Energy Act 2023

Appeal from decisions of the economic regulator U.K.

20 Appeal to the CMA U.K.

(1) An appeal may be made to the CMA against a decision by the economic regulator to proceed with the modification of a condition of a licence under section 13.

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

(a) a relevant licence holder (within the meaning of section 13);

(b) a transport and storage network user 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);

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

(4) The CMA may refuse permission to bring an appeal only on one of the following grounds—

(a) in relation to an appeal brought by a person falling within 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 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.

(6) In this section “transport and storage network user” has the same meaning as in section 1.

Commencement Information

I1 S. 20 in force at 26.12.2023, see s. 334(3)(a)

21 Procedure on appeal to CMA U.K.

(1) Schedule 2 has effect.

(2) Except where specified otherwise in Schedule 2, the functions of the CMA with respect to an appeal under section 20 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.

Commencement Information

I2 S. 21 in force at 26.12.2023, see s. 334(3)(a)

22 Determination by CMA of appeal U.K.

(1) This section applies to every appeal brought under section 20.

(2) In determining an appeal the CMA must have regard, to the same extent as is required of the economic regulator, to the matters to which the economic regulator must have regard—

(a) in the carrying out of its principal objectives under section 1, and

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

(3) In determining the appeal the CMA—

(a) may have regard to any matter to which the economic regulator 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 economic regulator would not have been entitled to have regard in reaching its decision had it had the opportunity of doing so.

(4) The CMA may allow the appeal only to the extent that it is satisfied that the decision appealed against was wrong on one or more of the following grounds—

(a) that the economic regulator failed properly to have regard to any matter mentioned in subsection (2);

(b) that the economic regulator 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 economic regulator by virtue of section 13(8)(b);

(e) that the decision was wrong in law.

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

Commencement Information

I3 S. 22 in force at 26.12.2023, see s. 334(3)(a)

23 CMA’s powers on allowing appeal U.K.

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

(2) If the appeal is in relation to a price control decision, the CMA must do one or more of the following—

(a) quash the decision (to the extent that the appeal is allowed);

(b) remit the matter back to the economic regulator for reconsideration and determination in accordance with any directions given by the CMA;

(c) substitute the CMA’s decision for that of the economic regulator (to the extent that the appeal is allowed) and give any directions to the economic regulator or any other party to the appeal.

(3) If the appeal is in relation to any other decision, the CMA must do one or both of the following—

(a) quash the decision (to the extent that the appeal is allowed);

(b) remit the matter back to the economic regulator for reconsideration and determination in accordance with any directions given by the 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 economic regulator 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 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 section 24 any reference to a party to an appeal is to be read in accordance with Schedule 2.

Commencement Information

I4 S. 23 in force at 26.12.2023, see s. 334(3)(a)

24 Time limits for CMA to determine an appeal U.K.

(1) The CMA must—

(a) determine an appeal against a price control decision within the period of 6 months beginning with the permission date;

(b) determine an appeal against any other decision within the period of 4 months beginning with the permission date.

(2) Subsection (1)(a) or (b) does not apply if subsection (3) applies.

(3) This subsection applies where—

(a) the CMA has received representations on the timing of the determination from a party to the appeal, and

(b) it is satisfied that there are special reasons why the determination cannot be made within the period specified in subsection (1)(a) or (b).

(4) Where subsection (3) applies, the CMA must—

(a) determine an appeal against a price control decision within the period specified by it, which must not be 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, which must not be longer than the period of 5 months beginning with the permission date.

(5) Where subsection (3) applies, the CMA must also—

(a) inform the parties to the appeal of the time limit for determining the appeal, and

(b) publish that time limit in such manner as it considers appropriate for the purpose of bringing it to the attention of any other persons likely to be affected by the determination.

(6) In this section “price control decision” is to be read in accordance with section 23.

(7) References in this section to the “permission date” are to the date on which the CMA gave permission to bring the appeal in accordance with section 20(3).

Commencement Information

I5 S. 24 in force at 26.12.2023, see s. 334(3)(a)

25 Determination of appeal by CMA: supplementary U.K.

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

(a) must be contained in an order made by the CMA;

(b) must set out the reasons for the determination;

(c) takes effect at the time—

(i) specified in the order, or

(ii) determined in accordance with provision made in the order;

(d) must be notified by the CMA to the parties to the appeal;

(e) must be published by the CMA—

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

(ii) in such manner as the CMA considers appropriate for the purpose of bringing the determination to the attention of any person likely to be affected by it (other than a party to the appeal).

(2) The CMA may exclude from publication under subsection (1)(e) any information which it is satisfied is—

(a) commercial information, the disclosure of which would, or might in the CMA’s opinion, significantly harm the legitimate business interests of an undertaking to which it relates, or

(b) information relating to the private affairs of an individual, the disclosure of which would, or might in the CMA’s opinion, significantly harm the individual’s interests.

(3) The economic regulator must take such steps as it considers necessary for it to comply with an order of the 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 14 (consequences of modification of standard conditions) apply where a condition of a licence is modified in accordance with section 23 as they apply where a condition of a licence is modified under section 13.

Commencement Information

I6 S. 25 in force at 26.12.2023, see s. 334(3)(a)