EN Official Journal of the European Union C 341/7

Spanish national procedure for the allocation of restricted air traffic rights

2012/C 341/05

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 of traffic rights among eligible European Union air carriers where they are limited under air service agreements with third countries.

MINISTRY OF INFRASTRUCTURE

Royal Decree No 1678/2011 of 18 November 2011 concerning information on air traffic rights arising from agreements with third countries to which Spain is a party and the rules for exercising those rights





The opening of the air transport market has traditionally been through bilateral agreements between States in which traffic rights are granted. However, the trend within the European Union is gradually to replace bilateral agreements with third countries with multilateral agreements, negotiated by the European Union with those third countries.

All these air service agreements open up new opportunities for air carriers, enabling them to operate new routes or intensify operations on existing routes, while helping to increase understanding between peoples and promote social, cultural and economic activity.

In view of the vital importance of such agreements for the air transport sector, there have traditionally been mechanisms to ensure that the sector is fully aware of agreements signed by Spain and, essentially, of the air traffic rights granted therein. However, the basic requirements for providing this information should be laid down to make the system fully transparent and strengthen legal certainty for all stakeholders.

In addition, a specific procedure should be laid down for allocating these air traffic rights, adapting the general provisions of Law No 30/1992 of 26 November 1992 on legal arrangements for the public administrations and the common administrative procedure to the specific features of the aviation sector and the rights granted.

This procedure, which must be transparent and non-discriminatory, applies to the allocation of all traffic rights obtained under air service agreements to which Spain is a party and that place restrictions on the use of traffic rights or on the number of air carriers. Rules are therefore being laid down to implement the procedure provided for in Article 5 of 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, making it applicable to multilateral agreements that also establish such restrictions.

However, in cases where the traffic rights available are sufficient to meet the demands of air carriers, the examination of requests for allocation is simplified because there is no competitive tendering and the granting of traffic rights to an air carrier does not prejudice the right of other interested carriers. In such cases, there is no need for an evaluation of tenders in order to reject those that are given the lowest valuation and it is sufficient to verify that the project is financially sound and that the conditions for refusing the requested traffic rights are not met.

Traffic rights arising under agreements that place no restriction on the use of rights or on the number of air carriers that may exercise them, which is the case with most multilateral agreements negotiated by the European Union, may be exercised by any air carrier that satisfies the specific requirements stipulated in the agreement concerned, subject to approval of its schedule of operations by the National Air Safety Agency. However, those traffic rights are subject to control by the Dirección General de Aviación Civil (Directorate-General for Civil Aviation), which may revoke them in the circumstances expressly provided for in the agreement and this Royal Decree.

Accordingly, on a proposal from the Minister for Infrastructure, with the prior approval of the Deputy Prime Minister responsible for Land Use Planning and Public Administration, in agreement with the Council of State and following deliberation by the Council of Ministers at its meeting on 18 November 2011,

I HEREBY DECREE AS FOLLOWS:

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

The purpose of this Royal Decree is to establish information obligations regarding traffic rights arising from air service agreements concluded with third countries to which Spain is a party and to lay down rules for allocating, exercising and controlling those rights.

Article 2

Scope and competence

1. This Royal Decree shall apply to bilateral and multilateral air transport agreements concluded with third countries to which Spain is a party and to the allocation, exercise and control of traffic rights arising from such agreements.

2. Notwithstanding the previous paragraph, any provisions of this Royal Decree on the allocation and exercise of traffic rights that are incompatible with the provisions of the agreements on air transport services to which Spain is a party shall not apply.

3. The Directorate-General for Civil Aviation shall be the competent body for the implementation of this Royal Decree.

CHAPTER II

INFORMATION ON TRAFFIC RIGHTS

Article 3

Information obligations regarding air service agreements

1. The Directorate-General for Civil Aviation, via the website of the Ministry of Infrastructure (http://www.fomento.es), shall provide up-to-date information on:

(a) the traffic rights available in aviation markets between Spain and third countries with which air service agreements have been concluded;

(b) any planned future international negotiations on air service agreements;

(c) the criteria used by the Directorate-General for Civil Aviation for evaluating operational projects during the procedure for allocating traffic rights, in accordance with Article 12;

(d) orders to initiate the procedures for allocating traffic rights;

(e) the outcome of procedures for allocating traffic rights;

(f) the surrender, revocation and transfer of allocated traffic rights.

