National procedure of the Netherlands for the allocation of limited air traffic rights
Date: 2007-09-12
Institutions: European Commission
Subjects: Netherlands, Romania, air space, air traffic, air transport, airline, international negotiations, third country, transport licence

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National procedure of the Netherlands for the allocation of limited air traffic rights

(2007/C 213/04)

In accordance with Article 6 of Regulation (EC) No 847/2004 of the European Parliament and of the
Council on the negotiation and implementation of air service agreements between Member States and third
countries, the European Commission is publishing the following national procedure in respect of the distri-
bution of aviation rights amongst the eligible Community air carriers in cases in which these are limited
pursuant to aviation agreements with third countries.

‘Ministerie van Verkeer en Waterstaat
Luchtvaart

Policy rule memorandum on route licensing policy

(as amended by Decree of 7 May 2007 (VENW/DGTL-2007/7827))

Datum
20 augustus 2004

Ons kenmerk
DGL/04.U01454

Introduction

The judgment handed down by the European Court of Justice in respect of the “Open Skies” cases on
5 November 2002 (1) has shown that, if a European air carrier wishes to establish its registered offices in the
Netherlands, it must be given the opportunity without discrimination and in a transparent manner, to exer-
cise its rights in accordance with the Dutch bilateral aviation treaties. This aspect has been laid down in the
“Regulation on the negotiation and implementation of air service agreements between Member States and
third countries” (EC No 847/2004). In this context, the Directorate-General for Transport and Aviation
[Directoraat-Generaal Transport en Luchtvaart, DGTL] has decided to bring route licensing policy and the imple-
mentation of this in line with these developments in the field of European legislation and, for the sake of
transparency, to lay down the amendments required in order to achieve this in this policy memorandum.

In addition to the methodology used in issuing route licences, the format of the route licence shall also be
amended. For instance, the route licence shall be configured in such a way that all Community air carriers
established in the Netherlands shall in principal be permitted to operate transport to anywhere in the world.
However in order to be able to use a specific route, this route must be included in a list, to be determined
by the Minister, of routes to be operated in practice, which shall be drawn up pursuant to the licence.

The DGTL is also in favour of enforcing the current methodology as far as possible, where this does not
conflict with EU regulations. In view of the latter, the clauses in relation to ownership and control based on
nationality shall be brought in line with the requirements under Article 43 EC (business location) in accord-
ance with the judgment given by the European Court of Justice in respect of the “Open Skies” treaties with
the US.

Prior to granting its consent, the DGTL must, in the case of a limited number of landing rights, determine
in a transparent and non-discriminatory manner which air carriers shall be permitted to fly which routes. In
doing so, the DGTL shall rely on existing policy that has been laid down in the Licensing Policy Memoran-
dum of 1994 and on the new additions laid down in this Memorandum on Route Licensing Policy. The
method of assessment shall be dealt with and substantiated in accordance with the procedures under the
General Administrative Law Act [Algemene Wet Bestuursrecht, Awb].

Scope of application

Any Community air carrier that wishes to provide routes from, to and via third countries from the
Netherlands must, in order to be able to assert its rights to exercise the bilateral rights that the Dutch
government has acquired, first establish its registered offices in the Netherlands and apply for a route licence
or, where non-scheduled flights are concerned, charter permission.

The validity of
the route licence depends on whether the air carrier is also in possession of, and
shall continue to be in possession of, a valid operating permit pursuant to Article 16a of the Aviation Act
[Luchtvaartwet].

(1) Cases C-466/98, C-467/98, C-468/98, C-469/98, C-471/98, C-472/98, C-475/98, C-476/98.

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Whether or not an operating permit will be granted or is valid shall at all times depend on whether the
company is in possession of an AOC (Air Operator's Certificate) specifying the activities that fall under the
operating permit (Article 9, Regulation (EEC) No 2407/92). Flights must be operated in accordance with the
Air Operator's Certificate granted.

If an air carrier that holds a Dutch route licence is no longer a Community carrier established in the
Netherlands, the Minister may decide to withdrawn its route licence.

Incidentally, the granting of a route licence does not mean that the licence-holder is not required to observe
the conditions imposed in other contexts, for instance rules laid down by the authorities of third countries
that are flight destinations, or the availability of slots.

