The Energy (Northern Ireland) Order 2003

SCHEDULES

Article 3

SCHEDULE 1 N.I. THE NORTHERN IRELAND AUTHORITY FOR ENERGY REGULATION

Membership N.I.

[F1 1.— (1) The Authority shall consist of— N.I.

(a) a chairman; and

(b) not fewer than three other members,

appointed by the Department of Finance and Personnel.

(2) The Department of Finance and Personnel shall consult the chairman before appointing any other member.]

F1 Sch. 1 para. 1 substituted (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 3(3) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Terms of appointment, remuneration, pensions, etc. N.I.

2.—(1) Subject to this Schedule, the chairman and other members shall hold and vacate office as such in accordance with the terms of their respective appointments. N.I.

(2) The terms of appointment of the chairman and other members shall be determined by [F2 the Department of Finance and Personnel] .

F2 Words in Sch. 1 substituted (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 3(4) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

[F3 2A.   A person holding office as chairman or other member shall not— N.I.

(a) carry out any activity or have any financial or other interest that might compromise or might reasonably be seen to compromise that person's impartiality; F4 ...

(b) seek or take any instructions from any person or body that might compromise or might reasonably be seen to compromise the independence of the Authority when the Authority is carrying out functions in its capacity as national regulatory authority for Northern Ireland [F5 ;or]

[F6 (c) disclose information which is subject to a duty of confidentiality either while holding office or after holding office.]]

F3 Sch. 1 para. 2A inserted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 45(a)

F4 Word in Sch. 1 para. 2A(a) omitted (31.12.2020) by virtue of The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 31(a)(i)

F5 Word in Sch. 1 para. 2A(b) substituted (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 31(a)(ii)

F6 Sch. 1 para. 2A(c) added (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 31(a)(ii)

[F7 3.— (1) No person shall be appointed to hold office as chairman or other member for a term of less than 5 years or for a term of more than 7 years. N.I.

[F8 (1A) No person shall be appointed to hold office as chairman or other member except—

(a) in accordance with the code and such other guidance as may be published from time to time under Article 3(2) of the Commissioner for Public Appointments (Northern Ireland) Order 1995; and

(b) on the basis of the application of objective, transparent and published criteria which ensures that the candidate has the necessary skills and experience for the relevant position.]

(2) If a person who is on the Authority's staff, is appointed as chairman or other member, the Department of Finance and Personnel may make the appointment subject to the condition that the appointment will end if that person ceases to be on the Authority's staff.

(3) The appointment of a person as chairman or other member may be renewed only once.

(4) To ensure continuity of the functioning of the Authority, the Department of Finance and Personnel shall ensure that there is a rotation of the Authority's membership. To do this, that Department shall appoint members so that their terms of office will not all expire at the same time.

(5) A person holding office as chairman or other member may resign that office by giving notice in writing to the Department of Finance and Personnel.

(6) A person holding office as chairman or other member may only be removed from office by the Department of Finance and Personnel, and on one of the following grounds only—

(a) a breach of paragraph 2A;

(b) incapacity; or

(c) misbehaviour.]

F7 Sch. 1 para. 3 substituted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 45(b)

F8 Sch. 1 para. 3(1A) inserted (31.12.2020) by The Electricity (Internal Markets) Regulations (Northern Ireland) 2020 (S.R. 2020/307), regs. 1, 31(b)

4.—(1) The Authority shall pay to the chairman and other members such remuneration, and such travelling and other allowances, as may be determined by [F9 the Department of Finance and Personnel] . N.I.

(2) The Authority shall, if required to do so by [F9 the Department of Finance and Personnel]—

(a) pay such pension, allowances or gratuities as may be determined by [F9 the Department of Finance and Personnel] to or in respect of a person who is or has been the chairman or a member of the Authority; or

(b) make such payments as may be so determined towards provision for the payment of a pension, allowances or gratuities to or in respect of such a person.

(3) If, where any person ceases to hold office as chairman or other member, [F9 the Department of Finance and Personnel] determines that there are special circumstances which make it right that he should receive compensation, the Authority shall pay to him a sum by way of compensation of such amount as may be determined by [F9 the Department of Finance and Personnel] .

F9 Words in Sch. 1 substituted (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 3(4) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Staff N.I.

