34.—(1) Subject to subsection (4), where an application is made to the Board by any person, the Board shall offer to enter into an agreement for connection to or use of the transmission or distribution system, subject to terms and conditions specified in accordance with directions given to the Board by the Commission under this section from time to time.

F371[(1A) An offer under subsection (1) may, on request of the applicant, be on the basis that the applicant constructs, or that either or both the applicant and the transmission system operator arranges to have constructed, the connection to the transmission system, and any such connection constructed or arranged to be constructed by the applicant shall be the property of the person with whom the agreement is made, and shall, for the purposes of F372[section 37(4)], be deemed to be a direct line.]

F373[(1B) An offer under subsection (1), made for the purpose of connecting a generating station to the distribution system, may, on request of the applicant, be on the basis that the applicant constructs, or that either or both the applicant and the distribution system operator arranges to have constructed, the connection to the distribution system, and any such connection constructed or arranged to be constructed by the applicant shall be the property of the person with whom the agreement is made, and shall, for the purposes of section 37(4), be deemed to be a direct line.]

F374[(1C) The Commission shall publish directions that are given by it to the Board under this section.]

F375[(1D) In relation to an application to the transmission system operator under subsection (1), by any person, including new generation installations and energy storage facilities, the terms and conditions mentioned in that subsection shall be published by the transmission system operator, following their approval by the Commission.]

(2) Without prejudice to the generality of subsection (1), directions given by the Commission under this section may provide for:

(a) the matters to be specified in an agreement for connection to and use of the transmission or distribution system;

(b) the matters to be specified in an agreement for use of the transmission or distribution system;

(c) the terms and conditions upon which an offer for connection to the transmission or distribution system is made;

(d) the methods for determining the proportion of the costs to be borne by the person making the application for connection to the transmission or distribution system and to be borne by the Board being costs which are directly or indirectly incurred in carrying out works under an agreement or making a connection or modifying an existing connection;

(e) the terms and conditions upon which applications for an agreement are to be made and the period of time within which an offer or refusal pursuant to an application is to be made by the Board; and

(f) any other matters which the Commission considers necessary or expedient for the purpose of making an offer for connection to or use of the transmission or distribution system,

and the Board shall comply with directions given by the Commission under this section within such time period as may be specified by the Commission.

F374[(2A) In a case where the Agency is competent to fix and approve the terms and conditions or methodologies for the implementation of network codes and guidelines under Chapter VII of the 2019 Internal Electricity Market Regulation pursuant to Article 5(2) of the 2019 ACER Regulation because of their coordinated nature, then subsection (1), in so far as it provides for the giving of directions by the Commission to the Board, and subsection (2) shall not apply and, in such a case, the terms and conditions to be specified in the agreement referred to in subsection (1) shall be those fixed and approved by the Agency.]

(3) An offer made under subsection (1) to a person who is not the holder of a licence under section 14 or an authorisation under section 16 F376[or a registration granted under Part IIIA] or an eligible customer shall be subject to the grant of a licence or authorisation F376[or registration] to that person or to that person becoming an eligible customer F376[or to that person being a relevant market participant of a class specified by order under section 28AC(2)(a)(i) or engaging in a class of electricity activity specified by order under 28AC(2)(a)(ii)].

(4) The Board shall not be required under subsection (1) to enter into an agreement where—

(a) it has demonstrated to the satisfaction of the Commission that it is not in the public interest to provide additional capacity to meet the requirements to be imposed by that agreement,

(b) to enter into an agreement under this section would be likely to involve the Board:

(i) in a breach of this Act;

(ii) in a breach of regulations made under this Act;

(iii) in a breach of the grid code or distribution code; or

(iv) in a breach of the conditions of any licence or authorisation granted to the Board under this Act,

or

(c) the person making the application does not undertake to be bound by the terms of the grid code or distribution code in so far as those terms are applicable to that person.

