# Official Journal C 183/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.C_2009.183.eng |
| --- | --- |
| Official Journal
  of the European Union | C 183 |
| | |
| English edition | Information and Notices | Volume 525 August 2009 |

ISSN 1725-2423

doi:10.3000/17252423.C_2009.183.eng

Official Journal

of the European Union

C 183

English edition

Information and Notices

Volume 525 August 2009

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| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2009/C 183/01 | Non-opposition to a notified concentration (Case COMP/M.5489 — Bosch Thermotechnik/Loos) (
  1
  ) | 1 |
| 2009/C 183/02 | Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  ) | 2 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2009/C 183/01

Non-opposition to a notified concentration (Case COMP/M.5489 — Bosch Thermotechnik/Loos) (
  1
  )

1

1

2009/C 183/02

Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty — Cases where the Commission raises no objections (
  1
  )

1

2

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2009/C 183/03 | Euro exchange rates | 3 |
| 2009/C 183/04 | Final report of the Hearing Officer in Case COMP/37.860 — Morgan Stanley Dean Witter/Visa International (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21) | 4 |
| 2009/C 183/05 | Summary of Commission Decision of 3 October 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/D1/37860 — Morgan Stanley/Visa International and Visa Europe) (Notified under document C(2007) 4471)
   (
  1
  ) | 6 |
| 2009/C 183/06 | Final report of the Hearing Officer in Case COMP/38.606 — Groupement des cartes bancaires (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21) | 9 |
| 2009/C 183/07 | Summary of Commission Decision of 17 October 2008 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/D1/38.606) (Notified under document C(2007) 5060 final) | 12 |
| | NOTICES FROM MEMBER STATES |
| 2009/C 183/08 | Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1857/2006 on the application of Articles 87 and 88 of the Treaty to State aid to small and medium-sized enterprises active in the production of agricultural products and amending Regulation (EC) No 70/2001 | 13 |
| 2009/C 183/09 | Extract from the Decision concerning Glitnir banki hf. pursuant to Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions | 18 |
| 2009/C 183/10 | Austrian national procedure for the granting of restricted traffic rights | 20 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2009/C 183/03

Euro exchange rates

3

2009/C 183/04

Final report of the Hearing Officer in Case COMP/37.860 — Morgan Stanley Dean Witter/Visa International (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

4

2009/C 183/05

Summary of Commission Decision of 3 October 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/D1/37860 — Morgan Stanley/Visa International and Visa Europe) (Notified under document C(2007) 4471)
   (
  1
  )

(Notified under document C(2007) 4471)

1

6

2009/C 183/06

Final report of the Hearing Officer in Case COMP/38.606 — Groupement des cartes bancaires (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

9

2009/C 183/07

Summary of Commission Decision of 17 October 2008 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/D1/38.606) (Notified under document C(2007) 5060 final)

(Notified under document C(2007) 5060 final)

12

NOTICES FROM MEMBER STATES

2009/C 183/08

Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1857/2006 on the application of Articles 87 and 88 of the Treaty to State aid to small and medium-sized enterprises active in the production of agricultural products and amending Regulation (EC) No 70/2001

13

2009/C 183/09

Extract from the Decision concerning Glitnir banki hf. pursuant to Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions

18

2009/C 183/10

Austrian national procedure for the granting of restricted traffic rights

20

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY |
| | Commission |
| 2009/C 183/11 | Prior notification of a concentration (Case COMP/M.5529 — Oracle/Sun Microsystems) (
  1
  ) | 32 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

2009/C 183/11

Prior notification of a concentration (Case COMP/M.5529 — Oracle/Sun Microsystems) (
  1
  )

1

32

| | |
| --- | --- |
| 2009/C 183/12 | Notice (see page 3 of the cover) | s3 |

2009/C 183/12

Notice (see page 3 of the cover)

Notice

s3

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

---

(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 5.8.2009 | EN | Official Journal of the European Union | C 183/1 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/1

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Non-opposition to a notified concentration

(Case COMP/M.5489 — Bosch Thermotechnik/Loos)

(Text with EEA relevance)

2009/C 183/01

On 16 July 2009, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in German and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32009M5489. EUR-Lex is the on-line access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/en/index.htm) under document number 32009M5489. EUR-Lex is the on-line access to the European law.

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| 5.8.2009 | EN | Official Journal of the European Union | C 183/2 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/2

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Authorisation for State aid pursuant to Articles 87 and 88 of the EC Treaty

Cases where the Commission raises no objections

(Text with EEA relevance)

2009/C 183/02

| Date of adoption of the decision | 13.5.2009 |
| --- | --- |
| Reference number of State Aid | N 420/08 |
| Member State | United Kingdom |
| Region | — |
| Title (and/or name of the beneficiary) | Restructuring of London & Continental Railways and Eurostar (UK) Limited |
| Legal basis | NA |
| Type of measure | Restructuring aid |
| Objective | — |
| Form of aid | — |
| Budget | Net financial support of GBP 5,169 million/EUR 6,466 million |
| Intensity | NA |
| Duration (period) | NA |
| Economic sectors | Rail passenger transport/infrastructure |
| Name and address of the granting authority | UK Secretary of State for Transport |

Date of adoption of the decision

13.5.2009

Reference number of State Aid

N 420/08

Member State

United Kingdom

Region

—

Title (and/or name of the beneficiary)

Restructuring of London & Continental Railways and Eurostar (UK) Limited

Legal basis

NA

Type of measure

Restructuring aid

Objective

—

Form of aid

—

Budget

Net financial support of GBP 5,169 million/EUR 6,466 million

Intensity

NA

Duration (period)

NA

Economic sectors

Rail passenger transport/infrastructure

Name and address of the granting authority

UK Secretary of State for Transport

The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:

http://ec.europa.eu/community_law/state_aids/index.htm

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 5.8.2009 | EN | Official Journal of the European Union | C 183/3 |
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5.8.2009

EN

Official Journal of the European Union

C 183/3

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Euro exchange rates (1)

4 August 2009

2009/C 183/03

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,4384 |
| JPY | Japanese yen | 136,22 |
| DKK | Danish krone | 7,4452 |
| GBP | Pound sterling | 0,84845 |
| SEK | Swedish krona | 10,3043 |
| CHF | Swiss franc | 1,5286 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 8,7040 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,863 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 267,05 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7025 |
| PLN | Polish zloty | 4,1233 |
| RON | Romanian leu | 4,2145 |
| TRY | Turkish lira | 2,1091 |
| AUD | Australian dollar | 1,7116 |
| CAD | Canadian dollar | 1,5369 |
| HKD | Hong Kong dollar | 11,1477 |
| NZD | New Zealand dollar | 2,1609 |
| SGD | Singapore dollar | 2,0622 |
| KRW | South Korean won | 1 753,18 |
| ZAR | South African rand | 11,2817 |
| CNY | Chinese yuan renminbi | 9,8246 |
| HRK | Croatian kuna | 7,3470 |
| IDR | Indonesian rupiah | 14 208,64 |
| MYR | Malaysian ringgit | 5,0265 |
| PHP | Philippine peso | 68,824 |
| RUB | Russian rouble | 44,8420 |
| THB | Thai baht | 48,884 |
| BRL | Brazilian real | 2,6393 |
| MXN | Mexican peso | 18,9279 |
| INR | Indian rupee | 68,4390 |

Currency

Exchange rate

USD

US dollar

1,4384

JPY

Japanese yen

136,22

DKK

Danish krone

7,4452

GBP

Pound sterling

0,84845

SEK

Swedish krona

10,3043

CHF

Swiss franc

1,5286

ISK

Iceland króna

NOK

Norwegian krone

8,7040

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,863

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

267,05

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7025

PLN

Polish zloty

4,1233

RON

Romanian leu

4,2145

TRY

Turkish lira

2,1091

AUD

Australian dollar

1,7116

CAD

Canadian dollar

1,5369

HKD

Hong Kong dollar

11,1477

NZD

New Zealand dollar

2,1609

SGD

Singapore dollar

2,0622

KRW

South Korean won

1 753,18

ZAR

South African rand

11,2817

CNY

Chinese yuan renminbi

9,8246

HRK

Croatian kuna

7,3470

IDR

Indonesian rupiah

14 208,64

MYR

Malaysian ringgit

5,0265

PHP

Philippine peso

68,824

RUB

Russian rouble

44,8420

THB

Thai baht

48,884

BRL

Brazilian real

2,6393

MXN

Mexican peso

18,9279

INR

Indian rupee

68,4390

---

(1)  Source: reference exchange rate published by the ECB.

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| 5.8.2009 | EN | Official Journal of the European Union | C 183/4 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/4

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Final report of the Hearing Officer in Case COMP/37.860 — Morgan Stanley Dean Witter/Visa International

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

2009/C 183/04

The draft Decision in the above-mentioned case gives rise to the following observations.

Complaint

The present case arises out of a complaint submitted jointly by Morgan Stanley (formerly known as Morgan Stanley Dean Witter & Co.) and Morgan Stanley Dean Witter Bank Limited (now Morgan Stanley Bank International Limited) (hereinafter jointly referred as ‘Morgan Stanley’) to the European Commission on 12 April 2000. The complaint concerned in particular the application (to Morgan Stanley) of a provision of the By-Laws of Visa International Service Association whereby Visa membership was refused to ‘any applicant which is deemed by the Board of Directors to be a competitor of the corporation’ (the ‘Rule’). On the basis of the Rule, Visa membership was refused to Morgan Stanley in March 2000, thereby excluding Morgan Stanley as a merchant acquirer for Visa transactions not only in the UK but in all EEA Member States where the Rule had application.

Statement of Objections and first Letter of Facts

A Statement of Objections (‘SO’) was sent to Visa International Service Organisation and Visa Europe (hereinafter jointly referred to as ‘Visa’) on 2 August 2004. Visa Europe, responsible for the EU Region, had been incorporated on 1 July 2004 and it applied the same Rule (1).

Following extensions of the deadline granted upon request, Visa responded to the SO on 3 December 2004.

Visa was given access to the file on 1 and 2 September 2004. Upon Visa's request additional access to documents was provided on 19 November and 17 December 2004. By letter of 23 December 2004 the Commission services informed Visa (first Letter of Facts) of certain additional information included in the file subsequent to the access to file and explained how the Commission might use such information in a final decision. Visa provided further comments on 12, 14 and 17 January 2005.

One particular aspect of access to the file remained at issue throughout the procedure as far as Visa was concerned, namely, access to Morgan Stanley's Strategic Plan referred to by the latter to evidence its intention to establish an integrated issuing and acquiring business within the UK and other EU Member States ready to be launched in May 2005 if it were granted membership of Visa. In Visa's view this document was a fundamental piece of evidence which should have been made accessible in full for the purpose of its rights of defence. Visa was initially provided with a short summary of the Strategic Plan. Upon request to me, I agreed that a non-confidential version of the report should be provided to Visa. Subsequently, Morgan Stanley provided a more extensive non-confidential version of this Plan to be submitted to Visa for the purpose of these proceedings, having regard in the meantime to the passage of time and as a goodwill gesture in an attempt to bring the dispute on this issue to a close. Morgan Stanley also responded to questions which Visa had raised with the Commission services in relation to the Plan. Nevertheless, Visa has continued to maintain that its rights of defence have not been respected in this regard. I have responded to Visa a number of times in the course of the proceedings on this issue. My final conclusion is that, having regard to the balance of interests to be made between the need to safeguard Visa's rights of defence on the one hand, and the legitimate interests of Morgan Stanley in the protection of its business secrets on the other hand, and with particular reference to the criteria of assessment set out in the Commission Notice on the rules for access to the Commission file (2), that Visa's rights of defence have been adequately and appropriately protected in the draft Decision to be adopted in this case.

Pursuant to Article 6(1) of Commission Regulation (EC) No 773/2004, Morgan Stanley, as formal complainant, was provided with a non-confidential version of the SO on which it submitted written observations. These observations were forwarded to Visa which, in turn, submitted further comments. In the interests of transparency Morgan Stanley was also provided with a non-confidential version of Visa's reply to the SO, which led to additional comments from Morgan Stanley and then again, in turn, from Visa.

Visa waived its right to an oral hearing in this case.

Second Letter of Facts and subsequent events

On 6 July 2006, the relevant Commission service sent a further letter of facts (‘Letter of Facts’) to Visa setting out additional factual evidence in support of the conclusions in the SO, together with an updated access to the file. Upon request, an extension of the deadline to respond to the Letter of Facts was granted until 22 September 2006. In response to arguments raised by Visa I rejected the contention that the Letter of Facts raised new allegations or a different case going beyond the scope of the SO. I also rejected the contention that Visa had insufficient time to respond properly to the Letter of Facts. Queries raised by Visa in their response of 22 September 2006 were subsequently dealt with in full by the relevant Commission services in their letter of 5 December 2006.

In the meantime, on 22 September 2006, Morgan Stanley became a member of Visa Europe and withdrew its complaint with the Commission. On 2 October 2006 the Commission services sent requests for information to both Visa and Morgan Stanley in order to obtain a copy of the settlement agreement of 21 September 2006 between Morgan Stanley and Visa pursuant to which Morgan Stanley was admitted as a member of Visa Europe. Visa replied on 9 October 2006.

Further to a request for information sent by the Commission to Visa on 20 October 2006 concerning its turnover, Visa provided a further submission on its case to the Commission on 27 November 2006.

As in its letter of 27 November 2006 Visa stated that it had changed the Rule, the Commission sent a request for information to Visa on 5 December 2006 in order to obtain further clarification on this issue. Visa replied on 12 December 2006.

An additional access to file and further final opportunity to comment was provided to Visa on 12 January 2007. Comments were submitted on 15 February 2007 (3).

The draft Decision

In the draft Decision, the Commission established the starting date of the infringement to be 22 March 2000 (4), when Visa had first informed Morgan Stanley that it was not eligible for Visa membership, and the termination date to be 22 September 2006, when Morgan Stanley was admitted as a Visa member. For the purpose of the fine to be imposed in this case, only the period between the notification of the SO (2 August 2004) and 22 September 2006 is taken into account.

The draft Decision submitted to the Commission only contains objections in respect of which the parties have been afforded the opportunity of making known their views.

I conclude that the rights of the parties to be heard have been respected in the present case.

Brussels, 26 September 2007.

Karen WILLIAMS

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(1)  Prior to 1 July 2004, ‘Visa EU’ was a geographical division of Visa International.

1

(2)  Commission Notice of 13 December 2005 on the rules for access to the Commission file in cases pursuant to Articles 81 and 82 of the EC Treaty, Articles 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004, paragraph 24.

2

(3)  As in its comments of 15 February 2007 Visa mentioned to the Commission that Morgan Stanley had submitted an application form, the Commission sent a request for information to Visa on 3 April 2007 asking for the date of such application form and requesting a copy thereof.

3

(4)  A later date as compared to the starting date referred to in the SO.

