The Gas (Northern Ireland) Order 1996

Modification of licences N.I.

Modification by agreement N.I.

14.—(1) Subject to the following provisions of this Article, the Director may—

(a) modify the conditions of a particular licence; F1 . . .

[F2 (aa) 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]

(b) modify the standard conditions of licences under sub-paragraph (a), (b) [F3 , (c) or (d)] of Article 8(1).

(2) Where at any time the Director modifies under paragraph (1)(b) the standard conditions of licences under sub-paragraph (a), (b) [F4 , (c) or (d)] of Article 8(1), he—

(a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences under that sub-paragraph granted after that time; and

(b) may make such incidental or consequential modifications as he considers necessary or expedient of any conditions of licences under that sub-paragraph granted before that time.

(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 time (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and shall consider any representations or objections which are duly made and not withdrawn.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 notice to the attention of persons likely to be affected by the making of the modifications; and

(b) by sending a copy of the notice to the holder of the licence or, as the case may be, the relevant licence holders and to the Department.

(5) If, within the time specified in the notice under paragraph (3), the Department directs the Director not to make any modification, the Director shall comply with the direction.

(6) The Director shall not make any modifications under paragraph (1)(a) unless—

(a) the holder of the licence has consented to the modifications; and

(b) in the case of standard conditions of a licence, the Director is of the opinion that the modifications—

(i) are requisite to meet the circumstances of the particular case; and

(ii) are such that no other licence holder would be unduly disadvantaged in competing with other licence holders (including the holder of the licence).

[F5 (6A) The modification under paragraph (1)(a) of part of a standard condition of a licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.]

(7) The Director shall not make any modifications under paragraph (1)(b) unless—

(a) the percentage given by each of paragraphs (8) and (9) is not less than 90 per cent;

(b) the percentage given by paragraph (8) is not less than 90 per cent and no relevant activities have been carried on by relevant licence holders; or

(c) paragraph (10) applies.

(8) The percentage given by this paragraph is the fraction given by the following formula expressed as a percentage, namely—

where—

• C = the number of consenting holders;

• N = the number of non-consenting holders.

(9) The percentage given by this paragraph is the fraction given by the following formula expressed as a percentage, namely—

where—

• C = the volume of gas to which relevant activities carried on by consenting holders relate;

• N = the volume of gas to which relevant activities carried on by non-consenting holders relate,

as estimated (in each case) by the Director on the basis of the information available to him.

(10) This paragraph applies where the Director is of the opinion—

(a) that the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying on of activities to which the modifications relate;

(b) that the modifications would remove or reduce the burden without removing any necessary protection; and

(c) that the modifications are such that no relevant licence holder would be unduly disadvantaged in competing with other relevant licence holders.

(11) Where at any time the Director modifies standard conditions under paragraph (2)(a) for the purposes of their incorporation in licences under sub-paragraph (a), (b) [F6 , (c) or (d)] of Article 8(1) granted after that time, he shall publish the modifications in such manner as he considers appropriate.

(12) In this Article, in relation to modifications of standard conditions under paragraph (1)(b)—

• “consenting holder” means a relevant licence holder who has consented to the modifications;

• “non-consenting holder” means a relevant licence holder who has not so consented;

• “relevant activity” means an activity to which the modifications relate and which is carried on in the period of 12 months immediately preceding the making of the modifications;

• “relevant licence holder” means a licence holder whose licence incorporates the standard conditions.

(13) The Department may by order substitute for the percentage for the time being specified in paragraph (7)(a) and (b) such other percentage as the Department thinks fit.

F1 Word in art. 14(1) omitted (15.4.2011) by virtue of Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 66

F2 Art. 14(1)(aa) inserted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 66

F3 Words in art. 14(1)(b) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 23

F4 Words in art. 14(2) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 23

F5 2003 NI 6

F6 Words in art. 14(11) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 23

Valid from 06/02/2015

[F7 Modification of conditions under Article 14: supplementary N.I.

14A.— (1) Paragraphs (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 condition 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 3A in relation to the decision to which the modification relates.]

F7 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)

Modification references to [F8 Competition and Markets Authority] N.I.

15.—(1) The Director may make to the [F9 CMA] a reference which is so framed as to require [F10 the CMA] to investigate and report on the questions—

(a) whether any matters which—

(i) relate to the carrying on of activities authorised or[F11 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 relevant conditions, that is to say, the conditions of the licence.

