Civil Aviation Bill

Session 2012 - 13
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Civil Aviation Bill

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 4 — Application for suspension of condition of new licence or modification
73

Part 4
Application for suspension of condition of new licence or modification
Application for direction suspending condition of new licence
8     (1)
Where an application is made for permission to appeal against a decision
under section 15 to include a condition in a licence, an application for a
5
direction suspending the effect of the decision may be made to the
Competition Commission—
(a)
by the person who applied for permission to appeal, or
(b)
by another person who would be entitled to appeal against the
decision.
10
      (2)
An application for a direction may be made at any time before the
determination of the appeal.
      (3)
The applicant must send a copy of the application to the CAA.
      (4)
The CAA must—
(a)
publish the application, and
15
(b)
send a copy of the application to the persons listed in sub-paragraph
(5) (other than the applicant).
      (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
20
subject of the application, and
(c)
such bodies representing airport operators or providers of air
transport services as the CAA considers appropriate.
Effect of early application for direction under paragraph 8
9     (1)
This paragraph applies if—
25
(a)
an application is made under paragraph 8 for a direction suspending
the effect of a decision under section 15 to include a condition in a
licence,
(b)
the application is made before the end of the period of 6 weeks
beginning with the day on which the CAA published the notice of
30
the decision to grant the licence in accordance with section 15, and
(c)
the licence condition would have effect, but for this paragraph,
before the end of the period of 10 weeks beginning with that day
(“the 10 week period”).
      (2)
The licence condition does not have effect during the 10 week period.
35
      (3)
The Competition Commission’s decision on the application under
paragraph 8 must be taken before the end of the 10 week period.
Direction following application under paragraph 8
10    (1)
The Competition Commission’s functions in relation to an application under
paragraph 8 for a direction are to be carried out by an authorised member of
40
the Commission.

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 4 — Application for suspension of condition of new licence or modification
74

      (2)
An authorised member of the Competition Commission may give a
direction suspending the effect of a decision under section 15 to include a
condition in a licence only if—
(a)
the applicant for the direction would incur significant costs if the
licence condition were to have effect from the date specified in the
5
decision, and
(b)
the balance of convenience does not otherwise require the licence
condition to have effect from that date.
      (3)
If an authorised member gives a direction suspending the effect of the
decision, the licence condition does not have effect or ceases to have effect—
10
(a)
to the extent specified in the direction, and
(b)
for the period specified or described in the direction.
      (4)
The Competition Commission may by notice vary or withdraw a direction
under this paragraph if it considers it appropriate to do so having regard to
the costs and the balance of convenience referred to in sub-paragraph (2).
15
Application for direction suspending licence modification
11    (1)
Where an application for permission to appeal against a decision under
section 22 to modify a licence condition is made, an application for a
direction suspending the effect of the decision may be made to the
Competition Commission—
20
(a)
by the person who applied for permission to appeal, or
(b)
by another person who would be entitled to appeal against the
decision.
      (2)
An application for a direction may be made at any time before the
determination of the appeal.
25
      (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).
30
      (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
35
transport services as the CAA considers appropriate.
Effect of early application for direction under paragraph 11
12    (1)
This paragraph applies if—
(a)
an application is made under paragraph 11 for a direction
suspending the effect of a decision under section 22 to modify a
40
licence condition,
(b)
the application is made before the end of the period of 6 weeks
beginning with the day on which the CAA published notice of that
decision in accordance with that section, and

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 4 — Application for suspension of condition of new licence or modification
75

