Declaration by the Commission

on relations between the Community, its Member States and third countries in the field of air transport

(2003/C 69/03)

1. The Commission recalls that the European Court of Justice judgements of 5 November 2002 in the so-called "open skies" cases had implications not only for the eight specific agreements with the United States which were found to infringe Community law, but for all other bilateral air services agreements to which Member States of the European Community are party.

2. In response to the Court judgements and in order to bring the relationship between the Member States and the United States into conformity with Community law, the Commission immediately requested the Council to adopt a mandate for Community negotiations with the United States on the creation of a new EU-US agreement. The Commission hereby reaffirms this request.

3. In addition, the Commission has now adopted a further proposal and a recommendation for the adoption of a general mandate that, together with the US mandate, form a package of measures that will provide a sound legal framework for the ongoing negotiation and implementation of air services agreements and an appropriate division of responsibilities between the Community and its Member States. This is of particular interest to our airline industry since continuing uncertainty over the handling of international agreements could prevent the ongoing development of services to third countries.

4. In order to address the infringements of Community law in other bilateral agreements, the Commission has recommended to the Council a general mandate for Community negotiations with third countries. The key objective is the replacement of clauses in bilaterals that permit third countries to discriminate between Community air carriers on the basis of ownership, thereby infringing the Right of Establishment set out in the Treaty. The Commission considers that the opening and successful conclusion of such negotiations represent the best way of making bilateral agreements compatible with Community law. Therefore, the Commission urges the Council to adopt this mandate as a matter of urgency.

5. In addition, the Commission has adopted a proposal for a Regulation on procedures for the negotiation and implementation of bilateral air service agreements between Member States and third countries for matter falling within their competence. This Regulation will provide a clear legal framework for guaranteeing that Member States will not favour one Community carrier over another in their bilateral agreements, while providing that Member States can continue to negotiate amendments to such agreements without prejudice to their obligations and the competencies of the Community under the Treaty. The Commission urges the Council and the European Parliament to adopt this proposal as soon as possible.

6. Pending the final adoption of all three elements of this package, the Commission considers that it is important to ensure that Member States, in the course of their contacts with foreign States, comply with some basic principles in order to avoid conflict with the provisions of the Treaty and the requirements of Community law.

7. Under Article 10 of the Treaty, Member States are under an obligation to ensure fulfilment of obligations that arise therefrom and that they are under an obligation to facilitate the achievement of the Community's tasks. Therefore, the Commission calls upon Member States to conduct their relations with third countries accordingly.

- Member States' actions must support the Community's initiatives, negotiations policies and objectives.

- Member States must not enter into negotiations on any matters of Community competence or which are the subject of Community negotiations under a specific mandate.

- With regard to their own bilateral agreements Member States must inform the Commission of all planned international negotiations and the outcome of such negotiations in order that it may monitor and coordinate approaches to third countries as well as ensure that Community law is respected.

- Pending the adoption of the abovementioned Regulation specifying detailed Community rules in this matter, Member States must distribute any traffic rights arising from their bilateral agreements in a non-discriminatory, transparent and timely manner between Community carriers with an establishment on their territory.

- Without prejudice to the recommendation for a general mandate referred to above, Member States must use the opportunities offered by their bilateral agreements to open routes to and from third countries to all Community carriers with an establishment on their territory on a fair and equal basis in order to give practical effect to the right of establishment as set out in Article 43 of the Treaty.

8. The Commission requests Member States to follow these guidelines until the adoption of the mandates and until the proposed Regulation enters into force so as to avoid the infringements of Community law in the air transport sector.