Agreement between the European Community and the Government of Australia on certain aspects of air services
Date: 2008-04-29
Institutions: Australia, European Community
Subjects: Australia, agreement (EU), air transport

7.6.2008

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Official Journal of the European Union

L 149/65

between the European Community and the Government of Australia on certain aspects of air
services

AGREEMENT

THE EUROPEAN COMMUNITY,

of the one part, and

THE GOVERNMENT OF AUSTRALIA,

of the other part,

hereinafter referred to as ‘the Contracting Parties’,

NOTING that the European Court of Justice has found that certain provisions of bilateral agreements entered into by
several Member States with third countries are incompatible with European Community law,

NOTING that a number of bilateral air services agreements have been concluded between several Member States of the
European Community and Australia containing similar provisions and that there is an obligation on Member States to
take all appropriate steps to eliminate incompatibilities between such agreements and the EC Treaty,

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

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

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

RECOGNISING that consistency between European Community law and provisions of bilateral air service agreements
between Member States of the European Community and Australia will provide a sound legal basis for air services
between the European Community and Australia and preserve the continuity of such air services,

NOTING that provisions of the bilateral air services agreements between Member States of the European Community and
Australia, which are not inconsistent with European Community law, do not need to be amended or replaced,

NOTING that it is not a purpose of the European Community in this Agreement to increase the total volume of air traffic
between the European Community and Australia, to affect the balance between Community air carriers and air carriers of
Australia, or to prevail over the interpretation of the provisions of existing bilateral air service agreements concerning
traffic rights,

HAVE AGREED AS FOLLOWS:

Article 1

General provisions

For the purposes of this Agreement, ‘Member States’ shall
1.
mean Member States of the European Community; ‘Contracting
Party’ shall mean a contracting party to this Agreement; ‘party’
shall mean the contracting party to the relevant bilateral air
carrier’
services
also mean airline;
‘territory of the European Community’ shall mean territories
of
the Member States to which the Treaty establishing the
European Community applies.

agreement;

shall

‘air

2.
References in each of the Agreements listed in Annex I to
nationals of the Member State that is a party to that Agreement
shall be understood as referring to nationals of the Member
States of the European Community.

3.
References in each of the Agreements listed in Annex I to
air carriers or airlines of the Member State that is a party to that
Agreement shall be understood as referring to air carriers or
airlines designated by that Member State.

Article 2

Designation, authorisation and revocation

1.
The provisions in paragraphs 3 and 4 of this Article shall
prevail over the corresponding provisions in the Articles listed
in Annex II(a) and (b) respectively, in relation to the designation
of air carriers by the Member State concerned, its authorisations
and permissions granted by Australia, and the refusal, revo-
cation,
the authorisations or
limitation of
permissions of the air carrier, respectively.

suspension or

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The provisions in paragraphs 3 and 4 of this Article shall
2.
prevail over the corresponding provisions in the Articles listed
in Annex II(a) and (b) respectively, in relation to the designation
of air carriers by Australia, its authorisations and permissions
granted by the Member State concerned, and the refusal, revo-
cation,
the authorisations or
limitation of
permissions of the air carrier, respectively.

suspension or

On receipt of such a designation, and of applications from
3.
the designated air carrier(s), in the form and manner prescribed
for operating authorisations and technical permissions, each
party shall, subject to paragraphs 4 and 5 grant the appropriate
authorisations and permissions with minimum procedural delay,
provided that:

(a)

in the case of an air carrier designated by a Member State:

(i) the air carrier is not established, under the Treaty estab-
lishing the European Community, in the territory of the
designating Member State or does not have a valid
operating licence from a Member State in accordance
with European Community law; or

(ii) effective regulatory control of

the air carrier is not
exercised or not maintained by the Member State
responsible for issuing its air operator’s certificate, or
the relevant aeronautical authority is not clearly iden-
tified in the designation; or

(iii) the air carrier does not have its principal place of
the Member State from

business in the territory of
which it has received its operating licence; or

(i) the air carrier is established, under the Treaty estab-
lishing the European Community,
in the territory of
valid
the designating Member State
and has
operating licence from a Member State in accordance
with European Community law; and

a

(iv) the air carrier is not owned directly or through majority
ownership and is not effectively controlled by Member
States and/or nationals of Member States, and/or by
other States listed in Annex III and/or nationals of
such other States; or

(ii) effective regulatory control of the air carrier is exercised
and maintained by the Member State responsible for
issuing its air operator’s certificate and the relevant
aeronautical authority is clearly identified in the desig-
nation; and

