Gas (Interim) (Regulation) Act 2002

1. Short title, collective citation and construction.

1. —(1) This Act may be cited as the Gas (Interim) (Regulation) Act, 2002.

(2) The Electricity Regulation Acts, 1999 and 2000, and this Act (other than sections 11 and 15 and subsections (1) and (2) of section 23) may be cited together as the Electricity and Gas Regulation Acts, 1999 to 2002, and shall be construed together as one.

(3) The Gas Acts, 1976 to 2000, and sections 11 and 15 and subsections (1) and (2) of section 23 may be cited together as the Gas Acts, 1976 to 2002, and shall be construed together as one.

2. Interpretation.

2. —(1) In this Act—

“Act of 1993” means Gas (Amendment) Act, 1993;

“Act of 1995” means Energy (Miscellaneous Provisions) Act, 1995;

“Act of 1999” means Electricity Regulation Act, 1999:

“Act of 2000” means Gas (Amendment) Act, 2000;

“appointed day” means the day appointed by the Minister for the purposes of this Act;

“Board” means Board Gáis Éireann;

“Commission” means Commission for Energy Regulation;

“customer” in relation to natural gas, means wholesale or final customers of natural gas and natural gas undertakings which purchase natural gas;

F1[“Directive”means Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009^2as amended by Directive (EU) 2019/692 of the European Parliament and of the Council of 17 April 2019^1;]

“distribution” in relation to natural gas, means the transport of natural gas through local or regional pipelines with a view to its delivery to customers;

“distribution pipeline” means a pipeline used or intended to be used for the distribution of natural gas in accordance with such criteria as may be specified by the Commission, from time to time, and includes part of such a pipeline, and includes any apparatus, equipment or other thing which is ancillary to such a pipeline;

F2[“distribution system”, in relation to natural gas, means a system for the transport of natural gas through local or regional pipelines with a view to its delivery to customers;]

“final customer” in relation to natural gas, means a consumer purchasing natural gas for his or her own use;

“functions” includes powers and duties;

F3[…]

F4[“LNG”means liquefied natural gas;]

F2[“LNG facility”has the meaning assigned to it in point 11 of Article 2 of theNatural Gas Directive;]

“Minister” means Minister for Public Enterprise;

F5[“National Gas Emergency Manager”means the person appointed undersection 19B(5);]

F5[“Natural Gas Emergency Plan”means the plan referred to insection 19B(1)as amended from time to time;]

“natural gas licence” means a licence granted under section 16;

F6[“Natural Gas Regulation”means Regulation 715/2009 of the European Parliament and of the Council of 13 July 2009^4;]

“natural gas system” means the system of pipelines and liquefied natural gas and storage facilities, excluding upstream pipelines, used for the transmission, distribution, storage and supply of natural gas to, from or within the State;

F7[“natural gas undertaking”has the same meaning as in the Directive;]

“pipeline” has the same meaning as in section 2 (as amended by section 23) of the Gas Act, 1976;

“shipping” in relation to natural gas, means the introduction into, the conveyance by means of, or take off from the natural gas system of natural gas by persons other than the operator of the relevant pipeline or facility being used for the purpose of introducing, conveying or taking off the natural gas;

“storage” in relation to natural gas, means the stocking of natural gas by a natural gas undertaking but does not include any natural gas in a pipeline under the control of that undertaking;

“supply” in relation to natural gas, means the delivery or sale of natural gas, including liquefied natural gas, to customers and includes shipping;

F7[“transmission”in relation to natural gas, means the transport of natural gas through a high pressure pipeline, other than an upstream pipeline with a view to delivering the gas to customers;]

“transmission pipeline” means a pipeline used or intended to be used for the transmission of natural gas in accordance with such criteria as may be specified by the Commission, from time to time, and includes part of such a pipeline, and includes any apparatus, equipment or other thing which is ancillary to such a pipeline;

F2[“transmission system”, in relation to natural gas, means a system for the transport of natural gas through a high pressure pipeline, other than an upstream pipeline, with a view to delivering natural gas to customers;]

“upstream pipeline” means any pipeline operated or constructed as part of a gas production project, or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal.

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment, including this Act.

