Bulgarian national procedure for the allocation of limited air traffic rights
Date: 2010-06-23
Institutions: European Commission
Subjects: Bulgaria, air law, air traffic, air transport, airline, carrier, market access, third country








C_2010163EN.01000301.xml










23.6.2010   


EN


Official Journal of the European Union


C 163/3





Bulgarian national procedure for the allocation of limited air traffic rights
2010/C 163/03
In accordance with Article 6 of Regulation (EC) No 847/2004 on the negotiation and implementation of air service agreements between Member States and third countries, the European Commission publishes the following national procedure for the distribution among eligible Community carriers of air traffic rights where they are limited under air service agreements with third countries.
MINISTRY OF TRANSPORT, INFORMATION TECHNOLOGIES AND COMMUNICATIONS

REGULATION No 847


of 15 January 2010


establishing a national procedure for granting Community air carriers established in the Republic of Bulgaria access to the market for air services agreed under the Republic of Bulgaria's international agreements with countries outside the European Union

CHAPTER I

GENERAL PROVISIONS








Art. 1.



This Regulation lays down the terms and procedures for the access of Community air carriers established in the Republic of Bulgaria to the market for air services agreed under the international agreements of the Republic of Bulgaria with countries outside the European Union (third countries).











Art. 2.



Where an international agreement with a third country provides for limitations on the number of air carriers eligible to be designated to operate an agreed service or on the use of traffic rights, such as: limitations on the frequency of operations, the capacity offered or the number of points to be operated, market access to an agreed service shall be granted after a competitive tendering procedure carried out in accordance with this Regulation.




CHAPTER II

INFORMATION








Art. 3.









(1)


On the websites of the Ministry of Transport, Information Technologies and Communications and the Directorate-General forCivil Aviation Administration (DG CAA) information shall be published and regularly updated on:






1.


the Republic of Bulgaria's international agreements with third countries, agreed services, specified routes and other traffic rights;










2.


the number of air carriers which may be designated under these agreements;










3.


the number of designations made and the date of their entry into force;










4.


negotiated frequencies and capacity;










5.


frequencies and capacity according to the act of designation;










6.


planned bilateral negotiations between the Republic of Bulgaria and any third country;










7.


orders under Article 8(1), Article 18 and Article 19 within three days of their issue;










8.


a list of persons who have submitted a preliminary application for designation to operate a commercial air service or an application to take part in competitive tendering within five working days of receipt of the application;










9.


the preliminary and final reports of the committee referred to in Article 17(1) and (3);










10.


court rulings on appeals against orders of the Minister for Transport, Information Technologies and Communications.














(2)


The Minister for Transport, Information Technologies and Communications and the Director-General of the DG CAA shall by order appoint the persons who, for a period of three years, are to be responsible for the publication of the information referred to in paragraph 1.








CHAPTER III

GENERAL CONDITIONS FOR BEING GRANTED MARKET ACCESS








Art. 4.



Market access to an agreed service may be granted to any Community air carrier established in the Republic of Bulgaria if:






1.


it has a valid operating licence and air operator certificate;










2.


it is not subject to an operating ban for flights in the territory of the European Community under Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC.








CHAPTER IV

PRELIMINARY APPLICATION FOR DESIGNATION








Art. 5.









(1)


Any person meeting the requirements of Article 4 may submit a preliminary application to the DG CAA for designation to operate an agreed service.










(2)


The preliminary application must contain:






1.


copies certified by the applicant of its operating licence and air operator certificate;










2.


proof that the person meets the requirements of Article 4;










3.


information about the designation applied for — the agreed service, specified route, hours of take-off and landing, type of aircraft, planned capacity and frequency.



















Art. 6.



If the agreed service for which a preliminary application has been submitted is subject to limitations on traffic rights, the Minister for Transport, Information Technologies and Communications shall issue an order opening a competitive tendering procedure within 30 days of receipt of the preliminary application.











Art. 7.



If the agreed service for which a preliminary application has been submitted is not subject to limitations on traffic rights, market access shall be granted without a competitive tendering procedure, in accordance with Chapter VI.




CHAPTER V

COMPETITIVE TENDERING PROCEDURE FOR MARKET ACCESS








Art. 8.









(1)


The competitive tendering procedure shall be launched by order of the Minister for Transport, Information Technologies and Communications.










(2)


The competitive tendering procedure shall be launched at the initiative of the Minister for Transport, Information Technologies and Communications, on a proposal from the DG CAA or under the terms of Article 6.










