(1) This section applies to—
(a) a ... decision under section 10D as to whether to certify an applicant;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The Authority may only ... decide to certify the applicant, if one of the following five grounds (“the certification grounds”) applies.
(3) The first certification ground is that the applicant meets the ownership unbundling requirement in section 10F.
(4) The second certification ground is that the applicant has asked the Authority to exempt it from the ownership unbundling requirement on the grounds in paragraph (9) of Article 9 of the Electricity Directive (alternative arrangements for independence), and the Authority thinks the requirements of that paragraph are met.
(5) The third certification ground is that—
(a) the applicant has asked the Authority to exempt it from the ownership unbundling requirement on the grounds in paragraphs (1) and (2) of Article 13 of the Electricity Directive (independent system operator);
(b) the applicant has nominated an independent system operator for designation in accordance with those paragraphs; and
(c) the Authority—
(i) thinks that the requirements of those paragraphs are met, and
(ii) is minded to designate the nominated independent system operator.
(6) The fourth certification ground is that—
(a) the applicant holds a licence under section 6(1)(e); and
(b) in accordance with the conditions of that licence, the applicant has been granted an exemption under Article 63 of the Electricity Regulation (new interconnectors) and remains entitled to the benefit of it.
(6A) In subsection (6)(b), the reference to an exemption granted under Article 63 of the Electricity Regulation is to be treated as including an exemption granted under Article 17 of the predecessor of that Regulation.
(7) The fifth certification ground is that—
(a) the applicant holds a licence under section 6(1)(e); and
(b) in accordance with the conditions of that licence, the applicant has been granted an exemption under Article 7 of Regulation (EC) No. 1228/2003 of the European Parliament and of the Council of 26 June 2003 on conditions for access to the network for cross-border exchanges in electricity (new interconnectors) and remains entitled to the benefit of it.
(8) But, regardless of whether a certification ground applies, the Authority—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) ... must not decide to certify the applicant, if a report prepared by the Secretary of State under section 10C states that the certification of the applicant would put at risk the security of electricity supplies in the United Kingdom ...;
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) For the purposes of subsection (4), Article 9(9) of the Electricity Directive is to be treated as if the comparison with the provisions of Chapter 5 of the Electricity Directive were a comparison with the provisions of Chapter 5 as they applied in relation to a member State immediately before IP completion day.
(10) For the purposes of subsection (5), the references to Article 13(1) and (2) of the Electricity Directive are to be treated as references to those provisions with the following modifications—
(a) Article 13(1) is to be read as if “Such designation shall be subject to approval by the Commission” were omitted;
(b) Article 13(2)(b) is to be read as if the reference to Article 12 of the Electricity Directive were a reference to Article 12 with the omission of point (h);
(c) Article 13(2)(e) is to be read as if—
(i) for “Regulation (EC) No 714/2009” there were substituted “ the Electricity Regulation ”, and
(ii) the words from “including” to the end were omitted.
(1) In section 10E(3) the ownership unbundling requirement is met by an applicant for certification if in relation to each of the five tests below—
(a) the Authority thinks that it is passed, or
(b) it is treated as passed by virtue of subsection (7), (9) or (9A).
(2) The first test is that the applicant—
(a) does not control a relevant producer or supplier;
(b) does not have a majority shareholding in a relevant producer or supplier; and
(c) will not, on or after the relevant date, exercise shareholder rights in relation to a relevant producer or supplier.
(3) For the purposes of subsection (2)(c), the Authority is entitled to think that the applicant will not exercise shareholder rights if the applicant has given an undertaking not to exercise those shareholder rights.
(4) The second test is that, where the applicant is a company, partnership or other business, none of its senior officers has been, or may be, appointed by a person who—
(a) controls an electricity undertaking which is a relevant producer or supplier; or
(b) has a majority shareholding in an electricity undertaking which is a relevant producer or supplier.
(5) The third test is that, where the applicant is a company, partnership or other business, none of its senior officers is also a senior officer of an electricity undertaking which is a relevant producer or supplier.
(6) The fourth test is that the applicant is not controlled by a person who controls a relevant producer or supplier.
(7) But even where the fourth test is not passed, the Authority may treat it as passed if—
(a) the control over the applicant was gained through the exercise of a right conferred as a condition of the provision of either financial support or a guarantee (or both), in relation to the applicant’s business; or
(b) the control over the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.
(8) The fifth test is that the applicant is not controlled by a person who has a majority shareholding in a relevant producer or supplier.
(9) But even where the fifth test is not passed, the Authority may treat it as passed if—
(a) the control over the applicant was gained through the exercise of a right conferred as a condition of the provision of either financial support or a guarantee (or both), in relation to the applicant’s business; or
(b) the majority shareholding in the relevant producer or supplier was gained through the exercise of such a right conferred in relation to the business of the relevant producer or supplier.
