[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 10.8.2005

COM(2005) 369 final

2005/0148 (CNS)

Proposal for a

COUNCIL DECISION

on signature of the Agreement between the European Community and Romania on certain aspects of air services

Proposal for a

COUNCIL DECISION

on conclusion of the Agreement between the European Community and Romania on certain aspects of air services

(presented by the Commission)

EXPLANATORY MEMORANDUM

International aviation relations between Member States and third countries have been traditionally governed by bilateral air services agreements between Member States and third countries, the Annexes to such agreements and other related bilateral or multilateral arrangements.

Following the judgements of the Court of Justice of the European Communities in the cases C-466/98, C-467/98, C-468/98, C-471/98, C-472/98, C-475/98 and C-476/98, the Community has exclusive competence with respect to various aspects of external aviation. The Court of Justice also clarified the right of Community air carriers to benefit from the right of establishment within the Community, including the right to non-discriminatory market access.

Traditional designation clauses in Member States’ bilateral air services agreements infringe Community law. They allow a third country to reject, withdraw or suspend the permissions or authorisations of an air carrier that has been designated by a Member State but that is not substantially owned and effectively controlled by that Member State or its nationals. This has been found to constitute discrimination against Community carriers established in the territory of a Member State but owned and controlled by nationals of other Member States. This is contrary to Article 43 of the Treaty which guarantees nationals of Member States who have exercised their freedom of establishment the same treatment in the host Member State as that accorded to nationals of that Member State.

Following the Court of Justice judgements, the Council authorised the Commission in June 2003 to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.[1]

In accordance with the mechanisms and directives in the Annex to the Council’s decision authorising the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement, the Commission has negotiated an agreement with Romania that replaces certain provisions in the existing bilateral air services agreements between Member States and Romania. Article 2 of the Agreement replaces the traditional designation clauses with a Community designation clause, permitting all Community carriers to benefit from the right of establishment. Articles 4 and 5 of the Agreement address two types of clauses concerning matters of Community competence. Article 4 deals with the taxation of aviation fuel, a matter which has been harmonised by Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity, and in particular Article 14(2) thereof. Article 5 (Pricing) resolves conflicts between the existing bilateral air services agreements and Council Regulation No 2409/92 on fares and rates for air services which prohibits third country carriers from being price leaders on air services for carriage wholly within the Community.

The Council is asked to approve the decisions on the signature and on the conclusion of the Agreement between the European Community and Romania on certain aspects of air services and to designate the persons authorized to sign the Agreement on behalf of the Community.

Proposal for a

COUNCIL DECISION

on signature of the Agreement between the European Community and Romania on certain aspects of air services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2), in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,

Having regard to the proposal from the Commission[2],

Whereas:

1. The Council authorised the Commission on 5 June 2003 to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.

2. The Commission has negotiated on behalf of the Community an agreement with Romania on certain aspects of air services in accordance with the mechanisms and directives in the Annex to the Council’s decision authorising the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.

3. Subject to its possible conclusion at a later date, the agreement negotiated by the Commission should be signed,

HAS DECIDED AS FOLLOWS:

Sole Article

1. Subject to its possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign on behalf of the Community the Agreement between the European Community and Romania on certain aspects of air services.

2. The text of the Agreement is annexed to this decision.

Done at Brussels,

For the Council

The President

2005/0148 (CNS)

Proposal for a

COUNCIL DECISION

on conclusion of the Agreement between the European Community and Romania on certain aspects of air services

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2), in conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission[3],

Having regard to the opinion of the European Parliament[4],

Whereas:

(1) The Council authorised the Commission on 5 June 2003 to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.

(2) The Commission has negotiated on behalf of the Community an agreement with Romania on certain aspects of air services in accordance with the mechanisms and directives in the Annex to the Council’s decision authorising the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.

(3) This Agreement was signed on behalf of the Community on subject to its possible conclusion at a later date, in conformity with Council Decision …/…/EC of [5].

(4) This Agreement should be approved,

HAS DECIDED AS FOLLOWS:

Article 1

1. The Agreement between the European Community and Romania on certain aspects of air services is approved on behalf of the Community.

2. The text of the Agreement is annexed to this decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to make the notification provided for in Article 8(1) of the Agreement.

Done at Brussels,

For the Council

The President

ANNEX

AGREEMENT between the European Community and Romania on certain aspects of air services

THE EUROPEAN COMMUNITY

of the one part, and

ROMANIA

of the other part

hereinafter referred to as ‘the Parties’

NOTING that bilateral air service agreements have been concluded between several Member States of the European Community and Romania containing provisions which have been found to be contrary to Community law.

