electricity regulatory commission
LexInter | January 31, 2002 | 0 Comments

ELECTRICITY REGULATORY COMMISSION

TITLE VI
REGULATION

Article 28

The Electricity Regulatory Commission has six members appointed for a term of six years because of their qualifications in the legal, economic and technical fields. Three members, including the president, are appointed by decree. The other three are appointed, respectively, by the President of the National Assembly, the President of the Senate and the President of the Economic and Social Council.
The members of the commission cannot be appointed beyond the age of sixty-five.
Subject to the application of the provisions appearing in the penultimate paragraph, the members of the committee are not revocable. Their mandate is not renewable, except if this mandate, in application of the following two paragraphs, or in the event of automatic resignation for incompatibility, is not
If one of the members of the commission cannot exercise his mandate until its term, the person appointed to replace him exercises his functions for the duration of the mandate remaining to run.
For the constitution of the commission, the president is appointed for six years. The term of office of the two other members appointed by decree is fixed, by drawing lots, at four years for one and two years for the other. The term of office of the three members appointed by the presidents of the parliamentary assemblies and of the Economic and Social Council is fixed, by drawing lots, at two years, four years and six years.
The Electricity Regulatory Commission can only deliberate if at least four of its members are present. It deliberates by a majority of the members present. In the event of a tie vote, that of the president is decisive.
The members of the commission exercise their functions on a full-time basis.
The function of member of the Electricity Regulatory Commission is incompatible with any professional activity, any municipal, departmental, regional, national or European elected office, any public employment and any direct or indirect holding of interests in a company. in the energy sector or in an eligible company referred to in article 22. The members of the commission cannot be members of the Economic and Social Council.
Any member of the commission exercising an activity or holding a mandate, a job or interests incompatible with his function is declared automatically resigned, after consultation of the commission, by order of the Minister in charge of energy.
The president and the members of the commission receive respectively a treatment equal to that pertaining to the first and to the second of the two higher categories of the jobs of the State classified except scale. When occupied by a civil servant, the permanent post of member of the Electricity Regulatory Commission is a post leading to a pension under the Civil and Military Retirement Pensions Code.

Article 29
A Government Commissioner to the Electricity Regulatory Commission, appointed by the Minister in charge of energy, makes known the Government’s analyzes, in particular with regard to energy policy. He cannot simultaneously be a government commissioner with Electricité de France. He withdraws during the deliberations of the commission.
He may place on the committee’s agenda any question concerning energy policy or the safety and security of public electricity transmission and distribution networks or falling within the competence of the committee. Consideration of this question cannot be refused.

Article 30
The Electricity Regulatory Commission has services which are placed under the authority of the President.
The commission establishes internal regulations, which are published in the Official Journal of the French Republic.
The commission can employ civil servants in active or seconded position and recruit contractual agents under the same conditions as the ministry in charge of energy.
The committee receives, where applicable, remuneration for services rendered.
The commission proposes to the Minister in charge of energy, during the preparation of the finance bill, the necessary credits, in addition to the resources mentioned in the preceding paragraph, for the accomplishment of its missions. These credits are entered in the general state budget. The provisions of the law of August 10, 1922 relating to the organization of the control of expenditure incurred are not applicable to their management. The chairman of the commission is the authorizing officer of revenue and expenditure. The commission is subject to the control of the Court of Auditors.
For the accomplishment of the missions entrusted to the Electricity Regulatory Commission, the chairman of the commission has standing to take legal action.

Article 31
The Electricity Regulation Commission is consulted beforehand on the draft regulations relating to access to public electricity transmission and distribution networks and their use.
The committee is involved, at the request of the Minister in charge of energy, in the preparation of the French position in international negotiations in the field of electricity. It participates, at the request of the Minister in charge of energy, in the French representation in the international and community organizations competent in this field.

