Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast) (Text with EEA relevance)
Date: 2008-09-24
Institutions: Council of the European Union, European Parliament
Subjects: EU office or agency, air transport, airline, inland transport, public service, transport regulations

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REGULATION (EC) No 1008/2008 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 24 September 2008

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

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

(4) Given the growing importance of air carriers with
operational bases in several Member States and the need
to ensure the efficient supervision of these air carriers, the
same Member State should be responsible for the oversight
of the air operator certificate and of the operating licence.

Having regard to the proposal from the Commission,

(5)

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

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

Whereas:

(1) A number of substantial changes are to be made to Council
Regulations (EEC) No 2407/92 of 23 July 1992 on
licensing of air carriers (4), (EEC) No 2408/92 of 23 July
1992 on access of Community air carriers to intra-
Community air routes (5), and (EEC) No 2409/92 of 23 July
1992 on fares and rates for air services (6). In the interests
of
and
consolidated into one single Regulation.

these Regulations

should be

clarity,

recast

(2)

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

(3) Recognising the potential link between the financial health
of an air carrier and safety, more stringent monitoring of
the financial situation of air carriers should be established.

(1) OJ C 175, 27.7.2007, p. 85.
(2) OJ C 305, 15.12.2007, p. 11.
(3) Opinion of European Parliament of 11 July 2007 (OJ C 175 E,
10.7.2008, p. 371), Council Common Position of 18 April 2008 (OJ
C 129 E, 27.5.2008, p. 1) and Position of the European Parliament
of 9 July 2008 (not yet published in the Official Journal).

(4) OJ L 240, 24.8.1992, p. 1.
(5) OJ L 240, 24.8.1992, p. 8.
(6) OJ L 240, 24.8.1992, p. 15.

To ensure consistent monitoring of the compliance with
the requirements of the operating licences of all Commu-
licensing authorities should carry out
nity air carriers,
regular assessments of the air carriers' financial situation.
Therefore, the latter should provide sufficient information
on their financial situation, especially in the first two years
of their existence as these are particularly critical for the
survival of an air carrier on the market. In order to avoid a
distortion of competition arising from the different
application of the rules at national level, it is necessary to
reinforce the financial oversight of all Community air
carriers by Member States.

(6)

To reduce risks to passengers, Community air carriers
failing to fulfil the requirements for maintaining a valid
operating licence should not be allowed to continue
operations. In such cases, the competent licensing authority
should revoke or suspend the operating licence.

(7) According to Regulation (EC) No 785/2004 of

the
European Parliament and of
the Council of 21 April
2004 on insurance requirements for air carriers and aircraft
operators (7) an air carrier should be insured to cover
liability in case of accidents with respect to passengers,
cargo and third parties. Obligations should also be placed
upon air carriers for insurance to cover liability in case of
accidents with respect to mail.

(8)

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

(9) With respect to employees of a Community air carrier
operating air services from an operational base outside the
territory of the Member State where that Community air

(7) OJ L 138, 30.4.2004, p. 1.

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carrier has its principal place of business, Member States
should ensure the proper application of Community and
national social legislation.

Decision 1999/468/EC of 28 June 1999 laying down the
procedures
implementing powers
the exercise of
conferred on the Commission (1).

for

(10)

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

(11) To take into account

the special characteristics and
in particular their
constraints of the outermost regions,
insularity and small size, and the need to
remoteness,
properly link them with the central
the
Community, special arrangements may be justified regard-
ing the rules on the period of validity of the contracts for
public service obligations covering routes to such regions.

regions of

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

(13) The rules in force with regard to traffic distribution between
airports serving the same city or conurbation should be
clarified and simplified.

(18) Since the objective of

this Regulation, namely more
homogeneous application of Community legislation with
regard to the internal aviation market cannot be sufficiently
achieved by the Member States because of the international
character of air transport, and can therefore be better
achieved at Community level, the Community may adopt
measures, in accordance with the principle of subsidiarity
as set out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article, this
Regulation does not go beyond what is necessary in order
to achieve that objective.

(19) The Ministerial Statement on Gibraltar Airport, agreed in
first
Cordoba on 18 September 2006, during the
ministerial meeting of the Forum of Dialogue on Gibraltar,
will replace the Joint Declaration on the airport made in
London on 2 December 1987, and full compliance with it
will be deemed to constitute compliance with the 1987
declaration.

(20)

is

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

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

(14)

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

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

(15) Customers should have access to all air fares and air rates
irrespective of their place of residence within the Commu-
nity or their nationality and irrespective of the place of
establishment of the travel agents within the Community.

2. The application of Chapter III of this Regulation to the
airport of Gibraltar is understood to be without prejudice to the
respective legal positions of the Kingdom of Spain and the
United Kingdom with regard to the dispute over sovereignty over
the territory in which the airport is situated.

(16) Customers should be able to compare effectively the prices
for air services of different airlines. Therefore the final price
to be paid by the customer for air services originating in the
Community should at all times be indicated, inclusive of all
taxes, charges and fees. Community air carriers are also
encouraged to indicate the final price for their air services
from third countries to the Community.

