Article 46 Functions with respect to competition

Northern Ireland

Para. (1) rep. by 2002 c. 40

F1(2)

The functions to which paragraph (2A) applies shall be concurrent functions of the Director and the F2CMA.

(2A)

This paragraph applies to the functions of the F3CMA under Part 4 of the Enterprise Act 2002 (other than sections 166 F4, 167C F5, 171 and 174E) so far as F6those 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 F7, distribution or supply of electricity.

(2B)

So far as necessary for the purposes of, or in connection with, paragraphs F8(2) and (2A)—

(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 Director (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 Article 50(1) of this Order.

F13(2C)

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

(a)

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

“(1)
Where the Northern Ireland Authority for Utility Regulation—
(a)
is proposing to carry out its functions under Article 50(1) of the Electricity (Northern Ireland) Order 1992 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, distribution or supply of electricity ”.

(F14F153)

The Director 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 commercial activities connected with the generation, transmission , distribution or supply of electricity.

(3A)

So far as necessary for the purposes of, or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 F21(including references in provisions of the Enterprise Act 2002 applied by that Part) toF22 the CMA are to be read as including a reference to the Director ( except in sections 31D(1) to (6) F23, 35C, 38(1) to (6)F24, 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)

Before the F25CMA or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2), it or he shall consult the other.

(4A)

Neither the F26CMA nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of paragraph (2) 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 Director, for the purpose of assistingF27 a CMA group in carrying out an investigation on a F28market investigation reference made by the Authority (under section 131 of the Act of 2002) by virtue of paragraph (2). . . , to give to the F29group—

(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 paragraph.

F30(5A)

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

(6)

F31If any question arises as to whether paragraph (2) or (3) applies to any particular caseF32. . . F33. . . , that question shall be referred to and determined by the Department; and no objection shall be taken to anything done under—

(a)

Part 4 of the Enterprise Act 2002 (F34 market investigations); or

(b)

Part I of the Competition Act 1998 ( other than sections 31D(1) to (6) F35, 35C, 38(1) to (6)F36, 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 toF37 the CMA.

F38(6A)

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

Para. (7) rep. by 2002 c. 40

F39(8)

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

(a)

by virtue of this Article, 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: 2002 c. 40
F2: Word in art. 46(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(2) (with art. 3)
F3: Word in art. 46(2A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(3)(b) (with art. 3)
F4: Word in art. 46(2A) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 12(2); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F5: Words in art. 46(2A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(3)(a) (with art. 3)
F6: Words in art. 46(2A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(3)(c) (with art. 3)
F7: Word in art. 46(2A)(3) inserted (15.4.2011) by Gas and Electricity (Internal Markets) Regulations (Northern Ireland) 2011 (S.R. 2011/155), reg. 26
F8: Words in art. 46(2B) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(4)(a) (with art. 3)
F9: Word in art. 46(2B) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(4)(b) (with art. 3)
F10: Word in art. 46(2B)(a) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 12(3); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F11: Words in art. 46(2B) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(4)(c) (with art. 3)
F12: Words in art. 46(2B) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(4)(d) (with art. 3)
F13: Art. 46(2C) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(5) (with art. 3)
F14: 1998 c.41
F15: SI 2004/1261
F16: Word in art. 46(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(6) (with art. 3)
F17: Word in art. 46(3) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 12(4); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F18: Words in art. 46(3) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 57, 103(3), Sch. 15 para. 53; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F19: Word in art. 46(3)(b) inserted (31.12.2020) by S.I. 2019/93, Sch. 1 para. 5(2) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 17)
F20: Art. 46(3)(c) substituted for art. 46(3)(c)(d) (31.12.2020) by S.I. 2019/93, Sch. 1 para. 5(3) (as substituted by The Competition (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1343), regs. 1(1), 17)
F21: Words in art. 46(3A) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 13 para. 14; S.I. 2024/1226, regs. 1(2), 2(1)(17)
F22: Words in art. 46(3A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(7) (with art. 3)
F23: Word in art. 46(3A) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 12(5); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F24: Words in art. 46(3A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 57, 103(3), Sch. 15 para. 53; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F25: Word in art. 46(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(6) (with art. 3)
F26: Word in art. 46(4A) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(6) (with art. 3)
F27: Words in art. 46(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(8)(a)(i) (with art. 3)
F28: Words in art. 46(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(8)(a)(ii) (with art. 3)
F29: Word in art. 46(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(8)(b) (with art. 3)
F30: Art. 46(5A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(9) (with art. 3)
F31: Words in art. 46(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 51(5), 103(3), Sch. 14 para. 23; S.I. 2014/416, art. 2(1)(e) (with Sch.)
F32: 2002 c. 40
F33: 1994 c.40
F34: Words in art. 46(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(10)(a) (with art. 3)
F35: Word in art. 46(6)(b) inserted (1.1.2025) by Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 12(6); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F36: Words in art. 46(6)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 57, 103(3), Sch. 15 para. 53; S.I. 2014/416, art. 2(1)(f) (with Sch.)
F37: Words in art. 46(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 2, Sch. 1 para. 216(10)(b) (with art. 3)
F38: Art. 46(6A) omitted (1.1.2025) by virtue of Digital Markets, Competition and Consumers Act 2024 (c. 13), s. 339(1), Sch. 12 para. 12(7); S.I. 2024/1226, regs. 1(2), 2(1)(16)
F39: Art. 46(8) 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. 6; S.I. 2024/1226, regs. 1(2), 2(1)(21); S.I. 2025/272, reg. 2(1)(13)