S.I. No. 614 of 2002

Electricity Regulation Act 1999 (Public Service Obligations) (Amendment) Order 2002

I, Dermot Ahern, Minister for Communications, Marine and Natural Resources, in exercise of the powers conferred on me by section 39 of the Electricity Regulation Act 1999 ( No. 23 of 1999 ) (as amended by the European Communities (Internal Market in Electricity) Regulations 2000 ( S.I. No. 445 of 2000 ) and the Sustainable Energy Act 2002 ( No. 2 of 2002 ) and as adapted by the Marine and Natural Resources (Alteration of Name of Department and Title of Minister) Order 2002 ( S.I. No. 307 of 2002 )), in consideration of general social, economic and environmental factors and following consultation with the Minister for the Environment and Local Government, and having, in accordance with section 39(10) of the Electricity Regulation Act 1999 , given a draft of this Order to the Electricity Supply Board, being the person upon whom the obligations are to be imposed, hereby order as follows:

1.         This Order may be cited as the Electricity Regulation Act 1999 (Public Service Obligations) (Amendment) Order 2002.

2.         (1)        In this Order “Principal Order” means the Electricity Regulation Act 1999 (Public Service Obligations) Order 2002 ( S.I. No. 217 of 2002 ).

(2)        The text of the Principal Order, as amended by this Order, is for convenience of reference set out in the Table to this Order.

3.         Article 2 of the Principal Order is amended -

(a)       in paragraph (1):

(i)         by the insertion of the following after the definition of “Act”:

“ ‘AER V Notification’ means the correspondence referred to in paragraph 1 of EU Commission C(2002) 3 fin dated 15 January 2002 relating to a notification to the EU Commission (Reference No. N553/2001-Ireland) pursuant to Articles 16 and 86 of the Treaty;”,

and

(ii)        by the insertion of the following after the definition of “category”:

“ ‘commercial operation date’ means, in respect of a particular PPA, the commercial operation date specified in the PPA concerned;”,

and

(b)       by the insertion of the following paragraph after paragraph (4):

“(5)      In respect of the first levy period, the estimation of the PSO Levy shall include an amount in respect of the additional costs of the Board in complying with the obligation to be imposed by Article 6(1A) prior to the first levy period.”.

4.         Article 4(1) of the Principal Order is amended by the substitution of the following subparagraphs for subparagraph (b):

“(b)      as respects the obligations to be imposed pursuant to Article 5(1)(c) and (d) and Article 6(1), commence on 1 January 2003,

(bb)     as respects the obligations to be imposed pursuant to Article 6(1A), commence as respects each PPA specified in Schedule 1A on the commercial operation date applicable to the PPA concerned, and”.

5.         Article 4 of the Principal Order is amended by the substitution of the following paragraph for paragraph (2):

“(2)      Notwithstanding paragraph (1) the public service obligations shall not continue in respect of a particular PPA beyond -

(a)        the date specified in column (3) of Part 1 of Schedule 1,

(b)        the date specified in column (4) of Part 3 of Schedule 1, or

(c)        whichever of the dates referred to in Article 6(3) first occurs,

as it applies to the PPA concerned.”.

6.         Article 6 of the Principal Order is amended -

(a)       by the insertion after paragraph (1) of the following paragraph:

“(1A) There shall be imposed by the Commission on the Board a requirement that the Board take such steps and make such arrangements as may be necessary to have available to it and purchase electricity generated pursuant to the PPAs listed in Schedule 1A for the respective terms of those contracts.”,

(b)       by the insertion after paragraph (2) of the following paragraphs:

“(3)       The period of the obligation referred to in paragraph (1A) as respects an individual generating station shall determine:

(a)       on 31 December 2018,

(b)       on the date nominated by a third party producer to the Board as the date upon which the generating station concerned specified in Schedule 1A will cease to supply electricity to the Board in accordance with the terms of the PPA concerned, or

(c)       on the date which is 15 years from the date of commercial operation of the generating station concerned,

whichever first occurs.

(4)        The obligation on the Board to have available to it, and purchase, as appropriate, the electricity generated by the stations specified in Schedule 1A shall not require the Board to have available to it, or purchase, as appropriate, such electricity from any individual station -

(a)       where the station is not generating electricity for supply to the Board, or

(b)       after the date nominated by a third party producer to the Board as the date upon which a station specified in Schedule 1A will cease to supply electricity to the Board in accordance with the terms of the PPA.”.

7.         Article 8 of the Principal Order is amended by the insertion in paragraph (2)(a) of “or the AER V Notification” after “the Notification”.

8.         Article 9 of the Principal Order is amended by the insertion in paragraph (3)(a) of “or the AER V Notification” after “the Notification”.

9.         The Principal Order is amended by the insertion, after Schedule 1, of the matter in the Schedule to this Order as Schedule 1A to the Principal Order.

