Common Position (EC) No 7/2004

adopted by the Council on 5 December 2003

with a view to adopting Regulation (EC) No .../2004 of the European Parliament and of the Council of ... on the negotiation and implementation of air service agreements between Member States and third countries

(2004/C 54 E/03)

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,

Having regard to the Opinion of the European Economic and Social Committee(1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(2),

Whereas:

(1) International aviation relations between Member States and third countries have been traditionally governed by bilateral air service agreements between Member States and third countries, their Annexes and other related bilateral or multilateral arrangements.

(2) Following the judgments 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 has exclusive competence with respect to 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 the right to non-discriminatory market access.

(4) Where it is apparent that the subject-matter of an agreement 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) The cooperation procedure between Member States and the Commission established by this Regulation should be without prejudice to the division of competencies between the Community and Member States, in accordance with Community law as interpreted by the Court of Justice.

(6) All existing bilateral agreements between Member States and third countries that contain provisions contrary to Community law should be amended or replaced by new agreements that are wholly compatible with Community law.

(7) Without prejudice to the Treaty, and in particular Article 300 thereof, Member States may wish to make amendments to existing agreements and make provision to manage their implementation until such time as 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.

(9) If a Member State wishes to involve air carriers in the process of negotiation, all air carriers with an establishment in the territory of the Member State concerned should be treated equally.

(10) Establishment on the territory of a Member State implies the effective and real exercise of air transport activity through stable arrangements; the legal form of such an establishment, whether a branch or a subsidiary with a legal personality, should not be the determining factor in this respect. When an undertaking is established on the territory of several Member States, as defined by the Treaty, it should ensure, in order to avoid any circumvention of national law, that each of the establishments fulfils the obligations which may, in accordance with Community law, be imposed by the national law applicable to its activities.

(11) In order to ensure that the rights of Community air carriers are not unduly restricted, no new arrangements that reduce the number of Community air carriers which may be designated to provide air services in a given market should be introduced in bilateral air service agreements.

(12) Member States should establish non-discriminatory and transparent procedures for the distribution of traffic rights between Community air carriers. In applying those procedures Member States should have due regard to the need to preserve continuity of air services.

(13) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(3).

(14) Any Member State may invoke the confidentiality of the provisions of bilateral agreements it has negotiated and request the Commission not to share the information with other Member States.

(15) 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. Such arrangements have yet to enter into operation.

(16) Since the objectives of this Regulation, namely the coordination of negotiations with third countries with a view to concluding air service agreements, the necessity to guarantee a harmonised approach in the implementation and application of those agreements and the verification of their compliance with Community law, cannot be sufficiently achieved by the Member States and can therefore, by 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 in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

Article 1

Notification to the Commission

1. A Member State may, without prejudice to the respective competencies of the Community and its Member States, enter into negotiations with a third country concerning a new air service agreement or the modification of an existing air service agreement, its Annexes or any other related bilateral or multilateral arrangement, the subject matter of which falls partly within the competence of the Community, provided that:

- any relevant standard clauses, developed jointly between Member States and the Commission, are included in such negotiations; and

- the notification procedure set out in paragraphs 2, 3 and 4 is complied with.

Where appropriate, the Commission shall be invited to participate as an observer in any such negotiations.

2. Where a Member State intends to enter into such negotiations it shall notify the Commission of its intentions in writing. This notification shall include a copy of the existing agreement, if available, other relevant documentation and an indication of the provisions to be addressed in the negotiations, the objectives of the negotiations and any other relevant information. The Commission shall make the notification and, on request, the accompanying documentation, available to other Member States, subject to the requirements of confidentiality.

The information shall be transmitted at least one calendar month before formal negotiations are scheduled to commence with the third country concerned. If, due to exceptional circumstances, formal negotiations are scheduled at less than one month's notice, the Member State shall transmit the information as soon as possible.

3. Member States may make comments to the Member State which has notified its intention to enter negotiations in accordance with paragraph 2. That Member State shall take such comments into account as far as possible in the course of the negotiations.

4. If, within 15 working days of receipt of the notification referred to in paragraph 2, the Commission concludes that the negotiations are likely to:

- undermine the objectives of Community negotiations underway with the third country concerned, and/or

- lead to an agreement which is incompatible with Community law

it shall inform the Member State accordingly.

Article 2

Consultation of stakeholders and participation in negotiations

Insofar as air carriers and other interested parties are to be involved in the negotiations referred to in Article 1, Member States shall treat equally all Community air carriers with an establishment on their respective territories to which the Treaty applies.

Article 3

Prohibition on introducing more restrictive arrangements

A Member State shall not enter into any new arrangement with a third country, which reduces the number of Community air carriers which may, in accordance with existing arrangements, be designated to provide services between its territory and that country, neither in respect of the entire air transport market between the two parties nor on the basis of specific city pairs.

