5.— The following sections are substituted for sections 15 and 16 of the Energy (Miscellaneous Provisions) Act 1995:

“Theft of electricity and gas and related offences.

15.— (1) In this section and sections 16 and 16A—

‘Act of 1999’ means Electricity Regulation Act 1999;

‘Act of 2002’ means Gas (Interim) (Regulation) Act 2002;

‘article’ means—

(a) any meter, line, fitting, piping, receptacle or other apparatus, or

(b) any component of any such apparatus;

‘Bord Gáis Éireann’ includes a subsidiary of that body;

‘Commission’ means Commission for Energy Regulation;

‘contract of supply’ means a contract for the time being in force whereby—

(a) the holder of a licence to supply electricity granted under section 14 of the Act of 1999, or

(b) the holder of a licence to supply gas granted under section 16 of the Act of 2002,

agrees to supply electricity or gas, as the case may be, to a premises;

‘distribution system operator’ means, as the case may be—

(a) the company formed pursuant to Regulation 3 of the European Communities (Internal Market in Electricity) (Electricity Supply Board) Regulations 2008 (S.I. No. 280 of 2008) under the name of ESB Networks Ltd., or any company duly replacing it, or

(b) the company formed pursuant to Regulation 5 of the European Communities (Internal Market in Natural Gas) (BGE) Regulations 2005 (S.I. No. 760 of 2005) under the name of Gaslink Independent System Operator Ltd., or any company duly replacing it.

‘Electricity Supply Board’ includes a subsidiary of that body;

‘meter’ means an apparatus which registers and records or causes to be registered and recorded the quantity of electricity or gas supplied to a premises;

‘premises’ means any building or any structure, vehicle or vessel (whether mobile or not) or part of it occupied as a separate dwelling or place of business and includes any garden or portion of grounds attached to and usually occupied with the dwelling or place of business or otherwise required for the amenity or convenience of the dwelling;

‘registered consumer of electricity or gas’ means a person who has entered into a contract of supply for the provision of electricity or gas;

‘subsidiary’ has the meaning assigned to it by the Companies Act 1963;

‘transmission system operator’ means the companies referred to in paragraph (b) of the definition of ‘distribution system operator’;

‘unlawfully interferes with’ means the doing, without legal excuse or claim of legal right, of any thing to an article, including (as the context admits) any of the following, namely—

(a) the damaging, injuring, altering or modifying of the article (including the opening or detaching of any sealing or locking device attached to the article),

(b) in the case of a meter (without prejudice to the application of paragraph (a) to such a thing)—

(i) causing an artificial alteration to the index of the meter, or

(ii) preventing the meter from duly registering and recording, or otherwise causing to be registered and recorded, a quantity of electricity or gas, as the case may be, supplied to a premises.

(2) (a) A person who dishonestly uses, or dishonestly causes to be wasted or diverted, any electricity or gas commits an offence.

(b) For the purposes of this subsection an act is done by a person dishonestly if the person does the act without legal excuse or claim of legal right.

(3) A person who unlawfully interferes with any article owned by or operated by a distribution system operator or transmission system operator as appropriate commits an offence.

(4) If, in proceedings for an offence under subsection (3), it is alleged that the defendant undertakes or procures a third party to undertake on his or her behalf—

(a) the alteration of an index to a meter owned by or operated by a distribution system operator or transmission system operator and located in any premises or in the precincts of it, or

(b) the prevention of such a meter from duly registering and recording or causing to be registered and recorded a quantity of either electricity or gas, as the case may be, supplied to the premises in which or in the precincts of which the meter is located,

and it is proved that, during the period that such alteration or prevention is alleged to have occurred or immediately thereafter—

(i) an artificial means for causing such alteration or preventing such registration, as the case may be, was present in the premises or in its precincts, and

(ii) the defendant was in occupation of the premises,

such proof shall be prima facie evidence, in those proceedings, of the matters referred to in paragraph (a) or (b), as the case may be.

