CELEX: 31987D0602
Language: en
Date: 1987-12-14 00:00:00
Title: 87/602/EEC: Council Decision of 14 December 1987 on the sharing of passenger capacity between air carriers on scheduled air services between Member States and on access for air carriers to scheduled air-service routes between Member States

31 . 12 . 87                               Official Journal of the European Communities                                   No L 374 / 19
                                                        COUNCIL DECISION
                                                         of 14 December 1987
                      on the sharing of passenger capacity between air carriers on scheduled air services between
                      Member States and on access for air carriers to scheduled air-service routes between Member
                                                                   States
                                                              ( 87 / 602 / 87 )
 THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                                 Whereas it is necessary to ensure that such limitations do
                                                                           not give an unfair advantage to any one air carrier;
 Having regard to the Treaty establishing the European
 Economic Community , and in particular Articles 84 ( 2)
 and 227 (2 ) thereof,                                                     Whereas it is necessary, in order to achieve a balanced set
                                                                           of opportunities, and taking account of the provisions of
                                                                           the measures as a whole , to redress the economic
                                                                           disadvantages of air carriers established in the peripheral
 Having regard to the proposal from the Commission ( 1 ),                  Member States of the Community;
 Having regard to the opinions of the European
 Parliament ( 2 ),
                                                                           Whereas it is necessary, in particular, not to apply the
                                                                           opening of routes between hub airports of one State and
                                                                           regional airports of another State to a certain number of
 Having regard to the opinion of the Economic and Social                   airports for reasons relating to airport infrastructure and in
 Committee ( 3 ),                                                          order to secure a gradual development of the Community
                                                                           policy of liberalization avoiding negative effects on the
                                                                           Community air transport system ;
 Whereas flexibility and competition in the Community
 air-transport system should be increased ;
                                                                           Whereas arrangements for greater cooperation over the use
 Whereas the artificial constraints imposed on the capacity                of Gibraltar airport were agreed in London on 2 December
 which air carriers may provide and on their access to the                 1987 by the Kingdom of Spain and the United Kingdom in
 market should therefore be relaxed ;                                      a joint declaration by the ministers of Foreign Affairs of the
                                                                           two countries , and such arrangements have yet to come
                                                                           into operation;
Whereas, taking into account the competitive market
 situation , provision should be made to prevent unjustifiable
 economic effects on air carriers ; whereas Member States
 should accordingly be able to intervene if the capacity share
of their carriers in a bilateral relationship would otherwise              Whereas air carriers should be free from any State
fall below a given percentage ;                                            obligation to enter into agreements with other air carriers
                                                                           in respects of capacity and market access;
Whereas        increased   market    access will  stimulate the
development of the Community air transport sector and
give rise to improved services for users ; whereas , however,             Whereas the Heads of State and Government, at their
in order to prevent undue disturbance of existing air traffic              meeting in June 1986 , agreed that the internal market in air
systems and to allow time for adaptation , it is appropriate               transport should be completed by 1992 pursuant to
to provide for some limitations on market access;                          Community actions leading to the strengthening of its
                                                                          economic and social cohesion ; whereas the provisions of
                                                                          this Decision on capacity sharing and market access are a
                                                                          first step in this direction and the Council will therefore , in
                                                                          order to meet the objective set by the Heads of State and
(») OJ No C 182 , 9 . 7 . 1984, p. 1 .                                    Government, adopt further measures of liberalization in
(2 ) OJ No C 262 , 14 . 10 . 1985 , p . 44 and OJ No C 345 ,              respect of capacity sharing and market access including
     21 . 12 . 1987 .                                                     new fifth-freedom traffic rights between Community
( 3) OJ No C 303 , 25 . 11 . 1985 , p. 31 .                               airports at the end of a three-year initial period ,
 ---pagebreak---  No L 374 / 20                                 Official Journal of the European Communities                                         31 . 12 . 87
 HAS ADOPTED THIS DECISION :                                              (b ) capacity share means the share of the air carrier(s) of a
                                                                               Member State expressed as a percentage of the total
                                                                               capacity in a bilateral relationship with another
                                                                                Member State, excluding any capacity provided under
                       Scope and definitions                                    the provisions of Article 6 ( 3 ) or under the terms of
                                                                               Directive 83 / 416 / EEC and also any capacity provided
                              Article 1                                         by a fifth-freedom air carrier;
 1.     This Decision concerns :
                                                                          ( c) air carrier means an air transport enterprise with a valid
 ( a ) the sharing of passenger capacity between the air                       operating licence to operate scheduled air services ;
       carrier(s) of one Member State and the air carrier(s) of
       another Member State on             scheduled    air services
                                                                          (d) a third-freedom air carrier means an air carrier having
       between these States ;                                                  the right to put down, in the territory of another State,
 ( b ) access for Community air carrier(s) to certain routes                   passengers, freight and mail taken up in the State in
       between Member States which they do not already                         which it is registered ;
       operate .