(9A) Except where subsection (9B) applies, the Authority may treat one or more of the five tests in this section as passed if—
(a) the test or tests are not passed in relation to a relevant producer or supplier,
(b) the applicant has demonstrated to the Authority’s satisfaction that the applicant does not have a relationship with the relevant producer or supplier which might lead the applicant to discriminate in favour of the relevant producer or supplier, and
(c) the Authority thinks it appropriate to treat the test or tests as passed.
(9B) This subsection applies where the applicant, or a person who controls or has a majority shareholding in the applicant, controls or has a majority shareholding in a person (“A”) who operates a generating station and—
(a) A is a relevant producer or supplier; and
(b) the generating station is directly physically connected to anything that forms part of the applicant’s transmission system or electricity interconnector.
(10) In subsection (2)(c) “relevant date” means the relevant date for the purposes of section 10A(1) or (3).
10G The ownership unbundling requirement: supplementary
(1) Subsections (2) and (3) apply where—
(a) by virtue of subsection (7) or (9) of section 10F, the Authority treats the fourth or fifth test under section 10F as passed in relation to a person; and
(b) the person is certified in reliance on that treatment.
(2) The Authority must by notice to the certified person specify a period of time at the end of which the Authority will cease to treat that test as passed by virtue of that subsection.
(3) The Authority may by notice to the certified person extend that period if the Authority thinks it necessary or expedient to do so.
(4) In deciding whether to treat a test as passed by virtue of section 10F(7) or (9), and in determining any period or extension under subsection (2) or (3), the Authority—
(a) must take into account—
(i) the period of time for which the test is likely to continue not to be passed, and
(ii) whether the relationship (direct or indirect) between the applicant and the relevant producer or supplier has led or might lead the applicant to discriminate in favour of the relevant producer or supplier; and
(b) may, in particular, take into account any information or undertaking given to the Authority by the applicant, the relevant producer or supplier or the person who controls the applicant and controls or has a majority shareholding in the relevant producer or supplier.
(5) The information and undertakings that may be taken into account under subsection (4)(b) include information and undertakings regarding any measures that have been or will be put in place to ensure the effective separation of the business of the applicant and the business of the relevant producer or supplier.
10H Designation for the purposes of the Electricity Regulation
(1) This section applies in relation to any period for which a person—
(a) holds a transmission licence or an interconnector licence; and
(b) is certified.
(2) If the person is certified on the first, second, fourth or fifth certification ground in section 10E, the person is designated as an electricity transmission system operator for the purposes of the Electricity Regulation.
(3) If the person is certified on the third certification ground in section 10E, the independent system operator nominated in the application for certification is designated as an electricity transmission system operator for the purposes of the Electricity Regulation.
(4) As soon as is reasonably practicable after a person is designated by virtue of this section, the Authority must notify the designation to—
(a) the person designated; and
(b) the Secretary of State; ...
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The Authority must monitor, in respect of each certified person, whether the basis on which the Authority decided to certify the person, including the certification ground on which the person was certified, (the “certification basis”) continues to apply.
(2) If, ... as result of information it has received or obtained, the Authority thinks that a person from a country outside the United Kingdom has taken or may take control of a certified person, the Authority must, as soon as is reasonably practicable—
(a) notify the information to the Secretary of State ...; and
(b) enclose with the notification to the Secretary of State any further information which, at the time of the notification, the Authority has in its possession and thinks is relevant to the question of whether the security of electricity supplies in the United Kingdom ... would be put at risk by the continued certification of the person.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The Authority may ... review whether the certification basis in respect of a certified person continues to apply if—
(a) the certified person notifies it of any event or circumstance which may affect that basis; or
(b) the Authority thinks that the basis may no longer apply.
(6) A review under subsection (5) is to be carried out within the 4 months beginning with—
(a) if paragraph (a) of subsection (5) applies, the day on which the Authority receives the notification under that paragraph;
(b) otherwise, the first day on which the Authority thinks that the certification basis may no longer apply.
(7) Subsection (8) applies where—
(a) by virtue of section 10F(7) or (9), the Authority has treated the fourth or fifth test under section 10F as passed in relation to a person;
(b) the person is certified in reliance on that treatment; and
(c) the period specified under section 10G as the period at the end of which that treatment will cease comes to an end.
(8) Where this subsection applies, the Authority must review whether that test is now passed.
(9) A review under subsection (8) is to be carried out within the 4 months beginning with the end of the period mentioned in subsection (7)(c).
(10) If, before any of the deadlines mentioned in subsection ..., (6) or (9) (or before such deadline as previously extended under this subsection), the Authority asks the certified person or a relevant producer or supplier for information under section 10J(2) or (3), the relevant deadline is the end of the 4 months beginning with the day on which the last of that information is received.