4

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| 5.8.2009 | EN | Official Journal of the European Union | C 183/6 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/6

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Summary of Commission Decision

of 3 October 2007

relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement

(Case COMP/D1/37860 — Morgan Stanley/Visa International and Visa Europe)

(Notified under document C(2007) 4471)

(Only the English text is authentic)

(Text with EEA relevance)

2009/C 183/05

| 1. | On 3 October 2007, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement. In accordance with the provisions of Article 30 of Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the decision is available on the Directorate-General for Competition’s website at the following address: http://europa.eu.int/comm/competition/antitrust/cases/index/ |
| --- | --- |

1.

On 3 October 2007, the Commission adopted a decision relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement. In accordance with the provisions of Article 30 of Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the decision is available on the Directorate-General for Competition’s website at the following address: http://europa.eu.int/comm/competition/antitrust/cases/index/

I.   INTRODUCTION

| 2. | The Decision imposed a fine on Visa International Service Association and Visa Europe Limited for infringing Article 81 of the Treaty and Article 53 of the EEA Agreement. From 22 March 2000 to 21 March 2006, the said companies prevented Morgan Stanley Bank International Limited (2) from providing credit card acquiring services to merchants in the UK by refusing to admit Morgan Stanley as a member of Visa Europe. |
| --- | --- |

2.

The Decision imposed a fine on Visa International Service Association and Visa Europe Limited for infringing Article 81 of the Treaty and Article 53 of the EEA Agreement. From 22 March 2000 to 21 March 2006, the said companies prevented Morgan Stanley Bank International Limited (2) from providing credit card acquiring services to merchants in the UK by refusing to admit Morgan Stanley as a member of Visa Europe.

II.   CASE DESCRIPTION

1.   The proceedings

| 3. | The Decision arises out of the complaint jointly submitted by Morgan Stanley USA and Morgan Stanley Bank to the Commission (hereafter ‘Morgan Stanley’) that Morgan Stanley was refused membership of Visa Europe which prevented it from issuing Visa cards and acquiring Visa and MasterCard transactions. |
| --- | --- |

3.

The Decision arises out of the complaint jointly submitted by Morgan Stanley USA and Morgan Stanley Bank to the Commission (hereafter ‘Morgan Stanley’) that Morgan Stanley was refused membership of Visa Europe which prevented it from issuing Visa cards and acquiring Visa and MasterCard transactions.

| 4. | Morgan Stanley also complained before the High Court of Justice of England and Wales on 28 September 2000. Its claim before the High Court of Justice of England and Wales is similar to its complaint submitted to the Commission, save that it also claimed damages. On 2 May 2001, following Visa’s application, the High Court of Justice of England and Wales ordered a stay of proceedings to await the outcome of the Commission's investigation. |
| --- | --- |

4.

Morgan Stanley also complained before the High Court of Justice of England and Wales on 28 September 2000. Its claim before the High Court of Justice of England and Wales is similar to its complaint submitted to the Commission, save that it also claimed damages. On 2 May 2001, following Visa’s application, the High Court of Justice of England and Wales ordered a stay of proceedings to await the outcome of the Commission's investigation.

| 5. | A Statement of Objections was sent to Visa International and Visa Europe (hereafter ‘Visa’) on 2 August 2004. On 5 April 2005 Visa waived its right to the hearing. |
| --- | --- |

5.

A Statement of Objections was sent to Visa International and Visa Europe (hereafter ‘Visa’) on 2 August 2004. On 5 April 2005 Visa waived its right to the hearing.

| 6. | At its meeting of 17 September 2007, the Advisory Committee agreed with the terms of the draft decision. |
| --- | --- |

6.

At its meeting of 17 September 2007, the Advisory Committee agreed with the terms of the draft decision.

2.   The facts

| 7. | In the USA, Morgan Stanley USA operates the Discover card network which is not operative in the EU/EEA. In 1999, it incorporated a bank in the UK — Morgan Stanley Bank — which is responsible for credit card activities in the EU. Until Morgan Stanley Bank's admission as a Visa member in September 2006, Morgan Stanley Bank's card operations were confined to issuing MasterCard cards in the UK (Morgan Stanley Bank does not acquire merchants for acceptance of MasterCard). |
| --- | --- |

7.

In the USA, Morgan Stanley USA operates the Discover card network which is not operative in the EU/EEA. In 1999, it incorporated a bank in the UK — Morgan Stanley Bank — which is responsible for credit card activities in the EU. Until Morgan Stanley Bank's admission as a Visa member in September 2006, Morgan Stanley Bank's card operations were confined to issuing MasterCard cards in the UK (Morgan Stanley Bank does not acquire merchants for acceptance of MasterCard).

| 8. | Visa International operates the Visa card network and incorporated Visa Europe in 2004. Visa Europe has authority to regulate matters within the EEA, in particular to decide whether to accept or reject any application for membership of Visa in the EEA. |
| --- | --- |

8.

Visa International operates the Visa card network and incorporated Visa Europe in 2004. Visa Europe has authority to regulate matters within the EEA, in particular to decide whether to accept or reject any application for membership of Visa in the EEA.

| 9. | The By-Laws of Visa International and the Membership Regulations of Visa Europe contain the same rule (‘the Rule’) according to which applicants deemed to be a competitor of the corporation cannot be accepted as members of the scheme. |
| --- | --- |

9.

The By-Laws of Visa International and the Membership Regulations of Visa Europe contain the same rule (‘the Rule’) according to which applicants deemed to be a competitor of the corporation cannot be accepted as members of the scheme.

| 10. | In March 2000, Morgan Stanley asked for membership of Visa Europe. In 2002, Morgan Stanley prepared a strategic business plan for European merchant acquiring market entry. In 2005 it had an implementation plan for this strategy in the United Kingdom, which it claimed to be ready to launch once granted Visa membership. |
| --- | --- |

10.

In March 2000, Morgan Stanley asked for membership of Visa Europe. In 2002, Morgan Stanley prepared a strategic business plan for European merchant acquiring market entry. In 2005 it had an implementation plan for this strategy in the United Kingdom, which it claimed to be ready to launch once granted Visa membership.

| 11. | On 21 September 2006 Morgan Stanley and Visa concluded a settlement agreement. On 22 September 2006 (i) Visa granted Morgan Stanley Bank unconditional membership of Visa Europe and (ii) Morgan Stanley withdrew the complaint filed with the Commission. |
| --- | --- |

11.

On 21 September 2006 Morgan Stanley and Visa concluded a settlement agreement. On 22 September 2006 (i) Visa granted Morgan Stanley Bank unconditional membership of Visa Europe and (ii) Morgan Stanley withdrew the complaint filed with the Commission.

III.   LEGAL ASSESSMENT

| 12. | Visa and its respective members, whether credit institutions or entities owned by credit institutions, engage in an economic activity and, hence, are undertakings within the meaning of Article 81(1) of the EC Treaty/Article 53(1) of the EEA Agreement. Thus, the rules and regulations setting out the framework for the functioning of the Visa system adopted by the Board of Directors of Visa International or Visa Europe, and the decision to apply those rules to an undertaking, can be regarded either as decisions of an association of undertakings, or as agreements between undertakings. |
| --- | --- |

12.

Visa and its respective members, whether credit institutions or entities owned by credit institutions, engage in an economic activity and, hence, are undertakings within the meaning of Article 81(1) of the EC Treaty/Article 53(1) of the EEA Agreement. Thus, the rules and regulations setting out the framework for the functioning of the Visa system adopted by the Board of Directors of Visa International or Visa Europe, and the decision to apply those rules to an undertaking, can be regarded either as decisions of an association of undertakings, or as agreements between undertakings.

| 13. | The Decision establishes that the application of the Rule to Morgan Stanley restricted competition within the meaning of Article 81(1) of the EC Treaty as:






  — | the Rule as applied to Morgan Stanley prevented Morgan Stanley from entering the UK credit and deferred debit/charge card acquiring market, |
| --- | --- | --- |

13.

The Decision establishes that the application of the Rule to Morgan Stanley restricted competition within the meaning of Article 81(1) of the EC Treaty as:

—

the Rule as applied to Morgan Stanley prevented Morgan Stanley from entering the UK credit and deferred debit/charge card acquiring market,

| — | such behaviour of Visa had potential anticompetitive effects in that market, |
| --- | --- |

—

such behaviour of Visa had potential anticompetitive effects in that market,

| — | Visa’s conduct falls within the scope of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement. |
| --- | --- |

—

Visa’s conduct falls within the scope of Article 81(1) of the Treaty and Article 53(1) of the EEA Agreement.

| 14. | As merchants demand that the contracts for card acceptance concluded with their bank are offered to them as a package for the acceptance of both Visa and MasterCard, Visa’s refusal to admit Morgan Stanley as a member has not only prevented Morgan Stanley from providing services to merchants as regards Visa transactions (which represent 60 % of the market), but also as regards other payment card transactions. The market is already highly concentrated and further concentration is ongoing. |
| --- | --- |

14.

As merchants demand that the contracts for card acceptance concluded with their bank are offered to them as a package for the acceptance of both Visa and MasterCard, Visa’s refusal to admit Morgan Stanley as a member has not only prevented Morgan Stanley from providing services to merchants as regards Visa transactions (which represent 60 % of the market), but also as regards other payment card transactions. The market is already highly concentrated and further concentration is ongoing.

| 15. | While there is scope for further competition, within the rather narrow circle of banks identified by Visa as potential entrants, the Commission has evidence that no bank other than Morgan Stanley would have contemplated entry to the UK acquiring market. Morgan Stanley continuously intended to enter the European acquiring market and has all the qualifications of an efficient acquirer. In contrast, only two other banks have got merchant acquiring experience and these banks are not considering entry to the UK merchant acquiring market. Consequently, Morgan Stanley’s entry into the UK acquiring market could be reasonably expected to contribute towards more efficient competition in the UK and have a positive effect on prices and the quality of acquiring services. |
| --- | --- |

15.

While there is scope for further competition, within the rather narrow circle of banks identified by Visa as potential entrants, the Commission has evidence that no bank other than Morgan Stanley would have contemplated entry to the UK acquiring market. Morgan Stanley continuously intended to enter the European acquiring market and has all the qualifications of an efficient acquirer. In contrast, only two other banks have got merchant acquiring experience and these banks are not considering entry to the UK merchant acquiring market. Consequently, Morgan Stanley’s entry into the UK acquiring market could be reasonably expected to contribute towards more efficient competition in the UK and have a positive effect on prices and the quality of acquiring services.

| 16. | There are no realistic possibilities that Discover, Morgan Stanley’s card network in the USA, is expanded to the EEA as, inter alia (i) there are very high barriers to entry into the card networks market in the EEA; (ii) Discover was launched in the USA with the cooperation of the largest USA retailer (Sears), but Morgan Stanley has no equivalent of Sears for launching Discover in Europe; and (iii) Discover is a proprietary card system operating primarily in the US with a relatively small market share with limited international card acceptance. |
| --- | --- |

16.

There are no realistic possibilities that Discover, Morgan Stanley’s card network in the USA, is expanded to the EEA as, inter alia (i) there are very high barriers to entry into the card networks market in the EEA; (ii) Discover was launched in the USA with the cooperation of the largest USA retailer (Sears), but Morgan Stanley has no equivalent of Sears for launching Discover in Europe; and (iii) Discover is a proprietary card system operating primarily in the US with a relatively small market share with limited international card acceptance.

| 17. | The application of the Rule to Morgan Stanley would not fall under Article 81(1) EC/Article 53(1) EEA if it were directly related and necessary (proportionate and non-discriminatory) for the proper functioning of Visa’s four-party payment card network. According to Visa such would be the case as its card network would be threatened if Morgan Stanley were not prevented from free-riding on allegedly confidential information to the benefit of Morgan Stanley’s Discover network. |
| --- | --- |

17.

The application of the Rule to Morgan Stanley would not fall under Article 81(1) EC/Article 53(1) EEA if it were directly related and necessary (proportionate and non-discriminatory) for the proper functioning of Visa’s four-party payment card network. According to Visa such would be the case as its card network would be threatened if Morgan Stanley were not prevented from free-riding on allegedly confidential information to the benefit of Morgan Stanley’s Discover network.

| 18. | However the risk of free-riding is very doubtful as:






  (i) | the owners or shareholders of other payment networks have been admitted as Visa members; and |
| --- | --- | --- |

18.

However the risk of free-riding is very doubtful as:

(i)

the owners or shareholders of other payment networks have been admitted as Visa members; and

| (ii) | information, which Visa claims could not be disclosed to Morgan Stanley because of the alleged risk of free-riding, would in any case be accessible to Morgan Stanley if it were acquiring under a ‘fronting’ arrangement (to which Visa claims to have no objection), or is specific to the Visa Europe Region and therefore not relevant for Discover in the USA, or such information has become industry standard; |
| --- | --- |

(ii)

information, which Visa claims could not be disclosed to Morgan Stanley because of the alleged risk of free-riding, would in any case be accessible to Morgan Stanley if it were acquiring under a ‘fronting’ arrangement (to which Visa claims to have no objection), or is specific to the Visa Europe Region and therefore not relevant for Discover in the USA, or such information has become industry standard;

| (iii) | Morgan Stanley is not a competitor of Visa, i.e. there are no realistic possibilities that Discover expands to the EEA. |
| --- | --- |

(iii)

Morgan Stanley is not a competitor of Visa, i.e. there are no realistic possibilities that Discover expands to the EEA.

| 19. | Furthermore, the application of the Rule to Morgan Stanley was not necessary as (i) less restrictive measures could be used to safeguard Visa’s concerns, such as confidentiality undertakings; and (ii) admission occurred on 22 September 2006 without any explanation as to why the causes of concern Visa had invoked throughout the procedure in order to justify its refusal to admit Morgan Stanley as a member of Visa Europe would have changed. |
| --- | --- |

19.

Furthermore, the application of the Rule to Morgan Stanley was not necessary as (i) less restrictive measures could be used to safeguard Visa’s concerns, such as confidentiality undertakings; and (ii) admission occurred on 22 September 2006 without any explanation as to why the causes of concern Visa had invoked throughout the procedure in order to justify its refusal to admit Morgan Stanley as a member of Visa Europe would have changed.

| 20. | Morgan Stanley was prevented from providing credit and deferred/charge card acquiring services to merchants in the UK and Visa thereby infringed Article 81(1) EC/ Article 53(1) EEA. |
| --- | --- |

20.

Morgan Stanley was prevented from providing credit and deferred/charge card acquiring services to merchants in the UK and Visa thereby infringed Article 81(1) EC/ Article 53(1) EEA.

| 21. | The first three conditions to the legal exception of Article 81(3) EC/Article 53(3) EEA are not fulfilled inter alia because the application of the rule to Morgan Stanley was not necessary to prevent any alleged free-riding. |
| --- | --- |

21.

The first three conditions to the legal exception of Article 81(3) EC/Article 53(3) EEA are not fulfilled inter alia because the application of the rule to Morgan Stanley was not necessary to prevent any alleged free-riding.

