Contributed By Fieldfisher Ireland LLP
The electricity sector in Ireland previously operated as two separate markets: Northern Ireland operated as part of the UK and the Republic of Ireland operated as a distinct market. On 1 November 2007, the two Transmission System Operators (System Operator Northern Ireland and EirGrid) established the Single Electricity Market for the island of Ireland. Under the Single Electricity Market, EirGrid operates the wholesale power market on the island of Ireland with System Operator Northern Ireland (SONI), which it now owns. This market has created “a gross mandatory pool market, into which all electricity generated on or imported onto the island of Ireland must be sold, and from which all wholesale electricity for consumption on or export from the island of Ireland must be purchased”.
EirGrid plc is the electric power transmission operator in Ireland. EirGrid was established under Irish and European laws, including the European Communities (Internal Market in Electricity) Regulations, 2000, to enable competition in the Irish power sector. EirGrid plc is State-owned and is regulated by the Commission for Regulation of Utilities. It took over operation of the national power system on 1 July 2006, and its shares are held by the Minister for the Environment, Climate and Communications. The grid takes electricity from where it is generated and delivers it to the distribution network, operated by the Electricity Supply Board (ESB), which powers every home, business, school, hospital, factory and farm on the island. EirGrid is the transmission system operator (TSO), and ESB Networks is the transmission asset owner (TAO).
EirGrid’s primary purposes are:
In 2020, wind turbines generated 36.3% of Ireland’s electrical demand, one of the highest wind power proportions in the world.
The ESB is a State-owned electricity company operating in the Republic of Ireland. The ESB is composed of several distinct, separate and legally demarcated companies. ESB Networks Limited manages construction and maintenance of the electricity transmission system.
On 1 July 2006, a new State-owned company, EirGrid plc, separate from all parties in the Irish electricity sector, took over responsibility for the operation of the Irish national grid. EirGrid is the transmission system operator in Ireland, and ownership of the transmission system has been vested in EirGrid since 2008.
Foreign investment is incentivised through Ireland’s low corporation tax rate as well as a well-educated work force, globalised economy and pro-enterprise initiatives. The EU’s FDI Screening Regulation (EU) 2019/452 lists critical infrastructure (including energy), critical technologies (including energy storage and quantum and nuclear technologies) and the supply of critical inputs (including energy) among the factors which member states and the European Commission are to take into account when assessing whether an investment may affect security or public order.
The Screening of Third-Party Transactions Bill 2022 provides for Ireland’s first foreign direct investment screening regime and gives effect to the EU Screening Regulation. On 25 January 2023, the Dáil Committee on Enterprise, Trade and Employment considered the Bill, and a number of technical amendments were made. The Bill enables the Minister for Enterprise, Trade and Employment to review investments that may impact on security of public order of the State. The Minister will be able to assess, investigate, authorise, condition or prohibit foreign investments from outside the EU, based on a range of security and public order criteria. Various types of transactions fall within the scope of the legislation and could trigger a screening event – some such transactions are those involving energy or renewable assets.
There is a financial threshold of at least EUR2 million for the new regime to apply, and it will only be applicable to transactions relating directly or indirectly to categories of sensitive and strategic activities referred to in the EU Screening Regulation, such as:
The regime shall only apply to energy assets in instances where there is a change in control of the asset.
Where the relevant criteria are met, all parties to a transaction are required to obtain approval ten days before the completion of the transaction. However, if the Minister has reasonable grounds to believe that the transaction could affect the security of public order of the State, transactions that are not normally notifiable under the Bill can be “called in” for review. The Minister is required to give a decision within 90 days of notification; and this period can be extended to 135 days in certain situations. The Minister has the authority to prohibit the transaction, or parts of it, or to include conditions such as divestment requirements, behavioural requirements, ring-fencing requirements and compliance reporting obligations.
Merger control in Ireland is usually a matter for the Competition and Consumer Protection Commission (CCPC); however, the Commission for the Regulation of Utilities (CRU) has powers to revoke electricity licences under the Electricity Regulation Act. There is an agreement between the CCPC and the CRU to allow the CRU to fulfil its statutory duties. The primary legislation governing this area is the Competition Act 2002.
