Energy Act 2004

• (1) Before the commencement of section 136, the Secretary of State shall make a scheme in relation to existing transmission licences.

• (2) A scheme under this paragraph shall provide for each licence to which it relates to have effect on and after such date as the scheme may provide—

• (a) as a licence under section 6(1)(b) of the 1989 Act as amended by Chapter 1 of Part 3 of this Act, and

• (b) with the inclusion of such provision under section 6(6A) of that Act as the scheme may provide.

• (3) Subject to sub-paragraph (4), a scheme under this paragraph shall provide that the conditions which by virtue of section 137(3) are standard conditions for the purposes of transmission licences are incorporated by reference in each licence to which the scheme relates (in place of the existing standard conditions of that licence).

• (4) A scheme under this paragraph may provide that each licence to which it relates shall have effect with such incidental, consequential and supplementary modifications as appear to the Secretary of State to be necessary or expedient.

• (5) Modifications under sub-paragraph (4) may relate to—

• (a) the terms of a licence, or

• (b) the conditions of a licence (including the standard conditions which would otherwise be incorporated by virtue of sub-paragraph (3)).

• (6) A scheme under this paragraph may—

• (a) make such transitional provision as appears to the Secretary of State to be necessary or expedient;

• (b) make different provision for different cases.

• (7) As soon as practicable after making a scheme under this paragraph, the Secretary of State shall publish the text of each licence to which the scheme relates as it has effect by virtue of the scheme.

• (8) Any text so published shall be treated as authoritative unless the contrary is shown.

• (9) The Secretary of State may change the date on which a scheme under this paragraph is to come into operation.

Consequential amendment of related codes and agreements

2

The Secretary of State may include in a scheme under paragraph 1 provision amending a code or agreement relevant to the conditions of an existing transmission licence if it appears to him to be necessary or expedient to do so in consequence of anything for which the scheme makes provision.

Effect of licensing scheme

3

• (1) A scheme under paragraph 1 shall, by virtue of this paragraph, have effect according to its terms.

• (2) The modification under paragraph 1(4) of what would otherwise be a standard condition of a licence to which the scheme relates shall not prevent any other part of the condition which is not so modified being regarded as a standard condition for the purposes of Part 1 of the 1989 Act.

Modification of licensing scheme

4

• (1) If at any time after a scheme under paragraph 1 has come into operation the Secretary of State considers it appropriate to do so, he may by order provide that the scheme shall for all purposes be deemed to have come into operation with such modifications as may be specified in the order.

• (2) An order under sub-paragraph (1) may make, with effect from the coming into force of the scheme, such provision as could have been made by the scheme, and in connection with giving effect to that provision from that time may contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.

• (3) An order under sub-paragraph (1) is subject to the negative resolution procedure.

Consultation by the Secretary of State

5

• (1) Before carrying out any function under this Schedule the Secretary of State shall consult—

• (a) GEMA, and

• (b) holders of existing transmission licences,

in such manner as he considers appropriate.

• (2) Sub-paragraph (1) may be satisfied by consultation before, as well as by consultation after, the commencement of this paragraph.

“Existing transmission licence”

6

In this Schedule, references to an existing transmission licence are to a transmission licence which is in force immediately before the day on which section 136 comes into force.

SCHEDULE 18

Scheme-making power

1

• (1) GEMA may, on application, make a scheme providing for—

• (a) the transfer to the system operator of, or

• (b) the creation in favour of the system operator of any rights in relation to,

property, rights or liabilities of an existing transmission licence holder.

• (2) A scheme under sub-paragraph (1) (“a property arrangements scheme”) may also contain—

• (a) provision for the creation, in relation to property which the scheme transfers, of an interest in or right over the property in favour of the relevant existing transmission licence holder;

• (b) provision for the creation of any rights or liabilities as between the relevant existing transmission licence holder and the system operator;

• (c) provision for imposing on the relevant existing transmission licence holder or the system operator an obligation to enter into a written agreement with, or to execute an instrument of another kind in favour of, the other;

• (d) supplemental, incidental and consequential provision.

• (3) The property, rights or liabilities which may be transferred by a property arrangements scheme include property, rights or liabilities which would not otherwise be capable of being transferred.

• (4) If a property arrangements scheme provides for the division of an estate or interest in land and any rent is—

• (a) payable in respect of the estate or interest under a lease, or

• (b) charged on the estate or interest,

the scheme may contain provision for apportionment or division so that one part is payable in respect of, or charged on, only one part of the estate or interest and the other part is payable in respect of, or charged on, only the other part of the estate or interest.

• (5) A property arrangements scheme that contains provision which adversely affects a third party may also contain provision requiring the system operator or the relevant existing transmission licence holder to pay the third party compensation.

Applications for schemes

2

• (1) An application for the making of a property arrangements scheme may be made by—

• (a) the system operator, or

• (b) the relevant existing transmission licence holder.

• (2) No application for a property arrangements scheme may be made after the end of the period of three months beginning with the day on which section 141 comes into force.

• (3) An application for a property arrangements scheme shall specify the property, rights or liabilities in relation to which provision of a kind mentioned in paragraph 1(1) is proposed to be included in the scheme.

GEMA’s functions in relation to applications

3

• (1) On an application for the making of a property arrangements scheme, GEMA shall, in relation to any property, rights or liabilities in respect of which the application proposes provision of a kind mentioned in paragraph 1(1), determine whether provision of such a kind is, in relation to that property, or those rights or liabilities, necessary or expedient for implementation purposes.

• (2) Sub-paragraph (1) does not apply if the system operator and the relevant existing transmission licence holder agree that provision of a kind mentioned in paragraph 1(1) is, in relation to the property, rights or liabilities concerned, necessary or expedient for implementation purposes.

• (3) If GEMA determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is not, in relation to any property, rights or liabilities, necessary or expedient for implementation purposes, it shall refuse the application in relation to that property, or those rights or liabilities.

• (4) If—

• (a) GEMA determines under sub-paragraph (1) that provision of a kind mentioned in paragraph 1(1) is, in relation to any property, rights or liabilities, necessary or expedient for implementation purposes, or

• (b) the system operator and the relevant existing transmission licence holder agree that that is the case,

GEMA shall, subject to paragraph 4(2), make a property arrangements scheme in relation to that property, or those rights or liabilities.

4

• (1) Subject to the following provisions of this paragraph, where GEMA is required to make a property arrangements scheme, the terms of the scheme shall be such as the system operator and the relevant existing transmission licence holder may agree or, if they fail to agree, as GEMA may determine.

• (2) GEMA may not include in a property arrangements scheme provision which would adversely affect a third party unless it determines that it is necessary or expedient for implementation purposes for the provision to be made.

• (3) Where GEMA does include in a property arrangements scheme provision which would adversely affect a third party, GEMA shall determine whether the scheme should include provision for compensation and, if so, what that provision should be.

• (4) A property arrangements scheme shall not provide for any provision to come into operation before the end of the period of 21 days beginning with the day on which the scheme is made.

