Gas Act 1986

[36A F1 Functions with respect to competition. E+W+S

F2 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F3 (2) The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the [F4 CMA] .

(2A) This subsection applies to the functions of the [F5 CMA] under Part 4 of the Enterprise Act 2002 (other than sections 166 [F6 , 171 and 174E] ) so far as [F7 those functions—

(a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b) relate to] commercial activities connected with the carrying on of activities to which this subsection applies.

(2B) So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) [F8 above—

(a) references] in Part 4 of the Act of 2002 to the [F9 CMA] (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 [F10 , 171 and 174E] of that Act and in any other provision of that Act where the context otherwise [F11 requires);

(b) references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 34(1) and (2) of this Act.]

[F12 (2C) Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to the Authority by virtue of subsections (2) and (2A)—

(a) as if for subsection (1) of that section there were substituted—

“(1) Where the Gas and Electricity Markets Authority—

(a) is proposing to carry out its functions under section 34(1) or (2) of the Gas Act 1986 in relation to a matter for the purposes mentioned in subsection (2), and

(b) considers that the matter is one in respect of which it would be appropriate for the Authority to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

the Authority must publish a notice under this section (referred to in this Part as a “market study notice”).”, and

(b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with the carrying on of activities to which section 36A(2A) of the Gas Act 1986 applies”.]

[F13 [F14 (3) The Authority shall be entitled to exercise, concurrently with the [F15 CMA], the functions of the [F15 CMA] under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) [F16 , 40B(1) to (4)] and 51), so far as relating to—

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b) conduct of the kind mentioned in section 18(1) of that Act, [F17 or]

[F18 (c) transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),]

which relate to the carrying on of activities to which this subsection applies.]

(3A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to [F19 the CMA] are to be read as including a reference to the Director ( [F20 except in sections 31D(1) to (6) , 38(1) to (6)[F16 , 40B(1) to (4)]] , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).]]

(4) Subsections [F21 (2A)] and (3) above apply to—

(a) such activities as are mentioned in section 5(1) above; and

(b) activities ancillary to such activities as are so mentioned (including in particular the storage of gas, the provision and reading of meters and the provision of pre-payment facilities).

[F22 (5) Before the [F23 CMA] or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other.

(5A) Neither the [F23 CMA] nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.]

(6) It shall be the duty of the Director, for the purpose of assisting [F24 a CMA group] in carrying out an investigation on a [F25 market investigation reference made by the Authority (under section 131 of the Act of 2002)] by virtue of subsection (2) F26 . . . above, to give to the [F27 group] —

(a) any information which is in his possession and which relates to matters falling within the scope of the investigation and—

(i) is requested by the [F27 group] for that purpose; or

(ii) is information which in his opinion it would be appropriate for that purpose to give to the [F27 group] without any such request; and

(b) any other assistance which the [F27 group] may require and which it is within his power to give, in relation to any such matters,

and the [F27 group] shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

[F28 (6A) In subsection (6) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

(7) If any question arises as to whether subsection (2) or (3) above applies to any particular case, that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a) [F29 Part 4 of the Enterprise Act 2002]; or

[F30 (b) Part I of the Competition Act 1998 ( [F31 other than sections 31D(1) to (6), 38(1) to (6) [F32 , 40B(1) to (4)]] and 51),]

by or in relation to the Director on the ground that it should have been done by or in relation to [F33 the CMA] .

[F34 (8) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Authority by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the [F35 CMA] included references to the Authority.]

F36 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) Any reference in this Part to functions of the Director under this Part, or to functions assigned to him by or under this Part, includes a reference to functions [F37 [F38 exercisable by the Authority by virtue of subsection (2) or (3) above] .].]

Textual Amendments

F1 S. 36A inserted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 43; S.I. 1996/218, art. 2

F2 S. 36A(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 15(10)(a), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)

F3 Ss. 36A(2)-(2B) substituted for s. 36A(2) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(2); S.I. 2003/1397, art. 2(1), Sch.

F4 Word in s. 36A(2) substituted (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. 50(2) (with art. 3)

F5 Word in s. 36A(2A) substituted (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. 50(3)(a) (with art. 3)

F6 Words in s. 36A(2A) substituted (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. 50(3)(b) (with art. 3)

F7 Words in s. 36A(2A) substituted (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. 50(3)(c) (with art. 3)

F8 Words in s. 36A(2B) substituted (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. 50(4)(a) (with art. 3)

F9 Word in s. 36A(2B) substituted (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. 50(4)(b) (with art. 3)

F10 Words in s. 36A(2B) substituted (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. 50(4)(c) (with art. 3)

F11 Words in s. 36A substituted (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. 50(4)(d) (with art. 3)

F12 S. 36A(2C) 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. 50(5) (with art. 3)

F13 S. 36A(3) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(a)

F14 S. 36A(3)(3A) substituted for s. 36A(3) (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(5) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.

F15 Word in s. 36A(3) substituted (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. 50(6) (with art. 3)

F16 Words in s. 36A(3)(3A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 2; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F17 Word in s. 36A(3)(b) inserted (31.12.2020) by S.I. 2019/93, Sch. 1 para. 2(2) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 14)

F18 S. 36A(3)(c) substituted for s. 36A(3)(c)(d) (31.12.2020) by S.I. 2019/93, Sch. 1 para. 2(3) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 14)

F19 Words in s. 36A(3A) substituted (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. 50(7) (with art. 3)

F20 Words in s. 36A(3A) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(b)

F21 Word in s. 36A(4) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(3); S.I. 2003/1397, art. 2(1), Sch.

F22 S. 36A(5)(5A) substituted for s. 36A(5) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(4); S.I. 2003/1397, art. 2(1), Sch.

F23 Word in s. 36A(5)(5A) substituted (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. 50(8) (with art. 3)

F24 Words in s. 36A(6) substituted (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. 50(9)(a)(i) (with art. 3)

F25 Words in s. 36A(6) substituted (1.4.2014) by virtue of 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. 50(9)(a)(ii) (with art. 3)

F26 Words in s. 36A(6) repealed (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. II para. 3(7), Sch. 14 Pt. I (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.

F27 Word in s. 36A(6) substituted (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. 50(9)(b) (with art. 3)

F28 S. 36A(6A) 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. 50(10) (with art. 3)

F29 Words in s. 36A(7)(a) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(5); S.I. 2003/1397, art. 2(1), Sch.

F30 S. 36A(7)(b) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(8) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.

F31 Words in s. 36A(7)(b) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(c)

F32 Words in s. 36A(7)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 2; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F33 Words in s. 36A(7) substituted (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. 50(11) (with art. 3)

F34 S. 36A(8) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(6); S.I. 2003/1397, art. 2(1), Sch.

F35 Word in s. 36A(8) substituted (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. 50(12) (with art. 3)

F36 S. 36A(9) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(7), Sch. 26; S.I. 2003/1397, art. 2(1), Sch.

F37 Words in s. 36A(10) substituted (26.11.1998 for certain purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(11) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.

F38 Words in s. 36A(10) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(8); S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

C1 S. 36A(3) restricted (26.11.1998 for specified purposes, otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(1) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.