Regulation 3 Utilities

For the purposes of these Regulations a utility is a person specified in the first column of Schedule 1 who carries on an activity listed in the second column of any part of Schedule 1 in which it is specified but only if that person is—

For the purposes of this regulation and Schedule 1—

• “local authority” means an authority in England and Wales, in Scotland or in Northern Ireland referred to in paragraphs (2) to (4) respectively of regulation 3 of the Public Works Contracts Regulations 1991^f1;

• “network”, in relation to a service in the field of transport, means a system operated in accordance with conditions laid down by or under the law in any part of the United Kingdom including such conditions as the routes to be served, the capacity to be made available and the frequency of the service;

• “public authority” means a contracting authority within the meaning of regulation 3(1) of the Public Works Contracts Regulations 1991^f2;

• “public telecommunications network” has the meaning ascribed to it by regulation 2(1);

• “public telecommunications services” has the meaning ascribed to it by regulation 2(1);

• “public undertaking” means a person over whom one or more public authorities are able to exercise directly or indirectly a dominant influence by virtue of—

  1. (a)

     their ownership of it,

  2. (b)

     their financial participation in it, or

  3. (c)

     the rights accorded to them by the rules which govern it;

  and in particular a public authority shall be considered to be able to exercise a dominant influence over a person when it directly or indirectly—

  1. (d)

     possesses the majority of the issued share capital of that person or controls the majority of the voting power attached to the issued share capital of that person, or

  2. (e)

     may appoint more than half of the individuals who are ultimately responsible for managing that person’s affairs, more than half its members or, in the case of a group of individuals, more than half of those individuals;

• “relevant person” means a person who is—

  1. (a)

     a public authority,

  2. (b)

     a public undertaking, or

  3. (c)

     not a public authority or a public undertaking and has as one of its activities an activity specified in the second column of Schedule 1 other than an activity specified in paragraphs 2 or 3 thereof and carries out that activity on the basis of a special or exclusive right; and

• “special or exclusive right” means a right deriving from any authorisation granted by a competent authority where the effect of the authorisation is to reserve for one or more persons the exploitation of an activity specified in the second column of Schedule 1, and in particular a person may be considered to enjoy a special or exclusive right where for the purpose of constructing a network or facilities referred to in the second column of Schedule 1 it may take advantage of a procedure for the expropriation or use of property or may place network equipment on, under or over a highway.