prop · GG03202 · 1992-12-31 00:00:00 — plantwo months in advance of the period to which it refers shall constitutesuffident notice under this paragraph for the purpose of changes to currentoperations and/or circumstances which are includcd in that business plan. Anyundertaking which direaly or indirectly panidpates in a controllingshareholding in an air meet the requirements of paragraph 2. An air at all times be abie on request todemonstrate to the responsible for the operating licence that itmeets the requirements of this Artide. The Commission aaing at the request of aMember State shall examine compliance with the requirements of this Artide andtake a dedsion if necessary. If the licensing authority deems the changes notifiedunder paragraph 3 to have a significant bearing on the finances of the aircarrier, it shall require the submission of a revised business planincorporating the changes in question and covering, at least, a period of 12months from its date of implementation, as well as all the relevantinformation, including the data referred to in part B of the , to assesswhether the air can meet its existing and potential obligations duringthat period of 12 months. The licensing authority shall take a dedsion on therevised business plan not låter than three months after all the necessaryinformation has been submined to it. An applicant air transpon undenaking to which an operating licence is granted for the first time must be abIe to demonstrate to the reasonable satisfaaion of the competent authorities of the licensing that: (a) it can meet at any time its actualand potential obligations, established under realistic assumptions, for aperiod of 24 months from the start of operations; and (b) it can meet its fixed andoperational costs incurred from operations according to its business plan andestablished under realistic assumptions, for a period of three months from thestart of operations, without taking into account any income from itsoperations. 2, For the purpose of paragraph 1, each applicant shall submit a business plan for, at least, the first two years of operation. The business plan shall also detail the applicant's finandal links with any other commerdal activities in which the applicant is engaged either direaly or through related undertakings. The applicant shall also provide all relevant information, in particular the data referred to in part A of the . Licensing authorities may, at any time and in any eventwhenever there are clear indications that financial problems exist with an aircarrier licensed by them, assess its financial performance and may suspend orrevoke the licence if they are no longer satisfied that the air canmeet its actual and potential obligations for a 12-month period. Licensingauthorities may also grant a temporary licence pending finandal reorganizationof the air provided safety is not at risk. An air provide to its licensing authoritycvcry financial year without undue delay the audited accounts relating to theprevious finandal year. At any time upon request of the licensing authority anair provide the information relevant for the purposes of paragraph5 and, in particular, the data referred to in part C of the . An air notify in advance to its licensingauthority plans for: operation of a new scheduled service or a non-schedulcdservice to a continent or worid region not previously served, changes in thetype or number of aircraft used or a substantial change in the scale of itsactivities. It shall also notify in advance any intended mergers oracquisitions and shall notify its licensing authority within fourteen days ofany change in the ownership of any singie shareholding which represents ormore of the total shareholding of the air or of its parent or ultimatchoiding company. The submission of a 12-month business (a) Paragraphs 1, 2, 3, 4 and 6 of this Artide shall notapply to air exdusively engaged in operations with aircraft of lessthan 10 mto w (maximum take olf weight) and/or less than 20 seats. Suchair at all times be able to demonstrate that their net capitalis at least ECU 80 000 or to provide when required by the licensing authoritythe information relevant for the purposes of paragraph 5. A maynevertheless apply paragraphs 1, 2, 3, 4 and 6 to air licensed by itthat operate scheduled services or whose tumover exceeds ECU 3 million peryear. No L 240/4 Offidal Joumal of Communities Prop.1992/93:202 Bilaga 3 (b)TheCommission may, after Consulting the Member States, increase as appropriate thevalues referred to in subparagraph (a) if economic developments indicate thencccssity of such a decision. Such change shall be published in the Of/tcialJoumal of Communities. (c)may refer the Commission's dedsion to the Council within a time limitof one month. , acting by a qualified