Circular Economy and Miscellaneous Provisions Act 2022

PART 7

Amendment of Electricity Regulation Act 1999

Amendment of Electricity Regulation Act 1999

42. The Electricity Regulation Act 1999 is amended—

(a) in section 11(1), by the insertion of “or a registration granted under Part IIIA” after “authorisation”;

(b) in section 12, by the insertion of “or a registration granted under Part IIIA” after “authorisation”, and

(c) by the insertion of the following Part after section 28:

“PART IIIA

Registration of market participants that are not electricity undertakings

Interpretation (Part IIIA)

28A. In this Part—

‘active customer’ means a final customer, or a group of jointly acting final customers, who consumes or stores electricity generated within its premises located within confined boundaries or, where so provided for in rules made by the Commission in that regard under Regulation 10 of the Regulations of 2022, within other premises, or who sells self-generated electricity or participates in flexibility or energy efficiency schemes, provided that those activities do not constitute its primary commercial or professional activity;

‘electricity activity’ means—

(a) in relation to a relevant market participant other than a relevant market participant that is an active customer or a citizen energy community, an activity referred to in the definition of “market participant” in Article 2(25) of the 2019 Internal Electricity Market Regulation,

(b) in relation to a relevant market participant that is an active customer, an activity referred to in the definition of “active customer” in Regulation 2(1) of the Regulations of 2022, and

(c) in relation to a relevant market participant that is a citizen energy community, an activity referred to in paragraph (c) of the definition of “citizen energy community” in section 2(1).

‘Register’ means the register established and maintained under section 28AB;

‘registration’ means a registration granted to a relevant market participant by the Commission under section 28AE;

‘Regulations of 2022’ means the European Union (Renewable Energy) Regulations 2022 ( S.I. No. 76 of 2022 );

‘relevant market participant’ means a market participant that is not an electricity undertaking;

‘terms and conditions’ means terms and conditions specified in a registration for the purpose of ensuring compliance by a relevant market participant with the obligations referred to in Article 59(1)(b) of the 2019 Internal Electricity Market Directive in so far as those obligations relate to the relevant market participant.

Register of relevant market participants

28AB. (1) The Commission shall establish and maintain a register of relevant market participants registered under this Part which shall, in particular, include—

(a) the name of the relevant market participant,

(b) the names, addresses and contact numbers of relevant contact persons, including, in the case of a body corporate, the names, addresses and contact details of the directors of the company,

(c) the address of the relevant market participant or in the case of a body corporate, its registered office,

(d) the electricity activity that is the subject of the registration,

(e) the date on which the relevant market participant will commence the electricity activity that is the subject of the registration.

(2) The Register may be in book form, electronic form or such other form as the Commission may determine.

(3) The holder of a registration to which an entry in the Register relates, shall as soon as practicable after the holder becomes aware of any error in the entry, or any change in circumstances that is likely to have a bearing on the accuracy of the entry, give notice in writing to the Commission of the error, or change in circumstances, as the case may be.

Registration for purpose of engaging in electricity activity

28AC. (1) Subject to subsection (2), a relevant market participant who wishes to engage in an electricity activity may not engage in the activity unless the relevant market participant has been registered under this Part in respect of that activity.

(2) (a) The Commission may, by order, specify—

(i) a class or classes of relevant market participant who are not required to be registered under this Part, or

(ii) a class or classes of electricity activity the engaging in which by relevant market participants does not require the relevant market participants to be registered under this Part,

or both.

(b) In specifying a class or classes of relevant market participant for the purposes of paragraph (a)(i), the Commission shall have regard to—

(i) the obligations of the class or classes of relevant market participant concerned were the class or classes concerned to be required to register, and

(ii) the requirements of Regulations 3(2)(a) and 7(3)(b) of the Regulations of 2022.

(c) In specifying a class or classes of electricity activity for the purposes of paragraph (a)(ii), the Commission shall specify the class or classes by reference to the scale of the class or classes of electricity activities concerned.

(d) The Commission may by order amend or revoke an order under this subsection.

(e) The Commission shall not make an order under this subsection unless a notice of intention to make such an order is published on its website at least one month before the making of the order.

(f) The draft order shall be published by the Commission in such manner as it shall determine, so as to bring it to the attention of those likely to be affected by it and the notice of intention published under paragraph (e) shall state the manner in which a copy of the draft order may be obtained.

(3) An application to be registered shall be made in accordance with section 28AD.

Application for registration

28AD. (1) An application by a relevant market participant for registration under this Part shall—

(a) be in writing,

(b) specify—

(i) the name of the relevant market participant proposing to engage in the electricity activity that is to be the subject of the registration, including, in the case of a body corporate, the company registration number,

(ii) the names, addresses and contact numbers of relevant contact persons including, in the case of a body corporate, the names, addresses and contact details of the directors of the company,

(iii) the address of the relevant market participant or in the case of a body corporate, the address of its registered office,

(iv) the electricity activity that is to be the subject of the registration,

(v) the date on which it is estimated that the relevant market participant will commence the electricity activity that is to be the subject of the registration,

(c) be in such form, contain such other information and be accompanied by such documents, if any, as the Commission shall specify on its website in accordance with subsection (3), and

(d) be accompanied by such fee as the Commission may determine.

