CELEX: 51991PC0299
Language: en
Date: 1991-08-30
Title: Proposal for a COUNCIL DECISION concerning an Agreement between the European Economic Community, the Kingdom of Norway and the Kingdom of Sweden on civil aviation

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                fin
                                    C0M(91) 299     a|
                                    Brussels, 30 August 1991
                         Proposal for a
                        COUNCIL DECISION
         concerning an Agreement between the European
       Economic Community, the Kingdom of Norway and the
              Kingdom of Sweden on civil aviation
                  (presented by the Commission)
 ---pagebreak---                           EXPLANATORY MEMORANDUM
1.  By  its decision of     18-19 June    1990 the Council       authorized   the
    Commission to open negotiations with Norway and Sweden using as a
    basis the negotiating directives drafted for the purpose of the
    negotiations between the Community and the EFTA States.
2.  The Commission   has   in coordination      and   close consultation     with
    Member States conducted negotiations with a Joint delegation from
    Norway and Sweden.      Agreement    could be reached on a text which
    will make all Community      legislation affecting the air          transport
    sector applicable in Norway and Sweden.
3.  The draft Agreement which is annexed to the attached proposal for a
    Council Decision is structured in six chapters, an Annex and three
    Protocols.
Chapter I         deals    with    the    scope    of    the   Agreement.      It
                  establishes     that    the    "acquis    communautaire"    and
                   interpretations     of   the   Court    of   Justice   of  the
                  European Communities and of the Commission shall be
                  applicab le.
Chapter 11        contains a transcription of the competition articles
                  of the Treaty.
Chapter 111       creates the rights for the Commission             to  implement
                  the   competition     articles    and   the   Regulations   and
                  Directives which form part of the "acquis" directly
                   in Norway and Sweden.
 ---pagebreak---                              -2-
Chapter IV establishes   a   Joint   Committee    and    spells   out  its
           tasks. It contains provisions for consultations and a
           procedure to ensure that future Community           legislation
           concerning air transport will also become part of the
           agreement.
Chapter V  contains provisions for consultation and a procedure
           to deal with relations with third countries and with
           international organisations.
Chapter VI deals with provisions regarding entry           into force and
           review of the Agreement.        This chapter also contains
           the provision that the Agreement shall cease to be in
           force from the date an agreement between EEC and the
           EFTA countries on the European Economic Area enters
           into force.
Annex      lists the relevant "acquis communautaire" and extends
           the scope of the Regulations and Directives to Norway
           and Sweden.
Protocol 1 deals   with   future    legislation     by    the   Community.
           Parties    agree     that    relevant       Regulations     and
           Directives which will be developed by the Community
           shall be considered for inclusion in the Agreement.
Protocol 2 transcribes   declarations     from  the Council      and  from
           the   Commission    concerning     the     implementation    of
           specific articles of various Council Regulations and
           Directives so as to ensure that the Agreement will be
            implemented   in   the   same   way    in   all   Contracting
           Parties.
 ---pagebreak---                                   -3-
Protocol 3 :      describes  the position  taken   by the Council  with
                  regard to the problems of air traffic congestion in
                  Europe.
4.  The Commission believes that this Agreement meets the negotiating
    directives as established by the Council     and proposes that  the
    Council adopts the attached proposal for a decision.
 ---pagebreak---                       PROPOSAL FOR A COUNCIL DECISION
     concerning the conclusion of an Agreement between the European
        Economic Community, the Kingdom of Norway and the Kingdom
                        of Sweden on civiI aviation.
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having   regard   to   the   Treaty   establishing   the   European   Economic
Community and in particular article 113 thereof,
Having regard to the proposal from the Commission^ 1 )
Whereas the Council has decided at its meeting of 18-19 June 1990 that
negotiations with Norway and Sweden should not be further delayed and
has authorized    the Commission     to open   negotiations with    these  two
countries, using as a basis the negotiating directives drafted for the
purpose of the negotiations between the Community and the EFTA States;
Whereas   the   Commission    has   conducted   the  negotiations    in  close
coordination and consultation with        the Member   States throughout   the
negotiating process;
Whereas the Agreement permits the creation, in the area covered by the
European Economic Community, the Kingdom of Norway and the Kingdom of
Sweden, of a set of rules applicable to civil aviation, thus permitting
the  establishment   of    a uniform   system   of  rules  concerning   market
access, airline capacity as well as price fixing in that field;
Whereas, as a consequence, the conclusion of the agreement is part of
the common commercial policy and should therefore be based on article
113 of the EEC Treaty, requirements of a technical           nature would be
considered as supplementary to the above mentioned provisions;
(1)
 ---pagebreak---                                    -2-
Whereas finally the agreed text resulting from the negotiations meets
the   negotiating directives for the conclusion of an agreement between
the EEC and EFTA States on air transport.
