Civil Aviation Bill

Session 2012 - 13
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Civil Aviation Bill

66
Civil Aviation Bill
Schedule 1 — Appeals against determinations

Schedules
Schedule 1
Section 13

Appeals against determinations
Appeals against determinations
1     (1)
The following may appeal to the Competition Appeal Tribunal against a
5
market power determination in relation to an airport area—
(a)
a person who is the operator of the area at the time the determination
is made, and
(b)
any other person whose interests are materially affected by the
determination.
10
      (2)
A person who is the subject of an operator determination may appeal to the
Competition Appeal Tribunal against the determination.
      (3)
An appeal under this paragraph may be made only on one or more of the
following grounds—
(a)
that the determination is based on an error of fact;
15
(b)
that it is wrong in law; or
(c)
that it is based on the wrong exercise of a discretion.
      (4)
The making of an appeal under this paragraph in respect of a determination
does not suspend the effect of the determination, unless the Competition
Appeal Tribunal orders otherwise.
20
Notice of appeal
2     (1)
An appeal under paragraph 1 against a determination must be made by
sending a notice of appeal to the Registrar of the Competition Appeal
Tribunal.
      (2)
The notice must be received by the Registrar before the end of the period of
25
60 days beginning with the relevant day.
      (3)
In this paragraph “the relevant day” means the later of—
(a)
the day on which the CAA publishes the notice of the determination,
and
(b)
the day on which the CAA publishes the reasons for the
30
determination.
      (4)
Sub-paragraphs (1) and (2) have effect subject to provision in rules made
under section 15 of the Enterprise Act 2002 (Tribunal rules) after this
Schedule comes into force—
(a)
as to the person to whom a notice of an appeal under paragraph 1
35
must be given;

Civil Aviation Bill
Schedule 1 — Appeals against determinations
67

(b)
providing that such a notice must be received within a longer or
shorter period beginning with the relevant day.
Decisions on appeal
3     (1)
The Competition Appeal Tribunal must decide an appeal under paragraph
1—
5
(a)
on the merits, and
(b)
by reference to the grounds of appeal in the notice of appeal.
      (2)
It may—
(a)
confirm or set aside all or part of the market power determination or
operator determination;
10
(b)
direct the CAA to make a further determination;
(c)
give the CAA such other directions as it considers appropriate,
including directions about the time within which the CAA must act.
      (3)
It may not direct the CAA to do anything that the CAA would not have
power to do apart from the direction.
15
      (4)
The CAA must comply with directions under this paragraph.
      (5)
If the CAA fails to comply with a direction to make a further market power
determination in respect of an airport area within the time specified by the
Competition Appeal Tribunal, the Tribunal may make the determination.
      (6)
If the Competition Appeal Tribunal makes a market power determination
20
under sub-paragraph (5)—
(a)
the determination has effect as if made by the CAA, and
(b)
section 8 applies in relation to the determination as if the references
to the CAA were references to the Competition Appeal Tribunal.
      (7)
If the CAA fails to comply with a direction to make a further operator
25
determination in respect of a person and an airport area within the time
specified by the Competition Appeal Tribunal, the Tribunal may make the
determination.
      (8)
If the Competition Appeal Tribunal makes an operator determination under
sub-paragraph (7)—
30
(a)
the determination has effect as if made by the CAA under section
10(1), and
(b)
sections 10(2) and 11(1) to (3) and (5) apply in relation to the
determination as if the references to the CAA were references to the
Competition Appeal Tribunal.
35
Further appeals
4     (1)
An appeal lies to the appropriate court on a point of law arising from a
decision of the Competition Appeal Tribunal under paragraph 3, including
a direction.
      (2)
An appeal under this paragraph against a decision relating to a market
40
power determination may be brought by—
(a)
a party to the proceedings before the Competition Appeal Tribunal,
or

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 1 — Permission to appeal
68

(b)
a person whose interests are materially affected by the decision or
direction.
      (3)
An appeal under this paragraph against a decision relating to an operator
determination may be brought by a party to the proceedings before the
Competition Appeal Tribunal.
5
      (4)
An appeal may not be brought under this paragraph without the permission
of—
(a)
the Competition Appeal Tribunal, or
(b)
the appropriate court.
      (5)
“The appropriate court” means—
10
(a)
in the case of an appeal from proceedings in England and Wales or
Northern Ireland, the Court of Appeal, or
(b)
in the case of an appeal from proceedings in Scotland, the Court of
Session.
Schedule 2
15
Section 30