IV.   FINES

| 22. | Although the infringement lasted six years and six months (from 22 March 2000, when Visa informed orally Morgan Stanley that it was not eligible for Visa membership and that it refused to supply it with an application form, until 22 September 2006, with the admission of Morgan Stanley as a member of Visa Europe), for the purpose of calculating the amount of the fine the period to be taken into account is the period between 2 August 2004 — date of the Statement of Objections — and 22 September 2006 (3). |
| --- | --- |

22.

Although the infringement lasted six years and six months (from 22 March 2000, when Visa informed orally Morgan Stanley that it was not eligible for Visa membership and that it refused to supply it with an application form, until 22 September 2006, with the admission of Morgan Stanley as a member of Visa Europe), for the purpose of calculating the amount of the fine the period to be taken into account is the period between 2 August 2004 — date of the Statement of Objections — and 22 September 2006 (3).

| 23. | In view of its impact on the market and the size of the relevant geographic market, the infringement is qualified as serious. |
| --- | --- |

23.

In view of its impact on the market and the size of the relevant geographic market, the infringement is qualified as serious.

| 24. | In the present case there are no aggravating or mitigating circumstances. |
| --- | --- |

24.

In the present case there are no aggravating or mitigating circumstances.

| 25. | Taking into account the above considerations, the basic amount of the fine to be imposed in this case should be EUR 10 200 000. |
| --- | --- |

25.

Taking into account the above considerations, the basic amount of the fine to be imposed in this case should be EUR 10 200 000.

V.   DECISION

| 26. | Visa International Service Association and Visa Europe Limited have infringed — the former during the period from 22 March 2000 to 22 September 2006, and the latter from its creation on 1 July 2004 until 22 September 2006 — Article 81 of the Treaty and Article 53 of the EEA Agreement by excluding Morgan Stanley Bank International Limited (formerly Morgan Stanley Dean Witter Bank Limited) from membership of Visa Europe. |
| --- | --- |

26.

Visa International Service Association and Visa Europe Limited have infringed — the former during the period from 22 March 2000 to 22 September 2006, and the latter from its creation on 1 July 2004 until 22 September 2006 — Article 81 of the Treaty and Article 53 of the EEA Agreement by excluding Morgan Stanley Bank International Limited (formerly Morgan Stanley Dean Witter Bank Limited) from membership of Visa Europe.

| 27. | For the infringement referred to above a fine of EUR 10 200 000 is imposed on Visa International Service Association and Visa Europe Limited, for which they are jointly and severally liable. |
| --- | --- |

27.

For the infringement referred to above a fine of EUR 10 200 000 is imposed on Visa International Service Association and Visa Europe Limited, for which they are jointly and severally liable.

---

(1)  OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1).

(2)  The Decision relates to the period between April 2000 (the date on which the complaint was made) and September 2006 (the month in which Morgan Stanley Bank International Limited was admitted to the Visa network). On 1 June 2007, Morgan Stanley announced the spin-off of its credit and payments business division, Discover Financial Services. The credit card business assets in Morgan Stanley Bank International Limited were transferred to Goldfish Bank Limited, a newly incorporated company, on 1 June 2007. Morgan Stanley Card Services Limited changed its name to Goldfish Card Services Limited and became a wholly owned subsidiary of Goldfish Bank Limited in early June 2007. Both entities were spun off from Morgan Stanley on 30 June 2007. Since then Goldfish bank Limited's credit card operations have been sold to Barclays Bank plc and Discover Financial Services has acquired Diners Club International.

(3)  The Rule was notified and covered by immunity from fines until 1 May 2004.

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| 5.8.2009 | EN | Official Journal of the European Union | C 183/9 |
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5.8.2009

EN

Official Journal of the European Union

C 183/9

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Final report of the Hearing Officer in Case COMP/38.606 — Groupement des cartes bancaires

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

2009/C 183/06

The draft decision submitted to the Commission gives rise to a number of comments on the right of the parties to be heard during proceedings initiated under Article 81 of the Treaty.

PROCEDURE

On 11 December 2002, the Groupement des cartes bancaires (GCB) notified the Commission of its plans (implemented on 1 January 2003) for an interbank commission system for its members whose (bank card) issuing activities were significantly less than their (merchant) acquisition activities.

Several requests for information were sent to the banks pursuant to Article 11 of Council Regulation No 17/62. Inspections were carried out in May 2003 at the premises of the GCB and a number of banks pursuant to Article 14(3) of Regulation No 17/62.

A specific feature of this case was that two Statements of Objections were issued, one on 7 July 2004 and another on 17 July 2006.

First Statement of Objections, July 2004

The first Statement of Objections was addressed to the GCB and the following banks: La Poste, BNP Paribas, Confédération Nationale du Crédit Mutuel, Crédit Industriel et Commercial, La Banque Fédérale des Banques Populaires, Natexis Banques Populaires, La Caisse Nationale des Caisses d’Epargne et De Prévoyance, Société Générale and Crédit Lyonnais SA.

Access to the File

On several occasions, the parties held lengthy discussions on the confidentiality of certain documents. I accordingly had to take two decisions under Article 9 of the Hearing Officer's terms of reference refusing the confidential treatment requested by the GCB and La Poste for some documents. After the eight-day period laid down in the terms of reference, the parties decided not to exercise their right of direct appeal to the President of the Court of First Instance, which meant that the documents concerned could be transmitted to all the undertakings involved.

Lastly, the parties all requested access to the record of a meeting held on 29 March 2004 between the Commission and the GCB as paragraph 20 of the Statement of Objections was based on that record. Paragraph 20 of the Statement of Objections states that implementation of the notified measures, if they were anticompetitive, would be likely to constitute an aggravating circumstance, especially if they had an anticompetitive object. This was one of the topics discussed at the meeting of 29 March 2004.

I took the view that this was not an objection that showed whether an offence had been committed but rather an indication that, if the notified measures were found to be anticompetitive, the fact that they had been implemented could constitute an aggravating circumstance when it came to setting any fines.

On my advice, the Directorate-General accordingly sent the parties a summary of the record of the meeting, rather than the full document. The Court has several times expressly recognised that the Commission is not bound to provide such internal records of meetings on the grounds that the institution has to be able to function normally; in other words, the Commission's internal decision-making process has to be protected. I myself verified that the summary was an accurate one.

Time allowed for replying to the Statement of Objections

All the parties made numerous requests for extensions to the deadline. I took account of the fact that there had been a delay in organising the parties’ defence on account of the conditions for accessing the file by CD-ROM and the undertakings were given four months within which to submit their replies to the Statement of Objections.

Interested third parties

I received seven requests from parties wishing to be accepted as interested third parties and requests to take part in any hearing.

After examining the arguments put forward by these parties and after consulting the DG, I decided that they had all shown sufficient interest to be heard as third parties pursuant to Article 27(3) of Council Regulation (EC) No 1/2003 and I accordingly accepted their requests.

The undertakings concerned were given the opportunity to submit their arguments in writing and in person as part of a formal hearing. In accordance with the legislation, these third parties were provided in writing with an ad hoc summary of the nature and subject matter of the proceedings. The following were present at the hearing: the banks Accord and Cofidis, the companies Covefi and CDCK and the consumer associations ADEIC, UFC Que Choisir and BEUC.

Formal hearing of the undertakings

In the presence of the representatives of the national competition authorities that wished to take part, associated Commission departments and Competition DG, and interested third parties admitted to the proceedings.

The hearing took place on 16 and 17 December 2004. I agreed with the legal representatives of the GCB and the banks that they would share the task of presenting their defence against the objections applicable to them all, in order to avoid numerous repetitions and to ensure that the hearing was productive.

The hearing was conducted in an atmosphere of antagonism between the parties and Competition DG.

Following the hearing and the proposal I made to her, Ms Kroes asked that an internal panel within the DG give its opinion on the objections presented to the GCB and the banks, and in particular on the existence and secret nature of an anticompetitive agreement within the meaning of Article 81 of the Treaty, in view of the implications in terms of fines. Following this review of the case, it was decided to abandon this part of the Statement of Objections, in view of the inadequacy of the evidence provided by the DG in the light of the requirements of Community case law.

However, the case was continued with respect to the restrictive nature of the notified agreement (Article 81(1) of the Treaty) and whether it could be exempted (Article 81(3) of the Treaty).

Second Statement of Objections, 17 July 2006

The second Statement of Objections was addressed to the GCB alone. The Commission closed the case against the ‘main’ banks on 19 July 2006.

The GCB replied to this Statement of Objections on 20 October 2006.

Access to the File

The file was made accessible on CD-ROM, without any particular problems arising. However, the GCB stated that the Commission's economic analysis contained numerous errors and that the access to the file that it had been given did not allow it to reply, as certain econometric data were missing. I accordingly decided on 24 October 2006 to provide the GCB with all the data requested.

This meant that the GCB was able to make an additional reply to the Statement of Objections.

Second formal hearing, 13 November 2006

The GCB was heard, and three ‘main’ banks, Paribas, Caisse d'Epargne and Société Générale, attended the hearing as interested third parties (Article 13 of Regulation (EC) No 773/2004). The banks Accord, Monabanq and GE Money Bank also expressed an opinion, as did the consumer association ADEIC (Association de Défense, d'Education et d'Information du Consommateur).

In my view, the draft negative decision submitted to the Commission does not contain any objections other than those mentioned in the second Statement of Objections.

I therefore consider that the right of the undertakings and interested third parties to be heard has been respected in accordance with Articles 10 and 13 of Regulation (EC) No 773/2004.

Brussels, 5 October 2007.

Serge DURANDE

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| 5.8.2009 | EN | Official Journal of the European Union | C 183/12 |
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5.8.2009

EN

Official Journal of the European Union

C 183/12

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Summary of Commission Decision

of 17 October 2008

relating to a proceeding under Article 81 of the EC Treaty

(Case COMP/D1/38.606)

(Notified under document C(2007) 5060 final)

(Only the French text is authentic)

2009/C 183/07

| 1. | On 17 October 2008, the Commission adopted a decision pursuant to Article 81 of the EC Treaty. The Commission herewith publishes the main content of the decision and the name of the undertaking concerned, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the full text of the decision in the authentic language (French) and in English is available on the Directorate-General for Competition’s website at the following address: http://ec.europa.eu/comm/competition/antitrust/cases/index.html |
| --- | --- |

1.

On 17 October 2008, the Commission adopted a decision pursuant to Article 81 of the EC Treaty. The Commission herewith publishes the main content of the decision and the name of the undertaking concerned, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the full text of the decision in the authentic language (French) and in English is available on the Directorate-General for Competition’s website at the following address: http://ec.europa.eu/comm/competition/antitrust/cases/index.html

| 2. | The infringement consisted in a decision by the Groupement des Cartes Bancaires ‘CB’, which introduced a series of pricing measures (1) having the object and effect of restricting competition to the benefit of the large French banks that control the Groupement. By increasing the cost of the cards issued by the new entrants, the measures adopted by the Groupement have in practice the effect of maintaining the price of cards in France above the level that would result from free competition, and of limiting the number of cards supplied at competitive price. |
| --- | --- |

2.

The infringement consisted in a decision by the Groupement des Cartes Bancaires ‘CB’, which introduced a series of pricing measures (1) having the object and effect of restricting competition to the benefit of the large French banks that control the Groupement. By increasing the cost of the cards issued by the new entrants, the measures adopted by the Groupement have in practice the effect of maintaining the price of cards in France above the level that would result from free competition, and of limiting the number of cards supplied at competitive price.

| 3. | In the decision, the Commission examines thoroughly the content of the fee measures to come to the conclusion that they have the object as well as the effects of restricting competition. The intention expressed by the top management of the large banks and of the Groupement during the preparation of the measures constitutes additional evidence (obtained from the inspections of 20 and 21 May 2003) that reinforces the same conclusion (2). |
| --- | --- |

3.

In the decision, the Commission examines thoroughly the content of the fee measures to come to the conclusion that they have the object as well as the effects of restricting competition. The intention expressed by the top management of the large banks and of the Groupement during the preparation of the measures constitutes additional evidence (obtained from the inspections of 20 and 21 May 2003) that reinforces the same conclusion (2).

| 4. | The Commission has examined the prices charged and the number of cards issued by the new members and the large ‘chef de file’ banks. The results confirm that the new entrants targeted by the measures were unable to issue cards at the lower prices they had initially planned to charge (as the measures rendered it impracticable), and that they have not issued as many cards as they had planned before the measures were adopted. The results likewise confirm that the ‘chefs de file’ have not had to lower their prices in response to competitive pressure from the new entrants. |
| --- | --- |

4.

The Commission has examined the prices charged and the number of cards issued by the new members and the large ‘chef de file’ banks. The results confirm that the new entrants targeted by the measures were unable to issue cards at the lower prices they had initially planned to charge (as the measures rendered it impracticable), and that they have not issued as many cards as they had planned before the measures were adopted. The results likewise confirm that the ‘chefs de file’ have not had to lower their prices in response to competitive pressure from the new entrants.

| 5. | In the decision, the Commission also argues in detail against the existence of the alleged ‘free-riding’ by issuers on acquirers. The decision shows that the MERFA does not encourage acquiring, contrary to what the Groupement contends. The acquiring market is almost entirely in the hands of the large ‘chef de file’ banks, and there are very substantial barriers to entry (3). |
| --- | --- |

5.

In the decision, the Commission also argues in detail against the existence of the alleged ‘free-riding’ by issuers on acquirers. The decision shows that the MERFA does not encourage acquiring, contrary to what the Groupement contends. The acquiring market is almost entirely in the hands of the large ‘chef de file’ banks, and there are very substantial barriers to entry (3).

| 6. | The Groupement’s assertion that the conditions of Article 81, paragraph 3, of the EC Treaty would be fulfilled is not supported by evidence. There are no efficiency gains or consumer benefits — rather the contrary. The Groupement’s argument (in connection with the indispensability of the measures) that there would be no other mechanism to balance issuing and acquiring than the MERFA is contradicted by other submissions of the Groupement that the French interchange fees constitute, in addition to a remuneration of services, a mechanism that balances acquiring and issuing. |
| --- | --- |

6.

The Groupement’s assertion that the conditions of Article 81, paragraph 3, of the EC Treaty would be fulfilled is not supported by evidence. There are no efficiency gains or consumer benefits — rather the contrary. The Groupement’s argument (in connection with the indispensability of the measures) that there would be no other mechanism to balance issuing and acquiring than the MERFA is contradicted by other submissions of the Groupement that the French interchange fees constitute, in addition to a remuneration of services, a mechanism that balances acquiring and issuing.

| 7. | The decision does not impose fines as the measures were notified to the European Commission and the Statement of Objections did not foresee any fine. |
| --- | --- |

7.

The decision does not impose fines as the measures were notified to the European Commission and the Statement of Objections did not foresee any fine.

---

(1)  A mechanism for regulating the acquiring function (known from its French initials as the ‘MERFA’), a change in the membership fee for the Groupement, an additional membership fee and a so-called fee for ‘dormant members that wake-up’.