The electricity licence requires notification to the CRU in the event of a change of control of the licence holder, and if not sought the CRU can revoke the licence. The responsible regulators are the CCPC and the CRU, who can revoke the generator’s electricity licence if the change in control has left the licence controlled by parties without adequate technical, financial or managerial strength. The CCPC reviews the transaction to determine whether it would “substantially lessen competition” in any market for goods or services.
Review Process and Timeline
Notifications to the CCPC are mandatory for transactions meeting the requirement of the Competition Act 2002. The review by the CCPC can be completed in two phases.
In Phase One, the CCPC must come to a decision within 30 days; however, this can be extended to 45 days in situations where the parties offer new commitments which give rise to competition concerns. If the CCPC makes a formal request for information, the timeline resets. The majority of transactions are dealt with during Phase One; however, if Phase Two is necessary it can take up to 135 days following the date of notification or following a response to a formal request for information.
Typical conditions that may be imposed in approvals include the divestment of a specific part of the business or providing third parties with access to certain facilities.
Minimum requirements to be satisfied
The CRU must assess whether the new generator possesses adequate technical, financial or managerial strength such that it is capable of fulfilling the conditions of the licence.
EirGrid plc is responsible for operating and planning the development of the transmission system. EirGrid’s responsibilities include the operation, maintenance and development of Ireland’s transmission system in a safe, secure, reliable, economical and efficient manner. It also offers terms and levies charges for connection to and use of the system by market participants, and these tariffs are regulated by the CRU.
In Ireland, the all-island wholesale Single Electricity Market (SEM) has been in place since 2007. The Integrated Single Electricity Market (I-SEM) replaced the SEM on 1 October 2018. The Single Electricity Committee (the “SEM Committee”) is the decision-making body for the I-SEM. The Irish and Northern Irish authorities issued an instruction to the SEM Committee to develop a new set of electricity trading arrangements that would meet the requirements of the EU Target Model, and this resulted in the establishment of the I-SEM. It is anticipated that the I-SEM will mean a more open and efficient pan-European electricity market.
On 27 March 2008, the ESB announced a EUR22 billion capital investment programme in renewable energy technology, with the aim of halving its carbon emissions within 12 years and achieving carbon net zero by 2035.
The EU Screening Regulation is to be adopted into Irish law through the Screening of Third-Party Transactions Bill 2022, which is expected to take effect in 2023. As described in 1.3 Foreign Investment Review Process, the regime set out in the new legislation will affect the power industry from a foreign investment perspective as it will greatly impact on deal timelines.
Following the government’s Climate Action Plan 2021 and the Climate Action and Low Carbon Development (Amendment Act) 2021, Ireland has one of the most ambitious policies relating to renewable energies, in particular as regards the desire for wind energy to occupy such a large proportion of the market.
The Single Electricity Market (SEM) is the wholesale electricity market for Ireland. It was formed in 2007, when Ireland and Northern Ireland started trading electricity on an all-island basis. It is a joint venture between the transmission system operators in Ireland (EirGrid) and Northern Ireland (SONI). The SEM was redesigned in 2018 to harmonise the all-island and European wholesale electricity markets. The key benefits of the SEM include:
The SEM includes six markets or auctions:
The pricing is set by competitive offers among generators.
The Capacity Market
The Capacity Market is designed to aid in ensuring that the generation capacity in Ireland and Northern Ireland (including storage, demand side units and interconnector capacity) is sufficient to meet demand and that the regulatory approved generation adequacy standard is satisfied. It is a competitive auction-based design where the most efficient and lowest cost capacity is most likely to be successful. This design helps to promote the short-term and long-term interests of consumers of electricity across Ireland and Northern Ireland with respect to price, quality, reliability and security of supply of electricity.
Imports and exports of electricity from Ireland to other jurisdictions are permitted. In May 2022, An Bord Pleanála granted approval for the Celtic Interconnector Project, which will see Ireland’s electricity grid linked with that of France. This will reduce the cost of electricity for consumers, ease electricity supply issues as the grid’s proportion of variable renewable electricity increases, and allow the Irish grid to sell electricity to its French equivalent in times of high electricity generation. Currently, Ireland is a net importer of electricity.
