Proposal for a COUNCIL DECISION on the conclusion of an Agreement between the European Union and the Government of the Republic of Peru on certain aspects of air services
Date: 2013-06-14
Institutions: European Commission
Subjects: Peru, air safety, air traffic, airline, bilateral agreement, negotiation of an agreement (EU), right of establishment, signature of an agreement

EUROPEAN 
COMMISSION 

Brussels, 14.6.2013  
COM(2013) 424 final 

2013/0197 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of an Agreement between the European Union and the Government of 
the Republic of Peru on certain aspects of air services 

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EXPLANATORY MEMORANDUM 

1. 

• 

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 authorized the Commission to open negotiations with third countries 
on the replacement of certain provisions in existing agreements with an agreement at Union 
level (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. 

• 

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  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  who  have  exercised  their 
freedom  of  establishment  the  same  treatment  in  the  host  Member  State  as  that  accorded  to 
nationals of that Member State. 

• 

Existing provisions in the area of the proposal 

The provisions of the Agreement supersede or complement the existing provisions in the 12 
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 Union. 

2. 

• 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties 

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. 

3. 

• 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

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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 
an  EU  designation  clause,  permitting  all  EU  carriers  to  benefit  from  the  right  of 
establishment. Article 5 resolves potential conflicts with the competition rules of the Union. 

• 

Legal basis 

Art. 100(2), 218(6) (a) 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 

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. 

4. 

BUDGETARY IMPLICATION 

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

5. 

• 

OPTIONAL ELEMENTS 

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  signing  and  conclusion  of  international 
agreements, the Council is asked to approve the decision on the conclusion of the Agreement 
on certain aspects of air services between the European Union and the Republic of Peru. 

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2013/0197 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of an Agreement between the European Union and the Government of 
the Republic of Peru on certain aspects of air services 

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)(a) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament, 

Whereas: 

By  its  Decision  of  5  June  2003,  the  Council  authorised  the  Commission  to  open 
(1) 
negotiations with third countries on the replacement of certain provisions in existing bilateral 
agreements with an agreement at Union level. 

In  accordance  with  Council  Decision  …/…/EU1,  the  Agreement  between  the 
(2) 
European Union and the Government of the Republic of Peru on certain aspects of air services 
2  (the  'Agreement')  has  been  signed  and  provisionally  applied,  subject  to  its  conclusion  at  a 
later date.  

(3) 

The Agreement should be approved on behalf of the European Union,  

HAS ADOPTED THIS DECISION:  

Article 1 

The Agreement between the European Union and the Government of the Republic of Peru on 
certain aspects of air services 3 (the 'Agreement') is hereby approved on behalf of the Union. 

The text of the Agreement is attached to this Decision.  

The President of the Council shall designate the person empowered to proceed, on behalf of 
the  Union,  to  give  the  notification  provided  in  Article  8(1)  of  the  Agreement,  in  order  to 
express the consent of the European Union to be bound by the Agreement. 

Article 2 

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OJ L , , p. . 
OJ L , , p. .  
The Agreement has been published in OJ L , , p. , together with the decision on signing. 

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

Done at Brussels,  

Article 3 

For the Council 
The President 

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ANNEX 

AGREEMENT 

between the European Union and the Government of the Republic of Peru  

on certain aspects of air services 

THE EUROPEAN UNION 

of the one part, and  

THE GOVERNMENT OF THE REPUBLIC OF PERU  

(hereinafter referred to as Peru) 

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 the Republic of Peru 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  European  Union  law  European  Union  air  carriers  established  in  a 
Member State 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  the  Republic  of  Peru,  which  are  contrary  to 
European  Union  law,  must  be  brought  into  conformity  with  it  in  order  to  establish  a  sound 
legal  basis  for  air  services  between  the  European  Union  and  the  Republic  of  Peru  and  to 
preserve the continuity of such air services, 

NOTING  that  under  European  Union  law  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, 

RECOGNISING  that  provisions  in  bilateral  air  service  agreements  concluded  between 
Member States of the European Union and the Republic of Peru 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 

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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 the Republic of Peru, to affect 
the balance between European Union air carriers and air carriers of the Republic of Peru, 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, ‘Member States’ shall mean Member States of 
the European Union and ‘EU Treaties’ shall mean the Treaty on the European Union 
and the Treaty on the functioning of the European Union.  

