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Energy Bill [HL]


Energy Bill [HL]
Schedule 21 — Energy transfer schemes

262

 

      (2)  

In this paragraph “the transferee”—

(a)   

in relation to property, rights or liabilities transferred by an energy

transfer scheme, means the new energy company; and

(b)   

in relation to interests, rights or liabilities created by such a scheme,

means the person in whose favour, or in relation to whom, they are

5

created.

      (3)  

In its application to Scotland, sub-paragraph (1) has effect with the omission

of the words “without further assurance”.

Subsequent modification of scheme

9     (1)  

The Secretary of State may by notice to the old energy company and the new

10

energy company modify an energy transfer scheme after it has taken effect,

but only modifications to which both the old energy company and the new

energy company have consented may be made.

      (2)  

The notice must specify the time at which it is to take effect (the

“modification time”).

15

      (3)  

Where a notice is issued under this paragraph in relation to an energy

transfer scheme, as from the modification time, the scheme shall for all

purposes be treated as having taken effect, at the time appointed for the

purposes of paragraph 3(4), with the modifications made by the notice.

      (4)  

Those modifications may make—

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(a)   

any provision that could have been included in the scheme when it

took effect at the time appointed for the purposes of paragraph 3(4);

and

(b)   

transitional provision in connection with provision falling within

paragraph (a).

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      (5)  

In deciding whether to modify an energy transfer scheme, the Secretary of

State must have regard, in particular, to—

(a)   

the public interest; and

(b)   

the effect the modification is likely to have (if any) upon the interests

of third parties.

30

      (6)  

Before modifying an energy transfer scheme that has taken effect, the

Secretary of State must consult GEMA.

      (7)  

The old energy company and the new energy company each have a duty to

provide the Secretary of State with all information and other assistance that

he may reasonably require for the purposes of, or in connection with, the

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exercise of the powers conferred on him by this paragraph.

Transfers in the case of non-GB companies

10         

Where the old energy company is a non-GB company, the property, rights

and liabilities of that company which may be transferred by an energy

transfer scheme, or in relation to which interests, rights or liabilities may be

40

created by such a scheme, are confined to—

(a)   

property of the old energy company in Great Britain;

(b)   

rights and liabilities arising in relation to any such property; and

(c)   

rights and liabilities arising in connection with the affairs and

business of the company so far as carried on in Great Britain.

45

 

 

Energy Bill [HL]
Schedule 21 — Energy transfer schemes

263

 

Provision relating to foreign property etc.

11    (1)  

Where there is a transfer in accordance with an energy transfer scheme of—

(a)   

any foreign property, or

(b)   

a foreign right or liability,

           

the old energy company and the new energy company must each take all

5

requisite steps to secure that the vesting of the foreign property, right or

liability in the new energy company is effective under the relevant foreign

law.

      (2)  

Until the vesting of the foreign property, right or liability in the new energy

company in accordance with the energy transfer scheme is effective under

10

the relevant foreign law, the old energy company must—

(a)   

hold the property or right for the benefit of the new energy company;

or

(b)   

discharge the liability on behalf of the new energy company.

      (3)  

The old energy company must comply with any directions given to it by the

15

new energy company in relation to the performance of the obligations under

sub-paragraphs (1) and (2) of old energy company.

      (4)  

Nothing in sub-paragraphs (1) to (3) prejudices the effect under the law of a

part of Great Britain of the vesting of a foreign property, right or liability in

the new energy company in accordance with an energy transfer scheme.

20

      (5)  

Where—

(a)   

any foreign property, right or liability is acquired or incurred in

respect of any other property, right or liability by a company, and

(b)   

by virtue of this paragraph, the company holds the other property or

right for the benefit of the new energy company or is required to

25

discharge the liability on behalf of the new energy company,

           

the property, right or liability acquired or incurred shall immediately

become the property, right or liability of the new energy company.

