Proposal for a Council Decision on the signature and provisional application of the Agreement between the European Community and Bosnia and Herzegovina on certain aspects of air services
Date: 2005-07-29
Institutions: European Commission
Subjects: Bosnia and Herzegovina, European Community, air transport, signature of an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.7.2005 
COM(2005)351 final 

2005/0140(CNS) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of the Agreement between the European 
Community and Bosnia and Herzegovina on certain aspects of air services 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Community and Bosnia and 
Herzegovina on certain aspects of air services 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

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

Following the judgements of the Court of Justice of the European Communities in the cases 
C-466/98, C-467/98, C-468/98, C-471/98, C-472/98, C-475/98 and C-476/98, the Community 
has exclusive competence with respect to various aspects of external aviation. The Court of 
Justice  also  clarified  the  right  of  Community  air  carriers  to  benefit  from  the  right  of 
establishment within the Community, including the right to non-discriminatory market access. 

Traditional  designation  clauses  in  Member  States’  bilateral  air  services  agreements  infringe 
Community law. They allow a third country to reject, withdraw or suspend the permissions or 
authorisations  of  an  air  carrier  that  has  been  designated  by  a  Member  State  but  that  is  not 
substantially owned and effectively controlled by that Member State or its nationals. This has 
been found to constitute discrimination against Community carriers established in the territory 
of  a  Member  State  but  owned  and  controlled  by  nationals  of  other  Member  States.  This  is 
contrary to Article 43 of the Treaty which guarantees nationals of Member States who have 
exercised their freedom of establishment the same treatment in the host Member State as that 
accorded to nationals of that Member State. 

Following  the  Court  of  Justice  judgements,  the  Council  authorised  the  Commission  in  June 
2003  to  open  negotiations  with  third  countries  on  the  replacement  of  certain  provisions  in 
existing bilateral agreements with a Community agreement.1  

In  accordance  with  the  mechanisms  and  directives  in  the  Annex  to  the  Council’s  decision 
authorising the Commission to open negotiations with third countries on the replacement of 
certain  provisions  in  existing  bilateral  agreements  with  a  Community  agreement,  the 
Commission has negotiated an agreement with Bosnia and Herzegovina that replaces certain 
provisions in the existing bilateral air services agreements between Member States and Bosnia 
and Herzegovina. Article 2 of the Agreement replaces the traditional designation clauses with 
a Community designation clause, permitting all Community carriers to benefit from the right 
of establishment. Articles 4 and 5 of the Agreement address two types of clauses concerning 
matters of Community competence. Article 4 deals with the taxation of aviation fuel, a matter 
which  has  been  harmonised  by  Council  Directive  2003/96/EC  restructuring  the  Community 
framework  for  the  taxation  of  energy  products  and  electricity,  particularly  Article  14 
paragraph  2  thereof.  Article  5  (Pricing)  resolves  conflicts  between  the  existing  bilateral  air 
services agreements and  Council  Regulation No. 2409/92 on fares and rates for air services 
which  prohibits  third  country  carriers  from  being  price  leaders  on  air  services  for  carriage 
wholly within the Community. 

The  Council  is  asked  to  approve  the  decisions  on  the  signature  and  provisional  application 
and  on  the  conclusion  of  the  agreement  between  the  European  Community  and  Bosnia  and 
Herzegovina on certain aspects of air services and to designate the persons authorized to sign 
the agreement on behalf of the Community.  

1 

Council decision 11323/03 of 5 June 2003 (restricted document) 

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Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of the Agreement between the European 
Community and Bosnia and Herzegovina on certain aspects of air services 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
80,  paragraph  2,  in  conjunction  with  Article  300,  paragraph  2,  first  sentence  of  the  first 
subparagraph thereof, 

Having regard to the proposal from the Commission2, 

Whereas: 

(1) 

(2) 

The Council has authorised the Commission on 5 June 2003 to open negotiations with 
third  countries  on  the  replacement  of  certain  provisions  in  existing  bilateral 
agreements with a Community agreement; 

The  Commission  has  negotiated  on  behalf  of  the  Community  an  agreement  with 
Bosnia  and  Herzegovina  on  certain  aspects  of  air  services  in  accordance  with  the 
mechanisms  and  directives  in  the  Annex  to  the  Council’s  decision  authorising  the 
Commission  to  open  negotiations  with  third  countries  on  the  replacement  of  certain 
provisions in existing bilateral agreements with a Community agreement; 

(3) 

Subject  to  its  possible  conclusion  at  a  later  date,  the  agreement  negotiated  by  the 
Commission should be signed and provisionally applied. 

