Section 36A Functions with respect to competition.F44

England, Wales and Scotland

F1(1)

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

(F22)

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 carrying on of activities to which this subsection applies.

(2B)

So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) F8above—

(a)

references in Part 4 of the Act of 2002 to the F9CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 F10, 167C F11, 171 and 174E of that Act and in any other provision of that Act where the context otherwise F12requires);

(b)

references in that Part to section 5 of the Act of 2002 are to be construed as including references to section 34(1) and (2) of this Act.

(F132C)

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 34(1) or (2) of the Gas Act 1986 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 carrying on of activities to which section 36A(2A) of the Gas Act 1986 applies”.

C1(F14F153)

The Authority shall be entitled to exercise, concurrently with the F16CMA, the functions of the CMA 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 the carrying on of activities to which this subsection applies.

(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 F21(including references in provisions of the Enterprise Act 2002 applied by that Part) to F22the CMA are to be read as including a reference to the Director ( F23except in sections 31D(1) to (6) F24, 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).

(4)

Subsections F25(2A) and (3) above apply to—

(a)

such activities as are mentioned in section 5(1) above; and

(b)

activities ancillary to such activities as are so mentioned (including in particular the storage of gas, the provision and reading of meters and the provision of pre-payment facilities).

(F265)

Before the F27CMA 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.

(5A)

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.

(6)

It shall be the duty of the Director, for the purpose of assisting F28a CMA group in carrying out an investigation on a F29market investigation reference made by the Authority (under section 131 of the Act of 2002) by virtue of subsection (2) F30. . . above, to give to the F31group —

(a)

any information which is in his 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 his 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 his 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.

(F326A)

In subsection (6) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(7)

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

(a)

F33Part 4 of the Enterprise Act 2002; or

(F34b)

Part I of the Competition Act 1998 ( F35other than sections 31D(1) to (6) F36, 35C , 38(1) to (6) F37, 40B(1) to (4) and 51),

by or in relation to the Director on the ground that it should have been done by or in relation to F38the CMA .

F39(8)

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

F40(9)

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

(10)

Any reference in this Part to functions of the Director under this Part, or to functions assigned to him by or under this Part, includes a reference to functions F41F42exercisable by the Authority by virtue of subsection (2) or (3) above ..

F43(11)

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

(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.

Annotations

Textual amendments

F1: S. 36A(1) repealed (1.4.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 25 para. 15(10)(a), Sch. 26; S.I. 2003/766, art. 2, Sch. (with art. 3) (as amended (20.7.2007) by S.I. 2007/1846, reg. 3(2), Sch.)
F2: Ss. 36A(2)-(2B) substituted for s. 36A(2) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(2); S.I. 2003/1397, art. 2(1), Sch.
F3: Word in s. 36A(2) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(2) (with art. 3)
F4: Word in s. 36A(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(3)(a) (with art. 3)
F5: Word in s. 36A(2A) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 18(2); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F6: Words in s. 36A(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(3)(b) (with art. 3)
F7: Words in s. 36A(2A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(3)(c) (with art. 3)
F8: Words in s. 36A(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(a) (with art. 3)
F9: Word in s. 36A(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(b) (with art. 3)
F10: Word in s. 36A(2B)(a) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 18(3); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F11: Words in s. 36A(2B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(c) (with art. 3)
F12: Words in s. 36A substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(4)(d) (with art. 3)
F13: S. 36A(2C) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(5) (with art. 3)
F14: S. 36A(3) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(a)
F15: S. 36A(3)(3A) substituted for s. 36A(3) (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(5) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.
F16: Word in s. 36A(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(6) (with art. 3)
F17: Word in s. 36A(3) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 18(4); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F18: Words in s. 36A(3)(3A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 2; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F19: Word in s. 36A(3)(b) inserted (31.12.2020) by S.I. 2019/93, Sch. 1 para. 2(2) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 14)
F20: S. 36A(3)(c) substituted for s. 36A(3)(c)(d) (31.12.2020) by S.I. 2019/93, Sch. 1 para. 2(3) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 14)
F21: Words in s. 36A(3A) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 13 para. 11; S.I. 2024/1226, regs. 1(2), 2(1)(17)
F22: Words in s. 36A(3A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(7) (with art. 3)
F23: Words in s. 36A(3A) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(b)
F24: Word in s. 36A(3A) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 18(5); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F25: Word in s. 36A(4) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(3); S.I. 2003/1397, art. 2(1), Sch.
F26: S. 36A(5)(5A) substituted for s. 36A(5) (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(4); S.I. 2003/1397, art. 2(1), Sch.
F27: Word in s. 36A(5)(5A) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(8) (with art. 3)
F28: Words in s. 36A(6) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(9)(a)(i) (with art. 3)
F29: Words in s. 36A(6) substituted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(9)(a)(ii) (with art. 3)
F30: Words in s. 36A(6) repealed (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. II para. 3(7), Sch. 14 Pt. I (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.
F31: Word in s. 36A(6) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(9)(b) (with art. 3)
F32: S. 36A(6A) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(10) (with art. 3)
F33: Words in s. 36A(7)(a) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(5); S.I. 2003/1397, art. 2(1), Sch.
F34: S. 36A(7)(b) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(8) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.
F35: Words in s. 36A(7)(b) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 1(2)(c)
F36: Word in s. 36A(7)(b) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 18(6); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F37: Words in s. 36A(7)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 2; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F38: Words in s. 36A(7) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 50(11) (with art. 3)
F39: S. 36A(8) omitted (1.1.2025) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 18(7); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F40: S. 36A(9) repealed (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(7), Sch. 26; S.I. 2003/1397, art. 2(1), Sch.
F41: Words in s. 36A(10) substituted (26.11.1998 for certain purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(11) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.
F42: Words in s. 36A(10) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), s. 279, Sch. 9 para. 17(8); S.I. 2003/1397, art. 2(1), Sch.
F43: S. 36A(11) inserted (1.1.2025 for specified purposes, 6.4.2025 for specified purposes) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 29 para. 8; S.I. 2024/1226, regs. 1(2), 2(1)(21); S.I. 2025/272, reg. 2(1)(13)
F44: S. 36A inserted (1.3.1996) by 1995 c. 45, s. 10(1), Sch. 3 para. 43; S.I. 1996/218, art. 2

Modifications

C1: S. 36A(3) restricted (26.11.1998 for specified purposes, otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 3(1) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2 Sch.

Notes on Part I

Modifications

C1

Pt. I: definition of "public gas supplier" applied (E.W.) (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 208(3)(b), 225(2) (with ss. 16(6), 179, 222(3), Sch. 22 para. 1, Sch. 23 para. 6)

Pt. I: definition of "public gas supplier" applied (E.W.) (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 178, 225(2), Sch. 22 para. 1(4)(e) (with ss. 16(6), 179, 222(3), Sch. 22 para. 1, Sch. 23 para. 6)

Pt. I applied (1.3.1996) by 1995 c. 45, s. 6(7); S.I. 1996/218, art. 2

Pt. I applied (1.3.1996) by 1995 c. 45, s. 16(1), Sch. 4 para. 1; S.I. 1996/218, art. 2