Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a regulation of the European Parliament and of the Council on the negotiation and implementation of air service agreements between Member States and third countries
Date: 2004-01-09
Institutions: European Commission
Subjects: EU Member State, air transport, bilateral agreement, provision of services, third country

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 9.1.2004
COM(2004) 8 final

2003/0044 (COD)

COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty

concerning the

common position of the Council on the adoption of a regulation of the European
Parliament and of the Council on the negotiation and implementation of air service
agreements between Member States and third countries

EN

  EN

   
2003/0044 (COD)

COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty

concerning the

common position of the Council on the adoption of a regulation of the European
Parliament and of the Council on the negotiation and implementation of air service
agreements between Member States and third countries

1-

BACKGROUND

Date of transmission of the proposal to the EP and the Council
(document COM(2003) 94 final – C5–2003/65/- 2003/0044(COD)):

26 February 2003

Date of the opinion of the European Economic and Social Committee:

16 July 2003

Date of the opinion of the European Parliament, first reading:

2 September 2003

Date of adoption of the common position:

5 December 2003

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OBJECTIVE OF THE COMMISSION PROPOSAL

In  November  2002,  the  European  Court  of  Justice  ruled  that  the  bilateral  air  service
agreements concluded by  eight  Member  States with the  United  States infringed Community
law.  In  particular,  they  conflicted  with  the  right  of  establishment  by  reserving  international
traffic  rights  solely  to airlines  owned by  nationals  of  the  parties  to  the  agreements  and  they
covered certain areas of exclusive Community competence. These cases have implications for
all  air  transport  agreements  and  negotiations.  All  existing  agreements  must  be  modified  to
establish non-discriminatory treatment for Community airlines and negotiations on matters of
Community competence must be conducted within an appropriate legal framework. Member
States may no longer act unilaterally.

Given the number of bilateral air service agreements and the regularity  with which they are
renegotiated  to  take  account  of  market  developments,  it  is  impractical  to  conduct  all  the
necessary  negotiations  through  standard  Community-level  procedures.  The  Community  will
have  to  concentrate  on  major  negotiations.  Accordingly,  this  proposal  creates  a  system  of
notification  and  authorisation  for  bilateral  negotiations  by  Member  States.  It  also  imposes
some  obligations  on  Member  States  to  ensure  that  they  have  non-discriminatory  systems  in
place  for  consulting  the  industry  and  allocating  traffic  rights  secured  in  the  course  of
negotiations.

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3-

COMMENTS ON THE COMMON POSITION

In  its  common  position,  the  Council  maintained  the  basic  structure  of  the  Commission’s
proposal, in particular notification of an intention  to  negotiate in Article 1  and  a  system for
approving the outcome of negotiations in Article 4, although significant changes were made
to refine and reinforce the legal framework. These changes aim at improving the workability
of  the  Commission’s  proposal  by  making  the  conditions  under  which  Member  States  are
authorised  to  negotiate  and  conclude  agreements  that  touch  on  matters  of  Community
competence more specific.

Article  1  of  the  Regulation  sets  out  the  conditions  under  which  Member  States  can  open
negotiations with third countries. A Member State can start negotiating with third countries as
long as:

a.

b.

they  stick  to  commonly-agreed  text  for  standard  clauses  in  bilateral  agreements  on
issues of Community legal competence;

they duly notify the Commission before they open negotiations. This notification, as
envisaged  in  the  Commission  proposal,  will  permit  Member  States  and  the
Commission to identify where there is a common interest or problem vis-à-vis a third
country.

In Article 4, Member States also require a special authorisation under  Community law.  The
system envisaged is a simple one however. Again, on the basis of the rationale for the opening
of negotiations, a notification of the outcome of negotiations to the Commission is required.
As for the next step, there are three possibilities:

a.

b.

c.

where  Member  States  have  reached  an  agreement  that  follows  commonly-agreed
standard  clauses  on  Community  issues,  they  are  allowed  to  conclude  the  final
agreement.  Their  only  obligation  is  to  notify  the  result  to  the  Commission  for  the
sake of transparency;

where  Member  States  have  not  been  able  to  reach  an  agreement  that  follows
commonly-agreed  standard  clauses  on  Community  issues,  they  can  apply  the
agreement on a provisional basis, but must submit the agreement to the Community
for final approval after an  advisory procedure according to the comitology  rules.  If
the agreement does not undermine the Community transport policy, Member  States
will be allowed to conclude the agreement;

where the Community is actively negotiating with the same third country, a Member
State may be authorised to apply an agreement on a provisional basis or to conclude
only after the same advisory procedure as for b) has been completed.

