German national procedure for the allocation of limited air traffic rights

2009/C 112/04

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 publishes the following national procedure for the distribution among eligible Community carriers of air traffic rights where they are limited under air service agreements with third countries.

Notification of the Guidelines of the Federal Ministry of Transport, Building and Urban Development on the allocation of limited German traffic rights available to Community air carriers (article 62a, paragraphs 2 and 3 of the LuftVZO (Air Traffic Licensing Order)) of 29 January 2009.

The Federal Ministry of Transport, Building and Urban Development hereby gives notification of the guidelines on the allocation of limited German traffic rights available to Community air carriers.

ANNEX

Guidelines of the Federal Ministry for Transport, Building and Urban Development on the allocation of limited German traffic rights available to Community air carriers (§62a, paragraphs 2 and 3 of the Air Traffic Licensing Order)

1. General objectives

These Guidelines are based on 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 (OJ L 157, 30 April 2004, p. 7; OJ L 195 of 2 June 2004, p. 3).

They serve to guarantee a transparent, non-discriminatory process for decisions concerning the allocation of scarce traffic rights and of limited possibilities for designation available. The aim is both:

— to create adequate planning certainty for all Community air carriers which are entitled to apply for traffic rights agreed between the Federal Republic of Germany and a third country which are not covered by Community law, and

— to encourage competition under fair conditions for Community air carriers in respect of air transport services to third countries, and to strengthen the German air sector’s position via balanced development of the air transport industry, while taking appropriate account of the interests of all the parties involved in air transport services, including transport users and the regions concerned, and of the economic interests relating to trade and tourism.

2. Allocation of traffic rights and designation of air carriers

2.1. Traffic rights for international air services will be granted to eligible Community air carriers on application. The rights may be restricted or revoked. Traffic rights will be allocated to air carriers as part of a route licence under §21 of the Luftverkehrsgesetz [Air Traffic Act], taking into consideration the conditions laid down in bilateral agreements between the Federal Republic of Germany and a third country.

2.2. If traffic rights and possibilities for designation are freely or adequately available, and if all the conditions under air legislation are satisfied, the traffic rights will be allocated on a regular basis to all applicants as requested, and the Federal Ministry of Transport, Building and Urban Development will carry out designation vis-à-vis the third country. In this context, it is the air transport authorities’ task to ensure that fair competition is possible as a basic condition for bilateral air transport services, in accordance with the provisions of the bilateral air service agreements.

2.3. However, if more applications are received than there are traffic rights or designation possibilities freely available, a non-discriminatory and transparent allocation procedure must be followed before the necessary flight licence is granted or designation is carried out.

3. Criteria for the decision

The following aspects will be assessed on a regular basis as part of the allocation procedure, taking into account the basic conditions laid down under bilateral air service agreements:

— best possible use of scarce rights through additional flights being offered, concerning the time of commencement of services, and the availability of aircraft when the application is made,

— service quality of the product envisaged, such as type of services (own non-stop service or connection, marketing service via code share), air carrier’s membership of an alliance or similar interconnected system, possibility of connecting flights, travel time, aircraft used, fares policy,

— reliability of flights offered, applicants’ economic and longer-term operational and technical performance in relation to routes, use of an EU-registered or leased or chartered aircraft which is not registered in the EU,

— user-friendliness (creating choice for transport users among various air carriers in specific individual markets), accessibility of air transport services for consumers (booking possibilities, contact and sales offices),

— creating the possibility for new candidates to enter the market, taking into account the impact of new services offered (e.g. additional decentralised connections),

— taking into account of scarce resources and of the environment (full utilisation of hubs, arrival and departure times, size of aircraft used, noise emissions and emissions of harmful substances),

— safeguarding of public transport interests (§21, paragraph 1 of the Air Traffic Act); taking account of the significance of these services for German and European aviation, the competitive situation in individual submarkets, any existing scarcity of resources and the consolidation of air carriers already present on the market,

— existing designations.

In addition, further criteria may be taken into consideration provided applicants are notified of this in good time before a final decision is taken on their applications.

Traffic rights should be differentiated from available slots at coordinated airports. Slots are allocated on a different legal basis and using a different procedure. A slot allocated by an airport coordinator does not, therefore, entitle an air carrier to exercise a traffic right. Nor does an allocated traffic right confer an entitlement to a specific airport slot.

4. Procedural rules

The Federal Ministry of Transport, Building and Urban Development gives all market players on request, and in a non-discriminatory manner, comprehensive information about the extent of Germany’s freely available traffic rights to a third country.

