Common Position (EC) No 22/2008 of 23 June 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council on airport charges (Text with EEA relevance)
Date: 2008-06-23
Institutions: Council of the European Union
Subjects: airport, charges for use of infrastructure, common transport policy, management, quasi-fiscal charge, transport regulations, transport user

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COMMON POSITION (EC) No 22/2008

adopted by the Council on 23 June 2008

with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council
of … on airport charges

(Text with EEA relevance)

(2008/C 254 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

(4)

(5)

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

(6)

Whereas:

In order to promote territorial cohesion, Member States
should have the possibility to apply a common charging
system to cover an airport network. Economic transfers
between airports in such networks should comply with
Community law.

For reasons of traffic distribution Member States should
be able to allow an airport managing body for airports
serving the same city or conurbation to apply the same
level of airport charges. Economic transfers between
these airports should comply with relevant Community
law.

for

Incentives
to
starting up new routes,
promote, inter alia, the development of disadvantaged and
outermost regions should only be granted in accordance
with Community law.

such as

(1)

(2)

(3)

transport

services. For

The main task and commercial activity of airports is to
ensure the handling of aircraft, from landing to take-off,
and of passengers and cargo, so as to enable air carriers
this purpose,
to provide air
airports offer a number of facilities and services related
to the operation of aircraft and the processing of passen-
gers and cargo, the cost of which they generally recover
charges. Airport managing bodies
through airport
providing facilities and services for which airport charges
are levied should endeavour to operate on a cost efficient
basis.

It is necessary to establish a common framework regu-
lating the essential features of airport charges and the
way they are set, as in the absence of such a framework,
basic requirements in the relationship between airport
managing bodies and airport users may not be met. Such
a framework should be without prejudice to the possibi-
lity for a Member State to determine the extent to which
revenues from an airport's commercial activities may be
taken into account in establishing airport charges.

This Directive should apply to airports located in the
Community that are above a minimum size as the
management and the funding of small airports do not
call for the application of a Community framework, and
to the airport with the highest passenger movement in
each Member State.

(1) OJ C 10, 15.1.2008, p. 35.
(2) OJ C 305, 15.12.2007, p. 11.
(3) Opinion of the European Parliament of 15 January 2008 (not yet
published in the Official Journal), Council Common Position of 23 June
2008 and Position of the European Parliament of … (not yet published
in the Official Journal).

(7)

(8)

(9)

The collection of charges with respect to the provision of
air navigation services and groundhandling services has
already been addressed by Commission Regulation
(EC) No 1794/2006 of 6 December 2006 laying down a
common charging scheme for air navigation services (4)
and Council Directive 96/67/EC of 15 October 1996 on
access to the groundhandling market at Community
airports (5)
the
funding of assistance to disabled passengers and passen-
gers with reduced mobility are governed by Regulation
(EC) No 1107/2006 of the European Parliament and of
the Council of 5 July 2006 concerning the rights of
disabled persons and persons with reduced mobility
when travelling by air (6).

respectively. The

levied for

charges

The Council of the International Civil Aviation Organiza-
tion (the ICAO Council)
in 2004 adopted policies on
airport charges that included, inter alia, the principles of
cost-relatedness, non-discrimination and an independent
mechanism for economic regulation of airports.

The ICAO Council has considered that an airport charge
is a levy that
is designed and applied specifically to
recover the cost of providing facilities and services for
civil aviation, while a tax is a levy that is designed to
raise national or local government revenues which are
generally not applied to civil aviation in their entirety or
on a cost-specific basis.

(4) OJ L 341, 7.12.2006, p. 3.
(5) OJ L 272, 25.10.1996, p. 36.
(6) OJ L 204, 26.7.2006, p. 1.

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(10) Airport charges should be non-discriminatory. A compul-
sory procedure for regular consultation between airport
managing bodies and airport users should be put in place
with the possibility for either party to have recourse to
an independent supervisory body whenever a decision on
airport charges or
the charging
system is contested by airport users.

the modification of

(11)

(12)

In order to ensure impartial decisions and the proper and
effective application of
this Directive, an independent
supervisory body should be established in every Member
State. The body should be in possession of all the neces-
sary resources in terms of staffing, expertise, and finan-
cial means for the performance of its tasks.