(2) The Director may make to the[F12 CMA] a reference which is so framed as to require [F13 the CMA] to investigate and report on the questions—

(a) whether any matters which—

(i) relate to the carrying on of activities authorised or[F11 regulated] by licences under sub-paragraph (a), (b) [F14 , (c) or (d)] of Article 8(1); 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 relevant conditions, that is to say, the standard conditions of licences under that sub-paragraph.

(3) The Director may, at any time, by notice given to the[F15 CMA] 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 [F16 the CMA] shall give effect to the variation.

(4) The Director may specify in a reference under this Article, or a variation of such a reference, for the purpose of assisting the[F17 CMA] 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 relevant conditions by which, in his opinion, those effects could be remedied or prevented.

(5) 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 or, as the case may be, the relevant licence holders; 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.

(6) The Director shall also send a copy of a reference under paragraph (2), 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 the[F18 CMA] not to proceed with the reference or, as the case may require, not to give effect to the variation, [F19 the CMA] shall comply with the direction.

(7) It shall be the duty of the Director, for the purpose of assisting the[F20 CMA] in carrying out an investigation on a reference under this Article[F11 or in carrying out functions under Article 17A], to give to [F21 the CMA]—

(a) any information in his possession which relates to matters falling within the scope of the investigation[F11 or the carrying out of those functions] and—

(i) is requested by [F21 the CMA] for that purpose; or

(ii) is information which, in his opinion, it would be appropriate for that purpose to give to [F21 the CMA] without any such request; and

(b) any other assistance which [F21 the CMA] may require, and which it is within his power to give, in relation to any such matters;

and [F21 the CMA], for the purpose of carrying out any such investigation[F11 or such functions], shall take account of any information given to them for that purpose under this paragraph.

(8) In determining for the purposes of this Article whether any particular matter operates, or may be expected to operate, against the public interest, the[F22 CMA] shall have regard to the matters as respects which duties are imposed on the Department and the Director by[F11 Article 14 of the Energy (Northern Ireland) Order 2003].

[F23 (8A) 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).]

Paras. (9) and (9A) rep. by 2002 c. 40

(10) In this Article and Articles[F24 15A,] 16[F11 ,17 or 17A]

• “relevant conditions” has the meaning given by paragraph (1) or (2);

• “relevant licence holder”

  (a)

  in relation to a reference under paragraph (2), means the holder of a licence to which the reference relates;

  (b)

  in relation to modifications of relevant conditions within the meaning given by that paragraph, means the holder of a licence which incorporates the conditions.

F8 Words in art. 15 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(10); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 Word in art. 15(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(2)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10 Words in art. 15(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(2)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F11 2003 NI 6

F12 Word in art. 15(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F13 Words in art. 15(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F14 Words in art. 15(2)(a)(i) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 24

F15 Word in art. 15(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(4)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F16 Words in art. 15(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F17 Word in art. 15(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F18 Word in art. 15(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(6)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F19 Words in art. 15(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(6)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F20 Word in art. 15(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(7)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F21 Words in art. 15(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(7)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F22 Word in art. 15(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(8); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F23 Art. 15(8A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 160(9); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F24 2002 c. 40

References under Article 15: time limits N.I.

[F25 15A— (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 [F26 CMA] 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 [F27 CMA] 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 holder of the licence or, as the case may be, the relevant licence holders.]

F25 2002 c. 40

F26 Word in art. 15A(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 161; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F27 Word in art. 15A(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 161; S.I. 2014/416, art. 2(1)(d) (with Sch.)

References under Article 15: powers of investigation N.I.

[F25 15B— (1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs [F28 (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).

[F29 (1A) 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 Gas (Northern Ireland) Order 1996.”, and

(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; F30 . . .

[F31 (aa) 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.”; and]

(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

[F32 (3) 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.]

F25 2002 c. 40

F28 Word in art. 15B inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 218(2) (with art. 3, Sch. 2 para. 2 Table)

F29 Art. 15B(1A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 218(3) (with art. 3, Sch. 2 para. 2 Table)

F30 Word in art. 15B(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 218(4)(a) (with art. 3, Sch. 2 para. 2 Table)

F31 Art. 15B(2)(aa) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 218(4)(b) (with art. 3, Sch. 2 para. 2 Table)

F32 Art. 15B(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 218(5) (with art. 3, Sch. 2 para. 2 Table)

Reports on modification references N.I.

16.—(1) In making a report on a reference under Article 15, the [F33 CMA]

(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 relevant conditions, shall specify in the report modifications by which those effects could be remedied or prevented.