(2) The Commission may request an applicant to provide it with such additional information and documents as the Commission may reasonably request for the purpose of the application and where such a request is made the applicant shall provide such information and documents to the Commission.

(3) The Commission shall publish on its website the procedures for making an application under this section and any other requirements relating to the making of such an application.

Consideration of application by Commission

28AE. (1) The Commission shall grant an application for registration duly made in accordance with section 28AD by a relevant market participant who is required, pursuant to section 28AC, to be registered, unless the Commission is satisfied, having regard to the application and the information and documentation (if any) provided to it under section 28AD, that the relevant market participant concerned would, if registered, not be able to comply with the terms and conditions to be specified in the registration.

(2) Where an application for registration is granted, the registration granted shall be subject to such terms and conditions as may be specified in the registration and the Commission shall—

(a) record the appropriate particulars in the Register, and

(b) issue the relevant market participant with a registration permitting it to engage in the electricity activity concerned in accordance with the registration and the terms and conditions specified therein.

(3) (a) Where the Commission proposes to refuse an application for registration it shall give a written notice of the proposal to refuse to the relevant market participant concerned and the notice shall—

(i) state the reasons for the proposal to refuse, and

(ii) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections with respect to the proposal to refuse may be made.

(b) The Commission shall consider such representations or objections, if any, as are made under paragraph (a) and not withdrawn and shall respond in writing to the relevant market participant concerned in respect of any such representations and objections within a reasonable period of the Commission having received them.

(c) Where the Commission, having considered such, if any, representations or objections referred to in paragraph (b), decides to refuse to grant the application, it shall give a written notice of the decision to the applicant accordingly and such notice shall state the reasons for the decision and inform the applicant that it may, within a period of 28 days from the date the notice is given, appeal the decision to the Circuit Court.

(d) On hearing an appeal under paragraph (c) in relation to the decision of the Commission to refuse to grant the application, the Court may either confirm the decision or allow the appeal and where the appeal is allowed, the Commission shall grant the application and subsection (2) shall apply accordingly.

Modification of registration

28AF. (1) Where the Commission is of the opinion that a registration granted to a relevant market participant under this Part, including any terms and conditions specified in the registration, should be modified, it may make such modification in accordance with this section.

(2) Where the Commission proposes to make a modification under subsection (1), it shall serve a written notice of the proposal on the relevant market participant concerned and the notice shall—

(a) state the nature of the modification,

(b) state the date on which it is proposed the modification is to come into effect, which date shall be stated to be subject to the making of representations or objections or the taking of an appeal, under this section in respect of the modification,

(c) state the reasons for the modification, and

(d) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections with respect to the modification may be made.

(3) The Commission shall consider any representations or objections which are made under subsection (2) (d) and not withdrawn and shall respond in writing to the relevant market participant concerned in respect of any such representations and objections within a reasonable period of the Commission having received them.

(4) The Commission, having considered such, if any, representations and objections referred to in subsection (3) shall decide whether or not to make the modification proposed under subsection (2), and, where representations or objections are made and the Commission considers, on foot of those representations or objections, that a modification other than that proposed should be made, it may decide to make that other modification.

(5) The Commission shall give the relevant market participant a written notice of its decision under subsection (4) and, where its decision is to make the modification proposed under subsection (2) or to make, in accordance with subsection (4), a modification other than that modification, the notice shall state the reasons for that decision and shall inform the relevant market participant of the matters set out in subsections (6) to (8).

(6) A modification under this section shall come into effect on the day that is 28 days after the date on which the notice referred to in subsection (5) is given, unless an appeal is made under subsection (7), in which case the modification shall not come into effect unless confirmed in accordance with that subsection in which case it shall come into effect in accordance with subsection (8).

(7) A relevant market participant may, not later than 28 days from the date on which a notice is given under subsection (5), appeal to the Circuit Court and on hearing an appeal under this subsection the Court may confirm or vary the modification or allow the appeal and cancel the modification.

(8) Where an appeal is taken under subsection (7), the modification shall, unless cancelled by the Court, come into effect on the day next following the day on which the modification is confirmed or varied, on appeal or the appeal is withdrawn, or on such day as is specified by the Court, whichever is later.

Functions of Commission for purpose of ensuring compliance by relevant market participant with registration

28AG. (1) The Commission shall monitor, in accordance with this Act, the compliance by relevant market participants with registrations granted to them and any terms and conditions specified in those registrations (in this section referred to as ‘obligations’).

(2) If, in the opinion of the Commission, a relevant market participant may not be, or is likely to not be, complying with its obligations, the Commission may give a written notice in accordance with subsection (3) to the relevant market participant concerned.

