)
• (a) The Commission shall, from time to time, review the grant of an exemption under subsection (19)(a).

• (b) Following a review under paragraph (a), the Commission may, where it considers it necessary for the promotion of competition in the natural gas market—

• (i) revoke the exemption, or

• (ii) amend the terms and conditions imposed under subsection (19)(a) as the Commission considers appropriate.

• (c) The Commission shall inform the holder of the exemption of the results of a review under this subsection as soon as may be after the completion of the review

F53[Take-or-Pay Gas Commitments

(21)(a) The Commission may, on a case by case basis, grant a temporary derogation from Article 32 of the Natural Gas Market Directive, where the holder of a licence considers that allowing an application for third party access would cause serious economic and financial difficulties because of take-or-pay commitments of the licence holder under one or more gas purchase contracts.

• (b) Applications for a derogation, referred to in paragraph (a), may be made to the Commission by the holder of a licence either before or after the holder of the licence has refused third party access to the gas network system, but must be made promptly and without delay where the licence holder has refused access.

• (c) Applications, referred to in paragraph (b), shall be accompanied by all relevant information on the nature and extent of the difficulties and on the efforts undertaken by the licence holder to resolve the difficulties.

• (d) When making a decision to grant or refuse to grant a derogation under this subsection, the Commission shall take into account in particular the following criteria:

• (i) the objective of achieving a competitive gas market;

• (ii) the need to fulfill public-service obligations within the meaning of Article 3 of the Natural Gas Market Directive and to ensure security of supply;

• (iii) the position of the natural gas undertaking concerned in the gas market and the actual level of competition in that market;

• (iv) the seriousness of the economic and financial difficulties encountered by natural gas undertakings and transmission undertakings or eligible customers;

• (v) the dates of signature and terms of the contract or contracts in question, including the extent to which they allow for market changes;

• (vi) the efforts made to find a solution to the difficulties;

• (vii) the extent to which, when accepting the take-or-pay commitments in question, the licensee could reasonably have foreseen, having regard to the provisions of the Natural Gas Market Directive, that serious difficulties were likely to arise;

• (viii) the level of connection of the gas network system with other network systems and the degree of interoperability of those systems;

• (ix) the effects the grant of the derogation would have on the functioning of the internal market in natural gas.

• (e) The Commission may, following assessment of an application under this subsection, grant a temporary derogation if it considers that alternative solutions are not reasonably available.

• (f) The Commission shall notify the European Commission promptly of any decision to grant a temporary derogation and shall submit to the European Commission all relevant information with respect to the proposed derogation.

• (g) Information, referred to in paragraph (f), may be submitted to the European Commission in an aggregated form.

• (h) Where a request is made by the European Commission to the Commission to withdraw or amend its decision to grant a temporary derogation, the Commission shall comply with such a request within 4 weeks of receiving such a request.

• (i) Licensees that have not been granted a temporary derogation under paragraph (e) shall not refuse access to the system because of take-or-pay commitments accepted in a gas purchase contract.

• (j) Serious difficulties shall in any case be deemed not to exist when the sales of natural gas do not fall below the level of minimum offtake guarantees contained in gas-purchase take-or-pay contracts or in so far as the relevant gas-purchase take-or-pay contract can be adapted or the natural gas undertaking is able to find alternative outlets.]]]

10B. F54[Transmission of natural gas by pipeline operators on behalf of other persons - role of Minister for the Marine and Natural Resources.

10B.—F55[(1) (a) Subject to subsection (6) and subject to such exemptions as may be granted in accordance with F56[Article 36 of the Directive], where an application is received for third party access in respect of an upstream pipeline from or on behalf of an eligible customer, the upstream pipeline operator shall offer to enter into an agreement for such access, subject to terms and conditions specified in regulations made by the Minister under subsection (3).

• (b) In paragraph (a), "eligible customer" means—

• (i) the holder of a natural gas licence under section 16 of the Gas (Interim) (Regulation) Act 2002 , for the purpose of carrying out any activity for which the holder is licensed,

• (ii) the holder of a petroleum lease under section 13 of the Petroleum and Other Minerals Development Act 1960, for the purpose of carrying out any activity connected with the lease,

• (iii) a person in respect of whom an order has been made under section 2(1) of the Gas (Amendment) Act 1987, for the purpose of carrying out the functions conferred on the person by the order,

• (iv) a person who operates a gas-fired generating station, irrespective of its annual consumption level, for the purpose of providing energy for the generation of electricity at that station,

• (v) a customer purchasing natural gas which is not exclusively for his or her household use, and

• (vi) subject to the provisions of section 18 (2) of the Energy (Miscellaneous Provisions) Act 2006, with effect from the coming into operation of this subparagraph, any person.]