majority, may in exceptionalcircumstances take a different dedsion within a period of one month. Where the competent authorities of a require, for the purpose of issuing an operating licence, proof that the persons who will continuously and effeaively manage the operations of the undertaking are of good repute or that they have not been dedared bankrupt, or suspend or revoke the licence in the event of serious professional misconduct or a criminal offence, that accept as sufficient evidence in respect of nationals of other Member States the produaion of documents issued by competent authorities in the of origin or the from which the foreign national comes showing that those requirements are met. Where the competent authorities of the oforigin or of the from which the foreign national comes do notissue the documents referred to in the first subparagraph, such dociunentsshall be replaced by a dedaration on oath or, in Member States where there isno provision for dedaration on oath, by a solemn dedaration made by theperson concemed before a competent judidal or administrative authority or,where . appropriate, a notaiy or qualified professional body of the MemberState of origin or the from which the person comes; such authorityor notary shall issue a cenificate attesting the authentidty of the dedarationon oath or solemn dedaration. The competent authorities of Member States may require that the documents and ccrtificates referred to in paragraph 1 be presented no more than three months after their date of issue. (a) Without prejudice to paragraph 3, aircraft used byan air be registered, at the option of the issuingthe operating licence, in its national register or within the Community. (b) If a lease agreement for an aircraft registered withinthe Community has been deemed acceptable under Artide 10, a shallnot require the registration of that aircraft on its own register if this wouldrequire stmctural changes to the aircraft. In the case of shon-term lease agreements to meettemporary needs of the air or otherwise in exceptional circumstances, aMember State may grant waivers to the requirement of paragraph 2 (a). When applying paragraph 2 (a) a ,subjea to applicable laws and regulations, induding those relating toairworthiness cenificarion, accept on its national register, without anydiscriminatory fec and without delay, aircraft owned by nationals of otherMember States and transfers from aircraft registers of other Member States. Nofee shall be applied to transfer of aircraft in addition to the normalregistration fee. Air operator's ccrtificates (ACX;) Artide 9 The granting and vaiidity at any time of an operatinglicence shall be dependent upon the posscssion of a valid AOC spedfying theaaivities covercd by the operating licence and complying with the critcriaestablished in the relevant Council Regulation. Until such time as the Council Regulation referred toin paragraph 1 is applicable, national regulations conceming the AOC, orequivalent title conceming the certificarion of air transport operators, shallapply. An air be insured to cover liability in caseof accidents, in particular in respea of passengers, luggage, cargo, mail andthird parties. Ownership of aircraft shall not be a condition forgranting or maintaining an operating licence but a require,in relation to air licensed by it that they habe one or more aircraftat their disposal, through ownership or any form of lease agreement. Forthe purposes of ensuring safety and liability standards an air using anaircraft from another undertaking or providing it to another undertaking shallobtain prior approval for the operation from the appropriate licensingauthority. The conditions of the approval shall be part of the lease agreementberween the parties. A not approve agreements leasingaircrafi with crew to an air to which it has granted an operatinglicence unless safety standards equivalent to those imposed under Article 9 aremet. Offidal Joumal of Communities Prop.1992/93:202 Bilaga 3 No L 240/5 i» grant or revoke in the Official Joumal Dedsions by Member States to operating licences shall be published ofthe European Communities. Anoperating licence shall be valid as long as the air meets theobligations of this Regulation. However, a may make provision fora review one year after a new operating licence has been granted and every fiveyears thereafter. When an air has ceased operations for sixmonths or has not started operations for six months after the granting of anoperating licence, the responsible shall decide whether the operatinglicence shall be resubmined for approval. In relation to air licensed by them, MemberStates shall decide whether the operating licence shall be resubmitted forapproval in case of change in one or more elements affeaing the legal