Regulation (EU) 2019/712 of the European Parliament and of the CouncilShow full title

CHAPTER III U.K. PRACTICES DISTORTING COMPETITION

Article 12 U.K. Determination of injury or threat of injury

1. A finding of injury for the purposes of this Chapter shall be based on evidence and shall take account of the relevant factors, in particular:

(a) the situation of the [F1 United Kingdom] air carriers concerned, notably in terms of aspects such as frequency of services, utilisation of capacity, network effect, sales, market share, profits, return on capital, investment and employment;

(b) the general situation on the affected air transport services markets, notably in terms of level of fares or rates, capacity and frequency of air transport services or use of the network.

2. A determination of a threat of injury shall be based on clear evidence and not merely on allegation, conjecture or remote possibility. The development into injury must be clearly foreseeable, very likely and imminent, and capable of being attributed beyond any reasonable doubt to an action or decision by a third country or a third-country entity.

3. In making a determination regarding the existence of a threat of injury, consideration shall be given to factors such as:

(a) the foreseeable evolution of the situation of the [F1 United Kingdom] air carriers concerned, in particular in terms of frequency of services, utilisation of capacity, network effect, sales, market share, profits, return on capital, investment and employment;

(b) the foreseeable evolution of the general situation of the potentially affected air transport services markets, in particular in terms of level of fares or rates, capacity and frequency of air transport services or use of the network.

Although none of the factors listed in points (a) and (b), by themselves, is necessarily decisive, the totality of the factors considered shall be such as to lead to the conclusion that a further practice distorting competition is imminent and that, unless action is taken, injury will occur.

4. The [F2 CAA] shall select an investigation period which includes, but is not limited to, the period during which the injury has allegedly taken place and analyse the relevant evidence over that period.

5. Where the injury or threat of injury to the [F1 United Kingdom] air carriers concerned is caused by factors other than the practice distorting competition, they shall not be attributed to the practice under scrutiny and shall be disregarded.

Textual Amendments

F1 Words in Art. 12 substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(13)(a); 2020 c. 1, Sch. 5 para. 1(1)

F2 Word in Art. 12(4) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(13)(b); 2020 c. 1, Sch. 5 para. 1(1)

Article 13 U.K. Termination without redressive measures

1. The [F3 CAA] shall terminate the investigation without [F4 recommending that redressive measures be] adopted where the complaint is withdrawn, unless the [F3 CAA] continues the investigation on its own initiative.

2. The [F5 CAA] shall [F6 terminate] the investigation conducted in accordance with Article 5 without [F7 recommending] redressive measures where:

(a) the [F5 CAA] concludes that any of the following is not established:

(i)

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

(ii)

the existence of injury or threat of injury to the [F8 United Kingdom] air carriers concerned;

(iii)

the existence of a causal link between the injury or threat of injury and the practice considered;

(b) [F9 after consultation between the CAA and the Secretary of State, the Secretary of State] concludes that adopting redressive measures in accordance with Article 14 would be against the [F8 United Kingdom] interest;

(c) the third country or third-country entity concerned has eliminated the practice distorting competition; or

(d) the third country or third-country entity concerned has eliminated the injury or threat of injury to the [F8 United Kingdom] air carriers concerned.

F10 ...

3. The decision to terminate the investigation in accordance with paragraph 2 shall be accompanied by a statement of the reasons thereof and shall be published in the [F11 CAA’s Official Record].

Textual Amendments

F3 Word in Art. 13(1) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in Art. 13(1) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F5 Word in Art. 13(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F6 Word in Art. 13(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F7 Word in Art. 13(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(b)(iii); 2020 c. 1, Sch. 5 para. 1(1)

F8 Words in Art. 13(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(b)(iv); 2020 c. 1, Sch. 5 para. 1(1)

F9 Words in Art. 13(2)(b) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(b)(v); 2020 c. 1, Sch. 5 para. 1(1)

F10 Words in Art. 13(2) omitted (31.12.2020) by virtue of The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(b)(vi); 2020 c. 1, Sch. 5 para. 1(1)

F11 Words in Art. 13(3) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(14)(c); 2020 c. 1, Sch. 5 para. 1(1)

Article 14 U.K. Redressive measures

1. Without prejudice to Article 13, the [F12 CAA must recommend to the Secretary of State the adoption of] redressive measures if the investigation conducted under Article 5 determines that a practice distorting competition, adopted by a third country or a third-country entity, has caused injury to the [F13 United Kingdom] air carriers concerned. [F14 The Secretary of State may by regulations adopt redressive measures, in response to such a practice.]

F15 ...

