S.I. No. 445/2000 - European Communities (Internal Market in Electricity) Regulations, 2000

PART 10 - Miscellaneous Amendments to Act of 1999, etc.

Functions of Commission.

31. Section 9 of the Act of 1999 is amended-

• (a) in subsection (1) by the deletion of “and” where it last occurs in paragraph (d) and the insertion of the following after that paragraph:

• “(da) to facilitate arrangements, to apply until 19 February 2005, approved of by the Commission, which have the effect of securing that the Board is able to satisfy demand for electricity from final customers, who are not supplied in accordance with a licence issued under paragraph (b), (c) or (d) of section 14(1), in the first instance from generation stations currently owned by the Board.

• (db) to examine charges, and the costs underlying such charges, or any proposals to alter such charges, for electricity supplied by the Board in accordance with paragraph (da) to final consumers who are not being supplied in accordance with a licence issued under paragraph (b), (c) or (d) of section 14(1),

  • (dc) following an examination pursuant to paragraph (db) and where the Commission considers it necessary, to issue directions to the Board in relation to either or both the nature and the amount of any charge or proposed charge referred to in paragraph (db), and”,

and

• (b) by the insertion of the following after subsection (1):

• “(1A) For the purposes of this Act, the functions of the Commission under the European Communities (Internal Market in Electricity) Regulations, 2000, shall be deemed to be functions of the Commission under this Act.”.

Licences to generate and supply electricity.

32. (1) Section 14 of the Act of 1999 is amended-

• (a) in subsection (1), by the deletion of “or” where it last occurs in paragraph (c) and the insertion of the following after paragraph (d):

• “(e) to discharge the functions of the transmission system operator in accordance with the European Communities (Internal Market in Electricity) Regulations, 2000,

• (f) to discharge the functions of the transmission system owner in accordance with the European Communities (Internal Market in Electricity) Regulations, 2000, or

• (g) to discharge the functions of the distribution system operator in accordance with the European Communities (Internal Market in Electricity) Regulations, 2000,”

and the said subsection (1), as so amended, is set out in the Table to this Regulation,

• (b) by the substitution of the following for subsection (8):

“(8)(a) The holder of a licence granted under paragraph (a) of subsection (1) may supply electricity to the holder of a licence granted under paragraph (b), (c) or (d) of that subsection or to the Board.

• (b) The holder of a licence under paragraph (a) of subsection (1) may supply an amount of electricity to its own premises or to its own subsidiary, or subsidiaries, whether or not eligible, which does not exceed the amount of electricity produced by the holder of the licence or electricity which is purchased, in place of such electricity, in accordance with the trading arrangements provided for in any Regulations made by the Commission under section 9(1)(d).”.

and

• (c) by the insertion of the following after subsection (12):

• “(13)

  • (a) Subject to such arrangements as the Commission may approve in the interest of economic efficiency in relation to the discharge by the holders of licences of their functions under paragraphs (f) and (g) of section 14(1), the Commission shall ensure that the licence granted pursuant to the said paragraph (f) shall contain provisions which-

    • (i) secure the complete and effective separation of that part of the business of the licensee as relates to any of the ownership, maintenance and construction of the transmission system (or any part thereof) from all other parts of its business, and

    • (ii) require the preparation of separate accounts in respect of that part of the licensee's business which relates to the ownership, maintenance and construction of the transmission system (or any part thereof).

  • (b) Subject to such arrangements as the Commission may approve in the interest of economic efficiency in relation to the discharge by the holders of licences of their functions under paragraphs (f) and (g) of section 14(1), the Commission shall ensure that the licence granted pursuant to the said paragraph (g) shall contain provisions which-

    • (i) secure the complete and effective separation of that part of the business of the licensee as relates to any of the operation, maintenance and development of the distribution system (or any part thereof) from all other parts of its business, and

    • (ii) require the preparation of separate accounts in respect of that part of the licensee's business which relates to the operation, maintenance and development of the distribution system (or any part thereof).”.

• (2) A licence shall not be granted pursuant to paragraph (e), (f) or (g) of section 14(1) of the Act of 1999 so as to have effect before the effective date.

