EN Official Journal of the European Union C 101/28

Belgian national procedure for allocating limited air traffic rights

2011/C 101/08

In accordance with 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 is publishing the following national procedure for the distribution of traffic rights among eligible Community air carriers where these rights are limited by aviation agreements with third countries.

KINGDOM OF BELGIUM

FEDERAL PUBLIC SERVICE FOR MOBILITY AND TRANSPORT

AIR TRANSPORT

Royal Decree on the designation of Community air carriers and the allocation of traffic rights in respect of the operation of scheduled air services between Belgium and non-Community countries

ALBERT II, King of the Belgians,

To all, present and to come, greetings.

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 Law of 27 June 1937 revising the Law of 16 November 1919 laying down rules for air navigation, in particular Article 5, §2, incorporated by the Law of 2 January 2001,

Having regard to the Law of 3 May 1999 on scheduled air carriers,

Having regard to the involvement of the governments of the regions in drafting this Decree,

Having regard to Opinion No 47.574/4 of the Council of State, given on 6 January 2010, in application of Article 84, §1, paragraph 1, 1, of the laws of the Council of State, as coordinated on 12 January 1973,

On a proposal from our Prime Minister and the State Secretary for Mobility,

WE HAVE DECIDED AS FOLLOWS:

Article 1

This Decree lays down the detailed arrangements for the designation of Community air carriers and for allocating traffic rights with a view to the operation of scheduled air services between Belgium and non-Community countries.

Article 2

For the purposes of this Decree, the following definitions apply:

1. ‘Community air carrier’ means any air carrier with a valid operating licence issued in accordance with Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community;

2. ‘traffic right’ means the right for an air carrier, in return for payment, to carry passengers, freight and/or mail on a given air link;

3. ‘Director-General’ means the Director-General of the Directorate-General for Air Transport;

4. ‘Directorate-General for Air Transport’ means the directorate responsible for air transport within the Federal Public Service for Mobility and Transport;

5. ‘scheduled air services’ means a series of flights accessible to the public and intended to ensure, either combined or individually, the transportation of passengers, mail and/or freight in return for payment. This series of flights is operated: (a) either according to a published timetable; (b) or with flights which are so regular and frequent as to constitute a recognisably systematic series;

6. ‘bilateral aviation agreement’ means an aviation agreement concluded between Belgium and a non-Community country and any other aviation agreement between the European Union and a non-Community country;

7. ‘designation’ means the right granted to an air carrier to operate scheduled air services in the framework of a bilateral aviation agreement. Such designation may be granted to a single air carrier (single designation) or to several air carriers (multiple designation) in accordance with the provisions of the bilateral aviation agreement concerned;

8. ‘accessibility’ means the possibility, under a bilateral aviation agreement, to be designated and/or to operate the desired number of flights on a given route;

9. ‘Minister’ means the Minister responsible for aviation;

10. ‘IATA season’ means the summer or winter season as defined by the International Air Transport Association (IATA).

Article 3

This Decree and the timetable for the bilateral negotiation of aviation agreements between Belgium and non-Community countries will be published on the website of the Federal Public Service for Mobility and Transport. All other information about the aviation agreements, the traffic rights and designation can be obtained from the Directorate-General for Air Transport.

Article 4

1. Only Community air carriers established in Belgium in accordance with Community law may be designated and allocated traffic rights.

To this end, a carrier must submit an application in one of the national languages or in English to the Director-General by registered letter.

Such an application must be accompanied by a file containing:

1. the operating licence and the air operator certificate (AOC), unless those documents were issued by Belgium;

2. the insurance certificate;

3. evidence that the Community air carrier is established in Belgium in conformity with Community law;

4. proof of operational capacity and financial fitness within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community;