(iii) the air carrier has its principal place of business in the
the Member State from which it has

territory of
received the valid operating licence; and

(iv) the air carrier is owned directly or through majority
ownership and is effectively controlled by Member
States and/or nationals of Member States, and/or by
other States listed in Annex III and/or nationals of
such other States;

(v) the air carrier is already authorised to operate under a
bilateral agreement between Australia and another
Member State and Australia can demonstrate that, by
exercising traffic rights under this Agreement on a route
it
that includes a point in that other Member State,
would be circumventing restrictions on the third or
fourth or fifth freedom traffic rights imposed by that
other agreement; or

(vi) the air carrier holds an air operator’s certificate issued
by a Member State and there is no bilateral air services
agreement between Australia and that Member State
and Australia can demonstrate that
the necessary
traffic rights to conduct the proposed operation are
not
air
reciprocally
carrier(s) of Australia;

designated

available

to the

(b) in the case of an air carrier designated by Australia:

(b) in the case of an air carrier designated by Australia:

(i) Australia has and maintains effective regulatory control

of the air carrier; and

(i) Australia is not maintaining effective regulatory control

of the air carrier; or

(ii) it has its principal place of business in Australia.

Either party may refuse, revoke, suspend or limit

4.
operating authorisation or
carrier designated by the other party where:

the
technical permissions of an air

(a)

in the case of an air carrier designated by a Member State:

(ii) it does not have its principal place of business in

Australia.

5.
In exercising its right under paragraph 4, and without
prejudice to its rights under paragraph 4(a)(v) and (vi) of this
Article, Australia shall not discriminate between air carriers of
Member States on the grounds of nationality.

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Article 3

Rights with regard to regulatory control

Article 7

Entry into force

The provisions

1.
complement the Articles listed in Annex II(c).

in paragraph 2 of

this Article shall

2. Where a Member State (the first Member State) has
designated an air carrier whose regulatory control is exercised
the rights of
and maintained by a second Member State,
Australia under
agreement
between the first Member State that has designated the air
carrier and Australia shall apply equally in respect of
the
adoption, exercise or maintenance of safety standards by that
second Member State and in respect of the operating authorisa-
tion of that air carrier.

safety provisions of

the

the

Article 4

Tariffs for carriage within the European Community

The provisions

1.
complement the Articles listed in Annex II(d).

in paragraph 2 of

this Article shall

2.
The tariffs to be charged by the air carrier(s) designated by
Australia under an Agreement listed in Annex I containing a
provision listed in Annex II(d) for carriage wholly within the
European Community shall be subject to European Community
law.

Article 5

Annexes to the Agreement

The Annexes to this Agreement shall
thereof.

form an integral part

Article 6

Revision or amendment

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

1.
This Agreement shall enter in force when the Contracting
Parties have notified each other in writing that their respective
internal procedures necessary for its entry into force have been
completed.

Notwithstanding paragraph 1,

2.
the Contracting Parties
agree to provisionally apply this Agreement from the first day
of the month following the date on which the Contracting
Parties have notified each other of
the
procedures necessary for this purpose.

the completion of

3.
Agreements and other arrangements between Member
States and Australia which, at the date of signature of this
Agreement, have not yet entered into force and are not being
applied provisionally are listed in Annex I(b). This Agreement
shall apply to all such Agreements and arrangements upon their
entry into force or provisional application.

Article 8

Termination

In the event

that an Agreement

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

listed in Annex I

2.
In the event that all Agreements listed in Annex I are
terminated, this Agreement shall terminate at the same time.

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

Done at Brussels in duplicate, on this twenty-ninth day of April
in the year two thousand and eight in the Bulgarian, Czech,
Danish, Dutch, English, Estonian, Finnish, French, German,
Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish,
Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish
languages. In case of divergence the English text shall prevail
over the other language texts.

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За Европейската общност
Por la Comunidad Europea
Za Evropské společenství
For Det Europæiske Fællesskab
Für die Europäische Gemeinschaft
Euroopa Ühenduse nimel
Για την Ευρωπαϊκή Κοινότητα
For the European Community
Pour la Communauté européenne
Per la Comunità europea
Eiropas Kopienas vārdā
Europos bendrijos vardu
Az Európai Közösség részéről
Għall-Komunità Ewropea
Voor de Europese Gemeenschap
W imieniu Wspólnoty Europejskiej
Pela Comunidade Europeia
Pentru Comunitatea Europeană
Za Európske spoločenstvo
Za Evropsko skupnost
Euroopan yhteisön puolesta
För Europeiska gemenskapen