(c)
the modification would have effect, but for this paragraph, before the
end of the period of 10 weeks beginning with that day (“the 10 week
period”).
      (2)
The modification does not have effect during the 10 week period.
      (3)
The Competition Commission’s decision on the application under
5
paragraph 11 must be taken before the end of the 10 week period.
Direction following application under paragraph 11
13    (1)
The Competition Commission’s functions in relation to an application under
paragraph 11 for a direction are to be carried out by an authorised member
of the Commission.
10
      (2)
An authorised member of the Competition Commission may give a
direction suspending the effect of a decision under section 22 to include a
condition in a licence only if—
(a)
the applicant for the direction would incur significant costs if the
licence condition were to have effect from the date specified in the
15
decision, and
(b)
the balance of convenience does not otherwise require the licence
condition to have effect from that date.
      (3)
If an authorised member gives a direction suspending the effect of the
decision, the licence condition does not have effect or ceases to have effect—
20
(a)
to the extent specified in the direction, and
(b)
for the period specified or described in the direction.
      (4)
The Competition Commission may by notice vary or withdraw a direction
under this paragraph if it considers it appropriate to do so having regard to
the costs and the balance of convenience referred to in sub-paragraph (2).
25
Publication of decisions about directions
14    (1)
The Competition Commission must—
(a)
publish a decision on an application under paragraph 8 or 11 for a
direction and the reasons for the decision, and
(b)
send a copy of the decision and reasons to the persons listed in sub-
30
paragraph (4).
      (2)
Where paragraph 9 or 12 applies, the Competition Commission must
comply with sub-paragraph (1) before the end of the 10 week period referred
to in that paragraph.
      (3)
The Competition Commission must—
35
(a)
publish any notice varying or withdrawing a direction under
paragraph 10 or 13 and the reasons for the variation or withdrawal,
and
(b)
send a copy of the notice and reasons to the persons listed in sub-
paragraph (4).
40
      (4)
Those persons are—
(a)
the holder of the licence which is the subject of the application or
direction,

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 5 — Appeals
76

(b)
if the application for the direction 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
5
transport services as the Competition Commission considers
appropriate, and
(e)
the CAA.
      (5)
Section 29(5) applies to the publication of a decision, notice or reasons
mentioned in sub-paragraph (1) or (3) as it applies to the publication of an
10
order containing a determination of an appeal.
Time limit for CAA to make representations
15    (1)
This paragraph applies where the CAA wishes to make representations to
the Competition Commission in relation to an application under paragraph
8 or 11 for a direction.
15
      (2)
In a case to which paragraph 9 or 12 applies, the CAA must make the
representations in writing before the end of the period of 8 weeks beginning
with the day on which the CAA published the relevant notice.
      (3)
In sub-paragraph (2) “the relevant notice” means—
(a)
in the case of an application under paragraph 8, the notice published
20
in accordance with section 15 of the decision to grant the licence, and
(b)
in the case of an application under paragraph 11, the notice
published in accordance with section 22 of the decision that is the
subject of the application.
      (4)
In any other case—
25
(a)
the Competition Commission must specify a reasonable period for
making representations, and
(b)
the CAA must make the representations in writing before the end of
that period.
      (5)
In all cases, the CAA must send a copy of its representations to—
30
(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,
(c)
any other person with a qualifying interest in the decision that is the
subject of the application, and
35
(d)
such bodies representing airport operators or providers of air
transport services as the CAA considers appropriate.
Part 5
Appeals
Determination of appeal by group
40
16    (1)
The following functions of the Competition Commission are to be carried
out, in accordance with appeal rules, by a group selected for the purpose by
the Chairman—
(a)
considering and determining an appeal, and

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 5 — Appeals
77

(b)
giving directions and taking other steps to give effect to the
Commission’s determination on an appeal.
      (2)
The group must consist of 3 members of the Competition Commission.
      (3)
The Chairman must appoint one of the members of the group to be its chair.
      (4)
The Chairman may—
5
(a)
select himself or herself to be a member of the group, and
(b)
appoint himself or herself to be its chair.
      (5)
A decision of the group is effective only if—
(a)
all of the members of the group are present when it is made, and
(b)
at least 2 members of the group are in favour of the decision.
10
Replacing members of group
17    (1)
The Chairman may select a member of the Competition Commission to
replace another as a member of a group with the function of determining an
appeal if—
(a)
the person being replaced has ceased to be a member of the
15
Commission,
(b)
the Chairman is satisfied that the person being replaced will be
unable, for a substantial period, to perform the duties of a member of
the group, or
(c)
the Chairman is satisfied that, because of a particular interest of the
20
person being replaced, it is inappropriate for that person to remain a
member of the group.
      (2)
The Chairman may select himself or herself to replace a member of the
group.
      (3)
The replacement of a member of the group does not—
25
(a)
prevent the group from continuing with anything begun before the
member is replaced, or
(b)
affect any decision made, or direction given, by the group before the
member is replaced.
Representations made by the CAA
30
18    (1)
This paragraph applies where an application for permission to appeal has
been granted and the CAA makes representations to the Competition
Commission for the purposes of the appeal.
      (2)
The CAA must send a copy of its representations to—
(a)
the holder of the licence which is the subject of the appeal,
35
(b)
if the appeal was brought by someone other than the holder of that
licence, the appellant,
(c)
any other person with a qualifying interest in the decision that is the
subject of the appeal, and
(d)
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 5 — Appeals
78

