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Energy Bill [HL]


Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 4 — Other Modifications

254

 

(b)   

in sub-paragraph (2)(b), after “instrument” there were

inserted “or by the law of the place where the company is

incorporated”.

Part 4

Other Modifications

5

General modifications

41    (1)  

Subject to paragraph 42, every reference falling within sub-paragraph (2)

which is contained—

(a)   

in a provision of the 1986 Act (other than Schedule B1), or

(b)   

in any other enactment passed before this Act,

10

           

shall have effect as including a reference to whatever corresponds to it for

the purposes of this paragraph.

      (2)  

Those references are those (however expressed) which are or include

references to—

(a)   

an administrator appointed by an administration order;

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(b)   

an administration order;

(c)   

an application for an administration order;

(d)   

a company in administration;

(e)   

entering into administration;

(f)   

Schedule B1 or a provision of that Schedule.

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      (3)  

For the purposes of this paragraph—

(a)   

an energy administrator corresponds to an administrator appointed

by an administration order;

(b)   

an energy administration order corresponds to an administration

order;

25

(c)   

an application for an energy administration order corresponds to an

application for an administration order;

(d)   

a company in energy administration corresponds to a company in

administration;

(e)   

entering into energy administration corresponds to entering into

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administration;

(f)   

what corresponds to Schedule B1 or a provision of that Schedule is

that Schedule or that provision as applied by Part 1 of this Schedule.

42    (1)  

Paragraph 41, in its application to section 1(3) of the 1986 Act, does not

entitle the energy administrator of an unregistered company to make a

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proposal under Part 1 of that Act (company voluntary arrangements).

      (2)  

Paragraph 41 does not confer any right under section 7(4) of the 1986 Act

(implementation of voluntary arrangements) for a supervisor of voluntary

arrangements to apply for an energy administration order in relation to a

protected energy company.

40

      (3)  

Paragraph 41 does not apply to section 359 of the Financial Services and

Markets Act 2000 (c. 8) (administration applications by Financial Services

Authority).

 

 

Energy Bill [HL]
Schedule 20 — Conduct of energy administration
Part 4 — Other Modifications

255

 

Modifications of 1986 Act

43         

In section 5 of the 1986 Act (effect of approval of voluntary arrangements)

after subsection (4) insert—

“(5)   

Where the company is in energy administration, the court shall not

make an order or give a direction under subsection (3) unless—

5

(a)   

the court has given the Secretary of State or the Gas and

Electricity Markets Authority a reasonable opportunity of

making representations to it about the proposed order or

direction; and

(b)   

the order or direction is consistent with the objective of the

10

energy administration.

(6)   

In subsection (5) ‘in energy administration’ and ‘objective of the

energy administration’ are to be construed in accordance with

Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the

Energy Act 2004.”

15

44    (1)  

Section 6 of that Act (challenge of decisions in relation to voluntary

arrangements) is amended as follows.

      (2)  

In subsection (2) for “this section” substitute “subsection (1)”.

      (3)  

After that subsection insert—

“(2A)   

Subject to this section, where a voluntary arrangement in relation to

20

a company in energy administration is approved at the meetings

summoned under section 3, an application to the court may be

made—

(a)   

by the Secretary of State, or

(b)   

with the consent of the Secretary of State, by the Gas and

25

Electricity Markets Authority,

   

on the ground that the voluntary arrangement is not consistent with

the achievement of the objective of the energy administration.”

      (4)  

In subsection (4) after “subsection (1)” insert “or, in the case of an application

under subsection (2A), as to the ground mentioned in that subsection”.

30

      (5)  

After subsection (7) insert—

“(8)   

In this section ‘in energy administration’ and ‘objective of the energy

administration’ are to be construed in accordance with Schedule B1

to this Act, as applied by Part 1 of Schedule 20 to the Energy Act

2004.”

35

45         

In section 129(1A) of that Act (commencement of winding up), the reference

to paragraph 13(1)(e) of Schedule B1 includes a reference to section 150(1)(e)

of this Act.

