PART IIELECTRICITY SUPPLY
Modification of licences
Modification by agreement14
F101
Subject to the following provisions of this Article, the Authority may—
a
modify the conditions of a licence if the licence holder consents to the modifications;
b
in granting a licence, modify any of the standard conditions to such extent as the Authority considers requisite to meet the circumstances of the particular case; or
c
modify the standard conditions of licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 10(1).
2
Before making modifications under this Article, the Director shall give notice—
a
stating that he proposes to make the modifications and setting out their effect;
b
stating the reasons why he proposes to make the modifications; and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
3
A notice under paragraph (2) shall be given—
a
by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy of the notice on the licence holder.
4
The Director shall also send a copy of a notice under paragraph (2) to the Department; and if, within the period specified in the notice, the Department directs the Director not to make any modifications, the Director shall comply with the direction.
F115
The Authority shall not make any modifications of standard conditions under paragraph 1(c) unless—
a
no licence holder whose licence incorporates the standard conditions (a “relevant licence holder”) has objected, within the period specified under paragraph (2)(c), to the modifications, unless any such objection has been withdrawn; or
b
the Authority is of the opinion that—
i
the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying out of activities to which the modifications relate;
ii
the modifications would remove or reduce the burden without removing any necessary protection; and
iii
the modifications are such that no relevant licence holder would be unduly disadvantaged in competing with other relevant licence holders.
6
Where at any time the Authority modifies standard conditions under paragraph (1)(c) for the purposes of their incorporation in licences under sub-paragraph (a), (b), (bb), (c) or (d) of Article 8(1) granted after that time, it shall publish the modifications in such manner as it considers appropriate.
F9Modification of conditions under Article 14: supplementary14A
1
Paragraph (2) and (3) apply where at any time the Authority modifies the conditions of licences of any type under Article 14.
2
If the conditions modified are standard conditions, the Authority must—
a
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
publish the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications.
3
The Authority may make such incidental or consequential modifications of any conditions of licences of any type as it considers necessary or expedient.
4
The modification of part of a standard condition of a particular licence under Article 14 does not prevent any other part of the conditions from continuing to be regarded as a standard condition for the purposes of this Part.
5
The modification of a condition of a licence under this Article has effect subject to the giving of a direction under paragraph 2 of Schedule 5A in relation to the decision to which the modification relates.
Modification references toF1CMA15
1
The Director may make to theF15CMA a reference which is so framed as to require F16the CMA to investigate and report on the questions—
a
whether any matters which—
i
relate to theF12 carrying on of activities authorised or regulated by a particular licence; and
ii
are specified in the reference,
operate, or may be expected to operate, against the public interest; and
b
if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.
2
The Director may, at any time, by notice given to theF17CMA vary a reference under this Article by adding to the matters specified in the reference or by excluding from the reference some or all of the matters so specified; and on receipt of any such notice F18the CMA shall give effect to the variation.
3
The Director may specify in a reference under this Article, or a variation of such a reference, for the purpose of assisting theF19CMA in carrying out the investigation on the reference—
a
any effects adverse to the public interest which, in his opinion, the matters specified in the reference or variation have or may be expected to have; and
b
any modifications of the conditions of the licence by which, in his opinion, those effects could be remedied or prevented.
4
As soon as practicable after making a reference under this Article or a variation of such a reference, the Director—
a
shall serve a copy of the reference or variation on the licence holder; and
b
shall publish particulars of the reference or variation in such manner as he considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.
5
The Director shall also send a copy of a reference under this Article, or a variation of such a reference, to the Department; and if, before the end of the period of 28 days from the day on which the Department receives the copy of the reference or variation, the Department directs theF20CMA not to proceed with the reference or, as the case may require, not to give effect to the variation, F21the CMA shall comply with the direction.
6
It shall be the duty of the Director, for the purpose of assisting theF22CMA in carrying out an investigation on a reference under this ArticleF12 or in carrying out functions under Article 17A, to give to F23the CMA—
a
any information in his possession which relates to matters falling within the scope of the investigationF12 or the carrying out of those functions and—
i
is requested by F23the CMA for that purpose; or
ii
is information which, in his opinion, it would be appropriate for that purpose to give to F23the CMA without any such request; and
b
any other assistance which F23the CMA may require, and which it is within his power to give, in relation to any such matters;
7
In determining for the purposes of this Article whether any particular matter operates, or may be expected to operate, against the public interest, theF24CMA shall have regard to the matters as respects which duties are imposed on the Department and the Director byF12 Article 12 of the Energy (Northern Ireland) Order 2003F14 or Article 9 of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007.