2. Where air carriers holding traffic rights request postponement of the publication of the information provided for in paragraph 1(e) and (f), based on the confidentiality of their business planning, the Directorate-General for Civil Aviation may agree to delay publication of the information concerned for the time necessary to ensure such confidentiality.

Under no circumstances shall the publication of this information be considered to affect the confidentiality of the air carrier’s business planning where it fulfils the criteria or complies with the provisions laid down at Community level.

Article 4

Consultation of air carriers

The Directorate-General for Civil Aviation, at any time before the negotiation of an air service agreement, may ask air carriers for information on the traffic rights they would be interested in exercising.

This information may be obtained directly from air carriers or through the most representative Spanish air carrier associations.

CHAPTER III

ALLOCATION OF TRAFFIC RIGHTS IN MARKETS SUBJECT TO RESTRICTIONS

Article 5

Procedure for the allocation of traffic rights

The procedure laid down in this Chapter shall apply to the allocation of traffic rights obtained under air service agreements concluded with third countries to which Spain is a party, where those agreements provide for restrictions on the use of traffic rights, and to cases in which restrictions on those traffic rights are lifted for any reason.

For the purposes of the previous paragraph, air service agreements shall be deemed to impose restrictions on the use of traffic rights both when there is a restriction on the number of rights and when there are restrictions on the number of air carriers to which such rights may be allocated.

Article 6

Eligibility

1. Only air carriers established in Spain holding an operating licence issued in accordance with 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 shall be eligible to take part in the procedure for the allocation of traffic rights obtained by Spain under a bilateral air service agreement with a third country.

2. All air carriers that fulfil the conditions laid down in the agreement concerned may request allocation of traffic rights obtained under multilateral agreements concluded with third countries to which Spain is a party.

Article 7

Initiation of the allocation procedure

1. The procedure for the allocation of traffic rights shall be officially initiated by the Directorate-General for Civil Aviation.

Interested air carriers may notify the Directorate-General for Civil Aviation of their interest in the initiation of the procedure.

2. The order initiating the procedure shall specify the available traffic rights, the time limit for submitting applications for participation in the allocation procedure, the value or value tolerances to be attributed to the criteria to be used for evaluating the operational projects submitted under the procedure and, where appropriate, the conditions additional to the general conditions laid down in this Royal Decree that must be fulfilled in view of the nature of the market and that will be taken into account in the evaluation of applications.

The additional conditions referred to in the previous subparagraph shall be objective and shall in no case entail restrictions on the access of eligible carriers to traffic rights.

3. The order initiating the procedure shall be published on the website of the Ministry of Infrastructure (http://www.fomento.es) and shall be notified to all the air carriers that, during the consultation procedure provided for in Article 4, have shown interest in obtaining the available traffic rights and to the most representative Spanish air carrier associations.

For reasons associated with the general interest, the Director-General for Civil Aviation may agree to publish the order to initiate the procedure in the Boletín Oficial del Estado (Spanish Government Gazette) and, where appropriate, in the Official Journal of the European Union.

Article 8

Applications

1. Air carriers meeting the requirements laid down in this Royal Decree that take part in the allocation of available traffic rights under the order initiating the procedure must submit, within the time limit prescribed in the order, their applications in writing in the form laid down in Article 38(4)(d) of Law No 30/1992 of 26 November 1992 or by any electronic means that guarantees their authenticity, in accordance with Law No 11/2007 of 22 June 2007 on electronic access by citizens to public services.

The application, to be sent to the Director-General for Civil Aviation, must be drafted in the language provided for in Article 36(1) of Law No 30/1992 of 26 November 1992.

