Proposal for a Regulation of the European Parliament and of the Council on common rules for the operation of air transport services in the Community (recast) {SEC(2006) 943} {SEC(2006) 976}
Date: 2006-07-18
Institutions: European Commission
Subjects: air transport, consolidation of EU law, transport regulations

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.7.2006 
COM(2006) 396 final 

2006/0130 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on common rules for the operation of air transport services in the Community 
(recast) 

(presented by the Commission)  

{SEC(2006) 943} 
{SEC(2006) 976} 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

110 

•  Grounds for and objectives of the proposal 

The framework of liberalisation set by the regulations (EEC) No 2407/92, 2408/92 and 
2409/92  -  the  "third  package"  of  the  internal  aviation  market  -  has  favoured  the 
transformation of air transport services into more efficient and affordable services. But 
the experience of the last decade has shown that some measures of the third package 
are either poorly applied or need to be clarified or revised. Divergent application and 
interpretation  of  the  three  regulations  in  the  Member  States  and  the  need  for 
clarification require a revision of the regulations in order to ensure the establishment of 
a true level playing field for all EU airlines. The revision of the third package aims to 
increase  market  efficiency,  to  enhance  the  safety  of  air  services  and  to  improve 
passenger protection. 

120 

•  General context 

On 23 July 1992 the final stage in the liberalisation of air transport in the Community 
was reached with the adoption of the three Council Regulations - No 2407/92, 2408/92 
and  2409/92  -  known  as  the  "third  package".  This  followed  up  the  "first  package", 
adopted in December 1987, and the "second package" of June 1990. 

More than ten years after the entry into force the third package has largely played its 
role, allowing the unprecedented expansion of air transport in Europe. Old monopolies 
have  been  swept  away,  intra-Community  cabotage  has  been  introduced,  and 
competition in all markets has intensified to the benefit of consumers.  

Despite  this  success,  most  of  the  Community's  airlines  continue  to  suffer  from 
overcapacity  and  from  the  excessive  fragmentation  of  the  market.  The  inconsistent 
application of the third package across the Member States and the lingering restrictions 
on intra-Community air services translate into the following effects: 

Absence  of  a  level-playing  field:  market  efficiency  is  affected  by  competition 
o 
distortions  (e.g.  varying  application  with  regard  to  the  requirements  of  the  operating 
licence; discrimination between EU carriers on the basis of nationality; discriminatory 
treatment concerning routes to third countries; etc.); 

o 
Inconsistent  application  of  rules  governing  the  leasing  of  aircraft  from  third 
countries  with  crew,  with  consequent  distortions  of  competition  and  social 
implications; 

o 
Passengers  not  reaping  the  full  benefits  of  the  internal  market  because  of  the 
lack  of  price  transparency  or  discriminatory  practices  on  the  basis  of  the  place  of 
residence. 

130 

•  Existing provisions in the area of the proposal 

The  proposal  aims  at  revising  and  consolidating  the  regulations  (EEC)  No  2407/92, 
2408/92 and 2409/92. 

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140 

•  Consistency with the other policies and objectives of the Union 

The  proposal  reinforces  the  internal  market  by  promoting  market  consolidation  and 
thereby creating a more competitive environment with European air carriers capable of 
taking on their international competitors. It contributes to the objectives of the Lisbon 
strategy for increasing Europe's competitiveness. 

Special  attention  has  been  devoted  to  the  simplification  and  the  consolidation  of  the 
content  of  the  regulations  (EEC)  No  2407/92,  2408/92  and  2409/92.  This  is  done  in 
accordance with the Commission's commitment to simplify the content of the acquis, 
to up-date it and to reduce its volume. 

Some of the proposed changes may have an environmental impact. It must be recalled 
that  the  environmental  impact  is  already  being  addressed  by  distinct  Commission 
initiatives in the framework of the Sustainable Development Strategy and the European 
Climate  Change  Programme  (see  also  “reducing  the  Climate  Change  Impact  of 
Aviation”,  Communication  from  the  Commission  to  the  Council,  the  European 
Parliament and Social Committee and the Committee of the Regions, COM(2005)459 
of 27 September 2005). 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

211 

Consultation methods, main sectors targeted and general profile of respondents 

The preparation of this proposal has been preceded by a public consultation in order to 
gather as many comments and suggestions as possible from the individuals and bodies 
concerned.  The  Commission  received  56  contributions  from  national  authorities, 
international  organisations,  air  carriers  and  their  representative  bodies,  airports  and 
organisations representing air transport workers or air transport users. 

On  26  February  2004  a  consultation  meeting  with  stakeholders was held  in  Brussels. 
Delegations  from  11  Member  States  and  from  11  organisations  representing  airlines, 
airports, tourism operators and the air sector's employees and workers were present. 

212 

Summary of responses and how they have been taken into account 

The majority of the respondents are satisfied with the current regulations, but agree to 
the  need  for  a  few  adjustments  and  an  effort  to  harmonise  which  could  be  made  by 
adding  more  detail  in  the  texts  or  drafting  guidelines.  There  is  support  for  the 
modernisation  and  simplification  of  the  texts  and  the  suppression  of  provisions  that 
were needed in 1992 but that are outdated today. 

As regards Regulation (EEC) No 2407/92, there is a need for more detail for tightening 
the  monitoring  of  air  carriers'  financial  viability  and  for  stricter  requirements  for  the 
leasing of aircraft. 

As regards Regulation (EEC) No 2408/92, most respondents stress that relations with 
third  countries  must  be  the  subject  of  specific  agreements  and  regulations.  There  is 
broad  agreement  on  the  need  to  simplify  the  procedure  for  fulfilling  public  service 

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obligations, but a significant number of the air carriers stress the risk of distortion of 
competition that could arise from the excessive use of public service obligations. Most 
respondents  were  in  favour  of  clarifying  the  rules  concerning  traffic  distribution 
between airports and the fixing of objective criteria. 

As  regards  Regulation  (EEC)  No  2409/92,  air  carriers  are  opposed  to  anything  that 
might jeopardise the freedom to set fares, as presently enshrined in the competition law 
and  safeguard  rules  of  Regulation  2409/92.  However,  some  national  and  regional 
authorities  and  user  organisations  appear  to  be  willing  to  act  to  ensure  greater 
transparency and genuine accessibility for all Europeans to the air fares offered in the 
Union.  

All  the  comments  expressed  during  the  consultation  process  have  been  carefully 
examined in the preparation of the proposed revision. The results from the consultation 
have been fed into the impact assessment. The latter was supported by a contract with 
an external consultant that was carried out between December 2004 and October 2005. 

An open consultation was conducted over the internet from 17/03/2003 to 30/09/2003. 
The  Commission 
results  are  available  on 
http://europa.eu.int/comm/transport/air/rules/package_3_en.htm. 

response(s).  The 

received  56 

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

213 

229 

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The  revision  of  the  third  package  does  not  intend  to  radically  change  the  legal 
framework, but rather to make a series of adjustments in order to address the identified 
problems.  Any  options  that  move  too  far  away  from  the  existing  legal  framework  – 
such as the creation of a Community licensing authority - have already been excluded 
through  the  consultation  process.  Therefore,  we  compared  a  'no  change'  option  and  a 
'change'  option  where  the  latter  consists  of  a  series  of  measures  addressing  directly 
each of the problems identified in the analysis of the third package: 

1. The 'No change' option leaves unaltered the present three regulations composing the 
third  package  of  the  internal  aviation  market.  The  previously  mentioned  problems 
arising from the inconsistent application of the third package regulations are expected 
to continue or even worsen if the legislation is left unchanged.  

2.  The  'change'  option  includes  a  series  of  changes  to  the  third  package  in  order  to 
ensure  the  homogenous  and  effective  application  of  its  rules.  The  impact  assessment 
showed  that  these  measures  meet  well  the  objectives,  that  their  economic  and  social 
impact is positive, at a quite limited environmental cost.  

231 

The  Commission  carried  out  an  impact  assessment  listed  in  the  Work  Programme, 
which accompanies the present proposal. 

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3)  LEGAL ELEMENTS OF THE PROPOSAL 

305 

•  Summary of the proposed action 

The  draft  regulation  will  ensure  an  efficient  and  homogeneous  application  of 
Community  legislation  for  the  internal  aviation  market  via  stricter  and  more  precise 
application  criteria  (e.g.  for  operating  licences,  leasing  of  aircraft,  public  service 
obligations  and  traffic  distribution  rules).  It  also  reinforces  the  internal  market  by 
lifting  still  existing  restrictions  on  the  provision  of  air  services  stemming  from  old 
bilateral agreements between Member States and by conferring to the Community the 
right  to  negotiate  intra-Community  traffic  rights  with  third  countries.  It  enhances 
consumer rights by promoting price transparency and non-discrimination. 

The proposal simplifies and consolidates the legislation as it removes obsolescent parts 
of the third package and clarifies the text where needed. The three existing regulations 
of the third package will be consolidated into a single text.  

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•  Legal basis 

This draft regulation that repeals regulations (EEC) No 2407/92, 2408/92 and 2409/92 
is based on article 80 (2) of the Treaty establishing the European Community.  

320 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the 
exclusive competence of the Community. 

The  objectives  of  the  proposal  cannot  be sufficiently  achieved  by  the  Member  States 
for the following reason(s). 

- The experience with the third package on the internal aviation market has shown that 
the legislation is not interpreted and applied in a uniform way across Member States. 
This  situation  hinders  the  existence  of  a  true  level-playing  field  between  Community 
air  carriers.  Given  the  international  nature  of  aviation,  these  problems  cannot  be 
resolved at Member State level. 

- The non-homogenous application of the third package leads to competition distortions 
in  the  internal  aviation  market  as  air  carriers  from  different  Member  States  do  not 
operate under the same conditions.  

Community action will better achieve the objectives of the proposal for the following 
reason(s). 

-  More  homogeneous  application  of  the  third  package  can  best  be  achieved  by 
clarifying and specifying its rules on a Community level.  

- Some impediments to the free provision of air services need to be removed from the 
Community legislation. 

-  The  identified  problems  can  only  be  addressed  at  a  Union  level  given  their  trans-
national character. 

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The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

-  The  proposed  revision  of  the  third  package  leaves  the  scope  for  national  decisions 
mostly unchanged but helps to ensure a homogeneous interpretation of the Community 
legislation. Only in precise cases, where the potential of market distortions arising from 
national  decisions  is  highest,  have  the  possibilities  for  Community  intervention  been 
enhanced. 

-  The  administrative  burden  on  national  authorities  may  increase  for  some  Member 
States in the area of the supervision of the operating licences as the proposal involves a 
more stringent supervision. However, in other areas of the proposal, the administrative 
burden should remain unchanged or decrease (e.g. public service obligations). 

•  Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason(s). 

A regulation is the most appropriate instrument as: 

- the proposal concerns the revision of three existing regulations; 

- the objective is to ensure a more homogeneous application of Community legislation 
on the internal aviation market. 

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5)  ADDITIONAL INFORMATION 

•  Simplification 

The proposal provides for simplification of legislation. 

In  this  proposal,  obsolete  measures  have  been  removed  and  -  where  possible  -  the 
content, the presentation and the wording of the regulations have been revised in order 
to  improve  their  understanding  and  to  avoid  ambiguous  interpretations.  In  addition, 
given the now simplified structure of the regulations, they have been consolidated into 
one single text. 

The  proposal  is  included  in  the  Commission's  rolling  programme  for  up-date  and 
simplification of the acquis communautaire and its Work and Legislative Programme 
under the reference 2002/TREN/28. 

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520 

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•  Repeal of existing legislation 

The adoption of the proposal will lead to the repeal of existing legislation. 

•  European Economic Area 

The proposed act concerns an EEA matter and should therefore extend to the European 
Economic Area. 

•  Detailed explanation of the proposal 

1.  Reinforcement  of  the  requirements  for  the  granting  and  revoking  of  an  operating 
licence 

The financial health of the airlines is being checked with different degrees of severity 
depending on the Member State that issued the licence. Therefore, a real level-playing 
field  between  airlines  from  different  Member  States  is  not  always  assured  and 
consolidation  of  the  market is slowed  down. Furthermore, the continued operation of 
financially fragile air companies involves safety risks, in addition to the financial risks 
incurred by customers in the case of bankruptcy of an air carrier.  

The  proposal  requires  Member  States  to  reinforce  the  supervision  of  the  operating 
licences  and  to  suspend  or  revoke  it  when  the  requirements  of  the  regulation  are  no 
longer met (articles 5 to 10). In order to avoid inaction of a Member State, the proposal 
confers the right to the Commission to revoke the operating licence (article 14). 

The  proposal  has  been  drafted  such  as  to  take  allow  for  the  possibility  of  a  future 
extension  of  the  competencies  of  the  European  Aviation  Safety  Agency  (EASA)  for 
safety  oversight  and/or  licensing  such  as  to  ensure  the  most  efficient  and  consistent 
supervision of the air carriers. 

2. The proposal strengthens the requirements for the leasing of aircraft (article 13) 

Wet-leasing  of  aircraft  from  third  countries  provides  EU  airlines  with  important 
flexibility which thereby enhances the economic efficiency of the EU airline industry 
to  the  benefit  of  consumers.  However,  the  application  of  the  present  provisions  of 
regulation (EEC) No 2407/92 raise social and safety concerns. Rules and practice with 
regard  to  leasing  (especially  wet-leasing  i.e.  leasing  of  aircraft  with  crew)  differ 
between Member States.  

The  safety  assessment  of  leased  aircraft  from  third  countries  is  not  pursued  with  the 
same  rigour  in  all  Member  States,  creating  concerns  about  safety  levels.  The 
sometimes  regular  recourse  to  wet-leasing  from  third  countries  spurs  concern  about 
potentially adverse social consequences.  

The proposal introduces stricter requirements in order to minimize the risk of adverse 
social consequences and to enhance safety. The proposal emphasizes that, in order to 
agree  with  leasing  agreements,  the  competent  licensing  authority  must  confirm  that 
safety standards equivalent to the Community safety requirements are met. Concerning 
the  leasing  of  aircraft  registered  in  third  countries,  they  will  only  be  allowed  in 
exceptional circumstances for a maximum duration of six months and renewable only 

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once in a second non-consecutive period of up to six months. 

3.  The  proposal  clarifies  the  rules  applicable  to  public  service  obligations  (PSO) 
(articles 16, 17 and 18) 

The rules applicable to public service obligations have been revised in order to lighten 
the  administrative  burden,  to  avoid  excessive  recourse  to  PSO  and  to  attract  more 
competitors in the tender procedures. The publication obligations have been modified 
by limiting the publication in the Official Journal of the European Union to a shortened 
notice. 

To avoid excessive recourse to PSO, the Commission may require in individual cases 
the  production  of  an  economic  report  explaining  the  context  of  the  PSO  and  the 
assessment of their adequacy should be performed with particular care when they are 
intended to be imposed on routes that are already been served by rail services with a 
travel  time  of  less  than  three  hours.  The  tender  procedures  have  been  modified  by 
extending the maximum concession period from three to four years (and five years in 
the  case  of  ultra-peripheral  regions).The  tender  procedure  for  the  renewal  of  a 
concession must be launched at least six months in advance in order to allow a careful 
assessment of the continued necessity of the restricted access to the route. 

