The Commission for Aviation Regulation was established in 2001 as a regulator of certain aspect of the aviation industry.
The State airports are owned directly or indirectly by the government. A part of the reason to establish a regulator was to avoid a conflict of interest for the government’s role with shareholders of the airports and regulator of airport charges.
Aer Rianta became the Dublin Airport Authority of the State Airport Act 2004. This Authority will separate the Cork and Shannon Airport assets s into separate entities to be held by the State or otherwise.
The Aviation Regulator in common with other regulators established at the turn of the century is an independent entity with its own powers, staff and functions. It must act in a way that is just, non-discriminatory, proportionate and transparent.
The Commission is appointed by the Ministry (for Communications) for a five year term. It is independent of government in its functions.
The Commission makes regulations to impose a levy to meet its operating costs and expenses. Statutory instruments are made to give effect to the levy annually to specify the levels payable by the various regulated entities within the industry.
The Commission deals with a number of regulatory functions including
- aviation terminal service charges
- airport charges
- licensing of air carriers
- licensor of ground handling functions for EU cross border purposes
- licensor of slot coordination
- licensor of travel agents and tour operators
- enforcer of certain rights in relation to compensation and for disabled persons
The Minister is entitled to give certain general policy directions in the exercise of functions.
In making airport charges, the Commission is to
- facilitate the efficient and economic development and operation of airports to meet the use of current and prospective users
- protect the interests of current and prospective users
- enable the Dublin Airport Authority to operate the airport in a sustainable and financially viable manner
The legislation sets out the procedure by which these making of charges and review of charges is to be undertaken. The charges were to be determined for five year period. The airport charges are fixed for periods, but they provide for limits of charges, limits for types of charges and provisions operating to restrict increases or require reduction. The limits on charges may vary during the determination period.
The determination is made by reference to yield per passenger which is based on a certain assumption of footfall. In making charges the Commission is to give notice to persons and entities affected. It is to give notice publicly in the newspapers and specify a period in which representations may be received.
In accordance with fair procedures, the Commission engages in a process with the interested parties and ultimately publishes a draft determination. Representations made must be considered, accepted or rejected.
A final determination is made, and a report is sent to the Department giving reasons for the determination together with reasons in relation to the representation which have been accepted or rejected. The decision is published, and the report is made available.
The Commission is entitled to information from the airport authorities in relation to projected revenues and costs and such information as is required to make its decision.
The determination may be reviewed by the Commission at its own initiative, at the request of the airport authority or user affected. If there are substantial grounds for doing so, the determination may be amended after review.
The Commission is obliged to have regard to a range of matters making its determination including
- investment in airport facilities in line with safety and commercial operations
- levels of income
- costs and liabilities
- levels and quality of services
- Government policy statements in relation to economic and social development of the State
- cost competitiveness of the airport services
- impose constraints consistent with the Commission’s functions
- national and international obligations
The Air Navigation and Transport Amendment Act reconstituted Aer Rianta. It was given the function to manage and develop Dublin Airport.
The Commission decides the aviation terminal charges cap which the Irish Aviation Authority may charge at airports. They cover air traffic control charge for use of the airport by aircraft. There is a broadly similar procedure for determination to the charges to that above.
The Commission takes account of
- charging principles of the International Civil Aviation Organisation of Europe.
- investment requirement
- safety and commercial operations
- efficient use of resource,
- level of income, revenue, cost and expense,
- level and quality of services,
- cost competitiveness in the context of international practice.
The Commission set the charges cap on a five year basis.
The Irish Aviation Authority is an independent State owned body which provides air navigation services in Irish space and regulates safety standards in civil aviation. The Commission licenses Irish air carriers under EU wide regulations with respect to air services.
An air carrier operating license is required for the carriage of air passengers, mail or cargo for reward. The domestic regulator, the Commission may license airline undertakings in accordance with criteria in EU regulations.
The 2008 European Union regulations replaced the former national authorisations vested in the Minister and later transferred.
The Irish Aviation Authority grant an air operator certificate which deals with technical safety requirements. The Commission deals with commercial and legal requirements under the separate license above.
It is an offence to operate an air carrier service without a licence. It is subject to punishment and summary conviction up to €1,270 euro or six months imprisonment or on indictment imprisonment of six months imprisonment up to six months or a fine of €127,000.
The European Union requirements provide for the terms and conditions of an operating license. The business must have a place of business within the licensing state. It must hold the air operator’s certificate (Safety and Technical Issues Certificates) from the IIA in Ireland and must have aircraft at its disposal by ownership or lease.
- Its main business must be the operation of air services either alone or in combination with aircraft related services.
- It must have a structure which is capable of being regulated in accordance with the requirements.
- States or EU nationals must own 50 percent and control the undertaking.
- It must comply with financial conditions for those regulations.
- It must comply with insurance requirement.
- It must be of good repute.
