The Operation of Air Services ... Regulations 2009

Citation and commencementU.K.

1.  These Regulations may be cited as the Operation of Air Services F1... Regulations 2009 and come into force on 26th January 2009.

Textual Amendments

[F2ReviewU.K.

1A.—(1) The Secretary of State must from time to time—

(a)carry out a review of regulations 3 to 32,

(b)set out the conclusions of the review in a report, and

(c)publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how Chapters I to III of the EC Regulation (which is implemented by means of regulations 3 to 32) is implemented in the other member States.

(3) The report must in particular—

(a)set out the objectives intended to be achieved by the regulatory system established by those regulations,

(b)assess the extent to which those objectives are achieved, and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which the Operation of Air Services in the Community (Pricing etc.) Regulations 2013 come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.]

Textual Amendments

RevocationU.K.

2.  The Regulations listed in Schedule 1 are revoked to the extent there specified.

InterpretationU.K.

3.—(1) In these Regulations—

“the CAA” means the Civil Aviation Authority;

“the EC Regulation” means Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24th September 2008 on common rules for the operation of air services in the [F3European Union] M1;

[F4“Official Record” means a document of that name published on the website of the CAA; and]

“United Kingdom national” has the same meaning as in section 105(1) of the Civil Aviation Act 1982 M2.

(2) The expressions [F5"UK air carrier"], “competent licensing authority”, “dry lease agreement”, “operating licence”, [F6“qualifying air carrier”,] “scheduled air service”, “traffic right” and “wet lease agreement” have the meanings given by Article 2 of the EC Regulation.

Textual Amendments

Marginal Citations

M1OJ L 293, 31.10.08, p. 3.

M21982 c.16. Section 105(1) has been amended by S.I. 1986/948 and by virtue of section 2(3) of the British Overseas Territories Act 2002 (c. 8).

PART 1U.K.Operating licences

Existing operating licencesU.K.

4.  A licence granted by the CAA under Council Regulation (EC) 2407/92 of 23rd July 1992 on licensing of air carriers M3 shall, in relation to times on or after 26th January 2009, be deemed for all purposes (including for the purposes of any enactment) to be an operating licence granted by the CAA under the EC Regulation.

Marginal Citations

M3OJ L 240, 24.8.1992, p. 1.

Competent licensing authority in relation to operating licencesU.K.

5.—[F7(1)] The CAA is the competent licensing authority for the United Kingdom for the purposes of Articles 3 to 11 [F8and 14] of the EC Regulation.

[F9(2) The CAA must publish annually in its Official Record a list of its decisions to grant, suspend or revoke operating licences.]

Textual Amendments

Proof of good repute etc.U.K.

6.  For the purpose of ensuring that an applicant for or holder of an operating licence granted by the CAA complies with Article 4(i) and 7 of the EC Regulation, the CAA may require proof that the person who continuously and effectively manages that undertaking–

(a)is not an undischarged bankrupt, and

(b)is otherwise of good repute.

Suspension and revocationU.K.

7.—(1) The CAA may revoke or suspend an operating licence that it has granted.

(2) The CAA may exercise its powers under paragraph (1) only after notifying the licence holder of its intention to do so and after due consideration of the case and any representations made by the licence holder.

Date of revocation or suspension of an operating licenceU.K.

8.—[F10(1) Where the CAA revokes or suspends an operating licence that it has granted on the application of the holder, unless otherwise specified by the CAA the revocation or suspension has effect on and from the day after the date on which the holder is notified of the decision.]

(2) In all other cases a revocation or suspension does not take effect before the expiry of the 14-day period specified in paragraph 3 of Schedule 2.

(3) If an appeal in accordance with regulation 9(1) is brought within the 14-day period specified in paragraph 3 of Schedule 2, the revocation or suspension does not take effect before the determination or abandonment of the appeal.

Textual Amendments

Appeal to the Secretary of StateU.K.

9.—(1) Where the CAA–

(a)refuses to grant an operating licence, or

(b)decides to revoke or suspend a licence that it has granted,

the applicant for or the holder of the licence may appeal to the Secretary of State.

F11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The provisions of Schedule 2 apply to any appeal.

Textual Amendments

Restriction on carriage of passengers by an air carrierU.K.

10.—(1) Where this paragraph applies a [F12UK air carrier] must not carry by air on a flight a passenger for remuneration or hire.

(2) Paragraph (1) applies where a person has made accommodation for carriage on that flight available to that passenger in circumstances where that person is obliged to but does not hold a licence required by the Civil Aviation (Air Travel Organisers' Licensing) Regulations 1995 M4.

Textual Amendments

Marginal Citations

Offences relating to operating licencesU.K.

11.—(1) It is an offence for a person knowingly or recklessly to carry by air passengers, mail or cargo for remuneration or hire without an appropriate operating licence granted by the CAA in circumstances where such a licence is required by the EC Regulation.

(2) For the purposes of determining whether an offence has been committed under paragraph (1), it is immaterial that such carriage occurred outside the United Kingdom if when it occurred the person—

(a)was a United Kingdom national,

(b)was a body incorporated under the law of any part of the United Kingdom, or

(c)was a person (other than a United Kingdom national or such a body) maintaining a place of business in the United Kingdom.