This purpose is also served by holding regular discussion meetings at the Ministry which are attended by natural and legal persons involved in air transport, including European air transport associations representing Community air carriers which are interested in acquiring German traffic rights.

4.1. Entitlement to apply

The following are entitled to apply for German traffic rights and for designation vis-à-vis a third country: air carriers the head office of which is in the area of application of European Community aviation law (Community air carriers) and which have an operating licence granted pursuant to 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 (OJ L 293 of 31 October 2008, p. 3), provided they:

(a) have their head office in Germany, or

(b) have a place of business in Germany and this fact is recognised by the Luftfahrt-Bundesamt (German Aviation Agency) in accordance with Community requirements. An application for such recognition must be submitted to the Agency as part of the application for traffic rights.

4.2. Submitting an application for traffic rights

4.2.1. Applications for the allocation of traffic rights must be submitted to the Agency, in writing and in German, by 1 May each year for the following winter scheduling season, and by 1 November each year for the following summer scheduling season. If an allocation procedure needs to be conducted, on account of the number of applications submitted, only applications submitted by the deadline will be considered. Applications for a scheduling season that is already under way will be considered only if traffic rights are freely available.

4.2.2. Applications for designation must be sent to the Federal Ministry of Transport, Construction and Urban Development in writing and in German

As a matter of principle, an air carrier is only designated vis-à-vis a third country if a route licence has been granted, pursuant to §21 of the Air Traffic Act, for the specific services proposed.

4.3. Application documents

Air carriers applying for scarce traffic rights or for limited available designation must, in particular, give the following details:

— number of weekly frequencies, start and destination airport, type of flights (passenger and/or cargo),

— routes: non-stop flight/number of stopovers, or connection (hub), existing code-share connections, flight duration,

— date when services are due to commence,

— whether year-round or seasonal operation is planned,

— aircraft used (model of aircraft, including number of seats),

— membership of an alliance, where applicable, connections offered,

— focus for acquiring passengers (booking by individuals, organised trips),

— services provided for passengers (e.g. transport categories offered, connecting transportation of luggage),

— fare-setting (level of fares and fare structure),

— indication as to whether there is interest in starting the entire requested flight programme, or whether rights allocated are to be only partially exercised,

— where applicable, recognition by the Aviation Agency of a place of business in Germany; air carrier operating licence.

All applicants may be asked for additional information regarding their applications.

4.4. Decision on the applications

4.4.1. Route licence and traffic rights

(a) An allocation procedure in accordance with point 2.3 is conducted by the Federal Ministry of Transport, Building and Urban Development in conjunction with the Aviation Agency. The latter forwards to the Ministry the applications for the allocation of traffic rights it has received, in accordance with point 4.2.1, by the time limit.

(b) On the basis of the criteria set out in Section 3, the Ministry decides on the allocation of traffic rights requested by air carriers, and informs the Aviation Agency of its decision.

(c) The Agency notifies air carriers of the decisions taken concerning their applications for the allocation of traffic rights as part of the granting or refusal of route licences applied for pursuant to §21 of the Air Traffic Act. If an application by an air carrier for the allocation of particular traffic rights cannot be approved, and the route licence therefore cannot be granted, as requested, the carrier must be given detailed reasons for this in writing.

(d) The Agency takes into account the result of the allocation procedure when examining flight plans submitted in accordance with §63b of the Air Traffic Licensing Order.

4.4.2. Designation

If only limited possibilities for designation are available, the Ministry decides, On the basis of the criteria set out in Section 3, which carriers can be designated and informs the third country of the decision taken with regard to designation.

4.5. Expiry of traffic-right licences and withdrawal of designation

If the traffic rights allocated by the Agency are not used for over six months, then the route licence expires (§21, paragraph 1, sentence 3 in conjunction with §20, paragraph 3, sentence 5 of the Air Traffic Act).

If traffic rights which have been allocated by the Aviation Agency subject to the flight service starting no later than a specific point in time following the route-entry date notified in the licence application have not been used by that point, this can lead to expiry of the route licence before the expiry of the deadline specified in paragraph 1 (§21, paragraph 1, sentence 3 in conjunction with §20, paragraph 2, sentence 1 of the Air Traffic Act).

The Agency will allocate elsewhere the traffic rights which are freed up by expiry of the route licence.

If the route licence expires, the Ministry will, if necessary, revoke the Community carrier’s designation vis-à-vis a third country.

5. Review of decisions

In accordance with the provisions of German law relating to administrative procedures, any air carrier concerned may request a review of the traffic-rights decisions taken by the Agency on the basis of an allocation procedure.