10J Review of certification: requirement to provide information etc
(1) As soon as is reasonably practicable after beginning a review under section 10I, the Authority must notify the certified person that the review is being carried out and of the reasons for it.
(2) The Authority may ask that person for any information the Authority thinks is relevant to the review, and the person must supply the information if—
(a) it is in the person’s possession; or
(b) it is information which the person could reasonably be expected to obtain.
(3) The Authority may ask a relevant producer or supplier for any information the Authority thinks is relevant to a review under section 10I, and the relevant producer or supplier must supply that information if—
(a) it is in the relevant producer or supplier’s possession; or
(b) it is information which the relevant producer or supplier could reasonably be expected to obtain.
(4) A person required to supply information under subsection (2) or (3) must do so by any deadline specified by the Authority.
10K Report as to any connection of certified person with a country outside the United Kingdom
(1) This section applies if the Authority notifies information to the Secretary of State under section 10I(2) in respect of a certified person.
(2) The Secretary of State must prepare a report on whether the security of electricity supplies in the United Kingdom ... would be put at risk by the continued certification of the person.
(3) The Secretary of State must prepare the report and send it to the Authority within the 6 weeks beginning with the day on which the notification is received.
(4) If, before the Secretary of State sends the report to the Authority, the Authority receives information under section 10J(2) or (3) and thinks that the information is relevant to the preparation of the report, the Authority must supply that information to the Secretary of State as soon as is reasonably practicable.
(5) In preparing the report, the Secretary of State must take into account—
(a) any relevant international law; and
(b) any relevant agreement between the government of the United Kingdom and the government of the ... country in question.
(1) Where the Authority reviews under section 10I(5) whether the certification basis in respect of a certified person continues to apply, it may, within the 4 months mentioned in section 10I(6) or where relevant the 4 months mentioned in section 10I(10), either—
(a) make a ... decision to continue the certification on the certification ground mentioned in section 10I(1); or
(b) make a ... decision to withdraw the certification.
(2) If the Authority does not make a decision under subsection (1) within those 4 months, it is to be taken as having made a ... decision at the end of the 4 months to continue the certification on the certification ground mentioned in section 10I(1).
(3) Where the Authority reviews under section 10I(8) whether the fourth or fifth test under section 10F is now passed, it may, within the 4 months mentioned in section 10I(9) or where relevant the 4 months mentioned in section 10I(10), either—
(a) make a ... decision to continue the certification on the basis that the test is now passed; or
(b) make a ... decision to withdraw the certification.
(4) If the Authority does not make a decision under subsection (3) within those 4 months, it is to be taken as having made a ... decision at the end of the 4 months to continue the certification on the basis that the test is now passed.
(5) As soon as is reasonably practicable after a ... decision is made (or taken to be made) under this section, the Authority must—
(a) notify the decision to the certified person and the Secretary of State; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(9A) The Authority must publish its decision to continue a certification, or to withdraw a certification, together with the reasons for it, in such manner as it considers appropriate.
(10) Section 10E(8)(b) applies in relation to a decision mentioned in this section as it applies in relation to a decision mentioned in section 10E(1), but as if—
(a) the references in section 10E(8)(b) to the certification of the applicant were references to the continued certification of the person certified; and
(b) the reference in section 10E(8)(b) to a report prepared under section 10C were a reference to a report prepared under section 10K.
10M Prohibition on the exercise of certain shareholder rights and rights of appointment
(1) A person must not exercise a shareholder right or a right of appointment if—
(a) the right falls within subsection (2), (3), (4) or (5);
(b) the relevant date in respect of the certified person mentioned in that subsection has been reached;
(c) the exercise of the right would or might lead the certified person to discriminate in favour of the relevant producer or supplier mentioned in that subsection; and
(d) the relevant producer or supplier is a person to whom subsection (6) applies.
(2) A right falls within this subsection if—
(a) it is a shareholder right;
(b) it is held by a person who controls a person certified on the certification ground in section 10E(3); and
(c) it is exercisable in relation to a relevant producer or supplier.
(3) A right falls within this subsection if—
(a) it is a shareholder right;
(b) it is exercisable in relation to a person certified on the certification ground in section 10E(3); and
(c) it is held by a person who controls a relevant producer or supplier.
(4) A right falls within this subsection if—
(a) it is a shareholder right;
(b) the person who holds it appointed a senior officer of a person certified on the certification ground in section 10E(3);
(c) the person appointed continues to hold that office; and
(d) the right is exercisable in relation to an electricity undertaking which is a relevant producer or supplier.
(5) A right falls within this subsection if—
(a) it is a right to appoint a senior officer of a person certified on the certification ground in section 10E(3); and
(b) the person who holds it has, within the immediately preceding period of 3 years, exercised a shareholder right in relation to an electricity undertaking which is a relevant producer or supplier.
