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The Electricity (Single Wholesale Market) (Northern Ireland) Order 2007

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2007 No. 913 (N.I. 7)

NORTHERN IRELAND

The Electricity (Single Wholesale Market) (Northern Ireland) Order 2007

Made21st March 2007
Coming into operation in accordance with Article 1(2) to (4)
At the Court at Buckingham Palace, the 21st day of March 2007
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order in Council has been approved by resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by section 23 of the Northern Ireland (Miscellaneous Provisions) Act 2006 (c. 33) and paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:–

Introductory

1 Title and commencement

1 This Order may be cited as the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007.
2 This Article and Article 2 come into operation one week after the day on which this Order is made.
P13 The remaining provisions of this Order come into operation on such day or days as the Department may by order appoint.
4 An order under paragraph (3) may contain such transitional or saving provisions as the Department thinks appropriate.

2 Interpretation

1 The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
2 In this Order—
  • “the Authority” means the Northern Ireland Authority for Utility Regulation;
  • “consumers” include both existing and future consumers;
  • “the Department” means the Department of Enterprise, Trade and Investment;
  • “the Electricity Order” means the Electricity (Northern Ireland) Order 1992 (NI 1);
  • “the Electricity Market Regulation” means Regulation (EC) 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity;
  • “the Energy Order” means the Energy (Northern Ireland) Order 2003 (NI 6);
  • “modifications” includes additions, omissions, amendments and substitutions;
  • “the SEM” means the Single Electricity Market, that is to say the arrangements in Northern Ireland and Ireland—
    1. initially described in the Memorandum of Understanding mentioned in paragraph (3);
    2. designed to promote the establishment and operation of a single competitive wholesale electricity market in Northern Ireland and Ireland; and
    3. which allow for the efficient application of the EU rules for cross border trade in electricity contained within or adopted pursuant to the Electricity Market Regulation as supplemented by—
      1. network codes established under Article 6 of that Regulation, and
      2. guidelines adopted under Article 18 of that Regulation;
  • “the SEM Committee” means the Committee established by Article 6(1);
  • “SEM matter”shall be construed in accordance with Article 6(3);
  • “statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33).
3 The Memorandum of Understanding mentioned above is the Memorandum of Understanding relating to the establishment and operation of a single competitive wholesale electricity market in Northern Ireland and Ireland —
a which was signed on behalf of the Government of Ireland on 5th December 2006 and on behalf of the Government of the United Kingdom on 6th December 2006, and
b a copy of which was presented to Parliament by the Secretary of State by command of Her Majesty on 8th December 2006.
4 Expressions used in this Order which are defined in Article 3 of the Electricity Order have the meanings given by that Article.
5 In this Order, and in any provision of the Electricity Order or the Energy Order amended by this Order—
  • “CER” means the Commission for Energy Regulation (being a body established by Act of the Oireachtas);
  • “the Irish Minister” means the Minister for Communications, Energy and Natural Resources (being a Minister of the Government of Ireland).
6 The Department may by order subject to negative resolution make such amendments to the definitions in paragraph (5) as appear to it to be necessary or expedient in consequence of any change in the law of Ireland.
7 In this Order, any reference to the Electricity Market Regulation, to network codes established under Article 6 of that Regulation or to guidelines adopted under Article 18 of that Regulation shall be construed as references to those instruments as amended from time to time.

Licences

3 Power to modify licence conditions in connection with the SEM

1 The Department after consultation with the Authority, or the Authority with the consent of the Department, may, in accordance with this Article, modify the conditions of a particular licence where it considers it necessary or expedient to do so—
a for the purpose of implementing, or facilitating the operation of, the SEM; or
b in consequence of, or for giving full effect to, the SEM.
2 The power to modify licence conditions under this Article includes power—
a to make modifications relating to the operation or ownership of transmission systems or other systems for the conveyance of electricity; and
b to make incidental, consequential or transitional modifications.
3 Conditions included in a licence by virtue of the power conferred by this Article—
a need not relate to the activity authorised by the licence;
b may require the licence holder—
i to carry out, or procure the carrying out by a subsidiary company of, any activity specified in the licence;
ii to apply for, or cause a subsidiary company to apply for, a licence of a kind so specified;
c may do any of the things authorised by Article 11(2) to (6B) of the Electricity Order;
d may require the licence holder to enter into such new agreements or arrangements, or new agreements or arrangements for such purposes or of such description, as may be specified in or determined by or under the conditions;
e may include provision for determining the terms on which such new agreements or arrangements are to be entered into, including terms for the agreement or arrangement to be governed by a law other than that of Northern Ireland;
f may require the licence holder to amend or terminate, or agree to the amendment or termination of, such existing agreements or arrangements, or existing agreements or arrangements of such description, as may be specified in or determined by or under the conditions.
4 Before making modifications under this Article, the Department or the Authority shall consult—
a the holder of any licence being modified; and
b such other persons as it considers appropriate.
5 The requirements of paragraphs (1) and (4) as to consultation may be satisfied by consultation before, as well as by consultation after, the coming into operation of this Article.
6 Where the Department or the Authority makes any modifications under this Article, it shall publish those modifications in such manner as it considers appropriate.
7 The power to make modifications under this Article may not be exercised after the end of the period of 24 months beginning with the day on which this Article comes into operation.
8 Article 38(1) of the Energy Order applies in relation to the power to modify a licence under this Article as it applies in relation to a power to amend a licence under the Electricity Order.
9 Nothing in this Article prejudices the generality of any other power to modify a licence; and nothing in paragraph (2) or (3) prejudices the generality of paragraph (1).
10 In this Article “subsidiary”, in relation to a company, has the same meaning as in the Companies Acts (see section 1159 of the Companies Act 2006).

