38.— (1) Subject to subsection (2), no levy is payable in any month by an oil consumer that, throughout the preceding month, held within the State stocks of petroleum products owned by it that equalled or exceeded—

(a) 55 times the average volume of those products consumed by it on each day in the preceding calendar year, or

(b) such other daily volume as may be prescribed by the Minister for the purpose of securing supplies of oil in accordance with the State’s stockholding obligations or with its national requirements.

F51[(2) In calculating for the purposes of this section stocks of petroleum products held throughout the preceding month by an oil consumer, the Minister shall not take into account any volume of petroleum products on behalf of the oil consumer under a contract between the oil consumer and another person, unless—

(a) the other person is a person mentioned in Article 8(1) of the Council Directive,

(b) the contract provides for an agreed volume of petroleum products owned by the oil consumer to be so held by the other person for the purpose of a claim by the oil consumer for exemption from levy under this section,

(c) the contract provides for the agreed volume of petroleum products to be available and physically accessible,

(d) before the contract was entered into, the contract proposals (within the meaning assigned by section 62) were submitted F52[to the Minister,]

F53[(e) where the contract provides for the agreed volume of petroleum products to be held outside the State—

(i) the oil consumer and other person have demonstrated that the petroleum products are held in accordance with the provisions of any oil stocks agreement that the State may enter into from time to time and are, whether or not co-mingled with other stocks held by economic operators—

(I) clearly identifiable in terms of location, volume and category of oil product,

(II) subject to inspection, verification and audit, and

(III) available at all times to be released without encumbrance when the oil consumer is called on to do so by the Minister,

and

(ii) the oil consumer reports monthly in respect of those petroleum products in accordance with the National Oil Reserves Agency Act 2007 (Returns and Levy) Regulations 2007 (S.I. No. 567 of 2007)]

F54[(f) the contract provides that where the other person is—

(i) an economic operator which has surplus stocks or available stockholding capacity outside the territory of the State but within the Community,

or

(ii) an economic operator which has surplus stocks or available stockholding capacity within the territory of the State,

the delegation of stockholding obligations to that person under the contract shall—

(I) where subparagraph (i) applies—

(A) be authorised in advance by the Minister and by all Member States within whose territories the stocks will be held, and

(B) not be sub-delegated by that other person,

or

(II) where subparagraph (ii) applies—

(A) be communicated in advance to the Minister,

and

(B) not be sub-delegated by that other person,

(g) the contract provides that any change to, or extension of, the stockholding obligations delegated by the oil consumer under that contract to—

(i) a central stockholding entity, other than the Agency, where—

(I) the central stockholding agency has, before entering into the contract, declared itself willing to hold such stocks, and

(II) the delegation has been authorised in advance by the Minister and by all Member States within whose territories the stocks will be held, or

(ii) an economic operator, where—

(I) the operator has surplus stocks or available stockholding capacity outside the territory of the State but within the Community, and

(II) the delegation has been authorised in advance by the Minister and by all Member States within whose territories the stocks will be held,

will take effect only where such change or extension is authorised in advance by the Minister and by any other Member State which authorised the delegation of the stockholding obligations under that contract,

and

(h) the contract provides that any change to, or extension of, the stockholding obligations delegated by the oil consumer under that contract to an economic operator that has surplus stocks or available stockholding capacity within the territory of the State shall be deemed to be a new delegation of those obligations.]

(2A) Where an oil consumer proposes to delegate the consumer’s stockholding obligation F55[to the Agency or to a central stockholding entity other than the Agency,] the oil consumer shall notify the Minister at least 170 days prior to the start of the period to which the obligation in question relates in accordance with Article 8(4) of the Council Directive.]

(3) An oil consumer that claims exemption from levy under this section shall supply to the Minister, in accordance with and within the time specified in the regulations relating to returns, all information relevant to the exemption claimed.