Aviation Regulators

Background

The Commission for Aviation Regulation was established in 2001 as a regulator of certain aspects of the aviation industry.

The State airports are owned directly or indirectly by the government.  Part of the reason for establishing 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.  The Authority is to 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.

Commission’s Functions

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.

Making Charges

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 a 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.

Factors in Charges

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 the 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 Commission decides the aviation terminal charges cap, which the Irish Aviation Authority may charge at airports. They cover air traffic control charges for aircraft use at the airport.  There is a broadly similar procedure for the determination of 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 resources,
• 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.

Irish Aviation Authority

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.

EU Licensing Requirements

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 the 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 requirements.
• It must be of good repute.

The licensed entity must comply on an ongoing 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.

Licensing Services

The licensing of ground handling functions is undertaken at the EU level pursuant to the 1998 Regulation. Ground handling services cover services between landing and take-off, including baggage handling, maintenance, refuelling, unloading, marshalling, and 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 to the freedom to provide ground-handling services.

Slot Allocation

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 the 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.

There are EU regulations on regulating slots between carriers are by agreement.  There are sanctions available against the use of air slots in a manner different to that intended prejudicial to airport air traffic requirements.

Tour Operators & Travel Agents

The Commissioner regulates tour operators and travel agents. An entity carrying out a tour operation 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 a 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.

Disabled Persons

The Commission is also an authority under certain EU regulations, 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 ensure that assistance is given, are regulated by it.  Airlines may not refuse to carry persons other than in very limited circumstances.

Entities managing airports and airlines are obliged to render assistance.  The airport may levy on a non-discriminatory basis a charge on airport users for the purpose of funding the assistance.  It must be reasonable cost, related, and transparent.

Enforcement & Compensation

The Commission deals with complaints relating to compliance and noncompliance with 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 the complaint or on its own initiative, it is of the view that the regulations are not being complied with, it may issue mandatory directions.  Failure to comply is an offence.

The Commission is the enforcement body in Ireland for the regulations on compensation 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 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 expenses. 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.

Administration & Enforcement

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 the 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.

IANS

If a function of the IANS or the IAA is a function of its subsidiary, the provisions of this and any other enactment apply to the subsidiary as they apply to the IANS or the IAA, respectively.

The Act will not apply to state aircraft or aerodromes under the control of the Minister for Defence. It defines the term “state aircraft” to mean aircraft used in the military, customs or police service of any state. The Minister for Transport can make an order to apply provisions of the Act to state aircraft of other States.

Directions by Minister to IANS

The Minister for Transport may give general policy directions to the IANS relating to the performance of its functions and also in relation to matters in the national interest or regarding the State’s international obligations. The IANS is required to comply with any such direction

There are regulation-making powers for the Commission for Aviation Regulation to provide for a levy to fund its functions. This repeal is to continue any regulations that exist. It of air navigation and aeronautical communications services.

Formation of  IANS

The 2022 Act provides for the establishment of the Irish Air Navigation Service (IANS) and its administrative arrangements. It provides standard and established governance measures that include conditions that apply to board members, the chief executive and members of staff.

It provides the financial framework including the reporting requirements to the Minister and to the Oireachtas. In addition, it provides for the transfer of staff to the IANS from the IAA, and terms and conditions on superannuation and remuneration.

Formation of Irish Air Navigation Service; The Minister for Transport, after consultation with the Minister for Public Expenditure and Reform, can form a Designated Activity Company limited by shares for the provision of air navigation services in line with the conditions set out in this legislation.

The Act provides for the determination of the authorised share capital of the IANS by the Minister for Public Expenditure and Reform. The Constitution or Memorandum of Association of the IANS and any subsidiary will be consistent with the Act and shall be approved by the Minister for Transport with the consent of the Minister for Public Expenditure and Reform.

IANS Functions

The purpose and objectives include providing, operating and managing air navigation and communication services safely and efficiently; operating and managing terminal services; impose charges; give effect to the purposes of the Eurocontrol Convention and any other international agreement; undertaking research; providing consultancy advisory and training; attend meetings of international governments or organisations as they pertain to its functions; and to advise the Minister and/or Government.

Any function given to the IANS under this legislation which was previously a function of the Irish Aviation Authority (IAA) ceases to be a function of the IAA.