I14 Licensing of SEM operator

1 In Article 8(1) of the Electricity Order (prohibition on unlicensed activities)—
a omit“or” at the end of sub-paragraph (b); and
b after sub-paragraph (c) insert
.
2 At the end of Article 8 of that Order add—
.
3 In Article 9(1) of that Order (exemptions) for “or (c)” substitute “ , (c) or (d) ”.
4 In Article 10(1) of that Order (licences)—
a omit“or” at the end of sub-paragraph (b); and
b after sub-paragraph (c) insert
.

5 Property arrangements schemes in respect of certain licence holders

Schedule 1 (which makes provision about property arrangements schemes in respect of certain licence holders) has effect.

The SEM Committee

I26 The SEM Committee

1 There shall be a committee of the Authority to be known as the Single Electricity Market Committee (referred to in this Order as “the SEM Committee”).
2 Any decision as to the exercise of a relevant function of the Authority in relation to a SEM matter must be taken on behalf of the Authority by the SEM Committee.
3 For the purposes of this Order a matter is a SEM matter if the SEM Committee determines that the exercise of a relevant function of the Authority in relation to that matter materially affects, or is likely materially to affect, the SEM.
4 For the purposes of this Order “a relevant function” means—
a a function under Part II of the Electricity Order;
b a function under the Energy Order which relates to electricity;
c a function under Part IV of the Electricity Order 1992 (Amendment) Regulations (Northern Ireland) 2005 (SR 2005/ 335);
d a function under Article 3 or Schedule 1,
e the function of giving directions under section 6(3) of the Energy Prices Act 2022;
f a function under regulations made under section 11(1) of the Energy Prices Act 2022;
other than a function which is mentioned in paragraph (5).
5 The functions of the Authority under any of the following provisions are not relevant functions—
a in the Electricity Order—
  • Article 8(3) (prosecution of licensing offences);
  • Article 23 (approval of interest rate on deposit by way of security);
  • Article 26 (determination of disputes);
  • Article 31 (power to require information about customer complaints);
  • Articles 42 to 45A (standards of performance);
  • Article 45B (approval of customer complaints procedures);
  • Article 47 (fixing of maximum resale price of electricity);
  • Article 47A (billing disputes);
  • Article 52 (keeping of register);
  • Schedule 3 (consents relating to compulsory acquisition or disposal of land);
  • Schedule 6 (public electricity supply code);
  • Schedule 7 (electricity meters);
b in the Energy Order—
  • Article 7 (publication of advice and information on consumer matters);
  • Article 18(4) (disclosure of information by Council);
  • Article 21(4) (publication of information by Council);
  • Article 22(9) (reference of complaints to Council);
  • Article 23(6) (publication of information by Council);
  • Article 24 (provision of information to Council);
  • Article 25(4) (publication of information by Council);
  • Article 27 (reference of failure to supply information to Council);
  • Part VII (electricity from renewable sources).
6 The Department may by order remove any provision from the list of provisions in paragraph (5).
7 An order under paragraph (6)—
a shall not be made unless the Department has consulted the Authority; and
b is subject to negative resolution.
8 Schedule 2 has effect (and paragraphs 6 and 9 of Schedule 1 to the Energy Order do not have effect) in relation to the SEM Committee.

7 Working arrangements for the SEM

1 The Authority shall publish a statement—
a setting out the procedures adopted by the Authority under paragraph 7 of Schedule 1 to the Energy Order for ensuring compliance with Article 6(2); and
b describing how the Authority will work together with CER in the exercise of their respective statutory functions in relation to the SEM.
2 A statement under this Article may be amended from time to time; and the Authority shall as soon as practicable thereafter publish the statement as so amended.

8 Powers of entry

1 Schedule 3 (which confers powers of entry) applies if (and only if) the SEM Committee determines—
a that there are reasonable grounds for suspecting that a licence holder is contravening, or has contravened, any condition of his licence; and
b that any such contravention would materially affect, or be likely materially to affect, the SEM.
2 Article 9 applies in relation to the functions of the SEM Committee under this Article as it applies to the exercise of the functions of that Committee mentioned in Article 9(1)(c).

Objective and duties of Department, the Authority and SEM Committee

I3C2C19 Principal objective and duties of Department, the Authority and SEM Committee in relation to SEM