      (6)  

The provisions of sub-paragraphs (1) to (5) shall have effect in relation to

foreign property, rights or liabilities transferred to the new energy company

30

under sub-paragraph (5) as they have effect in the case of property, rights

and liabilities transferred in accordance with an energy transfer scheme.

      (7)  

References in this paragraph to foreign property, or to a foreign right or

liability, are references to any property, right or liability as respects which an

issue arising in any proceedings would be determined (in accordance with

35

the rules of private international law) by reference to the law of a country or

territory outside Great Britain.

      (8)  

Expenses incurred under this paragraph by a company as the company from

which anything is transferred shall be met by the new energy company.

      (9)  

An obligation imposed under this paragraph in relation to property, rights

40

or liabilities shall be enforceable as if contained in a contract between the old

energy company and the new energy company.

Application of Schedule to transfers to subsidiaries

12         

Where the proposed transfer falling within section 152(3) is a transfer of the

kind mentioned in subsection (4)(a) of that section, this Schedule shall have

45

effect in relation to that transfer as if—

(a)   

paragraph 3(1)(a) were omitted; and

 

 

Energy Bill [HL]
Schedule 22 — Procedure for appeals under section 169

264

 

(b)   

paragraph 3(6) had effect with “the old energy company has

consented may be made” substituted for the words from “both”

onwards.

Interpretation

13         

In this Schedule—

5

           

“energy transfer scheme” has the meaning given by paragraph 3(1);

           

“new energy company” has the meaning given by paragraph 1;

           

“third party”, in relation to an energy transfer scheme or any

modification of such a scheme, means a person who is neither—

(a)   

the old energy company; nor

10

(b)   

the new energy company.

Schedule 22

Section 170

 

Procedure for appeals under section 169

Application for permission to bring appeal

1     (1)  

An application for permission to bring an appeal may be made only by

15

sending a notice to the Commission requesting the permission.

      (2)  

Only a person who will be entitled under section 169 to bring the appeal if

permission is granted may apply for permission.

      (3)  

Where GEMA publishes a decision to which section 169 applies, an

application for permission is not to be made after the end of fifteen working

20

days following the earliest day on which the decision was published.

      (4)  

An application for permission must be accompanied by all such information

as may be required by appeal rules.

      (5)  

Those rules may require information contained in the application to be

verified by a statement of truth.

25

      (6)  

The applicant must send GEMA—

(a)   

a copy of his application; and

(b)   

such other information as may be required by appeal rules.

      (7)  

The applicant must also send a copy of that application and of that

information to—

30

(a)   

such persons (apart from GEMA) as appear to him to be affected by

the decision appealed against; and

(b)   

such other persons as GEMA may require him to keep informed

about his appeal.

      (8)  

The Commission’s decision on an application for permission must be made

35

before the end of ten working days following the day on which it received it.

      (9)  

The Commission’s decision whether to grant permission is to be taken by an

authorised member of the Commission.

     (10)  

A decision to grant permission may be made subject to conditions.

     (11)  

Those conditions may include—

40

 

 

Energy Bill [HL]
Schedule 22 — Procedure for appeals under section 169

265

 

(a)   

conditions which limit the matters that are to be considered on the

appeal in question;

(b)   

conditions for the purpose of expediting the determination of the

appeal; and

(c)   

conditions requiring that appeal to be considered together with other

5

appeals (including appeals relating to different matters or decisions

and appeals brought by different persons).

     (12)  

Where a decision is made to grant or to refuse an application for permission,

the Commission must notify the decision—

(a)   

to the applicant;

10

(b)   

to GEMA; and

(c)   

to each person who was sent a copy of the application in accordance

with sub-paragraph (7).

Addition of parties to appeal

2     (1)  

This paragraph applies if—

15

(a)   

before the end of twenty working days following the day of the

making of an application for permission to bring an appeal, or

(b)   

within such longer period as an authorised member of the

Commission may allow,

           

a person falling within sub-paragraph (2) gives notice to the Commission

20

asking to become a party to the appeal.

