1992R2408 — EN — 01.01.1995 — 001.001 — 1
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►B COUNCILREGULATION(EEC)No2408/92
of23July1992
onaccessforCommunityaircarriers tointra-Communityairroutes
(OJ L 240, 24.8.1992, p. 8)
Amended by:
Official Journal
No page date
►A1Act of Accession of Austria, Sweden and Finland C 241 21 29.8.1994
(adapted by Council Decision 95/1/EC, Euratom, ECSC) L 1 1 1.1.1995
▼B
COUNCILREGULATION(EEC)No2408/92
of23July1992
on access for Community air carriers to intra-Community air
routes
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 84 (2) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Economic and Social
Committee(3),
Whereas it is important to establish an air transport policy for the
internal market over a period expiring on 31 December 1992 asprovided for in Article 8a of the Treaty;
Whereas the internal market shall comprise an area without internal
frontiers in which the free movement of goods, persons, services and
capital isens ured;
WhereasCouncil Decis ion 87/602/EEC of 14 December 1987 on the
sharing of passenger capacity between air carriers on scheduled airservices between Member States and on access for air carriers to sched-
uled air service routes between Member States(
4) and Council
Regulation (EEC) No 2343/90 of 24 July 1990 on access for aircarriers to scheduled intra-Community air service routes and on thesharing of passenger capacity between air carriers on scheduled airservices between Member States(
5) constitute the first steps towards
achieving the internal market in respect of access for Community air
carriers to schedules intra-Community air routes;
WhereasRegulation (EEC) No 2343/90 providesthat the Council s hall
decide on the revision of that Regulation by 30 June 1992 at the latest;
Whereasin Regulation (EEC) No 2343/90 the Council decided to adopt
rulesgoverning route licens ing for implementation not later than 1 July
1992;
Whereasin Regulation (EEC) No 2343/90 the Council decided to
abolish capacity restrictions between Member States by 1 January1993;
Whereasin Regulation (EEC) No 2343/90 the Council confirmed that
cabotage traffic rightsare an integral part of the internal market;
Whereasarrangementsfor greater cooperation over the us e of Gibraltar
airport were agreed in London on 2 December 1987 by the Kingdom ofSpain and the United Kingdom in a joint declaration by the Ministers
of Foreign Affairs of the two countries, and such arrangements have
yet to come into operation;
Whereas the development of the air traffic system in the Greek islands
and in the Atlantic islands comprising the autonomous region of theAzores is at present inadequate and for this reason airports situated onthese islands should be temporarily exempted from the application of
thisRegulation;
Whereas it is necessary to abolish restrictions concerning multiple
designation and fifth-freedom traffic rights and phase in cabotage rightsin order to stimulate the development of the Community air transportsector and improve services for users;1992R2408 — EN — 01.01.1995 — 001.001 — 2
(1) OJ No C 258, 4. 10. 1991, p. 2.
(2) OJ No C 125, 18. 5. 1992, p. 146.
(3) OJ No C 169, 6. 7. 1992, p. 15.
(4) OJ No L 374, 31. 12. 1987, p. 19.
(5) OJ No L 217, 11. 8. 1990, p. 8.
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Whereas it is necessary to make special provision, under limited
circumstances, for public service obligations necessary for the mainte-nance of adequate air services to national regions;
Whereas it is necessary to make special provision for new air services
between regional airports;
Whereas for air transport planning purposes it is necessary to give
Member States the right to establish non-discriminatory rules for thedistribution of air traffic between airports within the same airport
system;
Whereas the exercise of traffic rights has to be consistent with opera-
tional rulesrelating to s afety, protection of the environment andconditionsconcerning airport acces sand hasto be treated withoutdiscrimination;
Whereas, taking into account problems of congestion or environmental
problems, it is necessary to include the possibility of imposing certain
limitations on the exercise of traffic rights;
Whereas, taking into account the competitive market situation, provi-
sion should be made to prevent unjustifiable economic effects on aircarriers;
Whereas it is necessary to specify the duties of Member States and air
carriers for the purposes of providing necessary information;
Whereas it is appropriate to ensure identical assessment and evaluation
of market access for the same types of air services;
Whereasit isappropriate to deal with all mattersof market acces sin
the same Regulation;
WhereasthisRegulation partially replacesRegulation (EEC) No 2343/
90 and Council Regulation (EEC) No 294/91 of 4 February 1991 onthe operation of air cargo services between Member States(
1),
HAS ADOPTED THIS REGULATION:
Article 1
1. ThisRegulation concernsacces sto routeswithin the Community
for scheduled and non-scheduled air services.
