Proposal for a Council Decision on the signature and provisional application of the Agreement on certain aspects of air services between the European Union and the Republic of Indonesia
Date: 2010-05-26
Institutions: European Commission
Subjects: Indonesia, agreement (EU), air transport, aviation fuel, fuel tax, signature of an agreement

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EUROPEAN COMMISSION 

Brussels, 26.5.2010 
COM(2010)246 final 

2010/0131 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of the Agreement on certain aspects of air 
services between the European Union and the Republic of Indonesia  

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EXPLANATORY MEMORANDUM 

1. 

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Context of the proposal 

•  Grounds for and objectives of the proposal 

Following the judgements of the Court of Justice in the so-called “Open Skies” cases, 
on  5  June  2003  the  Council  granted  the  Commission  a  mandate  to  open  negotiations 
with  third  countries  on  the  replacement  of  certain  provisions  in  existing  agreements 
with an agreement at Union level1 (the “horizontal mandate”). The objectives of such 
agreements  are  to  give  all  European  Union  air  carriers  non-discriminatory  access  to 
routes  between  the  European  Union  and  third  countries,  and  to  bring  bilateral  air 
service agreements between Member States of the European Union and third countries 
in line with the law of the European Union. 

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•  General context 

International  aviation  relations  between  Member  States  of  the  European  Union  and 
third  countries  have  traditionally  been  governed  by  bilateral  air  services  agreements 
between  Member  States  of  the  European  Union  and  third  countries,  the  Annexes  to 
such agreements and other related bilateral or multilateral arrangements. 

Traditional  designation  clauses  in  Member  States’  bilateral  air  services  agreements 
infringe the law of the European Union. They allow a third country to reject, withdraw 
or suspend the permissions or authorisations of an air carrier that has been designated 
by  a  Member  State  of  the  European  Union  but  that  is  not  substantially  owned  and 
effectively  controlled  by  that  Member  State  or  its  nationals.  This  has  been  found  to 
constitute discrimination against European Union carriers established in the territory of 
a Member State but owned and controlled by nationals of other Member States. This is 
contrary to Article 49 of the Treaty on the Functioning of the European Union which 
guarantees  nationals  of  Member  States  of  the  European  Union  who  have  exercised 
their  freedom  of  establishment  the  same  treatment  in  the  host  Member  State  as  that 
accorded to nationals of that Member State. 

There  are  further  issues,  such  as  aviation  fuel  taxation  or  tariffs  introduced  by  third 
country air carriers on intra-EU routes, where compliance with the law of the European 
Union  should  be  ensured  through  amending  or  complementing  existing  provisions  in 
bilateral  air  services  agreements  between  Member  States  of  the  European  Union  and 
third countries. 

•  Existing provisions in the area of the proposal 

The provisions of the Agreement supersede or complement the existing provisions in 
the 18 bilateral air services agreements between Member States of the European Union 
and the Republic of Indonesia. 

•  Consistency with the other policies and objectives of the Union 

Council Decision 11323/03 of 5 June 2003 (restricted document) 

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The Agreement will serve a fundamental objective of the external aviation policy of the 
European Union by bringing existing bilateral air services agreements in line with the 
law of the European Union. 

2. 

Consultation of interested parties and impact assessment 

•  Consultation of interested parties 

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3. 

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Consultation methods, main sectors targeted and general profile of respondents 

Member  States  of  the  European  Union  as  well  as  the  industry  were  consulted 
throughout the negotiations. 

Summary of responses and how they have been taken into account 

Comments made by Member States of the European Union and the industry have been 
taken into account. 

Legal elements of the proposal 

•  Summary of the proposed action 

In  accordance  with  the  mechanisms  and  directives  in  the  Annex  to  the  ”horizontal 
mandate”, the Commission has negotiated an agreement with the Republic of Indonesia 
that replaces certain provisions in the existing bilateral air services agreements between 
Member States of the European Union and the Republic of Indonesia. Article 2 of the 
Agreement replaces the traditional designation clauses with a Community designation 
clause,  permitting  all  European  Union  carriers  to  benefit  from  the  right  of 
establishment.  Article  4  deals  with  the  taxation  of  aviation  fuel,  a  matter  which  has 
been  harmonised  by  Council  Directive  2003/96/EC  restructuring  the  Community 
framework for the taxation of energy products and electricity, and in particular Article 
14 (2) thereof.  Article 5 resolves potential conflicts with  the  competition  rules of the 
European Union. 