2. The application must be accompanied by the operational project that the air carrier intends to implement in the market to which the requested traffic rights refer. The project shall include at least the following information:

(a) the characteristics of the proposed service, identifying at least the characteristics of the route, a description of the proposed services and itineraries, the planned frequencies, the type of aircraft to be used, their configuration and capacity, the type of operation, whether code shared or not, any planned links, where appropriate, and the rules laid down to ensure continuity of service and where appropriate, membership of a global network;

(b) the value for money offered to consumers, specifying, inter alia, the planned price range, the services offered to passengers and in-flight services;

(c) accessibility to the service for users, including the measures planned to ensure accessibility for persons with disabilities or reduced mobility and, inter alia, the proposed reservation arrangements, contact offices, sales network and e-services it is planned to make available to users to access the service;

(d) the air carrier’s technical and commercial capacity to provide the services and guarantees of the viability and continuity of the operation. This shall include information on the company’s financial situation, the plan to ensure the economic viability of the project, the competitive impact, information on membership of an alliance, where appropriate, and operational capacity;

(e) the contribution of the project to improving regional connections;

(f) a financial report on the project, containing, inter alia, a breakdown of the estimated costs and revenue for the operation, both overall and in unit terms, the services it is planned to provide, block hours, demand forecasts, contracts, relationship with operator agents and any other circumstances relevant for evaluating the economic viability of the project;

(g) an environmental impact report on the project;

(h) the duration and proposed starting date for the services, which may under no circumstances be more than 12 months after the date of the order initiating the procedure, unless that order provides for a different starting date;

(i) details of any additional requirements that have been previously laid down in the order initiating the procedure by the Directorate-General for Civil Aviation, taking into account the specific characteristics of the market;

(j) the impact of the project on infrastructure development and the estimated number of jobs to be created.

3. If the documentation submitted under this Article does not meet the requirements laid down in paragraphs 1 and 2, the examining body shall require the air carrier concerned to rectify the shortcomings identified within 10 days. If the air carrier does not submit the documentation within the required time period, it shall be deemed to have withdrawn its application.

The rectification of shortcomings in the operational project submitted shall be restricted to meeting the minimum information requirement referred to in paragraph 2, but the redrafting or improvement of the operational project submitted shall not be permitted, nor shall it be taken into account in the evaluation.

Article 9

Examination of tenders and confidentiality

1. The Head of the Unit of the Directorate-General for Civil Aviation with responsibility for international air service agreements shall be the examining body under the procedure and shall be responsible for its timetable, organisation and implementation.

2. Information included in the operational project classified as confidential by the air carriers shall not be made available to competitors, so not to undermine any competitive advantage.

Should certain data be unjustifiably considered confidential, the examining body shall, after consulting the air carrier putting forward the project, determine what information considered confidential may be made available to the other tendering air carriers.

Article 10

Draft decision

1. Where there are not sufficient traffic rights in each procedure to meet the demands of the air carriers tendering under the allocation procedure, after the comments of the stakeholders on the report on the evaluation of tenders and the allocation of traffic rights have been examined as provided for in Article 11(5), the examining body shall draw up a draft decision.

2. Where the available traffic rights under each procedure are sufficient to meet the demands of the air carriers tendering under the allocation procedure, the examining body shall check that there are no circumstances as referred to in Article 13(2) to trigger the refusal of the requested traffic rights.

After carrying out this check, the examining body shall draw up a draft decision after consulting the air carriers tendering under the allocation procedure, unless this step may be omitted in accordance with Article 84(4) of Law No 30/1992 of 26 November 1992.

3. The draft decision shall specify the applicants to which traffic rights are to be allocated and, where appropriate, the result of the evaluation of operational projects, and shall expressly state that the remaining applications have been rejected.

The draft decision may leave available traffic rights unallocated in the cases provided for in Article 13(2).

4. In the circumstances referred to in paragraph 1, the draft decision may include a ranked list of all the applications received that, although satisfactory as regards the management of traffic rights, were not selected because there were insufficient traffic rights available.

Where the draft decision makes use of the option provided for in this paragraph, all the air carriers included on the list shall be notified thereof and must state, within a non-extendable period of 10 days, that they each undertake to exercise the traffic rights allocated to them in the draft decision and accept the conditions laid down therein, including where traffic rights were allocated to them because they were not accepted by other better qualified companies.

Should any tenderer wish to withdraw their application in view of the allocation of traffic rights proposed in the draft decision, those rights shall be granted to the next ranked applicant or applicants.

