S.I. No. 16/2015 - European Communities (Internal Market in Natural Gas and Electricity) (Amendment) Regulations 2015

“ (1) The Commission may grant or refuse to grant to a person a licence to undertake in the State all or any of the following activities:

• (a) the supply of natural gas;

• (b) the shipping of natural gas;

• (c) the ownership and operation of a transmission system;

• (d) the ownership and operation of a distribution system;

• (e) the operation of a natural gas storage facility;

• (f) the operation of an LNG facility.”,

• (ii) in subsection (1C)(a), by substituting “approved, certified and designated” for “approved and designated”,

• (iii) by inserting after subsection (1D) the following:

“ (1E) Without prejudice to its balancing obligations, a transmission system operator shall be prohibited from applying for a licence in respect of the activities mentioned in subsection (1)(a) or (b).

• (1F) The holder of a licence under subsection (1)(a) shall keep for not less than 5 years and make available on a request being made by the Commission, the Competition and Consumer Protection Commission or the European Commission all relevant data relating to all transactions in gas supply contracts and gas derivatives with wholesale customers and transmission system operators as well as storage and LNG operators.

• (1G) The data referred to in subsection (1F) shall include details of relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled gas supply contracts and gas derivatives.

• (1H) The Commission may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This paragraph shall not apply to information about financial instruments which fall within the scope of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004⁹ .

• (1I) The obligations on undertakings under subsection (1F) with respect to transactions by them in gas derivatives with wholesale customers and transmission system operators as well as storage and LNG operators shall not apply until such time as the European Commission has adopted Guidelines, referred to in Article 44 of the Natural Gas Market Directive, defining the methods and arrangements for record keeping as well as the form and content of the data to be kept by undertakings.

• (1J) In the event that the authorities referred to in subsection (1F) require access to data kept by entities falling within the scope of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004, the authorities responsible under that Directive shall provide them with the required data.”,

• (iv) in subsection (13)—

• (I) by substituting for paragraph (ab) the following:

“ (ab) in the case of a holder of a licence under subsection (1)(a) or (1)(b), operate, maintain and develop under economic conditions such facilities or systems as required for the purpose of carrying out the activity for which it is licensed with due regard to the environment and public safety,”,

• (II) by substituting for paragraph (e) the following:

“ (e) in the case of the holder of a licence under subsection (1)(c) take steps to prevent the disclosure in a discriminatory manner of commercially advantageous information about its own activities and shall not, if applicable, disclose any commercially sensitive information to the remaining parts of the undertaking of which it is part, unless this is necessary for carrying out a business transaction,”,

• (III) by substituting for paragraphs (f) and (fa) the following:

“ (f) in the case of a holder of a licence under subsection (1)(c), (d), (e) or (f) provide users of the system or facility with the information they need for efficient access to, including use of, the system,”,

• (IV) in paragraph (k) by substituting “Commission.” for “Commission, and”, and

• (V) by deleting paragraph (l),

and

• (v) in subsection (14) by substituting “Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009¹⁰ ” for “Regulation (EC) No. 1775/2005 of the European Parliament and of the Council of 28 September 2005 on conditions for access to the natural gas transmission networks”.

Amendment of European Communities (Internal Market in Electricity) Regulations 2000

• (a) in Regulation 2(1)—

• (i) by inserting after the definition of ‘Minister’ the following:

“ ‘related undertaking’ means—

• (a) affiliated undertakings, within the meaning of Article 41 of the Seventh Council Directive 83/349/EEC of 13 June 1983¹¹ ,

• (b) associated undertakings, within the meaning of Article 33(1) of that Directive, or

• (c) undertakings which belong to the same shareholders;”,

and

• (ii) by inserting after the definition of “subsidiary” the following:

“ ‘system user’ means a natural or legal person supplying to, or being supplied by, a transmission or distribution system;”

• (b) in Regulation 8(1)—

• (i) by substituting for subparagraph (d) the following:

• “(d) in accordance with—

• (i) the conditions in the licence granted in accordance with section 14(1)(e) of the Act of 1999,

• (ii) the grid code prepared under section 33 of the Act of 1999, and

• (iii) any Regulations made by the Commission under section 9(1)(d) of the Act of 1999, including any requirements which the Commission may impose on the transmission system operator in relation to the role of—

  • (I) system operator, or

  • (II) market operator,

  to operate a system of dispatch and use of interconnectors on objective, economical and technical criteria, approved by the Commission, and applied in a non-discriminatory manner, without prejudice to the supply of electricity on the basis of existing contractual obligations and those criteria shall take into account the economic precedence of electricity from available generating installations or interconnector transfers and the technical constraints on the system.”,

and

• (ii) by substituting for subparagraphs (h) and (i) the following:

• “(h) to charge for the connection to and use of the transmission system in accordance with section 35 of the Act of 1999 and these Regulations;

• (i) to offer terms and enter into agreements, where appropriate, for connection to and use of the transmission system with all those using and seeking to use the transmission system; and

