Proposal for a COUNCIL DECISION on the conclusion of the Agreement on certain aspects of air services between the European Union and the Republic of Cape Verde
Date: 2010-10-22
Institutions: European Commission
Subjects: Cabo Verde, agreement (EU), air transport, aviation fuel, fuel tax, ratification of an agreement

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EUROPEAN COMMISSION 

Brussels, 22.10.2010 
COM(2010) 591 final 

2010/0296 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement on certain aspects of air services between the 
European Union and the Republic of Cape Verde 

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EXPLANATORY MEMORANDUM 

1. 

110 

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. 

120 

•  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  competition,  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  eight  bilateral  air  services  agreements  between  Member  States  of  the  European 
Union and the Republic of Cape Verde. 

•  Consistency with the other policies and objectives of the Union 

The Agreement will serve a fundamental objective of the external aviation policy of the 

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

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140 

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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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212 

3. 

305 

310 

329 

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  Cape 
Verde that replaces certain provisions in the existing bilateral air services agreements 
between  Member  States  of  the  European  Union  and  the  Republic  of  Cape  Verde. 
Article  2  of  the  Agreement  replaces  the  traditional  designation  clauses  with  an  EU 
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(6) 

•  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 

342 

The  Agreement  between  the  European  Union  and  the  Republic  of  Cape  Verde  is  the 

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4. 

409 

5. 

510 

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most efficient instrument to bring all existing bilateral air services agreements between 
Member States of the European Union and the Republic of Cape Verde 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  Cape  Verde  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  Cape  Verde  and  to  designate  the  persons 
authorised to sign the Agreement on behalf of the European Union.  

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2010/0296 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement on certain aspects of air services between the 
European Union and the Republic of Cape Verde 

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(6) thereof, 

Having regard to the proposal from the European Commission2, 

Having regard to the consent of the European Parliament3, 

Whereas: 

(1) 

(2) 

(3) 

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  European  Union,  the  Commission  has  negotiated  an  Agreement  on 
certain aspects of air services with the Republic of Cape Verde in accordance with the 
mechanisms and directives in the Annex to the Council Decision of 5 June 2003, 

The Agreement has been signed on behalf of the European Union on […] subject to its 
possible  conclusion  at  a  later  date,  in  conformity  with  Decision  …/…/EC  of  the 
Council on […]4,  

(4) 

The Agreement should be approved. 

HAS ADOPTED THIS DECISION:  

Article 1  

The Agreement on certain aspects of air services  between the European  Union  and 
the Republic of Cape Verde is approved on behalf of the Union. 

The text of the Agreement is annexed to this Decision. 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

1. 

2. 

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Article 2 

The  President  of  the  Council  is  authorised  to  designate  the  person  empowered  to  make  the 
notification provided in Article 8(1) of the Agreement. 

Done at Brussels,  

For the Council 
The President 

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DRAFT 

AGREEMENT 
between the European Union and the Republic of Cape Verde 
on certain aspects of air services 

THE EUROPEAN UNION  

of the one part, and  

THE REPUBLIC OF CAPE VERDE  

(hereinafter referred to as ‘Cape Verde') 

of the other part 

(hereinafter referred to as ‘the Parties’) 

NOTING that bilateral air service agreements have been concluded between several Member 
States of the European Union and Cape Verde containing provisions contrary to the law of the 
European Union, 

NOTING that the European Union has exclusive competence with respect to several aspects 
that  may  be  included  in  bilateral  air  service  agreements  between  Member  States  of  the 
European Union and third countries, 

NOTING that under the law of the European Union, European Union air carriers established 
in a Member State of the European Union have the right to non-discriminatory access to air 
routes between the Member States of the European Union and third countries, 

HAVING  REGARD  to  the  agreements  between  the  European  Union  and  certain  third 
countries  providing  for  the  possibility  for  the  nationals  of  such  third  countries  to  acquire 
ownership in air carriers licensed in accordance with the law of the European Union, 

RECOGNISING  that  certain  provisions  of  the  bilateral  air  service  agreements  between 
Member States of the European Union and Cape Verde, which are contrary to the law of the 
European Union, must be brought into conformity with it in order to establish a sound legal 
basis  for  air  services  between  the  European  Union  and  Cape  Verde  and  to  preserve  the 
continuity of such air services, 

RECOGNISING that in the conclusion of any air services agreements by the Government of 
the  Republic  of  Cape  Verde  with  non-EU  Member  States,  Cape  Verde  implements  its  own 
policy and rules on air carriers ownership and control, 

