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(b) the Commission is to decide to what extent it is reasonable to | |
take into account in its determination costs incurred or borne by | |
the company in connection with the reference, | |
the Commission shall also have regard to the extent to which, in its | |
view, its determination is likely to support the company’s (rather than | 5 |
the Authority’s) claims in relation to the question or matter referred to | |
it. | |
(3B) Subsections (4) and (5) of section 14, and sections 14A and 14B, below | |
apply to references to the Competition Commission under this section | |
as they apply to references under section 14. | 10 |
(3C) A report of the Competition Commission on a reference under this | |
section— | |
(a) shall be made to the Authority; and | |
(b) shall include definite conclusions on the questions or other | |
matters comprised in the reference, together with such an | 15 |
account of their reasons for those conclusions as, in the opinion | |
of the Competition Commission, is expedient for facilitating a | |
proper understanding of those questions or other matters and | |
of their conclusions, | |
and subsections (5) and (6) of section 15 below apply to such a report as | 20 |
they apply to a report on a reference under section 14.” | |
(3) Subsections (3)(b)(i), (4) and (5) shall cease to have effect. | |
58 Conditions of appointments under the WIA | |
(1) The WIA is amended as follows. | |
(2) In section 14(5) (modification references to the Competition Commission)— | 25 |
(a) after “this section” there is inserted “or in carrying out functions under | |
section 16A below”, | |
(b) after “the investigation” there is inserted “or the carrying out of those | |
functions”, and | |
(c) after “such investigation” there is inserted “or such functions”. | 30 |
(3) In section 16 (modification of conditions of appointment following report of | |
Competition Commission), after subsection (4) there is inserted— | |
“(4A) After considering any representations or objections made in response | |
to proposals set out in a notice under subsection (3) above, the | |
Authority shall give notice to the Competition Commission— | 35 |
(a) setting out the modifications it proposes to make to remedy or | |
prevent the adverse effects specified in the report; and | |
(b) stating the reasons for making the modifications. | |
(4B) The Authority shall include with the notice under subsection (4A) | |
above a copy of any representations or objections received in relation to | 40 |
the notice under subsection (3) above. | |
(4C) If the period of four weeks from the date on which the notice under | |
subsection (4A) above is given elapses without a direction under | |
section 16A(1)(a) below having been given to it, the Authority shall— | |
(a) make the modifications set out in the notice; or | 45 |
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(b) if a direction under section 16A(1)(b) below has been given, | |
make the modifications which are not specified in the | |
direction.” | |
(4) After section 16 there is inserted— | |
“16A Commission’s power of veto following report | 5 |
(1) The Competition Commission (in this section referred to as “the | |
Commission”) may, within the period of four weeks after the date on | |
which it is given a notice under section 16(4A) above, direct the | |
Authority— | |
(a) not to make the modifications set out in that notice; or | 10 |
(b) not to make such of the modifications as may be specified in the | |
direction; | |
and the Authority shall comply with any such direction. | |
(2) The Secretary of State may, within the period of four weeks after the | |
date on which the Commission is given a notice under section 16(4A) | 15 |
above and on the application of the Commission, direct that the period | |
for giving a direction under subsection (1) above (and, accordingly, the | |
period mentioned in section 16(4C) above) shall be extended by | |
fourteen days. | |
(3) The power to give a direction under subsection (1) above may only be | 20 |
exercised in respect of such of the modifications set out in the notice | |
under section 16(4A)(a) above as appear to the Commission not to be | |
the modifications which are requisite for the purpose of remedying or | |
preventing all or any of the adverse effects specified in the report as | |
effects which could be remedied or prevented by modifications. | 25 |
(4) If the Commission gives a direction under subsection (1) above, it— | |
(a) shall give notice setting out the modifications proposed by the | |
Authority, the terms of the direction and the reasons for giving | |
it; and | |
(b) shall itself make such modifications as appear to it to be | 30 |
requisite for the purpose of remedying or preventing— | |
(i) if the direction was given under subsection (1)(a) above, | |
the adverse effects specified in the report as effects | |
which could be remedied or prevented by | |
modifications; | 35 |
(ii) if the direction was given under subsection (1)(b) above, | |
such of those adverse effects as are not remedied or | |
prevented by the modifications made by the Authority | |
under section 16(4C)(b) above. | |
(5) In exercising its power under subsection (4)(b) above, the Commission | 40 |
shall have regard to the matters to which the Authority is required to | |
have regard when determining the conditions of a company’s | |
