Gas Act 1986

[F1 Appeal from decisions of the Authority U.K.

Textual Amendments

F1 Ss. 23B-23G and cross-heading inserted (10.11.2011) by The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(7) (with reg. 42)

23B Appeal to the [F2 CMA] U.K.

(1) An appeal lies to the [F3 CMA] against a decision by the Authority to proceed with the modification of a condition of a licence under section 23.

(2) An appeal may be brought under this section only by—

(a) a relevant licence holder (within the meaning of section 23);

(b) any other person who holds a licence of any type under section 7, 7ZA, [F4 , 7A(1) or (2) or 7AB] whose interests are materially affected by the decision;

(c) a qualifying body or association in the capacity of representing a person falling within paragraph (a) or (b);

(d) [F5 Citizens Advice or Citizens Advice Scotland or those bodies acting jointly] in the capacity of representing consumers whose interests are materially affected by the decision.

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

(4) The [F6 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 subsection (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 [F7 by Citizens Advice or Citizens Advice Scotland or those bodies acting jointly,] 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 section 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.

Textual Amendments

F2 Word in s. 23B heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 16(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Word in s. 23B(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 16(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 Words in s. 23B(2)(b) substituted (19.9.2012) by The Electricity and Gas (Smart Meters Licensable Activity) Order 2012 (S.I. 2012/2400), arts. 1, 24

F5 Words in s. 23B(2)(d) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 4(6)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F6 Word in s. 23B(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 16(3); S.I. 2014/416, art. 2(1)(d) (with Sch.); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F7 Words in s. 23B(4)(c) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 4(6)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

23C Procedure on appeal to [F8 CMA] U.K.

F9 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) F10 ... Schedule 4A to this Act has effect.

[F11 (2A) Except where specified otherwise in Schedule 4A, the functions of the CMA with respect to an appeal under section 23B 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.]

Textual Amendments

F8 Word in s. 23C heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 17(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 S. 23C(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 17(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10 Word in s. 23C(2) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 17(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F11 S. 23C(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 17(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

23D Determination by [F12 CMA] of appeal U.K.

(1) This section applies to every appeal brought under section 23B.

(2) In determining an appeal the [F13 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 section 4AA;

(b) in the performance of its duties under that section; and

(c) in the performance of its duties under sections 4AB and 4A.

(3) In determining the appeal the [F13 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 [F13 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 subsection (2);

(b) that the Authority failed to give the appropriate weight to any matter mentioned in subsection (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 section 23(7)(b);

(e) that the decision was wrong in law.

(5) To the extent that the [F13 CMA] does not allow the appeal, it must confirm the decision appealed against.

Textual Amendments

F12 Word in s. 23D heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 18(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F13 Word in s. 23D(2)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 18(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

23E [F14 CMA's] powers on allowing appeal U.K.

(1) This section applies where the [F15 CMA] allows an appeal to any extent.

(2) If the appeal is in relation to a price control decision, the [F16 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 [F16 CMA] ;

(c) substitute the [F17 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 [F18 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 [F18 CMA] .

(4) A direction under subsection (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 that subsection must comply with it.

(6) A direction given under that subsection to a person other than the Authority is enforceable as if it were an order of the High Court or (in Scotland) an order of the Court of Session.

(7) For the purposes of this section 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 [F19 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 subsection (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 section and sections 23F and 23G any reference to a party to an appeal is to be read in accordance with Schedule 4A.

Textual Amendments

F14 Word in s. 23E heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 19(6); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F15 Word in s. 23E(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 19(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F16 Word in s. 23E(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 19(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F17 Word in s. 23E(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 19(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F18 Word in s. 23E(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 19(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F19 Word in s. 23E(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 19(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

23F Time limits for [F20 CMA] to determine an appeal U.K.

(1) The [F21 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) Subsection (1)(a) or (b) does not apply if subsection (3) applies.

(3) This subsection applies where—

(a) the [F22 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 subsection (1)(a) or (b).

(4) Where subsection (3) applies, the [F22 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 subsection (3) applies, the [F22 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 section “price control decision” is to be read in accordance with section 23E.

(7) References in this section to the permission date are to the date on which the [F23 CMA] gave permission to bring the appeal in accordance with section 23B(3).

Textual Amendments

F20 Word in s. 23F heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 20(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F21 Word in s. 23F(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 20(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F22 Words in ss. 23F(3)-(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 20(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F23 Word in s. 23F(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 20(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

23G Determination of appeal by [F24 CMA] : supplementary U.K.

