Communication from the EFTA Surveillance Authority under to Article 4(1)(a) of the Act referred to in point 64(a) of Annex XIII to the EEA Agreement (Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes)

Imposition of new public service obligations in respect of scheduled air services on the route Værøy (heliport)-Bodø v.v.

(2008/C 138/10)

1. INTRODUCTION

Pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, Norway has decided to impose public service obligations as of 1 August 2008 in respect of scheduled air services on the following routes:

2. THE PUBLIC SERVICE OBLIGATIONS INCLUDE THE FOLLOWING SPECIFICATIONS FOR THE ROUTE AREA VÆRØY-BODØ V.V.

2.1. Minimum frequencies, seating capacity, routing and timetables

The following requirements apply to frequencies, seating capacity, routing and timetables

where nothing else is specified, the requirements apply throughout the year,

where requirements to seating capacity apply, the number of seats offered shall be adjusted in accordance with the rules laid down in Annex A to this publication,

Frequencies

if a procedure is established for instrument approach (IFR) to Værøy, the requirement of minimum two daily return services Monday-Friday, one on Saturday and one on Sunday applies throughout the year.

Seating capacity

if a procedure is established for instrument approach (IFR) to Værøy, the requirement that in both directions at least 180 seats shall be offered weekly, applies throughout the year,

if the number of seats occupied during the period 1 January-30 June or 1 August-30 November exceeds 70 % of the number of seats offered, the carrier shall increase the seating capacity in accordance with the rules laid down in Annex A to this publication,

if the number of seats occupied during the period 1 January-30 June or 1 August-30 November is lower than 35 % of the number of seats offered, the carrier may reduce the seating capacity in accordance with the rules laid down in Annex A to this publication.

Routing

The required services must be non-stop.

Timetables

The following apply to the required flights on Monday-Friday (local times):

1-28/29 February: at least 3 hours and 30 minutes between first arrival in Bodø and last departure from Bodø,

1 March-30 September: at least 5 hours and 30 minutes between first arrival in Bodø and last departure from Bodø,

1-31 October: at least 5 hours and 15 minutes between first arrival in Bodø and last departure from Bodø.

If a procedure is established for instrument approach (IFR) to Værøy, the requirement of at least 5 hours and 30 minutes between first arrival in Bodø and last departure applies throughout the year.

2.2. Aircraft category

Helicopters registered for minimum 15 passengers shall be used for the required flights.

2.3. Technical and operative conditions

Carriers' attention is especially drawn to technical and operative conditions applying at the airports. For further information, please contact:

2.4. Fares

Maximum basic fully flexible one-way fare (the maximum fare) in the operating year beginning 1 August 2008, must not exceed the following rate:

For each subsequent operating year the maximum fares shall be adjusted on 1 August within the limit of the consumer price index for the 12-month period ending 15 June the same year, as made public by Statistics Norway (http://www.ssb.no).

The carrier is responsible for making tickets available at a price not exceeding the maximum fare through all sales channels belonging to the carrier.

Maximum fare applies also to tickets offered by other companies operating within the concern of the carrier. The carrier is responsible for the compliance of the requirements by such companies.

The maximum fare shall include all taxes and fees to the authorities, and all other extra charges the carrier adds on when issuing the tickets.

The carrier shall be party to the domestic interline agreements in force at any time, and shall offer all discounts available under such agreements.

3. ADDITIONAL CONDITIONS FOLLOWING A TENDER PROCEDURE

Following a tender procedure, which limits access to the routes to one carrier, these conditions apply in addition:

Fares

all connecting fares to/from other air services shall be offered on equal terms for all carriers. Exempted from this are connecting fares to/from other services carried out by the tenderer, provided that the fare is maximum 40 % of the fully flexible fare,

bonus points from frequent flyer programmes can neither be earned nor redeemed on the flights,

social discounts shall be granted in accordance with the guidelines laid down in Annex B to this notification.

Transfer conditions

all conditions set out by the carrier for the transfer of passengers to and from other carriers' routes, including connecting times and through check-in of tickets and baggage, shall be objective and non-discriminatory.

4. REPLACEMENT AND LIFTING OF PREVIOUS PUBLIC SERVICE OBLIGATIONS

These public service obligations replace those previous published in OJ C 268, and the EEA Supplement No S 54 of 4 November 2004, regarding air services on the route Værøy-Bodø v.v.

5. INFORMATION

Further information can be obtained from:

The financial compensation to the operator remains unchanged when decreasing production according to 3.2.

