GAS REGULATION ACT, 1982

AN ACT TO ENABLE CERTAIN UNDERTAKERS SUPPLYING GAS TO ADOPT MEMORANDA OR ARTICLES OF ASSOCIATION, AND OTHERWISE TO AMEND THE LAW RELATING TO THE SUPPLY OF GAS. [21st July, 1982]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1 Definitions.

1.—In this Act—

“charge” includes mortgage;

“the Companies Act” means the Companies Act, 1963;

“company” means a company within the meaning of section 2 of the Companies Act;

“director” includes any person occupying the position of director by whatever name called;

“local authority” means a local authority for the purposes of the Local Government Act, 1941;

“the Minister” means the Minister for Industry and Energy;

“modifications” includes exclusions;

“prescribed” means prescribed by regulations made by the Minister;

“prospectus” means a prospectus within the meaning of the Companies Act;

“share”, except where the context otherwise requires, includes stock;

“special Act” means any Act, other than a Public General Act, and includes a special Act within the meaning of the Companies Clauses Consolidation Act, 1845, or any order which, by virtue of section 10 (5) of the Gas Regulation Act, 1920, is to be deemed to be a special Act within such meaning;

“statutory instrument” means a statutory instrument within the meaning of the Interpretation Act, 1937;

“undertaker” means any person, other than a local authority or the Irish Gas Board, engaged in the business of supplying gas by means of gas mains.

2 Undertakers may adopt memorandum or articles of association.

2.—(1) (a) Subject to subsections (2), (3) and (4) of this section, an undertaker may by resolution adopt a memorandum or articles of association.

• (b) Subject to subsections (2), (3) and (4) of this section, an undertaker may by resolution amend a memorandum or articles of association duly adopted under this section including an amendment changing the name of the undertaker.

• (2) Where an undertaker adopts a memorandum under this section, the following provisions shall apply:

• (a) the objects of the undertaker shall be stated in the memorandum to include—

• (i) the manufacture, production, acquisition, purchase, transmission, distribution and supply of gas within such area as is for the time being permitted by law, and

• (ii) the carrying on of the business of a gas utility within such area,

• (b) the memorandum shall specify the name of the undertaker and the amount of the capital of the undertaker, and, where the liability of shareholders or stockholders is limited, contain a statement to that effect, and

• (c) the memorandum shall specify any special Act which applies to the undertaker concerned, or, in case part only of a special Act so applies, the provisions of such Act which so apply.

• (3)
• (a) A memorandum or articles of association, or an amendment which is duly adopted under this section, shall, as confirmed by the Minister where such confirmation is under this section required, bind the undertaker concerned and the shareholders or stockholders, as may be appropriate, thereof to the same extent as if such memorandum, articles or amendment had been signed and sealed by each such shareholder or stockholder and contained covenants by each such shareholder or stockholder to observe and be bound by all the provisions of the memorandum, articles or amendment, as may be appropriate.

• (b) All moneys payable to an undertaker by any person on foot of the memorandum or articles of association adopted under this section shall be a debt due from him to the undertaker.

• (4) The provisions of subsections (1), (2), (3), (4) and (5) of section 141 of the Companies Act shall apply to any resolution under this section subject to the following modifications:

• (a) each of the references in those subsections to members shall be construed as a reference to the shareholders or, as may be appropriate, stockholders of the relevant undertaker,

• (b) the reference in the said subsection (2) to a company shall be construed as a reference to the relevant undertaker, and

• (c) the reference in the said subsection (4) to the articles shall be construed as a reference to the articles of association adopted under this section by the relevant undertaker and, where they for the time being stand amended under this section, as so amended.

• (5) Subject to subsection (6) of this section, a memorandum or articles of association or any amendment adopted under this section shall be subject to confirmation by the Minister and in case such a memorandum, such articles or such an amendment is so adopted, the undertaker concerned shall, as soon as may be, send a copy thereof to the Minister who may confirm, or refuse to confirm, the memorandum, articles or amendment.