Furthermore,  an  urgency  procedure  has  been  introduced  to  cope  with  sudden 
interruptions of service on routes with a PSO. 

If  the  proposed  regulation,  once  adopted,  retains  guarantees  of  transparency,  non-
discrimination and proportionality equivalent to those proposed by the Commission in 
its proposal concerning the determination and award of public service compensations, 
and  in  order  to  give  operators  legal  certainty  regarding  compensation  paid  for  the 
execution of PSOs awarded in accordance with this regulation, the Commission intends 
to adopt, at the latest at the time of the entry into force of the regulation, a binding act 
based on art.  86(3) declaring  compatible and  exempting  of  notification compensation 
granted in conformity with the regulation insofar as this may constitute State aid. This 
act  could  take  the  form  of  an  update  of  Commission  decision  of  28  November  2005 
(OJ L312 of 29.11.2005) inserting a reference to this new regulation and extending its 
scope to any PSO compensation granted to airlines in conformity with this regulation. 

4.  The  proposal  removes  inconsistencies  between  the  internal  aviation  market  and 
services to third countries (articles 15 and 22) 

Taking account of the opinions expressed during the consultation process, the proposal 
addresses  relations  with  third  countries  only  insofar  as  there  is  a  direct  link  with 
provisions contained in the third package. 

To  ensure  coherence  between  the  internal  market  and  its  external  aspects,  including 
those  of  the  Single  European  Sky,  access  by  airlines  of  third  countries  to  the  intra-
Community  market  should  be  managed  in  a  coherent  manner  through  negotiations  at 
Community  level.  Therefore,  the  European  Communities  will  be  responsible  for 
negotiating intra-Community traffic rights with third countries. 

Remaining restrictions from existing bilateral agreements between Member States will 
be  lifted,  ensuring  non-discrimination  in  respect  of  code  sharing  and  pricing  by 

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Community air carriers on routes to third countries involving points in Member States 
other than their own. 

5.  The  proposal  clarifies  the  rules  applicable  to  traffic  distribution  between  airports 
(article 19) 

The  present  two-step  procedure  -  first  establishment  of  an  airport  system  and  then 
definition of the traffic distribution rules - is replaced by a one-step procedure where 
the concept of an "airport system" is abandoned: Member States may introduce traffic 
distribution  rules  on  airports  serving  the  same  city  or  conurbation,  but  the  prior 
approval  of  the  Commission  is  required  (after  consultation  of  the  appropriate 
committee).  It  adds  that  the  airports  in  question  should  be  served  by  an  adequate 
transport  infrastructure  and  the  airports  and  the  city  or  conurbation  they  shall  serve 
should be linked by frequent, reliable and efficient public transport services.  

The  proposal  states  that  the  traffic  distribution  rules  shall  respect  the  principles  of 
proportionality  and  transparency,  and  shall  be  based  on  objective  criteria.  This  rule 
confirms  that  traffic  distribution  rules  may  not  be  abused  in  order  to  discriminate 
between air carriers. 

6. The proposal promotes price transparency for passengers and fair price behaviour 

The  publication  of  fares  that  exclude  taxes,  charges  and  even  fuel  surcharges  has 
become  a  widespread  practice  that  hampers  price  transparency.  Insufficient  price 
transparency  leads  to  distortions  of  competition  and  therefore  consumers  face  on 
average higher fares. The Commission also still observes cases of discrimination on the 
basis of the place of residence of the passenger. 

In the proposal, air fares have to include all applicable taxes, charges and fees and air 
carriers  shall  provide  the  general  public  with  comprehensive  information  on  their  air 
fares and rates and the conditions attached (articles 2(18) and 24(1).  

Air fares shall be set without discrimination on the basis of place of residence or the 
nationality of the passenger within the Community (article 24(2). Furthermore, for the 
access to a carrier’s air fares, they may be no discrimination on the basis of the place of 
establishment of the travel agent. 

The experience with the application of the third package on air transport liberalisation 
has shown that there has not been any market failure that would justify maintaining in 
force specific provisions regulating air fares such as the safeguard measures provided 
in  article  6  of  regulation  (EEC)  No  2409/92.  In  this  context,  and  in  the  light  of  the 
general  competition  rules,  these  sector-specific  measures  are  removed  from  the 
regulation.  

E-14676 

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(cid:208) 2407/92  -  2408/92  -  2409/92 
(adapted) 

2006/0130 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on common rules for the operation of air transport services in the Community 

(Text with EEA relevance) 

⌦ THE  EUROPEAN  PARLIAMENT  AND ⌫  THE  COUNCIL  OF  THE  EUROPEAN 
UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
84(2) ⌦ 80(2) ⌫ thereof, 

Having regard to the proposal from the Commission1, 

Having regard the opinion of the European Parliament, 

Having regard to the opinion of the European Economic and Social Committee2, 

Having regard to the opinion of the Committee of the Regions3, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty4, 

(cid:216) new 

Whereas: 

(1) 

A  number  of  substantial  changes  are  to  be  made  to  Council  Regulations  (EEC)  No 
2407/92  of  23  July  1992  on  licensing  of  air  carriers5,  (EEC)  No  2408/92  of  23  July 
1992 on access of Community air carriers to intra-Community air routes6 and (EEC) 
No  2409/92  of  23  July  1992  on  fares  and  rates  for  air  services7.  In  the  interests  of 

1 
2 
3 
4 
5 
6 
7 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 240, 24.8.1992, p.1 
OJ L240, 24.8.1992, p.8. Regulation as last amended by the Act of Accession  
OJ L 240, 24.8.1992, p.15 

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(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

clarity,  these  Regulations  should  be  recast  and  consolidated  into  one  single 
Regulation. 

Through the adoption of those three Regulations air transport in the Community was 
liberalised.  Despite  the  success  of  that  liberalisation  in  terms  of  growth,  competition 
and lower fares, the inconsistent application of those Regulations across the Member 
States distorts the functioning of the internal aviation market. 

In order to ensure a more efficient and consistent application of Community legislation 
for the internal aviation market a series of adjustments to the current legal framework 
are required. 

Recognizing the potential link between the financial health of an air carrier and safety, 
a  more  stringent  monitoring  of  the  financial  situation  of  the  air  carriers  should  be 
established. 

Given the growing importance of air carriers with operational bases in several Member 
States  and  the  necessity  to  ensure  the  efficient  supervision  of  these  air  carriers,  the 
same  Member  State  should  be  responsible  for  the  oversight  of  the  AOC  and  of  the 
operating licence. 

To  ensure  a  consistent  monitoring  of  the  compliance  with  the  requirements  of  the 
operating licences of all Community air carriers, licensing authorities should proceed 
to  regular  assessments  of  the  air  carriers’  financial  situation.  Therefore,  the  latter 
should provide sufficient information on their financial situation, especially in the first 
two years of their existence as these are particularly critical for the survival of an air 
carrier on the market. 

To reduce risks to passengers, Community air carriers failing to fulfil the requirements 
for maintaining a valid operating licence should not be allowed to continue operations. 
In  these  cases,  the  competent  licensing  authority  should  revoke  or  suspend  the 
operating licence. In cases where the competent licensing authority fails to do so, the 
Commission should be allowed to revoke or suspend the operating licence in order to 
ensure the homogeneous application of Community legislation.  

In  order  to  avoid  the  excessive  recourse  to  lease  agreements  of  aircraft  registered  in 
third  countries,  especially  with  crew  (wet  lease),  these  possibilities  should  only  be 
allowed  in  exceptional  circumstances,  such  as  the  lack  of  adequate  aircraft  on  the 
Community market, be strictly limited in time and fulfil safety standards equivalent to 
the safety rules of Community legislation. 

In order to ensure the safe and coherent functioning of the internal aviation market, it 
is desirable that the Community be responsible for negotiating intra-Community traffic 
rights  with  third  countries.  This  would  avoid  possible  inconsistencies  between  the 
internal market and individual negotiations by Member States. 

(10) 

In  order  to  complete  the  internal  aviation  market,  still  existing  restrictions  applied 
between  Member  States,  such  as  restrictions  on  the  code  sharing  on  routes  to  third 
countries or on the price setting on routes to third countries with intermediate stop in 
another Member State (6th freedom flights) should be lifted. 

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(11)  The  conditions  under  which  public  service  obligations  may  be  imposed  should  be 
defined  clearly  in  a  non  ambiguous  way,  while  the  associated  tender  procedures 
should  allow  a  sufficient  number  of  competitors  to  take  part  in  the  tenders.  The 
Commission should be able to obtain as much information as necessary to be able to 
assess the economic justifications for public service obligations in individual cases. 

(12)  The rules in force with regard to traffic distribution between airports serving a same 

city or conurbation should be clarified and simplified.  

(13) 

It is appropriate to ensure that Member States have the possibility to react to sudden 
problems resulting from unforeseeable and unavoidable circumstances, which make it 
technically or practically very difficult to carry out air services. 

(14)  Passengers should have access to the same tariffs for the same flights irrespective of 
their place of residence within the Community or their nationality and irrespective of 
the place of establishment of the travel agents within the Community. 

(15)  Passengers  should  be  able  to  effectively  compare  tariffs  between  airlines.  Therefore 
published tariffs should indicate the final price to be paid by the passenger, inclusive 
of all taxes, charges and fees. 

(16)  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 conferred on the Commission8. 

(17)  Since the more homogeneous application of the Community legislation with regard to 
the  internal  aviation  market  cannot  be  sufficiently  achieved  by  the  Member  States 
because  of  the  international  character  of  air  transport,  and  can  therefore  be  better 
achieved  at  Community  level,  the  Community  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. 

(18) 

It  is  therefore  necessary  to  repeal  Regulations  (EEC)  No  2407/92,  2408/92  and 
2409/92, 

HAVE ADOPTED THIS REGULATION: 

8 

OJ L 184, 17.7.1999, p. 23 

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12 

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Chapter I: General provisions 

Article 1 

Subject matter  

This Regulation concerns requirements for the granting and maintenance of operating licences 
by Member States in relation to air carriers established in the Community. 

(cid:208) 2407/92 art. 1(1) (adapted) 

This  Regulation  concerns  access  to  routes  within  the  Community  for  scheduled  and  non-
scheduled air services. 

(cid:208) 2408/92 art. 1(1) 

This  Regulation  concerns  the  criteria  and  procedures  to  be  applied  for  the  establishment  of 
fares and rates on air services for carriage wholly within the Community.  

(cid:208) 2409/92 art. 1(1) (adapted) 

1. 

2. 

This  Regulation  regulates  the  licensing  of  Community  air  carriers,  the  right  of 
Community air carriers to operate air services within the Community, and the pricing 
of air services within the Community. 

(cid:216) new 

(cid:208) 2408/92 art. 1(2) (adapted) 

The application of ⌦ Chapter III of ⌫ this Regulation to the airport of Gibraltar 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. 

3. 

Application  of  the  provisions  ⌦ of  Chapter  III ⌫  of  this  Regulation  to  Gibraltar 
airport shall be suspended until the arrangements in the joint declaration made by the 

(cid:208) 2408/92 art. 1(3) (adapted) 

EN 

13 

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Foreign ministers of the Kingdom of Spain and the United Kingdom on 2 December 
1987 have come into operation. The Governments of Spain and the United Kingdom 
will so inform the Council on that date. 

Airports in the Greek islands and in the Altantic islands comprising the autonomous region of 
the  Azores  shall  be  exempted  from  the  application  of  this  Regulation  until  30  June  1993. 
Unless otherwise decided by the Council, on a proposal from the Commission, this exemption 
shall apply for a further period of five years and may be continued for five years thereafter. 

(cid:208) 2408/92 art. 1(4) (adapted) 

(cid:208) 2407/92 art. 2 (adapted) 

Article 2  

Definitions 

For the purposes of this Regulation, ⌦ the following definitions shall apply ⌫ . 

(cid:208) 2407/92 art. 2(c) (adapted) 
(cid:214) new 

(1) 

'operating  licence'  means  an  authorization  granted  by  the  Member  State  responsible 
(cid:214) competent  licensing  authority (cid:213)  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;  

(2) 

‘competent licensing authority’ means an authority, entitled to grant, refuse, revoke or 
suspend an operating licence in accordance with Chapter II ; 

(cid:216) new 

(3) 

'undertaking' means any natural any ⌦ or ⌫ legal person, whether profit-making or 
not, or any official body whether having its own legal personality or not. 

(cid:208) 2407/92 art. 2(a) (adapted) 

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(4) 

'air service' means a flight or a series of flights carrying passengers, cargo and/or mail 
for remuneration and/or hire;  

(cid:208) 2408/92  art.2(c)  and  2409/92 
art.2(f) 

(5) 

'flight'  means  a  departure  from  a  specified  airport  towards  a  specified  destination 
airport; 

(cid:208) 2408/92 art. 2(e) 

(6) 

'airport' means any area in a Member State which is open for commercial air transport 
operations; 

(cid:208) 2408/92 art. 2(k) 

(cid:208) 2407/92 art. 2 (d) (adapted) 
(cid:214) new 

(7) 

'air  operator's  certificate  (AOC)'  means  a  document  issued  ⌦ a  certificate 
delivered ⌫  to  an  undertaking  or  a  group  of  undertakings  by  the  competent 
authorities of the  Member States which affirms ⌦ affirming ⌫ 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,  (cid:214) as  provided  in  the 
relevant provisions of Community law. (cid:213) 

(8) 

'effective  control'  means  a  relationship  constituted  by  rights,  contracts  or  any  other 
means  which,  either  separately  or  jointly  and  having  regard  to  the  considerations  of 
fact  or  law  involved,  confer  the  possibility  of  directly  or  indirectly  exercising  a 
decisive influence on an undertaking, in particular by:  

(cid:208) 2407/92 art. 2 (g) 

(a) 

the right to use all or part of the assets of an undertaking;  

(b) 

rights or contracts which confer a decisive influence on the composition, voting 
or  decisions  of  the  bodies  of  an  undertaking  or  otherwise  confer  a  decisive 
influence on the running of the business of the undertaking;  

(9) 

'air carrier' means an air transport undertaking with a valid operating licence;  

(cid:208) 2407/92 art. 2 (b) 

EN 

15 

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(cid:208) 2408/92  art.  2(b)  and  2409/92 
art. 2(h) (adapted) 
(cid:214) new 

(10) 

'Community air carrier' means an air carrier with a valid operating licence issued by a 
Member  State  (cid:214) granted  by  a  competent  licensing  authority (cid:213)  in  accordance  with 
Council  Regulation  5EEC)  No  2407/92  of  23  July  1992  on  licensing  of  air  carriers 
⌦ Chapter II ⌫ ;  

(cid:208) 2407/92 art. 2 (e) 
(cid:214) new 

(11) 

'business  plan'  means  a  detailed  description  of  the  air  carrier's  intended  commercial 
activities  for  the  period  in  question,  in  particular  in  relation  to  the  (cid:214) expected (cid:213) 
market development and the investments to be carried out, including the financial and 
economic implications of these activities;  

(12) 

‘Intra-Community air service’ means an air service operated within the Community; 

(cid:216) new 

(13) 

‘Transit’  means  the  right  to  fly  across  the  territory  of  the  Community  or  of  a  third 
country without landing and to land for non-traffic purposes; 

(cid:216) new 

(14) 

'traffic right' means the right of an air carrier to carry passengers, cargo and/or mail on 
an air service ⌦ operate an air service ⌫ between two Community airports;  

(cid:208) 2408/92 art. 2(f) (adapted) 

(15) 

'regional  airport'  means  an  airport  other  than  one  listed  in  Annex  I  as  category  I 
airport (cid:214) fulfilling at least one of the criteria set out in Annex II (cid:213) ; 

(cid:208) 2408/92 art. 2(l) (adapted) 
(cid:214) new 

EN 

16 

   EN 

 
 
 
 
 
 
 
(16) 

‘seat-only  sales’  means  the  sale  of  seats,  without  any  other  service  bundled,  such  as 
accommodation,  directly  to  the  public  by  the  air  carrier  or  its  authorised  agent  or  a 
charterer; 

(cid:208) 2408/92 art. 2(g) 

(17) 

'scheduled  air  service'  means  a  series  of  flights  possessing  all  the  following 
characteristics:  

(cid:208) 2408/92 art. 2(d) 

(a) 

it is performed by aircraft for the transport of passengers, cargo and/or mail for 
remuneration,  in  such  a  manner  that  on  each  flight  seats  are  available  for 
individual purchase by the public (either directly from the air carrier or from its 
authorized agents);  

(b) 

it  is  operated  so  as  to  serve  traffic  between  the  same  two  or  more  airports, 
either:  

– 

– 

according to a published timetable; or 

with  flights  so  regular  or  frequent  that  they  constitute  a  recognizably 
systematic series. 