The validity of the ranked list of all applications referred to in this paragraph shall be limited to the duration of the procedure that terminates with a decision adopted in accordance with Article 13.

5. The draft decision shall be sent to the Director-General for Civil Aviation, where appropriate after completion of the formalities referred to in the previous paragraph, to adopt the necessary decision as provided for in Article 13.

The draft decision shall confer no rights on the proposed carriers.

Article 11

Evaluation of operational projects

1. In the cases referred to in Article 10(1), the operational projects submitted by air carriers shall be evaluated in a transparent and non-discriminatory manner by a Technical Evaluation Committee, attached to the Directorate-General for Civil Aviation, whose composition and tasks are laid down in this Article.

2. The Technical Evaluation Committee shall be chaired by the Head of Unit of the Directorate-General for Civil Aviation with responsibility for international air service agreements.

The Technical Evaluation Committee shall be composed of three members appointed by its Chair from adequately qualified personnel of the State Secretariat for Transport or of the management bodies reporting to it.

The member with the lowest rank, seniority and age, in that order, shall act as Secretary to the Committee.

The creation and operation of the Technical Evaluation Committee shall rely on the human and material resources of the Directorate-General for Civil Aviation, and, where appropriate, so far as concerns its composition, the human resources of the State Secretariat or the management bodies reporting to it, without this entailing any increase in public expenditure.

3. The Technical Evaluation Committee shall be governed by the rules on collegiate bodies set out in Chapter II of Title II of Law No 30/1992 of 26 November 1992 and may, when evaluating projects, call for any information or reports it considers necessary, either from other organs or bodies of the Ministry of Infrastructure or from undertakings that are part of and a technical service of the General State Administration. The Technical Evaluation Committee may also require stakeholders to provide clarification of any matter arising with regard to the projects submitted.

The Technical Evaluation Committee may be set up and adopt its decisions using electronic means, in accordance with the First Additional Provision of Law No 11/2007 of 22 June 2007 on electronic access by citizens to public services.

4. The Technical Evaluation Committee, after examining the projects on the basis of the evaluation criteria laid down in Article 12 and determining the value or value tolerances to be awarded to each in accordance with the order initiating the procedure, shall draw up a technical report on the evaluation of tenders and the allocation of traffic rights.

5. Once the technical report on the evaluation of tenders and the allocation of traffic rights has been drawn up, the examining body shall hear the stakeholders during a 10-day procedure.

Article 12

Criteria for evaluating operational projects

The Technical Evaluation Committee shall draw up its technical report on the evaluation of tenders and the allocation of traffic rights on the basis of the following criteria:

(a) optimisation of the use of the traffic rights to be allocated, taking into account, inter alia, the characteristics of the route, the itineraries proposed, the frequencies of services and the capacity of the aircraft, any planned links and the type of operation;

(b) the benefits to consumers in terms of value for money and accessibility;

(c) the technical, commercial and economic viability of the project and guarantees regarding continuity of operation of the services, taking into account, inter alia, the air carrier’s financial situation, the plan to ensure the economic viability of the project, its competitive impact and its membership of an alliance;

(d) the economic and environmental impact of the project, taking into account, inter alia, the forecast supply and demand, the contracts, the impact of the new routes on the economy of the region from which the services will operate and the airworthiness of the aircraft it is planned to use, compliance with the emissions trading scheme and combating climate change;

(e) the project’s impact on competition, taking into account, inter alia, the access of new operators and the diversification of operators;

(f) the impact of the project in extending air routes and regional connections, with regard, inter alia, to the opening of routes, the use of new Spanish airports and improving regional and passenger connectivity, by means of new routes, an increase in the number of days of operation, frequencies, timetables or connection times;

(g) the compliance of the project with the additional conditions established by the Directorate-General for Civil Aviation because of the nature and requirements of the market, in accordance with Article 7(1).

Article 13

Termination of the procedure

1. On receipt of the draft decision, the Director-General for Civil Aviation shall finalise the procedure by means of a decision, allocating, where appropriate, the available rights and the conditions for the exercise of these rights.

In addition, the decision must specify the applicant or set out the list of applicants to which the traffic rights are allocated and, where appropriate, expressly state that the remaining applications have been rejected and, in the cases referred to in Article 10(1), the result of the evaluation of the operational projects tendered.