(2)  The large banks that formally adopted the measures in their role of members of the Groupement’s board participated during more than a year in the preparation and calibration of the measures.

(3)  The fixed costs of investment are very high. Moreover, to develop acquiring in the manner required to avoid the MERFA, a bank would need to maintain an overall relationship with a large number of small traders, something that is not possible for online banks and the banking arms of large retailers, because they have no branch network. In addition, the most profitable merchants and the most profitable locations for ATMs are already taken.

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NOTICES FROM MEMBER STATES

| 5.8.2009 | EN | Official Journal of the European Union | C 183/13 |
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5.8.2009

EN

Official Journal of the European Union

C 183/13

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Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1857/2006 on the application of Articles 87 and 88 of the Treaty to State aid to small and medium-sized enterprises active in the production of agricultural products and amending Regulation (EC) No 70/2001

2009/C 183/08

Aid No: XA 112/09

Member State: Belgium

Region: Vlaanderen

Title of aid scheme or name of company receiving individual aid: Vlaamse Rundveeteelt Vereniging vzw

Legal basis: Decreet van 19 december 2008 houdende de algemene uitgavenbegroting van de Vlaamse Gemeenschap voor het begrotingsjaar 2009

Koninklijk besluit van 23 september 1971 betreffende de verbetering van het rundveeras

Ministerieel besluit van 27 februari 1991 betreffende de verbetering van het rundveeras

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: EUR 1,19 million

Maximum aid intensity: Up to 100 % of the administrative costs of establishing and maintaining herd books.

Up to 70 % of the costs of tests performed by or on behalf of third parties to determine the genetic quality or yield of livestock; there is no exemption for aid granted to cover the costs of checks undertaken by the owner of the livestock or of routine checks on milk quality

Date of implementation: Aid may be granted as from 1 May and, at the earliest, 15 days after notification.

Aid can be granted by means of an implementing decree. These decrees are drawn up annually. A draft implementing decree has yet to be drawn up, and will include a ‘standstill’ clause

Duration of scheme or individual aid award: The grant period will run until 31 December 2009

Objective of aid: Vlaamse Rundveevereniging (VRV) is a recognised association which maintains the herd books for various breeds of cattle. It indicates that it will use the aid to pay the administrative costs of establishing and maintaining herd books, entering the birth data and genealogical records in the database, and producing and issuing zootechnical and pedigree certificates.

The VRV also carries out tests to determine the genetic quality or yield of breeding stock. These tests relate to milk production.

The aid is to be granted under Article 16 of Regulation (EC) No 1857/2006 and fulfils the conditions thereof.

Article 16(1)(a): aid at a rate of up to 100 % to cover the administrative costs of the establishment and maintenance of herd books.

Article 16(1)(b): aid at a rate of up to 70 % of the costs of tests performed by or on behalf of third parties, to determine the genetic quality or yield of livestock, with the exception of controls undertaken by the owner of the livestock and routine controls of milk quality

Sector(s) concerned: Livestock

Name and address of the granting authority:

| Departement Landbouw en Visserij |
| --- |
| Duurzame Landbouwontwikkeling |
| Ellips, 6e verdieping |
| Koning Albert II laan 35, bus 40 |
| 1030 Brussel |
| BELGIË |

Departement Landbouw en Visserij

Duurzame Landbouwontwikkeling

Ellips, 6e verdieping

Koning Albert II laan 35, bus 40

1030 Brussel

BELGIË

Website: http://www2.vlaanderen.be/ned/sites/landbouw/info/steun/eu.html

Other information: —

Secretary-General

Jules VAN LIEFFERINGE

Aid No: XA 114/09

Member State: Belgium

Region: Vlaanderen

Title of aid scheme or name of company receiving individual aid: Vlaamse Bedrijfspluimvee- en Konijnenhouders vzw

Legal basis: Decreet van 19 december 2008 houdende de algemene uitgavenbegroting van de Vlaamse Gemeenschap voor het begrotingsjaar 2009

Koninklijk besluit van 2 juni 1998 betreffende de zoötechnische en genealogische voorschriften voor de verbetering en de instandhouding van de pluimvee- en konijnenrassen

Ministerieel besluit van 17 maart 2005 houdende de erkenning en subsidiëring van organisaties in het kader van de aanmoediging en de verbetering van de pluimvee- en konijnenfokkerij

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: EUR 0,01 million

Maximum aid intensity: The maximum aid intensity is 100 % to cover the costs of consultancy services provided by third parties and the fees for services which do not constitute a continuous or periodic activity and do not relate to the enterprise’s usual operating expenditure, such as routine tax consultancy services, regular legal services or advertising

Date of implementation: Aid may be granted as from 1 May and, at the earliest, 15 days after notification.

Aid can be granted by means of an implementing decree. These decrees are drawn up annually. A draft implementing decree has yet to be drawn up, and will include a ‘standstill’ clause

Duration of scheme or individual aid award: The grant period will run until 31 December 2009

Objective of aid: The registered association Vlaamse Bedrijfspluimvee- en Konijnenhouders vzw (VBPKH) has indicated that it will use the aid to provide consultancy services to enterprises active in primary production in the poultry and rabbit sectors with regard to the legislation on the recognition of specialist poultry farms, the performance of rabbit bloodlines and the identification and registration of holdings, poultry diseases and waste.

The aid is to be granted under Article 15 of Regulation (EC) No 1857/2006 and meets the criteria thereof.

Article 15(2)(c): concerning consultancy services provided by third parties, the fees for services which do not constitute a continuous or periodic activity nor relate to the enterprise’s usual operating expenditure, such as routine tax consultancy services, regular legal services or advertising

Sector(s) concerned: Livestock

Name and address of the granting authority:

| Departement Landbouw en Visserij |
| --- |
| Duurzame Landbouwontwikkeling |
| Ellips, 6e verdieping |
| Koning Albert II laan 35, bus 40 |
| 1030 Brussel |
| BELGIË |

Departement Landbouw en Visserij

Duurzame Landbouwontwikkeling

Ellips, 6e verdieping

e

Koning Albert II laan 35, bus 40

1030 Brussel

BELGIË

Website: http://www2.vlaanderen.be/ned/sites/landbouw/info/steun/eu.html

Other information: —

Secretary-General

Jules VAN LIEFFERINGE

Aid No: XA 115/09

Member State: The Netherlands

Region: The Netherlands

Title of aid scheme or name of company receiving individual aid: Wijziging van de Regeling tijdelijke maatregelen dierziekten in verband met de vaccinatie tegen Q-koorts in 2009

Legal basis:

| — | artikel 29, eerste lid, 30, vierde lid, en 45, eerste en derde lid, van de Diergeneesmiddelenwet |
| --- | --- |

—

artikel 29, eerste lid, 30, vierde lid, en 45, eerste en derde lid, van de Diergeneesmiddelenwet

| — | artikel 17 van de Gezondheids- en welzijnswet voor dieren |
| --- | --- |

—

artikel 17 van de Gezondheids- en welzijnswet voor dieren

| — | artikel 3 van het Besluit gebruik sera en entstoffen. |
| --- | --- |

—

artikel 3 van het Besluit gebruik sera en entstoffen.

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: EUR 1,8 million

Maximum aid intensity: 100 %

Date of implementation: As soon as possible after approval by the European Commission. Preferably 15 April 2009

Duration of scheme or individual aid award: Until 1 January 2010

Objective of aid: Prevention of the contagious animal disease Q-fever, as stated in Article 10 of Regulation (EC) No 1857/2006

Sector(s) concerned: Sheep and goat

Name and address of the granting authority:

| Ministerie van Landbouw, Natuur en Voedselkwaliteit |
| --- |
| Postbus 20401 |
| 2500 EK Den Haag |
| NEDERLAND |

Ministerie van Landbouw, Natuur en Voedselkwaliteit

Postbus 20401

2500 EK Den Haag

NEDERLAND

Website: http://www.minlnv.nl/portal/page?_pageid=116,1640461&_dad=portal&_schema

Other information: A large part of the Southern Netherlands has been designated as a vaccination area for Q-fever as a result of this scheme. In this area vacation against Q-fever is compulsory for sheep and goats on large dairy goat and dairy sheep farms with more than 50 adult sheep and goats and on farms serving a public function. Children’s zoos, care farms and zoos are examples of farms serving a public function. Outside the vaccination area vaccination is compulsory for sheep and goats on farms declared to be infected with Q-fever in the terms of the Besluit verdachte dieren (Decree on suspect animals) by the Voedsel en Waren Autoriteit (VWA) (Food and Consumer Product Safety Authority). The vaccination campaign is co-ordinated by the Animal Health Services (GD). The keeper of the animals is responsible for having them vaccinated. However, the vaccine will be administered to the animals by the veterinary surgeon. The vaccine to be used for both compulsory and voluntary vaccination against Q-fever is being provided free of charge and supplied to the veterinary surgeons who are carrying out the vaccination. The administration costs incurred as a result of the compulsory vaccination are also compensated by the authorities. Both forms of aid comply with Article 10 of Regulation (EC) No 1857/2006. The aid is made available to small- and medium-sized enterprises in accordance with this Regulation. The aid is provided in kind in accordance with paragraph 1(b) of the above Article. The fourth paragraph is complied with via the other provisions which already applied in accordance with the scheme for preventing the introduction of Q-fever. The vaccination strategy is part of a national programme to prevent and control Q-fever. Furthermore, Q-fever is an animal disease which appears on the OIE list and therefore the requirements of the seventh paragraph are also met. Article 10(3), (5), (6) and (8) have also been taken into account

Aid No: XA 116/09

Member State: The Netherlands

Region: N/A

Title of aid scheme or name of company receiving individual aid: Regeling LNV-subsidies (omschrijving steun: Modernisering landbouwbedrijven, onderdeel jonge landbouwers)

Legal basis: Ministry of Agriculture, Nature and Food Quality subsidy scheme: Article 1:2, Article 1:3, Article 1:20, Article 2:1, Article 2:2, Article 2:37, Article 2:42, Article 2:44, Article 2:45

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: The aid is financed from the top-up amount (EUR 332,6 million) under measure sheet 121 of the 2007-2013 Rural Development Programme

Maximum aid intensity: 40 % of the expenditure referred to in Article 4(4) of Regulation (EC) No 1857/2006, taking into account the maximum aid amount referred to in Article 4(9) of Regulation (EC) No 1857/2006 (EUR 400 000 per three fiscal years per enterprise).

On the basis of Article 2:45 of the Ministry of Agriculture, Nature and Food Quality subsidy scheme, the recipient of aid, with a view to investment, is to conclude a written loan agreement with a term of at least three years; the aid comprises at most the amount of that loan (subject to a maximum of EUR 100 000)

Date of implementation: As soon as possible, in accordance with Article 20(1) of Regulation No (EC) 1875/2006

Duration of scheme or individual aid award: Until 31 December 2013

Objective of aid: The objective is to encourage investment in improvements and modernisation on holdings, aimed at making production more efficient, producing new or better products and/or increasing the quality and sustainability of production processes and products. This component is aimed solely at young farmers; who in many cases have insufficient financial possibilities for carrying out extra investment in order to keep the enterprise sustainable and viable.

The aid complies with the conditions stipulated in Article 4 of Regulation (EC) No 1857/2006. The eligible costs comprise the costs of investment

Sector(s) concerned: All primary agricultural enterprises producing products referred to in Annex I to the EC Treaty

Name and address of the granting authority:

| Ministerie van Landbouw, Natuur en Voedselkwaliteit |
| --- |
| Postbus 20401 |
| 2500 EK Den Haag |
| NEDERLAND |

Ministerie van Landbouw, Natuur en Voedselkwaliteit

Postbus 20401

2500 EK Den Haag

NEDERLAND

Website: http://www.minlnv.nl/loket

http://wetten.overheid.nl/BWBR0021281/geldigheidsdatum_08-04-2009 > See Article 1:2, Article 1:3, Article 1:20, Article 2:1, Article 2:2, Article 2:37, Article 2:42, Article 2:44 and Article 2:45

Other information: This is a replacement of the top-up amount (EUR 76,60 million) stated in XA 85/07. The new top-up amount, including the top-up amount stated in XA 85/07, is EUR 332,6 million

Aid No: XA 117/09

Member State: The Netherlands

Region: N/A

Title of aid scheme or name of company receiving individual aid: Regeling LNV-subsidies (omschrijving steun: Modernisering landbouwbedrijven, onderdeel verduurzaming land- en tuinbouw)

Legal basis: Ministry of Agriculture, Nature and Food Quality subsidy scheme: Article 1:2, Article 1:3, Article 1:20, Article 2:1, Article 2:2, Article 2:37

Annual expenditure planned under the scheme or overall amount of individual aid granted to the company: The aid is financed from the top-up amount (EUR 332,6 million) under measure sheet 121 of the 2007-2013 Rural Development Programme

Maximum aid intensity: 40 % of the expenditure referred to in Article 4(4) of Regulation (EC) No 1857/2006, taking into account the maximum aid amount referred to in Article 4(9) of Regulation (EC) No 1857/2006 (EUR 400 000 per three fiscal years per enterprise)

Date of implementation: As soon as possible in accordance with Article 20(1) of Regulation (EC) No 1857/2006

Duration of scheme or individual aid award: Until 31 December 2013

Objective of aid: The objective is to encourage investment in improvements and modernisation at enterprises, with a view to improving the quality and sustainability of production processes and products. Investment may also be used to produce new or better products and/or increase production efficiency.

The aid complies with Article 4 of Regulation (EC) No 1857/2006. The eligible costs comprise the costs of investment

Sector(s) concerned: All primary agricultural enterprises producing products referred to in Annex I to the EC Treaty

Name and address of the granting authority:

| Ministerie van Landbouw, Natuur en Voedselkwaliteit |
| --- |
| Postbus 20401 |
| 2500 EK Den Haag |
| NEDERLAND |

Ministerie van Landbouw, Natuur en Voedselkwaliteit

Postbus 20401

2500 EK Den Haag

NEDERLAND

Website: http://www.minlnv.nl/loket

http://wetten.overheid.nl/BWBR0021281/geldigheidsdatum_08-04-2009 > Article 1:2, Article 1:3, Article 1:20, Article 2:1, Article 2:2, Article 2:37

Other information: This is a replacement of the top-up amount (EUR 76,60 million) stated in XA 86/07. The new top-up amount, including the top-up amount stated in XA 86/07, is EUR 332,6 million

---

| 5.8.2009 | EN | Official Journal of the European Union | C 183/18 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/18

---

Extract from the Decision concerning Glitnir banki hf. pursuant to Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions

2009/C 183/09

INVITATION TO LODGE A CLAIM — TIME LIMITS TO BE OBSERVED

Glitnir banki hf., Reg. No 550500-3530, legally domiciled at Kirkjusandur 2, 105 Reykjavík, Iceland, but currently located at Sóltún 26, 105 Reykjavík, Iceland has been granted a moratorium pursuant to a ruling of the Reykjavik District Court until 13 November 2009. On 12 May 2009, the Reykjavík District Court appointed a Winding-Up Board for the bank, which will handle, for instance, claims against the bank while the moratorium is in effect and after winding-up proceedings commence upon the conclusion of the moratorium.

