The Energy (Northern Ireland) Order 2003

Financial penalties N.I.

45.—(1) Where the Authority is satisfied that a [F1 regulated person] has contravened or is contravening any relevant condition or requirement[F2 or any provision of [F3 a Community Regulation]], the Authority may, subject to Article 47, impose on the [F1 regulated person] a penalty of such amount as is reasonable in all the circumstances of the case.

(2) Where the Authority is satisfied

[F4 (a)] that an electricity licence holder who is a public electricity supplier has failed or is failing to achieve any standard of performance prescribed under Article 42 of the Electricity Order[F5 or

(b) that a gas licence holder has failed or is failing to achieve any standard of performance prescribed under section 1 of the Energy Act (Northern Ireland) 2011,]

, the Authority may, subject to Article 47, impose on the licence holder a penalty of such amount as is reasonable in all the circumstances of the case.

[F6 (3) Before imposing a penalty under paragraph (1) or (2) the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

(3A) The Authority shall not impose a penalty under paragraph (1) or (2) if it considers that it would be more appropriate to proceed under the Competition Act 1998.]

(4) Before imposing a penalty on a [F1 regulated person] under paragraph (1) or (2) the Authority shall give notice—

(a) stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;

(b) setting out[F2 the condition, requirement or prohibition] or the standard of performance in question;

(c) specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of a penalty and the amount of the penalty proposed; and

(d) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) Before varying any proposal stated in a notice under paragraph (4)(a) the Authority shall give notice—

(a) setting out the proposed variation and the reasons for it; and

(b) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(6) As soon as practicable after imposing a penalty, the Authority shall give notice—

(a) stating that it has imposed a penalty on the [F1 regulated person] and its amount;

(b) setting out[F2 the condition, requirement or prohibition] or the standard of performance in question;

(c) specifying the acts or omissions which, in the opinion of the Authority, constitute the contravention or failure in question and the other facts which, in the opinion of the Authority, justify the imposition of the penalty and its amount; and

(d) specifying a date, no earlier than the end of the period of 42 days from the date of service of the notice on the [F1 regulated person], by which the penalty is required to be paid.

(7) The [F1 regulated person] may, within 21 days of the date of service on him of a notice under paragraph (6), make an application to the Authority for it to specify different dates by which different portions of the penalty are to be paid.

(8) Any notice required to be given under this Article shall be given—

(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;

(b) by serving a copy of the notice on the [F1 regulated person]; and

(c) by serving a copy of the notice on the Council.

[F7 (9) No penalty imposed by the Authority under this Article may exceed—

(a) subject to sub-paragraph (b), 10 per cent of the turnover of the regulated person; or

(b) where the regulated person is or is part of a vertically integrated undertaking and the relevant condition or requirement to which the contravention relates is imposed on a vertically integrated undertaking pursuant to the Electricity Directive [F8 or [F9 by or under a provision referring to a provision of] the 2009 Electricity Directive] or the Gas Directive, 10 per cent of the turnover of the vertically integrated undertaking,

in each case determined in accordance with provisions specified in an order made by the Department.]

(10) Any sums received by the Authority by way of penalty under this Article shall be paid into the Consolidated Fund.

[F10 (11)  “Community Regulation” means—

(a) the Gas Regulation;

(b) the Electricity Regulation, in the case of a contravention which occurred on or after the date on which the Electricity and Gas (Internal Markets) Regulations 2020 came into force; or

(c) the 2009 Electricity Market Regulation, in the case of a contravention which occurred before the date referred to in sub-paragraph (b).]

F1 Words in art. 45 substituted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 71

F2 SR 2005/335

F3 Words in art. 45(1) substituted (8.3.2010) by virtue of Electricity and Gas (Billing) (No. 2) Regulations (Northern Ireland) 2010 (S.R. 2010/27), reg. 8(a)

F4 Words in art. 45(2) inserted (21.3.2011) by Energy Act (Northern Ireland) 2011 (c. 6), ss. 9(4)(a), 36(1); S.R. 2011/95, art. 2

F5 Art. 45(2)(b) and preceding word inserted (21.3.2011) by Energy Act (Northern Ireland) 2011 (c. 6), ss. 9(4)(b), 36(1); S.R. 2011/95, art. 2

F6 Art. 45(3)(3A) substituted (1.4.2014) for art.45(3) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 51(5), 103(3), Sch. 14 para. 26; S.I. 2014/416, art. 2(1)(e) (with Sch.)

F7 Art. 45(9) substituted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 77

F8 Words in art. 45(9)(b) inserted (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 29

F9 Words in art. 45(9)(b) inserted (31.12.2020) by S.I. 2019/530, reg. 140(1) (with reg. 140(2)) (as substituted by The Electricity and Gas etc. (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1016), regs. 1(2), 3(51)(a))

F10 Art. 45(11) substituted (25.2.2020) by The Electricity and Gas (Internal Markets) Regulations 2020 (S.I. 2020/96), regs. 1, 7(8)

Modifications etc. (not altering text)

C1 Art. 45 applied (with modifications) (3.7.2007) by Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321), regs. 1(1), 56(2) (with transitional provisions in Pt. IV)