Article 2

Definitions

For the purposes of this Regulation:

1.

‘operating licence’ means an authorisation granted by the
competent licensing authority to an undertaking, permit-
ting it to provide air services as stated in the operating
licence;

(17) The measures necessary for the implementation of this
Regulation should be adopted in accordance with Council

(1) OJ L 184, 17.7.1999, p. 23.

2.

3.

4.

5.

6.

7.

8.

9.

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

question, in particular in relation to the expected market
development and the investments to be carried out,
including the financial and economic implications of these
activities;

‘undertaking’ means any natural or legal person, whether
profit-making or not, or any official body whether having
its own legal personality or not;

13.

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

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

14.

‘traffic right’ means the right to operate an air service
between two Community airports;

‘flight’ means a departure from a specified airport towards a
specified destination airport;

15.

flight’ means a flight not

involving carriage of
‘local
passengers, mail and/or cargo between different airports or
other authorised landing points;

‘airport’ means any area in a Member State especially
adapted for air services;

‘air operator certificate (AOC)’ means a certificate delivered
to an undertaking confirming that the operator has the
professional ability and organisation to ensure the safety of
operations specified in the certificate, as provided in the
relevant provisions of Community or national
law, as
applicable;

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

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

16.

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

(a)

on each flight seats and/or capacity to transport cargo
and/or mail are available for individual purchase by
the public (either directly from the air carrier or from
its authorised agents);

(b)

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

— according to a published timetable, or

— with flights so regular or frequent that they
constitute a recognisably systematic series;

(a)

(b)

the right
undertaking;

to use all or part of

the assets of an

17.

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

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

the business of

10.

‘air carrier’ means an undertaking with a valid operating
licence or equivalent;

11.

‘Community air carrier’ means an air carrier with a valid
operating licence granted by a competent
licensing
authority in accordance with Chapter II;

18.

‘air fares’ means the prices expressed in euro or in local
currency to be paid to air carriers or their agents or other
ticket sellers for the carriage of passengers on air services
and any conditions under which those prices apply,
including remuneration and conditions offered to agency
and other auxiliary services;

19.

‘air rates’ means the prices expressed in euro or in local
currency to be paid for the carriage of cargo and the
conditions under which those prices apply,
including
remuneration and conditions offered to agency and other
auxiliary services;

12.

the air
‘business plan’ means a detailed description of
carrier's intended commercial activities for the period in

20.

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

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21.

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

(b)

local flights.

22.

23.

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

‘management account’ means a detailed statement of
income and costs of an air carrier for the period in
question including a breakdown between air-transport-
related and other activities as well as between pecuniary and
non-pecuniary elements;

24.

‘dry lease agreement’ means an agreement between under-
takings pursuant to which the aircraft is operated under the
AOC of the lessee;

25.

‘wet lease agreement’ means an agreement between air
carriers pursuant to which the aircraft is operated under the
AOC of the lessor;

26.

‘principal place of business’ means the head office or
registered office of a Community air carrier in the Member
State within which the principal financial functions and
operational control,
including continued airworthiness
management, of the Community air carrier are exercised.

CHAPTER II

OPERATING LICENCE

Article 3

Operating licence

Article 4

Conditions for granting an operating licence

An undertaking shall be granted an operating licence by the
competent licensing authority of a Member State provided that:

(a)

its principal place of business is located in that Member
State;

(b)

it holds a valid AOC issued by a national authority of the
same Member State whose competent licensing authority is
responsible for granting, refusing, revoking or suspending
the operating licence of the Community air carrier;

(c)

it has one or more aircraft at
ownership or a dry lease agreement;

its disposal

through

(d)

its main occupation is to operate air services in isolation or
combined with any other commercial operation of aircraft
or the repair and maintenance of aircraft;

(e)

its company structure allows the competent
authority to implement the provisions of this Chapter;

licensing

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

1. No undertaking established in the Community shall be
permitted to carry by air passengers, mail and/or cargo for
it has been granted the
remuneration and/or hire unless
appropriate operating licence.

(g)

it meets the financial conditions specified in Article 5;

(h)

it complies with the insurance requirements specified in
Article 11 and in Regulation (EC) No 785/2004; and

An undertaking meeting the requirements of this Chapter shall
be entitled to receive an operating licence.

(i)

it complies with the provisions on good repute as specified
in Article 7.

2. The competent licensing authority shall not grant operating
licences or maintain them in force where any of the requirements
of this Chapter are not complied with.

