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29 1993

IRISH AVIATION AUTHORITY ACT, 1993

PART II

Establishment and Administration of Company

Formation of company.

11. —(1) The Minister, after consultation with the Minister for Finance, shall cause a private company conforming to the conditions laid down in this Act to be formed and registered under the Companies Acts, 1963 to 1990.

(2) The Minister shall by order appoint a day to be the vesting day for the purposes of this Act as soon as practicable after the registration of the company under the Companies Acts, 1963 to 1990.

Name and capital formation of company.

12. —(1) The name of the company shall be Údarás Eitlíochta na hÉireann or, in the English language, The Irish Aviation Authority.

(2) The authorised share capital of the company shall be such amount as may be determined from time to time by the Minister for Finance, after consultation with the Minister, divided into shares of one pound each.

(3) Section 6 (1) (a) of the Companies Act, 1963 , shall not apply to the company.

Form of memorandum of association.

13. —The memorandum of association of the company and of any subsidiary shall be in such form consistent with this Act as may be approved of by the Minister with the consent of the Minister for Finance.

Objects of company.

14. —(1) The principal objects of the company shall be stated in its memorandum of association to be—

(a) to give effect to the Annexes to the Chicago Convention specified in the Schedule except in so far as they relate to the making of agreements between the State and other states,

(b) to ensure that Irish airspace and other airspace in relation to which air navigation services are provided by the company are used in a safe and efficient manner and to facilitate their use,

(c) subject to section 68 , to provide, operate and manage, or arrange for the provision, operation and management of, air navigation services in Irish and other airspace,

(d) to such extent as the company considers appropriate, to operate and manage terminal services at State aerodromes and licensed aerodromes and to regulate the provision, operation and management of terminal services at State aerodromes and at licensed aerodromes,

(e) to provide, operate and manage aeronautical communications services in accordance with the agreement set out in the Exchange of Notes between the Government of Ireland and the Government of the United Kingdom relating to the Oceanic Control Centres at Shannon and Prestwick which entered into force on the 1st day of April, 1966, and any agreement, whether made before or after the commencement of this section, amending or replacing that agreement and to provide, operate and manage other aeronautical communications services,

(f) to impose charges for the use of services provided by the company,

(g) to arrange for the medical examination of applicants for and holders of certificates or licences issued by the company,

(h) to regulate for the purposes of paragraph (a) the following:

(i) the registration, airworthiness, operation and maintenance of aircraft, and

(ii) the competence of persons engaged in or associated with—

(I) the design, manufacture, maintenance, repair andmodification of aircraft and parts and materials for aircraft,

(II) the operation of aircraft,

(III) the operation and maintenance of air navigation services in Irish and other airspace and the maintenance of air navigation systems,

(IV) the operation of aeronautical communications services and the maintenance of aeronautical communications systems, and

(V) the operation and management of, and the provision of services at, aerodromes,

(i) to advise, on its own initiative or at the request of the Minister, the Government, the Minister or another Minister of the Government or any other person in relation to any matter to which a function of the company relates,

(j) to take such measures as it considers necessary or expedient to give effect to the purposes of—

(i) the Eurocontrol Convention and the Statute of the Agency referred to therein as amended whether before or after the passing of this Act, and

(ii) the Arrangements, and

(iii) international agreements or conventions to which the State is a party,

in so far as those purposes relate to matters to which functions of the company relate,

(k) to attend (by its directors or staff) and, unless the Minister otherwise directs, to represent (by its directors or staff) the State, whether alone or with others, at meetings with, or arranged or organised by, international organisations or governments of other states in so far as the meetings relate to matters to which functions of the company relate,

(l) to undertake research and development respecting the environment, and branches of science, in so far as the research and development relates to matters to which functions of the company relate, on its own behalf or on behalf of others,

(m) to undertake, or participate with others, including governments of other states, in, activities which are related to matters to which its functions relate, are consistent with its other objects and will, in the opinion of the company, enhance its effectiveness and profitability,

(n) to provide, in relation to matters to which its functions relate, such consultancy, advisory and training services in and outside the State as the company thinks fit, and

(o) to utilise, manage and develop the resources available to it in a manner consistent with the objects aforesaid.

(2) Nothing in this section shall prevent or restrict the inclusion among the objects of the company, as stated in its memorandum of association, of all such objects and powers as are reasonably necessary or proper for or incidental or ancillary to the due attainment of the principal objects aforesaid and are not inconsistent with this Act or with the active promotion of aviation safety and the orderly development of civil aviation.

(3) The company shall have power to do anything (including making regulations) that appears to it to be necessary, expedient, or incidental to, or which appears to it to facilitate, either directly or indirectly, the performance by it of its functions as specified in, or in an order under, this Act or in its memorandum of association and is not inconsistent with any law for the time being in force.

(4) The Minister may, for the purpose of giving full effect to the conferral of functions by or under this Act on the company, by order adapt any enactment with the consent of any other Minister of the Government responsible for the administration of that enactment.

(5) Any function conferred on the company by or under this Act and which, immediately before the commencement of this section, was a function of the Minister shall, upon such commencement, cease to be a function of the Minister.