3. Appointed day.

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

4. Laying of regulations and orders.

4. —Every order (other than an order made under section 3) or regulation made under this Act shall be laid by the Minister, in the case of orders or regulations made by the Minister, or by the Commission, in the case of orders or regulations made by the Commission, 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 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

5. Commission for Energy Regulation.

5. —The Commission for Electricity Regulation (established by section 8 of the Act of 1999) shall, on the appointed day, be known as the Commission for Energy Regulation or in the Irish language as An Coimisiún um Rialáil Fuinnimh and references in that Act, any other Act of the Oireachtas, any instrument made under any Act of the Oireachtas, any legal proceedings and any document to the Commission for Electricity Regulation shall from that day be construed as references to the Commission for Energy Regulation.

6. Functions of Commission.

6. —Section 9 of the Act of 1999 is amended on the appointed day—

(a) in subsection (1), by the substitution for paragraph (e) of the following paragraph:

“(e) to advise the Minister on the development of the electricity and gas industries, as appropriate, and on the exercise of the functions of the Minister under this Act.”,

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

“(3) It shall be the duty of the Minister and the Commission to carry out their functions and exercise the powers conferred on them under this Act in a manner which—

(a) in relation to electricity, does not discriminate unfairly between holders of licences, authorisations and the Board or between applicants for authorisations or licences,

(b) in relation to gas, does not discriminate unfairly between holders of licences, consents and Bord Gáis Éireann or between applicants for consents or licences, and

(c) the Minister or the Commission, as the case may be, considers protects the interests of final customers of electricity or gas or both, as the case may be.”,

and

(c) in subsection (4)—

(i) by the substitution for paragraph (a) of the following paragraph:

“(a) to promote competition in the generation and supply of electricity and in the supply of natural gas in accordance with this Act;”,

and

(ii) by the substitution for paragraphs (d) to (f) of the following paragraphs:

“(d) to promote safety and efficiency on the part of electricity and natural gas undertakings;

(e) to promote the continuity, security and quality of supplies of electricity;

(f) to promote the use of renewable, sustainable or alternative forms of energy;

(g) to secure that there is sufficient capacity in the natural gas system to enable reasonable expectations of demand to be met; and

(h) to secure the continuity, security and quality of supplies of natural gas.”.

7. Transfer of functions from Minister to Commission.

7. —(1) The administration and business in connection with the exercise, performance or execution of any of the functions transferred by subsection (2) are transferred on the appointed day to the Commission.

(2) The functions vested in the Minister by or under each of the provisions mentioned in column (3) of the Schedule to this Act of the enactments mentioned in column (2) opposite the mention of that provision are transferred to the Commission on the appointed day.

(3) Anything commenced before the appointed day by or under the authority of the Minister may, in so far as it relates to functions transferred by this Act, be carried on or completed on or after that day by or under the authority of the Commission.

(4) Where, immediately before the appointed day, any legal proceedings are pending to which the Minister is the plaintiff or the prosecutor and the proceedings have reference to functions transferred by this Act to the Commission, the name of the Commission shall, in so far as the proceedings relate to any functions transferred by this Act, be substituted in those proceedings for that of the Minister, or added in those proceedings as may be appropriate, and those proceedings shall not abate by reason of such substitution.

(5) Where, immediately before the appointed day, any legal proceedings are pending to which the Minister is a defendant and the proceedings have reference to any functions transferred to the Commission by this Act, the Commission shall not be substituted for the Minister in those proceedings notwithstanding the transfer of functions under this Act.

(6) Every document (including any licence or consent) made, granted or given in the exercise of a function transferred by this Act shall, if and in so far as it was operative immediately before the appointed day, have effect on and after that day as if it had been made, granted or given by the Commission.

(7) References to the Minister in an Act or an instrument (including a licence granted or consent given thereunder) relating to any functions transferred by this Act to the Commission shall be construed, on and after the appointed day, as references to the Commission.

8. Code of conduct.

8. —(1) The Commission shall, following consultation with the Minister, draw up a code of conduct in respect of controls on the interests and ethical behaviour to apply to each member of the Commission and member of the staff of the Commission.

(2) The Commission shall publish any code of conduct drawn up under subsection (1).

9. Declaration of interests.

9. —(1) On his or her offer of appointment, each member of the Commission shall make a declaration in writing of his or her interests to the Minister, in such form as the Minister, following consultation with the Minister for Finance, may specify.

(2) On his or her offer of appointment, each consultant and adviser and each member of the staff of the Commission at a grade or level specified before the appointment by the Commission, following consultation with the Minister, shall declare his or her interests in writing to the Commission and, within one month of such declaration, the Commission shall, on request, provide the details of all such declarations to the Minister.

(3) A person to whom subsection (1) or (2) applies shall, throughout the tenure of his or her appointment, amend and update his or her declarations of interests in respect of any changes in the interests held by the person.