The bank has operated the following branches and offices:

| | a branch in the UK: Glitnir Bank London Branch, last registered address: 41 Lothbury, London EC2R 7HF, United Kingdom; |
| --- | --- |

a branch in the UK: Glitnir Bank London Branch, last registered address: 41 Lothbury, London EC2R 7HF, United Kingdom;

| | a branch in Canada: Glitnir Bank Canadian Branch, last registered address: 1718 Argyle Street, Suite 810, Halifax, Nova Scotia B3J 3N6, Canada, |
| --- | --- |

a branch in Canada: Glitnir Bank Canadian Branch, last registered address: 1718 Argyle Street, Suite 810, Halifax, Nova Scotia B3J 3N6, Canada,

| | a representative office in China: last registered address: Rm 802A, Citigroup Tower, 33 Hua Yuan Shi Qiao Road, Shanghai 200120, People’s Republic of China. |
| --- | --- |

a representative office in China: last registered address: Rm 802A, Citigroup Tower, 33 Hua Yuan Shi Qiao Road, Shanghai 200120, People’s Republic of China.

The reference date is 15 November 2008. The commencement date of claims processing shall be based on the entry into force of Act No 44/2009 and is 22 April 2009.

All parties claiming debts of any sort or other rights against Glitnir banki hf. or assets controlled by the bank, including preferential claims and those secured in re, are hereby invited to submit their claims to the bank’s Winding-Up Board within six months of the first publication of this notice on 26 May 2009. Accordingly the last day to submit claims is 26 November 2009. Submission of claims shall be made by mail to the bank’s Winding-Up Board at Sóltún 26, 105 Reykjavík, Iceland; their contents must comply with the instructions in the second and third paragraph of Article 117 of the Act on Bankruptcy etc., No 21/1991. Creditors are directed to include in their claims submissions the position of the claim as of 22 April 2009.

Claims in foreign currency must be submitted in the currency in question. A creditor from a Member state of the European Economic Area or the European Free Trade Association may submit claims in a language of that State. Such claims submissions must be accompanied by an Icelandic translation; claims may be submitted in English without an accompanying translation. Other creditors may submit their claims in Icelandic or English.

If a claim is not submitted within the above-mentioned time limit it shall be deemed to be null and void, as provided for in Article 118 of the Act on Bankruptcy etc., No 21/1991, unless the exceptions in points 1-6 of the provision apply.

It is specifically reiterated that in submitting a claim, a creditor is deemed to have waived the rights to confidentiality (bank secrecy) with regard to the claim concerned.

A creditors’ meeting will be held on Thursday, 17 December 2009, at 10:00 am at Hilton Hotel Nordica, Suðurlandsbraut 2, 108 Reykjavík, Iceland. Parties who have submitted claims against the bank are entitled to attend the meeting. This meeting will discuss the list of claims lodged and the decision of the Winding-Up Board insofar as it is then available. A list of claims lodged will be accessible to those who have submitted claims against the bank at least one week prior to the above-mentioned meeting.

Further information on submission of claims and handling of claims will be made accessible on the bank’s website: http://www.glitnirbank.com

Reykjavík, 9 July 2009.

Winding-Up Board of Glitnir banki hf.

Steinunn GUðBJARTSDÓTTIR, Supreme Court Attorney

Einar Gautur STEINGRÍMSSON, Supreme Court Attorney

Páll EIRÍKSSON, District Court Attorney

---

| 5.8.2009 | EN | Official Journal of the European Union | C 183/20 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/20

---

Austrian national procedure for the granting of restricted traffic rights

2009/C 183/10

Pursuant to Article 6 of Regulation (EC) No 847/2004 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 of traffic rights among eligible Community air carriers, where the use of these traffic rights is limited by air service agreements with third countries.

FEDERAL LAW GAZETTE

FOR THE REPUBLIC OF AUSTRIA

| Vol. 2008 | Issued 2 July 2008 | Part I |
| --- | --- | --- |
| 96th Federal Act: | International Air Services 2008 (BGzLV 2008) |
| | (National Council: Legislative Period XXIII, Government Bill 538, Committee Report 581, Plenary Meeting 63. Federal Council: Committee Report 7976, Plenary Council 757) |
| 96th Federal Act on International Air Services 2008 (BGzLV 2008) |

Vol. 2008

Issued 2 July 2008

Part I

96th Federal Act:

International Air Services 2008 (BGzLV 2008)

(National Council: Legislative Period XXIII, Government Bill 538, Committee Report 581, Plenary Meeting 63. Federal Council: Committee Report 7976, Plenary Council 757)

96th Federal Act on International Air Services 2008 (BGzLV 2008)

The National Council has resolved:

SECTION 1

General Provisions, Air service agreement

Scope

§ 1.   This Act governs the provision and exercise of air traffic rights:

| 1. | to and from third countries; and |
| --- | --- |

1.

to and from third countries; and

| 2. | within Austria by air carriers from third countries. |
| --- | --- |

2.

within Austria by air carriers from third countries.

Definitions of terms

§ 2.   The following meanings apply for the purposes of this Act:

| 1. | air traffic rights: the right to provide commercial air services to and from third countries; |
| --- | --- |

1.

air traffic rights: the right to provide commercial air services to and from third countries;

| 2. | scheduled air services: regular scheduled air services on specific routes for public transport purposes; |
| --- | --- |

2.

scheduled air services: regular scheduled air services on specific routes for public transport purposes;

| 3. | non-scheduled air services: any other form of commercial transport; |
| --- | --- |

3.

non-scheduled air services: any other form of commercial transport;

| 4. | flight schedule: air services offered by an air carrier during a given transport period; |
| --- | --- |

4.

flight schedule: air services offered by an air carrier during a given transport period;

| 5. | summer scheduling period: the period within a calendar year starting on the last Sunday in March and ending on the last Saturday in October; |
| --- | --- |

5.

summer scheduling period: the period within a calendar year starting on the last Sunday in March and ending on the last Saturday in October;

| 6. | winter scheduling period: the period starting on the last Sunday in October of a calendar year and ending on the last Saturday in March of the following calendar year; |
| --- | --- |

6.

winter scheduling period: the period starting on the last Sunday in October of a calendar year and ending on the last Saturday in March of the following calendar year;

| 7. | scheduling period: summer scheduling period or winter scheduling period; |
| --- | --- |

7.

scheduling period: summer scheduling period or winter scheduling period;

| 8. | third country: a country which is not a Member State of the European Union or not treated as equivalent thereto under an international agreement; |
| --- | --- |

8.

third country: a country which is not a Member State of the European Union or not treated as equivalent thereto under an international agreement;

| 9. | capacity: the available number of seats and payload offered on a commercial transport route during a given period; |
| --- | --- |

9.

capacity: the available number of seats and payload offered on a commercial transport route during a given period;

| 10. | Community air carrier: an air carrier whose operating licence was issued under Council Regulation (EEC) No 2407/92 on licensing of air carriers (OJ L 240, 24.8.1992, pp. 1-7) by a Member State of the European Union or a country treated as equivalent thereto under an international agreement, and |
| --- | --- |

10.

Community air carrier: an air carrier whose operating licence was issued under Council Regulation (EEC) No 2407/92 on licensing of air carriers (OJ L 240, 24.8.1992, pp. 1-7) by a Member State of the European Union or a country treated as equivalent thereto under an international agreement, and

| 11. | Community air carrier with a branch in Austria: an air carrier whose operating licence was issued under Regulation (EEC) No 2407/92 and which exercises an effective and de facto air services activity under standing agreements in Austria, irrespective of the legal status of the branch. |
| --- | --- |

11.

Community air carrier with a branch in Austria: an air carrier whose operating licence was issued under Regulation (EEC) No 2407/92 and which exercises an effective and de facto air services activity under standing agreements in Austria, irrespective of the legal status of the branch.

Negotiation and conclusion of air service agreements

| (1) | Notwithstanding any other relevant statutory provisions, the Federal Government must observe the provisions of this Act when it concludes international agreements with third countries governing air services to and from third countries (air service agreements) which are covered by the scope of this Act. |
| --- | --- |

(1)

Notwithstanding any other relevant statutory provisions, the Federal Government must observe the provisions of this Act when it concludes international agreements with third countries governing air services to and from third countries (air service agreements) which are covered by the scope of this Act.

| (2) | Preparation and negotiation of air service agreements with third countries shall be the responsibility of the Federal Minister for European and International Affairs in consultation with the Federal Minister for Transport, Innovation and Technology. Insofar as the sphere of activity of another Federal Minister is affected in this respect, the latter shall also be consulted. The Federal Minister for European and International Affairs may assign his/her responsibility to the Federal Minister for Transport, Innovation and Technology, in application of § 15 of the current version of the Federal Ministries Act 1986 (Federal Law Gazette No 76/1986). |
| --- | --- |

(2)

Preparation and negotiation of air service agreements with third countries shall be the responsibility of the Federal Minister for European and International Affairs in consultation with the Federal Minister for Transport, Innovation and Technology. Insofar as the sphere of activity of another Federal Minister is affected in this respect, the latter shall also be consulted. The Federal Minister for European and International Affairs may assign his/her responsibility to the Federal Minister for Transport, Innovation and Technology, in application of § 15 of the current version of the Federal Ministries Act 1986 (Federal Law Gazette No 76/1986).

| (3) | Within his/her sphere of activity, the Federal Minister for Transport, Innovation and Technology may prepare, negotiate and conclude administrative agreements and implementing regulations under an air service agreement concluded in accordance with paragraphs 1 and 2. |
| --- | --- |

(3)

Within his/her sphere of activity, the Federal Minister for Transport, Innovation and Technology may prepare, negotiate and conclude administrative agreements and implementing regulations under an air service agreement concluded in accordance with paragraphs 1 and 2.

| (4) | Community air carriers with a branch in Austria and other carriers and institutions affected by the content of the air services negotiations in accordance with paragraph 2 or paragraph 3 may be given the opportunity to participate in those air services negotiations, subject to compliance with the requirements of appropriate conduct of negotiations. The manner of proceeding in this respect shall be non-discriminatory. |
| --- | --- |

(4)

Community air carriers with a branch in Austria and other carriers and institutions affected by the content of the air services negotiations in accordance with paragraph 2 or paragraph 3 may be given the opportunity to participate in those air services negotiations, subject to compliance with the requirements of appropriate conduct of negotiations. The manner of proceeding in this respect shall be non-discriminatory.

Granting of air traffic rights

| (1) | Air service agreements may, in accordance with public interests, establish an obligation to provide the air carriers to be designated by the other State party to the Agreement with the following rights (air traffic rights) in particular in respect of given routes (§ 7):






  1. | the right to overfly the territory of the Federal Republic of Austria without landing; |
| --- | --- | --- |

(1)

Air service agreements may, in accordance with public interests, establish an obligation to provide the air carriers to be designated by the other State party to the Agreement with the following rights (air traffic rights) in particular in respect of given routes (§ 7):

1.

the right to overfly the territory of the Federal Republic of Austria without landing;

| 2. | the right to land in the territory of the Federal Republic of Austria for non-commercial purposes (technical landings); |
| --- | --- |

2.

the right to land in the territory of the Federal Republic of Austria for non-commercial purposes (technical landings);

| 3. | the right to convey passengers, mail and cargo from the other State party to the Agreement to Austria, including points before, between and after, and back; and |
| --- | --- |

3.

the right to convey passengers, mail and cargo from the other State party to the Agreement to Austria, including points before, between and after, and back; and

| 4. | the right to convey passengers, mail and cargo from third countries to Austria, including points before, between and after, and back. |
| --- | --- |

4.

the right to convey passengers, mail and cargo from third countries to Austria, including points before, between and after, and back.

| (2) | When taking into account public interests on granting air traffic rights in accordance with paragraph 1, particular efforts shall be made to ensure that equivalent air traffic rights are granted by the other State party to the Agreement to air carriers to be designated by the Republic of Austria. |
| --- | --- |

(2)

When taking into account public interests on granting air traffic rights in accordance with paragraph 1, particular efforts shall be made to ensure that equivalent air traffic rights are granted by the other State party to the Agreement to air carriers to be designated by the Republic of Austria.

| (3) | An air carrier from a third country may be granted the right in an air service agreement to provide commercial conveyance of passengers, mail and cargo within the Federal Republic of Austria (cabotage), provided that such action is not in conflict with public interests and Community air carriers with a branch in Austria are granted equivalent rights in the State in question. |
| --- | --- |

(3)

An air carrier from a third country may be granted the right in an air service agreement to provide commercial conveyance of passengers, mail and cargo within the Federal Republic of Austria (cabotage), provided that such action is not in conflict with public interests and Community air carriers with a branch in Austria are granted equivalent rights in the State in question.

Matching air traffic supply and demand

§ 5.   Air service agreements may include provisions to the effect that in the exercise of air traffic rights, the air traffic supply is to be adjusted to:

| 1. | the demand for air traffic between Austria and the other State party to the Agreement; |
| --- | --- |

1.

the demand for air traffic between Austria and the other State party to the Agreement;

| 2. | the demand for air traffic between the States party to the Agreement and third countries affected by the route in question; and |
| --- | --- |

2.

the demand for air traffic between the States party to the Agreement and third countries affected by the route in question; and

| 3. | the conditions for cost-effective operation of the air carrier in question. |
| --- | --- |

3.

the conditions for cost-effective operation of the air carrier in question.

Refusal, revocation and restriction of air traffic rights

§ 6.   Air service agreements may include provisions to the effect that the right to exercise air traffic rights must be refused, revoked or restricted, if:

| 1. | the air carrier has violated legal provisions applicable in Austria; or |
| --- | --- |

1.

the air carrier has violated legal provisions applicable in Austria; or

| 2. | the air carrier has violated obligations arising from the air service agreement; or |
| --- | --- |

2.

the air carrier has violated obligations arising from the air service agreement; or

| 3. | it is not proven that the priority title and the de facto power of disposal over an air carrier designated by the other State party to the Agreement accrue to said third country or to a State treated as equivalent thereto under an international agreement, the natural and legal persons of said third country being treated as equivalent to said third country; or |
| --- | --- |

3.

it is not proven that the priority title and the de facto power of disposal over an air carrier designated by the other State party to the Agreement accrue to said third country or to a State treated as equivalent thereto under an international agreement, the natural and legal persons of said third country being treated as equivalent to said third country; or

| 4. | it is not proven that the conditions pursuant to § 11(2) are met in the case of an air carrier designated by Austria. |
| --- | --- |

4.

it is not proven that the conditions pursuant to § 11(2) are met in the case of an air carrier designated by Austria.

Route plans

§ 7.   The routes upon which air traffic rights are to be exercised must be set down in the air service agreement with due consideration for public interests (air route plans). § 4(2) shall apply.

