Aviation Regulation Act 2001

PART 1 Preliminary and General

1. Short title.

1.—This Act may be cited as the Aviation Regulation Act, 2001.

2. Interpretation.

2.—(1) In this Act—

“Act of 1998” means Air Navigation and Transport (Amendment) Act, 1998;

“airport” has the meaning assigned to it by the Act of 1998;

“airport authority” has the meaning assigned to it by the Act of 1998;

“airport charges” has the meaning assigned to it by the Act of 1998;

“authorised officer” means a person appointed under section 42 to be an authorised officer;

“Commission” means Commission for Aviation Regulation established under section 5;

“commissioner” means a member of the Commission;

“Council Regulation (EEC) No. 95/93” means Council Regulation (EEC) No. 95/93 of 18 January 1993^1;

“deputy commissioner” means a member of the staff of the Commission appointed as a deputy member of the Commission under section 13;

F1[“Dublin appointed day”is to be construed in accordance with the State Airports Act 2004;]

“establishment day” means the day appointed under section 3 to be the establishment day;

“functions” includes powers and duties, and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the carrying out of the duties;

“local authority” has the meaning assigned to it by the Local Government Act, 1941;

“Minister” means Minister for Public Enterprise;

F2[…]

F3[“Regulation (EC) No. 261/2004”means Council Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004^1, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights;]

F4[“Regulations of 2011”means the European Communities (Dublin Airport Charges) Regulations 2011 (S.I. No. 116 of 2011);]

F4[“statement of strategy”means a statement of strategy prepared and submitted undersection 27A;]

“superannuation benefits” means pensions, gratuities and other allowances payable on resignation, retirement or death;

F5[…]

“tour operator” and “travel agent” have the meanings assigned to them, respectively, in the Transport (Tour Operators and Travel Agents) Act, 1982;

F6[“trader”has the meaning assigned to it bysection 2of thePackage Holidays and Travel Trade Act 1995.]

(2) In this Act—

(a) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended,

(c) a reference to an enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act, and

(d) a reference to a statutory instrument shall be construed as a reference to that instrument as amended, adapted or extended by any subsequent statutory instrument.

3. Establishment day.

3.—The Minister shall by order appoint a day to be the establishment day for the purposes of this Act.

4. Expenses of Minister.

4.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of monies provided by the Oireachtas.

PART 2 The Commission for Aviation Regulation

5. Establishment of Commission.

5.—(1) There shall stand established on the establishment day a body to be known as the Commission for Aviation Regulation or, in the Irish language, An Coimisiún um Rialáil Eitlíochta to perform the functions assigned to it under this Act.

(2) The Commission shall be a body corporate with perpetual succession and a common seal and power to sue and be sued in its corporate name and to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

(3) The Commission shall have all such powers as are necessary for or incidental to the performance of its functions under this Act.

(4) In carrying out its functions, the Commission shall ensure that all determinations, conditions attaching thereto, amendments thereof and requests shall be objectively justified and shall be non-discriminatory, proportionate and transparent.

6. Independence of Commission.

6.—Subject to this Act, the Commission shall be independent in the exercise of its functions.

7. Principal function of Commission.

7.—The principal function of the Commission shall be to regulate airport charges F7[…].

8. Functions of Commission under certain Council Regulations.

8.—(1) The Commission shall be the competent authority in the State for the purposes of Council Regulation (EEC) No. 95/93 other than the functions of the coordinator.

(2) The Commission shall have the function of appointing a coordinator under Article 4 of Council Regulation (EEC) No. 95/93.

(3) F8[…]

F9[(4) The Commission is designated for the purposes of Article 16 of Regulation (EC) No. 261/2004.]

8A. F10[Functions of Commission under European Communities (Dublin Airport Charges) Regulations 2011

8A.—The Commission shall be the independent supervisory authority for the purposes of theF11[Regulations of 2011].]

8B. F12[Commission to review market power of airport authorities

8B.—(1) The Commission may from time to time carry out a review to assess the market power held by an airport authority in a relevant market in order to assist the Commission in carrying out its functions under this Act.

(2) The Commission shall carry out a review undersubsection (1)when requested to do so by the Minister.

(3) The Commission shall specify the relevant market for the purposes of a review undersubsection (1).

