Pat Gallagher (Donegal South West, Fianna Fail)

Amendment No. 4 is a technical amendment intended to avoid doubt. It stems from an administrative oversight concerning the commencement of certain sections of the Aer Lingus Act 2004, which provides, among other things, for the establishment of the employee share ownership schemes. Based on the authority provided for in the Act, shares representing 9.9% of the issued share capital of Aer Lingus were transferred to the employees' share ownership trust on 20 August 2004. The establishment of the scheme formed part of the agreement with trade unions on radical transformation measures provided for in the company's survival plan in the aftermath of the terrorist attacks in the United States on 9 September 2001, and the ensuing crisis in the aviation industry.

These share transfers took place in the context of an agreement between the Ministers for Transport and for Finance, the company, the trustee for the employees' share ownership programme and the trade unions. It came to light only a year later that the relevant provisions of the Aer Lingus Act 2004 had not been commenced before the transfer of the shares took place.

The Minister signed the commencement of provisions order 2005 on 28 September 2005, which provided for the coming into operation of section 7 of the Aer Lingus Act 2004, and section 2 of the Act concerning the repeal of section 5(2) of the Air Companies (Amendment) Act 1993, which proposed a cap of 5% on the proportion of company shares which could be held by employee share ownership schemes. In practical terms nothing has changed but for the fact that we were advised that it would be important to have this embodied in primary legislation. That is what we are doing now. No one is losing anything as a result of this. The amendment provides for the relevant parts of the Aer Lingus Act 2004 to be deemed to be commenced on 19 August 2004, the day prior to the transfer of the shares.

Amendment No. 5 designates the Commission for Aviation Regulation, CAR, as the body to enforce the denied boarding regulation. CAR's role is to enforce the EU regulation and to receive complaints from passengers in cases where an airline fails to meet its obligations under the regulation.

The Commission for Aviation Regulation was already designated as the denied boarding enforcement body under the European Communities compensation and assistance of air passengers denied boarding, cancellation or long delay of flights regulation, SI 274 of 2005, made by the Minister for Transport, Deputy Cullen, on 31 May 2005. After making the statutory instrument, which was done in consultation with CAR and the Office of the Attorney General, it emerged there may be some doubt as to whether CAR's levy, which is provided for in the aviation regulation 2001, could provide for any expenses incurred by CAR in enforcing the denied boarding regulations. The Department, CAR and the Office of the Attorney General concluded that formally restating now in the Act which sets up CAR that the commission is formally responsible for the enforcement of the denied boarding regulations will clarify beyond all doubt that CAR's levy, provided for under the 2001 Act, can include any expenses incurred by CAR in carrying out that enforcement.

Since the statutory instrument was made under the European Communities Act, it only allowed for summary offences and associated penalties for infringements. CAR and the Department have now reached the view that this opportunity should be taken to recast the commission's enforcement role in primary legislation by amending the Aviation Regulation Act of 2001 which will allow the commission to pursue prosecutions on indictment in the event of serious breaches of the legislation. This amendment simply inserts a new section into the Aviation Regulation Act of 2001 to provide for a sanctions regime for CAR so that it can enforce the denied boarding regulation. The CAR can therefore issue directions directly to airlines if they are not complying with the denied boarding regulations, instructing them to comply. Non-compliance is then deemed an offence which can be pursued as either a summary or an indictable offence. CAR can take summary prosecutions while it will be a matter for the DPP to pursue indictable offences if CAR refers serious cases to the DPP.

Also included are technical amendments made in the Dáil to sections 13 and 40 of the Aviation Act 2001. The amendment to section 40 of the Act will extend the maximum time available on an appeals panel established by the Minister under that section from two months to three months. It also extends from one month to two months the time given to the CAR to consider any matter referred back to it from the appeals panel. There is a related amendment to section 13 of the Aviation Regulation 2001 Act. Currently, section 13 allows for the appointment of a member of the staff of CAR as deputy commissioner to carry out the functions of the commission when the membership of the commission is vacant, including any referral that may be made to CAR by the appeals panel. While the explanation is quite long, this is short and technical and we are advised it is necessary to take the opportunity to introduce these amendments at this stage.