PART IIGAS SUPPLY AND ASSOCIATED ACTIVITIES
F2Appeal from decisions of the Authority
Appeal to the CMA14B
1
An appeal lies to the CMA against a decision by the Authority to proceed with the modification of a condition of a licence under Article 14.
2
An appeal may be brought under this Article only by—
a
a relevant licence holder (within the meaning of Article 14);
b
any other person who holds a licence of any type under Article 8(1) whose interests are materially affected by the decision;
c
a qualifying body or association in the capacity of representing a person falling within sub-paragraph (a) or (b);
d
the General Consumer Council in the capacity of representing consumers whose interests are materially affected by the decision.
3
The permission of the CMA is required for the bringing of an appeal under this Article.
4
The CMA may refuse permission to bring an appeal only on one of the following grounds—
a
in relation to an appeal brought by a person falling within paragraph (2)(b), that the interests of the person are not materially affected by the decision;
b
in relation to an appeal brought by a qualifying body or association, that the interests of the person represented are not materially affected by the decision;
c
in relation to an appeal brought by the General Consumer Council, that the interests of the consumers represented are not materially affected by the decision;
d
in relation to any appeal—
i
that the appeal is brought for reasons that are trivial or vexatious;
ii
that the appeal has no reasonable prospect of success.
5
References in this Article to a qualifying body or association are to a body or association whose functions are or include representing persons in respect of interests of theirs which are materially affected by the decision in question.
Procedure on appeal to CMA14C
1
Schedule 3A has effect.
2
Except where specified otherwise in Schedule 3A, the functions of the CMA with respect to an appeal under Article 14B 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 F1.
Determination by CMA of appeal14D
1
This Article applies to every appeal brought under Article 14B.
2
In determining an appeal the CMA must have regard, to the same extent as is required of the Authority, to the matters to which the Authority must have regard—
a
in the carrying out of its principal objective under Article 14 of the Energy Order; and
b
in the performance of its duties under that Article and Article 6B of the Energy Order.
3
In determining the appeal the CMA—
a
may have regard to any matter to which the Authority was not able to have regard in relation to the decision which is the subject of the appeal; but
b
must not, in the exercise of that power, have regard to any matter to which the Authority would not have been entitled to have regard in reaching its decision had it had the opportunity of doing so.
4
The CMA may allow the appeal only to the extent that it is satisfied that the decision appealed against was wrong on one or more of the following grounds—
a
that the Authority failed properly to have regard to any matter mentioned in paragraph (2);
b
that the Authority failed to give the appropriate weight to any matter mentioned in paragraph (2);
c
that the decision was based, wholly or partly, on an error of fact;
d
that the modifications fail to achieve, in whole or in part, the effect stated by the Authority by virtue of Article 14(8)(b);
e
that the decision was wrong in law.
5
To the extent that the CMA does not allow the appeal, it must confirm the decision appealed against.
CMA's powers on allowing appeal14E
1
This Article applies where the CMA allows an appeal to any extent.
2
If the appeal is in relation to a price control decision, the CMA must do one or more of the following—
a
quash the decision (to the extent that the appeal is allowed);
b
remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the CMA;
c
substitute the CMA's decision for that of the Authority (to the extent that the appeal is allowed) and give any directions to the Authority or any other party to the appeal.
3
If the appeal is in relation to any other decision, the CMA must do one or both of the following—
a
quash the decision (to the extent that the appeal is allowed);
b
remit the matter back to the Authority for reconsideration and determination in accordance with any directions given by the CMA.
4
A direction under paragraph (2) or (3) must not require a person to do anything that the person would not have power to do (apart from the direction).
5
A person to whom a direction is given under paragraph (2) or (3) must comply with it.
6
A direction given under paragraph (2) or (3) to a person other than the Authority is enforceable as if it were an order of the High Court.
7
For the purposes of this Article a decision is a price control decision, in relation to the modification of a condition of a licence, if the purpose of the condition is, in the CMA's opinion, to limit or control the charges on, or the revenue of, the holder of the licence.
8
In determining for the purposes of paragraph (7) what the purpose of a condition is the condition may be assessed on its own or in combination with any other conditions of the licence.
9
In this Article and Articles 14F and 14G any reference to a party to an appeal is to be read in accordance with Schedule 3A.
Time limits for CMA to determine an appeal14F
1
The CMA must—
a
determine an appeal against a price control decision within the period of 6 months beginning with the permission date;
b
determine an appeal against any other decision within the period of 4 months beginning with the permission date.
2
Paragraph (1)(a) or (b) does not apply if paragraph (3) applies.
3
This paragraph applies where—
a
the CMA has received representations on the timing of the determination from a party to the appeal; and
b
it is satisfied that there are special reasons why the determination cannot be made within the period specified in paragraph (1)(a) or (b).
4
Where paragraph (3) applies, the CMA must—
a
determine an appeal against a price control decision within the period specified by it, not being longer than the period of 7 months beginning with the permission date;
b
determine an appeal against any other decision within the period specified by it, not being longer than the period of 5 months beginning with the permission date.
5
Where paragraph (3) applies, the CMA must also—
a
inform the parties to the appeal of the time limit for determining the appeal, and
b
publish that time limit in such manner as it considers appropriate for the purpose of bringing it to the attention of any other persons likely to be affected by the determination.
6
In this Article “price control decision” is to be read in accordance with Article 14E.
7
References in this Article to the permission date are to the date on which the CMA gave permission to bring the appeal in accordance with Article 14B(3).
Determination of appeal by CMA: supplementary14G
1
A determination by the CMA on an appeal—
a
must be contained in an order made by the CMA;
b
must set out the reasons for the determination;
c
takes effect at the time specified in the order or determined in accordance with provision made in the order;
d
must be notified by the CMA to the parties to the appeal;
e
must be published by the CMA—
i
as soon as reasonably practicable after the determination is made;
ii
in such manner as the CMA considers appropriate for the purpose of bringing the determination to the attention of any person likely to be affected by it (other than a party to the appeal).
2
The CMA may exclude from publication under paragraph (1)(e) any information which it is satisfied is—
a
commercial information, the disclosure of which would, or might in the CMA's opinion, significantly harm the legitimate business interests of an undertaking to which it relates; or
b
information relating to the private affairs of an individual, the disclosure of which would, or might in the CMA's opinion, significantly harm the individual's interests.
3
The Authority must take such steps as it considers requisite for it to comply with an order of the CMA made by virtue of paragraph (1)(a).
4
The steps must be taken—
a
if a time is specified in (or is to be determined in accordance with) the order, within that time;
b
in any other case, within a reasonable time.
5
Paragraphs (2) to (4) of Article 14A apply where a condition of a licence is modified in accordance with Article 14E as they apply where a condition of a licence is modified under Article 14.
Arts. 14-14G substituted (6.2.2015) for art. 14 by Gas and Electricity Licence Modification and Appeals Regulations (Northern Ireland) 2015 (S.R. 2015/1), reg. 3(1) (with reg. 5)