The Energy (Northern Ireland) Order 2003

Statutory Instrument 2003 No. 419 (N.I. 6)

The Energy (Northern Ireland) Order 2003

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STATUTORY INSTRUMENTS

2003 No. 419 (N.I. 6)

NORTHERN IRELAND

The Energy (Northern Ireland) Order 2003

	Made	27th February 2003
	Coming into operation in accordance with Article 1(2) and (3)

ARRANGEMENT OF ORDER

PART I
INTRODUCTORY

1.	Title and commencement

2.	Interpretation

PART II
NEW REGULATORY ARRANGEMENTS The Northern Ireland Authority for Energy Regulation

3.	The Northern Ireland Authority for Energy Regulation

4.	Transfer to Authority of functions, property, etc. of Directors

5.	Forward work programme of the Authority

6.	Annual and other reports of Authority

7.	Publication by Authority of advice and information about consumer matters

8.	Powers of Authority in relation to external matters

The energy group of the General Consumer Council

9.	The energy group of the General Consumer Council for Northern Ireland

10.	Forward work programme of the Council

General

11.	Co-operation between Authority and Council

PART III
OBJECTIVES OF REGULATION OF ELECTRICITY AND GAS Electricity

12.	The principal objective and general duties of the Department and the Authority in relation to electricity

13.	Exceptions from the general duties

Gas

14.	The principal objective and general duties of the Department and the Authority in relation to gas

15.	Exceptions from the general duties

PART IV
FUNCTIONS OF THE GENERAL CONSUMER COUNCIL

16.	Preliminary

17.	Acquisition and review of information

18.	Provision of advice and information to public authorities and other persons

19.	Provision of information to consumers

20.	Publication of statistical information about complaints

21.	Power to publish advice and information about consumer matters

22.	Consumer complaints

23.	Power of Council to investigate other matters

24.	Provision of information to Council

25.	Publication of notice of reasons

26.	Provision of information by Council to Authority

27.	Articles 24 to 26: supplementary

PART V
LICENCES New kinds of licences

28.	New kind of electricity transmission licence

29.	Conversion of existing electricity transmission licences

30.	New kind of gas conveyance licence

31.	Conversion of existing gas conveyance licences

32.	New standard conditions for gas conveyance licences

Conditions of licences

33.	Conditions of electricity licences

34.	Conditions of gas licences

35.	Standard conditions of gas licences

Modification of licences following Competition Commission report

36.	Modification of electricity licences following Competition Commission report

37.	Modification of gas licences following Competition Commission report

38.	Modification of licences: general provisions

Powers to alter licensable activities

39.	Power to alter activities requiring electricity licence

40.	Power to alter activities requiring gas licence

PART VI
ENFORCEMENT Introductory

41.	Introductory

Orders for securing compliance

42.	Orders for securing compliance

43.	Procedural requirements

44.	Validity and effect of orders

Financial penalties

45.	Financial penalties

46.	Statement of policy with respect to penalties

47.	Time limits on the imposition of financial penalties

48.	Interest and payment of instalments

49.

Appeals

50.	Recovery of penalties

Power to require information

51.	Power to require information

PART VII
ELECTRICITY FROM RENEWABLE SOURCES

52.	Obligation in connection with electricity from renewable sources

53.	Orders under Article 52: supplementary

54.	Green certificates

55.	Payment as alternative to complying with order under Article 52

56.	Power to amend this Part

57.	Non-fossil fuel obligation

58.	Abolition of fossil fuel levy

PART VIII
MISCELLANEOUS AND SUPPLEMENTARY Common tariff for conveyance of gas through designated pipe-lines

59.	Designation of pipe-lines for purposes of common tariff

60.	Modification of gas licences: common tariff for conveyance of gas through designated pipe-lines

Miscellaneous

61.	Grants for energy purposes

62.	Reasons for decisions

63.	General restrictions on disclosure of information

64.	Assignment of wayleaves

Supplementary

65.	Amendments, transitional and transitory provisions, savings and repeals

66.	Regulations, orders and directions

67.	Power to make transitional, consequential and saving provisions

SCHEDULES:

Schedule 1

The Northern Ireland Authority for Energy Regulation

Schedule 2

Orders altering licensable activities

Schedule 3

Amendments

Schedule 4

Transitional and transitory provisions and savings

Schedule 5

Repeals

At the Court at Buckingham Palace, the 27th day of February 2003
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order in Council has been approved by resolution of each House of Parliament:

Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c.1) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: -

PART I
INTRODUCTORY
Title and commencement

- (1) This Order may be cited as the Energy (Northern Ireland) Order 2003.

(2) Except as provided by paragraph (3), this Order shall come into operation on such day or days as the Department may by order appoint.

(3) The following provisions come into operation on the day after the day on which this Order is made -

Interpretation
2. - (1) The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.

(2) In this Order -

"authorised supplier" -

(a) in relation to electricity, means a person authorised by a licence or exemption to supply electricity;

(b) in relation to gas, means a person authorised by a licence or exemption to supply gas;

"the Authority" means the Northern Ireland Authority for Energy Regulation;

"consumers" includes both existing consumers and future consumers;

"the Council" means the General Consumer Council for Northern Ireland;

"the Department" means the Department of Enterprise, Trade and Investment;

"electricity licence" means a licence under Article 10 of the Electricity Order;

"the Electricity Order" means the Electricity (Northern Ireland) Order 1992 (NI 1);

"gas licence" means a licence under Article 8 of the Gas Order;

"the Gas Order" means the Gas (Northern Ireland) Order 1996 (NI 2);

"licence holder" means the holder of an electricity licence or a gas licence;

"Northern Ireland" has the same meaning as in the Northern Ireland Act 1998 (c.47);

"statutory provision" has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954.

(3) Expressions used in this Order, as regards matters relating to electricity, which are defined in Article 2 or 3 of the Electricity Order or used in Part II of that Order have the same meaning as in that Part of that Order.

(4) Expressions used in this Order, as regards matters relating to gas, which are defined in Article 2 or 3 of the Gas Order or used in Part II of that Order have the same meaning as in that Part of that Order.