NOTING that the European Community has exclusive competence under the Treaty establishing the European Community with respect to several aspects that may be included in bilateral air service agreements between Member States of the European Community and third countries,

NOTING that under European Community law Community air carriers established in a Member State have the right to non-discriminatory access to air routes between the Member States of the European Community and third countries,

HAVING REGARD to the agreements between the European Community and certain third countries providing for the possibility for the nationals of such third countries to acquire ownership in air carriers licensed in accordance with European Community law,

RECOGNISING that provisions of the bilateral air service agreements between Member States of the European Community and Romania, which have been found to be contrary to European Community law, must be brought into full conformity with it in order to establish a sound legal basis for air services between the European Community and Romania and to preserve the continuity of such air services,

NOTING that it is not a purpose of the European Community, as part of these negotiations, to increase the total volume of air traffic between the European Community and Romania, to affect the balance between Community air carriers and air carriers of Romania, or to negotiate amendments to the provisions of existing bilateral air service agreements concerning traffic rights.

HAVE AGREED AS FOLLOWS:

A rticle 1 General Provisions

1. For the purposes of this Agreement, ‘Member States’ shall mean Member States of the European Community.

2. For the purposes of this Agreement, ‘national’ of a state shall mean any natural or legal person who has the nationality of that state in accordance with the laws of that state.

3. References in each of the agreements listed in Annex 1 to nationals of the Member State that is a party to that agreement shall be understood as referring to nationals of the Member States of the European Community.

4. References in each of the agreements listed in Annex 1 to air carriers or airlines of the Member State that is a party to that agreement shall be understood as referring to air carriers or airlines designated by that Member State.

5. The granting of traffic rights continues to be carried out through bilateral arrangements and shall not be affected by the provisions of this Agreement.

A rticle 2 Designation by a Member State

1. The provisions in paragraphs 2 and 3 of this Article shall supersede the corresponding provisions in the articles listed in Annex 2 (a) and (b) respectively, in relation to the designation of an air carrier by the Member State concerned, its authorisations and permissions granted by Romania, and the refusal, revocation, suspension or limitation of the authorisations or permissions of the air carrier, respectively.

2. On receipt of a designation by a Member State, Romania shall grant the appropriate authorisations and permissions with minimum procedural delay, provided that:

i. the air carrier is established in the territory of the designating Member State under the Treaty establishing the European Community and has a valid Operating Licence in accordance with European Community law;

ii. effective regulatory control of the air carrier is exercised and maintained by the Member State responsible for issuing its Air Operators Certificate and the relevant aeronautical authority is clearly identified in the designation; and

iii. the air carrier is owned and shall continue to be owned directly or through majority ownership by Member States and/or nationals of Member States, or by other states listed in Annex 3 and/or nationals of such other states, and shall at all times be effectively controlled by such states and/or such nationals.

3. Romania may refuse, revoke, suspend or limit the authorisations or permissions of an air carrier designated by a Member State where:

i. the air carrier is not established in the territory of the designating Member State under the Treaty establishing the European Community or does not have a valid Operating Licence in accordance with European Community law;

ii. effective regulatory control of the air carrier is not exercised or not maintained by the Member State responsible for issuing its Air Operators Certificate, or the relevant aeronautical authority is not clearly identified in the designation; or

iii. the air carrier is not owned and effectively controlled directly or through majority ownership by Member States and/or nationals of Member States, or by other states listed in Annex 3 and/or nationals of such other states.

In exercising its right under this paragraph, Romania shall not discriminate between Community air carriers on the grounds of nationality.

A rticle 3 Rights with regard to regulatory control

1. The provisions in paragraph 2 of this Article shall complement the articles listed in Annex 2 (c).

2. Where a Member State has designated an air carrier whose regulatory control is exercised and maintained by another Member State, the rights of Romania under the safety provisions of the agreement between the Member State that has designated the air carrier and Romania shall apply equally in respect of the adoption, exercise or maintenance of safety standards by that other Member State and in respect of the operating authorisation of that air carrier.

A rticle 4 Taxation of aviation fuel

1. The provisions in paragraph 2 of this Article shall complement the corresponding provisions in the articles listed in Annex 2 (d).

2. Notwithstanding any other provision to the contrary, nothing in each of the agreements listed in Annex 2 (d) shall prevent a Member State from imposing taxes, levies, duties, fees or charges on fuel supplied in its territory for use in an aircraft of a designated air carrier of Romania that operates between a point in the territory of that Member State and another point in the territory of that Member State or in the territory of another Member State.