10.       The Principal Order is amended -

(a)        in Article 2(3)(b) by the substitution of “subparagraph (a)” for “paragraph (a)”,

(b)        in Article 5(1)(e) by the substitution of “subparagraphs (a) and (b)” for “paragraphs (a) and (b)”,

(c)        in Article 9(2) by the substitution of “subparagraphs (a) to (d)” for “paragraphs (a) to (d)”,

(d)        in Article 9(3)(c)(ii) by the substitution of “subparagraphs (a) to (d)” for “paragraphs (a) to (d)”, and

(e)        in Article 9(3)(e)(ii) by the substitution of “subparagraphs (a) to (d)” for “paragraphs (a) to (d)”.

11.       Schedule 2 of the Principal Order is amended:

(a)        by the substitution of the following paragraph for paragraph 6 -

“6.       Every invoice in respect of the PSO Levy shall include the following description of the PSO Levy:

‘PUBLIC SERVICE OBLIGATIONS LEVY

This public service obligations levy relates to the purchase by ESB of the output of certain peat generated electricity, in the interests of security of supply, and the output of certain generating stations using renewable, sustainable or alternative forms of energy, in the interests of environmental protection, in accordance with a Public Service Obligations Order made pursuant to the Electricity Regulation Act 1999 .’.”,

(b)       by the substitution of the following paragraph for paragraph 7-

“7.       For the period of 6 months immediately following 1 January 2003, in lieu of the description of the PSO Levy specified in paragraph 6, the Board shall include on every invoice in respect of the PSO Levy the following description of the PSO Levy:

‘PUBLIC SERVICE OBLIGATIONS LEVY

This public service obligations levy relates to the purchase by ESB of the output of certain peat generated electricity, in the interests of security of supply, and the output of certain generating stations using renewable, sustainable or alternative forms of energy, in the interests of environmental protection, in accordance with a Public Service Obligations Order made pursuant to the Electricity Regulation Act 1999 . The cost of purchase by ESB of these sources of electricity, with the exception of some recently commissioned renewable energy electricity generating stations, was included in electricity bills issued by the Board prior to the introduction of the PSO Levy. Therefore, an appropriate adjustment has been made to this invoice to separately identify the PSO Levy, on a basis approved by the Commission for Energy Regulation.’.”,

and

(c)       by the substitution of the following paragraph for paragraph 8 -

“8.       For the period of 6 months immediately following 1 January 2003, in lieu of the description of the PSO Levy specified in paragraph 6, suppliers to eligible customers using Virtual Independent Power Producer sourced electricity shall include on every invoice in respect of the PSO Levy the following description of the PSO Levy:

‘PUBLIC SERVICE OBLIGATIONS LEVY

This public service obligations levy relates to the purchase by ESB of the output of certain peat generated electricity, in the interests of security of supply, and the output of certain generating stations using renewable, sustainable or alternative forms of energy, in the interests of environmental protection, in accordance with a Public Service Obligations Order made pursuant to the Electricity Regulation Act 1999 . The cost of purchase by [name of independent supplier] of these sources of electricity with the exception of some recently commissioned renewable energy electricity generating stations, was included in electricity bills issued by [name of independent supplier] prior to the introduction of the PSO Levy and therefore, an appropriate adjustment has been made to this invoice to separately identify the PSO Levy, on a basis approved by the Commission for Energy Regulation.’.”.

SCHEDULE

SCHEDULE 1A

Renewable, Sustainable or Alternative Energy

AER V

TABLE

TEXT OF THE ELECTRICITY REGULATION ACT 1999 (PUBLIC SERVICE OBLIGATIONS) ORDER 2002, AS AMENDED BY THE ELECTRICITY REGULATION ACT (PUBLIC SERVICE OBLIGATIONS) (AMENDMENT) ORDER 2002.

Citation

1.     This Order may be cited as the Electricity Regulation Act 1999 (Public Service Obligations) Order 2002.

Interpretation

2.(1) In this Order-

“Act” means the Electricity Regulation Act 1999 , as amended;

“AER V Notification” means the correspondence referred to in paragraph 1 of EU Commission C(2002) 3 fin dated 15 January 2002 relating to the EU Commission (Reference No N553/2001-Ireland) pursuant to Articles 16 and 86 of the Treaty;

“category” means a category of electricity account holders referred to in section 39 (5A) and specified in Schedule 2 of the Act;

“commercial operation date” means in respect of a particular PPA, the commercial operation date specified in the PPA concerned;

“Commission” means the Commission for Energy Regulation (CER) established by the Act;

“distribution system operator” means the holder of a licence granted under Section 14(1)(g) of the Act to discharge the functions of the distribution system operator;

“EU Commission” means the Commission of the European Communities;

“levy period” means a period of 12 calendar months commencing on 1 January in each period;

“Notification” means the correspondence referred to at paragraphs 1 to 4 of EU Commission C(2001)3265fin dated 30.10.2001 and at paragraphs 1 and 2 of EU Commission C(2002)5fin dated 15.01.2002 relating to a notification to the EU Commission (Reference Nos. N6/A/2001 and N826/2001-Ireland) pursuant to Articles 16 and 86 of the Treaty;

“PPA” means a power purchase agreement between the Board and a third party power producer;

“public service obligations levy” means the levy referred to in Article 7 of this Order;

“supplier” means the holder of a licence granted under Section 14, subsection (1) (a), (b), (c) and (d), and subsection (2) of the Act and the Board, and the holder of a permit under Section 37 of the Principal Act, in respect of the supply of electricity to final customers;

“transmission system operator” means the holder of a licence under Section 14(1)(e) of the Act of 1999 to discharge the functions of the transmission system operator or the Board in its capacity as ESB National Grid, as appropriate.

