Gas Act 1986

Changes over time for: Section 36A

Version Superseded: 31/12/2020

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Point in time view as at 01/04/2014. This version of this provision has been superseded.

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Gas Act 1986, Section 36A is up to date with all changes known to be in force on or before 02 December 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

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[36AF1 Functions with respect to competition.E+W+S

F2(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F3(2)The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the [F4CMA] .

(2A)This subsection applies to the functions of the [F5CMA] under Part 4 of the Enterprise Act 2002 (other than sections 166 [F6, 171 and 174E] ) so far as [F7those functions—

(a)are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b)relate to] commercial activities connected with the carrying on of activities to which this subsection applies.

(2B)So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) [F8above—

(a)references] in Part 4 of the Act of 2002 to the [F9CMA] (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 [F10, 171 and 174E] of that Act and in any other provision of that Act where the context otherwise [F11requires);

(b)references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 34(1) and (2) of this Act.]

[F12(2C)Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to the Authority by virtue of subsections (2) and (2A)—

(a)as if for subsection (1) of that section there were substituted—

“(1)Where the Gas and Electricity Markets Authority—

(a)is proposing to carry out its functions under section 34(1) or (2) of the Gas Act 1986 in relation to a matter for the purposes mentioned in subsection (2), and

(b)considers that the matter is one in respect of which it would be appropriate for the Authority to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

the Authority must publish a notice under this section (referred to in this Part as a “market study notice”).”, and

(b)as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with the carrying on of activities to which section 36A(2A) of the Gas Act 1986 applies”.]

[F13[F14(3)The Authority shall be entitled to exercise, concurrently with the [F15CMA] , the functions of the [F15CMA] under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) [F16, 40B(1) to (4)] and 51), so far as relating to—

(a)agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b)conduct of the kind mentioned in section 18(1) of that Act,

(c)agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or

(d)conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community,

which relate to the carrying on of activities to which this subsection applies.]

(3A)So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to [F17the CMA] are to be read as including a reference to the Director ( [F18except in sections 31D(1) to (6) , 38(1) to (6)[F16, 40B(1) to (4)]] , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).]]

(4)Subsections [F19(2A)] and (3) above apply to—

(a)such activities as are mentioned in section 5(1) above; and

(b)activities ancillary to such activities as are so mentioned (including in particular the storage of gas, the provision and reading of meters and the provision of pre-payment facilities).

[F20(5)Before the [F21CMA] or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other.

(5A)Neither the [F21CMA] nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.]

(6)It shall be the duty of the Director, for the purpose of assisting [F22a CMA group] in carrying out an investigation on a [F23market investigation reference made by the Authority (under section 131 of the Act of 2002)] by virtue of subsection (2) F24. . . above, to give to the [F25group] —

(a)any information which is in his possession and which relates to matters falling within the scope of the investigation and—

(i)is requested by the [F25group] for that purpose; or

(ii)is information which in his opinion it would be appropriate for that purpose to give to the [F25group] without any such request; and

(b)any other assistance which the [F25group] may require and which it is within his power to give, in relation to any such matters,

and the [F25group] shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

[F26(6A)In subsection (6) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

(7)If any question arises as to whether subsection (2) or (3) above applies to any particular case, that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a)[F27Part 4 of the Enterprise Act 2002] ; or

[F28(b)Part I of the Competition Act 1998 ( [F29other than sections 31D(1) to (6), 38(1) to (6) [F30, 40B(1) to (4)]] and 51),]

by or in relation to the Director on the ground that it should have been done by or in relation to [F31the CMA] .

[F32(8)Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Authority by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the [F33CMA] included references to the Authority.]

F34(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10)Any reference in this Part to functions of the Director under this Part, or to functions assigned to him by or under this Part, includes a reference to functions [F35[F36exercisable by the Authority by virtue of subsection (2) or (3) above] .].]

Textual Amendments

F1S. 36A inserted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 43; S.I. 1996/218, art. 2

F2S. 36A(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 15(10)(a), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F3Ss. 36A(2)-(2B) substituted for s. 36A(2) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(2); S.I. 2003/1397, art. 2(1), Sch.

F4Word in s. 36A(2) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(2) (with art. 3)

F5Word in s. 36A(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(3)(a) (with art. 3)

F6Words in s. 36A(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(3)(b) (with art. 3)

F7Words in s. 36A(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(3)(c) (with art. 3)

F8Words in s. 36A(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(a) (with art. 3)

F9Word in s. 36A(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(b) (with art. 3)

F10Words in s. 36A(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(c) (with art. 3)

F11Words in s. 36A substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(d) (with art. 3)