CHAPTER IICOMMON PROVISIONS REGARDING PROCEEDINGS

Article 4Initiation of proceedings1.

An investigation shall be initiated following a written complaint submitted by ...one or more United Kingdom air carriers or an association of United Kingdom air carriers, or on the CAA’s own initiative, if there is prima facie evidence of the existence of all the following circumstances:

(a)

a practice distorting competition, adopted by a third country or a third-country entity;

(b)

injury or threat of injury to one or more United Kingdom air carriers; and

(c)

a causal link between the alleged practice and the alleged injury or threat of injury.

When it receives a complaint pursuant to paragraph 1, the CAA shall inform the Secretary of State.

The CAA shall examine, in a timely manner, the accuracy and adequacy of the elements provided in the complaint or at the disposal of the CAA, in order to determine whether there is sufficient evidence to justify the initiation of an investigation in accordance with paragraph 1.

The CAA shall decide not to initiate an investigation where the facts put forward in the complaint neither raise a systemic issue nor have a significant impact on one or more United Kingdom air carriers.

The CAA shall inform the complainant and the Secretary of State where it has decided not to initiate an investigation. The information provided shall contain the reasons for the decision. ...

Where the evidence presented is insufficient for the purposes of paragraph 1, the CAA shall inform the complainant about such insufficiency within 60 days of the date on which the complaint was lodged. The complainant shall be given 45 days to provide additional evidence. Where the complainant fails to do so within that time limit, the CAA may decide not to initiate the investigation.

Subject to paragraphs 4 and 6, the CAA shall decide whether to initiate an investigation in accordance with paragraph 1 within a maximum period of five months of the lodging of the complaint.

Subject to paragraph 4, when the CAA considers that there is sufficient evidence to justify initiating an investigation, the CAA shall take the following steps:

(a)

initiate the proceedings and notify the Secretary of State thereof;

(b)

publish a notice in its Official Record; the notice shall announce the initiation of the investigation, indicate the scope of the investigation, the third country or third-country entity which has allegedly been engaged in practices distorting competition and the alleged injury or threat of injury, the United Kingdom air carriers concerned, and state the period within which interested parties may make themselves known, present their views in writing, submit information or apply to be heard by the CAA. That period shall be at least 30 days;

(c)

request the Secretary of State to officially notify the representatives of the third country and third-country entity concerned of the initiation of the investigation;

(d)

inform the complainant ... of the initiation of the investigation.

Where the complaint is withdrawn prior to the initiation of the investigation, the complaint is considered not to have been lodged. This is without prejudice to the right of the Commission to initiate an investigation on its own initiative in accordance with paragraph 1.

Article 5The investigation1.

Following the initiation of proceedings, the CAA shall begin an investigation.

The investigation shall aim to determine whether a practice distorting competition, adopted by a third country or a third-country entity, has caused injury or threat of injury to the United Kingdom air carriers concerned.

Where, during the course of the investigation referred to in paragraph 2 of this Article, the CAA finds evidence that a practice might lead to a negative impact on air connectivity of a particular region of the United Kingdom, and thus to passengers, that evidence shall be taken into account in the determination of the United Kingdom interest as referred to in Article 3.

The CAA shall seek all the information it considers to be necessary in order to conduct the investigation and shall verify the accuracy of the information it has received or collected with the United Kingdom air carriers concerned, or with the third country, an interested party, or the third-country entity concerned.

Where the information submitted pursuant to paragraph 4 is incomplete, it shall be taken into account, provided that it is neither false nor misleading.

If evidence or information is not accepted, the supplying party shall be informed immediately of the reasons thereof, and shall be granted an opportunity to provide further explanations within a specified time limit.

If the CAA requires information in the course of its investigation which it is unable to access or receive, the CAA may request the support of the Secretary of State in accessing this information. The CAA may request the Secretary of State to contribute to relevant verification and analyses.

If it appears necessary, the CAA may carry out investigations in the territory of a third country, provided that the third-country entity concerned has given its consent and the government of the third country has been officially notified and has not raised any objection.

Parties which have made themselves known within the time limits set out in the notice of initiation, shall be heard if they have made a request for a hearing showing that they are an interested party.

10.

Complainants, interested parties... and the representatives of the third country or third-country entity concerned may consult all information made available to the CAA or the Secretary of State, except for internal documents that are for the use of the CAA and the Secretary of State, provided that such information is not confidential within the meaning of Article 8 and provided that they have addressed a request in writing to the CAA.

Article 6Suspension1.

The CAA may suspend the investigation if , after consultation between the CAA and the Secretary of State, the Secretary of State is of the view that it appears more appropriate to address the practice distorting competition exclusively under the dispute settlement procedures established by an applicable air transport or air services agreement to which the United Kingdom is a party, or to any other agreement which contains provisions on air transport services to which the United Kingdom is a party. ...

The CAA may resume the investigation in any of the following cases:

(a)

the procedure conducted under the applicable air transport or air services agreement or any other agreement which contains provisions on air transport services has led to a finding of an infringement by the other party or parties to the agreement which has become final and binding upon such other party or parties, but corrective action has not been taken promptly, or within the period provided for under the relevant procedures;

(b)

the practice distorting competition has not been eliminated within 12 months from the date of suspension of the investigation.

The CAA shall suspend the investigation if, within 15 days from the date of the notification of the initiation of the investigation:

(a)

the Secretary of State has notified the CAA of the Secretary of State’s intention to address the practice distorting competition exclusively under the dispute settlement procedures applicable under the air transport or air services agreement, or any other agreement which contains provisions on air transport services, that the United Kingdom has concluded with the third-country concerned; ...