situationof the undertaking and, in panicular, in the case of mergers or takeovers. Theair () in question may continue its (their) operations unless thelicensing authority decides that safety is at risk, stating the reasons. An air against which insolvency or similarproceedings are opened shall not he permined by a to retain itsoperating licence if the competent body in that is convinced thatthere is no realistic prospea of a satisfaaory finandal reconstruaion within areasonable time. In order to carry out its duties under Artide 4 theCommission may obtain all necessary information from the Member Statesconcemed, which shall also ensure the provision of information by air carrierslicensed by them. When the information requested is not supplied withinthe time limit fixed by the Ckjmmission, or is supplied in incomplete form, theCommission shall by dedsion addressed to the concemed require theinformation to be supplied. The decision shall specify what information isrequired and fix an appropriate time limit within which it is to be supplied. If the information required under paragraph 2 is notprovided by the time limit set or the air has not otherwisedemonstrated that it meets the requirements of Anicle 4, the Commission shall,except where spedal drcumstances exist, fonhwith inform all Member States ofthe situation. Member States may, until notified by the Commission thatdocumentation has been provided to demonstrate the fulfilment of therequirements in question, suspend any märket access rights to which the aircarrier is entided under Council Regulation (EEC) No 2408/92 of 23 1992 onaccess for Community air to intra-Comunity air routes (). Procedures for the granting of operating licences shallbe made public by the concemed and the Commission shall beinformcd. Inaddition to the rules of this Regulation the air also respea therequirements of national law compatible with Community law. concemed shall take a dedsion on an application as soon aspossible, and not låter than three months afier all the necessary informationhas been submitted, taking into account all available evidence. The decisionshall be communicated to the applicant air transport undertaking. A refusalshall indicate the reasons there»'or. An undertaking whose application for an operatinglicence has been refused may refer the question to the Cx)mmission. If theCommission finds that the requirements of this Regulation have not beenfulfilled it shall State its views on the interpretation of theRegulation without prejudice to Anicle 169 of the Treaty. Notwithstanding Artide 3(1), operating licences in forcein a at the date of entry into force of the Regulation shallremain valid, subjea to the laws on the basis of which they were granted, for amaximum period of one year except in the case of Anide 4 (1) (b) for which a maximumperiod of three years shall apply, during which periods the air carriershoiding such licences shall make the necessary arrangements to conform with allthe requirements of this Regulation. For the purposes of this Article, carriershoiding operating licences shall be deemed ('} Scc page 8 of this OfficiaJ Joumal. No L 240/6 Offidal Joumal of Communities Prop.1992/93:202 Bilaga 3 to includecarriers legitimately operating with a valid AOC at the date of entry into forceof this Regulation but without hoiding such licences. This Article shall be without prejudice to Anicle 4 (2)(3) (4) and (5) and Anide 9, except that air which operated by vinueof exemptions prior to the entry into force of this Regulation may continue todo so, for a period not exceeding the maximum periods spedfied above, pendingenquiries by Member States as to their compliance with Article 4. communicateany such measures to the Commission when adopted. Member States and the Commission shall cooperate in implementing this Regulation. Confidential information obtained in application of this Regulation shall be covered by professional secrecy. Member States shall consult the Commission before adoptinglaws, regulations or administrative provisions in implementation of this Regulation. Artide 19 This Regulation shall enter into force on 1January 1993. ThisRegulation shall be binding in its entirety and direaly applicable in allMember States. Done at Brussds, 23 1992 1992/93:202 Bilaga 3 92 Offidal Joumal of the EuropeanCommunities No L 240/7 for use in association with Article 5 offinancial fitness of air A. Infonnation to be provided by a first-timc applicantfrom a fuiaocial Htncss point of view The mest recent intemal management accounts and, ifavailable, audited accounts for the previous 2.Aprojcacd balance sheet, induding proBt and loss account, for the following twoyears. 