Part 3: Special Administration Regime Section 33: Application of certain provisions of the Energy Act 2004
This section through subsection (1) to (7) applies and modifies as necessary sections 156 to 167, 171 and 196 of, and Schedules 20 and 21 to, the Energy Act 2004 to apply those provisions to the SAR for relevant licensee nuclear companies. Those provisions will apply as follows in relation to Part 3 of this Act:
Section 156 of the Energy Act 2004, which provides that an application to the court for a RLNC administration order can only be made by the Secretary of State or by the Authority, with the consent of the Secretary of State;
Section 157 of the Energy Act 2004, which empowers the court to consider an application for a RLNC administration order. The court may make an order in the following circumstances:
The relevant licensee nuclear company is unable to pay its debts;
The relevant licensee nuclear company is likely to be unable to pay its debts; or
on petition from the Secretary of State under section 124A of the Insolvency Act 1986, the court is satisfied that it would be just and equitable (disregarding the objective in section 31(1)) to wind up the company in the public interest;
Section 158 which provides that the nuclear administrator acts as the agent of the relevant licensee nuclear company. It further provides that the nuclear administrator must exercise management functions for the purpose of achieving the objective of RLNC administration as quickly and efficiently as is reasonably practicable. Moreover, the exercise of powers and performance of duties must be carried out in a manner which, in so far as it is consistent with the objective of the RLNC administration, best protects the interests of the creditors of the company as a whole and, subject to those interests, the interests of the members of the company as a whole;
Section 159 which applies the rule making power in section 411 of the Insolvency Act 1986 (c.45). Schedule 20 provides for certain provisions, with modifications, of Schedule B1 to the Insolvency Act 1986 (covering detailed rules relating to administration) to have effect in relation to RLNC administration orders;
the Sections 160 to 164, which prevent the SAR being frustrated by the granting of prior orders before the Secretary of State or the Authority have been given an opportunity to apply for an RLNC administration order;
Section 165 which enables the Secretary of State, with the consent of the Treasury, to give a grant or loan to a company in RLNC administration to achieve the objective of administration. It also enables the Secretary of State to set the terms of a grant or loan including the requirement that all or part of a grant should be repaid;
Section 166 which enables the Secretary of State, with the consent of the Treasury, to indemnify persons in respect of liabilities incurred or loss or damage sustained in connection with the exercise of a nuclear administrator’s powers and duties and requires the Secretary of State to lay a statement of any such agreement to indemnify persons before Parliament as soon as practicable;
Section 167 which enables the Secretary of State, with the consent of the Treasury, to provide guarantees in relation to a relevant licensee nuclear company in RLNC administration and requires the Secretary of State to lay a statement of any guarantees given before Parliament as soon as practicable;
Section 171 which provides interpretations of various specific terms and Section 196 which provides interpretations of various general terms.
Schedule 20 provides for certain provisions, with modifications, of Schedule B1 to the Insolvency Act 1986 (covering detailed rules relating to administration) to have effect in relation to RLNC administration. This includes the court ending a RLNC administration order on the application of the Secretary of State (or the Authority or the nuclear administrator, with the Secretary of State’s permission). This may happen in circumstances where the objective of the order has been achieved, or where the objective has not been achieved and a Nuclear Transfer Scheme may need to follow;
Schedule 21, which provides for the transfers to another company or companies as a going concern of the whole or part of a relevant licensee nuclear company’s assets to ensure that the objective of the RLNC administration is met. Such transfer schemes are to be made by the nuclear administrator with the approval of the Secretary of State, and at a time appointed by the court.