                                                                               a fourth-freedom air carrier means an air carrier having
                                                                               the right to take on, in another State, passengers,
                                                                               freight and mail , for off-loading in its State of
 2 . This Decision shall not affect the relationship between                   registration ;
 a Member State and its own air carriers respecting capacity
 sharing and market access.                                                    a fifth-freedom air carrier means an air carrier having
                                                                               the right to undertake the commercial air transport of
                                                                               passengers , freight and mail between two States other
 3 . This Decision shall not apply to the overseas                             than its State of registration ;
 departments referred to in Article 227 ( 2 ) of the Treaty .
                                                                          (e) States concerned mean the Member States between
                                                                               which the scheduled air service in question is
 4. Articles 3 and 4 shall not apply to those services subject                 operated ;
 to Council Directive 83 / 416 / EEC of 25 July 1983
 concerning the authorization of scheduled inter-regional air
 services for the transport of passengers, mail and cargo                 ( f) Community air carrier means:
 between Member States (*), as amended by Directive
 86 / 216 / EEC ( 2 ).                                                           ( i ) an air carrier which has its central administration
                                                                                       and principal place of business in the Community ,
                                                                                       the majority of whose shares are owned by
 5 . The application of this Decision to the airport of                                nationals of Member States and / or Member States
 Gibraltar is. understood to be without prejudice to the                               and which is effectively controlled by such persons
 respective legal positions of the Kingdom of Spain and the                            or States , or
 United Kingdom with regard to the dispute over
 sovereignty over the territory in which the airport is                        ( ii) an air carrier which , although it does not meet the
 situated .
                                                                                       definition set out in ( i ) at the time of adoption of
                                                                                       this Decision :
 6 . Application of the provisions of this Decision to
                                                                                       A. either    has   its  central    administration    and
Gibraltar airport shall be suspended until the arrangements
in the joint declaration made by the Foreign Ministers of                                  principal place of business in the Community
the Kingdom of Spain and the United Kingdom on 2                                           and has been providing scheduled or
December 1987 have come into operation. The                                                non-scheduled air services in the Community
Governments of Spain and the United Kingdom will so                                        during the 12 months prior to adoption of this
inform the Counil on that date .                                                           Decision ,
                                                                                       B. or has been providing scheduled services
                                                                                           between Member States on the basis of the third­
                              Article 2                                                    and fourth - freedoms of the air during the 12
                                                                                           months prior to adoption of this Decision .
For the purpose of this Decision :                                                         The enterprises which meet the above criteria
                                                                                           are listed in Annex I.
( a ) capacity shall be expressed as the number of seats
       offered to the general public on a scheduled air service
       over a given period ;                                             (g) scheduled air service means a series of flights each
                                                                               possessing all the following characteristics :
(») OJ No L 237 , 26 . 8 . 1983 , p . 19 .                                       ( i ) it passes through the air space over the territory of
(2 ) OJ No L 152 , 6 . 6 . 1986 , p . 47 .                                              more than one Member State ;
 ---pagebreak---  31 . 12 . 87                                  Official Journal of the European Communities                                      No L 374 / 21
        (ii) it is performed by aircraft for the transport of             carrier(s ) of another Member State to increase its (their)
             passengers or passengers and cargo and / or mail             capacity share shall be extended to 60 % : 40 % from
             for remuneration , in such a manner that on each             1 October 1989 .
             flight seats are available for purchase by members
             of the public (either directly from the air carrier or
             from its authorized agents);
                                                                          3 . In applying the provisions of paragraphs 1 and 2 ,
                                                                          unilateral cut-backs in capacity shall not be taken into
      (iii) it is operated so as to serve traffic between the             account . In such cases , the basis for the calculation of
             same two or more points , either :                           capacity shares shall be the capacity offered in the
             ( 1 ) according to a published timetable , or                previous corresponding seasons by the air carrier(s) of the
                                                                          Member State which has (have) reduced its (their)
             (2 ) with flights so regular or frequent that they           capacity .
