Civil Aviation Bill (HC Bill 275)

(a) sub-paragraph (7) applies if the highest charges that would be
permitted by the new or altered price cap condition (disregarding
sub-paragraphs (7) and (9)) (“the proposed maximum charges”) are
lower than charges imposed by the holder of the licence in respect of
5such goods and services during all or part of the appeal period, and

(b) sub-paragraph (9) applies if the proposed charges are higher than
charges imposed by the holder of the licence in respect of such goods
and services during all or part of that period.

(7) Where this sub-paragraph applies, the Competition Commission’s decision
10may modify the licence so that it includes such price cap conditions as the
Commission considers appropriate with a view to putting the holder of the
licence in the position that it would have been in if, during the appeal period,
it had imposed such lower charges as the Commission considers
appropriate.

(8) 15The reference in sub-paragraph (7) to lower charges does not include
charges of less than the proposed maximum charges.

(9) Where this sub-paragraph applies, the Competition Commission’s decision
may modify the licence so that it includes such price cap conditions as the
Commission considers appropriate with a view to putting the holder of the
20licence in the position that it would have been in if, during the appeal period,
it had imposed such higher charges as the Commission considers
appropriate.

(10) The reference in sub-paragraph (9) to higher charges does not include
charges of more than the proposed maximum charges.

(11) 25In this paragraph

• “appeal period” has the same meaning as in section 28;

• “price cap condition” has the same meaning as in paragraph 20.

Part 6 General

30Consideration of new matters

22 (1) This paragraph applies to—

(a) an authorised member of the Competition Commission with the
function of determining an application for permission to appeal
under section 24 or 25, and

(b) 35a group with the function of determining an appeal.

(2) The member or group must not have regard to any matter, information or
evidence raised or provided by the CAA if it was not considered by the CAA
in making the decision that is the subject of the application or appeal, unless
the member or group considers that—

(a) 40the CAA could not reasonably have been expected to consider the
matter when making that decision, and

(b) the matter, information or evidence is likely to have an important
effect on the outcome of the application or appeal, either by itself or
taken together with other matters, information or evidence.

(3) The member or group must not have regard to any matter, information or
evidence raised or provided by a person other than the CAA if it was not
considered by the CAA in making the decision that is the subject of the
application or appeal, unless the member or group considers that—

(a) 5the person or a relevant connected person could not reasonably have
raised the matter with the CAA, or provided the information or
evidence to the CAA, during the period in which the CAA was
making that decision, and

(b) the matter, information or evidence is likely to have an important
10effect on the outcome of the application or appeal, either by itself or
taken together with other matters, information or evidence.

(4) Where the member or group has regard to a matter, information or evidence
in reliance on sub-paragraph (2) or (3), those sub-paragraphs do not prevent
the member or group having regard to further matters, information or
15evidence raised or provided in response to it if the member or group
considers that the further matter, information or evidence is likely to have
an important effect on the outcome of the application or appeal, either by
itself or taken together with other matters, information or evidence.

(5) In sub-paragraph (3), in relation to a person who raises or provides a matter,
20information or evidence, “relevant connected person” means a person who
was connected to that person at any time during the period in which the
CAA was making the decision that is the subject of the application or appeal.

(6) References in this paragraph to the period in which the CAA was making a
decision are to the period—

(a) 25beginning with the publication of a notice under section 15(1) or
22(2) proposing to make the decision, and

(b) ending with the publication of a notice under section 15(5) or 22(6) in
relation to the decision.

Production of documents

23 (1) 30The Competition Commission may by notice require a person to produce to
the Commission documents specified or described in the notice that are in
the person’s custody or under the person’s control.

(2) The notice may require the production of documents—

(a) at the time and place specified in the notice, and

(b) 35in the form and manner specified in the notice.

(3) The notice may not require a person to produce documents that the person
could not be compelled to provide in evidence in civil proceedings before
the appropriate court.

