Office of Public Sector Information
PART 3 continued CHAPTER 3 continued
(1) Where the Secretary of State considers it appropriate to do so in connection with the provision made by this Chapter, he may make—
(a) modifications of the conditions of a gas or electricity licence held by a particular person;
(b) modifications of the standard conditions of such licences of any type.
(2) The power to make modifications under this section includes power to make incidental, consequential or transitional modifications.
(3) Before making a modification under this section, the Secretary of State must consult—
(a) the holder of any licence being modified; and
(b) such other persons as he considers appropriate.
(4) Subsection (3) may be satisfied by consultation that took place wholly or partly before the commencement of this section.
(5) The Secretary of State must publish every modification made by him under this section.
(6) The publication must be in such manner as the Secretary of State considers appropriate.
(7) A modification under subsection (1)(a) of part of a standard condition of a licence does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part 1 of the 1989 Act or Part 1 of the Gas Act 1986 (c. 44).
(8) Where the Secretary of State makes modifications under subsection (1)(b) of the standard conditions of licences of any type, GEMA must—
(a) make (as nearly as may be) the same modifications of those standard conditions for the purposes of their incorporation in licences of that type granted after that time; and
(b) publish the modifications in such manner as it considers appropriate.
(9) The Secretary of State’s powers under this section are exercisable only during the eighteen months beginning with the commencement of this section.
(10) In section 81(2) of the Utilities Act 2000 (c. 27) (standard conditions of licences under Part 1 of the Gas Act), for “such modifications of the conditions made under Part I of the 1986 Act” substitute “any modifications made under Part 1 of the 1986 Act or under the Energy Act 2004”.
(11) In this section “gas or electricity licence” means a licence for the purposes of section 5 of the Gas Act 1986 (c. 44) or section 4 of the 1989 Act (prohibition on unlicensed activities).
(1) The modifications that may be made under section 168 include, in particular, modifications imposing conditions requiring the holder of the licence—
(a) so to modify the charges imposed by him for anything done by him in the carrying on of the licensed activities as to raise such amounts as may be determined by or under the conditions; and
(b) to pay the amounts so raised to such persons as may be so determined for the purpose of—
(i) their applying those amounts in making good any shortfall in the property available for meeting the expenses of an energy administration; or
(ii) enabling those persons to secure that those amounts are so applied.
(2) Those modifications may include modifications imposing on the licence holder an obligation to apply amounts paid to him in pursuance of conditions falling within subsection (1)(a) or (b) in making good any such shortfall.
(3) For the purposes of this section—
(a) there is a shortfall in the property available for meeting the costs of an energy administration if, in a case where a company is or has been subject to an energy administration order, the property available (apart from conditions falling within subsection (1) or (2)) for meeting relevant debts is insufficient for meeting them; and
(b) amounts are applied in making good that shortfall if they are paid in or towards discharging so much of a relevant debt as cannot be met out of the property otherwise available for meeting relevant debts.
(4) In this section “relevant debt”, in relation to a case in which a company is or has been subject to an energy administration order, means an obligation—
(a) to make payments in respect of the expenses or remuneration of any person as the energy administrator of that company;
(b) to make a payment in discharge of a debt or liability of that company arising out of a contract entered into at a time when the order was in force by the person who at that time was the energy administrator of that company;
(c) to repay the whole or a part of a grant made to that company under section 165;
(d) to repay a loan made to the company under that section, or to pay interest on such a loan;
(e) to make a payment under section 166(4); or
(f) to make a payment under section 167(5).
(1) The power to modify or apply enactments conferred on the Secretary of State by each of the sections of the Enterprise Act 2002 (c. 40) mentioned in subsection (2) includes power to make such consequential modifications of this Chapter as he considers appropriate in connection with any other provision made under that section.
(2) Those sections are—
(a) sections 248 and 277 (amendments consequential on that Act); and
(b) section 254 (power to apply insolvency law to foreign companies).
