The Electricity and Gas (Powers to Make Subordinate Legislation) (Amendment) (EU Exit) Regulations 2018

Document Number:2018 No. 1286
 
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Statutory Instruments

Exiting The European Union

Electricity

Gas

Made

3 rd December 2018

Coming into force in accordance with regulation 1(2)

The Secretary of State, in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018(1) , makes the following Regulations.

In accordance with paragraph 1(1) of Schedule 7 to that Act, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 Introduction

Citation and commencement

  1. —(1) These Regulations may be cited as the Electricity and Gas (Powers to Make Subordinate Legislation) (Amendment) (EU Exit) Regulations 2018.

    (2) These Regulations come into force—

    (a) on the day after the day on which they are made, for the purposes of making regulations under—

    (i) Article 6 of the Electricity Regulation, as substituted by regulation 4; or

    (ii) Article 6 of the Gas Regulation, as substituted by regulation 10 ,

    so that those regulations may come into force on or after exit day;

    (b) on exit day, for all other purposes.

    Interpretation

  2. In these Regulations—

    “the Electricity Regulation” means Regulation (EC) No 714/2009 of the European Parliament and of the Council on conditions for access to the network for cross-border exchanges in electricity;

    “the Gas Regulation” means Regulation (EC) No 715/2009 of the European Parliament and of the Council on conditions for access to the natural gas transmission networks;

    “REMIT” means Regulation (EU) No 1227/2011 of the European Parliament and of the Council on wholesale energy market integrity and transparency; and

    “the Security of Gas Supply Regulation” means Regulation (EU) 2017/1938 of the European Parliament and of the Council concerning measures to safeguard the security of gas supply.

    PART 2 Amendments to retained direct EU legislation

    CHAPTER 1 Amendment of the Electricity Regulation

    Amendment of the Electricity Regulation

  3. The Electricity Regulation is amended as follows.

    Amendment of Article 6

  4. For Article 6 (establishment of network codes) substitute—

    “Article 6 Establishment of provision corresponding to network codes or guidelines

  5. In this Article—

    (a)“the Withdrawal Act” means the European Union (Withdrawal) Act 2018;

    (b)“corresponding provision”, in relation to a relevant provision, has the meaning given by paragraphs 2 and 3;

    (c)“deficiency” is to be interpreted in accordance with subsections (2) to (4) and subsection (9) of section 8 of the Withdrawal Act (with references in those subsections to retained EU law being read as if they included references to relevant provisions);

    (d) an “electricity network code or guideline” means—

    (i) a network code adopted by the Commission before exit day, under this Article as it has effect in EU law; or

    (ii) guidelines adopted by the Commission before exit day, under Article 18 as it has effect in EU law;

    (e)“national authority” means—

    (i) the Secretary of State, in relation to Great Britain;

    (ii) the Secretary of State or the Northern Ireland department, in relation to Northern Ireland;

    (f)“the Northern Ireland department” means the Department for the Economy;

    (g)“permitted amendment”, in relation to a relevant provision, means an amendment to that provision which would not prevent it from having effect as a corresponding provision; and

    (h) a “relevant provision” means a provision of an electricity network code or guideline which—

    (i) although in force immediately before exit day, is stated to apply from a time after exit day (a “relevant non-operative provision”); or

    (ii) was in force and applied before exit day, but is revoked or amended by regulations under section 8(1) of the Withdrawal Act in consequence of another provision being a relevant non-operative provision.

  6. A national authority may, by regulations, make provision which corresponds to a relevant provision of an electricity network code or guideline (a “corresponding provision”).

    (3.) For this purpose, a provision corresponds to a relevant provision if—

    (a) the national authority considers that it has the same or substantially the same effect as the relevant provision; or

    (b) it is different from the relevant provision, other than in respects that fall within subparagraph (a) , only to such extent as the national authority considers appropriate for the purpose in paragraph 4.

  7. That purpose is to prevent, remedy or mitigate—

    (a) any failure of a provision to operate effectively; or

    (b) any other deficiency in a provision,

    arising from the withdrawal of the United Kingdom from the EU.

  8. Regulations under paragraph 2 may, in particular—

    (a) amend the electricity network code or guideline so that it contains the corresponding provision; or

    (b) if all the provisions of the electricity network code or guideline are relevant provisions, provide that the electricity network code or guideline has effect in domestic law, with such permitted amendments (if any) as are specified in the regulations.

  9. Regulations under paragraph 2—

    (a) may include provision of a kind which may be made in regulations under section 8(1) of the Withdrawal Act by virtue of subsection (5) or (6) of that section;

    (b) may not include provision of a kind specified in subsection (7) of that section.

  10. The following provisions in Part 3 of Schedule 7 to the Withdrawal Act (general provision about powers under Act) apply to regulations made under paragraph 2 as they do to regulations under section 8(1) of the Withdrawal Act—

    (a) paragraph 21 (power to make supplementary provision, etc.);

    (b) paragraph 27 (disapplication of certain review provisions);

    (c) paragraph 36 (hybrid instruments).

  11. An electricity network code or guideline which has effect in domestic law by virtue of provision made under paragraph 5(b) (as modified under this Regulation or by other domestic law from time to time) is to be treated as—

    (a) retained EU law, for the purposes of—

    (i) section 6 of the Withdrawal Act (interpretation of retained EU law); and

    (ii) section 15(2) of, and Part 2 of Schedule 5 to, the Withdrawal Act (rules of evidence);

    (b) retained direct minor EU legislation, for the purposes of—

    (i) section 7(3) of the Withdrawal Act (status of retained EU law);

    (ii) paragraph 30 of Schedule 8 to the Withdrawal Act (Human Rights Act 1998).

  12. No regulations may be made under this Article after the end of the period of two years beginning with exit day.”.

    Amendment of Article 7

  13. For Article 7 (amendments of network codes) substitute—

    “Article 7 Amendments of network codes or guidelines

  14. A national authority may, by regulations, amend an electricity network code or guideline.

  15. The power in paragraph 1 includes power to—

    (a) insert into the electricity network code or guideline new provision about the same subject-matter as, or related subject-matter to, an existing provision of the electricity network code or guideline; or

    (b) revoke the electricity network code or guideline or any provision of it, either with or without making replacement provision.

  16. Regulations under this Article must be...

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