(6) In this section “the Arrangements” means the Arrangements concerning the development, the acceptance and the implementation of joint aviation requirements of the Joint Aviation Authorities of Europe (J.A.A.) (being the associated body of the European Civil Aviation Conference which is referred to by that title in the Arrangements) concluded in Cyprus on the 11th day of September, 1990.

Conferral of additional functions on company.

15. —The Minister may, if he so thinks fit, by order—

(a) confer on the company such additional functions relating to civil aviation and connected with the functions for the time being of the company as he considers appropriate, and

(b) make such provision as he considers necessary or expedient in relation to matters ancillary to or arising out of the conferral on the company of functions under this section or the performance by the company of functions so conferred.

General duty of company.

16. —(1) It shall be the general duty of the company—

(a) to conduct its affairs so as to ensure that the revenues of the company are not less than sufficient taking one year with another to—

(i) meet all charges and costs which are properly chargeable to its revenue account,

(ii) generate the capital it requires, and

(iii) remunerate its capital and pay interest on and repay its borrowings, and

(b) to conduct its business at all times in a cost-effective and efficient manner.

(2) Nothing in section 14 or this section shall be construed as imposing on the company, either directly or indirectly, any form of duty or liability enforceable by proceedings before any court to which it would not otherwise be subject.

Articles of association.

17. —(1) The articles of association of the company shall be in such form consistent with this Act as may be approved of by the Minister with the consent of the Minister for Finance.

(2) The articles of association of the company shall provide that—

(a) the number of directors (including the chairman) shall be 9;

(b) the chairman and other directors shall be appointed and may be removed from office by the Minister with the consent of the Minister for Finance;

(c) (i) subject to subparagraph (ii), each director (including the chairman) shall be appointed for a period of 4 years and shall be eligible for reappointment,

(ii) of the first directors, other than the chairman, 2, who shall be selected by lot at the first meeting of the directors, shall hold office for a period of 1 year, 2, who shall be selected as aforesaid, shall hold office for a period of 2 years, 2, who shall be selected as aforesaid, shall hold office for a period of 3 years and 2, who shall be selected as aforesaid, shall hold office for a period of 4 years;

(d) the directors may act notwithstanding one or more vacancies in their number;

(e) the remuneration and allowances for expenses of the chairman and other directors shall be determined by the Minister with the consent of the Minister for Finance;

(f) a person shall not be appointed as auditor of the company without the approval of the Minister given with the consent of the Minister for Finance;

(g) the company shall, in consultation with recognised trade unions and staff associations, establish machinery for the purposes of negotiations concerned with the pay and conditions of service of its staff;

(h) the company may, with the approval of the Minister given with the consent of the Minister for Finance, acquire or establish subsidiaries or invest in other undertakings for the purpose of carrying out its objects as stated in its memorandum of association, and may assign any of its functions to subsidiaries;

(i) the company shall not dispose of a subsidiary to which a function specified in paragraphs (a) to (k) of section 14 (1) stands assigned;

(j) the aggregate amount standing invested (whether by the purchase of shares or the provision of loans or guarantees of loans) by the company in enterprises (including subsidiaries) shall not exceed £25,000,000 without the approval of the Minister given with the consent of the Minister for Finance, investments such as aforesaid by a subsidiary being regarded for the purposes of this paragraph as investments of the company.

Restriction on alteration of memorandum or articles of association.

18. —Notwithstanding anything contained in the Companies Acts, 1963 to 1990, an alteration in the memorandum of association or articles of association of the company or of a subsidiary shall not be valid or effectual unless made with the prior approval of the Minister given with the consent of the Minister for Finance.

Issue of shares, and creation of debt due, to Minister for Finance in consideration of transfer of property.

19. —(1) The company shall issue to the Minister for Finance on the vesting day such number of shares in the share capital of the company as may be agreed upon by the Minister and the Minister for Finance and may from time to time thereafter issue to the Minister for Finance such number of shares of the company as may be so agreed upon.

(2) The Minister shall, with the consent of the Minister for Finance, issue to the company on or before the vesting day a certificate stating the amount which in the opinion of the Minister represents the value of the property to be transferred to the company pursuant to sections 77 , 78 and 79 on the vesting day.

(3) On the vesting day an amount equal to the value of the property aforesaid less the nominal value of the shares of the company issued to the Minister for Finance under subsection (1) on the vesting day shall become and be a debt due by the company to the Minister for Finance and the debt shall be subject to such terms and conditions (including terms and conditions in relation to its repayment and payment of interest thereon) as may be determined by the Minister for Finance.

(4) If property is transferred to the company under section 77 after the vesting day, the Minister shall, with the consent of the Minister for Finance, issue as soon as may be to the company a certificate stating the amount which in his opinion represents the value of the property and, upon such issue, an amount equal to the amount aforesaid shall become and be a debt due by the company to the Minister for Finance and the debt shall be subject to such terms and conditions (including terms and conditions in relation to its repayment and payment of interest thereon) as may be determined by the Minister for Finance.

Issue of share to Minister.

20. —(1) The company shall issue to the Minister one share of one pound in the share capital of the company.