5

• (1) A determination under paragraph 4, so far as relating to any financial matter, shall be made on the basis of what is just in all the circumstances of the case.

• (2) A determination under paragraph 4, so far as relating to any other matter, shall be made on the basis of what appears to GEMA to be appropriate in all the circumstances of the case having regard, in particular, to what is necessary or expedient for implementation purposes.

6

GEMA may require any of the following persons to give it information and assistance in connection with the making of a determination under this Schedule—

• (a) the system operator,

• (b) any existing transmission licence holder, and

• (c) any person who makes representations to GEMA about the application to which the determination relates.

7

GEMA may engage such consultants as it thinks fit for the purpose of advising it in relation to the making of a determination under this Schedule.

Effect of property arrangements scheme

8

A property arrangements scheme shall, by virtue of this paragraph, have effect according to its terms.

9

• (1) A transaction of any description effected by or under a property arrangements scheme shall have effect subject to the provisions of any enactment which provides for transactions of that description to be registered in any statutory register.

• (2) Subject to sub-paragraph (1), a transaction of any description effected by or under a property arrangements scheme shall be binding on all persons, notwithstanding that it would, apart from this provision, have required the consent or concurrence of any person.

Review of determinations

10

• (1) Any person aggrieved by a determination of GEMA under this Schedule may apply to the Competition Appeal Tribunal for a review of the determination.

• (2) Subject to sub-paragraph (3), no application under sub-paragraph (1) may be made after the end of the period of 7 days beginning with the day on which the determination is made.

• (3) Where GEMA has made a property arrangements scheme, an application under sub-paragraph (1) may be made in respect of a determination relating to the scheme at any time before the end of the period of 7 days beginning with the day on which the scheme is made.

• (4) On an application under sub-paragraph (1), the Competition Appeal Tribunal may—

• (a) dismiss the application, or

• (b) make an order substituting its own determination.

11

• (1) This paragraph applies where—

• (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b), and

• (b) GEMA has not made a property arrangements scheme in relation to the property, rights or liabilities concerned.

• (2) The Tribunal may include in the order provision requiring GEMA to make a property arrangements scheme in relation to that property, or those rights or liabilities.

• (3) Where paragraph 4 applies because of provision under this paragraph, anything the Tribunal has determined shall be treated for the purposes of that paragraph as determined by GEMA.

12

• (1) This paragraph applies where—

• (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b),

• (b) GEMA has made a property arrangements scheme in relation to the property, rights or liabilities concerned, and

• (c) the scheme has not come into operation.

• (2) Where the Tribunal’s determination is that provision of the kind mentioned in paragraph 1(1) is not, in relation to the property, rights or liabilities concerned, necessary or expedient for implementation purposes, it may include in the order provision quashing the scheme.

• (3) In any other case, the Tribunal may include in the order—

• (a) provision for the scheme to have effect with such amendments with respect to any matter dealt with by GEMA’s determination as it thinks fit, and

• (b) to the extent that GEMA’s determination dealt with any financial matter, provision requiring GEMA to redetermine the matter in accordance with the order and to amend the scheme accordingly.

13

• (1) This paragraph applies where—

• (a) the Competition Appeal Tribunal makes an order under paragraph 10(4)(b),

• (b) GEMA has made a property arrangements scheme in relation to the property, rights or liabilities concerned, and

• (c) the scheme has come into operation.

• (2) The Tribunal may include in the order such provision as it thinks fit for the purpose of doing justice between—

• (a) the system operator,

• (b) the relevant existing transmission licence holder, and

• (c) any third party adversely affected by the scheme,

in the light of its determination.

• (3) Without prejudice to the generality of sub-paragraph (2), the Tribunal may include in the order—

• (a) provision for retransfer,

• (b) provision for the surrender or extinction of rights, and

• (c) provision for the payment of compensation.

14

An order under paragraph 10(4)(b) may include provision for the award of interest at such rate and for such period as the Competition Appeal Tribunal thinks fit.

15

Section 120(6) to (8) of the Enterprise Act 2002 (c. 40) (appeal with leave on point of law from decision of Competition Appeal Tribunal to Court of Appeal or Court of Session) shall apply in relation to decisions of the Tribunal under this Schedule as they apply in relation to decisions under that section.

Interim arrangements pending review of determination

16

• (1) This paragraph applies where—

• (a) a person makes an application under paragraph 10(1) for the review of a determination, and

• (b) GEMA has not made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates.

• (2) The Competition Appeal Tribunal may on application by the system operator or the relevant existing transmission licence holder make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.

• (3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power to make provision for the system operator to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.

• (4) No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made.

17

• (1) This paragraph applies where–

• (a) a person makes an application under paragraph 10(1) for the review of a determination, and

• (b) GEMA has made a property arrangements scheme in relation to the property, rights or liabilities to which the determination relates.

• (2) The Competition Appeal Tribunal may on application by—

• (a) the system operator,

• (b) the relevant existing transmission licence holder, or

• (c) a third party who is adversely affected by any provision of the scheme,

make such interim arrangements as it thinks fit with respect to the property, rights or liabilities concerned.

• (3) Without prejudice to the generality of sub-paragraph (2), the power under that sub-paragraph includes, in particular, power—

• (a) to make provision postponing or suspending the operation of any provision of the scheme for such period, and on such terms, as the Tribunal thinks fit;

• (b) to make provision for the system operator to have access to, or otherwise to enjoy the benefit of, any of the property or rights concerned for such period, and on such terms, as the Tribunal thinks fit.

• (4) No application under sub-paragraph (2) may be made after the end of the period of 7 days beginning with the day on which the application under paragraph 10(1) is made.

18

In exercising its powers under paragraph 16 or 17, the Competition Appeal Tribunal shall have regard, in particular, to what is necessary or expedient for implementation purposes.

19

Paragraphs 16 and 17 are without prejudice to any powers of the Competition Appeal Tribunal to make orders on an interim basis under rules under section 15 of the Enterprise Act 2002 (c. 40).

20

• (1) If an order under paragraph 16 or 17 is registered in England and Wales in accordance with rules of court or any practice direction, it shall be enforceable as an order of the High Court.

• (2) An order under paragraph 16 or 17 may be recorded for execution in the Books of Council and Session and shall be enforceable accordingly.

• (3) Subject to rules of court or any practice direction, an order under paragraph 16 or 17 may be registered or recorded for execution by a person entitled to any right under the interim arrangements for which the order makes provision.

• (4) Sub-paragraphs (1) to (3) apply to an order on an interim basis made under rules under section 15 of the Enterprise Act 2002 in connection with an application under paragraph 10(1) as they apply to an order under paragraph 16 or 17.

Supplementary

21

The Secretary of State may by order designate the holder of a transmission licence as the system operator for the purposes of this Schedule.

22

An application under this Schedule is not allowed to be made orally.