3. Notwithstanding any other provision to the contrary, nothing in each of the Agreements listed in Annex 2 (d) shall prevent Romania from imposing taxes, levies, duties, fees or charges, on the basis of reciprocity and without discrimination, on fuel supplied in its territory for use in an aircraft of a designated air carrier of a Member State that operates between points on the territory of Romania.

A rticle 5 Tariffs for carriage within the European Community

1. The provisions in paragraph 2 of this Article shall complement the articles listed in Annex 2 (e).

2. The tariffs to be charged by the air carrier(s) designated by Romania under an agreement listed in Annex 1 containing a provision listed in Annex 2 (e) for carriage wholly within the European Community shall be subject to European Community law.

A rticle 6 Annexes to the Agreement

The Annexes to this Agreement shall form an integral part thereof.

A rticle 7 Revision or amendment

The Parties may, at any time, revise or amend this Agreement by mutual consent. The amendments shall enter into force in accordance with article 8.

A rticle 8 Entry into force

1. This Agreement shall enter in force when the Parties have notified each other in writing that their respective internal procedures necessary for its entry into force have been completed.

2. Agreements and other arrangements between Member States and Romania which, at the date of signature of this Agreement, have not yet entered into force and are not being applied provisionally are listed in Annex 1 (b). This Agreement shall apply to all such Agreements and arrangements upon their entry into force or provisional application.

Article 9 Termination

1. In the event that an agreement listed in Annex 1 is terminated, all provisions of this Agreement that relate to the agreement listed in Annex 1 concerned shall terminate at the same time.

2. In the event that all agreements listed in Annex 1 are terminated, this Agreement shall terminate at the same time.

IN WITNESS WHEREOF, the undersigned, being duly authorised, have signed this Agreement.

Done at [….] in duplicate, on this […] day of […, …] in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovene, Spanish, Swedish and Romanian languages. In case of divergence the English text shall prevail over the other language texts.

FOR THE EUROPEAN COMMUNITY: FOR ROMANIA:

Annex 1

List of agreements referred to in Article 1 of this Agreement

(a) Air service agreements between Romania and Member States of the European Community which, at the date of signature of this Agreement, have been concluded, signed and/or are being applied provisionally

- Air Transport Agreement between the Federal Government of Austria and the Government of the Socialistic Republic of Romania signed at Bucharest on 14 July 1975, hereinafter referred to “Romania – Austria Agreement” in Annex 2;

Modified by Exchange of Notes dated 27 June 1985

Last modified by the Exchange of Notes dated 17 November 1994.

- Agreement between the Kingdom of Belgium and the People’s Republic of Romania relating to Air Transport signed at Bucharest on 4 December 1956, hereinafter referred to “Romania – Belgium Agreement” in Annex 2;

Last supplemented by the Exchange of Notes dated 4 December 1956.

- Agreement between the Government of the Republic of Cyprus and the Government of the Socialistic Republic of Romania on Air transport signed at Nicosia on 13 December 1973, hereinafter referred to “Romania – Cyprus Agreement” in Annex 2;

- Agreement between the Government of the Czechoslovak Socialistic Republic and the Government of the Socialist Republic of Romania on Civil Air Transport signed at Prague on 13 March 1970, in respect of which the Czech Republic declared that it considers itself to be bound by the provisions thereof, hereinafter referred to “Romania – Czech Republic Agreement” in Annex 2.

- Air Services Agreement between the Government of the Kingdom of Denmark and the Government of Romania signed at Oslo on 26 October 1998, hereinafter referred to “Romania – Denmark Agreement” in Annex 2.

- Agreement between the Government of the Republic of Finland and the Government of the Socialist Republic of Romania for Air Services between and beyond their respective territories signed at Helsinki on 30 June 1971, hereinafter referred to “Romania – Finland Agreement” in Annex 2;

Supplemented by the Memorandum of Understanding done at Helsinki on 7 July 1993.

Modified by the Exchange of Notes dated 30 January and 7 June 1996.

- Air Transport Agreement between the Government of the French Republic and the Government of the People’s Republic of Romania signed at Bucharest on 18 May 1962, supplemented by the Protocol done at Paris on 23 February 1962, hereinafter referred to “Romania – France Agreement” in Annex 2;

Last modified by the Agreed Minutes done at Bucharest on 27 October 1999.

- Agreement between the Government of the Kingdom of Greece and the Government of the People’s Republic of Romania relating to Commercial Scheduled Air Transport signed at Athens on 2 May 1960, hereinafter referred to “Romania – Greece Agreement” in Annex 2;

Last modified by the Exchange of Notes signed at Athens on 2 September 1966.

