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1 2001

AVIATION REGULATION ACT, 2001

PART 3

Regulation of Airport and Aviation Terminal Services Charges

Application.

31. —(1) This Part applies to any airport in the State open to commercial traffic and having an annual passenger throughout of in excess of one million passengers in the previous calendar year.

(2) The Minister, after consultation with the Commission, may, by regulations, vary the annual passenger throughput mentioned in subsection (1).

(3) Every regulation made by the Minister under subsection (2) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Airport charges.

32. —(1) In this section and section 33 , “determination” means a determination under subsection (2).

(2) Not more than 6 months after the establishment day and at the end of each succeeding period of 5 years, the Commission shall make a determination specifying the maximum levels of airport charges that may be levied by an airport authority.

(3) In a determination the Commission may provide for a different maximum level of airport charges at different airports.

(4) Where it appears to the Commission that two or more airports are either—

(a) managed by the same airport authority, or

(b) that they are owned by the same person and operate as a group of airports whose activities are co-ordinated by that person,

any determination in relation to any one of those airports may be made by reference to the aggregate of amounts levied by way of airport charges at that airport and amounts so levied at the other airports.

(5) A determination shall—

(a) be in force for a period of 5 years, and

(b) come into operation not later than 30 days after the making of such determination.

(6) A determination may—

(a) provide—

(i) for an overall limit on the level of airport charges,

(ii) for limits to apply to particular categories of such charges, or

(iii) for a combination of any such limits,

(b) operate to restrict increases in any such charges, or to require reductions in them, whether by reference to any formula or otherwise, or

(c) provide for different limits to apply in relation to different periods of time falling within the period to which the determination relates.

(7) Prior to making a determination the Commission shall—

(a) give notice to any person concerned stating that it proposes to make a determination.

(b) publish such notice in a daily newspaper published and circulating in the State, and

(c) specify the period (being not less than one month from the publication of the notice) within which representations with respect to the proposed determination may be made by interested parties or the public.

(8) The Commission—

(a) shall consider any representations which are made under subsection (7) and not withdrawn, and

(b) may either accept or reject any representations made under subsection (7).

(9) On making a determination the Commission shall make a report on the determination giving an account of its reasons for making that determination together with its reasons for accepting or rejecting any representations made under subsection (7).

(10) A report under subsection (9) shall be sent by the Commission to the Minister and to the airport authority concerned.

(11) The Commission shall as soon as may be—

(a) give notice that it has made a report under subsection (9), and

(b) make the report available on request to interested parties or to the public.

(12) A notice under subsection (11) shall be given by publishing the notice in a daily newspaper published and circulating in the State and by such other means as the Commission may determine.

(13) For the purposes of this section, the Commission may request an airport authority in writing to provide information (including accounts, estimates, returns, projections or any other records) to it which is in the possession of or which can be obtained by the airport authority.

(14) (a)  The Commission may on or after the expiration of a period of 2 years after the making of a determination—

(i) at its own initiative, or

(ii) at the request of an airport authority or user concerned in respect of the determination,

if it considers that there are substantial grounds for so doing, review the determination and, if it sees fit, amend the determination.

(b)  An amendment made under paragraph (a) shall be in force for the remainder of the period of the determination referred to in subsection (5)(a).

(c)  Subsection (5)(b) and subsections (7) to (13) shall apply to an amendment made under paragraph (a).

(15) Any airport charges imposed by an airport authority, which are in force immediately before the establishment day, shall continue in force until any determination has been made.

Regulatory objectives in respect of airport charges.

33. —In making a determination the Commission shall aim to facilitate the development and operation of cost-effective airports which meet the requirements of users and shall have due regard to—

(a) the level of investment in airport facilities at an airport to which the determination relates, in line with safety requirements and commercial operations in order to meet current and prospective needs of those on whom the airport charges may be levied,

(b) a reasonable rate of return on capital employed in that investment, in the context of the sustainable and profitable operation of the airport,

(c) the efficient and effective use of all resources by the airport authority,

(d) the contribution of the airport to the region in which it is located,

(e) the level of income of the airport authority from airport charges at the airport and other revenue earned by the authority at the regulated airports or elsewhere,

(f) operating and other costs incurred by the airport authority at the airport,

(g) the level and quality of services offered at the airport by the airport authority and the reasonable interests of the users of these services,

(h) the cost competitiveness and operational efficiency of airport services at the airport with respect to international practice,

(i) imposing the minimum restrictions on the airport authority consistent with the functions of the Commission, and

(j) such national and international obligations as are relevant to its functions.