5. the following information on the scheduled air services proposed: (a) the proposed air link (route, weekly frequency, timetables, stop-over points, whether or not seasonal); (b) the type of transport (freight, passengers, mail); (c) the passenger traffic (traffic forecasts, customer breakdown, main actual origins and destinations); (d) the type of aircraft, its class configuration and its capacity; (e) the date on which it is proposed to start the service, its foreseeable duration and information about any earlier operation of the air link concerned by the applicant; (f) information about the size of the market and in particular about any capacity already offered on the air link concerned or foreseeable in the short term; (g) how the flights proposed will be operated: (i) whether the aircraft entered in the applicant’s air operator certificate (AOC) will be used; (ii) recourse to a code-sharing agreement with another air carrier (Community or otherwise); (iii) leasing of an aircraft or aircraft capacity; (iv) any other form of cooperation with one or more other air carriers; (h) how the flights will be offered to the public and marketed (fares planned, public access to services, distribution channels); (i) the acoustic emissions categories and other environmental characteristics of the aircraft which it is planned to use;

6. whether the applicant agrees to make available any necessary capacity to meet Belgium's national or international needs in exceptional circumstances.

2. By way of derogation from the third paragraph of §1, an application from a Community air carrier who, following the entry into force of this Decree, has already submitted a file containing all the elements referred to in points 1 to 4 of the third paragraph of §1 need only be accompanied by the information referred to in point 5 of the third paragraph of §1 and, if applicable, details of any changes made to the information referred to in points 1 to 4 of the third paragraph of §1.

Article 5

Only applications which comply with Article 4 will be considered by the Director-General and published on the website of the Federal Public Service for Mobility and Transport.

At any time during the consideration of an application, the Director-General may:

1. ask the Community air carrier for additional information; and/or

2. hold hearings to which all applicants will be called.

Article 6

All Community air carriers will automatically be granted designation and/or allocated the requested traffic rights by the Minister provided that the bilateral aviation agreement between Belgium and the non-Community country concerned does not limit:

1. the number of Community air carriers that may be designated; or

2. the number of flights which may be operated on specific routes.

Allocation will be notified to the air carrier.

Article 7

In cases where the bilateral aviation agreements limit:

1. the number of Community air carriers which may be designated; or

2. the frequency of operations on specific routes,

the application is first considered with regard to accessibility to designation and/or the traffic rights requested.

Article 8

If there is no more accessibility to enable the applicant to operate scheduled air services on the routes concerned, the applicant will be notified by registered letter within 15 working days of receipt of the application. The notification is also published on the website of the Federal Public Service for Mobility and Transport.

If there is still sufficient accessibility to enable the applicant to operate scheduled air services on the routes concerned, the Director-General will notify the applicant within 15 working days in writing and via the website of the Federal Public Service for Mobility and Transport.

Community air carriers established in Belgium will be informed in writing that they have 15 working days from the date of notification referred to in the second paragraph to apply for designation and/or the allocation of traffic rights.

The competing applications will be published on the website of the Federal Public Service for Mobility and Transport.

Article 9

If there are no competing applications or if all applications can be accepted, the Minister will accept the application(s) concerned and provide notification of his decision within 15 working days by registered letter and by publishing the decision on the website of the Federal Public Service for Mobility and Transport.

Article 10

If several Community air carriers express their desire to be designated or allocated traffic rights on a given route and it is impossible to accept all the applications, the competing applications will be examined by the Director-General on the basis of the complete file of applications as defined in Article 4.

The Director-General will send a draft decision on the allocation of traffic rights and/or designation to the competing applicants by registered letter within 30 working days. The date on which the draft decision is sent will be published on the website of the Federal Public Service for Mobility and Transport.

Community air carriers which have submitted an application may submit their comments to the Director-General by registered letter within 10 working days following the date on which the draft decision is sent:

1. if comments are expressed, the Minister will take a final decision on the allocation of traffic rights and/or designation within 15 working days following the receipt of such comments; that decision will be notified to applicants by registered letter and published on the website of the Federal Public Service for Mobility and Transport;

2. if no comments are expressed, the draft decision will become the Minister’s final decision on the allocation of traffic rights and/or designation; that decision will be notified to the applicant(s) by registered letter and published on the website of the Federal Public Service for Mobility and Transport.

Article 11

The applications referred to in this Decree will be considered on a transparent, non-discriminatory basis.

