Part IU.K. ELECTRICITY SUPPLY

IntroductoryU.K.

F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

F33 General duties of Secretary of State and Director.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F43A The principal objective and general duties of the Secretary of State and the Authority.E+W+S

(1)The principal objective of the Secretary of State and the Gas and Electricity Markets Authority (in this Act referred to as “the Authority”) in carrying out their respective functions under this Part is to protect the interests of [F5existing and future] consumers in relation to electricity conveyed by distribution systems [F6or transmission systems]F7... .

[F8(1A)Those interests of existing and future consumers are their interests taken as a whole, including—

(a)their interests in the reduction of electricity-supply emissions of targeted greenhouse gases; and

(b)their interests in the security of the supply of electricity to them.

(1B)The Secretary of State and the Authority shall carry out their respective functions under this Part in the manner which the Secretary of State or the Authority (as the case may be) considers is best calculated to further the principal objective, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the generation, transmission, distribution or supply of electricity or the provision or use of electricity interconnectors.

(1C)Before deciding to carry out functions under this Part in a particular manner with a view to promoting competition as mentioned in subsection (1B), the Secretary of State or the Authority shall consider—

(a)to what extent the interests referred to in subsection (1) of consumers would be protected by that manner of carrying out those functions; and

(b)whether there is any other manner (whether or not it would promote competition as mentioned in subsection (1B)) in which the Secretary of State or the Authority (as the case may be) could carry out those functions which would better protect those interests.]

(2)[F9In performing the duties under subsections (1B) and (1C), the Secretary of State or the Authority shall have regard to]—

(a)the need to secure that all reasonable demands for electricity are met; and

(b)the need to secure that licence holders are able to finance the activities which are the subject of obligations imposed by or under this Part[F10, the Utilities Act 2000[F11, Part 2 or 3 of the Energy Act 2004[F12, Part 2 or 5 of the Energy Act 2008 or section 4, Part 2, or sections 26 to 29 of the Energy Act 2010]]][F13; and

(c)the need to contribute to the achievement of sustainable development.]

(3)In performing [F14the duties under subsections (1B), (1C) and (2)], the Secretary of State or the Authority shall have regard to the interests of—

(a)individuals who are disabled or chronically sick;

(b)individuals of pensionable age;

(c)individuals with low incomes; and

(d)individuals residing in rural areas;

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 Secretary of State and the Authority may, in carrying out any function under this Part, have regard to—

(a)the interests of consumers in relation to gas conveyed through pipes (within the meaning of the M1Gas Act 1986); and

(b)any interests of consumers in relation to—

[F15(i)communications services and electronic communications apparatus, or]

(ii)water services or sewerage services (within the meaning of the M2Water Industry Act 1991),

which are affected by the carrying out of that function.

(5)Subject to [F16subsections (1B) and] (2), the Secretary of State and the Authority shall carry out their respective functions under this Part in the manner which he or it considers is best calculated—

(a)to promote efficiency and economy on the part of persons authorised by licences or exemptions to [F17distribute, supply or participate in the transmission of] electricity [F18or to participate in the operation of electricity interconnectors] and the efficient use of electricity conveyed by distribution systems [F19or transmission systems];

(b)to protect the public from dangers arising from the generation, transmission, distribution or supply of electricity;

F20(ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)to secure a diverse and viable long-term energy supply,

[F21and F22... shall], in carrying out those functions, have regard to the effect on the environment of activities connected with the generation, transmission, distribution or supply of electricity.

[F23(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.]

[F24(5B)In subsection (1A)—

• “emissions” has the same meaning as in the Climate Change Act 2008 (see section 97 of that Act);

• “electricity-supply emissions” in relation to emissions of a targeted greenhouse gas, means any such emissions (wherever their source) that are wholly or partly attributable to, or to commercial activities connected with, the generation, transmission, distribution or supply of electricity or the provision or use of electricity interconnectors;

• “targeted greenhouse gases” has the same meaning as in Part 1 of the Climate Change Act 2008 (see section 24 of that Act).]

(6)In [F25subsections [F26(1C),] (3) and (4) references to consumers include] both existing and future consumers.

(7)In this section and sections 3B and 3C, references to functions of the Secretary of State or the Authority under this Part include a reference to functions under the Utilities Act 2000 which relate to electricity conveyed by distribution systems [F27or transmission systems].

(8)In this Part, unless the context otherwise requires—

• “exemption” means an exemption granted under section 5;

• “licence” means a licence under section 6 and “licence holder” shall be construed accordingly.]

[F283B Guidance on social and environmental matters.E+W+S

(1)The Secretary of State shall from time to time issue guidance about the making by the Authority of a contribution towards the attainment of any social or environmental policies set out or referred to in the guidance.

(2)The Authority shall, in carrying out its functions under this Part, have regard to any guidance issued under this section.

(3)Before issuing guidance under this section the Secretary of State shall consult—

(a)the Authority;

[F29(b)the Council;]

(c)licence holders; and

(d)such other persons as the Secretary of State considers it appropriate to consult in relation to the guidance.

(4)A draft of any guidance proposed to be issued under this section shall be laid before each House of Parliament.

(5)Guidance shall not be issued under this section until after the period of forty days beginning with—

(a)the day on which the draft is laid before each House of Parliament; or

(b)if the draft is laid before the House of Lords on one day and the House of Commons on another, the later of those two days.

(6)If, before the end of that period, either House resolves that the guidance should not be issued, the Secretary of State must not issue it.

(7)In reckoning any period of forty days for the purposes of subsection (5) or (6), no account shall be taken of any time during which—

(a)Parliament is dissolved or prorogued; or

(b)both Houses are adjourned for more than four days.

(8)The Secretary of State shall arrange for any guidance issued under this section to be published in such manner as he considers appropriate.]

[F303C Health and safety.E+W+S

(1)The Secretary of State and the Authority shall consult [F31the Health and Safety Executive] about all electricity safety issues which may be relevant to the carrying out of any of their respective functions under this Part.

(2)The Secretary of State may require the Authority also to consult him about electricity safety issues of particular descriptions.

(3)The Secretary of State and the Authority shall, in carrying out their respective functions under this Part, take into account any advice given by [F31the Health and Safety Executive] about any electricity safety issue (whether or not in response to consultation under subsection (1)).

(4)The Authority shall, in carrying out its functions under this Part, take into account any advice given by the Secretary of State about any electricity safety issue (whether or not in response to consultation under subsection (2)).

(5)For the purposes of this section an electricity safety issue is anything concerning the generation, transmission, distribution or supply of electricity which may affect the health and safety of—

(a)members of the public; or

(b)persons employed in connection with any of those activities.]

[F323D Exceptions from sections 3A to 3C.E+W+S

(1)Section 3A does not apply in relation to the issuing by the Secretary of State of guidance under section 3B.

(2)Sections 3A to 3C do not apply in relation to functions of the Secretary of State under [F33sections 36 to 37].