HAS DECIDED AS FOLLOWS:  

Sole Article 

1. 

Subject  to  its  subsequent  conclusion  at  a  later  date,  the  President  of  the  Council  is 
hereby authorised to designate the person or persons empowered to sign on behalf of 
the  Community  the  agreement  between  the  European  Community  and  Bosnia  and 
Herzegovina on certain aspects of air services. 

2 

OJ C , , p. . 

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2. 

Pending  its  entry  into  force,  the  agreement  shall  be  applied  provisionally  from  the 
first day of the first month following the date on which the parties have notified each 
other of the completion of the necessary procedures for this purpose. The President 
of the Council is hereby authorised to make the notification provided in Article 8.2 of 
the agreement. 

3. 

The text of the agreement is annexed to this decision. 

Done at Brussels,  

For the Council 
The President 

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2005/0140(CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Community and Bosnia and 
Herzegovina on certain aspects of air services 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
80,  paragraph  2,  in  conjunction  with  Article  300,  paragraph  2,  first  sentence  of  the  first 
subparagraph thereof and Article 300, paragraph 3, first subparagraph, 

Having regard to the proposal from the Commission3, 

Having regard to the opinion of the European Parliament4, 

Whereas: 

(1) 

(2) 

The Council has authorised the Commission on 5 June 2003 to open negotiations with 
third  countries  on  the  replacement  of  certain  provisions  in  existing  bilateral 
agreements with a Community agreement; 

The  Commission  has  negotiated  on  behalf  of  the  Community  an  agreement  with 
Bosnia  and  Herzegovina  on  certain  aspects  of  air  services  in  accordance  with  the 
mechanisms  and  directives  in  the  Annex  to  the  Council’s  decision  authorising  the 
Commission  to  open  negotiations  with  third  countries  on  the  replacement  of  certain 
provisions in existing bilateral agreements with a Community agreement; 

(3) 

This agreement has been signed on behalf of the Community on  subject to its possible 
conclusion at a later date, in conformity with the decision …/…/EC of the Council on5  

(4) 

This agreement should be approved. 

HAS DECIDED AS FOLLOWS:  

Article 1 

The  agreement  between  the  European  Community  and  Bosnia  and  Herzegovina  on 
certain aspects of air services is approved on behalf of the Community. 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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2. 

The text of the agreement is annexed to this decision. 

Article 2 

The  president  of  the  Council  is  authorised  to  designate  the  person  empowered  to  make  the 
notification provided in Article 8.1 of the Agreement. 

Done at Brussels, 

For the Council 
The President 

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ANNEX 

AGREEMENT 
between the European Community and Bosnia and Herzegovina  
on certain aspects of air services 

THE EUROPEAN COMMUNITY  

of the one part, and  

BOSNIA AND HERZEGOVINA 

of the other part 

(hereinafter referred to as ‘the Parties’) 

NOTING that bilateral air service agreements have been concluded between several Member 
States  of  the  European  Community  and  Bosnia  and  Herzegovina  containing  provisions 
contrary to Community law. 

NOTING  that  the  European  Community  has  exclusive  competence  with  respect  to  several 
aspects that may be included in bilateral air service agreements between Member States of the 
European Community and third countries, 

NOTING  that  under  European  Community  law  Community  air  carriers  established  in  a 
Member State have the right to non-discriminatory access to air routes between the Member 
States of the European Community and third countries, 

HAVING  REGARD  to  the  agreements  between  the  European  Community  and  certain  third 
countries  providing  for  the  possibility  for  the  nationals  of  such  third  countries  to  acquire 
ownership in air carriers licensed in accordance with European Community law, 

RECOGNISING  that  certain  provisions  of  the  bilateral  air  service  agreements  between 
Member States of the European Community and Bosnia and Herzegovina, which are contrary 
to European Community law, must be brought into conformity with it in order to establish a 
sound  legal  basis  for  air  services  between  the  European  Community  and  Bosnia  and 
Herzegovina and to preserve the continuity of such air services, 

NOTING that it is not a purpose of the European Community, as part of these negotiations, to 
increase  the  total  volume  of  air  traffic  between  the  European  Community  and  Bosnia  and 
Herzegovina, to affect the balance between Community air carriers and air carriers of Bosnia 
and Herzegovina, or to negotiate amendments to the provisions of existing bilateral air service 
agreements concerning traffic rights. 

HAVE AGREED AS FOLLOWS:  

Article 1 
General provisions 

1. 

For the purposes of this Agreement, ‘Member States’ shall mean Member States of 
the European Community.  

