Energy (Windfall Gains in the Energy Sector) (Cap on Market Revenues) Act 2023

Energy (Windfall Gains in the Energy Sector) (Cap on Market Revenues) Act 2023 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2023 Energy (Windfall Gains in the Energy Sector) (Cap on Market Revenues) Act 2023 Energy (Windfall Gains in the Energy Sector) (Cap on Market Revenues) Act 2023 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 30 of 2023 ENERGY (WINDFALL GAINS IN THE ENERGY SECTOR) (CAP ON MARKET REVENUES) ACT 2023 CONTENTS PART 1 Preliminary and General Section 1. Short title and commencement 2. Interpretation 3. Regulations and schemes 4. Expenses 5. Service of notices PART 2 Calculation, Return, Payment and Recovery Chapter 1 Calculation 6. Application of Act to certain persons 7. Application of Act to certain fuel sources 8. Market cap 9. Market index price 10. Monthly market revenue and monthly capped revenue 11. Preliminary surplus revenue 12. Adjusted surplus revenue 13. Further provision relating to adjusted surplus revenue 14. Further provision relating to hedging arrangements Chapter 2 Return 15. Return 16. Direction to make a return under section 15 17. Notice requiring further information 18. Requirement to revise assessment 19. Appeal Chapter 3 Payment and recovery 20. Obligation to pay 21. Surcharge for late return 22. Recovery of interest in respect of overdue amount 23. Obligation to keep certain records 24. Inspection PART 3 Market Cap Fund 25. Establishment of Fund 26. Accounts of Fund 27. Disbursements from Fund 28. Schemes PART 4 Offences, Penalties and Information Sharing 29. False or misleading information 30. Offences 31. Prosecution by competent authority 32. Offence by body corporate 33. Information sharing Acts Referred to Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No. 24) Companies Act 2014 (No. 38) Electricity Regulation Act 1999 (No. 23) Number 30 of 2023 ENERGY (WINDFALL GAINS IN THE ENERGY SECTOR) (CAP ON MARKET REVENUES) ACT 2023 An Act to give full effect to Articles 6, 7, 8 and 10 of Council Regulation (EU) 2022/1854 of 6 October 20221 on an emergency intervention to address high energy prices and for that purpose to make provision for a cap, that is to say the market cap to apply to market revenues from the sale of electricity produced from certain sources for the period beginning on 1 December 2022 and ending on 30 June 2023; to provide for the payment of revenues of producers, intermediaries and traders in excess of the market cap to the collection agent; to provide for the calculation of the amounts payable; to provide for the obligations of producers, intermediaries and traders relating to the market cap and enforcement of certain obligations; to provide for the administration and collection of the amounts payable; to provide for a collection agent; to provide for the establishment and management of a market cap fund; to provide for the making of schemes for disbursement from the market cap fund in accordance with Article 10 of the Council Regulation; and to provide for related matters. [17th November, 2023] Be it enacted by the Oireachtas as follows: PART 1 Preliminary and General Short title and commencement 1. (1) This Act may be cited as the Energy (Windfall Gains in the Energy Sector) (Cap on Market Revenues) Act 2023. (2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions. Interpretation 2. (1) In this Act— “Act of 1999” means the Electricity Regulation Act 1999 ; “adjusted surplus revenue” shall be construed in accordance with section 12 ; “affiliated person” means— (a) in relation to a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act— (i) any parent company or any wholly owned subsidiary company of the company, or any company that is part of a group of companies with that company within the meaning of section 8 of the Companies Act 2014 , or (ii) the spouse or any relative, or the spouse of any relative, of a director, manager, secretary or other officer of the company, and (b) in relation to an individual— (i) a relative of the individual, (ii) a person acting on behalf of the individual or of a relative of the individual, (iii) a company or other body of which the individual or relative of the individual, or a nominee of them, is a member, (iv) a partnership in which the individual or a relative of the individual is a partner, or (v) an employer of the individual, or of a relative of the individual; “balancing market” has the meaning given to it by section 6 ; “billing period” in relation to a settlement rerun, shall be construed in accordance with section G.2.2.2 of Part B of the Trading and Settlement Code; “collection agent” means EirGrid, the person licensed as the Single Electricity Market operator under section 14(1)(j) of the Act of 1999; “competent authority” means the Commission for Regulation of Utilities, being the competent authority designated under the European Union (Risk Preparations) Regulations 2020 ( S.I. No. 342 of 2020 ); “Council Regulation” means Council Regulation (EU) 2022/1854 of 6 October 20222 on an emergency intervention to address high energy prices; “current account” shall be construed in accordance with section 25 ; “day ahead market” has the meaning given to it by section 6 ; “distribution system” shall be construed in accordance with the meaning given to it in the definition of “distribution” in the Act of 1999; “distribution system operator” means the Electricity Supply Board being the holder of the licence referred to in section 14(1)(g) of the Act of 1999; “electricity market” means the Single Electricity Market; “export only supplier” means a market participant— (a) who does not sell electricity to wholesale customers (within the meaning of the Act of 1999) or final customers, (b) is licensed to supply electricity under section 14(1)(b) of the Act of 1999, and (c) who supplies electricity on behalf of more than one producer, each of which producer has a generating unit with installed capacity of less than 10 megawatts; “ex-ante market” has the meaning given to it by section 6 ; “final customer” has the meaning given to it by the Act of 1999; “Fund” means the Market Cap Fund established under section 25 ; “generating unit” means an apparatus that produces electricity, measured in megawatts, for which the maximum electrical output capable of being delivered on a sustained basis without accelerated loss of equipment life at the point where the apparatus is joined to the transmission system or the distribution system, is one or more than one whole megawatt; “hedging arrangement” shall be construed in accordance with section 14 ; “imbalance settlement period” means, in relation to each consecutive hour during the relevant period, a 30 minute period beginning at each hour and at 30 minutes past each hour; “inspector” means an inspector appointed under section 56 of the Act of 1999; “installed capacity” means the maximum instantaneous power that a generating unit can produce under specific conditions designated by the manufacturer and expressed in megawatts; “intermediary” shall be construed in