(18) 

‘capacity’ means the number of seats offered to the general public on a scheduled air 
service over a given period; 

(cid:208) 2408/92 art. 2(n) 

(cid:208) 2409/92 art. 2(a) (adapted) 
(cid:214) new 

(19) 

'air fares' means the prices expressed in ecus ⌦ euros ⌫ or in local currency to be 
paid  by  passengers  to  air  carriers  or  their  agents  for  the  carriage  of  them  ⌦ those 
passengers ⌫ and for the carriage of their baggage on air services and any conditions 
under  which  those  prices  apply,  including  remuneration  and  conditions  offered  to 
agency and other auxiliary services (cid:214) and including all applicable taxes, charges and 
fees; (cid:213) 

(20) 

‘cargo  ⌦ air ⌫  rates’  means  the  prices  expressed  in  ecus  (cid:214) euros (cid:213)  or  in  local 
currency  to  be  paid  for  the  carriage  of  cargo  and  the  conditions  under  which  those 

(cid:208) 2409/92 art. 2(d) (adapted) 
(cid:214) new 

EN 

17 

   EN 

 
 
 
 
 
 
prices  apply,  including  remuneration  and  conditions  offered  to  agency  and  other 
auxiliary services (cid:214) and including all applicable taxes, charges and fees (cid:213) ;  

(21) 

'Member State(s) concerned' means the Member State(s) between or within which an 
air service is operated;  

(cid:208) 2408/92  art.  2(h)  and  2409/92 
art. 2(i) 

(22) 

'Member  State(s)  involved'  means  the  Member  State(s)  concerned  and  the  Member 
State(s) where the air carrier(s) operating the air service is (are) licensed;  

(cid:208) 2408/92  art.  2(i)  and  2409/92 
art. 2(j) 

(23) 

‘Conurbation’  means  an  urban  area  comprising  a  number  of  cities  or  towns  which, 
through  population  growth  and  expansion,  have  physically  merged  to  form  one 
continuous built up area; 

(cid:216) new 

(24) 

'management  account'  means  a  detailed  statement  of  income  and  costs  (cid:214) of  an  air 
carrier (cid:213)  for  the  period  in  question  including  a  breakdown  between  air-transport-
related and other activities as well as between pecuniary and non-pecuniary elements;  

(cid:208) 2407/92 art. 2 (f) 
(cid:214) new 

‘airport  system’  means  two  or  more  airports  grouped  together  as  serving  the  same  city  or 
conurbation, as indicated in Annex II; 

(cid:208) 2408/92 art. 2(m) (adapted) 

‘standard cargo  rates’ means the  rates which the  air carrier  would normally quote  including 
the availability of normal discounts; 

(cid:208) 2409/92 art. 2(e) (adapted) 

EN 

18 

   EN 

 
 
 
 
 
 
 
‘charter  fares’  means  the  prices  expressed  in  ecus  or  in  local  currency  to  be  paid  by 
passengers to charterers for services which constitute or include their carriage and the carriage 
of their baggage on air services and any conditions under which those prices apply, including 
remuneration and conditions offered to agency or other auxiliary services; 

(cid:208) 2409/92 art. 2(c) (adapted) 

‘basic  fare’  means  the  lowest  fully  flexible  fare,  available  on  a  one  way  and  return  basis, 
which  is  offered  for  sale  at  least  to  the  same  extent  as  that  of  any  other  fully  flexible  fare 
offered on the same air service; 

(cid:208) 2409/92 art. 2(k) (adapted) 

(cid:208) 2408/92 art. 2(o) (adapted) 

‘public  service  obligation’  means  any  obligation  imposed  upon  an  air  carrier  to  take,  in 
respect of any route which it is licensed to operate by a Member State, all necessary measures 
to  ensure  the  provision  of  a  service  satisfying  fixed  standards  of  continuity,  regularity, 
capacity  and  pricing,  which  standards  the  air  carrier  would  not  assume  if  it  were  solely 
considering its commercial interest; 

‘seat rates’ means the prices expressed in ecus or in local currency to be paid by charterers to 
air carriers for the carriage on air services of the charterer or its customers and their baggage 
and  any  conditions  under  which  those  prices  apply,  including  remuneration  and  conditions 
offered to agency and other auxiliary services; 

(cid:208) 2409/92 art. 2(b) (adapted) 

'State of registration' means the Member State in which the licence referred to in(b) is granted 

(cid:208) 2408/92 art. 2(j) (adapted) 

EN 

19 

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(cid:208) 2407/92 art.3(3) (adapted) 
(cid:214) new 

Chapter II: Operating licence 

Article 3 

(cid:214) Operating licence(cid:213) 

1. 

2. 

3. 

Without  prejudice  to  Article  1(2),  no⌦ No ⌫  undertaking  established  in  the 
Community shall be permitted within the territory of the Community to carry by air 
passengers,  mail  and/or  cargo  for  remuneration  and/or  hire  ⌦ within  the 
Community ⌫  unless  ⌦ it ⌫  the  undertaking  has  been  granted  the  appropriate 
operating licence. 

An undertaking meeting the requirements of this Regulation ⌦ Chapter ⌫ shall be 
entitled  to  receive  an  operating  licence.  Such  licence  does  not  confer  in  itself  any 
rights of access to specific routes or markets. 

(cid:208) 2407/92 art. 3(2) (adapted) 

Without  prejudice  to  Article  5(5),  Member  States  ⌦ The  competent  licensing 
authority ⌫ shall not grant operating licences or maintain them in force where any 
of the requirements of this Regulation ⌦ Chapter ⌫ are not complied with. 

(cid:208) 2407/92 art. 3(1) (adapted) 

(cid:208) 2407/92 art. 1(2) (adapted) 

The carriage by air of passengers, mail and/or cargo, performed by non-power driven 
aircraft and /or ultralight power driven aircraft, as well as local flights not involving 
carriage  between  different  airports,  are  not  subject  to  this  Regulation.  In  respect  of 
these operations, national law concerning operating licences, if any, and Community 
and  national  law  concerning  the  air  operator’s  certificate  (AOC)  shall  apply. 
⌦ Without prejudice to any other applicable provisions of Community, national, or 
international  law  the  following  categories  of  air  services  are  not  subject  to  the 
requirement to hold a valid operating licence: ⌫ 

(a) 

 ⌦ air services performed by non-power driven aircraft and/or ultralight power 
driven aircraft, and ⌫ 

(b) 

 ⌦ local flights not involving carriage between different airports. ⌫ 

EN 

20 

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(cid:208) 2407/92 art. 4(1) (adapted) 
(cid:214) new 

Article 4 

(cid:214) Conditions for granting an operating licence(cid:213) 

No ⌦ An ⌫ undertaking shall be granted an operating licence by a Member State 
⌦ the competent licensing authority ⌫ unless ⌦ provided that ⌫ :  

(a) 

its principal place of business (cid:214) head office (cid:213) and, if any, registered office are 
located  in  that  Member  State  (cid:214) the  Community and  it  carries  out  the  largest 
part of its operational activities in the Community (cid:213) ; 

(b)  (cid:214) it holds a valid AOC; (cid:213) 

(c)  (cid:214) where the licence is applied for to the authority of a Member State, its head 
office and, if any, registered office are located in that Member State, it carries 
out  a  substantial  part  of  its  operational  activities  in  that  Member  State  and, 
where  the  AOC  is  issued  by  a  national  authority,  the  same  Member  State  is 
responsible for the oversight of the AOC;(cid:213) 

(d) 

its  main  occupation  is  air  transport  in  isolation  or  combined  with  any  other 
commercial  operation  of  aircraft  or  ⌦ the ⌫  repair  and  maintenance  of 
aircraft;  

(e)  (cid:214) its company structure allows the competent licensing authority to implement 

the provisions of this Chapter; 

(f)  Member States and/or nationals of Member States own more than 50 per cent 
of  the  undertaking  and  effectively  control  it,  whether  directly  or  indirectly 
through  one  or  more  intermediate  undertakings,  except  as  provided  in  an 
agreement with a third country to which the Community is a party; 

(g) 

it meets the financial conditions specified in Article 5. 

(h) 

it complies with the insurance requirements specified in Article 11. (cid:213) 

Without  prejudice  to  agreements  and  conventions  to  which  the  Community  is  a  contracting 
party, the undertaking shall be owned and continue to be owned directly or through majority 
ownership  by  Member  States  and/or  nationals  of  Member  States.  It  shall  at  all  times  be 
effectively controlled by such States or such nationals. 

(cid:208) 2407/92 art. 4(2) (adapted) 

EN 

21 

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Any undertaking which directly or indirectly participates in a controlling shareholding in an 
air carrier shall meet the requirements of paragraph 2. 

(cid:208) 2407/92 art. 4(4) (adapted) 

(cid:208) 2407/92 art. 4(3) (adapted) 

3. (a) Notwithstanding paragraphs 2 and 4, air carriers which have already been recognized in 
Annex I to Council Regulation (EEC) No 2343/90 and Council Regulation (EEC) No 294/91 
of 4 February 1991 on the operation of air cargo services between Member States shall retain 
their rights under this and associated Regulations as long as they meet the other obligations in 
this  Regulation  and  they  continue  to  be  controlled  directly  or  indirectly  by  the  same  third 
countries and /or by nationals of the same third country as those exercising such control at the 
time  of  adoption  of  this  Regulation.  Such  control  may,  however,  be  transferred  to  Member 
States and/or to Member State nationals at any time. 

(b)  The  possibility  of  buying  and  selling  shares  under  subparagraph  (a)  does  not  cover 
nationals who have a significant interest in an air carrier of a third country. 

(cid:208) 2407/92 art. 5(1) (adapted) 
(cid:214) new 

Article 5 

(cid:214) Financial conditions for granting an operating licence (cid:213) 

1. 

An  applicant  air  transport  undertaking  to  which  an  operating  licence  is  granted  for 
the  first  time  must  be  able  to  demonstrate  to  the  reasonable  satisfaction  of  the 
competent  authorities  of  the  licensing  Member  State  (cid:214) The  competent  licensing 
authority (cid:213)  ⌦ shall  closely  assess  whether  an  undertaking  applying  for  the  first 
time for an operating licence can demonstrate that ⌫: 

it  can  meet  at  any  time  its  actual  and  potential  obligations  established  under 
realistic  assumptions,  for  a  period  of  24  (cid:214) 36 (cid:213)  months  from  the  start  of 
operations;  

it can meet its fixed and operational costs incurred from operations according 
to its business plan and established under realistic assumptions, for a period of 
three  months  from  the  start  of  operations,  without  taking  into  account  any 
income from its operations.  

(a) 

(b) 

. 

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22 

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2. 

3. 

(cid:208) 2407/92 art. 5(2) (adapted) 
(cid:214) new 

For  the  purpose  of  paragraph  1,  each  applicant  shall  submit  a  business  plan  for,  at 
least, the first two (cid:214) three (cid:213) years of operation. The business plan shall also detail 
the  applicant’s  financial  links  with  any  other  commercial  activities  in  which  the 
applicant  is  engaged  either  directly  or  through  related  undertakings.  The  applicant 
shall also provide all relevant information; in particular the data referred to in point 
A ⌦ 1 ⌫ of the Annex ⌦ I ⌫ . 

(cid:208) 2407/92 art. 5(7) (adapted) 
(cid:214) new 

Paragraphs  1  ⌦ and ⌫  2,  3,  4  and  6  shall  not  apply  to  air  carriers  exclusively 
engaged in operations with aircraft of less than 10 tonnes MTOW (Maximum Take 
Off Weight) and/or less than 20 seats. Such air carriers shall at all times be able to 
demonstrate  that  their  net  capital  is  at  least  ECU  80000  (cid:214) EUR  100,000 (cid:213)  or  to 
provide  when  required  by  the  licensing  authority  the  information  relevant  for  the 
purposes of paragraph 5 ⌦ article 9(2). ⌫ 

A Member State may nevertheless apply paragraphs 1 ⌦ and ⌫ 2, 3, 4 and 6 to air 
carriers  licensed  by  it  that  operate  scheduled  services  or  whose  turnover  exceeds 
ECU ⌦ EUR ⌫ 3 million per year. 

The Commission may, after consulting the Member States, increase as apporpiate the 
values  referred  to  in  subparagraph  (a)  if  economic  developments  indicate  the 
necessity of such a decision. Such change shall be published in the Offical Journal of 
the European Communities. 

Any Member State may refer the Commission’s decision to the Council within a time 
limit  of  one  month.  The  Council,  acting  by  qualified  majority,  may  in  exceptional 
circumstances take a different decision within a period of one month. 

(cid:208) 2407/92 art. 9 (adapted) 
(cid:214) new 

Article 6 

(cid:214) Air operator’s certificate (cid:213) 

1. 

