|
| |
|
| |
| |
(1) | A licence may include— |
| |
(a) | such conditions as the CAA considers necessary or expedient having |
| |
regard to the risk that the holder of the licence may engage in conduct |
| 5 |
that amounts to an abuse of substantial market power in a market for |
| |
airport operation services (or for services that include airport operation |
| |
| |
(b) | such other conditions as the CAA considers necessary or expedient |
| |
having regard to the CAA’s duties under section 1. |
| 10 |
(2) | For the purposes of this section conduct may, in particular, amount to an abuse |
| |
of substantial market power if it is conduct described in section 18(2)(a) to (d) |
| |
of the Competition Act 1998. |
| |
19 | Price control conditions |
| |
(1) | For the purposes of this Part a licence condition is a price control condition to |
| 15 |
the extent that it regulates prices by— |
| |
(a) | providing that the amount, or the maximum amount, that may be |
| |
charged is an amount specified in, or determined in accordance with, |
| |
| |
(b) | requiring the amount, or maximum amount, that may be charged to be |
| 20 |
| |
(2) | A licence must include such price control conditions as the CAA considers |
| |
necessary or expedient having regard to the risk referred to in section 18(1)(a). |
| |
(3) | The duty in subsection (2) has effect subject to— |
| |
(a) | the provision in this Chapter about the conditions that may be included |
| 25 |
| |
(b) | the provision in this Chapter about granting licences, and |
| |
(c) | the provision in this Chapter and in the licence about modifying licence |
| |
| |
(4) | Subsection (5) applies where the CAA considers that the holder (“H”) of a |
| 30 |
licence for an airport area engaged in conduct amounting to an abuse of |
| |
substantial market power by directly or indirectly imposing unfairly high |
| |
charges in respect of activities carried on in the airport area during— |
| |
(a) | a period during which H was treated as having a licence in respect of |
| |
the area by virtue of section 4; |
| 35 |
(b) | a period during which H would have been so treated but for the |
| |
suspension of a market power determination or operator |
| |
determination under Schedule 1. |
| |
(5) | The licence may include such price control conditions as the CAA considers |
| |
appropriate for the purpose of depriving the holder of the licence of an amount |
| 40 |
not exceeding the amount which the CAA considers was earned from the |
| |
abuse during that period. |
| |
(6) | A price control condition may make provision— |
| |
(a) | by reference to the amount charged for particular goods or services; |
| |
|
| |
|
| |
|
(b) | by reference to the overall amount charged for a range of goods or |
| |
| |
(7) | A licence that includes a price control condition must include conditions |
| |
specifying a period or periods for which the price control condition has effect. |
| |
20 | Conditions relating to CAA charges |
| 5 |
(1) | A licence may include conditions requiring the payment to the CAA of charges |
| |
determined under a scheme or regulations made under section 11 of the Civil |
| |
Aviation Act 1982 in respect of the carrying out of the CAA’s functions under |
| |
| |
(2) | Such conditions may require the payment of charges on the grant of the licence |
| 10 |
or while it continues in force (or both). |
| |
(3) | The inclusion of such conditions does not prevent the CAA recovering charges |
| |
mentioned in subsection (1) as a debt due to it. |
| |
21 | Content and effect of licence conditions |
| |
(1) | Licence conditions may, in particular, include— |
| 15 |
(a) | provision for a condition to have effect or to cease to have effect at times |
| |
or in circumstances specified in, or determined in accordance with, a |
| |
| |
(b) | provision requiring the holder of the licence to enter into a contract or |
| |
other arrangement for a purpose specified in a condition and on terms |
| 20 |
specified in, or determined in accordance with, a condition, |
| |
(c) | provision requiring the holder of the licence to comply with |
| |
requirements imposed (by directions or otherwise) by a specified |
| |
| |
(d) | provision requiring the holder of the licence to do or not to do things |
| 25 |
specified, or of a description specified, in the licence unless a specified |
| |
person consents to its not doing or doing those things, |
| |
(e) | provision requiring the holder of the licence to refer a matter to a |
| |
specified person for approval or determination, and |
| |
(f) | provision relating to activities carried on outside the airport area for |
| 30 |
which the licence is granted. |
| |
(2) | In subsection (1) the references to a specified person are to— |
| |
(a) | a person specified, or of a description specified, in a condition for the |