Article 4

Conclusion of agreements

1. Upon signature of an agreement, the Member State concerned shall notify the Commission of the outcome of the negotiations together with any relevant documentation.

2. Where the negotiations have resulted in an agreement which incorporates the relevant standard clauses referred to in Article 1(1), the Member State shall be authorised to conclude the agreement.

3. Where the negotiations have resulted in an agreement which does not incorporate the relevant standard clauses referred to in Article 1(1), the Member State shall be authorised, in accordance with the procedure referred to in Article 7(2), to conclude the agreement, provided that this does not harm the object and purpose of the Community common transport policy. The Member State may provisionally apply the agreement pending the outcome of this procedure.

4. Notwithstanding paragraphs 2 and 3, if the Commission is actively negotiating with the same third country on the basis of a country-specific mandate or on the basis of Council Decision 2004/.../EC of ... authorising the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement 1(4), the Member State concerned may be authorised, in accordance with the procedure referred to in Article 7(2), to apply provisionally and/or conclude the agreement.

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 use of traffic rights or the number of Community air carriers eligible to be designated to take advantage of traffic rights, that Member State shall ensure a distribution of traffic rights among eligible Community air carriers on the basis of a non-discriminatory and transparent procedure.

Article 6

Publication of procedures

Member States shall inform the Commission without delay of the procedures that they shall apply for the purposes of Article 5 and, where appropriate, Article 2. For information purposes, the Commission shall ensure that these procedures are published in the Official Journal of the European Union within eight weeks of their receipt. Any new procedures and subsequent changes to existing procedures shall be communicated to the Commission at least eight weeks before they enter into force, so that the Commission can ensure their publication in the Official Journal of the European Union within that eight-week period.

Article 7

Committee procedure

1. The Commission shall be assisted by the committee established under Article 11 of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes(5).

2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

3. The Committee shall adopt its rules of procedure.

Article 8

Confidentiality

In notifying the Commission of negotiations and their outcome as envisaged in Articles 1 and 4, Member States shall clearly inform the Commission if any information therein is to be considered confidential and whether it can be shared with other Member States. The Commission and Member States shall ensure that any information identified as confidential is treated according to Article 4(1)(a) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(6).

Article 9

Gibraltar

1. 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.

2. Application of this Regulation to Gibraltar airport shall be suspended until the arrangements included in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 enter into operation. The Governments of Spain and the United Kingdom will inform the Council of such date of entry into operation.

Article 10

Entry into force

This Regulation shall enter into force on the thirtieth day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 234, 30.9.2003, p. 21.

(2) Opinion of the European Parliament of 2 September 2003 (not yet published in the Official Journal), Council Common Position of 5 December 2003 and Position of the European Parliament of ... (not yet published in the Official Journal).

(3) OJ L 184, 17.7.1999, p. 23.

(4) OJ L ...

(5) OJ L 240, 24.8.1992, p. 8. Regulation as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(6) OJ L 145, 31.5.2001, p. 43.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 26 February 2003 the Commission submitted a proposal for a Regulation on the negotiation and implementation of air service agreements between Member States and third countries.

2. The European Parliament adopted opinion at first reading on 2 September 2003, whilst the Economic and Social Committee's opinion was adopted on 16 July 2003. The Committee of the Regions informed the Council that it did not intend to deliver an opinion on this file.

3. On 5 December 2003 the Council adopted its common position in accordance with Article 251 of the Treaty.

II. OBJECTIVE

The proposal was made in the wake of the European Court of Justice rulings of 5 November 2002 regarding bilateral air service agreements concluded by eight Member States with the United States. These judgements confirmed that the agreements in question included provisions falling within the exclusive competence of the Community. But the consequences of these judgements went much wider. In effect the Court confirmed that Member States are not exclusively competent to negotiate and conclude a classical bilateral air services agreement.

The proposal in question responds to this situation by seeking to establish a framework within which Member States can continue to negotiate and implement such agreements whilst respecting Community law in this area of "mixed competence".

III. ANALYSIS OF THE COMMON POSITION

1. Key changes

Whilst accepting the basic rationale behind the Commission's proposal, the Council made a number of important changes to the content and structure of the text, and in particular to Articles 1 and 4 which deal with the Community notification and authorisation system. These changes reflect the over-riding concern of Member States that the system to be established by this Regulation should be workable in practice and permit Member States to continue to negotiate new agreements and update agreements already in force in a manner that is both efficient and responsive to the ever-shifting demands of the global market for aviation services.