Article 32
The parliamentary committees responsible for energy, the Higher Council for Electricity and Gas, the National Observatory of the Public Service of Electricity and the Economic and Social Council may hear the members of the Regulatory Commission. electricity. They can also consult the commission on any matter concerning the regulation of the electricity sector or the management of public electricity transmission and distribution networks. The committee may hear any person whose hearing it considers likely to contribute to its information.
The president of the Electricity Regulatory Commission reports on the activities of the commission to the standing committees of Parliament responsible for
The Electricity Regulatory Commission draws up every year, before June 30, a public report that gives an account of its activity, the application of the legislative and regulatory provisions relating to access to public transmission and distribution networks and to the use of these networks. This report assesses the effects of its decisions on the conditions of access to public networks and the performance of public electricity service missions. It is addressed to the Government, Parliament and the Higher Council for Electricity and Gas. The latter’s suggestions and proposals are sent to the Minister in charge of energy and to the Electricity Regulatory Commission.
The opinions and proposals of the Electricity Regulatory Commission are reasoned. When the competent administrative authority takes its decision on the basis of them, it proceeds to their publication or, in the case of an individual decision, to their notification to the person concerned.

Article 33
For the accomplishment of the missions entrusted to it, the Electricity Regulatory Commission may collect all the necessary information from the ministers responsible for the economy and energy, as well as from the managers of the public networks. transmission and distribution companies and operators in the electricity market.
I. – Officials and agents authorized for this purpose by the Minister in charge of energy or by the Minister in charge of the Economy carry out the investigations necessary for the application of the provisions of this law.
The agents of the Electricity Regulatory Commission authorized for this purpose by the President have the same powers for the
The inquiries give rise to a report. A duplicate is sent to the interested parties within five days.
The Minister in charge of energy or the Electricity Regulatory Commission designate any competent person to carry out an expert appraisal, if necessary.
II. – The officials and agents mentioned in I have access to all the useful information held by the operator of the public transport network and obtain any information or justification from him. At any time, they can access any premises or means of transport for professional use under the responsibility of this manager, and make any findings.
The officials and agents mentioned in I also have access to establishments, land, premises and professional vehicles, with the exception of homes and parts of premises serving as domicile, which belong to companies carrying out an activity of production, distribution or supply of ‘electricity. They can enter these places between 8 a.m. and 8 p.m. and outside these hours when a production, distribution or supply activity is in progress.
The officials and agents mentioned in I receive, at their request, communication of accounting documents and invoices, of any useful document or document, take a copy thereof, and collect, upon summons or on site, the information and justifications specific to the accomplishment of their mission.
III. – The breaches referred to in Articles 40 and 41 are noted by the officials and agents mentioned in I.
These breaches are the subject of reports which, as well as the maximum penalties incurred, are notified to the person (s) concerned and communicated to the Minister in charge of energy or to the Electricity Regulatory Commission. The person (s) concerned are invited to submit their written or oral observations within fifteen days of this notification, without prejudice to the rights provided for in paragraph 4 of article 40.

Article 34
Apart from the cases referred to in Article 33, officials and agents authorized by virtue of the same article may not carry out visits to all places, as well as the seizure of documents and documents, within the framework of inquiries. requested by the Minister of Energy, the Minister responsible for the economy or the Electricity Regulatory Commission, only with judicial authorization, given by order of the president of the tribunal de grande instance in whose jurisdiction the places at visit or a judge delegated by him. When these places are located within the jurisdiction of several jurisdictions and simultaneous action must be taken in each of them, a single order may be issued by one of the competent presidents.
The judge checks that the authorization request submitted to him contains all the information needed to justify the visit.
The visit and seizure are carried out under the authority and control of the judge who authorized them. He appoints one or more judicial police officers responsible for assisting in these operations and keeping him informed of their progress. When they take place outside the jurisdiction of the jurisdiction to which he belongs, he issues a rogatory commission to exercise this control to the president of the high court in whose jurisdiction the visit takes place.
The judge can go to the premises during the intervention, which he can, at any time, decide to suspend or stop.
The ordinance mentioned in the first paragraph can only be appealed against in accordance with the rules provided for by the code of criminal procedure. This appeal is not suspensive.
The visit, which cannot begin before 6 a.m. or after 9 p.m., is carried out in the presence of the occupant of the premises or his representative.
The investigators, the occupant of the premises or his representative as well as the judicial police officer can only take cognizance of the documents and documents before they are seized.
Inventories and seals are carried out in accordance with article 56of the Code of Criminal Procedure. The originals of the report and the inventory are sent to the judge who ordered the visit. The parts and documents which are no longer useful for the manifestation of the truth are returned to the occupant of the premises.

