CHAPTER IIIPRACTICES DISTORTING COMPETITION
Article 12Determination 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 F1United 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 F1United 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 F2CAA 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 F1United 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.
Article 13Termination without redressive measures
1.
2.
The F5CAA shall F6terminate the investigation conducted in accordance with Article 5 without F7recommending redressive measures where:
(a)
the F5CAA 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 F8United Kingdom air carriers concerned;
- (iii)
the existence of a causal link between the injury or threat of injury and the practice considered;
(b)
(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 F8United 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 F11CAA’s Official Record.
Article 14Redressive measures
1.
Without prejudice to Article 13, the F12CAA 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 F13United Kingdom air carriers concerned. F14The Secretary of State may by regulations adopt redressive measures, in response to such a practice.
F15...
2.
Without prejudice to Article 13, the F16CAA 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 F17United Kingdom air carriers concerned. F18The 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 F19United Kingdom interest, or incompatible with F20the 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 F21United 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 F22the 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 F23United 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.
Article 15Review 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 F27CAA shall regularly provide a written report to the F28Secretary 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 F29CAA or the complainant, or upon a reasoned request by the F30Secretary of State, the third country or the third-country entity concerned.
3.
In the course of its review, the F31CAA shall assess the continued existence of the practice distorting competition, of the injury and of the causal link between the practice and the injury.
F324.
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.