5.  The Authority may, with the approval of [F10 the Department of Finance and Personnel] of Finance and Personnel as to numbers and terms and conditions of service, appoint such staff as it may determine. N.I.

F10 Words in Sch. 1 substituted (1.4.2007) by virtue of Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 3(4) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Committees N.I.

6.—(1) The Authority may establish committees and any committee of the Authority may establish sub-committees. N.I.

(2) The members of a committee of the Authority may include persons who are not members of the Authority (and the members of a sub-committee may include persons who are not members of the committee).

Modifications etc. (not altering text)

C1 Sch. 1 para. 6 excluded (1.11.2007 for certain purposes, otherwise prosp.) by Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 (S.I. 2007/913 (N.I. 7)), arts. 1(3), 6(8); S.R. 2007/444, art. 2, Sch. 1

Proceedings, etc. N.I.

7.—(1) The Authority may regulate its own procedure (including quorum). N.I.

(2) The Authority shall consult [F11 the Department of Finance and Personnel] before making or revising its procedures for dealing with conflicts of interest.

(3) The validity of anything done by the Authority is not affected by a vacancy among its members or by a defect in the appointment of a member.

F11 Words in Sch. 1 substituted (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 3(4) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

8.—(1) The application of the seal of the Authority shall be authenticated by the signature of the chairman or by some other person who has been authorised by the Authority to act for that purpose. N.I.

(2) A document purporting to be duly executed under the seal of the Authority, or signed on its behalf, shall be received in evidence and, unless the contrary is proved, be taken to be so executed or signed.

Performance of functions N.I.

9.—(1) Anything authorised or required to be done by the Authority may be done by— N.I.

(a) any member or employee of the Authority who is authorised for that purpose by the Authority, whether generally or specially;

(b) any committee of the Authority which has been so authorised.

(2) Sub-paragraph (1) does not apply to any power to make a statutory instrument (within the meaning of section 1(e) of the Interpretation Act (Northern Ireland) 1954 (c.33)).

[F12 (2A) Sub-paragraph (1) is subject to provision in rules made under section 51 of the Competition Act 1998 by virtue of paragraph 1A of Schedule 9 to that Act in respect of the exercise of a function under Part 1 of that Act.]

(3) In sub-paragraph (1)(b) “committee of the Authority” does not include a committee whose members include any person who is not a member or employee of the Authority.

F12 Sch. 1 para. 9(2A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 57, 103(3), Sch. 15 para. 55; S.I. 2014/416, art. 2(1)(f) (with Sch.)

Modifications etc. (not altering text)

C2 Sch. 1 para. 9 excluded (1.11.2007 for certain purposes, otherwise prosp.) by Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 (S.I. 2007/913 (N.I. 7)), arts. 1(3), 6(8); S.R. 2007/444, art. 2, Sch. 1

Rule-making authority N.I.

10.  F13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.I.

F13 Sch. 1 para. 10 repealed (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 308(2), Sch. 13 (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Supplementary powers N.I.

11.—(1) The Authority has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of its functions. N.I.

(2) That power includes the formation of advisory bodies.

Assembly disqualification N.I.

12.  F14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.I.

F14 Sch. 1 para. 12 repealed (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 308(2), Sch. 13 (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Assembly Ombudsman N.I.

13.  F15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.I.

F15 Sch. 1 para. 13 repealed (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 308(2), Sch. 13 (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Articles 39 and 40

SCHEDULE 2 N.I. ORDERS ALTERING LICENSABLE ACTIVITIES

Introductory N.I.

1.—(1) In this Schedule references to an order are to an order under Article 39 or 40. N.I.

(2) An order providing for activities to become licensable activities may only be made on the application of the Authority made in accordance with paragraph 2.

(3) An order providing for activities to cease to be licensable activities may be made either—

(a) on the application of the Authority made in accordance with paragraph 7; or

(b) following consultation by the Department in accordance with paragraph 8.

[F16 (4) In this Schedule, “the CMA” means the Competition and Markets Authority.]

F16 Sch. 2 para. 1(4) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Application by Authority for order including new activities N.I.

2.—(1) If the Authority proposes to make an application for an order providing for activities to become licensable activities, it shall give notice— N.I.