(3)


The order shall contain at least the agreed service, the number of designations allowed, the available frequencies and/or capacity, the rules governing the procedure, the deadline for submitting applications to take part and the date, hour and venue for the opening of applications.










(4)


The deadline for submitting applications to take part shall be set by the order referred to in paragraph 1 and shall be at least 45 days after the date of issue of the order.










(5)


When the order referred to in paragraph 1 is published on the websites of the Ministry of Transport, Information Technologies and Communications and the DG CAA, information about the competitive tendering procedure shall at the same time be published in two national daily newspapers. The information shall contain at least the agreed service for which the competitive tendering procedure is being launched, the deadline for submitting applications to take part, the date for holding the competitive tendering procedure and the websites where the order has been published.










(6)


Where the competitive tendering procedure has been launched as a result of a preliminary application under Article 5, information about the competitive tendering procedure shall also be sent to the persons who have submitted applications.















Art. 9.









(1)


Applications to take part in the competitive tendering procedure must be submitted to the DG CAA in a sealed non-transparent envelope by the applicant itself or by its authorised representative, personally or by mail. The envelope must display the address for correspondence, telephone number and, if possible, fax number and email address, as well as the agreed service for which the application is being submitted.










(2)


Upon acceptance of the application, the envelope shall be marked with a serial number, date and hour of receipt and these data shall be entered in a register.










(3)


Applications submitted after the deadline or in a damaged envelope shall not be admitted to the competitive tendering procedure. These circumstances shall be noted in the register referred to in paragraph 2.










(4)


All documents must be submitted in the Bulgarian language, in the original or a copy certified by the candidate. Any documents in a foreign language shall be accompanied by a certified translation in the Bulgarian language.















Art. 10.









(1)


Applications must indicate the agreed service, the planned capacity and frequency of the service.










(2)


The following items shall be attached to the application and form an inseparable part thereof:






1.


copies certified by the applicant of its air operator certificate and operating licence, and detailed information about the manner of establishment — for applicants whose certificates and licences have not been issued by the DG CAA;










2.


a business plan for the development of the agreed service for 36 months from the date planned for the start of operations, including:






(a)


a market survey of the traffic with quantitative indicators, where relevant, for: the existing traffic flows on the agreed service (direct, transit, originating in Bulgaria or in other countries); expected growth rates of these flows; existing traffic distribution by passenger types (business, tourist or other); traffic which will be generated, including a breakdown by passenger types; proposed air fares and end prices for each type of passengers; services in addition to the air transport service which the applicant intends to offer on the agreed service; the benefits (in terms of prices, quality and/or other) of the proposed services for users; the distribution of these benefits according to the origin of the traffic flows;










(b)


route, hours of take-off and landing;










(c)


income and expenditure projection;










(d)


investment and information about the sources of financing for the operation of the agreed service;










(e)


aircraft type, capacity and configuration;










(f)


expected load factor;










(g)


connectivity of the agreed service with other air services, if any;










(h)


consumer access to the proposed services (ticket sales network, internet-based services); information about the CRS used, if any;










(i)


information about business cooperation with other air carriers, if any;










(j)


starting date and duration of the operation of the agreed service;










(k)


any other relevant information for the purposes of the evaluation.























Art. 11.









(1)


The competitive tendering procedure shall be conducted by a committee, appointed by order of the Minister for Transport, Information Technologies and Communications, which shall consist of two representatives of the Ministry of Transport, Information Technologies and Communications and three representatives of the DG CAA.










(2)


The order shall also appoint alternate members.










(3)


The committee shall be announced after the deadline for submitting applications expires.










(4)


Upon their appointment, the members of the committee shall declare in writing that they:






1.


do not have any material interest in granting market access to the participating applicants;










2.


are not related within the meaning of the Commerce Act to the applicants or to members of their management or control bodies;










3.


have no private interest, within the meaning of the Conflict of Interest Prevention and Disclosure Act, in the designation of a specific air carrier.














(5)


The committee shall examine the applications and documents submitted, assess whether applicants should be admitted to the evaluation stage, evaluate and rank the applicants admitted.















Art. 12.









(1)


The committee shall begin work on the day indicated by the order opening the competitive tendering procedure and prepare a preliminary report on its work within 30 days.










(2)


The applicants shall be notified in writing of any change in the date and hour of opening the applications.