Fee for the use of airports and their facilities and for the provision of air traffic control equipment and services

§ 8.   The air service agreement may provide for payment of a fee in accordance with the principles set down in § 15 of the Convention on International Civil Aviation (Federal Law Gazette No 97/1949) in respect of the use of airports and their facilities and of the provision of air traffic control equipment and services.

Other provisions in the air service agreement

| (1) | In the absence of exclusive competence of the European Community to regulate the matter, the air service agreement may include those other provisions, over and above the content shown in §§ 3 to 8, required for air carriers to exercise their air traffic rights, and for the air service agreement to be applied, appropriately. |
| --- | --- |

(1)

In the absence of exclusive competence of the European Community to regulate the matter, the air service agreement may include those other provisions, over and above the content shown in §§ 3 to 8, required for air carriers to exercise their air traffic rights, and for the air service agreement to be applied, appropriately.

| (2) | Provisions within the meaning of paragraph 1 shall be considered to be those relating in particular to:






  1. | the marketing of air services; |
| --- | --- | --- |

(2)

Provisions within the meaning of paragraph 1 shall be considered to be those relating in particular to:

1.

the marketing of air services;

| 2. | the transfer of income; |
| --- | --- |

2.

the transfer of income;

| 3. | exemption from tax and social security contributions; and |
| --- | --- |

3.

exemption from tax and social security contributions; and

| 4. | consultation and dispute settlement arrangements. |
| --- | --- |

4.

consultation and dispute settlement arrangements.

SECTION 2

Exercising air traffic rights

Register of air traffic rights

| (1) | The Federal Minister for Transport, Innovation and Technology must maintain a register of air traffic rights. This register must include:






  1. | a description of the procedure as per this Act as a basis for the exercise of air traffic rights; |
| --- | --- | --- |

(1)

The Federal Minister for Transport, Innovation and Technology must maintain a register of air traffic rights. This register must include:

1.

a description of the procedure as per this Act as a basis for the exercise of air traffic rights;

| 2. | a register of air traffic rights granted by third countries, inclusive of any restrictions; |
| --- | --- |

2.

a register of air traffic rights granted by third countries, inclusive of any restrictions;

| 3. | a register of planned air service negotiations (§ 3); |
| --- | --- |

3.

a register of planned air service negotiations (§ 3);

| 4. | a register of allocations of restricted air traffic rights as per §§ 15, 16 and 23(4); |
| --- | --- |

4.

a register of allocations of restricted air traffic rights as per §§ 15, 16 and 23(4);

| 5. | a register of revocations of allocations of restricted and not yet reallocated air traffic rights as per § 16; |
| --- | --- |

5.

a register of revocations of allocations of restricted and not yet reallocated air traffic rights as per § 16;

| 6. | any announcements which are to be included in the register on the basis of the procedure for allocating restricted air traffic rights (§§ 15, 16); |
| --- | --- |

6.

any announcements which are to be included in the register on the basis of the procedure for allocating restricted air traffic rights (§§ 15, 16);

| 7. | a register of current licences as per § 12; and |
| --- | --- |

7.

a register of current licences as per § 12; and

| 8. | other information of importance for exercising air traffic rights. |
| --- | --- |

8.

other information of importance for exercising air traffic rights.

| (2) | The register of air traffic rights shall be available for inspection by all Community air carriers and all air carriers and institutions which establish a legitimate interest in obtaining the information contained in the register. |
| --- | --- |

(2)

The register of air traffic rights shall be available for inspection by all Community air carriers and all air carriers and institutions which establish a legitimate interest in obtaining the information contained in the register.

Designation of air carriers

| (1) | If an air service agreement grants the Republic of Austria the right to designate those air carriers which the other State party to the Agreement must permit to exercise air traffic rights, it shall be the responsibility of the Federal Minister for Transport, Innovation and Technology to designate said air carriers. |
| --- | --- |

(1)

If an air service agreement grants the Republic of Austria the right to designate those air carriers which the other State party to the Agreement must permit to exercise air traffic rights, it shall be the responsibility of the Federal Minister for Transport, Innovation and Technology to designate said air carriers.

| (2) | Only Community air carriers may be designated, where appropriate following allocation of restricted air traffic rights as per §§ 15 or 16. Said air carriers must:






  1. | have a branch in Austria, |
| --- | --- | --- |

(2)

Only Community air carriers may be designated, where appropriate following allocation of restricted air traffic rights as per §§ 15 or 16. Said air carriers must:

1.

have a branch in Austria,

| 2. | have at their disposal the necessary technical and financial resources to provide the intended air services; and |
| --- | --- |

2.

have at their disposal the necessary technical and financial resources to provide the intended air services; and

| 3. | also be suited in other respects to performing the functions entailed in providing the intended air services, in particular with regard to marketing the services. |
| --- | --- |

3.

also be suited in other respects to performing the functions entailed in providing the intended air services, in particular with regard to marketing the services.

| (3) | Designation must be effective, at the latest, as from issue of a licence to a Community air carrier with a branch in Austria in accordance with §§ 12, 13 or 14. |
| --- | --- |

(3)

Designation must be effective, at the latest, as from issue of a licence to a Community air carrier with a branch in Austria in accordance with §§ 12, 13 or 14.

| (4) | Designation shall be revoked if:






  1. | the air carrier designated does not fulfil the conditions set down in paragraph 2, or |
| --- | --- | --- |

(4)

Designation shall be revoked if:

1.

the air carrier designated does not fulfil the conditions set down in paragraph 2, or

| 2. | the air carrier does not commence exercising those air traffic rights for which it has been designated within a period of six months or if it ceases to exercise them for a similar period, unless the air carrier is able to provide prima facie evidence to the effect that force majeure militated or is militating against it starting or carrying out operations, or |
| --- | --- |

2.

the air carrier does not commence exercising those air traffic rights for which it has been designated within a period of six months or if it ceases to exercise them for a similar period, unless the air carrier is able to provide prima facie evidence to the effect that force majeure militated or is militating against it starting or carrying out operations, or

| 3. | on the basis of provisions of an air services agreement, such action is necessary for a Community air carrier with a branch in Austria to exercise restricted air traffic rights, where appropriate after a procedure as per §§ 15 or 16 has been conducted. |
| --- | --- |

3.

on the basis of provisions of an air services agreement, such action is necessary for a Community air carrier with a branch in Austria to exercise restricted air traffic rights, where appropriate after a procedure as per §§ 15 or 16 has been conducted.

Commercial air services to and from States with which no air service agreement exists

| (1) | In the absence of a provision to the contrary in international agreements, the Federal Minister for Transport, Innovation and Technology may, on application, license commercial transport of passengers or cargo by scheduled air carrier traffic or non-scheduled traffic to and from States with which no air service agreement exists, if such action is not in conflict with public interests, such as in particular aviation safety interests or interests of the economy at large. |
| --- | --- |

(1)

In the absence of a provision to the contrary in international agreements, the Federal Minister for Transport, Innovation and Technology may, on application, license commercial transport of passengers or cargo by scheduled air carrier traffic or non-scheduled traffic to and from States with which no air service agreement exists, if such action is not in conflict with public interests, such as in particular aviation safety interests or interests of the economy at large.

| (2) | For a licence as per paragraph 1 issued to a Community air carrier, evidence must in any case be provided of compliance with the designation requirements as per § 11(2). In cases where, when granting air traffic rights to Community air carriers with a branch in Austria, the third country concerned applies restrictions, allocation of the restricted air traffic rights concerned must be effected as per §§ 15, 16 or 23(4) to the air carrier concerned. |
| --- | --- |

(2)

For a licence as per paragraph 1 issued to a Community air carrier, evidence must in any case be provided of compliance with the designation requirements as per § 11(2). In cases where, when granting air traffic rights to Community air carriers with a branch in Austria, the third country concerned applies restrictions, allocation of the restricted air traffic rights concerned must be effected as per §§ 15, 16 or 23(4) to the air carrier concerned.

| (3) | For a licence as per paragraph 1 issued to an air carrier from a third country, evidence must in any case be provided that:






  1. | the air carrier concerned is licensed to operate in its home State; and |
| --- | --- | --- |

(3)

For a licence as per paragraph 1 issued to an air carrier from a third country, evidence must in any case be provided that:

1.

the air carrier concerned is licensed to operate in its home State; and

| 2. | Community air carriers with a branch in Austria are licensed in the home State of the air carrier concerned under comparable conditions. |
| --- | --- |

2.

Community air carriers with a branch in Austria are licensed in the home State of the air carrier concerned under comparable conditions.

| (4) | The application for a licence as per paragraph 1 must be submitted at least 30 days, and in the case of an application by a Community air carrier to exercise restricted air traffic rights which currently have not been allocated at least 60 days, prior to the intended date of operation and must include the information set down in § 13(1). If the carrier intends to amend the licensed operation during the period covered by the licence, such amendments must be submitted in writing to the Federal Minister for Transport, Innovation and Technology for approval as per paragraph 1 at least five working days before the date planned for the amendment to the operation. |
| --- | --- |

(4)

The application for a licence as per paragraph 1 must be submitted at least 30 days, and in the case of an application by a Community air carrier to exercise restricted air traffic rights which currently have not been allocated at least 60 days, prior to the intended date of operation and must include the information set down in § 13(1). If the carrier intends to amend the licensed operation during the period covered by the licence, such amendments must be submitted in writing to the Federal Minister for Transport, Innovation and Technology for approval as per paragraph 1 at least five working days before the date planned for the amendment to the operation.

| (5) | Licences as per paragraph 1 shall be issued with provisos, for a fixed term or subject to conditions if such action is in the public interest, in particular in the interests of aviation safety and the economy at large. The licence must however in any case be issued for a fixed term, ending at the end of the respective flight schedule period. |
| --- | --- |

(5)

Licences as per paragraph 1 shall be issued with provisos, for a fixed term or subject to conditions if such action is in the public interest, in particular in the interests of aviation safety and the economy at large. The licence must however in any case be issued for a fixed term, ending at the end of the respective flight schedule period.

| (6) | Licences as per paragraph 1 shall be revoked:






  1. | if one of the conditions on which they were issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or |
| --- | --- | --- |

(6)

Licences as per paragraph 1 shall be revoked:

1.

if one of the conditions on which they were issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or

| 2. | if the air carrier infringes a condition in a licence issued as per paragraph 1. |
| --- | --- |

2.

if the air carrier infringes a condition in a licence issued as per paragraph 1.

| (7) | If required by the third country concerned, prior to the issue of a licence as per paragraph 1 to a Community air carrier, a designation shall be made under the conditions of § 11 and if necessary the designation of another Community air carrier shall be revoked as per § 11(4)(3). |
| --- | --- |

(7)

If required by the third country concerned, prior to the issue of a licence as per paragraph 1 to a Community air carrier, a designation shall be made under the conditions of § 11 and if necessary the designation of another Community air carrier shall be revoked as per § 11(4)(3).

Commercial transport on scheduled air services

| (1) | Air carriers may provide commercial transport to or from third countries on scheduled air services for passengers or cargo (§ 2(2)) only if a licence (flight schedule licence) has been issued by Austro Control GmbH for the flight schedules planned. The application for the flight schedule licence must be submitted in writing at least 30 days, but in the case of an application by a Community air carrier to exercise restricted air traffic rights which currently have not been allocated at least 60 days, prior to the intended date of operation and must include, in addition to the flight schedules to which the application relates:






  1. | details of the aircraft types to be used, showing the seating or freight capacities; |
| --- | --- | --- |

(1)

Air carriers may provide commercial transport to or from third countries on scheduled air services for passengers or cargo (§ 2(2)) only if a licence (flight schedule licence) has been issued by Austro Control GmbH for the flight schedules planned. The application for the flight schedule licence must be submitted in writing at least 30 days, but in the case of an application by a Community air carrier to exercise restricted air traffic rights which currently have not been allocated at least 60 days, prior to the intended date of operation and must include, in addition to the flight schedules to which the application relates:

1.

details of the aircraft types to be used, showing the seating or freight capacities;

| 2. | if the air carrier originates from a third country, the documentary evidence of insurance polices consistent with Regulation (EC) No 785/2004 on insurance requirements for air carriers and aircraft operators (OJ L 138, 30.4.2004, p. 1); and |
| --- | --- |

2.

if the air carrier originates from a third country, the documentary evidence of insurance polices consistent with Regulation (EC) No 785/2004 on insurance requirements for air carriers and aircraft operators (OJ L 138, 30.4.2004, p. 1); and

| 3. | in the case of Community air carriers, information proving that the designation requirements have been fulfilled (§ 11(2)). |
| --- | --- |

3.

in the case of Community air carriers, information proving that the designation requirements have been fulfilled (§ 11(2)).

| (2) | If the carrier intends to amend those details shown in paragraph 1 during the period covered by the licence, such amendments must be submitted to Austro Control GmbH for approval at least five working days before the date planned for the amendment to the operation. |
| --- | --- |

(2)

If the carrier intends to amend those details shown in paragraph 1 during the period covered by the licence, such amendments must be submitted to Austro Control GmbH for approval at least five working days before the date planned for the amendment to the operation.

| (3) | Flight schedule licences may be issued only if, in accordance with the terms and conditions of the applicable air service agreement and the provisions of this Act, the requisite air traffic rights have been obtained and there are no public interests, in particular as regards aviation safety or the economy at large, in conflict therewith. Flight schedule licences shall be issued with provisos, for a fixed term or subject to conditions, if such action is in the public interest, in particular as regards aviation safety or the economy at large. The flight schedule licence must however in any case be issued for a fixed term, ending at the end of the respective flight schedule period. The flight schedule licence must also in any case be issued on condition that operations commence within four weeks of the date on which the licence becomes valid and that, within the period covered by the licence, operation must not cease for longer than two weeks; otherwise, the licence shall lapse unless the air carrier is able to furnish prima facie evidence to the effect that force majeure has militated or is militating against the commencement or continuation of operations. |
| --- | --- |

(3)

Flight schedule licences may be issued only if, in accordance with the terms and conditions of the applicable air service agreement and the provisions of this Act, the requisite air traffic rights have been obtained and there are no public interests, in particular as regards aviation safety or the economy at large, in conflict therewith. Flight schedule licences shall be issued with provisos, for a fixed term or subject to conditions, if such action is in the public interest, in particular as regards aviation safety or the economy at large. The flight schedule licence must however in any case be issued for a fixed term, ending at the end of the respective flight schedule period. The flight schedule licence must also in any case be issued on condition that operations commence within four weeks of the date on which the licence becomes valid and that, within the period covered by the licence, operation must not cease for longer than two weeks; otherwise, the licence shall lapse unless the air carrier is able to furnish prima facie evidence to the effect that force majeure has militated or is militating against the commencement or continuation of operations.

| (4) | Notwithstanding paragraph 3, flight schedule licences may be issued to Community air carriers only if the latter meet the designation requirements as per § 11(2) and, where appropriate, corresponding restricted air traffic rights as per §§ 15, 16 or 23 have been allocated. |
| --- | --- |

(4)

Notwithstanding paragraph 3, flight schedule licences may be issued to Community air carriers only if the latter meet the designation requirements as per § 11(2) and, where appropriate, corresponding restricted air traffic rights as per §§ 15, 16 or 23 have been allocated.

| (5) | Flight schedule licences shall be revoked if:






  1. | one of the conditions upon which the licence was issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or |
| --- | --- | --- |

(5)

Flight schedule licences shall be revoked if:

1.

one of the conditions upon which the licence was issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or

| 2. | the air carrier infringes a condition in the flight schedule licence. |
| --- | --- |

2.

the air carrier infringes a condition in the flight schedule licence.

| (6) | Air carriers from third countries may provide commercial transport on scheduled air services for passengers or cargo (§ 2(2)) within Austrian Federal territory only if a licence has been issued for this purpose by Austro Control GmbH. Paragraphs 1 to 5 shall apply. |
| --- | --- |

(6)

Air carriers from third countries may provide commercial transport on scheduled air services for passengers or cargo (§ 2(2)) within Austrian Federal territory only if a licence has been issued for this purpose by Austro Control GmbH. Paragraphs 1 to 5 shall apply.

