National procedure for the allocation of restricted air traffic rights in Poland
Date: 2013-04-17
Institutions: Poland
Subjects: Poland, agreement (EU), air traffic, airline, invitation to tender, transport licence








C_2013110EN.01000701.xml










17.4.2013   


EN


Official Journal of the European Union


C 110/7





National procedure for the allocation of restricted air traffic rights in Poland
2013/C 110/05
In accordance with Article 6 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 service agreements between Member States and third countries (1), the European Commission publishes the following national procedure for the distribution among eligible Union carriers of air traffic rights where they are limited under air service agreements with third countries.
MINISTRY OF TRANSPORT, CONSTRUCTION AND MARITIME ECONOMY

Decree-Law No 16


of 7 January 2013


on the competitive application procedure encompassing the detailed conditions for the distribution of limited traffic rights

The following provisions are laid down pursuant to Article 191(14) of the Aviation Law Act of 3 July 2002 (Journal of Laws 2012, items 933, 951 and 1544):
CHAPTER 1

GENERAL PROVISIONS







§ 1.


This Regulation defines the competitive application procedure encompassing the detailed conditions for the distribution of limited traffic rights, and in particular:






1)


the information that should be given in applications for authorisation;










2)


the documents required for authorisation to be issued;










3)


the detailed criteria for the allocation of limited traffic rights;










4)


the grounds for authorisation to be withdrawn.














§ 2.


For the purposes of this Regulation:






1)


‘the Act’ means the Aviation Law Act of 3 July 2002;










2)


‘the Authority’ means the Polish Civil Aviation Authority;










3)


‘limited traffic rights’ means limitations provided for in an international agreement or the annexes thereto on the use of traffic rights as regards the frequency of flights or the number of carriers eligible to be designated to use traffic rights involving the operation of air services on routes or in areas between Poland and the third country concerned;










4)


‘Community air carrier’ means an air carrier with an operating licence for air services granted by the competent authority of a Member State of the European Union other than Poland in accordance with 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, p. 3);










5)


‘authorised air carrier’ means a Polish air carrier or a Community air carrier established in Poland within the meaning of Article 192a(2) of the Act.








CHAPTER 2

APPLICATIONS FOR AUTHORISATION AND CALL FOR SUBMISSION OF APPLICATIONS







§ 3.1.


Applications for authorisation to operate scheduled services or a series of non-scheduled services where limited traffic rights apply must contain the following information:






1)


the name of the air carrier;










2)


its registered address;










3)


for Community air carriers, the first name, surname and address of the carrier's representative in Poland authorised to represent the carrier or provide an address for service;










4)


the route(s) or areas for which the air carrier is applying, identifying airports by name;










5)


the planned starting date for the air services and the planned operating period;










6)


the planned number of services per week and the relevant days and times, indicating the types of aircraft and their capacity;










7)


the type of service (passenger, cargo, mixed);










8)


aircraft registration marks;










9)


a list of contracts entered into with any other air carrier to service the route using a hired aircraft with crew, where such contracts exist, specifying the period of validity;










10)


for passenger services, the number of passenger seats available and, for cargo services, the aircraft's commercial capacity; these data should be for a given route or area, for one week, for travel in both directions;










11)


forecasts for the operation of the connection(s) concerned over the next three scheduling seasons, including forecasts of the number of passengers, the expected average monthly rate of uptake of seats on the aircraft, forecasts of the full costs of serving the connection and the total revenue from the planned air services;










12)


details on how passengers can access the services offered, in particular the ticket distribution method;










13)


the history of operation of the services, particularly the volume of passenger traffic, the rate of uptake of seats and the financial results of the connection, if it was operated by the air carrier in question;










14)


the average final ticket price on the route in the most recent scheduling season, including for return tickets where applicable, within the meaning of Article 23 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;










15)


the amount of expenditure incurred previously to develop the connection to the country concerned, where applicable.














2.


Air carriers should annex the following to the application referred to in paragraph 1 above:






1)


a copy of the operating licence for air services issued by the competent authority of the relevant Member State of the European Union or, for Polish air carriers, the licence number;










2)


a copy of the air carrier certificate issued by the competent authority of the relevant State or, for Polish air carriers, the certificate number;










3)


the list of tariffs which will be applied on the route concerned, together with the conditions governing their application;










4)


the current internal management accounts and, if available, the annual accounts for the last financial year together with the auditor's report if there is a requirement under the applicable accounting rules to submit the accounts for examination;










5)


a business plan covering at least two years of the undertaking's operations, including a balance sheet, a profit-and-loss account and a cash-flow statement, if the undertaking had actually been operating, and information on the estimated costs of commencing operations on, or serving, the route in question.