The granting and validity at any time of an operating licence shall be dependent upon 
the  possession  of  a  valid  AOC  specifying  the  activities  covered  by  the  operating 
licence  and  complying  with  the  criteria  established  in  the  relevant  Council 
Regulation ⌦ under  relevant  Community  law ⌫  .  Until  such  time  as  the  Council 
regulation  referred  to  in  paragraph  1  is  applicable,  national  regulations  concerning 

EN 

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the  AOC,  or  equivalent  title  concerning  the  certification  of  air  transport  operators, 
shall apply. 

2. 

(cid:214) Any modification in the AOC of a Community air carrier shall be reflected in its 
operating licence.(cid:213) 

(cid:208) 2407/92 art. 6 (adapted) 
(cid:214) new 

Article 7 

(cid:214)Proof of good repute (cid:213) 

1. 

2. 

Where  the  competent  authorities  of  a  Member  State  require,  for  the  purpose  of 
issuing  an  operating  licence,  proof  ⌦ is  required ⌫  that  the  persons  who  will 
continuously  and  effectively  manage  the  operations  of  the  undertaking  are  of  good 
repute or that they have not been declared bankrupt, or suspend or revoke ⌦ or for 
the  purpose  of  suspending  or  revoking ⌫  the  operating  licence  in  the  event  of 
serious  professional  misconduct  or  a  criminal  offence,  that  Member  State the 
(cid:214) competent  licensing  authority (cid:213) shall  accept  as  sufficient  evidence  in  respect  of 
nationals  of  other  Member  States  the  production  of  documents  issued  by  the 
competent authorities in the Member State of origin or the Member State from which 
the 
the  person  has  his/her  permanent 
residence (cid:213)showing that those requirements are met. 

foreign  national  comes  (cid:214) where 

Where the competent authorities of the Member State of origin or the Member State 
from  which  the  foreign  national  comes  (cid:214) where  the  person  has  his/her  permanent 
residence (cid:213) does  not  issue  the  documents  referred  to  in  the  first  subparagraph 
⌦ paragraph 1 ⌫ , such documents shall be replaced by a declaration on oath - or, 
in Member States where there is no provision for declaration on oath - by a solemn 
declaration  made  by  the  person  concerned  before  a  competent  judicial  or 
administrative  authority  or,  where  appropriate,  a  notary  or  qualified  professional 
body  of  the  Member  State  of  origin  or  the  Member  State  from  which  the  person 
comes  (cid:214) where  the  person  has  his/her  permanent  residence (cid:213)  ;  such  authority,  or 
notary  (cid:214) or  qualified  professional body (cid:213)  shall  issue  a  certificate  attesting  the 
authenticity of the declaration on oath or solemn declaration.  

3. 

The competent authorities of Member States (cid:214) competent licensing authority (cid:213) may 
require that the documents and certificates referred to in paragraphs 1 ⌦ and 2 ⌫ 
be presented no more than three months after their date of issue.  

EN 

24 

   EN 

 
 
(cid:208) 2407/92 art. 11(1) (adapted) 
(cid:214) new 

Article 8 

(cid:214) Validity of an operating licence(cid:213) 

1. 

An  operating  licence  shall  be  valid  as  long  as  the  ⌦ Community ⌫  air  carrier 
meets  the  obligations  of  this  Regulation ⌦ complies  with  the  requirements  of  this 
Chapter. ⌫  However,  a  Member  State  may  make  provision  for  a  review  one  year 
after a new operating licence has been granted and every five years thereafter. 

(cid:208) 2407/92 art. 4(5) (adapted) 
(cid:214) new 

A ⌦ Community ⌫ air carrier shall at all times be able on request to demonstrate 
to the Member State responsible for the operating licence (cid:214) the competent licensing 
authority (cid:213) that it meets ⌦ all ⌫ the requirements of this Article ⌦ Chapter ⌫ . 
The Commission acting at the request of a Member State shall examine compliance 
with the requirements of this Article and take a decision if necessary. 

(cid:216) new 

2. 

The  competent  licensing  authority  shall  closely  monitor  the  compliance  with  the 
requirements  of  this  chapter.  It  shall  in  any  case  review  the  compliance  with  these 
requirements  two  years  after  a  new  operating  licence  has  been  granted,  when  a 
potential problem has been suspected, or at the request of the Commission.  

In  case  the  competent  licensing  authority  suspects  that  financial  problems  at  a 
Community  air  carrier  might  affect  the  safety  of  its  operations,  it  will  immediately 
inform the authority competent for the AOC. 

(cid:208) 2407/92 art. 11(2) (adapted) 
(cid:214) new 

3. 

(cid:214) The  operating 
⌦ Community ⌫ air carrier 

licence  shall  be 

resubmitted 

for  approval (cid:213)  when  a 

(a)  ⌦ has not started operations for six months after the granting of an operating 

licence ⌫ 

(b) 

has ceased its operation for six (cid:214) more than three (cid:213) months or has not started 
operations for six months after the granting of an operating licence the Member 

EN 

25 

   EN 

 
 
 
 
 
State  responsible  shall  decide  whether  the  operating  licence  shall  be 
resubmitted for approval. 

(cid:208) 2407/92 art. 5(6) (adapted) 
(cid:214) new 

4. 

A ⌦ Community ⌫ air carrier shall provide to its ⌦ the competent ⌫ licensing 
authority  every  financial  year  without  undue  delay  the  audited  accounts  relating  to 
the  previous  financial  year  (cid:214) within  six  months  following  the  accounts  closing 
date (cid:213).  (cid:214) During  the  first  two  years  of  operation  of  a  Community  air  carrier,  the 
data as referred to in point 3 of Annex I shall be updated and made available to the 
competent licensing authority on a six monthly basis (cid:213). At any time upon request of 
the  licensing  authority  a  air  carrier  shall  provide  the  information  relevant  for  the 
purposes of paragraph 5 and, in particular, the data referred to in part C of the Annex. 

(cid:214) The  competent  licensing  authority  may  at  any  time  assess  the  financial 
performance of a Community air carrier to which it has granted an operating licence 
by requesting the relevant information and, in particular, the data referred to in point 
3 of Annex I. (cid:213) 

(cid:208) 2407/92 art. 5(3) (adapted) 
(cid:214) new 

5. 

A ⌦ Community ⌫ air carrier shall notify (cid:214) the competent licensing authority: (cid:213)  

(a) 

in  advance  to  its  licensing  authority  of  any  plans  for  operation  of  new 
sxcheduled  service  or  non-scheduled  service  to  a  continent  or  a  world  region 
not  previously  served,  changes  in  the  type  or  number  of  aircraft  used  or  a 
substantial change in the scale of its activities; 

(b) 

in advance of any intended mergers or acquisitions, and 

(c) 

represents  10%  or  more  of 

within fourteen days of any change in the ownership of any single shareholding 
which 
the 
⌦ Community ⌫  air  carrier  or  of  its  parent  or  ultimate  holding  company. 
The  submission  of  a  12-month  business  plan  two  months  in  advance  of  the 
period to which it refers shall constitute sufficient notice under this paragraph 
for  the  purpose  of  changes  to  current  operations  and/or  circumstances  which 
are included in that business plan. 

total  shareholding  of 

the 

6. 

If  the  ⌦ competent ⌫  licensing  authority  deems  the  changes  notified  under 
paragraph  3  ⌦ 5 ⌫  to  have  a  significant  bearing  on  the  finances  of  the 
⌦ Community ⌫  air  carrier,  it  shall  require  the  submission  of  a  revised  business 

(cid:208) 2407/92 art. 5(4) (adapted) 
(cid:214) new 

EN 

26 

   EN 

 
 
 
 
plan  incorporating  the  changes  in  question  and  covering,  at  least,  a  period  of  12 
months  from  its  date  of  implementation  as  well  as  the  relevant  information, 
including as well as the data referred to in point B ⌦ 2 ⌫ of the Annex ⌦I ⌫ , 
(cid:214) in  addition  to  the  information  to  be  provided  under  paragraph  4 (cid:213)  to  assess 
whether  the  air  carrier  can  meet  its  existing  and  potential  obligations  during  that 
period of 12 months.  

The  ⌦ competent ⌫  licensing  authority  shall  take  a  decision  on  the  revised 
business plan not later than three months after all the necessary information has been 
submitted to it.  

7. 

8. 

(cid:208) 2407/92 art. 11(3) (adapted) 
(cid:214) new 

In  relation  to  ⌦ Community ⌫  air  carriers  licensed  by  them  ⌦ it ⌫  ,  Member 
States  shall  (cid:214) the  competent  licensing  authority  shall  decide (cid:213)  whether  the 
operating licence shall be resubmitted for approval in case of change in one or more 
elements  affecting  the  legal  situation  of  the  undertaking  ⌦ Community  air 
carriers ⌫ and, in particular, in the case of mergers or takeovers. The air carrier(s) 
in question may continue its (their) operations unless the licensing authority decides 
that safety is at risk, stating the reasons. 

(cid:208) 2407/92 art. 5(7) (adapted) 
(cid:214) new 

Paragraphs  1,  2,  3,  4,  ⌦ 5 ⌫  and  6  shall  not  apply  to  air  carriers  exclusively 
engaged in operations with aircraft of less than 10 tonnes MTOW (Maximum Take 
Off Weight) and/or less than 20 seats. Such air carriers shall at all times be able to 
demonstrate  that  their  net  capital  is  at  least  ECU  80000  (cid:214) EUR  100,000 (cid:213)  or  to 
provide  when  required  by  the  licensing  authority  the  information  relevant  for  the 
purposes of paragraph 5 ⌦ article 9(2). ⌫ 

A Member State may nevertheless apply paragraphs 1, 2, 3, 4, ⌦ 5 and 6 ⌫ to air 
carriers  licensed  by  it  that  operate  scheduled  services  or  whose  turnover  exceeds 
ECU ⌦ EUR ⌫ 3 million per year. 

The Commission may, after consulting the Member States, increase as apporpiate the 
values  referred  to  in  subparagraph  (a)  if  economic  developments  indicate  the 
necessity of such a decision. Such change shall be published in the Offical Journal of 
the European Communities. 

Any Member State may refer the Commission’s decision to the Council within a time 
limit  of  one  month.  The  Council,  acting  by  qualified  majority,  may  in  exceptional 
circumstances take a different decision within a period of one month. 

EN 

27 

   EN 

 
 
 
(cid:208) 2407/92 art. 5(5) (adapted) 
(cid:214) new 

Article 9 

1. 

2. 

(cid:214) Suspension and revocation of an operating licence(cid:213) 

Licensing  authorities  may,  at  any  time  and  in  any  event  whenever  there  are  clear 
indications that financial problems exist with an air carriers licensed by them, assess 
its  financial  performance  and  may  (cid:214) The  competent  licensing  authority  shall (cid:213) 
suspend  or  revoke  the  ⌦ operating ⌫  licence  if  it  is  no  longer  satisfied  that  the 
⌦ Community ⌫ air carrier can meet its actual and potential obligations for a 12-
month period. Licensing authorities may also 

(cid:214) The  competent  licensing  authority  may (cid:213)  grant  a  temporary  licence,  (cid:214) not 
exceeding 12 months (cid:213) , pending financial reorganisation of the ⌦ Community ⌫ 
air  carrier  provided  safety  is  not  at  risk  (cid:214)that  this  temporary  licence  reflects  any 
changes to the AOC and that there is a realistic prospect  of a satisfactory financial 
reconstruction within that time period. (cid:213) 

(cid:208) 2407/92 art. 12 (adapted) 
(cid:214) new 

An  air  carrier  against  which  (cid:214) Whenever  there  are  clear  indications  that  financial 
problems exist or when (cid:213) insolvency or similar proceedings are opened shall not be 
permitted by a Member State to retain its operating licence if the competent body in 
that  Member  State  is  convinced  that  there  is  no  realistic  prospect  of  a  satisfactory 
financial reconstruction within a reasonable time (cid:214) against an air carrier licensed by 
it the competent licensing authority shall without delay make an in depth assessment 
of  the  financial  situation  and  on  the  basis  of  its  findings  review  the  status  of  the 
operating  licence  in  compliance  with  this  article  within  a  time  period  of  three 
months. 

The  competent  licensing  authority  shall  inform  the  Commission  of  the  assessment 
procedure and of its findings, as well as of the decision it takes relating to the status 
of the operating licence. (cid:213) 

3. 

(cid:214) When  the  audited  accounts  referred  to  in  Article  8(4)  have  not  been 
communicated within six months following the account closing date of the previous 
financial  year,  the  competent  licensing  authority  shall  request  the  Community  air 
carrier to communicate these audited accounts without delay. 

If  the  audited  accounts  are  not  communicated  within  one  month,  the  operating 
licence shall be revoked or suspended.  

EN 

28 

   EN 

 
 
 
The competent licensing authority shall inform the Commission of the default of the 
air carrier to communicate its audited accounts within the six months time limit and 
of the subsequent actions it takes. (cid:213) 

4. 

(cid:214) In case a Community air carrier’s AOC is suspended or withdrawn , the competent 
licensing  authority  shall  immediately  suspend  or  revoke  that  air  carrier’s  operating 
licence. (cid:213) 

(cid:208) 2407/92 art. 13(2) (adapted) 
(cid:214) new 

Article 10 

(cid:214) Decisions on operating licences(cid:213) 

The  Member  State  concerned  (cid:214) competent  licensing  authority (cid:213)  shall  take  a 
decision on an application as soon as possible, and not later than three months after 
all  the  necessary  information  has  been  submitted,  taking  into  account  all  available 
evidence.  The  decision  shall  be  communicated  to  the  applicant  air  transport 
undertaking. A refusal shall indicate the reasons therefore. 

(cid:208) 2407/92 art. 13(1) (adapted) 
(cid:214) new 

Procedures for granting, (cid:214)suspending and revoking (cid:213) of operating licences shall be 
made  public  by  the  Member  State  concerned  (cid:214) competent  licensing  authorities (cid:213) 
⌦ which shall inform ⌫ the Commission shall be informed.  

(cid:208) 2407/92 art. 13(4) (adapted) 
(cid:214) new 

list  of (cid:213)  decisions  by  Member  States  (cid:214)of the  competent 

(cid:214) A 
licensing 
authorities (cid:213) to grant, (cid:214) suspend (cid:213) or revoke operating licences shall be published 
(cid:214) annually (cid:213) in the Official Journal of the European Union. 

1. 

2. 

3. 

(cid:208) 2407/92 art. 13(3) (adapted) 

An  undertaking  whose  application  for  an  operating  licence  has  been  refused  may 
refer the question to the Commission. If the Commission finds that the requirements 
of  this  Regulation  have  not  been  fulfilled  it  shall  state  its  views  on  the  correct 
interpretation of the Regulation without prejudice to Article 169 of the Treaty. 

