Section 10E: Grounds for certification, Electricity Act 1989

This section applies to—

a ... decision under section 10D as to whether to certify an applicant;

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The Authority may only ... decide to certify the applicant, if one of the following five grounds ("the certification grounds") applies.

The first certification ground is that the applicant meets the ownership unbundling requirement in section 10F.

The second certification ground is that the applicant has asked the Authority to exempt it from the ownership unbundling requirement on the grounds in paragraph (9) of Article 9 of the Electricity Directive (alternative arrangements for independence), and the Authority thinks the requirements of that paragraph are met.

The third certification ground is that—

the applicant has asked the Authority to exempt it from the ownership unbundling requirement on the grounds in paragraphs (1) and (2) of Article 13 of the Electricity Directive (independent system operator);

the applicant has nominated an independent system operator for designation in accordance with those paragraphs; and

the Authority—

thinks that the requirements of those paragraphs are met, and

is minded to designate the nominated independent system operator.

The fourth certification ground is that—

the applicant holds a licence under section 6(1)(e); and

in accordance with the conditions of that licence, the applicant has been granted an exemption under Article 63 of the Electricity Regulation (new interconnectors) and remains entitled to the benefit of it.

In subsection (6)(b), the reference to an exemption granted under Article 63 of the Electricity Regulation is to be treated as including an exemption granted under Article 17 of the predecessor of that Regulation.

The fifth certification ground is that—

the applicant holds a licence under section 6(1)(e); and

in accordance with the conditions of that licence, the applicant has been granted an exemption under Article 7 of Regulation (EC) No. 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (new interconnectors) and remains entitled to the benefit of it.

But, regardless of whether a certification ground applies, the Authority—

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... must not decide to certify the applicant, if a report prepared by the Secretary of State under section 10C states that the certification of the applicant would put at risk the security of electricity supplies in the United Kingdom ...;

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For the purposes of subsection (4), Article 9(9) of the Electricity Directive is to be treated as if the comparison with the provisions of Chapter 5 of the Electricity Directive were a comparison with the provisions of Chapter 5 as they applied in relation to a member State immediately before IP completion day.

For the purposes of subsection (5), the references to Article 13(1) and (2) of the Electricity Directive are to be treated as references to those provisions with the following modifications—

Article 13(1) is to be read as if "Such designation shall be subject to approval by the Commission" were omitted;

Article 13(2)(b) is to be read as if the reference to Article 12 of the Electricity Directive were a reference to Article 12 with the omission of point (h);

Article 13(2)(e) is to be read as if—

for "Regulation (EC) No 714/2009" there were substituted , and" the Electricity Regulation "

the words from "including" to the end were omitted.

Section 10E: Grounds for certification

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