PART II

NEW REGULATORY ARRANGEMENTS
The Northern Ireland Authority for Energy Regulation
The Northern Ireland Authority for Energy Regulation

- (1) There shall be a body corporate to be known as the Northern Ireland Authority for Energy Regulation (in this Order referred to as "the Authority") for the purpose of carrying out -

    (2) The functions of the Authority are performed on behalf of the Crown.

    (3) The expenses of the Authority shall be defrayed out of money appropriated for that purpose by Act of the Assembly.

    (4) The offices of Director General of Gas for Northern Ireland and Director General of Electricity Supply for Northern Ireland are abolished.

    (5) Schedule 1 has effect with respect to the Authority.

Transfer to Authority of functions, property, etc. of Directors
     4. - (1) The functions, property, rights and liabilities of the Director General of Gas for Northern Ireland and the Director General of Electricity Supply for Northern Ireland ("the Directors") are transferred to the Authority.

    (2) Any statutory provision or any document which -

(a) refers to either of the Directors; and

(b) was passed or made before the transfer effected by paragraph (1),

shall have effect after the transfer, so far as necessary for the purposes of or in consequence of the transfer, as if references to the Director were references to the Authority.

(3) Anything which -

(a) has been done by or in relation to either of the Directors for the purpose of or in connection with anything transferred by this Article; and

(b) is in effect immediately before it is transferred,

shall be treated as if done by or in relation to the Authority.

(4) Anything (including legal proceedings) which -

(a) relates to anything transferred; and

(b) is in the process of being done by or in relation to either of the Directors immediately before it is transferred,

may be continued by or in relation to the Authority.

    (5) Nothing in this Article affects the validity of anything done by or in relation to either of the Directors before the transfer takes effect.

Forward work programme of the Authority
     5. - (1) The Authority shall, before each financial year, publish a document (the "forward work programme") containing a general description of the projects, other than those comprising routine activities in the exercise of its functions, which it plans to undertake during the year.

    (2) That description shall include the objectives of each project.

    (3) The forward work programme for any year shall also include an estimate of the overall expenditure which the Authority expects to incur during the year in the exercise of its functions.

    (4) Before publishing the forward work programme for any year, the Authority shall give notice -

(a) containing a draft of the forward work programme; and

(b) specifying the time within which representations or objections to the proposals contained in it may be made,

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

(5) The notice under paragraph (4) shall be published by the Authority in such manner as it considers appropriate for the purpose of bringing the matters contained in it to the attention of persons likely to be affected by them.

Annual and other reports of Authority
6. - (1) The Authority shall, as soon as practicable after the end of each financial year, make to the Department of Enterprise, Trade and Investment (in this Order referred to as "the Department") a report (the "annual report" for that year) on -

(a) its activities during that year; and

(b) the activities of the Competition Commission during that year in respect of any references made by the Authority.

(2) The annual report for each year shall include -

(a) a general survey of developments in respect of matters falling within the scope of the Authority's functions;

(b) a report on the progress of the projects described in the forward work programme for that year;

(c) a summary of final and provisional orders made, and penalties imposed, by the Authority under Part VI during the year; and

(d) a report on such other matters as the Department may from time to time require.

(3) The annual report for each year shall set out any general directions given by the Department under -

(a) Article 50(2) of the Electricity (Northern Ireland) Order 1992 (NI 1) (in this Order referred to as "the Electricity Order"); or

(b) Article 27(2) of the Gas (Northern Ireland) Order 1996 (NI 2) (in this Order referred to as "the Gas Order").

(4) The Department shall consult the Authority before exercising the power under paragraph (2)(d) in relation to any matter.

(5) The Department shall -

(a) lay a copy of each annual report before the Assembly; and

(b) arrange for the report to be published in such manner as the Department considers appropriate.

    (6) The Authority shall also make to the Department such reports with respect to the matters mentioned in paragraph (2)(a) or (b) as the Department may require and the Authority shall, if the Department so directs, arrange for copies of any report under this paragraph to be published in such manner as is specified in the direction.

    (7) The Authority may also prepare other reports with respect to any matter falling within the scope of its functions and may arrange for any such report to be published in such manner as it considers appropriate.

    (8) The Authority shall send -

(a) a copy of each annual or other report published under this Article to the General Consumer Council for Northern Ireland (in this Order referred to as "the Council"); and

(b) a copy of each report under paragraph (7) to the Department.

    (9) In making or preparing any report under this Article the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

    (10) Paragraph 12A of Schedule 7 to the Competition Act 1998 (c.41) (annual reports of Competition Commission) does not apply to activities of the Competition Commission on which the Authority is required to report under this Article.

Publication by Authority of advice and information about consumer matters
     7. - (1) If it appears to the Authority that the publication of any advice and information would promote the interests of consumers in relation to gas or electricity supplied by authorised suppliers, the Authority may publish that advice or information in such manner as it thinks fit.

    (2) In publishing advice or information under this Article the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

    (3) Before deciding to publish under this Article any advice or information relating to a particular individual or body of persons the Authority shall consult that individual or body.

    (4) The Office of Fair Trading shall consult the Authority before publishing under section 6 of the Enterprise Act 2002 (c.40) any information or advice which may be published by the Authority under this Article.

Powers of Authority in relation to external matters
     8. - (1) The Authority may liaise, co-operate and enter into arrangements with relevant persons in -

(a) any other part of the United Kingdom;

(b) any other member State;

(c) any other State in which there is a gas pipe-line or electricity transmission system which is or may be connected (directly or indirectly) to a gas pipe-line or electricity transmission system in Northern Ireland.

(2) In paragraph (1) "relevant persons" means -

(a) persons exercising functions in relation to electricity or gas which correspond to any of those of the Authority or the Department; and

(b) persons whose activities consist of or include -

The energy group of the General Consumer Council

The energy group of the General Consumer Council for Northern Ireland
9. - (1) The Council shall establish a group in connection with the exercise of the Council's functions in relation to energy.

(2) Accordingly, in paragraph 10(1) of Schedule 1 to the General Consumer Council (Northern Ireland) Order 1984 (NI 12) after head (b) there shall be inserted -

(3) The following bodies are abolished -

(a) the group established by the Council under paragraph 10(1)(d) of Schedule 1 to the General Consumer Council (Northern Ireland) Order 1984 in connection with the exercise of the Council's functions in relation to the supply of energy (other than electricity); and

(b) the Consumer Committee for Electricity, established under Article 7 of the Electricity Order.