(4) A notice under this paragraph may be given on the Competition
40Commission’s behalf by—

(a) a member of the Commission, or

(b) its secretary.

Oral hearings

24 (1) For the purposes of this Schedule the following persons may hold an oral
45hearing and take evidence on oath—

(a) an authorised member of the Competition Commission considering
an application under paragraph 1 for permission to appeal,

(b) an authorised member of the Competition Commission considering
an application under paragraph 4 for permission to intervene,

(c) 5an authorised member of the Competition Commission considering
an application under paragraph 8 or 11 for a direction, and

(d) a group with the function of determining an appeal.

(2) In the course of holding such a hearing and taking such evidence, a person
or group described in sub-paragraph (1) may administer oaths.

(3) 10The Competition Commission may by notice require a person—

(a) to attend at a time and place specified in the notice, and

(b) at that time and place, to give evidence to a member or group
described in sub-paragraph (1).

(4) At an oral hearing, the member or group conducting the hearing may
15require the following persons to give evidence or to make representations—

(a) the applicant, the appellant or any intervener (if present), or

(b) a person attending the hearing as a representative of the applicant,
the appellant, an intervener or the CAA.

(5) A person who gives oral evidence at the hearing may be cross-examined by
20or on behalf of a party to the appeal, subject to sub-paragraph (6).

(6) Such a person may be cross-examined by or on behalf of an intervener only
with the leave of the person or group conducting the hearing.

(7) If the applicant, the appellant, an intervener or a representative of such a
person or the CAA is not present at a hearing—

(a) 25the Competition Commission is not required to give notice to that
person under sub-paragraph (3), and

(b) the member or group conducting the hearing may determine the
application or appeal without hearing that person’s evidence or
representations.

(8) 30A person may not be required under this paragraph to give evidence that the
person could not be compelled to give in civil proceedings before the
appropriate court.

(9) Where a person is required under this paragraph to attend at a place more
than 16 kilometres from the person’s place of residence, the Competition
35Commission must pay the person the necessary expenses of attendance.

(10) A notice under this paragraph may be given on the Competition
Commission’s behalf by—

(a) a member of the Commission, or

(b) its secretary.

40Written evidence

25 (1) The Competition Commission may by notice require a person to produce a
written statement with respect to a matter specified in the notice to—

(a) an authorised member of the Competition Commission considering
an application under paragraph 1 for permission to appeal,

(b) an authorised member of the Competition Commission considering
an application under paragraph 4 for permission to intervene,

(c) an authorised member of the Competition Commission considering
an application under paragraph 8 or 11 for a direction, or

(d) 5a group with the function of determining an appeal.

(2) The notice may require the written statement—

(a) to be produced at the time and place specified in the notice, and

(b) to be verified by a statement of truth.

(3) Where a notice requires a written statement to be verified by a statement of
10truth, the statement may be disregarded unless it is so verified.

(4) A person may not be required under this paragraph to produce a written
statement about a matter about which the person could not be compelled to
give evidence in civil proceedings before the appropriate court.

(5) A notice under this paragraph may be given on the Competition
15Commission’s behalf by—

(a) a member of the Commission, or

(b) its secretary.

Expert advice

26 Where permission to appeal is granted under paragraph 2, the Competition
20Commission may commission expert advice with respect to any matter
raised by a party to the appeal.

Enforcement of requirements in relation to evidence etc

27 (1) This paragraph applies where a person (“P”)—

(a) fails to comply with a notice under paragraph 23, 24 or 25,

(b) 25fails to comply with any other requirement imposed under
paragraph 23, 24 or 25,

(c) in complying with a notice under paragraph 25, makes a statement
that is false or misleading in a material respect, or

(d) in providing information verified by a statement of truth required by
30appeal rules, provides information that is false or misleading in a
material respect.