TABLE

• (1) The Commission may grant or may refuse to grant to any person a licence—

• (a) to generate electricity,

• (b) to supply electricity to eligible customers,

• (c) subject to section 28, to supply electricity to final customers which in aggregate does not exceed the amount of electricity which is available to the supplier and which is produced using renewable, sustainable or alternative forms of energy or electricity purchased, in place of such electricity, in accordance with the trading arrangements provided for in any Regulations made by the Commission under section 9(1)(d),

• (d) to supply to the single premises of the main heat customer electricity which is produced using combined heat and power at the generating station from which that main heat customer is supplied with heat, or electricity purchased, in place of such electricity, in accordance with the trading arrangements provided for in any Regulations made by the Commission under section 9(1)(d),

• (e) to discharge the functions of the transmission system operator in accordance with the European Communities (Internal Market in Electricity) Regulations, 2000,

• (f) to discharge the functions of the transmission system owner in accordance with the European Communities (Internal Market in Electricity) Regulations, 2000, or

• (g) to discharge the functions of the distribution system operator in accordance with the European Communities (Internal Market in Electricity) Regulations, 2000,

on such terms and conditions as may be specified in the licence.

Construction of connections.

33. Section 34 of the Act of 1999 is amended by the addition of the following after subsection (1):

• “(1A) An offer under subsection (1) may, on request of the applicant, be on the basis that the applicant constructs, or that either or both the applicant and the transmission system operator arranges to have constructed, the connection to the transmission system, and any such connection constructed or arranged to be constructed by the applicant shall be the property of the person with whom the agreement is made, and shall, for the purposes of section 37, be deemed to be a direct line.”.

PART 11 - Establishment of Transmission System Operator Company

Formation of company.

34. (1) The Minister shall cause to be incorporated under the Companies Acts, 1963 to 1999, a public limited company for the purposes of this Part of these Regulations and conforming to the conditions laid down in these Regulations.

• (2) The company referred to in paragraph (1) shall, upon the grant to it of a licence under section 14(1)(e) of the Act of 1999 be the transmission system operator for the purposes of these Regulations and the Directive.

Name and capital formation of company.

35. (1) The company referred to in Regulation 34 shall be known as EirGrid or, in the Irish language, as Oibritheoir Eangach Leictreachais na hÉireann.

• (2) Section 6 (1)(a) of the Companies Act, 1963 , shall not apply to EirGrid.

• (3) The authorised share capital of EirGrid shall be £30,000 or such other amount as may be determined from time to time by the Minister for Finance, after consultation with the Minister.

• (4) EirGrid may, with the consent of the Minister for Finance given after consultation with the Minister, divide its shares into ordinary shares of £1 each.

Form of memorandum of association.

36. The memorandum of association of EirGrid shall be in such form consistent with these Regulations as may be approved of by the Minister from time to time, with the consent of the Minister for Finance.

Objects to be stated in memorandum.

37. The principal objects of EirGrid shall be stated in its memorandum of association.

Articles of association.

38. The articles of association of EirGrid shall be in such form consistent with these Regulations as may be approved of by the Minister with the consent of the Minister for Finance.

Restriction on alteration of memorandum or articles of association.

39. Notwithstanding anything contained in the Companies Acts, 1963 to 1999, an alteration in the memorandum of association or articles of association of EirGrid shall not be valid or effective unless made with the prior written approval of the Minister given with the consent of the Minister for Finance.

Issue of shares to Minister for Finance.

40. EirGrid shall issue to the Minister for Finance such number of shares in the share capital of EirGrid as may be agreed upon by the Minister and the Minister for Finance and may from time to time thereafter issue to the Minister for Finance such number of shares of EirGrid as may be so agreed upon.

Issue of share to Minister.

41. (1) EirGrid shall issue to the Minister one share in the share capital of EirGrid.

• (2) The Minister may exercise in respect of his or her share in the share capital of EirGrid all the rights and powers of a holder of such shares and, where a right or power is exercisable by attorney, exercise it by his or her attorney.

• (3) The Minister shall not transfer or alienate his or her share in the share capital of EirGrid.

Issue of shares to subscribers to memorandum of association of company.

42. EirGrid shall issue one share in the share capital of EirGrid to each of the subscribers to the memorandum of association of EirGrid.

Exercise of powers by Minister for Finance in respect of shares.

43. The Minister for Finance may, subject to these Regulations, exercise in respect of the shares of EirGrid held by him or her all the rights and powers of a holder of such shares and, where a right or power is exercisable by attorney, exercise it by his or her attorney.

Transfer by Minister for Finance of shares.

44. (1) The Minister for Finance may, from time to time as occasion requires, for the purpose of compliance with so much of the Companies Acts, 1963 to 1999, as requires that there shall always be a minimum number of shareholders of EirGrid, transfer to any person one of his or her shares in the share capital of EirGrid.