(3)Sections 3A to 3C do not apply in relation to anything done by the Authority—

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

(b)in the exercise of functions under section 43(3).

(4)The Authority may nevertheless, when exercising any function under section 43(3), have regard to any matter in respect of which a duty is imposed by sections 3A to 3C (“a general matter”), if it is a matter to which [F34the Office of Fair Trading] could have regard when exercising that function (but that is not to be taken as implying that, in relation to functions mentioned in subsection (2), regard may not be had to any general matter).

(5)The duties imposed by sections 3A to 3C do not affect the obligation of the Authority or the Secretary of State to perform or comply with any other duty or requirement (whether arising under this Act or another enactment, by virtue of any Community obligation or otherwise).]

Licensing of supply etc.E+W+S

4 Prohibition on unlicensed supply etc.E+W+S

(1)A person who—

(a)generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;

[F35(b)participates in the transmission of electricity for that purpose;]

[F36(bb)distributes electricity for that purpose;]

(c)supplies electricity to any premises, [F37or

(d)participates in the operation of an electricity interconnector,]

shall be guilty of an offence unless he is authorised to do so by a licence F38... .

(2)A person guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(3)No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Director.

[F39(3A)In subsection (1)(b) above, the reference to a person who participates in the transmission of electricity is to a person who—

(a)co-ordinates, and directs, the flow of electricity onto and over a transmission system by means of which the transmission of electricity takes place, or

(b)makes available for use for the purposes of such a transmission system anything which forms part of it.

(3B)For the purposes of subsection (3A)(b), a person shall not be regarded as making something available just because he consents to its being made available by another.]

[F40(3C)A reference in this Part to participating in the operation of an electricity interconnector is a reference to—

(a)co-ordinating and directing the flow of electricity into or through an electricity interconnector; or

(b)making such an interconnector available for use for the conveyance of electricity;

and a person is not to be regarded as participating in the transmission of electricity by reason only of activities constituting participation in the operation of an electricity interconnector.

(3D)For the purposes of subsection (3C)(b), a person shall not be regarded as making something available just because he consents to its being made available by another.

(3E)In this Part “electricity interconnector” means so much of an electric line or other electrical plant as—

(a)is situated at a place within the jurisdiction of Great Britain; and

(b)subsists wholly or primarily for the purposes of the conveyance of electricity (whether in both directions or in only one) between Great Britain and a place within the jurisdiction of another country or territory.

(3F)For the purposes of this section—

(a)a place is within the jurisdiction of Great Britain if it is in Great Britain, in the territorial sea adjacent to Great Britain or in an area designated under section 1(7) of the Continental Shelf Act 1964; and

(b)a place is within the jurisdiction of another country or territory if it is in that country or territory or in waters in relation to which authorities of that country or territory exercise jurisdiction.]

(4)In this Part, unless the context otherwise requires—

• [F41“distribute”, in relation to electricity, means distribute by means of a distribution system, that is to say, a system which consists (wholly or mainly) of low voltage lines and electrical plant and is used for conveying electricity to any premises or to any other distribution system;]

• [F42“generate”, in relation to electricity, means generate at a relevant place;]

• [F43“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;]

• [F44“transmission”, in relation to electricity, means transmission by means of a transmission system;

• “transmission system” means a system which—

  (a)

  consists (wholly or mainly) of high voltage lines and electrical plant, and

  (b)

  is used for conveying electricity from a generating station to a substation, from one generating station to another or from one substation to another.]

[F45(5)In this section—

• “relevant place” means a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone; and

• “system” means a system the whole or a part of which is at a relevant place;

and references in this section to premises are references to premises situated at a relevant place, or at a place that is not in a Renewable Energy Zone but is in an area designated under section 1(7) of the Continental Shelf Act 1964.]

[F465 Exemptions from prohibition.E+W+S

(1)The Secretary of State may by order grant exemption from paragraph (a), (b), (bb)[F47, (c) or (d)] of section 4(1)—

(a)either to a person or to persons of a class;

(b)either generally or to such extent as may be specified in the order; and

(c)either unconditionally or subject to such conditions as may be so specified.

(2)Before making an order under subsection (1) the Secretary of State shall give notice—

(a)stating that he proposes to make such an order and setting out the terms of the proposed order;

(b)stating the reasons why he proposes to make the order in the terms proposed; and

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

and shall consider any representations which are duly made in respect of the proposals and not withdrawn.

(3)The notice required by subsection (2) shall be given—

(a)by serving a copy of it on the Authority and the Council; and

(b)by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of those likely to be affected by the proposed order.

(4)Notice of an exemption granted to a person shall be given—

(a)by serving a copy of the exemption on him; and

(b)by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of other persons who may be affected by it.

(5)Notice of an exemption granted to persons of a class shall be given by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of—

(a)persons of that class; and

(b)other persons who may be affected by it.

(6)An exemption may be granted—

(a)indefinitely; or

(b)for a period specified in, or determined by or under, the exemption.

(7)Conditions subject to which an exemption is granted may (in particular) require any person carrying on any activity in pursuance of the exemption—

(a)to comply with any direction given by the Secretary of State or the Authority as to such matters as are specified in the exemption or are of a description so specified;

(b)except in so far as the Secretary of State or the Authority consents to his doing or not doing them, not to do or to do such things as are specified in the exemption or are of a description so specified; and

(c)to refer for determination by the Secretary of State or the Authority such questions arising under the exemption as are specified in the exemption or are of a description so specified.

(8)The Secretary of State may by order revoke an order by which an exemption was granted to a person or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—

(a)at the person’s request;

(b)in accordance with any provision of the order by which the exemption was granted; or

(c)if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.

(9)The Secretary of State may by order revoke an order by which an exemption was granted to persons of a class or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—

(a)in accordance with any provision of the order by which the exemption was granted; or

(b)if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.

(10)The Secretary of State may by direction withdraw an exemption granted to persons of a class from any person of that class—

(a)at the person’s request;

(b)in accordance with any provision of the order by which the exemption was granted; or

(c)if it appears to the Secretary of State inappropriate that the exemption should continue to have effect in the case of the person.

(11)Before—

(a)making an order under subsection (8)(b) or (c) or (9); or

(b)giving a direction under subsection (10)(b) or (c),

the Secretary of State shall consult the Authority and give notice of his proposal to do so (with reasons) and of a period within which representations may be made to him.

(12)The notice under subsection (11) shall be given—

(a)where the Secretary of State is proposing to make an order under subsection (8)(b) or (c), by serving a copy of it on the person to whom the exemption was granted;

(b)where he is proposing to make an order under subsection (9), by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of the class of persons to whom the exemption was granted; and

(c)where he is proposing to give a direction under subsection (10)(b) or (c), by serving a copy of it on the person from whom he proposes to withdraw the exemption.]