accordance with section 6 ; “intraday market” has the meaning given to it by section 6 ; “investment account” shall be construed in accordance with section 25 ; “loss-adjusted metered quantity” shall be construed in accordance with Sections F.2.5 and F.4 of Part B of the Trading and Settlement Code; “market cap” shall be construed in accordance with section 8 ; “market index price” has the meaning given to it by section 9 ; “market participant” has the meaning given to it by the Act of 1999; “Minister” means the Minister for the Environment, Climate and Communications; “monthly capped revenue” shall be construed in accordance with section 10 ; “monthly market revenue” shall be construed in accordance with section 10 ; “power purchase agreement” has the meaning given to it by section 10 ; “preliminary surplus revenue” shall be construed in accordance with section 11 ; “prescribed” means prescribed by regulations or schemes made by the Minister or by regulations made by the competent authority having consulted with the Minister; “producer” shall be construed in accordance with section 6 ; “REFIT power purchase agreement” means a REFIT power purchase agreement referred to in the Electricity Regulation Act 1999 (Public Service Obligations) Order 2002 ( S.I. No. 217 of 2002 ); “relative” means, in relation to an individual, a child, step-child, parent, brother, sister, spouse, civil partner within the meaning of section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 , cohabitant, within the meaning of section 172(1) of that Act of 2010, grandparent, or grandchild of the individual or a child of the individual’s civil partner or cohabitant; “relevant period” has the meaning given to it by section 8 ; “relevant quantity” has the meaning given to it by section 10 ; “return” means a return made by a producer, intermediary or trader under section 15 ; “scheme” means a scheme prescribed by the Minister under section 28 ; “SEMO” means— (a) in relation to the State, the Single Electricity Market operator, and (b) in relation to Northern Ireland, the person appointed to perform like functions in Northern Ireland to those performed by the Single Electricity Market operator in the State; “settlement rerun” means a settlement rerun carried out by the Single Electricity Market operator in the 4th month and 13th month after the end of a billing period, in accordance with Section G.2.9 of Part B of the Trading and Settlement Code, the objective of which is to adjust the financial position of market participants by taking account of matters including updated data relating to metered generation of electricity; “Single Electricity Market” has the meaning given to it by the Act of 1999; “Single Electricity Market operator” means EirGrid, being the person licensed as the Single Electricity Market operator under section 14(1)(j) of the Act of 1999; “trader” shall be construed in accordance with section 6 ; “Trading and Settlement Code” means the Single Electricity Market Trading and Settlement Code, established under section 9BA(1) of the Act of 1999, concerning rules and procedures for the purchase and sale of wholesale electricity in the Single Electricity Market and in operation during the relevant period including as respects a settlement rerun relating to a billing period occurring during the relevant period; “transmission system” shall be construed in accordance with the meaning given to it in the definition of “transmission” in the Act of 1999; “transmission system operator” means a holder of a licence referred to in section 14(1)(e) of the Act of 1999. (2) In this Act a word or expression which is used in this Act and which is also used in the Council Regulation has, unless the context otherwise requires, the same meaning in this Act as it has in the Council Regulation. Regulations and schemes 3. (1) The Minister may by regulations provide for any matter referred to in section 33 as prescribed or to be so prescribed. (2) The Minister may make a scheme to provide for any matter referred to in section 28 as prescribed or to be so prescribed. (3) The competent authority, having consulted with the Minister, may by regulations provide for any matter referred to in section 15 or 20 as prescribed or to be so prescribed. (4) Without prejudice to any provision of this Act, regulations or schemes under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister or the competent authority having consulted with the Minister, as the case may be, to be necessary or expedient for the purposes of the regulations. (5) Every regulation or scheme under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or scheme is passed by either such House within the next 21 days on which that House has sat after the regulation or scheme is laid before it, the regulation or scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. Expenses 4. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be approved by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys provided by the Oireachtas. Service of notices 5. (1) A notice or other document that is required to be served on or given to a person under this Act shall be in writing addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; (d) by electronic means in a case in which the person has given notice in writing to the person giving the notice concerned of his or her consent to the notice (or notices of a class to which the notice belongs) being given to him or her in that manner. (2) For the purpose of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business. PART 2 Calculation, Return, Payment and Recovery Chapter 1 Calculation Application of Act to certain persons 6. (1) Each of the following persons shall be liable, subject to this Act, to make a payment referred to in section 8 : (a) a person (in this Act referred to as a “producer”) who holds a licence under section 14(1)(a) of the Act of 1999, in respect of a generating unit with installed capacity of one or more than one megawatt which produces electricity from a source specified in section 7 ; (b) a person (in this Act referred to as an “intermediary”) appointed and authorised, under and in accordance with Section B.11 of Part B of the Trading and Settlement Code, by a producer to be an intermediary on behalf of the producer; (c) a person (in this Act referred to as a “trader”) appointed and authorised under and in accordance with Section B.7 of Part B of the Trading and Settlement Code, by a producer or an intermediary to sell electricity in accordance with the SEMOpx rules on behalf of the producer or intermediary, in the ex-ante market or the balancing market. (2) In this section— “balancing market” means the market operated by SEMO to continuously balance generation of and demand for electricity in order to maintain stable and secure operation of the transmission system; “day ahead market” means a part of the electricity market operated by SEMOpx where market participants submit their offers and bids for electricity supply and demand, respectively, for the immediately following day which facilitates the efficient scheduling