SCHEDULES

SCHEDULE 2 U.K. Appeals under sections 24 and 25

PART 6 U.K. General

Consideration of new matters U.K.

23 (1) This paragraph applies to— U.K.

(a) an authorised member of the [F1 Competition and Markets Authority ] with the function of determining an application for permission to appeal under section 24 or 25, and

(b) a group with the function of determining an appeal.

(2) The member or group must not have regard to any matter, information or evidence raised or provided by the CAA if it was not considered by the CAA in making the decision that is the subject of the application or appeal, unless the member or group considers that—

(a) the CAA could not reasonably have been expected to consider the matter, information or evidence when making that decision, and

(b) the matter, information or evidence is likely to have an important effect on the outcome of the application or appeal, either by itself or taken together with other matters, information or evidence.

(3) The member or group must not have regard to any matter, information or evidence raised or provided by a person other than the CAA if it was not considered by the CAA in making the decision that is the subject of the application or appeal, unless the member or group considers that—

(a) the person or a relevant connected person could not reasonably have raised the matter with the CAA, or provided the information or evidence to the CAA, during the period in which the CAA was making that decision, and

(b) the matter, information or evidence is likely to have an important effect on the outcome of the application or appeal, either by itself or taken together with other matters, information or evidence.

(4) Where the member or group has regard to a matter, information or evidence in reliance on sub-paragraph (2) or (3), those sub-paragraphs do not prevent the member or group having regard to further matters, information or evidence raised or provided in response to it if the member or group considers that the further matter, information or evidence is likely to have an important effect on the outcome of the application or appeal, either by itself or taken together with other matters, information or evidence.

(5) In sub-paragraph (3), in relation to a person who raises or provides a matter, information or evidence, “relevant connected person” means a person who was connected to that person at any time during the period in which the CAA was making the decision that is the subject of the application or appeal.

(6) References in this paragraph to the period in which the CAA was making a decision are to the period—

(a) beginning with the publication of a notice under section 15(1) or 22(2) proposing to make the decision, and

(b) ending with the publication of a notice under section 15(5) or 22(6) in relation to the decision.

Textual Amendments

F1 Words in Sch. 2 para. 23(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(23); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I1 Sch. 2 para. 23 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Production of documents U.K.

24 (1) The [F2 Competition and Markets Authority] may by notice require a person to produce to [F3 the Competition and Markets Authority] documents specified or described in the notice that are in the person's custody or under the person's control. U.K.

(2) The notice may require the production of documents—

(a) at the time and place specified in the notice, and

(b) in the form and manner specified in the notice.

(3) The notice may not require a person to produce documents that the person could not be compelled to provide in evidence in civil proceedings before the appropriate court.

(4) A notice under this paragraph may be given [F4 on behalf of the Competition and Markets Authority by an authorised member of the Competition and Markets Authority].

Textual Amendments

F2 Words in Sch. 2 para. 24(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(24)(a)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F3 Words in Sch. 2 para. 24(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(24)(a)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F4 Words in Sch. 2 para. 24(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(24)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I2 Sch. 2 para. 24 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Oral hearings U.K.

25 (1) For the purposes of this Schedule the following persons may hold an oral hearing and take evidence on oath— U.K.

(a) an authorised member of the [F5 Competition and Markets Authority] considering an application under paragraph 1 for permission to appeal,

(b) an authorised member of the [F5 Competition and Markets Authority] considering an application under paragraph 4 for permission to intervene,

(c) an authorised member of the [F5 Competition and Markets Authority] considering an application under paragraph 9 or 12 for a direction, and

(d) a group with the function of determining an appeal.

(2) In the course of holding such a hearing and taking such evidence, a person or group described in sub-paragraph (1) may administer oaths.

(3) [F6 An authorised member of the Competition and Markets Authority] may by notice require a person—

(a) to attend at a time and place specified in the notice, and

(b) at that time and place, to give evidence to a member or group described in sub-paragraph (1).

(4) At an oral hearing, the member or group conducting the hearing may require the following persons to give evidence or to make representations—

(a) the applicant, the appellant or any intervener (if present), or

(b) a person attending the hearing as a representative of the applicant, the appellant, an intervener or the CAA.

(5) A person who gives oral evidence at the hearing may be cross-examined by or on behalf of a party to the appeal, subject to sub-paragraph (6).