(4) Before carrying out a review undersubsection (1), the Commission shall publish a notice setting out—

(a) that the Commission proposes to carry out a review to assess the market power held by an airport authority in a relevant market, and

(b) that submissions in respect of the review may be made to the Commission in writing before a date specified in the notice (being not less than one month from the date of publication of the notice).

(5) When carrying out a review undersubsection (1), the Commission shall consider any submissions made to it undersubsection (4)(b).

(6) The Commission shall furnish a report of the findings of the review to the Minister and shall, in that report, make recommendations on the regulation of airport charges.

(7) An airport authority shall, upon a request from the Commission, provide the Commission with such information as the Commission may reasonably require for the purposes of a review undersubsection (1).]

9. Transfer of functions.

9.—(1) The administration and business in connection with the exercise, performance or execution of any of the functions transferred by subsection (2) are hereby transferred, on the establishment day, to the Commission.

(2) There are hereby transferred, on the establishment day, to the Commission the functions vested in the Minister by or under each of the following—

(a) the Transport (Tour Operators and Travel Agents) Act, 1982,

(b) the Package Holidays and Travel Trade Act, 1995,

(c) the European Communities (Access to the groundhandling market at Community airports) Regulations, 1998 (S.I. No. 505 of 1998), and

(d) F13[…]

(4) Anything commenced before the establishment day by or under the authority of the Minister may, in so far as it relates to functions transferred by this section, be carried on or completed on or after such day by the Commission.

(5) Where, immediately before the establishment day, any legal proceedings are pending to which the Minister is the plaintiff or the prosecutor and the proceedings have reference to functions transferred by this section to the Commission, the name of the Commission shall, in so far as the proceedings relate to any functions transferred by this section, be substituted in those proceedings for that of the Minister, or added in those proceedings as may be appropriate, and those proceedings shall not abate by reason of such substitution.

(6) Where, immediately before the establishment day, any legal proceedings are pending to which the Minister is a defendant and the proceedings have reference to any functions transferred to the Commission by this section, the Commission shall not be substituted for the Minister in those proceedings notwithstanding the transfer of functions under this Act.

(7) Every document (including any certificate or licence) granted or made in the exercise of a function transferred by this section shall, if and in so far as it was operative immediately before the establishment day, have effect on and after that day as if it had been granted or made by the Commission.

10. Directions by Minister to Commission.

10.—(1) The Minister may give such general policy directions (including directions in respect of the contribution of airports to the regions in which they are located) to the Commission as he or she considers appropriate to be followed by the Commission F14[…].

(2) The Commission shall comply with any direction given under subsection (1).

F15[(3) The Minister shall not give a policy direction undersubsection (1)in respect of the exercise of the principal function of the Commission specified insection 7.]

11. Members of Commission.

11.—(1) The Commission shall consist of at least one but not more than 3 members, each of whom shall be appointed by the Minister on such terms and conditions of appointment, including remuneration, as the Minister may fix, with the consent of the Minister for Finance, to hold office in a full-time capacity for a period of not less than 3 and not more than 5 years.

(2) Each member of the Commission shall be known as a commissioner for Aviation Regulation and is in this Act referred to as a “commissioner”.

(3) Where there is more than one commissioner, the Minister shall appoint one of them to be chairperson of the Commission on such terms and conditions of appointment, including remuneration, as the Minister may fix, with the consent of the Minister for Finance, to hold office in a full-time capacity for a period of not less than 3 and not more than 5 years.

(4) A person shall not be appointed as a commissioner F16[unless the Public Appointments Service or other licence holder concerned under the Public Service Management (Recruitment and Appointments) Act 2004], after holding a competition, have selected him or her for appointment as a commissioner.

(5) A commissioner, including the chairperson, whose term of office expires by effluxion of time shall be eligible for re-appointment to serve a second term, subject to a limit of serving no more than 10 years on the Commission.

(6) A commissioner shall not be entitled to serve more than 2 terms of office.

(7) A commissioner may—

(a) at any time resign his or her office by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon receipt of the letter by the Minister, whichever is the later, and

(b) be removed from office by the Minister if, in his or her opinion, the member has become incapable through ill-health of effectively performing his or her duties or for stated misbehaviour and the Minister shall cause to be laid before each House of the Oireachtas a statement of the reasons for such removal.

(8) Where the chairperson of the Commission ceases to be a commissioner he or she shall also thereupon cease to be chairperson of the Commission.

(9) The chairperson of the Commission may at any time resign his or her office as chairperson by letter addressed to the Minister and the resignation shall take effect from the date specified therein or upon receipt of the letter by the Minister, whichever is the later.