(4) In the following provisions of this Part references to the Council's relevant functions are references to the functions of the Council under -

(a) the Electricity Order;

(b) the Gas Order; and

(c) this Order.

Forward work programme of the Council
     10. - (1) The Council shall, before each financial year, publish a document (the "forward work programme") containing a general description of the projects which it plans to undertake during the year in the exercise of its relevant functions (other than projects comprising routine activities in the exercise of those functions).

    (2) That description shall include the objectives of each project.

    (3) The forward work programme for any year shall also include an estimate of the overall expenditure which the Council expects to incur during the year in the exercise of its relevant functions.

    (4) Before publishing the forward work programme for any year, the Council shall give notice -

(a) containing a draft of the forward work programme; and

(b) specifying the time within which representations or objections to the proposals contained in it may be made,

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

(5) The notice under paragraph (4) shall be published by the Council in such manner as it considers appropriate for the purpose of bringing the matters contained in it to the attention of persons likely to be affected by them.

(6) The Council shall send a copy of any notice given by it under paragraph (4) to the Authority and the Department.

General

Co-operation between Authority and Council

11.

- (1) The Authority and the Council (in respect of its relevant functions) shall make arrangements with a view to securing -

    (2) As soon as practicable after agreement is reached on those arrangements, the Authority and the Council shall prepare a memorandum setting them out and send a copy of it to the Department.

    (3) Arrangements under this Article shall be kept under review by the Authority and the Council.

    (4) As soon as practicable after agreement is reached on any changes to those arrangements, the Authority and the Council shall revise their memorandum and send a copy of the revised memorandum to the Department.

    (5) The Department shall lay a copy of any document received by it under this Article before the Assembly.

PART III
OBJECTIVES OF REGULATION OF ELECTRICITY AND GAS
Electricity
The principal objective and general duties of the Department and the Authority in relation to electricity

12.

- (1) The principal objective of the Department and the Authority in carrying out their respective electricity functions is to protect the interests of consumers of electricity supplied by authorised suppliers, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the generation, transmission or supply of electricity.

(2) The Department and the Authority shall carry out those functions in the manner which it considers is best calculated to further the principal objective, having regard to -

(3) In performing that duty, the Department or the Authority shall have regard to the interests of -

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(4) The Department and the Authority may, in carrying out any electricity functions, have regard to the interests of consumers in relation to gas.

(5) Subject to paragraph (2), the Department and the Authority shall carry out their respective electricity functions in the manner which it considers is best calculated -

and shall have regard, in carrying out those functions, to the effect on the environment of activities connected with the generation, transmission or supply of electricity.

(6) In this Article "electricity functions" means -

Exceptions from the general duties
13. - (1) Article 12 does not apply in relation to functions of the Department under -

(a) Article 39, 40, 58, 59 or 60 of the Electricity Order; or

(b) Article 61.

(2) Article 12 does not apply in relation to anything done by the Authority -

(a) in the exercise of functions relating to the determination of disputes; or

(b) in the exercise of functions under -

(3) The Authority may nevertheless, when exercising any function under Article 46 (3) of the Electricity Order, have regard to any matter in respect of which a duty is imposed by Article 12 if it is a matter to which the Office of Fair Trading could have regard when exercising that function.

(4) The duties imposed by Article 12 do not affect the obligation of the Authority or the Department to perform or comply with any other duty or requirement (whether arising under this Order or another statutory provision, by virtue of any Community obligation or otherwise).

Gas

The principal objective and general duties of the Department and the Authority in relation to gas

14.

- (1) The principal objective of the Department and the Authority in carrying out their respective gas functions is to promote the development and maintenance of an efficient, economic and co-ordinated gas industry in Northern Ireland.

(2) The Department and the Authority shall carry out those functions in the manner which it considers is best calculated to further the principal objective, having regard to -

(3) In performing that duty, the Department or the Authority shall have regard to the interests of -

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(4) The Department and the Authority may, in carrying out any gas functions, have regard to the interests of consumers in relation to electricity.

(5) Subject to paragraph (2), the Department and the Authority shall carry out their respective gas functions in the manner which it considers is best calculated -

and shall have regard, in carrying out those functions, to the effect on the environment of activities connected with the conveyance, storage or supply of gas.

(6) In this Article "gas functions" means -

Exceptions from the general duties
15. - (1) Article 14 does not apply in relation to functions of the Department under -

(a) Article 40 of the Gas Order; or

(b) Article 61.

(2) Article 14 does not apply in relation to anything done by the Authority in the exercise of functions under -

(a) Article 23(3) of the Gas Order; or

(b) Article 8.

(3) The Authority may nevertheless, when exercising any function under Article 23(3) of the Gas Order, have regard to any matter in respect of which a duty is imposed by Article 14 if it is a matter to which the Office of Fair Trading could have regard when exercising that function.

(4) The duties imposed by Article 14 do not affect the obligation of the Authority or the Department to perform or comply with any other duty or requirement (whether arising under this Order or another statutory provision, by virtue of any Community obligation or otherwise).

PART IV

FUNCTIONS OF THE GENERAL CONSUMER COUNCIL
Preliminary

16.

- (1) In this Part -

"the interests of consumers" means the interests of consumers in relation to gas or electricity supplied by authorised suppliers; and

"consumer matter" means any matter connected with the interests of consumers.

(2) In considering the interests of consumers the Council shall have regard to the interests of -

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

Acquisition and review of information
17. - (1) The Council shall obtain and keep under review -

(a) information about consumer matters; and

(b) information about the views of consumers on such matters.

(2) Where the Authority is required by any provision of this Order, the Electricity Order or the Gas Order to publish a notice or any other document, the Authority shall send a copy of the document to the Council.

Provision of advice and information to public authorities and other persons
18. - (1) The Council may -

(a) make proposals, or provide advice and information, about consumer matters; and

(b) represent the views of consumers on such matters,

to public authorities, persons authorised by a licence or exemption under the Electricity Order or the Gas Order and other persons whose activities may affect the interests of consumers.