Electricity supplied in Ireland in 2021 was sourced from the following fuels:
There are no specific concentration limits regarding the percentage of electricity supply by one entity in the electricity market. However, the CCPC, which is responsible for compliance with the competition and consumer protection laws in Ireland, is likely to prevent any entity from achieving a dominant market position that might have a negative impact on competition.
The principal piece of legislation governing competition and consumer protection in Ireland is the Competition Act 2002 (as amended).
Under Section 18(1)(a) of the Competition Act, a merger or acquisition must be notified to the CCPC if:
The CCPC is responsible for the enforcement of competition law in Ireland under the Competition Act 2002. The CCPC can undertake investigation on its own initiative or pursuant to a complaint. Under the Electricity Regulation Act 1999, the CRU must promote competition in the supply of electricity. Under the terms of a standard licence to supply electricity, a dominant supplier is prohibited from predatory pricing or discrimination of supply.
Powers of the CCPC
Under the Competition and Consumer Protection Act 2014, the CCPC has the power to undertake studies, analysis and surveys with respect to the provision of financial services to consumers, to collect and compile information for that purpose, and to publish the results of any such studies, analysis or surveys.
It also has the power to conduct interviews in search of evidence; in particular, it has statutory powers to require any person who, in the opinion of the Commission, has information or has control of a record or other thing that is relevant to the study, analysis or survey to provide the information, record or thing to the Commission, and to attend before a member or member of the staff of the Commission for that purpose. Persons who fail to comply with investigations or who intentionally prevent the Commission from fulfilling its obligations are liable to prosecution.
Penalties for anti-competitive behaviour
Entities that breach competition law in Ireland may be liable to criminal or civil sanctions.
For civil sanctions, Section 14A of the Competition Act gives the CCPC the power to apply to the Circuit Court or the High Court to seek a declaration (ie, a court ruling that a particular arrangement or behaviour is unlawful) or an injunction (ie, a court ruling requiring a particular arrangement or behaviour to be terminated) in any case involving an alleged breach of Section 4 or 5 of the Competition Act or of Article 101 or 102 of the Treaty on the Functioning of the European Union (TFEU). Irish law does not currently allow the courts to impose any form of civil financial penalty on persons found to have breached competition law, nor does the CCPC itself have the power to impose administrative fines on persons it believes to have breached competition law.
For criminal sanctions, Sections 6 and 7 of the Competition Act make it an offence to breach Section 4 or 5 of the Competition Act or Article 101 or 102 of the TFEU. The CCPC investigates alleged breaches of the Competition Act and can either itself bring a summary prosecution in the District Court or, in more serious cases, refer a case to the Director of Public Prosecutions (DPP) for prosecution on indictment. Section 8 of the Competition Act sets out the penalties for those found guilty of offences under Section 6 or Section 7.
The most serious types of anti-competitive conduct are often referred to as “hardcore” breaches of competition law. The following are examples of hardcore breaches of competition law and are subject to the most severe criminal sanctions:
For such hardcore breaches of competition law, the criminal fines and prison sentences are as follows:
Laws and Policies
The Irish government’s Climate Action Plan published in November 2021 sets out Ireland’s plan to reduce greenhouse gases by 51% by 2050. The goals of this plan are regulated by the Climate Action and Low Carbon Development (Amendment) Act 2021.
Laws relating to generators
Climate change policies relating to the energy industry are set out in the Climate Action Plan 2023.
The legislation sets out emission reduction targets. The Climate Action and Low Carbon Development (Amendment) Act 2021 requires the government to adopt carbon budgets which are consistent with the Paris Agreement and other international obligations. All forms of greenhouse gas emissions are to be included in the carbon budgets, and carbon removals will be taken into account in setting budgets. However, it is up to the government to decide on the trajectories for different sectors. The actions and requirements relating to carbon emissions for relevant sectors are outlined in the Climate Action Plan, which is updated annually. According to the plan for 2023 (released in December 2022), transformational policies, measures and actions, and societal change are now required to meet the electricity sector’s carbon budget programme and sectoral emissions ceilings. The plan proposes that in order to meet the stipulated targets, it is necessary to accelerate and increase the deployment of renewable energy to replace fossil fuels, deliver a flexible system to support renewables and demand, and manage electricity demand.
