Regulation 46 Functions with respect to competition

(1)

The following functions are exercisable concurrently by the GEMA and the Competition and Markets Authority (“CMA”) so far as they relate to commercial activities connected with the supply of heating, cooling or hot water to heat network consumers by means of a relevant heat network.

(2)

The functions are—

(a)

the functions of the CMA under Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6)^f1, 35C^f2, 38(1) to (6)^f3, 40B(1) to (4)^f4 and 51^f5) that relate to any of the following—

(i)

agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act;

(ii)

conduct of the kind mentioned in section 18(1) of that Act; or

(iii)

transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act); and

(b)

the functions of the CMA under Part 4 of the Enterprise Act 2002 (other than sections 166^f6, 167C^f7, 171^f8 and 174E^f9) that are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).

(3)

So far as necessary for the purposes of, or in connection with, paragraphs (1) and (2)—

(a)

references in Part 1 of the Competition Act 1998 (including references in provisions of the Enterprise Act 2002 applied by that Part) to the CMA are to be read as including a reference to the GEMA (except in sections 31D(1) to (6)^f10, 35C^f11, 38(1) to (6)^f12, 40B(1) to (4)^f13, 51^f14, 52(6)^f15 and (8)^f16 and 54^f17 of that Act);

(b)

references in Part 4 of the Enterprise Act 2002 to the CMA (including references in provisions of that Act applied by that Part) are to be read as including a reference to the GEMA (except in sections 166, 167C, 171 and 174E of that Act);

(c)

references in Part 4 of the Enterprise Act 2002 to the CMA carrying out or exercising its functions under section 5^f18 of that Act are to be read as including references to regulation 9.

(4)

Section 130A of the Enterprise Act 2002^f19 is to have effect in its application in relation to the GEMA by virtue of paragraphs (1) and (2) as if—

(a)

for subsection (1) there were substituted—

“(1)

Where the Gas and Electricity Markets Authority—

(a)

is proposing to carry out its functions under regulation 9 of the Heat Networks (Market Framework) (Great Britain) Regulations 2025 in relation to a matter for the purposes mentioned in subsection (2), and

(b)

it considers the matter is one in respect of which it would be appropriate for the Authority to exercise powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

the Authority must publish a notice under this section (referred to in this Part as a “market study notice”).”; and

(b)

in subsection (2)(a), for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with the supply of heating, cooling or hot water to heat network consumers (within the meaning of the Heat Networks (Market Framework) (Great Britain) Regulations 2025) by means of a relevant heat network (within the meaning of Part 8 of the Energy Act 2023)”.

(5)

Paragraphs (6) and (7) apply where the GEMA—

(a)

makes a market investigation reference under section 131 of the Enterprise Act 2002^f20; and

(b)

a CMA group (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013) is carrying out an investigation on that reference.

(6)

The GEMA must give the CMA group—

(a)

any information which is in its possession and relates to matters falling within the scope of the investigation and—

(i)

is requested by the group for the purpose of assisting with the investigation; or

(ii)

is information which in the GEMA’s opinion it would be appropriate to give to the group for the purpose of assisting with the investigation without any such request being made; and

(b)

any other assistance with the investigation which the group may require and which is within the GEMA’s power to give.

(7)

The CMA group must, in carrying out the investigation, take into account any information given to them for the purpose of assisting them with carrying out the investigation.

(8)

Section 117 of the Enterprise Act 2002^f21 (offences of supplying false or misleading information) as applied by section 180 of that Act has effect so far as relating to functions exercisable by the GEMA by virtue of paragraphs (1) and (2) as if the references in section 117(1)(a) and (2) to the CMA included references to the GEMA.

(9)

To the extent that section 43(6A) of the Electricity Act 1989 ceases to have effect following the coming into force of paragraph 17(7) of Schedule 12 to the Digital Markets, Competition and Consumers Act 2024, paragraph (8) also ceases to have effect.

(10)

In making any decision, or otherwise taking action, for the purpose of any of its functions that—

(a)

by virtue of this regulation, are functions exercisable concurrently with the CMA; and

(b)

in the case of functions under the Competition Act 1998, are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule,

the GEMA must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.