За правителството на Австралия
Por el Gobierno de Australia
Za vládu Austrálie
For Australiens regering
Für die Regierung Australiens
Austraalia valitsuse nimel
Για την Κυβέρνηση της Αυστραλίας
For the Government of Australia
Pour le gouvernement d'Australie
Per il governo d'Australia
Austrālijas valdības vārdā
Australijos Vyriausybės vardu
Ausztrália kormánya részéről
Għall-Gvern ta' l-Awstralja
Voor de Regering van Australië
W imieniu Rządu Australii
Pelo Governo da Austrália
Pentru Guvernul Australiei
Za vládu Austrálie
Za vlado Avstralije
Australian hallituksen puolesta
För Australiens regering

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ANNEX I

List of Agreements referred to in Article 1 of this Agreement

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

— Agreement between the Austrian Federal Government and the Government of the Commonwealth of Australia
relating to Air Services, done at Vienna on 22 March 1967 (hereinafter referred to as ‘Australia-Austria
Agreement’).

Supplemented by the Memorandum of Understanding signed at Vienna on 25 March 1999,

— Air Services Agreement between the Government of the Kingdom of Denmark and the Government of Australia,
initialled at Canberra on 16 October 1998 (hereinafter referred to as ‘Draft Australia-Denmark Agreement’).

Supplemented by the Memorandum of Understanding on the cooperation between the Scandinavian countries
regarding Scandinavian Airlines System (SAS) initialled at Canberra on 16 October 1998.

Supplemented by the Agreed Minutes dated 16 October 1998,

— Agreement between the Government of the Republic of Finland and the Government of the Commonwealth of
Australia relating to Air Services, initialled on 15 June 1999 (hereinafter referred to as ‘Draft Australia-Finland
Agreement’).

Supplemented by the Memorandum of Understanding signed at Helsinki on 15 June 1999,

— Agreement between the Government of the Commonwealth of Australia and the Government of the French
Republic and relating to Air Transport, done at Canberra on 13 April 1965 (hereinafter referred to as ‘Australia-
France Agreement’).

Modified by Exchange of Letters signed in Paris on 22 December 1970 and 7 January 1971,

— Agreement between the Federal Republic of Germany and the Commonwealth of Australia relating to Air

Transport, done at Bonn on 22 May 1957 (hereinafter referred to as ‘Australia-Germany Agreement’).

To be read together with the Memorandum of Understanding signed at Canberra on 12 June 1998 and the
exchange of letters dated 17 September 1998 and 5 November 1998,

— Agreement between the Government of the Kingdom of Greece and the Government of the Commonwealth of
Australia relating to Air Services, done at Athens on 10 June 1971, as amended (hereinafter referred to as
‘Australia-Greece Agreement’),

— Agreement between the Government of the Hellenic Republic and the Government of Australia relating to Air
Services, initialled at Athens on 11 November 1997 and attached to the Memorandum of Understanding signed
at Athens on 11 November 1997 (hereinafter referred to as ‘Draft Revised Australia-Greece Agreement’),

— Air Transport Agreement between Ireland and Australia concluded by exchange of notes dated 26 November

1957 and 30 December 1957 (hereinafter referred to as ‘Australia-Ireland Agreement’),

— Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of
Italy relating to Air Services, done at Rome on 10 November 1960 as amended (hereinafter referred to as
‘Australia-Italy Agreement’),

— Agreement between the Government of Australia and the Government of the Grand Duchy of Luxembourg on
Air Services as annexed to the Memorandum of Understanding, done at Luxembourg on 3 September 1997
(hereinafter referred to as ‘Draft Australia-Luxembourg Agreement’),

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— Agreement between the Government of Malta and the Government of Australia relating to Air Services, done at

Canberra on 11 September 1996 (hereinafter referred to as ‘Australia-Malta Agreement’).

Supplemented by exchange of letters on 1 December 2003,

— Agreement between the Government of the Kingdom of the Netherlands and the Government of the Common-
wealth of Australia for the establishment of air services, done at Canberra on 25 September 1951 (hereinafter
referred to as ‘Australia-Netherlands Agreement’),

— Agreement between the Government of the Republic of Poland and the Government of Australia relating to Air

Services, done in Warsaw on 28 April 2004 (hereinafter referred to as ‘Australia-Poland Agreement’),

— Air Services Agreement between the Government of the Kingdom of Sweden and the Government of Australia,
initialled at Canberra on 16 October 1998 (hereinafter referred to as ‘Draft Australia-Sweden Agreement’).

Supplemented by the Memorandum of Understanding on the cooperation between the Scandinavian countries
regarding Scandinavian Airlines System (SAS) initialled at Canberra on 16 October 1998.

