Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community
Date: 2016-12-21
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: United States, air traffic, aircraft, airline, civil aviation, crew, international agreement, public service, third country, transport regulations

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   EUROPEAN COMMISSION  Brussels, 21.12.2016  COM(2016) 818 final 2016/0411 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

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This  proposal  aims  to  ensure  legal  consistency  of  Regulation  (EC)  No  1008/20081  with  an 
international agreement.  

Article 13 of Regulation 1008/2008 defines the conditions under which lease arrangements of 
aircraft  registered  in  third  countries,  especially  wet-lease,  are  allowed.  The  possibilities  are 
exceptional circumstances, such as a lack of adequate aircraft on the Community market, and 
they should be strictly limited in time and fulfil safety standards equivalent to the safety rules 
of Community and national legislation.  

The  Air  Transport  Agreement  (ATA)  between  the  European  Community  and  its  Member 
States, of the one part, and the United States of America (US), of the other part ("the EU-US 
Air Transport Agreement") was signed on 25 and 30 April 20072 and amended by a Protocol 
of  24  June  20103.  The  ATA  has  been  applied  provisionally  since    30  March  2008.  The 
Amending Protocol has been applied provisionally as from 24 June 2010.  

The ATA foresees an open wet-lease regime between the parties. In order to bring clarity and 
certainty to the air carriers, the Commission has recommended the Council to authorise it to 
negotiate a specific wet-lease agreement with the US, aiming at lifting the time restrictions.  

The  present  proposal  aims  to  adapt  the  EU  regulation  accordingly.  It  is  therefore  very 
restricted in scope and will only apply to Article 13(3)(b) of Regulation (EC) No 1008/2008. 
The  other  provisions  of  Article  13  (e.g.  on  safety  standards  and  rights  of  the  competent 
authority) will remain unchanged.  

In the short term, the derogation from the limitations would be granted to the US which would 
be the first third Country with which the EU has a wet-lease agreement.  Other third countries 
may line up in the future to seek similar derogations, but each request would be dealt with on 
a case by case basis and exemptions should be granted only when adequately justified.   

Any direct or indirect impact will result from the wet-lease agreements themselves, not from 
the amendment of the regulation.  

• 

Consistency with existing policy provisions in the policy area 

The  present  initiative  builds  on  the  existing  Union  provisions  dealing  with  air  services  as 
currently  contained  in  Regulation  (EC)  No  1008/2008.  It  will  also  be  consistent  with  the 
envisaged EU-US wet-lease agreement and EU-US ATA. 

• 

Consistency with other Union policies 

This initiative is fully consistent with the 2014-2019 strategic objectives of the Commission 
with respect to the promotion of 'EU as a global actor' and 'Jobs and Growth'.  

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OJ L 293, 31.10.2008, p.3 
Council  Decision  of  25  April  2007  on  the  signature  and  provisional  application  of  the  EU-US  Air 
Transport Agreement (2007/339/EC), OJ  L 134, 25.5.2007, p.4.  
OJ  L 223, 25.8.2010, p.3.  

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article  100(2)  of  the  Treaty  on  the  Functioning  of  the  European 
Union, which is the legal basis for the adoption of Union measures relating to air transport.  

 • 

Subsidiarity (for non-exclusive competence)  

The  amendment  of  the  Regulation  is  the  only  existing  instrument  available  to  address  the 
issue at stake. 

• 

Proportionality 

The  proposal  is  a  technical  adaptation  of  EU  legislation  to  an  international  agreement.  The 
modification  is  strictly  limited  to  the  time  limitation  restrictions  related  to  the  wet-leasing 
provisions in the envisaged EU-US wet-lease agreement.  

• 

Choice of the instrument 

The present proposal does not change the type of instrument used in the initial regulation.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable 

• 

Stakeholder consultations 

All EU Member States and industry (including social partners) as well as Norway and Iceland 
(who are parties to the ATA) have been actively involved in the analysis and the assessment 
of the case.  .  
It  was  understood  during  these  consultations  that  a  wet-lease  agreement  would  trigger  an 
amendment to Regulation 1008/2008. 

• 

Collection and use of expertise 

This  amendment  is  of  a  technical  and  horizontal  nature  resulting  from  international 
agreements. The data collection to assess its impact will be carried out in the framework of 
the  request  for  negotiating  authorisation  in  view  of  an  agreement  between  EU  and  a  third 
country. 