• (2) Except as provided by paragraph (1), the Minister for Finance shall not transfer or alienate his or her shares in the share capital of EirGrid.

Obligation of certain shareholders to hold shares in trust.

45. (1) A person to whom a share in the share capital of EirGrid is issued under Regulation 42 or transferred to him or her under Regulation 44(1) shall hold that share in trust for the Minister for Finance and, accordingly, shall be bound to pay all dividends and other money which he or she receives in respect of the share to that Minister for the benefit of the Exchequer and to transfer, as and when required by that Minister, the share to him or her or to a person nominated in that behalf by him or her.

• (2) Except as provided by paragraph (1), a shareholder in EirGrid shall not transfer or alienate his or her share in the share capital of EirGrid.

• (3) Where a person ceases to be a member of the Board of EirGrid, any share in the share capital of EirGrid held by such person shall, without the necessity for a transfer, vest in the Minister for Finance.

Payment of dividends, etc., into Exchequer.

46. All amounts representing dividends or other money received by the Minister for Finance in respect of shares held by him or her in the share capital of EirGrid and all amounts representing repayment of or interest on repayable advances received or recovered by him or her from EirGrid shall be paid into or disposed of for the benefit of the Exchequer in such manner as he or she may direct.

Accounts and audits.

47. (1) Without prejudice to the requirements of the Companies Acts, 1963 to 1999, in relation to balance sheets and accounts, and without prejudice to Regulation 27, EirGrid shall keep, in such form as may be approved of by the Minister with the consent of the Minister for Finance, all proper and usual accounts of all money received by or expended by it, including a profit and loss account, an account showing the derivation of the funds of EirGrid and the purposes to which they are applied (referred to in paragraph (2) as the “cash flow statement”) and a balance sheet, and shall also keep in such form as aforesaid all such special accounts as the Minister may from time to time direct.

• (2) Accounts kept in pursuance of this Regulation shall be submitted annually by EirGrid to an auditor for audit and, as soon as may be after the audit, a copy of the profit and loss account, the cash flow statement, the balance sheet and such other (if any) of the accounts kept by EirGrid as the Minister may direct and a copy of the auditor's report on the accounts shall be presented to the Minister who shall cause copies thereof to be laid before each House of the Oireachtas.

• (3)
• (a) A person shall be appointed by EirGrid to be its auditor on the basis of a competitive tender.

• (b) The appointment shall be subject to the prior written approval of the Minister, with the consent of the Minister for Finance.

Annual report and furnishing of information to Minister.

48. (1) Not later than 6 months after the end of each accounting year, EirGrid shall submit a report in writing to the Minister of its activities and those of its subsidiaries during that year and, not later than 3 months after such submission, the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

• (2) A report of EirGrid under this Regulation shall include information, in such form as the Minister may direct after consultation with EirGrid and with the consent of the Minister for Finance, regarding the operations, cost-effectiveness and financial targets of EirGrid.

• (3) EirGrid shall, if so required by the Minister, furnish to him or her such information as he or she may require in respect of any balance sheet or other account or any report of EirGrid or any subsidiaries or in relation to the policy and operations (other than day-to-day operations) of EirGrid.

Prohibition on unauthorised disclosure of information.

49. (1) A person shall not disclose commercially sensitive information obtained by him or her while performing duties as a director or member of the staff of, or an adviser or consultant to, EirGrid unless he or she is duly authorised by EirGrid to do so.

• (2) A person who contravenes paragraph (1) shall be guilty of an offence.

• (3) In this Regulation “duly authorised” means authorised by EirGrid or by a person authorised in that behalf by EirGrid.

Chief Executive.

50. (1) (a) There shall be a chief executive of EirGrid who shall be known as and is referred to in these Regulations as the “Chief Executive”.

• (b) The Chief Executive shall, as such, be a director of EirGrid.

• (2)
• (a) The first Chief Executive shall, if willing, be the person who was the Managing Director of the Board's National Grid Business Unit immediately before the incorporation of EirGrid.

• (b) The first Chief Executive shall be appointed by the Minister.

• (c) The first Chief Executive shall not serve in that position for a total more than 7 years, unless the Directors of EirGrid and the Minister consider that there are exceptional circumstances which warrant a limited extension of that period and furthermore the first Chief Executive may be removed from office by the Minister during that period.

