# C_2007090EN.01002501.xml

| 25.4.2007 | EN | Official Journal of the European Union | C 90/25 |
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25.4.2007

EN

Official Journal of the European Union

C 90/25

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MALTESE PROCEDURE FOR THE ALLOCATION OF TRAFFIC RIGHTS

MALTESE PROCEDURE FOR THE ALLOCATION OF TRAFFIC RIGHTS

(2007/C 90/09)

In accordance with Article 6 of Regulation (EC) No 847/2004 of the European Parliament and the Council on the negotiation and implementation of air service agreements between Member States and third countries, the European Commission publishes the following national procedure for the distribution among eligible Community carriers of air traffic rights where they are limited under air service agreements with third countries.

Intra-Community traffic rights

As per the requirements of Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes, an air carrier holding a valid operating licence granted by an EC Member State in accordance with Council Regulation (EEC) 2407/92 is permitted to exercise traffic rights on routes between Malta and the Community.

Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes

Traffic rights for flights between Malta and non-EC States

Applications to the Director of Civil Aviation by qualified air carriers to utilise available traffic rights will be automatically approved whenever these are not restricted in the number of designated carriers or in frequency.

The allocation of limited traffic rights that have been determined in the bilateral air service agreements that Malta has with non-Community States are allocated in accordance with the requirements of Regulation (EC) 847/2004 on the negotiation and implementation of air service agreements between Member States and third countries.

Regulation (EC) 847/2004 on the negotiation and implementation of air service agreements between Member States and third countries.

(i)   Eligibility

An air carrier can compete for such rights if:

| — | It qualifies through its ownership and organisation as a Community carrier (under Regulation (EEC) No 2407/92); |
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It qualifies through its ownership and organisation as a Community carrier (under Regulation (EEC) No 2407/92);

| — | It meets the prescribed safety standards and is under the effective regulatory control of competent authorities in the Community; |
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It meets the prescribed safety standards and is under the effective regulatory control of competent authorities in the Community;

| — | Is established in Malta |
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Is established in Malta

(ii)   Objectives

The allocation of scarce traffic rights are carried out in Malta in accordance with the following objectives:

| — | The maintenance of a high level of safety and of environmental protection |
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The maintenance of a high level of safety and of environmental protection

| — | The maximisation of benefits to consumers through the provision of economic, efficient and competitive air services |
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The maximisation of benefits to consumers through the provision of economic, efficient and competitive air services

| — | The preservation of continuity of service |
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The preservation of continuity of service

| — | The development of tourism to Malta |
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The development of tourism to Malta

| — | The minimisation of geographic insularity and maximisation of international connectivity |
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The minimisation of geographic insularity and maximisation of international connectivity

(iii)   Transparency

The allocation of scarce traffic rights is done on the basis of a procedure that ensures that all parties with a legitimate interest have the facility to express their interest. For this reason the procedure as well as information on the availability of scarce traffic rights will be regularly posted on the web site of the Department of Civil Aviation. Furthermore the Director will publicly advise through a notice on the DCA web-site about any planned bilateral air service negotiations that will be going to take place. Any air carrier that feels aggrieved by the decision taken on the allocation of scarce traffic rights has the right to appeal to the Traffic Rights Appeals Board.

(iv)   Non-discrimination

All carriers that are in possession of an Air Operators Certificate and an operating license (also referred to as an air service licence) on the basis of Regulation (EEC) No 2407/92 issued by EC Member States and which have an establishment in Malta are eligible to apply for the allocation of traffic rights.

Evaluation criteria shall include, but are not be limited to, the specific route characteristics and in particular its potential contribution towards the enhancement of tourism to Malta; the facilitation of trade between Malta and third countries; the service quality proposed; the best quality/price ratio that is offered to customers; and the investment made and to be made on the route.

(v)   Monitoring and allocation of allocated traffic rights

Traffic rights are not transferable between carriers and may be revoked by the Director. An operator that has been granted a traffic right should implement the new service within a reasonable time, and will lose the rights unless he can demonstrate that a delay in their utilisation was due to exceptional circumstances outside his control.