The Minister for Transport may assign any additional functions related to civil aviation to the IANS. The Minister must consult the IANS in advance. The IANS must manage its assets and operations appropriately to ensure its revenues cover its costs and to conduct its business at all times in the most cost-effective and efficient manner.

IANS Governance

The Articles of the IANS will be in line with this legislation as approved by the Minister for Transport with the consent of the Minister for Public Expenditure and Reform. The number of directors shall be 7, 8 or 9, including the Chairman. It also provides a number of conditions such as the appointment, removal and the length of term of directors.

Other standard conditions include remuneration for the board, appointment of an auditor and principles for the negotiations on pay, conditions and service of staff. In addition, it provides for the assignment of functions to subsidiaries and the level of investment through shares or loans.

Any amendment to the Memorandum of Association or Articles of Association of the IANS or subsidiary can only be made with the prior approval of the Minister for Transport and the consent of the Minister for Public Expenditure and Reform.

The Minister for Public Expenditure and Reform may exercise all the rights and powers of a shareholder. The Minister for Public Expenditure and Reform can transfer shares only for the purpose of the Companies Act 2014 minimum number of members.      Any member of the IANS that holds a share holds it in trust for the Minister for Public Expenditure and Reform and is bound to pay all dividends and any other monies received in respect of the share to the Exchequer.

The share must only be transferred to the Minister for Public Expenditure and Reform (or a person nominated by that Minister). If a member holding a share passes away, that share will automatically vest in the Minister for Public Expenditure and Reform without the need for a transfer.

IANS Finance

Any dividends or other monies received by the Minister for Public Expenditure and Reform in respect of his or her share of the IANS will be paid to the Exchequer. The IANS or its subsidiaries may borrow monies for capital purposes with the consent of the Minister for Transport and the Minister for Public Expenditure and Reform.

The amount of all borrowings cannot exceed €127m at any given time. Borrowings can be in a foreign currency but are subject to the same conditions and equivalent limits. The Minister and the Minister for Public Expenditure and Reform may, by order, specify a different limit.

The Minister for Public Expenditure and Reform may guarantee loans of the IANS up to €105 million. That Minister must report to the Oireachtas on any such guarantees.

Accounts and audits provide that the IANS must keep and submit annual, audited accounts to the Minister for Transport for approval and to lay before each House of the Oireachtas.

Annual report and giving of information to the Minister for Transport provides that the IANS must submit an annual report to the Minister for approval and to lay before each House of the Oireachtas.

Executive & Staff

The first Chief Executive of the IANS shall be the existing Chief Executive of the IAA for the period remaining as Chief Executive of the IAA. That Chief Executive may be appointed and removed by the Minister for Transport. Subsequent Chief Executives shall be appointed and be removed by the board in consultation with the Minister for Transport. The functions of the Chief Executive are listed and the terms and conditions that the Chief Executive is subject to are determined by the board, in consultation with the Minister and with the consent of the Minister for Public Expenditure and Reform.

The terms and conditions, remuneration, allowances or expenses for staff of the IANS must have regard to any Government or nationally agreed guidelines which are in force or to Government policy concerning remuneration and conditions of employment also in force. Furthermore, the IANS must comply with any directive in relation to those terms and conditions, remuneration, allowance or expenses given by the Minister for Transport, with the consent of the Minister for Public Expenditure and Reform.

Transfer of staff of IAA to IANS

The existing IAA staff, working mainly on air navigation services provision, will transfer to the IANS on no lesser terms and conditions as they currently have. Where a dispute arises or it cannot be determined if a person works mainly or wholly in air navigation services provision the IAA shall determine whether a person transfers or not, in consultation with staff representatives. Any previous service in the civil service or IAA will be reckonable subject to the relevant legislation listed.

The IANS must prepare and submit a scheme to the Minister for Transport for the purpose of providing pension benefits. The benefits of any pension scheme provided to staff of the IAA transferring to the IANS must be no less favourable than their current pension benefits.

The resolution of any dispute in relation to pension benefits will be determined by the Minister for Public Expenditure and Reform. It provides for the period between the vesting day of the IANS and approval of the new pension scheme and requires any scheme made to be laid before each House of the Oireachtas.

