Energy (Miscellaneous Provisions) Act 2012

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Energy (Miscellaneous Provisions) Act 2012.

(2) This Act comes into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

2.. Definitions.

2.— In this Act—

“Act of 1999” means Electricity Regulation Act 1999;

“Act of 2002” means Gas (Interim) (Regulation) Act 2002;

“Act of 2006” means Energy (Miscellaneous Provisions) Act 2006;

“Act of 2010” means Petroleum (Exploration and Extraction) Safety Act 2010;

“Minister” means Minister for Communications, Energy and Natural Resources;

“Regulations of 2009” means European Communities (Energy End-use Efficiency and Energy Services) Regulations 2009 (S.I. No. 542 of 2009).

PART 2 Miscellaneous Amendments to Energy Acts

Chapter 1

3.. Amendment of Electricity Supply Board (Superannuation) Act 1942.

3.— (1) The Electricity Supply Board (Superannuation) Act 1942 is amended—

(a) in section 1, by inserting after the definition of “manual worker” the following:

“ ‘persons employed by the Board’, with the exceptions mentioned in this Act or in any superannuation scheme confirmed by the Minister, includes—

(a) any person—

(i) whose employment was transferred to EirGrid plc, under Regulation 14 of the Regulations of 2000,

(ii) who was, immediately before the transfer a member of a superannuation scheme, and

(iii) in respect of whom the transmission system operator has not notified the trustees under Regulation 17(10)(d) of the Regulations of 2000,

and

(b) any person serving in the Board on or before 1 January 2009—

(i) whose employment was transferred to ESB Networks Ltd. under the transfer plan or otherwise, and

(ii) who was, immediately before the transfer a member of a superannuation scheme;

‘ESB Networks Ltd.’ means the company formed pursuant to Regulation 3 of the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008 (S.I. No. 280 of 2008) under the name of ESB Networks Ltd. or any company replacing it;

‘Regulations of 2000’ means European Communities (Internal Market in Electricity) Regulations 2000 (S.I. No. 445 of 2000);

‘transfer plan’ means the plan prepared under Regulation 7 of the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008 as approved by the Commission for Energy Regulation.”,

(b) in section 4, by inserting after subsection (2) the following:

“(3) A person serving in the Board on or before 1 January 2009, whose employment was transferred to ESB Networks Ltd. under the transfer plan or otherwise, who was immediately before the transfer a member of a superannuation scheme continues as a member of the scheme.

(4) A person employed by the Board, whose employment was transferred to EirGrid plc under Regulation 14 of the Regulations of 2000, in respect of whom the transmission system operator has not notified the trustees under Regulation 17(10)(d) of the Regulations of 2000, and who was immediately before the transfer a member of a superannuation scheme, shall continue to have his or her superannuation benefits and the contributions payable in respect of their membership of a scheme established under the Regulations of 2000 paid out of or into, as the case may be, the fund set up under section 7 of this Act, into which he or she paid superannuation contributions before the transfer.”.

(2) Paragraph 2(3) of Schedule 2 to the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008 (S.I. No. 280 of 2008) is revoked.

4.. Superannuation of transferred employees of Bord Gáis Éireann.

4.— The following section is inserted after section 16 of the Gas Act 1976:

“16A.— (1) In this section—

‘Gaslink’ means Gaslink Independent System Operator Ltd., being the company formed pursuant to Regulation 5 of the European Communities (Internal Market in Natural Gas) (BGE) Regulations 2005 (S.I. No. 760 of 2005);

‘terms and conditions’ includes a term existing under subsection (2);

‘transfer date’ means the date fixed by the Minister under subsection (3) on which the transfer plan takes effect;

‘transfer plan’ means the plan prepared under subsection (2)(a) and approved under subsection (2)(b);

‘vary’, in relation to terms and conditions, includes vary by—

(a) omitting any of those terms and conditions,

(b) adding to those terms and conditions, or

(c) substituting new terms and conditions for any of the first-mentioned terms and conditions.

(2) (a) The Board shall prepare a transfer plan for the transfer of assets and staff to Gaslink specified in subsection (1).

(b) The transfer plan shall be submitted to the Minister by the Board for his or her approval.

(c) The employment of those officers and servants of the Board who are designated in the transfer plan is transferred to Gaslink.

(d) An officer or servant of the Board whose employment is transferred to Gaslink and who was, immediately before the transfer, a member of a superannuation scheme established under section 18 for officers or servants of the Board, is entitled to continue to be a member of the scheme in accordance with its terms as in force from time to time.

(e) Subject to this section, each person whose employment is transferred in accordance with paragraph (c) is employed by Gaslink on terms and conditions no less favourable to that person than those on which the person was employed by the Board immediately before the transfer date.