Legal framework

National

A route licence or charter permission shall be issued on the basis of Article 16b of the Aviation Act, which
creates the option to issue a licence as referred to in Article 16, which does not fall under Article 16a with
regard to the operating permit. This also forms the basis for the authority to lay down this policy rule.

A licence may be issued for a maximum period of five years. The assessment that precedes the issuing of a
licence shall take place in accordance with this memorandum with regard to the amendment of the route
licensing policy and the Licensing Policy Memorandum. Where this memorandum deviates from the Licen-
sing Policy Memorandum, the Licensing Policy Memorandum shall prevail. In addition, with regard to char-
tered flights, the Decree on non-scheduled transport (BOL [Besluit ongeregeld luchtvervoer], Decree of 2 May
1975/Bulletin of Acts and Decrees 1975/227) and, where package travel is concerned, the Inclusive Tours
Holiday Decree [Besluit IT-reizen] (Regulation of 5 February 1981/No LV/L 20478/Netherlands Civil Aviation
Authority [Rijksluchtvaartdienst]/Government Gazette 1981, 33) shall apply.

In addition to the Inclusive Tours Holiday Decree, in accordance with Article 7 of the BOL further rules
with regard to non-scheduled transport have been laid down in the Decree on carriage and other flights
[Besluit Vracht — en overige vluchten] (Regulation of 5 February 1981/No LV/L 20477/Netherlands Civil Avia-
tion Authority [Rijksluchtvaartdienst]/Government Gazette 1981, 33), the Decree containing regulations
concerning the transport by air of groups with an advance booking [Beschikking ABC-vluchten] (Decree of
11 June 1979/No LV/L 22952/Government Gazette 1979, 131), and the Decree on the transport of private
groups [Beschikking vervoer besloten groepen] (Regulation of 29 July 1975/No POL/L 23676/Government
Gazette 1975, 150).

European

On 5 November 2002, the European Court handed down a judgment in the cases brought by the Commis-
sion regarding the “Open Skies” treaties with the US (2). The European Court is of the opinion that the Com-
munity has exclusive jurisdiction in specific areas. In addition, the European Court has ruled that clauses
relating to national ownership and control in aviation agreements constitute an infringement of the right of
establishment under Article 43 of the EC Treaty. Both the Court and the Commission (3) have called upon
the Member States to put an end to this violation of the EC Treaty.

In light of the judgments given by the European Court of Justice and pursuant to Article 10 of the EC Treaty,
the Netherlands shall be obliged to take appropriate measures in order to guarantee compliance with the
obligations arising from the Treaty or from the activities of the Community institutions. Following the judg-
ment given by the Court, the Committee laid down the obligations in the field of traffic rights in the
“Communication from the Commission on relations between the Community and third countries in the
field of air transport” (COM(2003) 94) and the subsequently adopted “Regulation on the negotiation and
implementation of air service agreements between Member States and third countries” (EC No 847/2004).
Article 5 of this Regulation in particular is relevant to route licensing policy.

Types of licences for the distribution of routes

Exemption from licences for the distribution of routes

On the basis of Regulation (EEC) No 2408/92 (4) on access for Community air carriers to intra-Community
air routes, air carriers that hold an operating permit issued by one of the Member States shall be permitted
to operate flights within the EC. The operation of routes in some Member States is subject to authorisation
from the relevant Member State.

(2) See footnote 1.
(3) “Communication from the Commission: On the consequences of the judgments given by the Court of Appeal on

5 November 2002 in respect of European aviation policy” (COM(2002) 649).

(4) Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air

routes (OJ L 240, 24.8.1992, p. 33).

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In the Netherlands however, permission will automatically be granted without an administrative procedure,
except in the case of reporting to the airport and air traffic control when a flight will actually be operated.
Since 1 April 1997, the Regulation has also permitted Community air carriers to carry out transport from
and to airports within a Member State (cabotage). The operation of flights outside the EC is subject to the
granting of a route licence or charter permission.

Route licence

Routes outside the European Community are largely governed by bilateral agreements. Each bilateral rela-
tionship has its own individual character. Depending on various political and economic factors such as the
market power of the air carrier in the country with which the aviation agreement is being concluded, the
rights conferred will be of a liberal or restrictive nature. The issue and assessment of route licences will
therefore only relate to routes within the European Union.