                   constitute a recognizably systematic series ;
 (h ) flight means a departure from a specified airport                   4. Adjustments within the 55% : 45% range or the
      towards a specified destination ;                                   60 % : 40 % range, as appropriate , shall be permissible in
                                                                          any given season , under the following conditions:
 ( i) multiple designation on a country-pair basis means the              ( a) after the first automatic approval , the air carrier(s) of
       designation by one Member State of two or more of its                    the Member State offering less capacity shall be
       air carriers to operate scheduled air services between its               authorized to increase its (their) own capacity up to the
       territory and that of another Member State ;                             limit of the capacity approved for the air carrier(s) of
                                                                                the Member State offering the larger capacity;
 (j ) multiple designation on a city-pair basis means the
      designation by one Member State of two or more of its               ( b ) if the latter air carrier(s) choose(s) to react to the above
       air carriers to operate a scheduled air service between                  mentioned increase , it (they) shall receive automatic
      an airport or airport system in its territory and an                      approval for one further increase, up the level of its
       airport or airport system in the territory of another                    ( their) first capacity filing(s ) for that season , within the
      Member State ;                                                            applicable range ;
 ( k) hub airport means an airport included in the list in                (c) the carrier(s) of the Member State offering less capacity
      Annex II as a category 1 airport;                                         will then receive automatic approval for one increase up
                                                                                to the matching level ;
      regional airport means a category 2 or 3 airport as
      listed in Annex II ;
                                                                          ( d) any further increases during that season shall be subject
                                                                                to the applicable bilateral provisions between the two
                                                                                Member States concerned .
(1) airport system means two or more airports grouped
      together as serving the same city .
                                                                                                         Article 4
                            Shares of capacity
                                                                          1 . At the request of any Member State for which the
                                                                         application of Article 3 ( 1 ) has led to serious financial
                                Article 3                                damage for its air carrier(s ), the Commission will carry out
                                                                         a review before 1 August 1989 and , on the basis of all
1 . In the period between 1 January 1988 and 30                          relevant factors , including the market situation , the
September 1989 , a Member State shall allow any third- and               financial position of the carrier(s) and the capacity
fourth-freedom air carrier(s ) authorized by the States                  utilisation achieved , will take a decision on whether the
concerned under the arrangements in force between them                   provisions of Article 3 (2 ) should be applied in full or
to operate routes between their territories to adjust                    not .
capacity provided that the resulting capacity shares are not
outside the range 55 % : 45 % .
                                                                         2.     The Commission shall communicate its decision to the
                                                                         Council which , acting by unanimity , may take a different
2 . Unless a different decision is taken under Article 4 , the           decision within a period of two months of this
range within which a Member State shall allow the air                    communication .
 ---pagebreak--- No L 374 / 22                                Official Journal of the European Communities                                    31 . 12 . 87
                        Multiple designation                                          — the following airports or airport systems
                                                                                           which at the time of the notification of
                              Article 5                                                    this Decision meet the criteria set out in
                                                                                           Article 9 :
1 . A Member State shall accept multiple designation on a                                  Barcelona ,
country-pair basis by another Member State but, subject to                                 Malaga ,
paragraph 2 , shall not be obliged to accept the designation                               Milan — Linate / Malpensa .
of more than one air carrier on any one route .
                                                                            ( ii) In addition , in order to prevent major disturbance
                                                                                  of existing air traffic systems and to allow time for
2 . A Member State shall also accept multiple designation                         adaptation , the following airports shall also be
on a city-pair basis by another Member State:                                     excluded from the provisions of paragraph 1 for the
                                                                                  duration of this Decision :
— in the first year after the notification of this Decision,
                                                                                  Alicante ,    Salónica — Miera ,
    on routes on which more than 250 000 passengers were
    carried in the preceding year,                                                Athens ,      Turin ,
                                                                                  Bilbao ,      Valencia ,
— in the second year, on routes on which more than
    200 000 passengers were carried in the preceding year                         Genoa ,       Venice .
    or on which there are more than 1 200 return flights
    per annum ,
                                                                        3 . Article 3 and 4 shall not apply to services between an
                                                                        airport in category 1 and a regional airport which are
— in the third year, on routes on which more than                       provided by aircraft with not more than 70 passenger
    180 000 passengers were carried in the preceding year               seats .
    or on which there are more than 1 000 return flights
    per annum .
