The Civil Aviation (Allocation of Scarce Capacity) Regulations 2007
| Jurisdiction | UK Non-devolved |
| Citation | SI 2007/3556 |
2007 No. 3556
Civil aviation
The Civil Aviation (Allocation of Scarce Capacity) Regulations 2007
Made 17th December 2007
Laid before Parliament 21th December 2007
Coming into force 31th January 2008
The Secretary of State makes these Regulations in exercise of the powers conferred by sections 7(1) and (2) and 102(2)(b) of and Parts II and III of Schedule 13 to, the Civil Aviation Act 19821and by section 2(2) of the European Communities Act 19722;
She is a Minister designated3for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to air transport;
She has consulted the Administrative Justice and Tribunals Council in accordance with section 8 of the Tribunals and Inquiries Act 19924:
Citation and Commencement
1. These Regulations may be cited as the Civil Aviation (Allocation of Scarce Capacity) Regulations 2007 and come into force on 31st January 2008.
Interpretation
2. In these Regulations—
“the Act” means the Civil Aviation Act 1982;
“air service agreement” means an agreement between the United Kingdom and a third country governing aviation relations which is described in article 1 of Council Regulation (EC) No. 847/2004of the Council and the European Parliament on the negotiation and implementation of air service agreements between member States and third countries5;
“applicant” means a qualifying carrier who has applied for a scarce capacity allocation certificate;
“party” means any person who has exercised the right to be heard in accordance with regulation 13(1) and any person the CAA decides to hear pursuant to regulation 13(3);
“qualifying carrier” means—
(a) an undertaking which has been granted an air transport licence in accordance with section 65 of the Act; or
(b) a community air carrier as defined in section 69A(8) of the Act, which has either obtained its operating licence from the CAA, or is established in the United Kingdom in accordance with Article 43 of the Treaty establishing the European Community;6
“relevant traffic rights” means the traffic rights granted to the United Kingdom under or by virtue of an air service agreement;
“scarce capacity” means the capacity which exists for providing air services where the relevant traffic rights are insufficient to enable all qualifying carriers who would wish to operate services on a route, to provide all the services they would wish to provide;
“scarce capacity allocation certificate” means a certificate issued in accordance with regulation 19;
“third country” means a State other than a member State.
Consequential amendments
3. In the Civil Aviation Regulations 19917—
(a) regulation 3(5),
(b) in regulation 20(1), proviso (ii)(b), and
(c) regulation 27(9),
are omitted.
Capacity constrained routes
Notification of scarce capacity
4.—(1) Where the Secretary of State believes that within 6 months there will be scarce capacity on a route, she must notify the CAA of that belief.
(2) Notification under paragraph (1)—
(a)
(a) must state why the Secretary of State believes there will be scarce capacity on the route,
(b)
(b) may state what issues the Secretary of State believes the CAA will be asked to determine, and
(c)
(c) may describe the route in any manner the Secretary of State thinks fit.
(3) The Secretary of State may not give notification under paragraph (1) unless she has formed her belief after considering representations from qualifying carriers about the capacity they plan to provide.
(4) The CAA must, not later than one month after it receives the notification, publish in its Official Record a notice stating—
(a)
(a) the date from which it considers that it will be necessary to allocate scarce capacity on the route, and
(b)
(b) that it proposes to invite applications for the allocation of scarce capacity and, if necessary, hold a hearing for the purpose of determining those applications.
(5) The notice must specify—
(a)
(a) what information will be required by the CAA in connection with the application for the allocation of scarce capacity; and
(b)
(b) the closing date for applications.
(6) For the purposes of these Regulations a route becomes a capacity constrained route on the date specified under paragraph (4)(a) and remains as such until the date specified in the notice published under regulation 5(2).
Route ceasing to be capacity constrained route
5.—(1) Where the Secretary of State considers that there is no longer scarce capacity on a route she must notify the CAA.
(2) The CAA must, not later than one month after it receives the notification, publish in its Official Record a notice stating that, with effect from the date specified in the notice, the route is no longer a capacity constrained route.