[F486 Licences authorising supply, etc.E+W+S

(1)The Authority may grant any of the following licences—

(a)a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given (“a generation licence”);

[F49(b)a licence authorising a person to participate in the transmission of electricity for that purpose (“a transmission licence”);]

(c)a licence authorising a person to distribute electricity for that purpose (“a distribution licence”); F50...

(d)a licence authorising a person to supply electricity to premises (“a supply licence”) [F51or

(e)a licence authorising a person to participate in the operation of an electricity interconnector (“an interconnector licence”).]

(2)The same person may not be the holder of both a distribution licence and a supply licence.

[F52(2A)The same person may not be the holder of an interconnector licence and the holder of a licence falling within any of paragraphs (a) to (d) of subsection (1).]

(3)A supply licence may authorise the holder to supply electricity—

(a)to any premises;

(b)only to premises specified in the licence, or to premises of a description so specified; or

(c)only to any premises situated in a specified area, or to premises of a specified description which are so situated.

(4)The Authority may, with the consent of the holder of a supply licence, modify terms included in the licence in pursuance of subsection (3) so as to extend or restrict the premises to which the licence holder may give a supply of electricity.

(5)A distribution licence may authorise the holder to distribute electricity in any area, or only in an area specified in the licence.

(6)The Authority may, with the consent of the holder of a distribution licence, modify terms included in the licence in pursuance of subsection (5) so as to extend or restrict the area within which the licence holder may distribute electricity.

[F53(6A)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.

(6B)The Authority may, with the consent of the holder of a transmission licence, modify terms included in the licence in pursuance of subsection (6A) above.]

[F54(6C)An interconnector licence authorising participation in the operation of an electricity interconnector—

(a)must specify the interconnector or interconnectors in relation to which participation is authorised; and

(b)may limit the forms of participation in the operation of an interconnector which are authorised by the licence.]

[F55(7)A licence, and any modification of a licence under subsection (4), (6) or (6B), shall be in writing.]

(8)A licence shall, unless previously revoked in accordance with any term of the licence, continue in force for such period as may be specified in or determined by or under the licence.

(9)In this Part—

• F56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “electricity distributor” means any person who is authorised by a distribution licence to distribute electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;

• [F57“electricity generator” means any person who is authorised by a generation licence to generate electricity except where that person is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence;]

• “electricity supplier” means any person who is authorised by a supply licence to supply electricity except where he is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence.

[F58(10)In this section “premises” has the same meaning as in section 4.]]

[F596A Procedure for licence applications.E+W+S

(1)This section applies to any application—

(a)for a licence; or

[F60(b)for the modification of a licence under section 6(4), (6) or (6B).]

(2)The application shall be made in such form and manner, and shall contain, or be accompanied by, such information and documents and such fee (if any), as may be prescribed.

(3)Within the prescribed period after the making of the application the applicant shall publish a notice of the application in the prescribed manner.

(4)Where the Authority proposes to refuse the application, it shall give to the applicant a notice—

(a)stating that it proposes to refuse the application;

(b)stating the reasons why it proposes to refuse the application; and

(c)specifying the time within which representations with respect to the proposed refusal may be made,

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

(5)Where the Authority grants the licence, extension or restriction applied for, it shall as soon as practicable thereafter send a notice of the grant to any person who holds a licence and whose interests may, in the opinion of the Authority, be affected by the grant.

(6)In this section “prescribed” means prescribed in regulations made by the Authority.

(7)Any sums received by the Authority under this section shall be paid into the Consolidated Fund.]

[F616B Applications for transmission licences.E+W+S

(1)This section applies to applications for a transmission licence (in addition to the requirements of section 6A).

[F62(2)The applicant shall give notice of the application to any person who holds a transmission licence and whose interests may be affected if the licence applied for is granted.]

(3)Before granting the transmission licence applied for, the Authority shall give notice—

(a)stating that it proposes to grant the licence;

(b)stating the reasons why it proposes to grant the licence; 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 licence may be made,

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

(4)A notice under subsection (3) shall be given by publication 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.

(5)The Authority shall send a copy of a notice under subsection (3) to—

(a)the applicant;

(b)the Secretary of State; and

(c)any person who holds a transmission licence and whose [F63interests may be affected by the grant of the licence] to which the application relates.]

[F646CCompetitive tenders for offshore transmission licencesE+W+S

(1)The Authority may by regulations make such provision as appears to it to be appropriate for facilitating the making, in prescribed cases, of a determination on a competitive basis of the person to whom an offshore transmission licence is to be granted.

(2)That provision may include—

(a)provision, in prescribed cases, for the publication of a proposal to grant an offshore transmission licence;

(b)provision for the inclusion in such a proposal of an invitation to apply for such a licence;

(c)provision restricting the making of applications for offshore transmission licences and imposing requirements as to the period within which they must be made;

(d)provision for regulating the manner in which applications are considered and determined.

(3)Regulations under this section—

(a)may make provision by reference to a determination by the Authority or to the opinion of the Authority as to any matter; and

(b)may dispense with or supplement provision made in relation to applications for transmission licences by or under section 6A or 6B above.

(4)The approval of the Secretary of State is required for the making of regulations under this section.

(5)In this section—

• “offshore transmission licence” means a transmission licence authorising anything that forms part of a transmission system to be used for purposes connected with offshore transmission; and

• “prescribed” means prescribed in or determined under regulations made by the Authority.

(6)In subsection (5) “offshore transmission” means the transmission within an area of offshore waters of electricity generated by a generating station in such an area.

(7)In subsection (6) “offshore waters” means—

(a)waters in or adjacent to Great Britain which are between the mean low water mark and the seaward limits of the territorial sea; and

(b)waters within an area designated under section 1(7) of the Continental Shelf Act 1964.]

[F656DSection 6C: supplemental provisionE+W+S

(1)The provision made by regulations under section 6C(1) may also include—

(a)provision requiring a person within subsection (2), in relation to a tender exercise, to make payments to the Authority, in prescribed circumstances, in respect of the Authority's tender costs in relation to the exercise;

(b)provision requiring a person within subsection (2)(a) (“the relevant person”) in prescribed circumstances—

(i)to pay a deposit of a prescribed amount to the Authority, or to provide the Authority with security in a form approved by it, or

(ii)to make arrangements for a person approved by the Authority to pay to the Authority such a deposit or provide it with such security,

in respect of any liability which the relevant person has, or may in future have, by virtue of paragraph (a);

(c)provision requiring the owner of a regulated asset, in a case where a transitional tender exercise has been held, to make a payment of a prescribed amount to the Authority in respect of any costs incurred by the Authority in connection with any assessment of the costs which have been, or ought to have been, incurred in connection with that asset;

(d)provision about the times at which payments are to be made under regulations made by virtue of paragraph (a) or (c) or deposits or other forms of security are to be provided under regulations made by virtue of paragraph (b);

(e)provision about—

(i)the circumstances in which a payment made in accordance with regulations made by virtue of paragraph (a) is to be repaid (wholly or in part);

(ii)the circumstances in which such a repayment is to include an amount representing interest accrued on the whole or part of the payment;

(iii)the circumstances in which a deposit (including any interest accrued on it) or other security provided in accordance with regulations made by virtue of paragraph (b) is to be released or forfeited (wholly or in part);

(f)provision about the effect on a person's participation in the tender exercise of a failure to comply with a requirement imposed by virtue of this subsection, and the circumstances in which the tender exercise is to stop as a result of such a failure.

