Electricity PART 1 Introduction Citation and commencement 1 These Regulations may be cited as the Electricity Market Reform (General) Regulations 2014 and come into force on the day after the day on which they are made. Interpretation 2 In these Regulations— “ the Act ” means the Energy Act 2013; “advice notice” has the meaning given by regulation 4(1); “the Allocation Regulations ” means the Contracts for Difference (Allocation) Regulations 2014 ; “applicant” has the meaning given by regulation 9(2); “capital costs” means the capital costs of an electricity generating station; “counterparty notice” has the meaning given by regulation 6(2); “delivery body” means— the national system operator; or if the national system operator’s functions under Chapter 2 of Part 2 of the Act have been transferred to an alternative body, that body; “eligible generator” has the same meaning as it has under the Contracts for Difference (Definition of Eligible Generator) Regulations 2014 ; “first round CFD application” has the meaning given by regulation 10(3)(c); “FMS compliance and enforcement” means the terms and conditions of a CFD or retained investment contract by virtue of which the relevant party monitors compliance with, and enforcement of, the FMS procedures or the FMS obligations; “FMS obligations” means the terms and conditions of a CFD or retained investment contract by virtue of which the generator party is required to— measure the amount of fuel used by the generating station which is subject to that contract; sample the content of such fuel; and provide information to the relevant party in relation to such measurement and sampling; “FMS procedures” means the procedures agreed, or to be agreed, between the parties to a CFD or retained investment contract, further to the terms and conditions of that contract to ensure compliance by the generator party with the FMS obligations; “generator notice” has the meaning given by regulation 7(2); “generator party” means a party to a CFD or a retained investment contract other than the relevant party; “generator party applicant” has the meaning given in regulation 12A(1) means a generator party identified in regulation 12A(1) or 12D(1) ; “operational costs” means the costs of operation of an electricity generating station; “progress report” has the meaning given by regulation 4(1)(c); “relevant generating station” has the meaning given by regulation 9(1); “relevant party” means— in relation to a CFD, the CFD counterparty which is party to that contract; in relation to a retained investment contract, the Secretary of State; “retained investment contract” means an investment contract other than a transferred investment contract “strike price” means a price for one megawatt hour of electricity generated by a generating station; “supply chain application” means an application under regulation 9(1) for a supply chain statement; “supply chain implementation application” means an application submitted under regulation 12A(1) for a supply chain implementation statement; “supply chain implementation statement” means a statement by the Secretary of State that confirms that the establishment or alteration of a generating station is making a material contribution to the development and sustainability of supply chains; “supply chain statement” means a statement by the Secretary of State that to establish or alter a generating station is likely to make a material contribution to the development and sustainability of supply chains; “supply chains” means the chains of suppliers of goods or services in relation to the construction, alteration, maintenance or operation of a generating station; “sustainability obligations” means the terms and conditions of a CFD or retained investment contract by virtue of which requirements are imposed on the generator party in relation to— the use of bioliquids, solid biomass or gaseous biomass in the generation of electricity; and the provision of information to the relevant party concerning such use; “ sustainable industry reward implementation application ” means an application under regulation 12D(1) for a sustainable industry reward implementation statement; “ sustainable industry reward implementation statement ” means a statement provided by the Secretary of State under regulation 12F(1)(a) or (3)(a); “ sustainable industry reward statement ” has the meaning given in regulation 2(1) of the Contracts for Difference (Allocation) Regulations 2014; “transferred investment contract” means an investment contract which has been transferred to a CFD counterparty by virtue of paragraph 16(1) of Schedule 2 to the Act; “working day” means a day that is not a Saturday or Sunday, Christmas Day, Good Friday or any day that is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971. PART 2 Secretary of State requiring information from the delivery body Provision of information 3 1 The Secretary of State may require the delivery body to provide information (including advice and analysis) to the Secretary of State in relation to the strike price applicable (or to be applicable) to any form of low carbon electricity generation. 2 The information which may be required under paragraph (1) includes information about how such strike prices may affect any of the following— a the reduction of the carbon intensity of electricity generation in the United Kingdom; b the security of electricity generation; c the cost of operation of low carbon electricity generation; d the price of energy payable by consumers; or e the funding available to the Secretary of State to support forms of low carbon electricity generation. 