‘MINISTRY FOR TRANSPORT, INFRASTRUCTURE, TOURISM AND THE SEA

Order of 20 September 2005 on the granting of licences to operate scheduled air services between France and countries outside the European Union for Community air carriers established in France

NOR: EQUA0501520A

THE MINISTER FOR TRANSPORT, INFRASTRUCTURE, TOURISM AND THE SEA,

Having regard to the Convention on International Civil Aviation of 7 December 1944 and its amending protocols;

Having regard to the Treaty establishing the European Community, in particular Article 43;

Having regard to the Agreement on the European Economic Area, signed in Porto on 2 May 1992, and the protocol adapting the aforementioned Agreement, signed in Brussels on 17 March 1993;

Having regard to the Agreement between the European Community and the Swiss Confederation on Air Transport, signed in Luxembourg on 21 June 1999;

Having regard to Council Regulations (EEC) Nos 2407/92 and 2408/92 of 23 July 1992 on licensing of air carriers and access for Community air carriers to intra-Community air routes;

Having regard to Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries;

Having regard to the Civil Aviation Code, in particular Article R 330-6;

Having regard to Law No 94-665 of 4 August 1994 on the use of the French language;

Having regard to Law No 2000-321 of 12 April 2000 on the rights of citizens in their relations with the public administration, in particular Articles 19 and 21;

Having regard to the Declaration on the right of establishment adopted by the Council of Transport Ministers of the European Union on 5 June 2003,

HEREBY ISSUES THE FOLLOWING ORDER:

Article 1

For the purposes of this Order:

— “Community air carrier” means any air carrier holding a licence under Council Regulation (EEC) No 2407/92 of 23 July 1992 issued by France or another Member State of the European Community;

— “traffic rights” means the right of an air carrier to transport passengers, freight, or mail on an air service on the basis of a specific route, schedule, capacity and code-sharing arrangements, as appropriate.

Article 2

Community air carriers established in France under the terms of Community law wishing to operate scheduled air services on lines comprising at least one stopover in France, and to which Regulation (EEC) No 2408/92 does not apply, shall submit to the Minister responsible for civil aviation a file containing the following:

a) the undertaking's operating licence, the air operator's certificate and the insurance certificate for the intended operation;

b) the justification for the carrier's establishing itself in France;

c) a description of the planned service (planned lines, service frequencies and days of service, type of aircraft used, intended start date for service, possible code sharing, tariffs, traffic forecasts, projected operating account over three years);

d) elements enabling assessment of the applicant air carrier's operational and financial capacity to operate the intended services, particularly in accordance with Article 5 of Regulation (EEC) No 2407/92.

The operational financial standing of the different Community carriers shall be assessed according to identical criteria.

Only applications accompanied by a complete file either in French or, if the originals are in a language other than French, accompanied by a French translation, will be examined.

The Minister responsible for civil aviation may ask for additional information.

Article 3

Notwithstanding the provisions of Article 2 of this Order, any application by an air carrier to increase the number of services on a route it is operating shall be examined on the basis of a simplified file as regards item c of Article 2 of this Order; the file shall specify, where applicable, any changes that relate to the elements requested in items a, b and d of the aforementioned article of this Order.

Article 4

For the purposes of applying Article 5 of Regulation (EC) No 847/2004, Community air carriers established in France are requested to make their applications known within fifteen days of the publication of the availability of traffic rights.

The publication mentioned in the previous subparagraph is carried out by means of inclusion in the Journal officiel.

Article 5

In the event of competing applications and the limitation of either the traffic rights or the number of Community air carriers permitted to exercise these rights, files shall be assessed within two months as long as the applications meet the conditions laid down in Article 2 of this Order; as part of the assessment of applications, the Minister responsible for civil aviation may ask for additional information and, where appropriate, hold hearings.

In all cases, the operating licence shall be issued to the applicant air carrier under the conditions provided for in Article 8 of this Order, as long as the application meets the conditions laid down in Article 2 herein.

Article 6

Subject to the provisions of the bilateral agreement for air services in question, competing applications shall be assessed by the Minister responsible for civil aviation on the basis of the following criteria:

— the satisfaction of air transport demand (mixed or freight-only services, direct or indirect services, service frequencies, days of service);

— the tariff policy (particularly ticket prices, provision for reductions and other adjustments);

— the quality of the service (particularly the layout of the aircraft, provision for the substitution of tickets and the existence of sales offices open to the public);

— the contribution to creating a satisfactory level of supply-side competition;

— the intended date for the launch of the service;

— the presence of guarantees with regard to the sustainability of the service;

— the potential for increasing the market share of Community-registered aircraft on the route in question;

— the environmental performances of the aircraft used, particularly with regard to noise pollution;

— the development of connecting flights for passengers.

The following criteria may also be taken into account:

— the seniority of the application, actively and repeatedly submitted;

— the contribution to regional planning;

— the potential for developing tourism in France;

— the compliance of the aircraft with the standards in force at the French airports they serve;

— the carrier's situation with regard to payment of French aeronautical taxes and charges;

— the existence of a French language sales service.

Article 7

In order to apply the first subparagraph of Article 5 of this Order, the Minister responsible for civil aviation shall publish a draft Decision in electronic form on the site of the Directorate-General for Civil Aviation. Interested parties may submit written comments within fifteen days of the publication of this document.

The final decision on issuing a licence to operate air services shall be taken under the conditions laid down in Article 8 of this Order within thirty days of publication of the draft Decision.

Article 8

The licence to operate air services shall be granted by order of the Minister responsible for civil aviation, published in the Journal officiel.

That Order shall specify, if necessary, the validity period of the licence, the frequency of services, the aircraft capacity, and any other conditions imposed under the terms of the bilateral or multilateral air services agreements.

In the event of failure to comply with the criteria laid down in Article 2 of this Order, a serious breach in air safety, the written withdrawal of a carrier from operation of the respective air service, or the complete or partial failure to make use of the traffic rights for a period equal to or exceeding six months, the licence may be suspended or withdrawn by reasoned decision of the Minister responsible for civil aviation, once the carrier has been asked to present its explanations.

If a carrier authorised under Article 6 of this Order fails to comply with the commitments it has entered into under this Order, the Minister may also suspend or withdraw the licence.

Notwithstanding the provisions of the previous subparagraphs, the licence may not be suspended or withdrawn if exceptional circumstances beyond the control of the licence holder render performance of the services concerned impossible.

Article 9

The provisions of this Order shall not apply to the regional authorities of St Pierre-et-Miquelon.

Article 10

The Director-General for Civil Aviation shall be responsible for the implementation of this Order, which will be published in the Journal officiel.