Electricity Act 1989

43 Functions with respect to competition. E+W+S

F1 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2 (2) The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the [F3 CMA] .

(2A) This subsection applies to the functions of the [F4 CMA] under Part 4 of the Enterprise Act 2002 (other than sections 166 [F5 , 171 and 174E]) so far as [F6 those 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 generation, transmission or supply of electricity [F7 or the use of electricity interconnectors]

(2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) [F8 above—

(a) references] in Part 4 of the Act of 2002 to the [F9 CMA] (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 [F11 requires);

(b) references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 47(1) 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 47(1) of the Electricity Act 1989 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 generation, transmission or supply of electricity or the use of electricity interconnectors”.]

[F13 (3) The Authority shall be entitled to exercise, concurrently with the [F14 CMA] , the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) [F15 , 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 [F16 Article 101(1) of the Treaty on the Functioning of the European Union], or

(d) conduct which amounts to abuse of the kind mentioned in [F17 Article 102 of the Treaty on the Functioning of the European Union],

which relate to commercial activities connected with the generation, transmission or supply of electricity [F7 or the use of electricity interconnectors].]

[F18 (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 [F19 CMA] are to be read as including a reference to [F20 the Authority] ([F21 except in sections 31D(1) to (6), 38(1) to (6) [F15 , 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).]

[F22 (4) Before the [F23 CMA] 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.

(4A) Neither the [F23 CMA] 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.]

(5) It shall be the duty of [F20 the Authority], for the purpose of assisting [F24 a CMA group] in carrying out an investigation on [F25 market investigation reference made by the Authority (under section 131 of the Act of 2002)] by virtue of subsection (2) F26 ... above, to give to the [F27 group] —

(a) any information which is in [F28 its] possession and which relates to matters falling within the scope of the investigation and—

(i) is requested by the [F27 group] for that purpose; or

(ii) is information which in [F28 its] opinion it would be appropriate for that purpose to give to the [F27 group] without any such request; and

(b) any other assistance which the [F27 group] may require and which it is within [F28 its] power to give, in relation to any such matters,

and the [F27 group] shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

[F29 (5A) In subsection (5) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

(6) [F30 If any question arises as to whether subsection (2) or (3) above applies to any particular case] F31 ... F32 ... , that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a) [F33 Part 4 of the Enterprise Act 2002]; or

F34 [(b) Part I of the Competition Act 1998 ([F35 other than sections 31D(1) to (6), 38(1) to (6) [F36 , 40B(1) to (4)]] and 51),]

by or in relation to [F20 the Authority] on the ground that it should have been done by or in relation to [F37 the CMA] .

[F38 (6A) 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 [F39 CMA] included references to the Authority.]

F40 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 S. 43(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(7)(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.)

F2 S. 43(2)-(2B) substituted for s. 43(2) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(2); S.I. 2003/1397, art. 2(1), Sch.

F3 Word in s. 43(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. 65(2) (with art. 3)

F4 Word in s. 43(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. 65(3)(a) (with art. 3)

F5 Words in s. 43(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. 65(3)(b) (with art. 3)

F6 Words in s. 43(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. 65(3)(c) (with art. 3)

F7 Words in s. 43(2A)(3) inserted (14.8.2006) by Energy Act 2004 (c. 20), ss. 147(5), 198(2); S.I. 2006/1964, art. 2, Sch.

F8 Words in s. 43(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. 65(4)(a) (with art. 3)

F9 Word in s. 43(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. 65(4)(b) (with art. 3)

F10 Words in s. 43(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. 65(4)(c) (with art. 3)

F11 Words in s. 43(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. 65(4)(d) (with art. 3)

F12 S. 43(2C) inserted (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. 65(5) (with art. 3)

F13 S. 43(3) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(a)

F14 Word in s. 43(3) 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. 65(6) (with art. 3)

F15 Words in s. 43(3)(3A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 3; S.I. 2014/416, art. 2(1)(f) (with Sch.); S.I. 2014/416, art. 2(1)(f) (with Sch.)

F16 Words in s. 43(3)(c) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F17 Words in s. 43(3)(d) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F18 S. 43(3)(3A) substituted for s. 43(3) (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 4(4)(5) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F19 Words in s. 43(3A) 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. 65(7) (with art. 3)

F20 Words substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F21 Words in s. 43(3A) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(b)

F22 S. 43(4)(4A) substituted for s. 43(4) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(3); S.I. 2003/1397, art. 2(1), Sch.

F23 Word in s. 43(4)(4A) 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. 65(8) (with art. 3)

F24 Words in s. 43(5) 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. 65(9)(a)(i) (with art. 3)

F25 Words in s. 43(5) 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. 65(9)(a)(ii) (with art. 3)

F26 Words in s. 43(5) repealed (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. II para. 4(7), Sch. 14 Pt. I (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F27 Word in s. 43(5) 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. 65(9)(b) (with art. 3)

F28 Word substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F29 S. 43(5A) inserted (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. 65(10) (with art. 3)

F30 Words in s. 43(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 14 para. 7; S.I. 2014/416, art. 2(1)(e) (with Sch.)

F31 Words in s. 43(6) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(4)(b); S.I. 2003/1397, art. 2(1), Sch.

F32 Words in s. 43(6) omitted by virtue of Deregulation and Contracting Out Act 1994 (c. 40), s.81, Sch. 17

F33 Words in s. 43(6)(a) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(4)(c); S.I. 2003/1397, art. 2(1), Sch.

F34 S. 43(6)(b) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10, Pt. II para. 4(8) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F35 Words in s. 43(6)(b) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 3(2)(c)

F36 Words in s. 43(6)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 3; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F37 Words in s. 43(6) 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. 65(11) (with art. 3)

F38 S. 43(6A) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(5); S.I. 2003/1397, art. 2(1), Sch.

F39 Word in s. 43(6A) 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. 65(12) (with art. 3)

F40 S. 43(7) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(6), Sch. 26; S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

C1 S. 43(2) applied (3.1.1995) by 1994 c. 40, ss. 7(2), 82(2)(a)(b), Sch. 2 para. 4(2)

C2 S. 43(3) restricted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 4(1) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.