Energy Bill

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Energy Bill

Energy Bill
Schedule 2 — Property schemes
100

(c)
if the scheme has come into operation, the person who was
the asset owner immediately before it did so, or
(d)
a third party who is affected by any provision of the
property scheme,

make such interim arrangements as it thinks fit with respect to the
5
property, rights or liabilities concerned.
      (3)
Without prejudice to the generality of sub-paragraph (2), the
power under that sub-paragraph includes, in particular, power—
(a)
to make provision postponing or suspending the operation
of any provision of the scheme for such period, and on
10
such terms, as the Tribunal thinks fit;
(b)
to make provision for the successful bidder, or an
applicant within sub-paragraph (2)(c), to have access to, or
otherwise to enjoy the benefit of, any of the property or
rights concerned for such period and on such terms as the
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Tribunal thinks fit.
30
In exercising its powers under paragraph 28 or 29, the
Competition Appeal Tribunal must have regard, in particular, to
what is necessary or expedient for operational purposes.
31
Paragraphs 28 or 29 are without prejudice to any powers of the
20
Competition Appeal Tribunal to make orders on an interim basis
under rules under section 15 of the Enterprise Act 2002 (c. 40).
32    (1)
If an order under paragraph 28 or 29 is registered in England and
Wales in accordance with rules of court or any practice direction,
it is enforceable as an order of the High Court.
25
      (2)
An order under paragraph 28 or 29 may be recorded for execution
in the Books of Council and Session and is to be enforceable
accordingly.
      (3)
Subject to rules of court or any practice direction, an order under
paragraph 28 or 29 may be registered or recorded for execution by
30
a person entitled to any right under the interim arrangements for
which the order makes provision.
      (4)
Sub-paragraphs (1) to (3) apply to an order on an interim basis
made under rules under section 15 of the Enterprise Act 2002 in
connection with an application under paragraph 23(1) as they
35
apply to an order under paragraph 28 or 29.
Appeal on a point of law
33    (1)
An appeal lies on any point of law arising from a decision of the
Competition Appeal Tribunal under this Schedule to the
appropriate court.
40
      (2)
An appeal under this paragraph requires the permission of the
Tribunal or of the appropriate court.
      (3)
In this paragraph “the appropriate court” means—
(a)
in the case of Tribunal proceedings in England and Wales,
the Court of Appeal, and
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Energy Bill
Schedule 2 — Property schemes
101

(b)
in the case of Tribunal proceedings in Scotland, the Court
of Session.
Change of asset owner during application process
34    (1)
Where any property, rights or liabilities specified in an application
in accordance with paragraph 3(2)(a) are transferred by the asset
5
owner to another person (“the new asset owner”) after the
application is made, this Schedule has effect as if—
(a)
references to the asset owner included the new asset
owner, and
(b)
anything done by or in relation to the asset owner had been
10
done by or in relation to the new asset owner.
      (2)
In the case of property, rights or liabilities treated as specified in
an application by virtue of paragraph 9(2), sub-paragraph (1)
applies as if for “the application is made” there were substituted
“the modification notice is served on the Authority”.
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The preferred bidder
35    (1)
The preferred bidder, in relation to a tender exercise, is the person
whose name and address is specified in a notice which has been
published under sub-paragraph (2) (and has not been withdrawn
under sub-paragraph (4)).
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      (2)
Where a tender exercise is held, as soon as the Authority is
satisfied that it will grant the offshore transmission licence to a
particular person if certain matters are resolved to the Authority’s
satisfaction, it must publish a notice to that effect.
      (3)
The notice must—
25
(a)
specify the name and address of the person, and
(b)
describe, in general terms, those matters.
      (4)
The Authority may withdraw a notice under sub-paragraph (2) by
publishing a notice to that effect.
      (5)
A notice published under sub-paragraph (2) must be withdrawn
30
before a subsequent notice may be published under that sub-
paragraph in relation to the same tender exercise.
The successful bidder
36    (1)
The successful bidder, in relation to a tender exercise, is the person
to whom, as a result of that exercise, the offshore transmission
35
licence has been or is to be granted.
      (2)
Where a tender exercise is held, as soon as the Authority
determines to grant the offshore transmission licence to a person,
it must publish a notice to that effect.
      (3)
The notice must specify the name and address of the successful
40
bidder.