and dispatch of electricity generation resources based on anticipated supply and demand conditions wherein the market-clearing price is determined based on the intersection of the offers and bids, and which establishes the price of electricity for the day ahead; “ex-ante market” means a day-ahead market or an intraday market; “intraday market” means a part of the electricity market operated by SEMOpx where market participants may trade electricity closer to real-time, after the day ahead market has concluded, and adjust and optimise their positions or meet unforeseen changes in electricity supply or demand, and manage imbalances between scheduled and actual electricity flows, in a timely manner; “SEMOpx” is the nominated electricity market operator (NEMO) designated by the SEMO under and in accordance with Commission Regulation (EU 2015/1222) of 24 July 20153 and Title VIII of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community of the one part and the United Kingdom of Great Britain and Northern Ireland of the other part, done at Brussels and London on 30 December 20204 to operate the ex-ante market under and in accordance with that Regulation and Agreement. Application of Act to certain fuel sources 7. This Act applies to market revenue obtained in the State each month during the relevant period by a producer, intermediary or trader from the sale of electricity produced from any or all of the following fuel sources: (a) wind energy; (b) solar energy (solar thermal and solar photovoltaic); (c) geothermal energy; (d) hydropower (with or without reservoir); (e) biomass fuel (solid or gaseous biomass fuels), excluding biomethane; (f) waste; (g) nuclear energy; (h) lignite; (i) crude petroleum products; (j) peat; (k) hard coal. Market cap 8. (1) A producer, intermediary or trader shall each be liable to make a payment, calculated in accordance with this Act, in respect of the market revenue, obtained in the State by the producer, intermediary or trader each month during the relevant period from the sale of electricity produced from a class of fuel source referred to in section 7 , that exceeds the amount specified in subsection (2) in relation to that class of source (in this section referred to as the “market cap”). (2) Subject to subsection (3), the market cap shall be— (a) €120 per megawatt hour for electricity produced from the source referred to in paragraph (a), (b) or (d) of section 7 , (b) €180 per megawatt hour for electricity produced from the source referred to in paragraph (c), (f), (g) or (h) of section 7 , and (c) for electricity produced from the source referred to in paragraph (e), (i), (j) or (k) of section 7 , a cap per megawatt hour of the greater of— (i) €180 per megawatt hour, or (ii) the allowable cost of production for that calendar month plus an allowable margin of— (I) €15 per megawatt hour for electricity produced from the source referred to in paragraph (e) or (j) of section 7 , (II) €120 per megawatt hour for electricity produced from the source referred to in paragraph (i) of section 7 , and (III) €35 per megawatt hour for electricity produced from the source referred to in paragraph (k) of section 7 . (3) Where electricity is produced in a generating unit from more than one class of fuel source referred to in section 7 , the producer, intermediary or trader concerned shall be liable to make a payment in relation to the market cap applying to the greatest percentage of the fuel source used in the production of electricity in the unit in a month which shall, in that month, be the market cap applying to the sale of all the electricity produced in that unit. (4) In this section— “allowable cost of production” shall be calculated by the producer by applying the unit complex bids to the relevant quantity for the generating unit for the month concerned in megawatt hours, then dividing the resulting amount, stated in euros, by the relevant quantity for the generating unit for the month concerned in megawatt hours, to give an amount stated in euros per megawatt hour; “incremental and decremental priced quality pairs” shall be construed in accordance with Section D.4.4 of Part B of the Trading and Settlement Code; “no load costs” shall be construed in accordance with Section D.4.3 of Part B of the Trading and Settlement Code; “relevant period” means the period beginning on 1 December 2022 and ending on 30 June 2023; “start up costs” shall be construed in accordance with Section D.4.3 of Part B of the Trading and Settlement Code; “unit complex bids” means complex bid offer data submitted, by or on behalf of a producer, under Section D.4 of Part B of the Trading and Settlement Code, to the SEMO in respect of a generating unit. Market index price 9. (1) The collection agent shall establish and maintain a website whereby it shall, on or after the commencement of this section, continue to publish the market index price which was calculated and published by the collection agent before the said commencement. (2) In this section, “market index price” in relation to each month of the relevant period, means the weighted average price of the prices associated with each quantity of electricity traded in the day-ahead market and each quantity of electricity traded in the intraday market by all generating units in each imbalance settlement period in that month. Monthly market revenue and monthly capped revenue 10. (1) The amount of monthly market revenue in respect of which a payment referred to in section 8 (1) is liable to be made shall be calculated, in accordance with subsection (2), by the producer, intermediary or trader for each month of the relevant period in respect of the revenue obtained by the producer, intermediary or trader, as the case may be, from the sale of electricity in that month (in this Act referred to as “monthly market revenue”). (2) Monthly market revenue— (a) in relation to a producer— (i) who does not participate directly in the electricity market but enters a contract with a person (other than an export only supplier) to participate in the electricity market on the producer’s behalf, shall be calculated for each generating unit as the total revenue (whether or not payable during the month concerned) obtained by the producer pursuant to the contract for each imbalance settlement period in that month, (ii) who participates directly in the electricity market as or through an export only supplier, established by the producer for the purpose of sale of electricity produced by the producer, shall be calculated for each generating unit as the sum of the relevant quantity in each imbalance settlement period in the month concerned multiplied by the market index price for each imbalance settlement period in that month, or (iii) who participates directly in the electricity market other than as or through an export only supplier, shall be calculated for each generating unit as the sum of the relevant quantity in each imbalance settlement period in the month concerned multiplied by the market index price for each imbalance settlement period in that month, (b) in relation