EN 

29 

   EN 

 
 
 
 
 
(cid:208) 2407/92 art. 7  
(cid:214) new 

Article 11 

(cid:214) Insurance requirements (cid:213) 

An air carrier shall be insured to cover liability in case of accidents, in particular with 
respect  of  passengers,  luggage,  cargo,  mail  and  third  parties.  (cid:214) Where  applicable, 
the  insurance  coverage  shall  comply  with  the  minimum  requirements  provided  in 
Regulation (EC) No 785/20049. (cid:213) 

(cid:208) 2407/92 art. 8(2) (adapted) 
(cid:214) new 

Article 12 

(cid:214) Registration(cid:213) 

1. 

2. 

Without  prejudice  to  paragraph  3  ⌦ Article  13(2) ⌫,  aircraft  used  by  a 
⌦ Community ⌫ air carrier shall be registered, at the option of the Member State 
issuing  the  operating  licence,  in  its  ⌦ the ⌫  national  register  ⌦ of  the  Member 
State issuing the operating licence ⌫ , or within the Community. 

If  a  lease  agreement  for  an  aircraft  registered  within  the  Community  has  been 
deemed acceptable under Article 10, a Member state shall not require the registration 
of  that  aircraft  on  its  own  register  if  this  would  require  structural  changes  to  the 
aircraft. 

(cid:208) 2407/92 art. 8(4) (adapted) 

When applying paragraph 2(a) a Member State ⌦ In accordance with paragraph 1, a 
competent  licensing  authority ⌫  shall,  subject  to  applicable  laws  and  regulations, 
including those relating to airworthiness certification, accept on its national register, 
without  any  discriminatory  fee  and  without  delay,  aircraft  owned  by  nationals  of 
other Member States and transfers from aircraft registers of other Member States. No 
fee shall be applied to transfers of aircraft in addition to the normal registration fee. 

9 

OJ L 138, 30.4.2004, p.1 

EN 

30 

   EN 

 
 
 
 
                                                 
(cid:208) 2407/92 art. 8(1) (adapted) 
(cid:214) new 

Article 13 

(cid:214) Leasing (cid:213) 

1. 

Ownership  of  aircraft  shall  not  be  a  condition  for  granting  or  maintaining  an 
operating licence but a Member State shall require, in relation to air carriers licensed 
by it that they have one or more air craft at their disposal, through ownership or any 
form of lease agreement. 

(cid:214) An undertaking requesting the granting of an operating licence shall have one or 
more  aircraft  at  its  disposal  through  ownership  or  lease  without  crew  (dry  lease) 
agreement. (cid:213) 

(cid:214) A  Community  air  carrier  shall  have  one  or  more  aircraft  at  its  disposal  through 
ownership or lease without crew (dry lease) agreement. (cid:213) 

(cid:214) A  Community  air  carrier  may  have  one  or  more  aircraft  at  its  disposal  through 
lease with crew (wet leasing) agreement.(cid:213) 

(cid:208) 2407/92 art. 8(3) (adapted) 
(cid:214) new 

2. 

In  the  case  of  short-term  lease  agreements  to  meet  temporary  needs  of  the  ⌦ a 
Community ⌫  air  carrier,  or  otherwise  in  exceptional  circumstances,  a  Member 
State (cid:214) the competent licensing authority (cid:213) may grant waivers to the requirement of 
paragraph  2(a)  (cid:214) registration  provided  for  in  Article  12(1).  In  any  case  no 
Community air carrier shall be granted a waiver in order to meet a temporary need or 
exceptional  circumstance  of  more  than  six  months  in  duration,  although  a  waiver 
may  be  renewed  once  only  for  a  second  non-consecutive  period  of  up  to  six 
months. (cid:213) 

(cid:214) In case of leasing of aircraft with crew (wet-leasing), such waivers shall be subject 
to the existence of a valid agreement providing for reciprocity as regards wet-leasing 
between  the  Member  State  concerned  or  the  Community  and  the  third  country  of 
registration of the leased aircraft. (cid:213) 

3. 

For the purposes of ensuring safety and liability standards, a ⌦ Community ⌫ air 
carrier  using  an  aircraft  from  another  undertaking  or  providing  it  to  another 
undertaking, (cid:214) with or without crew (cid:213) , shall obtain prior approval for the operation 

(cid:208) 2407/92 art. 10(1) (adapted) 
(cid:214) new 

EN 

31 

   EN 

 
 
 
 
from  the  appropriate  (cid:214) competent (cid:213)  licensing  authority.  The  conditions  of  the 
approval shall be part of the lease agreement between the parties. 

(cid:208) 2407/92 art. 10(2) (adapted) 
(cid:214) new 

A  Member  State  (cid:214) The  competent  licensing  authority (cid:213)  shall  not  approve 
agreements  leasing  aircraft  with  crew  to  an  air  carrier  to  which  it  has  granted  an 
operating licence unless (cid:214) that authority has determined and declared in writing to 
the air carrier in question that (cid:213) safety standards equivalent to those imposed under 
Article 9 (cid:214) in the relevant Community (cid:213) law are met.  

(cid:208) 2407/92 art. 14 (adapted) 
(cid:214) new 

Article 14 

(cid:214) Examination by the Commission(cid:213) 

(cid:214) The  Commission  acting  in  accordance  with  the  procedure  referred  to  in  Article 
25(2)  at  the  request  of  a  Member  State,  or  on  its  own  initiative,  shall  examine 
compliance with the requirements of this Chapter and take a decision to suspend or 
revoke an operating licence if necessary. (cid:213) 

1.  In  order  to  carry  out  its  duties  under ⌦ this ⌫  Article  4  the  Commission  may 
obtain all necessary information from the Member States concerned, which shall also 
ensure  the  provision  of  information  by  air  carriers  licensed  by  them  (cid:214) competent 
licensing authority or directly from the Community air carrier(s) concerned within a 
time limit fixed by the Commission. (cid:213) 

4. 

1. 

2. 

2.  When  the  information  requested  is  not  supplied  within  the  time  limit  fixed  by  the 
Commission, or is supplied in incomplete form, the Commission shall by decision addressed 
to  the  Member  State  concerned  require  the  information  to  be  supplied.  The  decision  shall 
specify what information is required and fix an appropriate time limit within which it is to be 
supplied.  

3. If the information required under paragraph 2 is not provided by the time limit set or the air 
carrier  has  not  otherwise  demonstrated  that  it  meets  the  requirements  of  Article  4,  the 
Commission  shall,  except  where  special  circumstances  exist,  forthwith  inform  all  Member 
States  of  the  situation.  Member  States  may,  until  notified  by  the  Commission  that 
documentation  has  been  provided  to  demonstrate  the  fulfilment  of  the  requirements  in 
question, suspend any market access rights to which the air carrier is entitled under Council 
Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-
Comunity air routes(6) . 

EN 

32 

   EN 

 
 
 
In addition to the rules of this Regulation the air carrier shall also respect the requirements of 
national law compatible with Community law.  

(cid:208) 2407/92 art. 15 (adapted) 

(cid:208) 2407/92 art. 16 (adapted) 

Notwithstanding  Article  3  (1),  operating  licences  in  force  in  a  Member  State  at  the  date  of 
entry into force of the Regulation shall remain valid, subject to the laws on the basis of which 
they were granted, for a maximum period of one year except in the case of Article 4 (1) (b) 
for which a maximum period of three years shall apply, during which periods the air carriers 
holding  such  licences  shall  make  the  necessary  arrangements  to  conform  with  all  the 
requirements  of  this  Regulation.  For  the  purposes  of  this  Article,  carriers  holding  operating 
licences  shall  be  deemed  to  include  carriers  legitimately  operating  with  a  valid  AOC  at  the 
date of entry into force of this Regulation but without holding such licences.  

This Article shall be without prejudice to Article 4 (2) (3) (4) and (5) and Article 9, except 
that  air  carriers  which  operated by  virtue  of  exemptions  prior  to  the  entry  into  force  of  this 
Regulation may continue to do so, for a period not exceeding the maximum periods specified 
above, pending enquiries by Member States as to their compliance with Article 4.  

Member  States  shall  consult  the  Commission  before  adopting  laws,  regulations  or 
administrative provisions in implementation of this Regulation. They shall communicate any 
such measures to the Commission when adopted.  

(cid:208) 2407/92 art. 17 (adapted) 

(cid:208) 2408/92 art. 3(1) (adapted) 
(cid:214) new 

Chapter III: Access to routes  

Article 15 

(cid:214) Provision of intra-Community air services (cid:213) 

1. 

2. 

Subject to this regulation, Community air carriers shall be permitted ⌦ entitled ⌫ 
by  the  Member  States  concerned  to  exercise  traffic  rights  on  routes  within  the 
Community. 

(cid:214) Member States shall not subject the exercise of traffic rights by a Community air 
carrier to any permit or authorisation. If a Member State has reasons to doubt of the 
validity of the operating licence issued to a Community air carrier, it shall raise the 

EN 

33 

   EN 

 
 
 
 
 
matter  with  the  competent  licensing  authority.  Member  States  shall  not  require 
Community  air  carriers  to  provide  any  documents  or  information  which  they  have 
already supplied to the competent licensing authority.(cid:213) 

(cid:208) 2408/92 art.3(2) (adapted) 

Notwithstanding  paragraph  1,  before  1  April  1997  a  Member  State  shall  not  be  required  to 
authorize  cabotage  traffic  rights  within  its  territory  by  Community  air  carriers  licensed  by 
another  Member  State,  unless:  (i)  the  traffic  rights  are  exercised  on  a  service  which 
constitutes and is scheduled as an extension of a service from, or as a preliminary of a service 
to,  the  State  or  registration  of  the  carrier;  (ii)  the  air  carrier  does  not  use,  for  the  cabotage 
service, more than 50 % of its seasonal capacity on the same service of which the cabotage 
service constitutes the extension or the preliminary.  

An  air  carrier  operating  cabotage  services  in  accordance  with  paragraph  2  shall  furnish  on 
request to the Member State(s) involved all information necessary for the implementation of 
the provisions of that paragraph. 

(cid:208) 2408/92 art. 3(3) (adapted) 

(cid:208) 2408/92 art. 3(4) (adapted) 

Notwithstanding  paragraph  1,  before  1  April  1997  a  Member  State  may,  without 
discrimination  on  grounds  of  nationality  of  ownership  and  air  carrier  identity,  whether 
incumbent or applicant on the routes concerned, regulate access to routes within its territory 
for  air  carriers  licensed  by  it  in  accordance  with  Regulation  (EEC)  No  2407/92  while 
otherwise not prejudging Community law and, in particular, competition rules.  

(cid:208) 2408/92 art. 7 (adapted) 
(cid:214) new 

3. 

4. 

5. 

In  operating  (cid:214) intra-Community (cid:213)  air  services,  a  Community  air  carrier  shall  be 
permitted  by  the  Member  State(s)  concerned  to  combine  air  services  and,  use  the 
same flight number (cid:214) and to enter into code share arrangements, without prejudice 
to the Community competition rules applicable to undertakings. (cid:213) 

(cid:214) Any  restrictions  on  the  freedom  of  Community  air  carriers  to  provide  intra-
Community  air  services  arising  from  bilateral  agreements  between  Member  States 
are hereby superseded. (cid:213) 

(cid:214) Notwithstanding  the  provisions  of  bilateral  agreements  between  Member  States, 
and  subject  to  the  Community  competition  rules  applicable  to  undertakings, 
Community  air  carriers  shall  be  permitted  by  the  Member  State(s)  concerned  to 

EN 

34 

   EN 

 
 
 
 
 
6. 

7. 

1. 

combine  air  services  and  to  enter  into  code  share  arrangements  on  air  services  to, 
from or via any airport in their territory from or to any point(s) in third countries. (cid:213) 

(cid:214) Without prejudice to any existing rights granted prior to the entry into force of this 
Regulation,  and  notwithstanding  Regulation  (EC)  Nr.  847/200410,  non-Community 
air carriers shall not be permitted to exercise traffic rights, to combine air services or 
to  enter  into  code-share  arrangements  in  respect  of  routes  wholly  within  the 
Community  unless  they  are  permitted  to  do  so  by  an  agreement  concluded  by  the 
Community with a third country (cid:213) 

(cid:214) Without prejudice to any existing rights granted prior to the entry into force of this 
Regulation,  and  notwithstanding  Regulation  (EC)  Nr  847/2004,  air  carriers  of  third 
countries shall not be permitted to transit the territory of the Community unless the 
third  country  concerned  is  a  party  to  the  International  Air  Services  Transit 
Agreement signed at Chicago on 7 December 1944 or has concluded an agreement to 
that effect with the Community. (cid:213) 

(cid:208) 2408/92 art 4(1)(a) (adapted) 
(cid:214) new 

Article 16 

(cid:214)General principles for public service obligations (cid:213) 

A  Member  State,  following  consultations  with  the  other  Member  States  concerned 
and  after  having  informed  the  Commission  and  air  carriers  operating  on  the  route, 
may  impose  a  public  service  obligation  in  respect  of  scheduled  air  services  to  a 
(cid:214) regional (cid:213) airport serving a peripheral or development region in its territory or on 
a thin route to any regional airport on its territory, any such route being considered 
vital  for  the  economic  development  of  the  region  in  which  the  airport  is  located. 
(cid:214) That obligation shall be imposed only (cid:213) to the extent necessary to ensure on that 
route  the  adequate  (cid:214) minimum (cid:213)  provision  of  scheduled  air  services  satisfying 
fixed  standards  of  continuity,  regularity,  capacity  and  pricing  (cid:214) or  minimum 
capacity (cid:213),  which  standards  air  carriers  would  not  assume  if  they  were  solely 
considering their commercial interest. 

(cid:214) The fixed standards imposed to the route subject to that public service obligation 
shall be set in a transparent and non-discriminatory way (cid:213) . 

10 

OJ L157, 30.4.2004, p.7 

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2. 

3. 

4. 

5. 

(cid:208) 2408/92 art.4(1)(c) (adapted) 
(cid:214) new 

In instances where other forms ⌦ modes ⌫ of transport cannot ensure an adequate 
and  uninterrupted  service  (cid:214) with  at  least  two  daily  frequencies (cid:213)  ,  the  Member 
States  concerned  may  include  in  the  public  service  obligation  the  requirement  that 
any air carrier intending to operate the route gives a guarantee that it will operate the 
route for a certain period, to be specified, in accordance with the other terms of the 
public service obligation. 

(cid:208) 2408/92 art.4(1)(j) (adapted) 

When  a  public  service  obligation  has  been 
in  accordance  with 
subparagraphs (a) and (c) ⌦ 1 and 2 ⌫ then air carriers shall be able to offer seat-
only sales only if the air service in question meets all the requirements of the public 
service obligation. Consequently that air service shall be considered as a scheduled 
air service. 

imposed 

(cid:208) 2408/92 art. 4(1)(d) (adapted) 
(cid:214) new 

If no air carrier has commenced or is about to commence scheduled air services on a 
route  in  accordance  with  the  public  service  obligation  which  has  been  imposed  on 
that route, then the Member State concerned may limit access to (cid:214) the scheduled air 
services on (cid:213) that route to only one air carrier for a period of up to three (cid:214) four (cid:213) 
years, after which the situation shall be reviewed. 