(vi)   Procedure

When traffic rights are restricted and the allocation may be subject to interest from more than one airline the following procedure shall be followed to allocate traffic rights:

| (1) | An interested air carrier must apply separately and specifically to the Director for the operation of air services on the particular route. |
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(1)

An interested air carrier must apply separately and specifically to the Director for the operation of air services on the particular route.

| (2) | In the interest of preserving continuity of services, an air carrier that is already operating a specific route shall be given preference over other applicants, provided that the air carrier can continue to use effectively the traffic rights granted. |
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(2)

In the interest of preserving continuity of services, an air carrier that is already operating a specific route shall be given preference over other applicants, provided that the air carrier can continue to use effectively the traffic rights granted.

| (3) | When new applications are received from two or more air carriers to operate on the same (new) route, the air carrier that provides the best service will be preferred and shall be allowed to continue using the traffic rights provided these are being used effectively. |
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(3)

When new applications are received from two or more air carriers to operate on the same (new) route, the air carrier that provides the best service will be preferred and shall be allowed to continue using the traffic rights provided these are being used effectively.

| (4) | Except in cases of unforeseen circumstances or circumstances beyond its control, an air carrier that fails to operate all the services that it had applied for in any one year or seasonal period shall be penalised in respect of a renewed application to operate on the same route in the forthcoming year or season and may forfeit its right to operate the route. |
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(4)

Except in cases of unforeseen circumstances or circumstances beyond its control, an air carrier that fails to operate all the services that it had applied for in any one year or seasonal period shall be penalised in respect of a renewed application to operate on the same route in the forthcoming year or season and may forfeit its right to operate the route.

| (5) | An air carrier that operates services on a particular route on a seasonal basis shall not be considered to have terminated its services at the end of the operating season and will not be considered as having forfeited its right to operate that route subsequently unless it fails to operate services for a period exceeding 12 months. |
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(5)

An air carrier that operates services on a particular route on a seasonal basis shall not be considered to have terminated its services at the end of the operating season and will not be considered as having forfeited its right to operate that route subsequently unless it fails to operate services for a period exceeding 12 months.

| (6) | Account shall be taken of the equipment and level of service to be provided on the route. |
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(6)

Account shall be taken of the equipment and level of service to be provided on the route.

| (7) | For the purpose of assessing the granting of scarce traffic rights, the Director shall notify air carriers that may be interested to permit them to provide their views thereon during a private hearing. |
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(7)

For the purpose of assessing the granting of scarce traffic rights, the Director shall notify air carriers that may be interested to permit them to provide their views thereon during a private hearing.

| (8) | The Director shall communicate an acceptance/refusal decision on an application for traffic rights within 30 days from the end of the above-mentioned hearings. |
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(8)

The Director shall communicate an acceptance/refusal decision on an application for traffic rights within 30 days from the end of the above-mentioned hearings.

(vii)   Fees

A fee for the issue of traffic rights (route approval) is payable under the Civil Aviation (Air Transport Licensing)(Fees) Regulations (Legal Notice 429 of 2004)

Application Form

An application for the operation of air services on a particular route shall be made using the appropriate form which can be downloaded from the DCA website > Air Transport Section > Forms and Circulars.

Applicable Legislation

Civil Aviation Act 1972 (as amended) — Chapter 232

Civil Aviation (Air Transport Licensing) Regulations, 2004 — LN 78/2004

Civil Aviation (Air Transport Licensing)(Fees) Regulations, 2004 — LN 429/2004

Civil Aviation (Distribution of Traffic Rights) Regulations, 2007 — LN 23/2007

Regulations (EEC) No 2407/92, (EEC) No 2408/92, (EC) No 847/2004

J. SULTANA

Director General

Civil Aviation

26th February 2007

‘L.N. 23 of 2007

CIVIL AVIATION ACT

(CAP. 232)

Civil Aviation (Distribution of Traffic Rights) Regulations, 2007

In exercise of the powers conferred by article 3 of the Civil Aviation Act, the Minister for Competitiveness and Communications has made the following order:

| 1. | The title of this order is the Civil Aviation (Distribution of Traffic Rights) Regulations, 2007. |
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1.

The title of this order is the Civil Aviation (Distribution of Traffic Rights) Regulations, 2007.

| 2. | For the purposes of Article 5 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiations and implementation of air service agreements between Member States and third countries, the distribution of traffic rights among eligible Community air carriers shall be carried out by the Director of Civil Aviation in accordance with a non-discriminatory and transparent procedure. |
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2.

For the purposes of Article 5 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiations and implementation of air service agreements between Member States and third countries, the distribution of traffic rights among eligible Community air carriers shall be carried out by the Director of Civil Aviation in accordance with a non-discriminatory and transparent procedure.

| 3. | (1) | An appeal shall lie to The Traffic Rights Appeals Board against any decision given under regulation 2 by the Director of Civil Aviation. |
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3.