The most liberal current aviation agreement is the “Open Skies” agreement with the United States. Under
this type of open regime, several Dutch air carriers are permitted to fly from any location in the Netherlands
to any location in the country of the party entering into the agreement via an arbitrary intervening point
and with onward flights to all locations. Under this very liberal regime, there are no restrictions on the
frequency with which flights may be operated. In these situations, both a route licence for scheduled flights
with passage and freight and charter permission will therefore be issued almost automatically.

If the bilateral regime is restrictive, the aviation agreement will specify, amongst other things, how many air
carriers are permitted to fly specific routes as a scheduled service and with what frequency. In some cases
the third country, in line with the agreements under the aviation agreement, will also require tariffs to be
registered. These tariffs may be subject to the consent of the country in question.

Under both liberal and the restrictive aviation agreements, predominantly Dutch ownership and actual
control of the air carrier(s) to be designated is currently generally required. Aviation agreements primarily
govern scheduled flights. The Dutch government has therefore included the requirement in relation to Dutch
ownership and control in the route licence issued in respect of scheduled flights. This requirement in relation
to Dutch property and control will be converted into the requirement that the air carrier to which a route
licence is issued must be a Community carrier established in the Netherlands. Chartered flights and ad hoc
flights are usually considered outside of the aviation agreement on a case by case basis within the context of
the bilateral aviation relationship. Charter permission is granted for this purpose.

Charter permission

As previously stated, the vast majority of chartered flights and ad hoc flights fall outside the bilateral regime.
Flights outside Europe are governed by a separate regime for chartered flights and Regulation (EEC)
No 2408/92 applies. In principle, in the case of chartered flights no distinction is made between Dutch and
non-Dutch air carriers, provided that Dutch carriers enjoy equal access for the purpose of performing char-
tered flights in the state in which the non-Dutch air carrier is established.

The issue of nationality therefore plays a smaller role in terms of the operation of chartered flights.
However, the procedure in this respect must also be transparent and non-discriminatory. Charter permission
may be granted in respect of the operation of chartered flights or ad hoc flights upon request, whereby
permission is granted for the operation of a number of chartered flights during a specific period. In asses-
sing the application, the same policy principles will be observed as when assessing an application for a route
licence. The procedure with regard to consultation and decision-making is also the same. In addition, the
guidelines and procedures with regard to permission under the Decree on non-scheduled transport (BOL
[Besluit ongeregeld luchtvervoer], Decree of 2 May 1975/Bulletin of Acts and Decrees 1975/227) and the addi-
tional rules based thereon (such as, where package travel is concerned, the Inclusive Tours Holiday Decree
[Besluit IT-reizen] (Regulation of 5 February 1981/No LV/L 20478/Netherlands Civil Aviation Authority
[Rijksluchtvaartdienst]/Government Gazette 1981, 33)) shall apply.

In view of the fact that, with respect to licensing policy, a great deal of importance is attached to strength-
ening the network of scheduled aviation connections, the question of whether the aviation policy/economic
basis of an important scheduled service is affected by the operation of the chartered flights in question will
play a significant role in the decision regarding whether to grant charter permission. If a charter air carrier
intends to carry out scheduled service operations, this carrier will first of all be required to arrange for the
operating permit and the Air Operator's Certificate to be amended accordingly by following the procedures
that exist for this purpose pursuant to Regulation (EEC) No 2407/92 and JAR-OPS.

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Route licence procedure

Aviation policy negotiations

During aviation policy negotiations, the interests of the national air carrier play a significant role. In current
practice it is often the case that negotiations regarding traffic rights take place on the basis of the interest in
new opportunities expressed by (one of) the air carriers. Consideration is already given in advance to the
question of whether the application submitted by the interested air carrier fits in with the policy principles
of the Licensing Policy Memorandum and whether the air carrier meets all requirements. Furthermore, other
interested parties are consulted and are given the opportunity to attend negotiations. If the result of the
negotiation is that only a limited number of air carriers may be designated to take advantage of the traffic
rights, in accordance with the policy principles of the Licensing Policy Memorandum, a designation order is
sent to the bilateral contact via the appropriate diplomatic channels. The current designation orders and
with them the assigned routes have to be maintained with due observance of the regulations and restrictions
imposed by the route licence.

