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Energy Bill [HL]


Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

117

 

(6)   

An interim order under subsection (1)(d) may, in particular—

(a)   

restrict the exercise of a power of the company or of its directors; or

(b)   

make provision conferring a discretion on a person qualified to act as

an insolvency practitioner in relation to the company.

(7)   

Where the company in relation to which an application is made is a non-GB

5

company, the reference in subsection (6)(a) to restricting the exercise of a

power of the company or of its directors is a reference only to restricting the

exercise of such a power—

(a)   

within Great Britain; or

(b)   

in relation to the company’s affairs or business so far as carried on in

10

Great Britain, or to its property in Great Britain.

(8)   

For the purposes of this section a company is unable to pay its debts if—

(a)   

it is a company which is deemed to be so unable under section 123 of

the 1986 Act (definition of inability to pay debts); or

(b)   

it is an unregistered company which is deemed, by virtue of any of

15

sections 222 to 224 of that Act, to be so unable for the purposes of

section 221 of that Act (winding-up of unregistered companies), or

which would be so deemed if it were an unregistered company for the

purposes of those sections.

151     

Energy administrators

20

(1)   

The energy administrator of a company—

(a)   

is an officer of the court; and

(b)   

in exercising and performing his powers and duties in relation to the

company, is the company’s agent.

(2)   

The management by the energy administrator of a company of any affairs,

25

business or property of the company must be carried out for the purpose of

achieving the objective of the energy administration as quickly and as

efficiently as is reasonably practicable.

(3)   

The energy administrator of a company must exercise and perform his powers

and duties in the manner which, so far as it is consistent with the objective of

30

the energy administration to do so, best protects—

(a)   

the interests of the creditors of the company as a whole; and

(b)   

subject to those interests, the interests of the members of the company

as a whole.

(4)   

A person is not to be the energy administrator of a company unless he is a

35

person qualified to act as an insolvency practitioner in relation to the company.

(5)   

Where the court makes an appointment in a case in which two or more persons

will be the energy administrator of a company after the appointment, the

appointment must set out—

(a)   

which (if any) of the powers and duties of an energy administrator are

40

to be exercisable or performed only by those persons acting jointly;

(b)   

the circumstances (if any) in which powers and duties of an energy

administrator are to be exercisable, or may be performed, by one of the

persons appointed to be the energy administrator, or by particular

appointees, acting alone; and

45

 

 

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

118

 

(c)   

the circumstances (if any) in which things done in relation to one of the

persons appointed to be the energy administrator, or in relation to

particular appointees, are to be treated as done in relation to all of them.

152     

Conduct of administration, transfer schemes etc.

(1)   

Schedule 20 (which applies the provisions of Schedule B1 to the 1986 Act about

5

ordinary administration orders and certain other enactments to energy

administration orders) has effect.

(2)   

Schedule 21 (which makes provision for transfer schemes to achieve the

objective of an energy administration) has effect.

(3)   

The power to make rules conferred by section 411 of the 1986 Act (company

10

insolvency rules) shall apply for the purpose of giving effect to this Chapter as

it applies for the purpose of giving effect to Parts 1 to 7 of that Act and,

accordingly, as if references in that section to those Parts included references to

this Chapter.

Restrictions on other insolvency procedures

15

153     

Restrictions on winding-up orders

(1)   

This section applies where a petition for the winding-up of a protected energy

company is presented by a person other than the Secretary of State.

(2)   

The court is not to exercise its powers on a winding-up petition unless—

(a)   

notice of the petition has been served both on the Secretary of State and

20

on GEMA; and

(b)   

a period of at least fourteen days has elapsed since the service of the last

of those notices to be served.

(3)   

If an application for an energy administration order in relation to the company

is made to the court in accordance with section 149(1) before a winding-up

25

order is made on the petition, the court may exercise its powers under section

150, instead of exercising its powers on a winding-up petition.

