Commentary Part 1 – Airports Schedule 2: Appeals under sections 24 and 25 Part 5: Appeals
130.This Part of the Schedule provides the procedures applicable to the Competition Commission in relation to appeals under section 24 (relating to conditions of new licences) and section 25 (relating to modification of licence conditions).
131.Paragraph 21 of Schedule 2 provides the CAA with limited additional powers when a licence condition or modification is remitted back to the CAA (see section 27(2)(b)). In particular, paragraph 21(2) provides that the CAA may make a licence modification on reconsidering the matter effective on or after the date on which the original decision took effect or would have taken effect but for its suspension, provided the licence holder agrees. This will allow the CAA to address any injustice that may have arisen through licence enforcement measures taken in respect of an obligation which in the light of the Competition Commission’s decision should never have been imposed on the licence holder.
132.Paragraph 21(3) to (5) empowers the CAA to make adjustments to any new or altered price cap imposed in consequence of the Competition Commission’s determination where it transpires that the charges made by the licence holder during the appeal period were higher than the maximum that would have been allowed if the CAA’s original decision had accorded with that of the Competition Commission’s determination. In such a case, the CAA in determining the new price cap is empowered to put the licence holder in the position it would have been in if, during the appeal period, it had in fact charged at the revised (lower) price cap. There is flexibility to allow the CAA to set an adjusted price cap so the licence holder cannot retain the benefit of the excess charge.
133.For example, the licence holder charged airlines £10 per passenger during the appeal period. The Competition Commission’s decision leads the CAA to conclude that a price cap of £7.50 per passenger is appropriate for the entire period of the appeal and subsequently. The new price cap could be set below £7.50 per passenger to the extent necessary so the licence holder does not retain all or some of the £2.50 excess charge per passenger during the appeal period.
134.Paragraph 21(3), (6) and (7) provides the CAA with similar powers to make appropriate adjustments where the Competition Commission’s decision on appeal leads to a higher price cap than the charges made during the course of the appeal.
135.Paragraph 22 provides the Competition Commission with similar powers to those applicable to the CAA under paragraph 21 of Schedule 2, where the Competition Commission substitutes its decision for that of the CAA (see section 27(2)(c)).