Part I Gas Supply
Pipe-line systems, storage facilities and LNG import or export facilities: rights of use etc
F119AApplication of section 19B to storage facilities.
F2(1)
Section 19B applies to a storage facility, except as provided in subsections (1A) and (1B).
(1A)
Section 19B does not apply to a storage facility if it is subject to a minor facility exemption under section 8S.
(1B)
Section 19B does not apply to a storage facility if, or to the extent that, it is exempt under this section.
(1C)
The Authority must maintain on its website a list of the facilities to which section 19B applies.
(1D)
If only part of the capacity of a storage facility is exempt under this section, the list under subsection (1C) must specify the extent to which section 19B applies to the facility.
(2)
F6(2A)
An application under subsection (2) must relate to—
(a)
a storage facility (or proposed storage facility) which is not yet operational; or
(b)
a modification (or proposed modification) which falls within subsection (2B) and is not yet operational.
(2B)
A modification (or proposed modification) falls within this subsection if it is—
(a)
a modification of a storage facility to provide for a significant increase in the capacity of the facility; or
(b)
a modification of a storage facility to enable the development of new sources of gas supply.
(2C)
The Authority must send to the European Commission a copy of an application under subsection (2) as soon as is reasonably practicable following its receipt.
F7(3)
An exemption under this section must be given in writing and on the following terms—
(a)
a term specifying the period of the exemption, or specifying how that period is to be determined;
(b)
a term as to whether the exemption applies to all of the capacity of the facility or part of that capacity only;
(c)
a term that the owner must comply with the capacity allocation mechanism approved in accordance with section 19DB; and
(d)
such other terms regarding non-discriminatory access to the facility or any other matter as the Authority considers appropriate.
(3A)
When determining a term under subsection (3) the Authority must take into account—
(a)
the capacity of the facility or (as the case may be) the increase in capacity of the facility;
(b)
the length of time required to recover the investment in the facility or (as the case may be) the investment in the modification;
(c)
the implications of the exemption for the operation of the gas market in Great Britain.
F8(4)
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F8F9(5)
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(6)
F10Where the Authority receives an application under subsection (2) in relation to a facility or modification, it must give an exemption if it is satisfied that —
F11(a)
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(b)
the requirements of subsection (8) are met.
F12(6A)
An exemption given in accordance with subsection (6) may apply to all of the capacity of the facility concerned or to part of that capacity only, regardless of the extent of the exemption applied for; but this is subject to subsection (7).
(7)
In respect of a facility which is or is to be modified to provide for a significant increase in its capacity, an exemption by virtue of subsection (6)(b) may only be given in relation to that increase in its capacity F13or part of that increase in its capacity.
F14(7A)
When deciding whether the requirements of subsection (8)(a), (d) and (e) are met, the Authority must take into account the way in which capacity is to be allocated under the capacity allocation mechanism approved in accordance with section 19DB.
(8)
The requirements of this subsection are that—
(a)
the facility or (as the case may be) the F15modification will promote security of supply;
(b)
the level of risk is such that the investment to construct the facility or (as the case may be) to modify the facility F16... would not be or would not have been made without the exemption;
(c)
the facility is or is to be owned by a person other than the gas transporter who operates or will operate the pipeline system connected or to be connected to the facility;
(d)
charges will be levied on users of the facility or (as the case may) the increase in its capacity; F17and
F18(e)
the exemption will not be detrimental to competition in relevant markets, the operation of an economically efficient gas market, the efficient functioning of the pipeline system connected or to be connected to the facility or to security of supply.
F19(f)
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(9)
Subject to F20subsections (9A) and (10), an exemption may not be given by virtue of subsection (6)(b) more than once in respect of the same facility.
F21(9A)
Subsection (9) does not prevent a further exemption being given by virtue of subsection (6)(b) in respect of a facility if the previous exemption given by virtue of that provision in respect of the facility has been revoked under section 19AA(5).
(10)
Subsection (9) does not prevent a further exemption being given by virtue of subsection (6)(b) in respect of a facility if—
the facility is or is to be modified to provide for a significant increase in its capacity F22or to enable the development of new sources of gas supply;
the exemption has effect only in relation to F23that modification; and
no previous exemption has been given by virtue of subsection (6)(b) in relation to F23that modification.
(11)
The Authority shall publish its decision to give or refuse to give an exemption F24under this section, together with the reasons for its decision, in such manner as it considers appropriate.
F25(12)
In this section, “relevant markets” means those gas markets in Member States likely to be affected by the facility.