The Director-General for Civil Aviation may justify the decision by referring to the technical report provided for in Article 11(4) or to the draft decision.

2. In any event, the decision finalising the procedure may leave any or all of the available traffic rights unallocated where it is not proven that the viability and continuity of the operations whose allocation is requested is sufficiently guaranteed or the operations are not sufficiently secure to guarantee air transport services between Spain and the third country or the proper use of traffic rights in both the general interest and the interest of air transport users.

Within six months of the date of the decision in which no air traffic rights or not all the available traffic rights are allocated, the Directorate-General for Civil Aviation shall initiate a new allocation procedure in accordance with Article 7, unless the reason for that decision was the lack of or an insufficient number of applications.

3. An appeal against the decision under Article 114 of Law No 30/1992 of 26 November 1992 may be submitted to the Secretary of State for Transport within one month. The decision must be notified to all stakeholders at the latest three months after the adoption of the order initiating the procedure.

4. The expiry of the time limit for adopting a decision without an express decision having been adopted and notified shall not exonerate the Directorate-General for Civil Aviation from the statutory obligation to adopt such a decision.

However, if, at the end of that period, an express decision has not been adopted, stakeholders may assume under Article 44(1) of Law No 30/1992 of 26 November 1992 that their applications have been rejected by administrative silence and may submit an appeal, as provided for in the previous paragraph, against the presumed decision within three months of the day following that on which the administrative silence produces its effect.

The time limit for adopting a decision shall be suspended where stakeholders are required to correct shortcomings or provide documents and other necessary details for the period between notification of the requirement and compliance therewith by the stakeholder, in accordance with Article 42(5)(a) of Law No 30/1992 of 26 November 1992.

5. On completion of the procedure, the Directorate-General for Civil Aviation shall forward information on traffic rights allocated under each procedure to the National Air Safety Agency so that it may authorise, where appropriate, schedules of air services of air carriers.

The National Air Safety Agency shall not authorise schedules of air services without proof that the Directorate-General for Civil Aviation has allocated the corresponding traffic rights.

CHAPTER IV

CONTROL, REVOCATION AND TRANSFER OF TRAFFIC RIGHTS ALLOCATED IN MARKETS SUBJECT TO RESTRICTIONS

Article 14

Obligations of air carriers when exercising traffic rights

1. Air carriers exercising traffic rights acquired in accordance with Chapter III shall be obliged to make actual use of such traffic rights under the conditions set out in the allocation decision and, where this does not differ, in the operational project presented.

2. Without prejudice to the previous paragraph, in cases of force majeure, the Directorate-General for Civil Aviation may, at the request of the air carriers, exceptionally and for a specific period, authorise:

(a) a moratorium on the fulfilment of the obligations of the carriers; or

(b) conditions for the use of allocated traffic rights different to those set out in the allocation decision and, where appropriate, in the operational project submitted.

3. The Directorate-General for Civil Aviation, at the request of the air carrier affected and for a duly substantiated reason, may authorise a delay in launching or a temporary interruption of the service, for a maximum period of six months.

Article 15

Monitoring of the fulfilment of the obligations on air carriers

1. The Directorate-General for Civil Aviation shall be responsible for verifying the actual use by air carriers of traffic rights allocated on the conditions laid down in the allocation decision or in the extraordinary authorisations referred to in Article 14(2) and (3).

To that end, it may request any data or reports it considers necessary, either from other organs or bodies of the Ministry of Infrastructure or from undertakings that are part of and a technical service of the General State Administration.

2. The Directorate-General for Civil Aviation shall take account of duly justified complaints submitted by competing air carriers regarding the inefficient use or the failure to use traffic rights.