(6) Such a person may be cross-examined by or on behalf of an intervener only with the leave of the person or group conducting the hearing.

(7) If the applicant, the appellant, an intervener or a representative of such a person or the CAA is not present at a hearing—

(a) [F7 there is no requirement] to give notice to that person under sub-paragraph (3), and

(b) the member or group conducting the hearing may determine the application or appeal without hearing that person's evidence or representations.

(8) A person may not be required under this paragraph to give evidence that the person could not be compelled to give in civil proceedings before the appropriate court.

(9) Where a person is required under this paragraph to attend at a place more than 16 kilometres from the person's place of residence, [F8 an authorised member of the Competition and Markets Authority must arrange for the person to be paid] the necessary expenses of attendance.

(10) A notice under this paragraph may be given [F9 on behalf of the Competition and Markets Authority by an authorised member of the Competition and Markets Authority].

Textual Amendments

F5 Words in Sch. 2 para. 25(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(25)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F6 Words in Sch. 2 para. 25(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(25)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F7 Words in Sch. 2 para. 25(7)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(25)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F8 Words in Sch. 2 para. 25(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(25)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F9 Words in Sch. 2 para. 25(10) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(25)(e); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I3 Sch. 2 para. 25 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Written evidence U.K.

26 (1) The [F10 Competition and Markets Authority] may by notice require a person to produce a written statement with respect to a matter specified in the notice to— U.K.

(a) an authorised member of the [F10 Competition and Markets Authority] considering an application under paragraph 1 for permission to appeal,

(b) an authorised member of the [F10 Competition and Markets Authority] considering an application under paragraph 4 for permission to intervene,

(c) an authorised member of the [F10 Competition and Markets Authority] considering an application under paragraph 9 or 12 for a direction, or

(d) a group with the function of determining an appeal.

(2) The notice may require the written statement—

(a) to be produced at the time and place specified in the notice, and

(b) to be verified by a statement of truth.

(3) Where a notice requires a written statement to be verified by a statement of truth, the statement may be disregarded unless it is so verified.

(4) A person may not be required under this paragraph to produce a written statement about a matter about which the person could not be compelled to give evidence in civil proceedings before the appropriate court.

(5) A notice under this paragraph may be given [F11 on behalf of the Competition and Markets Authority by an authorised member of the Competition and Markets Authority].

Textual Amendments

F10 Words in Sch. 2 para. 26(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(26)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F11 Words in Sch. 2 para. 26(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(26)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I4 Sch. 2 para. 26 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Expert advice U.K.

27 U.K. Where permission to appeal is granted under paragraph 2, the [F12 Competition and Markets Authority ] may commission expert advice with respect to any matter raised by a party to the appeal.

Textual Amendments

F12 Words in Sch. 2 para. 27 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(27); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I5 Sch. 2 para. 27 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Enforcement of requirements in relation to evidence etc U.K.

28 (1) This paragraph applies where a person (“P”)— U.K.

(a) fails to comply with a notice under paragraph 24, 25 or 26,

(b) fails to comply with any other requirement imposed under paragraph 24, 25 or 26,

(c) in complying with a notice under paragraph 26, makes a statement that is false or misleading in a material respect, or

(d) in providing information verified by a statement of truth required by appeal rules, provides information that is false or misleading in a material respect.

(2) [F13 An authorised member of the Competition and Markets Authority ] may certify to the appropriate court—

(a) the failure,

(b) the fact that P has made a false or misleading statement in circumstances described in sub-paragraph (1)(c), or

(c) the fact that P has provided false or misleading information in circumstances described in sub-paragraph (1)(d).

(3) The appropriate court may inquire into the certified failure or act and, if it does so, must hear—

(a) any witness against P,

(b) any witness on behalf of P, and

(c) any statement in P's defence.

(4) The appropriate court may punish P as if P had been guilty of contempt of court if it is satisfied that—

(a) the certified failure or act took place, and

(b) P did not have a reasonable excuse for the failure or act.

(5) Where P is a body corporate, the appropriate court may punish any director or other officer of that body, either instead of or as well as punishing the body.

(6) In this paragraph “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body.

Textual Amendments

F13 Words in Sch. 2 para. 28(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(28); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I6 Sch. 2 para. 28 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Destruction of documents U.K.