      (2)  

A person falls within this sub-paragraph if he—

(a)   

is not the applicant for permission; but

(b)   

is a person who would have been entitled, at the time of the

application, to make his own application to the Commission for

25

permission to bring an appeal against the decision in question.

      (3)  

A person who gives a notice asking to become a party to an appeal must

send GEMA—

(a)   

a copy of the notice; and

(b)   

such other information as may be required by appeal rules.

30

      (4)  

That person must also send a copy of the notice and of that information to—

(a)   

such persons (apart from GEMA) as appear to him to be affected by

the decision appealed against; and

(b)   

such other persons as GEMA may require him to keep informed

about his appeal.

35

      (5)  

An authorised member of the Commission may, on behalf of the

Commission, give a direction that a person who has asked in accordance

with this paragraph to become a party to an appeal is to be a party to that

appeal.

      (6)  

A member of the Commission is not to give a direction under this paragraph

40

if he considers that it would prevent the determination of the appeal within

the period allowed by paragraph 6 to do so.

      (7)  

Where a direction is given under this paragraph—

(a)   

the application for permission, and

(b)   

if permission is or has been granted, the appeal brought by the

45

applicant and any other appeals that are considered with it,

 

 

Energy Bill [HL]
Schedule 22 — Procedure for appeals under section 169

266

 

           

are to proceed (subject to any direction under sub-paragraph (8)(b)) as if the

intervener had joined with the applicant in making that application and

bringing the appeal.

      (8)  

A direction under this paragraph—

(a)   

does not allow the intervener to rely on grounds of appeal not

5

contained in the appellant’s application for permission to bring an

appeal;

(b)   

may allow the intervener to become a party to the appeal for the

purpose of opposing it; and

(c)   

may be given subject to conditions.

10

      (9)  

The conditions of a direction under this paragraph may include—

(a)   

conditions which limit the matters that are to be considered on the

appeal in question;

(b)   

conditions for the purpose of expediting the determination of the

appeal.

15

Suspension of decision

3     (1)  

Where permission has been granted to bring an appeal against a decision to

give a consent, an authorised member of the Commission may, on behalf of

the Commission, direct that, pending the determination of the appeal—

(a)   

the consent is not to have effect; or

20

(b)   

the consent is not to have effect to such extent as may be specified in

the direction.

      (2)  

The power to give a direction under this paragraph is exercisable only

where—

(a)   

an application for its exercise has been made by the applicant for

25

permission or by another person with interests or functions that

entitle him, or would have entitled him, to appeal against the

decision;

(b)   

the applicant for the exercise of the power would incur significant

costs if the consent were to have effect, or to continue to have effect,

30

before the determination of the appeal; and

(c)   

the balance of convenience does not otherwise require effect to be

given to the consent pending that determination.

      (3)  

That power is exercisable at any time before the determination of the appeal.

      (4)  

A person making an application under this paragraph must notify GEMA.

35

      (5)  

Before determining whether to grant an application under this paragraph,

the authorised member of the Commission must give GEMA an opportunity

of making representations about the matter.

      (6)  

In this paragraph “consent” includes an approval or direction.

Time limit for representations and observations by GEMA

40

4     (1)  

Where GEMA wishes to make representations or observations to the

Commission about—

(a)   

a decision in respect of which permission to bring an appeal has been

granted,

(b)   

GEMA’s reasons for that decision, or

45

 

 

Energy Bill [HL]
Schedule 22 — Procedure for appeals under section 169

267

 

(c)   

the grounds on which an appeal is being brought against that

decision,

           

it must do so before the end of fifteen working days following the day of the

making of the application for permission to bring the appeal.

      (2)  

Where more than one application for permission to bring an appeal was

5

made in accordance with paragraph 1 in respect of the same decision, that

period of fifteen working days begins to run from the end of the day of the

making of the last of those applications to be made.

