Civil Aviation Bill (HL Bill 36)

(a) the circumstances specified in the determination have not arisen, and

(b) it considers that doing so would involve disclosing commercially
sensitive information.

(5) If a notice of a market power determination made in reliance on subsection (1)
5is published before the circumstances specified in the determination arise, an
airport area or airport is not dominant by virtue of the determination until
those circumstances arise.

(6) If a notice of an operator determination made in reliance on subsection (1) is
published before the circumstances specified in the determination arise, a
10person is not to be treated as having or not having overall responsibility for the
management of an airport area by virtue of the determination until those
circumstances arise.

13 Appeals against determinations

Schedule 1 (appeals against determinations) has effect.

15Licences

14 Application for licence

(1) An application for a licence—

(a) must be made in the specified form and manner,

(b) must contain or be accompanied by the specified information, and

(c) 20must be published by the applicant in the specified form and manner
and within a period notified to the applicant by the CAA.

(2) On an application made and published in accordance with subsection (1), the
CAA must—

(a) grant the licence (see section 15), or

(b) 25refuse to grant the licence (see section 16),

unless the application is withdrawn.

(3) Subsection (4) applies if a person who is the operator of an airport area (“area
A”) on a day on which area A becomes a dominant area located at a dominant
airport, or part of such an area, does not have a licence in respect of area A on
30that day.

(4) The person is to be treated as having made and published an application for
such a licence in accordance with subsection (1).

(5) In subsection (1) “specified” means specified by the CAA.

(6) The CAA must publish a copy of the matters specified for the purposes of
35subsection (1).

15 Granting licence

(1) Before granting a licence the CAA must—

(a) publish a notice in relation to the proposed licence,

(b) send a copy of the notice to the persons listed in subsection (2), and

(c) consider any representations about the proposal to grant the licence,
including the proposed conditions, that are made in the period
specified in the notice (and not withdrawn).

(2) Those persons are—

(a) 5the applicant for the licence, and

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

(3) A notice under subsection (1) must—

(a) state that the CAA proposes to grant the licence to the applicant,

(b) 10specify the airport area for which it is to be granted,

(c) specify the airport at which the area is located,

(d) specify the conditions proposed to be included in the licence,

(e) give the CAA’s reasons for the proposed conditions, and

(f) specify a reasonable period for making representations.

(4) 15The CAA may withdraw a notice under subsection (1) at any time.

(5) If, after complying with subsections (1) to (3), the CAA decides to grant the
licence, it must—

(a) publish a copy of the licence and a notice in relation to the licence, and

(b) send a copy of the licence and the notice to the persons listed in
20subsection (2).

(6) The CAA is not to be treated as having complied with subsections (1) to (3) in
relation to a licence granted to an applicant for an area if the conditions
included in the licence when it is granted differ significantly from the
conditions proposed in the notice under subsection (1) relating to the applicant
25and the area (or, if more than one, the latest such notice).

(7) A notice under subsection (5) must—

(a) specify the date from which the licence comes into force (subject to
subsection (9)),

(b) give the CAA’s reasons for the conditions included in the licence,

(c) 30state how it has taken account of any representations made in the
period specified in the notice under subsection (1), and

(d) state the reason for any differences between the conditions included in
the licence and those proposed in the notice under subsection (1).

(8) The date specified under subsection (7)(a) must be a date falling after the end
35of the period of 6 weeks beginning with the day on which the notice under
subsection (5) was published.

(9) If the CAA grants a licence to a person in respect of an airport area at a time
when the person is not the operator of any part of the area, the licence does not
come into force until the person becomes the operator of all or part of the area.

16 40Refusing to grant licence

(1) The CAA may refuse to grant a licence for an airport area if—

(a) the CAA considers that the applicant is not the operator of the area and
is not likely to become the operator of the area,

(b) the area is not a dominant area (or part of a dominant area) and the
CAA considers that it is not likely to become a dominant area (or part
of a dominant area),

(c) the airport at which the area is located is not a dominant airport and the
5CAA considers that it is not likely to become a dominant airport,

(d) the applicant is a person falling within subsection (2), or

(e) the applicant is connected to a person falling within subsection (2).