Amendment of section 39 of Act of 1998.

34. —Section 39(1) of the Act of 1998 is amended by the substitution of “subject to section 32 of the Aviation Regulation Act, 2001” for “with the approval of the Minister”.

Aviation terminal services charges.

35. —(1) In this section and section 36

“Authority” means Irish Aviation Authority;

“determination” means a determination made under subsection (2).

(2) Not more than 12 months after the establishment day and at the end of each succeeding period of 5 years, the Commission shall make a determination specifying the maximum levels of aviation terminal services charges that may be imposed by the Authority.

(3) A determination shall—

(a) be in force for a period of 5 years, and

(b) come into operation not later than 30 days after the making of such determination.

(4) A determination may—

(a) provide—

(i) for an overall limit on the level of aviation terminal services charges,

(ii) for limits to apply to particular categories of such charges, or

(iii) for a combination of any such limits,

(b) operate to restrict increases in any such charges, or to require reductions in them, whether by reference to any formula or otherwise, or

(c) provide for different limits to apply in relation to different periods of time falling within the period to which the determination relates.

(5) Prior to making a determination the Commission shall—

(a) give notice to any person concerned stating that it proposes to make a determination,

(b) publish such notice in a daily newspaper published and circulating in the State, and

(c) specify the period (being not less than 2 months from the publication of the notice) within which representations with respect to the proposed determination may be made by interested parties or the public.

(6) The Commission—

(a) shall consider any representations which are made under subsection (5) and not withdrawn, and

(b) may either accept or reject any representations made under subsection (5).

(7) On making a determination the Commission shall make a report on the determination giving an account of its reasons for making that determination together with its reasons for accepting or rejecting representations made under subsection (5).

(8) A report under subsection (7) shall be sent by the Commission to the Minister and to the Authority.

(9) The Commission shall as soon as may be—

(a) give notice that it has made a report under subsection (7), and

(b) make the report available on request to interested parties or to the public.

(10) A notice under subsection (9) shall be given by publishing the notice in a daily newspaper published and circulating in the State and by such other means as the Commission may determine.

(11) For the purposes of this section, the Commission may request the Authority in writing to provide information (including accounts, estimates, returns, projections or any other records) to it which is in the possession of or which can be obtained by the Authority about the aviation terminal services provided by the Authority or matters relevant to the provision of aviation terminal services provided by the Authority.

(12) (a)  The Commission may on or after the expiration of a period of 2 years after the making of a determination under subsection (1)

(i) at its own initiative, or

(ii) at the request of the Authority or user concerned in respect of the determination,

if it considers that there are substantial grounds for so doing, review the determination and if it sees fit, amend the determination.

(b)  An amendment made under paragraph (a) shall be in force for the remainder of the period of the determination referred to in subsection (3)(a).

(c)  Subsection (3)(b) and subsections (5) to (11) shall apply to an amendment made under paragraph (a).

(13) Any aviation terminal service charges imposed by the Authority, which are in force immediately before the establishment day, shall continue in force until a determination has been made.

Regulatory objectives in respect of aviation terminal services charges.

36. —In making a determination, the Commission shall aim to facilitate the development and operation of safe, cost-effective terminal services which meet international standards and shall have due regard to—

(a) the relevant charging principles of the International Civil Aviation Organisation and of Eurocontrol,

(b) the level of investment in aviation terminal services by the Authority, in line with safety requirements and commercial operations, in order to meet current and prospective needs of the airline industry,

(c) the efficient and effective use of all resources by the Authority,

(d) the level of the Authority's income from aviation terminal services and other revenue earned by the Authority generally,

(e) operating and other costs incurred by the Authority in providing aviation terminal services,

(f) the level and quality of aviation terminal services, and the reasonable interests of the users of these services, and

(g) the cost competitiveness of aviation terminal services with respect to international practice.

Amendment of Irish Aviation Authority Act, 1993.