(f) Nothing in this section has the effect of breaking a person’s contract of employment or continuity of employment for the purpose of applying to the person any other law relating to employment that would, apart from this section, apply to the person. In particular, this section does not affect a person’s accrued rights that the person had immediately before the transfer date in respect of any kind of leave.

(g) It is a term of employment of each transferred employee that the terms and conditions of that employment may be varied to the extent to which, and in the manner in which, the terms and conditions of the employee’s employment could, immediately before the transfer date, be lawfully varied.

(h) Nothing in this section prevents the terms and conditions of a transferred employee’s employment after the transfer date from being varied—

(i) in accordance with those terms and conditions, or

(ii) by or under an applicable law or agreement.

(3) The Minister may fix a date on which the transfer plan takes effect.”.

Chapter 2

5.. Theft of electricity and gas and deemed contracts.

5.— The following sections are substituted for sections 15 and 16 of the Energy (Miscellaneous Provisions) Act 1995:

“Theft of electricity and gas and related offences.

15.— (1) In this section and sections 16 and 16A—

‘Act of 1999’ means Electricity Regulation Act 1999;

‘Act of 2002’ means Gas (Interim) (Regulation) Act 2002;

‘article’ means—

(a) any meter, line, fitting, piping, receptacle or other apparatus, or

(b) any component of any such apparatus;

‘Bord Gáis Éireann’ includes a subsidiary of that body;

‘Commission’ means Commission for Energy Regulation;

‘contract of supply’ means a contract for the time being in force whereby—

(a) the holder of a licence to supply electricity granted under section 14 of the Act of 1999, or

(b) the holder of a licence to supply gas granted under section 16 of the Act of 2002,

agrees to supply electricity or gas, as the case may be, to a premises;

‘distribution system operator’ means, as the case may be—

(a) the company formed pursuant to Regulation 3 of the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008 (S.I. No. 280 of 2008) under the name of ESB Networks Ltd., or any company duly replacing it, or

(b) the company formed pursuant to Regulation 5 of the European Communities (Internal Market in Natural Gas) (BGE) Regulations 2005 (S.I. No. 760 of 2005) under the name of Gaslink Independent System Operator Ltd., or any company duly replacing it.

‘Electricity Supply Board’ includes a subsidiary of that body;

‘meter’ means an apparatus which registers and records or causes to be registered and recorded the quantity of electricity or gas supplied to a premises;

‘premises’ means any building or any structure, vehicle or vessel (whether mobile or not) or part of it occupied as a separate dwelling or place of business and includes any garden or portion of grounds attached to and usually occupied with the dwelling or place of business or otherwise required for the amenity or convenience of the dwelling;

‘registered consumer of electricity or gas’ means a person who has entered into a contract of supply for the provision of electricity or gas;

‘subsidiary’ has the meaning assigned to it by the Companies Act 1963;

‘transmission system operator’ means the companies referred to in paragraph (b) of the definition of ‘distribution system operator’;

‘unlawfully interferes with’ means the doing, without legal excuse or claim of legal right, of any thing to an article, including (as the context admits) any of the following, namely—

(a) the damaging, injuring, altering or modifying of the article (including the opening or detaching of any sealing or locking device attached to the article),

(b) in the case of a meter (without prejudice to the application of paragraph (a) to such a thing)—

(i) causing an artificial alteration to the index of the meter, or

(ii) preventing the meter from duly registering and recording, or otherwise causing to be registered and recorded, a quantity of electricity or gas, as the case may be, supplied to a premises.

(2) (a) A person who dishonestly uses, or dishonestly causes to be wasted or diverted, any electricity or gas commits an offence.

(b) For the purposes of this subsection an act is done by a person dishonestly if the person does the act without legal excuse or claim of legal right.

(3) A person who unlawfully interferes with any article owned by or operated by a distribution system operator or transmission system operator as appropriate commits an offence.

(4) If, in proceedings for an offence under subsection (3), it is alleged that the defendant undertakes or procures a third party to undertake on his or her behalf—

(a) the alteration of an index to a meter owned by or operated by a distribution system operator or transmission system operator and located in any premises or in the precincts of it, or

(b) the prevention of such a meter from duly registering and recording or causing to be registered and recorded a quantity of either electricity or gas, as the case may be, supplied to the premises in which or in the precincts of which the meter is located,

and it is proved that, during the period that such alteration or prevention is alleged to have occurred or immediately thereafter—

(i) an artificial means for causing such alteration or preventing such registration, as the case may be, was present in the premises or in its precincts, and

(ii) the defendant was in occupation of the premises,

such proof shall be prima facie evidence, in those proceedings, of the matters referred to in paragraph (a) or (b), as the case may be.