(4)   

References in this section to the court’s powers on a winding-up petition are

references to—

(a)   

its powers under section 125 of the 1986 Act (other than its power of

30

adjournment); and

(b)   

its powers under section 135 of that Act.

154     

Restrictions on voluntary winding up

(1)   

A protected energy company has no power to pass a resolution for voluntary

winding up without the permission of the court.

35

(2)   

Such permission may be granted only on an application made by the company.

(3)   

The court is not to grant permission on such an application unless—

(a)   

notice of the application has been served both on the Secretary of State

and on GEMA; and

(b)   

a period of at least fourteen days has elapsed since the service of the last

40

of those notices to be served.

 

 

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

119

 

(4)   

If an application for an energy administration order in relation to the company

is made to the court in accordance with section 149(1) after an application for

permission under this section has been made and before it is granted, the court

may exercise its powers under section 150, instead of granting permission.

(5)   

In this section “a resolution for voluntary winding up” has the same meaning

5

as in the 1986 Act.

155     

Restrictions on making of ordinary administration orders

(1)   

This section applies where an ordinary administration application is made in

relation to a protected energy company by a person other than the Secretary of

State.

10

(2)   

The court must dismiss the application if—

(a)   

an energy administration order is in force in relation to the company; or

(b)   

an energy administration order has been made in relation to the

company but is not yet in force.

(3)   

Where subsection (2) does not apply, the court, on hearing the application,

15

must not exercise its powers under paragraph 13 of Schedule B1 to the 1986 Act

(other than its power of adjournment) unless—

(a)   

notice of the application has been served both on the Secretary of State

and on GEMA;

(b)   

a period of at least fourteen days has elapsed since the service of the last

20

of those notices to be served; and

(c)   

there is no application for an energy administration order that is

outstanding.

(4)   

Paragraph 44 of Schedule B1 to the 1986 Act (interim moratorium) does not

prevent, or require the permission of the court for, the making of an application

25

for an energy administration order.

(5)   

Upon the making of an energy administration order in relation to a protected

energy company, the court must dismiss any ordinary administration

application made in relation to that company which is outstanding.

(6)   

In this section “ordinary administration application” means an application in

30

accordance with paragraph 12 of Schedule B1 to the 1986 Act.

156     

Restrictions on administrator appointments by creditors etc.

(1)   

No step is to be taken by any person to make an appointment in relation to a

company under paragraph 14 or 22 of Schedule B1 to the 1986 Act (powers of

holder of floating charge and of the company itself and of its directors to

35

appoint administrators) if—

(a)   

an energy administration order is in force in relation to the company;

(b)   

an energy administration order has been made in relation to the

company but is not yet in force; or

(c)   

an application for such an order is outstanding.

40

(2)   

In the case of a protected energy company to which subsection (1) does not

apply, an appointment in relation to that company under paragraph 14 or 22 of

Schedule B1 to the 1986 Act takes effect only if each of the conditions

mentioned in subsection (3) is met.

 

 

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

120

 

(3)   

Those conditions are—

(a)   

that a copy of every document in relation to the appointment that is

filed or lodged with the court in accordance with paragraph 18 or 29 of

Schedule B1 to the 1986 Act (documents to be filed or lodged for

appointment of administrator) has been served both on the Secretary of

5

State and on GEMA;

(b)   

that a period of fourteen days has elapsed since the service of the last of

those copies to be served;

(c)   

that there is no outstanding application to the court for an energy

administration order in relation to the company in question; and

10

(d)   

that the making of an application for such an order has not resulted in

the making of an energy administration order which is in force or is still

to come into force.

(4)   

Paragraph 44 of Schedule B1 to the 1986 Act (interim moratorium) does not

prevent, or require the permission of the court for, the making of an application

15

for an energy administration order at any time before the appointment takes

effect.

