SCHEDULES
SCHEDULE 3A

The electronic communications code
PART 5

Termination and modification of agreements

What orders may a court make on an application under paragraph 32 or 33?
34
1
This paragraph sets out the orders that the court may make on an application under paragraph 32(1)(b) or 33(5).
2
The court may order that the operator may continue to exercise the existing code right in accordance with the existing code agreement for such period as may be specified in the order (so that the code agreement has effect accordingly).
3
The court may order the modification of the terms of the code agreement relating to the existing code right.
4
Where under the code agreement more than one code right is conferred by or otherwise binds the site provider, the court may order the modification of the terms of the code agreement so that it no longer provides for an existing code right to be conferred by or otherwise bind the site provider.
5
The court may order the terms of the code agreement relating to the existing code right to be modified so that—
a
it confers an additional code right on the operator, or
b
it provides that the site provider is otherwise bound by an additional code right.
6
The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—
a
confers a code right on the operator, or
b
provides for a code right to bind the site provider.
7
The existing code agreement continues until the new agreement takes effect.
8
This code applies to the new agreement as if it were an agreement under Part 2 of this code.
9
The terms conferring or providing for an additional code right under sub-paragraph (5), and the terms of a new agreement under sub-paragraph (6), are to be such as are agreed between the operator and the site provider.
10
If the operator and the site provider are unable to agree on the terms, the court must on an application by either party make an order specifying those terms.
11
Paragraphs 23(2) to (8), 24, 25 and 84 apply—
a
to an order under sub-paragraph (3), (4) or (5), so far as it modifies or specifies the terms of the agreement, and
b
to an order under sub-paragraph (10)
as they apply to an order under paragraph 20.
12
In the case of an order under sub-paragraph (10) the court must also have regard to the terms of the existing code agreement.
13
In determining which order to make under this paragraph, the court must have regard to all the circumstances of the case, and in particular to—
a
the operator's business and technical needs,
b
the use that the site provider is making of the land to which the existing code agreement relates,
c
any duties imposed on the site provider by an enactment, and
d
the amount of consideration payable by the operator to the site provider under the existing code agreement.
14
Where the court makes an order under this paragraph, it may also order the operator to pay the site provider the amount (if any) by which A exceeds B, where—
a
A is the amount of consideration that would have been payable by the operator to the site provider for the relevant period if that amount had been assessed on the same basis as the consideration payable as the result of the order, and
b
B is the amount of consideration payable by the operator to the site provider for the relevant period.
15
In sub-paragraph (14) the relevant period is the period (if any) that—
a
begins on the date on which, apart from the operation of paragraph 30, the code right to which the existing code agreement relates would have ceased to be exercisable or to bind the site provider or from which, apart from that paragraph, the code agreement could have been brought to an end by the site provider, and
b
ends on the date on which the order is made.
Sch. 3A inserted (31.7.2017 for the purpose of making regulations under Sch. 3A para. 95, 22.11.2017 but only in relation to Sch. 3A para. 106, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 1 (with Sch. 2); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(b)
Sch. 3A applied by S.I. 1991/1220 (N.I. 11), art. 104(5) (as substituted (28.12.2017) by The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 28(2)(c))