Commercial transport on non-scheduled air services

| (1) | Air carriers may provide commercial transport to or from third countries on non-scheduled air services for passengers or cargo only if a licence has been issued for this purpose by Austro Control GmbH. The provisions of § 13 shall apply mutatis mutandis. |
| --- | --- |

(1)

Air carriers may provide commercial transport to or from third countries on non-scheduled air services for passengers or cargo only if a licence has been issued for this purpose by Austro Control GmbH. The provisions of § 13 shall apply mutatis mutandis.

| (2) | Air carriers from third countries may provide commercial transport within the territory of the Federal Republic of Austria on non-scheduled air services (§ 2(3)) only if a licence has been issued for this purpose by Austro Control GmbH. The provisions of § 13 shall apply mutatis mutandis. |
| --- | --- |

(2)

Air carriers from third countries may provide commercial transport within the territory of the Federal Republic of Austria on non-scheduled air services (§ 2(3)) only if a licence has been issued for this purpose by Austro Control GmbH. The provisions of § 13 shall apply mutatis mutandis.

| (3) | Licences as per paragraph 1 or paragraph 2 shall be revoked if:






  1. | one of the conditions upon which they were issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or |
| --- | --- | --- |

(3)

Licences as per paragraph 1 or paragraph 2 shall be revoked if:

1.

one of the conditions upon which they were issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or

| 2. | the air carrier infringes a condition in a licence issued as per paragraph 1 or paragraph 2. |
| --- | --- |

2.

the air carrier infringes a condition in a licence issued as per paragraph 1 or paragraph 2.

| (4) | A licence as per paragraph 1 is not required for:






  1. | flights made in order to fulfil humanitarian obligations or to provide assistance in emergencies; |
| --- | --- | --- |

(4)

A licence as per paragraph 1 is not required for:

1.

flights made in order to fulfil humanitarian obligations or to provide assistance in emergencies;

| 2. | flights by Community air carriers using aircraft with a maximum permissible take-off weight of up to 14 000 kg; and |
| --- | --- |

2.

flights by Community air carriers using aircraft with a maximum permissible take-off weight of up to 14 000 kg; and

| 3. | flights as per § 2 of the Multilateral Agreement on commercial rights in non-scheduled air services in Europe (Multilaterales Abkommen über die kommerziellen Rechte im nichtplanmäßigen Luftverkehr in Europa) (Federal Law Gazette (BGBl.) No 163/1957). |
| --- | --- |

3.

flights as per § 2 of the Multilateral Agreement on commercial rights in non-scheduled air services in Europe (Multilaterales Abkommen über die kommerziellen Rechte im nichtplanmäßigen Luftverkehr in Europa) (Federal Law Gazette (BGBl.) No 163/1957).

Allocation of restricted air traffic rights

| (1) | Where a Community air carrier submits an application as per §§ 12, 13 or 14 which relates to exercising restricted air traffic rights that have currently not been allocated, this application must be forwarded without delay to the Federal Minister for Transport, Innovation and Technology. The Federal Minister for Transport, Innovation and Technology must announce said application by entry in the register of air traffic rights (§ 10). The application of another Community air carrier as per §§ 12, 13 or 14 to exercise the air traffic rights in question, even if it is made after the period stated in § 12(4) or § 13(1) respectively, shall be considered to have been submitted in time provided that it is made within 30 days of the announcement of the first application. |
| --- | --- |

(1)

Where a Community air carrier submits an application as per §§ 12, 13 or 14 which relates to exercising restricted air traffic rights that have currently not been allocated, this application must be forwarded without delay to the Federal Minister for Transport, Innovation and Technology. The Federal Minister for Transport, Innovation and Technology must announce said application by entry in the register of air traffic rights (§ 10). The application of another Community air carrier as per §§ 12, 13 or 14 to exercise the air traffic rights in question, even if it is made after the period stated in § 12(4) or § 13(1) respectively, shall be considered to have been submitted in time provided that it is made within 30 days of the announcement of the first application.

| (2) | If, following the announcement as per paragraph 1, no further Community air carrier submits an application in time as per §§ 12, 13 or 14 to exercise the air traffic rights in question, and provided that the requirements for the licence as per §§ 12, 13 or 14 have been satisfied, the Federal Minister for Transport, Innovation and Technology shall declare by written decision that the air traffic rights in question have been allocated to the Community air carrier which has submitted the application as per paragraph 1. |
| --- | --- |

(2)

If, following the announcement as per paragraph 1, no further Community air carrier submits an application in time as per §§ 12, 13 or 14 to exercise the air traffic rights in question, and provided that the requirements for the licence as per §§ 12, 13 or 14 have been satisfied, the Federal Minister for Transport, Innovation and Technology shall declare by written decision that the air traffic rights in question have been allocated to the Community air carrier which has submitted the application as per paragraph 1.

| (3) | If, following an announcement as per paragraph 1, one or more Community air carriers submit an application in time as per §§ 12, 13 or 14 to exercise the restricted air traffic rights in question, the Federal Minister for Transport, Innovation and Technology must make a choice from the applicants. This selection shall be made upon the basis of a comparison of the applicants in terms of the quality of the air services planned and in respect of the contribution to the promotion of other public interests. The selection procedure as a rule shall result in the granting of all the air traffic rights available on the route concerned to one of the applicants. However, the traffic rights may be allocated between a number of applicants if this promotes the interests referred to in paragraphs 4 and 5 and is justified in commercial terms. |
| --- | --- |

(3)

If, following an announcement as per paragraph 1, one or more Community air carriers submit an application in time as per §§ 12, 13 or 14 to exercise the restricted air traffic rights in question, the Federal Minister for Transport, Innovation and Technology must make a choice from the applicants. This selection shall be made upon the basis of a comparison of the applicants in terms of the quality of the air services planned and in respect of the contribution to the promotion of other public interests. The selection procedure as a rule shall result in the granting of all the air traffic rights available on the route concerned to one of the applicants. However, the traffic rights may be allocated between a number of applicants if this promotes the interests referred to in paragraphs 4 and 5 and is justified in commercial terms.

| (4) | Consideration must be given to the following in particular in the assessment of the quality of the planned air services as per paragraph 3:






  1. | the technical and financial resources of the air carrier to provide the services; |
| --- | --- | --- |

(4)

Consideration must be given to the following in particular in the assessment of the quality of the planned air services as per paragraph 3:

1.

the technical and financial resources of the air carrier to provide the services;

| 2. | the frequency and date on which the air services are provided; |
| --- | --- |

2.

the frequency and date on which the air services are provided;

| 3. | the seating configuration of the aircraft; |
| --- | --- |

3.

the seating configuration of the aircraft;

| 4. | the routes (direct or indirect connection); |
| --- | --- |

4.

the routes (direct or indirect connection);

| 5. | the cost-benefit ratio offered to customers for the services; |
| --- | --- |

5.

the cost-benefit ratio offered to customers for the services;

| 6. | the availability of other transport links at the point of departure and destination; |
| --- | --- |

6.

the availability of other transport links at the point of departure and destination;

| 7. | the anticipated sustainability of the air services; |
| --- | --- |

7.

the anticipated sustainability of the air services;

| 8. | the date on which the provision of air services is to commence; and |
| --- | --- |

8.

the date on which the provision of air services is to commence; and

| 9. | the approach adopted to the different requirements of customers for air services. |
| --- | --- |

9.

the approach adopted to the different requirements of customers for air services.

| (5) | Consideration must be given to the following in particular in the assessment of the contribution made by the planned air services to promoting other public interests as per paragraph 3:






  1. | the contribution to the promotion of the business location, including tourism; |
| --- | --- | --- |

(5)

Consideration must be given to the following in particular in the assessment of the contribution made by the planned air services to promoting other public interests as per paragraph 3:

1.

the contribution to the promotion of the business location, including tourism;

| 2. | the promotion of competition between air service suppliers; and |
| --- | --- |

2.

the promotion of competition between air service suppliers; and

| 3. | aspects of noise protection (comparison of the noise generated by the aircraft used). |
| --- | --- |

3.

aspects of noise protection (comparison of the noise generated by the aircraft used).

| (6) | All air carriers which have submitted an application as per paragraph 1 or paragraph 3 in time are parties to the procedure for the allocation of traffic rights. The Federal Minister must issue a notice in writing specifying the allocation of the restricted air traffic rights. Thereafter, where appropriate, designation or revocation of designation as per § 11(4)(3) respectively must be carried out and a licence issued for the exercise of the air traffic rights as per §§ 12, 13 or 14. |
| --- | --- |

(6)

All air carriers which have submitted an application as per paragraph 1 or paragraph 3 in time are parties to the procedure for the allocation of traffic rights. The Federal Minister must issue a notice in writing specifying the allocation of the restricted air traffic rights. Thereafter, where appropriate, designation or revocation of designation as per § 11(4)(3) respectively must be carried out and a licence issued for the exercise of the air traffic rights as per §§ 12, 13 or 14.

| (7) | The Federal Minister for Transport, Innovation and Technology shall allocate certain currently unallocated restricted air traffic rights in accordance with the provisions below to a Community air carrier even without submission of an application as per §§ 12, 13 or 14, provided that a corresponding application for allocation of these air traffic rights is made at least six months, but no more than 24 months before it intends to commence the exercise thereof. Such an application shall be announced by the Federal Minister for Transport, Innovation and Technology by entry in the register of air traffic rights (§ 10). If, within a period of 30 days from the announcement, no further Community air carrier submits an application for the allocation of the air traffic rights in question, the Federal Minister for Transport, Innovation and Technology shall declare by written decision that the air traffic rights applied for are allocated to the applicant Community air carrier. |
| --- | --- |

(7)

The Federal Minister for Transport, Innovation and Technology shall allocate certain currently unallocated restricted air traffic rights in accordance with the provisions below to a Community air carrier even without submission of an application as per §§ 12, 13 or 14, provided that a corresponding application for allocation of these air traffic rights is made at least six months, but no more than 24 months before it intends to commence the exercise thereof. Such an application shall be announced by the Federal Minister for Transport, Innovation and Technology by entry in the register of air traffic rights (§ 10). If, within a period of 30 days from the announcement, no further Community air carrier submits an application for the allocation of the air traffic rights in question, the Federal Minister for Transport, Innovation and Technology shall declare by written decision that the air traffic rights applied for are allocated to the applicant Community air carrier.

| (8) | If, within a period of 30 days from an announcement as per paragraph 7, one or more Community air carriers apply for allocation of the restricted air traffic rights in question, the Federal Minister for Transport, Innovation and Technology shall conduct a selection procedure to which paragraphs 3 to 6 shall apply mutatis mutandis. |
| --- | --- |

(8)

If, within a period of 30 days from an announcement as per paragraph 7, one or more Community air carriers apply for allocation of the restricted air traffic rights in question, the Federal Minister for Transport, Innovation and Technology shall conduct a selection procedure to which paragraphs 3 to 6 shall apply mutatis mutandis.

| (9) | If the air carrier to which air traffic rights have been allocated as per paragraph 7 or 8 does not yet fulfil all the designation requirements (§ 11(2)) at the time of allocation, evidence that these requirements are satisfied must be provided at the latest by the time of the first licence as per §§ 12, 13 or 14 required to exercise the allocated air traffic rights, failing which the allocation shall be revoked by written decision. |
| --- | --- |

(9)

If the air carrier to which air traffic rights have been allocated as per paragraph 7 or 8 does not yet fulfil all the designation requirements (§ 11(2)) at the time of allocation, evidence that these requirements are satisfied must be provided at the latest by the time of the first licence as per §§ 12, 13 or 14 required to exercise the allocated air traffic rights, failing which the allocation shall be revoked by written decision.

| (10) | With due consideration for the interests referred to in paragraphs 3 to 5, the restricted air traffic rights as per paragraphs 2, 3, 7 and 8 may be allocated with provisos, subject to conditions, without fixed term or for a fixed term of up to five years. Provisos and conditions may in particular entail the requirement to make efficient use of the allocated air traffic rights. The Federal Minister for Transport, Innovation and Technology shall supervise the air carrier concerned for compliance with the provisos and conditions imposed. |
| --- | --- |

(10)

With due consideration for the interests referred to in paragraphs 3 to 5, the restricted air traffic rights as per paragraphs 2, 3, 7 and 8 may be allocated with provisos, subject to conditions, without fixed term or for a fixed term of up to five years. Provisos and conditions may in particular entail the requirement to make efficient use of the allocated air traffic rights. The Federal Minister for Transport, Innovation and Technology shall supervise the air carrier concerned for compliance with the provisos and conditions imposed.

| (11) | Unless expressly stated otherwise, the allocation shall apply in each case only for the type of scheduling period applied for (summer or winter scheduling period). |
| --- | --- |

(11)

Unless expressly stated otherwise, the allocation shall apply in each case only for the type of scheduling period applied for (summer or winter scheduling period).