Article 35
The members and agents of the Electricity Regulatory Commission exercise their functions with complete impartiality, without receiving instructions from the Government, nor from any institution, person, company or body.
The members and agents of the Electricity Regulatory Commission are bound by professional secrecy for the facts, acts and information of which they may have become aware by virtue of their functions. In particular, the members and agents of the commission do not communicate the administrative documents which are protected by law no.78-753 of July 17, 1978 relating to various measures to improve relations between the administration and the public and various provisions of administrative, social and fiscal order.
Failure to respect professional secrecy, established by a court decision, results in the automatic termination of functions within the Electricity Regulatory Commission.

Article 36
I. – The Electricity Regulatory Commission proposes:
1o The tariffs for the use of public transport and distribution networks, in accordance with Article 4;
2o The amount of charges attributable to public service missions assigned to electricity producers, and the amount of the related net contributions, in accordance with I of article 5;
3o The amount of charges defined in article 48 and the amount of the related net contributions.
II. – It approves the independent bodies mentioned in I of article 5.
III. – It proposes to the Minister in charge of energy the precautionary measures necessary to ensure the safety and security of public networks and to guarantee the quality of their operation, in accordance with article 21.
IV. – It gives an opinion on:
1o The tariffs for the sale of electricity to non-eligible customers, the price ceilings applicable to the supply of electricity to eligible customers in areas not interconnected to the continental metropolitan network, the tariffs for the transfer of electricity to non-nationalized distributors and emergency tariffs, in accordance with article 4;
2o The candidate or candidates selected after the calls for tenders provided for in article 8;
3o The ministerial decree setting the conditions for the purchase of electricity produced within the framework of the purchase obligation defined in article 10;
4o The concession specifications for the operator of the public electricity transmission network, in accordance with Article 12;
5o The appointment and early transfer of the functions of the director of the public transport network operator, in accordance with article 12;
6o The development plan of the public transport network, in accordance with article 14;
7o The authorization requests mentioned in IV of article 22;
8o The refusal of authorization to construct a direct line, in application of article 24.
V.
VI. – It implements the calls for tenders under the conditions decided by the Minister in charge of energy, in accordance with article 8.
VII. – It receives communication:
1o Annual activity reports of the organizations in charge of the public distribution of electricity, in application of article 3;
2o The budget and accounts of the operator of the public transport network, in accordance with article 12;
3o Contracts and protocols for access to public transport and distribution networks, in accordance with article 23.
VIII. – It receives notification of refusals to enter into a contract for access to public electricity transmission and distribution networks, in accordance with Article 23.
IX. – It ensures the regularity of the presentation of the offers and the selection criteria adopted by the operator of the public transport network, in accordance with article 15.
X. – It approves:
1o The charging rules, the perimeters and the principles determining the main financial relationships between the various activities subject to accounting separation, in accordance with Articles 25 and 26, on the proposal of the companies and establishments referred to in the same articles;
2o The investment program of the public transport network operator, in accordance with Article 14.
XI. – It has access to the accounts of companies operating in the electricity sector and to economic, financial and social information, in accordance with Article 27, as well as to the information necessary for the exercise of its missions, in accordance with in Article 33.
XII. – It adopts the regulations mentioned in article 37.
XIII. – It rules on disputes referred to it, in accordance with article 38.
XIV. – It has the power to investigate, seize and sanction, in accordance with Articles 33, 34 and 40.

Article 37
In compliance with legislative and regulatory provisions, the Electricity Regulatory Commission specifies, as necessary, by decision published in the Official Journal of the French Republic, the rules concerning:
1o The missions of public network operators transmission and distribution of electricity in the operation and development of networks, in application of Articles 14 and 18;
2o The conditions for connection to public electricity transmission and distribution networks, in application of Articles 14 and 18;
3o The conditions of access to the networks and their use, in application of article 23;
4o The implementation and adjustment of call, supply and consumption programs, and financial compensation for deviations, in application of articles 15 and 19;
5 ° The conclusion of purchase contracts and protocols by the operators of public transmission or distribution networks, in application of III of article 15;
6o The perimeters of each of the separate accounting activities, the accounting allocation rules applied to obtain the separate accounts and the principles determining the financial relations between these activities, in accordance with Articles 25 and 26.