The licensed entity must comply on an on-going basis with the terms and conditions of the licensing and regulations.
Category B license permits passage of carriage of passengers below 20 seats or 10 tonnes.
The licensing of ground handling functions is undertaken at the EU level pursuant to 1998 Regulation. Ground handling services cover services between landing and take-off including baggage handling, maintenance, refuelling, unloading, marshalling, baggage handling. Airlines may provide services for themselves or through one or more ground handling contractors.
The Commission Act licenses both airlines themselves who provide their own services and third party entities who provide such services under contract. The licensing criteria are broadly standard terms. Financial information, competence, insurance et cetra must be demonstrated.
The Airport Authority may charge fees for access to the airport facilities to ground handling service providers. This must be approved by the Commission in accordance with the criteria published in EU regulations with respect for freedom to provide ground handling services.
The Commission is responsible in relation to certain slot allocation functions. The slot is the right to use airport facilities at designated times for airlines. In some cases, the slots are allocated on a mandatory basis.
The slot coordinator assigns slots to airlines and is an independent company responsible for coordination of facilities at 21 airports in the EU including Ireland and formerly the UK. The Commission has designated Dublin Airport as s a coordinated slots airport, which means that slots are allocated mandatorily.
EU regulations on regulating of slots between carriers is by agreement. There are sanctions available against use of air slots in a manner different to that intended prejudicial to airport air traffic requirements.
The Commissioner regulates tour operators and travel agents. An entity carrying out a tour operation themselves or holding themselves out as such must be licensed under the Transport for Operators and Travel Agents Act. An entity which organises or sells overseas ravels contracts, a contract for the carriage of persons by air, sea or land commencing in the State to a place outside the State or Northern Ireland is subject to licensing.
A tour operator is a person other than carrier who sells or offers to sell accommodation, travel by air, sea or land, to outside the island of Ireland or holds himself out by advertising or otherwise as one who they may make available such accommodation either solely or in association with other facilities.
A travel agent is an entity other than the carrier who sells or offers to sell buy or purchase on behalf of persons, accommodations on air, sea, or transport to outside the Island or Ireland or holds himself out by advertising or otherwise as one who may make such services available.
Tour operators and travel agents must take out and maintain a bond. It is an offence to carry on business without a license.
The Commission is also an authority under certain EU regulation which are dealt with in a separate section. Disabled persons and persons with reduced mobility are covered by the regulation
EU regulations dealing with the rights of persons of reduced mobility in carriage by air, designed to protect against discrimination and ensures that assistance is given, is regulated by it . Airlines may not refuse to carry persons other than the in very limited circumstances.
Entities managing airports and airlines are obliged to render assistance. The airport may levy on an non-discriminatory basis a charge on airport users for the purpose of funding the assistance. It must be reasonable cost related and transparent.
The Commission deals with complaints relating to compliance and noncompliance of the regulations. The Commission may make requirements under 2008 regulations on air carriers, airport operators and tour organisers in relation to compliance with the regulations.
If, either on complaint or on its own initiative, it is of the view that the regulations are not being complied, it may issue mandatory directions. Failure to comply is an offence.
The Commission is the enforcement body in Ireland for the regulations on compensations where flights are cancelled, or boarding is disallowed. The regulations apply to
- departures from EU airports
- arrivals into the EU,
on an EU licensed air carrier.
If a passenger has a confirmed reservations of a flight and presents for check in, at the relevant time or at least 44 minutes beforehand if no time is published, the regulations apply.
Where a passenger is denied boarding, suffers a long delay or downgrading, or the flight is cancelled, certain obligations apply to the airline. The airline must provide care and reimburse certain expense. It must provide certain compensation unless certain excusatory grounds are available.
Passengers must be informed of their rights. There must be a visible sign at check in.
The Commission may issue a direction to carriers obliging them to comply with regulations. Failure to comply is an offence.
In common with modern regulatory legislation, the Commission has powers to appoint authorised officers to undertake investigations for the purpose of enforcement of the legislation. They may enter premises occupied by certain regulated entities.
They may require production of records, books, records, et cetera. They may require assistance in the use of electronic equipment. They may take and inspect copies of books, documents and records.
It is an offence to obstruct an officer in the course of the duty. It is equally an offence to fail to provide information, hide or suppress documents, give misleading information et cetera.
Authorised officers may enter premises and make lawful requirements. An application may be made for a search warrant to the District Court. A search warrant would permit certain premises to be searched provided that the judge is shown that there is evidence or suspecting information required by the authorised information held there. If necessary, authorised officers may be accompanied by members from Garda Siochana.
There are restrictions on taking judicial review of the Commission’s decisions. They must be made within a limited time. It is necessary to show that there is a good and sufficient reason before obtaining consent for judicial review.
The High Court may direct persons to be served with the application before leave or consent for judicial review is considered. The legislation limits a right of appeal to the Supreme Court where a point of law of exceptional public importance is involved.