2. Without prejudice to Article 13, the [F16 CAA must recommend to the Secretary of State the adoption of] redressive measures if the investigation conducted under Article 5 determines that a practice distorting competition, adopted by a third country or a third-country entity, causes a threat of injury, in accordance with Article 12(2) and (3), to the [F17 United Kingdom] air carriers concerned. [F18 The Secretary of State may by regulations adopt redressive measures, in response to such a practice. Such regulations must provide that the redressive measures are not to apply until the Secretary of State has directed that they are to apply. The Secretary of State must only make such a direction if the CAA has determined that the threat of injury has developed into actual injury.]

3. The redressive measures referred to in paragraphs 1 and 2 shall be imposed on the third-country air carriers benefiting from the practice distorting competition and may take the form of either of the following:

(a) financial duties;

(b) any operational measure of equivalent or lesser value, such as the suspension of concessions, of services owed or of other rights of the third-country air carrier. Priority shall be given to reciprocal operational measures, provided that they are not contrary to the [F19 United Kingdom] interest, or incompatible with [F20 the law of any part of the United Kingdom] or with international obligations.

4. The redressive measures referred to in paragraphs 1 and 2 shall not exceed what is necessary to offset the injury to the [F21 United Kingdom] air carriers concerned. To this end, those redressive measures may be limited to a specific geographic area or may be limited in time.

5. The redressive measures shall not consist of the suspension or limitation of traffic rights granted by [F22 the United Kingdom] to a third country under an air transport agreement, an air service agreement or any provision on air transport services included in any other agreement concluded with that third country.

6. The redressive measures referred to in paragraphs 1 and 2 shall not lead the [F23 United Kingdom] to violate air transport or air services agreements, or any provision on air transport services included in a trade agreement or any other agreement concluded with the third country concerned.

7. The decision [F24 by the CAA] to conclude the investigation with [F25 a recommendation to the Secretary of State to adopt] redressive measures referred to in paragraphs 1 and 2 shall be accompanied by a statement of the reasons thereof and shall be published in the [F26 CAA’s Official Record] .

Textual Amendments

F12 Words in Art. 14(1) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F13 Words in Art. 14(1) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in Art. 14(1) inserted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(a)(iii); 2020 c. 1, Sch. 5 para. 1(1)

F15 Words in Art. 14(1) omitted (31.12.2020) by virtue of The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(a)(iv); 2020 c. 1, Sch. 5 para. 1(1)

F16 Words in Art. 14(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F17 Words in Art. 14(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F18 Words in Art. 14(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(b)(iii); 2020 c. 1, Sch. 5 para. 1(1)

F19 Words in Art. 14(3) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(c)(i); 2020 c. 1, Sch. 5 para. 1(1)

F20 Words in Art. 14(3) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(c)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F21 Words in Art. 14(4) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(d); 2020 c. 1, Sch. 5 para. 1(1)

F22 Words in Art. 14(5) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(e); 2020 c. 1, Sch. 5 para. 1(1)

F23 Words in Art. 14(6) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(f); 2020 c. 1, Sch. 5 para. 1(1)

F24 Words in Art. 14(7) inserted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(g)(i); 2020 c. 1, Sch. 5 para. 1(1)

F25 Words in Art. 14(7) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(g)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F26 Words in Art. 14(7) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(15)(g)(iii); 2020 c. 1, Sch. 5 para. 1(1)

Article 15 U.K. Review of redressive measures

1. The redressive measures referred to in Article 14 shall remain in force only as long as, and to the extent that, it is necessary in view of the persistence of the practice distorting competition and the ensuing injury. To that end, the review procedure set out in paragraphs 2, 3 and 4 of this Article shall apply. The [F27 CAA] shall regularly provide a written report to the [F28 Secretary of State] on the effectiveness and impact of redressive measures.

2. Where circumstances so warrant, the need for the continued imposition of redressive measures in their initial form may be reviewed, either on the initiative of the [F29 CAA] or the complainant, or upon a reasoned request by the [F30 Secretary of State], the third country or the third-country entity concerned.

3. In the course of its review, the [F31 CAA] shall assess the continued existence of the practice distorting competition, of the injury and of the causal link between the practice and the injury.

[F32 4. The CAA must make recommendations to the Secretary of State as to whether the redressive measures adopted under Article 14 should be revoked, amended or maintained, as appropriate.]

Textual Amendments

F27 Word in Art. 15(1) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(16)(a)(i); 2020 c. 1, Sch. 5 para. 1(1)

F28 Words in Art. 15(1) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(16)(a)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F29 Word in Art. 15(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(16)(b)(i); 2020 c. 1, Sch. 5 para. 1(1)

F30 Words in Art. 15(2) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(16)(b)(ii); 2020 c. 1, Sch. 5 para. 1(1)

F31 Word in Art. 15(3) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(16)(c); 2020 c. 1, Sch. 5 para. 1(1)

F32 Art. 15(4) substituted (31.12.2020) by The Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019 (S.I. 2019/1224), regs. 1(2), 3(16)(d); 2020 c. 1, Sch. 5 para. 1(1)