(2) Subject to paragraph (5), information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be disclosed in the exercise of the Council's power under this Article unless one or more of sub-paragraphs (a) to (c) of paragraph (3) applies to the information.

(3) Information relating to a particular individual or body may be disclosed if -

(a) the individual or body has consented to the disclosure;

(b) it is information that is available to the public from some other source; or

(c) it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.

(4) Before deciding to disclose any information relating to a particular individual or body in pursuance of paragraph (3)(c), the Council shall -

(a) consult that individual or body; and

(b) have regard to any opinion expressed by the Authority as to the application of paragraph (3)(c) to the information or as to the desirability or otherwise of its disclosure;

and sub-paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

    (5) Paragraphs (2) to (4) do not apply to a disclosure of information which is made to the Authority, the Department, the Competition Commission or any other public authority.

Provision of information to consumers
     19. - (1) The Council may provide information about consumer matters, in such form as appears to the Council to be most useful to the recipients, to consumers of electricity or gas supplied by authorised suppliers.

    (2) The power conferred by paragraph (1) may be exercised by -

(a) publishing information in any manner the Council thinks appropriate for the purpose of bringing it to the attention of those likely to be interested; or

(b) furnishing information to any consumer (whether in response to a request or otherwise).

(3) Information may only be disclosed in the exercise of that power if it is information that is available to the public from some other source.

Publication of statistical information about complaints
20. - (1) The Council may publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate in relation to -

(a) complaints made by consumers about any matter relating to the activities of the holders of licences under -

(b) the handling of such complaints.

    (2) In paragraph (1) "complaints" includes complaints made directly to the licence holders concerned (or anyone carrying on activities on their behalf) and complaints to the Authority or the Council.

Power to publish advice and information about consumer matters
     21. - (1) If it appears to the Council that the publication of any advice and information about consumer matters (including information about the views of consumers on such matters) would promote the interests of consumers, the Council may publish that advice or information in such manner as it thinks fit.

    (2) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be published under this Article unless one or more of sub-paragraphs (a) to (c) of paragraph (3) applies to the information.

    (3) Information relating to a particular individual or body may be published if -

(a) that individual or body has consented to the publication;

(b) it is information that is available to the public from some other source; or

(c) it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.

(4) Before deciding to publish any information relating to a particular individual or body in pursuance of paragraph (3)(c), the Council shall -

and sub-paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

Consumer complaints
22. - (1) This Article applies to a complaint which any customer or potential customer of, or user of electricity or gas supplied by, an authorised supplier ("the complainant") has in his capacity as such against -

(a) the supplier, in respect of any matter connected with the services provided by him in the course of carrying on regulated activities; or

(b) any other person authorised by a licence or exemption, in respect of any matter affecting those services which is connected with the carrying on by that other person of regulated activities.

    (2) Where a complaint to which this Article applies (other than one appearing to it to be frivolous or vexatious) is referred to the Council by or on behalf of the complainant, the Council shall (subject to paragraph (5)) investigate the complaint for the purpose of determining whether it is appropriate to take any action under paragraph (6).

    (3) Where it appears to the Council that the complaint relates to a matter in respect of which any enforcement function is or may be exercisable the Council shall (unless it considers that the Authority already has notice of that matter) inform the Authority of the matter.

    (4) Where it appears to the Council that the complaint relates to a matter which constitutes a dispute of a kind which can be referred to the Authority under any provision of the Electricity Order, the Council shall inform the complainant that he may have the right to refer the dispute to the Authority.

    (5) The Council is not required by this Article -

(a) to investigate a complaint, until the complainant has taken such steps as appear to the Council to be reasonable for him to take for the purpose of giving the person against whom the complaint is made a reasonable opportunity to deal with the complaint;

(b) to investigate any matter to which paragraph (3) applies, until the Authority has had a reasonable opportunity to exercise any enforcement function in respect of that matter; or

(c) to investigate any matter constituting a dispute which has been referred to the Authority under any provision of the Electricity Order.

(6) Where it appears to the Council to be appropriate to do so with a view to assisting in reaching a satisfactory resolution of a complaint referred to it under this Article, the Council shall make representations on behalf of the complainant to the person against whom the complaint is made about anything to which the complaint relates.

(7) After investigating a complaint the Council may make a report to the Authority; and such a report may include information about -

(a) any representations made by the Council under paragraph (6); and

(b) the response of the person against whom the complaint is made to the complaint or any such representations.

(8) No report under paragraph (7), or information about a complaint referred to the Council under this Article from which the complainant may be identified, shall be published or disclosed by the Council or the Authority in the exercise of any power under the Electricity Order, the Gas Order or this Order, without the consent of the complainant.

(9) Where a representation made to the Authority about any matter (other than one appearing to it to be frivolous or vexatious) appears to the Authority -

(a) to be about a matter which is or amounts to a complaint to which this Article applies; and

(b) to have been made by or on behalf of the complainant,

the Authority shall refer the complaint to the Council.

(10) In this Article -

"enforcement function" means a function under Article 42 or 45;

"regulated activities" means activities which are authorised or regulated by a licence or exemption.

Power of Council to investigate other matters
     23. - (1) The Council may investigate any matter (not being a matter which it is its duty to investigate under this Part) which appears to it to be a matter relating to the interests of consumers in relation to electricity or gas supplied by authorised suppliers.

    (2) Where the Council has investigated a matter under this Article it may make a report on that matter to the Authority, the Department, the Office of Fair Trading or any other public authority whose functions appear to the Council to be exercisable in relation to that matter.

    (3) Subject to paragraph (4), the Council may -

(a) send a report on any matter investigated under this Article to any person who appears to the Council to have an interest in that matter; and

(b) publish any such report in such manner as the Council thinks appropriate.

(4) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be included in a report which is to be sent to any person under paragraph (3)(a) or published under paragraph (3)(b), unless one or more of sub-paragraphs (a) to (c) of paragraph (5) applies.

(5) Information relating to a particular individual or body may be included in such a report if -

(a) that individual or body has consented to the disclosure;

(b) it is information that is available to the public from some other source; or

(c) it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.