(cid:214) This period may be up to five years if the public service obligation is imposed on 
a route to an airport serving an ultra-peripheral region, as defined in Article 299(2) of 
the Treaty. (cid:213) 

The right to operate the services ⌦ referred to in paragraph 4 ⌫ shall be offered by 
public tender (cid:214) in accordance with article 17 (cid:213) , either singly or, (cid:214) in cases where 
this  is  indispensable  for  operational  reasons (cid:213)  ,  for  a  group  of  such  routes  to  any 
Community air carrier entitled to operate such air services. 

The  invitation  to  tender  shall  be  published  in  the  Official  Journal  of  the  European 
Communities  and  the  deadline  for  submission  of  tenders  not  be  earlier  than  one 
month  after  the  day  of  publication.  The  submissions  made  by  air  carriers  shall 
forthwith  be  communicated  to  the  other  Member  States  concerned  and  to  the 
Commission. 

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(cid:208) 2408/92 art. 4(1)(b) (adapted) 
(cid:214) new 

6. 

(cid:214) When  a  Member  State  wishes  to  impose  a  public  service  obligation,  it  shall 
communicate  the  complete  text  of  the  envisaged  imposition  of  the  public  service 
obligation to the Commission, to the other Member States concerned and to the air 
carriers operating the route in question.  

The  Commission  shall  publish  an  information  notice  in  the  Official  Journal  of  the 
European Union : 

(a) 

identifying the two airports connected by the route concerned,  

(b)  mentioning the date of entry into force of the public service obligation 

and 

(c) 

indicating  the  complete  address  where  the  text  and  any  relevant 
information  and/or  documentation  related  to  the  public  service 
obligation shall be made available without delay and free of charge by 
the Member State concerned. (cid:213) 

7. 

The (cid:214) necessity and the(cid:213) adequacy of scheduled air services (cid:214) an envisaged public 
service obligation (cid:213) shall be assessed by the Member States having regard to:  

– 

the public interest 

(a)  (cid:214) the  proportionality  between  the  envisaged  obligation  and  the 

economic development needs of the region concerned; (cid:213) 

(b) 

the  possibility,  in  particular  for  island  regions,  of  having  recourse  to 
other  forms ⌦ modes ⌫  of  transport  and  the  ability  of  such  forms 
⌦ modes ⌫  to  meet  the  transport  needs  under  consideration,  (cid:214) in 
particular when existing rail services serve the envisaged route with a 
travel time of less than three hours; (cid:213) 

(c) 

the air fares and conditions which can be quoted to users;  

(d) 

the combined effect of all air carriers operating or intending to operate 
on the route. 

8. 

9. 

(cid:214) The date of entry into force of a public service obligation shall not be earlier than 
the  date  of  publication  of  the  information  notice  referred  to  in  the  second 
subparagraph of paragraph 6. 

A  public  service  obligation  shall  be  deemed  to  have  expired  if  no  scheduled  air 
service has been operated during a period of more than twelve months in the route 
subject to such obligation. (cid:213) 

10. 

(cid:214) In case of sudden interruption of service by the air carrier selected in accordance 
with Article 17, the Member State concerned may, in case of emergency, select by 

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mutual agreement a different air carrier to operate the public service obligation for a 
period up to six months, not renewable, under the following conditions: (cid:213) 

(a)  (cid:214) any  compensation  paid  by  the  Member  State  shall  be  made  in  compliance 

with Article 17(8); (cid:213) 

(b)  (cid:214) the  selection  shall  be  made  among  Community  air  carriers  in  compliance 

with the principles of transparency and non-discrimination. (cid:213) 

(cid:214) The Commission and the Member State(s) shall be informed without delay of the 
emergency procedure and of its reasons. At the request of a Member State(s), or on 
its own initiative, the Commission may, in accordance with the procedure referred to 
in  Article  25(2)  suspend  the  procedure  if  it  considers  that  it  does  not  meet  the 
requirements of this paragraph or is otherwise contrary to Community legislation. (cid:213) 

(cid:216) new 

Article 17 

Public tender procedure for public service obligation 

1. 

2. 

3. 

The  public  tender  required  in  Article  16(5)  shall  be  conducted  according  to  the 
procedure set out in paragraphs 2 to 11. 

The  Member  State  concerned  shall  communicate  the  entire  text  of  the  invitation  to 
tenders to the Commission. 

The Commission shall make the invitation to tender known through an information 
notice  published  in  the  Official  Journal  of  the  European  Union.  The  deadline  for 
submission  of  tenders  shall  not  be  earlier  than  two  months  after  the  day  of 
publication  of  such  an  information  notice.  In  case  the  tender  concerns  a  route  to 
which the access had already been limited to one carrier in accordance with article 
16(4), the invitation to tender will be published at least six months before the start of 
the new concession in order to assess the continued necessity of the restricted access.  

4. 

The information notice shall provide the following information: 

(a)  Member State(s) concerned; 

(b) 

Air route concerned; 

(c) 

Period of validity of the contract; 

(d) 

Complete  address  where  the  text  of  the  invitation  to  tender  and  any  relevant 
information  and/or  documentation  related  to  the  public  tender  and  the  public 
service obligation shall be made available by the Member State concerned; 

(e) 

Deadline for submission of tenders. 

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5. 

The Member State(s) concerned shall communicate without delay and free of charge 
any relevant information and documents requested by a party interested in the public 
tender. 

Notwithstanding  subparagraph  (f),  a  period  of  two  months  shall  elapse  after  the 
deadline for  submission of tenders before  any selection is made, in order to permit 
other member States to submit comments. 

(cid:208) 2408/92 art. 4(1)(g) (adapted) 

Subparagraph  (d)  shall  not  apply  in  any  case  in  which  another  Member  State 
concerned  proposed  a  satisfactory  alternative  means  of  fulfilling  the  same  public 
service obligation. 

(cid:208) 2408/92 art. 4(1)(k) (adapted) 

Paragraph 1 (d) shall not apply to routes where other forms of transport can ensure an 
adequate and interrupted service when then capacity offered exceeds 30000 seats per 
years. 

(cid:208) 2408/92 art. 4(2) (adapted) 

(cid:208) 2408/92 art. 4(1)(e) (adapted) 
(cid:214) new 

6. 

The  invitation  to  tender  and  the  subsequent  contract  shall  cover,  inter  alia,  the 
following points: 

(a) 

The standards required by the public service obligation;  

(b) 

Rules  concerning  amendment  and  termination  of  the  contract, in  particular  to 
take account of unforeseeable changes;  

(c) 

The period of validity of the contract; 

(d) 

Penalties (cid:214) Sanctions (cid:213) in the event of failure to comply with the contract; 

(e)  (cid:214) Objective and transparent parameters on the basis of which compensation, if 
any, for the discharging of the public service obligations shall be calculated. (cid:213) 

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7. 

8. 

(cid:208) 2408/92 art. 4(1)(f) 

The selection among the submissions shall be made as soon as possible taking into 
consideration the adequacy of the service, including the prices and conditions which 
can be quoted to users, and the cost of the compensation required from the Member 
State(s) concerned, if any.  

(cid:208) 2408/92 art.4(1)(h) (adapted) 
(cid:214) new 

A ⌦ The ⌫ Member State ⌦ concerned ⌫ may reimburse ⌦ compensate ⌫ an 
air  carrier,  which  has  been  selected  under  paragraph  (f)  ⌦ 7 ⌫  ,  for  satisfying 
standards  required  by  a  public  service  obligation  imposed  under  this  paragraph 
⌦ Article 16 ⌫ . Such eimbursement ⌦ compensation ⌫ shall take into account 
the  costs  and  revenue  generated  by  the  service  (cid:214) may  not  exceed  the  amount 
required to cover the net costs incurred in discharging each public service obligation, 
taking  account  of  revenue  relating  thereto  kept  by  the  air  carrier  and  a  reasonable 
profit (cid:213) . 

9. 

The Commission shall be informed without delay of the results of the public tender 
and of the selection through a notice from the Member State including the following 
information: 

(cid:216) new 

(a) 

Numbers, names and corporate information of tenderers; 

(b) 

Operational elements contained in the offers; 

(c) 

Compensation requested in the offers; 

(d) 

Name of the selected tenderer. 

10. 

At a request of a Member State or on its own initiative, the Commission may request 
Member States to communicate, within one month, all relevant documents relating to 
the selection of an air carrier for the operation of a public service obligation. In case 
the requested documents are not communicated within the deadline, the Commission 
may  decide  to  suspend  the  invitation  to  tender  in  accordance  with  the  procedure 
referred to in Article 25(2). 

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40 

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(cid:208) 2408/92 art. 4(1)(i) (adapted) 
(cid:214) new 

Article 18 

(cid:214) Examination of public service obligations (cid:213) 

1. 

Member States shall take (cid:214) all (cid:213) the ⌦ necessary ⌫ measures necessary to ensure 
that any decision taken under this Article ⌦ Articles 16 and 17 ⌫ can be reviewed 
effectively and, in particular, as soon as possible on the grounds that such decisions 
have infringed Community law or national rules implementing Community law.  

(cid:214) In  particular,  at  a  request  of  a  Member  State  or  on  its  own  initiative,  the 
Commission may request Member States to communicate, within two months: 

(a) 

a  document  justifying  the  need  for  the  public  service  obligation  and  its 
compliance with the criteria mentioned in Article 16 

(b) 

an analysis of the economy of the region,  

(c) 

(d) 

an  analysis  of  the  proportionality  between  the  envisaged  obligations  and  the 
economic development objectives,  

an  analysis  of  the  existing  air  services,  if  any,  and  of  the  other  modes  of 
transport  available  which  could  be  considered  a  substitute  of  the  envisaged 
imposition. (cid:213) 

(cid:208) 2408/92 art. 4(3) (adapted) 
(cid:214) new 

2. 

At the request of a Member State which considers that the development of a route is 
being unduly restricted by the terms of paragraph 1 ⌦ Articles 16 and 17 ⌫ , or on 
its  own  initiative,  the  Commission  shall  carry  out  an  investigation  and,  within  two 
(cid:214) six (cid:213)  months  of  receipt  of  the  request  (cid:214) and  in  accordance  with  the  procedure 
referred to in Article 25(2), (cid:213) shall take a decision on the basis of all relevant factors 
on whether paragraph 1 ⌦ Articles 16 and 17 ⌫ shall continue to apply in respect 
of the route concerned. 

(cid:214) Pending  such  decision,  the  Commission  may  decide  on  interim  measures 
including the suspension, in whole or in part, of a public service obligation. (cid:213) 

The  Commission  shall  communicate  its  decision  to  the  Council  and  to  the  other 
Member  States.  Any  Member  State  may  refer  the  Commission’s  decision  to  the 

(cid:208) 2408/92 art. 4(4) (adapted) 

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41 

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Council within a time limit of one month. The Council, acting by qualified majority, 
may take a different decision within a period of one month. 

(cid:208) 2408/92 art. 5 (adapted) 

On  domestic  routes  for  which  at  the  time  of  entry  into  force  of  this  regulation  an 
exclusive concession has been granted by law or contract, and where other forms of 
transport  cannot  ensure  an  adequate  and  uninterrupted  service,  such  a  concession 
may continue until its expiry date or for three years, whichever deadline comes first. 

(cid:208) 2408/92 art. 6 (adapted) 

1. Notwithstanding Article 3, a Member State may, where one of the air carriers licensed by it 
has started to operate a scheduled passenger air service with aircraft of no more than 80 seats 
on a new route between regional airports where the capacity does not exceed 30 000 seats per 
year, refuse a scheduled air service by another air carrier for a period of two years, unless it is 
operated with aircraft of not more than 80 seats, or it is operated in such a way that not more 
than 80 seats are available for sale between the two airports in question on each flight.  
2. Article 4 (3) and (4) shall apply in relation to paragraph 1 of this Article. 

(cid:208) 2408/92 art. 8(2) 
(cid:214) new 

Article 19 

1. 

2. 

(cid:214) Traffic distribution between airports and exercise of traffic rights (cid:213) 

The  exercise  of  traffic  rights  shall  be  subject  to  published  Community,  national, 
regional and local operational rules relating to safety, (cid:214) security (cid:213) , the protection 
of the environment and the allocation of slots. 

(cid:208) 2408/92 art. 8(1) (adapted) 
(cid:214) new 

This regulation shall not affect a Member State’s right to (cid:214) A Member State, after 
consultation  of  the  air  carriers  concerned,  may (cid:213)  regulate,  without  discrimination 
(cid:214) among  destinations  inside  the  Community  or (cid:213)  on  grounds  of  nationality  or 
identity of air carriers, the distribution of (cid:214) air (cid:213) traffic between the airports within 
an airport system (cid:214) satisfying the following conditions:(cid:213) 

(a)  (cid:214) the airports serve the same city or conurbation; (cid:213) 

(b)  (cid:214) the airports are served by an adequate transport infrastructure; and (cid:213) 

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42 

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(c)  (cid:214) the  airports  and  the  city  or  conurbation  they  shall  serve  are  linked  by 

frequent, reliable and efficient public transport services (cid:213) 

(cid:214) Any  decision  to  regulate  the  distribution  of  air  traffic  between  the  airports  shall 
respect  the  principles  of  proportionality  and  transparency,  and  shall  be  based  on 
objective criteria.(cid:213) 

3. 

4. 

5. 

(cid:208) 2408/92 art. 8(3) (adapted) 
(cid:214) new 

At  the  request  of  a  member  State  or  on  its  own  initiative,  the  Commission  shall 
examine the application of paragraphs 1 and 2 and, within one moth of receipt of a 
request and after consulting the Committee referred to in Article11, decide whether 
the  Member  State  may  continue  to  apply  the  measure.  The  Commission  shall 
communicate  its  decision  to  the  Council  and  to  the  Member  States.  (cid:214) Without 
prejudice to traffic distribution rules existing prior to the adoption of this Regulation, 
the Member State concerned shall inform the Commission of its intention to regulate 
the distribution of air traffic or to change an existing traffic distribution rule. 

The Commission shall examine the application of paragraphs 1 and 2 and, within six 
months of receipt of this request, and in accordance with the procedure referred to in 
Article 25(2), shall decide whether the Member State may apply the measures.  

The  Commission  shall  publish  its  decision  in  the  Official  Journal  of  the  European 
Union  and  the  measures  shall  not  be  applied  before  the  publication  of  the 
Commission’s approval. (cid:213) 

Any Member State may refer the Commission’s decision to the Council with a time 
limit of one month. The Council, acting by a qualified majority, may in exceptional 
circumstances take a different decision within a period of one month. 

(cid:208) 2408/92 art. 8(4) (adapted) 

(cid:208) 2408/92 art. 8(5) (adapted) 

When  A  Member  State  decides  to  constitute  a  new  airport  system  or  modify  an 
existing  one  it  shall  inform  the  other  Member  States  and  the  Commission.  After 
having  verified  that  the  airport  are  grouped  together  as  serving  the  same  city  or 
conurbation the Commission shall publish a revised Annex II in the Offical Journal 
of the European Communities. 