HAS DECIDED AS FOLLOWS
Article 1
The Agreement between the European Economic Community, the Kingdom of
Norway and the Kingdom of Sweden on civil aviation is hereby approved
on behalf of the Community.
The text of the Agreement is attached to this Decision.
Art icle 2
The President of the Council shall carry out the necessary formalities
as provided for in Article 23 of the Agreement.
Art icle 3
The Commission, assisted by with representatives of the Member States,
shall   represent  the  Community  in  the Joint  Committee  set up  by
Article 13 of the Agreement.
 ---pagebreak---                                   -3-
Article 4
This  Decision  shall  enter  into  force  on  the   day following its
publication in the Official Journal of the European Communities.
Done at                                For the Council
                                       The President
 ---pagebreak---      AGREEMENT BETWEEN THE EUROPEAN ECONOMIC COMMUNITY,THE KINGDOM
         OF NORWAY AND THE KINGDOM OF SWEDEN ON CIVIL AVIATION
The Contracting Parties;
Desiring to set out rules for civil aviation within the area covered by
the EEC, the Kingdom of Norway and the Kingdom of Sweden, rules which
are without prejudice to those contained in the EEC Treaty and in
particular to existing Community competences under Articles 85 and 86
of the EEC Treaty and the competition rules derived therefrom;
Agreeing that it is appropriate to   base these rules on the legislation
in force within the European Economic Community;
Desiring to prevent, in full deference to the independence of the
courts, divergent   interpretations  and to arrive at as uniform      an
interpretation as possible of the provisions of this Agreement and
those  provisions  of  Community  legislation  which  are  substantially
reproduced in this Agreement;
 ---pagebreak---                                    - 2 -
Whereas   this  Agreement   shall   not   prejudge   the  outcome  of  the
negotiations   between  EEC  and   the  EFTA  countries   on  the European
Economic Area and in particular in respect of the rules of competition
and state aid and shall be terminated on-the date on which an agreement
between the EEC and the EFTA countries on the said European Economic
Area enters into force ;
Have agreed as follows:
                                 CHAPTER 1
                                 Article 1
1. This Agreement sets out rules for the Contracting Parties in the
    field of civil aviation.      These rules are without prejudice to
    those   contained in the EEC Treaty and in particular to existing
    Community competences under Articles 85 and 86 of the EEC Treaty
    and the competition rules derived therefrom.
    For this purpose the provisions laid      down by the Regulations and
    Directives specified at any time in the Annex shall apply under the
    conditions   set out hereafter. The      interpretations of the said
    provisions shall be in accordance with the interpretations provided
 ---pagebreak---                                        - 3 -
       by the   Court of Justice of the European Communities or the EEC
       Commission (hereafter called the Commission) applicable to articles
       4 to 6, to the corresponding       articles of the EEC Treaty and to
       those Regulations and Directives.      Such interpretations handed down
       after  the  signature  of   the  agreement    shall  be  communicated   to
       Norway and Sweden.
       On  request   by  a  Contracting    Party   the  Joint   Committee   shall
       exchange views pursuant to Article 13 on the implications of such
       interpretations for the proper functioning of the Agreement.
   3.  The Parties to this Agreement shall take all appropriate measures
       whether   general   or  particular,     to  ensure   fulfilment   of   the
       obligations arising out of this Agreement and shall refrain from
       any measure which would jeopardize attainment of the objectives of
       this Agreement.
                                    Article 2
   Any service covered by this Agreement, operated         by the Scandinavian
   Airlines System   (SAS) between    one of the States in which the parent
   companies  are  registered  and   another   State within    the Community   is
   considered as a third or fourth freedom service.