1 The principal objective of—
a the Department in carrying out its electricity functions in relation to matters which it considers materially affect, or are likely materially to affect, the SEM;
b the Authority in giving effect to any decision of the SEM Committee;
c the SEM Committee in carrying out its functions under Article 6(2),
is to protect the interests of consumers of electricity in Northern Ireland and Ireland supplied by authorised persons, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the sale or purchase of electricity through the SEM.
2 The Department, the Authority and the SEM Committee shall carry out those functions in the manner which it considers is best calculated to further the principal objective, having regard to—
a the need to secure that all reasonable demands for electricity in Northern Ireland and Ireland are met; and
b the need to secure that authorised persons are able to finance the activities which are the subject of obligations imposed by or under Part II of the Electricity Order or the Energy Order or any corresponding provision of the law of Ireland; and
c the need to secure that the functions of the Department, the Authority, the Irish Minister and CER in relation to the SEM are exercised in a co-ordinated manner,
d the need to ensure transparent pricing in the SEM;
e the need to avoid unfair discrimination between consumers in Northern Ireland and consumers in Ireland.
3 The Department, the Authority and the SEM Committee may, in carrying out any of the functions mentioned in paragraph (1), have regard to the interests of consumers in Northern Ireland and Ireland in relation to gas.
4 Subject to paragraph (2), the Department, the Authority and the SEM Committee shall carry out the functions mentioned in paragraph (1) in the manner which it considers is best calculated—
a to promote efficiency and economy on the part of authorised persons;
b to secure a diverse, viable and environmentally sustainable long-term energy supply in Northern Ireland and Ireland; and
c to promote research into, and the development and use of—
i new techniques by or on behalf of authorised persons;
ii methods of increasing efficiency in the use and generation of electricity.
5 Subject to paragraph (2), in carrying out any of the functions mentioned in paragraph (1) the Department, the Authority and the SEM Committee shall have regard to—
a the effect on the environment in Northern Ireland and Ireland of the activities of authorised persons, and
b the need, where appropriate, to promote the use of renewable energy within the meaning of Directive (EU) 2019/944 of the European Parliament and of the Council of 5 June 2019 on common rules for the internal market for electricity and amending Directive 2012/27/EU;.
6 In carrying out any of the functions mentioned in paragraph (1) the Department, the Authority and the SEM Committee shall not discriminate unfairly—
a between authorised persons; or
b between persons who are applying to become authorised persons.
7 In carrying out any of the functions mentioned in paragraph (1) in accordance with the preceding provisions of this Article, the Department, the Authority and the SEM Committee shall have regard to—
a the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed;
b any other principles appearing to it to represent the best regulatory practice.
8 In this Article—
  • “authorised person” means the holder of a licence or exemption granted under Part II of the Electricity Order or any corresponding provision of the law of Ireland;
  • “electricity functions” means —
    1. functions under Part II of the Electricity Order;
    2. functions under the Energy Order relating to electricity;
    3. functions under Part IV of the Electricity Order 1992 (Amendment) Regulations (Northern Ireland) 2005 (SR 2005/ 335); and
    4. functions under this Order;
    5. functions under sections 5 and 6 of the Energy Prices Act 2022 (but only the functions under section 5 relating to electricity);
    6. functions under regulations made under section 11(1) of the Energy Prices Act 2022;
  • “environmental sustainability” includes the need to guard against climate change; F14...
  • F13...
9 In relation to any time after the coming into operation of Article 3 but before the establishment of the SEM Committee, this Article has effect as if for paragraph (1)(b) there were substituted—
.

I410 Exceptions from the general duties

1 Article 9 does not apply in relation to functions of the Department under—
a Article 39, 40, 58, 59 or 60 of the Electricity Order; or
b Article 61 of the Energy Order.
2 Article 9 does not apply in relation to anything done by the SEM Committee in taking a decision as to the exercise of any function of the Authority—
a which relates to the determination of disputes;
b under Article 46(3) of the Electricity Order; or
c under Article 8 of the Energy Order;
or to anything done by the Authority in giving effect to that decision.
3 The SEM Committee may nevertheless, when taking a decision as to the exercise of any function of the Authority under Article 46(3) of the Electricity Order, have regard to any matter in respect of which a duty is imposed by Article 9 if it is a matter to which the Competition and Markets Authority could have regard when exercising that function.
4 The duties imposed by Article 9 do not affect the obligation of the Authority or the Department to perform or comply with any other duty or requirement (whether arising under this Order or another statutory provision, by virtue of any Community obligation or otherwise).

Miscellaneous

11 Effect of this Order on certain agreements

1 This Article applies in relation to an agreement in force between the holder of a licence under Article 8(1)(a) of the Electricity Order and any other licence holder which—
a contains (in whatever terms) provisions which apply where there is a relevant change in law (as defined in the agreement); but
b also contains provision which excludes from the definition of a relevant change in law any change in law which provides that it should not be a relevant change in law.
2 For the purposes of any such agreement neither—
a this Order, nor
b the coming into operation of any provision of this Order,
shall be a relevant change in law.

I512 Minor and consequential amendments

The statutory provisions set out in Schedule 4 shall have effect subject to the minor and consequential amendments specified in that Schedule.

SCHEDULES

SCHEDULE 1 

PROPERTY ARRANGEMENTS SCHEMES

Article 5

Scheme-making power

1
1 The Authority may, on application, make a scheme providing for—
a the transfer to the system operator of, or
b the creation in favour of the system operator of any rights in relation to,
property, rights or liabilities of an existing transmission licence holder.
2 A scheme under sub-paragraph (1) (“a property arrangements scheme”) may also contain—
a provision for the creation, in relation to property which the scheme transfers, of an interest in or right over the property in favour of the relevant existing transmission licence holder;
b provision for the creation of any rights or liabilities as between the relevant existing transmission licence holder and the system operator;
c provision for imposing on the relevant existing transmission licence holder or the system operator an obligation to enter into a written agreement with, or to execute an instrument of another kind in favour of, the other;
d supplemental, incidental and consequential provision.
3 The property, rights or liabilities which may be transferred by a property arrangements scheme include property, rights or liabilities which would not otherwise be capable of being transferred.
4 If a property arrangements scheme provides for the division of an estate in land and any rent is—
a payable in respect of the estate under a lease, or
b charged on the estate,
the scheme may contain provision for apportionment or division so that one part is payable in respect of, or charged on, only one part of the estate and the other part is payable in respect of, or charged on, only the other part of the estate.
5 A property arrangements scheme that contains provision which adversely affects a third party may also contain provision requiring the system operator or the relevant existing transmission licence holder to pay the third party compensation.

Applications for schemes

2
1 An application for the making of a property arrangements scheme may be made by—
a the system operator,
b the relevant existing transmission licence holder, or
c by both jointly.
2 No application for a property arrangements scheme may be made after the end of the period of three months beginning with the day on which Article 5 comes into operation.
3 An application for a property arrangements scheme shall specify the property, rights or liabilities in relation to which provision of a kind mentioned in paragraph 1(1) is proposed to be included in the scheme.