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2. 

3. 

1. 

2. 

References in each of the agreements listed in Annex 1 to nationals of the Member 
State that is a party to that agreement shall be understood as referring to nationals of 
the Member States of the European Community. 

References in each of the agreements listed in Annex 1 to air carriers or airlines of 
the Member State that is a party to that agreement shall be understood as referring to 
air carriers or airlines designated by that Member State. 

Article 2 
Designation by a Member State 

The  provisions  in  paragraphs  2  and  3  of  this  Article  shall  supersede  the 
corresponding provisions in the articles listed in Annex 2 (a) and (b) respectively, in 
relation  to  the  designation  of  an  air  carrier  by  the  Member  State  concerned,  its 
authorisations and permissions granted by Bosnia and Herzegovina, and the refusal, 
revocation,  suspension  or  limitation  of  the  authorisations  or  permissions  of  the  air 
carrier, respectively. 

On receipt of a designation by a Member State, Bosnia and Herzegovina shall grant 
the  appropriate  authorisations  and  permissions  with  minimum  procedural  delay, 
provided that: 

i. 

ii. 

iii. 

the  air  carrier  is  established  in  the  territory  of  the  designating  Member  State 
under  the  Treaty  establishing  the  European  Community  and  has  a  valid 
Operating Licence in accordance with European Community law;  

effective regulatory control of the air carrier is exercised and maintained by the 
Member  State  responsible  for  issuing  its  Air  Operators  Certificate  and  the 
relevant aeronautical authority is clearly identified in the designation; and 

the  air  carrier  is  owned  and  shall  continue  to  be  owned  directly  or  through 
majority  ownership  by  Member  States  and/or  nationals  of  Member  States, 
and/or  by  other  states  listed  in  Annex  3  and/or  nationals  of  such  other  states, 
and  shall  at  all  times  be  effectively  controlled  by  such  states  and/or  such 
nationals. 

3. 

Bosnia  and  Herzegovina  may  refuse,  revoke,  suspend  or  limit  the  authorisations  or 
permissions of an air carrier designated by a Member State where: 

i. 

ii. 

 the  air  carrier  is  not  established  in  the  territory  of  the  designating  Member 
State under the Treaty establishing the European Community or does not have 
a valid Operating Licence in accordance with European Community law; 

effective regulatory control of the air carrier is not exercised or not maintained 
by  the  Member  State  responsible  for  issuing  its  Air  Operators  Certificate,  or 
the  relevant  aeronautical  authority  is  not  clearly  identified  in  the  designation; 
or 

iii. 

the air carrier is not owned, directly or through majority ownership, or it is not 
effectively  controlled  by  Member  States  and/or  nationals  of  Member  States, 
and/or by other states listed in Annex 3 and/or nationals of such other states. 

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In  exercising  its  right  under  this  paragraph,  Bosnia  and  Herzegovina  shall  not  discriminate 
between Community air carriers on the grounds of nationality. 

1. 

2. 

1. 

2. 

1. 

2. 

Article 3 
Rights with regard to regulatory control 

The provisions in paragraph 2 of this Article shall complement the articles listed in 
Annex 2 (c). 

Where  a  Member  State  has  designated  an  air  carrier  whose  regulatory  control  is 
exercised  and  maintained  by  another  Member  State,  the  rights  of  Bosnia  and 
Herzegovina under the safety provisions of the agreement between the Member State 
that has designated the air carrier and Bosnia and Herzegovina shall apply equally in 
respect  of  the  adoption,  exercise  or  maintenance  of  safety  standards  by  that  other 
Member State and in respect of the operating authorisation of that air carrier. 

Article 4 
Taxation of aviation fuel 

The  provisions  in  paragraph  2  of  this  Article  shall  complement  the  corresponding 
provisions in the articles listed in Annex 2 (d).  

Notwithstanding  any  other  provision  to  the  contrary,  nothing  in  each  of  the 
agreements listed in Annex 2 (d) shall prevent a Member State from imposing taxes, 
levies, duties, fees or charges on fuel supplied in its territory for use in an aircraft of 
a designated air carrier of Bosnia and Herzegovina that operates between a point in 
the territory of that Member State and another point in the territory of that Member 
State or in the territory of another Member State. 

Article 5 
Tariffs for carriage within the European Community 

The provisions in paragraph 2 of this Article shall complement the articles listed in 
Annex 2 (e). 

The tariffs to be charged by the air carrier(s) designated by Bosnia and Herzegovina 
under an agreement listed in Annex 1 containing a provision listed in Annex 2 (e) for 
carriage  wholly  within  the  European  Community  shall  be  subject  to  European 
Community law. 