1.  When  serious  congestion  and/or  environmental  problems  exist  the  Member  State 
responsible may, subject to this Article, impose conditions on, limit or refuse the exercise of 

(cid:208) 2408/92 art. 9(1) (adapted) 

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43 

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traffic  rights,  in  particular  when  other  modes  of  transport  can  provide  satisfactory  levels  of 
service. 

2. Action taken by a Member State in accordance with paragraph 1 shall: 

–  be non-discriminatory on grounds of nationality or identity of air carriers, 

(cid:208) 2408/92 art. 9(2) (adapted) 

–  have  a  limited  period  of  validity,  not  exceeding  three  years,  after  which  it  shall  be 

reviewed, 

–  not unduly affect the objectives of this Regulation, 

–  not unduly distort competition between air carriers, 

–  not be more restrictive than necessary in order to relieve the problems. 

(cid:208) 2408/92 art. 9(3) (adapted) 

3. When a Member State considers that action under paragraph 1 is necessary it shall, at least 
three months before the entry into force of the action, inform the other Member States and the 
Commission, providing adequate justification for the action. The action may be implemented 
unless within one month or receipt of the information a Member State concerned contests the 
action  or  the  Commission,  in  accordance  with  paragraph  4,  takes  it  up  for  further 
examination. 

(cid:208) 2408/92 art. 9(4) (adapted) 

4.  At  the  request  of  a  Member  State  or  on  its  own  initiative  the  Commission  shall  examine 
action  referred  to  in  paragraph  1.  When  the  Commission,  within  one  month  of  having  been 
informed  under  paragraph  3,  takes  the  action  up  for  examination  it  shall  at  the  same  time 
indicate whether the action may be implemented, wholly or partially, during the examination 
taking  into  account  in  particular  the  possibility  of  irreversible  effects.  After  consulting  the 
Committee referred to in Article 11 the Commission shall, one month after having received 
all necessary information, decide whether the action is appropriate and in conformity with this 
Regulation  and  not  in  any  other  way  contrary  to  Community  law.  The  Commission  shall 
communicate  its  decision  to  the  Council  and  the  Member  States.  Pending  such  decision  the 
Commission may decide on interim measures including the suspension, in whole or in part, of 
the action, taking into account in particular the possibility of irreversible effects.  

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44 

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(cid:208) 2408/92 art. 9(5) (adapted) 
(cid:214) new 

Article 20 

Emergency measures 

1. 

Notwithstanding paragraphs 3 and 4, A Member State may (cid:214) refuse, limit or impose 
conditions on the exercise of traffic rights (cid:213) take the necessary action to deal with 
sudden problems of short duration (cid:214) resulting from unforeseeable and unavoidable 
circumstances (cid:213).  Provided  that  Such  action  is  consistent  with  paragraph  2  (cid:214) shall 
respect  the  principles  of  proportionality  and  transparency  and  shall  be  based  on 
objective and non-discriminatory criteria (cid:213) .  

The  Commission  and  the  ⌦ other ⌫  Member  States  shall  be  informed  without 
delay of such action with its adequate justification. If the problems necessitating such 
action  continue  to  exist  for  more  than  14  days,  the  Member  State  shall  inform  the 
Commission and the other Member States accordingly and may, with the agreement 
of the Commission, prolong the action for further periods of up to 14 days. 

2. 

At  the  request  of  the  Member  State(s)  involved  or  on  its  own  initiative,  the 
Commission  may  suspend  this  action  if  it  does  not  meet  the  requirements  of 
paragraph 1 and 2 or is otherwise contrary to Community law. 

6.  Any  Member  State  may  refer  the  Commission's  decision  under  paragraph  4  or  5  to  the 
Council within a time limit of one month. The Council, acting by a qualified majority, may in 
exceptional circumstances take a different decision within a period of one month.  

(cid:208) 2408/92 art. 9(6) (adapted) 

(cid:208) 2408/92 art. 9(7) (adapted) 

7. When a decision taken by a Member State in accordance with this Article limits the activity 
of  a  Community  air  carrier  on  an  intra-Community  route,  the  same  conditions  or  limitation 
shall apply to all Community air carriers on the same route. When the decision involves the 
refusal  of  new  or  additional  services,  the  same  treatment  shall  be  given  to  all  requests  by 
Community air carriers for new or additional services on that route. 

8. Without prejudice to Article 8 (1) and except with the agreement of the Member State(s) 
involved, a Member State shall not authorize an air carrier: 

(cid:208) 2408/92 art. 9(8) (adapted) 

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to establish a new service, or 

to increase the frequency of an existing service, 

between  a  specific  airport  in  its  territory  and  another  Member  State  for  such  time  as  an  air 
carrier  licensed  by  that  other  Member  State  is  not  permitted,  on  the  basis  of  slot-allocation 
rules as provided for in Article 8(2), to establish a new service or to increase frequencies on 
an  existing  service  to  the  airport  in  question,  pending  the  adoption  by  the  Council  and  the 
coming into force of a Regulation on a code of conduct on slot allocation based on the general 
principle of non-discrimination on the grounds of nationality. 

(cid:208) 2408/92 art.10 (adapted) 

1. Capacity limitations shall not apply to air services covered by this Regulation except as set 
out in Articles 8 and 9 and in this Article. 

2. Where the application of paragraph 1 has led to serious financial damage for the scheduled 
air  carrier(s)  licensed  by  a  Member  State,  the  Commission  shall  carry  out  a  review  at  the 
request  of  that  Member  State  and,  on  the  basis  of  all  relevant  factors,  including  the  market 
situation and in particular whether a situation exists whereby the opportunities of air carriers 
of that Member State to effectively compete in the market are unduly affected, the financial 
position  of  the  air  carrier(s)  concerned  and  the  capacity  utilization  achieved,  shall  take  a 
decision on whether the capacity for scheduled air services to and from that State should be 
stabilized for a limited period. 

3. The Commission shall communicate its decision to the Council and to the Member States. 
Any Member State may refer the Commission's decision to the Council within a time limit of 
one  month.  The  Council,  acting  by  a  qualified  majority,  may  in  exceptional  circumstances 
take a different decision within a period of one month. 

(cid:208) 2409/92 art. 1(2) (adapted) 
(cid:214) new 

⌦ Chapter IV: Provisions on Pricing ⌫ 

Article 21 

(cid:214) Pricing (cid:213) 

Without prejudice to paragraph 3 ⌦ Article 23 ⌫ , this Regulation ⌦ Chapter ⌫ shall not 
apply to:  

(a)  ⌦ air ⌫  fares  and  rates  charged  by  air  carriers  other  than  Community  air 

carriers;  

(b)  ⌦ air ⌫  fares  and  rates  established  by  public  service  obligation  in 
accordance  with  Council  Regulation  (EEC)  No  2408/92  of  23  July  1992  on 

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acess  for  Community  air  carriers  to  intra-Community  air  routes  ⌦ Chapter 
III. ⌫ 

(cid:208) 2409/92 art. 5(1) (adapted) 
(cid:214) new 

Article 22 

(cid:214) Pricing freedom(cid:213) 

1. 

2. 

Without prejudice to this Regulation ⌦ Articles 16(1), 23 and 24 ⌫ , Community 
air carriers shall freely set air fares (cid:214) and rates for intra-Community air services (cid:213) . 

(cid:214)Notwithstanding  the  provisions  of  bilateral  agreements  between  Member  States, 
Member  States  may  not  discriminate  on  grounds  of  nationality  or  identity  of  air 
carrier  in  allowing  Community  air  carriers  to  set  fares  and  rates  for  air  services 
between  their  territory  and  a  third  country.  Any  remaining  restrictions  on  pricing, 
including with respect to routes to third countries, arising from bilateral agreements 
between Member States are hereby superseded.(cid:213) 

Charter fares and seat and cargo rates charged by Community carriers shall be set by 
free agreement between the parties to the contract of carriage. 

(cid:208) 2409/92 art. 3 (adapted) 

(cid:208) 2409/92 art. 1(3) (adapted) 
(cid:214) new 

Article 23 

(cid:214) Price leadership(cid:213) 

(cid:214) Without prejudice to agreements concluded by the Community with a third country, for air 
services  between  Community  airports (cid:213)  ,  only  Community  air  carriers  shall  be  entitled  to 
introduce new products or lower ⌦ air ⌫ fares than the ones existing for identical products.  

EN 

47 

   EN 

 
 
 
 
(cid:208) 2409/92 art. 4 (adapted) 
(cid:214) new 

Article 24 

(cid:214) Information and non discrimination(cid:213) 

1. 

2. 

Air carriers operating within the Community shall inform (cid:214) provide (cid:213) the general 
public  on  request  of  all  air  fares  and  standard  cargo  rates  (cid:214) with  comprehensive 
information on their air fares and rates and the conditions attached. (cid:213) 

(cid:214) Air carriers shall set air fares without any discrimination based on the nationality 
or  the  place  of  residence  of  the  passenger  or  on  the  place  of  establishment  of  the 
travel agent within the Community. (cid:213) 

(cid:208) 2409/92 art. 5(2) (adapted) 

Member State(s) concerned may, without discrimination on grounds of nationality or identity 
of  air  carriers,  require  air  fares  to  be  filed  with  them  in  the  form  prescribed  by  them.  Such 
filing  shall  not  be  required  to  be  submitted  more  than  24  hours  (including  a  working  day) 
before  the  air  fares  come  into  effect,  except  in  the  case  of  matching  of  an  existent  fare  for 
which no more than prior notification is required.  

Before 1 April 1997, a Member State may require that air fares on domestic routes where no 
more  than  one  carrier  licensed  by  it,  or  two  carriers  licensed  by  it  under  a  joint  operation, 
operate have to be filed more than one working day but no more than one month before the air 
fares come into effect.  

(cid:208) 2409/92 art. 5(3) (adapted) 

An air fare may be available for sale and carriage as long as it is not withdrawn in accordance 
with Article 6 or Article 7.  

(cid:208) 2409/92 art. 5(4) (adapted) 

(cid:208) 2409/92 art. 6 (adapted) 

1. Subject to the procedures set out in this Article, a Member State concerned may 
decide, at any moment:  

a) to withdraw a basic fare which, taking into account the whole fare structure for the 
route  in  question  and  other  relevant  factors  including  the  competitive  market 

EN 

48 

   EN 

 
 
 
 
 
 
situation, is excessively high to the disadvantage of users in relation to the long-term 
fully-allocated  relevant  costs  of  the  air  carriers  including  a  satisfactory  return  on 
capital; 

b) to stop, in a non-discriminatory way, further fare decreases in the market, whether 
on a route or a group of routes, when market forces have led to sustained downward 
development  of  air  fares  deviating  significantly  from  ordinary  seasonal  pricing 
movements  and  resulting  in  widespread  losses  among  al  air  carriers  concerned  for 
the air services concerned, taking into account the long term fully-allocated relevant 
costs of the air carriers  

2.  A  decision  taken  pursuant  to  paragraph  1  shall  be  notified  with  reasons  to  the 
Commission and to all other Member States involved, as well as to the air carrier(s) 
concerned. 

3.  If  within  fourteen  days  of  the  date  of  receiving  notification  no  Member  State 
involved or the Commission has notified disagreement stating its reasons on the basis 
of paragraph 1, the Member State which has taken the decision pursuant to paragraph 
1 may instruct the air carrier(s) concerned to withdraw the basic fare in question and 
to abstain from further fare decreases, as appropriate. 

4. In the case of disagreement, any Member State involved may require consultations 
to  review  the  situation.  The  consultations  shall  take  place  within  fourteen  days  of 
being requested, unless otherwise agreed.  

(cid:208) 2409/92 art. 7 (adapted) 

1.  At  the  request  of  a  Member  State  involved  the  Commission  shall  examine  whether  a 
decision to act or not to act pursuant to Article 6 complies with the criteria of Article 6 (1). 
The Member State shall at the same time inform the other Member State(s) concerned and the 
air carrier(s) concerned. The Commission shall forthwith publish in the Official Journal of the 
European Communities that the air fare(s) have been submitted for examination.  

2. Notwithstanding paragraph 1, the Commission may, on the basis of a complaint made by a 
party  with  a  legitimate  interest,  investigate  whether  air  fares  comply  with  the  criteria  of 
Article 6 (1). The Commission shall forthwith publish in the Official Journal of the European 
Communities that the air fare(s) have been submitted for examination.  

3.  An  air  fare  in  force  at  the  time  of  its  submission  for  examination  in  accordance  with 
paragraph 1 shall remain in force during the examination. However, where the Commission, 
or  the  Council  in  accordance  with  paragraph  8, has  decided  within  the  previous  six  months 
that a similar or lower level of the basic fare on the city-pair concerned does not comply with 
the criteria of Article 6 (1) (a), the air fare shall not remain in force during the examination.  

Furthermore, where paragraph 6 has been applied, the air carrier concerned may not, during 
the  examination  by  the  Commission,  apply  a  higher  basic  fare  than  the  one  which  was 
applicable immediately before the basic fare under examination.  

4.  Following  consultations  with  the  Member  States  concerned,  the  Commission  shall  take  a 
decision as soon as possible and in any event not later than twenty working days after having 

EN 

49 

   EN 

 
 
received sufficient information from the air carrier(s) concerned. The Commission shall take 
into account all information received from interested parties.  

5. When an air carrier does not supply the information requested within the time limit fixed 
by  the  Commission,  or  supplies  it  in  incomplete  form,  the  Commission  shall  be  decision 
require the information to be supplied. The decision shall specify what information is required 
and fix an appropriate time limit within which it is to be supplied.  

6.  The  Commission  may,  by  decision,  decide  that  an  air  fare  in  force  shall  be  withdrawn 
pending its final determination where an air carrier supplies incorrect information or produces 
it  in  incomplete  form  or  does  not  supply  it  within  the  time  limit  fixed  by  decision  under 
paragraph 5.  

7. The Commission shall without delay communicate its reasoned decision under paragraphs 
4 and 6 to the Member State(s) concerned and to the air carrier(s) concerned.  

8. A Member State concerned may refer the Commission's decision under paragraph 4 to the 
Council within a time limit of one month. The Council, acting by a qualified majority, may 
take a different decision within a period of one month.  

9.  The  Member  States  concerned  shall  ensure  that  the  Commission's  decision  is  enforced, 
unless the decision is under examination by the Council or the Council has taken a different 
decision in accordance with paragraph 8.  

At  least  once  a  year  the  Commission  shall  consult  on  air  fares  and  related  matters  with 
representatives  of  air  transport  user  organizations  in  the  Community,  for  which  purpose  the 
Commission shall supply appropriate information to participants.  

(cid:208) 2409/92 art. 8 (adapted) 

(cid:208) 1882/2003  art.1  and  Annex  I.5 
(adapted) 
(cid:214) new 

Chapter V: Final provisions  

Article 25 

(cid:214) Committee (cid:213) 

1. 

The Commission shall be assisted by a committee. The Committee shall advise the 
Commission on the application of Articles 9 and 10. 