NOTING that under the law of the European Union, European Union air carriers may not, in 
principle,  conclude  agreements  which  may  affect  trade  between  Member  States  of  the 
European  Union  and  which  have  as  their  object  or  effect  the  prevention,  restriction  or 
distortion of competition, 

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RECOGNISING  that  provisions  in  bilateral  air  service  agreements  concluded  between 
Member  States  of  the  European  Union  and  Cape  Verde  which  i)  require  or  favour  the 
adoption  of  agreements  between  undertakings,  decisions  by  associations  of  undertakings  or 
concerted  practices  that  prevent,  distort  or  restrict  competition  between  air  carriers  on  the 
relevant  routes;  or  ii)  reinforce  the  effects  of  any  such  agreement,  decision  or  concerted 
practice; or iii) delegate to air carriers or other private economic operators the responsibility 
for  taking  measures  that  prevent,  distort  or  restrict  competition  between  air  carriers  on  the 
relevant routes may render ineffective the competition rules applicable to undertakings, 

NOTING that it is not a purpose of the European Union, as part of this agreement, to increase 
the  total  volume  of  air  traffic  between  the  European  Union  and  Cape  Verde,  to  affect  the 
balance between European Union air carriers and air carriers of Cape Verde, or to negotiate 
amendments  to  the  provisions  of  existing  bilateral  air  service  agreements  concerning  traffic 
rights. 

HAVE AGREED AS FOLLOWS: 

ARTICLE 1 
General provisions 

1. 

2. 

3. 

1. 

2. 

For the purposes of this Agreement, 'EU Member States' shall mean Member States 
of the European Union; 'EU Treaties' shall mean the Treaty on the European Union 
and  the  Treaty  on  the  Functioning  of  the  European  Union;  'Party'  shall  mean  a 
contracting  party  to  this  agreement;  'air  carrier'  shall  also  mean  airline;  'territory  of 
the  European  Union'  shall  mean  territories  of  the  Member  states  to  which  the  EU 
Treaties apply.  

References  in  each  of  the  agreements  listed  in  Annex  1  to  nationals  of  the  EU 
Member  State  that  is  a  Party  to  that  agreement  shall  be  understood  as  referring  to 
nationals of the Member States of the European Union. 

References in each of the agreements listed in Annex 1 to air carriers or airlines of 
the  EU  Member  State  that  is  a  Party  to  that  agreement  shall  be  understood  as 
referring to air carriers or airlines designated by that Member State. 

ARTICLE 2 
Designation, Authorisation and Revocation by an EU Member State 

The provisions in paragraphs 2 to 4 of this Article shall supersede the corresponding 
provisions in the articles listed in Annex 2 (a) and (b) respectively, in relation to the 
designation of an air carrier, and the licences and permits granted to it. 

On  receipt  of  a  designation  by  an  EU  Member  State,  Cape  Verde  shall  grant  the 
appropriate  authorisations  and  permissions  with  minimum  procedural  delay, 
provided that: 

i. 

the  air  carrier  is  established,  under  the  EU  Treaties,  in  the  territory  of  the 
designating EU Member State and has a valid Operating Licence in accordance 
with the law of the European Union; and 

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ii. 

iii. 

effective regulatory control of the air carrier is exercised and maintained by the 
EU Member State responsible for issuing its Air Operator’s Certificate and the 
relevant aeronautical authority is clearly identified in the designation; and 

the  air  carrier  is  owned,  directly  or  through  majority  ownership,  and  it  is 
effectively  controlled  by  EU  Member  States  and/or  nationals  of  EU  Member 
States, and/or by other states listed in Annex 3 and/or nationals of such other 
states. 

3. 

Cape Verde may refuse, revoke, suspend or limit the authorisations or permissions of 
an air carrier designated by an EU Member State where: 

i. 

ii. 

iii. 

the air carrier is not established, under the EU Treaties, in the territory of the 
designating  EU  Member  State  or  does  not  have  a  valid  Operating  Licence  in 
accordance with the law of the European Union; or 

effective regulatory control of the air carrier is not exercised or not maintained 
by the EU Member State responsible for issuing its Air Operator’s Certificate, 
or  the  relevant  aeronautical  authority  is  not  clearly  identified  in  the 
designation; or 

the air carrier is not owned, directly or through majority ownership, or it is not 
effectively  controlled  by  EU  Member  States  and/or  nationals  of  EU  Member 
States, and/or by other states listed in Annex 3 and/or nationals of such other 
states. 

In  exercising  its  right  under  paragraph  3  of  this  Article,  Cape  Verde  shall  not 
discriminate between air carriers of EU Member States on the grounds of nationality. 