As a result of the judgment given by the European Court of Justice, the interests of Community air carriers
established in the Netherlands shall also be taken into account. The procedure during the intervening period
between the date of aviation negotiations and such time as the aviation agreement is concluded must also
be transparent and non-discriminatory for non-national Community air carriers.

Procedure

The Community air carriers established in the Netherlands must submit an application in their own right in
order to be able to exercise rights they have acquired or routes that are no longer being used by another air
carrier and that have therefore become available. If an air carrier has submitted an application for a route
licence in writing, the DGTL shall first of all investigate whether the aviation relationship with regard to the
route in question provides the scope to grant such application.

The processing of an application for a route licence shall be subject to the normal procedural regulations
under Chapters 3, 4 and 6 of the General Administrative Law Act [Algemene wet bestuursrecht, Awb]. In
accordance with these regulations, a decision shall
in principle be taken within a reasonable period of
8 weeks following receipt of the application. In accordance with these regulations, the applicant shall, for
instance, be given the opportunity to supplement his or her application where necessary. The applicant shall
also be heard if the application is refused in full or in part. Pursuant to the Awb, interested third parties
shall also be given the opportunity to be heard if it is anticipated that they may object to the granting of the
application. Once a decision has been laid down, the various interested parties may also lodge an appeal
against this decision.

Under the new system, the route licence is valid for a period of 5 years. Unlike systems that have been used
in the past, there are no separate deadlines associated with the routes under the new system. The routes to
be operated and the associated number of flights are actually included in a list of routes to be operated in
practice that are to be determined by the Minister. The list, which is therefore drawn up in accordance with
the licence, shall apply for as long as the licence is in force. This list may be amended in accordance with
the regulations and restrictions imposed under the route licence. For instance, the list may be amended
pursuant to Article 3 of the route licence in the event that the permitted method of exercising the available
traffic rights is extended for the licence holder. The Minister shall also be permitted to amend the list if a
licence holder fails to operate a route for which it has been granted permission pursuant to the route licence
for a period of one year or more (use-it-or-lose-it principle).

Use-it-or-lose-it

The Article in the route licence that governs the option to withdraw those routes that have not been
operated for a period of more than one year shall remain in full force and shall be applied in a more active
manner in view of the potential increase in the number of applications in those locations where the number
of rights to be distributed is limited. For the purpose of switching to this more active approach, it has been
decided that the option to withdraw routes shall apply no earlier than one year from the date of issue of the
amended decision, principally in view of the fact that this regulation has been a dead letter in recent years.

If, after a period of one year has passed since permission to operate certain routes was granted, it emerges
that an air carrier has operated less than 80 % of the number of flights permitted during that year, the
Minister may withdrawn permission in respect of the route in question by means of removing said route
from the list of routes to be operated in practice. This shall be carried out with due observance of the policy
principles described below.

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For routes that are determined by order this year in accordance with the route licence, the licence holder
may only operate the routes within the context of rights, as laid down in aviation agreements on 22 August
2004.

In the case of the routes determined, the number of flights permitted shall be laid down in an administrative
system for the purpose of assessment. To this end, a list stating, amongst other things, the frequencies asso-
ciated with the allocated routes shall be drawn up in consultation with the Community carriers established
in the Netherlands.

If the air carrier is the only carrier designated under the aviation agreement and no more air carriers may be
designated (single designation), the total number of flights permitted on this route may be withdrawn. If
several air carriers have been or may be designated (multiple designation), withdrawal of permission in
respect of the unused part of the allocated flights shall be considered. However, in the event that the more
limited form of operation is not consistent with the aims in relation to the policy principles described below
that are used in assigning limited traffic rights, the withdrawal and making available for redistribution of all
allocated flights may also be considered in the event of multiple designation.