References in each of the agreements listed in Annex 1 to nationals of the 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 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 a Member State of the European Union 

The  provisions  in  paragraphs  2  and  3  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  by  a  Member  State  of  the  European 
Union,  its  authorisation  and  permissions  granted  by  the  Republic  of  Peru,  and  the 
refusal,  revocation,  suspension  or  limitation  of  the  authorisations  or  permissions  of 
the air carrier, respectively.  

On receipt of a designation by a Member State, the Republic of Peru shall grant the 
appropriate  authorisations  and  permissions  with  minimum  procedural  delay, 
provided that: 

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

effective  regulatory  control  of  the  air  carrier  is  exercised  and  maintained  by  the 
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  Member  States  and/or  nationals  of  Member  States,  and/or  by  other 
states listed in Annex 3 and/or nationals of such other states. 

3. 

The  Republic  of  Peru  may  refuse,  revoke,  suspend  or  limit  the  authorisations  or 
permissions of an air carrier designated by a Member State where: 

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

effective regulatory control of the air carrier is not exercised or not maintained by the 
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  Member  States  and/or  nationals  of  Member  States,  and/or 
by other states listed in Annex 3 and/or nationals of such other states. 

In  exercising  its  right  under  this  paragraph,  the  Republic  of  Peru  shall  not 
discriminate between European Union air carriers on the grounds of nationality. 

ARTICLE 3 

Safety 

1. 

2. 

1. 

2. 

3. 

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

Where  a  Member  State  has  designated  an  air  carrier  whose  regulatory  control  is 
exercised  and  maintained  by  another  Member  State,  the  rights  of  the  Republic  of 
Peru under the safety provisions of the agreement between the Member State that has 
designated  the  air  carrier  and  Peru  shall  apply  equally  in  respect  of  the  adoption, 
exercise  or  maintenance  of  safety  standards  by  that  other  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 a Member State from imposing, 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 the Republic of Peru that 
operates between a point in the territory of that Member State and another point in 
the territory of that Member State or in the territory of another Member State. 

Notwithstanding  any  other  provision  to  the  contrary,  nothing  in  each  of  the 
agreements listed in Annex 2 (d) shall prevent the Republic of Peru from imposing, 
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 carrier of a Member State of the 
European Union that operates between two points in the territory of the Republic of 
Peru. 

4. 

Nothing in the above provisions shall allow cabotage. 

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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)  favour  the  adoption  of  agreements  between 
undertakings,  decisions  by  associations  of  undertakings  or  concerted  practices  that 
prevent,  distort  or  restrict  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. 

1. 

2. 

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. 

ARTICLE 9 

Termination 

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.  

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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. In 
case of divergence, the English version shall prevail over the other language texts. 

FOR THE EUROPEAN UNION: 

FOR THE REPUBLIC OF PERU: 

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List of agreements referred to in Article 1 of this Agreement 

Air  service  agreements  and  other  arrangements  between  the  Republic  of  Peru  and  Member 
States of the European Union as modified or amended which, at the date of signature of this 
Agreement, have been concluded, signed or initialled: 

ANNEX 1  

- 

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- 

- 

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- 

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- 

- 

- 

Air  Services  Agreement  between  the  Government  of  the  Kingdom  of  Belgium  and 
the  Government  of  the  Republic  of  Peru,  signed  at  Lima  on  29  December  1967, 
hereinafter referred to as “Peru – Belgium Agreement” in Annex 2; 

Agreement  between  the  Government  of  the  Kingdom  of  Belgium  and  the 
Government of the Republic of Peru, initialled at Lima on 28 May 2009, hereinafter 
referred to as “2009 Draft Peru – Belgium Agreement” in Annex 2 

Bilateral  Air  Transport  Agreement  between  the  Government  of  the  Kingdom  of 
Denmark  and  the  Government  of  the  Republic  of  Peru,  signed  at  Lima  on  14  July 
1960, hereinafter referred to as “Peru – Denmark Agreement” in Annex 2; 