(6) Before deciding to include in such a report any information relating to a particular individual or body in pursuance of paragraph (5)(c), the Council shall -

(a) consult that individual or body; and

(b) have regard to any opinion expressed by the Authority as to the application of paragraph (5)(c) to the information or as to the desirability or otherwise of its inclusion in the report;

and sub-paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

    (7) The power to undertake an investigation under this Article includes, without prejudice to the generality of paragraph (1), power to investigate any matter relating to, or to anything connected with, gas fittings (or their use) or the use of gas.

    (8) In paragraph (7), "gas fittings" means gas fittings (within the meaning of paragraph 1 of Schedule 5 to the Gas Order) which are used or intended to be used by persons supplied with gas by authorised suppliers.

Provision of information to Council
     24. - (1) The Council may direct -

(a) the Authority; or

(b) the holder of a gas licence or an electricity licence,

to supply to it, in such form as it may reasonably specify, such information specified or described in the direction as it may require for the purpose of exercising its functions.

    (2) A person to whom a direction under this Article is given shall comply with it as soon as is reasonably practicable.

    (3) Before giving a direction under this Article and in specifying the form in which any information is to be supplied, the Council shall have regard to the desirability of minimising the costs, or any other detriment, to the Authority or licence holder.

    (4) If the Authority fails to comply with a direction under this Article it shall, if so required by the Council, give notice to the Council of the reasons for its failure.

Publication of notice of reasons
     25. - (1) Subject to the following provisions of this Article, the Council may publish a notice given to it under Article 24(4).

    (2) Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall be excluded from any notice published under paragraph (1) unless one or more of sub-paragraphs (a) to (c) of paragraph (3) applies to the information.

    (3) Information relating to a particular individual or body may be published if -

(4) Before deciding to publish any information relating to a particular individual or body in pursuance of paragraph (3)(c), the Council shall -

and sub-paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

Provision of information by Council to Authority
     26. - (1) The Authority may direct the Council to supply to it, in such form as it may reasonably specify, such information specified or described in the direction as it may require for the purpose of exercising its functions.

    (2) The Council shall comply with a direction under this Article as soon as is reasonably practicable.

    (3) Where the Council refuses to supply any information under paragraph (1), it shall give notice to the Authority of its reason for the refusal and the Authority may publish that notice in such manner as it considers appropriate.

    (4) In publishing any notice under this Article the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that person or body.

Articles 24 to 26: supplementary
     27. - (1) The Department may make regulations prescribing -

(a) descriptions of information which the Authority, a licence holder or the Council may refuse to supply under Article 24 or 26; or

(b) circumstances in which the Authority, a licence holder or the Council may refuse to comply with a direction under Article 24 or 26.

    (2) The Council may, if no person is prescribed for the purpose under paragraph (3), refer a failure by a licence holder to comply with a direction under Article 24 to the Authority.

    (3) The Department may make regulations for the purpose of enabling a failure to comply with a direction under Article 24 or 26 to be referred by the person who gave the direction to such person (other than the Authority) as may be prescribed by the regulations.

    (4) A person to whom such a failure is referred (whether under paragraph (2) or regulations under paragraph (3)) shall -

(a) consider any representations made by either party;

(b) determine whether the person failing to comply with the direction is entitled to refuse to do so and, if not, order him to comply with the direction; and

(c) give notice of his determination and any order under paragraph (b), with reasons, to both parties.

(5) A notice under paragraph (4) may be published by either party to the reference; and paragraphs (2) to (4) of Article 25 apply to the publication of such a notice as they apply to the publication of a notice under Article 24(4).

PART V

LICENCES
New kinds of licences
New kind of electricity transmission licence

28.

- (1) Part II of the Electricity Order shall be amended as follows.

(2) In Article 8(1) (prohibition on unlicensed activities in connection with supply of electricity) for sub-paragraph (b) there shall be substituted -

(3) In Article 8, after paragraph (3) there shall be inserted -

(5) Where different people have different interests in anything which forms part of a transmission system, only the person in actual possession of the thing may be regarded for the purposes of paragraph (4) as making it available for use.".

(4) In Article 10(1) (licences authorising supply etc.) for sub-paragraph (b) there shall be substituted -

(5) After Article 10 there shall be inserted -

" Transmission licences

10A.

- (1) A transmission licence may authorise the holder to participate in the transmission of electricity in any area, or only in an area specified in the licence.

(2) The Authority may, with the consent of the holder of a transmission licence, modify any term included in the licence in pursuance of paragraph (1).

(3) Without prejudice to the generality of Article 11(1)(a), conditions included in a transmission licence by virtue of that sub-paragraph may -

Conversion of existing electricity transmission licences
29. - (1) In this Article -

(a) references to an existing transmission licence are to a licence under Article 10(1)(b) of the Electricity Order which is in force immediately before the commencement date; and

(b) references to the commencement date are to the date on which Article 28 comes into operation.

(2) An existing transmission licence shall have effect on and after the commencement date -

(a) as a licence under Article 10(1)(b) of the Electricity Order (as amended by Article 28) authorising the holder to participate in the transmission of electricity in the area which for the purposes of his existing transmission licence was his authorised area; and

(b) with such incidental, consequential and supplementary modifications as appear to the Department to be necessary or expedient.

(3) Modifications under paragraph (2)(b) may relate to -

(a) the terms of a licence, or

(b) the conditions of a licence.

(4) As soon as practicable after the commencement date, the Department shall publish the text of each licence modified under this Article.

(5) Before modifying any licence under paragraph (2)(b), the Department shall consult -

(a) the Authority; and

(b) the holder of the licence,

in such manner as it considers appropriate.

    (6) Paragraph (5) may be satisfied by consultation before, as well as by consultation after, the commencement date.

New kind of gas conveyance licence
     30. - (1) Part II of the Gas Order shall be amended as follows.

    (2) In Article 6(1) (prohibition on unlicensed activities in connection with supply of gas) for sub-paragraph (a) there shall be substituted -

(3) In Article 6, after paragraph (3) there shall be inserted -

" (4) For the purposes of this Part, a person participates in the conveyance of gas if -

(5) Where different people have different interests in a pipe-line, only the person with actual possession of the pipe-line may be regarded for the purposes of paragraph (4) as making it available for use.".