The Authority's functions in relation to applications

3
1 On an application for the making of a property arrangements scheme, the Authority shall, in relation to any property, rights or liabilities in respect of which the application proposes provision of a kind mentioned in paragraph 1(1), determine whether provision of such a kind is, in relation to that property, or those rights or liabilities, necessary or expedient for implementation purposes.
2 Sub-paragraph (1) does not apply if the system operator and the relevant existing transmission licence holder agree that provision of a kind mentioned in paragraph 1(1) is, in relation to the property, rights or liabilities concerned, necessary or expedient for implementation purposes.
3 If the Authority determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is not, in relation to any property, rights or liabilities, necessary or expedient for implementation purposes, it shall refuse the application in relation to that property, or those rights or liabilities.
4 If—
a the Authority determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is, in relation to any property, rights or liabilities, necessary or expedient for implementation purposes, or
b the system operator and the relevant existing transmission licence holder agree that that is the case,
the Authority shall, subject to paragraph 4(2), make a property arrangements scheme in relation to that property, or those rights or liabilities.
4
1 Subject to the following provisions of this paragraph, where the Authority is required to make a property arrangements scheme, the terms of the scheme shall be such as the system operator and the relevant existing transmission licence holder may agree or, if they fail to agree, as the Authority may determine.
2 The Authority may not include in a property arrangements scheme provision which would adversely affect a third party unless it determines that it is necessary or expedient for implementation purposes for the provision to be made.
3 Where the Authority does include in a property arrangements scheme provision which would adversely affect a third party, the Authority shall determine whether the scheme should include provision for compensation and, if so, what that provision should be.
4 A property arrangements scheme shall not provide for any provision to come into operation before the end of the period of 21 days beginning with the day on which the scheme is made.
5
1 A determination under paragraph 4, so far as relating to any financial matter, shall be made on the basis of what is just in all the circumstances of the case.
2 A determination under paragraph 4, so far as relating to any other matter, shall be made on the basis of what appears to the Authority to be appropriate in all the circumstances of the case having regard, in particular, to what is necessary or expedient for implementation purposes.
6The Authority may require any of the following persons to give it information and assistance in connection with the making of a determination under this Schedule—
a the system operator,
b any existing transmission licence holder, and
c any person who makes representations to the Authority about the application to which the determination relates.
7The Authority may engage such consultants as it thinks fit for the purpose of advising it in relation to the making of a determination under this Schedule.

Effect of property arrangements scheme

8A property arrangements scheme shall, by virtue of this paragraph, have effect according to its terms.
9
1 A transaction of any description effected by or under a property arrangements scheme shall have effect subject to the provisions of any statutory provision which provides for transactions of that description to be registered in any statutory register.
2 Subject to sub-paragraph (1), a transaction of any description effected by or under a property arrangements scheme shall be binding on all persons, notwithstanding that it would, apart from this provision, have required the consent or concurrence of any person.

Review of determinations

10
1 Any person aggrieved by a determination of the Authority under this Schedule may apply to the Competition Appeal Tribunal for a review of the determination.
2 Subject to sub-paragraph (3), no application under sub-paragraph (1) may be made after the end of the period of 7 days beginning with the day on which the determination is made.
3 Where the Authority has made a property arrangements scheme, an application under sub-paragraph (1) may be made in respect of a determination relating to the scheme at any time before the end of the period of 7 days beginning with the day on which the scheme is made.
4 On an application under sub-paragraph (1), the Competition Appeal Tribunal may—
a dismiss the application, or
b make an order substituting its own determination.
11
1 This paragraph applies where—
a the Competition Appeal Tribunal makes an order under paragraph 10(4)(b), and
b the Authority has not made a property arrangements scheme in relation to the property, rights or liabilities concerned.
2 The Tribunal may include in the order provision requiring the Authority to make a property arrangements scheme in relation to that property, or those rights or liabilities.
3 Where paragraph 4 applies because of provision under this paragraph, anything the Tribunal has determined shall be treated for the purposes of that paragraph as determined by the Authority.
12
1 This paragraph applies where—
a the Competition Appeal Tribunal makes an order under paragraph 10(4)(b),
b the Authority has made a property arrangements scheme in relation to the property, rights or liabilities concerned, and
c the scheme has not come into operation.
2 Where the Tribunal's determination is that provision of the kind mentioned in paragraph 1(1) is not, in relation to the property, rights or liabilities concerned, necessary or expedient for implementation purposes, it may include in the order provision quashing the scheme.
3 In any other case, the Tribunal may include in the order—
a provision for the scheme to have effect with such amendments with respect to any matter dealt with by the Authority's determination as it thinks fit, and
b to the extent that the Authority's determination dealt with any financial matter, provision requiring the Authority to redetermine the matter in accordance with the order and to amend the scheme accordingly.
13
1 This paragraph applies where—
a the Competition Appeal Tribunal makes an order under paragraph 10(4)(b),
b the Authority has made a property arrangements scheme in relation to the property, rights or liabilities concerned, and
c the scheme has come into operation.
2 The Tribunal may include in the order such provision as it thinks fit for the purpose of doing justice between—
a the system operator,
b the relevant existing transmission licence holder, and
c any third party adversely affected by the scheme,
in the light of its determination.
3 Without prejudice to the generality of sub-paragraph (2), the Tribunal may include in the order—
a provision for retransfer,
b provision for the surrender or extinction of rights, and
c provision for the payment of compensation.
14An order under paragraph 10(4)(b) may include provision for the award of interest at such rate and for such period as the Competition Appeal Tribunal thinks fit.
15Section 120(6) to (8) of the Enterprise Act 2002 (c. 40) (appeal with leave on point of law from decision of Competition Appeal Tribunal to Court of Appeal) shall apply in relation to decisions of the Tribunal under this Schedule as they apply in relation to decisions under that section.