3.Thebasis for projcaed expenditure and income figurcs on such items as fuel, farcsand råtes, salanes, maintenance, depredation, exchange råte flucaiadons,airport charges, insurancc, etc. Traffic/rcvcnue 4.Detailsof the stan-up costs incurred in the period from submission of application tocommencement of operations and an cxplanation of how it is proposes to financcthese costs. 5.Detailsof existing and projected sources of finance. 6.Detailsof shareholders, induding nationality and typK of shares to be held, and theArtides of Association. If part of a group of undenakings, infonnation on therelationship between them. 7.Projectedcash-flow statements and liquidity plans for the first two years of operation. 8.Detailsof the finandng of aircraft purchase/leasing induding, in the case of leasing,the terms and conditions of contraa. Information to be provided for assessment of thecontinutng financial fitness of existing licence holders planning a change in their structures or in their activities with a significantbearing on their finances 1.Ifnecessary, the most recent intemal management balance shcet and auditedaccounts for the previous financial year. 2.Precisedetails of all proposed changes e.g. change of type of service, proposedtakeover or merger, modifications in share capital, changes in shareholders,etc. 3.Aprojected balance shcet, with a profit and loss account, for the currentBnandal year, induding all proposed changes in stniccure or activities with asignificant bearing on finances. 4.Past andprojeaed expenditure and income figures on such items as hicl, fares and råtes,salarics, maintenance, depredation, exchange råte fluccuations, airportcharges, insurancc, etc. Traffic/revenue forecasts. 5.Cash-flowstatements and liquidity plans for the following year, induding all proposedchanges in structure or actividcs with a signiHcant bearing on finances. 6.Detailsof the finandng of aircraft purchase/leasing induding, in the case of leasing,che terms and conditions of contract. Information to be provided for assessment of thecontinuing financial fitness of existing licence bölders 1.Auditedaccounts not latcr than six months after the cnd of the relevant period and, ifnecessary, the most recent intemal management balance shcet. 2.Aprojcaed balance sheet, induding profit and loss account, for the forthcomingyear. 3.Past andprojcaed expenditure and income figures on such items as fuel, fares and råtes,salaries, maintenance, depredation, exchange råte fluctuations, airpon charges,insurancc, etc. Traffic/rcvcnue forecasts. 4.Cash-flowstatements and liquidity plans for the following year. 3 1992/93. Prop.1992/93:202 Bilaga 3 No L240/8 COUNCFL REGULATION (EEC) No 2408/92 on accessfor Community air to intra-Comraunity air routes THECOUNCIL OF THE EUROPEAN COMMUNITIES, Whereasin Regulation (EEC) No 2343/90 the Coundl dedded to abolish capadty restriaionsberween Member States by 1 January 1993; Havingregard to the Treaty establishing Economic Community, and inparticular Anide 84 (2) thereof, Having regard to the proposal from the Commission(■), Whereas in Regulation (EEC) No 2343/90 the Councilconfirmcd that cabotage traffic rights are an integral pan of the intemalmärket; Having regard to the opinion of Parliament (), Having regard to the opinion of the Economic and SodalCommittee (), Whereasarrangements for greater cooperation över the use of airport wereagreed in on by the Kingdom of and the UnitedKingdom in a joint dedaration by the Ministers of Foreign Affairs of the rwo countries,and such arrangements have yet to come into operation; Whereas it is important to establish an air transponpolicy for the intemal märket över a period expiring on asprovided for in Artide 8a of the Treaty; Whereasthe development of the air traffic system in the Greek and in theAdantic comprising the autonomous region of the Azorcs is at presentinadequate and for this reason airports situated on these should betemporarily exempted from the application of this Regulation; Whereasthe intemal märket shall comprise an area without intemal (rentiers in whichthe free movement of goods, persons, services and capital is ensiued; Whereas Coundl Dedsion 87/602/EEC of onthe sharing of passenger capadty between air on scheduled air servicesbetween Member States and on access for air to scheduled air serviceroutes between Member States (*) and Coiudl Regulation (EEC) No 2343/90 of 24july 1990 on access for air to schedtJed intra-Community air serviceroutes and on the sharing of passenger capadty between air onscheduled air services between Member States (5) constitute the first steps -towards achieving the intemal märket in respea of access for Conununity aircarriers to schedules intra-Conununity air routes; Whereas it is necessary to abolish restrictions concemingmultiple designation and fifth-freedom trafiic rights and phase in cabotagerights in order to