3 The information which may be required under paragraph (1) may include the modelling of the impacts of such strike prices on different markets within the United Kingdom. Notice to the delivery body 4 1 Where the Secretary of State requires information under regulation 3(1), the Secretary of State must give a notice (“an advice notice”) to the delivery body which sets out— a the information required; b the date by which the information, or parts of it, is to be provided; c whether or not the delivery body must provide a written report (“a progress report”) to the Secretary of State stating the progress being made by the delivery body to comply with sub-paragraphs (a) and (b); and d where a progress report is required, the date by which it is to be provided. 2 An advice notice may— a describe or refer to assumptions which the delivery body must apply when providing information; b require a methodology described or referred to in the notice to be used by the delivery body when providing any of the information required by the notice; c require the information to be provided in a particular form; and d be withdrawn by notice by the Secretary of State to the delivery body. 3 The delivery body must comply with an advice notice which is given to it. 4 The Secretary of State may in writing require the delivery body to have regard to such other matters not described or referred to in the advice notice as the Secretary of State considers relevant to the provision of information set out in the notice. 5 A written requirement under paragraph (4) must be made as soon as practicable after an advice notice is given to the delivery body. 6 The Secretary of State and the delivery body may agree a variation of any of the matters set out in an advice notice or a written requirement made under paragraph (4). 7 The Secretary of State must make publicly available an advice notice. 8 So far as practicable, the Secretary of State must consult the delivery body about the intended content of— a an advice notice before the notice is given; or b a written requirement under paragraph (4) before the requirement is made. Non-compliance 5 1 The requirements imposed under regulation 4 on the delivery body to provide by the date required by an advice notice— a the information required by the notice; or b any progress report required by the notice, subject to paragraph (3), are to be treated as relevant requirements on the delivery body as a regulated person for the purposes of section 25 of the Electricity Act 1989 . 2 Reference in paragraph (1) to a matter required by an advice notice is a reference to that requirement— a subject to any written requirement made under regulation 4(4); and b as may be varied further to regulation 4(6). 3 Where— a to comply with an advice notice requires the delivery body to be provided with information further to a counterparty notice or a generator notice; b the delivery body has given, as applicable, a counterparty notice or a generator notice; and c the delivery body is not provided with the information required by the counterparty notice or generator notice (“missing information”), there is no failure to comply with paragraph (1)(a) to the extent of the missing information. Provision of information by a CFD counterparty to the delivery body 6 1 Paragraph (2) applies where the delivery body has been given an advice notice. 2 The delivery body may give a notice (“a counterparty notice”) to a CFD counterparty, requiring it to provide to the delivery body information which the delivery body reasonably believes that the CFD counterparty holds (or is entitled to obtain) and which the delivery body reasonably requires to comply with the advice notice. 3 A counterparty notice must set out— a the information required; and b the date by which the information is to be provided. 4 The information required by a counterparty notice may include information in relation to the capital costs and operational costs in respect of a generator party . 5 A counterparty notice may be varied or withdrawn by notice by the delivery body to the CFD counterparty. 6 A CFD counterparty must comply with a counterparty notice which is given to it. 7 Subject to paragraph (8), the requirement imposed under paragraph (6) is to be treated as a relevant requirement on the CFD counterparty as a regulated person for the purposes of section 25 of the Electricity Act 1989. 8 Where— a the CFD counterparty has been given a counterparty notice but to comply with that notice the CFD counterparty needs to obtain information from a generator party ; and b the CFD counterparty is not provided with that information from the generator party (“missing information”), there is no failure to comply with paragraph (6) to the extent of the missing information. Provision of information by generators to the delivery body 7 1 Paragraph (2) applies where— a by virtue of a counterparty notice, the delivery body has sought to obtain information from a CFD counterparty; b some or all of the information sought has not been provided; and c the delivery body reasonably believes that the information may be obtained from a generator party . 