• (3) Each subsequent Chief Executive shall be appointed by the Directors and may not serve in that position for a total of more than 7 years, unless the Directors of EirGrid and the Minister consider that there are exceptional circumstances which warrant a limited extension of that period and furthermore each subsequent Chief Executive may be removed from office by the Directors of EirGrid during that period.

• (4) The functions of the Chief Executive shall be—

• (a) to carry on, manage and control generally the administration of EirGrid.

• (b) to advise the directors of EirGrid on any matter relating to or affecting the technical or safety standards specified under these Regulations or the safety of the electricity transmission system, and

• (c) to advise the directors of EirGrid in relation to the performance of the other functions of EirGrid and, in particular, but without prejudice to the generality of the foregoing, in relation to the making of orders and Regulations, and the giving of directions, by EirGrid, subject to the lawful directions of the directors of EirGrid.

• (5) Subject to paragraph (2)(c), the Chief Executive shall hold office upon and subject to such terms and conditions (including terms and conditions relating to remuneration, superannuation and allowances) as may be determined by the directors with the consent of the Minister and the Minister for Finance.

Chairperson.

51. (1) The chairperson of EirGrid-

• (a) shall be appointed from among the directors by the Minister with the consent of the Minister for Finance.

• (b) may be removed from office by the Minister with the consent of the Minister for Finance, and

• (c) shall hold office as chairperson for such period not exceeding 5 years as may be determined by the Minister with the consent of the Minister for Finance at the time of his or her appointment.

• (2) A person who holds or has held the office of chairperson of EirGrid shall, subject to paragraph (4) of Regulation 53, be eligible for re-appointment to that office.

• (3) A person who ceases to hold the office of chairperson of EirGrid may, subject to paragraph (4) of Regulation 53, if the Minister with the consent of the Minister for Finance, so determines, continue to hold the office of director and he or she shall be eligible for re-appointment as a director.

Chairperson's report.

52. (1) The chairperson of EirGrid shall, immediately after an audit referred to in Regulation 47(2), make a report in writing to the Minister of the company's activities during that year, separate from the report required under Regulation 48.

• (2) A report under this Regulation shall include -

• (a) a statement of all significant developments involving the company which occurred in that year (including the acquisition of shares or establishment of subsidiaries by the company).

• (b) a description of the matters the chairperson anticipates will arise in the accounting year next following the said year (or, where the chairperson considers it appropriate in any particular case, any subsequent accounting year) which may affect the company to any significant extent,

• (c) a statement, to the best of the chairperson's knowledge or belief, as to whether each of the following, as respects the company, has been complied with or adhered to, that is to say -

• (i) the requirements of these Regulations or of any other enactment in relation to the accounts of the company and statements as to the financial affairs of the company.

• (ii) guidelines issued by the Government, the Minister or the Minister for Finance in relation to the accounts of State enterprises or statements in respect of the financial affairs of the company.

• (iii) any requirements under Regulation 55,

• (iv) any code of conduct for the directors or members of staff of State enterprises issued by the Government, the Minister or the Minister for Finance,

• (v) any requirements under or by virtue of an act of the European Communities,

• (vi) any guidelines issued by the Government, the Minister or the Minister for Finance, in relation to the entering by a public authority into a contract with any person for the provision of goods or services by that person to such authority,

• (vii) any guidelines issued by the Government, the Minister or the Minister for Finance in relation to the remuneration to be paid by State enterprises to their chief executives,

• (d) where anything referred to in paragraph (c) is stated not to have been complied with, an explanation (in so far as the chairperson is in a position to give one) as to why there was a failure to comply with it and, where he or she is not in a position to give an explanation, a statement to that effect.

• (3) In this Regulation-

“public authority” means—

• (a) a Minister of the Government,

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

• (c) a board or other body established (but not including a company) by or under statute,

• (d) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or

• (e) a company in which all the shares are held by a board, other body or company referred to in paragraph (c) or (d);

“State enterprise” means a company (within the meaning of the Companies Acts) one or more shares in the shareholding of which is held by a Minister of the Government and the principal objects of which (as stated in its memorandum of association) are prescribed in whole or in part by statute.

Directors.

53. (1) The number of directors including the chairperson shall not exceed 8.

• (2) Subject to paragraph (3), the directors (other than the second and subsequent Chief Executives) shall be appointed and may be removed from office by the Minister with the consent of the Minister for Finance.

• (3) A person who holds the office of director shall be eligible for re-appointment to that office.