Energy Bill
Schedule 2 — Property schemes
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Associated bodies corporate
37    (1)
For the purposes of this Schedule, one body corporate is
associated with another if one of them controls the other or a third
body corporate controls both of them, and sub-paragraphs (2) to
(6) set out the circumstances in which one body corporate (“A”)
5
controls another (“B”).
      (2)
Where B is a company, A controls B if A possesses or is entitled to
acquire—
(a)
one half or more of the issued share capital of B,
(b)
such rights as would entitle A to exercise one half or more
10
of the votes exercisable in general meetings of B,
(c)
such part of the issued share capital of B as would entitle A
to one half or more of the amount distributed if the whole
of the income of B were in fact distributed among the
shareholders, or
15
(d)
such rights as would, in the event of the winding up of B
or in any other circumstances, entitle it to receive one half
or more of the assets of B which would then be available
for distribution among the shareholders.
      (3)
Where B is a limited liability partnership, A controls B if A—
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(a)
holds a majority of the voting rights in B,
(b)
is a member of B and has a right to appoint or remove a
majority of other members, or
(c)
is a member of B and controls alone or pursuant to an
agreement with other members, a majority of the voting
25
rights in B.
      (4)
In sub-paragraph (3)(a) and (c) the references to “voting rights” are
to the rights conferred on members in respect of their interest in a
limited liability partnership to vote on those matters which are to
be decided on by a vote of the members of the limited liability
30
partnership.
      (5)
In any case, A controls B if A has the power, directly or indirectly,
to secure that the affairs of B are conducted in accordance with A’s
wishes.
      (6)
In determining whether, by virtue of sub-paragraphs (2) to (5), A
35
controls B, A is to be taken to possess—
(a)
any rights and powers possessed by a person as nominee
for it, and
(b)
any rights and powers possessed by a body corporate
which it controls (including rights and powers which such
40
a body corporate would be taken to possess by virtue of
this sub-paragraph).
Interpretation
38    (1)
In this Schedule—
“the asset owner”—
45
(a)
in relation to an application for a property scheme,
means the owner of the property, rights and liabilities

Energy Bill
Schedule 2 — Property schemes
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in relation to which provision of a kind mentioned in
paragraph 1(2) is proposed to be included in the
scheme;
(b)
in relation to a property scheme, means the owner of
the property, rights and liabilities in relation to which
5
provision of such a kind is included in the scheme;
“co-ordination licence” means a transmission licence which
authorises a person to co-ordinate and direct the flow of
electricity onto and over a transmission system by means
of which the transmission of electricity takes place and the
10
whole or a part of which is at a relevant place;
“functions” includes powers and duties;
“modification notice” is to be construed in accordance with
paragraph 9;
“non-applicant party” means—
15
(a)
in the case of an application made by the preferred
bidder or the successful bidder, the asset owner, and
(b)
in the case of an application made by the asset owner,
the successful bidder or, if a notice has not yet been
published under paragraph 36, the preferred bidder;
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“operational purposes” means the purposes of performing
any functions which the successful bidder has, or may in
future have—
(a)
under or by virtue of the offshore transmission licence
which has been, or is to be, granted as a result of the
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tender exercise, or
(b)
under or by virtue of any enactment, in the successful
bidder’s capacity as holder of the licence;
“preferred bidder”, in relation to a tender exercise, is to be
construed in accordance with paragraph 35;
30
“property scheme” is to be construed in accordance with
paragraph 1;
“relevant place” means a place in Great Britain, in the
territorial sea adjacent to Great Britain or in a Renewable
Energy Zone;
35
“successful bidder”, in relation to a tender exercise, is to be
construed in accordance with paragraph 36;
“tender exercise” has the same meaning as in section 6D;
“third party”, in relation to a property scheme or proposed
property scheme in connection with a tender exercise,
40
means a person other than the preferred bidder, the
successful bidder, or the asset owner.
      (2)
For the purposes of this Schedule, a provision of a property
scheme affects a third party if that party’s consent or concurrence
would be required to the making of the provision otherwise than
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by means of the scheme.”