(2) In this Order-

 (a)     a reference to an Article or Schedule is to an Article of, or Schedule to, this Order, unless it is indicated that reference to some other Order is intended, and

 (b)     a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

(3)    (a) For the purposes of Article 8 (1) (a) and Article 10 (1) (a) “additional costs” includes costs incurred by the Board in complying with its obligations under Article 5 (1) (a) and (b) incurred by it either before or after the making of this Order and which are not otherwise recovered.

 (b) Nothing in subparagraph (a) shall entitle the Board to recover additional costs unless those costs are in accordance with the method for determination of costs provided for in the Notification and this Order.

(4) In respect of the first levy period, a reference in Article 8 (1) to administrative expenses of suppliers, the distribution system operator or the transmission system operator in the period concerned shall be construed as including administrative expenses which were incurred prior to the first levy period which relate to the introduction and implementation of the PSO Levy.

(5)   In respect of the first levy period, the estimation of the PSO Levy shall include an amount in respect of the additional costs of the Board in complying with the obligation to be imposed by Article 6(1A) prior to the first levy period.

Direction to the Commission for Energy Regulation

 3.    The Commission for Energy Regulation is directed to impose on the Board public service obligations in the terms set out in this Order.

 Period of public service obligations

 4.(1) The period of the public service obligations shall -

(a)    as respects the obligations to be imposed pursuant to Article 5 (1) (a) and (b), commence on the making of this Order,

(b)        as respects the obligations to be imposed pursuant to Article 5(1)(c) and (d) and Article 6(1), commence on 1 January 2003,

(bb)        as respects the obligations to be imposed pursuant to Article 6(1A), commence as respects each PPA specified in Schedule 1A on the commercial operation date applicable to the PPA concerned, and

(c)        as respects the obligation to be imposed pursuant to Article 5(1)(e), commence on such date or dates as will enable the Board to bring the generating stations into operation not later than the respective dates referred to in Article 5 (1) (a) and (b),

and subject to the provisions of paragraph (2) and Articles 5 and 6, shall continue until 31 December 2019.

(2) Notwithstanding paragraph (1) the public service obligations shall not continue in respect of a particular PPA beyond --

(a)        the date specified in column (3) of Part 1 of Schedule 1,

(b)        the date specified in column (4) of Part 3 of Schedule 1, or

(c)        whichever of the dates referred to in Article 6(30 first occurs,

as it applies to the PPA concerned.

Public service obligation for Peat

5. (1) There shall be imposed by the Commission on the Board a requirement to take such steps and make such arrangements as are necessary-

(a)    to construct and commission the peat generating station specified at paragraph 2 of Part 2 of Schedule 1 in such manner as to ensure that such station is in operation not later than 28 February 2005, which station shall when constructed use indigenous peat as its primary energy fuel source, and to ensure that, when constructed, and subject to the provisions of this Order, throughout the period referred to in Article 4, which relates to that generating station, the Board has available to it the amount of electricity generated by that generating station; and

(b)    to construct and commission the peat generating station specified at paragraph 3 of Part 2 of Schedule 1 in such manner as to ensure that such station is in operation not later than 1 January 2005, which station shall when constructed use indigenous peat as its primary energy fuel source, and to ensure that, when constructed, and subject to the provisions of this Order, throughout the period referred to in Article 4, which relates to that generating station, the Board has available to it the amount of electricity generated by that generating station; and

(c)    to secure that, with effect from 1 January 2003, the Board has available to it and purchases the amount of electricity generated by the generating station the subject matter of the PPA referred to in Part 1 of Schedule 1 being a generating station which uses indigenous peat as its primary energy fuel source, and to ensure that, subject to the provisions of this Order, throughout the period referred to in Article 4 the Board has available to it the amount of electricity generated by that generating station; and

(d)    to secure that, with effect from 1 January 2003, subject to paragraph (2), the Board has available to it and purchases the amount of electricity generated by the generating stations referred to in paragraph 1 of Part 2 of Schedule 1 being generating stations which use indigenous peat as their primary energy fuel source, and to ensure that, subject to the provisions of this Order, throughout the period referred to in Article 4 the Board has available to it the amount of electricity generated by those generating stations, and

(e)    to purchase such amount of peat harvested within the State as is required to generate the electricity to be produced by the generating stations referred to in subparagraphs (a) and (b) on terms having equivalent economic effect (as determined by the Commission) as the terms of the fuel supply agreement made between Bord na Mona and Edenderry Power Limited which agreement relates to the generating station referred to at paragraph 1 of Part 1 of Schedule 1,

provided that the amount of peat used in any calendar year to generate that electricity shall not exceed 15 per cent of the overall primary energy necessary to produce the electricity consumed in the State in that year.