(2)The persons within this subsection, in relation to a tender exercise, are—

(a)the person who made the connection request for the purposes of which the tender exercise has been, is being or is to be, held;

(b)any person who submits an application for the offshore transmission licence to which the tender exercise relates.

(3)For the purposes of subsection (2)(a) a person makes a connection request when the person—

(a)makes an application to the holder of a co-ordination licence (in accordance with any provision made by the licence) for an offer of connection to and use of a transmission system, or

(b)before the coming into force of section 180 of the Energy Act 2004 (meaning of “high voltage line”), makes an application to the holder of a distribution licence (in accordance with any provision made by the licence) for an offer of connection to and use of a system in circumstances where the application is for connection to and use of that system by a system—

(i)which was a distribution system at the time the application was made (or would have been had it been in existence at that time), and

(ii)which consists (wholly or mainly) of electric lines of a nominal voltage of 132 kilovolts.

(4)A person (“P”) is to be treated as within subsection (2)(a) if—

(a)P would have made the connection request, but for the fact that another person had already made an application within subsection (3)(a) or (b), and

(b)the benefit of that application, or any agreement resulting from it, is vested in P.

(5)Where regulations are made by virtue of subsection (1)(a) or (b), regulations made by virtue of subsection (1)(e) must ensure that, as soon as reasonably practicable after a tender exercise is finished, steps are taken by the Authority, in accordance with the regulations, to ensure that the aggregate of—

(a)any fees under section 6A(2) in respect of applications for the offshore transmission licence to which the tender exercise relates,

(b)any payments made in accordance with regulations made by virtue of subsection (1)(a) and not repaid, and

(c)the value of any security forfeited in accordance with regulations made by virtue of subsection (1)(e)(iii),

does not exceed the Authority's tender costs.

(6)Where regulations under section 6C—

(a)restrict the making of applications for offshore transmission licences, or

(b)operate so as to prevent an application from being considered or further considered, if the applicant does not meet one or more prescribed requirements,

such regulations may make provision enabling a person to apply to the Authority for a decision as to the effect of any such restriction or requirement if the person were to make an application for such a licence.

(7)Regulations made by virtue of subsection (6) may enable the Authority to charge a person who makes such an application a prescribed fee for any decision given in response to it.

(8)In this section—

• “co-ordination licence” means a transmission licence which authorises a person to co-ordinate and direct the flow of electricity onto and over a transmission system—

  (a)

  by means of which the transmission of electricity takes place, and

  (b)

  the whole or a part of which is at a relevant place (within the meaning of section 4(5));

• “offshore transmission licence” has the same meaning as in section 6C;

• “prescribed” has the same meaning as in that section;

• “regulated asset”, in relation to a tender exercise, means an asset which the person granted the offshore transmission licence requires in order to enable that person to comply with the obligations under the licence;

• “successful bidder”, in relation to a tender exercise, means the person to whom, as a result of that exercise, the offshore transmission licence has been, or is to be, granted;

• “tender costs”, in relation to a tender exercise, means—

  (a)

  any costs incurred or likely to be incurred by the Authority for the purposes of the exercise, and

  (b)

  such proportion as the Authority considers appropriate of the costs which—

  (i)

  have been, or are likely to be, incurred by it under or for the purposes of section 6C or of regulations under that section, and

  (ii)

  are not directly attributable to a particular tender exercise;

• “tender exercise” means the steps taken in accordance with regulations under section 6C with a view to determining to whom a particular offshore transmission licence is to be granted;

• “transitional tender exercise” means a tender exercise in relation to which paragraph 1(1) of Schedule 2A applies.

(9)Any sums received by the Authority under regulations made by virtue of this section are to be paid into the Consolidated Fund.

6EProperty schemes in respect of offshore transmission licencesE+W+S

Schedule 2A (which provides for property schemes in connection with grants of offshore transmission licences) shall have effect.]

7 Conditions of licences: general.E+W+S

(1)A licence may include—

(a)such conditions (whether or not relating to the activities authorised by the licence) as appear to the [F66Authority] to be requisite or expedient having regard to the duties imposed by [F67section 3 above]; and

(b)conditions requiring the rendering to the [F66Authority] of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.

(2)Without prejudice to the generality of paragraph (a) of subsection (1) above, conditions included in [F68a transmission licence or distribution licence] by virtue of that paragraph—

(a)may require the licence holder to enter into agreements with other persons for the use of any electric lines and electrical plant of his (wherever situated and whether or not used for the purpose of carrying on the activities authorised by the licence) for such purposes as may be specified in the conditions; and

(b)may include provision for determining the terms on which such agreements are to be entered into.

[F69(2A)Without prejudice to the generality of paragraph (a) of subsection (1), conditions included in a transmission licence by virtue of that paragraph may—

(a)require the licence holder not to carry on an activity which he would otherwise be authorised by the licence to carry on, or

(b)restrict where he may carry on an activity which he is authorised by the licence to carry on.]

(3)[F70Without prejudice to the generality of paragraph (a) of subsection (1), conditions included in a licence by virtue of that paragraph] may require the licence holder—

(a)to comply with any direction given by the [F71Authority or Secretary of State] as to such matters as are specified in the licence or are of a description so specified;

(b)except in so far as the [F71Authority or Secretary of State] consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;

(c)to refer for determination by the [F71Authority or Secretary of State] such questions arising under the licence[F72, or under any document referred to in the licence,] as are specified in the licence or are of a description so specified; and

(d)to refer for approval by the [F71Authority or Secretary of State] such things falling to be done under the licence, and such contracts or agreements made before the grant of the licence, as are specified in the licence or are of a description so specified.

[F73(3A)Conditions included in a transmission licence or a distribution licence by virtue of subsection (1)(a) may require the holder, in such circumstances as are specified in the licence—

(a)so to increase his charges for the transmission or distribution of electricity as to raise such amounts as may be determined by or under the conditions; and

(b)to pay the amounts so raised to such licence holders as may be so determined.]

(4)Conditions included in a licence by virtue of subsection (1)(a) above may—

(a)instead of specifying or describing any contracts or agreements to which they apply, refer to contracts or agreements designated (whether before or after the imposition of the conditions) by the Secretary of State or the Director; and

(b)instead of containing any provisions which fall to be made, refer to provisions set out in documents so designated and direct that those provisions shall have such effect as may be specified in the conditions.