This system will ensure  that  Community  law  is  respected  and  that  Community  interests  are
upheld, while giving Member States the possibility to resume bilateral negotiations within a
framework of legal certainty.

Out  of  the  17  amendments  adopted  by  the  European  Parliament,  the  Council  fully
incorporated three of them into its common position and four of them in part or in principle.
These  amendments  mainly  correspond  to  those  accepted  in  a  similar  fashion  by  the
Commission.

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4-

DETAILED COMMENTS BY THE COMMISSION

The references below are to recitals and articles of the common position.

4.1          Amendments  accepted  in  full  by  the  Commission  and  incorporated  in  full  in  the

common position

Amendments  1,  2,  3:  These  three  amendments  are  fully  reflected  in  the  recitals  of  the
common  position  (recitals  5  (amended  accordingly),  6  (deleted  accordingly),  and  8  (last
sentence deleted accordingly)).

4.2          Amendments accepted in part or in principle by the Commission and incorporated

in part or in principle in the common position

Amendment 11: The common position integrates it in part and in principle while introducing
significant changes in Articles 1 and 4 with a view to strengthening the legal framework set
out  by  this  draft  regulation.  It  further  specifies  both  the  type  of  agreements  or  related
documents  which  are  covered  by  this  draft  regulation  (Article  1,  paragraph  1),  and  the
Member  States’obligations  when  Community  negotiations  are  actively  underway  (Article  4,
paragraph 4).

Amendment  12:  In  Article  1,  paragraph  2  the  common  position  clarifies  the  obligation  on
Member  States  to  notify  the  Commission  of  their  planned  negotiations,  and  thus  integrates
this Parliament amendment in principle. Only the Commission must be notified by a Member
State which intends to enter into negotiations, the other Member States having the possibility
to request copy of this notification to the Commission. A special procedure is also set out in
case of exceptional circumstances.

Amendment  15:  The  common  position  seeks  to  clarify  the  wording  of  Article  3  along  the
same lines as the Parliament amendment. It makes it clearer that any agreement which would
reduce  the  number  of  Community  carriers  which  may,  in  accordance  with  existing
arrangements, be designated to provide air services between the territory of a Member State
and a third country, is prohibited.

4.3       Amendments rejected by the Commission and incorporated in the common position

Amendment  14: The  common position integrated the first  part of this amendment,  Article 2
now  referring  not  only  to  air  carriers  but  also  to  other  interested  parties.  The  Commission
rejected  this  amendment  as  the  substantial  modification  sought  by  the  Parliament  aiming  at
limiting  the  definition  of  air  carriers  and  of  the  right  of  establishment  (second  part  of
amendment  14)  cannot  be  accepted.  As  for  the  inclusion  of  other  interested  parties  in  this
article, the Commission has no objection to the common position on this particular point.

4.4       Amendments  rejected  by  the  Commission  and  not  incorporated  in  the  common
position

Amendments 4 and 14 (except first part of amendment 14 which is integrated in the common
position):  These  amendments  would  limit  the  obligation  on  Member  States  to  inform  and
consult Community carriers about their international bilateral negotiations by only imposing
this obligation where airlines already have a network or where they might foreseeably have a
network. In addition, amendment 14 would impose  limitations  on the right  of establishment
for airlines by imposing a requirement to obtain an operating licence from each Member State
from which international routes are flown.

4

 
Amendment 5: This amendment would make the approval of bilateral agreements subject to a
regulatory procedure.

Amendments  6  and  7:  Amendments  6  and  7  would  call  into  question  the  fact  that  the  draft
Regulation does comply with the principle of proportionality.

Amendment 8: This amendment would set out a three-point plan for Community action in the
field of international air transport.

Amendments 9 and 10: Amendments 9 and 10 would introduce new recitals which seek to set
specific objectives for the negotiations between the Community and the United States.

Amendment  13:  This  amendment  would  exclude  Member  States  from  the  consultation
process set out in Article 1, paragraph 3, regarding the opening of negotiations by a Member
State.

Amendment 18: This amendment would make all information submitted by Member States in
the notifications of their negotiations de facto confidential.

Amendment 19: This amendment would duplicate the obligation for Member States to notify
the  Commission  of  a  draft  agreement  upon  conclusion  of  negotiations,  which  is  already  set
out in Article 4.

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CONCLUSION

The  Commission  considers 
the  common  position  unanimously  adopted  on
5 December 2003  does  not  alter  the  aims  and  approach  of  its  proposal  and  can  therefore
support it.

that 

5