•  Legal basis 

TFEU Treaty Art. 100(2), 218(5) and 218(6)(a) 

•  Subsidiarity principle 

The  proposal  is  entirely  based  on  the  “horizontal  mandate”  granted  by  the  Council 
taking into account the issues covered by the law of the European Union and bilateral 
air services agreements. 

•  Proportionality principle 

The  Agreement  will  amend  or  complement  provisions  in  bilateral  air  services 
agreements  only  to  the  extent  necessary  to  ensure  compliance  with  the  law  of  the 
European Union. 

•  Choice of instruments 

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342 

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5. 

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The Agreement between the European Union and the Republic of Indonesia is the most 
efficient  instrument  to  bring  all  existing  bilateral  air  services  agreements  between 
Member States of the European Union and the Republic of Indonesia into conformity 
with the law of the European Union. 

Budgetary implication 

The proposal has no implication for the budget of the European Union. 

Additional information 

•  Simplification 

The proposal provides for simplification of legislation. 

The relevant provisions of bilateral air services agreements between Member States of 
the  European  Union  and  the  Republic  of  Indonesia  will  be  superseded  or 
complemented by provisions in one single agreement of the European Union. 

•  Detailed explanation of the proposal 

In  accordance  with  the  standard  procedure  for  the  signature  and  conclusion  of 
international agreements, the Council is asked to approve the decisions on the signature 
and on the conclusion of the Agreement on certain aspects of air services between the 
European Union and the Republic of Indonesia and to designate the persons authorised 
to sign the Agreement on behalf of the European Union.  

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2010/0131 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signature and provisional application of the Agreement on certain aspects of air 
services between the European Union and the Republic of Indonesia 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2), in conjunction with Article 218(5) thereof, 

Having regard to the proposal from the European Commission2, 

Whereas: 

(1) 

(2) 

By  its  Decision  of  5  June  2003,  the  Council  authorised  the  Commission  to  open 
negotiations with third countries on the replacement of certain provisions in existing 
bilateral agreements with an agreement at Union level, 

On  behalf  of  the  Union,  the  Commission  has  negotiated  an  Agreement  with  the 
Republic of Indonesia on certain aspects of air services (hereinafter "the Agreement") 
in  accordance  with  the  mechanisms  and  directives  in  the  Annex  to  the  Council 
Decision of 5 June 2003, 

(3) 

The  Agreement  negotiated  by  the  Commission  should  be  signed  and  provisionally 
applied subject to its conclusion at a later date. 

HAS ADOPTED THIS DECISION:  

Article 1 

The signing of the Agreement between the European Union and the Republic of Indonesia on 
certain  aspects  of  air  services  is  hereby  approved  on  behalf  of  the  Union,  subject  to  the 
conclusion of the Agreement. 

The text of the Agreement is attached to this Decision. 

2 

OJ C , , p. . 

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Article 2 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
sign  on  behalf  of  the  Union  the  Agreement  on  behalf  of  the  Union  subject  to  its 
conclusion. 

Article 3 

Pending  its  entry  into  force,  the  Agreement  shall  be  applied  provisionally  from  the 
first day of the first month following the date on which the parties have notified each other of 
the completion of the necessary procedures for this purpose3. 

Article 4 

The President of the Council is hereby authorised to make the notification provided 
for in Article 8(2) of the Agreement. 

This Decision shall enter into force on the date of its adoption. 

Article 5 

Article 6 

This Decision shall be published in the Official Journal of the European Union. 

Done at Brussels,  

For the Council 
The President 

3 

The  date  from  which  the  Agreement  will  be  provisionally  applied  will  be  published  in  the  Official 
Journal of the European Union by the General Secretariat of the Council. 

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