• (6)
• (a) The Minister may by a direction in writing provide that to the extent that it contains matters specified in the direction, a memorandum or articles of association or an amendment referred to in subsection (1) of this section and to which the direction relates shall not require to be confirmed under this section by the Minister.

• (b) A direction under this section may relate to—

• (i) the memorandum or articles of association generally, or any amendments thereof, of a particular undertaker or of any undertaker of a specified class or description,

• (ii) specified provisions, or provisions of a specified class or description, of any such memorandum or articles of association, or amendments of any such provision,

and in case a direction under this section is for the time being in force, subsection (5) of this section shall be construed and have effect subject to the terms of the direction.

• (7) Notwithstanding anything contained in any enactment or statutory instrument enacted or made before the passing of this Act, any memorandum or articles of association, or any amendment, duly adopted under this section, and, to such extent as is necessary in the particular case, confirmed under this section by the Minister, shall have effect in accordance with its terms, and except in so far as a provision either of an Act specified in the Schedule to this Act or of a special Act is amended or otherwise affected by reason of the foregoing, no such provision which, immediately before the commencement of this Act, applied as regards the relevant undertaker shall be construed as being amended or otherwise affected by this Act.

• (8) The adoption of a memorandum or articles of association pursuant to this section shall not affect any liability of the undertaker concerned or any power, right, privilege or security exercisable, enjoyed or enforceable in respect of any debt, liability or obligation incurred, or any agreement entered into by or on behalf of such undertaker and which could have been enforced immediately before such adoption.

3 Application of certain provisions of Companies Act extended.

3.—(1) The provisions of the Companies Acts, 1963 to 1982, which regulate or otherwise relate to—

• (a) the contents and issue of a prospectus of a company,

• (b) the allotment of share capital of a company,

• (c) commissions, discounts and other allowances given or allowed by a company,

• (d) financial assistance for the purchase of shares in a company,

• (e) the issue of shares in a company at a discount,

• (f) redeemable preference shares in a company,

• (g) share capital of a company,

shall, with the necessary modifications, apply as regards the contents and issue of a prospectus of an undertaker, the allotment of share capital of an undertaker, commissions, discounts and other allowances given or allowed by an undertaker, financial assistance for the purchase of shares in an undertaker, the issue of shares of an undertaker, the redeemable preference shares in an undertaker and the share capital of an undertaker, respectively.

• (2) Without prejudice to the generality of subsection (1) of this section—

• (a) section 47 of the Companies Act (which requires registration of a prospectus), as applied by the said subsection (1), shall be construed and have effect as if each of the references therein to the registrar were a reference to the secretary of the undertaker concerned, and

• (b) subsection (4) of the said section 47 shall apply as regards the issue of a prospectus of an undertaker as it applies as regards the issue of a prospectus of a company and for the purposes of this paragraph the reference in the said subsection (4) to the company shall be construed as a reference to the undertaker.

• (3) Each of the references in section 385 of the Companies Act to offences under that Act shall be construed as including a reference to offences under that Act as applied by this Act.

4 Borrowings.

4.—(1) Notwithstanding anything contained in any enactment or statutory instrument but subject to any provision of its memorandum and articles of association in that regard, an undertaker to which this section applies shall have power to borrow in such manner as it shall think fit and for that purpose to issue such debentures, debenture stock (perpetual or otherwise) or other securities charged upon all or any part of its assets (including uncalled capital and any chose-in-action or other right to which the undertaker may be entitled), as it shall think fit and to discharge, in such manner as it thinks fit, any liability incurred by it by reason of any such issue.

• (2) This section applies to any undertaker who adopts a memorandum and articles of association pursuant to section 2 of this Act.

5 Auditors.

5.—Notwithstanding anything contained in any other enactment, the provisions of sections 160 to 163 of the Companies Act, as amended by section 6 of the Companies (Amendment) Act, 1982, shall, with the necessary modifications, apply to the appointment, tenure of office, remuneration, re-appointment, removal, qualification and powers of, and the making of reports by, an auditor or auditors of an undertaker and the filling of casual vacancies in the office of such auditor.