• (4) Subject to paragraphs (2) and (3), the directors (other than the Chief Executive and directors appointed in accordance with paragraph (5)) shall hold office for such period not exceeding 5 years as may be determined by the Minister with the consent of the Minister for Finance at the time of their appointment.

• (5) Of the first directors, other than the chairperson and the Chief Executive, the following shall apply:

• (a) 2, who shall be selected by lot at the first meting of the directors, shall hold office for a period of 3 years,

• (b) 2, who shall be selected as aforesaid, shall hold office for a period of 4 years, and

• (c) 2, who shall be selected as aforesaid, shall hold office for a period of 5 years.

• (6) The directors may act notwithstanding one or more vacancies in their number.

• (7) The remuneration and allowances for expenses of the chairperson and other directors shall be determined by the Minister with the consent of the Minister for Finance.

• (8) A director may at any time resign his or her office as a director by letter addressed and given or sent to the Minister and the resignation shall take effect on and from the date (which shall be the date of, or a date later than the date of, the letter) specified in the letter for that purpose.

• (9) If at any time it appears to the Minister that the removal from office of all or any of the directors (other than the Chief Executive) is necessary in the interests of the effective and economical performance of the functions of EirGrid, the Minister may remove from office all or so many of the directors of EirGrid as the Minister considers necessary in the interest aforesaid.

• (10) The Minister may at any time remove from office any director (other than the Chief Executive) who has become incapable through ill-health of performing efficiently his or her duties as such director or who has (otherwise than for a reason considered by the Minister to be sufficient) been absent from all meetings of EirGrid during a period of 6 months.

• (11) If and when the Minister removes from office under this Regulation any director of EirGrid, the Minister shall lay before each House of the Oireachtas a statement in writing of the fact of the removal from office of such director and of the reasons for such removal.

• (12) In making the appointments under paragraph (2) (other than directors appointed in accordance with paragraph (5)) the Minister shall have regard to the need for appointees to have particular skills and knowledge which are deemed of benefit to the commercial well being of EirGrid.

• (13) A person who-

• (a) is a member of the Commission, or

• (b) ceased to be a member of the Commission within the immediately preceding 12 months,

shall not be appointed to the Board.

Terms and conditions of office of chairperson and other directors.

54. The remuneration (including allowances for expenses) of the chairperson and the other directors of EirGrid and the other terms and conditions upon and subject to which they hold their respective offices shall be determined by the Minister with the consent of the Minister for Finance.

Disclosure by directors of certain interests.

55. (1) Where at a meeting of the directors of EirGrid any of the following matters arises, namely—

• (a) an arrangement to which EirGrid is a party or a proposed such arrangement,

• (b) a contract or other agreement with EirGrid or a proposed such contract or other agreement,

• (c) the giving, grant or renewal by EirGrid of any instrument of approval, or

• (d) the revocation, cancellation, withdrawal, suspension or endorsement by EirGrid of any instrument of approval, given or granted—

• (i) by EirGrid, or

• (ii) by the Minister under a provision of, or made under, any enactment,

then, any director of EirGrid present at the meeting who otherwise than in his or her capacity as such a director is in any way, whether directly or indirectly, interested in the matter—

• (I) shall at the meeting disclose to EirGrid the fact of such interest and the nature thereof,

• (II) shall absent himself or herself from the meeting or that part of the meeting during which the matter is discussed,

• (III) shall take no part in any deliberations of the directors relating to the matter, and

• (IV) shall not vote on a decision relating to the matter.

• (2) Where an interest is disclosed pursuant to this Regulation, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the director by whom the disclosure is made shall not be counted in the quorum for the meeting.

• (3) Where at a meeting of the directors of EirGrid a question arises as to whether or not a course of conduct, if pursued by a director of EirGrid, would constitute a failure by him or her to comply with the requirements of paragraph (1), the question may be determined by the person chairing the meeting whose decision shall be final and where such a question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

• (4) Where the Minister is satisfied that a director has contravened paragraph (1), he or she may, if he or she thinks fit, and with the consent of the Minister for Finance, remove that director from office and, in case a person is removed from office pursuant to this paragraph, he or she shall thenceforth be disqualified from being a director of EirGrid.

• (5) A person who fails to comply with this Regulation shall be guilty of an offence.

• (6) Nothing in this Regulation shall be taken to prejudice the operation of any rule of law restricting directors of a company from having any interest in contracts with EirGrid.

Disqualification of directors.

