|
| |
|
(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 |
| |
(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 |
| |
| 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— |
| 20 |
(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); |
| |
| |
(b) | transitional provision in connection with provision falling within |
| |
| 25 |
(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 |
| |
| 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 |
| 35 |
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 |
|
| |
|
| |
|
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 |
| |
| |
(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; |
| |
| |
(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 |
| |
(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 |
| |
|
| |
|
| |
|
(b) | paragraph 3(6) had effect with “the old energy company has |
| |
consented may be made” substituted for the words from “both” |
| |
| |
| |
| 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. |
| |
| |
| |
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 |
| |
| 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 |
| |
| |
(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 |
|
| |
|
| |
|
(a) | conditions which limit the matters that are to be considered on the |
| |
| |
(b) | conditions for the purpose of expediting the determination of the |
| |
| |
(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— |
| |
| 10 |
| |
(c) | to each person who was sent a copy of the application in accordance |
| |
| |
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 |
| |
| |
| 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 |
| |
| |
(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 |
| |
| 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 |
| |
| |
(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, |
| |
|
| |
|
| |
|
| 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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(b) | conditions for the purpose of expediting the determination of the |
| |
| 15 |
| |
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 |
| |
| |
(2) | The power to give a direction under this paragraph is exercisable only |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
(a) | a decision in respect of which permission to bring an appeal has been |
| |
| |
(b) | GEMA’s reasons for that decision, or |
| 45 |
|
| |
|
| |
|
(c) | the grounds on which an appeal is being brought against that |
| |
| |
| 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 |
| |
(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 |
| |
| |
(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 |
| |
| |
(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 |
| |
| 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 |
|
| |
|
| |
|
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 |
| |
| 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. |
| |
| |
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 |
| |
(a) | at the time and place specified in the notice; and |
| |
| |
(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 |
| |
| |
(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 |
| |
9 (1) | For the purposes of this Schedule an oral hearing may be held, and evidence |
| |
| |
(a) | by a person considering an application for permission to bring an |
| |
| 40 |
(b) | by a person considering an application for a direction under |
| |
| |
(c) | by a group with the function of determining an appeal; |
| |
| and, for that purpose, such a person or group may administer oaths. |
| |
|
| |
|