(10) The Commission may act notwithstanding a vacancy in its membership.

(11) A commissioner shall not hold any other office or employment in respect of which emoluments are payable.

(12) A commissioner shall not, for a period of 12 months following his or her resignation, removal or retirement from the office of commissioner, hold any office or employment or act as a consultant where he or she may be likely to use or disclose information acquired by him or her in the exercise of the functions of the Commission.

(13) No action or other proceedings shall lie or be maintainable (except in the case of wilful neglect or default) against any commissioner arising from a failure to perform or to comply with any of the functions conferred on the Commission by this Act.

12. Staff of Commission.

12.—(1) The Commission may, subject to the consent of the Minister and the Minister for Finance, appoint such and so many persons to be members of its staff as it considers necessary to assist it in the performance of its functions on such terms and conditions including terms and conditions as to remuneration and grading as may be agreed.

(2) The Commission may perform such of its functions as it may deem proper through or by any member of its staff.

13. Deputy commissioner.

13.—The Commission shall designate a member of its staff as a deputy member of the Commission (“deputy commissioner”) who shall assume and carry out with the authority of the Commission all of the functions of the Commission F17[, except in accordance withsection 40(8B),] in the absence of the commissioners or when the membership of the Commission is vacant.

14. Consultants.

14.—The Commission may, from time to time, engage such consultants or advisers as it may consider necessary to assist it in the discharge of its functions and any fees due to a consultant or adviser engaged under this section shall form part of the expenses of the Commission.

15. Codes of conduct.

15.—(1) The Commission shall, following consultation with the Minister, draw up a code of conduct in respect of controls on staff interests and ethical behaviour to apply to each member of its staff.

(2) The Commission shall publish any code of conduct drawn up under subsection (1).

16. Membership of Houses of Oireachtas, European Parliament and local authorities.

16.—(1) Where a commissioner is—

(a) nominated as a member of Seanad Éireann,

(b) nominated to stand as a candidate for election as a member of either House of the Oireachtas or to the European Parliament,

(c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she shall thereupon cease to be a member of the Commission.

(2) Where a person employed by the Commission—

(a) is nominated as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or to the European Parliament,

(c) is regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997, as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she shall thereupon stand seconded from his or her employment by the Commission and shall not be paid by, or be entitled to receive from, the Commission, remuneration or allowances in respect of the period commencing on such nomination or election, or when he or she is so regarded as having been elected, as the case may be, and ending when he or she ceases to be a member of either such House or such Parliament.

(3) A person who is, for the time being, entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a member of the European Parliament shall, while he or she is so entitled or is such a member, be disqualified from becoming a member of, or a member of the staff of, the Commission.

(4) A person who is a member of a local authority shall be disqualified from becoming a member of the Commission.

(5) Without prejudice to the generality of subsection (2), that subsection shall be construed as prohibiting, among other things, the reckoning of a period mentioned in that subsection as service with the Commission for the purposes of any superannuation benefits.

17. Declaration of interests.

17.—(1) On his or her offer of appointment, each commissioner shall make a declaration in writing of his or her interests to the Minister, in such form as the Minister, following consultation with the Minister for Finance, may specify.

(2) On his or her offer of appointment, each consultant and adviser and each member of the staff of the Commission at a grade or level specified before the appointment by the Commission, following consultation with the Minister, shall declare his or her interests in writing to the Commission and, within one month of such declaration, the Commission shall inform the Minister of the interests declared and the names of those making the declarations.

(3) A person to whom subsection (1) or (2) applies shall, throughout the tenure of his or her appointment, amend and update his or her declarations of interests as required by the Minister or the Commission, as the case may be, in respect of any changes in the interests held by the person.

(4) (a) A statement of the interests declared under subsection (1) shall be included in the next report prepared in accordance with section 26(c) following the making of the declaration and any subsequent change in a declaration shall also be included in a statement in the next available report.

(b) The form and content of the statement to be included in such report shall be agreed between the Commission, the Minister and the Minister for Finance.

(c) Notwithstanding paragraph (b), it shall not be necessary to specify in a statement in such report the amount or monetary value of any interest, or the remuneration of any trade, profession or employment included in the statement.

(5) Where a person to whom subsection (1) applies, fails to make a declaration in accordance with that subsection, the Minister shall decide the appropriate action (including removal from office) to be taken.