Interim arrangements pending review of determination

16
1 This paragraph applies where—
a a person makes an application under paragraph 10(1) for the review of a determination, and
b the Authority has not made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates.
2 The Competition Appeal Tribunal may on application by the system operator or the relevant existing transmission licence holder make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.
3 Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power to make provision for the system operator to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.
4 No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made.
17
1 This paragraph applies where—
a a person makes an application under paragraph 10(1) for the review of a determination, and
b the Authority has made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates.
2 The Competition Appeal Tribunal may on application by—
a the system operator,
b the relevant existing transmission licence holder, or
c a third party who is adversely affected by any provision of the scheme,
make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.
3 Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power—
a to make provision postponing or suspending the operation of any provision of the scheme for such period, and on such terms, as the Tribunal thinks fit;
b to make provision for the system operator to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.
4 No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made.
18In exercising its powers under paragraph 16 or 17, the Competition Appeal Tribunal shall have regard, in particular, to what is necessary or expedient for implementation purposes.
19Paragraphs 16 and 17 are without prejudice to any powers of the Competition Appeal Tribunal to make orders on an interim basis under rules under section 15 of the Enterprise Act 2002 (c. 40).
20
1 If an order under paragraph 16 or 17 is registered in the High Court, it shall be enforceable as an order of the High Court.
2 An order under paragraph 16 or 17 may be registered by a person entitled to any right under the interim arrangements for which the order makes provision.
3 Sub-paragraphs (1) and (2) have effect subject to any provision made by rules of court.
4 Sub-paragraphs (1) and (2) apply to an order on an interim basis made under rules under section 15 of the Enterprise Act 2002 in connection with an application under paragraph 10(1) as they apply to an order under paragraph 16 or 17.

Supplementary

21The Department may by order designate the holder of a transmission licence as the system operator for the purposes of this Schedule.
22An application under this Schedule shall not be made orally.
23
1 In this Schedule—
  • “existing transmission licence” means a transmission licence which is in force immediately before the day on which Article 5 comes into operation;
  • “implementation purposes” means the purposes of implementing the SEM in accordance with the timetable for implementation for the time being published by the Authority or facilitating the operation of the SEM;
  • “property arrangements scheme” has the meaning given by paragraph 1(2);
  • “relevant existing transmission licence holder”, in relation to a property arrangements scheme, or an application for such a scheme, means the existing transmission licence holder to whose property, rights or liabilities the scheme, or application, relates;
  • “system operator” means the person designated under paragraph 21;
  • “third party”, in relation to a property arrangements scheme, means a person other than the system operator or the relevant existing transmission licence holder.
2 For the purposes of this Schedule, a provision of a property arrangements scheme adversely affects a third party if—
a his consent or concurrence would be required to the making of the provision otherwise than by means of the scheme, and
b he does not consent to the making of the provision by means of the scheme.

SCHEDULE 2 

THE SEM COMMITTEE

Article 6

Membership

1
1 The SEM Committee shall consist of—
a not more than 3 persons (“Authority members”) appointed by the Department after consultation with the Authority;
b not more than 3 persons (“CER members”) appointed by the Department with the approval of the Irish Minister; and
c a person (“the independent member”) appointed by the Department with the approval of the Irish Minister and after consultation with the Authority.
2 An Authority member must be a member of, or a member of the staff of, the Authority.
3 A CER member must be a member of CER.
3A A person appointed as a member of the SEM Committee shall not—
a carry out any activity or have any financial or other interest that might compromise or might reasonably be seen to compromise that person’s impartiality; F15...
b seek or take any instructions from any person or body that might compromise or might reasonably be seen to compromise the independence of that person as a member of the SEM Committee;or
c disclose information which is subject to a duty of confidentiality either while holding office or after holding office.
4 The Department may, with the approval of the Irish Minister and after consultation with the Authority, appoint a person (“the deputy independent member”) who—
a may attend and take part in meetings of the SEM Committee; but
b may not vote on any matter except in the absence of the independent member.
5 Sub-paragraph (3A) and paragraphs 2, 3 and 4 apply in relation to the deputy independent member as they apply in relation to the independent member.

Terms of appointment, remuneration, pensions, etc.

2
1 Subject to this Schedule, the members shall hold and vacate office in accordance with the terms of their appointment.
2 Those terms of appointment shall be determined by the Department with the approval of the Irish Minister.
3
1 An appointment of a person as a member shall be for a term of not less than 5 years or for a term of not more than 7 years.
1A The appointment of a person as a member may only be renewed once.
1B To ensure continuity of the functioning of the SEM Committee, the Department shall ensure that there is a rotation of the membership of the Committee and accordingly the Department shall appoint members so that their terms of office will not all expire at the same time.
1C No person shall be appointed as member except—
a in accordance with the code and such other guidance as may be published from time to time under Article 3(2) of the Commissioner for Public Appointments (Northern Ireland) Order 1995; and
b on the basis of the application of objective, transparent and published criteria which ensures that the candidate has the necessary skills and experience for the relevant position.
2 A person holding office as a member may resign that office by giving notice in writing to the Department and the Irish Minister.
3 A person holding office as the independent member may on the ground of incapacity or misbehaviour be removed from office by the Department with the approval of the Irish Minister.
4 An Authority member—
a may be removed from office by the Department—
i on the ground of incapacity or misbehaviour; or
ii for breach of paragraph 1(3A);
b shall cease to hold office if he ceases to be either a member of, or a member of the staff of, the Authority.
5 A CER member—
a may be removed from office by the Department with the approval of the Irish Minister—
i on the ground of incapacity or misbehaviour; or
ii for breach of paragraph 1(3A);
b shall cease to hold office if he ceases to be a member of CER.
6 A previous appointment as a member does not affect a person's eligibility for appointment to that office.
4The Authority shall pay to the members such remuneration, and such travelling and other allowances, as may be determined by the Department.

