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| Reports on references. |
12. - (1) In making a report on a reference under section 11 the Competition Commission-
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(a) must include definite conclusions on the questions contained in the reference and such an account of its reasons for the conclusions as in its opinion facilitates a proper understanding of the questions and of the conclusions; |
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(b) if it concludes that any of the matters specified in the reference operate against the public interest or may be expected to do so, must specify the effects adverse to the public interest which the matters have or may be expected to have; |
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(c) if it concludes that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, must specify modifications by which the effects could be remedied or prevented. |
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(2) Section 82 of the Fair Trading Act 1973 (general provisions as to reports) applies to reports of the Commission on references under section 11 as it applies to reports of the Commission under that Act.
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(3) A report of the Commission on a reference under section 11 must be made to the CAA.
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(4) The CAA-
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(a) must on receiving such a report send a copy to the licence holder and a copy to the Secretary of State; |
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(b) must, after the end of the specified period, publish the report in such manner as the CAA considers appropriate for bringing it to the attention of persons likely to be affected by it. |
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(5) But if the Secretary of State thinks that the publication of any matter would be against the public interest or any person's commercial interests, he may before the end of the specified period give a direction to the CAA requiring it to exclude the matter from every copy of the report to be published as mentioned above.
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(6) The specified period is the period of 14 days starting with the day after the Secretary of State receives the copy under subsection (4).
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| Modification following report. |
13. - (1) This section applies if a report of the Competition Commission on a reference under section 11-
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(a) includes conclusions to the effect that any of the matters specified in the reference operate against the public interest or may be expected to do so, |
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(b) specifies effects adverse to the public interest which the matters have or may be expected to have, |
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(c) includes conclusions to the effect that the effects could be remedied or prevented by modifications of the conditions of the licence, and |
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(d) specifies modifications by which the effects could be remedied or prevented. |
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(2) The CAA must make such modifications of the conditions of the licence as it thinks are needed to remedy or prevent the adverse effects specified in the report.
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(3) Before making modifications the CAA must-
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(a) have regard to the modifications specified in the report, |
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(b) publish a notice in such manner as the CAA thinks appropriate for bringing the matters to which it relates to the attention of persons likely to be affected by the making of the modifications, |
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(c) serve a copy of the notice on the licence holder, and |
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(d) consider any representations made in accordance with the notice (and not withdrawn). |
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(4) The notice must-
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(a) state that the CAA proposes to make the modifications and state their effect and the reasons for so proposing, and |
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(b) state the period (not less than 28 days starting with the date of publication of the notice) within which representations may be made regarding the proposed modifications. |
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(5) As soon as practicable after making modifications under this section the CAA must send a copy of them to the licence holder and a copy to the Secretary of State.
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| Modification by order under other enactments. |
14. - (1) This section applies if-
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(a) the Secretary of State by order exercises any of the powers specified in Parts I and II of Schedule 8 to the 1973 Act, and |
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(b) the first or second requirement (set out below) is satisfied. |
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(2) The first requirement is that-
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(a) the circumstances are as mentioned in section 56(1) of the 1973 Act (order on report on monopoly reference), and |
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(b) the monopoly situation exists in relation to the provision of air traffic services whose provision is authorised by a licence. |
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(3) The second requirement is that the circumstances are as mentioned in section 73(1) of the 1973 Act (order on report on merger reference) and-
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(a) at least one of the two or more enterprises which ceased to be distinct enterprises was engaged in the provision of air traffic services under the authority of a licence, or |
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(b) at least one of the two or more enterprises which would cease to be distinct enterprises (in the application of section 73(1) by virtue of section 75(4)(e)) is engaged in the provision of air traffic services under the authority of a licence. |
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(4) The order mentioned in subsection (1) may also provide for the modification of the conditions of a licence to such extent as the Secretary of State thinks necessary or expedient to give effect to or take account of any provision made by the order.
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(5) As soon as practicable after making modifications under this section the Secretary of State must send a copy of them to the licence holder and a copy to the CAA.
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(6) Expressions used in this section and the 1973 Act have the same meanings in this section as in that Act.
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(7) The 1973 Act is the Fair Trading Act 1973.
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Enforcement: section 8 duties |
| Orders for securing compliance. |
15. - (1) If the Secretary of State is satisfied that a licence holder is contravening or is likely to contravene a section 8 duty he must make a final order containing provision needed to secure compliance with the duty.
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(2) If the Secretary of State is not so satisfied but it appears to him that a licence holder is contravening or is likely to contravene a section 8 duty and that a provisional order is needed, he must make a provisional order containing provision he thinks is needed to secure compliance with the duty.
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(3) In deciding whether a provisional order is needed the Secretary of State must have regard in particular to-
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(a) the extent to which any person is likely to sustain loss or damage as a result of anything likely to be done or omitted in contravention of the section 8 duty unless a provisional order is made, and |
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(b) the fact that the only remedy for a contravention of a section 8 duty is under this section and section 18 (unless there is negligence). |
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(4) A final or provisional order must require the licence holder to do or not to do specified things or things of a specified description.