(3)


The committee shall open the envelopes in the order of their receipt and prepare a list of the documents contained therein.










(4)


The applicants or their authorised representatives may be present during the actions of the committee referred to in paragraph 3.










(5)


The committee shall verify the applicants’ compliance with the provisions of Article 4, as well as the compliance of the applications with the requirements of Article 10.










(6)


The committee may at any time verify the data provided by the applicants and, if necessary, demand that additional proof of the facts stated in the applications be submitted in writing within a specified time period.















Art. 13.









(1)


The committee shall exclude from participation and not admit to the evaluation procedure any applicant which does not meet the requirements of Article 4 or which has failed to submit a document required by Article 10 within the time limit referred to in paragraph 2.










(2)


If the committee finds that a document required by Article 10 has not been submitted, it shall notify the applicant and give it an opportunity to submit it no later than 10 days after the date of receipt of the notification.










(3)


The committee shall conduct all correspondence with the applicants in writing — notices shall be delivered in person upon signed acknowledgement or sent by registered mail with advice of delivery or by fax.















Art. 14.



During the competitive tendering procedure applicants must immediately notify the committee of any changes in the circumstances referred to in Articles 4 and 10.











Art. 15.









(1)


The committee shall evaluate the applicants by comparing applications and awarding up to five points for each of the following criteria:






1.


the quality of the services proposed — route, frequencies, aircraft type and configuration, type of operations (scheduled or non-scheduled; passenger, freight or mixed; using owned/dry leased aircraft or wet leased aircraft; code-sharing; direct or indirect services), duration of the operation, continuity of the operation, connectivity of the agreed service with other air services, if any, additional services;










2.


satisfaction of all main categories of public demand and/or market development by ensuring access to new routes or extension of existing routes;










3.


benefits for consumers (e.g. services offered such as ticket sales and consumer access to such services);










4.


the quality/price ratio of the air transport service;










5.


the soundness of the business plan;










6.


the promotion of competition between air carriers, including services provided by new entrants;










7.


economically efficient use of traffic rights;










8.


contribution to environmental protection — reducing noise levels and harmful emissions.














(2)


The committee shall rank the applicants in descending order according to the total score obtained for all criteria, with the applicant receiving the most points being ranked first.















Art. 16.









(1)


The committee’s decisions shall be adopted by a majority of its members.










(2)


The committee shall prepare a report on the results of the competitive tendering procedure, which shall be signed by all members of the committee.










(3)


If a member of the committee opposes the decision adopted, that member shall sign the report and annex to it their opinion in writing.










(4)


If, for objective reasons, a member of the committee is unable to perform their duties and cannot be replaced by an alternate member, the Minister for Transport, Information Technologies and Communications shall issue an order appointing a new member.















Art. 17.









(1)


After evaluating all submitted applications, the committee shall prepare a preliminary report, which shall be published on the official websites of the Ministry of Transport, Information Technologies and Communications and the DG CAA.










(2)


The applicants shall be given one opportunity to make comments on the preliminary report no later than 20 days after its publication and to submit additional documents. The committee may request additional information relevant to the evaluation process, setting a deadline for submission which may not be more than 10 days after the date of receiving the request.










(3)


The committee shall examine the comments and information submitted within one week of the expiry of the deadlines referred to in paragraph 2 and prepare a final report for submission to the Minister for Transport, Information Technologies and Communications within the three working days following its preparation.















Art. 18.



No later than five working days after receiving the committee’s reports, the Minister for Transport, Information Technologies and Communications shall, stating his grounds, issue an order announcing the ranking of the applicants and declaring the air carrier ranked in first place to be eligible for designation to operate the agreed service.











Art. 19.









(1)


When there is only one applicant to take part in the competitive tendering procedure, the decision to grant market access shall be taken by the Minister for Transport, Information Technologies and Communications, provided the applicant meets the requirements of Article 4 and the application contains the information and documents referred to in Article 10.










(2)


Compliance shall be assessed by the committee appointed by the Minister for Transport, Information Technologies and Communications under Article 11.










(3)


If the applicant and its application meet the requirements, the committee shall propose that the Minister for Transport, Information Technologies and Communications declare the applicant to be eligible for designation to operate the agreed service.










(4)


The Minister for Transport, Information Technologies and Communications shall issue the order referred to in paragraph 3 no later than five business days after conclusion of the committee’s work and shall take the necessary steps to designate the applicant under the terms and procedures of the relevant international agreement.