2. The application of thisRegulation to the airport of Gibraltar is
understood to be without prejudice to the respective legal positions ofthe Kingdom of Spain and the United Kingdom with regard to thedispute over sovereignty over the territory in which the airport is situ-ated.
3. Application of the provisions of this Regulation to Gibraltar
airport shall be suspended until the arrangements in the joint declara-
tion made by the Foreign Ministers of the Kingdom of Spain and theUnited Kingdom on 2 December 1987 have come into operation. TheGovernmentsof Spain and the United Kingdom will s o inform theCouncil on that date.
4. Airports in the Greek islands and in the Altantic islands
comprising the autonomous region of the Azores shall be exemptedfrom the application of thisRegulation until 30 June 1993. Unles sotherwise decided by the Council, on a proposal from the Commission,thisexemption s hall apply for a further period of five yearsand may becontinued for five yearsthereafter.1992R2408 — EN — 01.01.1995 — 001.001 — 3
(1) OJ No L 36, 8. 2. 1991, p. 1.
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Article 2
For the purposes of this Regulation:
(a) ‘air carrier’ meansan air trans port undertaking with a valid oper-
ating licence;
(b) ‘Community air carrier’ meansan air carrier with a valid operating
licence granted by a Member State in accordance with CouncilRegulation (EEC) No 2407/92 of 23 July 1992 of licensing of aircarriers(
1);
(c) ‘air service’ means a flight or a series of flights carrying passen-
gers, cargo and/or mail for remuneration and/or hire;
(d) ‘scheduled air service’ means a series of flights possessing all the
following characteristics:
(i) it is performed by aircraft for the transport of passengers,
cargo and/or mail for remuneration, in such a manner that oneach flight seats are available for individual purchase bymembersof the public (either directly from the air carrier offrom itsauthorized agents );
(ii) it is operated so as to serve traffic between the same two or
more airports, either:
1. according to a published timetable; or
2. with flights so regular or frequent that they constitute a
recognizably systematic series;
(e) ‘flight’ means a departure from a specified airport towards a speci-
fied destination airport;
(f) ‘traffic right’ means the right of an air carrier to carry passengers,
cargo and/or mail on an air service between tow Communityairports;
(g) ‘seat-only sales’ means the sale of seats, without any other service
bundled, such as accommodation, directly to the public by the aircarrier or itsauthorized agent or a charterer;
(h) ‘Member State(s) concerned’ means the Member State(s) between
or within which an air service is operated;
(i) ‘Member State(s) involved’ means the Member State(s) concerned
and the Member State(s) where the air carrier(s) operating the airservice is (are) licensed;
(j) ‘State of registration’ means the Member State in which the
licence referred to in (b) isgranted;
(k) ‘airport’ meansany area in a Member State which isopen for
commercial air transport operations;
(l) ‘regional airport’ meansany airport other than one lis ted in Annex
I asa category 1 airport;
(m) ‘airport system’ means two or more airports grouped together as
serving the same city or conurbation, as indicated in Annex II;
(n) ‘capacity’ meansthe number of s eatsoffered to the general public
on a scheduled air service over a given period;
(o) ‘public service obligation’ means any obligation imposed upon an
air carrier to take, in respect of any route which it is licensed to
operate by a Member State, all necessary measures to ensure theprovision of a service satisfying fixed standards of continuity,regularity, capacity and pricing, which standards the air carrierwould not assume if it were solely considering its commercialinterest.1992R2408 — EN — 01.01.1995 — 001.001 — 4
(1) See page 1 of thisOfficial Journal.