2 The delivery body may give a notice (“a generator notice”) to a generator party requiring the relevant generator to provide to the delivery body information which the delivery body reasonably believes that the relevant generator holds (or is entitled to obtain) and which the delivery body reasonably requires to comply with an advice notice. 3 A generator notice must set out— a the information required; and b the date by which the information is to be provided. 4 The information required by a generator notice may include information in relation to the capital costs and operational costs of the electricity generating station which is the subject of the CFD to which the generator party is a party. 5 A generator notice may be varied or withdrawn by notice by the delivery body to the generator party . 6 A generator party must comply with a generator notice which is given to it. 7 The requirement imposed under paragraph (6) is to be treated as a relevant requirement on the generator party as a regulated person for the purposes of section 25 of the Electricity Act 1989. 8 Where the “generator party” is an unincorporated association, “generator party” is to be read as “a member of the generator party unincorporated association that is a regulated person for the purposes of section 25 of the Electricity Act 1989. Confidentiality 8 1 This regulation applies only to a delivery body which is not the national system operator. 2 Where the delivery body obtains information further to a generator notice (“generation information”), the delivery body must not process that information for any purpose other than to comply with an advice notice except— a with the consent of the generator who provided the information; or b as required by or under— i an order of the court; ii an enactment; or iii an EU obligation; c as required or permitted by or under— i a licence condition which applies to the delivery body; or ii a condition of an industry document to which the delivery body is a party. 3 The restriction in paragraph (2) does not apply to generation information which is publicly available (other than by breach of this regulation). 4 The restriction in paragraph (2) imposed on the delivery body is to be treated as a relevant requirement on the delivery body as a regulated person for the purposes of section 25 of the Electricity Act 1989. 5 In this regulation— a “industry document” means any of the following documents maintained under a licence— i the Balancing and Settlement Code; ii the Connection and Use of System Code; or iii the Grid Code; and b “licence” means a licence under section 6 of the Electricity Act 1989. PART 3 Supply chain statements and documents Application for supply chain statements 9 1 An eligible generator may make a supply chain application to the Secretary of State in respect of a generating station identified in the application (“a relevant generating station”). 2 An eligible generator who makes an application described in paragraph (1) is “an applicant”. 3 The Secretary of State must not provide a supply chain statement unless the Secretary of State is satisfied that— a the applicant is an eligible generator in respect of the relevant generating station; and b the establishment or alteration of the relevant generating station is likely to make a material contribution to the development and sustainability of supply chains. 4 In deciding whether or not to provide a supply chain statement to an applicant, the Secretary of State must have regard to the extent to which the establishment or alteration of the relevant generating station is likely to support the following matters— a increasing productivity, competitiveness and capacity in supply chains; b encouraging innovation in supply chains; c developing a diverse and skilled workforce and increasing employment opportunities; and d increasing investment in and finding technical solutions to improving infrastructure that is relevant to the generation, storage, demand or use of electricity. ; and e increasing the sustainability of supply chains, in particular— i increasing the long-term economic sustainability of supply chains; ii minimising the negative environmental impacts of supply chains; and iii delivering benefits to the communities in which supply chains operate. Particulars of applications 10 1 A supply chain application must— a identify the relevant generating station; b describe how the relevant generating station is to be established or altered; c set out how the applicant considers that the establishment or alteration of the relevant generating station is likely— i to make a material contribution to the development and sustainability of supply chains; and ii to support the matters listed in regulation 9(4); and d include the information necessary in support of the matters in sub-paragraphs (a) to (c). 2 An applicant must— a identify any information included in, or in support of, a supply chain application or otherwise provided to the Secretary of State in relation to the generating station to support the development and sustainability of supply chains which the applicant considers is commercially confidential; and b where such information is identified, provide reasons why the applicant considers that disclosure of that information (other than to the Secretary of State for the purposes of determining the supply chain application) may damage the commercial interests of the applicant or another person. 