(6) This subsection applies to a person if, in order to carry out of some or all of the activity by virtue of which the person is a relevant producer or supplier, the person—
(a) requires a licence under section 6 of this Act, section 7A of the Gas Act 1986 (licensing of gas suppliers and gas shippers) or section 3 of the Petroleum Act 1998 (licences to search and bore for and get petroleum); or
(b) would require such a licence if carrying out the activity in Great Britain.
(7) In this section—
(a) “exercise” means exercise directly or indirectly, and “exercisable” is to be interpreted accordingly; and
(b) “relevant date” means the relevant date for the purposes of section 10A(1) or (3).
(1) The following are voidable on an application to the court—
(a) the exercise of a shareholder right in breach of section 10M;
(b) the appointment of a senior officer in breach of that section.
(2) Any person may make an application under subsection (1).
(3) Such an application may not be made after the end of the 5 years beginning with the day on which the shareholder right was exercised or the appointment made.
(4) If, by virtue of this section, the court declares the exercise of a shareholder right or an appointment to be void, it may make an order as to the consequences of its declaration.
(5) In this section, “the court” means—
(a) in relation to England and Wales, the High Court, and
(b) in relation to Scotland, the Court of Session.
(1) In sections 10A to 10N and this section—
“control”, in relation to one person having control over another, has the meaning given by Article 2(34) of the Electricity Directive (but in determining whether one person (“person A”) has control over another (“person B”) no account is to be taken of any unexercised contractual or other right which would, if exercised, give person A control over person B and which was conferred as a condition of the provision of either financial support or a guarantee (or both), by person A in relation to the business of person B); and references to one person controlling another are to be interpreted accordingly;
“certified” means certified by the Authority under section 10D; and “certify” and “certification” are to be interpreted accordingly;
“certification grounds” has the meaning given by section 10E(2);
“majority shareholding” means a simple majority of shares;
“person from a country outside the United Kingdom” means a person the Authority thinks is from a country outside the United Kingdom;
“shareholder right” means a right, conferred by the holding of a share in a company’s share capital—
to vote at general meetings of the company; or
to appoint or remove a member of the company’s board of directors;
...
(2) In this Part “electricity undertaking” means a person who—
(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given;
(b) supplies electricity to any premises; or
(c) otherwise generates or sells electricity.
(3) In this Part “relevant producer or supplier”, in relation to an applicant for certification or a certified person, means a person who falls within each of subsections (4) and (5).
(4) A person falls within this section if the person—
(a) is an electricity undertaking;
(b) gets natural gas from its natural condition in strata otherwise than as an unintended consequence of the storage of gas, and requires a licence under section 3 of the Petroleum Act 1998 (licences to search and bore for and get petroleum) to do so or would require such a licence if getting the gas in Great Britain;
(c) produces any other gas, including in particular biomethane, which is suitable for conveyance through pipes to premises in accordance with a licence under section 7 of the Gas Act 1986;
(d) supplies to any premises gas which has been conveyed to those premises through pipes;
(e) arranges with a gas transporter for gas to be introduced into, conveyed by means of or taken out of a pipe-line system operated by that transporter; or
(f) otherwise sells gas,
and terms used in paragraphs (b) to (f) of this subsection have the same meanings in those paragraphs as in Part 1 of the Gas Act 1986.
(5) A person falls within this subsection if—
(a) the person requires a licence under section 7A of the Gas Act 1986 (licensing of gas suppliers and gas shippers) or section 6 of this Act to carry out the activity by virtue of which the person falls within subsection (4);
(b) where the person does not carry out the activity in Great Britain, the person would, in the Authority’s opinion, require such a licence if carrying out the activity in Great Britain; or
(c) the person has a relationship with the applicant or certified person which the Authority thinks might lead the applicant or certified person to discriminate in favour of the person.
(1) The Authority must, as soon as reasonably practicable after this section comes into force, establish and operate a scheme in accordance with this section.
(2) The scheme must be designed for the purpose of encouraging the development and use of long duration electricity storage installations.
(3) The scheme must be open to persons who—
(a) hold or intend to apply for a generation licence to operate a long duration electricity storage installation, and
(b) meet any other specified criteria.
(4) The scheme must provide for an LDES operator who operates an approved installation—
(a) to receive payments from a holder of an electricity system operator licence where the operator’s assessed revenue from that installation is below a specified amount, in specified circumstances, and
(b) to make payments to a holder of an electricity system operator licence where the operator’s assessed revenue from that installation is above a specified amount, in specified circumstances.
(5) In subsection (4)—
“an approved installation” means a long duration electricity storage installation which is approved by the Authority for the purposes of subsection (4) in accordance with the scheme;
“assessed revenue”, in relation to a long duration electricity storage installation, means the difference between—
revenue of a specified kind earned or derived in connection with that installation, and
costs of a specified kind incurred in connection with operating the installation.