3)
 ---pagebreak---                                    - 4 -
                                 CHAPTER 2
                                 Article 3
The provisions in Articles 4 to 6 and the Annex         shall apply to the
extent  that   they  concern   air  transport   or   an  associated  matter
mentioned in the Annex.
                                 Article 4
1.  The  following   shall   be  prohibited   as   incompatible  with  this
    Agreement   : all   agreements   between   undertakings, decision    by
    associations of undertakings and concerted practices which may
    affect trade between Contracting Parties and which have as their
    object or effect the prevention, restriction or distortion of
    competition within the territory covered by this Agreement, and in
    particular those which :
        a)   directly or indirectly fix purchase or selling prices or
             any other trading conditions;
        b)   limit   or    control    production,      markets,   technical
             development, or investment;
 ---pagebreak---                                    - 5 -
       c)   share markets or sources of supply;
       d)   apply dissimilar conditions to equivalent transactions with
            other   trading    parties,    thereby   placing   them   at   a
            competitive disadvantage;
       e)   make the conclusion of contracts subject to acceptance by
            the other parties of supplementary obligations which, by
            their nature or according to commercial usage, have no
            connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article
   shall be automatically void.
3. The   provisions   of    paragraph    1   may,   however,  be    declared
   inapplicable in the case of :
       -    any   agreement     or   category     of   agreements    between
            undertakings;
       -    any decision or category of decisions by associations of
            undertakings;
            any concerted practice or category of concerted practices;
   which contributes to improving the production or distribution of
   goods   or  to  promoting    technical   or   economic  progress,   while
   allowing consumers a fair share of the resulting benefit, and which
   does not :
 ---pagebreak---                                   - 6 -
        a)  impose on the undertakings concerned restrictions which are
            not indispensable to the attainment of these objectives;
        b)  afford  such undertakings the possibility of eliminating
            competition   in  respect  of  a  substantial part  of  the
            products in question.
                                Article 5
Any abuse by one or more undertakings of a dominant position within the
territory covered by this Agreement or in a substantial part of it
shall be prohibited as incompatible with this Agreement in so far as it
may affect trade between Contracting Parties.
Such abuse may, in particular, consist in :
    a)  directly or   indirectly  imposing unfair purchase or selling
        prices or other unfair trading conditions;
    b)  limiting production, markets or technical development to the
        prejudice of consumers;
 ---pagebreak---                                   - 7 -
   c)  applying dissimilar conditions to equivalent transactions with
       other trading parties, thereby placing them at a competitive
       disadvantage;
   d)  making the conclusion of contracts subject to acceptance by the
       other parties of supplementary obligations which, by their
       nature or according to commercial usage, have no connection
       with the subject of such contracts.
                                Article 6
1. Save as otherwise provided in this Agreement, any aid granted by
   Norway or Sweden or by a Member State of the EEC or through State
   resources in any form whatsoever which distorts or threatens to
   distort  competition   by   favouring   certain   undertakings    or  the
   production of certain goods shall, in so far as it affects trade
   between Contracting Parties, be incompatible with this Agreement.
2. The following shall be compatible with this Agreement :
       a)  aid  having   a   social  character,    granted   to   individual
           consumers,   provided   that   such  aid   is   granted   without
           discrimination    related  to   the  origin   of   the   products
           concerned;
       b)  aid to make good the damage caused by natural disasters or
           exceptional occurrences.
 ---pagebreak---                                  - 8 -
3. The  following  may  be  considered   to  be  compatible   with   this
   Agreement :
       a)  aid to promote the economic development of areas where the
           standard of living is abnormally low or where there is
           serious under-employment;
       b)  aid to promote the execution of an important project of
           common European interest or to remedy a serious disturbance
           in the economy of a Contracting Party;
       c)  aid  to  facilitate   the development  of   certain   economic
           activities or of certain economic areas, where such aid
           does not adversely affect trading conditions to an extent
           contrary to the common interest.
                               Article 7
1. The rules laid down in Article 6 shall be enforced:
       as regards Norway and Sweden, by application of the provisions
       of paras. 2 to     6 and the appropriate     national   rules and
       regulations of those States;
   -   as regards the EEC, under the Treaty of Rome.
