Civil Aviation Act 2012

6 Market power test

(1) The market power test is met in relation to an airport area if tests A to C are met by or in relation to the relevant operator.

(2) For the purposes of tests A to C “the relevant operator” means the person who is the operator of the airport area at the time the test is applied.

(3) Test A is that the relevant operator has, or is likely to acquire, substantial market power in a market, either alone or taken with such other persons as the CAA considers appropriate (but see subsections (6) and (7)).

(4) Test B is that competition law does not provide sufficient protection against the risk that the relevant operator may engage in conduct that amounts to an abuse of that substantial market power.

(5) Test C is that, for users of air transport services, the benefits of regulating the relevant operator by means of a licence are likely to outweigh the adverse effects.

(6) Test A is met only if—

(a) the market is a market for one or more of the types of airport operation service provided in the airport area (or for services that include one or more of those types of service), and

(b) geographically the market consists of or includes all or part of the airport area.

(7) In relation to an airport area that includes all or part of the core area of an airport (as well as all or part of the rest of the airport), subsection (6) has effect as if the references to the airport area were references to the core area or, as appropriate, the part of the core area.

(8) For the purposes of test B conduct may, in particular, amount to an abuse of substantial market power if it is conduct described in section 18(2)(a) to (d) of the Competition Act 1998.

(9) In test B “competition law” means—

(a) Articles 101 and 102 of the TFEU,

(b) Part 1 of the Competition Act 1998, and

(c) Part 4 of the Enterprise Act 2002 (market investigations).

(10) In applying tests A to C, the CAA must have regard to—

(a) relevant notices and guidance published by the European Commission about the application and enforcement of the prohibitions in Articles 101 and 102 of the TFEU;

(b) relevant advice and information published under section 52 of the Competition Act 1998 (advice and information about the application and enforcement of the prohibitions in Part 1 of that Act and Articles 101 and 102 of the TFEU);

(c) relevant advice and information published under section 171 of the Enterprise Act 2002 (advice and information about the operation of Part 4 of that Act).

(11) In this section “the TFEU” means the Treaty on the Functioning of the European Union.