(6) The Authority may determine how costs and revenue are to be calculated for the purposes of the scheme.
(7) In setting charges to which Article 18(1) of the Electricity Regulation applies, the holder of an electricity system operator licence may take account of payments it makes or receives under the scheme.
(8) In this section—
“LDES operator” means a person who, under a generation licence, generates electricity by means of a long duration electricity storage installation;
“long duration electricity storage installation” means an installation that—
generates electricity from stored energy,
has an electricity generating capacity of not less than 50 megawatts, and
is capable of generating electricity at its full capacity for a continuous period of not less than eight hours;
“specified” means specified by the Authority for the purposes of the scheme in—
a document published by the Authority, or
a condition of a licence;
“stored energy” has the meaning given by section 4(3ZB).
(9) The Secretary of State may by regulations amend the definition of “long duration electricity storage installation” by substituting—
(a) for the amount of electricity generating capacity for the time being mentioned in paragraph (b) of the definition, a different amount;
(b) for the period for the time being mentioned in paragraph (c) of the definition, a different period (which may not be less than eight hours).
(1) The Authority may make modifications of—
(a) the conditions of a particular licence;
(b) the standard conditions of licences of any type mentioned in section 6(1).
(2) Before making any modifications under this section, the Authority must give notice—
(a) stating that it proposes to make modifications;
(b) setting out the proposed modifications and their effect;
(c) stating the reasons why it proposes to make the modifications; and
(d) specifying the time within which representations with respect to the proposed modifications may be made.
(3) The time specified by virtue of subsection (2)(d) may not be less than 28 days from the date of the publication of the notice.
(4) A notice under subsection (2) must be given—
(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications, and
(b) by sending a copy of the notice to—
(i) each relevant licence holder,
(ii) the Secretary of State, ...
(iii) Citizens Advice, and
(iv) Consumer Scotland.
(4A) The Authority must consider any representations which are duly made.
(5) If, within the time specified by virtue of subsection (2)(d), the Secretary of State directs the Authority not to make any modification, the Authority shall comply with the direction.
(6) Subsections (7) to (9) apply where, having complied with subsections (2) to (4A), the Authority decides to proceed with the making of modifications of the conditions of any licence under this section.
(7) The Authority must—
(a) publish the decision and the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications,
(b) state the effect of the modifications,
(c) state how it has taken account of any representations duly made, and
(d) state the reason for any differences between the modifications and those set out in the notice by virtue of subsection (2)(b).
(8) Each modification has effect from the date specified by the Authority in relation to that modification (subject to the giving of a direction under paragraph 2 of Schedule 5A).
(9) The date specified by virtue of subsection (8) may not be less than 56 days from the publication of the decision to proceed with the making of modifications under this section , except as provided in section 11AA.
(9A) This section does not apply to the modification of a licence in exercise of the power under section 6CC(5)(a) (modification of licence to give effect to determination on a tender exercise).
(10) In this section “relevant licence holder”—
(a) in relation to the modification of standard conditions of licences of any type, means the holder of a licence of that type—
(i) which is to be modified by the inclusion of any new standard condition, or
(ii) which includes any standard conditions to which the modifications relate which are in effect at the time specified by virtue of subsection (2)(d); or
(b) in relation to the modification of a condition of a particular licence (other than a standard condition), means the holder of that particular licence.
11AA Modification of conditions under section 11A: early effective date
(1) The date specified by virtue of section 11A(8) in relation to a modification under that section may be less than 56 days from the publication of the decision to proceed with the making of the modification if—
(a) the Authority considers it necessary or expedient for the modification to have effect before the 56 days expire,
(b) the purpose condition is satisfied,
(c) the consultation condition is satisfied, and
(d) the time limit condition is satisfied.
(2) The purpose condition is that the Authority considers the modification necessary or desirable for purposes described in section 11(2) of the Smart Meters Act 2018 (enabling or requiring half-hourly electricity imbalances to be calculated using information about customers' actual consumption of electricity on a half-hourly basis).
(3) The consultation condition is that the notice under section 11A(2) relating to the modification—
(a) stated the date from which the Authority proposed that the modification should have effect,
(b) stated the Authority's reasons for proposing that the modification should have effect from a date less than 56 days from the publication of the decision to modify, and
(c) explained why, in the Authority's view, that would not have a material adverse effect on any licence holder.
(4) The time limit condition is that the specified date mentioned in subsection (1) falls within the period of 5 years beginning on the day on which section 11 of the Smart Meters Act 2018 comes into force.
11B Modification of conditions under section 11A: supplementary
(1) Subsections (2) and (3) apply where at any time the Authority modifies the conditions of licences of any type under section 11A.