Supplemented by the Agreed Minutes dated 16 October 1998,

— Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the Commonwealth of Australia for Air Services between and beyond their respective territories,
done at London on 7 February 1958 as amended (hereinafter referred to as ‘Australia-United Kingdom
Agreement’);

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

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ANNEX II

List of Articles in the Agreements listed in Annex I and referred to in Articles 2 to 5 of this Agreement

(a) Designation:

— Article 4 of the Australia-Austria Agreement (*),

— Article 3 of the Draft Australia-Denmark Agreement,

— Article 3 of the Australia-Germany Agreement (*),

— Article 4 of the Australia-Greece Agreement (*),

— Article 4 of the Draft Australia-Greece Agreement (*),

— Article 3 of the Draft Australia-Luxembourg Agreement (*),

— Article 4 of the Australia-Ireland Agreement (*),

— Article 4 of the Australia-Italy Agreement (*),

— Article 4 of the Australia-Malta Agreement (*),

— Article 3 of the Australia-Netherlands Agreement (*),

— Article 2 of the Australia-Poland Agreement,

— Article 3 of the Draft Australia-Sweden Agreement,

— Article 3 of the Australia-United Kingdom Agreement.

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

— Article 7 of the Australia-Austria Agreement (*),

— Article 4 of the Draft Australia-Denmark Agreement,

— Article 5 of the Draft Australia-Finland Agreement,

— Article 8 of the Australia-France Agreement (*),

— Article 4 of the Australia-Germany Agreement (*),

— Article 5 of the Australia-Greece Agreement (*),

— Article 5 of the Draft Australia-Greece Agreement (*),

— Article 7 of the Australia-Ireland Agreement (*),

— Article 5 of the Australia-Italy Agreement (*),

— Article 4 of the Draft Australia-Luxembourg Agreement (*),

— Article 5 of the Australia-Malta Agreement (*),

— Article 6 of the Australia-Netherlands Agreement (*),

(*) Article 2(2) of this Agreement does not apply to these provisions.

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— Article 2 of the Australia-Poland Agreement,

— Article 4 of the Draft Australia-Sweden Agreement,

— Article 3 of the Australia-United Kingdom Agreement.

(c) Regulatory control:

— Attachment 4 to the Memorandum of Understanding between aeronautical authorities of the Government of
Australia and the Government of Austria, signed on 25 March 1999 — as applied provisionally in the framework
of the Australia-Austria Agreement,

— Article 17 of the Draft Australia-Denmark Agreement,

— Article 8 of the Draft Australia-Finland Agreement,

— Attachment C to the Memorandum of Understanding between the aeronautical authorities of the Government of
Australia and the Government of the Federal Republic of Germany, signed at Canberra on 12 June 1998 — as
applied provisionally in the framework of the Australia-Germany Agreement,

— Article 8 of the Draft Australia-Greece Agreement,

— Article 7 of the Draft Australia-Luxembourg Agreement,

— Article 8 of the Australia-Malta Agreement,

— Attachment C to the Memorandum of Understanding between the aeronautical authorities of the Government of
Australia and the Government of the Kingdom of the Netherlands, signed at The Hague on 4 September 1997 —
as applied provisionally in the framework of the Australia-Netherlands Agreement,

— Article 5 of the Australia-Poland Agreement,

— Article 17 of the Draft Australia-Sweden Agreement;

(d) Tariffs for carriage within the European Community:

— Article 9 of the Australia-Austria Agreement,

— Article 13 of the Draft Australia-Denmark Agreement,

— Article 14 of the Draft Australia-Finland Agreement,

— Article10 of the Australia-France Agreement,

— Attachment E to the Memorandum of Understanding between the aeronautical authorities of the Government of
Australia and the Government of the Federal Republic of Germany, signed at Canberra on 12 June 1998 in
conjunction with the exchange of letters dated 17 September 1998 and 5 November 1998 — as applied
provisionally in the framework of the Australia-Germany Agreement,

— Article 9 of the Australia-Greece Agreement,

— Article 14 of the Draft Australia-Greece Agreement,

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— Article 9 of the Australia-Ireland Agreement,

— Article 9 of the Australia-Italy Agreement,

— Article 11 of the Draft Australia-Luxembourg Agreement,

— Article 14 of the Australia-Malta Agreement,

— Section IV of the Annex to the Australia-Netherlands Agreement,

— Article 10 of the Australia-Poland Agreement,

— Article 13 of the Draft Australia-Sweden Agreement,

— Article 7 of the Australia-United Kingdom Agreement.

ANNEX III

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

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

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

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

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

Air Transport).