Article 6 
Annexes to the Agreement 

The Annexes to this Agreement shall form an integral part thereof. 

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Article 7 
Revision or amendment  

The Parties may, at any time, revise or amend this Agreement by mutual consent. 

Article 8 
Entry into force and provisional application  

This  Agreement  shall  enter  in  force  when  the  Parties  have  notified  each  other  in 
writing  that  their  respective  internal  procedures  necessary  for  its  entry  into  force 
have been completed. 

Notwithstanding paragraph 1, the Parties agree to provisionally apply this Agreement 
from the first day of the month following the date on which the Parties have notified 
each other of the completion of the procedures necessary for this purpose. 

Agreements  and  other  arrangements  between  Member  States  and  Bosnia  and 
Herzegovina which, at the date of signature of this Agreement, have not yet entered 
into  force  and  are  not  being  applied  provisionally  are  listed  in  Annex  1  (b).  This 
Agreement  shall  apply  to  all  such  Agreements  and  arrangements  upon  their  entry 
into force or provisional application. 

Article 9 
Termination 

In the event that an agreement listed in Annex 1 is terminated, all provisions of this 
Agreement that relate to the agreement listed in Annex 1 concerned shall terminate at 
the same time.  

In  the  event  that  all  agreements  listed  in  Annex  1  are  terminated,  this  Agreement 
shall terminate at the same time.  

1. 

2. 

3. 

1. 

2. 

IN  WITNESS  WHEREOF,  the  undersigned,  being  duly  authorised,  have  signed  this 
Agreement. 

Done at [….] in duplicate, on this […] day of […, …] in the Czech, Danish, Dutch, English, 
Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, 
Polish, Portuguese, Slovak, Slovene, Spanish, Swedish languages and the official languages 
of Bosnia and Herzegovina. In case of divergence the English text shall prevail over the other 
language texts. 

FOR THE EUROPEAN COMMUNITY: 

FOR BOSNIA AND HERZEGOVINA: 

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ANNEX 1 

List of agreements referred to in Article 1 of this Agreement 

(a) Air service agreements between Bosnia and Herzegovina and Member States of the 
European  Community  which,  at  the  date  of  signature  of  this  Agreement,  have  been 
concluded, signed and/or are being applied provisionally 

–  Air  Transport  Agreement  between  the  Austrian  Federal  Government  and  the 
Government  of  Bosnia  and  Herzegovina  signed  at  Sarajevo  on  21  August  1998, 
hereinafter referred to “Bosnia and Herzegovina – Austria Agreement” in Annex 2 ; 

Last modified by the Memorandum of Understanding done at Vienna on 23 January 1996. 

–  Air  Transport  Agreement  between  the  Government  of  the  Federal  Republic  of 
Germany and the Government of the Republic of Bosnia  and Herzegovina signed at 
Bonn  on  10  May  1995,  hereinafter  referred  to  “Bosnia  and  Herzegovina  –  Germany 
Agreement” in Annex 2 ; 

–  Air  Transport  Agreement  between  the  Government  of  the  Hellenic  Republic  and  the 
Council of Ministers of Bosnia and Herzegovina signed at Athens on 2 December 2004, 
hereinafter referred to “Bosnia and Herzegovina – Greece Agreement” in Annex 2 ; 

–  Air Services Agreement between the Government of the Republic of Hungary and the 
Council of Ministers of Bosnia and Herzegovina signed at Budapest on 27 April 2004, 
hereinafter referred to “Bosnia and Herzegovina – Hungary Agreement” in Annex 2 ; 

–  Agreement  between  the  Kingdom  of  the  Netherlands  and  the  Federative  People’s 
Republic  of  Yugoslavia  on  regular  air  services,  signed  at  Belgrade  on  13  March  1957, 
hereinafter referred to “Bosnia and Herzegovina – Netherlands Agreement” in Annex 2 ; 

–  Air  Transport  Agreement  between  the  Polish  People’s  Republic  and  the  Federative 
People’s  Republic  of  Yugoslavia  signed  at  Warsaw  on  14  November  1955,  hereinafter 
referred to “Bosnia and Herzegovina – Poland Agreement” in Annex 2 ; 

–  Agreement  between  the  Republic  of  Slovenia  and  the  Republic  of  Bosnia  and 
Herzegovina  relating  to  Scheduled  Air  Services  signed  at  Sarajevo  on  19  January  1996, 
hereinafter referred to “Bosnia and Herzegovina – Slovenia Agreement” in Annex 2. 