      (3)  

GEMA must send a copy of its representations and observations to every

person who received a copy of—

10

(a)   

the application for permission to bring the appeal; or

(b)   

a notice by which a person asked to become a party to the appeal.

Consideration and determination of appeal by group

5     (1)  

The following functions of the Commission must be carried out, in

accordance with appeal rules, by a group selected for the purpose by the

15

Chairman—

(a)   

considering an appeal;

(b)   

determining an appeal; and

(c)   

giving directions and taking other steps to give effect to the

Commission’s determination on an appeal.

20

      (2)  

A group must consist of three members of the Commission.

      (3)  

The Chairman must appoint one of the members of a group to be its

chairman.

      (4)  

The Chairman may select a member of the Commission to replace another

as a member of a group if—

25

(a)   

the person being replaced has ceased to be a member of the

Commission;

(b)   

the Chairman is satisfied that the person being replaced will be

unable, for a substantial period, to perform his duties as a member of

the group; or

30

(c)   

it appears to the Chairman that it is inappropriate, because of a

particular interest of the person being replaced, for that person to

remain a member of the group.

      (5)  

The replacement of a member of a group does not prevent the group from

continuing after his replacement with anything begun before it.

35

      (6)  

In selecting members of a group (whether originally or by way of

replacement) the Chairman must ensure that at least one of the group’s

members is a person appointed to the Commission under section 104(1) of

the Utilities Act 2000 (c. 27) (specialist members).

      (7)  

The persons who may be selected by the Chairman to be (or to replace) a

40

member of a group, or who may be appointed by him to be the chairman of

a group, include himself.

      (8)  

A decision of a group is effective if, and only if—

(a)   

all the members of the group are present when it is made; and

(b)   

at least two members of the group are in favour of the decision.

45

 

 

Energy Bill [HL]
Schedule 22 — Procedure for appeals under section 169

268

 

Timetable for determination of appeal

6     (1)  

The group with the function of determining an appeal must determine that

appeal before the end of thirty working days following the last day for the

making of representations or observations by GEMA in accordance with

paragraph 4.

5

      (2)  

If the group with the function of determining an appeal is satisfied that there

are good reasons for departing from the normal requirements, it may (on

one occasion only) extend that period of thirty working days by not more

than ten more working days.

      (3)  

The Commission must ensure that an extension under sub-paragraph (2) is

10

notified to every party to the appeal.

Matters to be considered on appeal

7          

The group with the function of determining an appeal, if it thinks it

necessary to do so for the purpose of securing the determination of the

appeal within the period allowed by paragraph 6, may disregard—

15

(a)   

all matters raised by the appellant or an intervener that were not

raised by him at the time of his application for permission to bring

the appeal or in his request under paragraph 2; and

(b)   

all matters raised by GEMA that were not contained in

representations or observations made for the purposes of the appeal

20

in accordance with paragraph 4.

Production of documents

8     (1)  

The Commission may, by notice, require a person to produce to the

Commission the documents specified or otherwise identified in the notice.

      (2)  

The power to require the production of a document is a power to require its

25

production—

(a)   

at the time and place specified in the notice; and

(b)   

in a legible form.

      (3)  

No person is to be compelled under this paragraph to produce a document

that he could not be compelled to produce in civil proceedings in the High

30

Court or Court of Session.

      (4)  

The Commission may take copies of a document produced to it under this

paragraph.

      (5)  

A notice for the purposes of this paragraph may be issued on the

Commission’s behalf by any member of the Commission or by its secretary.

35

Oral hearings

9     (1)  

For the purposes of this Schedule an oral hearing may be held, and evidence

may be taken on oath—

(a)   

by a person considering an application for permission to bring an

appeal;

40

(b)   

by a person considering an application for a direction under

paragraph 2 or 3; or

(c)   

by a group with the function of determining an appeal;

           

and, for that purpose, such a person or group may administer oaths.

 

 

 
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