| |
| |
(b) | a person nominated for the purpose concerned by a person within |
| 35 |
| |
(3) | A licence condition may include provision for its modification only if it |
| |
| |
(a) | the circumstances in which it may be modified, |
| |
(b) | the types of modification that may be made, and |
| 40 |
(c) | the period or periods in which it may be modified. |
| |
(4) | If a licence condition includes such provision, it may be modified in accordance |
| |
with that provision or in accordance with the provision made by this Chapter |
| |
about modifying licence conditions. |
| |
|
| |
|
| |
|
(5) | Where a licence condition is subject to an exception (however expressed) |
| |
relating to, or operating by reference to, financial arrangements entered into by |
| |
the holder of the licence, or a person connected to the holder of the licence, |
| |
before section 3 came into force, the licence may not— |
| |
(a) | provide for the exception to cease to have effect at times or in |
| 5 |
circumstances specified in, or determined in accordance with, a licence |
| |
| |
(b) | provide for the CAA to determine which financial arrangements |
| |
benefit from the exception. |
| |
(6) | A licence condition does not have effect at a time when— |
| 10 |
(a) | the holder of the licence is not the operator of any part of the airport |
| |
area for which the licence is granted, or |
| |
(b) | that airport area is not a dominant area located at a dominant airport |
| |
(or part of such an area) and does not include all or part of such an area, |
| |
| and provision included in a licence under subsection (1)(a) has effect subject to |
| 15 |
| |
| |
22 | Modifying licence conditions and licence area |
| |
(1) | The CAA may modify a licence by modifying— |
| |
(a) | the licence conditions, or |
| 20 |
(b) | the area for which the licence is granted, |
| |
| |
(2) | Before modifying a licence in reliance on this section, the CAA must— |
| |
(a) | publish a notice in relation to the proposed modification, |
| |
(b) | send a copy of the notice to the persons listed in subsection (3), and |
| 25 |
(c) | consider any representations about the proposed modification that are |
| |
made in the period specified in the notice (and not withdrawn). |
| |
| |
(a) | the holder of the licence, and |
| |
(b) | such bodies representing airport operators or providers of air transport |
| 30 |
services as the CAA considers appropriate. |
| |
(4) | The notice under subsection (2) must— |
| |
(a) | state that the CAA proposes to modify the licence, |
| |
(b) | specify the proposed modification, |
| |
(c) | give the CAA’s reasons for the proposed modification, |
| 35 |
(d) | state the effect of the proposed modification, and |
| |
(e) | specify a reasonable period for making representations. |
| |
(5) | If, after publishing the notice under subsection (2), the CAA decides not to |
| |
modify the licence in reliance on this section, the CAA must— |
| |
(a) | publish a notice, giving its reasons, and |
| 40 |
(b) | send a copy of the notice to the persons listed in subsection (3). |
| |
(6) | If, after complying with subsections (2) to (4) in relation to a modification, the |
| |
CAA decides to modify the licence in reliance on this section, the CAA must— |
| |
(a) | publish a notice in relation to the modification, and |
| |
|
| |
|
| |
|
(b) | send a copy of the notice to the persons listed in subsection (3). |
| |
(7) | The CAA is not to be treated as having complied with subsections (2) to (4) in |
| |
relation to a modification of a licence if the modification differs significantly |
| |
from the modification proposed in the notice under subsection (2). |
| |
(8) | The notice under subsection (6) must— |
| 5 |
(a) | specify the modification, |
| |
(b) | specify the date from which the modification has effect (subject to |
| |
paragraphs 7 and 11 to 13 of Schedule 2), |
| |
(c) | give the CAA’s reasons for the modification, |
| |
(d) | state the effect of the modification, |
| 10 |
(e) | state how it has taken account of any representations made in the |
| |
period specified in the notice under subsection (2), and |
| |
(f) | state the reason for any differences between the modifications and |
| |
those set out in the notice given under subsection (2). |
| |
(9) | In the case of a modification of a licence condition, the date specified under |
| 15 |
subsection (8)(b) must fall after the end of the period of 6 weeks beginning with |
| |
the day on which the notice under subsection (6) was published (subject to |
| |
paragraph 20(2) of Schedule 2). |
| |
23 | Restriction on power to modify |
| |
(1) | This section applies where— |
| 20 |
(a) | a licence condition is subject to an exception (however expressed) |
| |