On 25 October 2022, statutory instrument SI No 529/2022 – Air Pollution Act 1987 (Solid Fuels) Regulations 2022 was published in Ireland, which introduced new regulations for burning solid fuel from 31 October 2022. The regulations were introduced to remove the most polluting fuels from the market by increasing the technical standards for fuels, and to ensure only lower-smoke products are available for sale. In particular, it is stipulated that:
The Climate Action Plan sets out measures meant to accelerate renewable energy generation, such as identifying the land, sea or inland water areas necessary for the installation of renewable energy generation that is required to meet the 2030 renewable energy target, and designating renewable “go to” areas for renewable energy project development. It also created various task forces such as the Accelerating Renewable Electricity Taskforce and the Offshore Wind Delivery Taskforce. There are programmes for supporting the development of renewable energy generation, such as the Renewable Electricity Support Scheme (RESS), an auction-based scheme which invites renewable electricity projects to bid for capacity and receive a guaranteed price for the electricity they generate.
Capacity Targets for Alternate Energy and Applicable Sources
Ireland has committed to increasing the proportion of electricity generated from renewable energy sources: from 30% to up to 80% by 2030. Applicable renewable energy sources include onshore and offshore wind generation and marine renewable energy.
The Department of the Environment, Climate and Communications in Ireland has stated in the National Energy Security Framework, published on 13 April 2022, that the development of an integrated hydrogen strategy for Ireland is to be prioritised, in line with the Climate Action Plan. One of the main challenges with the supply of green hydrogen is the availability of renewable energy to produce it; current analysis indicates that green hydrogen production can be expected to feature in the Irish energy system by 2030 and to expand significantly post-2030, as significant-scale offshore wind and other renewable electricity sources are developed.
However, currently there is little in terms of legislation or policy in Ireland regulating the production of green hydrogen. To date, it appears that regulation of the development of green hydrogen is largely the same as that of offshore wind development, and the assessment of green hydrogen production is currently performed on a case-by-case basis.
The necessary licences for the production of green hydrogen are issued by the CRU, but the form of licence required is as yet unclear. Electricity supply licences are required for produced electricity, while LPG licences are required for gas.
The CRU regulates gas transportation and is responsible for the relevant code of operations, which has not been updated to include the injection of hydrogen into the gas network. The CRU also approves a hydrogen connection policy and sets tariffs for hydrogen injection. It is worth noting that tariffs apply to natural gas and bio methane. However, clauses related to hydrogen blending are to be incorporated.
The Code Modification Forum is an industry body responsible for updating the code of operations that is ultimately approved by the CRU. Pipeline capacity, storage arrangements and percentage gas flows in the system are all relevant.
The Department of the Environment, Climate and Communications has previously stated its intention to develop a policy and regulatory roadmap for green hydrogen injection into the gas network by Q1 2023.
The Electricity Regulation Act 1999 (the “1999 Act”), as amended, is the principal piece of legislation that governs the electricity industry in Ireland. The 1999 Act has been enacted to implement EU Directive 96/92/EC into Irish law. It established the CRU, which is responsible for issuing licences for the generation and supply of electricity in Ireland.
An application for planning permission must be submitted to An Bord Pleanála for the construction of a generation facility/development, and an environmental impact assessment report (EIAR) is generally required. The Environmental Impact Assessment Directive sets out where an EIAR is so required, which includes for developments that would have a significant effect on the environment. In the EIAR, the developer should include details of how it proposes to deal with any negative effects on the environment from the development.
The 1999 Act includes a procedure, involving public consultation, by which the CRU may modify an issued authorisation or licence.
Section 16 of the 1999 Act provides that the construction or re-construction of a generation station, for the purpose of supply to final customers, requires an authorisation granted by the CRU. Granting an authorisation may be subject to terms and conditions specified in the authorisation and may relate to, for example, the generating capacity of the proposed generating station. Furthermore, Section 17 of the 1999 Act states that an application for the authorisation to construct or reconstruct a generating station must be in writing, contain information as required by the CRU, and be accompanied by a fee. When an application is rejected by the CRU, the applicant has 28 days to appeal the CRU decision. The authorisation granted by the CRU may be modified or revoked by the CRU in accordance with the 1999 Act.
The criteria to which the CRU may have regard when determining an application for such an authorisation are set out in the Electricity Regulation Act 1999 (Criteria for Determination of Authorisations) Order 1999 (SI No 309 of 1999). Other authorisations, such as planning permission, are also required.