Power to make further modifications

46    (1)  

The Secretary of State may by order make such modifications of—

40

(a)   

the 1986 Act, or

(b)   

any other enactment passed before this Act that relates to insolvency

or makes provision by reference to anything that is or may be done

under the 1986 Act,

 

 

Energy Bill [HL]
Schedule 21 — Energy transfer schemes

256

 

           

as he considers appropriate in relation to any provision made by or under

this Chapter.

      (2)  

An order under this paragraph may also make modifications of this Part of

this Schedule.

      (3)  

The power to make an order containing provision authorised by this

5

paragraph is subject to the affirmative resolution procedure.

Interpretation of Part 4 of Schedule

47         

In this Part of this Schedule—

           

“administration order”, “administrator”, “enters administration” and

“in administration” are to be construed in accordance with Schedule

10

B1 (disregarding Part 1 of this Schedule);

           

“enters energy administration” and “in energy administration” are to

be construed in accordance with Schedule B1 (as applied by Part 1 of

this Schedule);

           

“Schedule B1” means Schedule B1 to the 1986 Act.

15

Schedule 21

Section 152.

 

Energy transfer schemes

Application of Schedule

1          

This Schedule applies where—

(a)   

the court has made an energy administration order in relation to a

20

company (the “old energy company”); and

(b)   

it is proposed that a transfer falling within section 148(3) be made to

another company (the “new energy company”).

2          

It is for the energy administrator, while the energy administration order is

in force, to act on behalf of the old energy company in the doing of anything

25

that it is authorised or required to do by or under this Schedule.

Making of energy transfer schemes

3     (1)  

The old energy company may—

(a)   

with the consent of the new energy company, and

(b)   

for the purpose of giving effect to the proposed transfer,

30

           

make a scheme under this Schedule for the transfer of property, rights and

liabilities from the old energy company to the new energy company (an

“energy transfer scheme”).

      (2)  

Such a scheme may be made only at a time when the energy administration

order is in force in relation to the old energy company.

35

      (3)  

An energy transfer scheme may set out the property, rights and liabilities to

be transferred in one or more of the following ways—

(a)   

by specifying or describing them in particular;

(b)   

by identifying them generally by reference to, or to a specified part

of, the undertaking of the old energy company; or

40

(c)   

by specifying the manner in which they are to be determined.

 

 

Energy Bill [HL]
Schedule 21 — Energy transfer schemes

257

 

      (4)  

An energy transfer scheme shall take effect in accordance with paragraph 8

at the time appointed by the court.

      (5)  

But the court must not appoint a time for a scheme to take effect unless that

scheme has been approved by the Secretary of State.

      (6)  

The Secretary of State may modify an energy transfer scheme before

5

approving it, but only modifications to which both the old energy company

and the new energy company have consented may be made.

      (7)  

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

State must have regard, in particular, to—

(a)   

the public interest; and

10

(b)   

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

third parties.

      (8)  

Before approving an energy transfer scheme, the Secretary of State must

consult GEMA.

      (9)  

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

15

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

exercise of the powers conferred on him by this paragraph.

Provision that may be made by a scheme

4     (1)  

An energy transfer scheme may contain provision—

20

(a)   

for the creation, in favour of the old energy company or the new

energy company, of an interest or right in or in relation to property

transferred in accordance with the scheme;

(b)   

for giving effect to a transfer to the new energy company by the

creation, in favour of that company, of an interest or right in or in

25

relation to property retained by the old energy company;

(c)   

for the creation of new rights and liabilities (including rights of

indemnity and duties to indemnify) as between the old energy

company and the new energy company;

(d)   

in connection with any provision made under this sub-paragraph,

30

provision making incidental provision as to the interests, rights and

liabilities of other persons with respect to the property, rights and

liabilities to which the scheme relates.