(2) The Minister may exercise in respect of his share in the share capital of the company all the rights and powers of a holder of such shares and, where a right or power is exercisable by attorney, exercise it by his attorney.

(3) The cost of such share shall be advanced to the Minister out of the Central Fund or the growing produce thereof.

(4) The Minister shall not transfer or alienate his share in the share capital of the company.

Issue of shares to subscribers to memorandum of association of company.

21. —(1) The company shall issue one share of one pound in the share capital of the company to each of the subscribers to the memorandum of association of the company.

(2) The cost of such shares shall be advanced to the subscribers out of the Central Fund or the growing produce thereof.

Exercise of powers by Minister for Finance in respect of shares.

22. —The Minister for Finance may, subject to this Act, exercise in respect of the shares of the company held by him all the rights and powers of a holder of such shares and, where a right or power is exercisable by attorney, exercise it by his attorney.

Transfer by Minister for Finance of shares.

23. —(1) The Minister for Finance may, from time to time as occasion requires, for the purpose of compliance with so much of the Companies Acts, 1963 to 1990, as requires that there shall always be a minimum number of members of the company, transfer to any person one of his shares in the share capital of the company.

(2) Save as authorised by subsection (1), the Minister for Finance shall not transfer or alienate his shares in the share capital of the company.

Obligation of certain shareholders to hold shares in trust.

24. —(1) A member of the company to whom a share in the share capital of the company is issued under section 21 or transferred under section 23 (1) or this section shall hold that share in trust for the Minister for Finance and shall accordingly be bound to pay all dividends and other money which he receives in respect of the share to the Minister for Finance for the benefit of the Exchequer and to transfer, as and when required by the Minister for Finance, the share to him or a person nominated in that behalf by him.

(2) Save when required pursuant to subsection (1), such member shall not transfer or alienate his share in the share capital of the company.

(3) Upon the death of a member of the company referred to in subsection (1), the share in the share capital of the company held by such member shall, without the necessity for a transfer, vest in the Minister for Finance.

Payment of dividends, etc., into Exchequer.

25. —All amounts representing dividends or other money received by the Minister for Finance in respect of shares held by him in the share capital of the company and all amounts representing repayment of or interest on repayable advances received or recovered by him from the company shall be paid into or disposed of for the benefit of the Exchequer in such manner as he may direct.

Borrowing by company and subsidiaries.

26. —(1) (a) Subject to the consent of the Minister and the Minister for Finance, the company or a subsidiary may, whether by means of the issue of debentures or otherwise, borrow money (including money in a currency other than the currency of the State) for capital purposes including working capital from persons other than the Minister for Finance.

(b) The aggregate at any one time of borrowings under paragraph (a) shall not exceed £100 million.

(2) The company or a subsidiary may borrow money (including money in a currency other than the currency of the State) temporarily but the aggregate standing unrepaid at any time of such borrowings shall not exceed such amount as may stand approved for the time being by the Minister and the Minister for Finance.

(3) For the purposes of this section, moneys borrowed in a currency other than the currency of the State shall be deemed to be the equivalent in the currency of the State of the actual moneys borrowed, such equivalent being calculated at the rate of exchange prevailing at the time of the borrowing for that currency and the currency of the State.

Guaranteeing by Minister for Finance of borrowing by company.

27. —(1) In relation to borrowings by the company under section 26 , the Minister for Finance, after consultation with the Minister, may guarantee, in such form and manner and in such money (including money in a currency other than the currency of the State) and on such terms and conditions as he thinks fit, the due repayment by the company of the principal of any money borrowed by the company or the due payment of instalments or other amounts of money owed by the company under a contract entered into by the company or the payment of interest on any money, instalment or amount or both the repayment of principal or payment of such instalments or amounts, as the case may be, and the payment of the interest, and any such guarantee may include a guarantee of payment of commission and incidental expenses arising in connection with such borrowings or such contract.

(2) The Minister for Finance shall not so exercise the powers conferred on him by this section that the amount, or the aggregate amount, of money which he may at any one time be liable to pay on foot of any guarantee or guarantees under this section for the time being in force, together with the amount of money (if any) which he had previously paid on foot of any guarantee under this section and which has not been repaid by the company, exceeds £80 million.

(3) For the purpose of calculating the amount of borrowings or instalments or other money guaranteed by the Minister for Finance under this section by reference to the limit on money in subsection (2), the equivalent in the currency of the State of borrowings or instalments or other money in a foreign currency shall be calculated at the rate of exchange prevailing at the time of the giving of the guarantee for that currency and the currency of the State.

(4) Where a guarantee under this section is or has been given, the company shall, if the Minister for Finance so requires, give to him such security (including, in particular, debentures) as may be specified in the requirement for the purpose of securing to the said Minister the repayment of any money which he may be liable to pay or has paid under the guarantee.

(5) The Minister for Finance shall, as soon as may be after the expiration of every financial year, lay before each House of the Oireachtas a statement setting out with respect to each guarantee under this section given during that year or given at any time before, and in force at, the commencement of that year—

(a) particulars of the guarantee,

(b) in case any payment has been made by him under the guarantee before the end of that year, the amount of the payment and the amount (if any) repaid to him on foot of the payment, and

(c) the amount of money covered by the guarantee which was outstanding at the end of that year.