It is vital for airport users to obtain from the airport
managing body, on a regular basis, information on how
and on what basis airport charges are calculated. Such
transparency would provide air carriers with an insight
into the costs incurred by the airport and the produc-
tivity of an airport's investments. To allow an airport
managing body to properly assess the requirements with
regard to future investments, the airport users should be
required to share all their operational forecasts, develop-
ment projects and specific demands and suggestions with
the airport managing body on a timely basis.

(13) Airport managing bodies should inform airport users
about major
infrastructure projects as these have a
significant impact on the system or the level of airport
charges. Such information should be provided in order to
make monitoring of
infrastructure costs possible and
with a view to providing suitable and cost-effective
facilities at the airport concerned.

charges

corresponding to the

(14) Airport managing bodies should be enabled to apply
airport
infrastructure
and/or the level of service provided as air carriers have a
legitimate interest
to require services from an airport
managing body that correspond to the price/quality ratio.
However, access to a differentiated level of infrastructure
or services should be open to all carriers that wish to
avail of them on a non-discriminatory basis. If demand
exceeds supply, access should be determined on the basis
of objective and non-discriminatory criteria to be devel-
oped by an airport managing body. Any differentiation in
airport charges should be transparent, objective and
based on clear criteria.

level

in place at national

the Member States as systems of airport charges can not
be put
in a uniform way
throughout the Community and can therefore, by reason
of its scale and effects, 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 propor-
tionality, as set out in that Article, this Directive does not
go beyond what is necessary in order to achieve that
objective,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

This Directive sets common principles for the levying of

1.
airport charges at Community airports.

2.
This Directive shall apply to any airport located in a terri-
tory subject to the Treaty and open to commercial traffic whose
annual traffic is over 5 million passenger movements and to the
airport with the highest passenger movement in each Member
State.

3. Member States shall publish a list of the airports on their
territory to which this Directive applies. This list shall be based
on data from the Commission (EUROSTAT) and shall be
updated annually.

This Directive shall not apply to the charges collected for
4.
the remuneration of en-route and terminal air navigation
services in accordance with Regulation (EC) No 1794/2006, or
to the charges collected for the remuneration of groundhandling
services referred to in the Annex to Directive 96/67/EC, or to
the charges levied for the funding of assistance to disabled
passengers and passengers with reduced mobility referred to in
Regulation (EC) No 1107/2006.

This Directive shall be without prejudice to the right of
5.
each Member State to apply additional regulatory measures that
are not incompatible with this Directive or other relevant provi-
sions of Community law with regard to any airport managing
body located in its territory. This may include economic over-
sight measures, such as the approval of charging systems and/or
the level of charges including incentive-based charging methods
or price cap regulation.

(15) Airport users and the airport managing body should be
able to conclude a service level agreement with regard to
the quality of service provided in return for airport
charges. Negotiations on the quality of service provided
in return for airport charges could take place as part of
the regular consultation.

Article 2

Definitions

(16)

This Directive should be without prejudice to the Treaty,
in particular Articles 81 to 89 thereof.

(17)

Since the objective of
this Directive, namely to set
common principles for the levying of airport charges at
Community airports, cannot be sufficiently achieved by

For the purposes of this Directive:

1) ‘airport’ means any land area specifically adapted for the
landing, taking-off and manoeuvring of aircraft,
including
the ancillary installations which these operations may
involve for the requirements of aircraft traffic and services
including the installations needed to assist commercial air
services;

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2) ‘airport managing body’ means a body which, in conjunction
with other activities or not as the case may be, has as its
objective under national
laws, regulations or contracts the
administration and management of the airport or airport
network infrastructures and the coordination and control of
the activities of the different operators present in the airports
or airport network concerned;

3) ‘airport user’ means any natural or legal person responsible
for the carriage of passengers, mail and/or freight by air to
or from the airport concerned;

4) ‘airport charge’ means a levy collected for the benefit of the
airport managing body and paid by the airport users for the
use of facilities and services, which are exclusively provided
by the airport managing body and which are related to
landing, take-off, lighting and parking of aircraft, and proces-
sing of passengers and freight;

5) ‘airport network’ means a group of airports duly designated
as such by the Member State and operated by the same
airport managing body.