Sub-committees

5
1 The SEM Committee may establish sub-committees.
2 The members of a sub-committee of the SEM Committee may include persons who are not members of the SEM Committee.

Proceedings, etc.

6
1 Subject to the provisions of this Schedule, the SEM Committee may regulate its own procedures.
2 A member shall be treated for the purposes of such procedures as present at a meeting of the SEM Committee if, in accordance with arrangements made under those procedures, he is able to hear, and be heard by, all the persons present at the meeting.
3 The SEM Committee shall consult the Department before making or revising its procedures for dealing with conflicts of interest.
4 The validity of anything done by the SEM Committee is not affected by a vacancy among its members or by a defect in the appointment of a member.

Quorum

7The quorum for a meeting of the SEM Committee is —
a the independent member (or the deputy independent member) and one other member; or
b one Authority member and one CER member.

Decision making and voting

8
1 A matter may be decided by agreement—
a of all members of the SEM Committee (whether at a meeting or not); or
b of all members of the SEM Committee present at a meeting.
2 Where at any meeting of the SEM Committee all the members present are not agreed as to any matter falling to be decided at that meeting, the following provisions of this paragraph apply.
3 The matter shall be put to a vote and may be decided by a majority of the votes cast.
4 For this purpose there shall be 3 votes of which—
a the independent member (or the deputy independent member) if present shall have one;
b the Authority members who are present shall have one; and
c the CER members who are present shall have one.
5 There shall be no casting vote; and accordingly where there is an equality of votes cast the matter shall not be decided at the meeting (but may be decided at a later meeting).
6 In relation to a vote falling to be cast under head (b) or (c) of sub-paragraph (4)—
a where all the members mentioned in that head are agreed as to how the vote is to be cast, the vote shall be cast in that manner;
b where a majority of those members are agreed as to how the vote is to be cast, the vote shall be cast in that manner;
c in any other case, no vote shall be cast.
7 Nothing in this paragraph affects the application of paragraph 7.

Performance of functions

9
1 Anything which is authorised or required to be done by the SEM Committee may be done by—
a any member of the SEM Committee who is authorised for that purpose by the Committee, either generally or specifically;
b any sub-committee of the SEM Committee which is so authorised; or
c any member of the staff of the Authority or CER who is so authorised.
2 Sub-paragraph (1)(b) does not apply to a sub-committee whose members include any person who is not a member, or member of the staff, of the Authority or CER.

SCHEDULE 3 

POWERS OF ENTRY

Article 8

Power to enter premises of a licence holder without a warrant

1
1 Where the SEM Committee has made a determination under Article 8 in respect of a licence holder, any member of staff of the Authority who is authorised in writing by the Authority to do so (“an investigating officer”) may enter any premises owned or occupied by that or any other licence holder for the purposes of investigating on behalf of the Authority whether any such contravention as is mentioned in that Article has occurred or is occurring.
2 No investigating officer is to enter any premises in the exercise of his powers under this paragraph unless he has given to the occupier of the premises a written notice which—
a gives at least 2 working days' notice of the intended entry;
b indicates the subject matter and purpose of the investigation; and
c indicates the nature of the offences created by paragraph 4.
3 Sub-paragraph (2) does not apply—
a if the SEM Committee has reasonable grounds for suspecting that the premises are, or have been, occupied by the licence holder in respect of whom the determination under Article 8 was made; or
b if the investigating officer has taken all such steps as are reasonably practicable to give notice but has not been able to do so.
4 In a case falling within sub-paragraph (3), the power of entry conferred by sub-paragraph (1) is to be exercised by the investigating officer on production of—
a evidence of his authorisation; and
b a document containing the information referred to in sub-paragraph (2)(b) and (c).
6 Subject to paragraph 3, an investigating officer entering any premises under this paragraph may—
a take with him—
i such equipment as appears to him to be necessary; and
ii any other relevant officer whom the Authority has authorised in writing to accompany the investigating officer;
b require any person on the premises—
i to produce any document which he considers relates to any matter relevant to the investigation; and
ii if the document is produced, to provide an explanation of it;
c require any person to state, to the best of his knowledge and belief, where any such document is to be found;
d take copies of, or extracts from, any document which is produced;
e require any information which is stored in any electronic form and is accessible from the premises and which the investigating officer considers relates to any matter relevant to the investigation, to be produced in a form—
i in which it can be taken away, and
ii in which it is visible and legible or from which it can readily be produced in a visible and legible form;
f take any steps which appear to be necessary for the purpose of preserving or preventing interference with any document which he considers relates to any matter relevant to the investigation.
7 In this paragraph and paragraph 2—
  • “premises” does not include premises used as a dwelling,
  • “relevant officer” means a member of the staff of the Authority or of CER,
  • “working day” means any day other than Saturday, Sunday or a day which is a public holiday in Northern Ireland.

