Penalties in addition to, or instead of, ineffectivenessE+W+N.I.
63.—(1) Where the Court makes a declaration of ineffectiveness, it must also order that the contracting authority or utility pay a civil financial penalty of the amount specified in the order.
(2) Paragraph (3) applies where—
(a)in proceedings for a declaration of ineffectiveness, the Court is satisfied that either of the grounds for ineffectiveness applies but does not make a declaration of ineffectiveness because regulation 61 requires it not to do so; or
(b)in any proceedings, the Court is satisfied that the concession contract has been entered into in breach of any requirement imposed by regulation 48, 56 or 57(1)(b), and does not make a declaration of ineffectiveness (whether because none was sought or because the Court is not satisfied that either of the grounds for ineffectiveness applies).
(3) In those circumstances, the Court must order at least one, and may order both, of the following penalties—
(a)that the duration of the concession contract be shortened to the extent specified in the order;
(b)that the contracting authority or utility pay a civil financial penalty of the amount specified in the order.
(4) When the Court is considering what order to make under paragraph (1) or (3), the overriding consideration is that the penalties must be effective, proportionate and dissuasive.
(5) In determining the appropriate order, the Court must take account of all the relevant factors, including—
(a)the seriousness of the relevant breach of the duty owed in accordance with regulation 50 or 51;
(b)the behaviour of the contracting authority or utility;
(c)where the order is to be made under paragraph (3), the extent to which the concession contract remains in force.
(6) Where more than one economic operator starts proceedings in relation to the same concession contract, paragraph (4) applies to the totality of penalties imposed in respect of the concession contract.
Civil financial penalties
(7) Subject to paragraph (8), where a contracting authority or utility is ordered by the High Court of England and Wales to pay a civil financial penalty under this regulation—
(a)the Court's order must state that the penalty is payable to the Minister for the Cabinet Office;
(b)the Court must send a copy of the order to the Minister;
(c)the contracting authority or utility must pay the penalty to the Minister; and
(d)the Minister must, on receipt of the penalty, pay it into the Consolidated Fund.
(8) Where the Minister for the Cabinet Office, or the Cabinet Office, is ordered to pay a civil financial penalty under this regulation—
(a)paragraph (7) does not apply; and
(b)the Minister for the Cabinet Office must pay the penalty into the Consolidated Fund.
(9) Subject to paragraph (10), where a contracting authority or utility is ordered by the High Court of Northern Ireland to pay a civil financial penalty under this regulation—
(a)the Court's order must state that the penalty is payable to the Department of Finance and Personnel;
(b)the Court must send a copy of the order to the Department;
(c)the contracting authority or utility must pay the penalty to the Department; and
(d)the Department must, when it receives the penalty, pay it into the Consolidated Fund of Northern Ireland.
(10) Where the Department of Finance and Personnel is ordered to pay a civil financial penalty under this regulation—
(a)paragraph (9) does not apply; and
(b)the Department must pay the penalty into the Consolidated Fund of Northern Ireland.
(11) Where a contracting authority or utility is a non-Crown body—
(a)any payment due under paragraph (7) may be enforced by the Minister for the Cabinet Office as a judgment debt due to the Minister; and
(b)any payment due under paragraph (9) may be enforced by the Department of Finance and Personnel as a judgment debt due to it.
Concession contract shortening
(12) When making an order under paragraph (3)(a), or at any time after doing so, the Court may make any order that it thinks appropriate for addressing the consequences of the shortening of the duration of the concession contract.
(13) Such an order may, for example, address issues of restitution and compensation as between those parties to the concession contract who are parties to the proceedings so as to achieve an outcome which the Court considers to be just in all the circumstances.
(14) Paragraph (15) applies where the parties to the concession contract have, at any time before the order under paragraph (3)(a) is made, agreed by contract any provisions for the purpose of regulating their mutual rights and obligations in the event of such an order being made.
(15) In those circumstances, the Court must not exercise its power to make an order under paragraph (12) in any way which is inconsistent with those provisions, unless and to the extent that the Court considers that those provisions are incompatible with the primary order that is being made, or has been made, under paragraph (3)(a).
(16) In paragraph (3)(a), “duration of the concession contract” refers only to its prospective duration as from the time when the Court makes the order.