      (2)  

The property, rights and liabilities of the old energy company that may be

transferred in accordance with an energy transfer scheme include—

35

(a)   

property, rights and liabilities that would not otherwise be capable

of being transferred or assigned by the old energy company;

(b)   

property acquired, and rights and liabilities arising, in the period

after the making of the scheme but before it takes effect;

(c)   

rights and liabilities arising after it takes effect in respect of matters

40

occurring before it takes effect;

(d)   

property situated anywhere in Great Britain or elsewhere;

(e)   

rights and liabilities under the law of a part of Great Britain or of a

place outside Great Britain;

(f)   

rights and liabilities under an enactment, Community instrument or

45

subordinate legislation.

 

 

Energy Bill [HL]
Schedule 21 — Energy transfer schemes

258

 

      (3)  

The transfers to which effect may be given by an energy transfer scheme

include transfers of interests and rights that are to take effect in accordance

with the scheme as if there were—

(a)   

no such requirement to obtain a person’s consent or concurrence,

(b)   

no such liability in respect of a contravention of any other

5

requirement, and

(c)   

no such interference with any interest or right,

           

as there would be, in the case of a transaction apart from this Act, by reason

of a provision falling within sub-paragraph (4).

      (4)  

A provision falls within this sub-paragraph to the extent that it has effect

10

(whether under an enactment or agreement or otherwise) in relation to the

terms on which the old energy company is entitled, or subject, to anything

to which the transfer relates.

      (5)  

Sub-paragraph (6) applies where (apart from that sub-paragraph) a person

would be entitled, in consequence of anything done or likely to be done by

15

or under this Act in connection with an energy transfer scheme—

(a)   

to terminate, modify, acquire or claim an interest or right; or

(b)   

to treat an interest or right as modified or terminated.

      (6)  

That entitlement—

(a)   

shall not be enforceable in relation to that interest or right until after

20

the transfer of the interest or right by the scheme; and

(b)   

shall then be enforceable in relation to the interest or right only in so

far as the scheme contains provision for the interest or right to be

transferred subject to whatever confers that entitlement.

      (7)  

Sub-paragraphs (3) to (6) have effect where shares in a subsidiary of the old

25

energy company are transferred—

(a)   

as if the reference in sub-paragraph (4) to the terms on which the old

energy company is entitled or subject to anything to which the

transfer relates included a reference to the terms on which the

subsidiary is entitled or subject to anything immediately before the

30

transfer takes effect; and

(b)   

in relation to an interest or right of the subsidiary, as if the references

in sub-paragraph (6) to the transfer of the interest or right included a

reference to the transfer of the shares.

      (8)  

Sub-paragraphs (3) and (4) apply to the creation of an interest or right by an

35

energy transfer scheme as they apply to the transfer of an interest or right.

Transfer of licences

5     (1)  

The provision that may be made by an energy transfer scheme includes the

transfer of a relevant licence from the old energy company to the new energy

company.

40

      (2)  

Such a transfer may relate to the whole or any part of the licence.

      (3)  

Where such a transfer relates to a part of the licence, the provision made

under sub-paragraph (1) may include—

(a)   

provision apportioning responsibility between the old energy

company and the new energy company in relation to—

45

(i)   

the making of payments required by conditions included in

the licence;

 

 

Energy Bill [HL]
Schedule 21 — Energy transfer schemes

259

 

(ii)   

ensuring compliance with any other requirements of the

conditions included in the licence; and

(b)   

provision making incidental modifications to the terms and

conditions of the licence.

      (4)  

References in this paragraph to a part of a licence are references to one or

5

both of—

(a)   

a part of the activities authorised by the licence;

(b)   

a part of the area in relation to which the holder of the licence is

authorised to carry on those activities.

Powers and duties under statutory provisions

10

6     (1)  

The provision that may be made by an energy transfer scheme includes

provision for some or all of the powers and duties to which this paragraph

applies—

(a)   

to be transferred to the new energy company; or

(b)   

to become powers and duties that are exercisable, or must be

15

performed, concurrently by the old energy company and the new

energy company.