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Article 3
1. Subject to thisRegulation, Community air carrierss hall be
permitted by the Member State(s) concerned to exercise traffic rights
on routeswithin the Community.
2. Notwithstanding paragraph 1, before 1 April 1997 a Member
State shall not be required to authorize cabotage traffic rights withinitsterritory by Community air carrierslicens ed by another MemberState, unless:
(i) the traffic rights are exercised on a service which constitutes and is
scheduled as an extension of a service from, or as a preliminary of
a service to, the State or registration of the carrier;
(ii) the air carrier does not use, for the cabotage service, more than
50 % of its seasonal capacity on the same service of which thecabotage service constitutes the extension or the preliminary.
3. An air carrier operating cabotage services in accordance with
paragraph 2 shall furnish on request to the Member State(s) involvedall information necessary for the implementation of the provisions of
that paragraph.
4. Notwithstanding paragraph 1, before 1 April 1997 a Member
State may, without discrimination on grounds of nationality of owner-ship and air carrier identity, whether incumbent or applicant on theroutesconcerned, regulate acces sto routeswithin itsterritory for aircarrierslicens ed by it in accordance with Regulation (EEC) No 2407/92 while otherwise not prejudging Community law and, in particular,
competition rules.
Article 4
1. (a) A Member State, following consultations with the other Member
States concerned and after having informed the Commission and
air carriers operating on the route, may impose a public serviceobligation in respect of scheduled air services to an airportserving a peripheral or development region in its territory or ona thin route to any regional airport in itsterritory, any s uch route
being considered vital for the economic development of the
region in which the airport is located, to the extent necessary toensure on that route the adequate provision of scheduled airservices satisfying fixed standards of continuity, regularity,capacity and pricing, which standards air carriers would notassume if they were solely considering their commercial interest.
The Commission shall publish the existence of this public
service obligation in the Official Journal of the European
Communities .
(b) The adequacy of scheduled air services shall be assessed by the
Member Stateshaving regard to:
(i) the public interest;
(ii) the possibility, in particular for island regions, of having
recourse to other forms of transport and the ability of suchforms to meet the transport needs under consideration;
(iii) the air fares and conditions which can be quoted to users;
(iv) the combined effect of all air carriersoperating or intending
to operate on the route.
(c) In instances where other forms of transport cannot ensure an
adequate and uninterrupted service, the Member States
concerned may include in the public service obligation the
requirement that any air carrier intending to operate the routegivesa guarantee that it will operate the route for a certainperiod, to be specified, in accordance with the other terms ofthe public service obligation.
(d) If no air carrier hascommenced or isabout the commence
scheduled air services on a route in accordance with the publicservice obligation which has been imposed on that route, thenthe Member State may limit access to that route to only one aircarrier for a period of up to three years, after which the situation1992R2408 — EN — 01.01.1995 — 001.001 — 5
▼B
shall be reviewed. The right to operate such services shall be
offered by public tender either singly or for a group of suchroutesto any Community air carrier entitled to operate s uch air
services. The invitation to tender shall be published in the Offi-
cial Journal of the European Communities and the deadline for
submission of tenders not be earlier than one month after theday of publication. The submissions made by air carriers shallforthwith be communicated to the other Member States
concerned and to the Commission.
(e) The invitation to tender and subsequent contract shall cover,
inter alia , the following points:
(i) the standards required by the public service obligation;
(ii) rulesconcerning amendment and termination of the
contract, in particular to take account of unforeseeablechanges;
(iii) the period of validity of the contract;
(iv) penaltiesin the event of failure to comply with the contract.
(f) The selection among the submissions shall be made as soon as
possible taking into consideration the adequacy of the service,including the pricesand conditionswhich can be quoted to
users, and the cost of the compensation required from the
Member State(s) concerned, if any.
