Proposal for a Council Regulation (EC) amending Regulation (EEC) No 3975/87 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (97/C 165/07) (Text with EEA relevance) COM(97) 218 final - 97/0137(CNS)

(Submitted by the Commission on 20 May 1997)

THE COUNCIL OF THE EUROPEAN UNION

Having regard to the Treaty establishing the European Community, and in particular Article 87 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas Regulation (EEC) No 3975/87 (1), as last amended by Regulation (EEC) No 2410/92 (2), formed part of a package of interrelated measures adopted by the Council as a first step towards completing the internal market in transport; whereas its scope was accordingly limited initially to international air transport between Community airports; whereas, following the Council's decision to regulate cabotage as part of the third package of air transport liberalization measures and to make air transport operations taking place entirely within a Member State also subject to Community liberalization measures, measures had to be adopted to enable the Commission to apply the competition rules to air transport within a Member State; whereas to that end the Council amended the scope of Regulation (EEC) No 3975/87 by Regulation (EEC) No 2410/92 by including in it air transport entirely within a Member State;

Whereas, therefore, the Commission has no means at present of investigating directly cases of suspected infringement of Articles 85 and 86 of the Treaty in respect of air transport between a Community airport and an airport in a third country and lacks such powers to take decisions or impose penalties as are necessary for it to bring to an end infringements established by it;

Whereas practices which affect competition in the area of air transport between the Community and third countries may affect trade between Member States; whereas it is therefore desirable that rules should be laid down under which the Commission, acting in close and constant liaison with the competent authorities of the Member States, may take the requisite measures for the application of Articles 85 and 86 of the Treaty to this area of air transport;

Whereas Regulation (EEC) No 3975/87 has established a clear and satisfactory legal framework for applying the competition rules to air transport between Community airports; whereas the scope of that Regulation should therefore be extended to include air transport between the Community and third countries;

Whereas, in view of the characteristics of international air transport between the Community and third countries, account should be taken of the fact that the application to such transport of the provisions of Regulation (EEC) No 3975/87 may in some cases result in conflicts with the laws and rules of third countries or with the provisions of international agreements between Member States and third countries applicable to air services on the route or routes concerned; whereas it is necessary in such cases to take, paying due regard to Community law, appropriate action in accordance with Community interests and with Community obligations under international law,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 3975/87 is hereby amended as follows:

1. Paragraph 2 of Article 1 shall be deleted.

2. The following new Article shall be inserted:

'Article 18a

Conflicts of rules

Where the application of this Regulation in a particular case is liable to lead to a conflict with provisions laid down by law, regulation or administrative action of a third country or with the provisions of air service agreements between a Member State and a third country, the Commission shall, at the earliest opportunity, hold consultations with the competent authorities of the country concerned.`

Article 2

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

(1) OJ No L 374, 31. 12. 1987, p. 1.

(2) OJ No L 240, 24. 8. 1992, p. 18.