      (2)  

Provision falling within sub-paragraph (1) may apply to powers and duties

only in so far as they are exercisable or required to be performed in the area

specified or described in the provision.

20

      (3)  

The powers and duties to which this paragraph applies are the powers and

duties conferred or imposed upon the old energy company by or under an

enactment, so far as those powers and duties are connected with—

(a)   

the undertaking of the old energy company to the extent the energy

transfer scheme relates to that undertaking; or

25

(b)   

any property, rights or liabilities to be transferred in accordance with

the scheme.

      (4)  

The powers and duties mentioned in sub-paragraph (3) include, in

particular, powers and duties relating to the carrying out of works or the

acquisition of land.

30

Supplemental provisions relating to transfers

7     (1)  

An energy transfer scheme may make incidental, supplemental,

consequential and transitional provision in connection with the other

provisions of the scheme.

      (2)  

Such provision may include different provision for different cases or

35

different purposes.

      (3)  

In particular, an energy transfer scheme may make provision, in relation to

a provision of the scheme—

(a)   

for the new energy company to be treated as the same person in law

as the old energy company;

40

(b)   

for agreements made, transactions effected or other things done by

or in relation to the old energy company to be treated, so far as may

be necessary for the purposes of or in connection with a transfer in

accordance with the scheme, as made, effected or done by or in

relation to the new energy company;

45

(c)   

for references in an agreement, instrument or other document to the

old energy company or to an employee or office holder with the old

 

 

Energy Bill [HL]
Schedule 21 — Energy transfer schemes

260

 

energy company to have effect, so far as may be necessary for the

purposes of or in connection with a transfer in accordance with the

scheme, with such modifications as are specified in the scheme;

(d)   

that the effect of any transfer in accordance with the scheme in

relation to contracts of employment with the old energy company is

5

not to terminate any of those contracts but is to be that periods of

employment with that company are to count for all purposes as

periods of employment with the new energy company;

(e)   

for proceedings commenced by or against the old energy company

to be continued by or against the new energy company.

10

      (4)  

Sub-paragraph (3)(c) does not apply to references in an enactment or in

subordinate legislation.

      (5)  

An energy transfer scheme may make provision for disputes as to the effect

of the scheme between the old energy company and the new energy

company to be referred to such arbitration as may be specified in or

15

determined under the scheme.

      (6)  

Where a person is entitled, in consequence of an energy transfer scheme, to

possession of a document relating in part to the title to land or other

property in England and Wales, or to the management of such land or other

property—

20

(a)   

the scheme may provide for that person to be treated as having given

another person an acknowledgement in writing of the right of that

other person to production of the document and to delivery of copies

of it; and

(b)   

section 64 of the Law of Property Act 1925 (c. 20) (production and

25

safe custody of documents) shall have effect accordingly, and on the

basis that the acknowledgement did not contain an expression of

contrary intention.

      (7)  

Where a person is entitled, in consequence of an energy transfer scheme, to

possession of a document relating in part to the title to land or other

30

property in Scotland or to the management of such land or other property,

subsections (1) and (2) of section 16 of the Land Registration (Scotland) Act

1979 (c. 33) (omission of certain clauses in deeds) shall have effect in relation

to the transfer—

(a)   

as if the transfer had been effected by deed; and

35

(b)   

as if the words “unless specially qualified” were omitted from each

of those subsections.

      (8)  

In this paragraph references to a transfer in accordance with an energy

transfer scheme include references to the creation in accordance with such a

scheme of an interest, right or liability.

40

Effect of scheme

8     (1)  

In relation to each provision of an energy transfer scheme for the transfer of

property, rights or liabilities, or for the creation of interests, rights or

liabilities—

(a)   

this Act shall have effect so as, without further assurance, to vest the

45

property or interests, or those rights or liabilities, in the transferee at

the time appointed by the court for the purposes of paragraph 3(4);

and

(b)   

the provisions of that scheme in relation to that property or those

interests, or those rights or liabilities, shall have effect from that time.

50

 

 

 
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