F377[(5) (a) Where the Board refuses to offer to enter into an agreement under this section, it shall serve notice on the applicant of the reasons for such refusal, having regard to Article 9 of the 2019 Internal Electricity Market Directive.

(b) The reasons referred to in subparagraph (a) shall be based on objective and technically and economically justified criteria.

(c) The Commission shall ensure that the criteria referred to in subparagraph (b) are consistently applied.]

F378[(5A) (a) The transmission system operator or the distribution system operator, as the case may be, shall, where refusal of access takes place, provide relevant information to the applicant on measures that would be necessary to reinforce the network.

(b) The information specified in subparagraph (a) shall be provided in all cases when access for recharging points has been denied.

(c) The party requesting such information may be charged by the transmission system operator a fee reflective of the administrative cost of providing the information referred to in paragraph (a) and any such fee shall be displayed by the transmission system operator on its website.]

F379[(5B) (a) The transmission system operator shall not be entitled to refuse the connection of a new generating installation or energy storage facility on the grounds of possible future limitations to available network capacities, such as congestion in distant parts of the transmission system;

(b) The transmission system operator shall supply necessary information if refusing connection to those seeking connection;

(c) Paragraphs (a) and (b) shall be without prejudice to the possibility for the transmission system operator to limit the guaranteed connection capacity or to offer connections subject to operational limitations, in order to ensure economic efficiency regarding new generating installations or energy storage facilities, provided that such limitations have been approved by the Commission;

(d) The Commission shall ensure that any limitations in guaranteed connection capacity or operational limitations are introduced on the basis of transparent and non-discriminatory procedures and do not create undue barriers to market entry;

(e) Where the generating installation or energy storage facility bears the costs related to ensuring unlimited connection, no limitation shall apply;

(f) The transmission system operator shall not be entitled to refuse a new connection point, on the ground that it would lead to additional costs resulting from the necessary capacity increase of system elements in the close-up range to the connection point.]

F380[(6)(a) Any dispute between the transmission system operator or the distribution system operator and any person who is, or claims to be, a person to whom the transmission system operator or the distribution system operator, as the case may be, F381[is obliged –

(i) to make an offer for connection to and use of the transmission system or distribution system, or

(ii) to consult with regarding proposed charges in accordance with section 36(2),

as the case may be,] whether as to the terms and conditions (including proposed charges) or otherwise, shall, upon the application of such person, be determined by the Commission, and the Commission shall issue a direction regarding its determination and the transmission system operator or the distribution system operator, as the case may be shall comply with and be bound by any such direction.

(b) Any dispute between a transmission system operator or a distribution system operator in regard to duties under the F381[2019 Internal Electricity Market Directive] and a person as respects matters specified in section 9(1B) in relation to electricity shall, upon the application of such person, be determined by the Commission, and the Commission shall issue a direction regarding its determination and such direction shall be binding on all parties concerned.

(c)(i) The Commission shall issue the determination referred to in paragraphs (a) and (b) within 2 months from the date of the receipt of the complaint.

(ii) The period referred to in subparagraph (i) may be extended by 2 months where the Commission seeks additional information in the matter, and such further extension as may be consented to by the applicant.

(iii) Where the applicant concerns connection tariffs for major new generation facilities, the period concerned may be extended by the Commission without the consent of the applicant.

(d) In the event of cross border disputes, the Commission has jurisdiction if the transmission system operator licensed under section 14(1)(e) is the system operator which refuses use of or access to the transmission system.]

(7) In order to secure compliance with a determination made under this section the Commission may apply in a summary manner on notice to the High Court for an order requiring the Board to comply with the determination of the Commission made under this section.

(8) Where providing for use of the transmission or distribution system or where offering terms for the carrying out of works for the purpose of connection to the transmission or distribution system of the Board, the Board shall not discriminate unfairly as between any persons or classes of persons.

F382[(9) The provisions of this section shall also apply to citizen energy communities that manage distribution networks.]