(2) A member of the Competition Commission may certify to the appropriate
court—

(a) the failure,

(b) 35the fact that P has made a false or misleading statement in
circumstances described in sub-paragraph (1)(c), or

(c) the fact that P has provided false or misleading information in
circumstances described in sub-paragraph (1)(d).

(3) The appropriate court may inquire into the certified failure or act and, if it
40does so, must hear—

(a) any witness against P,

(b) any witness on behalf of P, and

(c) any statement in P’s defence.

(4) The appropriate court may punish P as if P had been guilty of contempt of
court if it is satisfied that—

(a) the certified failure or act took place, and

(b) P did not have a reasonable excuse for the failure or act.

(5) 5Where P is a body corporate, the appropriate court may punish any director
or other officer of that body, either instead of or as well as punishing the
body.

(6) In this paragraph “director”, in relation to a body corporate whose affairs are
managed by its members, means a member of the body.

10Destruction of documents

28 (1) A person who intentionally alters, suppresses or destroys a document that
the person has been required to produce under paragraph 23 is guilty of an
offence.

(2) A person guilty of an offence under this paragraph is liable—

(a) 15on summary conviction, to a fine not exceeding the statutory
maximum;

(b) on conviction on indictment, to imprisonment for a term not
exceeding 2 years or a fine, or both.

Withdrawal of applications and appeals

29 (1) 20An application under paragraph 1 for permission to appeal may be
withdrawn only with the consent of the Competition Commission.

(2) After an application for permission to appeal is granted, the appeal may be
withdrawn only with the consent of the Competition Commission.

(3) An application under paragraph 4 for permission to intervene may be
25withdrawn only with the consent of the Competition Commission.

(4) After an application for permission to intervene is granted, the intervener
may withdraw from the appeal only with the consent of the Competition
Commission.

(5) An application under paragraph 8 or 11 for a direction suspending the effect
30of a decision may be withdrawn at any time.

(6) Withdrawal of an application under this Schedule or of an appeal has effect
when the applicant or appellant gives notice to the Competition
Commission.

(7) The applicant or appellant must send a copy of the notice to the CAA.

(8) 35The CAA must—

(a) publish the notice, and

(b) send a copy of the notice to the persons listed in sub-paragraph (9)
(other than the person withdrawing the application or appeal).

(9) Those persons are—

(a) 40the holder of the licence that is the subject of the application or
appeal,

(b) any other person with a qualifying interest in the decision that is the
subject of the application or appeal, and

(c) such bodies representing airport operators or providers of air
transport services as the CAA considers appropriate.

5Appeal rules

30 (1) The Competition Commission may make rules regulating the conduct and
disposal of appeals.

(2) The rules may include provision supplementing the provisions of this
Schedule in relation to any application, notice, hearing or requirement for
10which this Schedule provides.

(3) The rules may, in particular, include—

(a) provision requiring an application to be accompanied by
information specified in the rules,

(b) provision requiring such information to be verified by a statement of
15truth,

(c) provision requiring an applicant to provide the CAA with
information specified in the rules,

(d) provision imposing time limits or other restrictions on the taking of
evidence at an oral hearing, and

(e) 20provision imposing time limits or other restrictions on the making of
representations or observations at such a hearing.

(4) The rules may make different provision for different purposes.

(5) Before making rules under this paragraph the Competition Commission
must consult such persons as it considers appropriate.

(6) 25The Competition Commission must publish rules made under this
paragraph.

Costs

31 (1) Where an application under this Schedule or an appeal is withdrawn, an
authorised member of the Competition Commission may make such order
30as the member thinks fit requiring the parties to the application or appeal to
make payments to each other and to the Commission in respect of costs
incurred in connection with the application or appeal.

(2) A group that determines an appeal must make an order requiring the
payment to the Competition Commission of the costs incurred by the
35Commission in connection with the appeal.

(3) An order under sub-paragraph (2) must require those costs to be paid—

(a) where the appeal is allowed in full, by the CAA,

(b) where the appeal is dismissed in full, by the appellant, and

(c) where the appeal is allowed in part, by the appellant and the CAA in
40such proportions as the Competition Commission considers
appropriate,

subject to sub-paragraph (4).