3 Paragraph (4) applies where— a the first allocation round is established by virtue of the Allocation Regulations; b except where regulation 12 applies, the Allocation Regulations require a supply chain statement to be provided in support of an application for a CFD; and c the applicant or other eligible generator in respect of the relevant generating station intends to make an application for a CFD in the first allocation round (“a first round CFD application”). 4 Where this paragraph applies the applicant must— a make the supply chain application by no later than 10 working days before the last date by which applications for a CFD must be made for the first allocation round; and b state in the supply chain application that a first round CFD application is intended to be made. Providing supply chain statements or refusing applications 11 1 Except where regulation 12 applies, the Secretary of State must as soon as practicable after a supply chain application is received by the Secretary of State give a notice to the applicant which includes— a a supply chain statement and the period for which the statement has effect; or b a refusal of the application and reasons for that refusal. 2 Where paragraph (1)(a) applies, the period for which a supply chain statement has effect is— a 9 months from the date of the notice; or b where the Secretary of State is of the opinion that there is a compelling reason for the period to be longer, such longer period. First allocation round 12 1 This regulation applies only to the first allocation round established by virtue of the Allocation Regulations. 2 The Secretary of State may determine that no supply chain statements will be provided in respect of supply chain applications where a first round CFD application is to be made. 3 A determination must only be made under paragraph (2) where the Secretary of State considers that it is not possible properly to assess by the relevant date all supply chain applications where a first round CFD application is to be made. 4 Where a determination is made under paragraph (2), the Secretary of State must immediately— a publish that determination; and b give a notice of the determination to the delivery body. 5 In paragraph (3), “relevant date” means the last date by which applications for a CFD must be made for the first allocation round. Application for supply chain implementation statements 12A 1 Where a supply chain statement was previously provided in respect of a generating station that is the subject of a CFD, the generator party (the “generator party applicant”) may apply for a supply chain implementation statement by submitting a supply chain implementation application to the Secretary of State. 2 The Secretary of State must not provide a supply chain implementation statement unless the Secretary of State is satisfied that— a the generator party applicant is the generator party in respect of the generating station; b where the CFD was entered into after a successful application in an allocation round by virtue of the Allocation Regulations, the generator party applicant has fulfilled a “milestone requirement” as defined in the CFD; and c the establishment or alteration of the generating station is making a material contribution to the development and sustainability of supply chains. 3 In deciding whether or not to provide a supply chain implementation statement to the generator party applicant, the Secretary of State must have regard to the extent to which— a the establishment or alteration of the generating station is supporting the matters listed in regulation 9(4); and b the proposals set out in the supply chain application (including any amendments agreed by the Secretary of State) are being implemented. Particulars of supply chain implementation applications 12B 1 A supply chain implementation application must— a identify the generating station; b where the CFD was entered into after a successful application in an allocation round by virtue of the Allocation Regulations, demonstrate that a “milestone requirement” as defined in the CFD has been fulfilled; c describe how the generating station is being established or altered; d set out how the generator party applicant considers that the establishment or alteration of the generating station is— i making a material contribution to the development and sustainability of supply chains; ii supporting the matters listed in regulation 9(4); iii implementing the proposals set out in the supply chain application (including any amendments agreed by the Secretary of State); and e include the information necessary in support of the matters in sub-paragraphs (a) to (d). 2 A generator party applicant must— a identify any information included in, or in support of, an application for a supply chain implementation statement or otherwise provided to the Secretary of State in relation to the generating station to support the development and sustainability of supply chains which the generator party applicant considers is commercially confidential; and b where such information is identified, provide reasons why the generator party applicant considers that disclosure of that information (other than to the Secretary of State for the purposes of deciding whether to provide or refuse a supply chain implementation statement) may damage the commercial interests of the generator party applicant or another person. Providing supply chain implementation statements or refusals 12C 1 The Secretary of State must as soon as practicable after a supply chain implementation application is received by the Secretary of State give a notice to the generator party applicant which includes— a a supply chain implementation statement; or b a refusal to provide a supply chain implementation statement and reasons for that refusal. 