Proposal for a Council Decision on the signature and provisional application of the Agreement between the European Community and the Republic of Moldova on certain aspects of air services
Date: 2005-08-12
Institutions: European Commission
Subjects: European Commission, Moldova, air transport, signature of an agreement

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.08.2005 
COM(2005) 371 final 

2005/0151(CNS) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of the Agreement between the European 
Community and the Republic of Moldova on certain aspects of air services 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Community and the Republic 
of Moldova 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 traditionally 
been  governed  by  bilateral  air  services  agreements  between  Member  States  and  third 
countries,  the  Annexes  to  such  agreements  and  other  related  bilateral  or  multilateral 
arrangements. 

Following the judgements of the Court of Justice of the European Communities in 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  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 the Republic of Moldova that replaces certain 
provisions  in  the  existing  bilateral  air  services  agreements  between  Member  States  and  the 
Republic of Moldova. 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,  and  in  particular 
Article 14 (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 the Republic 
of Moldova on certain aspects of air services and to designate the persons authorised 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 the Republic of Moldova 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(2) in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof, 

Having regard to the proposal from the Commission2, 

Whereas: 

(1) 

(2) 

The  Council  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. 

On behalf of the Community, the Commission has negotiated an Agreement with the 
Republic  of  Moldova  on  certain  aspects  of  air  services  in  accordance  with  the 
mechanisms  and  directives  in  the  Annex  to  the  Council  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. 

2. 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s) 
empowered  to  sign  on  behalf  of  the  Community  the  Agreement  between  the 
European Community and the Republic of Moldova on certain aspects of air services 
subject to its conclusion at a later date. 

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 for in Article 
8(2) of the Agreement. 

2 

OJ C , , p. . 

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3. 

The text of the Agreement is attached to this Decision. 

Done at Brussels,  

For the Council 
The President 

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2005/0151(CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Community and the Republic 
of Moldova 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(2) in conjunction with the first sentence of the first subparagraph of Article 300(2) and the 
first subparagraph of Article 300(3) thereof, 

Having regard to the proposal from the Commission3, 

Having regard to the opinion of the European Parliament4, 

Whereas: 

(1) 

(2) 

The  Council  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. 

On behalf of the Community, the Commission has negotiated an Agreement with the 
Republic  of  Moldova  on  certain  aspects  of  air  services  in  accordance  with  the 
mechanisms  and  directives  in  the  Annex  to  the  Council  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) 

The  Agreement  was  signed  on  behalf  of  the  Community  on  subject  to  its  possible 
conclusion at a later date, in conformity with Council Decision …/…/EC of 5. 

(4) 

The Agreement should be approved, 

HAS DECIDED AS FOLLOWS:  

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4 
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OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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Article 1  

1. 

2. 

The Agreement between the European Community and the Republic of Moldova on 
certain aspects of air services is hereby approved on behalf of the Community. 

The text of the Agreement is attached to this Decision. 

Article 2 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
make the notification provided for 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 the Republic of Moldova 

on certain aspects of air services 

THE EUROPEAN COMMUNITY  

of the one part, and  

THE REPUBLIC OF MOLDOVA  

(hereinafter referred to as Moldova) 

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  Moldova  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  Moldova,  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  Moldova  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  Moldova,  to 
affect the balance between Community air carriers and air carriers of Moldova, or to negotiate 
amendments  to  the  provisions  of  existing  bilateral  air  service  agreements  concerning  traffic 
rights. 

HAVE AGREED AS FOLLOWS:  

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ARTICLE 1 
General provisions 

1. 

2. 

3. 

1. 

For the purposes of this Agreement, definitions are listed in Annex 4. 

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  Moldova,  and  the  refusal,  revocation, 
suspension  or  limitation  of  the  authorisations  or  permissions  of  the  air  carrier, 
respectively. 

2. 

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

ii. 

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,  directly  or  through  majority  ownership,  and  it  is 
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. 

3. 

Moldova 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 

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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. 

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

ARTICLE 3 
Safety 

1. 

2. 

1. 

2. 

1. 

2. 

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 Moldova under the 
safety provisions of the agreement between the Member State that has designated the 
air  carrier  and  Moldova  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, on a 
non-discriminatory basis, taxes, levies, duties, fees or charges on fuel supplied in its 
territory  for  use  in  an  aircraft  of  a  designated  air  carrier  of  Moldova  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  Moldova  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  on  the  date  of  the  receipt  of  the  latest  written 
notification  of  the  Parties  on  the  completion  of  their  internal  procedures  necessary 
for the entry into force of this Agreement.  

Pending its entry into force in accordance with paragraph 1, the parties shall 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  necessary  internal 
procedures to that effect. 

Agreements and other arrangements between Member States and Moldova 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 two original copies, 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 and Moldovan languages.  

