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Enterprise Act 2002

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Enterprise Act 2002, Section 168 is up to date with all changes known to be in force on or before 03 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. Help about Changes to Legislation

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168 Regulated marketsU.K.
This section has no associated Explanatory Notes

(1)Subsection (2) applies where the [F1CMA] or the Secretary of State is considering for the purposes of this Part whether relevant action would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.

(2)The [F1CMA] or (as the case may be) the Secretary of State shall, in deciding whether such action would be reasonable and practicable, have regard to the relevant statutory functions of the sectoral regulator concerned.

(3)In this section “relevant action” means—

(a)[F2modifying the conditions of a licence granted under section 7 of the Telecommunications Act 1984 (c. 12);]

F3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)modifying the conditions of a licence granted under section 7 [F4or 7A][F4, 7A [F5, 7AA, 7AB or 7AC]] of the Gas Act 1986 (c. 44);

(d)modifying the conditions of a licence granted under section 6 of the Electricity Act 1989 (c. 29);

(e)modifying networking arrangements (within the meaning given by [F6section 290 of the Communications Act 2003]);

(f)modifying the conditions of a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56);

[F7(ff)modifying the conditions of a licence granted under Chapter 1A of Part 2 of the Act of 1991 or modifying the terms and conditions of an agreement under section 66D [F8or 117E] of that Act;]

(g)modifying the conditions of a licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1));

(h)modifying the conditions of a licence granted under section 8 of the Railways Act 1993 (c. 43);

[F9(hh)modifying the conditions of a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005;]

(i)modifying an access agreement (within the meaning given by section 83(1) of the Act of 1993) or a franchise agreement (within the meaning given by section 23(3) of that Act);

(j)modifying conditions in force under Part 4 of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1)) other than any conditions imposed or modified in pursuance of article 40(3) or (4) of that Order;

(k)modifying the conditions of a licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2));

F10(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(m)modifying the conditions of a licence granted under section 5 of the Transport Act 2000 (c. 38);

[F11(n)modifying the conditions of a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006;]

[F12(o)modifying regulatory conditions imposed under Part 3 of the Postal Services Act 2011;]

[F13(p)modifying the conditions of a licence issued under section 87 of the Health and Social Care Act 2012;]

[F14(q)modifying the conditions of a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012][F15; or

(r)modifying the conditions of a licence granted under section 7 of the Energy Act 2023.]

(4)In this section “relevant statutory functions” means—

(a)[F16in relation to any licence granted under section 7 of the Telecommunications Act 1984, the duties and obligations of the Director General of Telecommunications imposed on him by or in pursuance of any enactment or other provision mentioned in section 7(5)(a) of that Act;]

F17(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)in relation to any licence granted under section 7 [F18or 7A][F18, 7A [F19, 7AA, 7AB or 7AC]] of the Gas Act 1986 (c. 44), the objectives and duties of the Gas and Electricity Markets Authority under section 4AA and 4AB(2) of that Act;

(d)in relation to any licence granted under section 6 of the Electricity Act 1989 (c. 29), the objectives and duties of the Gas and Electricity Markets Authority under section 3A and 3B(2) of that Act;

[F20(e)in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;]

(f)in relation to a company’s appointment under Chapter 1 of Part 2 of the Water Industry Act 1991 (c. 56), the duties of [F21the Water Services Regulation Authority] under section 2 of that Act;

[F22(ff)in relation to a licence granted under Chapter 1A of Part 2 of the Act of 1991 or an agreement under section 66D [F23or 117E] of that Act, the duties of the Authority under section 2 of that Act or under that section and section 66D [F23or 117E] of that Act (as the case may be);]

(g)in relation to any licence granted under article 10 of the Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)), the duty of the Director General of Electricity Supply for Northern Ireland under article 6 of that Order;

(h)in relation to any licence granted under section 8 of the Railways Act 1993 (c. 43) [F24where none of the conditions of the licence relate to consumer protection], the duties of the [F25Office of Rail and Road] under section 4 of that Act;

[F26(hh)in relation to a SNRP issued pursuant to the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2005 where none of the conditions of the SNRP relate to consumer protection, the duties of the Department for Regional Development under regulation 36 of those Regulations;]

(i)[F27in relation to any licence granted under section 8 of the Act of 1993 where one or more than one condition of the licence relates to consumer protection, the duties of the [F28Office of Rail Regulation] under section 4 of that Act and the duties of the Strategic Rail Authority under section 207 of the Transport Act 2000 (c. 38);]

(j)in relation to any access agreement (within the meaning given by section 83(1) of the Act of 1993), the duties of the [F25Office of Rail and Road] under section 4 of the Act of 1993;

(k)in relation to any franchise agreement (within the meaning given by section 23(3) of the Act of 1993), the duties of the [F29Secretary of State, the Scottish Ministers and the National Assembly for Wales under section 4 of the Act of 1993];

(l)in relation to conditions in force under Part 4 of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1)) other than any conditions imposed or modified in pursuance of article 40(3) or (4) of that Order, the duties of the Civil Aviation Authority under article 30(2) and (3) of that Order;

(m)in relation to any licence granted under article 8 of the Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)), the duties of the Director General of Gas for Northern Ireland under article 5 of that Order;

F30(n). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(o)in relation to any licence granted under section 5 of the Transport Act 2000, the duties of the Civil Aviation Authority under section 87 of that Act;

[F31(p)in relation to a company's appointment under Chapter I of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006, the duties of the Northern Ireland Authority for Utility Regulation under Article 6 of that Order];

[F32(q)in relation to regulatory conditions imposed under Part 3 of the Postal Services Act 2011, the duty of the Office of Communications under section 29 of that Act;]

[F33(r)in relation to any licence issued under section 87 of the Health and Social Care Act 2012, the duties of Monitor under sections 62 and 66 of that Act;]

[F34(s)in relation to a licence granted under Chapter 1 of Part 1 of the Civil Aviation Act 2012, the duties of the Civil Aviation Authority under section 1 of that Act][F35, and

(t)in relation to a licence granted under section 7 of the Energy Act 2023, the objectives and duties of the Gas and Electricity Markets Authority under section 1 of that Act].