(5) A person who, without lawful excuse, manufactures, imports, sells, offers for sale, supplies, installs, causes to be installed or has in his or her possession any thing designed or adapted—

(a) to alter the index to any meter owned by or operated by a distribution system operator or transmission system operator as appropriate,

(b) to prevent the due registration by such a meter of a quantity of either electricity or gas, as the case may be, supplied to any premises, or

(c) for the purpose of imposing charges on persons for the use of electricity or gas in the absence of a contract of supply or a deemed contract under section 16A being in place which allows for the imposition of such charges,

commits an offence.

(6) (a) Where—

(i) a registered consumer of electricity or gas,

(ii) the holder of a licence to supply electricity issued under section 14 of the Act of 1999, or

(iii) the holder of a licence to supply gas issued under section 16 of the Act of 2002,

has reasonable grounds for believing that a meter to which this subsection applies is not duly registering or causing to be registered a quantity of electricity or gas being supplied to the premises concerned by reason of the meter being unlawfully interfered with, he or she shall take all reasonable steps to ensure that such interference is discontinued.

(b) In paragraph (a) ‘all reasonable steps’ includes advising the appropriate distribution system operator or transmission system operator, as the case may be, that a meter under its ownership or operation is not duly registering or causing to be registered a quantity of electricity or gas being supplied to the premises concerned.

(c) A person who fails to comply with paragraph (a) commits an offence.

(d) This subsection applies to a meter that—

(i) is owned by or operated by a distribution system operator or transmission system operator, and

(ii) is located in premises or in the precincts of premises to which either electricity or gas, as the case may be, is supplied under a contract of supply entered into by the registered consumer of electricity or gas concerned.

(7) (a) A person who commits an offence under subsection (2), (3) or (5) is liable—

(i) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months or to both, or

(ii) on conviction on indictment, to a fine not exceeding €150,000 or to imprisonment for a term not exceeding 5 years or to both.

(b) A person who commits an offence under subsection (6) is liable—

(i) on summary conviction, to a class A fine, or

(ii) on conviction on indictment, to a fine not exceeding €10,000.

(8) (a) A court before which a person is convicted of an offence under subsection (2), (3) or (6) may, in addition to any penalty it may impose under subsection (7) in respect of the offence, order the person to pay, as the case may be, to the—

(i) distribution system operator,

(ii) transmission system operator,

(iii) holder of a licence to supply electricity granted under section 14 of the Act of 1999, or

(iv) holder of a licence to supply gas granted under section 16 of the Act of 2002,

either or both of the following—

(I) such sum as it is satisfied the person owes to a body mentioned above in respect of the supply of either electricity or gas and payment of which would not have been obtained by the body if the act or acts or, as the case may be, default in respect of which the person has been convicted of the offence had not been detected, or

(II) such sum as it is satisfied will compensate such a body for any damage done to an article owned by or operated by the body, being damage that has resulted from the act or acts or, as the case may be, default in respect of which the person has been convicted of the offence.

(b) In the case of proceedings in the District Court for an offence under this section, the amount that the court may order a person to pay under this subsection in respect of the offence shall not exceed an amount equal to the difference between €5,000 and the fine (if any) it has imposed on the person in respect of the offence.

(c) Notwithstanding the generality of paragraph (a), a court the subject of that paragraph may specify a rate of interest accruing on any sum the subject of clauses (I) and (II) of that paragraph for each day that the sum remains unpaid, such rate of interest to be that for the time being applicable to a civil judgment debt applied by that court.

(d) When calculating the sum owed by a person under subsection (8)(a)(I), a court may have regard to the charges prescribed by the Commission under section 16A(5).

(9) (a) A court before which a person is convicted of an offence under this section may order any thing referred to in subsection (5) which was used by the person to commit the offence or, in the case of an offence under that subsection, any thing referred to in that subsection to which the offence relates, to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

(b) An order under this subsection shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

(10) Summary proceedings may be brought by—

(a) a distribution system operator or a transmission system operator, for an offence under this section, except in the case of an offence committed by a person referred to in subparagraph (ii) or (iii) of subsection (6)(a), or

(b) the Commission, in the case of an offence committed by a person referred to in subparagraph (ii) or (iii) of subsection (6)(a), acting either on its own initiative or following a request from—

(i) a distribution system operator,

(ii) a transmission system operator, or

(iii) a holder of—

(I) a licence to supply electricity granted under section 14 of the Act of 1999, or

(II) a licence to supply gas granted under section 16 of the Act of 2002.

(11) Where an offence under this section or section 16 is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person commits an offence and is liable to be proceeded against and punished as if he or she committed the first-mentioned offence.

Entry into, and search of, premises where offence under section 15 is suspected.

16.— (1) (a) Each of the following, namely—

(i) a distribution system operator,

(ii) a transmission system operator, or

(iii) the Commission,

may appoint, subject to paragraph (b), a person to be an authorised officer for the purposes of this section.