Power to enter premises of a licence holder under warrant

2
1 Where the SEM Committee has made a determination under Article 8 in respect of a licence holder, the High Court may, on an application made by the Authority, issue a warrant if the Court is satisfied that—
a there are reasonable grounds for suspecting that there are on any premises owned or occupied by a licence holder documents—
i the production of which has been required under Article 51 of the Energy Order or paragraph 1; and
ii which have not been produced as required;
b there are reasonable grounds for suspecting that—
i there are on any premises owned or occupied by a licence holder documents which the Authority has power under Article 51 of the Energy Order to require to be produced; and
ii if the documents were required to be produced, they would not be produced but would be concealed, removed, tampered with or destroyed; or
c an investigating officer has attempted to enter premises in the exercise of his powers under paragraph 1 but has been unable to do so and that there are reasonable grounds for suspecting that there are on the premises documents the production of which could have been required under that paragraph.
2 Subject to paragraph 3, a warrant under this paragraph shall authorise a named member of the staff of the Authority (“the named officer”), and any other relevant officer whom the Authority has authorised in writing to accompany the named officer—
a to enter the premises specified in the warrant, using such force as is reasonably necessary for the purpose;
b to search the premises and take copies of, or extracts from, any document appearing to be of a kind in respect of which the application under sub-paragraph (1) was granted (“the relevant kind”);
c to take possession of any documents appearing to be of the relevant kind if—
i such action appears to be necessary for preserving the documents or preventing interference with them; or
ii it is not reasonably practicable to take copies of the documents on the premises;
d to take any other steps which appear to be necessary for the purpose mentioned in head (c)(i);
e to require any person to provide an explanation of any document appearing to be of the relevant kind or to state, to the best of his knowledge and belief, where it may be found;
f to require any information which is stored in any electronic form and is accessible from the premises and which the named officer considers relates to any matter relevant to the investigation, to be produced in a form—
i in which it can be taken away, and
ii in which it is visible and legible or from which it can readily be produced in a visible and legible form.
3 If, in the case of a warrant under sub-paragraph (1)(b), the Court is satisfied that it is reasonable to suspect that there are also on the premises other documents relating to the investigation concerned, the warrant shall also authorise action mentioned in sub-paragraph (2) to be taken in relation to any such document.
4 A warrant under this paragraph may authorise persons specified in the warrant to accompany the named officer who is executing it.
5 Any person entering premises by virtue of a warrant under this paragraph may take with him such equipment as appears to him to be necessary.
6 On leaving any premises which he has entered by virtue of a warrant under this paragraph, the named officer must, if the premises are unoccupied or the occupier is temporarily absent, leave them as effectively secured as he found them.
7 A warrant under this paragraph continues in force until the end of the period of one month beginning with the day on which it is issued.
8 Any document of which possession is taken under sub-paragraph (2)(c) may be retained for a period of three months.
9 A warrant issued under this paragraph must indicate—
a the subject matter and purpose of the investigation;
b the nature of the offences created by paragraph 4.
10 The powers conferred by this paragraph are to be exercised on production of the warrant issued under this paragraph.
11 If there is no one at the premises when the named officer proposes to execute the warrant he must, before executing it—
a take such steps as are reasonable in all the circumstances to inform the occupier of the intended entry; and
b if the occupier is informed, afford him or his legal or other representative a reasonable opportunity to be present when the warrant is executed.
12 If the named officer is unable to inform the occupier of the intended entry he must, when executing the warrant, leave a copy of it in a prominent place on the premises.

Privileged information, etc.

3A person is not required under paragraph 1 or 2—
a to produce any document which he could not be compelled to produce in civil proceedings in the High Court; or
b to provide any information which he could not be compelled to give in evidence in any such proceedings.

Offences

4
1 A person is guilty of an offence if he fails to comply with a requirement imposed on him under paragraph 1 or 2.
2 If a person is charged with an offence under sub-paragraph (1) in respect of a requirement to produce a document, it is a defence for him to prove—
a that the document was not in his possession or under his control; and
b that it was not reasonably practicable for him to comply with the requirement.
3 If a person is charged with an offence under sub-paragraph (1) in respect of a requirement—
a to provide information,
b to provide an explanation of a document, or
c to state where a document is to be found,
it is a defence for him to prove that he had a reasonable excuse for failing to comply with the requirement.
4 Failure to comply with a requirement imposed under paragraph 1 is not an offence if the person imposing the requirement has failed to act in accordance with that paragraph.
5 A person is guilty of an offence if he intentionally obstructs any other person acting in the exercise of his powers under paragraph 1.
6 A person guilty of an offence under sub-paragraph (1) or (5) is liable—
a on summary conviction, to a fine not exceeding the statutory maximum;
b on conviction on indictment, to a fine.
7 A person who intentionally obstructs any other person in the exercise of his powers under a warrant issued under paragraph 2 is guilty of an offence.
8 A person is guilty of an offence if, having been required to produce a document under paragraph 1 or 2—
a he intentionally or recklessly destroys or otherwise disposes of it, falsifies it or conceals it, or
b he causes or permits its destruction, disposal, falsification or concealment.
9 If information is provided by a person to an investigating officer in pursuance of a requirement imposed under paragraph 1 or 2, that person is guilty of an offence if—
a the information is false or misleading in a material particular, and
b he knows that it is or is reckless as to whether it is.
10 A person guilty of an offence under sub-paragraph (7), (8) or (9) is liable—
a on summary conviction, to a fine not exceeding the statutory maximum;
b on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

SCHEDULE 4 

AMENDMENTS

Article 12

The Electricity (Northern Ireland) Order 1992 (NI 1)

1In Article 3 after the definition of “information” insert—
.
2In Article 9(3) for paragraph (3) substitute—
.
3
1 Article 11 is amended as follows.
2 In paragraph (1)(a) after “Article 12 of the Energy (Northern Ireland) Order 2003” insert “ or Article 9 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 ”.
3 After paragraph (6A) insert—
.
4In Article 11A (2)(a) at the end of each of heads (i), (ii), (iii) and (iv) add “ in Northern Ireland and Ireland” ”.
5In Article 15(7) at the end add “ or Article 9 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007.” ”.
I66
1 In Article 50 after paragraph (2) insert—
2 In Article 50(3A) at the end add
.
7In Article 62(2) after “electricity” insert “ or to act as SEM operator ”.
8In Article 66(1) for the words from “any matter relating to electricity” to the end substitute
.