The Minister shall however not withdraw permission granted if the air carrier is able to demonstrate that its
failure to operate the total number of flights permitted is the result of special circumstances that could not
have been avoided even if all reasonable measures had been taken. This may also be understood to refer to a
situation such as a terrorist attack or SARS outbreak, however also necessary restrictions resulting from
considerations in relation to tactical negotiations or other matters related to aviation policy. It may also be
understood to refer to situations in which codeshare operations are severely limited by restrictive arrange-
ments.

With regard to the redistribution of routes that have been withdrawn, all Community air carriers established
in the Netherlands and therefore also the air carrier that was permitted to operate these routes until such
time as they were withdrawn, shall be eligible for the distribution procedure. To this end, the air carriers
must declare their interest in operating a specific route well in advance by submitting an application in
writing (no later than 3 months prior to the season in which the air carrier wishes to commence its flights
in the event that routes/frequencies become available). On the basis of the application and the availability of
rights, the DGTL shall then take a decision with due observance of the applicable administrative provisions.

The Minister may however decide not to withdraw a route despite failure to operate the total number of
flights permitted, for example if the air carrier that has been granted permission gives notices in good time
that it will increase the number of flights that it operates in the coming year so that the total number of
flights are used and if no other air carrier has expressed an interest in operating these flights.

Policy principles

The policy principles used by the DGTL in assessing whether an application to exercise traffic rights may be
granted are partly incorporated in the Licensing Policy Memorandum, partly in the general policy of the
Ministry of Transport, Public Works and Water Management [Verkeer en Waterstaat] and in the text of the
budget in accordance with the budget methodology “Van Beleidsbegroting Tot Beleidsverantwoording” (VBTB,
“From Budget to Balance Sheet”) (5). For the sake of clarity, the policy principles shall be briefly set out again
below. The DGTL shall consider the merits of each application in accordance with the policy principles and
with due observance of the policy implications of the judgment given by the European Court of Justice,
which is also cited below. As aviation agreements vary greatly, the weighting of the different principles will
also vary.

Aviation policy

One of the general policy aims of the Ministry of Transport, Public Works and Water Management is “to
provide for an effectively operating aviation system by contributing towards the development and stability of
a well-functioning aviation market” (6). In this context, the Netherlands contributes towards developing an
open and free transport market. The aim in negotiating aviation agreements shall therefore be to ensure that
these are as liberal as possible. Furthermore, for the purpose of achieving this aim, tactical aviation policy
considerations must be taken into account when carrying out negotiations in respect of, and the distribu-
tion, of traffic rights.

(5) Chapter XII of the 2003 National Budget, Lower House, session year 2002-2003, 28 600 XII, No 2.
(6) See footnote 5, Article 11.

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In view of the statements made previously in this memorandum within the context of provisions in respect
of nationality, the DGTL shall, in consultation with its bilateral contact, also make every effort to amend the
clause in the various aviation agreements in such a way that other Community air carriers are also able to
rely on the traffic rights granted via the applicable national procedures, provided that they are established in
the Netherlands. If the aviation policy contact adheres to the nationality clause,
it will be necessary to
examine how this should be handled and what the implications are in respect of traffic rights and the asso-
ciated decisions on these routes on a case by case basis.

The working method must be amended for the purpose of future negotiations in respect of aviation policy,
in order to ensure that the procedure is transparent and to guarantee equal access to the rights acquired.
This must be carried out with due observance of the regulations laid down in the “Regulation on the
negotiation and implementation of air service agreements between Member States and third countries”
(EC No 847/2004) (7). The negotiations shall be conducted on behalf of all Community air carriers, after
which, following conclusion of the negotiations, a notification shall be issued to all Community air carriers
established in the Netherlands, which may then submit an application in order to exercise the rights
acquired.

With regard to freight, the DGTL shall make every effort to establish a separate freight regime with its bilate-
ral partner, in order to ensure that the interests of carriers are represented as effectively as possible. If it is
not possible to arrange a separate freight regime, the DGTL shall, on the basis of the policy principles in this
memorandum and in the Licensing Policy Memorandum, assess how the rights acquired may be distributed
between passenger carriers and freight carriers on a case by case basis.