(2) If the conditions modified are standard conditions, the Authority must—
(a) 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, and
(b) publish the modifications in such manner as it considers appropriate for the purpose of bringing them to the attention of persons likely to be affected by the making of the modifications.
(3) The Authority may make such incidental or consequential modifications of any conditions of licences of any type as it considers necessary or expedient.
(4) The modification of part of a standard condition of a particular licence under section 11A does not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(5) The modification of a condition of a licence under this section has effect subject to the giving of a direction under paragraph 2 of Schedule 5A in relation to the decision to which the modification relates.
(1) An appeal lies to the CMA against a decision by the Authority to proceed with the modification of a condition of a licence under section 11A.
(2) An appeal may be brought under this section only by—
(a) a relevant licence holder (within the meaning of section 11A);
(b) any other person who holds a licence of any type under section 6(1) 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);
(d) Citizens Advice or Consumer Scotland or those bodies acting jointly in the capacity of representing consumers whose interests are materially affected by the decision.
(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 an appeal brought by Citizens Advice or Consumer Scotland or those bodies acting jointly, that the interests of the consumers represented are not materially affected by the decision;
(d) 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.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) ... Schedule 5A to this Act has effect.
(2A) Except where specified otherwise in Schedule 5A, the functions of the CMA with respect to an appeal under section 11C 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.
(1) This section applies to every appeal brought under section 11C.
(2) In determining an appeal the CMA must have regard, to the same extent as is required of the Authority, to the matters to which the Authority must have regard—
(a) in the carrying out of its principal objective under section 3A;
(b) in the performance of its duties under that section; and
(c) in the performance of its duties under sections 3B and 3C.
(3) In determining the appeal the CMA —
(a) may have regard to any matter to which the Authority 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 Authority 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 Authority failed properly to have regard to any matter mentioned in subsection (2);
(b) that the Authority 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 Authority by virtue of section 11A(7)(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.
(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 Authority for reconsideration and determination in accordance with any directions given by the CMA ;
(c) substitute the CMA's decision for that of the Authority (to the extent that the appeal is allowed) and give any directions to the Authority 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 Authority 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 Authority 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 sections 11G and 11H any reference to a party to an appeal is to be read in accordance with Schedule 5A.
(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, not being 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, not being 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 11F.
(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 11C(3).
11H Determination of appeal by CMA : supplementary
(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 specified in the order or 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 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 Authority must take such steps as it considers requisite 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 11B apply where a condition of a licence is modified in accordance with section 11F as they apply where a condition of a licence is modified under section 11A.
(1) Where the CMA or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1), to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.
(2) In subsection (1) above “relevant order” means—
(a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—
(i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a licence; or
(ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a licence; or
(b) an order under section 160 or 161 of that Act where the feature, or combination of features, of the market or markets in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the generation, transmission, distribution or supply of electricity.
(2A) The modification under subsection (1) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(2B) Where the relevant authority modifies under subsection (1) the standard conditions of licences of any type, the relevant authority—
(a) 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; and
(b) may, after consultation with the Authority, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of any licence of that type granted before that time.
(2C) Where at any time the relevant authority modifies standard conditions under subsection (2B)(a) for the purposes of their incorporation in licences granted after that time, the relevant authority shall publish those modifications in such manner as the relevant authority considers appropriate.
(3) Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part.
15A Licence modifications relating to new electricity trading arrangements.
(1) The Secretary of State may, in accordance with this section, modify—
(a) the conditions of a particular licence; or
(b) the standard conditions of licences of any type mentioned in section 6(1),
where he considers it necessary or expedient to do so for the purpose of implementing, or facilitating the operation of, new arrangements relating to the trading of electricity.
(2) The power to modify licence conditions under paragraph (a) or (b) of subsection (1) includes power—
(a) to make modifications relating to the operation of transmission systems and distribution systems; and
(b) to make incidental or consequential, or transitional, modifications.
(3) Before making modifications under this section the Secretary of State shall consult the holder of any licence being modified and such other persons as he considers appropriate.
(4) Any consultation undertaken by the Secretary of State before the commencement of this section shall be as effective, for the purposes of subsection (3), as if undertaken after that commencement.
(5) Any modification of part of a standard condition of a licence under subsection (1)(a) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(6) Where the standard conditions of licences of any type are modified under subsection (1)(b), the Secretary of State shall make (as nearly as may be) the same modifications of the standard conditions for the purposes of their incorporation in licences of that type granted after that time.
(7) The Secretary of State shall publish any modifications under this section in such manner as he considers appropriate.
(8) The power of the Secretary of State under this section may not be exercised after the end of the period of two years beginning with the passing of the Utilities Act 2000.