appointment. | |
(6) Before making modifications under subsection (4)(b) above the | |
Commission shall give notice— | 45 |
(a) stating that it proposes to make the modifications and setting | |
them out; | |
(b) stating the reason why it proposes to make them; | |
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(c) specifying the period (not being less than twenty-eight days | |
from the date of publication of the notice) within which | |
representations or objections with respect to the proposed | |
modifications may be made, | |
and shall consider any representations or objections which are duly | 5 |
made and not withdrawn. | |
(7) A notice under subsection (4)(a) or (6) above shall be given— | |
(a) by publishing the notice in such manner as the Commission | |
considers appropriate for the purpose of bringing it to the | |
attention of persons likely to be affected by the making of the | 10 |
modifications; and | |
(b) by serving a copy on the Authority and the company whose | |
conditions of appointment it is proposed should be modified. | |
(8) The Commission may not make any modification under this section | |
which the Authority could not make under section 16 above. | 15 |
(9) After making modifications under this section the Commission shall | |
publish a notice stating that the modifications have been made and | |
setting them out, with the reasons for making them. | |
(10) This section does not apply to the modification of the conditions of a | |
company’s appointment following a report of the Commission made | 20 |
before the commencement of section 58 of the Water Act 2003. | |
16B Commission’s power of veto following report: supplementary | |
(1) For the purposes of the law relating to defamation, absolute privilege | |
attaches to any notice under subsection (4)(a), (6) or (9) of section 16A | |
above. | 25 |
(2) In giving any notice under subsection (4)(a) or (6) of section 16A above, | |
or publishing any notice under subsection (9) of that section, the | |
Commission must have regard to the following considerations before | |
disclosing any information. | |
(3) The first consideration is the need to exclude from disclosure (so far as | 30 |
practicable) any information whose disclosure the Commission thinks | |
is contrary to the public interest. | |
(4) The second consideration is the need to exclude from disclosure (so far | |
as practicable)— | |
(a) commercial information whose disclosure the Commission | 35 |
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 Commission thinks might significantly | |
harm the individual’s interests. | 40 |
(5) The third consideration is the extent to which the disclosure of the | |
information mentioned in subsection (4)(a) or (b) above is necessary for | |
the purposes of the notice. | |
(6) The following sections of Part 3 of the Enterprise Act 2002 shall apply, | |
with the modifications mentioned in subsections (7) and (8) below, for | 45 |
the purposes of any investigation by the Commission for the purposes | |
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of the exercise of its functions under section 16A above, as they apply | |
for the purposes of any investigations on references under that Part— | |
(a) section 109 (attendance of witnesses and production of | |
documents etc.); | |
(b) section 110 (enforcement of powers under section 109: general); | 5 |
(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 | 10 |
(h) section 116 (statement of policy). | |
(7) Section 110 shall, in its application by virtue of subsection (6) above, | |
have effect as if— | |
(a) subsection (2) were omitted; | |
(b) in subsection (4), for the words “the publication of the report of | 15 |
the Commission on the reference concerned” there were | |
substituted “the publication by the Commission of a notice | |
under section 16A(9) of the Water Industry Act 1991 in | |
connection with the reference concerned or, if no direction has | |
been given by the Commission under section 16A(1) of that Act | 20 |
in connection with the reference concerned and within the | |
period permitted for that purpose, the latest day on which it | |
was possible to give such a direction within the permitted | |
period”; and | |
(c) in subsection (9) the words from “or section” to “section 65(3))” | 25 |
were omitted. | |
(8) Section 111(5)(b) shall, in its application by virtue of subsection (6) | |
above, have effect as if for sub-paragraph (ii) there were substituted— | |
“(ii) if earlier, the day on which a notice is published by the | |
Commission under section 16A(9) of the Water Industry | 30 |
Act 1991 in connection with the reference concerned or, | |
if no direction has been given by the Commission under | |
section 16A(1) of that Act in connection with the | |
reference concerned and within the period permitted for | |
that purpose, the latest day on which it was possible to | 35 |
give such a direction within the permitted period.” | |
(9) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the | |
purposes of sections 109 to 116 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 subsection (6) | 40 |
above, have effect in relation to those sections as applied by virtue of | |
that subsection. | |
(10) Accordingly, corresponding provisions of this Act shall not have effect | |
in relation to those sections as applied by virtue of that subsection.” | |
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