3.


Community air carriers must also annex the following to the application referred to in paragraph 1: the documents indicated in Article 192a(3) of the Act and a copy of the power of attorney of the person authorised to represent the carrier or the power of attorney of the person providing an address for service.










§ 4.1.


If an application for authorisation is received and the international agreement governing the operation of air services on the route in question or in the area in question provides for limited traffic rights, the Chairman of the Authority shall, within seven days of receipt of the application for authorisation, publish information on the application in the Authority's Public Information Bulletin. This information shall contain only the name of the carrier, the route being applied for and the type of service (passenger, baggage, cargo or post) and a call to other authorised air carriers to submit applications for authorisation to operate air services on the route or in the area concerned.










2.


The call referred to in paragraph 1 shall specify:






1)


the limited traffic rights covered by the competitive application procedure;










2)


where applications for authorisation should be submitted and the deadline for filing;










3)


the list of documents referred to in Section 3;










4)


information on the conditions of the competitive application procedure, including the bid assessment criteria.














§ 5.1.


Within 30 days of the call to submit applications being published in the Authority's Public Information Bulletin:






1)


the carriers referred to in Section 4(1) should submit their applications for authorisation in accordance with Section 3;










2)


the air carrier that submitted an application before the call should supplement its application with the information and documents referred to in Section 3.














2.


Applications submitted after the deadline specified in paragraph 1 shall not be admitted to the competitive application procedure.










3.


After expiry of the deadline referred to in paragraph 1, the Chairman of the Authority shall carry out a formal assessment of whether the air carriers have submitted the information and documents in accordance with paragraph 1.










§ 6.1.


If, within the deadline referred to in Section 5(1), no other authorised air carrier submits an application for authorisation, the application submitted by the authorised air carrier that submitted an application before publication of the call shall be examined in accordance with Article 191 of the Act without a competitive application procedure being held.










2.


If, within the deadline referred to in Section 5(1), only one authorised air carrier as referred to in Section 5(1)(1) submits an application for authorisation meeting the formal requirements laid down in Section 3 and if the air carrier that submitted an application before publication of the call fails to submit the required documents and information in accordance with Section 5(1)(2), the application of the air carrier that submitted an application for authorisation meeting the formal requirements laid down in Section 3 shall be examined in accordance with Article 191 of the Act without a competitive application procedure being held.




CHAPTER 3

COMPETITIVE APPLICATION PROCEDURE







§ 7.1.


The Chairman of the Authority shall announce a competitive application procedure:






1)


after expiry of the deadline for filing applications for authorisation if, after publication of the call, at least one authorised carrier as referred to in Section 5(1)(1) has submitted an application for authorisation meeting the formal requirements laid down in Section 3 and the air carrier that submitted an application before publication of the call has submitted the required documents and information in accordance with Section 5(1)(2);










2)


after expiry of the deadline for filing applications for authorisation if, after publication of the call, at least two authorised carriers as referred to in Section 5(1)(1) submitted applications for authorisation meeting the formal requirements laid down in Section 3;










3)


in the event of withdrawal of authorisation in accordance with Article 191(8) of the Act if, after publication of the call, at least two authorised air carriers submitted applications for authorisation meeting the formal requirements in Section 3.














2.


In the circumstance referred to in paragraph 1(3), Sections 3 to 5 shall apply as appropriate.










§ 8.1.


The competitive application procedure shall begin on the day on which the Chairman of the Authority publishes the launch notice in the Authority's Public Information Bulletin.










2.


The Chairman of the Authority shall inform the authorised air carriers that submitted applications for authorisation meeting the formal requirements laid down in Section 3 that the competitive application procedure is being launched.










3.


The notice launching the competitive application procedure shall specify:






1)


the limited traffic rights covered by the competitive application procedure;










2)


the names and addresses of the authorised carriers referred to in paragraph 2;










3)


information on the conditions of the competitive application procedure, including the bid assessment criteria;










4)


the points scale for each of the criteria referred to in Section 15.














4.


The competitive application procedure shall be adjudicated within no more than 30 days of the date of publication of the launch notice.