23

• (1) In this Schedule—

• “existing transmission licence” means a transmission licence which is in force immediately before the day on which section 136 comes into force;

• “implementation purposes” means the purposes of implementing the new trading and transmission arrangements in accordance with the timetable for implementation for the time being published by GEMA;

• “property arrangements scheme” has the meaning given by paragraph 1(2);

• “relevant existing transmission licence holder”, in relation to a property arrangements scheme, or an application for such a scheme, means the existing transmission licence holder to whose property, rights or liabilities the scheme, or application, relates;

• “system operator” means the person designated under paragraph 21;

• “third party”, in relation to a property arrangements scheme, means a person other than the system operator or the relevant existing transmission licence holder.

• (2) For the purposes of this Schedule, a provision of a property arrangements scheme adversely affects a third party if—

• (a) his consent or concurrence would be required to the making of the provision otherwise than by means of the scheme, and

• (b) he does not consent to the making of the provision by means of the scheme.

SCHEDULE 19

Water (Scotland) Act 1980 (c. 45)

1

In Schedule 4 to the Water (Scotland) Act 1980 (provisions to be incorporated in orders relating to statutory undertakers), in paragraph (b) of the proviso to section 36, for “transmit” substitute “ participate in the transmission of ”.

Telecommunications Act 1984 (c. 38)

2

In section 98(9) of the Telecommunications Act 1984, in the definition of “electricity authority”, for “transmit or supply”, where they first occur, substitute “ supply or participate in the transmission of ”.

Electricity Act 1989 (c. 29)

3

The 1989 Act is amended as follows.

4

In section 3A(5)(a), for “transmit, distribute or supply” substitute “ distribute, supply or participate in the transmission of ”.

5

In section 6 (licences authorising supply etc.), for subsection (7) substitute—

(7) A licence, and any modification of a licence under subsection (4), (6) or (6B), shall be in writing.

6

In section 6A (procedure for licence applications), in subsection (1) (applications to which the section applies), for paragraph (b) substitute—

(b) for the modification of a licence under section 6(4), (6) or (6B).

7

• (1) Section 6B (applications for transmission licence) is amended as follows.

• (2) For subsection (2) substitute—

(2) The applicant shall give notice of the application to any person who holds a transmission licence and whose interests may be affected if the licence applied for is granted.

• (3) In subsection (5)(c) (under which there is a duty to give notice of the proposed grant of an application to the holder of a transmission licence whose authorised area is affected by the area to which the application relates), for the words from “authorised area” to “area” substitute “ interests may be affected by the grant of the licence ”.

8

• (1) Section 9 (general duties of licence holders) is amended as follows.

• (2) In subsection (2) (duties of transmission licence holder), for “transmit” substitute “ participate in the transmission of ”.

• (3) After that subsection insert—

(2A) Subsection (2)(a) shall not have effect to require the holder of a transmission licence which is subject to a condition of the kind mentioned in section 7(2A)(a) to carry on an activity which he would be authorised by the licence to carry on apart from the condition.

9

• (1) Section 10 (powers of licence holders) is amended as follows.

• (2) In subsection (1)(a) (which applies Schedules 3 and 4 to a person authorised by a licence to transmit electricity), for the words from “a person” to “electricity” substitute “ the holder of a transmission licence ”.

• (3) For subsection (4) substitute—

(4) A transmission licence may provide that, where the licence is modified under section 6(6B), 11 or 11A above so as to reduce in any respect the area in which the licence holder may carry on activities, Schedule 4 to this Act shall have effect in relation to him as if any reference to the activities which he is authorised by his licence to carry on included a reference to the activities which he was previously so authorised to carry on.

10

In section 29 (regulations relating to supply and safety), in subsection (2)(c) (power to require persons to keep maps etc.), for “transmit” substitute “ participate in the transmission of ”.

11

In section 30 (electrical inspectors), in subsection (2)(a) (duty to inspect and test equipment belonging to certain persons), for “transmit or distribute” substitute “ distribute or participate in the transmission of ”.

12

• (1) Section 35 (which supplements section 34 about fuel stocks at generating stations) is amended as follows.

• (2) In subsection (1) (power to require information from any person authorised by a licence to transmit electricity), for “any person authorised by a licence to transmit electricity” substitute “ the holder of a transmission licence ”.

• (3) For subsection (2) substitute—

(2) The Secretary of State may give a direction requiring any person who is authorised by a licence to participate in the transmission of electricity to carry on the activities which the licence authorises (or any of them), at any time when a direction under section 34(4) above is in force, either in a specified manner or with a view to achieving specified objectives.

• (4) In subsection (3), for the words from “and”, in the second place where it occurs, to the end substitute “ and a person subject to a direction under subsection (2) above shall give effect to it notwithstanding any other duty imposed on him by or under this Part. ”

13

In section 43B (supplementary provision about orders under section 43A), in subsection (7) (definition of “authorised transmitter”), for “transmit” substitute “ participate in the transmission of ”.

14

In section 58 (directions restricting the use of certain information)—

• (a) in subsection (1), for “any person who is authorised by a licence to transmit electricity” substitute “ the holder of a transmission licence ”, and

• (b) in subsection (2), for “transmit or supply” substitute “ supply or participate in the transmission of ”.

15

• (1) Section 64 (interpretation of Part 1) is amended as follows.

• (2) In subsection (1), for the definition of “transmit” substitute—

“transmission”, in relation to electricity, has the meaning given by section 4(4) above; “transmission system” has the same meaning given by section 4(4) above;

.

• (3) Before subsection (2) insert—

(1B) In this Part, references to participation, in relation to the transmission of electricity, are to be construed in accordance with section 4(3A) and (3B) above.

16

In Schedule 9 (preservation of amenity and fisheries), in paragraphs 1(1) and 3(1), for “transmit, distribute or supply” substitute “ distribute, supply or participate in the transmission of ”.

Water Industry Act 1991 (c. 56)

17

In Schedule 13 to the Water Industry Act 1991 (protective provisions), in paragraph 1(5) (undertakings protected), in paragraph (f), for “transmit or supply” substitute “ supply or participate in the transmission of ”.

Water Resources Act 1991 (c. 57)

18

In Schedule 22 to the Water Resources Act 1991 (protective provisions), in paragraph 1(4) (undertakings protected), in paragraph (f), for “transmit or supply” substitute “ supply or participate in the transmission of ”.

Land Drainage Act 1991 (c. 59)

19

In Schedule 6 to the Land Drainage Act 1991 (protective provisions), in paragraph 1(1) (undertakings protected), in paragraph (f), for “transmit or supply” substitute “ supply or participate in the transmission of ”.

Utilities Act 2000 (c. 27)

20

In section 33(1) of the Utilities Act 2000 (which provides that conditions determined under that provision shall be standard conditions for the purposes of any of the types of licence mentioned in section 6(1) of the 1989 Act)—

• (a) for “6(1)” substitute “ 6(1)(a), (c) and (d) ”,

• (b) omit the words “transmission licences,”, and

• (c) for the words from “, subject” to the end substitute

be standard conditions for the purposes of licences of that type, subject to any modifications of the standard conditions for the purposes of licences of that type made— (a) under Part 1 of the 1989 Act after the determination under this section, or (b) under the Energy Act 2004.