3. Without prejudice to any other applicable provisions of
the following
Community, national, or
categories of air services shall not be subject to the requirement
to hold a valid operating licence:

international

law,

Article 5

Financial conditions for granting an operating licence

1. The competent
whether an undertaking applying for the first
operating licence can demonstrate that:

licensing authority shall closely assess
time for an

(a)

air services performed by non-power-driven aircraft and/or
ultralight power-driven aircraft; and

(a)

it can meet at any time its actual and potential obligations
established under realistic assumptions, for a period of 24
months from the start of operations; and

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(b)

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

For

the assessment

the purposes of

2.
referred to in
paragraph 1, each applicant shall submit a business plan for, at
least, the first three years of operation. The business plan shall
also detail
links with any other
commercial activities in which the applicant is engaged either
directly or through related undertakings. The applicant shall also
provide all relevant information, in particular the data referred to
in point 1 of Annex I.

the applicant's

financial

3.
Paragraphs 1 and 2 shall not apply to an undertaking
applying for an operating licence intended to cover operations
with aircraft of less than 10 tonnes maximum take-off mass
(MTOM) and/or less than 20 seats. Such undertakings shall
demonstrate that their net capital is at least EUR 100 000 or
provide, when required by the competent licensing authority, all
relevant information for the purposes of the assessment referred
to in paragraph 1, in particular the data referred to in point 1 of
Annex I.

The competent
licensing authority may nevertheless apply
paragraphs 1 and 2 to an undertaking applying for an operating
licence under the provisions of the previous subparagraph that
intends to operate scheduled air services or whose turnover
exceeds EUR 3 million per year.

Article 6

Air operator certificate

2. Where the Member State of origin or the Member State
where the person has his/her permanent residence does not issue
the documents referred to in paragraph 1, such documents shall
be replaced by a declaration on oath or — in Member States
where there is no provision for declaration on oath — by a
solemn declaration made by the person concerned before a
authority or, where
competent
administrative
appropriate, a notary or qualified professional body of
the
Member State of origin or the Member State where the person
has his/her permanent residence. Such authority, notary or
qualified professional body shall issue a certificate attesting the
authenticity of the declaration on oath or solemn declaration.

judicial or

3. The competent licensing authority may require that the
documents and certificates referred to in paragraphs 1 and 2 be
presented no more than three months after their date of issue.

Article 8

Validity of an operating licence

1. An operating licence shall be valid as
the
Community air carrier complies with the requirements of this
Chapter.

long as

A Community air carrier shall at all times be able on request to
demonstrate to the competent licensing authority that it meets
all the requirements of this Chapter.

2. The competent licensing authority shall closely monitor
compliance with the requirements of this Chapter. It shall in any
case review compliance with these requirements in the following
cases:

1. The granting and validity of an operating licence shall at any
time be dependent upon the possession of a valid AOC
specifying the activities covered by the operating licence.

(b) when a potential problem has been suspected; or

(a)

two years after a new operating licence has been granted;

2. Any modification in the AOC of a Community air carrier
shall be reflected, where appropriate, in its operating licence.

(c)

at the request of the Commission.

Article 7

Proof of good repute

they have not been declared bankrupt,

1. Where, for the purpose of issuing an operating licence,
proof is required that the persons who will continuously and
effectively manage the operations of the undertaking are of good
repute or that
the
competent licensing authority shall accept as sufficient evidence
in respect of nationals of Member States the production of
documents issued by the competent authorities in the Member
State of origin or the Member State where the person has his/her
permanent residence showing that those requirements are met.

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

3. The operating licence shall be resubmitted for approval
when a Community air carrier:

(a)

has not started operations within six months of
granting of an operating licence;

the

(b)

has ceased its operations for more than six months; or

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(c) which has been licensed on the basis of

the first
subparagraph of Article 5(3)
in
operations with aircraft above the size threshold specified
in Article 5(3) or no longer complies with the financial
conditions set out therein.

to engage

intends

can meet its existing and potential obligations during that period
of 12 months. Such a decision shall be taken not later than three
months after all the necessary information has been submitted to
it.

4. A Community air carrier shall provide to the competent
licensing authority its audited accounts no later than six months
following the last day of the respective financial year, unless
otherwise provided for in national law. During the first two years
of operation of a Community air carrier, the data as referred to in
point 3 of Annex I shall be made available to the competent
licensing authority upon request.

7.
In relation to Community air carriers licensed by it the
competent licensing authority shall decide whether the operating
licence shall be resubmitted for approval in case of change in one
or more elements affecting the legal situation of a Community
air carrier and, in particular, in the case of a merger or takeover.

The competent licensing authority may at any time assess the
financial performance of a Community air carrier to which it has
granted an operating licence by requesting the
relevant
information. As part of such an assessment, the Community
air carrier in question shall update the data referred to in point 3
of Annex I and provide it to the competent licensing authority
upon request.

8.
Paragraphs 4, 5 and 6 shall not apply to Community air
carriers exclusively engaged in operations with aircraft of less
less than 20 seats. Such
than 10 tonnes MTOM and/or
Community air carriers shall at all times be able to demonstrate
that their net capital is at least EUR 100 000 or to provide when
required by the competent licensing authority the information
relevant
the assessment referred to in
Article 9(2).

for the purposes of

5. A Community air carrier
licensing authority:

shall notify the competent

The competent
licensing authority may nevertheless apply
paragraphs 4, 5 and 6 to Community air carriers licensed by it
that operate scheduled air services or whose turnover exceeds
EUR 3 million per year.

