FURTHER INFORMATION:

CER Authorisation to Construct or Reconstruct Licence Overview

Before constructing a CHP Facility, authorisation to proceed is required from the Commission for Energy Regulation (CER). This Authorisation is the key administrative permission required to construct a generation facility
(*Issued by the CER pursuant to section 16(1) of the 1999 Act.).

An Authorisation is obtained by application to the CER. Commencement of construction of a generating station without an Authorisation may result in a fine up to €126,973.00 (Section 16(4) of the 1999 Act.). If the application is refused, the applicant will be notified in writing of the reasons for the refusal. A decision to refuse to grant an Authorisation may be appealed
(4) The appeal procedure is set out in Part IV, sections 29 to 32 of the 1999 Act. An explanation of the appeal procedure may also be found in paragraphs 46 to 47 of the Guidance Notes.

When Generating Capacity is Less than or Equal to 5 megawatts:

The application and assessment procedure for an Authorisation depends on the size of the proposed generating facility. In order to minimise regulatory burdens on smaller market participants, a streamlined process has been implemented for applications from small-scale generators (less than or equal to 5 megawatts)
(*CER Decision CER/03/061: "Modification of the Commission's Procedures for Assessing Small-Scale Licence Applications" dated 19 March 2003).

This streamlined process is as follows:

• Financial Assessment: Applicants must submit details of directors and principal shareholders, a short business plan and, if applicable, confirmation of the existence of a power purchase agreement (whether or not under AER);
• Technical Assessment: Applicants must submit technical specifications of each unit, a connection offer, planning permission, an environmental impact statement (if applicable) and a construction and commissioning programme.
• Fees: The fee for an application for a plant less than 5 megawatts is €35.

When Generating Capacity is Greater than 5 megawatts:

For plants greater than 5 megawatts, applicants must pay an application fee and submit two copies of the following documents with their applications:

• Financial Information: accounts for the last two years, including a certificate that no material change has occurred if more than three months have elapsed since the end of the financial year (and accounts of the parent company in the case of an SPV) (While it will not routinely request or assess financial information for applications of this size the CER reserves the right to request its submission) . Applicants must also submit a five-year business plan including annual forecasts of costs, sales and revenues and financing.
• Environmental impact statement: if applicable.
• Construction and commissioning programme: This must identify the major milestones in the project development, from authorisation to completion.
• Map(s): sufficient to identify the location of the generating station.
• Application Fee: fees vary according to the installed capacity of the generating unit. The scale of fees is set out above.

In addition, to assist the CER in assessing applications in a timely manner, applicants are encouraged (but not required) to provide the CER with two copies of the following documentation (where applicable):

• planning permission or confirmation of exemption;
• IPC/IPPC Licence or confirmation that an application has been submitted;
• water extraction licence;
• connection offer; and
• Power Purchase Agreement.

Public Procurement Obligations

A developer of a CHP plant may need to comply with the formalities prescribed in EC Public Procurement Directives in certain circumstances. In general, the Utilities Directive (Directive 93/38/EEC, as amended by Directive 98/4/EC) applies to entities that hold authorisations and/or licences, such as those necessary for a CHP plant, and which are engaged in “relevant activities” for the purposes of that Directive. Materially, such activities are “the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity” or “the supply of … electricity … to such networks”.

In practice this means that a CHP plant that intends to export into the grid falls under the Directive. Furthermore, a CHP plant that intends to export to other business enterprises, and where the means of export itself forms part of a fixed network (for example, in an industrial estate), might also fall under the formalities of the Directive. In such instances, the formalities include the requirement to advertise, by call for competition, (tender notice) in the Official Journal of the European Union (“OJEU”) and abiding by certain prescribed procedures and time limits. In practice, time limits of up to 77 days (This period may vary according to the circumstances and according to which Directive and which procedure is applicable) must be allowed to tenderers. Further periods may be required to allow for the evaluation process. Failure to abide by these formalities may result in awards of monetary damages, injunction, declaration of voidness or other remedies.

However, if the CHP plant is not intending to supply electricity to the grid, or if it does not supply electricity to other business enterprises as above, the Utilities Directive will not be applicable. Furthermore, the Utilities Directive does not apply if the financial value of the procurement is below the financial thresholds therein which, in general, are €5,923,624 for construction contracts and €473,890 for goods and many services. (In general, where Annex 1A of the Services Directive or Annex XV1 A of the Utilities Directive apply the only formality required is publication of an award notice and other categories of services required to be advertised if the financial threshold is exceeded.)

In general, public sector bodies will be bound by the formalities of the Directives (but with lower financial thresholds) in respect of procurement of goods or certain services, as well as for construction contracts if the Utilities Directive would not be applicable to them in the relevant circumstances.

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