Matters that may be disregarded
19    (1)
A group with the function of determining an appeal may disregard matters
raised by the CAA if it thinks it necessary to do so for the purpose of
securing that the appeal is determined within the period allowed under
section 28, unless they are matters contained in representations made to the
5
Competition Commission—
(a)
in accordance with paragraph 15, or
(b)
before the end of the period of 12 weeks beginning with the day on
which the relevant notice was published.
      (2)
In sub-paragraph (1) “the relevant notice” means—
10
(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
appeal.
15
      (3)
A group with the function of determining an appeal may disregard matters
raised by the appellant if it thinks it necessary to do so for the purpose of
securing that the appeal is determined within the period allowed under
section 28, unless the matters were raised by the appellant—
(a)
at the time of the application under paragraph 1 for permission to
20
appeal, or
(b)
in an application under paragraph 8 or 11 for a direction.
      (4)
A group with the function of determining an appeal may disregard matters
raised by an intervener if it thinks it necessary to do so for the purpose of
securing that the appeal is determined within the period allowed under
25
section 28, unless the matters were raised by the intervener—
(a)
at the time of the application under paragraph 4 for permission to
intervene, or
(b)
in an application under paragraph 8 or 11 for a direction.
Remitting decision to CAA
30
20    (1)
This paragraph applies where the Competition Commission decides to
remit a matter that is the subject of an appeal to the CAA for reconsideration
and decision.
      (2)
Where, on reconsidering the matter, the CAA decides to modify a licence,
the notice under section 22(6) in respect of the modification may, with the
35
agreement of the holder of the licence, specify a date falling—
(a)
before the end of the period of 6 weeks beginning with the date on
which the notice is published, but
(b)
on or after the date on which the decision that was the subject of the
appeal took effect or would have taken effect but for its suspension
40
under this Schedule.
      (3)
Where, on reconsidering the matter, the CAA considers it appropriate to
modify a licence by adding or altering a price cap condition in respect of
goods and services—
(a)
sub-paragraph (4) applies if the highest charges that would be
45
permitted by the new or altered price cap condition (disregarding
sub-paragraphs (4) and (6)) (“the proposed maximum charges”) are

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 5 — Appeals
79

lower than charges imposed by the holder of the licence in respect of
such goods and services during all or part of the appeal period, and
(b)
sub-paragraph (6) applies if the proposed maximum 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.
5
      (4)
Where this sub-paragraph applies, the CAA may modify the licence so that
it includes such price cap conditions as the CAA 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 CAA considers appropriate.
10
      (5)
The reference in sub-paragraph (4) to lower charges does not include
charges of less than the proposed maximum charges.
      (6)
Where this sub-paragraph applies, the CAA may modify the licence so that
it includes such price cap conditions as the CAA considers appropriate with
a view to putting the holder of the licence in the position that it would have
15
been in if, during the appeal period, it had imposed such higher charges as
the CAA considers appropriate.
      (7)
The reference in sub-paragraph (6) to higher charges does not include
charges of more than the proposed maximum charges.
      (8)
For the purposes of this paragraph a licence condition is a price cap
20
condition to the extent that it regulates prices by providing that the amount,
or the maximum amount, that may be charged is an amount specified in, or
determined in accordance with, the condition.
      (9)
In this paragraph “appeal period” has the same meaning as in section 28.
Substituting CAA’s decision
25
21    (1)
This paragraph applies where the Competition Commission decides to
substitute its own decision for a decision of the CAA that is the subject of an
appeal.
      (2)
Section 23 applies to the Competition Commission as it applies to the CAA.
      (3)
The Competition Commission’s decision has effect as if made by the CAA,
30
except that—
(a)
section 22(6) does not apply, and
(b)
an appeal may not be brought against it under this Chapter.
      (4)
Any modification of a licence effected by the Competition Commission’s
decision takes effect from the date specified by the Commission.
35
      (5)
The Competition Commission may, with the agreement of the holder of the
licence, specify a date falling—
(a)
before the date on which the order containing its decision is
published, but
(b)
on or after the date on which the decision that was the subject of the
40
appeal took effect or would have taken effect but for its suspension
under this Schedule.
      (6)
Where the Competition Commission considers it appropriate to modify the
licence by adding or altering a price cap condition in respect of goods and
services—
45