2 If the Secretary of State has not given a notice as set out in paragraph (1) within 60 working days of receiving a supply chain implementation application that satisfies the requirements set out in regulation 12B, the Secretary of State must provide a supply chain implementation statement to the generator party applicant. Part 3A Sustainable industry reward implementation statements Application for sustainable industry reward implementation statements 12D 1 Where the Secretary of State has provided, and not withdrawn, a sustainable industry reward statement in respect of a generating station that is the subject of a CFD, the generator party (the “generator party applicant”) may apply for a sustainable industry reward implementation statement by submitting a sustainable industry reward implementation application to the Secretary of State. 2 The Secretary of State must not provide a sustainable industry reward implementation statement unless the Secretary of State is satisfied that— a the generator party applicant is the generator party in respect of the generating station; and b the generator party applicant has, fully or partially, fulfilled the obligations set out in the sustainable industry reward statement. Particulars of sustainable industry reward implementation applications 12E 1 A sustainable industry reward implementation application must— a identify the generating station; b demonstrate that the generator party applicant has, fully or partially, fulfilled the obligations in the sustainable industry reward statement; c describe how the generating station is being established or altered; d include the information necessary in support of the matters in sub-paragraphs (a) to (c). 2 A generator party applicant must— a identify any information included in, or in support of, a sustainable industry reward implementation application or otherwise provided to the Secretary of State in relation to the generating station to support the development and sustainability of supply chains which the generator party applicant considers is commercially confidential; and b where such information is identified, provide reasons why the generator party applicant considers that disclosure of that information (other than to the Secretary of State for the purposes of deciding whether to provide or refuse a sustainable industry reward implementation statement) may damage the commercial interests of the generator party applicant or another person. 3 A generator party applicant must provide to the Secretary of State such additional information as the Secretary of State may require for the purpose of considering a sustainable industry reward implementation application. Providing sustainable industry reward implementation statements 12F 1 The Secretary of State must as soon as practicable after a sustainable industry reward implementation application is received by the Secretary of State give a notice to the generator party applicant which includes— a a sustainable industry reward implementation statement which states the extent to which the generator party applicant has fulfilled the obligations set out in the sustainable industry reward statement; or b a refusal to provide a sustainable industry reward implementation statement which states the extent to which the generator party applicant has failed to meet the minimum standards of contribution to the development and sustainability of supply chains, as set out in the sustainable industry reward allocation framework (within the meaning of regulation 2(1) of the Contracts for Difference (Allocation) Regulations 2014). 2 Paragraph (3) applies where the Secretary of State is satisfied that— a a sustainable industry reward implementation statement contains an error; or b the information provided by a generator party applicant in, or in support of, a sustainable industry reward implementation application was materially incorrect. 3 Where this paragraph applies, the Secretary of State— a may revise the sustainable industry reward implementation statement and, as soon as practicable after doing so, must give a notice to the generator party which includes the matters mentioned in paragraph (1)(a); or b may withdraw a sustainable industry reward implementation statement and, as soon as practicable after deciding to do so, must give a notice to the generator party which includes the matters mentioned in paragraph (1)(b). PART 3B Confidentiality (Parts 3 and 3A) and documents Confidentiality 13 1 The Secretary of State must not disclose any information included in, or in support of a supply chain application, an application for a supply chain implementation statement or a sustainable industry reward implementation statement or otherwise provided to the Secretary of State in relation to a generating station to support the development and sustainability of supply chains where that disclosure may, in the opinion of the Secretary of State, damage the commercial interests of any other person except— a with the consent of that person; b as required by or under— i an order of the court; or ii an enactment; or iii an EU obligation; or c to a permitted person for a permitted purpose, and the Secretary of State is satisfied that arrangements have been made with that person to prevent any further disclosure of that information by that person. 