Transport Agreement between the French Republic and the Republic of Peru, signed 
at Lima on 23 April 1959, hereinafter referred to as “Peru – France Agreement” in 
Annex 2; 

Agreement between the Federal Republic of Germany and the Republic of Peru for 
air  transport,  signed  at  Lima  on  30  April  1962,  hereinafter  referred  to  as  “Peru  – 
Germany Agreement” in Annex 2; 

Bilateral Air Transport Agreement between the Government of the Italian Republic 
and  the  Government  of  the  Republic  of  Peru,  signed  at  Lima  on  17  March  1964, 
hereinafter referred to as “Peru – Italy Agreement” in Annex 2; 

Draft  Agreement  between  the  Government  of  the  Kingdom  of  the  Netherlands  and 
the Government of the Republic of Peru related to scheduled air services, initialled as 
Annex  B  to  the  Memorandum  of  Understanding  signed  at  Lima  on  27  June  2001, 
hereinafter referred to as “Draft Peru – Netherlands Agreement” in Annex 2; 

Agreement between the Government of the Kingdom of Spain and the Government 
of  the  Republic  of  Peru  related  to  air  services,  signed  at  Lima  on  31  March  1954, 
hereinafter referred to as "Peru-Spain Agreement" in Annex 2; 

Draft Air Transport Agreement between the Kingdom of Spain and the Republic of 
Peru, initialled as Annex II to the Agreed Record signed in Madrid on 6 April 2005, 
hereinafter referred to as "2005 Draft Peru-Spain Agreement" in Annex 2; 

Bilateral  Air  Transport  Agreement  between  the  Government  of  the  Kingdom  of 
Sweden  and  the  Government  of  the  Republic  of  Peru,  signed  at  Lima  on  14  July 
1960, hereinafter referred to as “Peru – Sweden Agreement” in Annex 2; 

Agreement  between  the  Government  of  the  United  Kingdom  of  Great  Britain  and 
Northern Ireland and the Government of the Republic Peru for air services between 
and  beyond  their  respective  territories,  signed  at  Lima  on  22  December  1947, 
hereinafter referred to as "Peru – UK Agreement" in Annex 2;  

Draft  Air  Transport  Agreement  between  the  United  Kingdom  of  Great  Britain  and 
Northern  Ireland  and  the  Republic  of  Peru,  initialled  as  Annex  B  to  the 
Memorandum of Understanding between the aeronautical authorities of the Republic 

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of  Peru  and  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland,  signed  at 
Lima on 26 May 2004, hereinafter referred to as "2004 Draft Peru – UK Agreement" 
in Annex 2;  

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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 Peru – Belgium Agreement; 

Article 3 of the Peru – Germany Agreement; 

Article 3 of the Peru – Italy Agreement; 

Article 3 of the Draft Peru – Netherlands Agreement; 

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

Article 5 of the Peru – Belgium Agreement; 

Article 7 of the Peru – Denmark Agreement; 

Article 5 of the Peru – France Agreement; 

Article 4 of the Peru – Germany Agreement; 

Article 4 of the Peru – Italy Agreement; 

Article 4 of the Draft Peru – Netherlands Agreement; 

Article 11 of the Peru – Spain Agreement; 

Article 7 of the Peru – Sweden Agreement; 

Article 4 of the Peru – UK Agreement; 

(c) Safety: 

Article 7 of the 2009 Draft Peru – Belgium Agreement 

Article 15 of the Draft Peru – Netherlands Agreement;  

(d) Taxation of aviation fuel: 

Article 6 of the Peru – Belgium Agreement; 

Article 11 of the 2009 Draft Peru – Belgium Agreement; 

Article 4 of the Peru – Denmark Agreement; 

Article 2 of the Peru – France Agreement; 

Article 6 of the Peru – Germany Agreement; 

Article 5 of the Peru – Italy Agreement; 

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Article 10 of the Draft Peru – Netherlands Agreement; 

Article 5 of the Peru – Spain Agreement; 

Article 5 of the 2005 Draft Peru-Spain Agreement; 

Article 4 of the Peru – Sweden Agreement; 

Article 8 of the 2004 Draft Peru – UK Agreement. 

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ANNEX 3 

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

(a) 

(b) 

(c) 

(d) 

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

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

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

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

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