(a)

in advance of any plans for the operation of a new air
service to a continent or a world region not previously
served, or any other substantial change in the scale of its
activities, including, but not limited to, changes in the type
or number of aircraft used;

Article 9

(b)

in advance of any intended mergers or acquisitions; and

(c) within 14 days of any change in the ownership of any single
shareholding which represents 10 % or more of the total
shareholding of the Community air carrier or of its parent
or ultimate holding company.

the Community air carrier,

6.
If the competent licensing authority deems the changes
notified under paragraph 5 to have a significant bearing on the
it shall require the
finances of
submission of a revised business plan incorporating the changes
in question and covering, at least, a period of 12 months from its
date of implementation as well as the data referred to in point 2
of Annex I, in addition to the information to be provided under
paragraph 4.

The competent licensing authority shall take a decision on the
revised business plan as to whether the Community air carrier

Suspension and revocation of an operating licence

1. The competent licensing authority may at any time assess
the financial performance of a Community air carrier which it
has licensed. Based upon its assessment, the authority shall
suspend or revoke the operating licence if it is no longer satisfied
that this Community air carrier can meet its actual and potential
obligations for a 12-month period. Nevertheless, the competent
licensing authority may grant a temporary licence, not exceeding
12 months pending financial reorganisation of a Community air
carrier provided that safety is not at risk, that this temporary
licence reflects, when appropriate, any changes to the AOC, and
that
there is a realistic prospect of a satisfactory financial
reconstruction within that time period.

2. Whenever there are clear indications that financial problems
exist or when insolvency or similar proceedings are opened
against a Community air carrier licensed by it the competent
licensing authority shall without delay make an in-depth
assessment of the financial situation and on the basis of its
findings review the status of the operating licence in compliance
with this Article within a time period of three months.

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The competent licensing authority shall inform the Commission
of its decisions, relating to the status of the operating licence.

Article 12

Registration

3. When the audited accounts referred to in Article 8(4) have
not been communicated within the deadline indicated in that
Article, the competent licensing authority shall, without undue
delay, request the Community air carrier to communicate these
audited accounts.

1. Without prejudice to Article 13(3), aircraft used by a
Community air carrier shall be registered, at the option of the
Member State whose competent authority issues the operating
licence, in its national register or within the Community.

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

4. The competent licensing authority shall suspend or revoke
the operating licence if the Community air carrier knowingly or
recklessly furnishes the competent licensing authority with false
information on an important point.

5.
In case a Community air carrier's AOC is suspended or
withdrawn, the competent licensing authority shall immediately
suspend or revoke that air carrier's operating licence.

6. The competent licensing authority may suspend or revoke
the operating licence of a Community air carrier if such a carrier
no longer satisfies the requirements relating to good repute set
out in Article 7.

Article 10

Decisions on operating licences

1. The competent licensing authority shall take a decision on
an application as soon as possible, and not later than three
months after all the necessary information has been submitted,
taking into account all available evidence. The decision shall be
communicated to the applicant. A refusal shall
indicate the
reasons therefor.

Procedures for granting, suspending and revoking operating
licensing

2.
licences shall be made public by the competent
authorities, which shall inform the Commission thereof.

3. A list of decisions of the competent licensing authorities to
grant, suspend or revoke operating licences shall be published
annually in the Official Journal of the European Union.

2.
In accordance with paragraph 1, the competent authority
shall, subject to applicable laws and regulations, accept on its
national register, without any discriminatory fee and without
delay, aircraft owned by nationals of other Member States and
transfers from aircraft registers of other Member States. No fee
shall be applied to transfers of aircraft in addition to the normal
registration fee.

Article 13

Leasing

1. Without prejudice to Article 4(c), a Community air carrier
may have one or more aircraft at its disposal through dry or wet
lease agreement. Community air carriers may freely operate wet-
leased aircraft registered within the Community except where
this would lead to endangering safety. The Commission shall
ensure that the implementation of such a provision is reasonable
and proportionate and based on safety considerations.

2. A dry lease agreement to which a Community air carrier is a
party or a wet lease agreement under which the Community air
carrier is the lessee of the wet-leased aircraft shall be subject to
prior approval
in accordance with applicable Community or
national law on aviation safety.

3. A Community air carrier wet leasing aircraft registered in a
third country from another undertaking shall obtain prior
approval
licensing
authority. The competent authority may grant an approval if:

the operation from the competent

for

(a)

the competent authority that all

the Community air carrier demonstrates to the satisfaction
of
safety standards
equivalent to those imposed by Community or national
law are met; and

Article 11

(b)

one of the following conditions is fulfilled:

Insurance requirements

Notwithstanding Regulation (EC) No 785/2004, an air carrier
shall be insured to cover liability in case of accidents with respect
to mail.

(i)

the Community air carrier justifies such leasing on the
basis of exceptional needs, in which case an approval
may be granted for a period of up to seven months
that may be renewed once for a further period of up
to seven months;

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(ii)

(iii)

the
the Community air carrier demonstrates that
leasing is necessary to satisfy seasonal capacity needs,
which cannot reasonably be satisfied through leasing
aircraft registered within the Community,
in which
case the approval may be renewed; or

If the Commission, on the basis of information obtained
3.
under Article 26(2), finds that the operating licence granted to a
Community air carrier is not in compliance with the require-
ments of this Regulation it shall forward its findings to the
competent licensing authority which shall send its comments to
the Commission within 15 working days.

the Community air carrier demonstrates that
the
leasing is necessary to overcome operational difficul-
ties and it is not possible or reasonable to lease aircraft
registered within the Community, in which case the
approval shall be of limited duration strictly necessary
for overcoming the difficulties.

