Energy Act 2004

173 Appeals to the [F1 CMA] E+W+S

(1) An appeal F2 ... from a decision by GEMA to which this section applies [F3 shall lie to the Competition and Markets Authority (in this Chapter referred to as “the CMA”)].

(2) This section applies to a decision by GEMA if—

(a) it is a decision relating to a document by reference to which provision is made by a condition of a gas or electricity licence;

(b) that document is designated for the purposes of this section by an order made by the Secretary of State;

(c) the decision consists in the giving or refusal of a consent by virtue of which the document has effect, or would have had effect, for the purposes of the licence with modifications or as reissued; and

(d) the decision is not of a description of decisions for the time being excluded from the right of appeal under this section by an order made by the Secretary of State.

[F4 (2A) This section also applies to a decision by GEMA to give a direction under section 36C of the Gas Act 1986 (power to direct a modification of the Uniform Network Code).

(2B) But subsection (2A) does not have effect in relation to such a decision if it falls within a description of decisions for the time being excluded from the right of appeal under this section by an order made by the Secretary of State.]

[F5 (2C) This section also applies to a decision by GEMA to modify a designated document (within the meaning of Part 6 of the Energy Act 2023) under section 192 of that Act.]

(3) An appeal against a decision may be brought under this section only by—

(a) a person whose interests are materially affected by it; or

(b) a body or association whose functions are or include representing persons in respect of interests of theirs that are so affected.

(4) The permission of the [F6 CMA] is required for the bringing of an appeal under this section.

(5) The [F6 CMA] may refuse permission only on one of the following grounds—

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

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

(6) Before making an order under this section, the Secretary of State must consult—

(a) GEMA; and

(b) such other persons as he considers appropriate.

(7) An order excluding decisions from the right of appeal under this section may provide—

(a) for the exclusion to apply only in such cases as may be determined in accordance with the order; and

(b) for a determination in accordance with the order to be made by such persons, in accordance with such procedures, and by reference to such matters and the opinions of such persons (including GEMA), as may be provided for in the order.

(8) An order made by the Secretary of State under this section is subject to the negative resolution procedure.

(9) In this section—

• “consent” includes an approval or direction;

• “gas or electricity licence” means a licence for the purposes of section 5 of the Gas Act 1986 (c. 44) or section 4 of the 1989 Act (prohibition on unlicensed activities).

Textual Amendments

F1 Word in s. 173 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 102(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F2 Words in s. 173(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 102(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Words in s. 173(1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 102(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 S. 173(2A)(2B) inserted (18.10.2011) by Energy Act 2011 (c. 16), ss. 81(4), 121(4)

F5 S. 173(2C) inserted (10.9.2024) by Energy Act 2023 (c. 52), s. 334(1), Sch. 14 para. 10; S.I. 2024/890, reg. 2(b)(x)

F6 Words in s. 173(4)(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 102(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modifications etc. (not altering text)

C1 Ss. 171-196: power to apply (with modifications) conferred (26.10.2023) by Energy Act 2023 (c. 52), s. 334(2)(l), Sch. 18 para. 50

Commencement Information

I1 S. 173 in force at 5.10.2004 by S.I. 2004/2575, art. 2(1), Sch. 1