Corrigendum to 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 (OJ L 157, 30.4.2004)
Date: 2004-06-02
Institutions: Council of the European Union, European Parliament
Subjects: EU Member State, European Commission, air transport, exchange of information, international negotiations, third country

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Corrigendum to 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

(Official Journal of the European Union L 157 of 30 April 2004)

Regulation (EC) No 847/2004 should read as follows:

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in Article 251
of the Treaty (2),

Whereas:

(1)

(2)

(3)

International aviation relations between Member States
and third countries have traditionally been governed by
bilateral air service agreements between Member States and
third countries, their Annexes and other related bilateral or
multilateral arrangements.

Following the judgments of the Court of Justice of the
European Communities in cases C-466/98, C-467/98,
C-468/98, C-469/98, C-471/98, C-472/98, C-475/98 and
C-476/98, the Community has exclusive competence with
respect to various aspects of such agreements.

The Court has also clarified the right of Community air car-
riers to benefit from the right of establishment within the
Community,
including the right to non-discriminatory
market access.

(1) OJ C 234, 30.9.2003, p. 21.
(2) Opinion of the European Parliament of 2 September 2003 (not yet
published in the Official Journal), Council Common Position of
5 December 2003 (OJ C 54 E, 2.3.2004, p. 33), Position of the Euro-
pean Parliament of 30 March 2004 (not yet published in the Official
Journal) and Council Decision of 14 April 2004.

(4) Where it is apparent that the subject-matter of an agree-
ment falls partly within the competence of the Community
and partly within that of its Member States, it is essential
to ensure close cooperation between the Member States
and the Community institutions, both in the process of
negotiation and conclusion and in the fulfilment of the
commitments entered into. That obligation to cooperate
flows from the requirement of unity in the international
representation of the Community. The Community insti-
tutions and the Member States should take all necessary
steps to ensure the best possible cooperation in that regard.

(5)

(6)

The cooperation procedure between Member States and
the Commission established by this Regulation should be
without prejudice to the division of competencies between
the Community and Member States, in accordance with
Community law as interpreted by the Court of Justice.

All existing bilateral agreements between Member States
and third countries that contain provisions contrary to
Community law should be amended or replaced by new
agreements that are wholly compatible with Community
law.

(7) Without prejudice to the Treaty, and in particular
Article 300 thereof, Member States may wish to make
amendments to existing agreements and make provision to
manage their implementation until such time as an agree-
ment concluded by the Community enters into force.

(8)

(9)

It is essential to ensure that a Member State conducting
negotiations takes account of Community law, broader
Community
Community
and
negotiations.

ongoing

interests

If a Member State wishes to involve air carriers in the pro-
cess of negotiation, all air carriers with an establishment in
the territory of the Member State concerned should be
treated equally.

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(10)

Establishment on the territory of a Member State implies
the effective and real exercise of air transport activity
through stable arrangements; the legal form of such an
establishment, whether a branch or a subsidiary with a
legal personality, should not be the determining factor in
this respect. When an undertaking is established on the ter-
ritory of several Member States, as defined by the Treaty, it
should ensure, in order to avoid any circumvention of
national law, that each of the establishments fulfils the
obligations which may, in accordance with Community
law, be imposed by the national
law applicable to its
activities.

(11)

In order to ensure that the rights of Community air carri-
ers are not unduly restricted, no new arrangements that
reduce the number of Community air carriers which may
be designated to provide air services in a given market
should be introduced in bilateral air service agreements.

(12) Member States should establish non discriminatory and
transparent procedures for the distribution of traffic rights
between Community air carriers. In applying those proce-
dures Member States should have due regard to the need
to preserve continuity of air services.

(13) The measures necessary for the implementation of this
Regulation should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers con-
ferred on the Commission (1).

(14) Any Member State may invoke the confidentiality of the
provisions of bilateral agreements it has negotiated and
request the Commission not to share the information with
other Member States.

(15) Arrangements for greater cooperation over the use of
Gibraltar airport were agreed in London on 2 Decem-
ber 1987 by the Kingdom of Spain and the United King-
dom in a joint declaration by the Ministers of Foreign
Affairs of the two countries. Such arrangements have yet
to enter into operation.

(16)

Since the objectives of this Regulation, namely the coordi-
nation of negotiations with third countries with a view to
concluding air service agreements, the necessity of guaran-
teeing a harmonised approach in the implementation and
application of those agreements and the verification of
their compliance with Community law, cannot be suffi-
ciently achieved by the Member States and can therefore,
by reason of the Community wide scope of this Regula-
tion, be better achieved at Community level, the Commu-
nity may adopt measures in accordance with the principle
of subsidiarity, as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality, as set out
in that Article, this Regulation does not go beyond what is
necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

Article 1

Notification to the Commission

1.
A Member State may, without prejudice to the respective
competencies of the Community and its Member States, enter
into negotiations with a third country concerning a new air ser-
vice agreement or the modification of an existing air service agree-
ment, its Annexes or any other related bilateral or multilateral
arrangement, the subject matter of which falls partly within the
competence of the Community, provided that:

— any relevant standard clauses, developed and laid down
jointly between Member States and the Commission, are
included in such negotiations,

and

— the notification procedure set out in paragraphs 2, 3 and 4 is

complied with.

Where appropriate, the Commission shall be invited to participate
as an observer in any such negotiations.

2. Where a Member State intends to enter into such negotia-
tions it shall notify the Commission of its intentions in writing.
This notification shall include a copy of the existing agreement, if
available, other relevant documentation and an indication of the
provisions to be addressed in the negotiations, the objectives of
the negotiations and any other relevant information. The Com-
mission shall make the notification and, on request, the accom-
panying documentation, available to other Member States, sub-
ject to the requirements of confidentiality.