157     

Restrictions on enforcement of security

(1)   

No step to enforce a security over property of a protected energy company is

to be taken by any person, unless—

20

(a)   

notice of his intention to do so has been served both on the Secretary of

State and on GEMA; and

(b)   

a period of at least fourteen days has elapsed since the service of the last

of those notices to be served.

(2)   

In the case of a protected energy company which is a non-GB company, the

25

reference in subsection (1) to the property of the company is a reference only to

its property in Great Britain.

Financial support for companies in administration

158     

Grants and loans

(1)   

This section applies where an energy administration order has been made in

30

relation to a company.

(2)   

The Secretary of State may make grants or loans to the company of such

amounts as it appears to him appropriate to pay or lend for achieving the

objective of the energy administration.

(3)   

A grant or loan under this section may be made in whatever manner, and on

35

whatever terms, the Secretary of State considers appropriate.

(4)   

The terms on which a grant may be made under this section include, in

particular, terms requiring the whole or a part of the grant to be repaid to the

Secretary of State if there is a contravention of the other terms on which the

grant is made.

40

(5)   

The terms on which a loan may be made under this section include, in

particular, terms requiring—

(a)   

the loan to be repaid at such times and by such methods, and

(b)   

interest to be paid on the loan at such rates and at such times,

 

 

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

121

 

   

as the Secretary of State may from time to time direct.

(6)   

The consent of the Treasury is required—

(a)   

for the making of a grant or loan under this section; and

(b)   

for the giving by the Secretary of State of a direction under subsection

(5).

5

(7)   

The Secretary of State must pay sums received by him by virtue of this section

into the Consolidated Fund.

159     

Indemnities

(1)   

This section applies where an energy administration order has been made in

relation to a company.

10

(2)   

The Secretary of State may agree to indemnify persons in respect of one or both

of the following—

(a)   

liabilities incurred in connection with the exercise and performance by

the energy administrator of his powers and duties; and

(b)   

loss or damage sustained in that connection.

15

(3)   

The agreement may be made in whatever manner, and on whatever terms, the

Secretary of State considers appropriate.

(4)   

If sums are paid by the Secretary of State in consequence of an indemnity

agreed to under this section, the company must pay him—

(a)   

such amounts in or towards the repayment to him of those sums as he

20

may direct; and

(b)   

interest, at such rates as he may direct, on amounts outstanding under

this subsection.

(5)   

Payments to the Secretary of State under subsection (4) must be made at such

times and in such manner as he may determine.

25

(6)   

Subsection (4) does not apply in the case of a sum paid by the Secretary of State

for indemnifying a person in respect of a liability to the company in relation to

which the energy administration order was made.

(7)   

The consent of the Treasury is required—

(a)   

for the doing of anything by the Secretary of State under subsection (2);

30

(b)   

for the giving by him of any direction under subsection (4); and

(c)   

for the making of a determination under subsection (5).

(8)   

The power of the Secretary of State to agree to indemnify persons—

(a)   

is confined to a power to agree to indemnify persons in respect of

liabilities, loss and damage incurred or sustained by them as relevant

35

persons; but

(b)   

includes power to agree to indemnify persons (whether or not they are

identified or identifiable at the time of the agreement) who

subsequently become relevant persons.

(9)   

A person is a relevant person for the purposes of this section if he is—

40

(a)   

the energy administrator;

(b)   

an employee of the energy administrator;

(c)   

a member or employee of a firm of which the energy administrator is a

member;

 

 

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

122

 

(d)   

a member or employee of a firm of which the energy administrator is

an employee;

(e)   

a member of a firm of which the energy administrator was an employee

or member at a time when the order was in force;

(f)   

a body corporate which is the employer of the energy administrator;

5

(g)   

an officer, employee or member of such a body corporate.

(10)   

For the purposes of subsection (9)—

(a)   

the references to the energy administrator are to be construed, where

two or more persons are appointed to act as the energy administrator,

as references to any one or more of them; and

10

(b)   

the references to a firm of which a person was a member or employee

at a particular time include references to a firm which holds itself out to

be the successor of a firm of which he was a member or employee at that

time.