(b)  Air  service  agreements  and  other  arrangements  initialled  or  signed  between  the 
Government  of  Bosnia  and  Herzegovina  and  Member  States  of  the  European 
Community which, at the date of signature of this Agreement, have not yet entered into 
force and are not being applied provisionally 

–  Agreement  between  the  Government  of  the  United  Kingdom  of  Great  Britain  and 
Northern Ireland and the Council of Ministers of Bosnia and Herzegovina concerning 
Air  Services  initialled  at  London  on  14  March  2003,  hereinafter  referred  to  “Bosnia  and 
Herzegovina – UK Agreement” in Annex 2 ; 

To  be  read  together  with  the  Memorandum  of  Understanding  done  at  London  on  14  March 
2003 and at Sarajevo on 21 March 2003. 

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List of articles in the agreements listed in Annex 1 and referred to in Articles 2 to 5 of 
this Agreement 

ANNEX 2 

(a) Designation by a Member State: 

–  Article 3, Paragraph 5 of the Bosnia and Herzegovina – Austria Agreement; 

–  Article 3, Paragraph 4 of the Bosnia and Herzegovina – Germany Agreement; 

–  Article 3, Paragraph 2 of the Bosnia and Herzegovina – Greece Agreement; 

–  Article 4, Paragraph 4 (a) of the Bosnia and Herzegovina – Hungary Agreement; 

–  Article 2 of the Bosnia and Herzegovina – Poland Agreement; 

–  Article 3, Paragraph 4 of the Bosnia and Herzegovina – Slovenia Agreement; 

–  Article 4 of the Bosnia and Herzegovina – UK Agreement; 

(b) Refusal, Revocation, Suspension or Limitation of Authorisations or Permissions: 

–  Article 4, Paragraph 1 (a) of the Bosnia and Herzegovina – Austria Agreement; 

–  Article 4 of the Bosnia and Herzegovina – Germany Agreement; 

–  Article 4, Paragraph 1 (a) of the Bosnia and Herzegovina – Greece Agreement; 

–  Article 5, Paragraph 1 (a) (i) of the Bosnia and Herzegovina – Hungary Agreement; 

–  Article 3, paragraph 1 of the Bosnia and Herzegovina – Netherlands Agreement; 

–  Article 4, Paragraph 1 (a) of the Bosnia and Herzegovina – Slovenia Agreement; 

–  Article 5 of the Bosnia and Herzegovina – UK Agreement; 

(c) Regulatory control: 

–  Article 7 of the Bosnia and Herzegovina – Greece Agreement; 

–  Article 16 of the Bosnia and Herzegovina – Hungary Agreement; 

–  Article 14 of the Bosnia and Herzegovina – UK Agreement; 

(d) Taxation of Aviation Fuel: 

–  Article 7 of the Bosnia and Herzegovina – Austria Agreement; 

–  Article 6 of the Bosnia and Herzegovina – Germany Agreement; 

–  Article 10 of the Bosnia and Herzegovina – Greece Agreement; 

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–  Article 8 of the Bosnia and Herzegovina – Hungary Agreement; 

–  Article 9 of the Bosnia and Herzegovina – Netherlands Agreement; 

–  Article 6 of the Bosnia and Herzegovina – Poland Agreement; 

–  Article 6 of the Bosnia and Herzegovina – Slovenia Agreement; 

–  Article 8 of the Bosnia and Herzegovina – UK Agreement; 

(e) Tariffs for Carriage within the European Community: 

–  Article 11 of the Bosnia and Herzegovina – Austria Agreement; 

–  Article 10 of the Bosnia and Herzegovina – Germany Agreement; 

–  Article 13 of the Bosnia and Herzegovina – Greece Agreement; 

–  Article 11 of the Bosnia and Herzegovina – Hungary Agreement; 

–  Article 7 of the Bosnia and Herzegovina – Netherlands Agreement; 

–  Article 7 of the Bosnia and Herzegovina – Poland Agreement; 

–  Article 13 of the Bosnia and Herzegovina – Slovenia Agreement; 

–  Article 7 of the Bosnia and Herzegovina – UK Agreement; 

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ANNEX 3 

List of other states referred to in Article 2 of this Agreement 

(a) The Republic of Iceland (under the Agreement on the European Economic Area); 

(b)  The  Principality  of  Liechtenstein  (under  the  Agreement  on  the  European  Economic 
Area); 

(c) The Kingdom of Norway (under the Agreement on the European Economic Area); 

(d) The Swiss Confederation (under the Agreement between the European Community and 
the Swiss Confederation on Air Transport) 

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