The Enterprise Act 2002 (Commencement No. 7 and Transitional Provisions and Savings) Order 2004

Statutory Instruments

2004 No. 3233 (C.142)

COMPETITION

The Enterprise Act 2002 (Commencement No. 7 and Transitional Provisions and Savings) Order 2004

Made

7th December 2004

The Secretary of State, in exercise of the powers conferred upon her by sections 276(2) and 279 of the Enterprise Act 2002(1), hereby makes the following Order:

Citation and interpretation

1.—(1) This Order may be cited as the Enterprise Act 2002 (Commencement No. 7 and Transitional Provisions and Savings) Order 2004.

(2) In this Order—

(a) “the 2002 Act” means the Enterprise Act 2002;

(b) “the 1991 Act” means the Water Industry Act 1991(2); and

(c) “water purposes” means purposes relating to—

(i) the making by the Secretary of State of references under section 32 of the 1991 Act, or

(ii) any references so made.

Appointed day

2.  29th December 2004 is the appointed day for the coming into force of the provisions of the 2002 Act listed in the first column of the Schedule to this Order for the purposes set out in the second column.

Transitional provisions and savings – completed water mergers

3.—(1) Subject to paragraphs 15 to 18 of Schedule 24 to the 2002 Act, the old law shall continue to apply where a merger of two or more water enterprises has taken place before 29th December 2004.

(2) The power of the decision-making authority under section 27(5) or 29(1) (including those provisions as applied by any enactment) in relation to events or transactions is exercisable, in relation to a merger of two or more water enterprises which has taken place before 29th December 2004, where the merger forms part of successive events or a series of transactions which include at least one event or transaction to which the new law applies.

(3) Where the decision-making authority exercises its power as mentioned in paragraph (2) in relation to a merger of two or more water enterprises which has taken place before 29th December 2004, paragraph (1) shall accordingly cease to apply in relation to the merger.

(4) In this article “enactment” includes an enactment comprised in secondary legislation, and includes an enactment whenever passed or made.

Transitional provisions and savings – anticipated water mergers

4.—(1) Subject to paragraphs 15 to 18 of Schedule 24 to the 2002 Act, the old law shall continue to apply in relation to any relevant arrangements which were in progress before 29th December 2004 and are in progress on that day and (if events so require) the actual results of those arrangements where, before 29th December 2004 and in relation to the arrangements, a reference was made by the Secretary of State under section 32(a) of the 1991 Act.

(2) Subject to paragraphs 15 to 18 of Schedule 24 of the 2002 Act, the old law shall continue to apply in relation the enforcement, variation or release of any undertakings given before 29th December 2004 under section 88 of the 1973 Act(3) in relation to any relevant arrangements which are not otherwise dealt with by paragraph (1).

(3) The new law shall apply in relation to relevant arrangements and (if events so require) the results of those arrangements if—

(a) the arrangements were in progress before 29th December 2004 and are in progress on that day, and

(b) before that day and in relation to the arrangements, no reference was made by the Secretary of State under section 32(a) of the 1991 Act.

(4) In this article—

(a) “relevant arrangements” means arrangements which might result in the merger of two or more water enterprises; and

(b) references to relevant arrangements which are in progress on 29th December 2004 include references to the actual results of those arrangements if the arrangements were in progress immediately before that day and have, at the beginning of that day, resulted in the merger of two or more water enterprises.

Articles 3 and 4: interpretation and supplemental provision

5.—(1) In articles 3 and 4—

(a) “the new law” means–

(i) sections 32 to 35 of, and Schedule 4ZA to, the 1991 Act (as substituted and inserted by section 70 of, and Schedule 6 to, the 2002 Act),

(ii) such provisions of Part 3 of the 2002 Act as apply by virtue of (and with the modifications prescribed under) Schedule 4ZA to the 1991 Act, and

(iii) any related provision of law,

(including, in particular, any modification made under section 276(2) of the 2002 Act to any provision mentioned in paragraphs (i) to (iii));

(b) “the old law” means–

(i) sections 32 to 35 of the 1991 Act (as in force immediately before 29th December 2004),

(ii) such provisions of sections 64 to 75K of the 1973 Act as apply by virtue of section 34 of the 1991 Act immediately before that date, and

(iii) any related provision of law,

(including, in particular, any modification made under section 276(2) of the 2002 Act to any provision mentioned in paragraphs (i) to (iii)); and

(c) references to the merger of two or more water enterprises shall be construed in accordance with section 35(1) and (2) of the 1991 Act, as in force immediately before 29th December 2004.