(g) Notwithstanding subparagraph (f), a period of two months shall
elapse after the deadline for submission of tenders before any
selection is made, in order to permit other Member States to
submit comments.
(h) A Member State may reimburse an air carrier, which has been
selected under subparagraph (f), for satisfying standards required
by a public service obligation imposed under this paragraph;
such reimbursement shall take into account the costs andrevenue generated by the service.
(i) Member States shall take the measures necessary to ensure that
any decision taken under this Article can be reviewed effectively
and, in particular, as soon as possible on the grounds that suchdecisions have infringed Community law or national rulesimplementing that law.
(j) When a public service obligation has been imposed in accor-
dance with subparagraphs (a) and (c) then air carriers shall beable to offer seat-only sales only if the air service in questionmeetsall the requirementsof the public s ervice obligation.Consequently that air service shall be considered as a scheduledair service.
(k) Subparagraph (d) shall not apply in any case in which another
Member State concerned proposes a satisfactory alternativemeans of fulfilling the same public service obligation.
2. Paragraph 1 (d) shall not apply to routes where other forms of
transport can ensure an adequate and uninterrupted service when the
capacity offered exceeds30 000 s eatsper year.
3. At the request of a Member State which considers that the devel-
opment of a route isbeing unduly res tricted by the termsof paragraph1, or on its own initiative, the Commission shall carry out an investiga-tion and within two months of receipt of the request shall take adecision on the basis of all relevant factors on whether paragraph 1
shall continue to apply in respect of the route concerned.
4. The Commission shall communicate its decision to the Council
and to the Member States. Any Member State may refer the Commis-sion's decision to the Council within a time limit of one month. TheCouncil, acting by a qualified majority, may take a different decisionwithin a period of one month.1992R2408 — EN — 01.01.1995 — 001.001 — 6
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Article 5
On domestic routes for which at the time of entry into force of this
Regulation an exclusive concession has been granted by law or
contract, and where other forms of transport cannot ensure an adequate
and uninterrupted service, such a concession may continue until itsexpiry date or for three years, whichever deadline comes first.
Article 6
1. Notwithstanding Article 3, a Member State may, where one of the
air carriers licensed by it has started to operate a scheduled passengerair service with aircraft of no more than 80 seats on a new route
between regional airportswhere the capacity doesnot exceed 30 000
seats per year, refuse a scheduled air service by another air carrier fora period of two years, unless it is operated with aircraft of not morethan 80 seats, or it is operated in such a way that not more than 80seats are available for sale between the two airports in question oneach flight.
2. Article 4 (3) and (4) shall apply in relation to paragraph 1 of this
Article.
Article 7
In operating air services, a Community air carrier shall be permitted by
the Member State(s) concerned to combine air services and use thesame flight number.
Article 8
1. ThisRegulation s hall not affect a Member State'sright to regulate
without discrimination on grounds of nationality or identity of the aircarrier, the distribution of traffic between the airports within an airport
system.
2. The exercise of traffic rights shall be subject to published
Community, national, regional or local operational rulesrelating tosafety, the protection of the environment and the allocation of slots.
3. At the request of a Member State or on its own initiative the
Commision shall examine the application of paragraphs 1 and 2 and,
within one month of receipt of a request and after consulting the
Committee referred to in Article 11, decide whether the Member Statemay continue to apply the measure. The Commission shall communi-cate its decision to the Council and to the Member States.
4. Any Member State may refer the Commission's decision to the
Council within a time limit of one month. The Council, acting by a
qualified majority, may in exceptional circumstances take a different
decision within a period of one month.
5. When a Member State decides to constitute a new airport system
or modify an existing one it shall inform the other Member States andthe Commission. After having verified that the airports are groupedtogether as serving the same city or conurbation the Commission shall
publish a revised Annex II in the Official Journal of the European
Communities .
Article 9
1. When serious congestion and/or environmental problems exist the
Member State responsible may, subject to this Article, impose condi-tions on, limit or refuse the exercise of traffic rights, in particularwhen other modes of transport can provide satisfactory levels ofservice.