(6) Money paid by the Minister for Finance under a guarantee under this section shall be repaid to him (with interest thereon at such rate or rates as he appoints) by the company within such period from the date of payment by the Minister for Finance as may be specified by him after consultation with the company.

(7) Where the whole or any part of the money required by subsection (6) to be repaid to the Minister for Finance has not been repaid in accordance with that subsection, the amount so remaining outstanding shall be repaid to the Central Fund out of moneys provided by the Oireachtas.

(8) Notwithstanding the provision of money under subsection (7) to repay an amount to the Central Fund, the company shall remain liable to the Minister for Finance in respect of that amount and that amount (together with interest thereon at such rate or rates as the Minister for Finance appoints) shall be repaid to the Minister for Finance by the company at such times and in such instalments as he appoints and, in default of repayment as aforesaid and without prejudice to any other method of recovery, shall be recoverable by him from the company as a simple contract debt in any court of competent jurisdiction.

(9) In relation to a guarantee under this section in money in a currency other than the currency of the State—

(a) each of the references to principal, each of the references to instalments or other amounts of money, each of the references to interest and the reference to commission and incidental expenses in subsection (1) shall be taken as referring to the equivalent in the currency of the State of the actual principal, the actual instalments or other amounts of money, the actual interest or the actual commission and incidental expenses, as may be appropriate;

(b) the reference to the amount of money in subsection (5) (c) shall be taken as referring to the equivalent in the currency of the State of the actual amount of money, such equivalent being calculated according to the rate of exchange prevailing for the time being for that currency and the currency of the State;

(c) each of the references to money in subsections (6) to (8) shall be taken as referring to the cost in the currency of the State of the actual money.

Loans by Minister for Finance to company for purposes of working capital.

28. —(1) During the period of three years from the vesting day, the Minister for Finance may make loans to the company the aggregate amount of which standing unrepaid at any time shall not exceed £15,000,000.

(2) A loan under this section shall be subject to such terms and conditions (including terms and conditions relating to the payment of interest on the loan and the repayment of the loan) as the Minister for Finance may determine.

(3) Money lent to the company under this section shall be used by it as working capital.

(4) Where money lent to the company under this section has not been repaid in accordance with the terms and conditions determined under subsection (2), the amounts so remaining outstanding shall be repaid to the Central Fund out of moneys provided by the Oireachtas.

(5) Notwithstanding the provision of money under subsection (4) to repay an amount to the Central Fund, the company shall remain liable to the Minister for Finance in respect of that amount and that amount (together with interest thereon at such rate or rates as the Minister for Finance appoints) shall be repaid to the Minister for Finance by the company at such times and in such instalments as he appoints and, in default of repayment as aforesaid and without prejudice to any other method of recovery, shall be recoverable by him from the company as a simple contract debt in any court of competent jurisdiction.

Provision of money for payments out of Central Fund.

29. —(1) All money from time to time required by the Minister for Finance to meet sums which may become payable by him under section 27 or 28 shall be advanced out of the Central Fund or the growing produce thereof.

(2) The Minister for Finance may, for the purpose of providing for advances out of the Central Fund under this section, borrow on the security of the Central Fund or the growing produce thereof any sums required for the purpose and, for the purpose of such borrowing, he may create and issue securities bearing interest at such rate and subject to such conditions as to repayment, redemption or any other matter as he thinks fit, and shall pay all sums so borrowed into the Exchequer.

(3) The principal of and interest on all securities issued under this section and the expenses incurred in connection with the issue of the securities shall be charged on and payable out of the Central Fund or the growing produce thereof.

Accounts and audits.

30. —(1) Without prejudice to the requirements of the Companies Acts, 1963 to 1990, in relation to balance sheets and accounts, the company shall keep, in such form as may be approved of by the Minister with the consent of the Minister for Finance, all proper and usual accounts of all money received by or expended by it, including a profit and loss account, an account showing the derivation of the funds of the company and the purposes to which they are applied (referred to in subsection (2) as “the cash flow statement”) and a balance sheet, and shall also keep in such form as aforesaid all such special accounts as the Minister may from time to time direct.

(2) Accounts kept in pursuance of this section shall be submitted annually by the company to an auditor for audit and, immediately after the audit, a copy of the profit and loss account, the cash flow statement, the balance sheet and such other (if any) of the accounts kept by the company as the Minister may direct and a copy of the auditor's report on the accounts shall be presented to the Minister who shall cause copies thereof to be laid before each House of the Oireachtas.

Annual report and furnishing of information to Minister.

31. —(1) Not later than 6 months after the end of each accounting year, the company shall submit a report in writing to the Minister of its activities and those of any subsidiaries during that year and, not later than 3 months after such submission, the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(2) A report of the company under this section shall include information, in such form as the Minister may direct after consultation with the company and with the consent of the Minister for Finance, regarding the operations, cost-effectiveness and financial targets of the company and any subsidiaries.

(3) The company shall, if so required by the Minister, furnish to him such information as he may require in respect of any balance sheet or other account or any report of the company or any subsidiaries or in relation to the policy and operations (other than day-to-day operations) of the company or any subsidiaries.