(4) In Article 8(1) (licences authorising supply, etc.) for sub-paragraph (a) there shall be substituted -

(5) After Article 8 there shall be inserted -

" Licences under Article 8(1)(a)

8A.

- (1) A licence under Article 8(1)(a) may authorise the holder to participate in the conveyance of gas in any area, or only in an area specified in the licence.

(2) The Authority may, with the consent of the holder of a licence under Article 8(1)(a), modify any term included in the licence in pursuance of paragraph (1).

(3) Conditions included in a licence under Article 8(1)(a) by virtue of Article 10(1)(a) may (without prejudice to the generality of that sub-paragraph) -

Conversion of existing gas conveyance licences
31. - (1) In this Article -

(a) references to an existing conveyance licence are to a licence under Article 8(1)(a) of the Gas Order which is in force immediately before the commencement date; and

(b) references to the commencement date are to the date on which Article 30 comes into operation.

(2) An existing conveyance licence shall have effect on and after the commencement date -

(a) as a licence under Article 8(1)(a) of the Gas Order (as amended by Article 30) authorising the holder to participate in the conveyance of gas in the area which for the purposes of his existing conveyance licence was his authorised area; and

(b) with such incidental, consequential and supplementary modifications as appear to the Department to be necessary or expedient.

(3) Modifications under paragraph (2)(b) may relate to -

(a) the terms of a licence, or

(b) the conditions of a licence.

(4) The Department may make such incidental, consequential and supplementary modifications as appear to the Department to be necessary or expedient to the standard conditions of licences under Article 8(1)(a) of the Gas Order.

(5) As soon as practicable after the commencement date, the Department shall publish -

(a) the text of each licence modified under this Article; and

(b) if the standard conditions of licences under Article 8(1)(a) have been modified under paragraph (4), the text of those conditions as modified.

(6) Before modifying any licence under paragraph (2)(b), the Department shall consult -

(a) the Authority; and

(b) the holder of the licence,

in such manner as it considers appropriate.

    (7) Paragraph (6) may be satisfied by consultation before, as well as by consultation after, the commencement date.

    (8) Any modification of part of a standard condition of a licence under this Article shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part II of the Gas Order.

    (9) Where at any time the Department modifies under this Article the standard conditions of licences under Article 8(1)(a) of the Gas Order, it shall also 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.

New standard conditions for gas conveyance licences
     32. - (1) Such conditions as may be determined by the Department and published by it in such manner as it considers appropriate shall be standard conditions for the purposes of licences under Article 8(1)(a) of the Gas Order in place of the conditions determined in relation to such licences under Article 11(1) of that Order.

    (2) No conditions shall be determined under paragraph (1) after the commencement of paragraph (3).

    (3) In Article 11 of the Gas Order -

(a) in paragraph (1) for "sub-paragraph (a), (b) or (c)" there shall be substituted "sub-paragraph (b) or (c)"; and

(b) in paragraph (2) after "paragraph (1)" there shall be inserted "or Article 32(1) of the Energy (Northern Ireland) Order 2003".

(4) As soon as practicable after the commencement of paragraph (3), the Department shall make to a licence in force under Article 8(1)(a) -

(a) such modifications as appear to the Department to be necessary or expedient for the purpose of securing that the standard conditions determined under paragraph (1) are incorporated in that licence (or incorporated with such modifications as the Department considers requisite to meet the circumstances of the case);

(b) such incidental, consequential and supplementary modifications as appear to the Department to be necessary or expedient; and

(c) such other modifications as may be agreed with the licence holder.

(5) Modifications under paragraph (4) may relate to -

(a) the terms of a licence, or

(b) the conditions of a licence.

(6) As soon as practicable after making any modifications under paragraph (4), the Department shall publish the text of each licence modified under that paragraph.

(7) Before modifying any licence under paragraph (4)(a) or (b), the Department shall consult -

(a) the Authority; and

(b) the holder of the licence,

in such manner as it considers appropriate.

(8) Paragraph (7) may be satisfied by consultation before, as well as by consultation after, the commencement of paragraph (3).

(9) Any modification of part of a standard condition of a licence under this Article shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part II of the Gas Order.

Conditions of licences

Conditions of electricity licences

33.

- (1) Article 11 of the Electricity Order (conditions of licences) shall be amended as follows.

(2) In paragraph (3) -

(3) After paragraph (3) there shall be inserted -

(4) For paragraph (5) there shall be substituted -

(5) After paragraph (6) there shall be inserted -

Conditions of gas licences
34. - (1) Article 10 of the Gas Order (conditions of licences) shall be amended as follows.

(2) In paragraph (3) -

(a) for "Conditions included in a licence under paragraph (1)(a)" there shall be substituted "Without prejudice to the generality of paragraph (1)(a), conditions included in a licence by virtue of that sub-paragraph";

(b) in sub-paragraph (c) after "licence" (in the first place it appears) there shall be inserted ", or under any document referred to in the licence,".

(3) After paragraph (3) there shall be inserted -

" (3A) Conditions included in a licence under Article 8(1)(a) by virtue of paragraph (1)(a) may require the holder, in such circumstances as are specified in the licence -

(4) For paragraph (5) there shall be substituted -

" (5) Conditions included in a licence may contain provision for the conditions -

(5) After paragraph (6) there shall be inserted -

" (6A) Conditions included in a licence may provide for references in the conditions to any document to operate as references to that document as revised or re-issued from time to time.".

Standard conditions of gas licences
35. In Article 11 of the Gas Order (standard conditions of licences) after paragraph (1) there shall be inserted -

" (1A) The standard conditions for the purposes of licences under sub-paragraph (a), (b) or (c) of Article 8(1) may contain provision -

Modification of licences following Competition Commission report

Modification of electricity licences following Competition Commission report
36. - (1) In Article 17 of the Electricity Order after paragraph (4) there shall be inserted -

" (5) After considering any representations or objections made in response to proposals set out in a notice under paragraph (3) the Authority shall give notice to the Competition Commission -

(6) The Authority shall include with the notice under paragraph (5) a copy of any representations or objections received in relation to the notice under paragraph (3).