(4) (a) A statement of the interests declared under subsection (1) shall be included in the next report prepared in accordance with paragraph 25(c) of the Schedule to the Act of 1999 following the making of the declaration and any subsequent change in a declaration shall also be included in a statement in the next available report.

(b) The form and content of the statement to be included in such report shall be agreed between the Commission, the Minister and the Minister for Finance.

(c) Notwithstanding paragraph (b), it shall not be necessary to specify in a statement in such report the amount of monetary value of any interest, or the remuneration of any trade, profession or employment included in the statement.

(5) Where a person to whom subsection (1) applies, fails to make a declaration in accordance with that subsection, the Minister shall decide the appropriate action (including removal from office) to be taken.

(6) Where a person to whom subsection (2) applies, fails to make a declaration in accordance with that subsection, the Commission shall decide the appropriate action (including removal from office or termination of contract) to be taken.

(7) In this section—

“employment” includes—

(a) full-time employment,

(b) part-time paid employment, where such employment is ongoing in the year of appointment or which arises in subsequent years,

(c) temporary paid employment, being for a period of 16 weeks or more in the year of appointment or in subsequent years, or

(d) being retained under contract, directly or indirectly, in any capacity as an adviser, consultant or lobbyist, or for the provision of services;

“interests” includes—

(a) shares in, bonds or debentures of, or other like investments in any undertaking related to the gas or electricity industries, where the aggregate of such holdings exceeds €12,500,

(b) a directorship or shadow directorship (within the meaning of the Companies Acts, 1963 to 2001), in such an undertaking, held currently or during the previous two years, or

(c) gifts of travel, holidays, transport, money (in excess of €650) or other benefits, including benefits from any beneficial interest in or connected with such an undertaking, during the previous two years which were received by the person being appointed or by his or her spouse F8[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010].

10. Disclosure of interests.

10. —(1) Where a member of the Commission, a member of the staff of the Commission, or a consultant, adviser or other person engaged by the Commission, has a pecuniary interest or other beneficial interest in, or material to, any matter which falls to be considered by the Commission, he or she shall—

(a) disclose to the Commission, or where there is only one member of the Commission, that member shall disclose to the Minister, the nature of his or her interest in advance of any considerations of the matter,

(b) neither influence nor seek to influence a decision in relation to the matter,

(c) take no part in any consideration of the matter,

(d) if he or she is a member of the Commission or a member of the staff of the Commission, withdraw from the meeting for so long as the matter is being discussed or considered by the Commission, and shall not vote or otherwise act as such member in relation to the matter.

(2) For the purposes of this section, but without prejudice to the generality of subsection (1), a person shall be regarded as having a beneficial interest if—

(a) he or she or any member of his or her household, or any nominee of his or her's or any member of his or her household, is a member of a company or any other body which has a beneficial interest in, or material to, a matter referred to in that subsection, or

(b) he or she or any member of his or her household is in partnership with or is in the employment of a person who has a beneficial interest in, or material to, such a matter, or

(c) he or she or any member of his or her household is in the process of acquiring land or property to which such a matter relates.

(3) For the purposes of this section, a person shall not be regarded as having a beneficial interest in, or material to, any matter, by reason only of an interest of his or her's or of any company or of any other body or person mentioned in subsection (2) which is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering, discussing or in voting on, any question with respect to the matter, or in performing any function in relation to that matter.

(4) Where a question arises as to whether or not a course of conduct, if pursued by a person, would be a failure by him or her to comply with the requirements of subsection (1), the question shall be determined by the Commission, or, where there is only one member of the Commission, in the case of that member, by the Minister.

(5) Where a disclosure is made to the Commission, particulars of the disclosure shall be recorded in the minutes of any meeting concerned.

(6) Where a person, other than a member of the Commission, referred to in this section fails to make a disclosure in accordance with this section, the Commission shall decide the appropriate action (including removal from office or termination of contract) to be taken.

(7) Where a member of the Commission fails to make a disclosure in accordance with this section, the Minister shall decide the appropriate action (including removal from office) to be taken.

11. Functions of Bord Gáis Éireann.

11. —The Gas Act, 1976, is amended, on the appointed day, by the substitution for section 8 of the following section:

“8.—(1) (a) The Board shall, in relation to customers other than persons of the type mentioned in paragraphs (a), (b), (c) or (d) of subsection (1) of section 10A of this Act, develop and maintain a system for the supply of natural gas to such customers being a system which is both economical and efficient and which appears to the Board to be requisite for the time being.