[F74(5)Conditions included in a licence may contain provision for the conditions—

(a)to have effect or cease to have effect at such times and in such circumstances as may be determined by or under the conditions; or

(b)to be modified in such manner as may be specified in the conditions at such times and in such circumstances as may be so determined.]

(6)Any provision included by virtue of subsection (5) above in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.

[F75(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.]

(7)Any sums received by the [F76Authority] in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.

[F777A Transfer of licences.E+W+S

(1)A licence—

(a)is capable of being transferred by the licence holder, with the consent of the Authority, in accordance with this section but subject to any term as to transfer contained in the licence;

(b)may include conditions which must be complied with before the licence can be transferred.

(2)A transfer may relate to the whole or any part of the licence.

(3)The reference in subsection (2) to part of a licence is a reference to a part of the activities authorised by the licence (whether described by reference to activities being carried on by the licence holder or to activities which he is authorised by the licence to carry on).

(4)Such consent may be given subject to compliance with such modification or other conditions as the Authority considers appropriate.

(5)In the case of a partial transfer, conditions imposed under subsection (4) may make as respects so much of the licence as is proposed to be retained by the transferor provision different from that made as respects so much of the licence as is proposed to be transferred.

(6)In deciding whether to give its consent to a proposed transfer, the Authority shall apply the same criteria as it would apply if the Authority were deciding whether—

(a)in the case of a general transfer, to grant a corresponding licence to the transferee; or

(b)in the case of a partial transfer—

(i)to grant to the transferee a licence corresponding to so much of the licence as is proposed to be transferred; and

(ii)to grant to the transferor a licence corresponding to so much of the licence as is proposed to be retained.

(7)The Authority shall give the Secretary of State not less than 28 days’ notice of any proposal to impose a modification condition.

(8)If, before the expiry of the time specified in a notice under subsection (7), the Secretary of State directs the Authority not to impose the condition, the Authority shall comply with the direction.

(9)Before giving consent to the transfer of a licence, the Authority shall give notice—

(a)stating that it proposes to grant consent to the transfer;

(b)stating the reasons why it proposes to give consent; and

(c)specifying the time from the date of publication of the notice (not being less than two months) within which representations or objections with respect to the transfer may be made,

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

(10)A notice under subsection (9) shall be given by publishing the notice in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the transfer.

(11)A purported transfer of a licence shall be void—

(a)if the licence is not capable of transfer or the Authority has not given its consent;

(b)if the purported transfer is in breach of a condition of the licence; or

(c)if there has, before the purported transfer, been a contravention of a condition subject to compliance with which the Authority’s consent is given.

(12)In this section—

• “transfer” includes any form of transfer or assignment or, in Scotland, assignation;

• “modification condition” means a condition requiring or otherwise providing for the making of modifications to the conditions of a licence.]

[F787B Uniform prices etc. in certain areas of Scotland.E+W+S

(1)The Secretary of State may, by an order made under this section, require the holder of—

(a)a transmission licence; or

(b)a distribution licence,

to apply in respect of the use of the transmission or, as the case may be, distribution system, or any part of the system, in a specified area charges which do not distinguish (whether directly or indirectly) between users in different parts of the area.

(2)The Secretary of State may, by such an order, require the holder of a supply licence—

(a)to charge prices; or

(b)to offer conditions of contract,

in respect of a comparable supply of electricity in a specified area which do not distinguish (whether directly or indirectly) between consumers in different parts of the area.

(3)The Secretary of State shall not specify in such an order any particular or maximum charge or price or any particular condition of contract.

(4)Such an order may make different provision for different cases or descriptions of case.

(5)For the purposes of this section—

(a)a specified area is an area of Scotland specified in such an order; and

(b)supplies of electricity are comparable if they are—

(i)at the same or similar voltages; and

(ii)are in accordance with the same or similar demand characteristics.]

8 Conditions for funding certain companies engaged in nuclear generation in Scotland.E+W+S

(1)Without prejudice to section 7(1)(a) above, it may be a condition of a licence granted to a company (“the licence holder”) that it shall from time to time provide any company to which subsection (2) below applies, comes to apply or has at any time applied with such funds as may be determined by or under the condition in respect of such of that company’s liabilities as may be so determined.

(2)This subsection applies to any company engaging in the operation of a nuclear generating station in Scotland while—

(a)deemed for the purposes of the M3Companies Act 1985 to be a subsidiary of the licence holder; or

(b)a related company of the licence holder (as defined in paragraph 92 of Schedule 4 to that Act).

(3)Subsection (3) of section 7 above applies in respect of a condition included in a licence by virtue of this section as it applies in respect of a condition so included by virtue of subsection (1)(a) of that section.

[F798A Standard conditions of licences.E+W+S

(1)Subject to subsection (2), each condition which by virtue of section 33(1) of the Utilities Act 2000 is a standard condition for the purposes of any of the types of licence mentioned in [F80section 6(1)(a), (c) or (d) (that is to say, generation licences, distribution licences or supply licences)] shall be incorporated by reference in each licence of that type granted after the commencement of this section.

[F81(1A)Subject to subsection (2), each condition which by virtue of section 137(3) of the Energy Act 2004 is a standard condition for the purposes of transmission licences shall be incorporated by reference in each transmission licence granted on or after the day on which section 137(6) of that Act comes into force.]

[F82(1B)Subject to subsection (2), each condition which by virtue of section 146 of the Energy Act 2004 is a standard condition for the purposes of interconnector licences shall be incorporated, by reference, in each interconnector licence granted on or after the commencement of subsection (6) of that section.]

(2)Subject to the following provisions of this section, the Authority may, in granting a licence of any type, modify any of the standard conditions for licences of that type in its application to the licence to such extent as it considers requisite to meet the circumstances of the particular case.

(3)Before making any modifications under subsection (2), the Authority shall give notice—

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

(b)stating the reasons why it 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) shall be given—

(a)by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice 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 Secretary of State and the Council.

(5)If, within the time specified in the notice under subsection (3), the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.

(6)The Authority shall not under subsection (2) make any modifications of a condition of a licence of any type unless it is of the opinion that the modifications are such that—

(a)the licence holder would not be unduly disadvantaged in competing with other holders of licences of that type; and

(b)no other holder of a licence of the same type would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence being modified).

(7)The modification under subsection (2) of part of a condition of a licence shall not prevent any other part of the condition which is not so modified being regarded as a standard condition for the purposes of this Part.

(8)In this section “modify” includes fail to incorporate and “modification” shall be construed accordingly.]

9 General duties of licence holders.E+W+S

[F83(1)It shall be the duty of an electricity distributor—

(a)to develop and maintain an efficient, co-ordinated and economical system of electricity distribution;

(b)to facilitate competition in the supply and generation of electricity.]

(2)It shall be the duty of the holder of a licence authorising him to [F84participate in the transmission of] electricity—

(a)to develop and maintain an efficient, co-ordinated and economical system of electricity transmission; and

(b)F85. . ., to facilitate competition in the supply and generation of electricity.