[F34 (1A) For the purposes of[F35 Articles 17 and 17A], a conclusion contained in a report of the [F36 CMA] is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted [F37 by 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 [F38 CMA], 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

[F39 (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the [F40 CMA] on a reference under Article 15.

(3A) In making any report on a reference under Article 15 the [F41 CMA] 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 [F42 CMA] 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 [F43 CMA] 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 [F43 CMA] 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 the[F44 CMA] on a reference under Article 15 shall be made to the Director.

(5) Subject to paragraph (7), the Director shall—

(a) on receiving a report on a reference under Article 15(1), send a copy of it to the licence holder and to the Department; and

(b) 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) Subject to paragraph (7), the Director shall—

(a) on receiving a report on a reference under Article 15(2), send a copy of it to the Department; and

(b) not less than 14 days from the day on which the Department receives that copy—

(i) send another copy to each relevant licence holder; and

(ii) not less than 24 hours after complying with head (i), 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.

(7) 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) or (6)(b), direct the Director to exclude that matter from every copy of the report to be published or (as the case may be) sent and published under that sub-paragraph.

F33 Word in art. 16(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F34 2002 c. 40

F35 2003 NI 6

F36 Word in art. 16(1A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F37 Words in art. 16(1A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F38 Word in art. 16(1B) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F39 2002 c. 40

F40 Word in art. 16(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F41 Word in art. 16(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F42 Word in art. 16(3B) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F43 Word in art. 16(3C) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F44 Word in art. 16(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 162(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modification following report N.I.

17.—(1) Where a report of the [F45 CMA] 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 relevant conditions; 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 relevant conditions as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(2) Where at any time the Director modifies under paragraph (1) the standard conditions of licences under sub-paragraph (a), (b) [F46 , (c) or (d)] of Article 8(1), he—

(a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences under that sub-paragraph granted after that time; and

(b) may make such incidental or consequential modifications as he considers necessary or expedient of any conditions of licences under that sub-paragraph granted before that time,

and the above reference to paragraph (1) is a reference to that paragraph as it applies in relation to a report on a reference under Article 15(2).

(3) Before making modifications under this Article, the Director shall have regard to the modifications specified in the report.

(4) 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.

(5) A notice under paragraph (4) 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 or, as the case may be, the relevant licence holders.

[F47 (5A) After considering any representations or objections made in response to proposals set out in a notice under paragraph (4), the Authority shall give notice to the [F48 CMA]—

(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.

(5B) The Authority shall include with the notice under paragraph (5A) a copy of any representations or objections received in relation to the notice under paragraph (4).

(5C) If the period of four weeks from the date on which the notice under paragraph (5A) 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.]

(6) Where at any time the Director modifies standard conditions under paragraph (2)(a) for the purposes of their incorporation in licences under sub-paragraph (a), (b) [F49 , (c) or (d)] of Article 8(1) granted after that time, he shall publish the modifications in such manner as he considers appropriate.

[F47 (7) The modification under paragraph (1) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.]

F45 Word in art. 17(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 163; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F46 Words in art. 17(2) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 25

F47 2003 NI 6

F48 Word in art. 17(5A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 163; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F49 Words in art. 17(6) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 25

[F50 [F51 CMA's] power to veto modifications following report N.I.

17A.— (1) [F52 The CMA] may, within the period of four weeks after the date on which it is given a notice under Article 17(5A), 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 [F53 CMA] is given a notice under Article 17(5A) and on the application of the [F53 CMA], direct that the period for giving a direction under paragraph (1) (and, accordingly, the period mentioned in Article 17(5C)) 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(5A)(a) as appear to the [F54 CMA] 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) If the [F55 CMA] gives a direction under paragraph (1), the [F55 CMA]—

(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 relevant conditions 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(5C)(b).

(5) In exercising its function under paragraph (4)(b) the [F56 CMA] 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 [F57 CMA] 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 [F58 CMA] 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 or, as the case may be, the relevant licence holders.

(8) After making modifications under this Article the [F59 CMA] shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.

(9) Where, in consequence of a reference under Article 15 (2) the [F60 CMA] modifies under paragraph (4)(b) the standard conditions of licences of any type (that is to say, licences under Article 8(1)(a) or (b) [F61 , (c) or (d)]) the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time.

(10) Where the [F62 CMA] modifies the standard conditions of licences of any type as mentioned in paragraph (9) the Authority—

(a) shall 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) shall publish the modifications made for those purposes in such manner as it considers appropriate.