(5) A person who, without lawful excuse, manufactures, imports, sells, offers for sale, supplies, installs, causes to be installed or has in his or her possession any thing designed or adapted—

(a) to alter the index to any meter owned by or operated by a distribution system operator or transmission system operator as appropriate,

(b) to prevent the due registration by such a meter of a quantity of either electricity or gas, as the case may be, supplied to any premises, or

(c) for the purpose of imposing charges on persons for the use of electricity or gas in the absence of a contract of supply or a deemed contract under section 16A being in place which allows for the imposition of such charges,

commits an offence.

(6) (a) Where—

(i) a registered consumer of electricity or gas,

(ii) the holder of a licence to supply electricity issued under section 14 of the Act of 1999, or

(iii) the holder of a licence to supply gas issued under section 16 of the Act of 2002,

has reasonable grounds for believing that a meter to which this subsection applies is not duly registering or causing to be registered a quantity of electricity or gas being supplied to the premises concerned by reason of the meter being unlawfully interfered with, he or she shall take all reasonable steps to ensure that such interference is discontinued.

(b) In paragraph (a) ‘all reasonable steps’ includes advising the appropriate distribution system operator or transmission system operator, as the case may be, that a meter under its ownership or operation is not duly registering or causing to be registered a quantity of electricity or gas being supplied to the premises concerned.

(c) A person who fails to comply with paragraph (a) commits an offence.

(d) This subsection applies to a meter that—

(i) is owned by or operated by a distribution system operator or transmission system operator, and

(ii) is located in premises or in the precincts of premises to which either electricity or gas, as the case may be, is supplied under a contract of supply entered into by the registered consumer of electricity or gas concerned.

(7) (a) A person who commits an offence under subsection (2), (3) or (5) is liable—

(i) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months or to both, or

(ii) on conviction on indictment, to a fine not exceeding €150,000 or to imprisonment for a term not exceeding 5 years or to both.

(b) A person who commits an offence under subsection (6) is liable—

(i) on summary conviction, to a class A fine, or

(ii) on conviction on indictment, to a fine not exceeding €10,000.

(8) (a) A court before which a person is convicted of an offence under subsection (2), (3) or (6) may, in addition to any penalty it may impose under subsection (7) in respect of the offence, order the person to pay, as the case may be, to the—

(i) distribution system operator,

(ii) transmission system operator,

(iii) holder of a licence to supply electricity granted under section 14 of the Act of 1999, or

(iv) holder of a licence to supply gas granted under section 16 of the Act of 2002,

either or both of the following—

(I) such sum as it is satisfied the person owes to a body mentioned above in respect of the supply of either electricity or gas and payment of which would not have been obtained by the body if the act or acts or, as the case may be, default in respect of which the person has been convicted of the offence had not been detected, or

(II) such sum as it is satisfied will compensate such a body for any damage done to an article owned by or operated by the body, being damage that has resulted from the act or acts or, as the case may be, default in respect of which the person has been convicted of the offence.

(b) In the case of proceedings in the District Court for an offence under this section, the amount that the court may order a person to pay under this subsection in respect of the offence shall not exceed an amount equal to the difference between €5,000 and the fine (if any) it has imposed on the person in respect of the offence.

(c) Notwithstanding the generality of paragraph (a), a court the subject of that paragraph may specify a rate of interest accruing on any sum the subject of clauses (I) and (II) of that paragraph for each day that the sum remains unpaid, such rate of interest to be that for the time being applicable to a civil judgment debt applied by that court.

(d) When calculating the sum owed by a person under subsection (8)(a)(I), a court may have regard to the charges prescribed by the Commission under section 16A(5).

(9) (a) A court before which a person is convicted of an offence under this section may order any thing referred to in subsection (5) which was used by the person to commit the offence or, in the case of an offence under that subsection, any thing referred to in that subsection to which the offence relates, to be forfeited and either destroyed or otherwise disposed of in such manner as the court may determine.

