The Operation of Air Services ... Regulations 2009

• Citation: S.I. 2009/41
• Sections: 72

Section 1 Citation and commencement

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

Section 1A Review

(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.

Section 2 Revocation

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

Section 3 Interpretation

(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 European Union ;

“ 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 .

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

Section 4 Existing operating licences

A licence granted by the CAA under Council Regulation (EC) 2407/92 of 23rd July 1992 on licensing of air carriers 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.

Section 5 Competent licensing authority in relation to operating licences

(1) The CAA is the competent licensing authority for the United Kingdom for the purposes of Articles 3 to 11 and 14 of the EC Regulation.

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

Section 6 Proof of good repute etc.

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.

Section 7 Suspension and revocation

(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.

Section 8 Date of revocation or suspension of an operating licence

(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.

Section 9 Appeal to the Secretary of State

(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.

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

Section 10 Restriction on carriage of passengers by an air carrier

(1) Where this paragraph applies a UK 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 .

Section 11 Offences relating to operating licences

(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.

Section 12

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

Section 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.

Section 14 Registration of aircraft

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Section 15 Approval for and restriction on use of leased aircraft

(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).

(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.

Section 16

(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.

(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).

Section 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 the United Kingdom or the European Union as lessee with a UK air carrier or a Community air carrier.

(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 Annex 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 .

Section 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 in the United Kingdom .

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

(a) a UK 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.

Section 19 Offences relating to leased aircraft

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.

Section 20

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

Section 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.

Section 22 Competent authority in relation to access to intra-Community air services

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Section 23 Secretary of State's duty

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

(a) the provisions of the applicable Article, and

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

is a duty owed to qualifying air carriers .

(2) A breach of that duty shall be actionable by any qualifying 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 Article 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.

Section 24 Restriction on the operation of air services

Where a public service obligation has been imposed on a route under Article 16(1) of the EC Regulation, a qualifying 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.

Section 25 Offences

A qualifying 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 ... in breach of regulation 24;

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

Section 26 Requirement to provide information

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Section 27 Offences

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Section 28 Penalties

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.

Section 29 Offences by body corporate or Scottish partnership

(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.

Section 30 Proceedings in Scotland

(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 (date of commencement of proceedings) applies for the purposes of this regulation as it applies for the purposes of that section.

Section 31 Power to direct that an aircraft must not fly

(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.

Section 32

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

Section 33 The Civil Aviation Act 1982

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

Section 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 ” .

Section 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 24th September 2008 on common rules for the operation of air services in the Community; ” .

Section 36 The Civil Aviation Authority Regulations 1991

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 ;

Section 37 The Air Navigation Order 2005

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Section 1

When the CAA provides to a person having a right of appeal written notification of its decision to refuse, revoke or suspend an operating licence, the notification must specify the date on which the decision takes effect.

Section 2

An appeal to the Secretary of State must—

(a) be made by written notice signed by or on behalf of the appellant,

(b) clearly identify the case to which it relates,

(c) state the grounds on which the appeal is based, and

(d) state the arguments on which the appellant relies.

Section 3

The appellant must serve a notice of appeal on the Secretary of State and the CAA within 14 days after the date on which the appellant was notified of the CAA's decision.

Section 4

Within 14 days after receiving notice of an appeal, the CAA must—

(a) serve on the Secretary of State any submission it wishes to make in connection with the appeal and may include in it an amplification and explanation of the reasons for its decision, and

(b) serve a copy of any such submission on the appellant.

Section 5

Within 14 days after the expiry of that period the appellant—

(a) may serve on the Secretary of State a reply to any submission made by the CAA under paragraph 4, and

(b) must serve a copy of any such reply on the CAA.

Section 6

Before deciding an appeal the Secretary of State may ask the appellant or the CAA any question the answer to which appears to the Secretary of State necessary to enable the determination of the appeal. The Secretary of State must give the appellant and the CAA an opportunity to reply to any such answer.

Section 7

No person may submit to the Secretary of State evidence that was not before the CAA when it decided the case.

Section 8

The Secretary of State may uphold the decision of the CAA or direct it to reverse or vary its decision.

Section 9

The Secretary of State must notify the CAA and the appellant of the Secretary of State's decision and of the reasons for it. Where as a consequence the CAA is required to grant or revoke an operating licence the CAA must take the steps necessary to cause the decision to be published in its Official Record .

Section 10

An appeal to the Secretary of State does not preclude consultations with the competent authorities of any country or territory outside the United Kingdom for the purposes of section 6(2)(a) to (d) of the Civil Aviation Act 1982 (Secretary of State's decision in national interest, etc.) even though the consultation may relate to matters affecting the appeal.

Section 11

Subject to paragraph 12, the failure of any person to serve any document, or copy of a document, or to provide information in the time provided for in this Schedule or any other procedural irregularity does not invalidate the decision of the Secretary of State. The Secretary of State may, and if it is considered that any person may have been prejudiced by such an irregularity, must take such steps as are thought fit before deciding the appeal to cure the irregularity.

Section 12

Paragraph 11 does not apply where an appellant has failed to serve a notice of appeal within the period set out in paragraph 3.