European Communities (Internal Market in Natural Gas) (BGE) Regulations 2005

• Jurisdiction: Ireland
• Citation: IR SI 760/2005
• Year: 2005

S.I. No.760 of 2005
European Communities (Internal Market in Natural Gas) (BGÉ) Regulations 2005
I, Noel Dempsey, Minister for Communications, Marine 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 2003/55/EC1 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 Natural Gas)(BGÉ) Regulations 2005.
(2) Except as provided by paragraph (3), these Regulations come into operation on the day on which notice of their making is published in the Iris Oifigiúil.
(3) Part 5 comes into operation on the transfer date.
	Object and scope of these regulations	2. The objective of these Regulations is to give further effect to Directive 2003/55/EC.
	Interpretation	3. (1) In these Regulations, except where the context otherwise requires—
“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;
“BGÉ” means the body corporate called Bord Gáis Éireann as constituted under the Gas Act 1976 (No.30 of 1976);
“BGÉ transportation system” means such parts of the transmission system and the distribution system owned by BGÉ as may be designated in the transfer plan prepared in accordance with Regulation 9(3)(b);
“CER” means the Commission for Energy Regulation established by the Electricity Regulation Act 1999 (No. 23 of 1999);
“Companies Acts” means the Companies Act 1963 and any act that amends, or is required to be read as one with, that Act;
“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;
“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);
“the Minister” means the Minister for Communications, Marine and Natural Resources;
“the Natural Gas Market Directive” means Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas, and repealing Directive 98/30/EC;
“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);
“the subsidiary company”, in relation to BGÉ, means the company established or required to be established by BGÉ in accordance with Regulation 5;
“trade union” means a trade union that holds a negotiation licence under Part II of the Trade Union Act 1941 ;
“transfer date” means the date fixed by the Minister under Regulation 10;
“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 the 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 these Regulations—
(a) a reference to a Part, Regulation or Schedule is a reference to a Part or Regulation of, or a Schedule to, these Regulations, and
(b) a reference to a paragraph or a subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs,
unless in either case it is indicated that reference to some other provision is intended.
(3) If a word or expression that is not defined in this Regulation is used in these Regulations and is also used in the Natural Gas Market Directive, the word or expression has unless the context otherwise requires, the same meaning in these Regulations as it has in that Directive.
(4) If an enactment or statutory instrument referred to in these Regulations has been amended, or is amended after these Regulations come into operation, the reference is taken to be a reference to the enactment or statutory instrument as amended.
(5) An approval by the Minister under these Regulations does not take effect until the Minister for Finance has concurred with the approval.
PART 2 SEPARATION OF FUNCTIONS OF BGÉ
	BGÉ to form and register subsidiary company	5. (1) As soon as practicable after the commencement of these Regulations, BGÉ shall form a company that complies with this Regulation.
(2) The company formed under paragraph (1) must be a private company limited by shares. At least one of the members of the company must be BGÉ.
(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 BGÉ is required to hold more than half in nominal value of its equity share capital.
(4) BGÉ 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 BGÉ transportation systems in a manner consistent with the provisions of the Natural Gas Market Directive, and
(b) that either the memorandum of association or the articles of association of the company prescribes the basis of the relationship between the company and BGÉ 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 is formed, BGÉ shall arrange for it to be registered under the Companies Acts. However, the memorandum and articles of association of the company may not be lodged for registration under those Acts unless they have been approved by the Minister.
(6) In this Regulation, “equity share capital” has the same meaning as in section 155(5) of the Companies Act 1963 .
(7) Nothing in section 8A of the Gas Act 1976 applies to action taken under this Regulation.
	Alteration of memorandum or articles not to have effect until approved by Ministers	6. An alteration of the memorandum or articles of association of the subsidiary company does not take effect until it is approved by the Minister.
	Appointment and termination of appointment of directors of subsidiary company to be subject to the approval of the Minister	7. 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.
	BGÉ and subsidiary company may enter into infrastructure agreements	8. (1) At any time after the formation and registration of the subsidiary company in accordance with Regulation 5 and before the transfer date, BGÉ and the subsidiary company may enter into one or more agreements providing for the terms on which—
(a) each of them will fulfil its functions with respect to the BGÉ transportation system, and
(b) BGÉ 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 BGÉ transportation systems.
(2) An agreement under paragraph (1) may provide that the agreement or any particular provisions of the agreement will take effect from a specified date (which may be the transfer date).
(3) BGÉ and the subsidiary company may from time to time vary an agreement entered into under paragraph (1).
(4) A variation of an agreement entered into under paragraph (1), may provide that the variation, or any particular provisions of the variation, will take effect from a specified date (which may be the transfer date).
(5) If either BGÉ or the subsidiary company wishes to enter into an agreement under paragraph (1), or to vary an agreement already entered into under that paragraph, the other of them shall enter into negotiations in good faith with a view to concluding such an agreement or variation.
(6) An agreement entered into under paragraph (1) (or the agreement as varied or substituted under paragraph (3)) is valid only in so far as it is consistent with the provisions of the Natural Gas Market Directive.
(7) In this Regulation, “vary”, in relation to an agreement, includes replacing the agreement with another agreement that deals with the same matters.
	BGÉ to prepare plan for transfer of assets and staff to subsidiary company	9. (1) As soon as practicable after the registration of the subsidiary company, BGÉ shall prepare and submit to the Minister for approval a plan for the transfer to the subsidiary company of—
(a) such assets, rights and liabilities of BGÉ specified in the plan, and
(b) such employees of BGÉ designated in the plan,
as are necessary to enable the subsidiary company to fulfil its responsibility for the operation of the BGÉ transportation system as provided in the agreements (if any) entered into under Regulation 8.
(2) Only those assets, rights and liabilities relevant to the operation of the BGÉ transportation system may be specified in the transfer plan.
(3) The transfer plan must clearly designate—
(a) those assets of BGÉ the ownership of which is to be transferred to the subsidiary company, and
(b) those part or parts of the transmission system...