(a) stating that it proposes to make an application for an order providing for the activities to become licensable activities;

(b) setting out any conditions which it would expect to be included in such licences; and

(c) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) In the case of an order under Article 40, the notice shall also set out the conditions which the Authority would expect such an order to determine to be standard conditions for the purposes of licences authorising the undertaking of the activities.

(3) The notice shall be given by serving a copy on the Council and by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of—

(a) persons appearing to it to be carrying on, or be intending to carry on, the activities; and

(b) any other persons appearing to it to be likely to be affected by an order providing for the activities to become licensable activities.

(4) If an objection has been duly made (and not withdrawn) by a person who is carrying on or intends to carry on the activities, the Authority shall make a reference to the [F17 CMA] under paragraph 3 before making the application.

(5) In any other case where the Authority considers it appropriate to make a reference to the [F18 CMA] under paragraph 3 before making the application, the Authority may make such a reference.

(6) If a reference is made to the [F19 CMA], the application shall not be made unless the [F19 CMA] has reported on the reference that the fact that the activities to which the application relates are not licensable activities operates, or may be expected to operate, against the public interest.

(7) The application shall set out—

(a) the activities which the Authority considers should become licensable activities; and

(b) the conditions which the Authority would expect to be included in such licences.

(8) In the case of an application for an order under Article 40 the application shall also set out the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities in question.

F17 Word in Sch. 2 para. 2(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F18 Word in Sch. 2 para. 2(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F19 Word in Sch. 2 para. 2(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

References to [F20 CMA] N.I.

F20 Word in Sch. 2 para. 3 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(4); S.I. 2014/416, art. 2(1)(d) (with Sch.)

3.—(1) A reference to the [F21 CMA] under this paragraph shall require [F22 the CMA] to investigate and report on whether the fact that the activities specified in the reference are not licensable activities operates, or may be expected to operate, against the public interest. N.I.

(2) The Authority may, at any time, by notice given to the [F23 CMA] vary the reference by adding to the activities specified in the reference or by excluding from the reference some of the activities so specified; and on receipt of such notice the [F23 CMA] shall give effect to the variation.

(3) The Authority shall specify in the reference, or a variation of the reference, for the purpose of assisting the [F24 CMA] in carrying out the investigation on the reference—

(a) the conditions which the Authority would expect to be included in licences authorising the undertaking of the activities specified in the reference and (in the case of a reference in relation to an application for an order under Article 40) the conditions which the Authority would expect to be determined to be standard conditions for the purposes of such licences; and

(b) any effects adverse to the public interest which, in its opinion, the fact that the activities so specified are not licensable activities has or may be expected to have.

(4) As soon as practicable after making the reference, or a variation of the reference, the Authority shall serve a copy of it on the Council and publish particulars of it in such manner as the Authority considers appropriate for bringing it to the attention of—

(a) persons appearing to the Authority to be carrying on, or be intending to carry on, the activities specified in it; and

(b) any other persons appearing to the Authority to be likely to be affected by it.

(5) The Authority shall, for the purpose of assisting the [F25 CMA] in carrying out the investigation on the reference, give to the [F25 CMA]—

(a) any information which is in its possession and which relates to matters falling within the scope of the investigation, and which is either requested by the [F25 CMA] for that purpose or is information which in its opinion it would be appropriate for that purpose to give to the [F25 CMA] without any such request; and

(b) any other assistance which the [F25 CMA] may require, and which it is within its power to give, in relation to any such matters,

and the [F25 CMA] shall take account of the information for the purpose of carrying out the investigation.

(6) In determining for the purposes of this paragraph whether the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, the [F26 CMA] shall have regard—

(a) in the case of a reference in relation to an application for an order under Article 39 to the matters referred to in Article 12;

(b) in the case of a reference in relation to an application for an order under Article 40 to the matters referred to in Article 14.

[F27 (7) The functions of the CMA with respect to a reference under this paragraph (including functions under sections 109 to 115 of the Enterprise Act 2002, as applied by paragraph 5) 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.]

F21 Word in Sch. 2 para. 3(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(a)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F22 Words in Sch. 2 para. 3(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(a)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F23 Word in Sch. 2 para. 3(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F24 Word in Sch. 2 para. 3(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F25 Word in Sch. 2 para. 3(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F26 Word in Sch. 2 para. 3(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F27 Sch. 2 para. 3(7) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(5)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

References under paragraph 3: time limits N.I.