Appeals under sections 24 and 25
Part 1
Permission to appeal
Application for permission to appeal
1     (1)
An application for permission to appeal under section 24 or 25 against a
20
decision in respect of a licence may not be made after the end of the period
of 6 weeks beginning with the day on which the CAA published the relevant
notice.
      (2)
In this paragraph “the relevant notice” means—
(a)
in the case of an application for permission to appeal under section
25
24, the notice published in accordance with section 15 of the decision
to grant the licence, and
(b)
in the case of an application for permission to appeal under section
25, the notice published in accordance with section 22 of the decision
that is the subject of the application.
30
      (3)
The applicant must send a copy of the application to the CAA.
      (4)
The CAA must—
(a)
publish the application, and
(b)
send a copy of the application to the persons listed in sub-paragraph
(5) (other than the applicant).
35
      (5)
Those persons are—
(a)
the holder of the licence that is the subject of the application,
(b)
any other person with a qualifying interest in the decision that is the
subject of the application, and
(c)
such bodies representing airport operators or providers of air
40
transport services as the CAA considers appropriate.

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 1 — Permission to appeal
69

Determination of application for permission to appeal
2     (1)
The Competition Commission’s decision on an application for permission to
appeal is to be taken by an authorised member of the Commission.
      (2)
The authorised member must take the decision before the end of the period
of 10 weeks beginning with the day on which the CAA published the
5
relevant notice (as defined in paragraph 1).
      (3)
The authorised member may grant permission to appeal subject to
conditions.
      (4)
The conditions may, in particular, include—
(a)
conditions which limit the matters that are to be considered on the
10
appeal,
(b)
conditions for the purpose of expediting the determination of the
appeal, and
(c)
conditions requiring the appeal to be considered together with other
appeals, including appeals relating to different matters or decisions
15
and appeals brought by different persons.
      (5)
An authorised member of the Competition Commission who grants
permission to appeal against a decision that relates entirely or partly to a
matter remitted to the CAA following an earlier appeal under section 24 or
25 must grant it subject to conditions excluding consideration of—
20
(a)
matters that were considered as part of the earlier appeal, and
(b)
matters that could have been raised by the applicant or a relevant
connected person as part of the earlier appeal,

unless the member considers that there are compelling reasons not to do so.
      (6)
In sub-paragraph (5), in relation to an applicant, “relevant connected
25
person” means a person who was connected to the applicant at any time
during the consideration of the earlier appeal by the Competition
Commission.
      (7)
The Competition Commission must—
(a)
publish the decision on an application for permission to appeal and
30
the reasons for the decision, and
(b)
send a copy of the decision and reasons to the persons listed in sub-
paragraph (8).
      (8)
Those persons are—
(a)
the holder of the licence which is the subject of the application,
35
(b)
if the application was made by someone other than the holder of that
licence, the applicant,
(c)
any other person with a qualifying interest in the decision that is the
subject of the application,
(d)
such bodies representing airport operators or providers of air
40
transport services as the Commission considers appropriate, and
(e)
the CAA.
      (9)
Section 29(5) applies to the publication of a decision and reasons under this
paragraph as it applies to the publication of an order containing a
determination of an appeal.
45

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 2 — Intervention in appeal
70

Time limit for CAA to make representations
3     (1)
This paragraph applies where the CAA wishes to make representations to
the Competition Commission in relation to an application under paragraph
1 for permission to appeal against a decision.
      (2)
The CAA must make the representations in writing before the end of the
5
period of 8 weeks beginning with the day on which the CAA publishes the
relevant notice (as defined in paragraph 1).
      (3)
The CAA must send a copy of its representations to—
(a)
the holder of the licence which is the subject of the application,
(b)
if the application was made by someone other than the holder of that
10
licence, the applicant,
(c)
any other person with a qualifying interest in the decision that is the
subject of the application, and
(d)
such bodies representing airport operators or providers of air
transport services as the CAA considers appropriate.
15
Part 2
Intervention in appeal
Application for permission to intervene in appeal
4     (1)
Where an application is made under paragraph 1 for permission to appeal
against a decision, an application for permission to intervene in the appeal
20
may be made to the Competition Commission by another person who
would be entitled to appeal against the decision.
      (2)
An application for permission to intervene may be made before the end of
the period of 1 week beginning with the day on which the Competition
Commission publishes its decision to grant permission to appeal against the
25
decision.
      (3)
An application for permission to intervene may be made after the end of that
period only with the leave of an authorised member of the Competition
Commission.
      (4)
The applicant must send a copy of the application to the CAA.
30
      (5)
The CAA must—
(a)
publish the application, and
(b)
send a copy of the application to the persons listed in sub-paragraph
(6) (other than the applicant).
      (6)
Those persons are—
35
(a)
the holder of the licence that is the subject of the application for
permission to appeal,
(b)
any other person with a qualifying interest in the decision that is the
subject of that application, and
(c)
such bodies representing airport operators or providers of air
40
transport services as the CAA considers appropriate.

