Declaration by the Commission on relations between the Community, its Member States and third countries in the field of air transport
Date: 2003-03-22
Institutions: European Commission
Subjects: EU Member State, EU law, United States, air transport, competition law, international negotiations, restriction on competition, right of establishment, third country, transport company

22.3.2003

EN

Official Journal of the European Union

C 69/3

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)

The Commission recalls that

1.
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.

into conformity with Community law,

2.
In response to the Court judgements and in order to
bring the relationship between the Member States and the
United States
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
responsibilities
agreements and an appropriate division of
between the Community and its Member States. This is of
to our airline industry since continuing
particular interest
uncertainty over
international agreements
the handling of
could prevent the ongoing development of services to third
countries.

clauses

in bilaterals

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

that permit

to adopt

5.
In addition, the Commission has adopted a proposal for a
Regulation on procedures for the negotiation and implemen-
tation of bilateral air service agreements between Member
falling within their
States and third countries for matter
competence. This Regulation will provide
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

clear

a

under the Treaty. The Commission urges the Council and the
European Parliament to adopt this proposal as soon as possible.

the Commission considers that

Pending the final adoption of all three elements of this
6.
is important to
package,
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.

it

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
the achievement of
Commission calls upon Member States
their
relations with third countries accordingly.

the Community's tasks. Therefore,

to conduct

— 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
specific
mandate.

a

— With regard to their own bilateral agreements Member
States must inform the Commission of all planned inter-
national 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,
and timely manner between Community
transparent
carriers with an establishment on their territory.

— Without prejudice to the recommendation for a general
mandate referred to above, Member States must use the
to
opportunities offered by their bilateral agreements
open routes
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.

from third

countries

to and

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.