4.—(1) Every reference under paragraph 3 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made. N.I.

(2) A report of the [F28 CMA] on a reference under paragraph 3 shall not have effect (in particular for the purposes of paragraph 2(6)) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under sub-paragraph (3).

(3) The Authority may, if it has received representations on the subject from the [F29 CMA] and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under sub-paragraph (3) in relation to the same reference.

(5) The Authority shall publish an extension under sub-paragraph (3) in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

F28 Word in Sch. 2 para. 4(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(6)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F29 Word in Sch. 2 para. 4(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(6)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

References under paragraph 3: application of Enterprise Act 2002 N.I.

5.—(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs [F30 (1A),](2) and (3), for the purposes of references under paragraph 3 as they apply for the purposes of references under that Part— N.I.

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

[F31 (1A) Section 109 shall, in its application by virtue of sub-paragraph (1), have effect as if—

(a) for subsection (A1), there were substituted—

“(A1) For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with a reference under paragraph 3 of Schedule 2 to the Energy (Northern Ireland) Order 2003.”, and

(b) subsection (8A) were omitted.]

(2) Section 110 shall, in its application by virtue of sub-paragraph (1), have effect as if—

(a) subsection (2) were omitted; F32 . . .

[F33 (aa) after subsection (3), there were inserted—

“(3A) No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication of the report of the CMA on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.”; and]

(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

[F34 (3) Section 111(5)(b) shall, in its application by virtue of sub-paragraph (1), have effect as if for sub-paragraph (ii) there were substituted—

“(ii) if earlier, the day on which the report of the CMA on the reference concerned is made or, if no such report is made within the period permitted for that purpose, the latest day on which the report may be made within the permitted period.”.]

(4) Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the [F35 CMA] in connection with references under paragraph 3 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2),[F36 for the words “, OFCOM or the Secretary of State” there were substituted “or OFCOM”].

(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (1) or (4), have effect in relation to those sections as applied by virtue of those sub-paragraphs.

(6) Accordingly, corresponding provisions of this Order, the Electricity Order or the Gas Order shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs.

F30 Word in Sch. 2 para. 5(1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 243(2) (with art. 3, Sch. 2 para. 2 Table)

F31 Sch. 2 para. 5(1A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 243(3) (with art. 3, Sch. 2 para. 2 Table)

F32 Word in Sch. 2 para. 5(2)(a) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 243(4)(a) (with art. 3, Sch. 2 para. 2 Table)

F33 Sch. 2 para. 5(2)(aa) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 243(4)(b) (with art. 3, Sch. 2 para. 2 Table)

F34 Sch. 2 para. 5(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 243(5) (with art. 3, Sch. 2 para. 2 Table)

F35 Word in Sch. 2 para. 5(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(7)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F36 Words in Sch. 2 para. 5(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(7)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Reports on references N.I.

6.—(1) In making a report on a reference under paragraph 3, the [F37 CMA] shall include in the report definite conclusions on whether the fact that the activities specified in the reference (or the reference as varied) are not licensable activities operates, or may be expected to operate, against the public interest. N.I.

(2) The [F38 CMA] shall also include in the report such an account of its reasons for those conclusions as in its opinion is expedient for facilitating proper understanding of the questions raised by the reference and of its conclusions.

(3) Where the [F39 CMA] concludes that the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, it shall specify in the report—

(a) the effects adverse to the public interest which that fact has or may be expected to have; and

(b) any modifications to the conditions specified in the reference in accordance with paragraph 3(3)(a) which it considers appropriate.

(4) For the purposes of paragraph 2(6), a conclusion contained in a report of the [F40 CMA] is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted[F41 by the chair of the CMA for the purpose of carrying out the functions of the CMA with respect to the reference].

(5) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under paragraph 3 as the conclusions of the [F42 CMA], the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

(6) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the [F43 CMA] on a reference under paragraph 3.

(7) In making any report on a reference under paragraph 3 the [F44 CMA] must have regard to the following considerations before disclosing any information.

(8) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the [F45 CMA] thinks is contrary to the public interest.

(9) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the [F46 CMA] thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the [F47 CMA] thinks might significantly harm the individual's interests.

(10) The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (9)(a) or (b) is necessary for the purposes of the report.

(11) A report of the [F48 CMA] on a reference under paragraph 3 shall be made to the Authority.