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 3 — Automatic suspension of condition of new licence or modification
71

Determination of application for permission to intervene
5     (1)
The Competition Commission’s decision on an application for permission to
intervene is to be taken by an authorised member of the Commission.
      (2)
An authorised member of the Competition Commission may grant
permission to intervene in an appeal only if satisfied that allowing the
5
applicant to intervene is necessary or desirable for the proper resolution of
the appeal.
      (3)
The authorised member—
(a)
may grant permission to intervene for the purposes of supporting or
opposing an appeal;
10
(b)
must make any permission to intervene for the purposes of
supporting an appeal subject to conditions preventing the intervener
from putting forward new grounds of appeal;
(c)
may make permission to intervene subject to other conditions,
including conditions which limit the matters that may be raised by
15
the intervener.
      (4)
The Competition Commission must—
(a)
publish the decision on an application for permission to intervene
and the reasons for the decision, and
(b)
send a copy of the decision and reasons to the persons listed in sub-
20
paragraph (5).
      (5)
Those persons are—
(a)
the holder of the licence which is the subject of the application,
(b)
if the application was made by someone other than the holder of that
licence, the applicant,
25
(c)
any other person with a qualifying interest in the decision that is the
subject of the application,
(d)
such bodies representing airport operators or providers of air
transport services as the Commission considers appropriate, and
(e)
the CAA.
30
      (6)
Section 29(5) applies to the publication of a decision and reasons under this
paragraph as it applies to the publication of an order containing a
determination of an appeal.
Part 3
Automatic suspension of condition of new licence or modification
35
Automatic suspension of condition of new licence including exception for certain financial
arrangements
6     (1)
Sub-paragraph (2) applies where—
(a)
the CAA decides to grant a licence under section 15,
(b)
an application is made for permission to appeal under section 24
40
against the CAA’s decision to include a relevant financial
arrangements condition in the licence, and
(c)
the relevant financial arrangements condition would have effect, but
for this paragraph, before the end of the period of 10 weeks

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 3 — Automatic suspension of condition of new licence or modification
72

beginning with the day on which notice of the decision was
published in accordance with section 15 (“the 10 week period”).
      (2)
The relevant financial arrangements condition does not have effect during
the 10 week period.
      (3)
Sub-paragraph (4) applies where—
5
(a)
the CAA decides to grant a licence under section 15, and
(b)
the Competition Commission grants an application for permission to
appeal under section 24 against the CAA’s decision to include a
relevant financial arrangements condition in the licence.
      (4)
The relevant financial arrangements condition does not have effect until the
10
appeal against the decision is determined or withdrawn (or, if there is more
than one appeal against the decision, until all of the appeals are determined
or withdrawn).
      (5)
In this paragraph, “relevant financial arrangements condition” means a
condition that is subject to an exception (however expressed) relating to, or
15
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.
      (6)
For the purposes of this paragraph, financial arrangements entered into after
section 3 came into force but pursuant to other financial arrangements
20
entered into by the holder of the licence, or a person connected to the holder
of the licence, before that time are to be treated as entered into before that
time.
Automatic suspension of modification of condition of existing licence including exception for
certain financial arrangements
25
7     (1)
Sub-paragraph (2) applies where—
(a)
the CAA decides under section 22 to modify a licence condition,
(b)
the decision is subject to the restrictions in section 23,
(c)
an application is made for permission to appeal under section 25
against the decision, and
30
(d)
the licence modification that is the subject of the decision would have
effect, but for this paragraph, before the end of the period of 10 weeks
beginning with the day on which notice of the decision was
published in accordance with section 22 (“the 10 week period”).
      (2)
The licence modification does not have effect during the 10 week period.
35
      (3)
Sub-paragraph (4) applies where—
(a)
the CAA decides under section 22 to modify a licence condition,
(b)
the decision is subject to the restrictions in section 23, and
(c)
the Competition Commission grants permission to appeal against
the decision.
40
      (4)
The licence modification does not have effect until the appeal against the
decision is determined or withdrawn (or, if there is more than one appeal
against the decision, until all of the appeals are determined or withdrawn).