The  Committee  may  furthermore  be  consulted  by  the  Commission  on  any  other 
matter concerning the application of this Regulation. 

EN 

50 

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2. 

Where  reference  is  made  to  this  Article  ⌦ paragraph ⌫  ,  Articles  3  and  7  of 
Decision  1999/468/EC11  shall  apply,  having  regard  to  the  provisions  of  Article  8 
thereof. 

3. 

The Committee shall adopt its rules of procedure.  

(cid:208) 2407/92 art.18(1) - 2408/92 art. 
14(1) 
art.  10(1) 
(adapted) 

-  2409/92 

Article 26 

Cooperation and right to obtain information  

1. 

2. 

Member  States  and 
implementing 
⌦ applying ⌫ this Regulation, particularly as regards collection of information for 
the report referred to in Article 9 (of regulation 2409/92).  

the  Commission 

shall  cooperate 

in 

(cid:208) 2408/92 art. 12(1) (adapted) 
(cid:214) new 

In order to carry out its duties under this Regulation the Commission may obtain all 
necessary  information  from  Member  States  concerned,  which  shall  also  ensure  the 
provision of information by air carriers licensed by them (cid:214) their competent licensing 
authorities (cid:213) .  

(cid:208) 2408/92 art. 12(2) (adapted) 

When  the  information  requested  is  not  supplied  within  the  time  limit  fixed  by  the 
Commission,  or  is  supplied  in  incomplete  form,  the  Commission  shall  by  decision 
addressed to the Member State concerned require the information to be applied. The 
decision shall specify what information is required and fix an appropriate time limit 
within which it is o be supplied. 

11 

OJ L 184, 17.7.1999, p.23 

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51 

   EN 

 
 
 
 
                                                 
-  2409/92 

(cid:208) 2407/92 art.18(2) - 2408/92 art. 
14(2) 
art.  10(2) 
(adapted) 
(cid:214) new 

3. 

Confidential  information  obtained  in  application  of  this  regulation  shall  be  covered 
by  professional  secrecy  (cid:214) Member  States  shall,  according  to  their  national 
legislation, take the  necessary  measures to ensure appropriate confidentiality of the 
information received by them in application of this Regulation. (cid:213) 

The  Commission  shall  publish  a  report  on  the  application  of  this  regulation  by  1 
April 1994 and periodically thereafter. 

(cid:208) 2408/92 art. 13 (adapted) 

The  Commission  shall  publish  a  report  on  the  application  of  this  regulation  by  1 
April 1994 and periodically thereafter. 

(cid:208) 2409/92 art. 9 (adapted) 

Regulation (EEC) No 2343/90 and 294/91 are hereby replaced with the exceptions of Article 
2 (e) (ii) and of Annex I to Regulation (EEC) No 2343/90, as interpreted by Annex II to this 
Regulation, and Article 2 (b) of and the Annex to Regulation (EEC) No 294/91.  

(cid:208) 2408/92 art. 15 (adapted) 

Regulation (EEC) No 2342/90 is hereby repealed. 

(cid:208) 2409/92 art. 11 (adapted) 

(cid:216) new 

Article 27 

Repeal 

Regulations (EEC) No 2407/92, 2408/92 and 2409/92 are repealed. 

References  to  the  repealed  Regulations  shall  be  construed  as  references  to  this 
regulation and shall be read in accordance with the correlation table in the Annex III.  

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52 

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(cid:216) new 

Article 28 

Entry into force 

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

This Regulation shall enter into force on 1 January 1993. 

This Regulation shall enter into force on 1 January 1993. 

This Regulation shall enter into force on 1 January 1993. 

(cid:208) 2407/92 art. 19 (adapted) 

(cid:208) 2408/92 art. 16 (adapted) 

(cid:208) 2409/92 art. 12 (adapted) 

(cid:216) new 

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

(cid:208) 2407/92 annex (adapted) 
(cid:214) new 

ANNEX ⌦ I ⌫ 

Information for use in association with Article 5 of financial fitness of air carriers ⌦ to 
be provided in the context of Articles 5 and 8 ⌫ 

EN 

53 

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1. 

1.1. 

1.2. 

1.3. 

1.4. 

Information to be provided by a first-time applicant from a financial fitness point of 
view  

The most recent internal management accounts and, if available, audited accounts for 
the previous financial year.  

A  projected  balance  sheet,  including  profit  and  loss  account,  for  the  following  two 
(cid:214) three (cid:213) years.  

The basis for projected expenditure and income figures on such items as fuel, fares 
and  rates,  salaries,  maintenance,  depreciation,  exchange  rate  fluctuations,  airport 
charges, insurance, etc. Traffic/revenue forecasts.  

Details of the start-up costs incurred in the period from submission of application to 
commencement  of  operations  and  an  explanation  of  how  it  is  proposed  to  finance 
these costs.  

1.5. 

Details of existing and projected sources of finance.  

1.6. 

1.7. 

1.8. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

2.6. 

Details of shareholders, including nationality and type of shares to be held, and the 
Articles  of  Association.  If  part  of  a  group  of  undertakings,  information  on  the 
relationship between them.  

Projected cash-flow statements and liquidity plans for the first two ⌦ three ⌫ years 
of operation.  

Details of the financing of aircraft purchase/leasing including, in the case of leasing, 
the terms and conditions of contract.  

Information  to  be  provided  for  assessment  of  the  continuing  financial  fitness  of 
existing  licence  holders  planning  a  change  in  their  structures  or  in  their  activities 
with a significant bearing on their finances  

If  necessary,  the  most  recent  internal  management  balance  sheet  and  audited 
accounts for the previous financial year.  

Precise  details  of  all  proposed  changes  e.g.  change  of  type  of  service,  proposed 
takeover or merger, modifications in share capital, changes in shareholders, etc.  

A  projected  balance  sheet,  with  a  profit  and  loss  account,  for  the  current  financial 
year,  including  all  proposed  changes  in  structure  or  activities  with  a  significant 
bearing on finances.  

Past and projected expenditure and income figures on such items as fuel, fares and 
rates, salaries, maintenance, depreciation, exchange rate fluctuations, airport charges, 
insurance, etc. Traffic/revenue forecasts. 

Cash-flow  statements  and  liquidity  plans  for  the  following  year,  including  all 
proposed changes in structure or activities with a significant bearing on finances. 

Details of the financing of aircraft purchase/leasing including, in the case of leasing, 
the terms and conditions of contract.  

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54 

   EN 

 
3. 

3.1. 

3.2. 

3.3. 

Information  to  be  provided  for  assessment  of  the  continuing  financial  fitness  of 
existing licence holders  

Audited accounts not later than six months after the end of the relevant period and, if 
necessary, the most recent internal management balance sheet.  

A  projected  balance  sheet,  including  profit  and  loss  account,  for  the  forthcoming 
year.  

Past and projected expenditure and income figures on such items as fuel, fares and 
rates, salaries, maintenance, depreciation, exchange rate fluctuations, airport charges, 
insurance, etc. Traffic/revenue forecasts.  

3.4. 

Cash-flow statements and liquidity plans for the following year. 

(cid:216) new 

ANNEX II 

Definition of regional airports for the purpose of Article 16 

Are  considered  to  be  regional  airports,  all  airports  that  fulfil  at  least  one  of  the 
following criteria: 

(a) 

(b) 

Annual traffic volume does not exceed 900000 passenger movements annually; 

Annual  traffic  volume  does  not  exceed  50000  tonnes  freight  throughput 
annually; 

(c) 

The airport is located on an island of a Member State; 

(cid:215) 

ANNEX III 

CORRELATION TABLE 

Regulation 2407/92 

This Regulation 

Article 1(1) 

Article 1(2) 

Article 2 

Article 3(1) 

Article 3(2) 

Article 1 

Article 3(3) 

Article 2 

Article 3(2) 

Article 3(1) second paragraph 

EN 

55 

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Article 3(3) 

Article 4(1)  

Article 4(2) 

Article 4(3) 

Article 4(4) 

Article 4(5) 

Article 5(1) 

Article 5(2) 

Article 5(3) 

Article 5(4) 

Article 5(5) 

Article 5(6) 

Article 5(7) 

Article 6 

Article 7 

Article 8(1) 

Article 8(2) 

Article 8(3) 

Article 8(4) 

Article 9 

Article 10(1) 

Article 10(2) 

Article 11(1) 

Article 11(2) 

Article 11(3) 

Article 12 

Article 13(1) 

Article 3(1) first paragraph 

Article 4(1) 

Article 4 f 

- 

Article 4 f 

Article 8(1) second paragraph 

Article 5(1) 

Article 5(2) 

Article 8(5) 

Article 8(6) 

Article 9(1) 

Article 8(4) 

Article 5(3) and 8(8) 

Article 7 

Article 11  

Article 13(1) 

Article 12(1) 

Article 13(2) 

Article 12(2) 

Article 6 

Article 13(3) 

Article 13(4) 

Article 8(1) 

Article 8(3) 

Article 8(7) 

Articles 9(2) – 9(4) 

Article 10(2)  

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Article 13(2) 

Article 13(3) 

Article 13(4) 

Article 14 

Article 15 

Article 16 

Article 17 

Article 18(1) 

Article 18(2) 

Article 19 

ANNEX 

Article 10(1) 

- 

Article 10(3) 

Article 14 

- 

- 

- 

Article 26(1) 

Article 26(3) 

- 

ANNEX I 

Regulation 2408/92 

This Regulation 

Article 1(1) 

Article 1(2) 

Article 1(3) 

Article 1(4) 

Article 2 

Article 3(1) 

Article 3(2) 

Article 3(3) 

Article 3(4) 

Article 4 (1) a 

Article 4(1) b 

Article 4(1) c 

Article 4(1) d 

Article 1 

Article 1(2) 

Article 1(3) 

- 

Article 2 

Article 15(1) + 15(2) 

- 

- 

- 

Article 16(1) 

Article 16(6) 

Article 16(2) 

Article 16(4) 

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- 

- 

- 

- 

- 

Article 4(1) e 

Article 4(1) f 

Article 4(1) g 

Article 4(1) h 

- 

- 

Article 4(1) i 

Article 4(1) j 

Article 4(1) k 

Article 4(2) 

Article 4(3) 

Article 4(4) 

Article 5 

Article 6(1) and 6(2) 

Article 7 

Article 8(1) 

Article 8(2) 

Article 8(3) 

Article 8(4) 

Article 8(5) 

Article 9(1) 

Article 9(2) 

EN 

Article 17(1) 

Article 17(2) 

Article 17(3) 

Article 17(4) 

Article 17(5) 

Article 17(6) 

Article 17(7) 

- 

Article 17(8) 

Article 17(9) 

Article 17(10) 

Article 18(1) 

Article 16(3) 

- 

- 

Article 18(2) 

- 

- 

- 

Article 15(3) – 15(6) 

Article 19(2) 

Article 19(1) 

Article 19(3) 

- 

- 

- 

- 

58 

   EN 

 
Article 9(3) 

Article 9(4) 

Article 9(5) 

Article 9(6) 

Article 9(7) 

Article 9(8) 

Article 10 

Article 11 

Article 12(1) 

Article 12(2) 

Article 13 

Article 14(1) 

Article 14(2) 

Article 15 

Article 16 

ANNEX I 

ANNEX II 

ANNEX III 

- 

- 

- 

Article 20 

- 

- 

- 

- 

Article 25 

Article 26(2) 

- 

- 

Article 26(1) 

Article 26(3) 

- 

- 

- 

- 

- 

ANNEX II 

Regulation 2409/92 

This Regulation 

Article 1(1) 

Article 1(2) 

Article 1(3) 

Article 2 

EN 

Article 1 

Article 21 

Article 23 

Article 2 

59 

   EN 

 
 
 
 
 
 
 
Article 3 

Article 4 

Article 5(1) 

Article 5(2) 

Article 5(3) 

Article 5(4) 

Article 6 

Article 7 

Article 8 

Article 9 

Article 10(1) 

Article 10(2) 

Article 11 

Article 12 

- 

- 

- 

Article 24 

Article 22 

- 

- 

- 

- 

- 

- 

- 

Article 26(1) 

Article 26(3) 

- 

- 

Article 27 

Article 28 

(cid:208) 2408/92  annex  and  act  of 
accession  of  Austria,  Sweden  and 
Finland,  art.  29  and  annex  I,  and 
act  of  accession  of  the  Czech 
Republic, Estonia, Cyprus, Latvia, 
Hungary,  Malta, 
Lithuania, 
Poland,  Slovenia  and  Slovakia, 
art.20 and annex II (adapted) 

ANNEX I 

List of category 1 airports 

BELGIUM: 

Brussels-Zaventem 

CZECH REPUBLIC:   Praha - Ruzyně  

DENMARK: 

Copenhagen airport system 

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60 

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GERMANY 

Frankfurt-Rhein/Main 

Düsseldorf-Lohausen 

Munich 

Berlin airport system 

ESTONIA  

Tallinna Lennujaam  

SPAIN 

Palma-Mallorca 

Madrid-Barajas 

Malaga 

Las Palmas 

GREECE: 

Athens-Hellinikon 

Thessalonika-Macedonia 

FRANCE: 

Paris airport system 

IRELAND: 

Dublin 

ITALY: 

Rome airport system 

CYPRUS  

LATVIA:  

Milan airport system 

Larnaka airport  

Riga  

LITHUANIA  

Vilnius  

HUNGARY  

Budapest-Ferihegy International Airport  

MALTA  

Luqa  

NETHERLANDS 

Amsterdam-Schiphol 

POLAND  

Warszawa-Okęcie  

PORTUGAL: 

Lisbon 

Faro 

SLOVENIA  

Ljubljana  

SLOVAKIA  

Bratislava Airport  

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UNITED KINGDOM:  London airport system 

AUSTRIA  

Luton 

Vienna  

FINLAND  

Helsinki-VantaaHelsingfors Vanda  

SWEDEN  

Stockholm airport system  

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62 

   EN 

 
 
ANNEX II 

List of airport systems 

DENMARK: 

Copenhagen-Kastrup/Roskilde 

GERMANY: 

Berlin-Tegel/Schönefeld/Tempelhof 

FRANCE: 

Paris-Charles De Gaulle/Orly/Le Bourget 

Lyon-Bron-Satolas 

ITALY: 

Rome-Fiumicino/Ciampino 

Milan-Linate/Malpensa/Bergamo (Orio al Serio) 

Venice-Tessera/Treviso 

London-Heathrow/Gatwick/Stansted 

UNITED 
KINGDOM: 

SWEDEN:  

Stockholm-Arlanda/Bromma  

Interpretation referred to in Article 15 Under the terms of Annex I to Regulation (EEC) No 
2343/90  the  air  carrier  Scanair,  which  is  structured  and  organized  exactly  as  Scandinavian 
Airlines System, is to be considered in the same way as the air carrier Scandinavian Airlines 
System.  

(cid:208) 2408/92 ANNEX III (adapted) 

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