Article 3

Non-discrimination

Member States shall ensure that airport charges do not discrimi-
nate among airport users, in accordance with Community law.
This does not prevent the modulation of airport charges for
including environmental
issues of public and general
issues. The criteria used for such a modulation shall be relevant,
objective and transparent.

interest,

Article 4

Airport network

1. Member States may allow the airport managing body of
an airport network to introduce a common and transparent
airport charging system to cover the airport network.

2. Member States may allow an airport managing body for
airports serving the same city or conurbation, to apply the same
level of airport charges to all the airports concerned, provided
that each airport fully complies with the requirements on trans-
parency set out in Article 6.

Member States shall retain the right to request more frequent
consultations.

2. Member States
shall ensure that, wherever possible,
changes to the system or the level of airport charges are made
in agreement between the airport managing body and the
airport users. To that end, the airport managing body shall
to modify the system or the level of
submit any proposal
airport charges to the airport users no later than four months
before they enter into force, together with the reasons for the
proposed changes, unless there are exceptional circumstances
which need to be justified to airport users, in which case, this
period shall not be less than two months. The airport managing
body shall hold consultations on the proposed changes with the
airport users and take their views into account before a decision
is taken. The airport managing body shall publish its decision or
recommendation within reasonable time before it enters into
force. The airport managing body shall justify its decision with
regard to the views of the airport users in the event that no
agreement on the proposed changes is reached between the
airport managing body and the airport users.

3. Member States
in the event of a
shall ensure that
disagreement over a decision on airport charges taken by the
airport managing body, either party may seek the intervention
of the independent supervisory body referred to in Article 10
which shall examine the justifications for the modification of
the system or the level of airport charges.

A modification of

the system or the level of airport
4.
if
charges decided upon by the airport managing body shall,
brought before the independent supervisory body, not
take
effect until that body has examined the matter. The independent
supervisory body may take an interim decision on the entry
into force of the modification of airport charges.

5.
A Member State may decide not to apply paragraphs 3
and 4 in relation to the changes to the system or the level of
airport charges at those airports for which it has established a
procedure, whereby there is economic oversight. The economic
oversight measures may be the same as those referred to in
Article 1(5). Where these measures include approval of
the
system or the level of airport charges, they must be approved
by the same body that has been nominated or established as an
independent supervisory body for the purposes of this Direc-
tive.

Article 5

Consultation and remedy

Article 6

Transparency

1. Member States shall ensure that a compulsory procedure
for regular consultation between the airport managing body and
airport users or the representatives or associations of airport
users is established with respect to the operation of the system
of airport charges, the level of airport charges and, as appro-
priate, the quality of service provided. Such consultation shall
take place at least once a year, unless agreed otherwise in the
latest consultation. Where a multi-annual agreement between
the airport managing body and the airport users exists, the
consultations shall take place as foreseen in such agreement.

1. Member States shall ensure that
the airport managing
body provides each airport user, or the representatives or asso-
ciations of airport users, every time consultations referred to in
Article 5(1) are to be held with information on the components
serving as a basis for determining the system or the level of all
charges levied at each airport by the airport managing body.
The information shall include at least:

(a) a list of the various services and infrastructure provided in

return for the airport charge levied;

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(b) the methodology used for setting airport charges;

(c) the overall cost structure with regard to the facilities and

services which airport charges relate to;

(d) the revenue of the different charges and the total cost of the

services covered by them;

(e) forecasts of

the situation at

the airport as regards the

charges, traffic growth and proposed investments;

(f) the actual use of airport infrastructure and equipment over a

given period.

