S.L. 545.12 Art. 32Take-or-pay commitments.

(1) If a natural gas undertaking encounters, or considers it would encounter, serious economic and financial difficulties because of its take-or-pay commitments accepted in one or more gas-purchase contracts, it may send an application for a temporary exemption from regulation 22 to the Regulator. Applications shall, in accordance with the choice of the Regulator, be presented on a case-by-case basis either before or after refusal of access to the system. The Regulator may also give the natural gas undertaking the choice of presenting an application either before or after refusal of access to the system. Where a natural gas undertaking has refused access, the application shall be presented without delay. The applications shall be accompanied by all relevant information on the nature and extent of the problem and on the efforts undertaken by the natural gas undertaking to solve the problem. If alternative solutions are not reasonably available, and taking into account sub-regulation (3), the Regulator may decide to grant an exemption.

(2) The Regulator shall notify the Minster without delay of its decision to grant an exemption, together with all the relevant information with respect to the exemption. The information may be submitted to the Minister in an aggregated form, in a manner suitable to be sent by the Minister to the Commission.

(3) When deciding on the exemptions referred to in sub-regulation (1), the Regulator, shall take into account, in particular, the following criteria:

(a) the objective of achieving a competitive gas market;

(b) the need to fulfill public-service obligations and to ensure security of supply;

(c) the position of the natural gas undertaking in the gas market and the actual state of competition in that market;

(d) the seriousness of the economic and financial difficulties encountered by natural gas undertakings or eligible customers;

(e) the dates of signature and terms of the contract or contracts in question, including the extent to which they allow for market changes;

(f) the efforts made to find a solution to the problem;

(g) the extent to which, when accepting the take-or-pay commitments in question, the undertaking could reasonably have foreseen, having regard to the provisions of Directive 2009/73/EC, that serious difficulties were likely to arise;

(h) the level of connection of the system with other systems and the degree of interoperability of those systems; and

(i) the effects the granting of an exemption would have on the correct application of Directive 2009/73/EC as regards the smooth functioning of the internal market in natural gas.

(4) Natural gas undertakings which have not been granted an exemption as referred to in sub-regulation (1) shall not refuse, or shall no longer refuse, access to the system because of take-or-pay commitments accepted in a gas purchase contract.