(7) If the period of four weeks from the date on which the notice under paragraph (5) is given elapses without a direction under Article 17A(1)(a) having been given to it, the Authority shall -

(2) After Article 17 of the Electricity Order there shall be inserted -

" Competition Commission's power to veto modifications following report

17A.

- (1) The Competition Commission (in this Article referred to as "the Commission") may, within the period of four weeks after the date on which it is given a notice under Article 17(5), direct the Authority -

and the Authority shall comply with any such direction.

    (2) The Department may, within the period of four weeks after the date on which the Commission is given a notice under Article 17(5) and on the application of the Commission, direct that the period for giving a direction under paragraph (1) (and, accordingly, the period mentioned in Article 17(7)) shall be extended by 14 days.

    (3) The power to give a direction under paragraph (1) may only be exercised in respect of such of the modifications set out in the notice under Article 17 (5)(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 paragraph (1), the Commission -

(5) In exercising its function under paragraph (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 paragraph (4)(b) the Commission shall give notice -

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

(7) A notice under paragraph (4)(a) or (6) shall be given -

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

    (9) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph (4)(a), (6) or (8).

    (10) In giving any notice under paragraph (4)(a) or (6), or publishing any notice under paragraph (8), the Commission shall have regard to the following considerations before disclosing any information.

    (11) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

    (12) The second consideration is the need to exclude from disclosure (so far as practicable) -

(13) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (12)(a) or (b) is necessary for the purposes of the notice.

(14) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (15) and (16), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this Article, as they apply for the purposes of any investigation on references under that Part -

(15) Section 110 shall, in its application by virtue of paragraph (14), have effect as if -

(16) Section 111 (5)(b) shall, in its application by virtue of paragraph (14), have effect as if for sub-paragraph (ii) there were substituted -

(17) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (14), have effect in relation to those sections as applied by virtue of that paragraph.

(18) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.".

Modification of gas licences following Competition Commission report
37. - (1) In Article 17 of the Gas Order after paragraph (5) there shall be inserted -

" (5A) After considering any representations or objections made in response to proposals set out in a notice under paragraph (4), the Authority shall give notice to the Competition Commission -

(5B) The Authority shall include with the notice under paragraph (5A) a copy of any representations or objections received in relation to the notice under paragraph (4).

(5C) If the period of four weeks from the date on which the notice under paragraph (5A) is given elapses without a direction under Article 17A(1)(a) having been given to it, the Authority shall -

(2) After Article 17 of the Gas Order there shall be inserted -

" Competition Commission's power to veto modifications following report

17A.

and the Authority shall comply with any such direction.

    (2) The Department may, within the period of four weeks after the date on which the Commission is given a notice under Article 17(5A) and on the application of the Commission, direct that the period for giving a direction under paragraph (1) (and, accordingly, the period mentioned in Article 17(5C)) shall be extended by 14 days.

    (3) The power to give a direction under paragraph (1) may only be exercised in respect of such of the modifications set out in the notice under Article 17(5A)(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 paragraph (1), the Commission -

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

(7) A notice under paragraph (4)(a) or (6) shall be given -

    (8) After making modifications under this Article 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 Article 15 (2) the Commission modifies under paragraph (4)(b) the standard conditions of licences of any type (that is to say, licences under Article 8(1)(a) or (b) or (c)) 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 paragraph (9) the Authority -

    (11) The modification under this Article of part of a standard condition of a particular licence in consequence of a reference under Article 15(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) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph (4)(a), (6) or (8).

    (13) In giving any notice under paragraph (4)(a) or (6), or publishing any notice under paragraph (8), the Commission shall have regard to the following considerations before disclosing any information.

    (14) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

    (15) The second consideration is the need to exclude from disclosure (so far as practicable) -

(16) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (15)(a) or (b) is necessary for the purposes of the notice.

(17) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (18) and (19), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this Article, as they apply for the purposes of any investigation on references under that Part -

(18) Section 110 shall, in its application by virtue of paragraph (17), have effect as if -

(19) Section 111 (5)(b) shall, in its application by virtue of paragraph (17), have effect as if for sub-paragraph (ii) there were substituted -

(20) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (17), have effect in relation to those sections as applied by virtue of that paragraph.

(21) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.".

Modification of licences: general provisions
38. - (1) In exercising any power to modify an electricity licence under the Electricity Order or this Order, the Department, the Authority, the Secretary of State, the Office of Fair Trading or the Competition Commission (as the case may be) shall have regard to the requirements and prohibitions laid down in European Parliament and Council Directive 96/92 EC concerning common rules for the internal market in electricity.

(2) In exercising any power to modify a gas licence under the Gas Order or this Order, the Department, the Authority, the Secretary of State, the Office of Fair Trading or the Competition Commission (as the case may be) shall have regard to the requirements and prohibitions laid down in European Parliament and Council Directive 98/30 EC concerning common rules for the internal market in natural gas.

Powers to alter licensable activities

Power to alter activities requiring electricity licence

39.

- (1) The Department may by order provide -

(2) Schedule 2 has effect in relation to the making of an order under this Article.

(3) For the purposes of -

activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under Article 8 of the Electricity Order.

    (4) An order under this Article may make consequential, transitional, incidental or supplementary provision including amendments or repeals in any provision of this Order or any other statutory provision.

    (5) An order under this Article may only provide for activities to become licensable activities if they are activities connected with the generation, transmission or supply of electricity.

    (6) An order under this Article may provide that it is to remain in force only for a period specified in the order.

Power to alter activities requiring gas licence
     40. - (1) The Department may by order provide -

(a) that specified activities are to become licensable activities; or

(b) that specified activities are to cease to be licensable activities.

(2) Schedule 2 has effect in relation to the making of an order under this Article.

(3) For the purposes of -

(a) this Article; and

(b) Schedule 2 so far as applying in relation to the making of an order under this Article,

activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under Article 6 of the Gas Order.

(4) An order under this Article may make consequential, transitional, incidental or supplementary provision including -

(a) amendments or repeals in any provision of this Order or any other statutory provision; and

(b) provision modifying any standard conditions of gas licences or (in the case of an order under paragraph (1)(a)) provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of activities which are to become licensable activities.

(5) An order under this Article may only provide for activities to become licensable activities if they are activities connected with the conveyance, storage or supply of gas.

