Opinion of the European Economic and Social Committee on the "Proposal for a European Parliament and Council Regulation on the negotiation and implementation of air service agreements between Member States and third countries" (COM(2003) 94 final — 2003/0044 (COD))
Date: 2003-07-16
Institutions: European Economic and Social Committee
Subjects: EU Member State, air transport, bilateral agreement, third country

30.9.2003

EN

Official Journal of the European Union

C 234/21

Opinion of the European Economic and Social Committee on the ‘Proposal for a European
Parliament and Council Regulation on the negotiation and implementation of air service
agreements between Member States and third countries’ (1)

(COM(2003) 94 final — 2003/0044 (COD))

(2003/C 234/06)

On 14 March 2003 the Council decided to consult the European Economic and Social Committee under
Article 80(2) of the Treaty establishing the European Community on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 26 June 2003. The rapporteur
was Mr Ghigonis.

At its 401st Plenary Session on 16 and 17 July 2003 (meeting of 16 July) the European Economic and
Social Committee adopted the following opinion by 119 votes with one abstention.

1.

Introduction and context

Over the last fifteen years, the European Union has
1.1.
completed an impressive liberalisation and integration pro-
gramme for the air transport sector. The Community has
merged the various aviation traffic markets into a single
‘internal’ area. By adopting measures to liberalise air transport
— measures known as the ‘third package’ — it has applied the
principles underpinning the single market programme to this
industry.

1.2.
Nevertheless, international flights departing from and
arriving in the EU remain subject to conventional bilateral
agreements on air transport. In other words, the EU does not
yet have a coherent international air traffic policy. In its White
Paper entitled ‘European transport policy for 2010: time to
decide’, the Commission highlighted external action in aviation
as being a key priority,
in view of the impact that the
fragmented approach to this subject matter has had on the
European air transport industry. The Commission has always
believed that such agreements generated distortions in compe-
tition between European airlines and interfered with the
development of the single market by limiting the possibilities
for investment and consolidation between European air trans-
port companies; such agreements stipulate that more than
50 % of these companies must be owned by nationals of the
country of origin of the airline concerned, otherwise the airline

( 1) The Commission also calls for other measures, namely that

authorisation be given to start up negotiations:
— between the Community and the United States on the creation

of an Open Aviation Area; and

— at Community level on the designation of Community carriers
on international routes to and from third countries and on
matters within Community exclusive competence.

risks losing its international traffic rights. In December 1998,
the Commission launched infringement proceedings against
eight states, criticising agreements which allocated traffic rights
to American airlines for flights from, to and within the EU in
exchange for a similar, but strictly limited right granted to
national airlines from these eight countries (the ‘nationality
clause’). In its judgement of 5 November 2002, the Court of
Justice criticised these states on the grounds that, in concluding
these ‘open skies’ agreements with the United States, they had
encroached upon the European Commission’s external powers
in respect of air tariffs on intra-Community routes and
computer reservation systems (CRS). The Court also found
that the clauses on the ownership and control of airlines
flouted the principle of
the right of establishment. This
amounts to discrimination which prevents air transporters
from other Member States which have not concluded such
agreements from benefiting from the same treatment as the
national airline in the European country concerned, although
Community rules on the right of establishment ban such
conduct.

Now drawing the conclusions from these judgements,
1.3.
the Commission has taken stock of the Community’s external
relations in matters of air transport and is presenting the broad
lines and basic principles of the Community’s external policy
in this sphere. It considers that the Court’s rulings also have
immediate legal effects which the Union will need to take into
account in the short term. Such is the case, firstly, with the
provisions of each agreement which henceforth fall within the
exclusive external competence of the Community. Secondly,
the above-
the nationality clauses inserted in nearly all
mentioned agreements violate Community law since they
constitute discrimination on grounds of nationality.

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Official Journal of the European Union

30.9.2003

2. Gist of the proposal

Within their own areas of responsibility (area of responsibility
particular to Member States; bilateral agreements contravene
Community law and must be adjusted, given the absence of
negotiations carried out at Community level), Member States
may continue to conclude or amend agreements with third
countries in accordance with Community law. Since one of
the nubs of the problem concerns deciding who is responsible
in any given area, the countries of the Union must cooperate
closely with the Community institutions. The proposal in hand
therefore lays down the arrangements and obligations with
which Member States must comply when concluding agree-
ments. Given that Member States have to take general Com-
munity interests into account, an efficient, transparent verifi-
cation procedure must be established to this end. Each Member
State has clear obligations to inform and update other Member
States on the start-up and conclusion of negotiations on
Insofar as the airlines are involved in the
an agreement.
negotiations, all Community airlines should be dealt with on
an equal footing in order to avoid any discrimination and
ensure that none of the countries involved receive preferential
treatment. Generally speaking, there should be a ban on any
rule which might create distortions in the EU’s single market
in air transport. Moreover, it is up to Member States to set up
non-discriminatory, transparent procedures for distributing
traffic rights between Community carriers.