to an intermediary, shall be calculated for each generating unit in respect of which the intermediary participates in the electricity market on behalf of a producer, as the sum of the relevant quantity in each imbalance settlement period in the month concerned multiplied by the market index price for each imbalance settlement period in that month, and (c) in relation to a trader— (i) who sells electricity on behalf of a producer or intermediary in the ex-ante market, shall be calculated for each generating unit in respect of which the trader sells electricity in the ex-ante market on behalf of the producer or intermediary, as the sum of the ex-ante quantity of the generating unit in each imbalance settlement period in the month concerned multiplied by the market index price for each imbalance settlement period in that month, or (ii) who sells electricity on behalf of a producer or intermediary in the balancing market, shall be calculated for each generating unit in respect of which the trader sells in the balancing market on behalf of the producer or intermediary, as the sum of the loss-adjusted metered quantity of the generating unit in each imbalance settlement period in the month concerned multiplied by the market index price for each imbalance period in that month. (3) The amount of monthly capped revenue in respect of which a payment referred to in section 8 (1) is liable to be made shall be calculated, in accordance with subsection (4), by the producer, intermediary or trader for each month of the relevant period in respect of the revenue obtained from the sale of electricity in that month (in this Act referred to as “monthly capped revenue”). (4) Monthly capped revenue— (a) in relation to a producer— (i) referred to in subparagraph (i) of subsection (2)(a), shall be calculated, for each generating unit as the sum of the relevant quantity of electricity for which the contract referred to in that subparagraph provides, produced in each imbalance settlement period in the month concerned, multiplied by the amount of the cap applying to the electricity under section 8 (2), (ii) referred to in subparagraph (ii) of subsection (2)(a), shall be calculated, for each generating unit as the sum of the loss-adjusted metered quantity of electricity produced in each imbalance settlement period in the month concerned, multiplied by the amount of the cap applying to the electricity under section 8 (2), and (iii) referred to in subparagraph (iii) of subsection (2)(a), shall be calculated, for each generating unit as the sum of the relevant quantity of electricity produced in each imbalance settlement period in the month concerned, multiplied by the amount of the cap applying to the electricity under section 8 (2), (b) in relation to an intermediary, shall be calculated, for each generating unit in respect of which the intermediary participates in the electricity market on behalf of a producer, as the sum of the relevant quantity of electricity produced in each imbalance settlement period in the month concerned multiplied by the amount of the cap applying to the electricity under section 8 (2), and (c) in relation to a trader— (i) referred to in subparagraph (i) of subsection (2)(c), shall be calculated, for each generating unit in respect of which the trader sells electricity in the ex-ante market on behalf of the producer or intermediary, as the sum of the ex-ante quantity produced in each imbalance settlement period in the month concerned multiplied by the amount of the cap applying to the electricity under section 8 (2), or (ii) referred to in subparagraph (ii) of subsection (2)(c), shall be calculated, for each generating unit in respect of which the trader sells in the balancing market on behalf of the producer or intermediary, as the sum of the loss adjusted metered quantity produced in each imbalance settlement period in the month concerned multiplied by the amount of the cap applying to the electricity under section 8 (2). (5) In this section, “relevant quantity” means the relevant quantity for an imbalance settlement period for a generating unit which shall be calculated according to the following formula: relevant quantityu΃ = QMLFu΃ – ΣoΣi (QABLFuio΃ – Min(QABBIASuio΃, QABUNDELuio΃, QABNFLFuio΃, QABCURLLFuio΃)) where— U refers to a generating unit, O refers to bid offer acceptance, i refers to a band, ΃ refers to an imbalance settlement period, QMLFu΃ is the loss-adjusted metered quantity, Σo is a summation over all bid offer acceptances, Σi is a summation over all bands, QABLFuoi΃ is the loss-adjusted accepted bid quantity, QABBIASuoi΃ is the biased accepted bid quantity, QABUNDELuoi΃ is the undelivered accepted bid quantity, QABNFLFuoi΃ is the loss-adjusted non-firm accepted bid quantity, QABCURLLFuoi΃ is the loss-adjusted curtailment accepted bid quantity. (6) In this section— “band” shall be construed in accordance with the Glossary to Part B of the Trading and Settlement Code; “biased accepted bid quantity” shall be construed in accordance with Section F.6.7.10 of Part B of the Trading and Settlement Code; “bid offer acceptance” shall be construed in accordance with the Glossary to Part B of the Trading and Settlement Code; “cap applying to the electricity” means the market cap applying to the fuel source from which the electricity is produced; “contract” includes— (a) a contract under which electricity generated by a generating unit is subtracted, by a party to the contract other than the producer, from the electricity demand a producer or generating unit would otherwise have in the electricity market, (b) a REFIT power purchase agreement, and (c) a power purchase agreement; “ex-ante quantity” means, in relation to a producer, intermediary or trader concerned in respect of a generating unit, the amount of electricity in megawatt hours notified to the producer, intermediary or trader by SEMO, in advance of an imbalance settlement period, that the generating unit is required to generate in the imbalance settlement period; “loss-adjusted accepted bid quantity” shall be construed in accordance with Section F.6.2 of Part B of the Trading and Settlement Code; “loss-adjusted curtailment accepted bid quantity” shall be construed in accordance with Section F.8.1 of Part B of the Trading and Settlement Code; “loss-adjusted non-firm accepted bid quantity” shall be construed in accordance with Section F.6.5 of Part B of the Trading and Settlement Code; “power purchase agreement” means a power purchase agreement between a producer and a buyer for the sale or purchase of electricity pursuant to the terms and conditions of the agreement which shall include terms and conditions related to the price and quantity of electricity sold and purchased and the period during which the electricity shall be supplied by the producer; “undelivered accepted bid quantities” shall be construed in accordance with Section F.6.6.6 of Part B of the Trading and Settlement Code. Preliminary surplus revenue 11. (1) Preliminary surplus revenue shall be calculated in accordance with this section by a producer, intermediary or