Reports by company on its technical and safety standards.

32. —(1) The company shall, in the period ending 3 years after the vesting day and subsequently, whenever so required by the Minister, submit to him a report in writing specifying the general technical and safety standards in relation to aircraft and air navigation that it applies and enforces in the performance of its functions.

(2) Whenever, after the submission of a report to the Minister under subsection (1), the Minister so requests the company shall submit to the Minister a report in writing specifying the extent (if any) to which the standards achieved and enforced by the company, since the date of the submission of the first-mentioned report to the Minister, differ from the technical and safety standards standing specified in that report.

(3) (a) The Minister shall, at least once in the period of 3 years beginning on the vesting day and in each subsequent period of 3 years beginning on the expiration of the last previous period, appoint a person to carry out an examination of the performance by the company of its functions in so far as they relate to the application and enforcement of technical and safety standards in relation to aircraft and air navigation and to report in writing to the Minister the results of the examination.

(b) The Minister shall submit a copy of a report under paragraph (a) to the Government and the company.

(c) The costs of an examination and report under paragraph (a) shall be paid to the Minister by the company.

(d) A director or member of the staff of the company shall not be appointed under paragraph (a) and a person standing appointed under paragraph (a) shall be disqualified for appointment as a director or member of the staff of the company.

Disclosure by directors of certain interests.

33. —(1) Where at a meeting of the directors of the company or any subsidiary any of the following matters arises, namely—

(a) an arrangement to which the company or a subsidiary is a party or a proposed such arrangement,

(b) a contract or other agreement with the company or a subsidiary or a proposed such contract or other agreement,

(c) the giving, grant or renewal by the company or a subsidiary of a certificate, licence, authorisation or instrument of approval, or

(d) the revocation, cancellation, withdrawal, suspension or endorsement by the company or a subsidiary of a certificate, licence, authorisation or instrument of approval, given or granted—

(i) by the company or a subsidiary, or

(ii) by the Minister under a provision of, or made under, the Acts,

then, any director of the company or the first-mentioned subsidiary present at the meeting who otherwise than in his capacity as such a director is in any way, whether directly or indirectly, interested in the matter—

(I) shall at the meeting disclose to the company or the first-mentioned subsidiary the fact of such interest and the nature thereof,

(II) shall absent himself from the meeting or that part of the meeting during which the matter is discussed,

(III) shall take no part in any deliberations of the directors relating to the matter, and

(IV) shall not vote on a decision relating to the matter.

(2) Where an interest is disclosed pursuant to this section, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the director by whom the disclosure is made shall not be counted in the quorum for the meeting.

(3) Where at a meeting of the directors of the company or a subsidiary a question arises as to whether or not a course of conduct, if pursued by a director of the company or the subsidiary, would constitute a failure by him to comply with the requirements of subsection (1), the question may be determined by the chairman of the meeting whose decision shall be final and where such a question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

(4) Where the Minister is satisfied that a director has contravened subsection (1), he may, if he thinks fit, and with the consent of the Minister for Finance, remove that director from office and, in case a person is removed from office pursuant to this subsection, he shall thenceforth be disqualified from being a director of the company or a subsidiary.

(5) Section 194 of the Companies Act, 1963 , shall not apply to a director of the company or a subsidiary.

(6) A person who fails to comply with this section shall be guilty of an offence.

(7) Nothing in this section shall be taken to prejudice the operation of any rule of law restricting directors of a company from having any interest in contracts with the company.

Disclosure by members of staff of certain interests.

34. —(1) (a) Where a member of the staff of the company or a subsidiary has an interest, otherwise than in his capacity as such a member, in any contract, agreement or arrangement, or proposed contract, agreement or arrangement, to which the company or the subsidiary is a party or in a matter referred to in paragraph (c) or (d) of section 33 (1), he shall—

(i) disclose to the company or the subsidiary, as the case may be, his interest and the nature thereof,

(ii) take no part in the negotiation of the contract, agreement or arrangement or in any deliberation by directors or members of the staff of the company or the subsidiary in relation thereto or in relation to the matter aforesaid, and

(iii) make no recommendation in relation to the contract, agreement or arrangement or the matter aforesaid.

(b) Paragraph (a) does not apply to contracts, or proposed contracts, of employment of members of the staff of the company with the company or of a subsidiary with a subsidiary.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

Prohibition on unauthorised disclosure of information.

35. —(1) A person shall not disclose confidential information obtained by him while performing duties as a director or member of the staff of, or an adviser or consultant to, the company or a subsidiary unless he is duly authorised by the company or the subsidiary, as the case may be, or by a member of the staff of the company or the subsidiary, as the case may be, duly authorised in that behalf, to do so.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

(3) In this section “confidential” means that which is expressed by the company or the subsidiary concerned, as the case may be, to be confidential either as regards particular information or as regards information of a particular class or description.

Decisions by company in relation to technical and safety standards of aircraft and air navigation.

36. —(1) Before making a decision in relation to or affecting technical or safety standards in relation to aircraft or air navigation or otherwise affecting or likely to affect the safety of civil aviation, the directors of the company shall obtain and consider the opinion of the Chief Executive in relation to the matter to be decided.