(5)


If the applicant and its application do not meet the requirements, the committee shall propose that the Minister for Transport, Information Technologies and Communications issue an order refusing market access.















Art. 20.



The chairman of the committee shall notify the applicants in writing of the results of the competitive tendering procedure no later than three days after the date on which the orders referred to in Articles 18 and 19 are issued.











Art. 21.









(1)


The applicant ranked in first place shall be designated to operate the agreed service under the terms and procedures of the relevant international agreement.










(2)


No later than 10 working days after the expiry of the deadline for appeals against the order referred to in Article 18 and if no appeal has been received during this period, the Minister for Transport, Information Technologies and Communications shall take the necessary steps to initiate a procedure for designation.















Art. 22.









(1)


A designated air carrier which does not receive an operating authorisation from the Party to the international agreement must immediately notify the DG CAA in writing of the refusal.










(2)


The Director-General of the DG CAA shall conduct correspondence with the competent authority of the Party to the international agreement in order to establish the reasons for the refusal referred to in paragraph 1.










(3)


If the refusal to grant the operating authorisation is justified under the international agreement, the Minister for Transport, Information Technologies and Communications shall issue an order declaring the applicant next in the ranking eligible for designation to operate the agreed service and take the necessary steps for its designation.















Art. 23.



If no application has been submitted for participation in the competitive tendering procedure or if none of the applicants meets the requirements of Article 4 or has been admitted to the evaluation stage under Article 13, the committee shall propose that the Minister for Transport, Information Technologies and Communications issue an order terminating the competitive tendering procedure.




CHAPTER VI

GRANTING OF MARKET ACCESS WITHOUT A COMPETITIVE TENDERING PROCEDURE








Art. 24.



Where an international agreement with a third country does not provide for limitations on traffic rights, market access shall be granted without a competitive tendering procedure to all persons submitting applications and meeting the requirements of Article 4.











Art. 25.









(1)


Applications for market access without a competitive tendering procedure shall be submitted to the DG CAA in a sealed non-transparent envelope by the applicant or its authorised representative, personally or by mail. The envelope must display the address for correspondence, telephone number and, if possible, a fax number and email address, as well as the agreed service for which the application is being submitted.










(2)


The application shall specify the agreed service, route, times of take-off and landing, aircraft type, planned capacity, frequency of operation, air fares and end prices for carriage of passengers.















Art. 26.



Applications submitted under Article 25 shall be examined by the DG CAA no later than 15 days after they are received.











Art. 27.









(1)


The DG CAA shall verify the application's compliance with the requirements of Article 25 and the applicant's compliance with the provisions of Article 4.










(2)


If the application in order and the applicant meets the requirements of this Regulation, the DG CAA shall propose that the Minister for Transport, Information Technologies and Communications take the necessary steps to designate the applicant to operate the agreed service.















Art. 28.



The rules of Chapter V shall apply to all issues unresolved in this Chapter.




CHAPTER VII

RIGHTS AND OBLIGATIONS OF THE DESIGNATED AIR CARRIERS








Art. 29.









(1)


The right of market access to the agreed service shall be acquired upon the entry into force of the decision designating the air carrier in accordance with the applicable international agreement and the Civil Aviation Act.










(2)


The right of market access to the agreed service shall be of unlimited duration unless otherwise provided for in the designation decision and shall be neither transferable nor assignable.















Art. 30.



The right of market access shall be revoked upon the entry into force of the decision repealing the designation in the event of any of the circumstances referred to in Article 32 or Article 34(5).











Art. 31.









(1)


The designated air carrier must begin operation of the agreed service no more than six months after the entry into force of the designation decision.










(2)


The designated air carrier may not interrupt the operation of the agreed service for more than six months.










(3)


If the designated air carrier is unable to operate the agreed service for reasons beyond its control, it must notify the Minister for Transport, Information Technologies and Communications and the Director-General of the DG CAA in writing no more than seven days after the circumstances arise.










(4)


The designated air carrier must comply with the terms of the international agreement and the designation decision and must make rational use of the traffic rights granted.















Art. 32.