relating to, or operating by reference to, financial arrangements |
| |
specified or described in the licence, |
| |
(b) | the financial arrangements were entered into by the holder of the |
| |
licence, or a person connected to the holder of the licence, before section |
| 25 |
| |
(c) | the CAA proposes to modify the licence by removing or restricting the |
| |
| |
(2) | The CAA may not make such a modification unless it has determined that— |
| |
(a) | there has been a material change of circumstances since the day on |
| 30 |
which the exception was included in the licence condition, and |
| |
(b) | for users of air transport services, the benefits of the modification are |
| |
likely to outweigh any adverse effects. |
| |
(3) | On or before the day on which it publishes a notice under section 22(2) in |
| |
respect of a proposal to make such a modification, the CAA must— |
| 35 |
(a) | publish a notice of its determination under subsection (2) of this |
| |
section, giving its reasons for the determination, and |
| |
(b) | send a copy of the notice to the persons listed in subsection (4). |
| |
| |
(a) | the holder of the licence, and |
| 40 |
(b) | such bodies representing airport operators or providers of transport |
| |
services as the CAA considers appropriate. |
| |
(5) | For the purposes of subsection (1)(b), financial arrangements entered into after |
| |
section 3 came into force but pursuant to other financial arrangements entered |
| |
into by the holder of the licence, or a person connected to the holder of the |
| 45 |
licence, before that time are to be treated as entered into before that time. |
| |
|
| |
|
| |
|
(6) | In subsection (2) “material change of circumstances” includes a material |
| |
change in the terms of the financial arrangements. |
| |
Appeals against licence conditions etc |
| |
24 | Appeal to Competition Commission: conditions of new licences |
| |
(1) | An appeal lies to the Competition Commission against a decision by the CAA |
| 5 |
under section 15 to include, or not to include, a condition in a licence when it |
| |
| |
(2) | An appeal may be brought under this section only by— |
| |
(a) | the holder of the licence, or |
| |
(b) | a provider of air transport services whose interests are materially |
| 10 |
affected by the decision. |
| |
(3) | An appeal may be brought under this section only with the permission of the |
| |
| |
(4) | An application for permission to appeal under this section may be made only |
| |
by a person who, if permission is granted, will be entitled to bring the appeal. |
| 15 |
(5) | The Competition Commission may refuse permission to appeal under this |
| |
section only on one of the following grounds— |
| |
(a) | that the appeal is brought for reasons that are trivial or vexatious, or |
| |
(b) | that the appeal does not have a reasonable prospect of success. |
| |
25 | Appeal to Competition Commission: modification of licence conditions |
| 20 |
(1) | An appeal lies to the Competition Commission against a decision by the CAA |
| |
to modify a licence condition under section 22. |
| |
(2) | An appeal may be brought under this section only by— |
| |
(a) | the holder of the licence, or |
| |
(b) | a provider of air transport services whose interests are materially |
| 25 |
affected by the decision. |
| |
(3) | An appeal may be brought under this section only with the permission of the |
| |
| |
(4) | An application for permission to appeal under this section may be made only |
| |
by a person who, if permission is granted, will be entitled to bring the appeal. |
| 30 |
(5) | The Competition Commission may refuse permission to appeal under this |
| |
section only on one of the following grounds— |
| |
(a) | that the appeal is brought for reasons that are trivial or vexatious, |
| |
(b) | that the appeal does not have a reasonable prospect of success, or |
| |
(c) | that subsection (6) is satisfied. |
| 35 |
(6) | This subsection is satisfied if the appeal is brought— |
| |
(a) | against a decision that relates entirely to a matter remitted to the CAA |
| |
following an earlier appeal under section 24 or this section, and |
| |
(b) | on grounds that were considered, or could have been raised by the |
| |
current applicant or a relevant connected person, as part of the earlier |
| 40 |
| |
|
| |
|
| |
|
(7) | In subsection (6), in relation to an applicant, “relevant connected person” |
| |
means a person who was connected to the applicant at any time during the |
| |
consideration of the earlier appeal by the Competition Commission. |
| |
26 | When appeals may be allowed |
| |
The Competition Commission may allow an appeal under section 24 or 25 only |
| 5 |
to the extent that it is satisfied that the decision appealed against was wrong on |
| |
one or more of the following grounds— |