(2) Where, in the opinion of the Chief Executive, the implementation of a decision of the directors of the company would contravene the technical or safety standards referred to in section 32 or otherwise adversely affect the safety of civil aviation, the following provisions shall have effect:

(a) the Chief Executive shall inform the directors of his opinion aforesaid and upon being so informed, the directors shall refrain from implementing the decision,

(b) the relevant proceedings of the meetings at which the question decided was considered and the decision was taken shall be recorded in the minutes of the meetings,

(c) the chairman of the company shall inform the Minister of the decision and of the opinion of the Chief Executive in relation thereto,

(d) the Minister shall be furnished by the company with such information relating to the matter as he may reasonably request, including records, minutes and other material and shall also be furnished by the Chief Executive or any director with such information or explanations as he may reasonably request and the Minister may furnish a person appointed under paragraph (f) to examine the decision with any information or explanations furnished to him under this paragraph,

(e) the Minister, after consultation with the chairman of the company and the Chief Executive, shall, if he considers it necessary or expedient to do so, direct the company to take such action (pending the submission to the Minister of the report under paragraph (f) and compliance with any direction under paragraph (g) in relation to the matter) as he may specify for the maintenance of the standards aforesaid or the safety of civil aviation,

(f) the question decided by the directors and the decision shall be examined by a person appointed by the Minister, with the consent of the Minister for Finance who, in the opinion of the Minister, is suitably qualified and the person shall submit to the Minister and the company a report of the result of his examination and the report shall include a recommendation as to the decision that, in his opinion, should be taken by the directors of the company on the question and the reasons for the recommendation,

(g) the Minister, having considered the recommendation, may—

(i) direct the directors to make and implement such decision as he may specify on the question, or

(ii) direct the directors to consider the recommendation and make such decision as they think fit,

and the directors shall comply with the direction.

(3) The company shall pay to the Minister the costs of an examination and recommendation under subsection (2) (f).

(4) (a) Unless authorised by the Minister to do so, a person shall not disclose that the provisions of subsection (2) have had effect in relation to a decision of the directors of the company or that a decision to which that subsection applies has been made.

(b) A person who contravenes paragraph (a) shall be guilty of an offence.

Membership of either House of Oireachtas or European Parliament.

37. —(1) Where a director of the company is—

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

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

(c) regarded pursuant to section 15 (inserted by the European Assembly Elections Act, 1984 ) of the European Assembly Elections Act, 1977 , as having been elected to such Parliament to fill a vacancy,

he shall thereupon cease to be a director of the company.

(2) Where a person employed by the company is—

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

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

(c) regarded pursuant to the said section 15 as having been elected to such Parliament to fill a vacancy,

he shall thereupon stand seconded from employment by the company and shall not be paid by, or be entitled to receive from, the company any remuneration or allowances in respect of the period commencing on such nomination or election, or when he is so regarded as having been elected (as the case may be), and ending when he 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 is so entitled or is such a member, be disqualified for becoming a director of the company or for employment in any capacity by the company.

(4) Without prejudice to the generality of subsection (2), that subsection shall be construed as prohibiting the reckoning of a period therein mentioned as service with the company for the purpose of any pensions, gratuities or other allowances payable on resignation, retirement or death.

Chief Executive.

38. —(1) There shall be a chief executive of the company (who shall be known as and is referred to in this Act as “the Chief Executive”).

(2) The first Chief Executive shall be the officer standing designated by the Minister immediately before the vesting day as the Chief Executive Officer of the Air Navigation Services Office of the Department of Transport, Energy and Communications and shall be appointed by the Minister for a period not exceeding 7 years and may be removed from office by the Minister during that period.

(3) The first Chief Executive may be reappointed, and thereafter may be removed from office, by the directors of the company, after consultation with the Minister.

(4) Each subsequent Chief Executive shall be appointed and may be removed from office by the directors of the company after consultation with the Minister.

(5) The functions of the Chief Executive shall be to—

(a) carry on, manage and control generally the administration of the company,

(b) advise the directors of the company on any matter relating to or affecting the technical or safety standards specified under section 32 or the safety of civil aviation, and

(c) advise the directors of the company in relation to the performance of the other functions of the company and, in particular, but without prejudice to the generality of the foregoing, in relation to the making of orders and regulations, and the giving of directions, by the company,

subject to the lawful directions of the directors of the company.

(6) The Chief Executive shall hold office upon and subject to such terms and conditions (including terms and conditions relating to remuneration and allowances) as may be determined by the directors of the company after consultation with the Minister and with the consent of the Minister for Finance.

Remuneration, etc., of staff.

39. —Without prejudice to the requirements of section 40 , the company, in determining the remuneration or allowances for expenses to be paid to members of its staff or the other terms or conditions subject to which such members hold or are to hold their employment, shall have regard to Government or nationally agreed guidelines which are for the time being extant or to Government policy concerning remuneration and conditions of employment which is so extant and, in addition to the foregoing, the company shall comply with any directives with regard to such remuneration, allowances, terms or conditions which the Minister may give to the company with the consent of the Minister for Finance.

Transfer of staff of Minister to company.