FOR THE EUROPEAN COMMUNITY: 

FOR THE REPUBLIC OF MOLDOVA: 

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ANNEX 1 

List of agreements referred to in Article 1 of this Agreement 

(a) 

Air service agreements between Republic of Moldova 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 the Republic of Moldova signed at Vienna on 20 July 1993, hereinafter 
referred to “Moldova – Austria Agreement” in Annex 2; 

–  Last modified by Memorandum of Understanding done at Vienna on 10 October 2002; 

–  Agreement between the Government of the Republic of Cyprus and the Government of 
the  Republic  of  Moldova  concerning  air  services  signed  at  Chisinau  on  15  July  2002 
hereinafter referred to "Moldova – Cyprus Agreement" in Annex 2;  

–  Air  Transport  Agreement  between  the  Government  of  the  Czech  Republic  and  the 
Government  of  the  Republic  of  Moldova  signed  at  Chisinau  on  24  February  2004, 
hereinafter referred to “Moldova – Czech Republic Agreement” in Annex 2; 

–  Air  Transport  Agreement  between  the  Government  of  the  Federal  Republic  of 
Germany  and  the  Government  of  the  Republic  of  Moldova  signed  at  Chisinau  on  21 
May 1999, hereinafter referred to “Moldova – Germany Agreement” in Annex 2; 

–  Air  Transport  Agreement  between  the  Government  of  the  Hellenic  Republic  and  the 
Government of the Republic of Moldova done at Athens on 29 March 2004, hereinafter 
referred to “Moldova – Greece Agreement” in Annex 2; 

–  Air Transport Agreement between the Government of the Republic of Hungary and the 
Government  of  the  Republic  of  Moldova  signed  at  Budapest  on  19  April  1995, 
hereinafter referred to “Moldova – Hungary Agreement” in Annex 2; 

–  Agreement  between  the  Government  of  the  Italian  Republic  and  the  Government  of 
the Republic of Moldova concerning air services signed at Rome on 19 September 1997, 
hereinafter referred to “Moldova – Italy Agreement” in Annex 2; 

Last Modified by Memorandum of Understanding signed at Rome on 26 January 2005;  

–  Air Services Agreement between the Government of the Republic of Lithuania and the 
Government of the Republic of Moldova signed at Vilnius on 5 April 1996, hereinafter 
referred to “Moldova – Lithuania Agreement” in Annex 2; 

Last Amended by Exchange of Notes signed at Chisinau on 8 November 2004;  

–  Agreement  between  the  Government  of  the  Kingdom  of  the  Netherlands  and  the 
Government of the Union of Soviet Socialist Republics concerning air services, signed on 
17  June  1958  endorsed  through  the  common  declaration  regarding  bilateral  treaties  in 
relations between the Kingdom of the Netherlands and the Republic of Moldova signed 
in  Chisinau  on  29  October  1996,  hereinafter  referred  to  "Moldova  –  Netherlands 
Agreement" in Annex 2;  

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–  Agreement between the Government of the Republic of Poland and the Government of 
the  Republic  of  Moldova  concerning  civil  air  transport  signed  at  Warsaw  on  27  July 
1995, hereinafter referred to “Moldova – Poland Agreement” in Annex 2; 

–  Agreement  between  the  Government  of  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland  and  the  Government  of  the  Republic  of  Moldova  relating  to  Air 
Services initialled at Kishinev on 18 November 1994, hereinafter referred to “Moldova-UK 
Agreement” in Annex 2; 

(b) 

Air  service  agreements  and  other  arrangements  initialled  or  signed  between 
Moldova 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 

–  -  Air Transport Agreement between the Government of the Republic of Estonia and 
the Government of the Republic of Moldova initialled at Tallin on 23 September 1999, 
hereinafter referred to “Moldova – Estonia Agreement” in Annex 2; 

–  Agreement between the Government of the Republic of France and the Government of 
the Republic of Moldova relating to Air Transport initialled at Chisinau on 29 July 1999, 
hereinafter referred to "Moldova – France Agreement" in Annex 2; 

–  Air  Services  Agreement  between  the  Government  of  the  Republic  of  Latvia  and  the 
Government of the Republic of Moldova, initialled at Riga on 28 April 2004, hereinafter 
referred to “Moldova – Latvia Agreement” in Annex 2. 