(3) A notice under subsection (2) shall—

(a) specify the acts or omissions that in the opinion of the Commission, may constitute, or would be likely to constitute, a failure to comply with the registration concerned, and

(b) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections may be made.

(4) The Commission shall consider any representations or objections which are made under subsection (3) and not withdrawn.

(5) The Commission, having considered any representations or objections, referred to in subsection (4), may make a determination that a relevant market participant is not complying with its obligations.

(6) The Commission may issue a direction to a relevant market participant where it has made a determination under subsection (5) that a relevant market participant is not complying with its obligations.

(7) A direction issued under subsection (6) shall specify the acts or omissions that in the opinion of the Commission constitute the failure by the relevant market participant to comply with its obligations and shall direct the relevant market participant to take, within the period of time specified in the direction, such remedial actions as are specified in the direction.

(8) As soon as practicable after giving a direction under subsection (6), the Commission shall give a written notice of the direction to the relevant market participant concerned.

(9) A relevant market participant may make representations or objections to the Commission in respect of a direction issued to it under subsection (6) within a period of 28 days from the date on which the notice of the direction is given.

(10) The Commission shall consider any representations or objections made to it in accordance with subsection (9) and shall respond in writing to the relevant market participant concerned in respect of any such representations or objections within a reasonable period of the Commission having received them.

(11) The Commission may withdraw a direction and where it does so it shall give a written notice of the withdrawal to the relevant market participant concerned that sets out the effect of the withdrawal.

(12) A relevant market participant that is aggrieved by a direction issued to it under subsection (6) may—

(a) if no representations or objections are made under subsection (9), within the period of 28 days from the date on which the notice of the direction is given, or

(b) if representations or objections are made under subsection (9), within the period of 28 days from the date of the response of the Commission in respect of those representations or objections,

appeal to the Circuit Court against the direction, and in determining the appeal, the Court may make such order as it considers appropriate, including to confirm, vary or revoke the direction.

(13) Where a relevant market participant fails to comply in full or in part with a direction issued under subsection (6) within the period specified in the direction or fails to cooperate with the Commission with regard to the direction, and the period within which an appeal may be made under subsection (12) has passed, the Commission may apply to the Circuit Court for an order directing the relevant market participant to comply with the direction.

(14) Where a direction is issued to a relevant market participant under subsection (6) (in this subsection referred to as the ‘current direction’) and a direction under this section has previously been issued to the market participant concerned (in this subsection referred to as the ‘previous direction’) in circumstances where—

(a) the previous direction was not withdrawn or revoked by the Circuit Court under this section, or

(b) an appeal in respect of the previous direction is not awaiting determination by the Circuit Court under this section,

the Commission may, where it considers it necessary to do so, temporarily suspend the registration of the relevant market participant concerned in accordance with this section until the non-compliance with the obligations which is the subject of the current direction has been rectified, and where it does so the Commission shall give a written notice, in accordance with this section, to the relevant market participant of the temporary suspension and the relevant market participant shall not engage in the activity during the period of the temporary suspension.

(15) Where the Commission proposes to temporarily suspend a registration, it shall give a written notice to the relevant market participant concerned of the proposal and the notice shall—

(a) state the reasons for the proposed temporary suspension, and

(b) specify the period (being not less than 28 days from the date on which the notice is given) within which representations or objections with respect to the proposal may be made.

(16) The Commission shall consider such representations or objections, if any, as are made under subsection (15)(b) and shall respond in writing to the relevant market participant concerned in respect of any such representations and objections within a reasonable period of the Commission having received them.

(17) Where the Commission, having considered such, if any, representations or objections as are made under subsection (15)(b), decides to temporarily suspend a registration, it shall give a written notice to the relevant market participant concerned of the decision and that notice shall state the reasons for the decision.

(18) Where the Commission decides to temporarily suspend a registration, the relevant market participant concerned may, not later than 28 days from the date of the notice referred to in subsection (17) is given, appeal to the Circuit Court.

(19) On hearing an appeal under subsection (18), the Circuit Court may either confirm or vary the decision of the Commission or allow the appeal and annul the decision.

(20) Where an appeal is taken under subsection (18), the decision of the Commission under subsection (17) shall, unless cancelled by the Circuit Court, take effect on the day following the day on which the decision is confirmed on appeal or the appeal is withdrawn, or on such day as is specified by the Circuit Court, whichever is later.

(21) Where no appeal is made under subsection (18), the decision of the Commission under subsection (17) shall take effect on the day on which the time allowed for an appeal has elapsed.

(22) Any decision of the Circuit Court on an appeal under subsection (18) shall be final, save that, an appeal from the decision may be made to the High Court on a specified point of law.

(23) Sections 23 to 26 shall not apply in respect of the holder of a licence or an authorisation in respect of the obligations of such a person that arise by reason of holding a registration granted under this Part.”.