2. Action taken by a Member State in accordance with paragraph 1
shall:
— be non-discriminatory on grounds of nationality or identity of air
carriers,1992R2408 — EN — 01.01.1995 — 001.001 — 7
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— have a limited period of validity, not exceeding three years, after
which it shall be reviewed,
— not unduly affect the objectivesof thisRegulation,— not unduly distort competition between air carriers,— not be more restrictive than necessary in order to relieve the
problems.
3. When a Member State considers that action under paragraph 1 is
necessary it shall, at least three months before the entry into force ofthe action, inform the other Member States and the Commission,
providing adequate justification for the action. The action may be
implemented unless within one month or receipt of the information aMember State concerned contests the action or the Commission, inaccordance with paragraph 4, takesit up for further examination.
4. At the request of a Member State or on its own initiative the
Commission shall examine action referred to in paragraph 1. When
the Commission, within one month of having been informed under
paragraph 3, takes the action up for examination it shall at the sametime indicate whether the action may be implemented, wholly orpartially, during the examination taking into account in particular thepossibility of irreversible effects. After consulting the Committeereferred to in Article 11 the Commission shall, one month after having
received all necessary information, decide whether the action is appro-
priate and in conformity with thisRegulation and not in any other waycontrary to Community law. The Commission shall communicate itsdecision to the Council and the Member States. Pending such decisionthe Commission may decide on interim measures including the suspen-
sion, in whole or in part, of the action, taking into account in particular
the possibility of irreversible effects.
5. Notwithstanding paragraphs 3 and 4, a Member State may take
the necessary action to deal with sudden problems of short durationprovided that such action is consistent with paragraph 2. The Commis-sion and the Member State(s) shall be informed without delay of such
action with its adequate justification. If the problems necessitating such
action continue to exist for more than 14 days the Member State shallinform the Commission and the other Member States accordingly andmay, with the agreement of the Commission, prolong the action forfurther periods of up to 14 days. At the request of the Member State(s)involved or on its own initiative the Commission may suspend this
action if it doesnot meet the requirementsof paragraphs1 and 2 or is
otherwise contrary to Community law.
6. Any Member State may refer the Commission's decision under
paragraph 4 or 5 to the Council within a time limit of one month. TheCouncil, acting by a qualified majority, may in exceptional circum-stances take a different decision within a period of one month.
7. When a decision taken by a Member State in accordance with this
Article limitsthe activity of a Community air carrier on an intra-
Community route, the same conditions or limitation shall apply to allCommunity air carriers on the same route. When the decision involvesthe refusal of new or additional services, the same treatment shall begiven to all requests by Community air carriers for new or additional
services on that route.
8. Without prejudice to Article 8 (1) and except with the agreement
of the Member State(s) involved, a Member State shall not authorize anair carrier:
(a) to establish a new service, or
(b) to increase the frequency of an existing service,
between a specific airport in its territory and another Member State for
such time as an air carrier licensed by that other Member State is notpermitted, on the basis of slot-allocation rules as provided for in Article8 (2), to establish a new service or to increase frequencies on anexisting service to the airport in question, pending the adoption by theCouncil and the coming into force of a Regulation on a code of1992R2408 — EN — 01.01.1995 — 001.001 — 8
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conduct on slot allocation based on the general principle of non-discri-
mination on the groundsof nationality.
Article 10
1. Capacity limitations shall not apply to air services covered by this
Regulation except ass et out in Articles8 and 9 and in thisArticle.
2. Where the application of paragraph 1 hasled to s eriousfinancial
damage for the scheduled air carrier(s) licensed by a Member State, theCommission shall carry out a review at the request of that MemberState and, on the basis of all relevant factors, including the market
situation and in particular whether a situation exists whereby the oppor-
tunitiesof air carriersof that Member State to effectively compete inthe market are unduly affected, the financial posistion of the aircarrier(s) concerned and the capacity utilization achieved, shall take adecision on whether the capacity for scheduled air services to and fromthat State should be stabilized for a limited period.