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(5) A final or provisional order-
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(a) takes effect at a time determined by or under the order; |
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(b) must secure that that time is the earliest practicable time; |
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(c) may be revoked at any time by the Secretary of State. |
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(6) A final order continues to have effect until such time (if any) as the Secretary of State revokes it.
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(7) A provisional order ceases to have effect at the termination time, and that is the earlier of-
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(a) the end of the period (not exceeding three months) which is determined by or under the order and which starts when it takes effect; |
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(b) such time (if any) as the Secretary of State revokes it. |
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(8) But if the Secretary of State confirms a provisional order under subsection (9) before the termination time it continues to have effect until such time (if any) as he revokes it.
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(9) The Secretary of State must confirm a provisional order (with or without modifications) if-
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(a) he is satisfied that the licence holder is contravening or is likely to contravene a section 8 duty, and |
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(b) he thinks its confirmation (with any modifications) is needed to secure compliance with the duty. |
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(10) The Secretary of State must not make a final order or make or confirm a provisional order if he is satisfied that-
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(a) the duty imposed on him by section 1 precludes him from doing so, |
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(b) the licence holder has agreed to take and is taking all the steps the Secretary of State thinks appropriate to secure or facilitate compliance with the section 8 duty concerned, |
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(c) the contraventions or apprehended contraventions are trivial, or |
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(d) the most appropriate way of proceeding is under the Competition Act 1998;
and the above provisions have effect subject to this subsection. |
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(11) In relation to a licence holder a section 8 duty is a duty imposed on the holder by section 8.
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(12) In sections 16 to 19 any reference to a section 8 duty or to a final or provisional order must be construed in accordance with this section.
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| Procedural requirements. |
16. - (1) Before making a final order or confirming a provisional order the Secretary of State must-
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(a) publish a notice in such manner as he thinks appropriate for bringing the matters to which it relates to the attention of persons likely to be affected by them, |
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(b) serve on the licence holder a copy of the notice and a copy of the order proposed (or proposed to be confirmed), and |
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(c) consider any representations made in accordance with the notice (and not withdrawn). |
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(2) The notice must-
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(a) state that the Secretary of State proposes to make or confirm the order and state its effect, |
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(b) state the duty with which the order is intended to secure compliance, the acts or omissions which the Secretary of State thinks constitute (or would constitute) contraventions of the duty, and any other facts which he thinks justify the making or confirmation of the order, and |
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(c) state the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made regarding the proposed order or confirmation. |
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(3) The Secretary of State must not make a final order with modifications, or confirm a provisional order with modifications, unless-
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(a) the licence holder consents to the modifications, or |
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(b) subsection (4) is complied with. |
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(4) This subsection is complied with if the Secretary of State-
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(a) serves on the licence holder a notice of the proposal to make or confirm the order with modifications, |
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(b) states in the notice the period (not less than seven days starting with the date of the service of the notice) within which representations may be made regarding the proposed modifications, and |
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(c) considers any representations made in accordance with the notice (and not withdrawn). |
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(5) As soon as practicable after making a final order or making or confirming a provisional order the Secretary of State must-
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(a) serve a copy of the order on the licence holder, and |
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(b) publish the order in such manner as the Secretary of State thinks appropriate for bringing it to the attention of persons likely to be affected by it. |
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(6) Before revoking a final order or a provisional order which has been confirmed the Secretary of State must-
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(a) publish a notice in such manner as he thinks appropriate for bringing the revocation to the attention of persons likely to be affected by it, |
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(b) serve a copy of the notice on the licence holder, and |
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(c) consider any representations made in accordance with the notice (and not withdrawn). |
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(7) The notice must-
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(a) state that the Secretary of State proposes to revoke the order and state its effect, and |
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(b) state the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made regarding the proposed revocation. |
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(8) If after acting under subsection (6) the Secretary of State decides not to revoke the order he must-
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(a) publish a notice of his decision in such manner as he thinks appropriate for bringing the decision to the attention of persons likely to be affected by it, and |
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(b) serve a copy of the notice on the licence holder. |
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(9) If the Secretary of State is satisfied as mentioned in section 15(10) he must-
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(a) serve notice that he is so satisfied on the licence holder, and |
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(b) publish the notice in such manner as he thinks appropriate for bringing the matters to which it relates to the attention of persons likely to be affected by them. |
| Validity of orders. |
17. - (1) This section applies if a licence holder to which a final or provisional order relates is aggrieved by the order and wants to question its validity on the ground that-
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(a) its making or confirmation was not within the powers conferred by section 15, or |
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(b) any of the requirements of section 16(1) to (5) have not been complied with. |
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(2) The licence holder may apply to the court.
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(3) If a copy of the order as made or confirmed was served on the licence holder the application to the court must be made within the period of 42 days starting with the day the copy was served on it.
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(4) On an application under this section the court may quash the order or any provision of it if satisfied that-
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(a) the making or confirmation of the order was not within the powers conferred by section 15, or |
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(b) the interests of the licence holder have been substantially prejudiced by a failure to comply with the requirements of section 16(1) to (5). |
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(5) Except as provided by this section, the validity of a final or provisional order may not be questioned in any legal proceedings.
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(6) A reference to the court is to-
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(a) the High Court in relation to England and Wales or Northern Ireland; |
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(b) the Court of Session in relation to Scotland. |