(2) A person falls within this subsection if—

(a) the person has previously held a licence in respect of the airport area
10that is the subject of the application or an area that included all or part
of that airport area, and

(b) the licence was revoked in accordance with a relevant provision of the
licence.

(3) For the purposes of subsection (2)(b) a provision is a relevant provision of the
15licence if it states that revocation of the licence entirely or partly in reliance on
that provision is relevant for the purposes of this section.

(4) Before refusing to grant a licence, the CAA must—

(a) publish a notice in relation to the proposed refusal,

(b) send a copy of the notice to the persons listed in subsection (5), and

(c) 20consider any representations about the proposed refusal that are made
in the period specified in the notice (and not withdrawn).

(5) Those persons are—

(a) the applicant for the licence, and

(b) such bodies representing airport operators or providers of air transport
25services as the CAA considers appropriate.

(6) A notice under subsection (4) must—

(a) state that the CAA proposes to refuse to grant the licence,

(b) specify the airport area in respect of which the application was made,

(c) specify the airport at which the area is located, and

(d) 30give the CAA’s reasons for the proposed refusal.

(7) The period specified in the notice must be a period of not less than 30 days
beginning with the day on which the notice is published.

(8) The CAA may withdraw a notice under subsection (4) at any time.

(9) If, after complying with subsections (4) to (7), the CAA decides to refuse to
35grant the licence, it must—

(a) publish a notice of its decision, and

(b) send a copy of the notice to the persons listed in subsection (5).

(10) A notice under subsection (9) must—

(a) specify the airport area in respect of which the application was made,

(b) 40specify the airport at which the area is located, and

(c) give the CAA’s reasons for the refusal.

17 Content and effect of licence

(1) A licence must include provision specifying—

(a) the airport area for which it is granted, and

(b) the airport at which the area is located.

(2) The specified area may consist of two or more separate areas if they form part
of the same airport.

(3) References in this Part to licence conditions do not include provision
5mentioned in subsection (1).

(4) A licence must—

(a) include provision about the circumstances in which it may be revoked
by the CAA, and

(b) provide that it may be revoked only in accordance with section 48.

(5) 10References in this Part to licence conditions include provision mentioned in
subsection (4), except in section 21(6).

(6) A licence continues in force until it is revoked in accordance with its
provisions.

(7) A licence is not valid unless it is in writing.

(8) 15A licence is not transferable.

Licence conditions

18 Licence conditions

(1) A licence may include—

(a) such conditions as the CAA considers necessary or expedient having
20regard to the risk that the holder of the licence may engage in conduct
that amounts to an abuse of substantial market power in a market for
airport operation services (or for services that include airport operation
services), and

(b) such other conditions as the CAA considers necessary or expedient
25having regard to the CAA’s duties under section 1.

(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) 30For the purposes of this Part a licence condition is a price control condition to
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,
the condition, or

(b) 35requiring the amount, or maximum amount, that may be charged to be
approved by the CAA.

(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) 40the provision in this Chapter about the conditions that may be included
in the licence,

(b) the provision in this Chapter about granting licences, and

(c) the provision in this Chapter and in the licence about modifying licence
conditions.

(4) Subsection (5) applies where the CAA considers that the holder (“H”) of a
5licence 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;

(b) 10a 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
15not 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
20services.

(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

(1) A licence may include conditions requiring the payment to the CAA of charges
25determined 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
this Chapter.

(2) Such conditions may require the payment of charges on the grant of the licence
or while it continues in force (or both).

(3) 30The 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—

(a) provision for a condition to have effect or to cease to have effect at times
35or in circumstances specified in, or determined in accordance with, a
condition,

(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
specified in, or determined in accordance with, a condition,

(c) 40provision requiring the holder of the licence to comply with
requirements imposed (by directions or otherwise) by a specified
person,

(d) provision requiring the holder of the licence to do or not to do things
specified, or of a description specified, in the licence unless a specified
45person 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
which the licence is granted.