trader for each month of the relevant period. (2) Preliminary surplus revenue— (a) in relation to a producer referred to in subparagraph (i) of section 10 (2)(a), shall be the monthly market revenue calculated under that subparagraph less the monthly capped revenue calculated under section 10 (4)(a)(i), (b) in relation to a producer referred to in subparagraph (ii) of section 10 (2)(a), shall be the monthly market revenue calculated under that subparagraph less the monthly capped revenue calculated under section 10 (4)(a)(ii), (c) in relation to a producer referred to in subparagraph (iii) of section 10 (2)(a), shall be the monthly market revenue calculated under that subparagraph less the monthly capped revenue calculated under section 10 (4)(a)(iii), (d) in relation to an intermediary, shall be the monthly market revenue calculated under section 10 (2)(b) less the monthly capped revenue calculated under section 10 (4)(b), (e) in relation to a trader referred to in subparagraph (i) of section 10 (2)(c), shall be the monthly market revenue calculated under that subparagraph less the monthly capped revenue calculated under section 10 (4)(c)(i), and (f) in relation to a trader referred to in subparagraph (ii) of section 10 (2)(c), shall be the monthly market revenue calculated under that subparagraph less the monthly capped revenue calculated under section 10 (4)(c)(ii). Adjusted surplus revenue 12. (1) Adjusted surplus revenue means the amount liable, subject to sections 13 and 14 , to be paid by a producer, intermediary or trader in respect of the market cap and shall be calculated by the producer, intermediary or trader in accordance with this section for each month of the relevant period (in this Act referred to as “adjusted surplus revenue”). (2) Adjusted surplus revenue shall be calculated by adjusting the preliminary surplus revenue as follows: (a) in relation to a producer— (i) gains earned by the producer from hedging arrangements in respect of a generating unit shall be added, (ii) difference charges, other than non-performance difference charges, paid by the producer in respect of a generating unit shall be deducted, (iii) losses incurred by the producer from hedging arrangements in respect of a generating unit shall be deducted, and (iv) any monies liable to be paid by the producer to a trader who is not, in relation to the producer, an affiliated person shall be deducted; (b) in relation to an intermediary— (i) gains earned by the intermediary from hedging arrangements in respect of a generating unit shall be added, (ii) difference charges, other than non-performance difference charges, paid by the intermediary in respect of a generating unit shall be deducted, (iii) losses incurred by the intermediary from hedging arrangements in respect of a generating unit shall be deducted, (iv) any monies liable to be paid by the intermediary to— (I) a trader who is not, in relation to the intermediary, an affiliated person, or (II) a producer who is not, in relation to the intermediary, an affiliated person, shall be deducted, and (v) any monies which exceed the intermediary’s monthly capped revenue and which are liable to be paid by the intermediary to a producer who is, in relation to the intermediary, an affiliated person shall be deducted; (c) in relation to a trader— (i) gains earned by the trader from hedging arrangements in respect of a generating unit shall be added, (ii) difference charges, other than non-performance difference charges, paid by the trader in respect of a generating unit shall be deducted, (iii) losses incurred by the trader from hedging arrangements in respect of a generating unit shall be deducted, (iv) any monies liable to be paid to the trader by a producer or an intermediary shall be added, (v) any monies liable to be paid by the trader to— (I) a producer who is not, in relation to the trader, an affiliated person, or (II) an intermediary who is not, in relation to the trader, an affiliated person, shall be deducted, and (vi) any monies which exceed the trader’s monthly capped revenue and which are liable to be paid by the trader to— (I) a producer who is, in relation to the trader, an affiliated person, or (II) an intermediary who is, in relation to the trader, an affiliated person, shall be deducted. (3) Where adjusted surplus revenue, calculated in accordance with this section, is negative for a month during the relevant period it should be treated as if it were calculated to be nil for that month. (4) In this section— “difference charges” means financial incentives related to reliable production of electricity calculated in accordance with Section F.18 of Part B of the Trading and Settlement Code; “non-performance difference charges” means difference charges calculated in accordance with Section F.18.7 of Part B of the Trading and Settlement Code. Further provision relating to adjusted surplus revenue 13. (1) Where adjusted surplus revenue is nil in respect of a generating unit for a month during the relevant period, the producer, intermediary or trader shall not be liable, for that generating unit, to make any payment in respect of the market cap for that month. (2) Adjusted surplus revenue in respect of a generating unit for a month during the relevant period shall be calculated, under section 12 , subject to any calculation required on foot of a settlement rerun applying in respect of the generating unit. (3) Where an intermediary pays directly to final customers an amount from what would, but for this subsection be any or all of the adjusted surplus revenue of the intermediary then the intermediary shall not be liable to pay the market cap in respect of the amount so paid to final customers. (4) For the purposes of subsection (3), “pays directly to final customers” means— (a) the intermediary shall be taken to have so paid directly where, during the relevant period, the difference in revenue gained by the intermediary from sales of electricity by the intermediary to final customers and the wholesale cost to the intermediary of purchasing that electricity and the network charges incurred by the intermediary, divided by the total volume of electricity sold by the intermediary, is no greater than the historical average of the fiscal years 2018 to 2021 for the intermediary, or (b) the intermediary has paid out monetary benefits to final electricity customers out of what would, but for subsection (3), be its adjusted surplus revenue. Further provision relating to hedging arrangements 14. (1) Subject to subsection (3), all losses and gains incurred or earned from every hedging arrangement, applying during or in relation to all or part of the relevant period, entered into by a producer, intermediary or trader shall be taken into account in accordance with section 12 . (2) Where a hedging arrangement of a producer is not related to a specific identifiable generating unit of the producer then all losses and gains incurred or gained under the hedging arrangement in any imbalance settlement period shall be applied to all generating units of the producer in that imbalance