(1) In this Chapter—
“the 1986 Act” means the Insolvency Act 1986 (c. 45);
“business”, “member”, “property” and “security” have the same meanings as in the 1986 Act;
“company” means—
a company formed and registered under the Companies Act 1985 (c. 6);
an existing company; or
an unregistered company;
“court”—
in relation to a company other than a Northern Irish joint stock company, means the court having jurisdiction to wind up the company; and
in relation to a Northern Irish joint stock company, means the court that would have jurisdiction to wind it up if it were an unregistered company within the meaning of Part 5 of the 1986 Act;
“energy administration order” has the meaning given by section 154(1);
“energy administration rules” means rules made under section 411 of the 1986 Act by virtue of section 159(3) of this Act;
“energy administrator” has the meaning given by section 154(2) and is to be construed in accordance with subsection (2) of this section;
“non-GB company” means an unregistered company incorporated outside Great Britain;
“objective of the energy administration” is to be construed in accordance with section 155;
“protected energy company” has the meaning given by section 154(5);
“relevant licence” has the meaning given by section 154(5);
“unregistered company” means—
an unregistered company within the meaning of Part 5 of the 1986 Act; or
a Northern Irish joint stock company.
(2) In this Chapter references to the energy administrator of a company—
(a) include references to a person appointed under paragraph 91 or 103 of Schedule B1 to the 1986 Act, as applied by Part 1 of Schedule 20 to this Act, to be the energy administrator of that company; and
(b) where two or more persons are appointed to be the energy administrator of that company, are to be construed in accordance with the provision made under section 158(5).
(3) References in this Chapter to a person qualified to act as an insolvency practitioner in relation to a company are to be construed in accordance with Part 13 of the 1986 Act (insolvency practitioners and their qualifications); but as if references in that Part to a company included references to a Northern Irish joint stock company.
(4) For the purposes of this Chapter an application made to the court is outstanding if it—
(a) has not yet been granted or dismissed; and
(b) has not been withdrawn.
(5) For the purposes of subsection (4) an application is not to be taken as having been dismissed if an appeal against the dismissal of the application, or a subsequent appeal, is pending.
(6) An appeal shall be treated as pending for the purposes of subsection (5) if—
(a) such an appeal has been brought and has been neither determined nor withdrawn;
(b) an application for permission to appeal has been made but has not been determined or withdrawn; or
(c) no such appeal has been brought and the period for bringing an appeal is still running.
(7) References in this Chapter to Schedule B1 to the 1986 Act, or to a provision of that Schedule (except the references in subsection (2) of this section), are references to that Schedule or that provision without the modifications made by Part 1 of Schedule 20 to this Act.
(8) In this section—
“existing company” has the same meaning as in the Companies Act 1985 (c. 6) (see section 735(1) of that Act);
“Northern Irish joint stock company” means a company registered in Northern Ireland under the Joint Stock Companies Acts (as defined in section 735(3) of the Companies Act 1985).
(1) The Secretary of State must, in 2005 and in every subsequent calendar year—
(a) publish a report dealing, as regards both the short term and the long term, with the availability of electricity and gas for meeting the reasonable demands of consumers in Great Britain; and
(b) lay that report before Parliament.
(2) The report must include, in particular, overall assessments, as regards both the short term and the long term, of each of the following—
(a) generating capacity in Great Britain and its offshore waters so far as it will be utilised for generating electricity for introduction into transmission systems in Great Britain;
(b) the availability of capacity in those systems and in distribution systems in Great Britain for transmitting and distributing electricity for supply to consumers in Great Britain;
(c) the availability of capacity in infrastructure in Great Britain for use in connection with the introduction of gas into licensed pipe-line systems in Great Britain; and
(d) the availability of capacity in those systems for conveying gas to consumers in Great Britain.
(3) The report must be prepared jointly by the Secretary of State and GEMA.