The financial compensation to the operator remains unchanged when increasing production according to 3.1.

If new production shall be offered according to 3.1, and the operator and the county (counties) as administrative unit affected cannot agree upon time schedules according to 4.3, the operator can seek approval according to 4.1 for a different time schedule for the new production/new seats offered from the Norwegian Ministry of Transport and Communications. This does not mean that the operator may apply for approval of a time schedule that does not include the required increase in production. There must exist substantial reasons if the Ministry shall approve proposals that diverge from those which could be agreed by the counties.

When production shall be increased according to 3.1, time schedules for new production/new seats should be agreed between the operator and the county (counties) as administrative unit affected.

If production/available seats offered shall be reduced according to 3.2, a proposal for a new traffic program shall be circulated to the affected county councils, and these shall have sufficient time to make a statement before the change is put into effect. If the proposed new traffic program includes changes violating any other requirements than the number of flights and seat capacity, laid down in the public service obligations, the new traffic program must be sent to the Ministry of Transport and Communications for approval.

The Norwegian Ministry of Transport and Communications has the responsibility subject to law for approving proposed time schedules submitted by the operator, including changes in available seats. Reference is made to Circular N-3/2005 by the Norwegian Ministry of Transport and Communications, included in the tender file.

On routes with only one or two daily frequencies offered in each direction, reduction in available seats offered can only take place by using aircraft with lower seating capacity than specified in the imposition of public service obligations.

On routes with more than two daily frequencies offered in each direction, reduction in production according to 3.2.1 shall take place by reducing frequencies offered. The only exception from this is when the operator uses aircraft with larger seating capacity than the minimum specified in the imposition of public service obligations. The operator may then use smaller aircraft, however, not with lower seating capacity than the minimum specified in the imposition of public service obligations.

A decrease in production/available seats offered may take place when the average passenger load factor on each single route encompassed by public service obligations is lower than 35 percent. When the average passenger load factor on these routes is lower than 35 percent in any of the periods mentioned in 2, the operator may decrease production/available seats offered by no more than 25 percent on these routes from the first day after the end of the above mentioned periods.

When increasing production/available seats offered according to the above, the new production may take place by using aircraft with lower seating capacity than specified in the original tender, if preferred by the operator.

An increase in production/available seats offered shall take place when the average passenger load factor on each single route encompassed by public service obligations is higher than 70 percent. When the average passenger load factor on these routes exceeds 70 percent in any of the periods mentioned in 2, the operator shall increase production/available seats offered by at least 10 percent on these routes, at latest from the start of the following IATA traffic season. Production/available seats offered shall be increased at least so that the average passenger load factor does not exceed 70 percent.

The periods during which the passenger load factor shall be monitored and assessed range from 1 January to 30 June inclusive and 1 August to 30 November inclusive.

The purpose of the production adjustment clause is to ensure that supplied capacity/seats offered by the operator is adjusted to changes in market demand. Whenever the number of passengers increases significantly and exceeds the following specified limits for the percentage of seats occupied at any time (the passenger load factor), the operator shall increase available seats offered. The operator may accordingly decrease available seats offered when the number of passengers decreases significantly. See specification below in 3.

persons mentioned in Section 1 point (d) must present a student certificate and a letter from the social security office stating that the student is receiving pension according to the Norwegian law of ‘Folketrygd’. Persons from other EEA countries must provide similar documentation from their home country.

persons mentioned in Section 1 point (b) and (c) must provide proof of eligibility by means of official documentation from the Norwegian National insurance or ‘Norges Blindeforbund’. Persons from other EEA countries must provide similar documentation from their home country;

persons mentioned in Section 1 point (a) must show an official document with picture and day of birth;

Following documents may be required by the traveller present at time of ticketing:

An adult (aged from 16 years) may carry a child aged under 2 years for free, provided that the child does not occupy its own seat and when travelling together on the entire journey.

This discount is not applicable when the travel is paid for by the government and/or social security office. The person entitled to discount decides the need for escort.

disabled persons aged from 16 years who receive disability pension according to the Norwegian Act of 28 February 1997 No 19 on National insurance [Folketrygdloven] Chapter 12, or similar law in any EEA country;

On routes where the Norwegian Ministry of Transport and Communication purchases air services in accordance with public service obligations, social discount applies to the following groups of people:

SCHEDULED AIR SERVICES VÆRØY-BODØ V.V. (NORWAY)

INVITATION TO TENDER

1. Introduction

Norway has decided to publish a new tender for operation of scheduled air services on the route Værøy-Bodø v.v. for the period 1 August 2008-31 July 2011.