(2) The obligation to have available to it, and purchase, as appropriate, the electricity generated by the stations referred to at paragraph 1 of Part 2 of Schedule 1 shall not require the Board to have available to it, and purchase, as appropriate, such electricity from any of the individual stations for a period beyond the date specified in paragraph 4.16 of the Notification as the projected closure date in respect of each station concerned.

(3) The obligation to have available to it, and purchase, as appropriate, the electricity generated by the stations referred to at paragraphs 2 and 3 of Part 2 of Schedule 1 shall not require the Board to have available to it, and purchase, as appropriate, such electricity for a period in excess of 15 years and in any event not beyond 31 December 2019.

(4) The obligation to have available to it, and purchase, as appropriate, the electricity generated by the stations referred to at paragraph 1 of Part 2 of Schedule 1 shall not require the Board to have available to it, and purchase, as appropriate, such electricity from the Rhode U3 generating unit, the Board, having determined that the generating unit concerned is beyond economic repair.

Public service obligation for Renewable, Sustainable or Alternative forms of energy

 6.(1) There shall be imposed by the Commission on the Board a requirement that the Board take such steps and make such arrangements as may be necessary to have available to it and purchase electricity generated pursuant to the contracts listed in Part 3 of Schedule 1 for the respective terms of those contracts.

(1A)   There shall be imposed by the Commission on the Board a requirement that the Board take such steps and make such arrangements as may be necessary to have available to it and purchase electricity generated pursuant to the PPAs listed in Schedule 1A for the respective terms of those contracts.

(2) The obligation referred to in paragraph (1) shall not in any event continue beyond 31 December 2014.

(3)The period of the obligation referred to in paragraph (1A) as respects an individual generating station shall determine:

(a)    on 31 December 2018,

(b)    on the date nominated by a third party producer to the Board as the date upon which the generating station concerned specified in Schedule 1A will cease to supply electricity to the Board in accordance with the terms of the PPA concerned, or

(c)    on the date which is 15 years from the date of commercial operation of the generating station concerned,

whichever first occurs.

(4)    The obligation on the Board to have available to it, and purchase, as appropriate, the electricity generated by the stations specified in Schedule 1A shall not require the Board to have available to it, or purchase, as appropriate, such electricity from any individual station -

(a)    where the station is not generating electricity for supply to the Board, or

(b)    after the date nominated by a third party producer to the Board as the date upon which a station specified in Schedule 1A will cease to supply electricity to the Board in accordance with the terms of the PPA.”.

Public service obligations Levy

 7.(1) There shall be a levy in respect of the matters provided for in this Order, which shall be known as the public service obligations levy and is in this Order referred to as the “PSO Levy” which levy shall be estimated, calculated, adjusted, collected, monitored, certified, accounted for and paid in accordance with the provisions of this Order.

(2) The PSO Levy shall commence on 1 January 2003.

(3) The PSO Levy imposed by this Order shall terminate no later than 31 December 2021.

Calculation of PSO Levy amount - constituent elements

 8.(1) The amount of the PSO Levy in respect of a particular levy period shall be the aggregate of

(a)    the additional costs of the Board in the period concerned in complying with the obligation imposed on it by Article 5, as determined by the Commission pursuant to Article 9;

(b)    the additional costs of the Board in the period concerned in complying with the obligation imposed on it by Article 6, as determined by the Commission pursuant to Article 9;

(c)    the administrative expenses incurred by suppliers and the distribution system operator in the period concerned in collecting payment of the PSO Levy as determined by the Commission pursuant to Article 9;

(d)    the administrative expenses incurred by the transmission system operator in the period concerned in collecting payment of the PSO Levy as determined by the Commission pursuant to Article 9.

(2) Additional costs of the Board shall not be included in the determination of additional costs by the Commission-

(a)    unless those costs are in accordance with the method for determination of costs provided for in the Notification or the AER V Notification, and

(b)     where the costs arise as a result of the operation of a power station specified in paragraph 1 of Part 2 of Schedule 1 beyond the date projected for closure of that station and which date is specified at paragraph 4.16 of the Notification.

 (3)  The closure costs relating to the Rhode U3 generating unit provided for in the Notification shall be treated as additional costs for the purposes of paragraph 1

(a) in such earlier levy period or periods as they are actually incurred.

(4) Where costs have been incurred by the Board in complying with the obligations imposed on it by Article 5 (1) (a) and (b) and due to reasons outside the control of the Board (to the satisfaction of the Commission) compliance with the terms of those obligations is prevented, such costs shall be treated by the Commission as additional costs of the Board in complying with its obligations under Article 5 (1) (a) and (b), subject to any obligation on the Minister to notify the EU Commission of the circumstances and subject to a favourable decision being obtained in respect of such notification.