6 Charges.

6.—(1) Without prejudice to the generality of section 4 of this Act, where, were an undertaker a company, a charge to which section 99 of the Companies Act applies could be created by the undertaker, then a charge under this section may be created by the undertaker.

• (2) Subject to subsection (4) of this section, Part IV of the Companies Act (including in particular sections 100 (3), 101 (2), 102 (2) and 107 (3), but not including section 103 or 112) together with the other provisions of the Companies Act shall, with the necessary modifications, apply to or in relation to the creation of charges under this section by an undertaker and to or in relation to a charge created by virtue of this section as they apply to or in relation to the creation of charges under section 99 of the Companies Act by a company and to or in relation to a charge to which the said section 99 applies, respectively.

• (3) The undertaker concerned shall, for the purposes of this section, keep a register in the prescribed form of all charges requiring registration under Part IV of the Companies Act, as applied by this section, and shall enter in such register in relation to such charges—

• (a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in section 99 (8) of the Companies Act;

• (b) in the case of any other charge—

• (i) if the charge is a charge created by the undertaker, the date of its creation;

• (ii) if the charge is a charge on property acquired by the undertaker, the date of the acquisition of the property;

• (iii) if the charge is a judgement mortgage, the date of the creation of such judgement mortgage;

• (iv) the amount secured by the charge;

• (v) short particulars of the property charged;

• (vi) the person entitled to the charge.

• (4) In construing Part IV of the Companies Act, as applied by this section, each of the references therein to the registrar of companies shall be construed as a reference to the secretary of the undertaker concerned.

• (5) The register kept in pursuance of this section shall be open to inspection at any reasonable time by any person on payment of such fee (if any) as may be prescribed.

7 Receivers.

7.—(1) Notwithstanding anything contained in any other enactment, a receiver of the property of an undertaker shall have such powers in relation to that property as, had he been appointed as a receiver of the property of a company, he would have as regards the property of the company, whether by reason of the relevant debenture or other instrument or otherwise.

• (2) The reference in subsection (1) of this section to a receiver of the property of an undertaker includes a reference to a receiver and manager of the property of an undertaker and a manager of the property of an undertaker and it also includes a reference to a receiver, a receiver and manager and a manager of part only of that property, and also a receiver only of the income arising from that property or from part thereof.

• (3) The Minister may by order apply all or any of the provisions of Part VII and section 98 of the Companies Act, with such modifications as shall be specified in the order, to or in respect of receivers of the property of an undertaker or as respects assets coming to the hands of such a receiver.

8 Securing debts and other liabilities of undertakers.

8.—Notwithstanding anything contained in any enactment or statutory instrument, any debt, obligation or other liability incurred by an undertaker after the commencement of this Act may be secured in any manner in which, were the undertaker a company, the debt, obligation or other liability could be secured, and in relation to any debt, obligation or liability so incurred the provisions of law as regards securing a debt of a company, the form of such security, making effective such security and the other remedies of a secured creditor of a company for enforcing a security shall, with the necessary modifications, apply as regards securing a debt of an undertaker, the form of such security and the remedies of a secured creditor of an undertaker.

9 Priority of certain debts and other liabilities of undertakers.

9.—For the purpose of determining—

• (a) the priority between any debt or other liability incurred by an undertaker after the commencement of this Act and any other debt or other liability so incurred,

• (b) the rank of any security relating to any such debt,

notwithstanding anything contained in any other enactment, the provisions of law which, were each of the said debts or other liabilities a debt or other liability incurred by a company after such commencement, would apply shall, with such modifications as may be necessary, apply for such purpose.

10 Enabling applications.

10.—(1) Where, apart from this section—

• (a) a local authority to which this section applies or an undertaker has not power to—

• (i) obtain a supply of gas in bulk from any source whether situated within or without their or its authorised limits of supply;

• (ii) give a separate supply of gas for industrial purposes within their or its authorised limits of supply or give such a supply of gas for such purposes outside such limits of supply;

• (b) an undertaker has not power to—

• (i) establish a superannuation, pension or other like scheme;

• (ii) raise capital or borrow for any of the purposes aforesaid;

• (iii) alter the number of directors of the undertaker,

the local authority or the undertaker may make an application in that behalf to the Minister.