 ---pagebreak---                                     9 -
2. With regard to aids granted by Norway and Sweden the Commission
   shall, in cooperation with Norway and Sweden, keep under constant
   review all systems of aid existing       in those States. It shall
   propose to the latter any appropriate measures required by the
   progressive development or by the functioning of this Agreement.
   If, after giving notice to the parties concerned to submit their
   comments, the Commission finds that aid granted by one of those
   States   or through State resources is not compatible with this
   Agreement having regard to Article 6, or that such aid is      being
   misused, it shall inform the State concerned and shall request that
   such aid be abolished or altered within a period of time to be
   determined by the Commission.
4. Unless the State concerned    notifies the other Contracting Parties
   that it is not in agreement with the action requested, it shall
   take   the necessary measures and inform the Commission thereof.
5. If  the   State  concerned  is  not  in  agreement with  the  action
   requested by the Commission the matter shall within 21 days be
   submitted to the Joint Committee, which shall meet within 14 days
   of the date of submission.
 ---pagebreak---                                 - 10 -
6. The Commission shall be informed, in sufficient time to enable it
   to submit its comments, of any plans to grant or alter aid. If it
   considers that any such plan is not compatible with this Agreement
   having regard to Article 6, it shall without delay initiate the
   procedure provided for in paragraph 3. The State concerned shall
   not put its proposed measures into effect until this procedure has
   resulted in a final decision.
                              CHAPTER 3
                              Article 8
1. Norway and Sweden shall   ensure that the Commission is given the
   information foreseen in the Annex in  respect of the application of
   the rules in Articles 4-5 and the Annex .
   In instances where the Commission may obtain information directly
   from undertakings as provided for in the Annex to this Agreement
   Norway and Sweden shall upon request provide the Commission with
   such information and/or arrange if requested for a direct visit on
   a specified date and invite the Commission to participate, while
   respecting the relevant procedural guarantees laid down by national
   law.
 ---pagebreak---                                       - 11 -
                                    Article 9
    1.  Norway and Sweden shall ensure that Articles 4, 5 and 6 and the
        provisions of the Regulations and Directives specified in the Annex
        are applied in their territories and enforced with the same effect
        as in the EEC.
        The Contracting Parties shall ensure that the rights which devolve
        from Articles 4, 5, 6, 7 and the above-mentioned Regulations and
        Directives may be invoked before the national courts.
                                   Article 10
    All questions concerning the validity of decisions of the institutions
    of the Community, pursuant to Articles 4, 5, 6, 7 and the Regulations
    and Directives specified in the Annex to this Agreement shall be of the
    exclusive  competence   of  the   Court   of Justice  of  the  European
    Communities.
(4)
 ---pagebreak---                                  - 12 -
                              Article 11
1. Whenever a decision contains a request for action to be taken by
   Norway and/or Sweden pursuant to the Regulations and Directives
   specified in the Annex then, unless the State concerned notifies
   the other Contracting Parties that it is not in agreement  with the
   action requested, it shall take the necessary measures and inform
   the Commission thereof.
2. If  the  State  concerned  is not    in agreement with  the  action
   requested by the Commission the matter shall within 21 days be
   submitted to the Joint Committee referred to in Article 13 which
   shall meet within 14 days of thé date of submission.
                               CHAPTER 4
                              Article 12
1. The Agreement shall be without prejudice to the right of each
   Contracting Party, subject to compliance with the principle of non
   discrimination and the provisions of this Article and of Article 13
   paragraph 2, unilaterally to amend its domestic legislation on a
   point regulated by this Agreement.
 ---pagebreak---                                    - 13 -
 2. As soon as a Contracting      Party has adopted an amendment of          its
    domestic legislation    it shall inform the other Contracting Parties
    via the Joint    Committee  referred   to  in Article    13,   eight    days
    after adoption at the latest. The Joint Committee shall within 14
    days thereafter hold an exchange of views on the implications of
    such an amendment for the proper functioning of the Agreement.