29 (1) A person who intentionally alters, suppresses or destroys a document that the person has been required to produce under paragraph 24 is guilty of an offence. U.K.

(2) A person guilty of an offence under this paragraph is liable—

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

(b) on conviction on indictment, to imprisonment for not more than 2 years or a fine (or both).

Commencement Information

I7 Sch. 2 para. 29 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Withdrawal of applications and appeals U.K.

30 (1) An application under paragraph 1 for permission to appeal may be withdrawn only with the consent of [F14 the Competition and Markets Authority ]. U.K.

(2) After an application for permission to appeal is granted, the appeal may be withdrawn only with the consent of [F14 the Competition and Markets Authority ].

(3) An application under paragraph 4 for permission to intervene may be withdrawn only with the consent of [F14 the Competition and Markets Authority ].

(4) After an application for permission to intervene is granted, the intervener may withdraw from the appeal only with the consent of [F14 the Competition and Markets Authority ].

[F15 (4A) For the purposes of sub-paragraphs (1) to (4), the consent of the Competition and Markets Authority is to be given by an authorised member of the Competition and Markets Authority.]

(5) An application under paragraph 9 or 12 for a direction suspending the effect of a decision may be withdrawn at any time.

(6) Withdrawal of an application under this Schedule or of an appeal has effect when the applicant or appellant gives notice to the [F16 Competition and Markets Authority ].

(7) The applicant or appellant must send a copy of the notice to the CAA.

(8) The CAA must—

(a) publish the notice, and

(b) send a copy of the notice to the persons listed in sub-paragraph (9) (other than the person withdrawing the application or appeal).

(9) Those persons are—

(a) the holder of the licence that is the subject of the application or appeal,

(b) any other person with a qualifying interest in the decision that is the subject of the application or appeal, and

(c) such bodies representing airport operators or providers of air transport services as the CAA considers appropriate.

Textual Amendments

F14 Words in Sch. 2 para. 30(1)-(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(29)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F15 Sch. 2 para. 30(4A) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(29)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F16 Words in Sch. 2 para. 30(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(29)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I8 Sch. 2 para. 30 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Appeal rules U.K.

31 (1) The [F17 CMA Board ] may make rules regulating the conduct and disposal of appeals. U.K.

(2) The rules may include provision supplementing the provisions of this Schedule in relation to any application, notice, hearing or requirement for which this Schedule provides.

(3) The rules may, in particular, include—

(a) provision requiring an application to be accompanied by information specified in the rules,

(b) provision requiring such information to be verified by a statement of truth,

(c) provision requiring an applicant to provide the CAA with information specified in the rules,

(d) provision imposing time limits or other restrictions on the taking of evidence at an oral hearing, and

(e) provision imposing time limits or other restrictions on the making of representations or observations at such a hearing.

(4) The rules may make different provision for different purposes.

(5) Before making rules under this paragraph the [F18 CMA Board ] must consult such persons as it considers appropriate.

(6) The [F19 CMA Board ] must publish rules made under this paragraph.

Textual Amendments

F17 Words in Sch. 2 para. 31(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(30); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F18 Words in Sch. 2 para. 31(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(30); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F19 Words in Sch. 2 para. 31(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(30); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I9 Sch. 2 para. 31 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Costs U.K.

32 (1) Where an application under this Schedule or an appeal is withdrawn, an authorised member of the [F20 Competition and Markets Authority] may make such order as the member thinks fit requiring the parties to the application or appeal to make payments to each other and to [F21 the Competition and Markets Authority] in respect of costs incurred in connection with the application or appeal. U.K.

(2) A group that determines an appeal must make an order requiring the payment to the [F22 Competition and Markets Authority] of the costs incurred by [F23 the Competition and Markets Authority] in connection with the appeal.

(3) An order under sub-paragraph (2) must require those costs to be paid—

(a) where the appeal is allowed in full, by the CAA,

(b) where the appeal is dismissed in full, by the appellant, and

(c) where the appeal is allowed in part, by the appellant and the CAA in such proportions as the [F24 group] considers appropriate,

subject to sub-paragraph (4).

(4) The order may require an intervener in the appeal to pay such proportion of those costs (if any) as the [F24 group] considers appropriate.

(5) A group that determines an appeal may make such order as it thinks fit requiring one party to the appeal to make payments to another in respect of costs reasonably incurred by the other party in connection with the appeal.