(4) The order may require an intervener in the appeal to pay such proportion of
those costs (if any) as the Competition Commission considers appropriate.

(5) A group that determines an appeal may make such order as it thinks fit
requiring one party to the appeal to make payments to another in respect of
costs reasonably incurred by the other party in connection with the appeal.

(6) A person who is required to make a payment by an order under this
5paragraph must comply with the order before the end of the period of 28
days beginning with the day after the making of the order.

(7) If that person does not do so, the unpaid balance carries interest at a rate
specified in the order or determined in accordance with the order.

(8) In this paragraph, references to an intervener in an appeal, and to a party to
10an appeal, include a person who was granted permission to intervene in the
appeal and subsequently withdrew from the appeal.

Secretary of State’s power to modify time limits

32 The Secretary of State may by regulations modify any period of time
specified in this Schedule.

15Publication etc

33 Where the CAA or the Competition Commission is required by this
Schedule to publish something or send a copy of something and this
Schedule does not specify a time for doing so, it must publish or send it as
soon as practicable.

20Interpretation

34 (1) In this Schedule—

• “appeal” means an appeal under section 24 or 25;

• “appeal rules” means rules under paragraph 30;

• “the appropriate court” means—

  (a)

  25in relation to England and Wales and Northern Ireland, the
  High Court, and

  (b)

  in relation to Scotland, the Court of Session;

• “authorised member of the Competition Commission”, in relation to a
  power exercisable in connection with an appeal against a decision,
  30means—

  (a)

  the Chairman,

  (b)

  a member of the Commission authorised by the Chairman to
  exercise that power, or

  (c)

  a member of any group which has, or (if permission to appeal
  35is granted) will have, the function of determining an appeal
  against the decision;

• “Chairman” means the Chairman of the Competition Commission;

• “a group” means a group selected in accordance with paragraphs 16
  and 17;

• 40“intervener”, in relation to an appeal, means a person who has been
  granted permission to intervene in the appeal and who has not
  withdrawn from the appeal (but see paragraph 31(8));

• “statement of truth”, in relation to the production of a statement or in
  relation to information provided by a person, means a statement that
  45the person producing that statement or providing that information

  Civil Aviation BillPage 87

  believes the facts contained in the statement or the information to be
  true.

(2) References in this Schedule to a party to an application are to—

(a) the applicant, or

(b) 5the CAA.

(3) References in this Schedule to a party to an appeal are to—

(a) the appellant,

(b) an intervener, or

(c) the CAA.

(4) 10For the purposes of this Schedule and sections 28 and 29, a person has a
qualifying interest in a decision that is the subject of an appeal or an
application under this Schedule for permission to appeal if—

(a) the person has been granted permission to appeal against the
decision and has not withdrawn the appeal,

(b) 15the person has applied for permission to appeal against the decision
and the application has not been withdrawn or refused,

(c) the person has been granted permission to intervene in an appeal
against the decision and the appeal has not been withdrawn,

(d) the person has applied for permission to intervene in an appeal
20against the decision and the application has not been withdrawn or
refused, or

(e) the person has applied for a direction under this Schedule
suspending the effect of the decision, the application has not been
withdrawn or refused and any direction made in response to the
25application has not been withdrawn.

Section 47

SCHEDULE 3 Appeals against orders and penalties

Appeals against enforcement orders and urgent enforcement orders

1 (1) A person may appeal to the Competition Appeal Tribunal against—

(a) 30an enforcement order given to the person, or

(b) an urgent enforcement order given to the person that has been
confirmed.

(2) The appeal may be against one or more of the following—

(a) a decision to give the order or, in the case of an urgent enforcement
35order, to confirm the order;

(b) a decision as to the steps specified in the order;

(c) a decision as to the period allowed for taking those steps.