In such cases of suspension, Article 7(1) and (2) shall apply.

The CAA may resume the investigation in any of the following cases:

(a)

the Secretary of State has not initiated the dispute settlement procedure under the relevant international agreement within three months from the date of the notification referred to in point (a) of paragraph 2;

(b)

the Secretary of State notifies the CAA that the outcome of the dispute settlement procedures referred to in paragraph 2 of this Article has not been enforced correctly and expeditiously;

(c)

the Secretary of State asks the CAA to resume the investigation;

(d)

the CAA comes to the conclusion that the practice distorting competition has not been eliminated within 12 months of the date of the notification referred to in point (a) of paragraph 2 ...;

(e)

in the cases of urgency foreseen in Article 11(3), if, within nine months of the date of notification referred to in point (a) of paragraph 2 of this Article ..., the practice distorting competition has not been eliminated; at the request of the Secretary of State, that period may be prolonged by the CAA, in duly justified cases, by a maximum of three months.

Article 7Cooperation with the Secretary of State in respect of proceedings relevant to cases falling under Chapter III1.

The Secretary of State shall inform the CAA of all relevant meetings scheduled in the framework of the air transport or air services agreement, or of any provision on air transport services included in any other agreement concluded with the third country concerned, to discuss the issue covered by the investigation. The Secretary of State shall provide the CAA with the agenda and all relevant information permitting an understanding of the topics to be discussed at those meetings.

The Secretary of State shall keep the CAA informed of the conduct of any dispute settlement procedure provided for in an air transport or air services agreement or in any provision on air transport services included in any other agreement concluded with the third country concerned and shall, where appropriate, invite the CAA to attend those procedures. The CAA may request further information from the Secretary of State .

Article 8Confidentiality1.

The CAA shall, if good cause is shown, treat as confidential any information which is by nature confidential, including but not limited to information the disclosure of which would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information, or which is provided on a confidential basis by parties to an investigation.

Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be sufficiently detailed so as to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, the interested parties may indicate that the confidential information cannot be summarised. In such exceptional circumstances, a statement of the reasons why a summary is not possible shall be provided.

Information received pursuant to this Regulation shall be used only for the purpose for which it was requested. This paragraph shall not preclude the use of information received in the context of one investigation for the purpose of initiating another investigation in accordance with this Regulation.

The CAA and the Secretary of State, including their respective officials, shall not reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis by a party to an investigation, without specific permission from the party submitting such information. Exchanges of information between the CAA and Secretary of State, or any internal document prepared by the CAA or the Secretary of State, shall not be divulged except where this is specifically provided for in this Regulation.

Where it appears that a request for confidentiality is not justified and if the person supplying the information is unwilling either to make the information public or to authorise its disclosure in generalised or summary form, the information concerned may be disregarded.

This Article shall not preclude the disclosure of general information by the CAA or Secretary of State and in particular the disclosure of the reasons on which decisions taken pursuant to this Regulation are based or the disclosure of the evidence relied on by the CAA or Secretary of State in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interest of the parties concerned that their business or government secrets not be divulged.

The CAA and Secretary of State shall take any necessary and appropriate measures intended to ensure the confidentiality of the information that is relevant to the application of this Regulation and provided that they are compatible with its terms.

Article 9Basis of findings in case of non-cooperation

Where access to the necessary information is refused or is otherwise not provided within the time limits provided for in this Regulation, or where the investigation is significantly impeded, provisional or final findings, affirmative or negative, may be made on the basis of the facts and evidence available. Where the CAA finds that false or misleading information has been submitted, such information shall be disregarded.

Article 10Disclosure1.

The CAA shall disclose to the third country, the third-country entity and the third-country air carrier concerned, as well as the complainant, the interested parties, the Secretary of State and the United Kingdom air carriers concerned the essential facts and considerations on the basis of which it intends to recommend redressive measures, or to terminate proceedings without adopting redressive measures...

The disclosure referred to in paragraph 1 shall not prejudice any subsequent decision which may be taken by the CAA or the Secretary of State. Where the CAA or the Secretary of State intends to base such a decision on any additional or different facts and considerations, they shall be disclosed as soon as possible.

Additional information provided after disclosure shall be taken into consideration only if received within a period to be set in each case by the CAA or the Secretary of State, as the case may be, which shall be at least 14 days, due consideration being given to the urgency of the matter. A shorter period may be set whenever an additional final disclosure has to be made.

Article 11Duration of proceedings and suspension1.

The proceedings shall be concluded within 20 months. That period may be prolonged in duly justified cases. In the case of a suspension of the proceedings as set out in paragraph 4, that period of suspension shall not be counted as part of the duration of the proceedings.

The investigation shall be concluded within 12 months. That period may be prolonged in duly justified cases. In the case of a suspension of the investigation as set out in Article 6, that period of suspension shall not be counted as part of the duration of the investigation. Where the period for the investigation is prolonged, the duration of the prolongation shall be added to the total duration of the proceedings laid down in paragraph 1 of this Article.

In the case of urgency, that is in situations where, following clear evidence submitted by the complainant or the interested parties, the injury to United Kingdom air carriers might be irreversible, the proceedings may be shortened to nine months.

The CAA shall suspend the proceedings where the third country or the third-country entity concerned has taken decisive steps to eliminate the practice distorting competition or the injury or threat of injury to the United Kingdom air carriers concerned.

In the cases referred to in paragraph 4, the CAA shall resume the proceedings if the practice distorting competition, the injury or the threat of injury to the United Kingdom air carriers concerned has not been eliminated following a reasonable period of time, which, in any event, shall not be longer than six months.