(11)   

The Secretary of State must pay sums received by him by virtue of subsection

15

(4) into the Consolidated Fund.

160     

Guarantees where energy administration order is made

(1)   

This section applies where an energy administration order has been made in

relation to a company.

(2)   

The Secretary of State may guarantee—

20

(a)   

the repayment of any sum borrowed by the company while the energy

administration order is in force;

(b)   

the payment of interest on such a sum; and

(c)   

the discharge of any other financial obligation of the company in

connection with the borrowing of such a sum.

25

(3)   

The Secretary of State may give a guarantee under this section in such manner,

and on such terms, as he thinks fit.

(4)   

As soon as practicable after giving a guarantee under this section, the Secretary

of State must lay a statement of the guarantee before Parliament.

(5)   

If sums are paid out by the Secretary of State under a guarantee given under

30

this section, the company must pay him—

(a)   

such amounts in or towards the repayment to him of those sums as he

may direct; and

(b)   

interest, at such rates as he may direct, on amounts outstanding under

this subsection.

35

(6)   

Payments to the Secretary of State under subsection (5) must be made at such

times, and in such manner, as he may from time to time direct.

(7)   

Where a sum has been paid out by the Secretary of State under a guarantee

given under this section, he must lay a statement relating to that sum before

Parliament—

40

(a)   

as soon as practicable after the end of the financial year in which that

sum is paid out; and

(b)   

as soon as practicable after the end of each subsequent relevant

financial year.

 

 

Energy Bill [HL]
Part 3 — Energy Regulation
Chapter 3 — Special administration regime for energy licensees

123

 

(8)   

In relation to a sum paid out under a guarantee, a financial year is a relevant

financial year for the purposes of subsection (7) unless—

(a)   

before the beginning of that year, the whole of that sum has been repaid

to the Secretary of State under subsection (5); and

(b)   

the company in question is not at any time during that year subject to

5

liability to pay interest on amounts that became due under that

subsection in respect of that sum.

(9)   

The consent of the Treasury is required—

(a)   

for the giving of a guarantee under this section; and

(b)   

for the giving by the Secretary of State of a direction under subsection

10

(5) or (6).

(10)   

The Secretary of State must pay sums received by him by virtue of subsection

(5) into the Consolidated Fund.

Licence modifications relating to energy administration

161     

Modifications of particular or standard conditions

15

(1)   

Where the Secretary of State considers it appropriate to do so in connection

with the provision made by this Chapter, he may make—

(a)   

modifications of the conditions of a gas or electricity licence held by a

particular person;

(b)   

modifications of the standard conditions of such licences of any type.

20

(2)   

The power to make modifications under this section includes power to make

incidental, consequential or transitional modifications.

(3)   

Before making a modification under this section, the Secretary of State must

consult—

(a)   

the holder of any licence being modified; and

25

(b)   

such other persons as he considers appropriate.

(4)   

Subsection (3) may be satisfied by consultation that took place wholly or partly

before the commencement of this section.

(5)   

The Secretary of State must publish every modification made by him under this

section.

30

(6)   

The publication must be in such manner as the Secretary of State considers

appropriate.

(7)   

A modification under subsection (1)(a) of part of a standard condition of a

licence does not prevent any other part of the condition from continuing to be

regarded as a standard condition for the purposes of Part 1 of the 1989 Act or

35

Part 1 of the Gas Act 1986 (c. 44).

(8)   

Where the Secretary of State makes modifications under subsection (1)(b) of

the standard conditions of licences of any type, GEMA must—

(a)   

make (as nearly as may be) the same modifications of those standard

conditions for the purposes of their incorporation in licences of that

40

type granted after that time; and

(b)   

publish the modifications in such manner as it considers appropriate.

 

 

 
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