Electricity Act 1989

[F1Appeal from decisions of the AuthorityU.K.

11CAppeal to the [F2CMA] U.K.

(1)An appeal lies to the [F3CMA] against a decision by the Authority to proceed with the modification of a condition of a licence under section 11A.

(2)An appeal may be brought under this section only by—

(a)a relevant licence holder (within the meaning of section 11A);

(b)any other person who holds a licence of any type under section 6(1) whose interests are materially affected by the decision;

(c)a qualifying body or association in the capacity of representing a person falling within paragraph (a) or (b);

(d)[F4Citizens Advice or [F5Consumer Scotland] or those bodies acting jointly] in the capacity of representing consumers whose interests are materially affected by the decision.

(3)The permission of the [F6CMA] is required for the bringing of an appeal under this section.

(4)The [F6CMA] may refuse permission to bring an appeal only on one of the following grounds—

(a)in relation to an appeal brought by a person falling within subsection (2)(b), that the interests of the person are not materially affected by the decision;

(b)in relation to an appeal brought by a qualifying body or association, that the interests of the person represented are not materially affected by the decision;

(c)in relation to an appeal brought by [F7Citizens Advice or [F8Consumer Scotland] or those bodies acting jointly], that the interests of the consumers represented are not materially affected by the decision;

(d)in relation to any appeal—

(i)that the appeal is brought for reasons that are trivial or vexatious;

(ii)that the appeal has no reasonable prospect of success.

(5)References in this section to a qualifying body or association are to a body or association whose functions are or include representing persons in respect of interests of theirs which are materially affected by the decision in question.

11DProcedure on appeal to [F9CMA] U.K.

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(2)F11... Schedule 5A to this Act has effect.

[F12(2A)Except where specified otherwise in Schedule 5A, the functions of the CMA with respect to an appeal under section 11C are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

11EDetermination by [F13CMA] of appealU.K.

(1)This section applies to every appeal brought under section 11C.

(2)In determining an appeal the [F14CMA] must have regard, to the same extent as is required of the Authority, to the matters to which the Authority must have regard—

(a)in the carrying out of its principal objective under section 3A;

(b)in the performance of its duties under that section; and

(c)in the performance of its duties under sections 3B and 3C.

(3)In determining the appeal the [F14CMA] —

(a)may have regard to any matter to which the Authority was not able to have regard in relation to the decision which is the subject of the appeal; but

(b)must not, in the exercise of that power, have regard to any matter to which the Authority would not have been entitled to have regard in reaching its decision had it had the opportunity of doing so.

(4)The [F14CMA] may allow the appeal only to the extent that it is satisfied that the decision appealed against was wrong on one or more of the following grounds—

(a)that the Authority failed properly to have regard to any matter mentioned in subsection (2);

(b)that the Authority failed to give the appropriate weight to any matter mentioned in subsection (2);

(c)that the decision was based, wholly or partly, on an error of fact;

(d)that the modifications fail to achieve, in whole or in part, the effect stated by the Authority by virtue of section 11A(7)(b);

(e)that the decision was wrong in law.

(5)To the extent that the [F14CMA] does not allow the appeal, it must confirm the decision appealed against.

11F [F15CMA's] powers on allowing appealU.K.

(1)This section applies where the [F16CMA] allows an appeal to any extent.

(2)If the appeal is in relation to a price control decision, the [F17CMA] must do one or more of the following—

(a)quash the decision (to the extent that the appeal is allowed);

(b)remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the [F17CMA] ;

(c)substitute the [F18CMA's] decision for that of the Authority (to the extent that the appeal is allowed) and give any directions to the Authority or any other party to the appeal.

(3)If the appeal is in relation to any other decision, the [F19 CMA] must do one or both of the following—

(a)quash the decision (to the extent that the appeal is allowed);

(b)remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the [F19 CMA] .

(4)A direction under subsection (2) or (3) must not require a person to do anything that the person would not have power to do (apart from the direction).

(5)A person to whom a direction is given under that subsection must comply with it.

(6)A direction given under that subsection to a person other than the Authority is enforceable as if it were an order of the High Court or (in Scotland) an order of the Court of Session.