2 In paragraph (1)— “permitted person” means— a public authority to which the Human Rights Act 1998 applies; or a person providing services to the Secretary of State in relation to a permitted purpose or any officer, employee or agent of that person; “permitted purpose” means— to enable the Secretary of State to determine whether or not to provide a supply chain statement or a supply chain implementation statement , a supply chain implementation statement or a sustainable industry reward implementation statement ; or to support the development and sustainability of supply chains. Documents 14 The Schedule (documents) has effect, except in respect of Part 4. PART 4 Liability of the national system operator Restricted liability in damages 15 1 Paragraph (2) applies to— a the national system operator; b any director of the national system operator; and c any employee, officer or agent of the national system operator. 2 Subject to paragraph (3), a person to whom this paragraph applies is not liable in damages for anything done or omitted to be done in the exercise or purported exercise of the national system operator’s functions under— a these Regulations; b the Allocation Regulations; or c any allocation framework made by the Secretary of State pursuant to section 13(2) of the Act. 3 The exclusion of liability in paragraph (2) does not— a apply where the act or omission occurs in bad faith, including where the act or omission— i constitutes a tort which involved a wilful act or omission calculated to cause harm or loss to another person; or ii is fraudulent; b prevent an award of damages in respect of an act or omission which is— i unlawful by virtue of section 6(1) of the Human Rights Act 1998 ; ii a breach of a duty owed by virtue of section 27(4) of the Electricity Act 1989; iii a criminal offence; iv an infringement of a person’s intellectual property rights; v a breach of confidentiality, whether statutory or at common law; or vi a breach of contract. PART 5 Advice arrangements and transferred investment contracts Provision of advice by the Authority 16 1 The Authority may enter into arrangements for the purpose of offering advice to a relevant party in respect of any of the matters in paragraph (2). 2 The matters referred to in paragraph (1) are— a FMS procedures, including any contemplated amendments to such procedures; b FMS compliance and enforcement; c monitoring compliance with, and enforcement of, sustainability obligations. Investment contracts 17 1 A transferred investment contract is to be treated as a CFD for the purposes of all provision made by Chapter 2 of Part 2 of the Act except for any provision made by sections 10 to 16 of that Act. 2 Except in Part 3 Parts 3 and 3A , any reference in these Regulations to a CFD is to be treated as including reference to a transferred investment contract. PART 6 Secretary of State directing a CFD counterparty Power to direct a CFD counterparty following revision to standard terms 18 1 Paragraph (2) applies where the Secretary of State issues and publishes revised standard terms in accordance with section 11 of the Act that include revisions to any sustainability obligations in the standard terms. 2 The Secretary of State may give a notice (“a direction notice”) to a CFD counterparty that requires the CFD counterparty to implement amendments to the sustainability obligations. 3 A direction notice may only be given for the purpose of the “Sustainability Objective” (as that term was defined in any CFD to which the direction applies). 4 A direction notice must specify what amendments a CFD counterparty must effect in relation to which CFDs. 5 A direction notice may only specify an amendment to a CFD that ensures the sustainability obligations in that CFD have the same effect as the sustainability obligations in the revised standard terms. 6 A direction notice may specify the date from which any amendment to a CFD must take effect. 7 The Secretary of State must publish a direction notice. Power to direct a CFD counterparty: CFDs under section 10 of the Act 19 1 This paragraph applies in relation to a CFD entered into by virtue of a direction given under section 10(1) of the Act after the date on which this regulation comes into force. 2 The Secretary of State may give a notice (“a regulation 19 direction notice”) to a CFD counterparty that requires the CFD counterparty to implement amendments relating to the sustainability obligations in a CFD of the sort described in paragraph (1). 3 But the Secretary of State may not give a regulation 19 direction notice if the Secretary of State is of the opinion that the amendments would reduce or undermine sustainability obligations in a CFD to which the notice applies. 4 A regulation 19 direction notice must specify— a the amendments the CFD counterparty must effect, b the CFDs in relation to which the amendments must be made, and c the date by which the amendments must take effect. 5 The Secretary of State must publish a regulation 19 direction notice. Amber Rudd Parliamentary Under-Secretary of State Department of Energy and Climate Change 31st July 2014