SCHEDULE 20

Part 1 — Application of Schedule B1 to the 1986 Act

Application of Schedule B1 provisions

1

• (1) The provisions of Schedule B1 to the 1986 Act specified in paragraph 2 of this Schedule are to have effect in relation to energy administration orders—

• (a) as they have effect in relation to administration orders under that Schedule; but

• (b) with the modifications set out in Part 2 of this Schedule.

• (2) Those provisions as modified by Part 2 of this Schedule are to have effect in the case of a non-GB company with the further modifications for which provision is made by or under Part 3 of this Schedule.

2

Those provisions of Schedule B1 to the 1986 Act are paragraphs 1, 40 to 50, 54, 59 to 68, 70 to 75, 79, 83 to 91, 98 to 107 and 109 to 116.

Part 2 — Modifications of Schedule B1

Introductory

3

The modifications set out in this Part of this Schedule to the provisions of Schedule B1 to the 1986 Act specified in paragraph 2 apply where those provisions have effect by virtue of Part 1 of this Schedule.

General modifications of the applicable provisions

4

In those provisions—

• (a) for “administration application” in each place where it occurs substitute “ energy administration application ”;

• (b) for “administration order” in each place where it occurs substitute “ energy administration order ”;

• (c) for “administrator” in each place where it occurs substitute “ energy administrator ”;

• (d) for “enters administration” in each place where it occurs substitute “ enters energy administration ”;

• (e) for “in administration” in each place where it occurs substitute “ in energy administration ”;

• (f) for “purpose of administration” in each place where it occurs (other than in paragraph 111(1)) substitute “ objective of the energy administration ”.

Specific modifications

5

• (1) In paragraph 1, for sub-paragraph (1) (which defines “administrator”) substitute—

(1) In this Schedule “energy administrator”, in relation to a company, means a person appointed by the court for the purposes of an energy administration order to manage the company’s affairs, business and property.

• (2) In sub-paragraph (2) of that paragraph, for “Act” substitute “ Schedule ”.

6

In paragraph 40 (dismissal of pending winding-up petition), omit sub-paragraphs (1)(b), (2) and (3).

7

In paragraph 42 (moratorium on insolvency proceedings), omit sub-paragraphs (4) and (5).

8

In paragraph 44 (interim moratorium), omit sub-paragraphs (2) to (4), (6) and (7)(a) to (c).

9

In paragraph 46(6) (date for notifying administrator’s appointment), for paragraphs (a) to (c) substitute “ the date on which the energy administration order comes into force ”.

10

• (1) In sub-paragraph (2)(b) of paragraph 49 (administrator’s proposals) for “objective mentioned in paragraph 3(1)(a) or (b) cannot be achieved” substitute “ objective of the energy administration should be achieved by means other than just a rescue of the company as a going concern ”.

• (2) After sub-paragraph (4)(a) of that paragraph insert—

(aa) to the Secretary of State and to GEMA,

.

11

For paragraph 54 (revision of administrator’s proposals) substitute—

(54) (1) The energy administrator of a company may on one or more occasions revise the proposals included in the statement made under paragraph 49 in relation to the company. (2) Where the energy administrator thinks that a revision by him is substantial, he must send a copy of the revised proposals— (a) to the registrar of companies, (b) to the Secretary of State and to GEMA, (c) to every creditor of the company of whose claim and address he is aware, and (d) to every member of the company of whose address he is aware. (3) A copy sent in accordance with sub-paragraph (2) must be sent within the prescribed period. (4) The energy administrator is to be taken to have complied with sub-paragraph (2)(d) if he publishes, in the prescribed manner, a notice undertaking to provide a copy of the revised proposals free of charge to any member of the company who applies in writing to a specified address. (5) The energy administrator commits an offence if he fails without reasonable excuse to comply with this paragraph.

12

In paragraph 60 (powers of an administrator), the existing text is to be sub-paragraph (1) and after that sub-paragraph insert—

(2) The energy administrator of a company has the power to act on behalf of the company for the purposes of any enactment or subordinate legislation which confers a power on the company, or imposes a duty on it. (3) In sub-paragraph (2) “enactment” has the same meaning as in the Energy Act 2004.

13

• (1) In paragraph 68 (management duties of an administrator), for sub-paragraph (1)(a) to (c) substitute

the proposals as— (a) set out in the statement made under paragraph 49 in relation to the company, and (b) from time to time revised under paragraph 54, for achieving the objective of the energy administration.

• (2) For sub-paragraph (3)(a) to (d) of that paragraph substitute “ the directions are consistent with the achievement of the objective of the energy administration ”.

14

In paragraphs 71(3)(b) and 72(3)(b) (handling of secured property), for “market” substitute “ the appropriate ”.

15

In paragraph 73(3) (which contains a reference to the administrator’s proposals), for “or modified” substitute “ under paragraph 54 ”.

16

• (1) In paragraph 74 (challenge to administrator’s conduct), for sub-paragraph (2) substitute—

(2) Where a company is in energy administration, a person mentioned in sub-paragraph (2A) may apply to the court claiming that the energy administrator is conducting himself in a manner preventing the achievement of the objective of the energy administration as quickly and efficiently as is reasonably practicable. (2A) The persons who may apply to the court under sub-paragraph (2) are— (a) the Secretary of State; (b) with the consent of the Secretary of State, GEMA; (c) a creditor or member of the company.

• (2) In sub-paragraph (6) of that paragraph, for paragraphs (a) to (c) substitute—

(a) a voluntary arrangement approved under Part 1, or (b) a compromise or arrangement sanctioned under section 899 or 901F of the Companies Act 2006 (compromise with creditors and members).

• (3) After that sub-paragraph insert—

(7) In the case of a claim made otherwise than by the Secretary of State or GEMA, the court may grant a remedy or relief or make an order under this paragraph only if it has given the Secretary of State or GEMA a reasonable opportunity of making representations about the claim and the proposed remedy, relief or order. (8) The court may grant a remedy or relief or make an order on an application under this paragraph only if it is satisfied, in relation to the matters that are the subject of the application, that the energy administrator— (a) is acting, (b) has acted, or (c) is proposing to act, in a way that is inconsistent with the achievement of the objective of the energy administration as quickly and as efficiently as is reasonably practicable. (9) Before the making of an order of the kind mentioned in sub-paragraph (4)(d)— (a) the court must notify the energy administrator of the proposed order and of a period during which he is to have the opportunity of taking steps falling within sub-paragraphs (10) to (12); and (b) the period notified must have expired without the taking of such of those steps as the court thinks should have been taken; and that period must be a reasonable period. (10) In the case of a claim under sub-paragraph (1)(a), the steps referred to in sub-paragraph (9) are— (a) ceasing to act in a manner that unfairly harms the interests to which the claim relates; (b) remedying any harm unfairly caused to those interests; and (c) steps for ensuring that there is no repetition of conduct unfairly causing harm to those interests. (11) In the case of a claim under sub-paragraph (1)(b), the steps referred to in sub-paragraph (9) are steps for ensuring that the interests to which the claim relates are not unfairly harmed. (12) In the case of a claim under sub-paragraph (2), the steps referred to in sub-paragraph (9) are— (a) ceasing to act in a manner preventing the achievement of the objective of the energy administration as quickly and as efficiently as is reasonably practicable; (b) remedying the consequences of the energy administrator having acted in such a manner; and (c) steps for ensuring that there is no repetition of conduct preventing the achievement of the objective of the energy administration as quickly and as efficiently as is reasonably practicable.

