No C 258/6 Official Journal of the European Communities 11. 10. 89 
Proposal for a Council Regulation (EEC) on access for air carriers to scheduled intra-
Community air service routes and on the sharing of passenger capacity between air carriers on 
scheduled air services between Member States 
COM(89) 373 final 
(Submitted by the Commission on 8 September 1989) 
(89/C 258/05) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 84 (2) 
thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinions of the European 
Parliament, 
Having regard to the opinion of the Economic and 
Social Committee. 
Whereas it is important to adopt measures with the aim 
of progressively establishing the internal market over a 
period expiring on 31 December 1992 as provided for in 
Article 8a of the Treaty; whereas the internal market 
shall comprise an area without internal frontiers in which 
the free movement of goods, persons, services and 
capital is ensured; 
Whereas Council Decision 87/602/EEC (') made a first 
step towards the liberalization in respect of sharing of 
passenger capacity and access to the market, necessary to 
achieve the internal market in air transport; whereas the 
Council agreed to take further measures of liberalization 
at the end of a three year initial period; 
Whereas in order to provide better possibilities for air 
carriers it is timely to introduce a first set of measures 
concerning the relations between States of registration 
and air carriers established in their territory; 
Whereas increased market access will stimulate the 
development of the Community air transport sector and 
give rise to improved services for users; whereas as a 
consequence it is necessary to introduce more liberal 
provisions concerning multiple designation, third-, 
fourth- and fifth-freedom traffic rights and to adopt the 
first provisions with respect to cabotage; 
Whereas, taking into account airport infrastructure, 
navigational aids and a lack of slots, it is necessary to 
include certain limitations concerning the use of traffic 
rights; Whereas arrangements for greater cooperation over the 
use of Gibraltar airport were agreed in London on 2 
December 1987 by the Kingdom of Spain and the United 
Kingdom in a joint declaration by the Ministers of 
Foreign Affairs of the two countries, and such 
arrangements have yet to come into operation; 
Whereas the development of the air traffic system in the 
Greek Islands is at present inadequate and for this 
reason airports situated on those islands should be 
temporarily exempted from the application of this Regu­
lation; 
Whereas bilateral rules concerning capacity shares are 
not compatible with the principles of the internal market 
which should be completed by 1993 in the air transport 
sector; whereas therefore the bilateral restrictions must 
be diminished gradually; 
Whereas it is especially important to encourage the 
development of inter-regional services in order to 
develop the Community network and to contribute to a 
solution to the problem of congestion at certain large 
airports; whereas, therefore, it is appropriate to have 
more liberal rules with respect of capacity sharing for 
these services; 
Whereas, taking into account the competitive market 
situation, provision should be made to prevent unjusti­
fiable economic effects on air carriers; 
Whereas this Regulation replaces Directive 
83/416/EEC (2), as last amended by Directive 
89/.. ./EEC, and Decision 87/602/EEC; whereas it is 
therefore necessary to repeal that Directive and that 
Decision, 
HAS ADOPTED THIS REGULATION: 
Scope and definitions 
Article 1 
1. This Regulation concerns: 
(a) access to the market for Community air carriers; 
(') OJ No L 374, 31. 12. 1987, p. 19. O OJ No L 237, 26. 8. 1983, p. 19. 
11. 10. 89 Official Journal of the European Communities No C 258/7 
(b) the sharing of passenger capacity between the air 
carrier(s) established in one Member State and the 
air carrier(s) established in another Member State on 
scheduled air services between these States. 
2. The application of this Regulation to the airport of 
Gibraltar is understood to be without prejudice to the 
respective legal positions of the Kingdom of Spain and 
the United Kingdom with regard to the dispute over 
sovereignty over the territory in which the airport is 
situated. 
3. Application of the provisions of this Regulation to 
Gibraltar airport shall be suspended until the 
arrangements in the joint declaration made by the 
Foreign Ministers of the Kingdom of Spain and the 
United Kingdom on 2 December 1987 have come into 
operation. The Governments of Spain and the United 
Kingdom will so inform the Council on that date. 
During this suspension the provisions of Directive 
83/416/EEC, as amended by Directive 86/216/EEC ('), 
shall apply with respect to scheduled air services to and 
from Gibraltar. 
4. Airports in the Greek Islands shall be exempted 
from the application of this Regulation until 1 July 1993. 