The Energy (Northern Ireland) Order 2003 (NI 6)

9In Article 12(2)(a) after “demands” insert “ in Northern Ireland or Ireland ”.
10In Article 13 (exemptions) after paragraph (1) insert—
.
11In Article 42 (5) after “Article 12 or 14” insert “ or Article 9 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007. ”.
12
1 Article 63 is amended as follows.
2 In paragraph (1)(a) after “Electricity Order” insert “ , the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 ”.
3 In paragraph (3)(a) after “Electricity Order” insert “ , the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 ”.
4 After paragraph (3) insert—
.
5 In paragraph (4) after sub-paragraph (a) insert—
.
13In Schedule 3, omit paragraph 20.

Footnotes

  1. P1
    Art. 1(3) power partly exercised: 5.5.2007 appointed for specified provisions by S.R. 2007/284, art. 2, Sch; 20.6.2007 appointed for specified provisions by S.R. 2007/303, art. 2, Sch.; 1.11.2007 appointed for specified provisions by S.R. 2007/444, art. 2, Sch. 1
  2. F1
    Art. 2(5): definition of "the Irish Minister" substituted (30.10.2007) by Electricity (Single Wholesale Market) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/458), art. 2
  3. F2
    Words in art. 3(10) substituted (1.10.2009) by Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 268 (with art. 10)
  4. I1
    Art. 4 wholly in operation at 20.6.2007; art. 4 not in operation at date of making see art. 1(3); art. 4 in operation for specified purposes at 5.5.2007 by S.R. 2007/284, art. 2, Sch.; art. 4 in operation at 20.6.2007 for all remaining purposes by S.R. 2007/303, art. 2, Sch.
  5. I2
    Art. 6 partly in operation; art. 6 not in operation at date of making see art. 1(3); art. 6 in operation for certain purposes at 1.11.2007 by S.R. 2007/444, art. 2, Sch. 1
  6. I3
    Art. 9 wholly in operation at 1.11.2007; art. 9 not in operation at date of making see art. 1(3); art. 9 in operation for specified purposes at 20.6.2007 by S.R. 2007/303, art. 2, Sch.; art. 9 in operation at 1.11.2007 for all remaining purposes by S.R. 2007/444, art. 2, Sch. 1
  7. I4
    Art. 10 partly in operation; art. 10 not in operation at date of making see art. 1(3); art. 10(1) in operation at 20.6.2007 and art. 10(4) in operation for specified purposes at 20.6.2007 by S.R. 2007/303, art. 2, Sch.; art. 10(2)(3) in operation at 1.11.2007 by S.R. 2007/444, art. 2, Sch. 1
  8. I5
    Art. 12 partly in operation; art. 12 not in operation at date of making see art. 1(3); art. 12 in operation for specified purposes at 5.5.2007 by S.R. 2007/284, art. 2, Sch.; art. 12 in operation for specified purposes at 20.6.2007 by S.R. 2007/303, art. 2, Sch.; art. 12 in operation for specified purposes at 1.11.2007 by S.R. 2007/444, art. 2, Sch. 1
  9. I6
    Sch. 4 para. 6 wholly in operation at 1.11.2007; Sch. 4 para. 6 not in operation at date of making see art. 1(3); Sch. 4 para. 6(2) in operation at 20.6.2007 by S.R. 2007/303, art. 2, Sch.; Sch. 4 para. 6(1) in operation at 1.11.2007 by S.R. 2007/444, art. 2, Sch. 1
  10. C1
    Art. 9 excluded by S.I. 2003/419 (N.I. 6), art. 8A(4) (as substituted (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 4)
  11. C2
    Art. 9 modifed by S.I. 2003/419 (N.I. 6), art. 13(1A)(1B) (as substituted for (1A) (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 5)
  12. F3
    Sch. 2 para. 1(3A) inserted (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 7
  13. F4
    Words in Sch. 2 para. 1(5) substituted (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 8
  14. F5
    Sch. 2 para. 3(1)(1A)(1B) substituted for Sch. 2 para. 3(1) (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 9
  15. F6
    Sch. 2 para. 3(4)(a)(ii) substituted (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 10
  16. F7
    Sch. 2 para. 3(5)(a)(ii) substituted (12.4.2013) by The Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), regs. 1, 10
  17. F8
    Words in art. 10(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 258 (with art. 3)
  18. F9
    Words in art. 2(2) inserted (31.3.2016) by The Electricity (Single Wholesale Market) Order (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/129), regs. 1, 4(a)
  19. F10
    Words in art. 2(2) substituted (31.3.2016) by The Electricity (Single Wholesale Market) Order (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/129), regs. 1, 4(b)
  20. F11
    Art. 2(7) inserted (31.3.2016) by The Electricity (Single Wholesale Market) Order (Amendment) Regulations (Northern Ireland) 2016 (S.R. 2016/129), regs. 1, 5
  21. F12
    Words in art. 9(5)(b) substituted (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 33(a)
  22. F13
    Words in art. 9(8) omitted (31.12.2020) by virtue of The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 33(b)
  23. F14
    Word in art. 9(8) omitted (31.12.2020) by virtue of The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 33(b)
  24. F15
    Word in Sch. 2 para. 1(3A) omitted (31.12.2020) by virtue of The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 34(a)(i)
  25. F16
    Word in Sch. 2 para. 1(3A)(b) substituted (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 34(a)(ii)
  26. F17
    Sch. 2 para. 1(3A)(c) added (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 34(a)(ii)
  27. F18
    Sch. 2 para. 3(1C) inserted (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 34(b)
  28. F19
    Art. 6(4)(e)(f) inserted (25.10.2022) by Energy Prices Act 2022 (c. 44), s. 30(6), Sch. 7 para. 14 (with s. 29)
  29. F20
    Words in art. 9(8) inserted (25.10.2022) by Energy Prices Act 2022 (c. 44), s. 30(6), Sch. 7 para. 15 (with s. 29)