17

In paragraph 75(2) (misfeasance), after paragraph (b) insert—

(ba) a person appointed as an administrator of the company under the provisions of this Act, as they have effect in relation to administrators other than energy administrators,

.

18

• (1) In paragraph 79 (end of administration), for sub-paragraphs (1) and (2) substitute—

(1) On an application made by a person mentioned in sub-paragraph (2), the court may provide for the appointment of an energy administrator of a company to cease to have effect from a specified time. (2) An application may be made to the court under this paragraph— (a) by the Secretary of State, (b) with the consent of the Secretary of State, by GEMA, or (c) with the consent of the Secretary of State, by the energy administrator.

• (2) Omit sub-paragraph (3) of that paragraph.

19

In paragraph 83(3) (notice to registrar when moving to voluntary liquidation), after “may” insert “ , with the consent of the Secretary of State or of GEMA, ”.

20

• (1) In paragraph 84 (notice to registrar when moving to dissolution), in sub-paragraph (1), for “to the registrar of companies” substitute—

(a) to the Secretary of State and to GEMA; and (b) if directed to do so by either the Secretary of State or GEMA, to the registrar of companies.

• (2) Omit sub-paragraph (2) of that paragraph.

• (3) In sub-paragraphs (3) to (6) of that paragraph, for “(1)”, wherever occurring, substitute “ (1)(b) ”.

21

In paragraph 87 (resignation of administrator), for sub-paragraph (2)(a) to (d) substitute “ by notice in writing to the court ”.

22

In paragraph 89 (administrator ceasing to be qualified), for sub-paragraph (2)(a) to (d) substitute “ to the court ”.

23

In paragraph 90 (filling vacancy in office of administrator), for “Paragraphs 91 to 95 apply” substitute “ Paragraph 91 applies ”.

24

• (1) In paragraph 91 (vacancies in court appointments), for sub-paragraph (1) substitute—

(1) The court may replace the energy administrator on an application made— (a) by the Secretary of State; (b) with the consent of the Secretary of State, by GEMA; or (c) where more than one person was appointed to act jointly as the energy administrator, by any of those persons who remains in office.

• (2) Omit sub-paragraph (2) of that paragraph.

25

In paragraph 98 (discharge from liability on vacation of office), omit sub-paragraphs (2)(b) and (3).

26

• (1) In paragraph 99 (charges and liabilities upon vacation of office by administrator), in sub-paragraph (4), for the words from the beginning to “cessation”, where first occurring, substitute “ A sum falling within sub-paragraph (4A) ”.

• (2) After that sub-paragraph insert—

(4A) A sum falls within this sub-paragraph if it is— (a) a sum payable in respect of a debt or liability arising out of a contract that was entered into before cessation by the former energy administrator or a predecessor; (b) a sum that must be repaid by the company in respect of a grant that was made before cessation under section 165 of the Energy Act 2004 as is mentioned in subsection (4) of that section; (c) a sum that must be repaid by the company in respect of a loan made before cessation under that section or that must be paid by the company in respect of interest payable on such a loan; (d) a sum payable by the company under subsection (4) of section 166 of that Act in respect of an agreement to indemnify made before cessation; or (e) a sum payable by the company under subsection (5) of section 167 of that Act in respect of a guarantee given before cessation.

• (3) In sub-paragraph (5) of that paragraph, for “(4)” substitute “ (4A)(a) ”.

27

In paragraph 100 (joint and concurrent administrators), omit sub-paragraph (2).

28

In paragraph 101(3) (joint administrators), after “87 to” insert “ 91, 98 and ”.

29

• (1) In paragraph 103 (appointment of additional administrators), in sub-paragraph (2)—

• (a) omit the words from the beginning to “order”;

• (b) for paragraph (a) substitute—

(a) the Secretary of State, (aa) GEMA, or

.

• (2) After that sub-paragraph insert—

(2A) The consent of the Secretary of State is required for an application by GEMA for the purposes of sub-paragraph (2).

• (3) Omit sub-paragraphs (3) to (5) of that paragraph.

30

In paragraph 106 (penalties), omit sub-paragraph (2)(a), (b), (f), (g), (i) and (l) to (n).

31

In paragraph 109 (references to extended periods), omit “or 108”.

32

• (1) In sub-paragraph (1) of paragraph 111 (interpretation)—

• (a) omit the definitions of “correspondence”, “holder of a qualifying floating charge”, “market value”, “the purpose of administration” and “unable to pay its debts”;

• (b) after the definition of “administrator” (as amended by virtue of paragraph 4 of this Schedule) insert—

“appropriate value” means the best price which would be reasonably available on a sale which is consistent with the achievement of the objective of the energy administration;

• (c) for the definition of “company” substitute—

“company”, “court” and “energy administration order” have the same meanings as in Chapter 3 of Part 3 of the Energy Act 2004;

• (d) after the definition of “creditors' meeting” insert—

“energy administration application” means an application to the court for an energy administration order under Chapter 3 of Part 3 of the Energy Act 2004; “GEMA” means the Gas and Electricity Markets Authority;

• (e) after the definition of “hire purchase agreement” insert—

“objective”, in relation to an energy administration, is to be construed in accordance with section 155 of the Energy Act 2004; “prescribed” means prescribed by energy administration rules within the meaning of Chapter 3 of Part 3 of the Energy Act 2004;

.

• (2) After sub-paragraph (3) of that paragraph insert—

(4) For the purposes of this Schedule a reference to an energy administration order includes a reference to an appointment under paragraph 91 or 103.

Part 3 — Further Schedule B1 modifications for non-GB companies

Introductory

33

• (1) Where the provisions of Schedule B1 to the 1986 Act specified in paragraph 2 of this Schedule (as modified by Part 2 of this Schedule) have effect in relation to a non-GB company, they shall do so subject to the further modifications that are set out—

• (a) in this Part of this Schedule; or

• (b) in an order made by the Secretary of State for the purposes of this paragraph.

• (2) An order under this paragraph may include modifications of paragraphs 35 to 40.

• (3) An order under this paragraph is subject to the negative resolution procedure.

34

In paragraphs 35 to 40—

• (a) the provisions of Schedule B1 to the 1986 Act that are specified in paragraph 2 are referred to as the applicable provisions; and

• (b) references to those provisions, or to provisions comprised in them, are references to those provisions as modified by Part 2 of this Schedule.

Modifications

35

In the case of a non-GB company—

• (a) paragraphs 42(2), 83 and 84 of Schedule B1 to the 1986 Act do not apply;

• (b) paragraphs 46(4), 49(4)(a), 54(2)(a), 71(5) and (6), 72(4) and (5) and 86 of that Schedule apply only if the company is subject to a requirement imposed by regulations under section 1043 or 1046 of the Companies Act 2006 (unregistered UK companies or overseas companies); and

• (c) paragraph 61 of that Schedule does not apply ....