- Air Services Agreement between the Government of the Republic of Hungary and the Government of Romania signed at Bucharest on 12 September 1995, hereinafter referred to “Romania – Hungary Agreement” in Annex 2.

- Agreement between the Government of the Italian Republic and the Government of the Socialist Republic of Romania relating to Civil Air Transport signed at Rome on 19 December 1975, hereinafter referred to “Romania – Italy Agreement” in Annex 2;

Last modified by the Exchange of Notes dated 9 July 1996 and 28 August 1996.

- Agreement between the Government of the Grand-Duchy of Luxembourg and the Government of the Socialist Republic of Romania relating to Civil Air Transport signed at Luxembourg on 27 October 1972, hereinafter referred to “Romania – Luxembourg Agreement” in Annex 2.

- Agreement between the Government of Malta and the Government of Romania for Civil Air Services signed at Valletta on 22 November 1990, hereinafter referred to “Romania – Malta Agreement” in Annex 2.

- Agreement between the Government of the Kingdom of the Netherlands and the Government of the People’s Republic of Romania relating to Civil Air Transport signed at The Hague on 27 August 1957, hereinafter referred to “Romania – Netherlands Agreement” in Annex 2;

Last supplemented by the Protocol done at The Hague on 8 June 1982.

- Agreement between the Government of the Republic of Poland and the Government of Romania concerning Civil Air Transport signed at Warsaw on 19 May 1999, hereinafter referred to “Romania – Poland Agreement” in Annex 2.

- Agreement between the Government of Portugal and the Government of the Socialist Republic of Romania relating to Civil Air Transport signed at Lisbon on 8 February 1975, hereinafter referred to “Romania – Portugal Agreement” in Annex 2.

- Agreement between the Government of the Slovak Republic and the Government of Romania relating to Air Services signed at Bratislava on 6 June 2000, hereinafter referred to “Romania – Slovakia Agreement” in Annex 2.

- Air Transport Agreement between the Government of Spain and the Government of the Socialist Republic of Romania signed at Madrid on 10 January 1980, hereinafter referred to “Romania – Spain Agreement” in Annex 2;

Modified by the Memorandum of Understanding done at Madrid on 8 March 1995.

Last modified by the Agreed Minutes done in Bucharest on 4 October 1995.

- Air Services Agreement between the Government of the Kingdom of Sweden and Romania signed at Oslo on 26 October 1998, hereinafter referred to “Romania – Sweden Agreement” in Annex 2.

- Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Romania concerning Air Services signed at London on 28 March 1995, hereinafter referred to “Romania – UK Agreement” in Annex 2.

(b) Air service agreements and other arrangements initialled or signed between Romania and Member States of the European Community which, at the date of signature of this Agreement, have not yet entered into force and are not being applied provisionally

- Agreement between the Government of the Federal Republic of Germany and the Government of Romania relating to Air Transport initialled at Bucharest on 16 December 1994, hereinafter referred to “Romania – Germany Agreement” in Annex 2;

Amended by the Memorandum of Understanding done at Bucharest on 8 February 1996.

Supplemented by the Memorandum of Understanding done at Bucharest on 2 December 1997.

Supplemented by Notes dated 5 May 1998 and 24 August 1998.

Last modified by Notes dated 28 May 2001 and 15 October 2001.

- Agreement between the Government of Ireland and the Government of Romania concerning Air Services initialled at Dublin on 1 November 1995, hereinafter referred to “Romania – Ireland Agreement” in Annex 2;

Annex 2

List of articles in the agreements listed in Annex 1 and referred to in Articles 2 to 5 of this Agreement

(a) Designation by a Member State:

- Article 3 of the Romania – Austria Agreement;

- Article 2 of the Romania – Belgium Agreement;

- Article 3 of the Romania – Cyprus Agreement;

- Article 3 of the Romania – Czech Republic Agreement;

- Article 3 of the Romania – Denmark Agreement;

- Article 3 of the Romania – Finland Agreement;

- Article 3 of the Romania – France Agreement;

- Article 3 of the Romania – Germany Agreement;

- Article 3 of the Romania – Greece Agreement;

- Article 3 of the Romania – Hungary Agreement;

- Article 3 of the Romania – Ireland Agreement;

- Article 3 of the Romania – Italy Agreement;

- Article 3 of the Romania – Luxembourg Agreement;

- Article 3 of the Romania – Malta Agreement;

- Article 2 of the Romania – Netherlands Agreement;

- Article 3 of the Romania – Poland Agreement;

- Article 3 of the Romania – Portugal Agreement;

- Article 3 of the Romania – Slovakia Agreement;

- Article 3 of the Romania – Spain Agreement;

- Article 3 of the Romania – Sweden Agreement;

- Article 4 of the Romania – UK Agreement.

