Paragraph 3 F1

(1)

The third party supplier mentioned in paragraph 2(1) may make an application to the Authority under this paragraph if—

(a)

the distribution exemption holder has served on the customer a notice under paragraph 1(4)(b); and

(b)

at the end of the period mentioned in paragraph 2(10), the distribution exemption holder is not under a duty (whether by virtue of sub-paragraph (6) or (9) of paragraph 2) to give access to the third party supplier.

(2)

The third party supplier may not make an application under this paragraph unless it has, no later than the 10th working day before the day on which the application is made, served on the distribution exemption holder a notice—

(a)

informing the distribution exemption holder that it intends to make an application under this paragraph; and

(b)

inviting the distribution exemption holder to provide it with any further evidence it may wish to provide for the purpose mentioned in paragraph 2(8)(a).

(3)

The application must include—

(a)

any evidence provided by the distribution exemption holder under paragraph 2(8)(a) or sub-paragraph (2)(b) above;

(b)

a description of the nature of the access required by the third party supplier (including any alternative forms of access that would be acceptable to it); and

(c)

any evidence the third party supplier may wish to include—

(i)

to show that the capacity of the distribution system would not need to be increased in order to give a third party supplier access to it;

(ii)

to show that a condition in paragraph 1(5) is not met; or

(iii)

as to the benefits that would be brought by any increase in capacity that may be necessary.

(4)

The third party supplier must send a copy of the application to the distribution exemption holder and the customer.

(5)

Where an application has been made under this paragraph the Authority may, at the request of the customer or the third party supplier (the “requesting party”), ask the distribution exemption holder to provide the Authority and the requesting party with information in respect of the measures that would be required to reinforce the distribution system in order to provide the necessary capacity.

(6)

Except to the extent that sub-paragraph (7) applies, the distribution exemption holder must comply with any request made by the Authority under sub-paragraph (5).

(7)

If the distribution exemption holder represents to the Authority that particular information should not be disclosed under sub-paragraph (6) because it is commercially sensitive, the Authority may determine that the information in question should be excepted from the duty to disclose information under that sub-paragraph, having regard to the need to preserve the confidentiality of commercially sensitive information.

(8)

The distribution exemption holder may recover from the requesting party any costs reasonably incurred in providing any information requested under sub-paragraph (5).

(9)

Where an application has been made under this paragraph the Authority—

(a)

must, if satisfied that the conditions in sub-paragraph (10) are met, determine that the distribution exemption holder is entitled to refuse the third party supplier access to its distribution system on the ground of lack of capacity;

(b)

must, if not satisfied that those conditions are met, determine that the distribution exemption holder is not entitled to refuse the third party supplier access to its distribution system on the ground of lack of capacity.

(10)

Those conditions are—

(a)

that the distribution exemption holder would need to increase the capacity of its distribution system in order to give the third party supplier access to it; and

(b)

that either it is not technically feasible to provide that increase in capacity, or the benefits of the increase in capacity would be outweighed by the economic impact that the provision of the increase in capacity would have on the distribution exemption holder or any other person.

(11)

The Authority must, as soon as is reasonably practicable after making its determination—

(a)

notify the distribution exemption holder of its determination; and

(b)

provide the customer and the third party supplier with a copy of that notice.

(12)

If the Authority determines that the distribution exemption holder is not entitled to refuse the third party supplier access to its distribution system on the ground of lack of capacity—

(a)

the distribution exemption holder must give the third party supplier such access to its distribution system as is necessary to enable the third party supplier to give a supply of electricity to the customer;

(b)

paragraph 1(6) to (8) applies as if the distribution exemption holder had served a notice under paragraph 1(4)(a) on the customer, and as if the references in paragraph 1(7) and (8)(a) to the “expression of interest” were to the notification under sub-paragraph (11) above; and

(c)

paragraph 5 has effect as if the reference in paragraph 5(3) to the “expression of interest” were to the notification under sub-paragraph (11) above.

(13)

Access under sub-paragraph (12)(a) must be given either—

(a)

as soon as is reasonably practicable after the distribution exemption holder receives the notification under sub-paragraph (11); or

(b)

on a date agreed by the distribution exemption holder, the third party supplier and the customer in writing.

Annotations

Textual amendments

F1: Sch. 2ZA, Sch. 2ZB inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 21(3), Sch. 2