Fees and Charges of IANS

Charges by IANS in respect of air navigation and aeronautical communications services

The IANS may make regulations requiring fees for air navigation or communication services to be paid to itself, Eurocontrol or the Minister for Transport. These regulations must have the consent of the IAA and may provide that the charge is made and recoverable outside the State. The regulations can specify the liability for such charges be it aircraft owners or, in the case of leased aircraft, the aircraft operator and also managers of aerodromes.

The payments to Eurocontrol will be set by international agreements and payments to the Minister for Transport will be set by the IANS with the agreement of the Minister. The charges may be different depending on the class or use and may be subject to interest. The regulations may require aircraft operators or aerodrome managers to keep and produce inspection records to enable assessment and collection. Any such records may be used in any court action to recover fees.

Until regulations are made, the IAA will continue to collect fees, and the IANS can recover its costs from the IAA. The IANS may charge for its functions under any legislation, for any other service it provides and for the property it provides. The IANS may charge for its functions under the European Union Regulations set out in Schedule 1. The amount charged for these functions must be considered appropriate by the IAA

The Minister for Transport may issue directions to the IANS exempting certain classes of users from fees for its services. The IANS must comply with these directions and the Minister, with sanction from the Minister for Public Expenditure and Reform, must pay the costs of providing these services to the IANS.

Recovery of Charges

Detention and sale of aircraft by IANS for unpaid air navigation and aeronautical communications services charges provides that the IANS has the power to detain aircraft under the Air Navigation and Transport Act 1998 for failure to pay for services.

Provisions in relation to Eurocontrol, International Agreements and Certain Organisations; The International obligations of the IANS. These relate to Eurocontrol, international agreements and organisations. It also protects the staff of the IANS while performing their duties.

The jurisdiction that applies for the recovery of amounts due to Eurocontrol for air navigation services or aeronautical communications. It may be the state of residence, place of business, place of assets of the person or the state of the headquarters of Eurocontrol. In addition, proceedings may be taken within the State by Eurocontrol, the IANS or the Minister for Transport. (*93 S49)

There are provisions in relation to the International Civil Aviation Organisation, International Agreements and certain organisations

Expenses of international organisations

The Minister for Transport shall pay, from monies provided by the Oireachtas, for membership, organisation and operation of international organisations, including Eurocontrol, the European Civil Aviation Conference or any other international organisation. The Minister will consult with the IANS on other international organisations whose functions relate to the IANS functions. The IANS shall reimburse the Minister for these payments.

Attendance of IANS at meetings of or organised by certain international organisations provides that the IANS may attend meetings of or arranged by Eurocontrol or any other international organisation of which the State is a member. The meeting must relate to the functions of the IANS. Where matters in addition to civil aviation are to be discussed, the consent of the Minister for Foreign Affairs is required.

The provider may also attend meetings of international organisations of which the State is not a member, as an observer if directed by the Minister for Transport and the meeting relates to the functions of the IANS. The IANS will report to the Minister on those meetings whenever requested by the Minister.

Offences

It is an offence for an aircraft and, hence, the pilot or operator of an aircraft to contravene a provision of the Act or other listed instruments. The penalty for such an offence can be either on summary conviction a class A fine and/or imprisonment for up to 6 months or on indictment a fine of up to €150,000 and/ or imprisonment for up to 3 years.

An offence related to either charges or obstructing an officer of the IANS or Eurocontrol attracts a class A fine and/or imprisonment for up to 6 months on summary conviction. On indictment anything used to commit the offence may be forfeited, other than the aircraft. The offence applies to the corporate body and the person associated with that body.

The charge of rates on property of IANS provides that liability for local authority rates will transfer from the IAA to the IANS from the beginning of the financial year following the vesting day.

Transitional Provisions

There are provisions related to legal instruments, legal proceedings, land, property, legal claims, rights and liabilities which are transferred from the IAA to the IANS. It also provides for the appropriate transition of financial matters.

Listed instruments are to continue in force after vesting day and responsibility to move to the IANS where it is related to an IANS function. Any other legislation referring to the IAA for an IANS function will, after vesting day, be construed as referring to the IANS.

Legal proceedings to continue after vesting day and responsibility to move to the IANS where it is related to an IANS function.

Charge Making Rules

European Regulations under which IANS may impose charges

Schedule 1 lists the European regulations under which IANS may impose charges. These relate to air navigation service provision and communications.