settlement period. (3) A hedging arrangement shall be taken into account for the purpose of a calculation referred to in section 12 where all of the following conditions are met: (a) the hedging arrangement is directly related to hedging fluctuations in Single Electricity Market wholesale electricity prices and directly associated with the sale and delivery of electricity in the Single Electricity Market during the relevant period; (b) the arrangement is made with a person other than the producer, intermediary or trader concerned and it provides for price, volume, duration and terms of settlement; (c) the hedging arrangement is associated with specific megawatt per hour quantities in each imbalance settlement period and has, subject to subsection (2), been allocated over all generating units referred to in the hedging arrangement; (d) the loss assigned by the hedging arrangement to a generating unit in an imbalance settlement period is based on a quantity of energy that is less than or equal to the electricity produced by that generating unit in that imbalance settlement period; (e) the hedging arrangement represents an arm’s length transaction at the market price at the time of entry into the arrangement and the producer, intermediary or trader who has entered into the arrangement and the other party to the arrangement are not affiliated persons; (f) the hedging arrangement has not been unwound or counter balanced by another transaction conducted by the producer, intermediary or trader or any affiliated person of that person; (g) there is no separate arrangement to provide a benefit to any person as a result of the hedging arrangement, between the producer, intermediary or trader and the other party to the hedging arrangement or with any affiliated person of a party to the hedging arrangement. (4) A hedging arrangement referred to in this section may include but need not be limited to the sale of electricity pursuant to— (a) a contract for differences, (b) contracts for fuel and carbon contracts that are proxies for electricity contracts, or (c) a directed contract. (5) In this section— “contract for differences” means an agreement through which parties agree the price of a commodity by reference to the difference between a fixed contract price and the market price, which is paid after the trading period; “directed contract” means a contract for difference where the contract price and volume are directed by the SEM Committee; “SEM Committee” means the committee referred to in section 8A of the Act of 1999. Chapter 2 Return Return 15. (1) A producer, intermediary or trader shall, not later than 31 December 2023, make a return in respect of the relevant period to the competent authority which return shall— (a) be in such form as may be prescribed, (b) contain such information as may be prescribed, including information in relation to— (i) the fuel source referred to in section 7 from which the electricity is produced, (ii) whether electricity is produced from more than one class of fuel source and the amount of each fuel used, (iii) allowable cost of production within the meaning of section 8 , (iv) monthly market revenue, (v) the level of market cap, (vi) preliminary surplus revenue, (vii) adjusted surplus revenue, (viii) any affiliated person in relation to the person making the return, (ix) any hedging arrangements, (x) in relation to an intermediary, any amount referred to in section 13 paid directly to final customers, and (xi) any settlement rerun, (c) attach such particulars and documents as may be prescribed, and (d) contain the producer’s, intermediary’s or trader’s assessment of the adjusted surplus revenue, for each generating unit, calculated in accordance with section 12 in respect of each month of the relevant period, that the producer, intermediary or trader is liable to pay to the collection agent. (2) A producer, intermediary or trader shall, within such periods or by such dates as may be prescribed, make a return to the competent authority which return shall— (a) be in such form as may be prescribed, (b) contain such information as may be prescribed, and (c) attach such particulars and documents as may be prescribed— (i) relating to any adjustment of information contained in the return referred to in subsection (1) necessitated by a settlement rerun, a hedging arrangement or a power purchase agreement, and (ii) containing the person’s assessment of the amount which, due to a settlement rerun, a hedging arrangement or a power purchase agreement— (I) the producer, intermediary or trader is liable to pay to the collection agent, or (II) the producer, intermediary or trader has overpaid and is liable to be repaid by the collection agent. Direction to make a return under section 15 16. (1) Where the competent authority makes a determination that a person has failed to make a return under subsection (1) or (2) of section 15 the competent authority may give a direction to the person requiring the person to make the return. (2) Where the competent authority proposes to make a determination under subsection (1) it shall give notice to the person to whom it proposes to give the direction that the person may, within 30 days after the date of the notice, give notice to the competent authority objecting to the proposed determination under subsection (1) and stating the reason for the objection. (3) On or after the expiry of the period of 30 days referred to in subsection (2), the competent authority, having considered any objection made to it under subsection (2) shall make whatever determination it considers appropriate and shall give notice to the person of its determination, the main reasons for that determination and, if appropriate, a direction requiring the person to make a return under subsection (1) or (2) of section 15 as the case may be. (4) Where a notice under subsection (3) is given, the date by which the return is required to be made shall be the date to which the notice refers and not the date specified in section 15 (1) or prescribed under section 15 (2). (5) Subject to section 19 , a person who is given a notice under subsection (3) requiring the person to make a return shall make the return to the competent authority not later than 30 days after the date of the notice. (6) A person referred to in subsection (5) who, without reasonable excuse, fails to make a return within the period specified in that subsection shall be guilty of an offence. Notice requiring further information 17. (1) The competent authority may give notice to a person who makes a return under subsection (1) or (2) of section 15 , requiring the person to submit, within the period specified in the notice or such further period as may be agreed in writing by the competent authority, any further information that the competent authority considers necessary for the purpose of the calculation of the adjusted surplus revenue. (2) A person who, without reasonable excuse, fails to comply with a notice under subsection (1) within the period specified in the notice or such further period as may be agreed in writing