36

• (1) The applicable provisions and Schedule 1 to the 1986 Act (as applied by paragraph 60(1) of Schedule B1 to that Act) are to be construed ... by reference to the limitation imposed upon the scope of the energy administration order in question by virtue of section 154(4) of this Act.

• (2) Sub-paragraph (1) has effect, in particular, so that—

• (a) a power conferred, or duty imposed, upon the energy administrator by or under the applicable provisions or Schedule 1 to the 1986 Act is to be construed as being conferred or imposed only in relation to the affairs and business of the company so far as carried on in Great Britain and to its property in Great Britain;

• (b) references to the affairs, business or property of the company are to be construed as references to its affairs or business so far as carried on in Great Britain or to its property in Great Britain;

• (c) references to goods in the company’s possession are to be construed as references to goods in the possession of the company in Great Britain;

• (d) references to premises let to the company are to be construed as references to premises let to the company in Great Britain;

• (e) references to legal process instituted or continued against the company or property of the company are to be construed as references to such legal process relating to the affairs or business of the company so far as carried on in Great Britain or to its property in Great Britain.

37

• (1) Paragraph 41 of Schedule B1 to the 1986 Act (dismissal of receivers) has effect ... as if—

• (a) for sub-paragraph (1) there were substituted the sub-paragraphs set out in sub-paragraph (2) of this paragraph; and

• (b) sub-paragraphs (2) to (4) of that paragraph were omitted.

• (2) The sub-paragraphs treated as substituted for paragraph 41(1) are—

(1) Where an energy administration order takes effect in respect of a company— (a) a person appointed to perform functions equivalent to those of an administrative receiver, and (b) if the energy administrator so requires, a person appointed to perform functions equivalent to those of a receiver, shall refrain, during the period specified in sub-paragraph (1A), from performing those functions in Great Britain or in relation to any of the company’s property in Great Britain. (1A) That period is— (a) in the case of a person mentioned in sub-paragraph (1)(a), the period while the company is in energy administration; and (b) in the case of a person mentioned in sub-paragraph (1)(b), during so much of that period as is after the date on which he is required by the energy administrator to refrain from performing his functions.

38

Paragraph 43(6A) of Schedule B1 to the 1986 Act (moratorium on appointment to receiverships) has effect ... as if for “An administrative receiver” there were substituted “ A person with functions equivalent to those of an administrative receiver ”.

39

Paragraph 44(7) of Schedule B1 to the 1986 Act (proceedings to which interim moratorium does not apply) has effect ... as if for paragraph (d) there were substituted—

(d) the carrying out of his functions by a person who (whenever his appointment) has functions equivalent to those of an administrative receiver of the company.

40

Paragraph 64 of Schedule B1 to the 1986 Act (general powers of administrator) has effect ... as if—

• (a) in sub-paragraph (1), after “power” there were inserted “ in relation to the affairs or business of the company so far as carried on in Great Britain or to its property in Great Britain ”; and

• (b) in sub-paragraph (2)(b), after “instrument” there were inserted “ or by the law of the place where the company is incorporated ”.

Part 4 — Other modifications

General modifications

41

• (1) Subject to paragraph 42, every reference falling within sub-paragraph (2) which is contained—

• (a) in a provision of the 1986 Act (other than Schedule B1), or

• (b) in any other enactment passed before this Act,

shall have effect as including a reference to whatever corresponds to it for the purposes of this paragraph.

• (2) Those references are those (however expressed) which are or include references to—

• (a) an administrator appointed by an administration order;

• (b) an administration order;

• (c) an application for an administration order;

• (d) a company in administration;

• (e) entering into administration;

• (f) Schedule B1 or a provision of that Schedule.

• (3) For the purposes of this paragraph—

• (a) an energy administrator corresponds to an administrator appointed by an administration order;

• (b) an energy administration order corresponds to an administration order;

• (c) an application for an energy administration order corresponds to an application for an administration order;

• (d) a company in energy administration corresponds to a company in administration;

• (e) entering into energy administration corresponds to entering into administration;

• (f) what corresponds to Schedule B1 or a provision of that Schedule is that Schedule or that provision as applied by Part 1 of this Schedule.

42

• (1) Paragraph 41, in its application to section 1(3) of the 1986 Act, does not entitle the energy administrator of an unregistered company to make a proposal under Part 1 of that Act (company voluntary arrangements).

• (2) Paragraph 41 does not confer any right under section 7(4) of the 1986 Act (implementation of voluntary arrangements) for a supervisor of voluntary arrangements to apply for an energy administration order in relation to a protected energy company.

• (3) Paragraph 41 does not apply to section 359 of the Financial Services and Markets Act 2000 (c. 8) (administration order).

Modifications of 1986 Act

43

In section 5 of the 1986 Act (effect of approval of voluntary arrangements) after subsection (4) insert—

(5) Where the company is in energy administration, the court shall not make an order or give a direction under subsection (3) unless— (a) the court has given the Secretary of State or the Gas and Electricity Markets Authority a reasonable opportunity of making representations to it about the proposed order or direction; and (b) the order or direction is consistent with the objective of the energy administration. (6) In subsection (5) “in energy administration” and “objective of the energy administration” are to be construed in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the Energy Act 2004.

44

• (1) Section 6 of that Act (challenge of decisions in relation to voluntary arrangements) is amended as follows.

• (2) In subsection (2) for “this section” substitute “ subsection (1) ”.

• (3) After that subsection insert—

(2A) Subject to this section, where a voluntary arrangement in relation to a company in energy administration is approved at the meetings summoned under section 3, an application to the court may be made— (a) by the Secretary of State, or (b) with the consent of the Secretary of State, by the Gas and Electricity Markets Authority, on the ground that the voluntary arrangement is not consistent with the achievement of the objective of the energy administration.

• (4) In subsection (4) after “subsection (1)” insert “ or, in the case of an application under subsection (2A), as to the ground mentioned in that subsection ”.

• (5) After subsection (7) insert—

(8) In this section “in energy administration” and “objective of the energy administration” are to be construed in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the Energy Act 2004.

45

In section 129(1A) of that Act (commencement of winding up), the reference to paragraph 13(1)(e) of Schedule B1 includes a reference to section 157(1)(e) of this Act.

Power to make further modifications

46

• (1) The Secretary of State may by order make such modifications of—

• (a) the 1986 Act, or

• (b) any other enactment passed before this Act that relates to insolvency or makes provision by reference to anything that is or may be done under the 1986 Act,

as he considers appropriate in relation to any provision made by or under this Chapter (including this Chapter as applied by section 96 of the Energy Act 2011).

• (2) An order under this paragraph may also make modifications of this Part of this Schedule.

• (3) The power to make an order containing provision authorised by this paragraph is subject to the affirmative resolution procedure.