With effect from 1 August 2008, Norway has decided to amend the public service obligations on scheduled regional air services on the route Værøy-Bodø v.v., previously imposed according to Article 4(1)(a) of Council Regulation (EEC) 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes. The amended obligations were published in the Official Journal of the European Union (reference number and date of publication in OJ) and in the EEA Supplement (reference to publication in EEA supplement).

Insofar as by two months from the latest day of submission of tender (cf. Section 6) no air carrier has provided documentary evidence to the Ministry of Transport and Communications of commencing scheduled flights on 1 August 2008 in conformity with the amended public service obligations on the route area stated in Section 2 of this publication, the Ministry will apply the tender procedure provided for by Article 4(1)(d)-(h) of Regulation (EEC) 2408/92, thereby limiting access as of 1 August 2008 to only one air carrier. The purpose of this invitation is to invite tenders which will be used as basis for assignment of such exclusive rights.

Below, the most important parts of the Conditions of Tenders will be reproduced. The complete Invitation to Tender, can be downloaded from:

http://www.regjeringen.no/nb/dep/sd/dok/andre/Anbud.html

or be obtained free of charge on application to:

Ministry of Transport and Communications PO Box 8010 Dep. N-0030 Oslo Tel. (47) 22 24 83 53 Fax (47) 22 24 56 09

All tenderers are obliged to acquaint themselves with the complete Invitation to Tender.

2. Services covered by the invitation

The invitation comprises scheduled flights from 1 August 2008 until 31 July 2011, in accordance with the public service obligations mentioned in Section 1. The following route area and corresponding tender are covered by the competition:

Route area

Værøy-Bodø v.v.

In the public service obligations special requirements apply if a procedure is established for instrument approach (IFR) to Værøy. Establishment of an instrument approach procedure will trigger requirements for increased production on the route in the months of November, December and January. The tenderers shall submit an alternative price for the entire tender period as well as for each single operating year for the increase of production if an instrument approach procedure to Værøy is established. The tender shall calculate tender budget for both alternatives with and without increased production. The tender budget shall show the allocation of expenses and revenues for each of the tenders and clearly state the compensation required for both alternatives.

In case a carrier submits a tender where the claim for compensation is NOK zero, it will be understood as a whish from the carrier to operate the route on an exclusive basis, but without any compensation from the Norwegian State.

3. Eligibility to tender

All air carriers holding a valid operating licence pursuant to Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers are eligible to tender.

4. Tender procedure

The invitation to tender is subject to the provisions of Article 4(1)(d)-(i) of Regulation (EEC) No 2408/92, and Section 4 of the Norwegian Regulation No 256 of 15 April 1994 on tender procedures in connection with public service obligations.

The procurement will be effected by means of an open tender procedure.

The Ministry of Transport and Communications reserves the right to apply subsequent negotiations if only one tender is received at the closing date for submission of tender, or if only one tender is not rejected. Such negotiation shall be in accordance with the public service obligations imposed. In addition, the parties are not entitled to make substantial amendments to the original terms of contract during such negotiations. If the subsequent negotiations do not lead to an acceptable solution, the Ministry of Transport and Communications reserves the right to cancel the entire procedure. In that case, a new invitation to tender on new terms may be published.

The Ministry of Transport and Communications may make procurements through negotiations without publication in advance if no tenders are submitted. In that case, no substantial amendments must be made in the original public service obligations or in the remaining terms of contract. In case reasonable grounds appear as a result of the tender, The Ministry of Transport and Communications reserves the right to refuse each and all tenders.

The tender is binding on the tenderer until the tender procedure is ended, or the award is made.

5. The tender

The tender shall be framed in accordance with the requirements in Section 5 of the Conditions of Tender, including the requirements listed in the public service obligations.

6. Submission of tender

The deadline for submission of tender is 7 July 2008 at 12.00 local time. The tender must be received by the Ministry of Transport and Communications at the address mentioned in Section 1 not later than the deadline for submission of tender.

The tender shall be delivered either personally at the office address of the Ministry of Transport and Communications, or sent by post or courier services.

Tenders received too late will be rejected. However, tenders received after the deadline for submission of tender, but before the opening date, will not be rejected if it clearly appears that the dispatch is sent so early that it normally should have been received before the closing date. Receipt from the delivery of the dispatch is accepted as evidence for the delivery, and the time for delivery.

All tenders must be submitted in 3 — three — copies.