4. The competent authority may attach conditions to the
approval. Such conditions shall
the wet lease
agreement.

form part of

the Commission, after examining the comments of
licensing authority, maintains that

the
If
competent
the operating
licence is not compliant, or no comments have been received
from the competent licensing authority it shall, in accordance
with the procedure referred to in Article 25(2), take a decision to
request the competent licensing authority to take the appropriate
corrective measures or to suspend or revoke the operating
licence.

The competent authority may refuse to grant an approval if there
is no reciprocity as regards wet leasing between the Member
State concerned or the Community and the third country where
the wet-leased aircraft is registered.

The decision shall set a date by which the corrective measures or
actions by the competent licensing authority shall be imple-
mented. If the corrective measures or actions have not been
implemented by that date the Community air carrier shall not be
entitled to exercise its rights under paragraph 1.

The competent authority shall
concerned about an approval
aircraft registered in a third country.

inform the Member States
it has granted for wet leasing

Article 14

Right to be heard

The Community air carrier may resume exercising its rights
under paragraph 1 upon notification to the Commission by the
competent licensing authority that the corrective measures have
been implemented and that the competent licensing authority
has verified the implementation.

The competent
licensing authority shall ensure that, when
adopting a decision to suspend or revoke the operating licence of
a Community air carrier, the Community air carrier concerned is
given the opportunity of being heard, taking into account the
need, in some cases, for an urgency procedure.

4. When operating intra-Community air services, a Commu-
nity air carrier shall be permitted to combine air services and to
enter into code share arrangements, without prejudice to the
Community competition rules applicable to undertakings.

CHAPTER III

ACCESS TO ROUTES

Article 15

Provision of intra-Community air services

1. Community air carriers shall be entitled to operate intra-
Community air services.

2. Member States shall not subject the operation of intra-
Community air services by a Community air carrier to any
permit or authorisation. Member States
require
Community air carriers to provide any documents or informa-
tion which they have already supplied to the competent licensing
information may be
authority, provided that
obtained from the competent licensing authority in due time.

the relevant

shall not

Any restrictions on the freedom of Community air carriers to
operate intra-Community air services arising from bilateral
agreements between Member States are hereby superseded.

5. Notwithstanding the provisions of bilateral agreements
between Member States, and subject
to the Community
competition rules applicable to undertakings, Community air
carriers shall be permitted by the Member State(s) concerned to
combine air services and to enter into code share arrangements
with any air carrier on air services to, from or via any airport in
their territory from or to any point(s) in third countries.

A Member State may, in the framework of the bilateral air service
agreement with the third country concerned, impose restrictions
on code share arrangements between Community air carriers
and air carriers of a third country,
in particular if the third
country concerned does not allow similar commercial opportu-
nities to Community air carriers operating from the Member

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State concerned. In doing so, Member States shall ensure that
restrictions imposed under such agreements do not restrict
competition and are non-discriminatory between Community air
carriers and that they are not more restrictive than necessary.

it shall communicate the text of

4. When a Member State wishes to impose a public service
obligation,
the envisaged
imposition of the public service obligation to the Commission,
to the other Member States concerned, to the airports concerned
and to the air carriers operating the route in question.

Article 16

General principles for public service obligations

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

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

The fixed standards imposed on the route subject to that public
service obligation shall be set
in a transparent and non-
discriminatory way.

2.
In instances where other modes of transport cannot ensure
an uninterrupted service with at least two daily frequencies, the
Member States concerned may include in the public service
obligation the requirement
that any Community air carrier
intending to operate the route gives a guarantee that it will
operate the route for a certain period,
in
accordance with the other terms of the public service obligation.

to be specified,

3. The necessity and the adequacy of an envisaged public
service obligation shall be assessed by the Member State(s) having
regard to:

(a)

the proportionality between the envisaged obligation and
the economic development needs of the region concerned;

(b)

the possibility of having recourse to other modes of
transport and the ability of such modes to meet
the
transport needs under consideration,
in particular when
existing rail services serve the envisaged route with a travel
time of
than three hours and with sufficient
frequencies, connections and suitable timings;

less

(c)

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

(d)

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

(a)

identifying the two airports connected by the route
concerned and possible intermediate stop-over point(s);

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

obligation; and

(c)

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

5. Notwithstanding the provisions of paragraph 4, with respect
to routes where the number of passengers expected to use the air
service is less than 10 000 per annum, the information notice on
a public service obligation shall be published either in the Official
Journal of the European Union or in the national official journal of
the Member State concerned.