(b) Refusal, Revocation, Suspension or Limitation of Authorisations or Permissions:

- Article 4 of the Romania – Austria Agreement;

- Article 2 of the Romania – Belgium Agreement;

- Article 6 of the Romania – Cyprus Agreement;

- Article 4 of the Romania – Czech Republic Agreement;

- Article 4 of the Romania – Denmark Agreement;

- Article 3 and 4 of the Romania – Finland Agreement;

- Article 3 of the Romania – France Agreement;

- Article 4 of the Romania – Germany Agreement;

- Article 4 of the Romania – Greece Agreement;

- Article 4 of the Romania – Hungary Agreement;

- Article 4 of the Romania – Ireland Agreement;

- Article 4 of the Romania – Italy Agreement;

- Article 4 of the Romania – Luxembourg Agreement;

- Article 4 of the Romania – Malta Agreement;

- Article 3 of the Romania – Netherlands Agreement;

- Article 4 of the Romania – Poland Agreement;

- Articles 3 and 4 of the Romania – Portugal Agreement;

- Articles 4 of the Romania – Slovakia Agreement;

- Article 4 of the Romania – Spain Agreement;

- Article 4 of the Romania – Sweden Agreement;

- Article 5 of the Romania – UK Agreement.

(c) Regulatory control:

- Article 12 of the Romania – Germany Agreement;

- Article 16 of the Romania – Poland Agreement;

- Article 19 of the Romania – Slovakia Agreement.

(d) Taxation of Aviation Fuel:

- Article 8 of the Romania – Austria Agreement;

- Article 5 of the Romania – Belgium Agreement;

- Article 7 of the Romania – Cyprus Agreement;

- Article 6 of the Romania – Czech Republic Agreement;

- Article 6 of the Romania – Denmark Agreement;

- Article 5 of the Romania – Finland Agreement;

- Article 9 of the Romania – France Agreement;

- Article 6 of the Romania – Germany Agreement;

- Article 8 of the Romania – Greece Agreement;

- Article 9 of the Romania – Hungary Agreement;

- Article 14 of the Romania – Ireland Agreement;

- Article 8 of the Romania – Italy Agreement;

- Article 8 of the Romania – Luxembourg Agreement;

- Article 10 of the Romania – Malta Agreement;

- Article 6 of the Romania – Netherlands Agreement;

- Article 10 of the Romania – Poland Agreement;

- Article 8 of the Romania – Portugal Agreement;

- Article 9 of the Romania – Slovakia Agreement;

- Article 5 of the Romania – Spain Agreement;

- Article 6 of the Romania – Sweden Agreement;

- Article 8 of the Romania – UK Agreement.

(e) Tariffs for Carriage within the European Community:

- Article 7 of the Romania – Austria Agreement;

- Article 6 of the Romania – Belgium Agreement;

- Article 12 of the Romania – Cyprus Agreement;

- Article 10 of the Romania – Czech Republic Agreement;

- Article 11 of the Romania – Denmark Agreement;

- Article 8 of the Romania – Finland Agreement;

- Article 12 of the Romania – France Agreement;

- Article 10 of the Romania – Germany Agreement;

- Article 6 of the Romania – Greece Agreement;

- Article 8 of the Romania – Hungary Agreement;

- Article 8 of the Romania – Ireland Agreement;

- Article 7 of the Romania – Italy Agreement;

- Article 7 of the Romania – Luxembourg Agreement;

- Article 15 of the Romania – Malta Agreement;

- Article 10 of the Romania – Netherlands Agreement;

- Article 5 of the Romania – Poland Agreement;

- Article 7 of the Romania – Portugal Agreement;

- Article 8 of the Romania – Slovakia Agreement;

- Article 14 of the Romania – Spain Agreement;

- Article 11 of the Romania – Sweden Agreement;

- Article 7 of the Romania – UK Agreement.

ANNEX 3

List of other states referred to in Article 2 of this Agreement

(a) The Republic of Iceland (under the Agreement on the European Economic Area) ;

(b) The Principality of Liechtenstein (under the Agreement on the European Economic Area) ;

(c) The Kingdom of Norway (under the Agreement on the European Economic Area) ;

(d) The Swiss Confederation (under the Agreement between the European Community and the Swiss Confederation on Air Transport)

[1] Council Decision 11323/03 of 5 June 2003 (restricted document)

[2] OJ C , , p. .

[3] OJ C , , p. .

[4] OJ C , , p. .

[5] OJ C , , p. .