3.  The Joint Committee shall :
            either   adopt   a decision   revising   the  provisions    of   the
            Agreement   so as to integrate therein, if necessary on a
            basis    of   reciprocity,    the   amendments     made    to    the
            legislation in question;
            or adopt a decision to the effect that the amendments to
            the   legislation   in   question   shall   be  regarded     as   in
            accordance with the Agreement;
            or  decide    any  other   measure   to   safeguard    the   proper
            functioning of the Agreement.
                                 Article 13
1.  A Joint Committee is hereby established which shall be responsible
    for the administration of the Agreement and shall ensure its proper
    implementation.     For this purpose it shall make        recommendations
    and  take  decisions    by  unanimity.   The   decisions    of  the   Joint
    Committee shall be put into effect by the Contracting Parties in
    accordance with their own rules.
 ---pagebreak---                                   14 -
2. For the purpose of the proper implementation of this Agreement, the
   Contracting Parties shall exchange information and, at the request
   of  either  party,   shall  hold  consultations  within  the   Joint
   Committee.
3. The Joint Committee shall adopt its own rules of procedure at the
   latest 21 days after the entry into force of this Agreement.
4. The Joint Committee shall consist of one representative each of
   Norway and Sweden on the one hand and the EEC on the other hand.
5. Norway or Sweden and the EEC shall preside in turn over the Joint
   Committee in accordance with the arrangements to be laid down in
   its rules of procedure.
6. The chairman shall convene meetings of the Joint Committee at least
   once a year in order to review the general functioning of the
   Agreement and whenever special circumstances so require, at the
   request of either Contracting Party.
7. The Joint Committee shall, in addition, meet in conformity with
   articles 1, 7, 11 and 12. In the case of disagreement the decision
   shall be referred to a subsequent meeting of the Joint Committee to
   be held within two months from the date of referral   in accordance
   with the conditions to be laid down in its rules of procedure.
 ---pagebreak---                                 - 15 -
8. The Joint Committee may decide to set up any working party that can
   assist it in carrying out its duties.
                              Article 14
1. A Décision of    the Joint Committee   shall be binding    upon the
   Contracting Parties.
   If, in the view of one of the Contracting Parties, a decision of the
   Joint Committee is not properly implemented by another Contracting
   Party concerned, the former may request that the issue shall be
   discussed by the Joint Committee. If the Joint Committee cannot
   resolve the issue within two months of its referral, the Agreement
   shall cease to be in force.
   The decision of the Joint Committee shall be published in the
   Official Journal of the European Communities. Each decision shall
   state the date of its implementation      in the three Contracting
   Parties  and  any  other  information  likely  to  concern  economic
   operators.  The  decisions  shall  be  submitted  if  necessary  for
   ratification or approval by the Contracting Parties in accordance
   with their own procedures.
 ---pagebreak---                                   - 16 -
 4. The Contracting Parties shall notify each other of the completion
    of this formality.   If upon the expiry of a period of twelve months
    after  adoption   of   a  decision   by  the  Joint  Committee   such
    notification has not taken place, paragraph 5 shall apply mutatis
    mutandis.
 5. If the Joint Committee does not take      the decisions  pursuant to
    articles 1.2, 7.5, 9.1, 11.2 and 12.3 within six months of the date
    of referral , this Agreement shall cease to be in force.
 6. As regards legislation covered by article 12 between the signature
    of the Agreement and its entry into force of which the other
    Contracting Parties have been informed the date of referral in
    paragraph 5 shall be taken as the date on which the information was
    received. The date on which the Joint Committee shall reach a
    decision can not be earlier than 2 months after the date of entry
    into force of the Agreement.
                                Chapter 5
                                Article 15
The Contracting Parties shall consult each other, at the request of
either  party,   in  accordance   with   the  procedures  laid  down   in
Articles 16, 17 and 18
 ---pagebreak---                                   - 17 -
(a) on   air    transport   questions   dealt  with  in    international
    organizations ; and
(b) on the various aspects of developments which have taken place in
    relations between Contracting Parties and third countries in air
    transport, and on the functioning of the significant elements of
    bilateral or multilateral agreements concluded in this field.
The consultations shall be held within one month of the request or as
soon as possible in urgent cases.