(1) A determination by the [F25 CMA] on an appeal—

(a) must be contained in an order made by the [F25 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 [F25 CMA] to the parties to the appeal;

(e) must be published by the [F25 CMA] —

(i) as soon as reasonably practicable after the determination is made;

(ii) in such manner as the [F25 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 [F26 CMA] may exclude from publication under subsection (1)(e) any information which it is satisfied is—

(a) commercial information, the disclosure of which would, or might in the [F27 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 [F27 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 [F28 CMA] made by virtue of subsection (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) Subsections (2) to (4) of section 23A apply where a condition of a licence is modified in accordance with section 23E as they apply where a condition of a licence is modified under section 23.]

Textual Amendments

F24 Word in s. 23G heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 21(5); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F25 Word in s. 23G(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 21(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F26 Word in s. 23G(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 21(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F27 Word in s. 23G(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 21(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F28 Word in s. 23G(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 21(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F29 24 Modification references to Monopolies Commission. E+W+S

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Textual Amendments

F29 Ss. 24-26A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(9) (with reg. 42)

F29 24A References under section 24: time limits E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 24-26A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(9) (with reg. 42)

F29 24B References under section 24: powers of investigation E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F29 Ss. 24-26A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(9) (with reg. 42)

F29 25 Reports on modification references. E+W+S

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Textual Amendments

F29 Ss. 24-26A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(9) (with reg. 42)

F29 26 Modification following report. E+W+S

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Textual Amendments

F29 Ss. 24-26A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(9) (with reg. 42)

F29 26A Competition Commission’s power to veto modifications following report. E+W+S

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Textual Amendments

F29 Ss. 24-26A omitted (10.11.2011) by virtue of The Electricity and Gas (Internal Markets) Regulations 2011 (S.I. 2011/2704), regs. 1(1), 41(9) (with reg. 42)

[F30 27 Modification by order under other enactments. E+W+S

[F31 (1) Where the [F32 CMA] or (as the case may be) the Secretary of State (in this section “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 section 7 above[F33 , licences under section 7ZA above], licences under subsection (1) of section 7A above or licences under subsection (2) of that section,

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.

(1ZA) In subsection (1) above “relevant order” means—

(a)F34 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 [F35 or markets] in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to—

(i) activities authorised or regulated by a licence; or

(ii) the storage of gas on terms which have been determined by the holder of a licence under section 7 above, or could have been determined by the holder if he had thought fit or had been required to determine them by or under a condition of the licence.]

[F36 (1A) The modification under subsection (1)(a) of part of a standard condition of a particular licence in consequence of a reference under section 24(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.]

(2) Where at any time the [F37 relevant authority] modifies under subsection (1)(b) above the standard conditions of licences under section 7 above[F38 , licences under section 7ZA above], licences under subsection (1) of section 7A above or licences under subsection (2) of that [F39 section, 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 section or, as the case may be, that subsection granted after that time; and

(b) may, after consultation with the Director, make such incidental or consequential modifications [F40 as the relevant authority considers] necessary or expedient of any conditions of licences under that provision granted before that time.

F41 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F41 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where at any time the [F42 relevant authority] modifies standard conditions under subsection (2)(a) above for the purposes of their incorporation in licences granted after that time, [F43 the relevant authority] shall publish those modifications in such manner as [F43 the relevant authority] considers appropriate.

[F44 (6) Expressions used in subsection (1ZA) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.]]

Textual Amendments

F30 S. 27 substituted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 25; S.I. 1996/218, art. 2

F31 S. 27(1)(1ZA) substituted for s. 27(1) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(2); S.I. 2003/1397, art. 2(1), Sch.

F32 Word in s. 27(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 22; S.I. 2014/416, art. 2(1)(d) (with Sch.)

F33 Words in s. 27(1)(b) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 150(8), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F34 S. 27(1ZA)(a) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 1(1), Sch. 4 para. 6

F35 Words in s. 27(1ZA)(b) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 47 (with art. 3)

F36 S. 27(1A) inserted (1.10.2001) by 2000 c. 27, s. 83(5); S.I. 2001/3266, arts. 1(2), 2, Sch. (subject to transitional provisions in arts. 3-20)

F37 Words in s. 27(2) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(3)(a); S.I. 2003/1397, art. 2(1), Sch.

F38 Words in s. 27(2) inserted (1.12.2004) by Energy Act 2004 (c. 20), ss. 150(8), 198(2); S.I. 2004/2575, art. 2(2), Sch. 2

F39 Words in s. 27(2) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(3)(b); S.I. 2003/1397, art. 2(1), Sch.

F40 Words in s. 27(2) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(3)(c); S.I. 2003/1397, art. 2(1), Sch.

F41 S. 27(3)(4) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(4), Sch. 26; S.I. 2003/1397, art. 2(1), Sch.

F42 Words in s. 27(5) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(5)(a); S.I. 2003/1397, art. 2(1), Sch.

F43 Words in s. 27(5) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(5)(b); S.I. 2003/1397, art. 2(1), Sch.

F44 S. 27(6) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 4(6); S.I. 2003/1397, art. 2(1), Sch.