56. (1) The office of the director shall be vacated if -

• (a) he or she is adjudicated bankrupt in the State or elsewhere or makes any arrangement or composition with his or her creditors generally,

• (b) he or she becomes prohibited from being a director by reason of any order made under section 184 of the Companies Act, 1963 ,

• (c) he or she becomes of unsound mind,

• (d) he or she resigns his or her office by notice in writing to EirGrid and to the Minister,

• (e) his or her term of office as a director expires,

• (f) he or she is convicted of an indictable offence (other than an offence under the Road Traffic Act, 1961 , or any Act amending it), or any offence under the Act of 1999 or these Regulations,

• (g) he or she is for more than 6 months absent without permission of the Board of Directors from meetings of the directors held during that period,

• (h) he or she is removed from office by the Minister, with the consent of the Minister for Finance, under these Regulations,

• (i) he or she is-

• (i) nominated as a member of Seanad Éireann,

• (ii) elected as a member of either House of the Oireachtas or to the European Parliament, or

• (iii) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Election Act, 1997, as having been elected to such Parliament to fill a vacancy,

• (j) after appointment to that office, he or she is elected, re-elected or otherwise becomes a director, employee or consultant of another electricity undertaking without the prior consent of the Commission,

• (k) on or prior to appointment to that office, he or she fails to notify and seek the consent of the Commission to continue in any position held as a director, employee or consultant of another electricity undertaking.

• (2) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the Assembly of the European Communities shall, while he or she is so entitled or is such a member, be disqualified from becoming a director of EirGrid.

Code of conduct

57. (1) EirGrid shall prepare a code of conduct, for approval by the Commission, which shall apply to every director of EirGrid and to every person employed by EirGrid under a contract of employment.

• (2) The code of conduct shall be consistent with these Regulations, in particular, with the requirements in relation to preserving the confidentiality of commercially sensitive information.

• (3) The code of conduct shall be included as part of every contract of employment with EirGrid.

Notification of certain interests to Minister.

58. (1) Where a director of EirGrid acquires, either directly or indirectly, any interest in another electricity undertaking, he or she shall forthwith inform the Minister in writing of that acquisition.

• (2) Where the Minister is satisfied that an acquisition to which paragraph (1) relates would, in the opinion of the Minister, create a conflict of interest between the director concerned and EirGrid, the Minister may, if he or she thinks fit, and with the consent of the Minister for Finance, remove that director from office.

Formation of subsidiaries.

59. EirGrid may not, without the approval of the Minister given with the consent of the Minister for Finance, acquire, establish or dispose of subsidiaries or invest in other undertakings.

Borrowings by EirGrid.

60. (1) (a) Subject to the consent of the Minister and the Minister for Finance, EirGrid may borrow money (including money in a currency other than the currency of the State) by any means it considers appropriate and on such terms and conditions as it may determine for any purposes arising in the performance of its objects or duties.

• (b) Subject to paragraph (2), the aggregate at any time of borrowings by EirGrid under subparagraph (a) shall not exceed £125,000,000.

• (2) For the purposes of this Regulation moneys borrowed in a currency other than the currency of the State shall be deemed to be the equivalent in the currency of the State of the actual moneys borrowed, such equivalent being calculated according to the rate of exchange at the time of such borrowing for that currency and the currency of the State.

Capital expenditure by EirGrid.

61. (1) EirGrid shall not incur any expenditure for capital purposes without the approval of the Minister.

• (2) The total expenditure of EirGrid for capital purposes shall not exceed such sum as may stand specified from time to time by the Minister.

SCHEDULE

Regulation 13

14

15

and 16

Transfer Scheme

• (2) Any reference in this Schedule to a transfer effected under the transfer scheme is a reference to a transfer effected by these Regulations under such transfer scheme.

Allocation of assets and liabilities: general

• (2) Any asset, contract, right or liability comprised partly in the National Grid Business Unit of the Board's undertaking and partly in some other part or parts of that undertaking shall, where the nature of the asset, contract, right or liability permits, be divided or apportioned between the transmission system operator and the Board in such proportions as may be appropriate.

• (3) Where any estate or interest in land falls to be divided or apportioned by virtue of subparagraph (2)-

• (a) any rent payable under a lease in respect of that estate or interest, and

• (b) any rent charged on that estate or interest,

shall be correspondingly apportioned or divided so that the one part is payable in respect of, or charged on, only one part of the estate or interest and the other part is payable in respect of, or charged on, only the other part of the estate or interest.

