40.—(1) Where the Minister is satisfied that as a consequence of the implementation of Directive No. 96/92/EC of the European Parliament and of the Council of 19 December, 1996, the Board is unable to recover specified costs or revenue relating to a generating station constructed or under construction or reconstruction before the 19th day of February, 1997, he or she shall, after consultation with the Commission and the Commission of the European Communities, by order provide for the payment to the Board of an annual sum and for the recovery from final customers of the amounts so paid to the Board.

(2) The sum referred to in subsection (1) shall be calculated in accordance with the order in respect of the annual specified amounts of unrecovered costs or revenue that may occur in each single year applied only to a specified period of years.

(3) Notwithstanding the generality of subsection (1), the Minister may by order provide for—

(a) a levy on final customers in respect of electricity provided to such customers,

(b) the collection of payments in that respect by the Board and holders of licences or authorisations, or holders of a permit under section 37 of the Principal Act,

(c) the making of payments to the Board, out of such payments so collected,

(d) a condition that any amount paid to the Board under the order shall be used for purposes specified in the order and that the Commission shall have the power to ascertain whether such a condition is being complied with,

(e) conditions, in which a levy would be paid to the Board,

(f) the recovery from the Board of an amount or part thereof paid to it under the order where it has not been used in accordance with the order, and

(g) the certification by the Commission in respect of each year in the specified period of years that in that year the conditions specified in the order have been satisfied.

(4) An order made under this section may—

(a) impose requirements (whether as to the furnishing of records or other information or the affording of facilities for the examination and testing of meters or otherwise) on the Board,

(b) provide for the times at which payments (whether payments by way of levy or payments to the Board) are to be made,

(c) require the amount of any overpayment or underpayment which is made by or to any person to be set off against or added to any subsequent liability or entitlement of that person, and

(d) provide for the date of termination of the arrangement provided for in the order.

(5) The Minister shall exercise the powers conferred by this section so as to ensure that the sums realised by the levy are sufficient (after the payment of the administrative expenses of holders of licences to supply under section 14 or of the Board incurred in the collection of the levy) to pay to the Board the payment required to be made by the order.

(6) Subject to subsection (7), the Minister may by order amend or revoke an order made under this section including an order made under this subsection.

(7) The sum calculated in accordance with subsection (2) shall not be altered.

(8) A draft of the order proposed to be made under subsection (6) shall be given to the Board by the Minister one month before the order is made.