6. The date of entry into force of a public service obligation
shall not be earlier
the
information notice referred to in the second subparagraph of
paragraph 4.

than the date of publication of

7. When a public service obligation has been imposed in
accordance with paragraphs 1 and 2 the Community air carrier
shall be able to offer seat-only sales provided that the air service
in question meets all the requirements of the public service
obligation. Consequently that air service shall be considered as a
scheduled air service.

8. When a public service obligation has been imposed in
accordance with paragraphs 1 and 2, any other Community air
carrier shall at any time be allowed to commence scheduled air
services meeting all
the public service
the requirements of
obligation,
including the period of operation that may be
required in accordance with paragraph 2.

9. Notwithstanding paragraph 8, if no Community air carrier
has commenced or can demonstrate that
to
commence sustainable scheduled air services on a route in
accordance with the public service obligation which has been

is about

it

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imposed on that route, the Member State concerned may limit
access to the scheduled air services on that route to only one
Community air carrier for a period of up to four years, after
which the situation shall be reviewed.

This period may be up to five years if
the public service
obligation is imposed on a route to an airport serving an
outermost region, referred to in Article 299(2) of the Treaty.

10. The right to operate the services referred to in paragraph 9
shall be offered by public tender in accordance with Article 17,
either singly or, in cases where justified for reasons of operational
efficiency, for a group of such routes to any Community air
carrier entitled to operate such air services. For reasons of
administrative efficiency, a Member State may issue a single
invitation to tender covering different routes.

11. A public service obligation shall be deemed to have expired
if no scheduled air service has been operated during a period of
12 months on the route subject to such obligation.

In case of

12.
service by the
sudden interruption of
Community air carrier selected in accordance with Article 17,
the Member State concerned may, in case of emergency, select by
mutual agreement a different Community air carrier to operate
the public service obligation for a period up to seven months,
not renewable, under the following conditions:

(a)

any compensation paid by the Member State shall be made
in compliance with Article 17(8);

(b)

the selection shall be made among Community air carriers
in compliance with the principles of transparency and non-
discrimination;

(c)

a new call for tender shall be launched.

The Commission and the Member State(s) concerned shall be
informed without delay of the emergency procedure and of its
reasons. At the request of a Member State, or on its own
in accordance with the
initiative,
procedure referred to in Article 25(2) suspend the procedure if
it considers after its assessment
the
requirements of
this paragraph or is otherwise contrary to
Community law.

the Commission may,

it does not meet

that

Article 17

2. The Member State concerned shall communicate the entire
text of the invitation to tender to the Commission except where,
in accordance with Article 16(5), it has made the public service
obligation known through the publication of a notice in its
national official journal. In such case the tender shall also be
published in the national official journal.

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

(a)

the standards required by the public service obligation;

(b)

rules concerning amendment and termination of
contract,
changes;

the
in particular to take account of unforeseeable

(c)

the period of validity of the contract;

(d)

penalties in the event of failure to comply with the contract;

(e)

objective and transparent parameters on the basis of which
compensation,
if any, for the discharging of the public
service obligations shall be calculated.

4. The Commission shall make the invitation to tender known
through an information notice published in the Official Journal of
the European Union. The deadline for submission of tenders shall
not be earlier than two months after the day of publication of
such an information notice. In case the tender concerns a route
to which the access had already been limited to one carrier in
accordance with Article 16(9), the invitation to tender will be
the new
published at
concession in order to assess the continued necessity of the
restricted access.

least six months before the start of

5. The information notice shall provide the following infor-
mation:

(a) Member State(s) concerned;

(b)

air route concerned;

(c)

period of validity of the contract;

(d)

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

Public tender procedure for public service obligation

(e)

deadline for submission of tenders.

1. The public tender
required in Article 16(10) shall be
conducted according to the procedure set out in paragraphs 2 to
10 of this Article.

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

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

8. The Member State concerned may compensate an air carrier,
which has been selected under paragraph 7, for adhering to the
standards required by a public service obligation imposed under
Article 16. Such compensation may not exceed the amount
required to cover the net costs incurred in discharging each
public service obligation, taking account of revenue relating
thereto kept by the air carrier and a reasonable profit.

9. The Commission shall be informed in writing and without
delay of the results of the public tender and of the selection by
the Member State including the following information:

(c)

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

(d)

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

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

(a)

numbers, names and corporate information of tenderers;

Article 19

(b)

operational elements contained in the offers;

Traffic distribution between airports and exercise of traffic
rights

(c)

compensation requested in the offers;

(d)

name of the selected tenderer.

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

Article 18

Examination of public service obligations

1. Member States shall take all necessary measures to ensure
that any decision taken under Articles 16 and 17 can be
reviewed effectively and, in particular, as soon as possible on the
grounds that such decisions have infringed Community law or
national rules implementing Community law.

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

(a)

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

(b)

an analysis of the economy of the region;

1. The exercise of traffic rights shall be subject to published
rules
Community, national,
relating to safety, security, the protection of the environment
and the allocation of slots.

regional and local operational

2. A Member State, after consultation with interested parties
including the air carriers and airports concerned, may regulate,
without discrimination among destinations inside the Commu-
nity or on grounds of nationality or identity of air carriers, the
satisfying the
distribution of air
following conditions:

traffic between airports

(a)

the airports serve the same city or conurbation;

(b)

the airports are served by adequate transport infrastructure
to the extent possible, a direct connection
providing,
making it possible to arrive at
the airport within 90
minutes including, where necessary, on a cross-border
basis;

(c)

the airports are linked to one another and to the city or
conurbation they serve by frequent, reliable and efficient
public transport services; and

(d)

the airports offer necessary services to air carriers, and do
not unduly prejudice their commercial opportunities.