(1)

An appeal shall lie to The Traffic Rights Appeals Board against any decision given under regulation 2 by the Director of Civil Aviation.

| (2) | The right to appeal shall be competent to the party aggrieved by the decision. |
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(2)

The right to appeal shall be competent to the party aggrieved by the decision.

| (3) | An appeal to the Board may be filed on any of the following grounds:






  (a) | that a material error as to the facts has been made; |
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(3)

An appeal to the Board may be filed on any of the following grounds:

(a)

that a material error as to the facts has been made;

| (b) | that there was a material procedural error; |
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(b)

that there was a material procedural error;

| (c) | that an error of law has been made; |
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(c)

that an error of law has been made;

| (d) | that there was some material illegality, including unreasonableness or lack of proportionality. |
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(d)

that there was some material illegality, including unreasonableness or lack of proportionality.

| (4) | The Board shall give reasons for its decision and shall cause such decisions to be made public omitting, if it deems it appropriate for reasons of commercial or security confidentiality, the names of the persons involved or any other information. |
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(4)

The Board shall give reasons for its decision and shall cause such decisions to be made public omitting, if it deems it appropriate for reasons of commercial or security confidentiality, the names of the persons involved or any other information.

| (5) | In determining an appeal under this regulation the Board may:






  a) | dismiss the appeal; or |
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(5)

In determining an appeal under this regulation the Board may:

a)

dismiss the appeal; or

| b) | annul the decision |
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b)

annul the decision

and where the Board annuls the decision it shall refer the matter to the Director of Civil Aviation for its implementation.

| 4. | (1) | There shall be a Traffic Rights Appeals Board, hereinafter “the Board”, consisting of three members, one of whom shall be thechairperson having experience in the legal field. |
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4.

(1)

There shall be a Traffic Rights Appeals Board, hereinafter “the Board”, consisting of three members, one of whom shall be thechairperson having experience in the legal field.

| (2) | The members of the Board shall be appointed by theMinister responsible for civil aviation for a period indicated in their letter of appointment and may be so appointed for further periods as the Minister may deem appropriate. |
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(2)

The members of the Board shall be appointed by theMinister responsible for civil aviation for a period indicated in their letter of appointment and may be so appointed for further periods as the Minister may deem appropriate.

| (3) | A member of the Board may be challenged or abstain for any of the reasons for which a judge may be challenged or abstain in accordance with article 734 of the Code of Organization and Civil Procedure. In any such case the Minister shall appoint a person, having the qualifications of the member challenged or abstaining, to sit as member of the Board in substitution of the said member. |
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(3)

A member of the Board may be challenged or abstain for any of the reasons for which a judge may be challenged or abstain in accordance with article 734 of the Code of Organization and Civil Procedure. In any such case the Minister shall appoint a person, having the qualifications of the member challenged or abstaining, to sit as member of the Board in substitution of the said member.

| 5. | (1) | The Board shall be competent to hear and decide any appeal made to it in accordance with the provisions of these regulations, and, subject to regulation 6 hereof, the decisions of the Board shall be final and binding. |
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5.

(1)

The Board shall be competent to hear and decide any appeal made to it in accordance with the provisions of these regulations, and, subject to regulation 6 hereof, the decisions of the Board shall be final and binding.

| (2) | For the exercise of its functions, the Board may summon any person to appear before it and give evidence and produce documents, and the chairperson shall have the power to administer the oath. The Board may also appoint experts to advise the Board on any technical issue that may be relevant to its decision. |
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(2)

For the exercise of its functions, the Board may summon any person to appear before it and give evidence and produce documents, and the chairperson shall have the power to administer the oath. The Board may also appoint experts to advise the Board on any technical issue that may be relevant to its decision.

| (3) | For the purposes aforesaid the Board shall have the same powers as are competent to the First Hall, Civil Court, according to law. |
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(3)

For the purposes aforesaid the Board shall have the same powers as are competent to the First Hall, Civil Court, according to law.

| (4) | The Board shall regulate its own procedure. |
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(4)

The Board shall regulate its own procedure.

| 6. | (1) | Any party to an appeal to the Board who feels aggrieved by a decision of the Board may, on a question of law, appeal to the Court of Appeal (Inferior Jurisdiction) as constituted in accordance with article 41(6) of the Code of Organization and Civil Procedure by means of an application filed in the registry of that court within thirty days from the date on which that decision has been notified to him. |
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6.

(1)

Any party to an appeal to the Board who feels aggrieved by a decision of the Board may, on a question of law, appeal to the Court of Appeal (Inferior Jurisdiction) as constituted in accordance with article 41(6) of the Code of Organization and Civil Procedure by means of an application filed in the registry of that court within thirty days from the date on which that decision has been notified to him.

| (2) | The fees contained in Schedule A to the Code of Organization and Civil Procedure shall apply to the filing of judicial acts in connection with appeals under this regulation.’ |
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(2)

The fees contained in Schedule A to the Code of Organization and Civil Procedure shall apply to the filing of judicial acts in connection with appeals under this regulation.’

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