(5)In this section “sectoral regulator” means—

(a)the Civil Aviation Authority;

[F36(b)the Northern Ireland Authority for Utility Regulation.]

(d)[F37the Director General of Telecommunications;]

(e)the Water Services Regulation Authority;

(f)the Gas and Electricity Markets Authority;

[F38(g)the Office of Communications;]

F39(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i)the [F25Office of Rail and Road]; F40. . .

[F41(ia)Monitor;]

[F42(j)the Secretary of State;

(k)the Scottish Ministers; or

(l)the National Assembly for Wales][F43 or

(k)the Department for Regional Development.]

(6)Subsection (7) applies where the [F44CMA] or the Secretary of State is considering for the purposes of this Part whether modifying the conditions of a licence granted under section 7 [F45or 7A][F45, 7A [F46, 7AA, 7AB or 7AC]] of the Gas Act 1986 (c. 44) [F47, section 6] of the Electricity Act 1989 (c. 29) [F48or section 7 of the Energy Act 2023] would be reasonable and practicable for the purpose of remedying, mitigating or preventing an adverse effect on competition or any detrimental effect on customers so far as resulting from such an effect.

(7)The [F44CMA] or (as the case may be) the Secretary of State may, in deciding whether modifying the conditions of such a licence would be reasonable and practicable, have regard to those matters to which the Gas and Electricity Markets Authority may have regard by virtue of section 4AA(4) of the Act of 1986 or (as the case may be) section 3A(4) of the Act of 1989.

(8)The Secretary of State may by order modify subsection (3), (4), (5), (6) or (7).

(9)Part 2 of Schedule 9 (which makes provision for functions under this Part to be exercisable by various sectoral regulators) shall have effect.

Textual Amendments

F2S. 168(3)(a) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 389(1), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F6Words in s. 168(3)(e) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(5)(a) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F8Words in s. 168(3)(ff) inserted (1.4.2017) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 129(2); S.I. 2017/462, art. 3(k)(xxiv)

F15S. 168(3)(r) and preceding word inserted (26.12.2023) by Energy Act 2023 (c. 52), s. 334(3)(a), Sch. 5 para. 8(2)(b)

F16S. 168(4)(a) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F20S. 168(4)(e) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(5)(b) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F21Words in s. 168(4)(f) substituted (1.4.2006) by Water Act 2003 (c. 37), ss. 101(1), 105(3), Sch. 7 para. 36(3)(a); S.I. 2005/2714, art. 4(f)

F23Words in s. 168(4)(ff) inserted (1.4.2017) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 129(3); S.I. 2017/462, art. 3(k)(xxiv)

F29Words in s. 168(4)(k) substituted (E.W.S.) (24.7.2005 for certain purposes and 16.10.2005 otherwise) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 12 para. 18(2)(c); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F35S. 168(4)(t) and preceding word inserted (26.12.2023) by Energy Act 2023 (c. 52), s. 334(3)(a), Sch. 5 para. 8(3)(b)

F37S. 168(5)(d) repealed (25.7.2003 for certain purposes and 29.12.2003 for certain purposes) by Communications Act 2003 (c. 21), ss. 406(7), 411(2)(3), Sch. 19(1) (with transitional provisions in Sch. 18 and Sch. 19 Note 1); S.I. 2003/1900, arts. 1(2), 2(1), 3(1), Sch. 1 (with arts. 3-6 (as amended (8.12.2003) by S.I. 2003/3142, art. 1(3))); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F38S. 168(5)(g) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406(1), 411(2)(3), Sch. 17 para. 174(5)(c) (with transitional provisions in Sch. 18); S.I. 2003/3142, art. 3(1) (subject to arts. 3(3), 11)

F40Word in s. 168(5)(i) repealed (16.10.2005 for E.W.S) and omitted (3.1.2006 for N.I.) by virtue of Railways Act 2005 (c. 14), ss. 59, 60, Sch. 13 Pt. 1; S.I. 2005/2812, art. 2(1), Sch. 1; S.R. 2005/537, reg. 45, Sch. 5 Pt. 1 para. 4(c)

F42S. 168(5)(j)-(l) substituted (E.W.S.) (24.7.2005 for certain purposes and 16.10.2005 otherwise) for s. 168(5)(j) by Railways Act 2005 (c. 14), ss. 59, 60, Sch. 12 para. 18(3); S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F47Words in s. 168(6) substituted (26.12.2023) by Energy Act 2023 (c. 52), s. 334(3)(a), Sch. 5 para. 8(4)(a)

F48Words in s. 168(6) inserted (26.12.2023) by Energy Act 2023 (c. 52), s. 334(3)(a), Sch. 5 para. 8(4)(b)

Modifications etc. (not altering text)

C2S. 168: power to amend conferred (24.5.2024) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 138(2)-(7), 339(2)(c)

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