PART I continued CHAPTER I continued
(1) This section applies if the Competition Commission gives a direction under section 15(2).
(2) If the direction is given under section 15(2)(a) the Commission must itself make such modifications of the conditions of the licence as it thinks are needed to remedy or prevent the adverse effects specified in the Commission’s report on the reference under section 12.
(3) If the direction is given under section 15(2)(b) the Commission must itself make such modifications of the conditions of the licence as it thinks are needed to remedy or prevent such of the adverse effects as—
(a) are specified in the Commission’s report on the reference under section 12, and
(b) would not be remedied or prevented by the modifications set out in the notice under section 14 and not specified under section 15(2)(b).
(4) Before making modifications under this section the Commission must—
(a) publish a notice in such manner as the Commission 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,
(b) serve a copy of the notice on the licence holder and a copy on the CAA, and
(c) consider any representations made in accordance with the notice (and not withdrawn).
(5) The notice must—
(a) state that the Commission proposes to make the modifications and state their effect and the reasons for so proposing, and
(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.
(6) As soon as practicable after making modifications under this section the Commission must—
(a) publish a notice in such manner as the Commission thinks appropriate for bringing the matters to which it relates to the attention of persons likely to be affected by the modifications, and
(b) serve a copy of the notice on the licence holder, a copy on the Secretary of State and a copy on the CAA.
(7) The notice under subsection (6) must—
(a) state that the modifications have been made,
(b) set them out, and
(c) set out the reasons for making them.
(1) The Competition Commission must exercise its functions under section 16(2) and (3) so as to maintain a high standard of safety in the provision of air traffic services; and that duty is to have priority over the application of subsections (2) to (5).
(2) The Commission must exercise its functions under section 16(2) and (3) in the manner it thinks best calculated—
(a) to further the interests of operators and owners of aircraft, owners and managers of aerodromes, persons travelling in aircraft and persons with rights in property carried in them;
(b) to promote efficiency and economy on the part of licence holders;
(c) to secure that licence holders will not find it unduly difficult to finance activities authorised by their licences;
(d) to take account of any international obligations of the United Kingdom notified to the CAA by the Secretary of State (whatever the time or purpose of the notification) and notified to the Commission by the CAA;
(e) to take account of any guidance on environmental objectives given to the CAA by the Secretary of State after the coming into force of this section and notified to the Commission by the CAA.
(3) The only interests to be considered under subsection (2)(a) are interests regarding the range, availability, continuity, cost and quality of air traffic services.
(4) The reference in subsection (2)(a) to furthering interests includes a reference to furthering them (where the Commission thinks it appropriate) by promoting competition in the provision of air traffic services.
(5) If in a particular case there is a conflict in the application of the provisions of subsections (2) to (4), in relation to that case the Commission must apply them in the manner it thinks is reasonable having regard to them as a whole.
(6) The Commission must exercise its functions under section 16(2) and (3) so as to impose on licence holders the minimum restrictions which are consistent with the exercise of those functions.
(1) The provisions listed in subsection (2) apply in relation to the exercise by the Commission of its functions under section 15 or 16 as if—
(a) references in section 82(1) and (2) of the 1973 Act to a report of the Commission under that Act were references to a notice under section 15(4) or 16(4) or (6) above;
(b) references in section 85 of the 1973 Act to an investigation on a reference made to the Commission under that Act were references to an investigation by the Commission for the purposes of exercising its functions under section 15 or 16 above;
(c) the reference in section 93B of the 1973 Act to the Commission’s functions under Part IV, V, VI or VIII of that Act were a reference to its functions under section 15 or 16 above.
(2) The provisions are—
(a) sections 82(1) and (2) of the 1973 Act (exclusion of certain matters and absolute privilege);
(b) section 85 of the 1973 Act (witnesses and documents);
(c) section 93B of the 1973 Act (false or misleading information);
(d) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about Commission’s general functions);
(e) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (Commission’s general functions).
(3) The 1973 Act is the [1973 c. 41.] Fair Trading Act 1973.
(1) This section applies if—
(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
(b) the first or second requirement (set out below) is satisfied.
(2) The first requirement is that—
(a) the circumstances are as mentioned in section 56(1) of the 1973 Act (order on report on monopoly reference), and
(b) the monopoly situation exists in relation to the provision of air traffic services.
(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—
(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, or
(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.
(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.
(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.
(6) Expressions used in this section and the 1973 Act have the same meanings in this section as in that Act.
(7) The 1973 Act is the [1973 c. 41.] Fair Trading Act 1973.