[F86(2A)Subsection (2)(a) shall not have effect to require the holder of a transmission licence which is subject to a condition of the kind mentioned in section 7(2A)(a) to carry on an activity which he would be authorised by the licence to carry on apart from the condition.]

F87(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F87(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 Powers etc. of licence holders.E+W+S

(1)Subject to subsection (2) below, Schedule 3 to this Act (which provides for the compulsory acquisition of land) and Schedule 4 to this Act (which confers other powers and makes other provision) shall have effect—

(a)in relation to F88... [F89the holder of a transmission licence]; and

(b)to the extent that his licence so provides, in relation to [F90an electricity distributor or] any other licence holder;

and references in those Schedules to a licence holder shall be construed accordingly.

(2)Where any provision of either of the Schedules mentioned in subsection (1) above is applied to a licence holder by his licence, it shall have effect subject to such restrictions, exceptions and conditions as may be included in the licence for the purpose of qualifying that provision as so applied or any power or right conferred by or under it.

(3)[F91A generation licence] may provide that Schedule 4 to this Act shall have effect in relation to the licence holder as if—

(a)any reference to any purpose connected with the carrying on of the activities which he is authorised by his licence to carry on included a reference to any purpose connected with the supply to any premises of heat produced in association with electricity and steam produced from and air and water heated by such heat; and

(b)any reference to electric lines or electrical plant included a reference to pipes and associated works used or intended to be used for conveying heat so produced, and steam produced from and air and water heated by such heat;

and in this subsection “associated works”, in relation to pipes, means any of the following connected with the pipes, namely, any valve, filter, stopcock, pump, meter, inspection chamber and manhole and such other works as may be prescribed.

[F92(3A)Subsection (3) applies in relation to any purpose connected with the supply to any premises of any gas or liquid subjected to a cooling effect produced in association with electricity as it applies to a purpose mentioned in that subsection.]

[F93(4)A transmission licence may provide that, where the licence is modified under section 6(6B), 11 or 11A above so as to reduce in any respect the area in which the licence holder may carry on activities, Schedule 4 to this Act shall have effect in relation to him as if any reference to the activities which he is authorised by his licence to carry on included a reference to the activities which he was previously so authorised to carry on.]

(5)The provisions of Schedule 5 to this Act (which provide for the acquisition of water rights for hydro-electric stations in Scotland) shall have effect.

Modification of licencesE+W+S

11 Modification by agreement.E+W+S

[F94(1)Subject to the following provisions of this section, the Authority may modify the conditions of a particular licence.

(1A)The Authority may not make any modifications under this section unless the licence holder has consented to the modifications and, in the case of standard conditions of the licence, the Authority is of the opinion that the modifications—

(a)are requisite to meet the circumstances of the particular case; and

(b)are such that—

(i)the licence holder would not be unduly disadvantaged in competing with other holders of licences of that type; and

(ii)no other holder of a licence of the same type would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence being modified).]

(2)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 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.

(3)A notice under subsection (2) above shall be given—

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

(b)by serving a copy of the notice on the holder of the licence.

(4)The Director shall also send a copy of a notice under subsection (2) above to the Secretary of State; and if, within the period specified in the notice, the Secretary of State directs the Director not to make any modifications, the Director shall comply with the direction.

[F95(5)The modification under this section of part of a standard condition of a licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.]

[F9611A Modification of standard conditions of licences.E+W+S

(1)Subject to the following provisions of this section, the Authority may modify the standard conditions of licences of any type mentioned in section 6(1).

(2)Where at any time the Authority modifies the standard conditions of licences of any type under this section the Authority may make such incidental or consequential modifications as it considers necessary or expedient of any conditions of any licence of that type.

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

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

(b)stating the reasons why it 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) shall be given—

(a)by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice 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 each relevant licence holder, to the Secretary of State and to the Council.

(5)If, within the time specified in the notice under subsection (3), the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.

(6)The Authority may not under this section make any modifications of the standard conditions of licences of any type unless—

(a)no notice of objection to those modifications is given to the Authority within the time specified in the notice under subsection (3) by any relevant licence holder;

(b)if one or more relevant licence holders give notice of objection to the Authority within that time—

(i)the proportion (expressed as a percentage) of the relevant licence holders who have given notice of objection is less than such percentage as may be prescribed; and

(ii)the percentage given by subsection (7) is less than such percentage as may be prescribed; or

(c)subsection (8) applies to the case.

(7)The percentage given by this subsection is the proportion (expressed as a percentage) of the relevant licence holders who have given notice of objection, weighted according to their market share in such manner as may be prescribed.

(8)This subsection applies where the Authority is satisfied that—

(a)the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying on of activities to which the modifications relate;

(b)the modifications would remove or reduce the burden without removing any necessary protection; and

(c)the modifications are such that no holder of a licence of the type in question would be unduly disadvantaged in competing with other holders of such licences.

(9)Where the Authority modifies the standard conditions of licences of any type—

(a)the Authority 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; and

(b)the Authority shall publish the modifications in such manner as it considers appropriate.

(10)In this section—

• “prescribed” means prescribed in an order made by the Secretary of State; and

• “relevant licence holder”, in relation to proposed modifications of standard conditions of licences of any type, means the holder of a licence of that type—

  (a)

  which is to be modified under the proposals by the inclusion of any new standard condition; or

  (b)

  which includes any standard conditions to which the proposals relate, other than standard conditions which are not in effect F97... at the time specified in the notice under subsection (3).

(11)A statutory instrument containing an order under this section shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.]

12 Modification references to Monopolies Commission.E+W+S

[F98(1)The Authority may make to the Competition Commission a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which relate to the carrying on of activities authorised or regulated by a particular licence and which are specified in the reference operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.

(1A)The Authority may make to the Competition Commission a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which relate to the carrying on of activities authorised or regulated by licences of any type mentioned in section 6(1), and which are specified in the reference operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the standard conditions of licences of that type.]

(2)The Director may, at any time, by notice given to the [F99Competition Commission] vary a reference under this section by adding to the matters specified in the reference or by excluding from the reference some F100... of the matters so specified; and on receipt of any such notice the Commission shall give effect to the variation.

(3)The Director may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the [F99Competition Commission] in carrying out the investigation on the reference—

(a)any effects adverse to the public interest which, in his opinion, the matters specified in the reference or variation have or may be expected to have; and

(b)any modifications of the [F101relevant conditions] by which, in his opinion, those effects could be remedied or prevented.

(4)As soon as practicable after making a reference under this section or a variation of such a reference, the Director—

(a)shall serve a copy of the reference or variation on the holder of the licence [F102or, as the case may be, the relevant licence holders and the Council]; and

(b)shall publish particulars of the reference or variation in such manner as he considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5)The Director shall also send a copy of a reference under [F103subsection (1A)], or a variation of such a reference, to the Secretary of State; and if, before the end of the period of 28 days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the [F99Competition Commission] not to proceed with the reference or, as the case may require, not to give effect to the variation, the Commission shall comply with the direction.