(b) An order under this subsection shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.

(10) Summary proceedings may be brought by—

(a) a distribution system operator or a transmission system operator, for an offence under this section, except in the case of an offence committed by a person referred to in subparagraph (ii) or (iii) of subsection (6)(a), or

(b) the Commission, in the case of an offence committed by a person referred to in subparagraph (ii) or (iii) of subsection (6)(a), acting either on its own initiative or following a request from—

(i) a distribution system operator,

(ii) a transmission system operator, or

(iii) a holder of—

(I) a licence to supply electricity granted under section 14 of the Act of 1999, or

(II) a licence to supply gas granted under section 16 of the Act of 2002.

(11) Where an offence under this section or section 16 is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to, any neglect on the part of any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person commits an offence and is liable to be proceeded against and punished as if he or she committed the first-mentioned offence.

Entry into, and search of, premises where offence under section 15 is suspected.

16.— (1) (a) Each of the following, namely—

(i) a distribution system operator,

(ii) a transmission system operator, or

(iii) the Commission,

may appoint, subject to paragraph (b), a person to be an authorised officer for the purposes of this section.

(b) A person appointed to be an authorised officer by one of the bodies referred to in paragraph (a) may only act in that capacity for the purpose of investigating offences for which the body appointing that person may bring summary proceedings in accordance with section 15(10).

(2) A person appointed under subsection (1) shall, on his or her appointment, be furnished by—

(a) a distribution system operator,

(b) a transmission system operator, or

(c) the Commission,

as the case may be, with a certificate of his or her appointment and when exercising a power conferred by this section shall, if requested by any person thereby affected, produce such certificate to that person for inspection.

(3) Subject to subsection (4), an authorised officer who suspects with reasonable cause that an offence under subsection (2), (3), (5) or (6) of section 15 has been or is being committed on or in any land, premises or vehicle (being an offence that concerns the body referred to in subsection (1) which appointed the particular authorised officer) may—

(a) enter the land or premises or, as the case may be, stop (if necessary) and board the vehicle and require the driver (if any) of the vehicle to take it to a place designated by the authorised officer, and such a vehicle may be detained at that place by the authorised officer for such period as he or she may consider necessary for the purposes of this subsection,

(b) search the land, premises or vehicle and there—

(i) make such inspections and carry out such tests as he or she thinks fit,

(ii) take any measurement or photograph or make any electrical or electronic recording which he or she considers necessary,

(iii) require any relevant person in authority to produce to him or her such documents, records or materials as are in that person’s possession or control and to give to him or her such information as he or she may reasonably require in regard to such documents, records or materials,

(iv) inspect and copy or extract information from documents, records or materials produced to him or her under subparagraph (iii) or which he or she finds, and

(v) seize any thing he or she finds (being a thing referred to in subsection (5) of section 15 or which is evidence of, or evidence related to, the commission of an offence under that subsection or subsection (2), (3) or (6) of that section, as the case may be),

on or within the land, premises or vehicle, for the purpose of determining whether or not an offence has taken place,

(c) where he or she is of the opinion that there is a potential danger to any person or property resulting from damage caused to any article in connection with the commission of an offence under subsection (2) or (3) of section 15, obtain the assistance (as appropriate) of any of the following—

(i) a registered electrical contractor appointed under section 9D of the Act of 1999,

(ii) a registered gas installer appointed by a designated body under section 9F of the Act of 1999,

(iii) a gas emergency officer appointed under section 9I of the Act of 1999,

(iv) a gas safety officer appointed under section 9J of the Act of 1999, or

(v) any other person possessing expertise relevant to the potential danger posed that the authorised officer deems appropriate,

with a view to securing the protection from the potential damage of a person or property concerned.