Any decision to regulate the distribution of air traffic between
the airports concerned shall respect the principles of propor-
tionality and transparency, and shall be based on objective
criteria.

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3. A Member State concerned shall inform the Commission of
its intention to regulate the distribution of air traffic or to change
an existing traffic distribution rule.

short duration resulting from unforeseeable and unavoidable
circumstances. Such action shall
the principles of
proportionality and transparency and shall be based on objective
and non-discriminatory criteria.

respect

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

The Commission shall publish its decision in the Official Journal
of the European Union and the measures shall not be applied
before the publication of the Commission's approval.

4. With respect to traffic distribution rules existing at the time
of the entry into force of this Regulation, the Commission shall
at the request of a Member State and may on its own initiative
examine the application of paragraphs 1 and 2 and,
in
accordance with the procedure referred to in Article 25(2), shall
decide whether the Member State may continue to apply the
measure.

5. The Commission shall publish its decisions made under this
Article in the Official Journal of the European Union.

Article 20

Environmental measures

1. When serious environmental problems exist, the Member
State responsible may limit or refuse the exercise of traffic rights,
in particular when other modes of transport provide appropriate
levels of service. The measure shall be non-discriminatory, shall
not distort competition between air carriers, shall not be more
restrictive than necessary to relieve the problems, and shall have
a limited period of validity, not exceeding three years, after which
it shall be reviewed.

considers

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

the Commission may,

3. At the request of another Member State or on its own
initiative,
in accordance with the
procedure referred to in Article 25(2), suspend the measures if
they do not meet the requirements of paragraph 1 or are
otherwise contrary to Community law.

Article 21

Emergency measures

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

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

CHAPTER IV

PROVISIONS ON PRICING

Article 22

Pricing freedom

1. Without prejudice to Article 16(1), Community air carriers
and, on the basis of reciprocity, air carriers of third countries
shall freely set air fares and air rates for intra-Community air
services.

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

Article 23

Information and non-discrimination

1. Air fares and air rates available to the general public shall
include the applicable conditions when offered or published in
any form, including on the Internet, for air services from an
airport located in the territory of a Member State to which the
Treaty applies. The final price to be paid shall at all times be
indicated and shall include the applicable air fare or air rate as
well as all applicable taxes, and charges, surcharges and fees
which are unavoidable and foreseeable at the time of publication.
In addition to the indication of the final price, at least the
following shall be specified:

(a)

air fare or air rate;

1. A Member State may refuse, limit or impose conditions on
the exercise of traffic rights to deal with sudden problems of

(b)

taxes;

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(c)

airport charges; and

(d)

other charges, surcharges or fees, such as those related to
security or fuel;

where the items listed under (b), (c) and (d) have been added to
the air fare or air rate. Optional price supplements shall be
communicated in a clear, transparent and unambiguous way at
the start of any booking process and their acceptance by the
customer shall be on an ‘opt-in’ basis.

2. Without prejudice to Article 16(1), access to air fares and air
rates for air services from an airport located in the territory of a
Member State to which the Treaty applies, available to the general
public shall be granted without any discrimination based on the
nationality or the place of residence of the customer or on the
place of establishment of the air carrier's agent or other ticket
seller within the Community.

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

Article 26

Cooperation and right to obtain information

1. Member States and the Commission shall cooperate in
applying and in monitoring the application of this Regulation.

2.
In order to carry out its duties under this Regulation the
Commission may obtain all necessary information from Member
States, which shall also facilitate the provision of information by
air carriers licensed by their competent licensing authorities.

3. Member States shall, according to their national legislation,
take the necessary measures to ensure appropriate confidentiality
of the information received by them pursuant to this Regulation.

Article 24

Penalties

Member States shall ensure compliance with the rules set out in
this Chapter and shall
lay down penalties for infringements
thereof. Those penalties shall be effective, proportionate and
dissuasive.

CHAPTER V

FINAL PROVISIONS

Article 25

Committee

1. The Commission shall be assisted by a committee.

Article 27

Repeal

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

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

Article 28

Entry into force

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

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

Done at Strasbourg, 24 September 2008.

For the European Parliament

The President

H.-G. PÖTTERING

For the Council

The President

J.-P. JOUYET

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ANNEX I

INFORMATION TO BE PROVIDED PURSUANT TO ARTICLES 5 AND 8

1.

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

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

1.2. A projected balance sheet, including profit-and-loss account, for the following three years.

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

1.4. Details of the start-up costs incurred in the period from submission of an application to the commencement of

operations and an explanation of how it is proposed to finance these costs.

1.5. Details of existing and projected sources of finance.

1.6. Details of shareholders, including nationality and type of shares to be held, and the Articles of Association. If part of a

group of undertakings, information on the relationship between them.