• (j) to provide information necessary for effective competition and the efficient functioning of the market. This information shall be made publically available and shall be without prejudice to preserving the confidentiality of commercially sensitive information.”,

• (c) by substituting for Regulation 12 the following:

“Restriction on disclosure of commercially sensitive information by transmission system operator

1. (1) Without prejudice to any obligation to disclose information in accordance with law to which it is subject, a transmission system operator—

2. (a) shall preserve the confidentiality of commercially sensitive information obtained by it in the discharge of its functions under these Regulations and the Act of 1999,

3. (b) shall prevent information about its own activities which may be commercially advantageous being disclosed in a discriminatory manner,

4. (c) shall not disclose any commercially sensitive information to the generation or supply parts of the Board, or any other person to whom a licence is issued under section 14(1) of the Act of 1999, unless it is necessary for carrying out a business transaction, and

5. (d) shall not in the context of sales or purchases of electricity by related undertakings, misuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.

6. (2) A person that fails to comply with paragraph (1) commits an offence and is liable, on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months, or to both.”, and

• (d) by substituting for Regulation 21 the following:

“Restriction on disclosure of commercially sensitive information by transmission system owner

1. (1) Without prejudice to any obligation to disclose information in accordance with law to which it is subject, a transmission system owner—

2. (a) shall preserve the confidentiality of commercially sensitive information obtained by it in the discharge of its functions under these Regulations and the Act of 1999,

3. (b) shall prevent information about its own activities which may be commercially advantageous being disclosed in a discriminatory manner, and

4. (c) shall not disclose any commercially sensitive information to the generation or supply parts of the Board unless it is necessary for carrying out a business transaction.

5. (2) To ensure compliance with paragraph (1), a transmission system owner, in the performance of its functions under these Regulations, shall not use joint services, such as joint legal services, other than for administrative or IT functions, with the remaining parts of the undertaking.

6. (3) A person that fails to comply with paragraph (1) commits an offence and is liable, on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months, or to both.”.

PART 9 Revocations

Revocations

• (a) the European Communities (Transit of Natural Gas) Regulations 1991 ( S.I. No. 343 of 1991 );

• (b) the European Communities (Transit of Natural Gas) (Amendment) Regulations 1996 ( S.I. No. 169 of 1996 );

• (c) the European Communities (Internal Market in Electricity) (Certification and Designation of the Transmission System Operator) Regulations 2011 ( S.I. No. 570 of 2011 ); and

• (d) other than Part 8, the European Communities (Internal Market in Natural Gas and Electricity) Regulations 2011 ( S.I. No. 630 of 2011 ).

• (2) The following are revoked on the network transfer date:

• (a) other than Part 5, the European Communities (Internal Market in Natural Gas) (BGÉ) Regulations 2005 ( S.I. No. 760 of 2005 ); and

• (b) other than Regulation 9(b) and (c), the European Communities (Internal Market in Natural Gas) (BGÉ) (Amendment) Regulations 2007 ( S.I. No. 377 of 2007 ).

GIVEN under my Official Seal,

19 January 2015.

ALEX WHITE,

Minister for Communications, Energy and Natural Resources.

EXPLANATORY NOTE

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

These Regulations transpose—

• (i) EU Directive 2009/73/EC concerning common rules for the internal market in natural gas, and

• (ii) EU Directive 2009/72/EC concerning common rules for the internal market in electricity.

The Regulations set out the unbundling rules which apply to gas transmission systems and transmission system operators and electricity transmission systems and transmission system operators.

Other provisions provide for the—

• • Certification procedures to be administered by the Commission for Energy Regulation (CER) in regard to the certification of the gas transmission system operator and the electricity transmission system operator,

• • Revocation of European Communities (Internal Market in Electricity) (Certification and Designation of the Transmission System Operator) Regulations 2011 ( S.I. No. 570 of 2011 ) and restatement of the certification procedures to be administered by the CER in regard to the certification of the electricity transmission system operator,

• • Strengthening of the independent role of the Commission for Energy Regulation (CER),

• • Imposition of obligations on the gas transmission system operator in regard to the submission of 10 Year Network Development Plans and the undertaking of investment in the transmission system,

• • Rules in respect of the preservation of the confidentiality of commercially sensitive information by transmission systems owners and operators,

• • Revocation of the European Communities (Internal Market in Natural Gas and Electricity) (Amendment) Regulations 2011 ( S.I. No. 630 of 2011 ) with the exception of Part 8,

• • Repeal and amendment of electricity and gas legislation to provide for the enhancement of the CER’s monitoring function in regard to the regulation of the electricity and gas markets. In its enforcement role CER is provide with powers, when making application to the High Court for a compliance order, to recommend a level of fines to the court where there is non-compliance by either the electricity or gas transmission system operator or owner,

• • Imposition of obligations on the CER and on transmission system operators to co-operate with counterparts in other Member States and to preserve confidentiality of information,

• • Reporting obligations on CER and TSOs, and

• • Rules in regard to third party access to gas pipelines.

Footnotes