                                Article 16
1.  The main aims of the consultations provided for in Article 15(a)
    shall be :
    (a) to determine jointly whether the questions raise problems of
        common interest; and
    (b) depending upon the nature of such problems :
             to consider jointly whether Contracting Parties' action
             within the international organizations concerned should be
             coordinated, or
        -    to consider   jointly any other approach which might be
             appropriate.
2.  The Contracting Parties shall as soon as possible exchange any
    information of relevance to the aims described in paragraph 1.
 ---pagebreak---                                 - 18 -
                              Article 17
1. The main aims of the consultations provided for in Article 15(b)
   shall be to examine the relevant       issues and to consider any
   approach which might be appropriate.
   For the purposes of the consultations referred to in paragraph 1,
   each Contracting Party shall inform the other Contracting Parties
   of  developments   which have  taken  place   in the   field  of  air
   transport  and   of  the operation   of  bilateral  or   multilateral
   agreements concluded in that field, if it considers this likely to
   contribute to the identification of problems of common interest.
                              Article 18
1. The consultations provided for in articles 15, 16 and 17 shall take
   place within the framework of the Joint Committee.
2. The information and consultations provided for in articles 15, 16
   and 17 shall be covered by professional secrecy.
 ---pagebreak---                                  - 19 -
                               CHAPTER 6
                              Article 19
1.  This Agreement shall remain in force unless denounced by one of the
    Contracting Parties.
2.  Each Contracting Party may denounce the Agreement by notifying the
    other Contracting Parties. The Agreement shall cease to be in force
    1 year after the day of notification.
3.  This Agreement   shall cease to be    in force   from the date an
    agreement between EEC and the EFTA countries on the European
    Economic Area enters into force.
                               Article 20
This Agreement shall be reviewed after request by any Contracting Party
and at any event after one year of its entry into force.
 ---pagebreak---                                 - 20 -
                              Article 21
Norway and Sweden shall bring their legislative     and administrative
provisions into conformity with this Agreement before the entry into
force of the Agreement.
                              Article 22
This Agreement shall supersede the relevant provisions of bilateral
arrangements in force between Norway and/or Sweden on the one hand and
Community Member States on the other hand.
                              Article 23
1.  This Agreement shall be subject to approval or ratification in
    accordance with the Contracting Parties own procedures and the
    Parties shall notify each other of the completion of the procedures
    necessary for that purpose.
2.  This Agreement shall enter into force on the date on which the last
    instrument of ratification has been deposited.
 ---pagebreak---                                  - 21 -
3.  This  Agreement  and  the   instruments of  ratification shall  be
    deposited in the archives of the Secretariat of the Council of the
    European Communities, which shall deliver a certified copy thereof
    to each Contracting Party.
                               Article 24
This Agreement is drawn up in all official languages (Danish, Dutch,
English, French, German, Greek, Italian, Portuguese, Spanish) of the
Community as well as in the Norwegian and Swedish languages, all these
texts being equally authentic.
 ---pagebreak---                                  - 22 -
                                 ANNEX
For  the  purposes  of  this  Agreement  Norway  and  Sweden  shall  be
considered as falling within the terms "Member States" and "Community"
referrred to in the following EEC Directives and Regulations.
1.  90/2343/EEC
    Council Regulation of 24 July 1990 on access for air carriers to
    scheduled intra-Community air service routes and on the sharing of
    passenger capacity between air carriers on scheduled air services
    between member States
    Articles 1, 2, 3 para I, 4-10, 11 with the exception of para 2, 12-
    14, 17
2.  90/2342/EEC
    Council Regulation of 24 July 1990 on fares for scheduled air
    services
    Articles 1-11, 14
 ---pagebreak---                                 - 23 -
3. 91/294/EEC
   Council Regulation of 4 February 1991 on the operation of air cargo
   services between Member States
   Articles 1, 2, 3 para 1, 4-11
4. 62/17/EEC
   Council Regulation of 6 February 1962 implementing Articles 85 and
   86 of the Treaty, as amended by Regulation 59, by Regulation
   118/63/EEC and by Regulation 2822/71/EEC
   Articles 1-9, 10 para 1 and 2, 11-14, 15 with the exception of
   para 3, 16 para 1 and 2, 17-24
   Any reference to Articles 85 or 86 in this Regulation shall be
   understood to mean Articles 4 or 5 of this Agreement respectively.