• (5) Any asset or liability to which subparagraph (2) relates, the nature of which does not permit its division or apportionment, may be transferred to the transmission system operator according to-

• (a) in the case of an estate or interest in land, whether on the effective date the transmission system operator or the Board appears to be in greater need of the security afforded by that estate or interest or, where neither appears to be in greater need of that security, whether on that date the transmission system operator or the Board appears likely to make use of the land to the greater extent;

• (b) in the case of any other asset or liability (including choses-in-action), whether on the effective date the transmission system operator or the Board appears likely to make use of, or as the case may be, to be affected by, the asset or liability, to the greater extent, subject (in either case) to such arrangements for the protection of the other of them as may be agreed between them.

• (2) It shall be the duty of EirGrid and the Board whether on or after the effective date, so far as practicable, to arrive at such written agreements and to execute such other instruments as are necessary or expedient to identify or define the assets and liabilities transferred to the transmission system operator as will-

• (a) afford to the transmission system operator and the Board as against one another such rights and safeguards as they may require for the carrying on of their respective undertakings, and

• (b) make as from such date, not being earlier than the effective date, as may be specified in the agreement or instrument such clarification and modifications of the division of the Board's undertaking as will best serve the carrying on of the respective undertakings of the transmission system operator and the Board.

• (3) Any agreement under subparagraph (2) shall, so far as it is expedient, provide for-

• (a) the granting of leases and for the creation of other liabilities and rights over land whether amounting in law to an estate in land or not, and whether involving the surrender of any existing estate or the creation of a new estate or not,

• (b) the granting of indemnities in connection with the severance of leases and other matters, and

• (c) responsibility for registration of any matter in any statutory register.

• (4) If EirGrid or the Board represents to the Commission, or if it appears to the Commission without such a representation, that it is unlikely in the case of any matter on which agreement is required under subparagraph (2) that such agreement will be reached, the Commission may-

• (a) give a direction determining that matter, and

• (b) include in the direction any provision which might have been included in an agreement under subparagraph (2).

• (5) Any assets or liabilities required by a direction under subparagraph (4) to be transferred to the transmission system operator shall be regarded as having been transferred by these Regulations to, and by virtue thereof, vested in EirGrid accordingly.

Allocations of assets and liabilities: contracts of employment

• (a) the transfers effected under the transfer scheme include a transfer of all assets and liabilities comprised in a specified part of the Board's undertaking, and

• (b) it falls to be determined whether the assets and liabilities transferred to the transmission system operator include rights and liabilities under a particular contract of employment.

• (2) Any rights and liabilities under the contract of employment shall be transferred to the transmission system operator only if immediately before the effective date the employee is a member of the staff of the Board designated for transfer.

• (3)
• (a) The employee, EirGrid or the Board may apply to the Commission to determine whether or not rights and liabilities in respect of the employee's services under the contract of employment are transferred to the transmission system operator and the decision of the Commission on the application shall be final.

• (b) The Commission shall issue directions regarding its decision, as it sees fit, and any such direction shall be complied with by the persons concerned.

Variation of transfers by agreement

• (a) as from such date as may be specified in or determined under the agreement, and

• (b) in such circumstances (if any) as may be so specified,

there shall be transferred from one company to, and vested in, the other company any assets and liabilities specified in the agreement; but no such agreement shall have effect in relation to rights and liabilities under a contract of employment unless the employee concerned is a party to the agreement.

• (2) Subject to subparagraph (3), in the case of an agreement under subparagraph (1), the assets and liabilities in question shall on the date of the coming into force of the agreement be transferred, and by virtue of the agreement vest, in accordance with the agreement.

• (3) The following provisions of this Schedule shall have effect as if-

• (a) any reference to a transfer effected under the transfer scheme included a reference to a transfer effected under an agreement under subparagraph (1),

• (b) any reference to a transaction effected under paragraph 3(2) or of a direction under paragraph 3(4) included a reference to such an agreement, and

• (c) any reference to a vesting by virtue of these Regulations included a reference to a vesting by virtue of such an agreement.

Right to production of documents of title

• (a) the transmission system operator or the Board, as appropriate, shall be deemed to have given to the other party an acknowledgement in writing of the right of that other party to production of the document and to delivery of copies thereof, and

• (b) section 9 of the Conveyancing Act, 1881, shall have effect accordingly, and on the basis that the acknowledgement did not contain any such expression of contrary intention as is mentioned in that section.