40. —(1) Every person who is on the day immediately before the vesting day a member of the staff of the Air Navigation Services Office of the Department of Transport, Energy and Communications and is designated by the Minister for employment by the company shall, on the vesting day, be transferred to and become a member of the staff of the company.

(2) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person referred to in subsection (1) shall not, while in the service of the company, be brought to less beneficial conditions of service (including conditions in relation to tenure of office) or of remuneration than the conditions of service (including conditions in relation to tenure of office) or remuneration to which he was subject immediately before the vesting day.

(3) In relation to persons transferred to the company under subsection (1), previous service in the civil service shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the Redundancy Payments Acts, 1967 to 1991, the Holidays (Employees) Acts, 1973 and 1991, the Minimum Notice and Terms of Employment Acts, 1973 to 1991, and the Unfair Dismissals Acts, 1977 to 1993.

Superannuation.

41. —(1) The company shall prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such members of the staff of the company as it may think fit.

(2) Every such scheme shall fix the time and conditions of retirement for all persons to or in respect of whom superannuation benefits are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(3) Every such scheme may be amended or revoked by a subsequent scheme prepared, submitted and approved under this section.

(4) A scheme submitted by the company under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the company in accordance with its terms.

(5) Superannuation benefits granted under schemes under this section to persons who, immediately before the vesting day, were members of the staff of the Minister for Transport, Energy and Communications and the terms and conditions relating to those benefits shall not be less favourable to those persons than those to which they were entitled immediately before that day.

(6) No superannuation benefit shall be granted by the company nor shall any other arrangements be entered into by the company for the provision of such a benefit to or in respect of a member of the staff of the company otherwise than in accordance with a scheme under this section.

(7) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable in pursuance of a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance, for determination by him.

(8) Where, in the period beginning on the vesting day and ending immediately before the commencement of a scheme under this section, a superannuation benefit falls due for payment to or in respect of a person who was transferred to the staff of the company under section 40 , the benefit shall be calculated by the company in accordance with such scheme, or such enactments in relation to superannuation, as applied to the person immediately before the vesting day and, for that purpose, his pensionable service with the company shall be aggregated with his previous pensionable service and shall be paid by the company out of the fund established under subsection (9).

(9) As soon as may be after the vesting day, the company shall establish a fund administered by trustees who shall be appointed by the company from which superannuation benefits payable under a scheme under this section shall be paid.

(10) The Minister for Finance shall determine an appropriate contribution, related to reckonable service given before the vesting day, towards the superannuation benefits which may be granted to or in respect of persons who are transferred to the staff of the company under section 40 and shall, subject to subsection (12), pay such contribution to the trustees appointed under subsection (9) at such times and in such manner as he shall determine.

(11) Where any part of the contribution under subsection (10) remains unpaid for any period after the vesting day, interest shall be payable by the Minister for Finance to the trustees appointed under subsection (9) at such rate as the Minister for Finance may determine in respect of that period on the amount so unpaid.

(12) Payments under subsection (10) or (11) shall be made not later than 7 years after the vesting day.

(13) Moneys required to be paid by the Minister for Finance under this section shall be advanced out of the Central Fund or the growing produce thereof.

(14) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Acquisition of land.

42. —(1) Whenever the company requests the Minister to acquire land or a right of impounding, diverting or abstracting water, the Minister, if he is satisfied that the land or right is required by the company for the purpose of the performance of its functions, shall acquire the land or right under Part V of the Principal Act, as amended, and, upon completion of the acquisition, shall transfer the land or right to the company upon such terms and subject to such conditions as may be agreed upon by the Minister and the company with the consent of the Minister for Finance or, in default of agreement, as may be determined by the Minister with the consent of the Minister for Finance.

(2) Section 36 of the Principal Act is hereby amended by the insertion after paragraph (c) (inserted by the Air Navigation and Transport Act, 1950 ) of the following paragraph:

“(d) the purpose of the performance of its functions by The Irish Aviation Authority.”.

Charges by company in respect of air navigation and aeronautical communications services.

43. —(1) (a) Subject to subsection (3), the company may by regulations require the payment to Eurocontrol, the company or the Minister of such charges, at such rates and in such currencies as may be prescribed by the company in respect of air navigation services and aeronautical communications services which, whether in pursuance of international arrangements or otherwise, are provided for aircraft by Eurocontrol, the company or the Minister and regulations under this section may provide for charges payable by virtue of such regulations to be so payable elsewhere than in the State and to be recoverable in the State wherever they are payable (without prejudice to their recovery elsewhere) and may include such incidental and supplementary provisions as the company considers appropriate for the purpose of the regulations.

(b) Charges prescribed by regulations under this section may relate to all or part of the period or to all or part of an area of airspace in or in relation to which air navigation services or aeronautical communications services are provided as aforesaid for aircraft.

(2) Liability for the payment of any charge payable by virtue of regulations under this section may be imposed upon the operators of aircraft for which the services concerned are made available which are being operated in a place where they are made available or upon the owners of such aircraft (whether or not, in either case, they are actually used or could be used with the equipment installed in the aircraft) or upon the managers of aerodromes used by such aircraft or upon any two of those persons or upon all of them.