12.  A [F13UK air carrier] is guilty of an offence if it knowingly or recklessly carries by air any passenger in breach of regulation 10.

Textual Amendments

13.  It is an offence for a person knowingly or recklessly to provide information that is false in a material particular, for the purpose of—

(a)obtaining an operating licence for that person,

(b)procuring an operating licence for another person, or

(c)maintaining an operating licence.

PART 2U.K.Leased aircraft

Registration of aircraftU.K.

F1414.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Approval for and restriction on use of leased aircraftU.K.

15.—[F15(1)] The Secretary of State is the competent licensing authority for the purposes of granting an approval under Article 13(3) of the EC Regulation, for determining whether one of the conditions set out in Article 13(3)(b) is fulfilled and for the purposes of Article 13(4).

[F16(2) The provisions of Schedule 3 apply in relation to an appeal against a decision of the Secretary of State made pursuant to paragraph (1) as to whether one of the conditions in Article 13(3)(b) of the EC Regulation is fulfilled.]

Textual Amendments

16.— [F17(1)]  The CAA is the competent licensing authority for the purposes of granting safety approvals in accordance with Article 13(2) and for the purposes of Article 13(3)(a) of the EC Regulation.

[F18(2) The provisions of Schedule 4 apply to the conduct and procedure of the CAA for the purposes of exercising the functions conferred on it by paragraph (1).]

Textual Amendments

17.—(1) Save as provided in paragraph (3), where this paragraph applies the CAA must, subject to any conditions it thinks fit, issue an approval to an air carrier that holds an operating licence that it has granted.

(2) Paragraph (1) applies where such an air carrier intends to enter into—

(a)a dry lease agreement as lessor,

(b)a dry lease agreement as lessee in circumstances where the CAA is satisfied that the aircraft may be used safely, or

(c)a wet lease agreement in respect of an aircraft registered in [F19the United Kingdom or] the [F20European Union] as lessee with a [F21UK air carrier or a] Community air carrier.

[F22(2A) In paragraph (2)(c), “Community air carrier” has the meaning given by Article 2(11) of Regulation (EC) 1008/2008 of the European Parliament and of the Council of 24th September 2008 on common rules for the operation of air services in the Community, as it has effect in EU law.]

(3) No approval is required under paragraph (1) where the CAA is required to approve the use of an aircraft pursuant to [F23Annex II of Commission Regulation (EU) No 965/2012 of 5th October 2012 laying down technical requirements and administrative procedures related to air operations pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council].

Textual Amendments

18.—(1) Subject to paragraph (2), an operating licence is not valid for the purpose of enabling an air carrier that holds an operating licence granted by the CAA to use an aircraft that is not registered [F24in the United Kingdom].

(2) Paragraph (1) does not apply where—

(a)a [F25UK air carrier] has obtained prior approval for the use of an aircraft pursuant to a dry lease agreement or a wet lease agreement in accordance with regulation 17 or Article 13 of the EC Regulation, or

(b)by virtue of regulation 17(3) an approval is not required.

Textual Amendments

Offences relating to leased aircraftU.K.

19.  An air carrier which without reasonable excuse fails to obtain the necessary approval for the use of a leased aircraft is guilty of an offence.

20.  An air carrier which without reasonable excuse fails to comply with conditions of any necessary approval is guilty of an offence.

21.  For the purposes of regulations 19 and 20 the necessary approval is the approval specified in regulation 17 or in Article 13(3) of the EC Regulation.

PART 3U.K.Access to routes

Competent authority in relation to access to intra-Community air servicesU.K.

F2622.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Secretary of State's dutyU.K.

23.—(1) The obligation of the Secretary of State, when taking any decision under [F27Article 16 or 17] of the EC Regulation, to comply with—

(a)the provisions of the applicable Article, and

(b)any enforceable F28... obligation applicable to the imposition of a public service obligation concerning a scheduled air service,

is a duty owed to [F29qualifying air carriers].

(2) A breach of that duty shall be actionable by any [F30qualifying air carrier] which, in consequence, suffers, or risks suffering, loss or damage.

(3) Any proceedings under this regulation must be brought in the High Court in England, Wales or Northern Ireland, or before the Court of Session in Scotland.

(4) Proceedings under this regulation must be brought promptly and in any event within 3 months from the date when grounds for the bringing of proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

(5) Subject to paragraph (6), but otherwise without prejudice to any other powers of the Court, in proceedings brought under this regulation the Court may—

(a)by interim order suspend the implementation of any decision taken under [F31Article 16 or 17]; and

(b)if satisfied that a decision taken by the Secretary of State is in breach of the duty under paragraph (1) do either or both of the following—

(i)order the setting aside of that decision, or

(ii)award damages to an air carrier which has suffered loss or damage as a consequence of the breach.

(6) If the breach of the duty under paragraph (1) occurred in relation to an existing contract to operate services on a route subject to a public service obligation, the Court may only award damages in respect of that breach.

Textual Amendments

Restriction on the operation of air servicesU.K.

