European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008

Publication Date:22 Jul 2008

S.I. No. 280 of 2008

EUROPEAN COMMUNITIES (INTERNAL MARKET IN ELECTRICITY) (ELECTRICITY SUPPLY BOARD) REGULATIONS 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 22nd July, 2008.

I, EAMON RYAN, Minister for Communications, Energy and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), as amended by the European Communities (Amendment) Act 1993 (No. 25 of 1993), and for the purpose of giving further effect to Directive 2003/54/EC 1 of the European Parliament and of the Council of 26 June 2003, hereby make the following regulations:

PART 1 PRELIMINARY AND GENERAL

Citation and commencement

1. (1) These Regulations may be cited as the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008.

(2) The European Communities (Internal Market in Electricity) Regulations 2000 and 2005 and these Regulations may be cited together as the European Communities (Internal Market in Electricity) Regulations 2000 to 2008 and shall be construed together as one.

(3) Part 5 comes into operation on the transfer date.

Interpretation

2. (1) In these Regulations, except where the context otherwise requires—

“Act of 1999” means Electricity Regulation Act 1999 (No. 23 of 1999);

“assets” means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents;

“Board” means Electricity Supply Board;

“Commission” means Commission for Energy Regulation;

“distribution system” means a system of the Board which consists of electric lines, electric plant, transformers and switchgear and which is used for conveying electricity to final customers;

“Electricity Market Directive” means Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity, and repealing Directive 96/92/EC 2 ;

“financial plan” includes any document in the nature of a financial plan, whether called a financial plan or not;

“liabilities” means liabilities, debts or obligations (whether present or future and whether vested or contingent);

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

“operate” includes maintain and develop;

“ownership”, in relation to an asset, includes proprietary rights arising under a lease, licence or bailment of the asset;

“publish” includes publish on the Internet;

“rights” means any rights, powers, privileges or immunities (whether present or future and whether vested or contingent);

“subsidiary company”, in relation to the Board, means the company established or required to be established by the Board in accordance with Regulation 3;

“trade union” means a trade union that holds a negotiation licence under Part II of the Trade Union Act 1941 (No. 22 of 1941);

“transfer”, in relation to an employee of the Board, includes the secondment of such an employee;

“transfer date” means the date fixed by the Minister under Regulation 8;

(2) A word or expression used in these Regulations and in the Electricity Market Directive has, unless the contrary intention appears, the same meaning in these Regulations as in the Electricity Market Directive.

PART 2 SEPARATION OF FUNCTIONS OF BOARD

Board to form and register subsidiary company

3. (1) As soon as practicable after the coming into operation of this Regulation or not later than a date fixed by the Minister, the Board shall form a company that complies with this Regulation.

(2) The company formed under paragraph (1) shall be a private company limited by shares. At least one of the members of the company shall be the Board.

(3) The members of the company are to have such shares in the company as are specified in the company’s memorandum of association, but the Board is required to hold more than half in nominal value of the equity share capital of the company.

(4) The Board shall ensure—

(a) that the memorandum of association of the company specifies that the objects of the company are, or include, responsibility for operating the distribution system in a manner consistent with the provisions of the Electricity Market Directive,

(b) that either the memorandum of association or the articles of association of the company provides for the basis of the relationship between the company and the Board and between the company and the Minister in a manner consistent with those provisions, and

(c) that the articles of association of the company provide for the appointment of no fewer than 4 directors of the company.

(5) As soon as practicable after the company has been formed, the Board shall arrange for the company to be registered under the Companies Acts.

(6) The memorandum and articles of association of the company may not be lodged for registration under the Companies Acts unless they have been approved by the Minister, with the concurrence of the Minister for Finance.

(7) In relation to the company formed pursuant to this Regulation, section 2 of the Electricity (Supply) Amendment Act 1988 (No. 17 of 1988) shall have effect subject to these Regulations.

(8) In this Regulation, “equity share capital” has the same meaning as in section 155 of the Companies Act 1963 (No. 33 of 1963).

Alteration of memorandum or articles not to have effect until approved by Minister

4. Notwithstanding anything contained in the Companies Acts, an alteration of the memorandum or articles of association of the subsidiary company does not take effect until it is approved by the Minister, with the concurrence of the Minister for Finance.

Appointment and termination of appointment of directors of subsidiary company to be subject to the approval of the Minister

5. Notwithstanding anything contained in the Companies Acts, the appointment of a person as a director of the subsidiary company and the termination of such an appointment do not take effect until approved by the Minister, with the concurrence of the Minister for Finance.

Board and subsidiary company to enter into agreements

6. (1) As soon as practicable after the formation and registration of the subsidiary company in accordance with Regulation 3, the Board and the subsidiary company shall enter into negotiations in good faith with a view to entering into one or more agreements providing for the following matters:

(a) the terms on which each of them will fulfil its functions with respect to the distribution system;

(b) the terms on which the Board will provide the subsidiary company with the resources (including financial resources) and services necessary to enable that company to fulfil its responsibility with respect to the operation of the distribution system.

(2) An agreement made between the Board and the subsidiary company under paragraph (1) is subject to approval by the Commission.

(3) An agreement entered into, or taken to have been entered into, under this Regulation shall take effect from the transfer date.

(4) The Board and the subsidiary company may, from time to time, and subject to the approval of the Commission, vary an agreement entered into, or taken to have been entered into, under this Regulation.

(5) (a) A variation of an agreement entered into, or taken to have been entered into, under this Regulation may provide for the variation, or any particular provisions of the variation, to take effect from a specified date (which may be the transfer date).

(b) A specific date referred to in subparagraph (a) does not take effect unless approved by the Commission, which may substitute another date if it considers it appropriate to do so.

(6) If either the Board or the subsidiary company wishes to vary an agreement entered into, or taken to have been entered into, under this Regulation, the party whose agreement has been sought shall enter into negotiations in good faith with a view to concluding such a variation.

(7) An agreement entered into, or taken to have been entered into, under this Regulation (or the agreement as varied under paragraph 4) shall have effect only as far as it is consistent with the provisions of the Electricity Market Directive.

(8) In this Regulation, “vary”, in relation to an agreement, includes substituting the agreement with another agreement that deals with the same matters.

Board to prepare plan for transfer of assets and staff to subsidiary company

7. (1) As soon as practicable after the registration of the subsidiary company under the Companies Acts, the Board shall, subject to paragraphs (3) and (4), prepare and submit to the Commission for approval a plan for the transfer to the subsidiary company of—

(a) such assets, rights and liabilities of the Board specified in the plan, and

(b) such employees of the Board designated in the plan,

as are necessary to enable the subsidiary company to carry out its responsibilities for the operation of the Board’s distribution system as set out in the agreement entered into, or taken to have been entered into, under Regulation 6.

(2) If the Commission considers that the plan—

(a) includes information other than that specified in paragraph (1), or

(b) is not adequate to enable the subsidiary company to carry out its responsibilities,

the Commission shall specify the changes that need to be made before the plan will be approved. On being notified of those changes, the Board shall revise the plan to give effect to those changes.

(3) The transfer plan shall clearly designate—

(a) those assets of the Board the ownership of which is to be...

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