Interpretation of Part 4 of Schedule

47

In this Part of this Schedule—

• “administration order”, “administrator”, “enters administration” and “in administration” are to be construed in accordance with Schedule B1 (disregarding Part 1 of this Schedule);

• “enters energy administration” and “in energy administration” are to be construed in accordance with Schedule B1 (as applied by Part 1 of this Schedule);

• “Schedule B1” means Schedule B1 to the 1986 Act.

SCHEDULE 21

Application of Schedule

1

This Schedule applies where—

• (a) the court has made an energy administration order in relation to a company (the “old energy company”); and

• (b) it is proposed that a transfer falling within section 155(3) be made to another company (the “new energy company”).

2

It is for the energy administrator, while the energy administration order is in force, to act on behalf of the old energy company in the doing of anything that it is authorised or required to do by or under this Schedule.

Making of energy transfer schemes

3

• (1) The old energy company may—

• (a) with the consent of the new energy company, and

• (b) for the purpose of giving effect to the proposed transfer,

make a scheme under this Schedule for the transfer of property, rights and liabilities from the old energy company to the new energy company (an “energy transfer scheme”).

• (2) Such a scheme may be made only at a time when the energy administration order is in force in relation to the old energy company.

• (3) An energy transfer scheme may set out the property, rights and liabilities to be transferred in one or more of the following ways—

• (a) by specifying or describing them in particular;

• (b) by identifying them generally by reference to, or to a specified part of, the undertaking of the old energy company; or

• (c) by specifying the manner in which they are to be determined.

• (4) An energy transfer scheme shall take effect in accordance with paragraph 8 at the time appointed by the court.

• (5) But the court must not appoint a time for a scheme to take effect unless that scheme has been approved by the Secretary of State.

• (6) The Secretary of State may modify an energy transfer scheme before approving it, but only modifications to which both the old energy company and the new energy company have consented may be made.

• (7) In deciding whether to approve an energy transfer scheme, the Secretary of State must have regard, in particular, to—

• (a) the public interest; and

• (b) the effect the scheme is likely to have (if any) upon the interests of third parties.

• (8) Before approving an energy transfer scheme, the Secretary of State must consult GEMA.

• (9) The old energy company and the new energy company each have a duty to provide the Secretary of State with all information and other assistance that he may reasonably require for the purposes of, or in connection with, the exercise of the powers conferred on him by this paragraph.

Provision that may be made by a scheme

4

• (1) An energy transfer scheme may contain provision—

• (a) for the creation, in favour of the old energy company or the new energy company, of an interest or right in or in relation to property transferred in accordance with the scheme;

• (b) for giving effect to a transfer to the new energy company by the creation, in favour of that company, of an interest or right in or in relation to property retained by the old energy company;

• (c) for the creation of new rights and liabilities (including rights of indemnity and duties to indemnify) as between the old energy company and the new energy company;

• (d) in connection with any provision made under this sub-paragraph, provision making incidental provision as to the interests, rights and liabilities of other persons with respect to the property, rights and liabilities to which the scheme relates.

• (2) The property, rights and liabilities of the old energy company that may be transferred in accordance with an energy transfer scheme include—

• (a) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the old energy company;

• (b) property acquired, and rights and liabilities arising, in the period after the making of the scheme but before it takes effect;

• (c) rights and liabilities arising after it takes effect in respect of matters occurring before it takes effect;

• (d) property situated anywhere in Great Britain or elsewhere;

• (e) rights and liabilities under the law of a part of Great Britain or of a place outside Great Britain;

• (f) rights and liabilities under an enactment... or subordinate legislation.

• (3) The transfers to which effect may be given by an energy transfer scheme include transfers of interests and rights that are to take effect in accordance with the scheme as if there were—

• (a) no such requirement to obtain a person’s consent or concurrence,

• (b) no such liability in respect of a contravention of any other requirement, and

• (c) no such interference with any interest or right,

as there would be, in the case of a transaction apart from this Act, by reason of a provision falling within sub-paragraph (4).

• (4) A provision falls within this sub-paragraph to the extent that it has effect (whether under an enactment or agreement or otherwise) in relation to the terms on which the old energy company is entitled, or subject, to anything to which the transfer relates.

• (5) Sub-paragraph (6) applies where (apart from that sub-paragraph) a person would be entitled, in consequence of anything done or likely to be done by or under this Act in connection with an energy transfer scheme—

• (a) to terminate, modify, acquire or claim an interest or right; or

• (b) to treat an interest or right as modified or terminated.

• (6) That entitlement—

• (a) shall not be enforceable in relation to that interest or right until after the transfer of the interest or right by the scheme; and

• (b) shall then be enforceable in relation to the interest or right only in so far as the scheme contains provision for the interest or right to be transferred subject to whatever confers that entitlement.

• (7) Sub-paragraphs (3) to (6) have effect where shares in a subsidiary of the old energy company are transferred—

• (a) as if the reference in sub-paragraph (4) to the terms on which the old energy company is entitled or subject to anything to which the transfer relates included a reference to the terms on which the subsidiary is entitled or subject to anything immediately before the transfer takes effect; and

• (b) in relation to an interest or right of the subsidiary, as if the references in sub-paragraph (6) to the transfer of the interest or right included a reference to the transfer of the shares.

• (8) Sub-paragraphs (3) and (4) apply to the creation of an interest or right by an energy transfer scheme as they apply to the transfer of an interest or right.

Transfer of licences

5

• (1) The provision that may be made by an energy transfer scheme includes the transfer of a relevant licence from the old energy company to the new energy company.

• (2) Such a transfer may relate to the whole or any part of the licence.

• (3) Where such a transfer relates to a part of the licence, the provision made under sub-paragraph (1) may include—

• (a) provision apportioning responsibility between the old energy company and the new energy company in relation to—

• (i) the making of payments required by conditions included in the licence;

• (ii) ensuring compliance with any other requirements of the conditions included in the licence; and

• (b) provision making incidental modifications to the terms and conditions of the licence.

• (4) References in this paragraph to a part of a licence are references to one or both of—

• (a) a part of the activities authorised by the licence;

• (b) a part of the area in relation to which the holder of the licence is authorised to carry on those activities.

Powers and duties under statutory provisions

6

• (1) The provision that may be made by an energy transfer scheme includes provision for some or all of the powers and duties to which this paragraph applies—

• (a) to be transferred to the new energy company; or

• (b) to become powers and duties that are exercisable, or must be performed, concurrently by the old energy company and the new energy company.

• (2) Provision falling within sub-paragraph (1) may apply to powers and duties only in so far as they are exercisable or required to be performed in the area specified or described in the provision.

• (3) The powers and duties to which this paragraph applies are the powers and duties conferred or imposed upon the old energy company by or under an enactment, so far as those powers and duties are connected with—

• (a) the undertaking of the old energy company to the extent the energy transfer scheme relates to that undertaking; or

• (b) any property, rights or liabilities to be transferred in accordance with the scheme.

• (4) The powers and duties mentioned in sub-paragraph (3) include, in particular, powers and duties relating to the carrying out of works or the acquisition of land.