§ 9.


After adjudicating the competitive application procedure, the Chairman of the Authority shall draw up a report specifying:






1)


the subject of the competitive application procedure and the place where it was held;










2)


the applications that met the formal requirements;










3)


the applications that did not meet the formal requirements, with information on the shortcomings noted;










4)


the points awarded to the applications that met the formal requirements;










5)


the authorised air carrier(s) to which authorisation will be issued.














§ 10.1.


The Chairman of the Authority shall immediately notify participants of the outcome of the competitive application procedure.










2.


The Chairman of the Authority shall immediately publish information on the outcome of the competitive application procedure and the report referred to in Section 9 in the Authority's Public Information Bulletin.










§ 11.1.


A participant in the competitive application procedure may appeal to the Chairman of the Authority against the outcome of the procedure.










2.


Such appeal must be made in writing within 14 days of the information on the outcome of the competitive application procedure being published, with the filing date being deemed to be the date on which the appeal reaches the Authority.










3.


The President of the Authority shall publish information on the filing of an appeal in the Authority's Public Information Bulletin.










§ 12.1.


The President of the Authority shall examine the appeal within no more than seven days after it has been received.










2.


After examining the appeal, the Chairman of the Authority shall inform the appellant and the authorised air carrier(s) referred to in Section 9(5) of the outcome of the appeal and the grounds.










3.


The President of the Authority shall publish information on the outcome of the appeal in the Authority's Public Information Bulletin.










§ 13.


If the appeal is upheld, the Chairman of the Authority shall hold the competitive application procedure again.










§ 14.1.


After expiry of the deadline for filing appeals, and if no carrier has submitted an appeal or if no appeal filed has been upheld, the Chairman of the Authority shall issue authorisation to the authorised air carrier(s) that received the most points, in order starting from the highest score.










2.


The President of the Authority shall publish information on the authorisation granted in the Authority's Public Information Bulletin.




CHAPTER 4

CRITERIA FOR THE ALLOCATION OF TRAFFIC RIGHTS







§ 15.


In selecting the authorised air carrier to which authorisation will be issued, the Chairman of the Authority must be guided by the principles of transparency and non-discrimination and take account of the following criteria in addition to those laid down in Article 191(7) of the Act:






1)


the balanced development of air transport, tourism and commerce in the European Union, including ensuring year-round services, as well as the outlay on developing the connection to which the competitive application procedure relates and the average rate of uptake of seats per aircraft in the last scheduling season;










2)


compatibility with the objectives and principles of transport policy documents, notably in relation to regional development;










3)


consumer access to the services and passenger service infrastructure, including the ticket sales network;










4)


the most advantageous service to consumers, including as regards the number of flights per week on the route concerned;










5)


high standards of safety and environmental protection, including offering services operated using aircraft entered on the certificate of the applicant air carrier;










6)


the need to foster competition between air carriers, including as regards services provided by new entrants.








CHAPTER 5

WITHDRAWAL OF AUTHORISATION







§ 16.


Besides the cases referred to in Article 191(8) and (9) of the Act, the Chairman of the Authority:






1)


shall withdraw the authorisation issued as a result of the competitive application procedure if:






(a)


the Community air carrier concerned stops meeting the requirements laid down in Article 192a(2) and (3) of the Act;










(b)


the traffic rights granted to the authorised air carrier in accordance with the competitive application procedure are transferred to another air carrier;














2)


may withdraw the authorisation issued as a result of the competitive application procedure if the carrier concerned infringes the requirements imposed on it by the authorisation or does not comply with the limitations laid down in it.








CHAPTER 6

FINAL PROVISIONS







§ 17.


Section 7(1)(3) and Section 7(2) shall apply from 1 January 2016.










§ 18.


This Regulation shall enter into force on the day following its publication (2).







Minister for Transport, Construction and the Maritime Economy

S. NOWAK




(1)  OJ L 157, 30.4.2004, p. 7.

(2)  This Regulation was preceded by the Regulation of the Minister for Infrastructure of 13 May 2004 on permits to provide air services (Journal of Laws 2004/118, item 1240). On the basis of Article 18 of the Act of 30 June 2011 amending the Aviation Law Act and certain other Acts (Journal of Laws 2011/170, item 1015), Sections 27-30 of that preceding Regulation shall be repealed on the date of entry into force of this Regulation.