Three changes should be particularly stressed in this regard:

- the scope of the draft Regulation was broadened so as to also include cases where Member States negotiate with a third country with which the Commission is also negotiating on behalf of the Community. Through this extension of scope, the Council was able to secure acceptance of the notion of parallel negotiations at Community and national level. This, inter alia, permits routine updating of existing bilateral agreements pending the outcome of Community level negotiations;

- a fast track procedure, whereby Member States are authorised automatically to conclude agreements on behalf of the Community if they include certain standard clauses, has been introduced;

- the principle that Member States may provisionally apply agreements pending the outcome of Community verification procedures has been introduced.

The result of these changes is a comprehensive framework to covering all possible scenarios. Under the new Article 4, the Commission retains powers to block agreements where negotiations have not resulted in the inclusion of standard Community clauses (and the agreements might consequently infringe Community law), or in cases where the Commission is itself actively negotiating with the third country concerned on the basis of a mandate granted by the Council. In both situations the Commission decides together with an advisory committee of Member States. The Council considers the whole system established to be a balanced and reasonable one, which takes account of not only the Commission's institutional role as the guardian of the Treaty but also the critical importance of speedy and lightweight procedures, to be applied only in those categories of cases where it is strictly necessary.

2. Other significant modifications

Several other less fundamental, but nevertheless significant, changes to the Commission's proposal have been introduced. These include the following:

- the obligation on Member States in Article 1 to notify each other regarding forthcoming negotiations has been removed. Now the Commission is the central repository of such notifications which it must make available to other Member States. This is a less bureaucratic and more streamlined system;

- the text of Article 2 has been broadened to require equal treatment of all interested parties (not only air carriers) as regards their association with negotiations taking place;

- the intention behind Article 3, the prohibition of more restrictive arrangements, has been clarified;

- a timescale for publication of procedures has been added in Article 6. (Previously there was a deadline only for publication of changes, but not of the procedures themselves);

- regarding confidentiality (Article 8, formerly Article 7), the intention underlying the Commission's proposal - that confidentiality restrictions could prevent notifications being passed on to other Member States - has been retained but clarified further;

- the relevant standard provisions regarding the airport of Gibraltar have been introduced.

3. Consideration of the European Parliament's first reading opinion

The underlying concerns expressed by the European Parliament in its first reading opinion coincided quite closely with those of Member States. It is therefore fair to say that the Parliament's opinion is well reflected, in general terms, in the common position text. However, because of the significant structural changes introduced by the Council, particularly to Articles 1 and 4, it has not always been possible to follow the specific wording of the individual amendments.

(a) Amendments incorporated fully or in part into the common position

Amendments 1, 2 and 3

Accepted in full.

Amendment 11

Accepted in part and in principle. The limitation to "official" negotiations proposed by the Parliament is reflected through the introduction in Article 4(4) of the requirement that the Commission must be "actively" negotiating.

Amendment 12

Accepted in principle. The moving of the text in the first part of the amendment to paragraph 2 is a drafting change followed in principle by the Council. The Council has also followed the Parliament in removing the active requirement for a Member State to inform other Member States. The addition of greater flexibility (adding "in principle") regarding the timing of notification is taken over in the Council text by a derogation from the one month limit "due to exceptional circumstances".

Amendment 19

Acceptable in that the equivalent text is already to be found in Article 4(1).

Amendment 14

The first part is accepted in principle.

Amendment 15

Accepted in principle. Following the Parliament the Council has sought a clearer formulation of Article 3.

(b) Amendments not incorporated into the common position

Amendments 4 and 14 (second part) deal with the notion of establishment originating in the Treaty and interpreted in many rulings of the Court of Justice. There is very little margin to depart from this concept in secondary legislation.

Amendment 5 does not correspond to the substantive article.

Amendment 6 seeks to alter established standard recital wording on subsidiarity and proportionality.

Amendment 7 does not fit well with the text of the articles and seems inconsistent with the fact that bilateral agreements are an area of "mixed competence".

Amendments 8, 9 and 10 do not concern Member State-level negotiations and thus are not appropriate as recitals to this regulation. Such policy concerns are more typically included in negotiating mandates granted to the Commission which are necessarily non-public documents.

Amendment 13 is not accepted because the Council considers it important that a Member State has the possibility of commenting on another Member State's negotiations.

Regarding Amendment 18 the Council considers that the common position's provisions on confidentiality are clearer and more workable in practice.

4. Conclusions

The Council considers that the common position represents a fair and reasonable balance combining the need for pragmatic and workable and mechanisms, consistent with the functioning of the global aviation market, with the legal requirements flowing from the Treaty as interpreted by the Court of Justice. In reaching this common position, the Council has sought to take the utmost account of the concerns expressed by the European Parliament in first reading.