5. 87/3975/EEC
   Council Regulation of 14 December 1987 laying down the procedures
   for the application of the rules of competition to undertakings in
   the air transport sector.
   Articles 1-7, 8 para 1 and 2, 9, 10, 11, 12 with the exception of
   para 3, 13 with the exception of para 3, 14-20
   Any reference to Articles 85 or 86 in this Regulation shall be
   understood to mean Articles 4 or 5 of this Agreement respectively.
 ---pagebreak---                                 - 24 -
6. 87/3976/EEC
   Council  Regulation of  14 December   1987 on the application of
   Article 85 (3) of the Treaty to certain categories of agreements
   and concerted practices in the air transport sector.
   Articles 1-5, 7, 9
   Any reference to Articles 85 or 86 in this Regulation shall be
   understood to mean Articles 4 or 5 of this Agreement respectively.
7. 90/2344/EEC
   Council Regulation of 24 July 1990 amending Regulation (EEC)
   No 3976/87 on the application of Article 85 (3) of the Treaty to
   certain categories of agreements and concerted practices in the air
   transport sector
   Articles 1, 2
   Any reference to Articles 85 or 86 in this Regulation shall be
   understood to mean Articles 4 or 5 of this Agreement respectively.
 ---pagebreak---                                 - 25 -
8. 91/82/EEC
   Commission Regulation of 5 December 1990 on the application of
   Article   85 (3) of the Treaty to certain categories of agreements,
   decisions   and  concerted  practices  concerning  ground  handling
   services
   Articles 1-5
   Any reference to Articles 85 or 86 in this Regulation shall be
   understood to mean Articles 4 or 5 of this Agreement respectively.
9. 91/83/EEC
   Commission Regulation of 5 December 1990 on the application of
   Article 85(3) of the Treaty to certain categories of agreements
   between undertakings relating to computer reservation systems for
   air transport services
   Articles 1-13
   Any reference to Articles 85 or 86 in this Regulation shall be
   understood to mean Articles 4 or 5 of this Agreement respectively.
 ---pagebreak---                                  - 26 -
10. 91/84/EEC
    Commission Regulation of 5 December 1990 on the application of
    Article 85(3) of the Treaty to certain categories of agreements,
    decisions and concerted practices concerning joint planning and
    coordination of capacity, consultations on passenger and cargo
    tariffs rates on scheduled air services and slot allocations at
    airports
    Articles 1-6.
    Any reference to Articles 85 or 86 in this Regulation shall be
    understood to mean Articles 4 or 5 of this Agreement respectively.
11. 91/295/EEC
    Council Regulation of 4 February 1991 establishing common rules for
    a denied boarding compensation system in scheduled air transport
    Articles 1-10
12. 89/2299/EEC
    Council Regulation of 24 July 1989 introducing a code of conduct
    for the use of computer reservation systems.
    Articles 1-22
 ---pagebreak---                                 - 27 -
13. 80/1266/EEC
    Council Directive of 16 December 1980 on future cooperation and
    mutual assistance between the Member States in the field of air
    accident investigation
    Articles 1-2
14. 80/51/EEC
    Council Directive of 20 December 1979 on the limitation of noise
    emissions from subsonic aircraft as amended by Council Directive
    83/206/EEC of 21 April 1983
    Articles 1-8
15. 89/629/EEC
    Council Directive of 4 December 1989 on the limitation of noise
    emission from civil subsonic jet aeroplanes
    Articles 1-7
 ---pagebreak---                                  - 28 -
16. 90/314/EEC
    Council Directive on package travel, package holidays and package
    tours
    Articles 1-9
17. 89/4064/EEC
    Council  Regulation   of  21  December   1989 on   the   control of
    concentrations between undertakings
    Articles 1-8, 9 para 1-8, 10-18, 19 para 1 and 2, 20-23, 25
    Any reference to Articles 85 or 86 in this Regulation shall be
    understood to mean Articles 4 or 5 of this Agreement respectively.