2. Member States shall ensure that airport users submit infor-
mation to the airport managing body before every consultation,
as provided for in Article 5(1), concerning in particular:

(a) forecasts as regards traffic;

(b) forecasts as to the composition and envisaged use of their

fleet;

(c) their development projects at the airport concerned;

(d) their requirements at the airport concerned.

Subject to national

3.
legislation, the information provided
on the basis of this Article shall be considered as confidential or
economically sensitive and handled accordingly. In the case of
airport managing bodies that are quoted on the stock exchange,
stock exchange regulations in particular shall be complied with.

Article 7

New infrastructure

Member States shall ensure that the airport managing body
consults with airport users before plans for new infrastructure
projects are finalised.

Article 8

Quality standards

In order to ensure smooth and efficient operations at an
1.
airport, Member States shall take the necessary measures to
allow the airport managing body and the representatives or
associations of airport users at the airport to enter into negotia-
tions with a view to concluding a service level agreement with
regard to the quality of service provided at the airport. These
negotiations on service quality may take place as part of the
consultations referred to in Article 5(1).

Any such service level agreement shall determine the level
2.
of the service to be provided by the airport managing body
which takes into account the actual system or the level of
airport charges and the level of service to which airport users
are entitled in return for airport charges.

Article 9

Tailored services

ticular airport services, terminals or parts of terminals, with the
aim of providing tailored services or a dedicated terminal or
part of a terminal. The system or the level of airport charges
may be differentiated according to the quality and scope of such
services and their costs or any other objective justification.
Airport managing bodies shall remain free to set any such differ-
entiated airport charges.

2. Member States shall take the necessary measures to allow
any airport user wishing to use the tailored services or dedicated
terminal or part of a terminal, to have access to these services
and terminal or part of a terminal.

In the event that more airport users wish to have access to the
tailored services and/or a dedicated terminal or part of a
terminal than is possible due to capacity constraints, access shall
be determined on the basis of relevant, objective, transparent
and non-discriminatory criteria. These criteria may be set by the
airport managing body and Member States may require these
criteria to be endorsed by the independent supervisory body.

Article 10

Independent supervisory body

1. Member States shall nominate or establish an independent
body as their national independent supervisory body in order to
ensure the correct application of the measures taken to comply
with this Directive and to assume, at least, the tasks assigned
under Article 5. Such body may be the same as the entity
entrusted by a Member State with the application of the addi-
tional regulatory measures referred to in Article 1(5), including
with the approval of the charging system and/or the level of
airport charges, provided that it meets the requirements of para-
graph 2 of this Article.

it

2. Member States shall guarantee the independence of the
independent supervisory body by ensuring that
is legally
distinct from and functionally independent of any airport mana-
ging body and air carrier. Member States that retain ownership
of airports, airport managing bodies or air carriers or control of
airport managing bodies or air carriers shall ensure that the
functions relating to such ownership or control are not vested
in the independent supervisory body. Member States shall
the independent supervisory body exercises its
ensure that
powers impartially and transparently.

3. Member States shall notify the Commission of the name
and address of the independent supervisory body, its assigned
tasks and responsibilities, and of the measures taken to ensure
compliance with paragraph 2.

1. Member States shall take the necessary measures to allow
the airport managing body to vary the quality and scope of par-

4. Member States may establish a funding mechanism for the
independent supervisory body, which may include levying a
charge on airport users and airport managing bodies.

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5. Without prejudice to Article 5(5), Member States shall
ensure that for the independent supervisory body in respect of
disagreements referred to in Article 5(3), the necessary measures
relating to the system or the level of airport charges, including
relating to quality of service, shall be taken to:

(a) establish a procedure for resolving disagreements between

the airport managing body and the airport users;

(b) determine the conditions under which a disagreement may
be brought to the independent supervisory body. The body
may, in particular, dismiss complaints that are not properly
justified or adequately documented;

(c) determine the criteria against which disagreements will be

assessed for resolution.