• F57[(2) Notwithstanding the generality of subsection (1)—

• (a) an offer made under that subsection may include an offer to grant access at a rate or for a volume or at a rate and for a volume different from that requested—

• (i) where the offer is as well as an offer of access at the requested rate and volume, or

• (ii) where the request may be refused in accordance with subsection (6),

• (b) the Minister shall have the power to examine the reasons for making an offer under paragraph (a) and to give appropriate directions with regard to the volume and rate to be offered, without prejudice to any regulations made under subsection (3), and,

• (c) where connection to or enhancement of the upstream pipeline of the operator is required by the applicant, an offer made under that subsection—

• (i) shall include the terms for such a connection or enhancement, including any charges for connection or enhancement, and details of all technical aspects relating to the connection or enhancement that might be reasonably required by that person, and

• (ii) on request of the applicant, may be on the basis that the applicant constructs, or that either or both the applicant and the upstream pipeline operator make arrangements to have constructed, the connection to the pipeline, and the ownership of any such connection constructed or arranged to be constructed by the applicant shall, subject to subsection (8), be a matter for agreement between the parties.]

• F57[(3) The Minister may, following consultation with the Commission, by regulations provide for—

• (a) the matters to be specified in an agreement for transportation of the natural gas through the pipeline of the upstream pipeline operator including terms and conditions relating to price,

• (b) the matters to be specified in an agreement for connection to or enhancement of the pipeline of the pipeline operator,

• (c) the terms and conditions, including terms and conditions relating to price of the connection or enhancement, upon which an offer for connection to or enhancement of the pipeline of the pipeline operator is made,

• (d) the methods for determining the proportion of the costs to be borne by the person making the application for connection to or enhancement of the pipeline of the pipeline operator and to be borne by the pipeline operator being costs which are directly or indirectly incurred in carrying out works under an agreement or making a connection or modifying an existing connection,

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

• (f) any other matters which the Minister for the Marine and Natural Resources considers necessary or expedient for the purpose of making an offer for the transportation of natural gas through a pipeline or connection to a pipeline.]

• (4) An upstream pipeline operator shall comply with any regulations made by the Minister for the Marine and Natural Resources under subsection (3) of this section within such time period as may be specified by the Minister for the Marine and Natural Resources in the regulations.

• (5) An upstream pipeline operator shall not make an offer under subsection (1) of this section other than to a person of the type mentioned in paragraph (a), (b), (c), (d) or (e) of that subsection.

• (6) An upstream pipeline operator may refuse a request made under subsection (1) of this section—

• F57[(a) on the basis of a lack of capacity in its pipeline, save where it is economical for the operator to make the necessary enhancements to the capacity of the pipeline, in accordance with such conditions as may be specified by the Minister in regulations made under subsection (3) of this section,]

• (b) on the basis of a lack of connection to that pipeline, save where the person making the request is willing to pay for such a connection in accordance with such conditions as may be specified by the Minister for the Marine and Natural Resources in regulations made under subsection (3) of this section,

• (c) where, to enter into an agreement under this section would be likely to involve the upstream pipeline operator in a contravention or a breach of—

• (i) the Gas Acts, 1976 to 2002, the Electricity Regulation Act, 1999 , the Gas (Amendment) Act, 2000, or the Gas (Interim) (Regulation) Act, 2002,

• (ii) regulations made under any of the aforesaid Acts,

• (iii) the conditions of any licence granted or consent given to the upstream pipeline operator under this Act or under the Gas (Interim) (Regulation) Act, 2002,

• (iv) the conditions of any licence, lease or permit granted to the upstream pipeline operator under the Petroleum and Other Minerals Development Act, 1960, or

• (v) the upstream pipeline operator's code of operations, being a code, approved by the Minister for the Marine and Natural Resources, in respect of all technical design, operational and other requirements relating to operation of the upstream pipeline in respect of which the holder has been granted a consent by that Minister under section 40(1), or

• (d) the person making the application does not undertake to be bound by the terms of the aforesaid code of operations of the upstream pipeline operator in so far as those terms are applicable to that person.

• (7) Where an upstream pipeline operator refuses to offer to enter into an agreement under this section, the operator shall serve notice on the applicant of the reasons for such a refusal.

• F57[(8) The Minister or any person nominated in that behalf by the Minister, for the purposes of F56[Article 36 of the Directive], shall be the competent authority (in this section referred to as the "competent authority") in the State to settle expeditiously disputes concerning refusal to offer to enter into an agreement under this section within the scope of the Directive.]

• (9) Any dispute between an upstream pipeline operator and any person who is, or claims to be, a person to whom the operator is obliged to make an offer for the transportation of natural gas through a pipeline under the control of that operator (and whether as to the making of an offer, the terms offered, the proposed charges or otherwise) where an offer is made or is refused by the operator, may, upon the application of that person, be determined by the competent authority and the operator shall comply with and be bound by any such determination.