F257A
The functions of the CMA with respect to a reference under this Article 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 (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act 2002, as applied by Articles 15B and 17A).
F13Paras. (8) and (8A) rep. by 2002 c. 40
9
The Secretary of State may appoint F26persons to membership of the CMA for the purpose of being available for selection as members of a group constituted to carry out functions on behalf of the CMA with respect to a reference under this Article.
F2References under Article 15: time limits15A
1
Every reference under Article 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
2
A report of the F30CMA on a reference under Article 15 shall not have effect (and no action shall be taken in relation to it under Article 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under paragraph (3).
3
The Director may, if he has received representations on the subject from the F31CMA and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
4
No more than one extension is possible under paragraph (3) in relation to the same reference.
5
The Director shall, in the case of an extension made by him under paragraph (3)—
a
publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
b
send a copy of what has been published by him under sub-paragraph (a) to the licence holder.
References under Article 15: powers of investigation15B
1
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs F32(1A), (2) and (3), for the purposes of references under Article 15 as they apply for the purposes of references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
F331A
Section 109 shall, in its application by virtue of paragraph (1), have effect as if—
a
for subsection (A1), there were substituted—
A1
For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with a reference under Article 15 of the Electricity (Northern Ireland) Order 1992.
b
subsection (8A) were omitted.
2
Section 110 shall, in its application by virtue of paragraph (1), have effect as if—
a
subsection (2) were omitted; F34. . .
F35aa
after subsection (3), there were inserted—
3A
No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication of the report of the CMA on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
b
in subsection (9) the words from “or section” to “section 65(3))” were omitted.
F363
Section 111(5)(b) shall, in its application by virtue of paragraph (1), have effect as if for sub-paragraph (ii) there were substituted—
ii
if earlier, the day on which the report of the CMA on the reference concerned is made or, if no such report is made within the period permitted for that purpose, the latest day on which the report may be made within the permitted period.
4
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.
5
Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.
Reports on modification references16
1
In making a report on a reference under Article 15, theF40CMA
a
shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;
b
where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and
c
where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify in the report modifications by which those effects could be remedied or prevented.
F371A
For the purposes ofF38 Articles 17 and 17A, a conclusion contained in a report of the F41CMA is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted F42by the chair of the CMA for the purpose of carrying out the functions of the CMA with respect to the reference.
1B
If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 15 as the conclusions of the F43CMA, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
Para. (2) rep. by 1998 c.41
F393
For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the F44CMA on a reference under Article 15.
3A
In making any report on a reference under Article 15 the F45CMA must have regard to the following considerations before disclosing any information.
3B
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the F46CMA thinks is contrary to the public interest.
3C
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the F47CMA thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the F47CMA thinks might significantly harm the individual's interests.
3D
The third consideration is the extent to which the disclosure of the information mentioned in paragraph (3C)(a) or (b) is necessary for the purposes of the report.
4
A report of theF48CMA on a reference under Article 15 shall be made to the Director.
5
Subject to paragraph (6), the Director—
a
shall, on receiving such a report, send a copy of it to the licence holder to which the report relates and to the Department; and
b
shall, not less than 14 days from the day on which the Department receives that copy, publish the report in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.
6
If it appears to the Department that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, the Department may, before the end of the period of 14 days mentioned in paragraph (5)(b), direct the Director to exclude that matter from every copy of the report to be published under that sub-paragraph.
Modification following report17
1
Where a report of theF50CMA on a reference under Article 15—
a
includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;
b
specifies effects adverse to the public interest which those matters have or may be expected to have;
c
includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of the licence; and
d
specifies modifications by which those effects could be remedied or prevented,
the Director shall, subject to the following provisions of this Article, make such modifications of the conditions of that licence as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.
2
Before making modifications under this Article, the Director shall have regard to the modifications specified in the report.
3
Before making modifications under this Article, the Director shall give notice—
a
stating that he proposes to make the modifications and setting out their effect;
b
stating the reasons why he proposes to make the modifications; and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
4
A notice under paragraph (3) shall be given—
a
by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy of the notice on the licence holder.
