Enterprise Act 2002

Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))

33 (1) The Airports (Northern Ireland) Order 1994 is amended as follows.

(2) In Article 35 (supplementary provisions relating to references to the Commission), paragraphs (3) and (3A) shall cease to have effect.

(3) After Article 35 there is inserted—

“35A References under Article 34: time limits

(1) Every reference under Article 34 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the Commission on a reference under Article 34 shall not have effect (and no action shall be taken in relation to it under Article 37) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under paragraph (3).

(3) The CAA may, if it has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under paragraph (3) in relation to the same reference.

(5) The CAA shall, in the case of an extension made by it under paragraph (3)—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b) send a copy of what has been published by it under sub-paragraph (a) to the airport operator concerned and the Department.

35B References under Article 34: powers of investigation

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 34 as they apply for the purposes of references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if—

(a) subsection (2) were omitted; and

(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3) Section 111(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—

(a) for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

(b) for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

(c) the words “by this Part” were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.

(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.”

(4) In Article 36 (reports on references)—

(a) after paragraph (2) there is inserted—

“(2A) For the purposes of Article 37(2), a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(2B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 34 as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.”;

(b) for paragraph (4) there is substituted—

“(4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under Article 34.

(4A) In making any report on a reference under Article 34 the Commission must have regard to the following considerations before disclosing any information.

(4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

(4C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (4C)(a) or (b) is necessary for the purposes of the report.”

(5) In Article 47 (co-ordination of exercise of functions by CAA and Director General of Fair Trading)—

(a) in paragraph (a)—

(i) for “the Director General of Fair Trading of functions under the 1973 Act or the 1980 Act” there is substituted “the Office of Fair Trading of functions under the Enterprise Act 2002”;

(ii) for “the Director” there is substituted “the Office of Fair Trading”;

(b) in paragraph (b), for “the Director” there is substituted “the Office of Fair Trading”.

(6) In Article 49 (restriction on disclosure of information)—

(a) in paragraph (2), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(b) in paragraph (3), at the end there is inserted—

“(t) the Enterprise Act 2002”.