Supplemental provisions relating to transfers

7

• (1) An energy transfer scheme may make incidental, supplemental, consequential and transitional provision in connection with the other provisions of the scheme.

• (2) Such provision may include different provision for different cases or different purposes.

• (3) In particular, an energy transfer scheme may make provision, in relation to a provision of the scheme—

• (a) for the new energy company to be treated as the same person in law as the old energy company;

• (b) for agreements made, transactions effected or other things done by or in relation to the old energy company to be treated, so far as may be necessary for the purposes of or in connection with a transfer in accordance with the scheme, as made, effected or done by or in relation to the new energy company;

• (c) for references in an agreement, instrument or other document to the old energy company or to an employee or office holder with the old energy company to have effect, so far as may be necessary for the purposes of or in connection with a transfer in accordance with the scheme, with such modifications as are specified in the scheme;

• (d) that the effect of any transfer in accordance with the scheme in relation to contracts of employment with the old energy company is not to terminate any of those contracts but is to be that periods of employment with that company are to count for all purposes as periods of employment with the new energy company;

• (e) for proceedings commenced by or against the old energy company to be continued by or against the new energy company.

• (4) Sub-paragraph (3)(c) does not apply to references in an enactment or in subordinate legislation.

• (5) An energy transfer scheme may make provision for disputes as to the effect of the scheme between the old energy company and the new energy company to be referred to such arbitration as may be specified in or determined under the scheme.

• (6) Where a person is entitled, in consequence of an energy transfer scheme, to possession of a document relating in part to the title to land or other property in England and Wales, or to the management of such land or other property—

• (a) the scheme may provide for that person to be treated as having given another person an acknowledgement in writing of the right of that other person to production of the document and to delivery of copies of it; and

• (b) section 64 of the Law of Property Act 1925 (c. 20) (production and safe custody of documents) shall have effect accordingly, and on the basis that the acknowledgement did not contain an expression of contrary intention.

• (7) Where a person is entitled, in consequence of an energy transfer scheme, to possession of a document relating in part to the title to land or other property in Scotland or to the management of such land or other property, subsections (1) and (2) of section 16 of the Land Registration (Scotland) Act 1979 (c. 33) (omission of certain clauses in deeds) shall have effect in relation to the transfer—

• (a) as if the transfer had been effected by deed; and

• (b) as if the words “unless specially qualified” were omitted from each of those subsections.

• (8) In this paragraph references to a transfer in accordance with an energy transfer scheme include references to the creation in accordance with such a scheme of an interest, right or liability.

Effect of scheme

8

• (1) In relation to each provision of an energy transfer scheme for the transfer of property, rights or liabilities, or for the creation of interests, rights or liabilities—

• (a) this Act shall have effect so as, without further assurance, to vest the property or interests, or those rights or liabilities, in the transferee at the time appointed by the court for the purposes of paragraph 3(4); and

• (b) the provisions of that scheme in relation to that property or those interests, or those rights or liabilities, shall have effect from that time.

• (2) In this paragraph “the transferee”—

• (a) in relation to property, rights or liabilities transferred by an energy transfer scheme, means the new energy company; and

• (b) in relation to interests, rights or liabilities created by such a scheme, means the person in whose favour, or in relation to whom, they are created.

• (3) In its application to Scotland, sub-paragraph (1) has effect with the omission of the words “without further assurance”.

Subsequent modification of scheme

9

• (1) The Secretary of State may by notice to the old energy company and the new energy company modify an energy transfer scheme after it has taken effect, but only modifications to which both the old energy company and the new energy company have consented may be made.

• (2) The notice must specify the time at which it is to take effect (the “modification time”).

• (3) Where a notice is issued under this paragraph in relation to an energy transfer scheme, as from the modification time, the scheme shall for all purposes be treated as having taken effect, at the time appointed for the purposes of paragraph 3(4), with the modifications made by the notice.

• (4) Those modifications may make—

• (a) any provision that could have been included in the scheme when it took effect at the time appointed for the purposes of paragraph 3(4); and

• (b) transitional provision in connection with provision falling within paragraph (a).

• (5) In deciding whether to modify an energy transfer scheme, the Secretary of State must have regard, in particular, to—

• (a) the public interest; and

• (b) the effect the modification is likely to have (if any) upon the interests of third parties.

• (6) Before modifying an energy transfer scheme that has taken effect, the Secretary of State must consult GEMA.

• (7) The old energy company and the new energy company each have a duty to provide the Secretary of State with all information and other assistance that he may reasonably require for the purposes of, or in connection with, the exercise of the powers conferred on him by this paragraph.

Transfers in the case of non-GB companies

10

Where the old energy company is a non-GB company, the property, rights and liabilities of that company which may be transferred by an energy transfer scheme, or in relation to which interests, rights or liabilities may be created by such a scheme, are confined to—

• (a) property of the old energy company in Great Britain;

• (b) rights and liabilities arising in relation to any such property; and

• (c) rights and liabilities arising in connection with the affairs and business of the company so far as carried on in Great Britain.

Provision relating to foreign property etc.

11

• (1) Where there is a transfer in accordance with an energy transfer scheme of—

• (a) any foreign property, or

• (b) a foreign right or liability,

the old energy company and the new energy company must each take all requisite steps to secure that the vesting of the foreign property, right or liability in the new energy company is effective under the relevant foreign law.

• (2) Until the vesting of the foreign property, right or liability in the new energy company in accordance with the energy transfer scheme is effective under the relevant foreign law, the old energy company must—

• (a) hold the property or right for the benefit of the new energy company; or

• (b) discharge the liability on behalf of the new energy company.

• (3) The old energy company must comply with any directions given to it by the new energy company in relation to the performance of the obligations under sub-paragraphs (1) and (2) of the old energy company.

• (4) Nothing in sub-paragraphs (1) to (3) prejudices the effect under the law of a part of Great Britain of the vesting of a foreign property, right or liability in the new energy company in accordance with an energy transfer scheme.

• (5) Where—

• (a) any foreign property, right or liability is acquired or incurred in respect of any other property, right or liability by a company, and

• (b) by virtue of this paragraph, the company holds the other property or right for the benefit of the new energy company or is required to discharge the liability on behalf of the new energy company,

the property, right or liability acquired or incurred shall immediately become the property, right or liability of the new energy company.

• (6) The provisions of sub-paragraphs (1) to (5) shall have effect in relation to foreign property, rights or liabilities transferred to the new energy company under sub-paragraph (5) as they have effect in the case of property, rights and liabilities transferred in accordance with an energy transfer scheme.

• (7) References in this paragraph to foreign property, or to a foreign right or liability, are references to any property, right or liability as respects which an issue arising in any proceedings would be determined (in accordance with the rules of private international law) by reference to the law of a country or territory outside Great Britain.

• (8) Expenses incurred under this paragraph by a company as the company from which anything is transferred shall be met by the new energy company.

• (9) An obligation imposed under this paragraph in relation to property, rights or liabilities shall be enforceable as if contained in a contract between the old energy company and the new energy company.