The process that takes place between the date of negotiations in respect of aviation policy and such time as
the rights acquired are exercised shall be subject to the applicable national and European rules on competi-
tion and relevant case law. With regard to codeshare, it shall in principle only be necessary for the govern-
ment to designate the operating carrier in respect of flights from, to, and via the Netherlands. Conversely,
some countries impose a requirement to the effect that the marketing carrier must also be designated under
the aviation agreement, and a licence is sometimes required in order to operate flights. In the case of single
designation, this may mean that there is no remaining scope to designate another Community air carrier
established in the Netherlands. In the case of multiple designation, this may mean that the number of flights
operated on behalf of the marketing carrier may lead to a limitation with regard to the remaining number
of flights under the aviation agreement. At the request of the marketing carrier, it shall be examined in such
cases whether this constitutes grounds for the Minister to issue a designation and/or permission in accord-
ance with the route licence.

For the existing codeshare operations that are already permitted pursuant to aviation agreements, the air
carriers shall retain their rights with due observance of the conditions and additional stipulations imposed
under the route licence.

If an air carrier has been granted permission to operate flights on certain routes and intends to convert a
direct service on this route into an indirect service via codeshare, it shall be required to inform the DGTL of
such intention. If it is necessary to conduct negotiations in respect of aviation policy in order to carry out
the above amendment to the type of service or for the purpose of new codeshare operations, and these
negotiations result in changes to the rights package, the DGTL shall reassess the manner in which the rights
are distributed in accordance with the policy principles.

Quality of networks

As stated in the Licensing Policy Memorandum, the effect on the network of airlinks from, to and via the
Netherlands plays an important role in assessing whether permission may be granted to an air carrier to
operate flights on a route outside of the European Community. For instance, the Memorandum proposes
that prospective scheduled service carriers should not be granted permission to operate routes in those cases
in which this is likely to infringe upon the primary routes of the existing worldwide network of flights
leaving from the Netherlands. This would serve to implement the policy to strengthen the network of
airlinks via the Netherlands. Within the context of the VBTB 2002-2006, the policy aim may be summarised
as follows: “in an open and competitive international transport market, to maintain and strengthen the link
between the Netherlands and the global aviation network” (8). The aim in this regard is for Schiphol to
continue to be one of the top four North-west European airports in terms of the quality of its network.

(7) See also the “Communication from the Commission on relations between the Community and third countries in the field

of air transport” (COM(2003) 94).

(8) See footnote 5, Article 11 of the National Budget for the Ministry of Transport, Public Works and Water Management.

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Whether a sufficient contribution is being made towards the quality of the network shall, amongst other
things, be assessed from the perspective of passengers who are embarking and disembarking on the one
hand, and passengers who are transferring to another flight (9) on the other hand. In the case of passengers
who are embarking and disembarking, this concerns the “quality of accessibility” of the Netherlands by air
(in this case Schiphol). In the case of passengers who are transferring to another flight, this also concerns
the “quality of transfer” in order to take a connecting flight via the Netherlands (in this case Schiphol).

The assessment criteria considered in assessing the quality of the network are focused on the type and
quality of the air services on offer. The DGTL bases this on the following information:

— a description of the air service (e.g. the intended route),

— the frequency of the air service and the capacity offered,

— the type and configuration of aircraft,

— direct or indirect connections,

— commencement of the air service,

— continuity of the air service,

— nature of the service (passengers, freight or other),

— accessibility of the air service for users,

— realisation of connections,

— degree of competition for the route.

Safety

The general policy aim of the DGTL is “to promote the safety of traffic and transport in the field of avia-
tion” (10). In this context, the air carrier is required to hold a valid Air Operator's Certificate (AOC). Flights
may only be operated within the limits imposed by this AOC and with due observance of the applicable
national and international safety requirements.

Whether or not an operating permit required in respect of a route licence and charter permission will be
granted or is valid shall at all times depend on whether the carrier holds an AOC specifying the activities
that fall under the operating permit (Article 9, Regulation (EEC) No 2407/92).

Environment

The general policy principle in the context of the environment is “to realise and maintain the sustainable
development of aviation” (11). The noise and emission characteristics of the aircraft to be used in order to
operate a specific route may play a role in this respect.

Business location

Under Article 43 of the EC Treaty, it is not permitted to impose restrictions on the freedom of establishment
of citizens (or companies, see Article 48 EC) as well as restrictions with regard to the establishment of agen-
cies, branches or subsidiaries by the citizens of a Member State.

