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 6 — General
80

(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
such goods and services during all or part of the appeal period, and
5
(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
may modify the licence so that it includes such price cap conditions as the
10
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)
The reference in sub-paragraph (7) to lower charges does not include
15
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
licence in the position that it would have been in if, during the appeal period,
20
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)
In this paragraph—
25
“appeal period” has the same meaning as in section 28;
“price cap condition” has the same meaning as in paragraph 20.
Part 6
General
Consideration of new matters
30
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)
a group with the function of determining an appeal.
35
      (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)
the CAA could not reasonably have been expected to consider the
40
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.

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 6 — General
81

      (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)
the person or a relevant connected person could not reasonably have
5
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
effect on the outcome of the application or appeal, either by itself or
10
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
evidence raised or provided in response to it if the member or group
15
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,
information or evidence, “relevant connected person” means a person who
20
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)
beginning with the publication of a notice under section 15(1) or
25
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)
The Competition Commission may by notice require a person to produce to
30
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)
in the form and manner specified in the notice.
35
      (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
Commission’s behalf by—
40
(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
hearing and take evidence on oath—
45

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 6 — General
82

(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
5
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)
The Competition Commission may by notice require a person—
10
(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
require the following persons to give evidence or to make representations—
15
(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
or on behalf of a party to the appeal, subject to sub-paragraph (6).
20
      (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)
the Competition Commission is not required to give notice to that
25
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)
A person may not be required under this paragraph to give evidence that the
30
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
Commission must pay the person the necessary expenses of attendance.
35
     (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.
Written evidence
40
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,

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 6 — General
83

(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)
a group with the function of determining an appeal.
5
      (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
truth, the statement may be disregarded unless it is so verified.
10
      (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
Commission’s behalf by—
15
(a)
a member of the Commission, or
(b)
its secretary.
Expert advice
26
Where permission to appeal is granted under paragraph 2, the Competition
Commission may commission expert advice with respect to any matter
20
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)
fails to comply with any other requirement imposed under
25
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
appeal rules, provides information that is false or misleading in a
30
material respect.
      (2)
A member of the Competition Commission may certify to the appropriate
court—
(a)
the failure,
(b)
the fact that P has made a false or misleading statement in
35
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
does so, must hear—
40
(a)
any witness against P,
(b)
any witness on behalf of P, and
(c)
any statement in P’s defence.

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 6 — General
84

      (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)
Where P is a body corporate, the appropriate court may punish any director
5
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.
Destruction of documents
10
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)
on summary conviction, to a fine not exceeding the statutory
15
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)
An application under paragraph 1 for permission to appeal may be
20
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
withdrawn only with the consent of the Competition Commission.
25
      (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
of a decision may be withdrawn at any time.
30
      (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)
The CAA must—
35
(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)
the holder of the licence that is the subject of the application or
40
appeal,

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 6 — General
85

(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.
Appeal rules
5
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
which this Schedule provides.
10
      (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
truth,
15
(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)
provision imposing time limits or other restrictions on the making of
20
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)
The Competition Commission must publish rules made under this
25
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
as the member thinks fit requiring the parties to the application or appeal to
30
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
Commission in connection with the appeal.
35
      (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
such proportions as the Competition Commission considers
40
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.

Civil Aviation Bill
Schedule 2 — Appeals under sections 24 and 25
Part 6 — General
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      (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
paragraph must comply with the order before the end of the period of 28
5
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
an appeal, include a person who was granted permission to intervene in the
10
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.
Publication etc
15
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.
Interpretation
20
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)
in relation to England and Wales and Northern Ireland, the
25
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,
means—
30
(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
is granted) will have, the function of determining an appeal
35
against the decision;
“Chairman” means the Chairman of the Competition Commission;
“a group” means a group selected in accordance with paragraphs 16
and 17;
“intervener”, in relation to an appeal, means a person who has been
40
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
the person producing that statement or providing that information
45