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The Water Mergers (Modification of Enactments) (Amendment) Regulations 2024

S.I. 2024/1234 · Made 25 November 2024

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

COMPETITION

WATER INDUSTRY, ENGLAND AND WALES

Made 25th November 2024

Laid before Parliament 29th November 2024

Coming into force 1st January 2025

The Secretary of State makes these Regulations in exercise of the powers conferred by section 213(2)(f) of, and paragraph 1 of Schedule 4ZA to, the Water Industry Act 1991f1.

Annotations to the whole text

Footnotes

f1

1991 c. 56. Schedule 4ZA was inserted by section 70(2) of, and Schedule 6 to, the Enterprise Act 2002 (c. 40). See section 219(1) of the Water Industry Act 1991 for the definition of “prescribed”.

Contents

  1. 1Citation, commencement and extent
  2. 2Amendment of the Water Mergers (Modification of Enactments) Regulations 2004
  3. 3Regulation 3 - Omitted provisions
  4. 4Regulation 8 - Section 32: Supplementary provision for purposes of section 25
  5. 5Regulation 10ZA - Section 34ZA: Time-limits for decisions about references
  6. 6Regulation 13A - Section 39: Time-limits for investigations and reports
  7. 7Regulation 14 - Section 40: Section 39: supplementary
  8. 8Regulation 26 - Section 104: Certain duties of relevant authorities to consult
  9. 9Regulation 29 - Section 107: Further publicity requirements
  10. 10New regulations 30ZA and 30ZB
  11. 11Transitional provision
  12. Signature
  13. Explanatory note

1Citation, commencement and extent

(1)

These Regulations may be cited as the Water Mergers (Modification of Enactments) (Amendment) Regulations 2024 and come into force on 1st January 2025.

(2)

These Regulations extend to England and Wales.

2Amendment of the Water Mergers (Modification of Enactments) Regulations 2004

The Water Mergers (Modification of Enactments) Regulations 2004f1 are amended as set out in these Regulations.

3Regulation 3 - Omitted provisions

In regulation 3(1) (omitted provisions), after paragraph (a), insert—

“(aa)

sections 34ZD to 34ZF (fast track reference requests)f1;”.

4Regulation 8 - Section 32: Supplementary provision for purposes of section 25

Omit regulation 8 (section 32: supplementary provision for purposes of section 25)f1.

5Regulation 10ZA - Section 34ZA: Time-limits for decisions about references

In regulation 10ZA (section 34ZA: time-limits for decisions about references)—

(a)

in paragraph (a)(i), for “22 or 33” substitute “22(1) or 33(1)”;

(b)

after paragraph (a) insert—

“(aa)

subsection (1A) were omittedf1;”;

(c)

in paragraph (b)(i), for “22 or 33” substitute “22(1) or 33(1)”.

6Regulation 13A - Section 39: Time-limits for investigations and reports

In regulation 13A (section 39: time-limits for investigations and reports), for the words from “as if,” to the end substitute—

“as if—

(a)

in subsection (3), for “section 22(1) or 33(1)” there were substituted “section 32(a) or (b) of the 1991 Act”;

(b)

subsection (3A)f1 were omitted;

(c)

in subsection (7), “, (3A)” were omitted; and

(d)

in subsection (8A)f2, for “section 33” there were substituted “section 32(a) of the 1991 Act”.”.

7Regulation 14 - Section 40: Section 39: supplementary

In regulation 14 (section 40: section 39: supplementary), for the words from “as if,” to the end substitute—

“as if—

(a)

in subsection (4), “or (3A)” were omitted;

(b)

in subsection (5), “, (3A)” were omitted; and

(c)

in subsection (10), for “section 22 or 33” there were substituted “section 32(a) or (b) of the 1991 Act”.”.

8Regulation 26 - Section 104: Certain duties of relevant authorities to consult

In regulation 26 (section 104: certain duties of relevant authorities to consult)—

(a)

in paragraph (a), for “22, 33” substitute “22(1), 33(1)”;

(b)

omit the “and” after paragraph (a);

(c)

after paragraph (a) insert—

“(aa)

in sub-paragraph (ii) of paragraph (a), for “section 22, 33, 68B or 68C” there were substituted “section 32(a) or (b) of the 1991 Act”; and”.

9Regulation 29 - Section 107: Further publicity requirements

In regulation 29 (section 107: further publicity requirements), in paragraph (a)—

(a)

in sub-paragraph (i)—

(i)

for “paragraphs (a) and (b)” substitute “paragraph (a)”;

(ii)

for “22, 33” substitute “22(1), 33(1)”;

(b)

omit the “and” after sub-paragraph (i);

(c)

after sub-paragraph (ii) insert—

“(iia)

paragraph (aaa) were omittedf1;”;

(d)

after paragraph (iii) insert—

“(iiia)

in paragraph (b), for “section 22, 33, 68B or 68C” there were substituted “section 32(a) or (b) of the 1991 Act”;”.