–  Agreement between the Portuguese Republic and the Republic of Moldova relating to 
Air Services initialled at Lisbon on 17 February 2005, hereinafter referred to “Moldova – 
Portugal Agreement” in Annex 2;  

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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 Moldova – Austria Agreement; 

–  Article 4, Paragraph 3, of the Moldova – Cyprus Agreement; 

–  Article 3, Paragraph 4, of the Moldova – Czech Republic Agreement; 

–  Article 3, Paragraph 4, of the Moldova – Estonia Agreement; 

–  Article 3, Paragraph 2, of the Moldova – France Agreement; 

–  Article 3, Paragraph 2 (b), of the Moldova –Greece Agreement;  

–  Article 3, Paragraph 4, of the Moldova – Hungary Agreement; 

–  Article 1, Paragraph 2 of the Moldova – Netherlands Agreement; 

–  Article 3, Paragraph 4, of the Moldova – Poland Agreement; 

–  Article 4, Paragraph 4, of the Moldova – UK Agreement; 

(b) Refusal, revocation, suspension or limitation of authorisations or permissions: 

–  Article 4, Paragraph 1 (a) of the Moldova – Austria Agreement; 

–  Article 5, Paragraph 1 (a) of the Moldova – Cyprus Agreement; 

–  Article 4, Paragraph 1 (b) of the Moldova – Czech Republic Agreement; 

–  Article 4 of the Moldova – Estonia Agreement; 

–  Article 4, Paragraph 1 of the Moldova – France Agreement; 

–  Article 4, Paragraph 1 (b) of the Moldova – Greece Agreement; 

–  Article 4, Paragraph 1 (a), of the Moldova – Hungary Agreement; 

–  Article 4, Paragraph 1 (a), of the Moldova – Poland Agreement; 

–  Article 5, Paragraph 1 (a), of the Moldova – UK Agreement; 

(c) Safety: 

–  Article 13 of the Moldova – Cyprus Agreement; 

–  Article 8 of the Moldova – Czech Republic Agreement; 

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–  Article 12 of the Moldova – Estonia Agreement; 

–  Article 8 of the Moldova – France Agreement; 

–  Article 12 of the Moldova – Germany Agreement; 

–  Article 7 of the Moldova – Greece Agreement; 

–  Article 16 of the Moldova – Latvia Agreement; 

(d) Taxation of aviation fuel: 

–  Article 7 of the Moldova – Austria Agreement; 

–  Article 7 of the Moldova – Cyprus Agreement; 

–  Article 9 of the Moldova – Czech Republic Agreement; 

–  Article 6 of the Moldova – Estonia Agreement; 

–  Article 10 of the Moldova – France Agreement; 

–  Article 6 of the Moldova – Germany Agreement; 

–  Article 10 of the Moldova – Greece Agreement; 

–  Article 6 of the Moldova – Hungary Agreement; 

–  Article 7 of the Moldova – Latvia Agreement; 

–  Article 6 of the Moldova – Lithuania Agreement; 

–  Article 9 of the Moldova – Poland Agreement; 

–  Article 8 of the Moldova – UK Agreement; 

(e) Tariffs for carriage within the European Community: 

–  Article 11 of the Moldova – Austria Agreement;  

–  Article 16 of the Moldova – Cyprus Agreement; 

–  Article 13 of the Moldova – Czech Republic Agreement; 

–  Article 10 of the Moldova – Estonia Agreement; 

–  Article 14 of the Moldova – France Agreement; 

–  Article 10 of the Moldova – Germany Agreement; 

–  Article 13 of the Moldova – Greece Agreement; 

–  Article 13 of the Moldova – Hungary Agreement; 

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–  Article 8 of the Moldova – Italy Agreement; 

–  Article 11 of the Moldova – Latvia Agreement; 

–  Article 10 of the Moldova – Lithuania Agreement; 

–  Article 8 of the Moldova – Poland Agreement; 

–  Article 7 of the Moldova – UK Agreement; 

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ANNEX 3 

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

(a) 

(b) 

(c) 

(d) 

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

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

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

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

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Definitions 

ANNEX 4 

The expression “Member State” means any Member State of the European Community.  

The expression “Establishment of a Community air carrier (airline) 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 should not be the determining factor in 
this respect, whether it is a branch or a subsidiary with legal personality. When an undertaking 
is  established  on  the  territory  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.6 

The  expression  “Operating  licence”  means  an  authorisation  granted  by  the  Member  State 
responsible  to  an  undertaking,  permitting  it  to  carry  out  carriage  by  air  of  passengers,  mail 
and/or cargo, as stated in the operating licence, for remuneration and/or hire. 

The expression “Air operator’s certificate” means a document issued to an undertaking or a 
group of undertakings by the competent authorities which affirms that the operator in question 
has  the  professional  ability  and  organisation  to  secure  the  safe  operation  of  aircraft  for  the 
aviation activities specified in the certificate. 

Evidence of “effective regulatory control”  is predicated upon but is not limited  to: the  air 
carrier  holds  a  valid  Operating  Licence  issued  by  the  competent  authorities,  and  meets  the 
criteria for the operation of international air services established by the competent authorities, 
such as proof of financial fitness, ability to meet, where relevant, public interest requirement, 
obligations  for  assurance  of  service  etc.,  and  the  licensing  Member  State  has  and  maintains 
aviation  safety  and  security  oversight  programmes  in  compliance  with  standards  of  the 
International Civil Aviation Organisation at least. 

6 

Corrigendum to Regulation (EC) 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) 

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