Unless otherwise decided by the Council, on a proposal 
by the Commission, this exemption shall apply for a 
further period of five years and may be continued for 
five years thereafter. passengers, freight and mail between two points within a 
Member State other than the State in which it is 
registered; 
(c) States concerned mean the States between which a 
scheduled air service is operated; 
(d) State of registration means the Member State in 
which the Community air carrier is registered; 
(e) Community air carrier means: 
(i) an air carrier which has its central adminis­
tration and principal place of business in the 
Community, the majority of whose shares are 
owned by nationals of Member States and/or 
Member States and which is effectively 
controlled by such persons or States, 
(ii) an air carrier which, although it does not meet 
the definition set out in (i) at the time of 
adoption of this Regulation; 
1. either has its central administration and 
principal place of business in the Community 
and has been providing scheduled or 
non-scheduled air services in the Community 
during the 12 months prior to adoption of 
this Regulation; 
Article 2 
For the purpose of this Regulation: 
(a) air carrier means an air transport enterprise with a 
valid operating licence to operate scheduled air 
services; 
(b) a third-freedom traffic right means the right for an 
air carrier established in one State to put down, in 
the territory of another State, passengers, freight 
and mail taken up in the State in which it is 
registered; 
a fourth-freedom traffic right means the right for an 
air carrier established in one State to take on, in the 
territory of another State, passengers, freight and 
mail, for off-loading in the State in which it is 
registered; 
a fifth-freedom traffic right means the right for an 
air carrier to undertake the commercial air transport 
of passengers, freight and mail between two States 
other than the State in which it is registered; 
cabotage means the right for an air carrier to 
undertake the commercial air transport of 2. has been providing scheduled air services 
between Member States on the basis of the 
third- and fourth-freedom traffic rights 
during the 12 months prior to adoption of 
this Regulation. 
The air carriers which meet the above criteria 
are listed in Annex I; 
(f) scheduled air service means a series of flights each 
possessing all the following characteristics: 
(i) it is performed by aircraft for the transport of 
passengers or passengers and cargo and/or mail 
for remuneration, in such a manner that on each 
flight seats are available for purchase by 
members of the public (either directly from the 
air carrier or from its authorized agents); 
(ii) it is operated so as to serve traffic between the 
same two or more points, either: 
1. according to a published timetable; 
or 
2. with flights so regular or frequent that they 
constitute a recognizably systematic series; 
(') OJ No L 152, 6. 6. 1986, p. 74. (g) flight means a departure from a specified airport 
towards a specified destination airport; 
No C 258/8 Official Journal of the European Communities 11. 10. 89 
(h) multiple designation on a country-pair basis means 
the designation by a State of registration of two or 
more of the air carriers established in its territory to 
operate scheduled air services between its territory 
and that of another Member State; 
(i) multiple designation on a city-pair basis means the 
designation by a State of registration of two or 
more of the air carriers established in its territory to 
operate a scheduled air service between an airport 
or airport system in its territory and an airport or 
airport system in the territory of another Member 
State; 
(j) regional airport means any airport other than one 
listed in Annex II as a category 1 airport; 
(k) airport system means two or more airports grouped 
together as serving the same city, as indicated in 
Annex II; 
(1) capacity shall be expressed as the number of seats 
offered to the general public on a scheduled air 
service over a given period; 
(m) capacity share means the share of a Member State 
expressed as a percentage of the total capacity 
calculated according to Article 12 in a bilateral 
relationship with another Member State. 
Relations between the States of registration and their air 
carriers 
Article 3 
1. Member States shall grant, on a non-discriminatory 
basis, an operating licence as an air carrier to under­
takings established on their territory when they comply 
with a set of requirements including technical and 
economic standards. A Member State which has not 
defined such a set of requirements shall do so within 
three months from the entry into force of this Regu­
lation. Member States shall publish these requirements 
and communicate them forthwith to the Commission. 
2. (a) The State of registration shall authorize, on a 
non-discriminatory basis, applicant Community 
air carriers, which are established on its territory 
and which meet the set of requirements referred 
to in paragraph 1, to operate air services within 
the Community. 
(b) The State of registration may refuse its authori­
zation or attach conditions thereto if the service 
applied for is not economically viable. Each 
Member State shall publish the criteria which it uses for its assessments on economic viability and 
communicate them forthwith to the Commission. 