                                                                        4 . Where an air carrier of one Member State has been
                                                                        authorized in accordance with this Article to operate a
3 . The provisions of this Article are subject to those in              scheduled air service, the State of registration of that air
Articles 3 and 4 .                                                      carrier shall raise no objection to an application for the
                                                                        introduction of a scheduled air service on the same route by
                                                                        an air carrier of the other State concerned .
                                                                        5 . The provisions of this Article shall not affect a Member
           Routes between hub and regional airports                     State's right to regulate the distribution of traffic between
                                                                        the airports within an airport system .
                              Article 6
1 . Subject to the provisions of Articles 3 , 4 and 5 ,
Community air carriers shall be permitted to introduce                                         Combination of points
third- or fourth-freedom scheduled air services between
category 1 airports or airport systems in the territory of one                                         Article 7
Member State and regional airports in the territory of
another Member State . Airport categories are listed in                 1 . In operating scheduled air services to or from two or
Annex II .
                                                                        more points in another Member State or States, a third- or
                                                                        fourth-freedom Community air carrier shall , subject to the
                                                                        provisions of Articles 3 , 4 and 5 , be permitted to combine
2 . ( i) The provisions of paragraph 1 shall not apply:                 scheduled air services , provided that no traffic rights are
         ( a) to regional airports exempted from the                    exercised between the combined points .
               provisions of Directive 83 / 416 / EEC ;
         ( b ) for the duration of this Decision to:                    2 . The provisions of paragraph 1 shall not apply within
               — the following airports which , at the time of          Spanish territory during the period of validity of this
                   notification of this Direction , handle fewer        Decision . Similarly , air carriers registered in Spain may not
                   than 100 000 passengers per annum on                 avail themselves of those provisions during that period .
                   international scheduled air services :
                   Aalborg,     Seville ,
                   Bergamo ,    Skrydstrup ,
                   Billund ,    Sonderborg,                                                     Fifth-freedom rights
                   Bologna ,    Stauning,
                                                                                                       Article 8
                   Esbjerg,     Thisted ,
                   Karup ,      Tirstrup ,                              1 . Without prejudice to Article 6 ( 2), a Community air
                   Odense ,                                             carrier shall be permitted to operate a fifth-freedom
 ---pagebreak---   31 . 12 . 87                               Official Journal of the European Communities                             No L 374 / 23
  scheduled air service where third- or fourth-freedom traffic          2 . The provisions of this Decision shall not be used to
  rights exist, provided that the service meets the following           make existing capacity or market access arrangements
  conditions :                                                          more restrictive .
  ( a) it is authorized by the State of registration of the
       Community air carrier concerned ;                                                         Article 11
  (b ) it is operated as an extension of a service from , or as a
       preliminary of a service to , its State of registration;         Member States shall not require air carriers to enter into
                                                                        agreements or arrangements with other air carriers relating
  (c) without prejudice to paragraph 2 it is operated between           to any of the provisions of this Decision, nor shall they
       two airports at least one of which is not a category 1           forbid them to do so .
       airport;
       and                                                                                       Article 12
  (d) not more than 30 % of the carrier's annual capacity on
       the route concerned may be used for the carriage of              1 . After consultation with the Commission , Member
       fifth-freedom passengers .                                       States shall take the necessary steps to comply with this
                                                                        Decision not later than 31 December 1987 .
  2 . Subject to paragraphs 1 ( a), (b ) and (d), Ireland and
 Portugal may each select one category 1 , airport in each of           2 . Member States shall communicate to the Commission
 the other Member States and may each designate an air                  all the laws, regulations and administrative provisions
 carrier to carry fifth-freedom traffic on services between             which they adopt for the application of this Decision.
 those airports , provided that neither of the air carriers so
 designated may exercise such rights at any one airport on                                       Article 13
 more than one such route. The Member States concerned
 need not designate the same carrier for all routes but may             1 . Before 1 November 1989 , and every two years
 for this purpose designate only one carrier to each other
 Member State .                                                         thereafter, the Commission shall publish a report on the
                                                                        implementation of this Decision .
 3 . This Article shall not apply during the period of                  2. Member States and the Commission shall cooperate in
 validity of this Decision to routes to or from Spanish                 implementing this Decision, particularly as regards
 territory. Similarly, during the same period air carriers
 registered in Spain may not claim fifth-freedom rights on              collection of information for the report referred to in
                                                                       paragraph 1 .
 the basis of the provisions in this Article.