(12) On receiving the report, the Authority shall send a copy of it to the Department.

(13) Subject to sub-paragraph (14), the Authority shall, not less than 14 days after the copy is received by the Department, send another copy to the Council and publish that other copy in such manner as the Authority considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(14) If it appears to the Department that the publication of any matter in the report would be against the public interest or the commercial interests of any person, it may, before the end of the period of 14 days mentioned in sub-paragraph (13), direct the Authority to exclude that matter from the copy of the report to be sent to the Council and published under that sub-paragraph.

F37 Word in Sch. 2 para. 6(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F38 Word in Sch. 2 para. 6(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F39 Word in Sch. 2 para. 6(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F40 Word in Sch. 2 para. 6(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(c)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F41 Words in Sch. 2 para. 6(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(c)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F42 Word in Sch. 2 para. 6(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F43 Word in Sch. 2 para. 6(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F44 Word in Sch. 2 para. 6(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F45 Word in Sch. 2 para. 6(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F46 Word in Sch. 2 para. 6(9)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F47 Word in Sch. 2 para. 6(9)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F48 Word in Sch. 2 para. 6(11) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 26(4), 103(3), Sch. 6 para. 170(8)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Application by Authority for order excluding activities N.I.

7.—(1) Before making an application for an order providing for activities to cease to be licensable activities the Authority shall give notice— N.I.

(a) stating that it proposes to make an application for an order providing for the activities to cease to be licensable activities; and

(b) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,

and shall consider any representations or objections duly made and not withdrawn.

(2) The notice shall be given—

(a) by serving a copy on the Department and the Council; and

(b) by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by such an order.

(3) An application under this paragraph shall set out—

(a) the activities which the Authority considers should cease to be licensable activities; and

(b) the Authority's reasons for proposing that the order be made.

Consultation by Department about order excluding activities N.I.

8.—(1) If the Department proposes to make an order providing for activities to cease to be licensable activities (otherwise than on an application by the Authority under paragraph 7), it shall give notice— N.I.

(a) stating that it proposes to make an order providing for the activities to cease to be licensable activities; and

(b) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,

and shall consider any representations or objections duly made (and not withdrawn).

(2) The notice shall be given—

(a) by serving a copy on the Authority and the Council; and

(b) by publishing it in such manner as the Department considers appropriate for bringing it to the attention of persons likely to be affected by such an order.

N.I.

Schedule 3—Amendments

Article 65

SCHEDULE 4 N.I. TRANSITIONAL AND TRANSITORY PROVISIONS AND SAVINGS

Abolition of Consumer Committee for Electricity N.I.

1.—(1) The Consumer Committee for Electricity shall provide the Council with such information or assistance and such documents or records as the Council may require for the purposes of its functions under this Order. N.I.

(2) Any statutory provision or any document which—

(a) refers to the Consumer Committee for Electricity; and

(b) was passed or made before the coming into operation of Article 9(3)(b),

shall have effect after that time, so far as necessary for the purposes of or in consequence of this Order, as if references to the Committee were references to the Council.

First financial year of Authority N.I.

2.—(1) If the period beginning with the day on which the Authority is established and ending with the next 31st March is 6 months or more, the first financial year of the Authority is that period. N.I.

(2) Otherwise the first financial year of the Authority is the period beginning with the day on which the Authority is established and ending with the second following 31st March.

First forward work programmes of Authority and Council N.I.

3.—(1) The Authority's first work programme required by Article 5(1) shall relate to the financial year following its first financial year. N.I.

(2) The Council's first work programme required by Article 10(1) shall relate to the same financial year as the Authority's first work programme.

Last annual reports of the Directors N.I.

4.—(1) After the abolition of the offices of Director General of Gas for Northern Ireland and Director General of Electricity Supply for Northern Ireland, any duty of either Director to make an annual report, in relation to any calendar year for which such a report has not been made, shall be carried out by the Authority. N.I.

(2) The period between the abolition of those offices and the end of the preceding calendar year (if less than 12 months) shall be treated as the calendar year for which the last annual reports are required.

(3) If that period is nine months or more, the Authority shall make the last annual reports as soon as practicable after the end of that period.

(4) If that period is less than nine months, the last annual reports shall be made no later than the first report of the Authority under Article 6(1).