(6) A person who is required to make a payment by an order under this paragraph must comply with the order before the end of the period of 28 days beginning with the day after the making of the order.

(7) If that person does not do so, the unpaid balance carries interest at a rate specified in the order or determined in accordance with the order.

(8) In this paragraph, references to an intervener in an appeal, and to a party to an appeal, include a person who was granted permission to intervene in the appeal and subsequently withdrew from the appeal.

Textual Amendments

F20 Words in Sch. 2 para. 32(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(31)(a)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F21 Words in Sch. 2 para. 32(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(31)(a)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F22 Words in Sch. 2 para. 32(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(31)(b)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F23 Words in Sch. 2 para. 32(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(31)(b)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F24 Words in Sch. 2 para. 32(3)(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(31)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I10 Sch. 2 para. 32 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Secretary of State's power to modify time limits U.K.

33 U.K. The Secretary of State may by regulations modify any period of time specified in this Schedule.

Commencement Information

I11 Sch. 2 para. 33 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Publication etc U.K.

34 U.K. Where the CAA or the [F25 Competition and Markets Authority or a member of the Competition and Markets Authority ] is required by this Schedule to publish something or send a copy of something and this Schedule does not specify a time for doing so, [F26 it must be published or sent] as soon as practicable.

Textual Amendments

F25 Words in Sch. 2 para. 34 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(32)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F26 Words in Sch. 2 para. 34 substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(32)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I12 Sch. 2 para. 34 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)

Interpretation U.K.

35 (1) In this Schedule— U.K.

• “appeal” means an appeal under section 24 or 25;

• “appeal rules” means rules under paragraph 31;

• “the appropriate court” means—

  (a)

  in relation to England and Wales and Northern Ireland, the High Court, and

  (b)

  in relation to Scotland, the Court of Session;

• [F27 “authorised member of the Competition and Markets Authority—

  (a)

  in relation to a power exercisable in connection with an appeal or application or direction in respect of which a group has been constituted by the chair of the Competition and Markets Authority under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, means a member of that group who has been authorised by the chair of the Competition and Markets Authority to exercise that power;

  (b)

  in relation to a power exercisable in connection with an application for permission to bring an appeal, or otherwise in connection with an appeal or application or direction in respect of which a group has not been so constituted by the chair of the Competition and Markets Authority, means—

  (i)

  any member of the CMA Board who is also a member of the CMA panel, or

  (ii)

  any member of the CMA panel authorised by the Secretary of State (whether generally or specifically) to exercise the power in question;]

• F28 ...

• F29 ...

• [F30 “ CMA Board ” and “ CMA panel ” have the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013; ]

• “intervener”, in relation to an appeal, means a person who has been granted permission to intervene in the appeal and who has not withdrawn from the appeal (but see paragraph 32(8));

• “statement of truth”, in relation to the production of a statement or in relation to information provided by a person, means a statement that the person producing that statement or providing that information believes the facts contained in the statement or the information to be true.

(2) References in this Schedule to a party to an application are to—

(a) the applicant, or

(b) the CAA.

(3) References in this Schedule to a party to an appeal are to—

(a) the appellant,

(b) an intervener, or

(c) the CAA.

(4) For the purposes of this Schedule and sections 28 and 29, a person has a qualifying interest in a decision that is the subject of an appeal or an application under this Schedule for permission to appeal if—

(a) the person has been granted permission to appeal against the decision and has not withdrawn the appeal,

(b) the person has applied for permission to appeal against the decision and the application has not been withdrawn or refused,

(c) the person has been granted permission to intervene in an appeal against the decision and the appeal has not been withdrawn,

(d) the person has applied for permission to intervene in an appeal against the decision and the application has not been withdrawn or refused, or

(e) the person has applied for a direction under this Schedule suspending the effect of the decision, the application has not been withdrawn or refused and any direction made in response to the application has not been withdrawn.

Textual Amendments

F27 Words in Sch. 2 para. 35(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(33)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F28 Words in Sch. 2 para. 35(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(33)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F29 Words in Sch. 2 para. 35(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(33)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F30 Words in Sch. 2 para. 35(1) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 148(33)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I13 Sch. 2 para. 35 in force at 6.4.2013 by S.I. 2013/589, art. 2(1)-(3)