(6)It shall be the duty of the Director, for the purpose of assisting the [F99Competition Commission] in carrying out an investigation on a reference under this section [F104or in carrying out functions under section 14A], to give to the Commission—

(a)any information in his possession which relates to matters falling within the scope of the investigation [F104or the carrying out of those functions] and—

(i)is requested by the Commission for that purpose; or

(ii)is information which, in his opinion, it would be appropriate for that purpose to give to the Commission without any such request; and

(b)any other assistance which the Commission may require, and which it is within his power to give, in relation to any such matters;

and the Commission, for the purpose of carrying out any such investigation [F104or such functions], shall take account of any information given to them for that purpose under this subsection.

[F105(6A)In this section and sections [F10612A,] 13, 14 and 14A—

• “relevant conditions”—

  (a)

  in relation to a reference under subsection (1), means the conditions of the licence to which the reference relates; and

  (b)

  in relation to a reference under subsection (1A), means the standard conditions of the licences to which the reference relates; and

• “relevant licence holder” means the holder of a licence to which a reference under subsection (1A) relates.]

(7)In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the [F99Competition Commission] shall have regard to the matters as respects which duties are imposed on the Secretary of State and the Director by section [F1073A to 3C].

F108(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F108(8A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F109(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F109(9A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11012A References under section 12: time limitsE+W+S

(1)Every reference under section 12 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2)A report of the Competition Commission on a reference under section 12 above shall not have effect (and no action shall be taken in relation to it under section 14 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.

(3)The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4)No more than one extension is possible under subsection (3) above in relation to the same reference.

(5)The Authority shall, in the case of an extension made by it under subsection (3) above—

(a)publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b)send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.

12B References under section 12: powers of investigationE+W+S

(1)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 12 above as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2)Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a)subsection (2) were omitted; and

(b)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3)Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a)for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

(b)for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

(c)the words “by this Part” were omitted.

(4)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 subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.

(5)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.]

13 Reports on modification references.E+W+S

(1)In making a report on a reference under section 12 above, the [F111Competition Commission]—

(a)shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;

(b)where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c)where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the [F112relevant conditions], shall specify in the report modifications by which those effects could be remedied or prevented.

[F113(1A)For the purposes of sections 14 and 14A below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(1B)If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 12 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.]

F114(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F115(3)For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 12 above.

(3A)In making any report on a reference under section 12 above the Competition Commission must have regard to the following considerations before disclosing any information.

(3B)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(3C)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(3D)The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.]

(4)A report of the [F111Competition Commission] on a reference under section 12 above shall be made to the Director.

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

(a)shall, on receiving [F116a report on a reference under section 12(1), send a copy of it to the licence holder] and to the Secretary of State; and

(b)shall, not less than 14 days after that copy is received by the Secretary of State, [F117send 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.

[F118(5A) Subject to subsection (6), the Authority shall—

(a)on receiving a report on a reference under section 12(1A), send a copy of it to the Secretary of State; and

(b)not less than 14 days after that copy is received by the Sectretary 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 it 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 [F119subsection (5) or (5A), direct the Authority to exclude that matter from the 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]

14 Modification following report.E+W+S

(1)Where a report of the [F120Competition Commission] on a reference under section 12 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 [F121the 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 [F121the relevant conditions] as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

[F122(1A)Where at any time it modifies under subsection (1) the standard conditions of licences of any type in consequence of a reference under section 12(1A), 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.]

(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 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.

(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 serving a copy of the notice on the holder of the licence [F123or, as the case may be, the relevant licence holders].

[F124(5)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.

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

(7)If the period of four weeks from the date on which the notice under subsection (5) is given elapses without a direction under section 14A(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 14A(1)(b) has been given, make the modifications which are not specified in the direction.

(8)The modification under subsection (1) of part of a standard condition of a particular licence in consequence of a reference under section 12(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.

(9)Where the Authority modifies the standard conditions of licences of any type as mentioned in subsection (1A), the Authority—

(a)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; and

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

[F12514A Competition Commission’s power to veto modifications following report.E+W+S

(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 14(5), 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 14(5) 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 14(7)) 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 14(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 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 14(7)(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 12(1A), the Commission modifies under subsection (4)(b) the standard conditions of licences of any type, 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 12(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.

[F126(11A)For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (8).

(11B)In giving any notice under subsection (4)(a) or (6), or publishing any notice under subsection (8), the Commission must have regard to the following considerations before disclosing any information.

(11C)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.

(11D)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

(11E)The third consideration is the extent to which the disclosure of the information mentioned in subsection (11D)(a) or (b) is necessary for the purposes of the notice.

(11F)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (11G) and (11H), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this section, as they apply for the purposes of any investigation on references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(11G)Section 110 shall, in its application by virtue of subsection (11F), have effect as if—

(a)subsection (2) were omitted;

(b)in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted “the publication by the Commission of a notice under section 14A(8) of the Electricity Act 1989 in connection with the reference concerned or, if no direction has been given by the Commission under section 14A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period;“ and

(c)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(11H)Section 111(5)(b) shall, in its application by virtue of subsection (11F), have effect as if for sub-paragraph (ii) there were substituted—

“(ii)if earlier, the day on which a notice is published by the Commission under section 14A(8) of the Electricity Act 1989 in connection with the reference concerned or, if no direction is given by the Commission under section 14A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.”

(11I)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 subsection (11F) above, have effect in relation to those sections as applied by virtue of that subsection.

(11J)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.]

F127(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F127(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(14)This section does not apply to the modification of a licence following a report of the Commission made before the commencement of section 39 of the Utilities Act 2000.]

15 Modification by order under other enactments.E+W+S

[F128(1)Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.]

[F128(2)In subsection (1) above “relevant order” means—

(a)an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

(i)one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or

(ii)one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or

(b)an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.]

[F129(2A)The modification under subsection (1) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

[F130(2B)Where the relevant authority modifies under subsection (1) the standard conditions of licences of any type, the relevant authority—

(a)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; and

(b)may, after consultation with the Authority, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of any licence of that type granted before that time.]

(2C)Where at any time the [F131relevant authority] modifies standard conditions under subsection (2B)(a) for the purposes of their incorporation in licences granted after that time, [F132the relevant authority] shall publish those modifications in such manner as [F132the relevant authority] considers appropriate.]

[F133(3)Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.]

[F13415A Licence modifications relating to new electricity trading arrangements.E+W+S

(1)The Secretary of State may, in accordance with this section, modify—

(a)the conditions of a particular licence; or

(b)the standard conditions of licences of any type mentioned in section 6(1),

where he considers it necessary or expedient to do so for the purpose of implementing, or facilitating the operation of, new arrangements relating to the trading of electricity.