Article 38
I. – In the event of a dispute between the managers and users of the public transport or distribution networks relating to access to said networks or their use, in particular in the event of refusal of access to the public transport and distribution networks or disagreement on the conclusion, interpretation or execution of the contracts and protocols referred to in III of Article 15 and in Article 23, the Electricity Regulatory Commission may be referred to by one or the other of the parties.
The commission decides, within three months which it can extend to six months, if it considers it necessary, and under conditions fixed by decree in the Council of State, after having diligently, if it considers it necessary , an investigation under the conditions set out in article 33 and put the parties in a position to present their observations. Its decision is reasoned and specifies the technical and financial conditions for settling the dispute under which access to public networks or their use are, where applicable, ensured. It is notified to the parties and published in the Official Journal of the French Republic, subject to secrets protected by law.
In the event of a serious and immediate breach of the rules governing access to public electricity transmission and distribution networks or their use, the committee may, after hearing the parties in question, order the necessary protective measures with a view in particular to ensure the continuity of the functioning of the networks.
II. – Decisions taken by the Electricity Regulatory Commission in application of this article may be appealed against for annulment or reform within a period of one month from their notification.
The appeal is not suspensive. However, the suspension of execution of the decision may be ordered by the judge, if it is likely to lead to manifestly excessive consequences or if new facts of exceptional gravity have arisen after its notification.
Conservatory measures ordered by the Electricity Regulatory Commission may, at most fifteen days after their notification, be the subject of an appeal for annulment or reformation. This appeal is judged within one month.
Appeals against decisions and precautionary measures taken by the Electricity Regulatory Commission in application of this article fall within the jurisdiction of the Paris Court of Appeal.
The cassation appeal lodged, where applicable, against the judgment of the court of appeal is exercised within one month of the notification or service of this judgment.

Article 39
The president of the Electricity Regulatory Commission refers to the Competition Council abuses of a dominant position and practices hindering the free exercise of competition of which he is aware in the electricity sector. This referral may be lodged within the framework of an emergency procedure, in accordance with article 12 of ordinance no 86-1243 of 1 December 1986 relating to freedom of prices and competition. It may also refer to it for an opinion on any other matter falling within its competence.
The Competition Council communicates to the Electricity Regulatory Commission any referral falling within the latter’s field of competence defined in article 38 of this law. It can also refer to the committee, for an opinion, any question relating to the electricity sector.
The president of the Electricity Regulatory Commission informs the public prosecutor of the facts which are likely to be qualified as a criminal offense.

Article 40
The Electricity Regulatory Commission may, either ex officio or at the request of the Minister responsible for energy, a professional organization, an approved association of users or any other person concerned, sanction any breaches it finds on the part of the operators of public transmission or distribution networks or their users, under the following conditions:
1o In the event that a manager or user of a public transmission or distribution network fails to comply with a legislative or regulatory provision relating to access to said networks or to their use, a decision taken by the Commission of regulation of electricity or to an imputation rule, to a perimeter or to a principle approved by it in application of articles 25 and 26, the commission gives him formal notice to comply with them within a determined period. It can make this formal notice public.
When the person concerned does not comply within the time limits set with this formal notice, the committee may pronounce against him, depending on the seriousness of the breach:
a) A temporary ban on access to public networks for a period of time.
b) If the breach does not constitute a criminal offense, a financial penalty, the amount of which is proportionate to the seriousness of the breach, to the situation of the person concerned, to the extent of the damage and to the advantages thereof. are drawn, without being able to exceed 3% of the turnover excluding tax for the last closed financial year, increased to 5% in the event of a new violation of the same obligation. In the absence of an activity enabling this ceiling to be determined, the amount of the penalty may not exceed one million francs, increased to two and a half million francs in the event of a new violation of the same obligation. If the breach has already been the subject of a financial penalty under another legislation,
2o The same penalties are incurred when the manager or user of a public transport or distribution network has not complied within the required time limits with a decision taken by the commission in application of article 38, without ‘it should be put on formal notice beforehand;
3o In the event of failure by a manager of public transport and distribution networks or companies operating in the electricity sector to comply with the obligations to provide documents and information provided for in particular in Articles 12, 23 and 33, or in the obligation to provide access to the accounts, as well as to the economic, financial and social information provided for in Article 27, the Electricity Regulatory Commission gives the interested party formal notice to comply with it within a period of time. ‘she determines.
When the interested party does not comply with this formal notice within the time limit set or provides incomplete or erroneous information, the Electricity Regulatory Commission may pronounce against him the penalties provided for in 1o;
4o Sanctions are pronounced after the manager or user of a public transport or distribution network has received notification of the grievances and has been enabled to consult the file and to present his written and oral observations, assisted by a person of their choice.
The pecuniary sanctions are recovered like the debts of the State foreign to the tax and to the field;
5o The instruction and the procedure before the Electricity Regulatory Commission are contradictory;
6o The Electricity Regulatory Commission may not be seized of facts dating back more than three years if no act has been made to investigate, ascertain or sanction them;
7o The decisions are reasoned, notified to the person concerned and published in the Official Journal of the French Republic. They can be the subject of an appeal of full jurisdiction and a request for suspension of execution before the Council of State. When they concern pecuniary sanctions, the requests for suspension have a suspensive nature.