3. The Commission shall communicate its decision to the Council
and to the Member States. Any Member State may refer the Commis-sion's decision to the Council within a time limit of one month. TheCouncil, acting by a qualified majority, may in exceptional circum-stances take a different decision within a period of one month.
Article 11
1. The Commission shall be assisted by an Advisory Committee
composed of the representatives of the Member States and chaired by
the representative of the Commission.
2. The Committee shall advise the Commission on the application of
Articles9 and 10.
3. Furthermore, the Committee may be consulted by the Commis-
sion on any other question concerning the application of this
Regulation.
4. The Committee shall draw up its rules of procedure.
Article 12
1. In order to carry out itsdutiesunder thisRegulation the Commis -
sion may obtain all necessary information from the Member Statesconcerned, which shall also ensure the provision of information by air
carrierslicens ed by them.
2. When the information requested is not supplied within the time
limit fixed by the Commission, or is supplied in incomplete form, theCommission shall by decision addressed to the Member Stateconcerned require the information to be applied. The decision shallspecify what information is required and fix an appropriate time limit
whithin which it isto be s upplied.
Article 13
The Commission shall publish a report on the application of this Regu-
lation by 1 April 1994 and periodically thereafter.
Article 14
1. Member States and the Commission shall cooperate in imple-
menting thisRegulation.
2. Confidential information obtained in application of thisRegula-
tion shall be covered by professional secrecy.
Article 15
Regulation (EEC) No 2343/90 and 294/91 are hereby replaced with the
exceptionsof Article 2 (e) (ii) and of Annex I to Regulation (EEC) No2343/90, asinterpreted by Annex II to thisRegulation, and Article 2(b) of and the Annex to Regulation (EEC) No 294/91.1992R2408 — EN — 01.01.1995 — 001.001 — 9
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Article 16
ThisRegulation s hall enter into force on 1 January 1993.
ThisRegulation s hall be binding in itsentirety and directly applicable
in all Member States.1992R2408 — EN — 01.01.1995 — 001.001 — 10
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ANNEX I
Listofcategory 1airports
BELGIUM: Brussels-Zaventem
DENMARK: Copenhagen airport system
GERMANY Frankfurt-Rhein/Main
Düsseldorf-Lohausen
Munich
Berlin airport system
SPAIN Palma-Mallorca
Madrid-BarajasMalaga
LasPalmas
GREECE: Athens-Hellinikon
Thessalonika-Macedonia
FRANCE: Paris airport systemIRELAND: DublinITALY: Rome airport system
Milan airport system
NETHERLANDS: Amsterdam-Schiphol
PORTUGAL: Lisbon
Faro
UNITED KINGDOM: London airport system
Luton
AUSTRIA: Vienna
FINLAND: Helsinki-Vantaa — Helsingfors Vanda
SWEDEN: Stockholm airport system1992R2408 — EN — 01.01.1995 — 001.001 — 11
▼A1
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ANNEX II
Listofairportsystems
DENMARK: Copenhagen-Kastrup/Roskilde
GERMANY: Berlin-Tegel/Schönefeld/Tempelhof
FRANCE: Paris-Charles De Gaulle/Orly/Le Bourget
Lyon-Bron-Satolas
ITALY: Rome-Fiumicino/Ciampino
Milan-Linate/Malpensa/Bergamo (Orio al Serio)Venice-Tessera/Treviso
UNITED KINGDOM: London-Heathrow/Gatwick/Stansted
SWEDEN: Stockholm-Arlanda/Bromma1992R2408 — EN — 01.01.1995 — 001.001 — 12
▼A1
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ANNEX III
Interpretationreferred toinArticle15
Under the termsof Annex I to Regulation (EEC) No 2343/90 the air carrier
Scanair, which iss tructured and organized exactly asScandinavian Airlines
System, is to be considered in the same way as the air carrier Scandinavian
AirlinesSys tem.1992R2408 — EN — 01.01.1995 — 001.001 — 13