3. Any decision to refuse a licence or authorization or 
to attach conditions shall be accompanied by the reasons 
therefor in writing. 
Relations between a State of destination and Community 
air carriers 
Article 4 
1. Subject to Article 6, a Member State of destination 
shall authorize Community air carriers, which according 
to Article 3 has been authorized by the State of regis­
tration, to: 
— operate third- and fourth-freedom air services, 
— combine these air services in the airports or airport 
systems located in the State of registration. 
Combined through services may have the same flight 
number. 
2. A Member State, which has approved one of the air 
carriers established in its territory to operate a service on 
a new route between regional airports with aircraft of no 
more than 100 seats, is not obliged to authorize a reci­
procal air service operated with aircraft larger than 100 
seats for a period of three years from the date of auth­
orization. 
Third- and fourth-freedom traffic rights 
Article 5 
Third- and fourth-freedom traffic rights shall exist 
between airports or airport systems in one Member State 
to airports or airport systems in another Member State 
when these airports or airport systems are open for intra-
community air services. 
Multiple designation 
Article 6 
1. A Member State of destination shall accept multiple 
designation on a country-pair basis. 
2. It shall also accept multiple designation on a 
city-pair basis: 
— from 1 January 1991, on routes on which more than 
140 000 passengers were carried in the preceding 
year, or on which there are more than 800 return 
flights per annum, 
— from 1 January 1992, on routes on which more than 
100 000 passengers were carried in the preceding 
year or on which there are more than 600 return 
flights per annum. 
11. 10. 89 Official Journal of the European Communities No C 258/9 
Combination of points 
Article 7 
In operating scheduled air services to or from two or 
more points in another Member State or States other 
than its State of registration, a Community air carrier 
shall be permitted by the States concerned to combine 
scheduled air services. Traffic rights between the 
combined points may be exercised according to Articles 
8 and 9. 
Fifth-freedom rights 
Article 8 
1. Community air carriers shall be permitted to 
exercise fifth-freedom traffic rights between combined 
points in two different Member States on the following 
conditions: 
(a) the traffic rights are exercised on a service which 
constitutes an extension of a service from, or as a 
preliminary of a service to, its State of registration; 
(b) the air carrier cannot use more than 50 % of its 
annual seat capacity on the service concerned for the 
carriage of fifth-freedom passengers. This limitation 
does not apply to aircraft with no more than 100 
seats. (b) it is operated between two airports at least one of 
which is a regional airport; 
(c) the air carrier may not use more than 30 % of its 
annual seat capacity on the air service concerned for 
the carriage of cabotage passengers. 
Conditions for the exercise of traffic rights 
Article 10 
This Regulation shall not affect a Member States' right 
to regulate in a non-discriminatory way the distribution 
of traffic between the airports within an airport system. 
Article 11 
1. The exercise of traffic rights is subject to national, 
regional or local rules relating to the protection of the 
environment, social conditions and safety and, in 
particular, to the following conditions: 
(a) the airport or airport system concerned must have 
sufficient facilities to accommodate the service; 
(b) navigational aids must be sufficient to accommodate 
the service; 
2. Member States shall not oppose the operation by 
Community air carriers of a scheduled fifth-freedom air 
service between an airport within the Community and an 
airport in a third country, provided that the authorities 
of the third country concerned agree to the service in 
question. (c) there must be available slots; 
(d) the service shall comply with published national, 
regional or local operational rules. 
3. The air carrier may, for the fifth-freedom service, 
use an aircraft which is different but not bigger than the 
aircraft which it uses for the third- and fourth-freedom 
service of which the fifth-freedom service constitutes the 
extension or the preliminary. 
Cabotage 
Article 9 
Community air carriers shall be permitted to exercise 
cabotage traffic rights between combined points within 
the same Member State on the following conditions; 
(a) the cabotage traffic rights are exercised on an air 
service which constitutes an extension of an air 
service from or a preliminary of an air service to its 
State of registation; 2. When the conditions in paragraph 1 are not met, a 
Member State may, on a non-discriminatory basis, 
impose conditions on, limit or refuse the exercise of 
those traffic rights. Before taking such a measure it shall 
inform the Commission and provide it with all the 
necessary elements of information. The Commission 
shall examine the situation and within two months 
decide whether the Member State may take the measure. 