| |
(a) | that the decision was based on an error of fact; |
| |
(b) | that the decision was wrong in law; |
| |
(c) | that the decision was based on the wrong exercise of a discretion. |
| 10 |
27 | Determination of appeal |
| |
(1) | Where it does not allow an appeal under section 24 or 25, the Competition |
| |
Commission must confirm the decision appealed against. |
| |
(2) | Where it allows an appeal under section 24 or 25, the Competition Commission |
| |
must do one or more of the following— |
| 15 |
(a) | quash the decision appealed against; |
| |
(b) | remit the matter that is the subject of the decision appealed against to |
| |
the CAA for reconsideration and decision in accordance with this |
| |
Chapter and any directions given by the Commission; |
| |
(c) | substitute its own decision for that of the CAA. |
| 20 |
(3) | Where it allows only part of an appeal under section 24 or 25— |
| |
(a) | subsection (2) applies in relation to the part of the decision appealed |
| |
against in respect of which the appeal is allowed, and |
| |
(b) | subsection (1) applies in relation to the rest of that decision. |
| |
(4) | Where the Competition Commission substitutes its own decision for that of the |
| 25 |
CAA, the Commission may give directions to— |
| |
| |
(b) | the holder of the licence. |
| |
(5) | The Competition Commission must not give a direction under this section that |
| |
requires a person to do anything that the person would not have power to do |
| 30 |
apart from the direction. |
| |
(6) | A person to whom a direction is given under this section must comply with it. |
| |
(7) | A direction given under this section to a person other than the CAA is |
| |
| |
(a) | in England and Wales and Northern Ireland, as if it were an order of the |
| 35 |
| |
(b) | in Scotland, as if it were an order of the Court of Session. |
| |
28 | Determination of appeal: time limits |
| |
(1) | The Competition Commission must determine an appeal under section 24 or |
| |
25 against a decision in respect of a licence within the period of 24 weeks |
| 40 |
beginning with the day on which the CAA published the relevant notice, |
| |
subject to subsections (3) to (6). |
| |
|
| |
|
| |
|
(2) | In subsection (1) “the relevant notice” means— |
| |
(a) | in the case of an appeal under section 24, the notice published in |
| |
accordance with section 15 of the decision to grant the licence, and |
| |
(b) | in the case of an appeal under section 25, the notice published in |
| |
accordance with section 22 of the decision that is the subject of the |
| 5 |
| |
(3) | The Competition Commission may extend the appeal period by not more than |
| |
8 weeks if it is satisfied that there are good reasons for doing so. |
| |
(4) | The Competition Commission may only extend the appeal period once in |
| |
reliance on subsection (3). |
| 10 |
(5) | The Competition Commission may extend the appeal period by such period as |
| |
it considers appropriate if— |
| |
(a) | there is an appeal to the Competition Appeal Tribunal under this |
| |
Chapter which the Commission considers may be relevant to the |
| |
appeal under section 24 or 25, and |
| 15 |
(b) | the appeal to the Tribunal has not been determined or withdrawn. |
| |
(6) | The Competition Commission may extend the appeal period more than once |
| |
in reliance on subsection (5). |
| |
(7) | If the Competition Commission extends the appeal period it must— |
| |
(a) | publish a notice stating the new time limit for determining the appeal, |
| 20 |
| |
(b) | send a copy of the notice to the persons listed in subsection (8). |
| |
| |
(a) | the holder of the licence which is the subject of the appeal, |
| |
(b) | if the appeal was brought by someone other than the holder of that |
| 25 |
| |
(c) | any other person with a qualifying interest in the decision that is the |
| |
subject of the appeal (see paragraph 34(4) of Schedule 2), |
| |
(d) | such bodies representing airport operators or providers of air transport |
| |
services as the Competition Commission considers appropriate, and |
| 30 |
| |
(9) | The Secretary of State may by regulations modify the periods of time specified |
| |
| |
(10) | In this section “the appeal period”, in relation to an appeal under section 24 or |
| |
25, means the period allowed for determining the appeal. |
| 35 |
29 | Determination of appeal: publication etc |
| |
(1) | A determination made by the Competition Commission on an appeal under |
| |
| |
(a) | must be contained in an order made by the Commission, and |
| |
(b) | takes effect at the time specified in the order or determined in |
| 40 |
accordance with the order. |
| |
(2) | The order must set out the reasons for the determination. |
| |
(3) | The Competition Commission must— |
| |
|
| |
|