(5) In this paragraph “annual reports” means reports required by Article 53(1) of the Electricity Order and Article 32(1) of the Gas Order.

Investigations being carried out under the Electricity Order N.I.

5.—(1) This paragraph applies to any matter— N.I.

(a) being investigated by the Director General of Electricity Supply for Northern Ireland or the consumer committee under Article 48 of the Electricity Order (investigation of enforcement matters) immediately before the repeal by this Order of that Article,

(b) being investigated by the consumer committee under Article 49 of that Order (investigation of certain other matters) immediately before the repeal by this Order of that Article.

(2) If the matter being investigated is a matter which appears to the Council to be a matter which is or amounts to a complaint to which Article 22 applies, the Council shall treat the matter as if it were a complaint referred to it under that Article.

(3) In any other case the Authority shall either—

(a) agree with the Council that the Council is to investigate the matter under Article 23; or

(b) make such further investigations of the matter, and take such action, as it considers appropriate.

(4) Where the Council or the Authority is required by virtue of sub-paragraph (2) or (3) to investigate a matter, it may treat anything done by the Director General of Electricity Supply for Northern Ireland or the consumer committee in investigating that matter as if done for the purposes of its own investigation.

(5) The Director General of Electricity Supply for Northern Ireland shall give the Council such information or assistance as may be necessary to enable it to carry out its functions under this paragraph.

Investigations being carried out under the Gas Order N.I.

6.—(1) This paragraph applies to any matter— N.I.

(a) being investigated by the Director General of Gas for Northern Ireland or the Council under Article 25 of the Gas Order (investigation of enforcement matters) immediately before the repeal by this Order of that Article,

(b) being investigated by the Council under Article 26 of that Order (investigation of certain other matters) immediately before the repeal by this Order of that Article.

(2) If the matter being investigated is a matter which appears to the Council to be a matter which is or amounts to a complaint to which Article 22 applies, the Council shall treat the matter as if it were a complaint referred to it under that Article.

(3) In any other case—

(a) if the matter was being investigated by the Council, the Council shall investigate the matter under Article 23;

(b) if the matter was being investigated by the Director General of Gas for Northern Ireland, the Authority shall either—

(i) agree with the Council that the Council is to investigate the matter under Article 23; or

(ii) make such further investigations of the matter, and take such action, as it considers appropriate.

(4) Where the Council or the Authority is required by virtue of sub-paragraph (2) or (3) to investigate a matter, it may treat anything done by the Director General of Gas for Northern Ireland in investigating that matter as if done for the purposes of its own investigation.

(5) The Director General of Gas for Northern Ireland shall give the Council such information or assistance as may be necessary to enable it to carry out its functions under this paragraph.

Grant of new electricity transmission licence N.I.

7.—(1) This paragraph applies in relation to any licence which— N.I.

(a) is granted under Article 10(1)(b) of the Electricity Order in the period of two months beginning with the commencement of paragraph 1(2) of Schedule 3; and

(b) authorises a person to transmit electricity, within the meaning of paragraph (d) or (e) of the definition of “transmit” in Article 3 of the Electricity Order.

(2) Neither the requirement to consult imposed by Article 10(1) of the Electricity Order nor Article 10(3) and (4) of that Order shall apply in relation to the granting of such a licence

8.—(1) This paragraph applies in relation to any licence granted under Article 10(1)(b) of the Electricity Order in the period of two months beginning with the commencement of Article 28. N.I.

(2) Anything required or authorised to be done by Article 10(3) to (5) of the Electricity Order in relation to the granting of such a licence may be done at any time before the commencement of Article 28.

Grant of new licence under Article 8(1)(a) of Gas Order N.I.

9.—(1) This paragraph applies in relation to any licence granted under Article 8(1)(a) of the Gas Order in the period of two months beginning with the commencement of Article 30. N.I.

(2) Anything required or authorised to be done by Article 8(3), (4) or (7) of the Gas Order in relation to the granting of such a licence may be done at any time before the commencement of Article 30.

Modification of licences following Competition Commission report N.I.

10.  Article 36 does not apply in relation to the modification of an electricity licence following a report of the Competition Commission made before the commencement of that Article. N.I.

11.  Article 37 does not apply in relation to the modification of a gas licence following a report of the Competition Commission made before the commencement of that Article. N.I.

