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Civil Aviation Bill (HL Bill 52)

Civil Aviation BillPage 70

(d) there is subsequently an appeal under this Schedule against
determination B.

(2) If the effect of determination B is suspended under paragraph 1(3),
determination A has effect again during the period of suspension, unless the
5Competition Appeal Tribunal orders otherwise.

(3) If all or part of determination B is set aside at the end of a period of
suspension, determination A continues to have effect after the end of the
period of suspension, unless the Competition Appeal Tribunal orders
otherwise.

(4) 10If all or part of determination B is set aside otherwise than at the end of a
period of suspension, determination A has effect again from the setting
aside, unless the Competition Appeal Tribunal orders otherwise.

(5) If the suspension or setting aside of determination B only affects part of area
Z, or an area that includes part of area Z, the references in sub-paragraphs
15(2) to (4) to determination A are to be treated as references to that
determination so far as it relates to that part of area Z.

(6) Sub-paragraphs (2) to (4) do not apply if determination B is suspended or set
aside only so far as it relates to an area that does not include any part of area
Z.

(7) 20Nothing in sub-paragraphs (3) to (5) affects the operation of section 7(9) or
(10) where notice is published of a further market power determination in
respect of all or part of area Z or in respect of an area that includes all or part
of area Z.

Appeals to Competition Appeal Tribunal: supplementary

5 (1) 25When deciding an appeal under paragraph 1 (including giving directions),
making an order under paragraph 1 or 4 or making a market power
determination or operator determination, the Competition Appeal Tribunal
must have regard to the matters in respect of which duties are imposed on
the CAA by section 1.

(2) 30When deciding an appeal under paragraph 1 relating to a market power
determination (including giving directions) or making such a
determination, the Competition Appeal Tribunal must have regard to the
notices, guidance, advice and information described in section 6(10).

Further appeals

6 (1) 35An appeal lies to the appropriate court on a point of law arising from a
decision of the Competition Appeal Tribunal under paragraph 3 or 4(3) or
(4), including a direction.

(2) An appeal under this paragraph against a decision relating to a market
power determination may be brought by—

(a) 40a party to the proceedings before the Competition Appeal Tribunal,
or

(b) a person whose interests are materially affected by the decision or
direction.

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(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.

(4) An appeal may not be brought under this paragraph without the permission
5of—

(a) the Competition Appeal Tribunal, or

(b) the appropriate court.

(5) “The appropriate court” means—

(a) in the case of an appeal from proceedings in England and Wales or
10Northern Ireland, the Court of Appeal, or

(b) in the case of an appeal from proceedings in Scotland, the Court of
Session.

Section 30

SCHEDULE 2 Appeals under sections 24 and 25

15Part 1 Permission to appeal

Application for permission to appeal

1 (1) An application for permission to appeal under section 24 or 25 against a
decision in respect of a licence may not be made after the end of the period
20of 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
24, the notice published in accordance with section 15 of the decision
25to 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.

(3) The applicant must send a copy of the application to the CAA.

(4) 30The 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).

(5) Those persons are—

(a) 35the 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
transport services as the CAA considers appropriate.

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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
5of 10 weeks beginning with the day on which the CAA published the
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) 10conditions which limit the matters that are to be considered on the
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
15appeals, including appeals relating to different matters or decisions
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
2025 must grant it subject to conditions excluding consideration of—

(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) 25In sub-paragraph (5), 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.

(7) The Competition Commission must—

(a) 30publish the decision on an application for permission to appeal and
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) 35the 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,

(d) 40such bodies representing airport operators or providers of air
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
45determination of an appeal.

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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) 5The CAA must make the representations in writing before the end of the
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) 10if 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

(d) such bodies representing airport operators or providers of air
15transport services as the CAA considers appropriate.

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
20against a decision, an application for permission to intervene in the appeal
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
25Commission publishes its decision to grant permission to appeal against the
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) 30The applicant must send a copy of the application to the CAA.

(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) 35Those persons are—

(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) 40such bodies representing airport operators or providers of air
transport services as the CAA considers appropriate.

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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
5permission to intervene in an appeal only if satisfied that allowing the
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
10opposing an appeal;

(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,
15including conditions which limit the matters that may be raised by
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) 20send a copy of the decision and reasons to the persons listed in sub-
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
25licence, 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
transport services as the Commission considers appropriate, and

(e) 30the CAA.

(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 35Automatic suspension of condition of new licence or modification

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) 40an application is made for permission to appeal under section 24
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

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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) 5Sub-paragraph (4) applies where—

(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) 10The relevant financial arrangements condition 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).

(5) In this paragraph, “relevant financial arrangements condition” means a
15condition that 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.

(6) For the purposes of this paragraph, financial arrangements entered into after
20section 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.