• (2)
• (a) Where the Minister receives an application under this section, he may when determining the application allow it with or without modification (including the imposition of terms and conditions) or refuse the application.

• (b) Where the Minister allows an application under this section with modification, when determining the application he shall specify in his decision the modification subject to which the application is allowed.

• (c) A determination by the Minister under this section may contain such supplementary and incidental provisions as appear to the Minister necessary to give the determination effect.

• (3) Where an application under this section is allowed, the determination made by the Minister as regards the application shall operate to permit the relevant local authority or undertaker to obtain or provide a supply of gas, establish a superannuation or other scheme, raise capital, borrow, or appoint directors, as may be appropriate, in accordance with the determination and subject to such terms and conditions (if any) as are specified therein.

• (4) This section applies to any local authority which is engaged in the business of supplying gas by means of gas mains.

11 Enabling orders.

11.—(1) Subject to subsection (3) of this section, the Minister may—

• (a) by order enable an undertaker to purchase or redeem (out of revenue or otherwise) and cancel debentures, debenture stock, mortgages, bonds, obsolete or unproductive capital or capital not represented by available assets,

• (b) by order authorise a particular local authority, being a local authority which has power to supply gas within their functional area, to supply gas to any place which is outside such functional area and within an area specified in the order,

• (c) by order alter the authorised limits of supply of an undertaker,

and in case the Minister makes an order under this section, then for so long as the order remains in force—

• (d) in case the order is an order described in paragraph (a) of this subsection, it shall operate to authorise the undertaker to which it relates to purchase, redeem or cancel any debenture or other thing to which the order relates in such manner and subject to such conditions (if any) as are specified in the order,

• (e) in case the order is an order described in paragraph (b) of this subsection, it shall operate to authorise the local authority to which it relates to supply gas to any place in the area specified in the order,

• (f) in case the order is an order described in paragraph (c) of this subsection, the authorised limits of the undertaker to which the order applies shall be taken to be those limits as altered by the order.

• (2) The Minister may by order, for the purpose of—

• (a) enabling subsection (3) of section 10 of this Act to have full effect in relation to a determination under that section,

• (b) providing for the proper and efficient performance by a particular undertaker of its functions,

in so far as is necessary repeal or amend any provision of any special Act or instrument made under any such Act to such extent as the provision applies to the undertaker concerned.

• (3) An area specified in an order under this section shall not include any place which, immediately before the commencement of the order, is within the authorised limits of supply of the undertaker concerned.

• (4) An order under this section may contain such incidental, supplemental or consequential provisions as the Minister considers necessary to enable the order to have full effect.

• (5) Section 16 of the Gas Regulation Act, 1920, shall be construed and have effect as if the reference therein to applications and other proceedings under that Act included a reference to an application for an order under this section.

• (6) Where an order under this section is proposed to be made, 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.

12 Power to remove difficulties.

12.—If in any respect any difficulty arises by reason of—

• (a) the existence of a doubt as to whether any provision of the Companies Act is or is not applied by this Act or as to the extent of any such application,

• (b) an application by this Act of any such provision or the extent of such an application,

• (c) the non-application by this Act of or a failure in this Act to apply, or to apply to a sufficient extent, any such provision,

the Minister may, for the purpose of removing the difficulty, by order make such declaration or other provision (including an amendment of any provision of the Companies Act) as he considers to be appropriate in the particular circumstances.

13 Orders and regulations generally.

13.—(1) The Minister may by order revoke or amend an order under this Act (including an order under this subsection).

• (2) Every order or regulation made by the Minister under this Act, other than an order under section 11 of this Act, shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next twenty-one days on which that House has sat after the order is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

14 Expenses.

14.—The expenses incurred by the Minister 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.

15 Repeal.

15.—Section 10 (2) of the Gas Regulation Act, 1920, is hereby repealed.

16 Short title.

16.—This Act may be cited as the Gas Regulation Act, 1982.

SCHEDULE