7. Award of contract

7.1. As the principle rule, the award shall be made to the tender requiring the lowest amount of compensation. For each route area this implies that the contract will be awarded to the tender with the lowest claim for compensation for the whole contract period from 1 August 2008 until 31 July 2011. The lowest claim for compensation will be determined by means of a calculatory figure, based on the two submitted alternative prices. The calculatory figure equals the sum of weighted claims for compensation. The price for the situation where a procedure is established for instrument approach to Værøy will be weighted 60 percent. The price without is weighted 40 percent. The contract will be awarded to the tender with lowest calculation figure for the contract period from 1 August 2008 to 31 July 2011.

7.2. In case award can not be made because there are tenders requiring identical amounts of compensation, the award shall be made to the tender offering the highest number of seats for the whole contract period.

8. Contract period

The tender contract will be entered into for the period from 1 August 2008 until 31 July 2011. The contract is non-terminable, except for those situations described in the contract provisions reproduced in Section 11.

9. Financial compensation

The operator is entitled to financial compensation from the Ministry of Transport and Communications in accordance with the tender agreement. The compensation shall be specified for each of the three operating years, and for the entire contract period.

No adjustment of the compensation shall be made for the first operating year.

For the second and third operating year, the compensation will be recalculated on the basis of the tender budget adjusted for operating revenues and expenses. These adjustments must be within the limits defined by Statistics Norway's consumer price index for the 12-month period ending on 15 June the same year.

No change shall be made in the compensation as a result of the production volume being adjusted upwards or downwards pursuant to Section 5.1 second paragraph of the Terms of Contract.

This is subject to the proviso that the Storting (the Norwegian Parliament), when adopting its annual budget, makes the necessary funds available to the Ministry of Transport and Communications to cover the compensation requirements.

The operator shall retain all revenues generated by the service. If the revenues are greater or the expenditure smaller than the figures on which the tender budget is based, the operator may retain the balance. Correspondingly, the Ministry of Transport and Communications is not obliged to cover any negative balance in relation to the tender budget.

All public charges, including aviation charges, are payable by the operator.

Notwithstanding any action for damages, the financial compensation shall be reduced in proportion to the total number of flights cancelled for reasons directly attributable to the carrier, if the number of flights cancelled for such reasons during an operating year exceeds 1,5 percent of the planned number of flights in accordance with the approved time schedule.

If a procedure is established for instrument approach (IFR) to Værøy c.f. Section 2, compensation will be paid for the triggered IFR-requirements from the same month.

10. Renegotiation

If, during the contract period, material or unforeseen changes occur in the assumptions on which this contract is based, each of the parties may request negotiations for revision of the contract. Such request must be made three months at the latest after the change has occurred.

Material changes in the public charges for which the operator is liable always constitute grounds for renegotiation.

If new statutory or regulatory requirements, or orders issued by the Civil Aviation Authority result in an airfield having to be used in a different manner than originally assumed by the operator, the parties shall endeavour to negotiate amendments in the contract that allow the operator to continue operations for the rest of the contract period. If the parties fail to reach agreement, the operator is entitled to compensation pursuant to the rules relating to shutting down or closure (Section 11) insofar as they are applicable.

11. Termination of contract following breach of contract or unforeseen changes in important conditions

Subject to the restrictions following from insolvency law, the Ministry of Transport and Communications may terminate the contract with immediate effect if the operator becomes insolvent, initiate debt settlement proceedings, goes bankrupt or is subject to any other situation dealt with in Section 14(2) of the Norwegian Regulation No 256 of 15 April 1994 on tender procedures in connection with public service obligations.

The Ministry of Transport and Communications may terminate the contract with immediate effect if the operator loses, or is not able to renew, his licence.

If, due to force majeure or other circumstances beyond the operator's control, the operator has been unable to fulfil its contractual obligations for more than four of the last six months, the contract can be terminated by both parties by giving one month's written notice.

If the Storting decides to close an airfield, or if an airfield is closed as a result of an order issued by the Civil Aviation Authority, the parties' ordinary contractual obligations lapse from such time as the airfield is actually shut down or closed.

If the period of time between the operator first being informed about the shutting down or closure and the actual shutting down or closure is greater than one year, the operator is not entitled to compensation for any financial loss it incurs as a result of the termination of the contract. If the period mentioned is less than one year, the operator is entitled to be restored to the financial situation it would have been in had operations been continued for one year from the date it was notified of the shutting down or closure, or alternatively until 31 July 2011 if this date is earlier.

In the event of material breach of contract, the contract may be cancelled with immediate effect by the other party.