Proposal for a EUROPEAN PARLIAMENT AND COUNCIL REGULATION on the negotiation and implementation of air service agreements between Member States and third countries

(presented by the Commission)

2003/0044 (COD)

Proposal for a EUROPEAN PARLIAMENT AND COUNCIL REGULATION on the negotiation and implementation of air service agreements between Member States and third countries

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission [1], having regard to the opinion of the Economic and Social Committee [2],

[1] OJ C [...], [...], p. [...].

[2] OJ C [...], [...], p. [...].

Having regard to the opinion of the Committee of the Regions [3],

[3] OJ C [...], [...], p. [...].

Acting in accordance with the procedure laid down in Article 251 of the Treaty

Whereas:

(1) International aviation relations between Member States and third countries have been traditionally governed by bilateral air services agreements between Member States and third countries, their annexes and other bilateral and multilateral arrangements;

(2) Following the judgement of the Court of Justice of the European Communities in cases C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and C-476/98, the Community is exclusively competent to negotiate, sign and conclude various aspects of such agreements.

(3) The Court has also clarified the right of Community air carriers to benefit from the right of establishment within the Community, including their right to non-discriminatory market access to routes between all Member States and third countries;

(4) Where it is apparent that the subject-matter of an agreement or convention falls partly within the competence of the Community and partly within that of its Member States, it is essential to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community. The Community institutions and the Member States should take all necessary steps to ensure the best possible cooperation in that regard.

(5) All existing bilateral agreements between Member States and third countries that contain provisions contrary to Community law must be replaced by agreements that are wholly compatible with Community law

(6) The Community should undertake to revise the elements in existing bilateral agreements that infringe Community law;

(7) Without prejudice to the provisions of the Treaty, and in particular Article 300 thereof, Member States may desire to make amendments to existing agreements and make provision to manage their implementation until such time that an agreement concluded by the Community enters into force;

(8) It is essential to ensure that a Member State conducting negotiations takes account of Community law, broader Community interests and ongoing Community negotiations; To this effect an efficient and transparent verification procedure should be established;

(9) If Member States wish to associate air carriers in the process of negotiations, all air carriers with an establishment in the territory of the Member State concerned should be treated equally;

(10) In order to ensure that the rights of Community carriers are not unduly restricted, no new clauses that prevent more than one Community carrier from entering a given market or that place severe limitations on frequency or capacity or service should be introduced in bilateral air service agreements;

(11) Member States should establish non-discriminatory and transparent procedures for the distribution of traffic rights between Community carriers. In some circumstances, traffic rights granted under an agreement may be sufficient to allow all Community carriers who wish to provide service to enter the market;

(12) In accordance with Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, measures for the implementation of this Regulation should be adopted by use of the advisory procedure provided for in Article 3 of that Decision;

(13) Since the objectives of the proposed action, namely the co-ordination of negotiations with third countries with a view to concluding air services agreements, the necessity to guarantee a harmonised approach in the implementation and application of the agreements and the verification of compliance with Community law of such agreements, cannot be sufficiently achieved by the Member States and can therefore, by the reason of the Community-wide scope of this regulation, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this regulation does not go beyond what is necessary to achieve those objectives;

HAS ADOPTED THIS REGULATION:

Article 1 - Notification to the Commission

1. In the absence of Community negotiations with a third country, or where a Community agreement exists, but addresses only a limited number of issues, a Member State may, without prejudice to the respective competencies of the Community and its Member States, wish to enter into negotiations with that country concerning a new agreement or the modification or application of an existing air service agreement, its annexes or any other related bilateral or multilateral arrangement. If a Member State so decides it shall notify the Commission and the other Member States of its intentions in writing.

2. This notification shall include a copy of the agreement concerned and an indication of the provisions to be addressed in the negotiation, the objectives of the negotiation, and any other relevant information. It shall be transmitted at least one calendar month before contact is established with the third country concerned.

3. The Commission and the Member States may make comments to the Member State which has notified its intentions in accordance with paragraph 1. That Member State shall take such comments into account as far as possible in the course of the negotiations with the third country concerned.

Article 2 - Consultation of stakeholders and participation in negotiations

In so far as air carriers are to be associated with the negotiations referred to in Article 1, Member States shall treat equally all Community carriers with an establishment on their respective territories to which the Treaty applies.

Article 3 Prohibition to introduce more restrictive arrangements

Member States shall not enter into any arrangements that eliminate the possibility for more than one Community carrier to provide service in between its territory and a third country, either in respect of the entire air transport market between the two parties or on the basis of specific city pairs.

Article 4 - Conclusion of agreements

1. Upon conclusion of the negotiations, the Member State concerned shall notify the Commission of the draft agreement and any other relevant documentation.

2. Following the notification under paragraph 1 the Commission shall examine whether the draft agreement is compatible with Community law and the objectives of the Community in this field. If the Commission intends to object to the conclusion of the agreement, it shall take a decision to this effect in accordance with the advisory procedure laid down in Article 3 of Decision 1999/468/EC, in compliance with Article 7 and Article 8 thereof.

3. The Commission shall be assisted by the Committee established under Article 11 of Regulation 2408/92/EC.

Article 5 - Distribution of traffic rights

. Where a Member State concludes an agreement or amendments to an agreement or its annexes that provide for limitations on the number of traffic rights or the number of Community carriers eligible to be designated to take advantage of traffic rights, that Member State shall ensure a distribution of traffic rights among eligible Community carriers on the basis of a non-discriminatory and transparent procedure.

Article 6 - Notification of Procedures

The details of the procedures that Member States apply for the purposes of Articles 2 and 5 shall be notified to the Commission. Any subsequent changes to such procedures shall be notified to the Commission at least 6 weeks before they enter into force. All such notifications shall be published in the Official Journal of the European Communities.

Article 7 - Confidentiality

In notifying the Commission of negotiations and their outcome as foreseen in Articles 1 and 4, Member States shall clearly inform the Commission if any information therein is to be considered confidential. The Commission shall ensure that any information identified as confidential is treated appropriately without prejudice to regulation 1049/2001 [4].

[4] OJ L 145 , 31/05/2001 P. 0043 - 0048

Article 8 Entry into force

This regulation shall enter into force on the thirtieth 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

Done at Brussels, [...]

For the European Parliament For the Council

The President The President

[...]