Any decision or draft decision on the allocation of traffic rights and/or designation will take account, with no particular order of priority or importance, of:

1. the information referred to in Article 4 as submitted by the Community air carrier;

2. the guarantees provided as regards operational continuity and its inclusion in a coherent business plan;

3. whether optimum use is made of the limited traffic rights;

4. the priority nature of the operations performed by a Community air carrier using its own (owned or leased) aircraft as compared with operations where the Community air carrier is satisfied to market flights operated by another air carrier by means of code-sharing arrangements;

5. the interests of all categories of users;

6. the ease of access to new routes, markets and regions, whether by means of new links or departures from or arrivals at different Belgian airports;

7. the contribution towards ensuring a satisfactory level of competition;

8. any effects of the operation on the creation of jobs, either directly or indirectly, in the air transport sector;

9. as a secondary consideration, how long the Community air carrier has been actively and repeatedly expressing the desire to obtain the traffic rights which are the subject of its application.

The Minister will give details of the criteria referred to above in order to guarantee that they are objective and transparent.

Article 12

Any Community air carrier which is granted designation and/or obtains traffic rights under a bilateral aviation agreement between Belgium and a non-Community country is obliged:

1. to start operating the air services concerned at the latest at the end of the IATA season following that during which the decision granting designation and/or allocating traffic rights was notified;

2. to operate the air services concerned in accordance with the file referred to in Article 4. The difference between the original project and actual operations must not be so great that it might have led to another air carrier being chosen when designation was originally granted;

3. to comply with any conditions laid down by the Director-General, the decisions made by the aviation authorities of the non-Community countries affected by the operation of the air services concerned and the permits issued by them as well as with all relevant international regulations;

4. to notify the Director-General immediately of the cessation of, or any interruption in, the operation of the air services concerned. If any such interruption continues for more than two seasons, the decision to allocate traffic rights and/or grant designation will be automatically withdrawn at the end of the second season unless the Community air carrier can claim there were exceptional circumstances beyond its control.

The Directorate-General for Air Transport will monitor compliance with the obligations set out in paragraph 1.

Article 13

Designation and/or the allocation of traffic rights is personal and is not transferrable. It is of unlimited duration unless the decision is withdrawn.

Article 14

If an air carrier does not comply with the obligations set out in the first paragraph of Article 12 or seriously jeopardises air safety, the Minister may suspend or withdraw the decision granting designation and/or allocating traffic rights.

Article 15

1. All Community air carriers established in Belgium in accordance with Community law are entitled to contest the use of traffic rights made by any other air carrier on a given route and to apply to make better use of them.

To this end, it must send the Director-General a duly substantiated file which may be consulted by the air carrier whose traffic rights’ use is contested.

However, the right to contest this use may not be exercised until after two years of operation following the allocation of the original traffic rights.

2. In such an event, the Minister will re-consider, on the basis of the file and any possible hearings, the original allocation and the use made thereof and will decide:

1. either to take no further action on the application;

2. or to launch a new allocation procedure.

However, if a Community air carrier uses its traffic rights only in the form of cooperation with another air carrier and without using its own aircraft, the Minister will re-consider the original allocation immediately if a competing air carrier submits a formal application to operate the air services concerned using its own aircraft.

Any change in the allocation of traffic rights and/or in designation, either in full or in part, will not take effect at the earliest until the first day of the second IATA season following that during which the decision was taken.

Article 16

In order to allow a proper assessment to be made of Community air carriers’ markets, links and applications, the carriers will regularly send the Directorate-General for Air Transport figures concerning the operations for which they have been designated.

The Minister will specify the level of detail and the frequency with which these figures must be submitted.

Article 17

1. Traffic rights which were allocated on a particular route prior to the entry into force of this Decree and which were already limited or have been limited may be contested in accordance with the procedure set out in Article 15.

In such an event, the Directorate-General for Air Transport will ensure that a solution can be found before any procedure is launched by renegotiating the limited traffic rights agreed in the aviation agreement concluded with the non-Community country concerned.

2. The procedure referred to in §1 also applies to designation.

Article 18

The Law of 3 May 1999 on scheduled air carriers is hereby repealed.

Article 19

This Decree enters into force two months after its publication in the Belgian Official Gazette.

Article 20

Our Minister responsible for aviation is instructed to implement this Decree.