The information shall be transmitted at least one calendar month
before formal negotiations are scheduled to commence with the
third country concerned. If, due to exceptional circumstances, for-
mal negotiations are scheduled at less than one month’s notice,
the Member State shall transmit the information as soon as
possible.

3. Member States may make comments to the Member State
which has notified its intention to enter into negotiations in
accordance with paragraph 2. That Member State shall take such
comments into account as far as possible in the course of the
negotiations.

4.
If, within 15 working days of receipt of the notification
referred to in paragraph 2, the Commission concludes that the
negotiations are likely to:

(1) OJ L 184, 17.7.1999, p. 23.

— undermine the objectives of Community negotiations under-

way with the third country concerned,

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and/or

— lead to an agreement which is incompatible with Commu-

nity law

it shall inform the Member State accordingly.

Article 2

Consultation of stakeholders and participation in
negotiations

In so far as air carriers and other interested parties are to be
involved in the negotiations referred to in Article 1, Member
States shall treat equally all Community air carriers with an estab-
lishment on their respective territories to which the Treaty applies.

Prohibition on introducing more restrictive arrangements

Article 3

A Member State shall not enter into any new arrangement with a
third country, which reduces the number of Community air car-
riers which may, in accordance with existing arrangements, be
designated to provide services between its territory and that coun-
try, neither in respect of the entire air transport market between
the two parties nor on the basis of specific city pairs.

Article 4

Conclusion of agreements

1.
Upon signature of an agreement, the Member State con-
cerned shall notify the Commission of the outcome of the nego-
tiations together with any relevant documentation.

2. Where the negotiations have resulted in an agreement which
incorporates
referred to in
Article 1(1), the Member State shall be authorised to conclude the
agreement.

standard clauses

the relevant

3. Where the negotiations have resulted in an agreement which
does not incorporate the relevant standard clauses referred to in
Article 1(1), the Member State shall be authorised, in accordance
with the procedure referred to in Article 7(2), to conclude the
agreement, provided that this does not harm the object and pur-
pose of the Community common transport policy. The Member
State may provisionally apply the agreement pending the out-
come of this procedure.

4.
Notwithstanding paragraphs 2 and 3, if the Commission is
actively negotiating with the same third country on the basis of a
country-specific mandate or on the basis of the Council Deci-
sion authorising the Commission to open negotiations with third
countries on the replacement of certain provisions in existing
bilateral agreements with a Community agreement, the Member
State concerned may be authorised, in accordance with the pro-
cedure referred to in Article 7(2), to apply provisionally and/or
conclude the agreement.

Article 5

Distribution of traffic rights

Where a Member State concludes an agreement, or amendments
to an agreement or its Annexes, that provide for limitations on
the use of traffic rights or the number of Community air carriers
eligible to be designated to take advantage of traffic rights, that
Member State shall ensure a distribution of traffic rights among
eligible Community air carriers on the basis of a non discrimina-
tory and transparent procedure.

Article 6

Publication of procedures

Member States shall inform the Commission without delay of the
procedures that they shall apply for the purposes of Article 5 and,
where appropriate, Article 2. For information purposes, the Com-
mission shall ensure that these procedures are published in the
Official Journal of the European Union within eight weeks of their
receipt. Any new procedures and subsequent changes to existing
procedures shall be communicated to the Commission at least
eight weeks before they enter into force, so that the Commission
can ensure their publication in the Official Journal of the European
Union within that eight-week period.

Article 7

Committee procedure

The Commission shall be assisted by the committee estab-
1.
lished pursuant
to Article 11 of Council Regulation (EEC)
No 2408/92 of 23 July 1992 on access for Community air carri-
ers to intra Community air routes (1).

2. Where reference is made to this paragraph, Articles 3 and 7
of Decision 1999/468/EC shall apply, having regard to the pro-
visions of Article 8 thereof.

3.

The Committee shall adopt its Rules of Procedure.

Article 8

Confidentiality

In notifying the Commission of negotiations and their outcome
as envisaged in Articles 1 and 4, Member States shall clearly
inform the Commission if any information therein is to be con-
sidered confidential and whether it can be shared with other
Member States. The Commission and Member States shall ensure
that any information identified as confidential is treated accord-
ing to Article 4(1)(a) of Regulation (EC) No 1049/2001 of the
European Parliament and of the Council of 30 May 2001 regard-
ing public access to European Parliament, Council and Commis-
sion documents (2).

(1) OJ L 240, 24.8.1992, p. 8. Regulation as last amended by Regula-
tion (EC) No 1882/2003 of the European Parliament and of the
Council (OJ L 284, 31.10.2003, p. 1).

(2) OJ L 145, 31.5.2001, p. 43.

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Article 9

Gibraltar

the United Kingdom on 2 December 1987 enter into operation.
The Governments of Spain and the United Kingdom will inform
the Council of such date of entry into operation.

1.
The application of this Regulation to the airport of Gibral-
tar is understood to be without prejudice to the respective legal
positions of the Kingdom of Spain and the United Kingdom with
regard to the dispute over sovereignty over the territory in which
the airport is situated.

Application of this Regulation to Gibraltar airport shall be
2.
suspended until the arrangements included in the Joint Declara-
tion made by the Foreign Ministers of the Kingdom of Spain and

Article 10

Entry into force

This Regulation shall enter into force on the 30th day following
its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 29 April 2004.

For the European Parliament
The President
P. COX

For the Council
The President
M. McDOWELL