Annotations

Footnotes

f1: Section 31D was inserted by the Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), regulation 1(a) and Schedule 1, paragraph 18 and amended by the Enterprise and Regulatory Reform Act 2013 (c. 24), section 103(3) and Schedule 5, paragraph 14.
f2: Section 35C is prospectively inserted by the Digital Markets, Competition and Consumers Act 2024, section 143 and Schedule 11, paragraph 6.
f3: Relevant amendments to section 38(1) to (6) were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5 paragraph 22, section 40(4) and the Competition (Amendment etc.) (EU Exit) Regulations 2019, regulation 13(a) and 13(b) the Competition Act 1998 and Other Enactments (Amendment) Regulations 2004, Schedule 1, paragraph 23(2) and the Enterprise Act 2002, Schedule 25, paragraph 38(30).
f4: Relevant amendment to section 40B(1) to (4) was made by the Enterprise and Regulatory Reform Act 2013, section 40(2).
f5: Relevant amendments to section 51 were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 31(2) to (4) and the Enterprise Act 2002, Schedule 25, paragraph 38(38)(a), 38(38)(c) and 38(38)(e).
f6: Relevant amendments to section 166 were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraphs 196(2), 196(3)(a), 196(3)(b), 196(3)(c), 196(4), 196(5)(a) and 196(6).
f7: Section 167C is prospectively inserted by the Digital Markets, Competition and Consumers Act 2024, Schedule 11, paragraph 18.
f8: Relevant amendments to section 171 were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraphs 201(2)(a) to (c), 201(3) to (5), 201(7)(a) and (b), 201(8)(a) and (b), 201(9) and (10) and the Competition (Amendment etc.) (EU Exit) Regulations 2019, regulation 57.
f9: Relevant amendment to section 174(e) was made by the Enterprise and Regulatory Reform Act 2013, Schedule 11, paragraph 1.
f10: Relevant amendments to section 31D were made by the Competition Act 1998 and Other Enactments (Amendment) Regulations 2004, Schedule 1 paragraph 18 and the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 14.
f11: Relevant amendment to section 35C was made by the Digital Markets, Competition and Consumers Act 2024, Schedule 11, paragraph 6.
f12: Relevant amendments to section 38(1) to (6) were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 22 and section 40(4) and the Competition (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/93), regulation 13(a) and (b) and the Competition Act 1998 and Other Enactments (Amendment) Regulations 2004, Schedule 1, paragraph 23(2) and the Enterprise Act 2002, Schedule 25, paragraph 38(30).
f13: Relevant amendment to section 40B(1) to (4) was made by the Enterprise and Regulatory Reform Act 2013, section 40(2).
f14: Relevant amendments to section 51 were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 31(2) to (4) and the Enterprise Act 2002, Schedule 25, paragraph 38(38)(a), (c) and (e).
f15: Relevant amendments to section 52(6) were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 32(4) and the Enterprise Act 2002, Schedule 25, paragraph 38(39)(d).
f16: Relevant amendment to section 52(8) was made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 32(4).
f17: Relevant amendments to section 54 were made by the Enterprise Act 2002, Schedule 25, paragraph 38(41)(a), the Communications Act 2003, section 371(5)(a), the Enterprise and Regulatory Reform Act 2013, Schedule 15, paragraph 11(a), and the Water Act 2003, Schedule 7, paragraph 32(2).
f18: Relevant amendments to section 5 were made by the Enterprise and Regulatory Reform Act 2013, Schedule 5, paragraph 60(2).
f19: Relevant amendments to section 130A were made by the Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014, Schedule 12, paragraph 1.
f20: Relevant amendments to section 131 were made by the Enterprise and Regulatory Reform Act 2013, section 33(2), (3) and (4)(a) and (b), Schedule 5, paragraph 163(2) and (3) and Schedule 10, paragraph 2(2) and (3).
f21: Relevant amendments to section 117 were made by the Enterprise and Regulatory Reform Act 2013, section 29(11), Schedule 5, paragraph 151 and the Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) (No. 2) Order 2014, Schedule 1, paragraph 6.