(1) If the CAA is satisfied that a licence holder is contravening or is likely to contravene a section 8 duty or a licence condition it must make a final order containing provision it thinks is needed to secure compliance with the duty or condition.
(2) If the CAA is not so satisfied but it appears to it that a licence holder is contravening or is likely to contravene a section 8 duty or a licence condition and that a provisional order is needed, it must make a provisional order containing provision it thinks is needed to secure compliance with the duty or condition.
(3) In deciding whether a provisional order is needed the CAA must have regard in particular to—
(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 or licence condition unless a provisional order is made, and
(b) the fact that the only remedy for a contravention of a section 8 duty or licence condition is under this section and section 24 (unless there is an act or omission which takes place in the course of the provision of air traffic services).
(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.
(5) A final or provisional order—
(a) takes effect at a time determined by or under the order;
(b) must secure that that time is the earliest practicable time;
(c) may be revoked at any time by the CAA.
(6) A final order continues to have effect until such time (if any) as the CAA revokes it.
(7) A provisional order ceases to have effect at the termination time, and that is the earlier of—
(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;
(b) such time (if any) as the CAA revokes it.
(8) But if the CAA confirms a provisional order under subsection (9) before the termination time it continues to have effect until such time (if any) as the CAA revokes it.
(9) The CAA must confirm a provisional order (with or without modifications) if—
(a) it is satisfied that the licence holder is contravening or is likely to contravene a section 8 duty or a licence condition, and
(b) it thinks its confirmation (with any modifications) is needed to secure compliance with the duty or condition.
(10) In relation to a licence holder—
(a) a section 8 duty is a duty imposed on the holder by section 8;
(b) a licence condition is a condition of the licence concerned.
(11) In sections 21 to 25 any reference to a section 8 duty or to a licence condition or to a final or provisional order must be construed in accordance with this section.
(12) This section has effect subject to section 21.
(1) The CAA must not make a final order or make or confirm a provisional order if it is satisfied that—
(a) the duty imposed on it by section 2 precludes it from doing so, or
(b) the most appropriate way of proceeding is under the [1998 c. 41.] Competition Act 1998.
(2) If the CAA is satisfied that any of the conditions in subsection (3) applies it must not make a final order or make or confirm a provisional order unless it believes that it is appropriate to do so.
(3) The conditions are that—
(a) the licence holder has agreed to take and is taking all the steps the CAA thinks appropriate to secure or facilitate compliance with the duty or condition concerned;
(b) the contraventions or apprehended contraventions are trivial;
(c) the contraventions or apprehended contraventions will not adversely affect the interests of the persons referred to in subsection (4);
(d) the Secretary of State has made an application under section 28 for an air traffic administration order in relation to the licence holder.
(4) The persons are operators and owners of aircraft, owners and managers of aerodromes, persons travelling in aircraft and persons with rights in property carried in them.
(5) These interests are the only ones to be considered under subsection (3)(c)—
(a) interests regarding safety;
(b) interests regarding the range, availability, continuity, cost and quality of air traffic services.
(1) Before making a final order or confirming a provisional order the CAA must—
(a) publish a notice in such manner as it thinks appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them,
(b) serve on the licence holder a copy of the notice and a copy of the order proposed (or proposed to be confirmed), and
(c) consider any representations made in accordance with the notice (and not withdrawn).
(2) The notice must—
(a) state that the CAA proposes to make or confirm the order and state its effect,
(b) state the section 8 duty or licence condition with which the order is intended to secure compliance, the acts or omissions which the CAA thinks constitute (or would constitute) contraventions of the duty or condition, and any other facts which it thinks justify the making or confirmation of the order, and
(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.
(3) The CAA must not make a final order with modifications, or confirm a provisional order with modifications, unless—
(a) the licence holder consents to the modifications, or
(b) subsection (4) is complied with.
(4) This subsection is complied with if the CAA—
(a) serves on the licence holder a notice of the proposal to make or confirm the order with modifications,
(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
(c) considers any representations made in accordance with the notice (and not withdrawn).
(5) But if the modifications are trivial the CAA must be treated as complying with subsection (4) if it serves on the licence holder a notice of the proposal to make or confirm the order with modifications.
(6) As soon as practicable after making a final order or making or confirming a provisional order the CAA must—
(a) serve a copy of the order on the licence holder and a copy on the Secretary of State, and
(b) publish the order in such manner as the CAA thinks appropriate for bringing it to the attention of persons likely to be affected by it.
(7) Before revoking a final order or a provisional order which has been confirmed the CAA must—
(a) publish a notice in such manner as it thinks appropriate for bringing the revocation to the attention of persons likely to be affected by it,
(b) serve a copy of the notice on the licence holder, and
(c) consider any representations made in accordance with the notice (and not withdrawn).