Estimation of PSO Levy

9. (1)           (a)      The Commission shall apportion the amount of PSO Levy payable in each levy period in respect of each category of electricity accounts in the State in accordance with the terms of section 39 and Schedule 2 of the Act, and

(b)       the Commission shall compute the basis of the amount of PSO Levy payable in each levy period in respect of each electricity account in the State in accordance with the terms of section 39 and Schedule 2 of the Act.

(2) The PSO Levy in the first levy period to 31 December 2003 shall be determined by the Commission on the basis of the estimates made by it of the amounts required to meet the costs and expenses specified at subparagraphs (a) to (d) of Article 8 (1) and any over recovery or under recovery of those amounts in the period ending on 31 December 2003 shall be taken into account in setting the amount of PSO Levy in respect of the levy period commencing on 1 January 2005.

(3) The following arrangements shall apply in relation to the PSO Levy in respect of each subsequent levy period:

(a)      No later than 30 April in the year immediately preceding a levy period, the Board shall provide the Commission with an estimate of the total amount of the additional costs, calculated in accordance with the method specified for determination of such costs in the Notification or the AER V Notification, that the Board estimates it will incur in the forthcoming levy period in complying with its obligations under this Order and the Board shall separately identify within its aggregate estimates, separate estimates for:

(i)           the additional costs, which will be incurred by the Board in the levy period concerned in complying with the obligation imposed on it by Article 5,

(ii)          the additional costs, which will be incurred by the Board in the levy period concerned in complying with the obligation imposed on it by Article 6,

(b)      No later than 30 April in the year immediately preceding a levy period-

(i)     all suppliers,

(ii)     the distribution system operator, and

(iii)    the transmission system operator

shall provide the Commission with an estimate of the amount of the administrative expenses that each such person estimates it will incur in the forthcoming levy period in complying with its duties under this Order together with such further information as the Commission may specify.

(c)      No later than 1 July in the year immediately preceding the levy period concerned the Commission shall notify all suppliers, the Board, the distribution system operator and the transmission system operator of-

(i)     its estimate in respect of the forthcoming levy period of the total amount of the PSO Levy and of each component making up the PSO Levy as specified in Article 8(1),

(ii)    its estimate in respect of any over recovery or under recovery of the amounts required to meet the costs and expenses specified at subparagraphs (a) to (d) of Article 8 (1) in any earlier levy period,

(iii)   the proportion of the maximum demand attributed to each category of electricity accounts pursuant to section 39 of the Act,

(iv)   the basis of the calculation of the amount to be paid by final customers in each category in respect of the forthcoming levy period, and

(v)    its estimate of the PSO Levy amount per electricity account for Domestic Accounts and Small Accounts and the PSO Levy charge per kVA of maximum import capacity for Medium-Large Accounts.

(d)      Each notified person may make representations to the Commission within 15 days of receiving the notice referred to in paragraph (3)(c) and the

Commission shall have due regard to any representations made.

(e)      The Commission shall make a final determination of-

(i)     its estimate in respect of the forthcoming levy period of the total amount of the PSO Levy and of each component making up the PSO Levy as specified in Article 8(1),

(ii)    its estimate in respect of any over recovery or under recovery of the amounts required to meet the costs and expenses specified at subparagraphs (a) to (d) of Article 8 (1) in any earlier levy period,

(iii)   the proportion of the maximum demand attributed to each category of electricity accounts pursuant to section 39 of the Act,

(iv)   the basis of the calculation of the amount to be paid by final customers in each category in respect of the forthcoming levy period,

(v)    the PSO Levy amount per electricity account for Domestic Accounts and Small Accounts and the PSO Levy charge per kVA of maximum import capacity for Medium-Large Accounts,

and the Commission shall no later than 1 August in the year immediately preceding the levy period notify all suppliers, the Board, the distribution system operator and the transmission system operator accordingly, and

(f)      The PSO Levy shall be allocated among final customers pursuant to paragraph (1) of this Article, collected pursuant to Article 11, accounted for pursuant to Articles 12, 13, 14 and 15 and paid by final customers pursuant to Article 16 on the basis of the determination of the Commission notified in accordance with paragraph (3)(e).

Certification of PSO Levy

10. (1) Within 120 days of the end of each levy period-

(a)      the Board shall provide to the Commission details of the actual additional costs incurred by it in complying with the obligation imposed on it by Articles 5 and 6, and

(b)      suppliers, the distribution system operator and the transmission system operator shall provide details to the Commission of the actual administrative expenses incurred by them and referred to in Article 8(1)(c) and (d),

together in each case with a separate auditors' certificate, detailing the actual amounts of the costs and expenses referred to in subparagraphs (a) and (b), as appropriate, and certifying that the costs and expenses in question have been incurred and the amounts recorded have been properly extracted from the books and records of the company.

(2)    Within 60 days of receipt of the information referred to in paragraph (1), the Commission shall certify the total amount of the PSO Levy in respect of that levy period and shall separately certify the amount of each constituent element of the PSO Levy as specified in Article 8(1).

