Office of Public Sector Information

F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Section 82 of the M1Fair Trading Act 1973 (general provisions as to reports) shall apply in relation to reports of the [F1Competition Commission] on references under section 24 above as it applies to reports of the Commission under that Act.

(4)A report of the [F1Competition Commission] on a reference under section 24 above shall be made to the Director.

(5)Subject to subsection (6) below, the Director shall—

(a)on receiving [F4a report on a reference under section 24(1) above, send a copy of it to the licence holder] and to the Secretary of State; and

(b)not less than 14 days after that copy is received by the Secretary of State, send another copy to the Council and publish that other copy in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.

[F5(5A)Subject to subsection (6) below, the Director shall—

(a)on receiving a report on a reference under section 24(1A) above, send a copy of it to the Secretary of State; and

(b)not less than 14 days after that copy is received by the Secretary of State—

(i)send another copy to the Council and to each relevant licence holder; and

(ii)not less than 24 hours after complying with sub-paragraph (i) above, publish the copy sent to the Council in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.]

(6)If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in subsection (5) [F6or (5A)]above, direct the Director to exclude that matter from [F7the copy of the report, or (as the case may be) each copy of the report, to be sent and published as mentioned in paragraph (b) of that subsection].

26 Modification following report

(1)Where a report of the [F1Competition Commission]a reference under section 24 above—

(a)includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;

(b)specifies effects adverse to the public interest which those matters have or may be expected to have;

(c)includes conclusions to the effect that those effects could be remedied or prevented by modifications of [F2the relevant conditions]; and

(d)specifies modifications by which those effects could be remedied or prevented,

the Director shall, subject to the following provisions of this section, make such modifications of [F2the relevant conditions] as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

[F3(1A)Where at any time the Director modifies under subsection (1) above the standard conditions of licences under section 7 above, licences under subsection (1) of section 7A above or licences under subsection (2) of that section, he—

(a)shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences under that section or, as the case may be, that subsection granted after that time; and

(b)may make such incidental or consequential modifications as he considers necessary or expedient of any conditions of licences under that provision granted before that time;

and the above reference to subsection (1) above is a reference to that subsection as it applies in relation to a report on a reference under section 24(1A) above.]

(2)Before making modifications under this section, the Director shall have regard to the modifications specified in the report.

(3)Before making modifications under this section, the Director shall give notice—

(a)stating that he proposes to make the modifications and setting out their effect;

(b)stating the reasons why he proposes to make the modifications; and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by sending a copy of the notice to the [F4holder of the licence or, as the case may be, the relevant licence holders, to the Health and Safety Executive] and to the Council.

[F5(4A)After considering any representations or objections made in response to proposals set out in a notice under subsection (3), the Authority shall give notice to the Competition Commission—

(a)setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and

(b)stating the reasons for making the modifications.

(4B)The Authority shall include with the notice under subsection (4A) a copy of any representations or objections received in relation to the notice under subsection (3).

(4C)If the period of four weeks from the date on which the notice under subsection (4A) is given elapses without a direction under section 26A(1)(a) having been given to it, the Authority shall—

(a)make the modifications set out in the notice; or

(b)if a direction under section 26A(1)(b) has been given, make the modifications which are not specified in the direction.]

[F6(5)Where at any time the Director modifies standard conditions under subsection (1A)(a) above for the purposes of their incorporation in licences under section 7 or 7A(1) or (2) above granted after that time, he shall publish the modifications in such manner as he considers appropriate.]

[F7(6)The modification under subsection (1) of part of a standard condition of a particular licence in consequence of a reference under section 24(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.]

[F126A Competition Commission’s power to veto modifications following report

(1)The Competition Commission (in this section referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under section 26(4A), direct the Authority—

(a)not to make the modifications set out in that notice; or

(b)not to make such of the modifications as may be specified in the direction;

and the Authority shall comply with any such direction.

(2)The Secretary of State may, within the period of four weeks after the date on which the Commission is given a notice under section 26(4A) and on the application of the Commission, direct that the period for giving a direction under subsection (1) (and, accordingly, the period mentioned in section 26(4C)) shall be extended by 14 days.

(3)The power to give a direction under subsection (1) may only be exercised in respect of such of the modifications set out in the notice under section 26(4A)(a) as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.

(4)If the Commission gives a direction under subsection (1), the Commission—

(a)shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and

(b)shall itself make such modifications of the relevant conditions as appear to it to be requisite for the purpose of remedying or preventing—

(i)if the direction was given under subsection (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications;

(ii)if the direction was given under subsection (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 26(4C)(b).

(5)In exercising its function under subsection (4)(b) the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a licence.

(6)Before making modifications under subsection (4)(b) the Commission shall give notice—

(a)stating that it proposes to make the modifications and setting them out;

(b)stating the reason why it proposes to make them;

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7)A notice under subsection (4)(a) or (6) shall be given—

(a)by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy on the Authority and the holder of the licence in question or, as the case may be, the relevant licence holders.

(8)After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.

(9)Where, in consequence of a reference under section 24(1A), the Commission modifies under subsection (4)(b) the standard conditions of licences of any type (that is to say, licences under section 7 or section 7A(1) or 7A(2)) the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time.

(10)Where the Commission modifies the standard conditions of licences of any type as mentioned in subsection (9) the Authority—

(a)shall make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and

(b)shall publish the modifications made for those purposes in such manner as it considers appropriate.