(11) The modification under this Article of part of a standard condition of a particular licence in consequence of a reference under Article 15(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.

(12) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph (4)(a), (6) or (8).

(13) In giving any notice under paragraph (4)(a) or (6), or publishing any notice under paragraph (8), the [F63 CMA] shall have regard to the following considerations before disclosing any information.

(14) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the [F64 CMA] thinks is contrary to the public interest.

(15) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the [F65 CMA] 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 [F65 CMA] thinks might significantly harm the individual's interests.

(16) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (15)(a) or (b) is necessary for the purposes of the notice.

(17) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs [F66 (17A),](18) and (19), for the purposes of any investigation by the [F67 CMA] 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).

[F68 (17A) Section 109 shall, in its application by virtue of paragraph (17), 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 Gas (Northern Ireland) Order 1996.”, and

(b) subsection (8A) were omitted.]

(18) Section 110 shall, in its application by virtue of paragraph (17), have effect as if—

(a) subsection (2) were omitted;

[F69 (b) 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 Gas (Northern Ireland) Order 1996 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.”; and]

(c) in subsection (9) the words from “or section” to “section 65 (3))” were omitted.

(19) Section 111 (5)(b) shall, in its application by virtue of paragraph (17), have effect as if for sub-paragraph (ii) there were substituted—

“(ii) if earlier, the day on which a notice is published by the [F70 CMA] under Article 17A (8) of the Gas (Northern Ireland) Order 1996 in connection with the reference concerned or, if no direction is given by the [F70 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 such a direction may be given within the permitted period.” .

(20) 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 (17), have effect in relation to those sections as applied by virtue of that paragraph.

(21) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.]

F50 2003 NI 6

F51 Word in art. 17A heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F52 Words in art. 17A(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F53 Word in art. 17A(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F54 Word in art. 17A(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F55 Word in art. 17A(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F56 Word in art. 17A(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F57 Word in art. 17A(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F58 Word in art. 17A(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F59 Word in art. 17A(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F60 Word in art. 17A(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F61 Words in art. 17A(9) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 26

F62 Word in art. 17A(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F63 Word in art. 17A(13) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F64 Word in art. 17A(14) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F65 Word in art. 17A(15) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F66 Word in art. 17A(17) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 219(2) (with art. 3, Sch. 2 para. 2 Table)

F67 Word in art. 17A(17) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F68 Art. 17A(17A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 219(3) (with art. 3, Sch. 2 para. 2 Table)

F69 Art. 17A(18)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 219(4)(b) (with art. 3, Sch. 2 para. 2 Table)

F70 Word in art. 17A(19) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 164(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Modification by order under other statutory provisions N.I.

18 .F71 — [F72 (1) Where the [F73 CMA] 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—

(a) the conditions of a particular licence; or

(b) the standard conditions of licences under sub-paragraph (a), (b) [F74 , (c) or (d)] of Article 8(1),

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.

(1A) 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

(b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market [F75 or markets] in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to activities authorised or regulated by a licence.]

[F76 (1A) The modification under paragraph (1)(i) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.]

(2) Where at any time the[F72 relevant authority modifies under paragraph (1)(b)] the standard conditions of licences under sub-paragraph (a), (b) [F77 , (c) or (d)] of Article 8(1),[F72 the relevant authority]

(a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences under that sub-paragraph granted after that time; and

(b) may, after consultation with the Director, make such incidental or consequential modifications as[F72 the relevant authority] considers necessary or expedient of any conditions of licences under that sub-paragraph granted before that time.

Para. (3) rep. by 2002 c. 40

(4) Where at any time the[F72 relevant authority] modifies standard conditions under paragraph (2)(a) for the purposes of their incorporation in licences under sub-paragraph (a), (b) [F78 , (c) or (d)] of Article 8(1) granted after that time,[F72 the relevant authority] shall publish the modifications in such manner as[F72 the relevant authority] considers appropriate.

[F72 (5) Expressions used in paragraph (1A) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that paragraph as in that Part.]

F71 mod. by SI 2003/1592

F72 2002 c. 40

F73 Word in art. 18(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 165; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F74 Words in art. 18(1)(b) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 27

F75 Words in art. 18(1A)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 220 (with art. 3)

F76 2003 NI 6

F77 Words in art. 18(2) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 27

F78 Words in art. 18(4) substituted (12.4.2013) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2013 (S.R. 2013/92), reg. 27

Art. 18A rep. by 2003 NI 6

Arts. 19‐21 rep. by 2003 NI 6