(3) The appeal may be made only on one or more of the following grounds—

(a) that the decision is based on an error of fact;

(b) 40that it is wrong in law;

(c) that it is based on the wrong exercise of a discretion.

(4) The making of an appeal under this paragraph against an enforcement order
suspends the effect of the order until the appeal is decided or withdrawn,
unless the Competition Appeal Tribunal orders otherwise.

(5) The making of an appeal under this paragraph against an urgent
5enforcement order does not suspend the effect of the order, unless the
Competition Appeal Tribunal orders otherwise.

Appeals against modification and revocation of orders

2 (1) A person may appeal to the Competition Appeal Tribunal against—

(a) a decision to modify or revoke an enforcement order,

(b) 10a decision to modify an urgent enforcement order that has been
confirmed, or

(c) a decision to revoke an urgent enforcement order that has been
confirmed.

(2) An appeal under this paragraph may be made only by a person—

(a) 15who is not the person to whom the order was given, but

(b) who appears to the Competition Appeal Tribunal to have a sufficient
interest in the decision.

(3) The appeal may be made only on one or more of the following grounds—

(a) that the decision is based on an error of fact;

(b) 20that it is wrong in law;

(c) that it is based on the wrong exercise of a discretion.

(4) The making of an appeal under this paragraph against the modification or
revocation of an order suspends its modification or revocation until the
appeal is decided or withdrawn, unless the Competition Appeal Tribunal
25orders otherwise.

Appeals against penalties

3 (1) A person may appeal to the Competition Appeal Tribunal against a penalty
imposed on the person under section 39 or 40.

(2) The appeal may be against one or more of the following—

(a) 30a decision to impose the penalty;

(b) a decision as to the amount of the penalty;

(c) in the case of a penalty calculated entirely or partly by reference to a
daily amount, a decision as to the period during which daily
amounts accumulate;

(d) 35a decision as to the period allowed for payment of the penalty.

(3) The appeal may be made only on one or more of the following grounds—

(a) that the decision is based on an error of fact;

(b) that it is wrong in law;

(c) that it is based on the wrong exercise of a discretion.

(4) 40Where a person appeals under this paragraph against a penalty, the CAA
may not require the person to pay the penalty until the appeal is decided or
withdrawn.

Decisions on appeal

4 (1) The Competition Appeal Tribunal must decide an appeal under this
Schedule—

(a) on the merits, and

(b) 5by reference to the grounds of appeal in the notice of appeal.

(2) It may—

(a) confirm or set aside the order, modification, revocation or penalty;

(b) give the CAA such directions as it considers appropriate, including
directions about the time within which the CAA must act.

(3) 10It may not direct the CAA to do anything that the CAA would not have
power to do apart from the direction.

(4) The CAA must comply with directions under this paragraph.

Further appeals

5 (1) An appeal lies to the appropriate court on a point of law arising from a
15decision of the Competition Appeal Tribunal under paragraph 4, including
a direction.

(2) An appeal under this paragraph may be brought by a party to the
proceedings before the Competition Appeal Tribunal.

(3) An appeal may not be brought under this paragraph without the permission
20of—

(a) the Competition Appeal Tribunal, or

(b) the appropriate court.

(4) “The appropriate court” means—

(a) in the case of an appeal from proceedings in England and Wales and
25Northern Ireland, the Court of Appeal, or

(b) in the case of an appeal from proceedings in Scotland, the Court of
Session.

Section 49

SCHEDULE 4 Appeals against revocation of licence

30Appeals against revocation of licence

1 (1) A person may appeal to the Competition Appeal Tribunal against—

(a) a notice under section 48(1) revoking a licence, and

(b) a further notice under section 48(9) withdrawing a notice revoking a
licence,

35unless the notice or further notice was given in accordance with a direction
given by the Competition Appeal Tribunal under this Schedule.

(2) The appeal may be against one or more of the following—

(a) a decision to give the notice or further notice;