(4) (a) The powers of an authorised officer under subsection (3) may not be exercised in respect of any premises used as a dwelling, or so much of a vehicle or premises as constitutes a dwelling, except where the authorised officer has reasonable cause to suspect that, before a warrant could be sought in relation to the dwelling under subsection (5), any thing referred to in subsection (3)(b)—

(i) is being destroyed, disposed of or removed from the premises or vehicle, or

(ii) is likely to be destroyed, disposed of or removed from the premises or vehicle,

or where permission has been given to the authorised officer to enter the premises or dwelling in accordance with subsection 3(c).

(b) (i) Notwithstanding paragraph (a) or subsection (3), an authorised officer may request access to any land, premises or vehicle for the purpose of inspecting any article thereon or therein, and shall not be refused access by the owner or occupier of that land, premises or vehicle without legitimate excuse.

(ii) For the purpose of this paragraph, the use of the premises or vehicle concerned as a dwelling shall be regarded as a legitimate excuse.

(5) (a) Where an authorised officer in the exercise of his or her powers under this section is prevented from entering any land or premises or if an authorised officer has reason to believe that evidence of or related to a suspected offence under subsection (2), (3), (5) or (6) of section 15 may be present on or in any land or premises and that the evidence may be removed from it or destroyed or disposed of, the authorised officer or the body by whom he or she was appointed may apply to a judge of the District Court for a warrant under this subsection authorising the entry by the authorised officer onto or into the land or premises.

(b) If on application being made to him or her under this subsection, a judge of the District Court is satisfied, on information on oath of the applicant, that the authorised officer concerned has been prevented from entering such land or premises or that the authorised officer has reasonable grounds for believing the other matters referred to in paragraph (a), the judge may issue a warrant under his or her hand authorising that officer, accompanied, if the judge deems it appropriate so to provide, by such number of members of the Garda Síochána as may be specified in the warrant, at any time or times within one month from the date of the issue of the warrant, on production if so requested of the warrant, to enter, if need be by force, the land or premises concerned and exercise the powers referred to in subsection (3)(b).

(6) A person who—

(a) refuses to allow an authorised officer to enter any land or premises or board any vehicle in the exercise of his or her powers under this section, or

(b) obstructs or impedes an authorised officer in the exercise of his or her powers under this section,

commits an offence and is liable, on summary conviction, to a class A fine.

(7) Subsection (10) of section 15 with regard to summary proceedings applies to an offence under subsection (6) as it applies to an offence under that section.

(8) (a) The powers conferred by the preceding provisions of this section are not in substitution for any other powers standing conferred on an officer or employee of a body referred to in subsection (1), a member of the Garda Síochána or any other person by virtue of section 108 of the Electricity (Supply) Act 1927 or any other enactment in force immediately before the passing of this Act, or of any rule of law.

(b) A person who enters any premises pursuant to subsection (2) of section 108 of the Electricity (Supply) Act 1927 has the same power to seize anything referred to in subsection (3)(b)(v) which he or she finds on the premises in the course of exercising any power conferred on him or her by the said section 108 as an authorised officer has under subsection (3).

(9) (a) Any thing seized by an authorised officer under subsection (3)(b)(v) or by a person under subsection (8)(b) may, subject to the provisions of this subsection, be detained by that officer or the person by whom he or she is employed and either destroyed or disposed of in such manner as he or she thinks appropriate.

(b) A thing detained pursuant to paragraph (a) shall not be destroyed or disposed of under this subsection—

(i) in case an application is made under paragraph (c) in relation to the thing, save under and in accordance with an order of a judge of the District Court under that paragraph, or

(ii) in case no such application is made or such an application is made but is withdrawn, before the expiration of 3 months from the date on which the thing was seized.

(c) A person who claims an interest in a thing referred to in paragraph (a) may, not later than 3 months after the date on which the thing was seized, apply to a judge of the District Court for the District Court district in which the seizure was effected for an order directing the return to that person of the thing or, as the case may be, enabling that person to exercise the rights in or over the thing which he or she was entitled to exercise immediately before the seizure and the said judge of the District Court shall, on the hearing of the application—

(i) determine whether the thing is, in fact, a thing referred to in subsection (5) of section 15 or, as the case may be, a thing which is evidence of, or evidence related to, the commission of an offence under that subsection or subsection (2), (3) or (6) of that section, and

(ii) having regard to that determination and any other relevant matters, make such order in relation to the application as he or she considers just and equitable.