(1) An electricity distributor is under a duty—
(a) to make a connection between a distribution system of his and any premises, when required to do so by—
(i) the owner or occupier of the premises; or
(ii) an authorised supplier acting with the consent of the owner or occupier of the premises,
for the purpose of enabling electricity to be conveyed to or from the premises;
(b) to make a connection between a distribution system of his and any distribution system of another authorised distributor, when required to do so by that authorised distributor for the purpose of enabling electricity to be conveyed to or from that other system.
(2) Any duty under subsection (1) includes a duty to provide such electric lines or electrical plant as may be necessary to enable the connection to be used for the purpose for which it is required.
(2A) In deciding how to comply with the duties under this section, and in particular in deciding how to prioritise persons requiring a connection, an electricity distributor must have regard to the designated strategic plans.
(3) The duties under this section shall be performed subject to such terms as may be agreed under section 16A for so long as the connection is required.
(4) In this section and sections 16A to 23 and Schedule 5B—
(a) any reference to making a connection includes a reference to maintaining the connection (and continuing to provide the necessary electric lines or electrical plant);
(b) any reference to requiring a connection includes a reference to requiring the connection to be maintained (and the continued provision of the necessary electric lines and electrical plant); and
(c) any reference to the provision of any electric line or electrical plant is a reference to the provision of such a line or an item of electrical plant either by the installation of a new one or by the modification of an existing one.
(5) The duties under this section are subject to the following provisions of this Part and any regulations made under those provisions.
(6) In this section, “the designated strategic plans” means the plans or documents designated by regulations made under section 165A(2) of the Energy Act 2023 (functions of the Independent System Operator and Planner relating to network connections).
(1) Where a person requires a connection to be made by an electricity distributor in pursuance of section 16(1), he shall give the distributor a notice requiring him to offer terms for making the connection.
(2) That notice must specify—
(a) the premises or distribution system to which a connection to the distributor’s system is required;
(b) the date on or by which the connection is to be made; and
(c) the maximum power at which electricity may be required to be conveyed through the connection.
(3) The person requiring a connection shall also give the distributor such other information in relation to the required connection as the distributor may reasonably request.
(4) A request under subsection (3) shall be made as soon as practicable after the notice under subsection (1) is given (if not made before that time).
(4A) The Secretary of State may, after consulting the Authority, make provision by regulations for the purpose of entitling an electricity distributor to require a person requiring a connection in pursuance of section 16(1) to pay connection offer expenses to such extent as is reasonable in all the circumstances.
(4B) In this section “connection offer expenses” means expenses which—
(a) are of a kind specified by the regulations, and
(b) have been reasonably incurred by the electricity distributor.
(4C) Regulations under subsection (4A) may specify—
(a) circumstances in which an electricity distributor may not require the payment of connection offer expenses by virtue of the regulations;
(b) the manner in which expenses reasonably incurred by an electricity distributor are to be calculated for the purposes of subsection (4B)(b).
(5) As soon as practicable after receiving the notice under subsection (1), any information requested under subsection (3) and any amount payable by virtue of subsection (4A) to the distributor by the person requiring the connection, the distributor shall give to that person a notice—
(a) stating the extent (if any) to which his proposals are acceptable to the distributor and specifying any counter proposals made by him;
(b) specifying any payment which that person will be required to make under section 19(1) ... or regulations under Schedule 5B;
(c) specifying any security which that person will be required to give under section 20; and
(d) stating any other terms which that person will be required to accept under section 21.
(6) A notice under subsection (5) shall also contain a statement of the effect of section 23.
(1) Nothing in section 16(1) requires an electricity distributor to make a connection if and to the extent that—
(a) he is prevented from doing so by circumstances not within his control;
(b) circumstances exist by reason of which his doing so would or might involve his being in breach of regulations under section 29, and he has taken all such steps as it was reasonable to take both to prevent the circumstances from occurring and to prevent them from having that effect; ...
(ba) it would not be in accordance with the designated strategic plans (within the meaning of section 16) for the distributor to do so; or
(c) it is not reasonable in all the circumstances for him to be required to do so.
(2) Without prejudice to the generality of subsection (1) an electricity distributor is not required to make a connection if—
(a) making the connection involves the distributor doing something which, without the consent of another person, would require the exercise of a power conferred by any provision of Schedule 3 or 4;
(b) the distributor’s licence does not provide for that provision to have effect in relation to him; and
(c) any necessary consent has not, at the time the request is made, been given.
(3) Subsection (1)(c) does not permit an electricity distributor to disconnect any premises or distribution system to which a connection is being maintained by him unless the distributor gives—
(a) where the connection is to premises, to the occupier or to the owner if the premises are not occupied;
(b) where the connection is to another distribution system, to the person who is authorised by a licence or exemption to run that system,
not less than seven working days’ notice of his intention to disconnect the premises or distribution system.
(1) Where any electric line or electrical plant is provided by an electricity distributor in pursuance of section 16(1) above, the distributor may require any expenses reasonably incurred in providing it to be defrayed by the person requiring the connection to such extent as is reasonable in all the circumstances.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3A) Schedule 5B (reimbursement of persons who have met expenses) has effect.