ARTICLE 3 
Safety 

The  provisions  in  paragraph  2  of  this  Article  shall  complement  the  corresponding 
provisions in the articles listed in Annex 2 (c).  

Where an EU Member State has designated an air carrier whose regulatory control is 
exercised  and  maintained  by  another  EU  Member  State,  the  rights  of  Cape  Verde 
under the safety provisions of the agreement between the EU Member State that has 
designated  the  air  carrier  and  Cape  Verde  shall  apply  equally  in  respect  of  the 
adoption, exercise or maintenance of safety standards by that other EU Member State 
and in respect of the operating authorisation of that air carrier. 

ARTICLE 4 
Taxation of aviation fuel 

The  provisions  in  paragraph  2  of  this  Article  shall  complement  the  corresponding 
provisions in the articles listed in Annex 2 (d).  

Notwithstanding  any  other  provision  to  the  contrary,  nothing  in  each  of  the 
agreements listed in Annex 2 (d) shall prevent an EU Member State from imposing, 

4. 

1. 

2. 

1. 

2. 

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on a non-discriminatory basis, taxes, levies, duties, fees or charges on fuel supplied 
in  its  territory  for  use  in  an  aircraft  of  a  designated  air  carrier  of  Cape  Verde  that 
operates between a point in the territory of that EU Member State and another point 
in the  territory of that EU Member  State or in the territory of another EU Member 
State. 

ARTICLE 5 
Compatibility with competition rules 

1. 

Notwithstanding  any  other  provision  to  the  contrary,  nothing  in  each  of  the 
agreements listed in Annex 1 shall (i) require or favour the adoption of agreements 
between  undertakings,  decisions  by  associations  of  undertakings  or  concerted 
practices  that  prevent  or  distort  competition;  (ii)  reinforce  the  effects  of  any  such 
agreement,  decision  or  concerted  practice;  or  (iii)  delegate  to  private  economic 
operators  the  responsibility  for  taking  measures  that  prevent,  distort  or  restrict 
competition. 

2. 

The provisions contained in the agreements listed in Annex 1 that are incompatible 
with paragraph 1 of this Article shall not be applied. 

ARTICLE 6 
Annexes to the Agreement 

The Annexes to this Agreement shall form an integral part thereof. 

ARTICLE 7 
Revision or amendment 

The Parties may, at any time, revise or amend this Agreement by mutual consent. 

ARTICLE 8 
Entry into force and provisional application  

1. 

2. 

3. 

This  Agreement  shall  enter  into  force  when  the  Parties  have  notified  each  other  in 
writing  that  their  respective  internal  procedures  necessary  for  its  entry  into  force 
have been completed. 

Notwithstanding paragraph 1, the Parties agree to provisionally apply this Agreement 
from the first day of the month following the date on which the Parties have notified 
each other of the completion of the procedures necessary for this purpose. 

This  Agreement  shall  apply  to  all  agreements  and  arrangements  listed  in  Annex  1 
including those that, at the date of signature of this Agreement, have not yet entered 
into force and are not being applied provisionally. 

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ARTICLE 9 
Termination 

1. 

2. 

In the event that an agreement listed in Annex 1 is terminated, all provisions of this 
Agreement that relate to the agreement listed in Annex 1 concerned shall terminate at 
the same time.  

In  the  event  that  all  agreements  listed  in  Annex  1  are  terminated,  this  Agreement 
shall terminate at the same time.  

IN  WITNESS  WHEREOF,  the  undersigned,  being  duly  authorised,  have  signed  this 
Agreement. 

Done at [….] in duplicate, on this […] day of […, …] in the Bulgarian, Czech, Danish, Dutch, 
English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, 
Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish and Swedish languages, all 
texts being equally authentic. 

FOR THE EUROPEAN UNION:  FOR THE REPUBLIC OF CAPE VERDE:  

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List of agreements referred to in Article 1 of this Agreement 

ANNEX 1  

(a)  Air  service  agreements  between  Cape  Verde  and  Member  States  of  the  European 
Union  which,  at  the  date  of  signature  of  this  Agreement,  have  been  concluded,  signed 
and/or are being applied provisionally 

– 

– 

– 

– 

– 

– 

– 

– 

Agreement  between  the  Government  of  the  Kingdom  of  Belgium  and  the 
Government of the Republic of Cape Verde on Air Transport signed at Brussels on 
22 June 1998, hereinafter referred to “Cape Verde – Belgium Agreement” in Annex 
2 ; 