• F58[(10)
• (a) Where an application is made under subsection (9) to the competent authority in relation to a dispute concerning an upstream pipeline, part of which is situated in the territory of another Member State, on the seabed under the territorial seas of another Member State or on the continental shelf belonging to another Member State, the competent authority shall, prior to considering the application, consult the relevant authorities in that other member State with respect to the application with a view to ensuring that the provisions of the Directive are applied consistently.

• (b) Where the upstream pipeline network originates from a third country, the competent authority, prior to considering the application, shall consult the third country concerned where the upstream pipeline network originates, and may consult the relevant authorities in other Member States, with a view to ensuring, as regards the network concerned, that the Directive is applied consistently in the territory of the Member States.]

• (11) The parties to a dispute referred to in subsection (8) of this section shall provide all documents, records, accounts, estimates and other information, whether oral or written, requested from time to time, by the competent authority in the form and at the times specified by that authority, for the purpose of making a determination under subsection (9) of this section.

• (12)
• (a) In making a determination under subsection (9) of this section, the competent authority shall apply the objectives of—

• (i) fair and open access,

• (ii) achieving a competitive market in natural gas, and

• (iii) avoiding any abuse of a dominant position.

• (b) In applying the objectives under paragraph (a) of this subsection, the competent authority shall take account of—

• (i) security and regularity of supplies,

• (ii) capacity which is or can reasonably be made available,

• (iii) environmental protection, and

• (iv) the number of parties which may be involved in negotiating access to upstream pipelines.

• (13) Without prejudice to the generality of subsection (12) of this section, in making a determination under subsection (9) of this section, the competent authority may take into account the need—

• (a) to refuse access where there is an incompatibility which cannot be reasonably overcome between the technical specifications being proposed by the applicant and those applying to the pipeline of the upstream pipeline operator,

• (b) to avoid difficulties which cannot be reasonably overcome and could prejudice the efficient, current and planned future production of natural gas or other hydrocarbons, including that from fields of marginal economic value, and

• (c) to respect the duly substantiated reasonable needs of the upstream pipeline operator for the transport and processing of gas and the interests of all other users of the relevant upstream pipeline or processing or handling facilities who may be affected.

• (14) In order to ensure compliance with a determination made under subsection (9) of this section the competent authority may apply in a summary manner on notice to the High Court for an order requiring an upstream pipeline operator to comply with the determination.

• (15) Where providing for the transportation of natural gas or where offering terms for the carrying out of works for the purpose of connection to a pipeline under the control of an upstream pipeline operator, the upstream pipeline operator shall not discriminate unfairly as between any persons or classes of persons.

• (16) An upstream pipeline operator shall not, in the context of sales or purchases of natural gas by that operator or related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to a pipeline under the control of the upstream pipeline operator.

• (17)
• (a) Subject to paragraph (b) of this subsection, an upstream pipeline operator shall, within such time as the Minister for the Marine and Natural Resources may direct, prepare a statement for the approval of the Minister setting out the basis upon which charges are imposed—

• (i) for the transportation of natural gas through a pipeline under the control of the upstream pipeline operator, and

• (ii) for connection to a pipeline under the control of that upstream pipeline operator.

• (b) The Minister for the Marine and Natural Resources may—

• (i) give directions to an upstream pipeline operator from time to time in respect of the basis for charges for the transportation of natural gas through, or connection to, a pipeline under the control of the upstream pipeline operator, and

• (ii) specify by regulations the classes of upstream pipeline operator to whom paragraph (a) of this subsection does not apply.

• (c) Notwithstanding the generality of paragraph (b) of this subsection, directions given by the Minister for the Marine and Natural Resources under this subsection may provide for—

• (i) the methods of charging to be included in the statement to be prepared by an upstream pipeline operator,

• (ii) the form and the extent of the information to be provided by an upstream pipeline operator to applicants,

• (iii) the form of charges and information about those charges to be included in the statement to be prepared by an upstream pipeline operator,

• (iv) the procedure to be adopted in the submission by an upstream pipeline operator of a statement of charges and the approval by the Minister for the Marine and Natural Resources of such statement, and

• (v) the nature of information to be provided to applicants seeking the transportation of natural gas through, or connection to, a pipeline under the control of the upstream pipeline operator and its presentation and transparency.

• (d) An upstream pipeline operator shall comply with directions given to it by the Minister for the Marine and Natural Resources under this subsection.

• (e) A charge for the transportation of natural gas through, or connection to, a pipeline under the control of the upstream pipeline operator shall be calculated in accordance with directions given by the Minister for the Marine and Natural Resources under this section so as to enable the upstream pipeline operator to recover—

• (i) the appropriate proportion of the costs directly or indirectly incurred in carrying out any necessary works, and

• (ii) a reasonable rate of return on the capital represented by such costs.