Enforcement N.I.

12.—(1) Articles 42 to 44 and 51 (and the related repeals in Schedule 5) do not have effect in relation to— N.I.

(a) a provisional order which has been made before the commencement of those Articles; or

(b) a final order in respect of which notice has been given under Article 29 of the Electricity Order or Article 20 of the Gas Order before the commencement of those Articles.

(2) Subject to sub-paragraph (1), any notice served—

(a) under Article 31(2) of the Electricity Order for the purposes of any of the functions of the Director General of Electricity Supply for Northern Ireland under Article 28 of that Order; or

(b) under Article 30(1) of the Gas Order,

shall have effect as if served by the Authority under Article 51(2).

Financial penalties N.I.

13.  The power of the Authority under Article 45(1) or (2) is not exercisable in respect of any contravention or failure before the commencement of that Article. N.I.

Consultation concerning common tariff N.I.

14.  Any consultation undertaken by the Department or the Director General of Gas for Northern Ireland before the commencement of Article 60 shall be as effective, for the purposes of paragraph (4) of that Article, as if undertaken in accordance with that paragraph after that commencement. N.I.

Modification of existing licences N.I.

15.—(1) The Department after consultation with the Authority, or the Authority with the consent of the Department, may in accordance with this paragraph modify— N.I.

(a) a gas licence or an electricity licence; or

(b) the standard conditions of licences under sub-paragraph (a), (b) or (c) of Article 8(1) of the Gas Order,

where the Department or (as the case may be) the Authority considers it necessary or expedient to do so in consequence of this Order.

(2) In particular the Department or the Authority may under sub-paragraph (1)(a) or (b) make modifications in consequence of, or of preparations for—

(a) the establishment of the Authority;

(b) the conferral by this Order of functions on the Authority or the Council; or

(c) the abolition of any office or body mentioned in Article 3(4) or 9(3).

(3) Where the Department or the Authority makes any modification under sub-paragraph (1)(a) or (b) it may make such incidental or consequential modifications to the licence or conditions as it considers necessary or expedient.

(4) Before making any modification under sub-paragraph (1) or (3) the Department or Authority shall consult the licence holder.

(5) Any consultation undertaken by the Director General of Gas for Northern Ireland or the Director General of Electricity Supply for Northern Ireland before the commencement of Article 3(1) shall be as effective for the purposes of this paragraph as if undertaken by the Authority after that time.

(6) Any modification of part of a standard condition of a gas licence under paragraph (1)(a) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of Part II of the Gas Order.

(7) Where at any time the Department or the Authority modifies under paragraph (1)(b) the standard conditions of licences under sub-paragraph (a), (b) or (c) of Article 8(1) of the Gas Order, it shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time.

(8) Where the Department or the Authority makes any modifications under this paragraph it shall publish those modifications in such manner as it considers appropriate.

(9) The powers of the Department and the Authority under sub-paragraphs (1) and (3) may not be exercised after the end of the period of two years beginning with the commencement of this paragraph.

References to Directors General N.I.

16.—(1) This paragraph applies to any provision of this Order which— N.I.

(a) contains a reference to the Authority; but

(b) comes into operation before the commencement of Article 4(2).

(2) Until that commencement any reference to the Authority shall be construed as a reference to the Director General of Electricity Supply for Northern Ireland or (as the context may require) the Director General of Gas for Northern Ireland.

References to Office of Fair Trading N.I.

17.—(1) This paragraph applies to any provision of this Order which— N.I.

(a) contains a reference to the Office of Fair Trading; but

(b) comes into operation before the commencement of section 2(3) of the Enterprise Act 2002.

(2) Until that commencement any reference to the Office of Fair Trading shall be construed as a reference to the Director General of Fair Trading.

References to provisions of the Enterprise Act 2002 N.I.

18.—(1) Until the commencement of section 186 of the Enterprise Act 2002 the reference to paragraph 12A of Schedule 7 to the Competition Act 1998 in Article 6(10) shall be construed as a reference to section 125(1) of the Fair Trading Act 1973 (c.41). N.I.

(2) Until the commencement of Part 9 of the Enterprise Act 2002 the reference to that Part in Article 63(10) shall be construed as a reference to sections 55 and 56 of the Competition Act 1998 (c.41).

N.I.

Schedule 5—Repeals