by the competent authority shall be guilty of an offence. Requirement to revise assessment 18. (1) The competent authority, where it appears to it that an assessment referred to in section 15 (1)(d) or section 15 (2)(c)(ii) is not correct, may make a determination that a revised assessment is required. (2) Where the competent authority proposes to make a determination under subsection (1) it shall give notice to the person who made the return under subsection (1) or (2) of section 15 of the authority’s proposed determination, and that the person may, within 30 days after the date of the notice, to give a notice to the competent authority objecting to the proposed determination under subsection (1) and stating the reason for the objection. (3) On or after the expiry of the period of 30 days referred to in subsection (2), the competent authority, having considered any objections made to it under subsection (2), shall make whatever determination it considers appropriate, including substituting its own assessment, and shall give notice to the person of its determination, the main reasons for that determination, and, if appropriate, requiring the person to make a new return under subsection (1) or (2) of section 15 , as the case may be, to the competent authority, containing a revised assessment. (4) Subject to section 19 , a person who is given a notice under subsection (3) requiring the person to make a new return containing a revised assessment shall make the new return to the competent authority not later than 30 days after the date of the notice and not the date specified in section 15 (1) or prescribed under section 15 (2). (5) A person referred to in subsection (4) who, without reasonable excuse, fails to make a new return within the period specified in that subsection shall be guilty of an offence. Appeal 19. (1) A person who receives a notice under section 16 (3) or 18 (3) may, within 8 weeks after the date of the notice appeal to the High Court against the determination. (2) The bringing of an appeal against a notice under section 16 (3) or 18 (3) shall not have the effect of suspending the operation of the notice unless upon an application to the High Court, the Court makes an order staying or otherwise affecting the operation of the notice pending the hearing of the appeal. (3) The High Court shall hear and determine an appeal under this section and may make such order as it considers appropriate. (4) Without prejudice to the generality of the forgoing, following the consideration of an appeal under this section, the High Court may— (a) confirm the determination of the competent authority, (b) set aside the determination of the competent authority, (c) set aside the determination of the competent authority and replace it with such other decision as the Court considers just or appropriate to make, or (d) remit the determination for review by the competent authority, subject to such directions as the Court considers appropriate. (5) Where the High Court makes an order remitting the determination of the competent authority under subsection (4)(d), the competent authority shall review the determination in accordance with any directions of the Court. Chapter 3 Payment and recovery Obligation to pay 20. (1) A producer, intermediary or trader shall pay to the collection agent, on or before 31 January 2024, an amount equal to the adjusted surplus revenue that the producer, intermediary or trader is liable under this Act to pay. (2) A producer, intermediary or trader shall pay to the collection agent, on or before 31 August 2024, any balance of the adjusted surplus revenue the producer, intermediary or trader is liable to pay due to a settlement rerun. (3) The collection agent shall repay to a producer, intermediary or trader, on or before 31 August 2024, any overpayment of the adjusted surplus revenue made by the producer, intermediary or trader that the collection agent is liable to repay due to a settlement rerun. (4) A producer, intermediary or trader shall pay to the collection agent, not more than 30 days after a date as may be prescribed, any balance of the adjusted surplus revenue that the producer, intermediary or trader is liable to pay due to a hedging arrangement or a power purchase agreement. (5) The collection agent shall, not more than 30 days after a date as may be prescribed, repay to a producer, intermediary or trader any overpayment of the adjusted surplus revenue made by the producer, intermediary or trader that the collection agent is liable to repay due to a hedging arrangement or a power purchase agreement. (6) A payment, relating to an amount otherwise required to be paid under subsection (1), (2) or (4) shall, where a person is required under section 18 (3) to make a new return containing a revised assessment, be made on or before the later of— (a) the date referred to in subsection (1), (2) or (4), or (b) 60 days after the giving of a notice under section 18 (3). (7) The adjusted surplus revenue payable to the collection agent under subsection (1), (2) or (4) shall be recoverable by the collection agent from a producer, intermediary or trader concerned as a simple contract debt in any court of competent jurisdiction. Surcharge for late return 21. (1) Where a producer, intermediary or trader fails to make a return on or before the specified date, the adjusted surplus revenue that would have been payable to the collection agent if such a return had been made on or before that date shall be increased by an amount (in this section referred to as the “surcharge”), equal to the percentage, specified in column (2) of the Table to this section, opposite the timing of the delivery of the return relative to the specified date, specified in column (1) of the Table. (2) Where subsection (1) applies, the amount of the surcharge shall not exceed— (a) €12,695, where the surcharge applicable is 5 per cent, or (b) €63,485, where the surcharge applicable is 10 per cent. (3) Interest is payable under section 22 on any surcharge as if the surcharge were an amount of adjusted surplus revenue, and the surcharge and any interest on that surcharge is chargeable and recoverable as if the surcharge and that interest were an amount of adjusted surplus revenue payable under section 20 . (4) For the purposes of subsection (1)— (a) where a producer, intermediary or trader deliberately or carelessly makes an incorrect return on or before the specified date, that producer, trader or intermediary shall be deemed to have failed to have made the return on or before that date unless the error in the return is remedied by the making of a correct return on or before that date, (b) where a producer, intermediary or trader makes an incorrect return on or before the specified date, but does so neither deliberately nor carelessly and it comes to the attention of the producer, intermediary or trader that it is incorrect, the producer, intermediary or trader shall be deemed to have failed to have made the return on or before the specified date unless the error in the return is remedied by the making of a correct