(11)The modification under this section of part of a standard condition of a particular licence in consequence of a reference under section 24(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

(12)The provisions mentioned in subsection (13) are to apply in relation to the exercise by the Commission of its functions under this section as if—

(a)in section 82(1) and (2) of the M1Fair Trading Act 1973 references to a report of the Commission under that Act were references to a notice under subsection (4)(a), (6) or (8) of this section;

(b)in section 85 of that Act references to an investigation on a reference made to the Commission were references to an investigation by the Commission for the purposes of the exercise of its functions under this section.

(13)The provisions are—

(a)section 82(1) and (2) of the M2Fair Trading Act 1973 (general provisions as to reports under that Act);

(b)section 85 of that Act (attendance of witnesses and production of documents);

(c)section 24 of the M3Competition Act 1980 (modification of provisions about the Competition Commission’s general functions); and

(d)Part II of Schedule 7 to the M4Competition Act 1998 (the Competition Commission’s general functions).

(14)This section does not apply to the modification of a licence following a report of the Commission made before the commencement of section 83(4) of the Utilities Act 2000.]

[F127 Modification by order under other enactments

(1)Where in the circumstances mentioned in subsection (3) or (4) below the Secretary of State by order exercises any of the powers specified in Parts I and II of Schedule 8 to the M1Fair Trading Act 1973 F2. . ., the order may also provide for the modification of—

(a)the conditions of a particular licence; or

(b)the standard conditions of licences under section 7 above, licences under subsection (1) of section 7A above or licences under subsection (2) of that section,

to such extent as may appear to him to be requisite or expedient for the purpose of giving effect to or of taking account of any provision made by the order.

[F3(1A)The modification under subsection (1)(a) of part of a standard condition of a particular licence in consequence of a reference under section 24(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.]

(2)Where at any time the Secretary of State modifies under subsection (1)(b) above the standard conditions of licences under section 7 above, licences under subsection (1) of section 7A above or licences under subsection (2) of that section, he—

(a)shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences under that section or, as the case may be, that subsection granted after that time; and

(b)may, after consultation with the Director, make such incidental or consequential modifications as he considers necessary or expedient of any conditions of licences under that provision granted before that time.

(3)Subsection (1) above shall have effect where—

(a)the circumstances are as mentioned in section 56(1) of the said Act of 1973 (order on report on monopoly reference), F4. . .); and

(b)the monopoly situation exists in relation to, or (as the case may be) the anti-competitive practice relates to—

(i)the carrying on of activities authorised or [F5regulated] by a licence; or

(ii)the storage of gas on terms which have been determined by the holder of a licence under section 7 above, or could have been determined by the holder if he had thought fit or had been required to determine them by or under a condition of the licence.

(4)Subsection (1) above shall also have effect where—

(a)the circumstances are as mentioned in section 73(1) of the said Act of 1973 (order on report on merger reference); and

(b)at least one of the two or more enterprises—

(i)which ceased to be distinct enterprises; or

(ii)in the application of that provision as it has effect by virtue of section 75(4)(e) of that Act, which would cease to be distinct enterprises,

was or, as the case may be, is engaged in the carrying on of activities authorised or [F5 regulated] by a licence.

(5)Where at any time the Secretary of State modifies standard conditions under subsection (2)(a) above for the purposes of their incorporation in licences granted after that time, he shall publish those modifications in such manner as he considers appropriate.

(6)In this section expressions which are also used in the said Act of 1973 F6. . . have the same meanings as in that Act.]

[F1 Determination of disputes]

[F127A Determination of certain disputes

(1)Subject to subsection (2) below, any dispute arising under section 9(1)(b) or (2), 10 or 11 above, regulations under section 10 above, or any provision of paragraphs 2, 3, 15 or 16 of Schedule 2B to this Act, between a [F2gas transporter] or gas supplier and a person who is, or wishes to become, a [F3customer of a person authorised by a licence or exemption to supply gas]—

(a)may be referred to the Director by either party, or with the agreement of either party, by the Council; and

(b)on such a reference, shall be determined by order made either by the Director, or if he thinks fit by an arbitrator (or in Scotland arbiter) appointed by him.

(2)No dispute which—

(a)arises under section 9(1)(b) above and relates to the connection of any premises to a pipe-line system operated by a [F2gas transporter]; or

(b)arises under section 10 above, or regulations under that section, and relates to the connection of any premises to a main of such a transporter,

may be referred to the Director after the end of the period of 12 months beginning with the time when the connection is made.

(3)Any person making an order under subsection (1) above shall include in the order his reasons for reaching his decision with respect to the dispute.

(4)The practice and procedure to be followed in connection with any such determination shall be such as the Director may consider appropriate.

(5)Where any dispute between a [F2gas transporter] and a person requiring a connection to a main of the transporter falls to be determined under this section, the Director may give directions as to the circumstances in which, and the terms on which, the transporter is to connect or (as the case may be) to maintain the connection pending the determination of the dispute.

(6)Where any dispute between a gas supplier and a person requiring a supply of gas falls to be determined under this section, the Director may give directions as to the circumstances in which, and the terms on which, the supplier is to give or (as the case may be) to continue to give the supply pending the determination of the dispute.

(7)Where any dispute arising under section 11(1) above falls to be determined under this section, the Director may give directions as to the security (if any) to be given pending the determination of the dispute.

(8)Any direction under subsection (5), (6) or (7) above may be expressed to apply either in relation to a particular case or in relation to a class of case.

(9)An order under this section—

(a)may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person making the order) as that person considers appropriate; and

(b)shall be final and—

(i)in England and Wales, enforceable, in so far as it includes such provision as to costs or expenses, as if it were a judgment of a county court; and

(ii)in Scotland, enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.

(10)In including in an order under this section any such provision as to costs or expenses, the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.]