Proof of title by certificate

• (a) any asset specified in the certificate,

• (b) any such interest in or right over any such asset as may be so specified, or

• (c) any liability so specified,

is by virtue of these Regulations for the time being vested in the company which issues the certificate shall be conclusive evidence for all purposes of that fact.

• (2) If, on the expiration of one month from a request from either EirGrid or the Board for the other company to concur in the issue of such a certificate, the company to whom the request was made has failed so to concur-

• (a) the company which made the request may refer the matter to the Commission, and

• (b) the Commission may direct the party to whom the request was made to concur in the issue of a certificate prepared in such terms as are specified in the direction.

Restrictions on dealing with certain land.

• (a) in consequence of those transfers, different estates in land, whether the same or different land, are held by both the transmission system operator or the Board, and

• (b) the circumstances are such that this paragraph should have effect to any transfer concerned,

then the Commission may direct that this paragraph shall apply to such of that land as may be specified in the direction. While the direction remains in force this paragraph shall have effect accordingly.

• (2) Neither the transmission system operator nor the Board shall dispose of any estate to which they may respectively be entitled in any of the specified land except with the consent of the Commission.

• (3) If, in connection with any proposal to dispose of any estate of either the transmission system operator or the Board in any of the specified land, it appears to the Commission to be necessary or expedient for the protection of either of them, the Commission may-

• (a) direct either the transmission system operator or the Board to dispose of any estate to which it may be entitled in any of the specified land to such person and in such manner as may be specified in the direction,

• (b) direct either the transmission system operator or the Board to acquire from the other party any estate in any of the specified lands to which that other is entitled, or

• (c) consent to the proposed disposal subject to compliance with such conditions as the Commission may see fit to impose.

• (4) A person, other than the transmission system operator or the Board, dealing with either the transmission system operator or the Board, shall be under no obligation to see or to enquire into-

• (a) whether or not this paragraph applies or has applied in relation to any land to which the dealing relates, or

• (b) whether or not the provisions of this paragraph have been complied with in connection with that or any other dealing with that land,

and no transaction between persons, other than between the transmission system operator and the Board, shall be invalid by reason of any failure to comply with those provisions.

Third Parties affected by vesting provisions

9. (1) A transaction of any description which, under paragraph 3(2) or a direction under paragraph 3(4), is effected between EirGrid and the Board -

• (a) shall have effect subject to any statutory provision which provides for transactions of that description to be registered in any statutory register, but

• (b) subject to clause (a), shall be binding on all persons notwithstanding that it would, apart from this paragraph, have required the consent or concurrence of any other person.

• (2) If any transaction is effected under paragraph 3(2) or a direction under paragraph 3(4), EirGrid and the Board shall notify any person who has rights or liabilities which thereby become enforceable as to part by or against EirGrid and as to part by or against the Board.

• (3) If, within 28 days from being notified, such a person as is mentioned in paragraph (2) applies to, and satisfies the Commission that the transaction operated unfairly against him or her, the Commission may give such directions to EirGrid and the Board as appear to the Commission appropriate for varying the transaction.

10. (1) If in consequence of 2 or more transfers effected under the transfer scheme or anything done under the provisions of this paragraph-

• (a) the rights or liabilities of any person other than the transmission system operator and the Board which were enforceable against or by the Board become enforceable as to part against or by either the transmission system operator or the Board and as to part against or by the other company, and

• (b) the value of any property or interest of that person is thereby diminished,

such compensation as may be just shall be paid to that person by one or both of the transmission system operator and the Board as appropriate.

• (2) Any dispute as to whether, and if so how much, compensation is payable under subparagraph (1), or as to the person to or by whom it shall be paid, shall be referred to the Commission. The Commission shall issue directions regarding its decision, as it sees fit, regarding the matter in dispute, and the Board and the transmission system operator shall comply with such directions.

	Given under my Official Seal, this 20^th day of December, 2000.
	[image omitted]
	MARY O'ROURKE, T.D.,
	Minister for Public Enterprise.

EXPLANATORY NOTE

(This note is not a part of the Instrument and does not purport to be a legal interpretation)

These Regulations give legal effect to Directive No. 96/92/EC of the European Parliament and of the Council of 19th December 1996, concerning common rules for the internal market in electricity, not already implemented by the Electricity Regulation Act, 1999 , by providing for the designation of a Transmission System Operator, the designation of a Distribution System Operator, and the unbundling of the accounts of electricity undertakings, and other matters.

Footnotes