(3)    If the amount of any of the constituent elements specified in Article 8 (1) in respect of a levy period as certified by the Commission pursuant to paragraph (2) differs from the amount determined by the Commission pursuant to Article 9 (3)(e) as forming part of the PSO Levy in respect of that levy period, the determination of the amount due in respect of the PSO levy for the levy period next commencing shall be adjusted to provide for the over recovery or under recovery of the PSO Levy in the earlier levy period concerned.

Duty of suppliers to invoice and collect PSO Levy

11. It shall be the duty of suppliers who make a supply of electricity to a final customer to invoice the PSO Levy to each such customer on the basis notified to them by the Commission (as referred to in Article 9(3)(e)) in respect of each electricity account held by such final customer, and collect from them, the amount of the PSO Levy payable in respect of each such account in accordance with the provisions of Schedule 2 to this Order.

Duty of suppliers to account to distribution system operator for PSO Levy

12. It shall be the duty of each supplier to whom Article 11 applies, in respect of final customers who are connected to the distribution system, to account for and pay to the distribution system operator all amounts invoiced by such supplier in respect of the PSO Levy, in accordance with the provisions of Schedule 2 to this Order.

Duty of suppliers to account to transmission system operator for PSO Levy

13. It shall be the duty of each supplier to whom the duty to collect the PSO Levy in Article 11 applies, in respect of final customers who are connected to the transmission system, to account for and pay to the transmission system operator all amounts invoiced by such supplier in respect of the PSO Levy, in accordance with the provisions of Schedule 2 to this Order.

Duty of distribution system operator to account to transmission system operator for PSO Levy

14. It shall be the duty of the distribution system operator

(a)      to collect payments of the PSO Levy from suppliers,

(b)      to put in place and implement procedures to recover the PSO Levy from suppliers, and

(c)      to account for and pay to the transmission system operator all appropriate amounts received by it in respect of the PSO Levy, in accordance with the provisions of Schedule 2 to this Order.

Duty of transmission system operator to account to the Board for PSO Levy

15. It shall be the duty of the transmission system operator

(a)      to collect payments of the PSO Levy from suppliers referred to in Article 13 and the distribution system operator,

(b)      to put in place and implement procedures to recover the PSO Levy from the suppliers referred to in Article 13 and the distribution system operator, and

(c)      to account for and pay to the Board all appropriate amounts received by it in respect of the PSO Levy, in accordance with the provisions of Schedule 2 to this Order.

Duty of final customers to pay PSO Levy

16. It shall be the duty of each final customer, which duty is owed to the electricity supplier which invoices such customer, to pay to that supplier the amount of the PSO Levy properly invoiced to such customer in accordance with this Order.

Duty of distribution system operator and transmission system operator to inform Commission as to level of PSO Levy amounts received

17. It shall be the duty of the distribution system operator and transmission system operator to inform the Commission if the level of payments received by them in respect of the PSO Levy is materially different from that anticipated by the Commission as being payable in respect of a particular levy period and advised by the Commission to them and of the measures being taken to recover amounts due.

Recovery of PSO Levy amounts due

18. A supplier, the distribution system operator and the transmission system operator may recover as a simple contract debt in any court of competent jurisdiction, any amount due and owing in respect of the PSO Levy, from each person who has, by virtue of this Order, a duty to pay the PSO Levy to such supplier, the distribution system operator or the transmission system operator, as the case may be.

CER supervision

19.(1) Each person, other than a final customer, who has any duties imposed on him or her pursuant to this Order shall submit a document to the Commission for approval in such form as may be required by the Commission from time to time specifying the procedures which he or she will adopt in order to comply with those duties and, when approved by the Commission, shall comply with those procedures.

(2) The document shall specify such procedures as may be necessary or expedient in order to secure the proper performance by each such person of his or her duties pursuant to this Order, including:

(a)    in the case of the Board:

(i)     the procedures according to which it will estimate each constituent element of the PSO Levy, as appropriate, specified in Article 8(1) of this Order,

(ii)    the dates by which it will provide information required by this Order to the Commission and the format in which such information shall be supplied.

(b)    in the case of suppliers, the procedures suppliers propose to adopt-

(i)     for the invoicing of the PSO Levy to final customers, including the format of invoices,

(ii)    for ensuring the collection of the PSO Levy from final customers,

(iii)   for calculating their administrative expenses involved in the collection of the PSO Levy, and

(iv)    for making payments of the PSO Levy collected to the distribution system operator and transmission system operator, as appropriate.

(c)    in the case of the distribution system operator, the procedures which the distribution system operator proposes to adopt-

(i)     for the collection and recovery of the PSO Levy from suppliers who collect it from final customers connected to the distribution system,

(ii)    for the calculation of its administrative expenses involved in the collection of the PSO Levy, and

(iii)    for the onward payment of the PSO Levy to the transmission system operator.