(4) In this section—
“consumers” includes both existing and future consumers;
“distributing”, “distribution system”, “transmission system” and “transmitting” have the same meanings as in Part 1 of the 1989 Act;
“gas” and “gas transporter” have the same meanings as in Part 1 of the Gas Act 1986 (c. 44);
“infrastructure” includes pipe-line systems, terminals and other facilities but does not include licensed pipe-line systems;
“licensed pipe-line system” means a pipe-line system that is operated by a gas transporter for the conveyance of gas to any premises or another pipe-line system as authorised by his licence under section 7 of that Act;
“offshore waters” means, in relation to Great Britain—
so much of the territorial sea of the United Kingdom as is adjacent to Great Britain; and
waters in a Renewable Energy Zone (within the meaning of Chapter 2 of Part 2 of this Act).
(1) An appeal shall lie to the Competition Commission from a decision by GEMA to which this section applies.
(2) This section applies to a decision by GEMA if—
(a) it is a decision relating to a document by reference to which provision is made by a condition of a gas or electricity licence;
(b) that document is designated for the purposes of this section by an order made by the Secretary of State;
(c) the decision consists in the giving or refusal of a consent by virtue of which the document has effect, or would have had effect, for the purposes of the licence with modifications or as reissued; and
(d) the decision is not of a description of decisions for the time being excluded from the right of appeal under this section by an order made by the Secretary of State.
(3) An appeal against a decision may be brought under this section only by—
(a) a person whose interests are materially affected by it; or
(b) a body or association whose functions are or include representing persons in respect of interests of theirs that are so affected.
(4) The permission of the Competition Commission is required for the bringing of an appeal under this section.
(5) The Competition Commission may refuse permission only on one of the following grounds—
(a) that the appeal is brought for reasons that are trivial or vexatious;
(b) that the appeal has no reasonable prospect of success.
(6) Before making an order under this section, the Secretary of State must consult—
(a) GEMA; and
(b) such other persons as he considers appropriate.
(7) An order excluding decisions from the right of appeal under this section may provide—
(a) for the exclusion to apply only in such cases as may be determined in accordance with the order; and
(b) for a determination in accordance with the order to be made by such persons, in accordance with such procedures, and by reference to such matters and the opinions of such persons (including GEMA), as may be provided for in the order.
(8) An order made by the Secretary of State under this section is subject to the negative resolution procedure.
(9) In this section—
“consent” includes an approval or direction;
“gas or electricity licence” means a licence for the purposes of section 5 of the Gas Act 1986 (c. 44) or section 4 of the 1989 Act (prohibition on unlicensed activities).
(1) The functions of the Competition Commission with respect to appeals under section 173 of this Act are not to be regarded as comprised in its general functions for the purposes of Part 2 of Schedule 7 to the Competition Act 1998 (c. 41) (manner in which general functions are to be carried out).
(2) Instead, Schedule 22 (procedure on appeals) has effect.
(1) This section applies to every appeal brought under section 173 of this Act.
(2) In determining the appeal the Competition Commission must have regard, to the same extent as is required of GEMA, to the matters to which GEMA must have regard—
(a) in the carrying out of its principal objectives under section 4AA of the Gas Act 1986 (c. 44) and section 3A of the 1989 Act (principal objectives and general duties);
(b) in the performance of its duties under those sections; and
(c) in the performance of its duties under sections 4AB and 4A of that Act of 1986 and sections 3B and 3C of the 1989 Act (environmental and health and safety considerations).
(3) In determining the appeal the Competition Commission—
(a) may have regard to any matter to which GEMA was not able to have regard in the case of the decision appealed against; but
(b) must not, in the exercise of that power, have regard to any matter to which GEMA would not have been entitled to have regard in that case had it had the opportunity of doing so.
(4) The Competition Commission may allow the appeal only if it is satisfied that the decision appealed against was wrong on one or more of the following grounds—
(a) that GEMA failed properly to have regard to the matters mentioned in subsection (2);
(b) that GEMA failed properly to have regard to the purposes for which the relevant condition has effect;
(c) that GEMA failed to give the appropriate weight to one or more of those matters or purposes;
(d) that the decision was based, wholly or partly, on an error of fact;
(e) that the decision was wrong in law.