The CRU has issued guidance notes in relation to applying for an authorisation to construct or reconstruct a generating station.
The EU (Birds and Natural Habitats) Regulations 2011 (SI 477 of 2011) (as amended) implement the EU Habitats Directive (92/43/EEC) and EU Birds Directive (2009/147/EC). Under the EU (Birds and Natural Habitats) Regulations 2011 (as amended), the CRU is defined as a “public authority”. Regulation 42 of the EU (Birds and Natural Habitats) Regulations 2011 (as amended) outlines the obligations on public authorities in relation to appropriate assessment (AA). All projects seeking an authorisation to construct or reconstruct and/or a licence to generate electricity are required to undergo AA screening and/or AA. The AA documentation required in support of an application must include the final grant of planning permission or confirmation of planning exemption from the planning authority.
In support of the application, the applicant must provide environmental information containing a robust scientific assessment of the potential impacts of the proposed project on the environment.
The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (usually known as the Aarhus Convention) was ratified into Irish law in 2012. It is an international agreement that gives people the right to information about the environment. The Aarhus Convention provides for:
The CRU issues detailed guidance to licensees, and the full set of relevant conditions is contained in SI 384/2008 – Electricity Regulation Act 1999 (Section 14(1A)) Order 2008 (in respect of licences to generate electricity).
The conditions contained therein include:
The CRU grants, monitors, modifies, revokes and enforces electricity generation authorisations and licences. This role is set out in the Electricity Regulation Act 1999, as amended.
For modification of a licence, see Sections 19 and 20 of the 1999 Act.
The land acquired is either by lease or by purchase. When an appropriate site is located for the installation of wind energy turbine generators and/or a solar energy generating project, a renewable energy provider may engage with a landowner to enter into a lease over a portion of their property. In circumstances where the relevant planning permission has not yet been obtained or the project has not begun, they may enter into an option for lease, where the energy provider/lessee has a defined option period to enter into the lease agreement.
An easement is a right which confers certain rights over the land in question, but never any exclusive right to possession. It is essentially a minor interest in land and allows the landowner to exercise rights over adjacent land. An easement may allow the grantee the right to use a portion of a property for a particular purpose, such as to gain access to the adjacent land, which may be required to facilitate entry of the large machinery/trucks onto the leased land to construct a wind/solar project.
It is also common for electricity providers to enter into an option to purchase with a landowner regarding a site for the electricity substation, which allows the grantee the opportunity to purchase the site during the option period. The option period may be extended in certain circumstances, such as where planning permission has not been granted or where there is an ongoing appeal in respect of planning permission.
Decommissioning of a generation facility will usually be dealt with in the planning permission granted by the local authority or An Bord Pleanála, and usually within the planning permission conditions. These conditions typically require all visible traces of the generation facility to be removed.
Pursuant to the European Communities (Internal Market in Electricity) Regulations 2000 to 2011, functions and duties in relation to the Irish electricity transmission system are borne by each of EirGrid plc, as transmission system operator, and the Electricity Supply Board (ESB), as owner (transmission asset owner). Each bears a degree of responsibility for the construction and operation of the transmission system. Accordingly, the electricity regulatory authorisations required to construct and operate the Irish electricity transmission network are:
The 1999 Act provides that a licence to own the transmission system may be issued only to the ESB, and that a licence to operate the transmission system may be issued only to EirGrid plc. However, under limited circumstances the CRU may also permit another person to construct a “direct line”.
See 5.1 Regulation of the Construction and Operation of Transmission Lines and Associated Facilities.
EirGrid Group develops key electricity infrastructure projects, which are vital for the socio-economic development of Ireland and Northern Ireland. Under SI No 445/2000, EirGrid has a statutory duty to develop the transmission system with due regard for the environment (to include biodiversity).
Ecological impact assessment (EcIA) is the process of identifying, quantifying and evaluating the potential effects of development-related or other proposed actions on habitats, species and ecosystems. EcIA can be used for the appraisal of projects of any scale including the ecological component of environmental impact assessment (EIA), set out in Directive 2011/92/EU and as amended by Directive 2014/52/EU.