(8) The notice must—
(a) state that the CAA proposes to revoke the order and state its effect, and
(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.
(9) If after acting under subsection (7) the CAA decides not to revoke the order it must—
(a) publish a notice of its decision in such manner as it thinks appropriate for bringing the decision to the attention of persons likely to be affected by it, and
(b) serve a copy of the notice on the licence holder.
(10) If the CAA is satisfied as mentioned in section 21(1) it must—
(a) serve a notice that it is so satisfied on the licence holder, and
(b) publish the notice in such manner as it thinks appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(11) If the CAA is satisfied as mentioned in section 21(2) and it does not believe it is appropriate to make a final order or make or confirm a provisional order, it must—
(a) serve a notice to that effect on the licence holder, and
(b) publish the notice in such manner as it thinks appropriate for bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(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—
(a) its making or confirmation was not within the powers conferred by sections 20 and 21, or
(b) any of the requirements of section 22(1) to (6) have not been complied with.
(2) The licence holder may apply to the court.
(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.
(4) On an application under this section the court may quash the order or any provision of it if satisfied that—
(a) the making or confirmation of the order was not within the powers conferred by sections 20 and 21, or
(b) the interests of the licence holder have been substantially prejudiced by a failure to comply with the requirements of section 22(1) to (6).
(5) Except as provided by this section, the validity of a final or provisional order may not be questioned in any legal proceedings.
(6) A reference to the court is to—
(a) the High Court in relation to England and Wales or Northern Ireland;
(b) the Court of Session in relation to Scotland.
(1) The licence holder to which a final or provisional order relates has a duty to comply with it.
(2) The duty is owed to any person who may be affected by a contravention of the order.
(3) A breach of the duty which causes such a person to sustain loss or damage is actionable by him.
(4) In proceedings brought against a licence holder under subsection (3) it is a defence for it to prove that it took all reasonable steps and exercised all due diligence to avoid contravening the order.
(5) Compliance with a final or provisional order is also enforceable by civil proceedings brought by the CAA for an injunction or for interdict or for any other appropriate relief or remedy.
(6) Subsection (5) does not prejudice a right a person may have by virtue of subsection (3) to bring civil proceedings for contravention or apprehended contravention of a final or provisional order.
(1) This section applies if it appears to the CAA that a licence holder may have contravened or may be contravening or is likely to contravene a section 8 duty or a licence condition.
(2) For any purpose connected with such of the CAA’s functions under sections 20 and 21 as are exercisable in relation to the matter it may serve on any person a notice which—
(a) requires the person to produce any documents which are specified or described in the notice and are in his custody or under his control, and to produce them at a time and place so specified and to a person so specified, or
(b) requires the person to supply information specified or described in the notice, and to supply it at a time and place and in a form and manner so specified and to a person so specified.
(3) A requirement may be made under subsection (2)(b) only if the person is carrying on a business.
(4) No person may be required under this section—
(a) to produce documents which he could not be compelled to produce in civil proceedings in the court;
(b) to supply information which he could not be compelled to supply in such proceedings.
(5) If a person without reasonable excuse fails to do anything required of him by a notice under subsection (2) he is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) If a person intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under subsection (2) he is guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(7) If a person makes default in complying with a notice under subsection (2) the court may on the CAA’s application make such order as the court thinks fit for requiring the default to be made good.
(8) An order under subsection (7) may provide that all the costs or expenses of and incidental to the application are to be borne—
(a) by the person in default, or
(b) if officers of a company or other association are responsible for its default, by those officers.
(9) A reference to producing a document includes a reference to producing a legible and intelligible copy of information recorded otherwise than in legible form.
(10) A reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(11) A reference to the court is to—
(a) the High Court in relation to England and Wales or Northern Ireland;
(b) the Court of Session in relation to Scotland.
(1) No licence company may be wound up voluntarily.
(2) No application may be made to a court for an administration order under Part II of the 1986 Act in relation to a licence company, and—
(a) anything purporting to be such an application is of no effect;
(b) no administration order may be made under that Part in relation to a licence company.
(3) No step may be taken by a person to enforce any security over the property of a licence company unless the person has given to the Secretary of State and the CAA at least 14 days' notice of his intention to take the step.
(4) No application for the winding up of a licence company may be made by a person other than the Secretary of State unless the person has given to the Secretary of State and the CAA at least 14 days' notice of his intention to make the application.
(5) In subsection (3) “security” and “property” have the same meanings as in Parts I to VII of the 1986 Act.