10New regulations 30ZA and 30ZB

After regulation 30 insert—

“Section 109B: Extra-territorial application of notices under section 109

30ZA

Section 109B (extra-territorial application of notices under section 109)f1 has effect as if, in subsection (3)(a), for the words from “section 22, 33, 45, 62, 62B or 68C” to “section 70A(1),” there were substituted “section 32(a) or (b) of the 1991 Act”.

Section 110: Enforcement of powers under section 109: imposition of penalties

30ZB

Section 110 (enforcement of powers under section 109: imposition of penalties) has effect as if—

(a)

in subsection (1A)(a) and (b)f2, after the word “Part” there were inserted “or section 32 of the 1991 Act”;

(b)

in subsection (1B), paragraphs (b) and (c) were omitted; and

(c)

in subsection (9), paragraph (b) were omitted.”.

11Transitional provision

(1)

The insertion of new regulation 30ZB into the Water Mergers (Modification of Enactments) Regulations 2004 effected by regulation 10 has no effect in relation to any act or omission of a kind described within section 110(1A) of the Enterprise Act 2002, where such an act or omission occurred—

(a)

before 1st January 2025; or

(b)

on or after 1st January 2025, but the act or omission occurred in relation to—

(i)

a notice under section 109 of the Enterprise Act 2002 (attendance of witnesses and production of documents etc)f1 given before that date; or

(ii)

a non-compulsory information request made before that date.

(2)

For the purposes of paragraph (1), “non-compulsory information request” means a written request—

(a)

made by the CMAf2;

(b)

addressed to a specific person to provide information relating to the CMA’s functions under Part 3 of the Enterprise Act 2002 or section 32 of the Water Industry Act 1991 (duty to refer merger of water or sewerage undertaking)f3;

(c)

where that request does not amount to a requirement to provide information imposed under Part 3 of the Enterprise Act 2002.

(3)

References in this regulation to provisions of the Enterprise Act 2002 are references to those provisions as applied by virtue of paragraph 1 of Schedule 4ZA to the Water Industry Act 1991.

Signature

Justin Madders

Parliamentary Under-Secretary of State for Employment Rights, Competition and Markets

Department for Business and Trade

25th November 2024

Explanatory note

(This note is not part of the Regulations)

These Regulations amend the Water Mergers (Modification of Enactments) Regulations 2004 (S.I. 2004/3202) (“the 2004 Regulations”).

Part 3 of the Enterprise Act 2002 contains the main statutory scheme for the regulation of mergers. Sections 32 to 35 of, and Schedule 4ZA to, the Water Industry Act 1991 (c. 56) provide a separate scheme for the regulation of mergers between water or sewerage enterprises in England and Wales. Paragraph 1 of Schedule 4ZA provides that Part 3 of the Enterprise Act 2002 applies to water mergers with such modifications as may be prescribed by the Secretary of State. These modifications are set out in the 2004 Regulations.

The Digital Markets, Competition and Consumers Act 2024 (c. 13) (“DMCCA”) makes amendments to Part 3 of the Enterprise Act 2002. These include, for example, amendments to enable the Competition and Markets Authority (“CMA”) to fast-track a merger to an in-depth Phase 2 investigation if it receives a request from the parties involved in a merger to do so (section 128 of, and Schedule 5 to, the DMCCA). It also amends Part 3 of the Enterprise Act 2002 to create new turnover based civil penalties for breaches of investigative measures (section 143(1)(b) of, and Part 2 of Schedule 10 to, the DMCCA) and for breaches of remedies in relation to mergers, i.e., breaches of an undertaking accepted or order made under that Part (section 143(2)(b) of, and Part 2 of Schedule 11 to, the DMCCA).

These Regulations amend the modifications made by the 2004 Regulations to Part 3 of the Enterprise Act 2002 to reflect and, where appropriate, vary the amendments made by the DMCCA in their application to water mergers.

Regulations 3 and 5 to 9 make amendments to ensure that provisions in Part 3 of the Enterprise Act 2002 relating to the new fast-track process do not apply to water mergers.

Regulation 4 reflects the repeal by the DMCCA of section 32 of the Enterprise Act 2002 (in connection with changes to the definition of “working day” for the purposes of Part 3 of that Act).

Regulation 10 ensures that the new provision in Part 3 of the Enterprise Act 2002 relating to the territorial extent of information notices under that Part and the new civil penalties powers apply to water mergers.

Regulation 11 makes transitional provision ensuring that the modification inserted into the 2004 Regulations by regulation 10, concerning the imposition of civil penalties for the breach of investigative measures, does not apply in relation to information supplied in response to information notices given under section 109 of the Enterprise Act 2002 before 1st January 2025 or to a non-compulsory request for information made by the CMA before that date.

A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary sector or community bodies is foreseen.