Air  Transport  Agreement  between  the  Government  of  the  Federal  Republic  of 
Germany and the Government of the Republic of Cape Verde signed at Berlin on 
19 June 2001, hereinafter referred to “Cape Verde – Germany Agreement” in Annex 
2 ; 

Agreement between the Government of the Italian Republic and the Government 
of the  Republic  of  Cape Verde concerning  Air Services signed at Praia on 7  July 
1998, hereinafter referred to “Cape Verde – Italy Agreement” in Annex 2 ; 

Agreement  between  the  Kingdom  of  the  Netherlands  and  the  Republic  of  Cape 
Verde  for  air  services  signed  at  The  Hague  on  21  December  1988,  hereinafter 
referred to “Cape Verde – Netherlands Agreement” in Annex 2 ; 

Agreement  between  the  Portuguese  Republic  and  the  Republic  of  Cape  Verde 
relating  to  Air  Transport  done  at  Lisbon  on  9  March  2004,  hereinafter  referred  to 
“Cape Verde – Portugal Agreement” in Annex 2 ; 

Agreement  between  the  Government  of  the  Socialist  Republic  of  Romania  and 
the Government of the Republic of Cape Verde concerning Air Services signed at 
Bucharest  on  31  August  1983,  hereinafter  referred  to  “Cape  Verde  –  Romania 
Agreement” in Annex 2 ; 

Agreement  between  the  Kingdom  of  Spain  and  the  Republic  of  Cape  Verde 
relating to Air Services signed at Madrid on 19 September 2002, hereinafter referred 
to “Cape Verde – Spain Agreement” in Annex 2 ; 

Agreement  between  the  Government  of  the  United  Kingdom  of  Great  Britain 
and  Northern  Ireland  and  the  Government  of  the  Republic  of  Cape  Verde 
concerning  Air  Services  signed  at  Praia  on  9  January  2007,  hereinafter  referred  to 
“Cape Verde – UK Agreement” in Annex 2 ; 

(b)  Air  service  agreements  and  other  arrangements  initialled  or  signed  between  Cape 
Verde and Member States of the European Union which, at the date of signature of this 
Agreement, have not yet entered into force and are not being applied provisionally 

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List of articles in the agreements listed in Annex 1 and referred to in Articles 2 to 4 of 
this Agreement 

ANNEX 2 

(a) Designation: 

– 

– 

– 

– 

– 

– 

Article 3 of the Cape Verde – Belgium Agreement; 

Article 3 of the Cape Verde – Germany Agreement; 

Article 4 of the Cape Verde – Italy Agreement; 

Article 3 of the Cape Verde – Netherlands Agreement; 

Article 3 of the Cape Verde – Romania Agreement; 

Article 3 of the Cape Verde – Spain Agreement; 

(b) Refusal, revocation, suspension or limitation of authorisations or permissions: 

– 

– 

– 

– 

– 

– 

Article 5 of the Cape Verde – Belgium Agreement; 

Article 3 and 4 of the Cape Verde – Germany Agreement; 

Article 4 and 5 of the Cape Verde – Italy Agreement; 

Article 3 and 4 of the Cape Verde – Netherlands Agreement; 

Article 4 of the Cape Verde – Romania Agreement; 

Article 4 of the Cape Verde – Spain Agreement; 

(c) Safety: 

– 

– 

– 

– 

– 

Article 12 of the Cape Verde – Germany Agreement; 

Article 10 of the Cape Verde – Italy Agreement; 

Article 15 of the Cape Verde – Portugal Agreement; 

Article 9 of the Cape Verde – Romania Agreement; 

Article 13 of the Cape Verde – Spain Agreement; 

(d) Taxation of aviation fuel: 

– 

– 

– 

Article 10 of the Cape Verde – Belgium Agreement; 

Article 6 of the Cape Verde – Germany Agreement; 

Article 6 of the Cape Verde – Italy Agreement; 

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– 

– 

– 

Article 6 of the Cape Verde – Netherlands Agreement; 

Article 11 of the Cape Verde – Romania Agreement; 

Article 5 of the Cape Verde – Spain Agreement. 

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List of other states referred to in Article 2 of this Agreement 

ANNEX 3 

(a) The Republic of Iceland (under the Agreement on the European Economic Area); 

(b)  The  Principality  of  Liechtenstein  (under  the  Agreement  on  the  European  Economic 
Area); 

(c) The Kingdom of Norway (under the Agreement on the European Economic Area); 

(d) The Swiss Confederation (under the Agreement between the European Community and 
the Swiss Confederation on Air Transport) 

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