Section 43 Functions with respect to competition.

England, Wales and Scotland

F1(1)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The functions to which subsection (2A) below applies shall be concurrent functions of the Authority and the F3CMA.

(2A)

This subsection applies to the functions of the F4CMA under Part 4 of the Enterprise Act 2002 (other than sections 166 F5, 167C F6, 171 and 174E) so far as F7those functions—

(a)

are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b)

relate to commercial activities connected with the generation, transmission or supply of electricity F8or the use of electricity interconnectors.

(2B)

So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) F9above—

(a)

references in Part 4 of the Act of 2002 to the F10CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 F11, 167C F12, 171 and 174E of that Act and in any other provision of that Act where the context otherwise F13requires);

(b)

references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 47(1) of this Act.

F14(2C)

Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to the Authority by virtue of subsections (2) and (2A)—

(a)

as if for subsection (1) of that section there were substituted—

“(1)
Where the Gas and Electricity Markets Authority—
(a)
is proposing to carry out its functions under section 47(1) of the Electricity Act 1989 in relation to a matter for the purposes mentioned in subsection (2), and
(b)
considers that the matter is one in respect of which it would be appropriate for the Authority to exercise its 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)

as if in subsection (2)(a) of that section, 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 generation, transmission or supply of electricity or the use of electricity interconnectors”.

C2(F153)

The Authority shall be entitled to exercise, concurrently with the F16CMA, the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) F17, 35C, 38(1) to (6) F18, 40B(1) to (4) and 51), so far as relating to—

(a)

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

(b)

conduct of the kind mentioned in section 18(1) of that Act, F19or

(F20c)

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

which relate to commercial activities connected with the generation, transmission or supply of electricity F21, the use of electricity interconnectors or the performance of the function of a code manager in relation to a designated electricity licence document.

F22(3A)

So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 F23(including references in provisions of the Enterprise Act 2002 applied by that Part) to F24CMA are to be read as including a reference to F25the Authority (F26except in sections 31D(1) to (6) F27, 35C, 38(1) to (6) , 40B(1) to (4), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).

F28(4)

Before the F29CMA or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, it shall consult the other.

(4A)

Neither the CMA nor the Authority shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(5)

It shall be the duty of the Authority, for the purpose of assisting F30a CMA group in carrying out an investigation on F31market investigation reference made by the Authority (under section 131 of the Act of 2002) by virtue of subsection (2) F32... above, to give to the F33group—

(a)

any information which is in F34its possession and which relates to matters falling within the scope of the investigation and—

(i)

is requested by the group for that purpose; or

(ii)

is information which in its opinion it would be appropriate for that purpose to give to the group without any such request; and

(b)

any other assistance which the group may require and which it is within its power to give, in relation to any such matters,

and the group shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

F35(5A)

In subsection (5) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(6)

F36If any question arises as to whether subsection (2) or (3) above applies to any particular case F37... F38..., that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a)

F39Part 4 of the Enterprise Act 2002; or

F40(b)

Part I of the Competition Act 1998 (F41other than sections 31D(1) to (6) F42, 35C, 38(1) to (6) F43, 40B(1) to (4) and 51),

by or in relation to the Authority on the ground that it should have been done by or in relation to F44the CMA.

F45(6A)

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F46(7)

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F47(8)

In making any decision, or otherwise taking action, for the purposes of any of its functions that, by virtue of this section—

(a)

by virtue of this section, 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 Authority must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.