Section 14 of the 1999 Act provides that the licence to supply electricity is subject to terms and conditions as may be specified in the licence.
The TSO licence includes extensive conditions, such as:
For modification of the licence, see Sections 19 and 20 of the 1999 Act.
Section 45 of the Electricity (Supply) Act, 1927 concerns CPO powers.
Section 53 of the Electricity (Supply) Act, 1927 concerns the power to place any electric line above or below ground across any land not being a street, road, railway or tramway, and to also attach to any wall, house or other building any bracket or other fixture required for the carrying or support of an electric line or any electrical apparatus.
Under the 1999 Act, a licence to own the transmission system may be issued only to the ESB and a licence to operate the transmission system may be issued only to EirGrid plc. Therefore, EirGrid operates and is regulated as a monopoly service provider.
The 1999 Act governs charges for connection to and use of the transmission system and approval by the CRU of such charges.
Section 35 of the 1999 Act requires that the TSO prepares (from time to time) a statement setting out the basis upon which charges for providing transmission services are imposed. The CRU may also give directions to the TSO on a charges basis, which the TSO must adopt.
The CRU is responsible for the economic regulation of the network companies in Ireland. To do this, the CRU sets price reviews or controls which limit the revenues that the relevant licensees can recover from electricity customers.
The CRU’s role is to protect customers by ensuring that the network companies spend customers’ money appropriately and efficiently (ie, that customers and network users receive value for money) to deliver necessary services and make necessary investments in infrastructure.
The CRU achieves this by:
Under Section 34 of the 1999 Act, as amended, the CRU may give directions to the transmission system operator (TSO) and distribution system operator (DSO) (collectively, the “system operators” (SOs)) on the terms and conditions of access to the distribution and transmission system. Specifically, Section 34(2)(c) of the 1999 Act provides that the CRU’s directions may provide for “the terms and conditions upon which an offer for connection to the transmission or distribution system is made”.
The CRU’s functions and duties are set out principally in Section 9 of the 1999 Act. In particular, according to Section 9(4)(a) of the 1999 Act, the CRU shall carry out its statutory functions in a manner which does not discriminate unfairly between relevant stakeholders, and also have regard, among other things, to the need to:
The principal law governing the construction and operation of electric distribution facilities is the Electricity Regulation Act 1999 (the “1999 Act”).
Ownership and operation of the Irish electricity distribution system requires a licence issued by the CRU. The ESB is the licensed owner of the distribution system and ESB Networks DAC is the licensed distribution system operator.
Section 14 of the 1999 Act provides that the licence to construct and operate an electric distribution facility is subject to terms and conditions as may be specified in the licence.
The conditions contained in the licence are subject to amendment or modification – see Sections 14(3), 14(6)(a) and 19 of the 1999 Act.
Regarding the process for obtaining an amendment of the conditions contained in the licence, see Section 20 of the 1999 Act.
See Section 45 of The Electricity (Supply) Act 1927, as amended – the ESB has some statutory powers regarding compulsory purchase orders.
See also Section 17 of the Electricity (Supply) (Amendment) (No 2) Act, 1934, as amended.
Section 51 of The Electricity (Supply) Act 1927, as amended, concerns the power to lay lines for the transmission and for the distribution of electricity along, across or under any street, road, railway or tramway, and for that or any incidental purpose or any other purpose arising in the course of the exercise or performance of any power or duty conferred or imposed by this Act, or any order or regulation made thereunder, to break up any street, road, railway or tramway.
Section 53 of The Electricity (Supply) Act 1927, as amended concerns the power to place any electric line above or below ground across any land not being a street, road, railway or tramway and to also attach to any wall, house or other building any bracket or other fixture required for the carrying or support of an electric line or any electrical apparatus.
The ESB is the monopoly owner of the transmission and distribution grids in Ireland and Northern Ireland.
The 1999 Act provides that a licence to own the distribution system may be issued only to the ESB, and a licence to operate the distribution system may be issued only to the ESB or a subsidiary of the ESB.
See 5.6 Transmission Charges and Terms of Service.
See also Section 35 of the 1999 Act. The ESB must prepare a statement setting out the basis upon which charges are imposed for the distribution system, and the CRU may give directions from time to time in respect of the basis of such charges. Such directions may relate to:
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