(5) Where the Competition Commission does not allow the appeal, it must confirm the decision appealed against.
(6) Where it allows the appeal, it must do one or more of the following—
(a) quash the decision appealed against;
(b) remit the matter to GEMA for reconsideration and determination in accordance with the directions given by the Competition Commission;
(c) where it quashes the refusal of a consent, give directions to GEMA, and to such other persons as it considers appropriate, for securing that the relevant condition has effect as if the consent had been given.
(7) A person shall not be directed under subsection (6) to do anything that he would not have power to do apart from the direction.
(8) A person to whom a direction is given under subsection (6) must comply with it; and such a direction given to a person other than GEMA shall be enforceable as if it were an order of the High Court or (in Scotland) of the Court of Session.
(9) The decision of the Competition Commission on the appeal—
(a) must be contained in an order made by the Commission;
(b) must set out the reasons for the decision;
(c) takes effect at the time specified in the order or determined in accordance with provision set out in that order;
(d) must be notified by the Commission to the persons who (within the meaning of Schedule 22) were parties to the appeal; and
(e) must be published by the Commission in such manner as it considers appropriate for bringing it to the attention of other persons likely to be affected by it.
(10) The Competition Commission may exclude from what it publishes under subsection (9)(e) any information which it is satisfied is—
(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of an undertaking to which it relates;
(b) information relating to the private affairs of an individual the disclosure of which would, or might, in its opinion, significantly harm his interests.
(11) In this section—
“consent” includes an approval or direction; and
“the relevant condition”, in relation to a decision, means the licence condition the provisions of which have effect by reference to the document to which the decision relates.
The Competition Commission’s functions with respect to appeals under section 173 of this Act shall be treated as included in—
(a) the functions for the purposes of which members of the Competition Commission are appointed under subsection (1) of section 104 of the Utilities Act 2000 (c. 27) (specialist members); and
(b) the functions for the purposes of which the members appointed under that subsection before the commencement of this section were appointed.
(1) Where the Secretary of State considers it appropriate to do so—
(a) in connection with the provision made by sections 173 to 175 and Schedule 22, or
(b) in relation to references to the Competition Commission under section 24 of the Gas Act 1986 (c. 44) or section 12 of the 1989 Act (modification references),
he may make licence modifications falling within subsection (2).
(2) Those licence modifications are—
(a) modifications of so much of the standard conditions of gas or electricity licences of any type as relates to licence charges; and
(b) such incidental, consequential or transitional modifications in connection with modifications falling within paragraph (a) as he thinks fit.
(3) Where the standard conditions of gas or electricity licences contain provision authorising the imposition of licence charges in respect of costs incurred by the Competition Commission in connection with a reference mentioned in subsection (1)(b)—
(a) the Competition Commission shall have power, on such a reference, to give directions to GEMA about the manner in which the Competition Commission’s costs in connection with that reference are to be recovered by means of such charges; and
(b) GEMA must comply with any such directions.
(4) Before making a modification under this section that applies to licences of any type, the Secretary of State must consult—
(a) the holders of the licences; and
(b) such other persons as he considers appropriate.
(5) Subsection (4) may be satisfied by consultation that took place wholly or partly before the commencement of this section.
(6) The Secretary of State must publish every modification made by him under this section.
(7) The publication must be in such manner as the Secretary of State considers appropriate.
(8) Where the Secretary of State makes modifications under this section of the standard conditions of licences of any type, GEMA must—
(a) make (as nearly as may be) the same modifications of those standard conditions for the purposes of their incorporation in licences of that type granted after that time; and
(b) publish the modifications in such manner as it considers appropriate.
(9) The Secretary of State’s powers under this section are exercisable only during the three months beginning with the commencement of this section.
(10) In this section—
“gas or electricity licence” has the same meaning as in section 173; and
“licence charges” means payments which—
under the conditions of a gas or electricity licence, are required to be paid on the grant or during the currency of the licence by the licence holder; and
are payments of amounts determined by or under the licence.