Article 43 enables citizens/companies in a Member State to engage in activities in another Member State in
accordance with the national legislation that applies to citizens in the country in which the citizen/company
is established. The European Court is of the opinion that a carrier established in a Member State should be
treated in the same manner as the national carriers in this Member State. The national ownership and
control required under aviation agreements constitutes an infringement of the freedom of establishment.

The general rule and relevant case law of the Court of Appeals show that the European requirements with
regard to establishment come down to the actual and effective realisation of activities in the field of aviation
with a view to doing so on a long-term basis, whereby the legal form of the company shall not be regarded
as the decisive factor. This is also stated under ground 10 of the “Regulation on the negotiation and imple-
mentation of air service agreements between Member States and third countries” (EC No 847/2004).

(9) Where the text reads “passengers who are embarking and disembarking” this also refers to “shippers who are importing or
exporting cargo”. Where the text reads “passengers who are transferring to another flight” this also refers to “shippers who
are conveying goods in transit”.

(10) See footnote 5, Article 9 of the National Budget for the Ministry of Transport, Public Works and Water Management.
(11) See footnote 5, Article 12 of the National Budget for the Ministry of Transport, Public Works and Water Management.

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If a Community air carrier wishes to assert its air traffic rights acquired via the Netherlands in bilateral nego-
tiations, the DGTL will check whether it is actually established in the Netherlands. The criteria originating
from case law of the European Court relating to actual integration in the national economy and permanent
presence in the Netherlands shall be used as a touchstone in this regard. Moreover, a Community air carrier
that establishes its registered offices in the Netherlands must comply with the Dutch regulations that apply
to Dutch air carriers, including the requirement to hold a permit under Article 16, 16a, and 16b of the Avia-
tion Act, which is predominantly based on the requirements of Regulation (EEC) No 2407/92.

It is basically the case that EU carriers originating from other Member States must not be subject to
restrictions imposed under the conditions of an AOC, as the original license issued by the country of origin
must be recognised on the basis of the harmonised principles of Regulation (EEC) No 2407/92. In this
respect, it must be taken into account that the current safety requirements have not been fully harmonised.
This may constitute grounds for the safety requirements to be governed by national law in the meantime (12).
Article 16a, paragraph 4, provides points of departure for this purpose, which specify that the Minister may
revoke a licence that falls under Regulation (EEC) No 2407/92 as a result of the operation of flights contrary
to provisions imposed by or pursuant to this Act or due to failure to comply with provisions associated with
the licence.

Ground 10 cited above also states that a carrier that has registered offices in several Member States must
observe requirements arising from national law, providing that this is in accordance with European law.
Therefore outside of the regulations under the Aviation Act, national regulations for instance in the field of
employment law and consumer law shall also apply, provided that this takes place in a non-discriminatory
manner.

Ownership and control

The European Court has concluded that any stipulations in respect of nationality under aviation agreements
that state that not all Community air carriers established in the country in question are eligible for the
traffic rights acquired, constitutes an infringement of the right of establishment.

The requirement imposed by the route licence to the effect that the majority ownership and the actual
control of the carrier must be and remain in Dutch hands shall be replaced. On the basis of Article 4, para-
graph 2 of Council Regulation (EEC) No 2407/92 (13), the requirement shall be formulated in such a way
that the air carrier must be a Community air carrier established in the Netherlands. On the basis of Regu-
lation (EEC) No 2407/92, a Community air carrier must currently qualify as an air carrier of which the
majority interest and actual control is in the hands of one or more Member States of the European Union
and/or the citizens of Member States. In accordance with the above-mentioned regulation, it may be demon-
strated whether a carrier is a Community air carrier by means of an operating permit. Carriers shall there-
fore be required to hold an operating permit pursuant to Regulation (EEC) No 2407/92.

De staatssecretaris van Verkeer en Waterstaat,
namens deze,
de waarnemend directeur-generaal Luchtvaart,

J. Tammenoms Bakker’

(12) See the statements issued by the Transport Council on 5 June 2003 on external relations.
(13) Council Regulation (EEC) No 2407/92 of 23 July 1992 on the licensing of air carriers (OJ L 240, 24.8.1992, p. 1).