(6) An order under this Article may provide that it is to remain in force only for a period specified in the order.

PART VI

ENFORCEMENT
Introductory
Introductory

41.

- (1) This Part has effect in relation to the enforcement of -

(2) In this Part -

"relevant conditions", in relation to any licence holder, means any condition of his licence;

"relevant requirement" means -

(b) in relation to a gas licence holder, any duty or other requirement imposed on him by or under an order made under Article 27(4)(b).

Orders for securing compliance

Orders for securing compliance
42. - (1) Subject to paragraphs (2), (5) and (6) and Article 43, where the Authority is satisfied that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement, it shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

(2) Subject to paragraphs (5) and (6), where it appears to the Authority -

(a) that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement; and

(b) that it is requisite that a provisional order be made,

the Authority shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to it requisite for the purpose of securing compliance with that condition or requirement.

(3) In determining for the purposes of paragraph (2)(b) whether it is requisite that a provisional order be made, the Authority shall have regard, in particular -

(a) to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition or requirement, is likely to be done, or omitted to be done, before a final order may be made; and

(b) to the fact that the effect of the provisions of this Article and Article 44 is to exclude the availability of any remedy (apart from under those provisions or for negligence) in respect of any contravention of a relevant condition or requirement.

(4) Subject to paragraphs (5) and (6) and Article 43, the Authority shall confirm a provisional order, with or without modifications, if -

(a) it is satisfied that the licence holder to whom the order relates is contravening, or is likely to contravene, any relevant condition or requirement; and

(b) the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.

(5) The Authority shall not make a final order or make or confirm a provisional order in relation to a licence holder if it is satisfied -

(a) that the duties imposed on it by Article 12 or 14 preclude the making or, as the case may be, the confirmation of the order; or

(b) that the most appropriate way of proceeding is under the Competition Act 1998 (c. 41).

(6) The Authority is not required to make a final order or make or confirm a provisional order if it is satisfied -

(a) that the licence holder has agreed to take and is taking all such steps as it appears to the Authority for the time being to be appropriate for the licence holder to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or

(b) that the contraventions were, or the apprehended contraventions are, of a trivial nature.

(7) Where the Authority is satisfied as mentioned in paragraphs (5) and (6), it shall -

(a) serve notice that it is so satisfied on the licence holder; and

(b) publish the notice in such manner as it considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(8) A final or provisional order -

(a) shall require the licence holder to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

(c) may be revoked at any time by the Authority.

(9) In this Part -

"final order" means an order under this Article other than a provisional order;

"provisional order" means an order under this Article which if not previously confirmed in accordance with paragraph (4), will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order.

Procedural requirements
43. - (1) Before it makes a final order or confirms a provisional order, the Authority shall give notice -

(a) stating that the Authority proposes to make or confirm the order and setting out its effect;

(b) setting out -

(c) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,

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

(2) A notice under paragraph (1) shall be given -

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

(b) by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the licence holder to whom the order relates.

(3) The Authority shall not make a final order with modifications, or confirm a provisional order with modifications, except -

(a) with the consent to the modifications of the licence holder to whom the order relates; or

(b) after complying with the requirements of paragraph (4).

(4) The requirements mentioned in paragraph (3) are that the Authority shall -

(a) serve on the licence holder to whom the order relates such notice as appears to it requisite of its proposal to make or confirm the order with modifications;

(b) in that notice specify the period (not being less than 21 days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(c) consider any representations or objections which are duly made and not withdrawn.

(5) As soon as practicable after making a final order or making or confirming a provisional order, the Authority shall -

(a) serve a copy of the order on the licence holder to whom the order relates; and

(b) publish the order in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(6) Before revoking a final order or a provisional order which has been confirmed, the Authority shall give notice -

(a) stating that the Authority proposes to revoke the order and setting out its effect; and

(b) 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 revocation may be made,

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

(7) If, after giving a notice under paragraph (6), the Authority decides not to revoke the order to which the notice relates, it shall give notice of its decision.

(8) A notice under paragraph (6) or (7) shall be given -

Validity and effect of orders
44. - (1) If the licence holder to whom a final or provisional order relates is aggrieved by the order and desires to question its validity on the ground -

(a) that its making or confirmation was not within the powers of Article 42; or

(b) that any of the requirements of Article 43 have not been complied with in relation to it,

he may, within 42 days from the date of service on him of a copy of the order, make an application to the High Court under this Article.

    (2) On any such application the High Court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the licence holder have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.

    (3) Except as provided by this Article, the validity of a final or provisional order shall not be questioned by any legal proceedings whatever.

    (4) The obligation to comply with a final or provisional order shall be a duty owed to any person who may be affected by a contravention of the order.

    (5) Where a duty is owed under paragraph (4) to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.

    (6) In any proceedings brought against a licence holder under paragraph (5), it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the order.

    (7) Without prejudice to any right which any person may have under paragraph (5) to bring civil proceedings in respect of any contravention or apprehended contravention of a final or provisional order, compliance with any such order shall be enforceable by civil proceedings by the Authority for an injunction or for any other appropriate relief.

Financial penalties

Financial penalties

45.

- (1) Where the Authority is satisfied that a licence holder has contravened or is contravening any relevant condition or requirement, the Authority may, subject to Article 47, impose on the licence holder a penalty of such amount as is reasonable in all the circumstances of the case.

    (2) Where the Authority is satisfied that an electricity licence holder who is a public electricity supplier has failed or is failing to achieve any standard of performance prescribed under Article 42 of the Electricity Order, the Authority may, subject to Article 47, impose on the licence holder a penalty of such amount as is reasonable in all the circumstances of the case.

    (3) The Authority shall not impose a penalty on a licence holder under paragraph (1) or (2) where it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998 (c. 41).

    (4) Before imposing a penalty on a licence holder under paragraph (1) or (2) the Authority shall give notice -

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

(5) Before varying any proposal stated in a notice under paragraph (4)(a) the Authority shall give notice -

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

(6) As soon as practicable after imposing a penalty, the Authority shall give notice -

(7) The licence holder may, within 21 days of the date of service on him of a notice under paragraph (6), make an application to the Authority for it to specify different dates by wh