24.  Where a public service obligation has been imposed on a route under Article 16(1) of the EC Regulation, a [F32qualifying air carrier] may only operate a scheduled air service on that route—

(a)in accordance with the obligation, and

(b)in a case where access to that route has been limited under Article 16(9), if it has been selected to operate that route.

Textual Amendments

OffencesU.K.

25.  A [F33qualifying air carrier] is guilty of an offence if it knowingly or recklessly exercises traffic rights—

(a)on routes within the United Kingdom, between the United Kingdom and Gibraltar F34... in breach of regulation 24;

F35(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 4U.K.Provision of information

Requirement to provide informationU.K.

F3626.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

OffencesU.K.

F3727.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 5U.K.Penalties etc.

PenaltiesU.K.

28.  A person guilty of an offence under these Regulations is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum, and

(b)on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both.

Offences by body corporate or Scottish partnershipU.K.

29.—(1) Where an offence under these Regulations has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity, that officer or person as well as the body corporate is guilty of that offence and is liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with that member's functions of management as if that member were a director of the body.

(3) Where a Scottish partnership is guilty of an offence under these Regulations and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership is guilty of that offence and is liable to be proceeded against and punished accordingly.

Proceedings in ScotlandU.K.

30.—(1) Subject to paragraph (2), summary proceedings for an offence under these Regulations may be commenced in Scotland within a period of 6 months from the date on which evidence sufficient in the opinion of the procurator fiscal to warrant proceedings came to his knowledge.

(2) No such proceedings may be commenced by virtue of this regulation more than 3 years after the commission of the offence.

(3) For the purposes of this regulation, a certificate signed by, or on behalf of, the procurator fiscal and stating the date on which evidence sufficient in the procurator fiscal's opinion to warrant the proceedings came to the knowledge of the procurator fiscal is conclusive evidence of that fact.

(4) A certificate stating that matter and purporting to be so signed is deemed to be so signed unless the contrary is proved.

(5) Subsection (3) of section 136 of the Criminal Procedure (Scotland) Act 1995 M5 (date of commencement of proceedings) applies for the purposes of this regulation as it applies for the purposes of that section.

Marginal Citations

Power to direct that an aircraft must not flyU.K.

31.—(1) Where this paragraph applies the CAA may—

(a)direct the person appearing to it to be in command of an aircraft not to permit the aircraft to take off until it has informed that person that the direction is cancelled,

(b)whether or not it has given such a direction, detain the aircraft until it is satisfied that the aircraft will not take off.

(2) Paragraph (1) applies where the CAA has reason to believe that an aircraft is intended to be used by—

(a)a person without an appropriate operating licence in circumstances where such a licence is required, or

(b)an air carrier in breach of the restrictions set out in regulation 10 or 18.

32.  It is an offence for a person, without reasonable excuse, to fail to comply with a direction given under regulation 31.

PART 6U.K.Consequential amendments

The Civil Aviation Act 1982U.K.

33.  In each of sections 17(1)(c), 64(2)(d) and 84(1)(a) of the Civil Aviation Act 1982 M6 for “the Community licensing Regulation” substitute “ the operaration of the Community Regulations ”.

Marginal Citations

M61982 c. 16, Sections 17, 64, 84 and 105 have been amended by S.I. 1992/2992, S.I. 1993/3039, S.I. 1994/1732 and 2004/1256. Section 69A was inserted by S.I. 1992/2992 and has been amended by S.I. 1993/3039, S.I. 1994/1732 and 2004/1256.

34.  In section 69A of that Act—

(a)in subsection (2)(d) for “the Community access Regulation” substitute “ the Operation of Air Services in the Community Regulation ”;

(b)in subsection (3) for “articles 3 to 6 of the Community access Regulation” substitute “ article 16 of the Operation of Air Services in the Community Regulation ”;

(c)in subsection (8) —

(i)the definition of “the Community access Regulation” is omitted;

(ii)in the definition of “Community air carrier” for “the Community access Regulation” substitute “ the Operation of Air Services in the Community Regulation ”; and

(iii)in the definition of “operating licence” for “Community licensing Regulation” substitute “ the Operation of Air Services in the Community Regulation ”.

35.  In section 105(1) of that Act—

(a)the definition of “the Community licensing Regulation” is omitted; and

(b)after the definition of “modifications” there is inserted “ “the Operation of Air Services in the Community Regulation” means Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24thSeptember 2008 on common rules for the operation of air services in the Community; ”.

The Civil Aviation Authority Regulations 1991 M7U.K.

36.  In regulation 3(1) for the definition of “operating licence” substitute—

““operating licence” means an operating licence granted by the CAA under Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24th September 2008 on common rules for the operation of air services in the Community M8;”.

Marginal Citations

M7S.I. 1991/1672, as amended by S.I. 1992/2992, S.I. 1993/3039 and S.I. 1994/1732.

M8OJ L 293, 31.10.08, p. 3.

The Air Navigation Order 2005U.K.

F3837.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Signed by authority of the Secretary of State

Paul Clark

Parliamentary Under Secretary of State

Department for Transport