These procedures, conditions and criteria shall be non-discrimi-
natory, transparent and objective.

6. When undertaking an investigation into the justification
for the modification of
the system or the level of airport
charges as set out in Article 5, the independent supervisory
body shall have access to necessary information from the
parties concerned and shall be required to consult the parties
concerned in order to reach its decision. It shall issue a decision
as soon as possible, and in any case within six months from
receipt of
the independent
supervisory body shall have binding effect, without prejudice to
parliamentary or judicial review, as applicable in the Member
States.

the complaint. The decisions of

The independent supervisory body shall publish an annual

7.
report concerning its activities.

2. Member States and the Commission shall cooperate in the
application of this Directive, particularly as regards the collec-
tion of information for the report referred to in paragraph 1.

Article 12

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by … (**). They shall forthwith inform the Commis-
sion thereof.

When Member States adopt those measures, they shall contain a
reference to this Directive or shall be accompanied by such
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 13

Entry into force

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

Article 14

Addresses

This Directive is addressed to the Member States.

Article 11

Report and revision

Done at …

1.
The Commission shall submit to the European Parliament
and the Council, by … (*), a report on the application of this
Directive assessing progress made in attaining its objective as
well as, where appropriate, any suitable proposal.

For the European Parliament

The President

…

For the Council

The President

…

(*) Four years from the date of entry into force of this Directive.

(**) 36 months from the date of entry into force of this Directive.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 29 January 2007, the Commission transmitted to the Council the above mentioned proposal.

The proposal is based on Article 80(2) of the EC Treaty.

2. On 29-30 November 2007, the TTE Council reached a general approach on the proposal.

3. On 15 January 2008, the European Parliament (rapporteur Mr Ulrich Stockmann (PSE-DE)) voted on

the proposal at first reading. The EP opinion consists of 45 amendments.

4. On 7 April 2008, the TTE Council reached a political agreement on the proposal, accepting a
number of the EP's 45 first-reading amendments (doc. 8017/08). The resultant Common Position is
scheduled to be adopted by the Council on 23 June 2008.

II. OBJECTIVE

The objective of the proposed Directive is to set common principles for the levying of airport charges at
Community airports. It aims to clarify the relationship between airport operators and airport users by
requiring transparency, user consultation and the application of the principle of non-discrimination
when calculating charges levied on users. Moreover, it aims to create strong, independent authorities in
the Member States to arbitrate and settle disputes in order to achieve their speedy resolution.

III. ANALYSIS OF THE COMMON POSITION

1. General

At its Plenary on 15 January 2008, the European Parliament (EP) adopted 45 amendments to the
Commission proposal. The Council Common Position reflects changes to the Commission proposal
(see below under 2(a)) by incorporating a considerable number of amendments,

— either verbatim (EP amendments 8, 10, 11, 45), or

— in spirit, by means of similar wording (EP amendments 1, 2, 3, 15, 23, 28, 29).

However, a substantial number of amendments are not reflected in the Common Position, because
the Council considered that either

1. they were redundant, as they were already covered by other instruments adopted after the

EP adopted its opinion; or

2. they were taken into account elsewhere in the text because the Commission's initial proposal had

been redrafted in the Common Position.

2. Specific issues

(a) Main modifications to Commission proposal

Taking as a basis the Commission's proposal, the Council introduced several modifications, which
could be summarised as follows:

— Scope of the proposed Directive, Article 1

The Commission initially proposed to include all airports with an annual traffic of more
than 1 million passengers. The Council agreed to increase this threshold to 5 million and to
add the largest airport in each Member State. This scope is, moreover,
in line with the
EP opinion.

— Modulation of charges for environmental and other purposes of public interest, Article 3

The Council agreed on the inclusion of this possibility in the Article on non-discrimination.
This addition reflects the wish of Member States to have the possibility to promote the use of
more environmentally-friendly aircraft through modulation of airport charges, as well as for
other purposes.