(2)The power to modify licence conditions under paragraph (a) or (b) of subsection (1) includes power—

(a)to make modifications relating to the operation of transmission systems and distribution systems; and

(b)to make incidental or consequential, or transitional, modifications.

(3)Before making modifications under this section the Secretary of State shall consult the holder of any licence being modified and such other persons as he considers appropriate.

(4)Any consultation undertaken by the Secretary of State before the commencement of this section shall be as effective, for the purposes of subsection (3), as if undertaken after that commencement.

(5)Any modification of part of a standard condition of a licence under subsection (1)(a) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

(6)Where the standard conditions of licences of any type are modified under subsection (1)(b), the Secretary of State shall make (as nearly as may be) the same modifications of the standard conditions for the purposes of their incorporation in licences of that type granted after that time.

(7)The Secretary of State shall publish any modifications under this section in such manner as he considers appropriate.

(8)The power of the Secretary of State under this section may not be exercised after the end of the period of two years beginning with the passing of the Utilities Act 2000.]

[F135Duties of electricity distributors]E+W+S

F136[16 Duty to connect on request.E+W+S

(1)An electricity distributor is under a duty—

(a)to make a connection between a distribution system of his and any premises, when required to do so by—

(i)the owner or occupier of the premises; or

(ii)an authorised supplier acting with the consent of the owner or occupier of the premises,

for the purpose of enabling electricity to be conveyed to or from the premises;

(b)to make a connection between a distribution system of his and any distribution system of another authorised distributor, when required to do so by that authorised distributor for the purpose of enabling electricity to be conveyed to or from that other system.

(2)Any duty under subsection (1) includes a duty to provide such electric lines or electrical plant as may be necessary to enable the connection to be used for the purpose for which it is required.

(3)The duties under this section shall be performed subject to such terms as may be agreed under section 16A for so long as the connection is required.

(4)In this section and sections 16A to 23—

(a)any reference to making a connection includes a reference to maintaining the connection (and continuing to provide the necessary electric lines or electrical plant);

(b)any reference to requiring a connection includes a reference to requiring the connection to be maintained (and the continued provision of the necessary electric lines and electrical plant); and

(c)any reference to the provision of any electric line or electrical plant is a reference to the provision of such a line or an item of electrical plant either by the installation of a new one or by the modification of an existing one.

(5)The duties under this section are subject to the following provisions of this Part and any regulations made under those provisions.]

[F13716A Procedure for requiring a connection.E+W+S

(1)Where a person requires a connection to be made by an electricity distributor in pursuance of section 16(1), he shall give the distributor a notice requiring him to offer terms for making the connection.

(2)That notice must specify—

(a)the premises or distribution system to which a connection to the distributor’s system is required;

(b)the date on or by which the connection is to be made; and

(c)the maximum power at which electricity may be required to be conveyed through the connection.

(3)The person requiring a connection shall also give the distributor such other information in relation to the required connection as the distributor may reasonably request.

(4)A request under subsection (3) shall be made as soon as practicable after the notice under subsection (1) is given (if not made before that time).

[F138(4A)The Secretary of State may, after consulting the Authority, make provision by regulations for the purpose of entitling an electricity distributor to require a person requiring a connection in pursuance of section 16(1) to pay connection offer expenses to such extent as is reasonable in all the circumstances.

(4B)In this section “connection offer expenses” means expenses which—

(a)are of a kind specified by the regulations, and

(b)have been reasonably incurred by the electricity distributor.

(4C)Regulations under subsection (4A) may specify—

(a)circumstances in which an electricity distributor may not require the payment of connection offer expenses by virtue of the regulations;

(b)the manner in which expenses reasonably incurred by an electricity distributor are to be calculated for the purposes of subsection (4B)(b).]

(5)As soon as practicable after receiving the notice under subsection (1)[F139, any information requested under subsection (3) and any amount payable by virtue of subsection (4A) to the distributor by the person requiring the connection, the distributor shall give to that person] a notice—

(a)stating the extent (if any) to which his proposals are acceptable to the distributor and specifying any counter proposals made by him;

(b)specifying any payment which that person will be required to make under section 19(1) or regulations under section 19(2);

(c)specifying any security which that person will be required to give under section 20; and

(d)stating any other terms which that person will be required to accept under section 21.

(6)A notice under subsection (5) shall also contain a statement of the effect of section 23.]

[F14017 Exceptions from duty to connect.E+W+S

(1)Nothing in section 16(1) requires an electricity distributor to make a connection if and to the extent that—

(a)he is prevented from doing so by circumstances not within his control;

(b)circumstances exist by reason of which his doing so would or might involve his being in breach of regulations under section 29, and he has taken all such steps as it was reasonable to take both to prevent the circumstances from occurring and to prevent them from having that effect; or

(c)it is not reasonable in all the circumstances for him to be required to do so.

(2)Without prejudice to the generality of subsection (1) an electricity distributor is not required to make a connection if—

(a)making the connection involves the distributor doing something which, without the consent of another person, would require the exercise of a power conferred by any provision of Schedule 3 or 4;

(b)the distributor’s licence does not provide for that provision to have effect in relation to him; and

(c)any necessary consent has not, at the time the request is made, been given.

(3)Subsection (1)(c) does not permit an electricity distributor to disconnect any premises or distribution system to which a connection is being maintained by him unless the distributor gives—

(a)where the connection is to premises, to the occupier or to the owner if the premises are not occupied;

(b)where the connection is to another distribution system, to the person who is authorised by a licence or exemption to run that system,

not less than seven working days’ notice of his intention to disconnect the premises or distribution system.]

F14118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

19 Power to recover expenditure.E+W+S

(1)Where any electric line or electrical plant is provided by [F142an electricity distributor] in pursuance of section 16(1) above, the [F142distributor] may require any expenses reasonably incurred in providing it to be defrayed by the person requiring the [F142connection] to such extent as is reasonable in all the circumstances.

[F143(2)The Secretary of State may, after consultation with the Authority, make provision by regulations for entitling an electricity distributor to require a person requiring a connection in pursuance of section 16(1) to pay to the distributor, in respect of any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of making the connection, such amount as may be reasonable in all the circumstances if—

(a)the connection is required within the prescribed period after the provision of the line or plant; and

(b)a person (“the initial contributor”) has made a payment to the distributor in respect of those expenses, the line or plant having been provided for the purpose of making a connection to any premises or distribution system as required by that person.]

(3)Regulations under subsection (2) above may require [F144an electricity distributor] who, in pursuance of this section or the regulations, has recovered any amount in respect of expenses reasonably incurred in providing any electric line or electrical plant—

(a)to exercise his rights under the regulations in respect of those expenses; and

(b)to apply any payments received by him in the exercise of those rights in making such payments as may be appropriate towards reimbursing the initial contributor and any persons previously required to make payments under the regulations.

(4)Any reference in this section to any expenses reasonably incurred in providing an electric line or electrical plant includes a reference to the capitalised value of any expenses likely to be so incurred in [F145continuing to provide it]