(d)    in the case of the transmission system operator, the procedures which the transmission system operator proposes to adopt-

(i)     for the collection and recovery of the PSO Levy from suppliers who collect it from final customers who are connected to the transmission system, and from the distribution system operator,

(ii)    for the calculation of its administrative expenses involved in the collection of the PSO Levy, and

(iii)    for the onward payment of the PSO Levy to the Board.

(3)  A document referred to in paragraph (1) and (2) which has been approved by the Commission in accordance with paragraph (1) may, with the consent of the Commission, be modified from time to time.

(4)  A document referred to in paragraph (1) and (2) which has been approved by the Commission in accordance with paragraph (1) shall, at the request of the Commission, made in compliance with the Notification and the provisions of this Order, be modified from time to time in accordance with the request of the Commission.

Provision of information

20. It shall be the duty of each person who has duties pursuant to this Order to provide such information and documents to the Commission as it may require from time to time for the purpose of ensuring that each such person complies with his or her duties under this Order, including without limitation, information and evidence regarding amounts invoiced, received, accounted for and paid by him or her pursuant to his or her duties under this Order and the administrative expenses incurred by him or her, as appropriate, in relation to the performance of his or her duties under this Order.

Transmission system operator duty of priority dispatch of generating stations

21. The Commission shall direct that the transmission system operator, where applicable, give priority of dispatch to generating stations, the output of which is the subject of this Order.

SCHEDULE 1

PART 1

Peat

PART 2

Peat

1.   Peat powered generating stations as specified at paragraph 4.16 of the Notification to the EU Commission:

2.   New 150MW peat power generating station to be constructed at Shannonbridge, County Offaly.

3.   New 100MW peat power generating station to be constructed at Lanesboro, County Longford.

PART 3

Renewable, Sustainable or Alternative Energy

SCHEDULE 1A

Renewable, Sustainable or Alternative Energy

AER V

SCHEDULE 2

PSO LEVY: INVOICING AND COLLECTION TERMS

1.Each supplier shall invoice the PSO Levy to each final customer to whom they make a supply of electricity in respect of each electricity account held by such final customer with that supplier on the basis of the determination made by the Commission and notified to the supplier pursuant to Article 9(3)(e).

2.Each supplier shall ensure that the PSO Levy is invoiced to every final customer-

as frequently,

at the same time, and

as part of the same invoice

as charges for electricity supply are invoiced, with due regard to a supplier's billing cycles, but in any event no less frequently than once every three months.

3.     The amount of the PSO Levy payable in respect of an electricity account by a final customer in a levy period shall be apportioned by the supplier equally, as far as is practicable, between the invoices to be issued by the supplier in the course of a levy period but in any event so as to ensure that the full amount of the PSO Levy payable by such final customer in respect of a levy period shall be so invoiced within 3 months of the end of that levy period and that the final customer is invoiced no less frequently than once every three months.

4.   Where a final customer changes its supplier, the full monthly PSO Levy amount for such final customer will be invoiced by the supplier with which that final customer is registered as the holder of an electricity account at the end of the month for which the monthly PSO Levy is due, whether or not the final customer concerned was a customer of the said supplier for a full calendar month and each such invoice shall charge the relevant final customer for the PSO Levy amount due in respect of such final customer since its last PSO Levy invoice.

5.   Every invoice in respect of the PSO Levy shall identify the amount of the PSO Levy being invoiced, separately from every other item being invoiced, and shall refer to the amount as “Public Service Obligations Levy”.

6.   Every invoice in respect of the PSO Levy shall include the following description of the PSO Levy:

“PUBLIC SERVICE OBLIGATIONS LEVY

This public service obligations levy relates to the purchase by ESB of the output of certain peat generated electricity, in the interests of security of supply, and the output of certain generating stations using renewable, sustainable or alternative forms of energy, in the interests of environmental protection, in accordance with a Public Service Obligations Order made pursuant to the Electricity Regulation Act 1999 .”.

7.   For the period of 6 months immediately following 1 January 2003, in lieu of the description of the PSO Levy specified in paragraph 6, the Board shall include on every invoice in respect of the PSO Levy the following description of the PSO Levy:

“PUBLIC SERVICE OBLIGATIONS LEVY

This public service obligations levy relates to the purchase by ESB of the output of certain peat generated electricity, in the interests of security of supply, and the output of certain generating stations using renewable, sustainable or alternative forms of energy, in the interests of environmental protection, in accordance with a Public Service Obligations Order made pursuant to the Electricity Regulation Act 1999 . The cost of purchase by ESB of these sources of electricity, with the exception of some recently commissioned renewable energy electricity generating stations, was included in electricity bills issued by the Board prior to the introduction of the PSO Levy. Therefore, an appropriate adjustment has been made to this invoice to separately identify the PSO Levy, on a basis approved by the Commission for Energy Regulation.”.

