Electricity Act 1989

43 Functions with respect to competition.E+W+S

F1(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F2(2)The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the [F3CMA].

(2A)This subsection applies to the functions of the [F4CMA] under Part 4 of the Enterprise Act 2002 (other than sections 166 [F5, 171 and 174E]) so far as [F6those 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 generation, transmission or supply of electricity [F7or the use of electricity interconnectors].

(2B)So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) [F8above—

(a)references] in Part 4 of the Act of 2002 to the [F9CMA] (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 [F11requires);

(b)references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 47(1) 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 47(1) of the Electricity Act 1989 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 generation, transmission or supply of electricity or the use of electricity interconnectors”.]

[F13(3)The Authority shall be entitled to exercise, concurrently with the [F14CMA], the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) [F15 , 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, [F16or]

[F17(c)transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),]

which relate to commercial activities connected with the generation, transmission or supply of electricity [F7or the use of electricity interconnectors].]

[F18(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 [F19CMA] are to be read as including a reference to [F20the Authority] ([F21except in sections 31D(1) to (6), 38(1) to (6) [F15, 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).]

[F22(4)Before the [F23CMA] 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.

(4A)Neither the [F23CMA] 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.]

(5)It shall be the duty of [F20the Authority], for the purpose of assisting [F24a CMA group] in carrying out an investigation on [F25market 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 [F27group] —

(a)any information which is in [F28its] possession and which relates to matters falling within the scope of the investigation and—

(i)is requested by the [F27group] for that purpose; or

(ii)is information which in [F28its] opinion it would be appropriate for that purpose to give to the [F27group] without any such request; and

(b)any other assistance which the [F27group] may require and which it is within [F28its] power to give, in relation to any such matters,

and the [F27group] shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

[F29(5A)In subsection (5) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

(6)[F30If any question arises as to whether subsection (2) or (3) above applies to any particular case] F31... F32... , that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a)[F33Part 4 of the Enterprise Act 2002]; or

F34[(b)Part I of the Competition Act 1998 ([F35other than sections 31D(1) to (6), 38(1) to (6) [F36 , 40B(1) to (4)]] and 51),]

by or in relation to [F20the Authority] on the ground that it should have been done by or in relation to [F37the CMA] .

[F38(6A)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 [F39CMA] included references to the Authority.]

F40(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1S. 43(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 20(7)(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.)

F2S. 43(2)-(2B) substituted for s. 43(2) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(2); S.I. 2003/1397, art. 2(1), Sch.

F7Words in s. 43(2A)(3) inserted (14.8.2006) by Energy Act 2004 (c. 20), ss. 147(5), 198(2); S.I. 2006/1964, art. 2, Sch.

F16Word in s. 43(3)(b) inserted (31.12.2020) by S.I. 2019/93, Sch. 1 para. 3(2) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 15)

F17S. 43(3)(c) substituted (31.12.2020) for s. 43(3)(c)(d) by S.I. 2019/93, Sch. 1 para. 3(3) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 15)

F18S. 43(3)(3A) substituted for s. 43(3) (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 4(4)(5) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F20Words substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F22S. 43(4)(4A) substituted for s. 43(4) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(3); S.I. 2003/1397, art. 2(1), Sch.

F26Words in s. 43(5) 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. 4(7), Sch. 14 Pt. I (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

F28Word substituted (20.12.2000) by virtue of Utilities Act 2000 (c. 27), s 3(2); S.I. 2000/3343, art. 2, Sch.

F32Words in s. 43(6) omitted by virtue of Deregulation and Contracting Out Act 1994 (c. 40), s.81, Sch. 17

F33Words in s. 43(6)(a) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 18(4)(c); S.I. 2003/1397, art. 2(1), Sch.

F34S. 43(6)(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. 4(8) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.

Modifications etc. (not altering text)

C1S. 43(2) applied (3.1.1995) by 1994 c. 40, ss. 7(2), 82(2)(a)(b), Sch. 2 para. 4(2)

C2S. 43(3) restricted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 4(1) (with s. 73); S.I. 1998/2750, art. 2(1)(b) (with art. 2(2)); S.I. 2000/344, art. 2, Sch.