37. —Section 43(1)(a) of the Irish Aviation Authority Act, 1993 , is amended by the insertion of “and section 35 of the Aviation Regulation Act, 2001” after “subject to subsection (3)”.

Judicial review.

38. —(1) A person shall not question the validity of a determination, a review of a determination or a request of the Commission under this Part otherwise than by way of an application for leave to apply for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as “the Order”).

(2) An application for leave to apply for judicial review under the Order in respect of either of the matters referred to in subsection (1) shall—

(a) be made within the period of two months commencing on the date on which notice of the determination under this Part was first published, unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and

(b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Commission and the person concerned,

and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the determination is invalid or ought to be quashed.

(3) The High Court may, before hearing an application referred to in subsection (2), direct that notice of the application be also served on such other persons as the Court may specify.

(4) Notwithstanding an application for leave to apply for judicial review under the Order against a determination under this Part, the application shall not affect the validity of the determination and its operation unless, upon an application to the High Court, that Court suspends the determination until the application is determined or withdrawn.

(5) (a)  The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court or the Supreme Court certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(b)  This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

(6) Where an application is made for judicial review in respect of part only of a determination under this Part, the High Court may, if it so thinks fit, declare to be invalid or quash the part or any provision thereof without declaring to be invalid or quashing the remainder of the determination or part, as the case may be, and if the Court does so, it may make any consequential amendments to the remainder of the order or part, as the case may be.

(7) References in this section to the Order shall be construed as including references to the Order as amended or re-enacted (with or without modification) by rules of court.

Application to High Court.

39. —Where a person fails to comply with a determination or a request made by the Commission under this Part, the Commission may apply to the High Court for an order requiring the person to comply with the determination or request.

Appeal panel.

40. —(1) This section applies to—

(a) an airport authority to whom a determination under section 32 (2) applies,

(b) the Irish Aviation Authority in respect of a determination under section 35 (2), and

(c) an airport user, being any person responsible for the carriage of passengers, mail or freight by air to or from an airport, in respect of a determination under section 32 (2) or 35(2).

(2) The Minister shall, upon a request in writing from a person to whom this section applies who is aggrieved by a determination under section 32 (2) or 35(2), establish a panel (“appeal panel”) to consider an appeal by that person against the determination.

(3) An appeal panel shall consist of at least 3 but not more than 5 persons appointed by the Minister, one of whom shall be designated by the Minister to be the chairperson of the appeal panel.

(4) An appeal panel shall determine its own procedure.

(5) An appeal panel shall consider the determination and, not later than 2 months from the date of its establishment, may confirm the determination or, if it considers that in relation to the provisions of section 33 or 36, there are sufficient grounds for doing so, refer the decision in relation to the determination back to the Commission for review.

(6) An appeal panel shall notify the person who made the request under subsection (2) of its decision under subsection (5).

(7) An appeal panel, having considered a determination under section 32 (2) or 35(2) and made a decision in respect of it under subsection (5) and having notified under subsection (6) the person who made the request under subsection (2) of its decision, shall stand dissolved.

(8) The Commission, where it has received a referral under subsection (5) from an appeal panel, shall, within one month of receipt of the referral, either affirm or vary its original determination and notify the person who made the request under subsection (2) of the reasons for its decision.

(9) A notice of a decision made under subsection (8) shall be given by publishing the notice in a daily newspaper published and circulating in the State and by such other means as the Commission may determine.

Service of notices.

41. —(1) Where a notice is required under this Part to be given to a person, the notice shall be addressed to that person and shall be given to the person in one of the following ways—

(a) by delivering it to the person,

(b) by leaving it at the address at which the person ordinarily resides or carries on business,

(c) by sending it by post in a pre-paid registered letter addressed to the person at the address at which the person ordinarily resides or carries on business,

(d) if an address for the service of notices has been furnished by the person, by leaving it at, or sending it by pre-paid registered post addressed to the person to, that address,

(e) in any case where the Commission considers that the immediate giving of the notice is required, by sending it, by means of a facsimile machine, to a device or facility for the reception of facsimiles located at the address at which the person ordinarily resides or carries on business or, if an address for the service of notices has been furnished by the person, that address, provided that the sender's facsimile machine generates a message confirming successful transmission of the total number of pages of the notice.

(2) For the purposes of this section, a company registered under the Companies Acts, 1963 to 1999, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.