In each of section 4AA of the Gas Act 1986 (c. 44) and section 3A of the 1989 Act (principal objective and general duties), after subsection (5) insert—
“(5A) In carrying out their respective functions under this Part in accordance with the preceding provisions of this section the Secretary of State and the Authority must each have regard to—
(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and
(b) any other principles appearing to him or, as the case may be, it to represent the best regulatory practice.”
(1) For the definition of “supply” in section 4(4) of the 1989 Act, substitute—
““supply”, in relation to electricity, means its supply to premises in cases where—
(a) it is conveyed to the premises wholly or partly by means of a distribution system, or
(b) (without being so conveyed) it is supplied to the premises from a substation to which it has been conveyed by means of a transmission system,
but does not include its supply to premises occupied by a licence holder for the purpose of carrying on activities which he is authorised by his licence to carry on;”.
(2) In each of the provisions specified in subsection (3) (which all refer to electricity conveyed by distribution systems), after “distribution systems” insert “or transmission systems”.
(3) Those provisions are—
(a) section 3A(1), (5)(a) and (7) of the 1989 Act (principal objectives and general duties applying to electricity regulation);
(b) section 46A(1) of that Act (investigations by the Consumer Council);
(c) section 48(1) of that Act (publication of information and advice);
(d) section 4AA(4)(a) of the Gas Act 1986 (principal objectives and general duties applying to gas regulation); and
(e) section 17(1) of the Utilities Act 2000 (c. 27) (functions of the Consumer Council).
(4) An order under section 198 for bringing into force provisions of this section may contain any such transitional provision in connection with bringing those provisions into force as the Secretary of State thinks appropriate.
(5) The transitional provision that may be included in an order under subsection (4) includes provision which has effect by reference to determinations made in accordance with that provision by a person specified in the order.
(1) In subsection (1) of section 64 of the 1989 Act (interpretation of Part 1), for the definitions of “high voltage line” and “low voltage line” substitute—
““high voltage line” means an electric line which—
(a) if it is in Scotland or is a relevant offshore line (as defined in subsection (1A)), is of a nominal voltage of 132 kilovolts or more; and
(b) in any other case, is of a nominal voltage of more than 132 kilovolts,
and “low voltage line” shall be construed accordingly;”.
(2) After that subsection insert—
“(1A) An electric line is a relevant offshore line for the purposes of the definition in subsection (1) of “high voltage line” if—
(a) it is in an area of the territorial sea adjacent to the United Kingdom or an area designated under section 1(7) of the Continental Shelf Act 1964; and
(b) it is used—
(i) to convey electricity to a place in Scotland; or
(ii) to convey, to any other place, electricity generated by a generating station that is situated in an area mentioned in paragraph (a).”
(1) In Schedule 2B to the Gas Act 1986 (c. 44) (which sets out the gas code), for paragraph 6A substitute—
“6A (1) A pre-payment meter installed by an authorised supplier through which a consumer takes his supply of gas shall not be used to recover a sum unless—
(a) the sum is owed to an authorised supplier in respect of the supply of gas to the premises on which the meter is installed or in respect of the provision of the meter; or
(b) the recovery of the sum in that manner is permitted by both—
(i) regulations made by the Authority; and
(ii) an agreement falling within sub-paragraph (2) below between the consumer and the person to whom the sum is owed.
(2) An agreement falls within this sub-paragraph if—
(a) the person to whom the sum is owed is a person who is authorised by regulations made by the Authority to enter into agreements falling within this sub-paragraph;
(b) the agreement permits that person to use the meter in question to recover such sums as may be specified in or determined under the agreement; and
(c) the agreement complies with the requirements specified for the purposes of this sub-paragraph by regulations made by the Authority.
(3) The sums that regulations under this paragraph may permit the recovery of through a pre-payment meter include—
(a) sums owed to a person other than an authorised supplier;
(b) sums owed in respect of premises other than the premises on which the meter is installed;
(c) sums owed in respect of matters other than the supply of gas.
Energy Act 2004