Allocation of scarce capacity on capacity constrained routes
Scope of regulations 7 to 24
6. Regulations 7 to 24 apply where a qualifying carrier operates or wishes to operate an air service on a capacity constrained route.
Restrictions on carriage for reward
7. No person shall use an aircraft for the carriage for reward of passengers or cargo on a capacity constrained route unless—
(a) the qualifying carrier operating the air service holds a scarce capacity allocation certificate authorising him to operate aircraft on the route in question; and
(b) the terms of the scarce capacity allocation certificate are complied with insofar as they relate to that route.
Prescribed function of the CAA
8.—(1) The function of allocating scarce capacity on a capacity constrained route is prescribed as a function of the CAA for the purposes of section 7(2) of the Act.
(2) The function of deciding to grant, refusing to grant, revoking or varying (otherwise than on the application of the holder) a scarce capacity allocation certificate is prescribed as a function of the CAA for the purposes of section 7(1) of the Act.
(3) The quorum of the CAA for the purposes of the functions carried out pursuant to section 7(1) of the Act is two members unless—
(a)
(a) the CAA has specified less than 21 days for serving an objection or representation; or
(b)
(b) the parties to the hearing have consented to a quorum of the CAA being one member;
in which case the quorum is one member.
CAA functions in allocating scarce capacity
9.—(1) The CAA must allocate scarce capacity in accordance with this regulation.
(2) Section 4 of the Act (general objectives of the CAA) does not apply to the allocation of scarce capacity.
(3) The CAA must allocate scarce capacity in a manner which it considers is best calculated—
(a)
(a) to secure that qualifying carriers provide air transport services which satisfy all substantial categories of public demand at the lowest charges consistent with a high standard of safety in operating the services, whilst giving an economic return to efficient qualifying carriers on the sums invested in providing the services;
(b)
(b) to further the reasonable interests of users of air transport services;
(c)
(c) to secure the effective provision of civil air transport to and from the United Kingdom;
(d)
(d) to ensure that qualifying carriers compete as effectively as possible with other airlines in providing air transport services on international routes; and
(e)
(e) to ensure the most effective use of airports within the United Kingdom.
(4) When allocating scarce capacity the CAA must have regard—
(a)
(a) to the effect on existing air transport services provided by qualifying carriers; and
(b)
(b) in any case—
(i) where the existing services are similar (in terms of route) to the proposed new service; or
(ii) where two or more applicants have applied for a scarce capacity allocation certificate, indicating that they propose to provide a new but similar service,
to any benefits which may arise from enabling two or more airlines to provide the service in question.
(5) In exercising its functions under paragraphs (3) and (4), the CAA must have regard to the need to minimise so far as reasonably practicable—
(a)
(a) any adverse effects on the environment; and
(b)
(b) any disturbance to the public;
from noise, vibration, atmospheric pollution or any other cause attributable to the use of the aircraft for the purposes of civil aviation.
(6) In performing the function of allocating scarce capacity, the CAA must have regard to any advice received from the Secretary of State.
Application for the grant, revocation or variation of a scarce capacity allocation certificate
10.—(1) A qualifying carrier wishing to operate on a capacity constrained route must apply in writing to the CAA for a scarce capacity allocation certificate.
(2) A qualifying carrier may apply in writing to the CAA for the variation or revocation of a scarce capacity allocation certificate which that carrier holds.
(3) The CAA may refuse to consider an application for the grant, revocation or variation of a scarce capacity allocation certificate unless—
(a)
(a) in the case of an application for a grant or variation of a scarce capacity allocation certificate, the application is served on the CAA not less than four months before the scarce capacity allocation certificate (or the variation) is intended to have effect;
(b)
(b) the applicant has furnished all the information and documents required; and
(c)
(c) the applicant has paid any applicable charge under section 11 of the Act.
(4) As soon as reasonably practicable after an application has been received in accordance with this regulation the CAA...
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