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— Cost-relatedness, Recital 8

This recital reflects a balanced compromise between the wish of Member States that airport
charges are strictly related to the level of the cost of providing airport services (in line with
ICAO policy recommendations on airport charges) and an appropriate degree of flexibility
for other Member States, including those considering that this could have implications for the
functioning of airport networks as some Member States need flexibility to use the commercial
revenues within the airport network.

— Airport network and airport system, Article 2(5) and 4

The Council agreed that it was necessary to introduce in the text of the draft Directive a defi-
nition of airport networks. Moreover, it considered appropriate to include a text ensuring that
airports serving the same city or conurbation can share a common charging system.

— Economic oversight measures, Article 5(5)

The Council considered appropriate the addition of a provision on economic oversight
measures, under which Member States, which use economic oversight systems, are not
obliged to apply the Directive's prescribed dispute settlements procedure. This is on the
grounds that economic oversight offers a degree of protection comparable to that set out in
the Directive.

— Deadline for transposition of the Directive, Article 12

The Council extended the period required for the transposition of the Directive into national
law to 36 months in order to allow all Members States sufficient time to take the necessary
measures for its implementation.

(b) Amendments of the European Parliament

The Council moreover considered a number of amendments, even though it did not include
them in its Common Position. These issues could be summarised as follows:

— Security charges

Relevant amendments 4, 13, 37-41

The Common Position did not include the amendments on security financing considering
that the EP's concerns on this matter are already addressed by the entry into force of the new
Regulation on civil aviation security (Regulation (EC) No 300/2008). These concerns will be
also addressed in a future Commission policy initiative.

— Pre-financing

Relevant amendments 31, 32

The Common Position acknowledges the importance of new infrastructure projects and
ensures the possibility of the financing thereof, while protecting the interests of airport users.
This principle of pre-financing is already mentioned in ICAO texts, but the Council consid-
ered it more appropriate not to include this in its Common Position due to differing
approaches in Member States and the need to maintain flexibility. The Commission has not
accepted these amendments.

— Single or dual till system

Relevant amendments 6, 22

The Council considered necessary to foresee the establishment of a common framework regu-
lating the essential features of airport charges and the way they are set, but also considered
that Member States should be free to allow single or dual till or a combination of the two
systems and not be obliged to adopt legislation making compulsory one of these systems or
to give airports the right to choose which till they adopt. For these reasons, the Common
Position did not include any express provision on this issue.

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— Coverage of all airports in a network

Relevant amendments 9, 14

The Common Position did not accept these amendments for reasons of coherence with the
whole approach on networks, namely non-discrimination of networks between Member
States, elimination of unnecessary bureaucracy at small airports and lack of practical need,
since the Council considers that the risk of cross-subsidisation is unfounded.

— Other amendments

The Common Position did not include a number of amendments for three reasons:

— The Council considered that

they were not coherent with the philosophy and the

approach followed by the draft Directive.

— The Council considered that their drafting was not sufficiently clear and could entail legal

uncertainty, as they could be interpreted in more than one way.

— The Council considered that they would be impractical to implement by Member States,
in particular concerning amendments setting deadlines, which Member States consider
either too short or too long.

The amendments in question are the following:

— principles of competition and state aid (part of 7, 16, 24, 25, 26),

— non-discrimination (34, 35, 36),

— conditions for the intervention of the independent supervisory body and delegation of

authority (19, 21, 42, 43),

— level of service and service quality (5, 27, 33),

— reference to factors determining level of charges (12),

— consultations (17),

— timing for presentation of changes to charging system (18),

— admissibility of complaints (20),

— transparency (30),

— deadline for decision of independent supervisory body (44).

IV. CONCLUSION

The Council holds that the Common Position is balanced and respects the aims and objectives behind
the Commission's proposal. It also takes into account the results of the European Parliament's first
reading.

The Council notes the informal negotiations that have already taken place between the Council and the
European Parliament and trusts that the compromise texts identified will allow for quick adoption of the
Directive in the near future.