(2) In articles 3 and 4, references to the old law, in relation to the period on or after 20th June 2003, include references to the old law with the following modifications—

(a) section 35(4) of the 1991 Act has effect as if for the words from “the Secretary of State” to “the 1973 Act” there were substituted “the OFT or the Secretary of State, in a case in which, or to any extent to which, the Secretary of State is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act”,

(b) paragraph 5 of Schedule 1 to the 1998 Act(4) has effect as if in paragraph (d) for “OFT” there were substituted “Secretary of State”, and

(c) section 121 of the 2002 Act has effect as if the following were omitted–

(i) in subsection (1), the words from “and sections 32” to the end,

(ii) subsection (3)(d), and

(iii) in subsection (8), the words from “and sections 32” to the end.

(3) Paragraph 13 of Schedule 24 to the 2002 Act shall not apply in connection with the coming into force of any provision of the 2002 Act by virtue of this Order.

Gerry Sutcliffe,

Parliamentary Under Secretary of State for Employment Relations, Postal Services and Consumers,

Department of Trade and Industry

7th December 2004

Article 2

SCHEDULE

Provisions of the 2002 Act	Purpose
Section 70 (water mergers)	For all purposes
Section 185 (the Commission)	For the purposes of the provisions of Schedule 11 brought into force by this Order
Section 278 (minor and consequential amendments and repeals)	For the purposes of the provisions of Schedules 25 and 26 brought into force by this Order
Schedule 6 (schedule to be inserted in the Water Industry Act 1991)	For all purposes
In Schedule 9 (certain amendments of sectoral enactments) —
paragraph 7	For water purposes
paragraph 8(a)	For all purposes
In Schedule 11 (the Competition Commission) —
paragraph 1	For the purpose of commencing the provisions of Schedule 11 brought into force by this Order
paragraphs 10(4) and 11	For water purposes
In Schedule 25 (minor and consequential amendments) —	For water purposes
paragraphs 1(1), 1(2), 8(1), 8(3), 18(1) to 18 (5), 38(1), 38(2) and 38(50)(a) to (c)
In Schedule 26 (repeals and revocations) the entries relating to the—
Registered Designs Act 1949(5), section 11A(1)(b)	For water purposes
Fair Trading Act 1973(6), sections 63 to 76, 77, 78 to 81, 82, 83, 84, 86, 88 to 93A, 129, 132, 138, Schedules 8 and 9	For water purposes
Patents Act 1977(7), section 51(1)(b)	For water purposes
Companies Consolidation (Consequential Provisions) Act 1985(8)	For water purposes
Companies Act 1989(9), sections 146 to 150, and Schedule 20	For water purposes
Companies Act 1989, section 152	For all purposes
EEC Merger Control (Consequential Provisions) Regulations 1990(10)	For water purposes
Deregulation and Contracting Out Act 1994(11), section 9 and paragraph 2(3) in Schedule 11	For water purposes
Deregulation (Fair Trading Act 1973) (Amendment) (Merger Reference Time Limits) Order 1996(12)	For water purposes
Competition Act 1998(13), paragraph 15(7) in Schedule 7	For water purposes

Explanatory Note

(This note is not part of the Order)

This Order brings into force on 29 December 2004 section 70 of and Schedule 6 to the Enterprise Act 2002, which amend the provisions of the Water Industry Act 1991 concerned with mergers of water enterprises. In addition, the Order commences various related repeals, and makes transitional provisions and savings.

A full regulatory impact assessment has not been produced for this instrument as it has no impact on the costs of business.

Note as to Earlier Commencement Orders

(This note is not part of the Order)

The following provisions of the Enterprise Act 2002 have been brought into force by commencement orders made before the date of this Order:

Provision	Date of Commencement	S.I. No.
Sections 1 to 4	01.04.03	2003/766
Sections 5 to 7	20.06.03	2003/1397
Sections 8, 9 and 10	01.04.03	2003/766
Section 11	20.06.03	2003/1397
Section 12	01.04.03	2003/766
Section 13(1) to (5)	01.04.03	2003/766
Section 13(6) (partially)	18.03.03	2003/765
Section 13(6) (remaining purposes)	01.04.03	2003/766
Section 14(1) to 14(5)	01.04.03	2003/766
Section 14(6) (partially)	01.04.03	2003/766
Section 14(6) (remaining purposes)	20.06.03	2003/1397
Section 15	01.04.03	2003/766
Sections 16 to 20	20.06.03	2003/1397
Section 21	01.04.03	2003/766
Sections 22 to 69	20.06.03	2003/1397
Sections 71 to 120	20.06.03	2003/1397
Section 121	20.06.03	2003/1397
Sections 122 to 130	20.06.03	2003/1397
Part 4 of the Act (sections 131 to 184)	20.06.03	2003/1397
Section 185 (partially)	01.04.03	2003/766
Section 185 (partially)	20.06.03	2003/1397
Section 186	01.04.03	2003/766
Section 187	20.06.03	2003/1397
Part 6 (Sections 188 to 202)	20.06.03	2003/1397
Sections 203 to 206	20.06.03	2003/1397
Section 207	01.04.03	2003/766
Sections 208 and 209	20.06.03	2003/1397
Part 8 (Sections 210 to 236)	20.06.03	2003/1397
Part 9 (Sections 237 to 247)	20.06.03	2003/1397
Section 248 (partially)	15.09.03	2003/2093
Section 249	15.09.03	2003/2093
Section 250(1) (partially)	18.03.03	2003/765
Section 250 (remaining purposes)	15.09.03	2003/2093
Section 251	15.09.03	2003/2093
Section 252	15.09.03	2003/2093
Section 253	15.09.03	2003/2093
Section 254	15.09.03	2003/2093
Section 255	15.09.03	2003/2093
Section 256 (partially)	01.04.04	2003/2093
Section 257	01.04.04	2003/2093
Section 258	01.04.04	2003/2093
Section 259	01.04.04	2003/2093
Section 260	01.04.04	2003/2093
Section 261	01.04.04	2003/2093
Section 262	15.09.03	2003/2093
Section 263	01.04.04	2003/2093
Section 264	01.04.04	2003/2093
Section 265	01.04.04	2003/2093
Section 266	01.04.04	2003/2093
Section 267	01.04.04	2003/2093
Section 268	01.04.04	2003/2093
Section 269	01.04.04	2003/2093
Section 270 (partially)	18.12.03	2003/3340
Section 270 (remaining purposes)	01.04.04	2003/2093
Section 271	18.12.03	2003/3340
Section 272	01.04.04	2003/2093
Section 273	18.03.03	2003/765
Section 274	01.04.03	2003/766
Section 275	18.03.03	2003/765
Section 276(1)(partially)	18.03.03	2003/765
Section 276(1)(partially)	01.04.03	2003/766
Section 276(1) (remaining purposes)	20.06.03	2003/1397
Section 276(2) to (4)	18.03.03	2003/765
Section 277	18.03.03	2003/765
Section 278 (partially)	01.04.03	2003/766
Section 278 (partially)	20.06.03	2003/1397
Section 278 (partially)	15.09.03	2003/2093
Section 278 (partially)	01.04.04	2003/2093
Schedules 1 and 2	01.04.03	2003/766
Schedule 3, Parts 1 and 3	01.04.03	2003/766
Schedule 3, Part 2	18.03.03	2003/765
Schedule 4 (partially)	01.04.03	2003/766
Schedule 4 (remaining purposes)	20.06.03	2003/1397
Schedule 5 (partially)	01.04.03	2003/766
Schedule 5 (partially)	18.07.04	2004/1866
Schedule 7	20.06.03	2003/1397
Schedule 8	20.06.03	2003/1397
Schedule 9 (partially)	20.06.03	2003/1397
Schedule 10	20.06.03	2003/1397
Schedule 11 (partially)	01.04.03	2003/766
Schedule 11 (partially)	20.06.03	2003/1397
Schedule 12	20.06.03	2003/1397
Schedule 13	20.06.03	2003/1397
Schedule 14	20.06.03	2003/1397
Schedule 15	20.06.03	2003/1397
Schedule 16	15.09.03	2003/2093
Schedule 17 (partially)	15.09.03	2003/2093
Schedule 18	15.09.03	2003/2093
Schedule 19 (partially)	01.04.04	2003/2093
Schedule 20	01.04.04	2003/2093
Schedule 21	01.04.04	2003/2093
Schedule 22	01.04.04	2003/2093
Schedule 23	01.04.04	2003/2093
Schedule 24 (partially)	18.03.03	2003/765
Schedule 24 (partially)	01.04.03	2003/766
Schedule 24 (remaining purposes)	20.06.03	2003/1397
Schedule 25 (partially)	01.04.03	2003/766
Schedule 25 (partially)	20.06.03	2003/1397
Schedule 26 (partially)	01.04.03	2003/766
Schedule 26 (partially)	20.06.03	2003/1397
Schedule 26 (partially)	15.09.03	2003/2093
Schedule 26 (partially)	01.04.04	2003/2093

(1)

2002 c. 40.

(2)

1991 c. 56.

(3)

1973 c. 41.

(4)

1998 c. 41.

(5)

1949 c. 88

(6)

1973 c. 41.

(7)

1977 c. 37.

(8)

1985 c. 9.

(9)

1989 c. 40.

(10)

S.I.1990/1563.

(11)

1994 c. 40.

(12)

S.I.1996/345.

(13)

1998 c. 41.