It  is  triggered  for  the  moment  only  by  the  envisaged  EU-US  wet-lease  agreement.    Data 
collection  and  analysis  for  this  agreement  is  summarised  in  the  associated  roadmap  and 
recommendation for a Council decision.  

• 

Impact assessment 

The  initiative  has  a  very  specific  aim  (technical  adaptation  resulting  from  an  international 
agreement) and a limited scope (derogation to time limitation restrictions for wet-leasing). As 
mentioned  in  the  roadmap  published  on  7  March  2016,  it  is  not  proposed  to  carry  out  an 
impact assessment.  

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Any impacts will result from the wet-lease agreement itself, not from the amendment of the 
regulation.  

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Regulatory fitness and simplification 

The proposal is a technical adaptation of the EU regulation in order to align it with provisions 
included in an international agreement. 

A comprehensive evaluation of the existing policy has not taken place since the initiative does 
not foresee a general relaxation of the limitations for all third countries.  The initiative would 
aim  to  create  a  "carve  out"  that  would  be  applicable  to  US  only  and  would  avoid  an 
inconsistency between the regulation and EU's international obligations.     

• 

Fundamental rights 

Not applicable 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the EU budget.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The proposed regulation does not require any additional implementing measures.  

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Detailed explanation of the specific provisions of the proposal 

The proposal aims to introduce a possibility for derogation from the conditions on wet-leasing 
set  out  in  Article  13(3)(b)  of  Regulation  (EC)  No  1008/2008  through  the  conclusion  of 
international agreements. This would allow for more flexibility, in so far as the conclusion of 
such agreements presents economic and social advantages for the EU. 

The changes proposed add a reference to international agreements to Article 13(3)(b) of the 
Regulation  where  conditions  to  allow  wet  leasing  (extraordinary  circumstances,  seasonal 
needs, operational difficulties) are set out.  

The  other  provisions  of  Article  13  (e.g.  on  safety  standards  and  rights  of  the  competent 
authority) would remain unchanged. 

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2016/0411 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 1008/2008 on common rules for the operation of air 
services in the Community 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee4,  
Having regard to the opinion of the Committee of the Regions5,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

Regulation  (EC)  No  1008/2008  includes  in  its  Article  13  provisions  allowing  lease 
arrangements  of  aircraft 
third  countries,  especially  wet-lease 
in 
arrangements. 

registered 

These  arrangements  are  allowed  in  exceptional  circumstances,  such  as  a  lack  of 
adequate aircraft in the Union market, and they should be strictly limited in time and 
fulfil  safety  standards  equivalent  to  the  safety  rules  of  the  Union  and  national 
legislation. 

An Air Transport Agreement (ATA) between the EU and United States was signed in 
2007  and  amended  by  a  Protocol  of  24  June  2010.    The  ATA  reflects  the  parties' 
commitment to the shared goal of continuing to remove market access barriers in order 
to maximise benefits for consumers, airlines, labour, and communities on both sides of 
the Atlantic. 

Accordingly,  the  ATA  foresees  an  open  wet-lease  regime  between  the  parties.  The 
relevant  provisions  that  are  included  under  Article  10  of  the  ATA  allow  wet-lease 
arrangements  for  international  air  transport  provided  that  all  participants  in  such 
arrangements hold the appropriate authority and meet the conditions prescribed under 
the laws and regulations normally applied by the parties. 

Relevant  developments  and  past  discussions  at  the  Joint  Committee  (JC)  established 
under  the  ATA  have  shown  that  parties  would  benefit  from  a  dedicated  wet-lease 
agreement which would provide precision to the relevant provisions of the ATA. 

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

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(6) 

(7) 

Since  this  agreement  involves  relaxation  of  the  existing  time  limitations,  it  has  a 
rippling effect on Article 13(3)(b) of the Regulation 1008/2008, where time limitations 
are foreseen in cases where Union carriers' wet-lease from third country carriers.   

Article  13(3)(b)  therefore  needs  to  be  modified  to  allow  for  relaxation  of  time 
limitations  of  wet  leasing  to  be  agreed  in  international  agreements  concluded  by  the 
Union with third countries.  

(8) 

Regulation (EC) No 1008/2008 should therefore be amended accordingly. 

HAVE ADOPTED THIS REGULATION: 

Article 1 

In Article 13(3)(b) of Regulation (EC) No 1008/2008, the introductory phrase is replaced by 
the following: 

"unless otherwise provided for in an international agreement concluded by the Union, one of 
the following conditions is fulfilled" 

This Regulation shall enter into force on the […] day following that of its publication in the 
Official Journal of the European Union. 

Article 2 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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