18. 80/723/EEC
    Commission  Directive  of  25 June   1980 on the    transparency of
    financial relations between Member States and public undertakings,
    as amended by Commission Directive 85/413/EEC of 24 July 1985.
    Articles 1-8
 ---pagebreak---                                  - 29 -
19. 90/2367/EEC
    Commission Regulation of 25 July 1990 on the notifications, time
    limits and and hearings provided for in Council Regulation 4064/89
    Articles 1-20
20. 88/4261/EEC
    Commission   Regulation  of  16 December 1988  on  the  complaints,
    applications   and  hearings provided   for in  Council  Regulation
    3975/87
    Articles 1-15
 ---pagebreak---                                  - 30 -
PROTOCOL 1
THE CONTRACTING PARTIES
considering that whereas the Agreement envisages the incorporation of
future legislation in civil aviation;
whereas the EEC has already announced legislative action in a number of
areas;
whereas such action should not lead to future difficulties.
are agreed that action i.a. in the following areas :
    -   Consultation between airports and users
        Mutual acceptance of Licences and harmonisation
        Slot allocation
        Licensing of air carrier and allocation of route rights
    -   Common specifications for ATC equipment
        Cabotage
        Value added tax
    -   Abolition of tax free sales between the Contracting Parties
        Relations with third countries
    __  Predatory practices
shall be considered under Article 12 for inclusion in the Agreement.
 ---pagebreak---                                      31 -
PROTOCOL 2
THE CONTRACTING PARTIES
considering that the agreements must be implemented in the same way for
all the Contracting Parties;
whereas  the   Council  and   the  Commission   of  the EEC   have  already
pronounced   indications of importance for implementation of specific
articles
are agreed that :
1.  In applying the matching provisions of Article 3(5) in point 2 of
    the Annex in respect of non-scheduled air fares it is the product
    which is in the market which must be equivalent in terms of quality
    and conditions.     Elements of importance for the assessment would
    be   the   inclusion   or   not   of   additional   services   such   as
    accommodation and also whether the non-scheduled product is legally
    on the market in a regular way according to the definition in
    Article   2(b)(iii)(2) while    the   Commission  may  need  to   assess
    matching of fares with respect to the rules concerning predatory
    behaviour.
 ---pagebreak---                                  - 32 -
2.  Member  States which benefit   from the special conditions under
    paragraph 3 of Article 10 in point 1 of the Annex will not, on pain
    of losing such special conditions which they have, grant new rights
    regarding the airports concerned, on terms which would put their
    Community partners at a disadvantage by comparison with carriers
    from third countries outside the Community.
and that
3.  In a situation where Article 12(2) in point 1 of the Annex is
    invoked, the Commission will examine, in addition to capacity
    utilization, the marketing efforts and the products of air carriers
    from the Member State with the lower market share and will consider
    whether a higher market share should normally be expected.         If
    this is the case, the Commission will further consider whether the
    possibilities of the air carriers concerned of competing in the
    market   are  reduce  by  virtue,   in  particular  of   difficulties
    experienced by congestion at airports, market structure and/or the
    direct impact of the large presence of non-scheduled traffic.
    In arriving at a decision to reduce the 7.5 percentage points, the
    Commission will be guided by the following relationships :
    Market share                         Reduced growth rate
    between 30 and 25%                            5
    less than 25%                                 4
 ---pagebreak---                                  - 33 -
PROTOCOL 3
THE CONTRACTING PARTIES
    affirm the need for continuation and intensification of the work in
    Eurocontrol to tackle and resolve the problems of air traffic
    congestion in Europe ;
    note that accession to the Eurocontrol Convention of all Member
    States should be seriously considered ;
    invite Member States to co-operate to ensure that more airspace is
    made available for civil traffic and that it is used more flexibly
    and rationally ;
-   welcome the efforts made in the relevant fora to make progress in
    establishing compatible technical and performance specifications
    for air traffic control systems and equipments.
 ---pagebreak---  ---pagebreak---  ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(91) 299 final
                                                      DOCUMENTS
EN                                                                          1107
                                Catalogue number : CB-CO-91-378-EN-C
                                                             ISBN 92-77-75488-5
Office for Official Publications of the European Communities
L-2985 Luxembourg