Shares of capacity 
Article 12 
1. From 1 October 1990, a Member State shall allow 
any air carrier operating third and fourth freedom traffic 
rights and authorized by the States concerned under this 
Regulation or more flexible arrangements in force 
between them to operate routes between their territories 
to increase capacity provided that the resulting capacity 
shares are not outside the range 67,5 : 32,5. 
No C 258/10 Official Journal of the European Communities 11. 10. 89 
2. The range within which a Member State shall allow 
another Member State to increase its capacity share shall 
be extended to 75 % : 25 % from 1 April 1992. 
3. Paragraphs 1 and 2 shall not apply to a service 
between a category 1 airport as listed in Annex II and a 
regional airport which is provided by aircraft with not 
more than 100 seats nor to a service between regional 
airports irrespective of aircraft capacity. 
4. In applying the provisions of paragraph 1 and 2, 
unilateral cut-backs in capacity shall not be taken into 
account. In such cases, the basis for the calculation of 
capacity shares shall be the capacity offered in the 
previous corresponding seasons by the air carrier(s) of 
the Member State which has (have) reduced its (their) 
capacity. 
5. Notwithstanding the application of paragraphs 1 
and 2, a Member State shall permit another Member 
State to increase its capacity share by five percentage 
points compared to the capacity share during the 
previous corresponding season. 
Article 13 
1. At the request of any Member State for which the 
application of Article 12 (1) and (2) has led to serious 
financial damage for the air carrier(s) established in its 
territory, the Commission will carry out a review and, on 
the basis of all relevant factors, including the market 
situation, the financial position of the air carrier(s) 
concerned and the capacity utilization achieved, will take 
a decision on whether the capacity sharing on the routes 
to or from that State should be stabilized for a limited 
period. 
2. The Commission shall communicate its decision to 
the Council and to the Member States. Any Member 
State may refer the Commission's decision to the 
Council within a time limit of one month. The Council, 
acting by qualified majority, may take a different 
decision within a period of one month. General provisions 
Article 14 
1. This Regulation shall not prevent Member States 
from concluding between them arrangements which are 
more flexible than the provisions of Articles 6, 8, 9 and 
12 or from maintaining such arrangements in force. 
2. The provisions of this Regulation shall not be used 
to make existing capacity or market access arrangements 
more restrictive. 
Article 15 
1. The Commission shall publish a report on the 
implementation of this Regulation every two years and 
for the first time by 1 June 1992. 
2. Member States and the Commission shall cooperate 
in implementing this Regulation, particularly as regards 
collection of information for the report referred to in 
paragraph 1. 
3. Confidential information obtained in application of 
this Regulation shall be covered by professional secrecy. 
Article 16 
The Council shall decide on the revision of this Regu­
lation by 31 December 1992 at the.latest, on the basis of 
a Commission proposal to be submitted by 1 June 1992. 
Article 17 
1. Decision 87/602/EEC is hereby repealed. 
2. Without prejudice to Article 1, Directive 
83/416/EEC is hereby repealed. 
Article 18 
This Regulation shall enter into force on 1 October 
1990. 
This Regulation shall be binding in its entirety and 
directly applicable in all Member States. 
11. 10. 89 Official Journal of the European Communities No C 258/11 
ANNEX I 
Air carriers referred to in Article 2 (e) (ii) 
The following air carriers meet the criteria referred to in Article 2 (e) (ii) as long as they are recognized as 
national carriers by the Member State which so recognizes them at the time of the adoption of this Regu­
lation : 
— Scandinavian Airlines System, 
— Britannia Airways, 
— Monarch Airlines. 
ANNEX II 
List of category I airports 
BELGIUM: 
DENMARK: 
GERMANY: 
SPAIN: 
GREECE: 
FRANCE: 
IRELAND: 
ITALY: 
NETHERLANDS: 
PORTUGAL: Brussels-Zaventem 
Copenhagen-Kastrup/Roskilde 
Frankfurt-Rhein-Main, 
Diisseldorf-Lohausen, 
Munich-Riem 
Palma-Mallorca, 
Madrid-Barajas, 
Malaga, 
Las Palmas 
Athens-Hellinikon, 
Salonica-Micra 
Paris-Charles de Gaulle/Orly 
Dublin 
Rome-Fiumicino/Ciampino, 
Milan-Linate/Malpensa 
Amsterdam-Schiphol 
Lisbon, 
Faro 
UNITED KINGDOM: London-Heathrow/Gatwick/Stansted, 
Luton