(d) A judge of the District Court may adjourn the hearing of an application made to him or her under paragraph (c) until after the conclusion of any proceedings brought for an offence under section 15 in relation to the matter concerned.

Deemed contracts.

16A.— (1) In this section—

‘contract of supply’ means an agreement entered into between a licence holder and a person for the supply of electricity or gas;

‘licence holder’ means—

(a) the holder of a licence to supply electricity granted under section 14 of the Act of 1999, or

(b) the holder of a licence to supply gas granted under section 16 of the Act of 2002.

(2) It is the duty of the owner or occupier of a premises for which there is a supply of electricity or gas provided to the premises by a licence holder and a contract of supply has expired in respect of the premises, if the owner or occupier has not entered into a contract of supply with the licence holder and continues to use the electricity or gas supplied to inform the licence holder of such use and to enter into a contract of supply with the licence holder or another licence holder for the supply of electricity or gas, as the case may be, to the premises.

(3) Where—

(a) following the expiration of a contract of supply to a premises in relation to which the owner or occupier of the premises concerned was the registered consumer of electricity or gas and which has not been renewed,

(b) a contract of supply of electricity or gas existed with a previous owner or occupier of a premises, and the current owner or occupier of the premises has not—

(i) requested the cancellation of that contract of supply, or

(ii) entered into a new contract of supply with the licence holder that was party to the previous contract of supply or with a different licence holder, or

(c) in relation to a premises where there exists a supply of electricity or gas in respect of which a contract of supply has yet to be entered into and the current owner or occupier has not entered into a contract of supply with the licence holder concerned,

and the premises continues to be supplied with electricity or gas, the owner or occupier, as the case may be, is liable for the payment, to the licence holder, of the supply (‘deemed contract’) where—

(i) the owner or occupier has been notified (by post or personal delivery) by the licence holder—

(I) that the premises has continued to be so supplied,

(II) of his or her right to enter into a contract of supply with the licence holder or with another licence holder, and

(III) of the terms and conditions of the contract which are deemed to exist from the date the owner or occupier began to take supply of electricity or gas,

and

(ii) the charges imposed under the deemed contract are—

(I) clearly identified in relation to the usage, and

(II) do not contain any penalties.

(4) Where a deemed contract has effect the licence holder concerned may charge the owner or occupier of the premises concerned for the supply of electricity or gas, as the case may be, to the premises.

(5) Subject to any regulations made by the Commission under subsection (6), a licence holder may supply electricity or gas to a premises in accordance with the terms and conditions of a deemed contract with the owner or occupier of a premises.

(6) The Commission may, by regulations, provide for the following matters with regard to deemed contracts—

(a) the date upon which the use of deemed contracts for the supply of electricity or gas to premises comes into effect,

(b) the terms and conditions to be specified in any such contract, including specific terms and conditions relating to—

(i) a class or classes of licence holder,

(ii) a class or classes of occupier or owner of premises,

(iii) a type or types of premises,

(iv) the method of determination of the quantity of electricity or gas which is to be treated as supplied to the premises concerned, or

(v) the charges that may be imposed upon the owner or occupier of premises,

(c) the time period from which and to which a deemed contract may have effect with respect to—

(i) a class or classes of licence holder,

(ii) a class or classes of occupier or owner of premises, or

(iii) a type or types of premises,

(d) the methods through which licence holders shall advise and provide information to the owners and occupiers of premises the subject of a deemed contract and to members of the public generally, and

(e) the procedures for the approval, amendment or review by the Commission of the format of the deemed contract used by the licence holder.

(7) Every regulation made under subsection (6) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.”.