Revocation of allocation and reallocation of restricted air traffic rights

| (1) | The allocation of restricted air traffic rights as per § 15 shall be revoked if the air carrier:






  1. | infringes provisions of this Act or air services agreements concluded on the basis of this Act; or |
| --- | --- | --- |

(1)

The allocation of restricted air traffic rights as per § 15 shall be revoked if the air carrier:

1.

infringes provisions of this Act or air services agreements concluded on the basis of this Act; or

| 2. | fails to comply with conditions imposed in an allocation decision as per § 15(10); or |
| --- | --- |

2.

fails to comply with conditions imposed in an allocation decision as per § 15(10); or

| 3. | does not commence exercising the allocated air traffic rights within a period of six months of the allocation becoming effective or ceases to exercise those rights for an uninterrupted period of six months, unless the air carrier is able to provide prima facie evidence to the effect that force majeure militated or is militating against it starting operations or continuing to exercise its rights; or |
| --- | --- |

3.

does not commence exercising the allocated air traffic rights within a period of six months of the allocation becoming effective or ceases to exercise those rights for an uninterrupted period of six months, unless the air carrier is able to provide prima facie evidence to the effect that force majeure militated or is militating against it starting operations or continuing to exercise its rights; or

| 4. | no longer satisfies the designation requirements as per § 11(2); or |
| --- | --- |

4.

no longer satisfies the designation requirements as per § 11(2); or

| 5. | advises that no further exercising of the allocated air traffic rights is intended. |
| --- | --- |

5.

advises that no further exercising of the allocated air traffic rights is intended.

| (2) | If the allocation of restricted air traffic rights is revoked as per paragraph 1, on the revocation becoming effective, said rights shall be considered as currently non-allocated restricted air traffic rights. The air traffic rights in question shall be reallocated in accordance with the provisions of § 15. |
| --- | --- |

(2)

If the allocation of restricted air traffic rights is revoked as per paragraph 1, on the revocation becoming effective, said rights shall be considered as currently non-allocated restricted air traffic rights. The air traffic rights in question shall be reallocated in accordance with the provisions of § 15.

| (3) | If restricted air traffic rights are allocated with no fixed term to a Community air carrier by decision as per § 15, the Federal Minister for Transport, Innovation and Technology, after a period of five years from the allocation taking effect, on application by another Community air carrier in accordance with the provisions below, shall reallocate the air traffic rights concerned. An application in this respect for reallocation of restricted air traffic rights shall be submitted at least six months prior to the intended commencement of exercising the air traffic rights in question and shall be announced by the Federal Minister for Transport, Innovation and Technology by entry in the register of air traffic rights (§ 10). The Federal Minister for Transport, Innovation and Technology shall conduct a selection procedure as per § 15(3) to (6) and § 15(10) and (11) and declare a reallocation of the air traffic rights concerned. |
| --- | --- |

(3)

If restricted air traffic rights are allocated with no fixed term to a Community air carrier by decision as per § 15, the Federal Minister for Transport, Innovation and Technology, after a period of five years from the allocation taking effect, on application by another Community air carrier in accordance with the provisions below, shall reallocate the air traffic rights concerned. An application in this respect for reallocation of restricted air traffic rights shall be submitted at least six months prior to the intended commencement of exercising the air traffic rights in question and shall be announced by the Federal Minister for Transport, Innovation and Technology by entry in the register of air traffic rights (§ 10). The Federal Minister for Transport, Innovation and Technology shall conduct a selection procedure as per § 15(3) to (6) and § 15(10) and (11) and declare a reallocation of the air traffic rights concerned.

| (4) | The following shall be parties to the procedure as per paragraph 3:






  1. | the air carrier to which the air traffic rights in question were originally allocated; |
| --- | --- | --- |

(4)

The following shall be parties to the procedure as per paragraph 3:

1.

the air carrier to which the air traffic rights in question were originally allocated;

| 2. | the air carrier which submitted the application for reallocation; and |
| --- | --- |

2.

the air carrier which submitted the application for reallocation; and

| 3. | any other Community air carrier which has also submitted an application for reallocation of the air traffic rights in question within 30 days of the announcement as per paragraph 3. |
| --- | --- |

3.

any other Community air carrier which has also submitted an application for reallocation of the air traffic rights in question within 30 days of the announcement as per paragraph 3.

| (5) | If the air carrier to which the air traffic rights as per paragraphs 3 and 4 are reallocated does not yet fulfil all the designation requirements as per § 11(2) at the time of allocation, evidence that these requirements are satisfied must be provided at the latest on issue of the licence as per §§ 12, 13 or 14 required to exercise the allocated air traffic rights, failing which the allocation shall be revoked by decision. |
| --- | --- |

(5)

If the air carrier to which the air traffic rights as per paragraphs 3 and 4 are reallocated does not yet fulfil all the designation requirements as per § 11(2) at the time of allocation, evidence that these requirements are satisfied must be provided at the latest on issue of the licence as per §§ 12, 13 or 14 required to exercise the allocated air traffic rights, failing which the allocation shall be revoked by decision.

Rates for transport services

| (1) | If necessary to protect public interests, the Federal Minister for Transport, Innovation and Technology shall be entitled to stipulate that the rates for transport services applied by an air carrier which operates air services to or from Austria or within Austria must be submitted for approval. |
| --- | --- |

(1)

If necessary to protect public interests, the Federal Minister for Transport, Innovation and Technology shall be entitled to stipulate that the rates for transport services applied by an air carrier which operates air services to or from Austria or within Austria must be submitted for approval.

| (2) | The rates for transport services must be drawn up in accordance with those international principles generally applied for the purpose, including, where appropriate, Regulation (EEC) No 2409/92 (OJ L 240, 24.8.1992, pp. 15-17). |
| --- | --- |

(2)

The rates for transport services must be drawn up in accordance with those international principles generally applied for the purpose, including, where appropriate, Regulation (EEC) No 2409/92 (OJ L 240, 24.8.1992, pp. 15-17).

| (3) | Approval as per paragraph 1 shall be deemed to have been issued unless it is refused within three weeks of the application being received. |
| --- | --- |

(3)

Approval as per paragraph 1 shall be deemed to have been issued unless it is refused within three weeks of the application being received.

Sales organisation

| (1) | If carriers with a branch in Austria require a similar licence in the third country in question, the Federal Minister for Transport, Innovation and Technology shall be entitled to stipulate that those air carriers designated by third countries shall require a licence before they can exercise a commercial activity, such as in particular offering and selling air tickets in their own city office or by means of agents. No such measure may be implemented until the dispute settlement arrangements in the current version of the Agreement on the establishment of the World Trade Organisation (WTO Agreement) (Federal Law Gazette (BGBl.) No 1/1995) or in the air service agreement have been exhausted. |
| --- | --- |

(1)

If carriers with a branch in Austria require a similar licence in the third country in question, the Federal Minister for Transport, Innovation and Technology shall be entitled to stipulate that those air carriers designated by third countries shall require a licence before they can exercise a commercial activity, such as in particular offering and selling air tickets in their own city office or by means of agents. No such measure may be implemented until the dispute settlement arrangements in the current version of the Agreement on the establishment of the World Trade Organisation (WTO Agreement) (Federal Law Gazette (BGBl.) No 1/1995) or in the air service agreement have been exhausted.

| (2) | The licence as per paragraph 1 must be issued upon application, if:






  1. | the air carrier has an operating licence in its home State; |
| --- | --- | --- |

(2)

The licence as per paragraph 1 must be issued upon application, if:

1.

the air carrier has an operating licence in its home State;

| 2. | there are no public interests, in particular the interests of the economy at large, militating against it; |
| --- | --- |

2.

there are no public interests, in particular the interests of the economy at large, militating against it;

| 3. | those air carriers designated by Austria are permitted to perform de facto those activities specified in para. 1 without impediment in the relevant other State; and |
| --- | --- |

3.

those air carriers designated by Austria are permitted to perform de facto those activities specified in para. 1 without impediment in the relevant other State; and

| 4. | Austria does not have any obligations under international law militating against it. |
| --- | --- |

4.

Austria does not have any obligations under international law militating against it.

| (3) | Licences as per paragraph 1 shall be issued with provisos, for a fixed term or subject to conditions, if and to the extent that such action is necessary in the public interest, in particular in the interest of the economy at large, and in any case only to the extent and on the conditions under which air carriers designated by Austria are actually enabled to perform those activities in the relevant other State. |
| --- | --- |

(3)

Licences as per paragraph 1 shall be issued with provisos, for a fixed term or subject to conditions, if and to the extent that such action is necessary in the public interest, in particular in the interest of the economy at large, and in any case only to the extent and on the conditions under which air carriers designated by Austria are actually enabled to perform those activities in the relevant other State.

| (4) | The licence as per paragraph 1 shall be revoked:






  1. | if one of the conditions on which it was issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or |
| --- | --- | --- |

(4)

The licence as per paragraph 1 shall be revoked:

1.

if one of the conditions on which it was issued is no longer satisfied or was not satisfied as at the date upon which the licence was issued and this defect still prevails; or

| 2. | if the air carrier infringes a condition in a licence issued as per paragraph 1. |
| --- | --- |

2.

if the air carrier infringes a condition in a licence issued as per paragraph 1.

SECTION 3

Procedural and concluding provisions

Regulation

§19.   The Federal Minister for Transport, Innovation and Technology shall be entitled, in the interests of aviation safety or, where it is in the interests of air services policy or of the economy at large, with due consideration for developments in international air services, to issue regulations specifying the detailed conditions for:

| 1. | installation and operation of the register of air traffic rights (§ 10); |
| --- | --- |

1.

installation and operation of the register of air traffic rights (§ 10);

| 2. | licences for air carriers from third countries with which no air service agreement exists (§ 12); |
| --- | --- |

2.

licences for air carriers from third countries with which no air service agreement exists (§ 12);

| 3. | issue of flight schedule licences (§ 13); |
| --- | --- |

3.

issue of flight schedule licences (§ 13);

| 4. | issue of licences for commercial transport to and from third countries in non-scheduled air services (§ 14); |
| --- | --- |

4.

issue of licences for commercial transport to and from third countries in non-scheduled air services (§ 14);

| 5. | the procedure for the allocation of restricted air traffic rights (§§ 15, 16); |
| --- | --- |

5.

the procedure for the allocation of restricted air traffic rights (§§ 15, 16);

| 6. | the rates for transport services (§ 16); and |
| --- | --- |

6.

the rates for transport services (§ 16); and

| 7. | the issue of licences to sales organisations (§ 17). |
| --- | --- |

7.

the issue of licences to sales organisations (§ 17).

Supreme authority and review

§ 20.   If, during the implementation of this Act, competence is accorded to Austro Control GmbH, the Federal Minister for Transport, Innovation and Technology shall in such cases be the supreme authority to be taken into consideration and shall be the immediately superior level of review.

Penalties

| (1) | Any party which:






  1. | operates commercial flights without the licences required under this Act; or |
| --- | --- | --- |

(1)

Any party which:

1.

operates commercial flights without the licences required under this Act; or

| 2. | draws up rates for transport services contrary to a stipulation as per § 17; or |
| --- | --- |

2.

draws up rates for transport services contrary to a stipulation as per § 17; or

| 3. | offers or sells air tickets contrary to a stipulation as per § 18, |
| --- | --- |

3.

offers or sells air tickets contrary to a stipulation as per § 18,

shall be deemed to have committed an administrative offence and shall be subject to a penalty in the form of a fine from the regional administrative authority of up to EUR 5 000 and of up to EUR 10 000 in the event of recurrence.

| (2) | By way of derogation from § 27(2) of the Property Tax Act (VStG), local competence shall rest:






  1. | for carriers with a branch in Austria at the location of the branch or for carriers with several branches at the location of the principal branch in Austria; |
| --- | --- | --- |

(2)

By way of derogation from § 27(2) of the Property Tax Act (VStG), local competence shall rest:

1.

for carriers with a branch in Austria at the location of the branch or for carriers with several branches at the location of the principal branch in Austria;

| 2. | for carriers without a branch in Austria which operate commercial flights without the licences required under this Act, at the departure or destination points in Austria for these flights. |
| --- | --- |

2.

for carriers without a branch in Austria which operate commercial flights without the licences required under this Act, at the departure or destination points in Austria for these flights.

Agent for the purpose of accepting service

§ 22.   Decisions taken on the basis of this Act can be validly served on a representative of the air carrier concerned. Representatives of the air carrier shall include in particular employees of a branch of the carrier in Austria or responsible pilots of aircraft used by the carrier concerned.

Entry into force and transitional provisions

| (1) | This Act shall enter into force on 1 November 2008. |
| --- | --- |

(1)

This Act shall enter into force on 1 November 2008.

| (2) | When this Act enters into force, the Act on international air services (BGzLV 1997) (Federal Law Gazette (BGBl.) I, No 101/1997) shall cease to apply. |
| --- | --- |

(2)

When this Act enters into force, the Act on international air services (BGzLV 1997) (Federal Law Gazette (BGBl.) I, No 101/1997) shall cease to apply.

| (3) | Air service agreements and administrative agreements valid and licences issued on the basis of the 1997 Act on international air services at 31 October 2008 shall remain unaffected. |
| --- | --- |

(3)

Air service agreements and administrative agreements valid and licences issued on the basis of the 1997 Act on international air services at 31 October 2008 shall remain unaffected.

| (4) | Restricted air traffic rights which were exercised in accordance with the provisions of the 1997 Federal Act on international air services during the period between 1 November 2003 and 31 October 2008 by a Community air carrier with a branch in Austria shall be considered as of 1 November 2008 to have been allocated without fixed term to the air carrier in question as per § 15 subject to a possible revocation or to a possible reallocation as per § 16. |
| --- | --- |

(4)

Restricted air traffic rights which were exercised in accordance with the provisions of the 1997 Federal Act on international air services during the period between 1 November 2003 and 31 October 2008 by a Community air carrier with a branch in Austria shall be considered as of 1 November 2008 to have been allocated without fixed term to the air carrier in question as per § 15 subject to a possible revocation or to a possible reallocation as per § 16.

Implementation

| (1) | Unless otherwise provided in paragraph 2, the Federal Minister for Transport, Innovation and Technology shall be entrusted with the implementation of this Act. |
| --- | --- |

(1)

Unless otherwise provided in paragraph 2, the Federal Minister for Transport, Innovation and Technology shall be entrusted with the implementation of this Act.

| (2) | The Federal Government shall be entrusted with the implementation of § 3 to 9. |
| --- | --- |

(2)

The Federal Government shall be entrusted with the implementation of § 3 to 9.

FISCHER

GUSENBAUER

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V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

| 5.8.2009 | EN | Official Journal of the European Union | C 183/32 |
| --- | --- | --- | --- |

5.8.2009

EN

Official Journal of the European Union

C 183/32

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Prior notification of a concentration

(Case COMP/M.5529 — Oracle/Sun Microsystems)

(Text with EEA relevance)

2009/C 183/11

| 1. | On 30 July 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Oracle Corporation (‘Oracle’, USA) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Sun Microsystems, Inc. (‘Sun’, USA) by way of purchase of shares. |
| --- | --- |

1.

On 30 July 2009, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Oracle Corporation (‘Oracle’, USA) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Sun Microsystems, Inc. (‘Sun’, USA) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for Oracle: development, manufacture and distribution of enterprise software, including middleware, database software and enterprise applications software and related services, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Oracle: development, manufacture and distribution of enterprise software, including middleware, database software and enterprise applications software and related services,

| — | for Sun: standards-based computing infrastructure, including enterprise computing systems, software and storage. |
| --- | --- |

—

for Sun: standards-based computing infrastructure, including enterprise computing systems, software and storage.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301 or 22967244) or by post, under reference number COMP/M.5529 — Oracle/Sun Microsystems, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301 or 22967244) or by post, under reference number COMP/M.5529 — Oracle/Sun Microsystems, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 24, 29.1.2004, p. 1.

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5.8.2009

| 5.8.2009 | EN | Official Journal of the European Union | C 183/s3 |
| --- | --- | --- | --- |

EN

Official Journal of the European Union

C 183/s3

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NOTICE

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