Part 6Civil Penalties
Civil Penalties24.
(1)
The following provisions are designated for the purposes of section 129 of the 2004 Act: articles 6(2) and (7), 7(3), 11(6), 12(5), 16(5), 20(14) and 21(8).
(2)
A supplier is liable for a civil penalty if that supplier contravenes article 6(2) or 21(8).
(3)
A supplier or other person is liable for a civil penalty if at the time that supplier or other person provides the information or produces the evidence referred to in article 6(7), 7(3), 11(6), 12(5), 16(5) or 20(14)—
(a)
that supplier or other person has not taken reasonable steps to ensure that the information or evidence is accurate to the best of their knowledge or belief, or
(b)
that supplier or other person has taken reasonable steps to ensure that the information or evidence is accurate to the best of their knowledge or belief, but the condition set out in paragraph (4) or (5) is subsequently satisfied.
(4)
In the case of article 6(7) or 7(3), the condition is that the supplier or other person has subsequently—
(a)
become aware that the information or evidence may be inaccurate but has not informed the Administrator of that fact within twenty working days of so becoming aware,
(b)
been informed by the Administrator that the information or evidence may be inaccurate but has not investigated and, if the information or evidence is inaccurate, remedied the inaccuracy within such period as may reasonably be allowed by the Administrator, or
(c)
become aware (other than by being informed by the Administrator) that the information or evidence may be inaccurate but has not investigated and, if the information or evidence is inaccurate, remedied the inaccuracy within such period as may reasonably be allowed by the Administrator.
(5)
In the case of article 11(6), 12(5), 16(5) or 20(14), the condition is that the supplier or other person has subsequently, but on or before the applicable date in paragraph (6)—
(a)
become aware that the information or evidence may be inaccurate, but has not informed the Administrator of that fact within twenty working days of so becoming aware,
(b)
been informed by the Administrator that the information or evidence may be inaccurate, but has not investigated and, if the information or evidence is inaccurate, remedied the inaccuracy within such period as may reasonably be allowed by the Administrator, or
(c)
become aware (other than by being informed by the Administrator) that the information or evidence may be inaccurate, but has not investigated and, if the information or evidence is inaccurate, remedied the inaccuracy within such period as may reasonably be allowed by the Administrator.
(6)
For the purposes of paragraph (5), the “applicable date” is 16th August of the year following the obligation period for which the information or evidence was provided.
(7)
For the purposes of section 129(2) of the 2004 Act, a civil penalty notice must be given by written notice to the defaulter.
(8)
For the purposes of section 129(3)(a) of the 2004 Act, “the specified amount” is—
(a)
in the case of an account holder who has gained, or attempted to gain, one or more SAF certificates by contravening a provision referred to in paragraph (1), an amount equivalent to twice the value of the SAF certificates which the account holder has gained, or attempted to gain, and
(b)
in any other case, £100,000.
(9)
For the purposes of paragraph (8)(a), the value of a SAF certificate is an amount equal to the amount under article 21(8) for the amount of fuel to which the certificate relates (if that fuel were to fall within the PtL shortfall or the main obligation shortfall).
(10)
For the purposes of section 129(3)(b) of the 2004 Act, the turnover of the specified business of the defaulter is the applicable turnover for the business year preceding the date of the civil penalty notice.
(11)
Where the business year preceding the date of the civil penalty notice does not equal 12 months, the turnover is the amount which bears the same proportion to the applicable turnover during that business year as 12 months does to the period of that business year.
(12)
Where there is no preceding business year, the turnover is the applicable turnover of the defaulter for the period of 12 months ending on the last day of the month preceding the month in which the date of the civil penalty notice falls.
(13)
Where in the application of paragraph (12) the defaulter has applicable turnover for a period of less than 12 months, the turnover is the amount which bears the same proportion to the applicable turnover during the period for which the defaulter has applicable turnover as 12 months does to that period.
(14)
Where a defaulter does not pay the penalty, or any part of it, to the Administrator on or before the date on which the civil penalty must be paid—
(a)
the sum outstanding is to increase at the rate specified in paragraph (15) and the increase is to be calculated in accordance with paragraph (16); and
(b)
the increased sum is a debt due from the defaulter to the Administrator until it has been paid in full.
(15)
The rate for the purposes of paragraph (14)(a) is 5 percentage points above the base rate of the Bank of England on the day after the date on which the civil penalty must be paid to the Administrator.
(16)
The increase is to be calculated on a daily basis beginning on the day after the date on which the civil penalty must be paid to the Administrator, and ending on the date on which payment is received by the Administrator.
(17)
In this article—
“applicable turnover” means the amounts, ascertained in conformity with normal accounting practice in the United Kingdom, which are—
(a)
derived by the defaulter from the supply of relevant aviation turbine fuel, and
(b)
computed on an accruals basis so that those amounts relating to the period for which the turnover is being determined are taken into account, without regard to the date of invoice or receipt of payment,
after deduction of trade discounts, value added tax and any other taxes based on such amounts;
“business year” means a period of more than six months for which a defaulter publishes accounts or, if no such accounts have been published for the period, prepares accounts; and
“date of the civil penalty notice” means the date on which the Administrator gives notice under section 129(2) of the 2004 Act.
Objections to civil penalties25.
(1)
For the purposes of section 130(2)(b) of the 2004 Act, the manner in which the notice of objection must be given to the Administrator is—
(a)
by delivering it to the Administrator,
(b)
by leaving it at the address of the Administrator, or
(c)
by sending it by post to the Administrator at that address,
and “delivering” includes transmitting by means of an electronic communications network, or by other means but in a form that nevertheless requires the use of apparatus by the recipient to render it intelligible.
(2)
For the purposes of section 130(2)(b), the period within which the notice must be given is a period of 28 days beginning on the day immediately after the day on which the civil penalty notice is given.
(3)
For the purposes of section 130(5), the manner in which the notification of the outcome of the Administrator’s consideration must be given is—
(a)
by delivering it to the objector,
(b)
by leaving it at the objector’s address, or
(c)
by sending it by post to the objector at that address,
and “delivering” includes transmitting by means of an electronic communications network, or by other means but in a form that nevertheless requires the use of apparatus by the recipient to render it intelligible.
(4)
For the purposes of section 130(5), the period before the end of which the notification must be given is a period of 28 days beginning on the day immediately after the day on which the notice of objection is given to the Administrator.
(5)
In this article, the objector’s address is the address provided by the supplier to the Administrator for use in respect of its SAF account.