Article 16

Revocation

1. The Directorate-General for Civil Aviation, after hearing the air carrier within a period of 10 working days, shall definitively revoke allocated traffic rights, where the carrier:

(a) does not begin to operate flights or does not operate all the flights provided for on the date laid down for the start of operations, as appropriate, as set out in the allocation decision, in the operational project or in the authorisation granted by the Directorate-General for Civil Aviation in accordance with Article 14;

(b) interrupts operations or does not resume operations as laid down in the authorisation granted by the Directorate-General for Civil Aviation in accordance with Article 14;

(c) fails to fulfil the conditions laid down in the allocation decision and, where appropriate, in the operational project submitted, or the authorisation granted by the Directorate-General for Civil Aviation in accordance with Article 14, in such a way as to seriously affect the efficient use of the allocated traffic rights, the quality of the service and benefits to users;

(d) loses its operating licence;

(e) seriously fails to fulfil the obligations arising from the applicable provisions on air services, international agreements under which traffic rights were granted or other international regulations.

2. The revocation of the right to exercise traffic rights is not a punitive measure and shall be without prejudice to the application of the arrangements on infringements and penalties laid down in the applicable legislation.

3. An appeal may be submitted to the Secretary of State for Transport against the revocation decision within one month, as provided for in Article 114 of Law No 30/1992 of 26 November 1992.

Article 17

Waiver

Carriers that have obtained traffic rights in accordance with Chapter III may decide at any time to discontinue exercising them by notifying the Directorate-General for Civil Aviation accordingly at least three months before the planned date for the termination of operations.

Article 18

Transfer of traffic rights

The Directorate-General for Civil Aviation may authorise the transfer of traffic rights obtained in accordance with Chapter III to an air carrier that merges with or is taken over by another, provided that the initial conditions for the allocation are guaranteed and the transfer does not adversely affect the evaluation made in accordance with Article 12(e).

The application from the air carrier requesting the transfer of traffic rights must contain information on any procedures or enquiries launched as a result of the merger or take-over by the competent competition authorities.

CHAPTER V

TRAFFIC RIGHTS IN MARKETS WITHOUT RESTRICTIONS

Article 19

Exercise of traffic rights

Traffic rights arising from air service agreements with third countries that do not impose restrictions on the number of traffic rights or on the number of carriers that can exercise them shall be freely exercised by carriers that fulfil the conditions set out in the agreement concerned, subject to approval of their schedules of operations by the National Air Safety Agency.

Article 20

Control and revocation

1. The Directorate-General for Civil Aviation shall be responsible for control and supervision to ensure that traffic rights covered by this Chapter are exercised in accordance with the air service agreement from which they arise and with the regulations applicable to the provision of air services.

To that end, every six months, at the end of each air traffic season, the National Air Safety Agency shall provide the Directorate-General for Civil Aviation with detailed information on the traffic rights that have been approved and the operations carried out by the air carriers concerned in these unrestricted markets.

For that purpose, air traffic seasons shall be those established by the International Air Transport Association (IATA).

2. The Directorate-General for Civil Aviation shall revoke the exercise of those traffic rights in the circumstances provided for in Article 16(1)(d) and (e) and where the exercise of those traffic rights does not ensure the continuity and viability of the operation or the proper use of the traffic rights in both the general interest and the interest of air transport users.

Single Transitional Provision

Traffic rights exercised before the entry into force of this Royal Decree

1. Traffic rights allocated before the entry into force of this Royal Decree shall remain valid on the conditions on which they were granted. However, traffic rights already allocated shall be subject to Chapter IV relating to the control, revocation and transfer of recognised traffic rights.

2. Furthermore, traffic rights that were being exercised before the entry into force of this Royal Decree without their allocation being necessary shall be subject to the control arrangements provided for in Chapter V.

First Final Provision

Legislative competence

This Royal Decree is enacted under the exclusive competence conferred on the State by Article 149.1.20.a of the Constitution in respect of the control of air space, transit and air transport.

Second Final Provision

Default regime

In matters not expressly covered in this Royal Decree, Law No 30/1992 of 26 November 1992 on legal arrangements for the public administrations and the common administrative procedure, Law No 11/2007 of 22 June 2007 on electronic access by citizens to public services and other applicable legislation in Spain in this area shall apply.

Third Final Provision

Application of European Union law

This Royal Decree incorporates into the Spanish legal system the mandate set out in 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.

Fourth Final Provision

Implementing rules

The Minister for Infrastructure shall adopt any measures necessary to implement this Royal Decree.

Fifth Final Provision

Entry into force

This Royal Decree shall enter into force two months after its publication in the Spanish Boletín Oficial del Estado.