8.   For the period of 6 months immediately following 1 January 2003, in lieu of the description of the PSO Levy specified in paragraph 6, suppliers to eligible customers using Virtual Independent Power Producer sourced electricity shall include on every invoice in respect of the PSO Levy the following description of the PSO Levy:

“PUBLIC SERVICE OBLIGATIONS LEVY

This public service obligations levy relates to the purchase by ESB of the output of certain peat generated electricity, in the interests of security of supply, and the output of certain generating stations using renewable, sustainable or alternative forms of energy, in the interests of environmental protection, in accordance with a Public Service Obligations Order made pursuant to the Electricity Regulation Act 1999 . The cost of purchase by [name of independent supplier] of these sources of electricity with the exception of some recently commissioned renewable energy electricity generating stations, was included in electricity bills issued by [name of independent supplier] prior to the introduction of the PSO Levy and therefore, an appropriate adjustment has been made to this invoice to separately identify the PSO Levy, on a basis approved by the Commission for Energy Regulation.”.

9.   Each supplier shall account for and pay to the distribution system operator all amounts invoiced in respect of the PSO Levy to final customers connected to the distribution system but after having deducted the expenses referred to at paragraph 13, and the amount collected from final customers shall be paid to the distribution system operator no less frequently than within 2 months of invoicing the final customer concerned, on dates to be determined by the Commission.

10. Each supplier shall account for and pay to the transmission system operator all amounts invoiced in respect of the PSO Levy to final customers connected to the transmission system but after having deducted the expenses referred to at paragraph 13, and the amount collected from final customers shall be paid to the transmission system operator no less frequently than within 2 months of invoicing the final customer concerned, on dates to be determined by the Commission.

11. The distribution system operator shall account for and pay to the transmission system operator all amounts received by it from suppliers pursuant to paragraph 9, but after having deducted the expenses referred to at paragraph 14, and the amount collected shall be paid to the transmission system operator within one month of receipt of such monies, on dates to be determined by the Commission.

12. The transmission system operator shall account for and pay to the Board all amounts received by it from suppliers and the distribution system operator pursuant to paragraphs 10 and 11, but after having deducted the expenses referred to at paragraph 15, and the amount collected shall be paid to the Board within one month of receipt of monies from the distribution system operator and suppliers, on dates to be determined by the Commission.

13. Each supplier shall be entitled to deduct from the amounts to be paid to the distribution system operator and the transmission system operator, as the case may be, pursuant to paragraphs 9 and 10 an amount equal to the administrative expenses estimated or determined by the Commission as incurred in complying with its duties as a collector and the amounts so deducted shall form part of the calculation of the PSO Levy specified in Article 8 (1).

14. The distribution system operator shall be entitled to deduct from the amount to be paid to the transmission system operator pursuant to paragraph 11 an amount equal to the administrative expenses estimated or determined by the Commission as incurred in complying with its duties as a collector, and the amounts so deducted shall form part of the calculation of the PSO Levy specified in Article 8 (1).

15. The transmission system operator shall be entitled to deduct from the amounts to be paid to the Board pursuant to paragraph 12 an amount equal to its administrative expenses estimated or determined by the Commission as incurred in complying with its duties as a collector, and the amounts so deducted shall form part of the calculation of the PSO Levy specified in Article 8 (1).

16. Where a supplier has paid to the distribution system operator or the transmission system operator, as the case may be, an amount in respect of the PSO Levy invoiced to a final customer and the supplier has not received payment of that amount or a part of that amount, then where the supplier satisfies the Commission that all necessary steps have been taken to recover such amount and that the amount is nonetheless irrecoverable or unlikely to ever be recovered by the supplier the Commission shall issue a certificate to that effect and the supplier shall thereupon be entitled to treat the amount concerned as an administrative expense referred to in Article 9.

17. Where a supplier, the distribution system operator or the transmission system operator has instituted legal proceedings to recover monies which it is entitled to recover and which include the PSO Levy and

(a)      those monies are recovered, wholly or partly, or

(b)      the monies, or a part of them, are adjudged by a court of competent jurisdiction to be due and owing to the person who instituted the proceedings

then the legal costs (assessed on a solicitor and client basis) incurred by the person instituting those proceedings shall be treated as an administrative expense of that person in the same proportion that the PSO Levy bears to the sum recovered or adjudged to be due to the extent that the legal costs are not otherwise recovered.

18. Where the amount of an invoice relating to the supply of electricity is partly paid by a final customer the PSO Levy shall be treated as partly paid in the same proportion as the payment bears to the total amount of the invoice (excluding Value Added Tax).

EXPLANATORY NOTE

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

The Electricity Regulation Act 1999 (Public Service Obligations) Order 2002, (SI No 445/00), provided for the imposition on ESB of public service obligations requiring ESB to purchase, up until 31 December 2019, the output of certain peat and renewable, sustainable or alternative electricity generating stations, in the interests of security of supply and environmental protection respectively and provided for the introduction of a PSO levy mechanism from 1^st January 2003 to compensate the ESB for the additional costs incurred.

This Order amends the aforesaid Order to impose a public service obligation (PSO) on the ESB requiring it to purchase the output of additional renewable sustainable or alternative electricity generating stations in the interest of environmental protection and to provide for compensating it for the additional costs incurred.