stimulate the development of the Conununity air transponsector and improve services for users; Whereas it is necessary to make spedal provision, luderlimited drcumstances, for public service obligations necessary for themaintenance of adequate air services to national regions; Whereas it is necessary to make spedal provision for newair services between regional airports; Whereas Regulation (EEC) No 2343/90 provides that theCouncil shall dedde on the revision of that Regulation by 30 1992 at thelatest; Whereasfor air transpon planoing puiposes it is necessary to give Member States theright to establish non-discriminatory rules for the distribution of air trafficbetween airports within the same airport system; Whereasin Regulation (EEC) No 2343/90 the Council dedded to adopt rules goveming routelicensing for implementation not låter than 1 1992; Whereas the exercise of traffic rights has to beconsistent with operational rules relating to safety, protection of theenvirorunent and conditions conceming airpon access and has to be treatedwithout discrimination; C) OJNo C 258, 4. 1991, p. (2) OJNo C 125, 18. 1992, p. U6. (3) OJNo C lé9, 6. 1992, p. (<) OJ No L 374, 31. 1987, p. (5) OJ No L 217, 11. 1990, p. Whereas, taking into account problems of congestion orenvironmental problems, it is necessary to indude the [Xjssibility of imposingcertain limitations on the exerdse of traffic rights; Offidal Joumal of Communities Prop.1992/93:202 Bilaga 3 No L 240/9 Whereas,taking into account the competitive märket situation, provision should be madeto prevent unjustifiable economic effeas on air ; Whereas it is necessary to specify the duties of MemberStates and air for the purposes of providing necessary information; Whereas it is appropriate to ensure identical assessmentand evaluation of märket access for the same types of air services; Whereas it is appropriate to deal with all matters ofmärket access in the same Regulation; Whereas this Regulation partially replaces Regulation(EEC) No 2343/90 and Coundl Regulation (EEC) No 294/91 of 4 February 1991 onthe operation of air cargo services between Member States (')■ HAS ADOPTED THIS REGULATION: Article 1 (b)'Community air ' means an air with avalid operating licence granted by a in accordance with CoundlRegulation (EEC) No 2407/92 of 23 1992 of licensing of air (); (c) 'air service' means a flight or a series of flightscarrying passengers, cargo and/or mail for remuneration and/or hire; (d)'scheduled air service' means a series of flightspossessing all the following charaaeristics: (i) it is performed by aircraft for the transport ofpassengers, cargo and/or mail for remuneration, in such a that on eachflight seats are available for individual purchase by members of the public(either direaly from the air of from its authorized agents); (ii) it is operated so as to serve traffic between thesame two or more airports, either: 1.accordingto a published timetable; or 2.with flights so regular or frequent that they constitute a recognizably systemaricseries;' 1.ThisRegulation concems access to routes within the Community for scheduled andnon-scheduled air services. 2.Theapplication of this Regulation to the airport of is understood to bewithout prejudice to the respective legal positions of the Kingdom of andthe with regard to the dispute över sovereignty över theterritory in which the airpon is situated. 3.Applicationof the provisions of this Regulation to airport shall be suspendeduntil the arrangements in the joint dedaration made by the Foreign Ministers ofthe Kingdom of and the on have come intooperation. The Govemments of and the will so inform theCouncil on that date. 4.Airportsin the Greek and in the Altantic comprising the autonomousregion of the Azorcs shall be exempted from the application of this Regulationuntil 30 1993. Unless otherwise dedded by the Coimcil, on a proposal fromthe Commission, this exemption shall apply for a further period of five yearsand may be continued for five years thereafter. For the purposes of this Regulation: (a) 'air ' means an air transport undertaking witha valid operating licence; (e) 'flight* means a departure from a spedfiedairport towards a spedfied destination airpon; (f) 'traffic right' means the right of an air carrierto carry passengers, cargo and/or mail on an air service between tow Community airports; (g) 'seat-only sales' means the sale of seats,without any other service bundled, such as accommodation, directly to the public by the air or its authorized agent or a charterer; (h) 'Member State(s) concemed' means the Member State(s)between or within which an air service is operated; (i) 'Member'State(s) involved' means the Member State(s)concemed and the Member State($) where the air () operating the airservice is (are) licensed;