(7)For the purposes of this section a decision is a price control decision, in relation to the modification of a condition of a licence, if the purpose of the condition is, in the [F20CMA's] opinion, to limit or control the charges on, or the revenue of, the holder of the licence.

(8)In determining for the purposes of subsection (7) what the purpose of a condition is the condition may be assessed on its own or in combination with any other conditions of the licence.

(9)In this section and sections 11G and 11H any reference to a party to an appeal is to be read in accordance with Schedule 5A.

11GTime limits for [F21CMA] to determine an appealU.K.

(1)The [F22CMA] must—

(a)determine an appeal against a price control decision within the period of 6 months beginning with the permission date;

(b)determine an appeal against any other decision within the period of 4 months beginning with the permission date.

(2)Subsection (1)(a) or (b) does not apply if subsection (3) applies.

(3)This subsection applies where—

(a)the [F23CMA] has received representations on the timing of the determination from a party to the appeal; and

(b)it is satisfied that there are special reasons why the determination cannot be made within the period specified in subsection (1)(a) or (b).

(4)Where subsection (3) applies, the [F23CMA] must—

(a)determine an appeal against a price control decision within the period specified by it, not being longer than the period of 7 months beginning with the permission date;

(b)determine an appeal against any other decision within the period specified by it, not being longer than the period of 5 months beginning with the permission date.

(5)Where subsection (3) applies, the [F23CMA] must also—

(a)inform the parties to the appeal of the time limit for determining the appeal, and

(b)publish that time limit in such manner as it considers appropriate for the purpose of bringing it to the attention of any other persons likely to be affected by the determination.

(6)In this section “price control decision” is to be read in accordance with section 11F.

(7)References in this section to the permission date are to the date on which the [F24CMA] gave permission to bring the appeal in accordance with section 11C(3).

11HDetermination of appeal by [F25CMA] : supplementaryU.K.

(1)A determination by the [F26CMA] on an appeal—

(a)must be contained in an order made by the [F26CMA] ;

(b)must set out the reasons for the determination;

(c)takes effect at the time specified in the order or determined in accordance with provision made in the order;

(d)must be notified by the [F26CMA] to the parties to the appeal;

(e)must be published by the [F26CMA] —

(i)as soon as reasonably practicable after the determination is made;

(ii)in such manner as the [F26CMA] considers appropriate for the purpose of bringing the determination to the attention of any person likely to be affected by it (other than a party to the appeal).

(2)The [F27CMA] may exclude from publication under subsection (1)(e) any information which it is satisfied is—

(a)commercial information, the disclosure of which would, or might in [F28CMA's] opinion, significantly harm the legitimate business interests of an undertaking to which it relates; or

(b)information relating to the private affairs of an individual, the disclosure of which would, or might in the [F28CMA's] opinion, significantly harm the individual’s interests.

(3)The Authority must take such steps as it considers requisite for it to comply with an order of the [F29CMA] made by virtue of subsection (1)(a).

(4)The steps must be taken—

(a)if a time is specified in (or is to be determined in accordance with) the order, within that time;

(b)in any other case, within a reasonable time.

(5)Subsections (2) to (4) of section 11B apply where a condition of a licence is modified in accordance with section 11F as they apply where a condition of a licence is modified under section 11A.]

F3012 Modification references to Monopolies Commission.E+W+S

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F3012A References under section 12: time limitsU.K.

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F3012B References under section 12: powers of investigationU.K.

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F3013 Reports on modification references.E+W+S

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F3014 Modification following report.E+W+S

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F3014A Competition Commission’s power to veto modifications following report.E+W+S

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

[F31(1)Where the [F32CMA] 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.]

[F31(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 [F33or markets] in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.]

[F34(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.

[F35(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 [F36relevant authority] modifies standard conditions under subsection (2B)(a) for the purposes of their incorporation in licences granted after that time, [F37the relevant authority] shall publish those modifications in such manner as [F37the relevant authority] considers appropriate.]

[F38(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.]

[F3915A Licence modifications relating to new electricity trading arrangements.U.K.

(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.]