• (f) The Minister for the Marine and Natural Resources, solely, shall determine that which constitutes an "appropriate proportion" referred to in paragraph (e)(i) of this subsection and a "reasonable rate of return" referred to in paragraph (e)(ii) of this subsection.

• (18)
• (a) An upstream pipeline operator shall send each statement prepared in accordance with subsection (17) of this section to the Minister for the Marine and Natural Resources for its approval (in this section referred to as the "statement") and the statement, and in particular any charges referred to therein, shall not apply until such time as it has been approved of by the Minister for the Marine and Natural Resources, subject to such modifications, if any, as that Minister considers appropriate.

• (b) The Minister for the Marine and Natural Resources shall consult with an upstream pipeline operator and have regard to any submission made by the upstream pipeline operator to the Minister for the Marine and Natural Resources prior to making a decision as to whether to approve of or not, as the case may be, a statement submitted by the upstream pipeline operator to the Minister for the Marine and Natural Resources for approval.

• (c) Any charges imposed by an upstream pipeline operator on or before the coming into operation of this section shall, subject to the approval of the Minister for the Marine and Natural Resources, continue in force until a statement has been approved of by that Minister under this section and thereafter all charges shall be in accordance with a statement approved of by that Minister.

• F57[(19) In this section—

F58[“Directive” means the Natural Gas Market Directive;]

“pipeline” means an upstream pipeline and includes facilities supplying technical services incidental to acquiring access to such pipelines;

“third party access” means the transportation of natural gas through an upstream pipeline operator’s pipeline and includes access to facilities supplying technical services incidental to such access except for the parts of such pipelines and facilities which are used for local production operations at the site of the field where the gas is produced;

“upstream pipeline operator” means a person operating an upstream pipeline in accordance with a consent given by the Minister under Section 40(1).]]

10C. F59[Technical agreements must be compatible with European Union law, etc.

10C. — Any technical agreements by a transmission system operator or any other economic operator on issues concerning the operation of transmission lines between the State and another Member State or a third country must be compatible with European Union law and relevant decisions of the Commission and shall be notified by the transmission system operator or the economic operator, as the case may be, to the Commission.]

10D. F60[Negotiations with third country

10D. — (1) Without prejudice to other obligations under European Union law, existing agreements between the State and a third country on the operation of a transmission line or an upstream pipeline network may be maintained in force until the entry into force of a subsequent agreement between the European Union and the same third country or until the procedure under Article 49b of the Natural Gas Market Directive is applied by the European Commission, whichever first occurs.

• (2) Where the Commission, as the relevant national regulatory authority, intends to enter into negotiations with a third country, on behalf of the State, in order to amend, extend, adapt, renew or conclude an agreement on the operation of a transmission line concerning matters falling, entirely or partly, within the scope of the Natural Gas Market Directive, it shall notify the European Commission of its intention in writing.

• (3)
• (a) A notification under subsection (2) shall include the relevant documentation and an indication of the provisions to be addressed in the negotiations, the objectives of the negotiations and any other relevant information.

• (b) A notification under subsection (2) shall be transmitted to the European Commission at least 5 months before the intended start of the negotiations.

• (4) The right to enter into negotiations with a third country under subsection (2) is subject to approval by the European Commission under Article 49(b) of the Natural Gas Market Directive.

• (5) Where authorised to enter into formal negotiations with a third country, the Commission shall notify the European Commission of the outcome of the negotiations and shall transmit the draft text of the negotiated agreement to the European Commission for approval.]

11. F61[Directions as to profits and financial objectives of Board

11. — (1) (a) The majority-shareholding Minister (with, where the majority- shareholding Minister is not the Minister for Finance, the approval of the Minister for Finance) having consulted with the Minister, the Minister for Public Expenditure and Reform and any other Minister of the Government who, in the opinion of the majority-shareholding Minister having regard to the functions of that other Minister, ought to be consulted may, from time to time, give the Board such general directives concerning the financial objectives of the Board as he or she considers appropriate.

• (b) The majority-shareholding Minister (with, where the majority-shareholding Minister is not the Minister for Finance, the approval of the Minister for Finance) having consulted with the Minister, the Minister for Public Expenditure and Reform and any other Minister of the Government who, in the opinion of the majority-shareholding Minister having regard to the functions of that other Minister, ought to be consulted may, from time to time, direct that the profits of the Board in a year specified in the direction shall be applied in such manner (including application for the benefit of the Exchequer) as is specified in the direction.

• (2) In performing its functions the Board shall—

• (a) comply with any direction under this section, and

• (b) have regard to any directive under this section concerning its financial objectives.]

12. Contracts by Board.