F495
After considering any representations or objections made in response to proposals set out in a notice under paragraph (3) the Authority shall give notice to the F51CMA—
a
setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and
b
stating the reasons for making the modifications.
6
The Authority shall include with the notice under paragraph (5) a copy of any representations or objections received in relation to the notice under paragraph (3).
7
If the period of four weeks from the date on which the notice under paragraph (5) is given elapses without a direction under Article 17A(1)(a) having been given to it, the Authority shall—
a
make the modifications set out in the notice; or
b
if a direction under Article 17A(1)(b) has been given, make the modifications which are not specified in the direction.
F3F4CMA's power to veto modifications following report17A
1
F52The CMA may, within the period of four weeks after the date on which it is given a notice under Article 17(5), direct the Authority—
a
not to make the modifications set out in that notice; or
b
not to make such of the modifications as may be specified in the direction;
and the Authority shall comply with any such direction.
2
The Department may, within the period of four weeks after the date on which the F53CMA is given a notice under Article 17(5) and on the application of the F53CMA, direct that the period for giving a direction under paragraph (1) (and, accordingly, the period mentioned in Article 17(7)) shall be extended by 14 days.
3
The power to give a direction under paragraph (1) may only be exercised in respect of such of the modifications set out in the notice under Article 17 (5)(a) as appear to the F54CMA not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.
4
a
shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and
b
shall itself make such modifications of the conditions of the licence as appear to it to be requisite for the purpose of remedying or preventing—
i
if the direction was given under paragraph (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications;
ii
if the direction was given under paragraph (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under Article 17(7)(b).
5
In exercising its function under paragraph (4)(b) the F56CMA shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a licence.
6
Before making modifications under paragraph (4)(b) the F57CMA shall give notice—
a
stating that it proposes to make the modifications and setting them out;
b
stating the reason why it proposes to make them;
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
7
A notice under paragraph (4)(a) or (6) shall be given—
a
by publishing the notice in such manner as the F58CMA considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy on the Authority and the holder of the licence in question.
8
After making modifications under this Article the F59CMA shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.
9
For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph (4)(a), (6) or (8).
10
In giving any notice under paragraph (4)(a) or (6), or publishing any notice under paragraph (8), the F60CMA shall have regard to the following considerations before disclosing any information.
11
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the F61CMA thinks is contrary to the public interest.
12
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the F62CMA thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the F62CMA thinks might significantly harm the individual's interests.
13
The third consideration is the extent to which the disclosure of the information mentioned in paragraph (12)(a) or (b) is necessary for the purposes of the notice.
14
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs F63(14A), (15) and (16), for the purposes of any investigation by the F64CMA for the purposes of the exercise of its functions under this Article, as they apply for the purposes of any investigation on references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
F6514A
Section 109 shall, in its application by virtue of paragraph (14), have effect as if—
a
for subsection (A1), there were substituted—
A1
For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with an investigation for the purposes of the exercise of its functions under Article 17A of the Electricity (Northern Ireland) Order 1992.
b
subsection (8A) were omitted.
15
Section 110 shall, in its application by virtue of paragraph (14), have effect as if—
a
subsection (2) were omitted;
F66b
after subsection (3), there were inserted—
3A
No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication by the CMA of a notice under Article 17A(8) of the Electricity (Northern Ireland) Order 1992 in connection with the reference concerned or, if no direction has been given by the CMA under Article 17A(1) of that Order in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.
c
in subsection (9) the words from “or section” to “section 65 (3))” were omitted.
16
Section 111 (5)(b) shall, in its application by virtue of paragraph (14), have effect as if for sub-paragraph (ii) there were substituted—
ii
if earlier, the day on which a notice is published by the F67CMA under Article 17A (8) of the Electricity (Northern Ireland) Order 1992 in connection with the reference concerned or, if no direction is given by the F67CMA under Article 17A(1) of that Order in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.
17
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (14), have effect in relation to those sections as applied by virtue of that paragraph.
18
Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.
Modification by order under other statutory provisions18 F5
1
Where the F6CMA or (as the case may be) the Secretary of State (in this Article “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence 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.
2
In paragraph (1) “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
3
In paragraph (2) expressions which are also used in Part 3 or, as the case may be, Part 4 of the Enterprise Act 2002 have the same meanings as in that Part of that Act.
Art. 18A rep. by 2003 NI 6