Automatic suspension of modification of existing licence involving exception for certain
25financial arrangements

7 (1) Sub-paragraph (2) applies where—

(a) the CAA decides under section 22 to modify a licence by adding a
relevant financial arrangements condition,

(b) an application is made for permission to appeal under section 25
30against the decision, and

(c) the condition 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) 35The relevant financial arrangements condition does not have effect during
the 10 week period.

(3) Sub-paragraph (4) applies where—

(a) the CAA decides under section 22 to modify a licence by adding a
relevant financial arrangements condition, and

(b) 40the Competition Commission grants permission to appeal against
the decision.

(4) The relevant financial arrangements condition 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
45or withdrawn).

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(5) In this paragraph, “relevant financial arrangements condition” has the same
meaning as in paragraph 6.

8 (1) Sub-paragraph (2) applies where—

(a) the CAA decides under section 22 to modify a licence condition,

(b) 5the 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

(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
10beginning 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.

(3) Sub-paragraph (4) applies where—

(a) the CAA decides under section 22 to modify a licence condition,

(b) 15the decision is subject to the restrictions in section 23, and

(c) the Competition Commission grants permission to appeal against
the decision.

(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
20against the decision, until all of the appeals are determined or withdrawn).

Part 4 Application for suspension of condition of new licence or modification

Application for direction suspending condition of new licence

9 (1) Where an application is made for permission to appeal against a decision
25under section 15 to include a condition in a licence, an application for a
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
30decision.

(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) 35publish the application, and

(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) 40any 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
transport services as the CAA considers appropriate.

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Effect of early application for direction under paragraph 9

10 (1) This paragraph applies if—

(a) an application is made under paragraph 9 for a direction suspending
the effect of a decision under section 15 to include a condition in a
5licence,

(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
the decision to grant the licence in accordance with section 15, and

(c) the licence condition would have effect, but for this paragraph,
10before 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.

(3) The Competition Commission’s decision on the application under
paragraph 9 must be taken before the end of the 10 week period.

15Direction following application under paragraph 9

11 (1) The Competition Commission’s functions in relation to an application under
paragraph 9 for a direction are to be carried out by an authorised member of
the Commission.

(2) An authorised member of the Competition Commission may give a
20direction 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
decision, and

(b) 25the 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—

(a) to the extent specified in the direction, and

(b) 30for 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).

Application for direction suspending licence modification

12 (1) 35Where 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—

(a) by the person who applied for permission to appeal, or

(b) 40by 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.

(3) The applicant must send a copy of the application to the CAA.

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(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).

(5) 5Those 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
10transport services as the CAA considers appropriate.

Effect of early application for direction under paragraph 12

13 (1) This paragraph applies if—

(a) an application is made under paragraph 12 for a direction
suspending the effect of a decision under section 22 to modify a
15licence 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

(c) the modification would have effect, but for this paragraph, before the
20end 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
paragraph 12 must be taken before the end of the 10 week period.

25Direction following application under paragraph 12

14 (1) The Competition Commission’s functions in relation to an application under
paragraph 12 for a direction are to be carried out by an authorised member
of the Commission.

(2) An authorised member of the Competition Commission may give a
30direction 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
decision, and

(b) 35the 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—

(a) to the extent specified in the direction, and

(b) 40for 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).

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Publication of decisions about directions

15 (1) The Competition Commission must—

(a) publish a decision on an application under paragraph 9 or 12 for a
direction and the reasons for the decision, and

(b) 5send a copy of the decision and reasons to the persons listed in sub-
paragraph (4).

(2) Where paragraph 10 or 13 applies, the Competition Commission must
comply with sub-paragraph (1) before the end of the 10 week period referred
to in that paragraph.

(3) 10The Competition Commission must—

(a) publish any notice varying or withdrawing a direction under
paragraph 11 or 14 and the reasons for the variation or withdrawal,
and

(b) send a copy of the notice and reasons to the persons listed in sub-
15paragraph (4).

(4) Those persons are—

(a) the holder of the licence which is the subject of the application or
direction,

(b) if the application for the direction was made by someone other than
20the 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
transport services as the Commission considers appropriate, and

(e) 25the 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
order containing a determination of an appeal.

Time limit for CAA to make representations

16 (1) 30This paragraph applies where the CAA wishes to make representations to
the Competition Commission in relation to an application under paragraph
9 or 12 for a direction.

(2) In a case to which paragraph 10 or 13 applies, the CAA must make the
representations in writing before the end of the period of 8 weeks beginning
35with 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 9, the notice published
in accordance with section 15 of the decision to grant the licence, and

(b) in the case of an application under paragraph 12, the notice
40published in accordance with section 22 of the decision that is the
subject of the application.

(4) In any other case—

(a) the Competition Commission must specify a reasonable period for
making representations, and