(3) The rates of charge prescribed as aforesaid shall—

(a) in the case of charges payable to Eurocontrol, be such rates as may be specified in pursuance of tariffs approved under any international agreement to which the State is a party, and

(b) in the case of charges payable to the Minister, be such rates as the company may determine with the consent of the Minister,

and there may be so prescribed different rates of charge in respect of aircraft of different classes or descriptions or in respect of aircraft used in different circumstances, and the regulations may provide for the payment, with any charges or separately, of interest on the charges in respect of any period during which the charges were due but not paid and may dispense with the payment of charges or interest on charges in such cases as may be specified by or determined under the regulations.

(4) For the purpose of facilitating the assessment and collection of charges payable by virtue of regulations under this section and without prejudice to the generality of section 56 , the regulations may make provision for requiring operators of aircraft or managers of aerodromes—

(a) to make such records of the movements of aircraft, and of such other particulars relating to aircraft, as may be specified in the regulations and to preserve those records for such period as may be so specified,

(b) to produce for inspection at such times and by such officers of Eurocontrol as may be so specified or by authorised officers or authorised officers of the company records which are required by the regulations to be preserved by those operators or managers, and

(c) to furnish to Eurocontrol, the company or the Minister such particulars of any such records as may be so specified.

(5) (a) In any proceedings to which this subsection applies, any record made by any such person as may be designated by regulations under this section, or by a person acting under the control of such a person, being a record purporting to state—

(i) the position of any aircraft at any material time, or

(ii) the terms or contents of any message or signal transmitted to any aircraft, either alone or in common with other aircraft, or received from any aircraft, by the first-mentioned person, or by a person acting under the control of that person,

shall, if produced from the custody of the said first-mentioned person, be evidence of the matters stated in the record.

(b) This subsection applies to proceedings in a court for the recovery of any charges payable by virtue of regulations under this section or for an offence under this Act consisting of a contravention of regulations under subsection (4).

(c) The references in paragraph (a) of this subsection to a record made by or by a person acting under the control of any person include references to a document or article purporting to be a copy of a record so made, and certified to be a true copy by the person who made the record or a person acting under his control; and, in relation to such a copy, that paragraph shall have effect as if the words “if produced from the custody of the said first-mentioned person” were omitted.

(6) Notwithstanding section 5 (1), liability for compliance with regulations under this section may be imposed in relation to aircraft registered in the State and aircraft not so registered and whether or not the aircraft concerned are in or over the State at the time when the services to which charges prescribed by such regulations relate are provided and whether or not those services are provided from a place in the State.

(7) The Public Offices (Fees) Act, 1879, shall not apply in respect of the charges payable to the Minister under this section.

(8) Charges payable to the Minister or the company under regulations under this section may be recovered by the Minister or the company, as the case may be, from the person by whom they are payable as a simple contract debt in any court of competent jurisdiction.

(9) Until regulations under subsection (1) are in force providing for the payment by the users thereof of charges in respect of services provided by the company at State aerodromes, the amount of any costs incurred by the company in providing the services shall be paid by Aer Rianta, cuideachta phoiblí theoranta, to the company subject to the deduction by Aer Rianta, cuideachta phoiblí theoranta, of such amount as may be agreed on by it and the company in respect of the cost of the collection of those charges.

(10) Regulations under this section may make such provision as the company considers necessary or expedient for the purpose of complying with a direction under section 45 (1) (a) (ii).

Other charges by company.

44. —(1) The company may charge such amounts as it considers appropriate in respect of any services (other than services referred to in section 43 ) provided by it, or property, real or personal, sold, hired or leased by it to other persons.

(2) An amount due by a person to the company in respect of a charge under this section may be recovered by the company from the person as a simple contract debt in any court of competent jurisdiction.

Recoupment by Minister of certain costs of company.

45. —(1) (a) The Minister may, with the consent of the Minister for Finance, give a direction to the company—

(i) requiring the company to exempt specified classes of users of aeronautical communications services, or specified aeronautical communications services, provided by the company from the payment of fees or charges to the company for the provision of those services, or

(ii) requiring the company, in accordance with the International Civil Aviation Organisation and Eurocontrol charging principles, to provide by regulations under section 43 or by order under section 60 (1) (j) as may be appropriate, for the exemption from the payment to the company of charges or fees imposed under section 43 or 60 (1) (j), as the case may be, for the provision by it of air navigation services or aeronautical communications services or the performance by it of functions specified in section 14 (1) (h) in respect of specified classes of flights by aircraft or specified classes of persons.

(b) The company shall comply with a direction under this subsection.

(c) The Minister shall pay to the company an amount equal to the amount of any costs incurred by it in the provision of services or the performance of functions to which an exemption specified in a direction under this subsection relates.

(2) Payments under this section shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

(3) In this section “the International Civil Aviation Organisation and Eurocontrol charging principles” means the principles specified in and developed under and in accordance with the provisions of Article 15 of the Chicago Convention and any amendment thereof whether made before or after the commencement of this section and the principles specified in the document entitled “Conditions of Application of the Route Charges Systems and Conditions of Payment” reference doc. 90.60.04, published by Eurocontrol and any amendment thereof, whether made before or after the commencement of this Act.