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

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

contract.

2.

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

2.1.

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

2.2. Precise details of all proposed changes e.g. change of type of service, proposed takeover or merger, modifications in

share capital, changes in shareholders, etc.

2.3. A projected balance sheet, with a profit-and-loss account, for the current financial year, including all proposed changes

in structure or activities with a significant bearing on finances.

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

2.5. Cash-flow statements and liquidity plans for the following year, including all proposed changes in structure or

activities with a significant bearing on finances.

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

contract.

3.

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

3.1. Audited accounts no later than six months following the last day of the relevant financial year, unless otherwise

provided for in national law and, if necessary, the most recent internal management balance sheet.

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

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

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

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ANNEX II

CORRELATION TABLE

(Referred to in Article 27)

Regulation (EEC) No 2407/92

This Regulation

Article 1(1)
Article 1(2)
Article 2
Article 3(1)
Article 3(2)
Article 3(3)
Article 4(1)
Article 4(2)
Article 4(3)
Article 4(4)
Article 4(5)
Article 5(1)
Article 5(2)
Article 5(3)
Article 5(4)
Article 5(5)
Article 5(6)
Article 5(7)
Article 6
Article 7
Article 8(1)
Article 8(2)
Article 8(3)
Article 8(4)
Article 9
Article 10(1)
Article 10(2)
Article 11(1)
Article 11(2)
Article 11(3)
Article 12
Article 13(1)
Article 13(2)
Article 13(3)
Article 13(4)
Article 14
Article 15
Article 16
Article 17
Article 18(1)
Article 18(2)
Article 19
ANNEX

Article 1(1)
Article 1(2)
Article 1(3)
Article 1(4)

Article 1
Article 3(3)
Article 2
Article 3(2)
the second subparagraph of Article 3(1)
the first subparagraph of Article 3(1)
Article 4
Article 4(f)
—
Article 4(f)
the second subparagraph of Article 8(1)
Article 5(1)
Article 5(2)
Article 8(5)
Article 8(6)
Article 9(1)
Article 8(4)
Article 5(3) and Article 8(8)
Article 7
Article 11
Article 4(c)
Article 12(1)
Article 13(2) and (3)
Article 12(2)
Article 6
Article 13(2) and (3)
Article 13(2) and (3)
Article 8(1)
Article 8(3)
Article 8(7)
Articles 9(2) to (6)
Article 10(2)
Article 10(1)
—
Article 10(3)
—
—
—
—
Article 26(1)
Article 26(3)
—
ANNEX I

Regulation (EEC) No 2408/92

This Regulation

Article 1
Article 1(2)
—
—

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Regulation (EEC) No 2408/92

This Regulation

Article 2

Article 3(1)

Article 3(2)

Article 3(3)

Article 3(4)

Article 4(1)(a)

Article 4(1)(b)

Article 4(1)(c)

Article 4(1)(d)

—

—

—

—

—

Article 4(1)(e)

Article 4(1)(f)

Article 4(1)(g)

Article 4(1)(h)

—

—

Article 4(1)(i)

Article 4(1)(j)

Article 4(1)(k)

Article 4(2)

Article 4(3)

Article 4(4)

Article 5

Article 6(1) and (2)

Article 7

Article 8(1)

Article 8(2)

Article 8(3)

Article 8(4)

Article 8(5)

Article 9(1)

Article 9(2)

Article 9(3)

Article 9(4)

Article 9(5)

Article 9(6)

Article 9(7)

Article 9(8)

Article 10

Article 11

Article 12(1)

Article 12(2)

Article 13

Article 14(1)

Article 14(2)

Article 15

Article 16

ANNEX I

ANNEX II

ANNEX III

—

Article 2

Article 15(1) and (2)

—

—

—

Article 16(1)

Article 16(3)

Article 16(2)

Article 16(9)

Article 17(1)

Article 17(2)

Article 17(4)

Article 17(5)

Article 17(6)

Article 17(3)

Article 17(7)

—

Article 17(8)

Article 17(9)

Article 17(10)

Article 18(1)

Article 16(7)

—

—

Article 18(2)

—

—

—

Article 15(4) and (5)

Article 19(2)

Article 19(1)

Article 19(3)

—

—

Article 20(1)

Article 20(1)

Article 20(2)

Article 20(3)

Article 22(1)

Article 22(2)

—

—

—

Article 25

Article 26(2)

—

—

Article 26(1)

Article 26(3)

—

—

—

—

—

ANNEX II

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Regulation (EEC) No 2409/92

This Regulation

Article 1(1)
Article 1(2)
Article 1(3)
Article 2
Article 3
Article 4
Article 5(1)
Article 5(2)
Article 5(3)
Article 5(4)
Article 6
Article 7
Article 8
Article 9
Article 10(1)
Article 10(2)
Article 11
Article 12
—
—

Article 1
Article 21(1)
—
Article 2
—
Article 23
Article 22
—
—
—
—
—
—
—
Article 26(1)
Article 26(3)
—
—
Article 27
Article 28