3. Preliminary comment

by the air transport sector; it is vitally important for this sector
to be able to rely on legally sound agreements, since traffic
rights make up part of air transport companies’ goodwill. The
EESC therefore advocates prompt efforts to establish a clear
legal framework for negotiating international air agreements.
Such a framework must ensure that bilateral air agreements
comply with Community law, while retaining the benefits
(traffic rights) negotiated under these agreements.

Given the way that responsibilities have been distrib-
4.3.
uted between the Member States and the Commission as
regards negotiating international air agreements in the wake
of the Court of Justice’s judgments of 5 November 2002, it
seems appropriate to set up a simple, clear, transparent and
effective information procedure. A procedure of this type
would mean that negotiations on aviation issues between the
Member States or the Community and third countries could
proceed in a coordinated fashion.

4.4.
Under these conditions, it would seem wise to simplify
as far as possible the administrative procedures by which
Member States inform the Commission before entering into
negotiations with third countries. Moreover, although it would
appear desirable for the Commission to have the option of
alerting a Member State if it seems that negotiations by that
state are likely to jeopardize the Community’s objectives, a
procedure of this type should do no more than what is
necessary for securing effective coordination between Member
States and the Commission in negotiations carried out in their
respective areas of responsibility.

Noting that
the Council of Ministers reached a political
agreement on this subject on 5 June, the EESC very much
regrets the fact that such an agreement was adopted without
waiting for the opinion of the EESC.

5. Specific comments on the current proposal

4. General comments

4.1.
Following the above-mentioned Court of Justice judge-
ment, the European air transport sector is in a precarious
legal situation. Member States have concluded a considerable
number of bilateral air agreements with third countries; some
provisions of these contravene Community law. This said, the
Commission has no mandate to carry out negotiations with
third countries on matters falling within the competence of
the Union and is consequently submitting a request to obtain
one (see inter alia point 2).

4.2.
It is becoming urgent for this matter of legal uncer-
tainty to be settled quickly, due to the pressure being exerted

Given that powers and responsibilities in the air transport
sector are still shared, the EESC supports the principle under-
lying the Commission’s initiative aimed at creating, by means
of a regulation, an effective mechanism for cooperation and
consultation between Member States and the Community, so
that problems and diverging approaches can be brought to
light from the outset.

5.1. Article 1 (2)

Administrative procedures should be kept to a minimum (it
seems somewhat excessive to require notification of all details
of a new agreement, within the meaning of Article 1 (1), as
early as one calendar month before contact is established with
the third country concerned).

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5.2. Article 4 (2)

The possibility given to the Commission to object to the
conclusion of the agreement seems to go significantly beyond

Brussels, 16 July 2003.

its legitimate prerogatives as regards information, notification
and transparency. The EESC feels it is preferable to replace this
with a provision whereby the Commission has the option of
alerting a Member State if it appears that negotiations by that
state are likely to jeopardise the Community’s objectives.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of
the European Parliament and of the Council amending Council Regulation (EC) No 2236/95 laying
down general rules for the granting of Community financial aid in the field of trans-European
networks’

(COM(2003) 220 final — 2003/0086 (COD))

(2003/C 234/07)

On 20 May 2003 the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 26 June 2003. The rapporteur
was Mr Simons.

At its 401st Plenary Session on 16 and 17 July 2003 (meeting of 16 July), the Committee adopted the
following opinion unanimously.

1.

Introduction

eTEN is at the heart of the eEurope 2005 Action Plan, which
in turn is a key element of the Lisbon Strategy to make the
European Union the most competitive and dynamic economy
in the world by 2010. eTEN has been adapted to become a key
implementing tool for eEurope 2005: its main focus will be
the practical implementation of eEurope services in the general
interest. The reorientation in terms of actual programme
content must now be complemented by an overhaul of the
financing structure. The current ceiling on Community aid is
10 % of the total
investment cost, while 50 % funding of
the total cost of project studies is possible. However, the
Commission’s experience shows that this funding percentage
is clearly insufficient to stimulate the deployment of services

and to provide a real incentive to continue. The Commission
therefore proposes that the funding ceiling for projects be
raised from 10 % to 30 %. This increase is only to apply to
projects for the deployment of services and applications. The
revision does not affect the overall financial framework for
eTEN.

2. General comments

the Commission announced that

In the chapter of the eEurope Action Plan 2005 (1) on
2.1.
it would be
financing,
presenting a proposal on raising the funding ceiling for the
implementation phase of eTEN projects from 10 % to 30 %
without prejudice to the other TEN programmes.

(1) The EESC has also drawn up an opinion on the eEurope 2002

Final Report.