(2) 5In subsection (1) the references to a specified person are to—

(a) a person specified, or of a description specified, in a condition for the
purpose concerned, and

(b) a person nominated for the purpose concerned by a person within
paragraph (a).

(3) 10A licence condition may include provision for its modification only if it
specifies or describes—

(a) the circumstances in which it may be modified,

(b) the types of modification that may be made, and

(c) the period or periods in which it may be modified.

(4) 15If 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
20the 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
circumstances specified in, or determined in accordance with, a licence
condition, or

(b) 25provide for the CAA to determine which financial arrangements
benefit from the exception.

(6) A licence condition does not have effect at a time when—

(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) 30that 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
this subsection.

Modifying licences

22 35Modifying licence conditions and licence area

(1) The CAA may modify a licence by modifying—

(a) the licence conditions, or

(b) the area for which the licence is granted,

subject to section 23.

(2) 40Before 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

(c) consider any representations about the proposed modification that are
made in the period specified in the notice (and not withdrawn).

(3) Those persons are—

(a) the holder of the licence, and

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

(4) 5The 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,

(d) state the effect of the proposed modification, and

(e) 10specify 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

(b) send a copy of the notice to the persons listed in subsection (3).

(6) 15If, 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
20relation 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—

(a) specify the modification,

(b) specify the date from which the modification has effect (subject to
25paragraphs 7 and 11 to 13 of Schedule 2),

(c) give the CAA’s reasons for the modification,

(d) state the effect of the modification,

(e) state how it has taken account of any representations made in the
period specified in the notice under subsection (2), and

(f) 30state 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
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
35paragraph 20(2) of Schedule 2).

23 Restriction on power to modify

(1) This section applies where—

(a) a licence condition is subject to an exception (however expressed)
relating to, or operating by reference to, financial arrangements
40specified 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
3 came into force, and

(c) the CAA proposes to modify the licence by removing or restricting the
45exception.

(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
which the exception was included in the licence condition, and

(b) for users of air transport services, the benefits of the modification are
5likely 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—

(a) publish a notice of its determination under subsection (2) of this
section, giving its reasons for the determination, and

(b) 10send a copy of the notice to the persons listed in subsection (4).

(4) Those persons are—

(a) the holder of the licence, and

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

(5) 15For 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
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
20change 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
under section 15 to include, or not to include, a condition in a licence when it
25is granted.

(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
affected by the decision.

(3) 30An appeal may be brought under this section only with the permission of the
Competition Commission.

(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.

(5) The Competition Commission may refuse permission to appeal under this
35section 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

(1) An appeal lies to the Competition Commission against a decision by the CAA
40to 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
affected by the decision.

(3) An appeal may be brought under this section only with the permission of the
5Competition Commission.

(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.

(5) The Competition Commission may refuse permission to appeal under this
section only on one of the following grounds—

(a) 10that 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.

(6) This subsection is satisfied if the appeal is brought—

(a) against a decision that relates entirely to a matter remitted to the CAA
15following 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
appeal.

(7) In subsection (6), in relation to an applicant, “relevant connected person”
20means 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
to the extent that it is satisfied that the decision appealed against was wrong on
25one 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 an error was made in the exercise of a discretion.

27 Determination of appeal

(1) 30Where 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—

(a) quash the decision appealed against;

(b) 35remit 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.

(3) Where it allows only part of an appeal under section 24 or 25—

(a) 40subsection (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
CAA, the Commission may give directions to—

(a) the CAA, and

(b) the holder of the licence.

(5) 5The 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
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
10enforceable—

(a) in England and Wales and Northern Ireland, as if it were an order of the
High Court, and

(b) in Scotland, as if it were an order of the Court of Session.

28 Determination of appeal: time limits

(1) 15The 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
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) 20in 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.

(3) 25The 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).

(5) The Competition Commission may extend the appeal period by such period as
30it 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

(b) the appeal to the Tribunal has not been determined or withdrawn.

(6) 35The 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,
and

(b) 40send a copy of the notice to the persons listed in subsection (8).

(8) Those persons are—

(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
licence, the appellant,