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 Peru
Date: 2010-06-03
Institutions: European Commission
Subjects: Peru, agreement (EU), air transport, aviation fuel, fuel tax, right of establishment, signature of an agreement

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EUROPEAN COMMISSION 

Brussels, 3.6.2010 
COM(2010)263 final 

2010/0141 (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 Peru  

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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 and third countries in line with the law of 
the Union. 

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•  General context 

International  aviation  relations  between  Member  States  and  third  countries  have 
traditionally  been  governed  by  bilateral  air  services  agreements  between  Member 
States 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  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  but  that  is  not  substantially  owned  and  effectively  controlled  by  that 
Member State or its nationals. This has been found to constitute discrimination against 
Community  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 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  Union 
should be ensured through amending or complementing existing provisions in bilateral 
air services agreements between Member States and third countries. 

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•  Existing provisions in the area of the proposal 

The provisions of the Agreement supersede or complement the existing provisions in 
the nine bilateral air services agreements between Member States and the Republic of 
Peru. 

•  Consistency with the other policies and objectives of the Union 

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

1 

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

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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 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 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 Peru that 
replaces  certain  provisions  in  the  existing  bilateral  air  services  agreements  between 
Member  States  and  the  Republic  of  Peru.  Article  2  of  the  Agreement  replaces  the 
traditional  designation  clauses  with  a  Community  designation  clause,  permitting  all 
Community 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 Union. 

•  Legal basis 

Art. 100(2), 218(5) TFEU 

•  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 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 
Union. 

•  Choice of instruments 

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

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4. 

409 

5. 

510 

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Budgetary implication 

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

Additional information 

•  Simplification 

The proposal provides for simplification of legislation. 

The  relevant  provisions  of  bilateral  air  services  agreements  between  Member  States 
and  the  Republic  of  Peru  will  be  superseded  or  complemented  by  provisions  in  one 
single agreement of the 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  Peru  and  to  designate  the  persons  authorised  to 
sign the Agreement on behalf of the Union.  

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2010/0141 (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 Peru 

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  on  certain 
aspects  of  air  services  with  the  Republic  of  Peru  (hereinafter  "the  Agreement")  in 
accordance with the mechanisms and directives in the Annex to the Council Decision 
of 5 June 2003, 

(3) 

Subject  to  its  possible  conclusion  at  a  later  date,  the  Agreement  negotiated  by  the 
Commission should be signed and provisionally applied. 

HAS DECIDED AS FOLLOWS:  

Article 1 

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

Article 2  

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 purpose.  

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

Article 4 

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 

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