Article 41
The Minister in charge of energy pronounces, under the same conditions as those fixed in article 40, a financial penalty, the withdrawal or the suspension, for a period not exceeding one year, of the authorization of operate an installation or the authorization mentioned in IV of article 22, against the perpetrators of the breaches that it finds in the obligations of payment of the contributions provided for in article 5.
It can pronounce, under the defined conditions in the first paragraph, the financial and administrative penalty (s) provided for in that paragraph against the perpetrators of breaches that it finds:
– the obligations to pay contributions provided for in Article 48;
– a legislative or regulatory provision relating to the production, eligibility or purchase activity for resale of electricity, as defined in Articles 7 to 10 and 22, or to the requirements of the title under which this activity is carried out;
– the obligation to provide data provided for in Article 47.

Article 42
The fact of operating an electricity production installation without being the holder of the authorization referred to in article 7 or of constructing or putting into service a direct line without being the holder of the authorization referred to in article 24 is punished by one year’s imprisonment and a fine of 1,000,000 F.
The fact of opposing in any way whatsoever to the exercise of the functions with which the officials and agents designated in Articles 33 and 34 are responsible or of refusing to communicate to them the elements mentioned in II of Article 33 and in Article 34 is punished by six months’ imprisonment and a fine of 50,000 F.

1o The temporary or permanent closure of one, several, or all of the establishments of the company belonging to the sentenced person;
2o The prohibition to exercise the professional or social activity in the exercise or on the occasion of the exercise of which the offense was committed, according to the modalities provided for by article 131-27 of the penal code;
3o The display or dissemination of the decision pronounced, under the conditions provided for by article 131-35 of the penal code.
Legal persons may be declared criminally responsible for the offenses defined in the first two paragraphs of this article, under the conditions provided for by the
The penalties incurred by legal persons are:
1o The fine, in accordance with the terms provided for in article 131-38 of the penal code;
2o The temporary closure, for a period of five years at most, or permanently, of one, several, or all of the establishments of the company belonging to the convicted person;
3o Prohibition, definitively or for a period of five years at most, to exercise directly or indirectly the professional or social activity in the exercise or on the occasion of the exercise of which the offense was committed;
4o The display or dissemination of the decision pronounced, under the conditions provided for by article 131-35 of the penal code.

Article 43
The officials and agents authorized by the Minister in charge of energy and the agents of the Regulatory Commission of electricity authorized by the president, mentioned in the first and second paragraphs of I of article 33, and sworn in under conditions defined by decree of the Council of State.
For the investigation and observation of these offenses, these officials and agents have the investigative powers defined in Article 33.
The criminal offenses provided for by this law are recorded by reports which are sent, on pain of nullity, within five days of their closure, to the public prosecutor. A copy is given to the interested party within the same period. These minutes are authentic until proven otherwise.
The public prosecutor is informed in advance of the operations planned with a view to investigating offenses. He can oppose these operations.

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