(6) In this section and sections 27 to 30—
(a) references to a licence company are to a company which holds a licence;
(b) references to the 1986 Act are to the [1986 c. 45.] Insolvency Act 1986.
(1) This section applies if an application is made to any court for the winding up of a licence company.
(2) The Secretary of State and the CAA are entitled to be heard by the court.
(3) The court must not make a winding up order or appoint a provisional liquidator.
(4) But if the court is satisfied that it would be appropriate to make a winding up order if the company were not a licence company, it must instead make an air traffic administration order.
(5) The Secretary of State and the CAA may propose a person to manage the company’s affairs, business and property while an air traffic administration order is in force; and if they do the court must appoint that person.
(6) A reference to the court is to the court which (but for this section) would have jurisdiction to wind up the company.
(1) The court may make an air traffic administration order in relation to a licence company if—
(a) an application by petition is made by the Secretary of State or by the CAA with his consent, and
(b) the court is satisfied that one or more of the following four conditions is satisfied.
(2) The first condition is that the company is or is likely to be unable to pay its debts.
(3) The second condition is that—
(a) the Secretary of State certifies that but for section 27 it would be appropriate for him to petition for the company’s winding up under section 124A of the 1986 Act (petition following inspectors' report etc), and
(b) but for section 27 it would be just and equitable (as mentioned in section 124A) for the company to be wound up.
(4) The third condition is that—
(a) there has been or is or is likely to be a contravention by the company of a section 8 duty,
(b) no notice has been served under section 22(10) or (11) in relation to the contravention or apprehended contravention, and
(c) the contravention or apprehended contravention is serious enough to make it inappropriate for the company to continue to hold the licence concerned.
(5) The fourth condition is that—
(a) a final or provisional order has been made or confirmed in relation to a section 8 duty or a licence condition,
(b) the order is not the subject of proceedings under section 23, and
(c) there has been or is or is likely to be such a contravention of the order by the company as to make it inappropriate for it to continue to hold the licence concerned.
(6) For the purposes of subsection (2) a company is unable to pay its debts if it is deemed to be unable to do so under section 123 of the 1986 Act.
(7) A reference in subsection (4) or (5) to a section 8 duty or to a licence condition or to a final or provisional order is to be construed in accordance with section 20.
(8) A reference to the court is to the court which (but for section 27) would have jurisdiction to wind up the company.
(1) An air traffic administration order made under section 27 or 28 is an order directing that in the period while the order is in force the company’s affairs, business and property are to be managed by a person appointed by the court—
(a) for the achievement of the following two purposes, and
(b) in a manner which protects the interests of the company’s members and creditors.
(2) The first purpose is—
(a) the transfer to another company, as a going concern, of so much of the licence company’s undertaking as it is necessary to transfer to ensure that its licensed activities may be properly carried out, or
(b) the transfer to different companies of different parts of the licence company’s undertaking, as going concerns, where the parts together constitute so much of its undertaking as is described in paragraph (a).
(3) The second purpose is the carrying on, pending the transfer, of the licence company’s licensed activities.
(4) A reference to a licence company’s licensed activities is to the activities which the licence concerned authorises the company to carry out.
(5) In subsection (1) “business” and “property” have the same meanings as in the 1986 Act.
(6) The reference in subsection (1) to the court is to the court making the order.
(1) A petition under section 28 above cannot be withdrawn except with the court’s leave.
(2) Section 9(4) and (5) of the 1986 Act (court’s powers) apply on the hearing of a petition under section 28 above as they apply on the hearing of a petition for an administration order.
(3) Section 10(1), (2), (4) and (5) of the 1986 Act (effect of petition) apply in the case of a petition under section 28 above as if—
(a) the reference in subsection (1) to an administration order were to an air traffic administration order;
(b) the reference in subsection (1)(c) to proceedings included a reference to proceedings under or for the purposes of section 20 above;
(c) in subsection (1)(c) after “its property” there were inserted “, and no right of re-entry or forfeiture may be enforced against the company in respect of any land,”;
(d) subsection (2)(b) and (c) were omitted.
(4) Schedules 1 and 2 contain provisions relating to air traffic administration orders.
(5) The power given by section 411 of the 1986 Act to make rules applies for the purpose of giving effect to the air traffic administration order provisions as it applies for the purpose of giving effect to Parts I to VII of that Act, but taking references to those Parts as references to those provisions.
(6) The air traffic administration order provisions are sections 27 to 29, this section and Schedules 1 and 2.
(7) The reference in subsection (1) to the court is to the court to which the application by petition is made.