The Director-General of the DG CAA shall, after consulting the designated air carrier, propose that the Minister for Transport, Information Technologies and Communications take the necessary steps to revoke designation in the event that the air carrier:






1.


notifies the DG CAA that it intends to cease operating the agreed service;










2.


fails to start operation in the six months following its designation or interrupts the operation of the agreed service for more than six months, unless the interruption is for reasons beyond its control;










3.


no longer meets the requirements of Article 4, unless it has been granted a temporary licence in accordance with Article 9(1) of Regulation (EC) No 1008/2008;










4.


fails to comply with the terms of the designation decision or the international agreement.








CHAPTER VIII

CONTROL








Art. 33.









(1)


Checks on compliance with this Regulation shall be performed in accordance with Article 16b(1), points 1, 3, 4 and 13, (2), (3) and (4) of the Civil Aviation Act.










(2)


The DG CAA may at any time check designated air carriers’ compliance with the requirements of the international agreements, this Regulation and the terms of the designation decision.















Art. 34.









(1)


Any Community air carrier established in the territory of the Republic of Bulgaria may challenge before the DG CAA the designation of another air carrier on the grounds of the latter's failure to make rational use of the traffic rights granted for operation of an agreed service which is subject to limitations on traffic rights.










(2)


Challenges shall be admissible if submitted no earlier than three years after the entry into force of the designation decision or after a previous examination.










(3)


The Minister for Transport, Information Technologies and Communications shall appoint a committee in accordance with Article 11 to examine the challenge within 30 days of its submission.










(4)


Challenges must also contain the information required under Article 10.










(5)


The committee shall propose that the Minister for Transport, Information Technologies and Communications issue an order opening a competitive tendering procedure under the terms of Chapter V, if it considers that the air carrier which has submitted the challenge may be able to ensure more rational use of the traffic rights than the designated air carrier.










(6)


The committee shall propose that the Minister issue an order refusing to launch a competitive tendering procedure, if it considers that the air carrier which has submitted the challenge would not be able to ensure more rational use of the traffic rights than the designated air carrier.















Art. 35.



The decisions of the Minister for Transport, Information Technologies and Communications and of the Director-General of the DG CAA shall be subject to appeal in accordance with the Code on Administrative Procedures.





Additional provision








§ 1.



For the purposes of this Regulation:






1.


‘business plan’ shall have the meaning defined in Article 2(12) of 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 (OJ L 293, 31.10.2008), hereinafter referred to as ‘Regulation (EC) No 1008/2008’;










2.


‘Community air carrier’ shall have the meaning defined in Article 2(11) of Regulation (EC) No 1008/2008;










3.


‘capacity’ shall mean the number of seats which can be offered for sale on an agreed service for a specified period of time;










4.


‘international agreement with a third country’ shall mean a bilateral or multilateral agreement or arrangement for air services (air transport) with a third country as referred to in Article 1 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air services agreements between Member States and third countries (OJ L 157, 30.4.2004);










5.


‘operating licence’ shall mean any licence granted in accordance with Regulation (EC) No 1008/2008 or Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers;










6.


‘point of operation’ shall mean any city/airport indicated by the Parties to an international agreement, through which the specified route of the agreed service passes;










7.


‘traffic rights’ shall mean rights of access to routes, for designating air carriers, providing capacity or frequencies of operation, overflying, technical stops, positioning of aircraft, change of gauge, code-sharing, franchising, leasing of aircraft, providing intermodal services, providing passenger, freight and/or mail transportation, using freedoms of the air etc.









Transitional and final provisions








§ 2.



This Regulation is issued on the basis of Article 7(3), third sentence, and Article 50(5) of the Civil Aviation Act.











§ 3.



This Regulation lays down measures at national level for the implementation of Article 5 of Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air services agreements between Member States and third countries.











§ 4.



Regulation No 2408 of 31 May 2005 on market access for air carriers (SG, issue 48, 10.6.2005) is hereby repealed.











§ 5.









(1)


Limited traffic rights granted before the entry into force of this Regulation shall be used in accordance with the requirements of this Regulation and may be revoked on the grounds stipulated herein.










(2)


With respect to designations made before the entry into force of this Regulation, the first challenge referred to in Article 34 shall be admissible if submitted no earlier than five years after the entry into force of the designation decision.















§ 6.



No later than seven working days after this Regulation's publication in the State Gazette the Minister for Transport, Information Technologies and Communications shall send its text to the European Commission for publication in the Official Journal of the European Union in accordance with Article 6 of Regulation (EC) No 847/2004 on the negotiation and implementation of air services agreements between Member States and third countries.






Aleksandar TSVETKOV

Minister for Transport, Information Technologies and Communications