(4) Any reference in this section and Schedule 5B to any expenses reasonably incurred in providing an electric line or electrical plant includes a reference to the capitalised value of any expenses likely to be so incurred in continuing to provide it
(1) Subject to the following provisions of this section, an electricity distributor may require any person who requires a connection in pursuance of section 16(1) to give him reasonable security for the payment to him under section 19 in respect of the provision of any electric line or electrical plant.
(1A) If a person fails to give any security required under subsection (1), or the security given has become invalid or insufficient, and he fails to provide alternative or additional security, the electricity distributor may if he thinks fit—
(a) if the connection has not been made, refuse to provide the line or plant for so long as the failure continues; or
(b) if the connection is being maintained, disconnect the premises or distribution system in question.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) Where any money is deposited with an electricity distributor by way of security in pursuance of this section, the distributor shall pay interest, at such rate as may from time to time be fixed by the distributor with the approval of the Director, on every sum of 50p so deposited for every three months during which it remains in the hands of the distributor.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
An electricity distributor may require any person who requires a connection in pursuance of section 16(1) above to accept in respect of the making of the connection—
(a) any restrictions which must be imposed for the purpose of enabling the distributor to comply with regulations under section 29;
(b) any terms which it is reasonable in all the circumstances for that person to be required to accept; and
(c) without prejudice to the generality of paragraph (b), any terms restricting any liability of the distributor for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept.
(1) Notwithstanding anything in sections 16 to 21, a person who requires a connection in pursuance of section 16(1) may enter into an agreement with the electricity distributor (referred to in this Part as a “special connection agreement”) for the making of the connection on such terms as may be agreed by the parties.
(2) So long as a special connection agreement is effective, the rights and liabilities of the parties shall be those arising under the agreement and not those provided for by sections 16 to 21.
(3) Nothing in subsection (2) prevents the giving of a notice under section 16A(1) requiring a connection to be made as from the time when a special connection agreement ceases to be effective.
(1) This section applies (in addition to any disputes to which it applies by virtue of any other provision of this Act) to any dispute arising under sections 16 to 21 between an electricity distributor and a person requiring a connection.
(1ZA) This section also applies to any dispute arising under regulations under Schedule 5B between—
(a) an electricity distributor, and
(b) a person in respect of whom the electricity distributor exercises the reimbursement powers conferred by the regulations.
(1A) A dispute to which this section applies—
(a) may be referred to the Authority—
(i) by either party, or
(ii) with the consent of either party, by Citizens Advice, Citizens Advice Scotland or Consumer Scotland or those bodies or any two of them acting jointly; and
(b) on such a reference, shall be determined by order made either by the Authority or, if the Authority thinks fit, by an arbitrator (or in Scotland an arbiter) appointed by the Authority.
(1B) The practice and procedure to be followed in connection with any such determination shall be such as the Authority may consider appropriate. .
(1C) No dispute arising under sections 16 to 21 which relates to the making of a connection between any premises and a distribution system may be referred to the Authority after the end of the period of 12 months beginning with the time when the connection is made..
(1D) No dispute arising under regulations under Schedule 5B may be referred to the Authority after the end of the period of 12 months beginning with the time when the second connection (within the meaning of Schedule 5B) is made.
(2) Where a dispute arising under sections 16 to 21 between an electricity distributor and a person requiring a connection falls to be determined under this section, the Authority may give directions as to the circumstances in which, and the terms on which, the distributor is to make or (as the case may be) to maintain a connection pending the determination of the dispute.
(2A) Where a dispute arising under regulations under Schedule 5B falls to be determined under this section, the Authority may give directions as to the circumstances in which, and the terms on which, an electricity distributor is to make or (as the case may be) to maintain the second connection (within the meaning of Schedule 5B) pending the determination of the dispute.
(3) Where any dispute arising under section 20(1) above falls to be determined under this section, the Director may give directions as to the security (if any) to be given pending the determination of the dispute.
(4) Directions under subsection (2), (2A) or (3) above may apply either in cases of particular descriptions or in particular cases.
(4A) A person making an order under this section shall include in the order his reasons for reaching his decision with respect to the dispute.
(5) An order under this section—
(a) may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the person making the order) as that person considers appropriate; and
(b) shall be final and—
(i) in England and Wales, shall be enforceable, in so far as it includes such provision as to costs or expenses, as if it were a judgment of the county court;
(ii) in Scotland, shall be enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff.
(6) In including in an order under this section any such provision as to costs or expenses as is mentioned in subsection (5) above, the person making the order shall have regard to the conduct and means of the parties and any other relevant circumstances.
(7) Section 16(4)(a) does not apply to the references in this section to making a connection.