return without unreasonable delay, and (c) where a producer, intermediary or trader makes a return on or before the specified date, and the competent authority gives notice under section 17 requiring further information, the producer, intermediary or trader shall be deemed to have failed to have made the return on or before the specified date unless the producer, intermediary or trader delivers that further information within the period specified in the notice. (5) An amount payable to the collection agent in respect of surcharge under this section may be recovered by the collection agent from the producer, intermediary or trader concerned as a simple contract debt in any court of competent jurisdiction. (6) In this section— “carelessly” means failure to take reasonable care; “specified date”— (a) in relation to a return under section 15 (1), means not later than 31 December 2023, or if applicable, the date immediately following the expiry of the period referred to in section 16 (5), (b) in relation to a return under section 15 (2), means a date as may be prescribed under section 15 (2), and (c) in relation to a return containing a revised assessment under section 18 (3), means the date immediately following the expiry of the period referred to in section 18 (4). TABLE Timing of delivery of return relative to specified date (1) Surcharge (2) Return delivered between 3 and 6 months from the specified date 5 per cent Return not delivered within 6 months from the specified date 10 per cent Recovery of interest in respect of overdue amount 22. (1) Where a producer, intermediary or trader fails to pay to the collection agent the amount of adjusted surplus revenue the producer, intermediary or trader is liable to pay under subsection (1), (2) or (4) of section 20 by the date referred to in subsection (1), (2), (4) or (6) of section 20 , the producer, intermediary or trader shall be liable to pay interest thereon to the collection agent, and the amount of that interest shall be determined in accordance with subsection (2). (2) The interest referred to in subsection (1) shall be determined by the following formula— A x D x R where— A is the adjusted surplus revenue which remains unpaid, D is the number of days (including part of a day) in the period during which the adjusted surplus revenue remains unpaid, and R is the rate of 0.0219 per cent. (3) An amount payable to the collection agent under this section may be recovered by the collection agent from the producer, intermediary or trader concerned as a simple contract debt in any court of competent jurisdiction. Obligation to keep certain records 23. (1) A producer, intermediary or trader shall retain, or cause to be retained on it’s behalf, such records as are required to enable a full and true return to be made for the purposes of this Act. (2) Without prejudice to the generality of subsection (1), the records required to be retained under that subsection shall include, but are not limited to, books, accounts, documents, and any other data relating to— (a) a return under Chapter 2, and (b) the calculation by the producer, intermediary or trader of the amount of adjusted surplus revenue liable to be paid by it under this Act. (3) Records required to be retained under this section shall be retained in an official language of the State— (a) in written form, or (b) by electronic, photographic, digital or other means such that they may be made legible as required. (4) Notwithstanding any other law, records to be retained under this section shall, subject to subsection (5), be retained by or on behalf of the producer, intermediary or trader for the longer of the following periods: (a) the period ending on the day that performance of his or her functions under section 24 , in relation to the records, by an inspector is treated as completed by the inspector; (b) the period of 6 years commencing from the later of the dates referred to in subsection (1), (2), (4) or, as the case may be, (6), of section 20 as may apply to the producer, intermediary or trader. (5) For the purposes of this section, where the producer, intermediary or trader being a company— (a) is wound up, the liquidator, or (b) is dissolved without the appointment of a liquidator, the last directors, including any person occupying the position of director by whatever name called, of the company, shall retain the records required to be retained under this section for a period of 5 years from the date from which the company is wound up or dissolved. (6) A producer, intermediary or trader who fails to comply with this section shall be guilty of an offence. Inspection 24. (1) For the purpose of this Act, the competent authority may request an inspector to perform the functions specified in subsection (3). (2) When exercising a power conferred on an inspector under this Act, the inspector shall, on request by a person thereby affected, produce the certificate of his or her appointment under section 56 of the Act of 1999, or a copy of it, and a form of personal identification to that person for inspection. (3) An inspector may— (a) subject to subsection (4), at all reasonable times, and if necessary by use of reasonable force, enter any premises of a producer, intermediary or trader which the inspector has reasonable grounds to believe are being or have been used in the production or sale of electricity or in which the inspector has reasonable grounds to believe that records relating to the production or sale of electricity are kept, (b) at such premises inspect and take copies of any books, records, other documents (including documents stored in non-legible form) or extracts therefrom that he or she finds in the course of his or her inspection, (c) remove any such books, records or documents, from such premises and retain them for such period as he or she reasonably considers to be necessary for the purpose of this Act, (d) require any person at the premises, the owner or person in charge of the premises or any person employed therein to— (i) give to the inspector such assistance and information, and (ii) produce to the inspector such books, records or other documents (and in the case of records or documents stored in non-legible form, a legible reproduction thereof), that are in that person’s possession or procurement, as the inspector requires for the purpose of this Act, (e) require any person at the premises (including the owner, person in charge of the premises and any person employed therein) to answer such questions as the inspector may ask relative to any matter in connection with compliance with this Act, or (f) take possession of, remove from the premises and retain (for such period as he or she considers reasonably necessary for the purposes of his or her functions under this Act) anything referred to in paragraph (b) found at the premises. (4) An inspector shall not enter a dwelling otherwise than pursuant to a warrant under subsection (5). (5) Upon the sworn information of an inspector, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that information, books, records or other documents …