                                                                        3 . Confidential    information     obtained   within   the
                                                                       framework of the implementation of this Decision shall be
                        General provisions                             covered by professional secrecy.
                             Article 9
                                                                                                 Article 14
Notwithstanding Articles 5 to 8 , a Member State shall not
be obliged to authorize a scheduled air service in cases
                                                                       The Council shall decide on the revision of this Decision by
where :
                                                                       30 June 1990 at the latest, on the basis of a Commission
                                                                       proposal to be submitted by 1 November 1989 .
( a) the airport concerned in that State has insufficient
      facilities to accommodate the service;                                                     Article IS
( b) navigational aids are insufficient to accommodate the
      service .                                                        This Decision is addressed to the Member States .
                            Article 10                                 Done at Brussels , 14 December 1987
1 . This Decision shall not prevent Member States from                                                   For the Council
concluding arrangements which are more flexible than the
                                                                                                          The President
provisions of this Decision or from maintaining such
arrangements in force .                                                                              U. ELLEMANN-JENSEN
 ---pagebreak--- No L 374 / 24                            Official Journal of the European Communities                                         31 . 12
                                                                ANNEX 1
                                               Air carriers referred to in Article 2 (f) ( ii)
             The following air carriers meet the criteria referred to in Article 2 (f) (ii) as long as they are recognized as
             national carriers by the Member State which so recognizes them at the time of the adoption of this Decision:
             — Scandinavian Airlines System ,
             — Britannia Airways ,
             — Monarch Airlines .
 ---pagebreak--- 31 . 12 . 87                       Official Journal of the European Communities                                    No L 374 / 25
                                                          ANNEX II
                                                   List of airport categories
             Category 1  BELGIUM :                              Brussels-Zaventem
                         DENMARK :                              Copenhagen-Kastrup / Roskilde
                         GERMANY :                              Frankfurt/ Rhein-Main, Düsseldorf-Lohausen ,
                                                                Munich-Riem
                         SPAIN :                                Palma-Mallorca , Madrid - Barajas, Malaga ,
                                                                Las Palmas
                         GREECE :                               Athens-Hellinikon , Salonica-Micra
                        FRANCE :                                Paris-Charles de Gaulle/ Orly
                        IRELAND :                               Dublin
                        ITALY :                                 Rome-Fiumicino/ Ciampino, Milan-Linate / Malpensa
                        NETHERLANDS :                           Amsterdam-Schiphol
                        PORTUGAL :                              Lisbon , Faro
                        UNITED KINGDOM :                        London-Heathrow / Gatwick / Stansted , Luton
             Category 2 GERMANY :                               Hamburg-Fuhlsbüttel , Stuttgart-Echterdingen ,
                                                                Cologne/ Bonn
                        SPAIN :                                 Tenerife-Sur, Barcelona , Ibiza , Alicante, Gerona
                        FRANCE :                                Marseilles-Marignane, Nice-Cote d'Azur, Lyon-
                                                                Satolas , Basle-Mulhouse
                        IRELAND :                               Shannon
                        ITALY :                                Naples-Capodichino, Venice-Tessera , Catania-
                                                               Fontanarossa
                        LUXEMBURG :                            Luxemburg-Findel
                        PORTUGAL :                             Funchal , Oporto
                        UNITED KINGDOM :                       Manchester-Ringway , Birmingham-Elmdon ,
                                                               Glasgow-Abbotsinch
             Category 3 All other airports officially open to international scheduled services .
 ---pagebreak--- No L 374 / 26                           Official Journal of the European Communities                              31 . 12 . 87
                          Communication of the Government of the Federal Republic of Germany
             The Council has received the following communication from the Government of the Federal
             Republic of Germany:
             When depositing its instruments of ratification of the Treaties establishing the European
             Communities, the Government of the Federal Republic of Germany declared that these Treaties
             applied equally to Land Berlin. It declared at the same time that the rights and responsibilities of
             France, the United Kingdom and the United States in respect of Berlin were unaffected. In view of
             the fact that civil aviation is one of the areas in which the said States have specifically reserved
            powers for themselves in Berlin, and following consultations with the Governments of these States,
             the Government of the Federal Republic of Germany states that the Council Directive on fares for
             scheduled air services between Member States and the Council Decision on the sharing of passenger
            capacity between air carriers on scheduled air services between Member States and on access for air
            carriers to scheduled air-service routes between Member States do not cover Land Berlin and that
            the Council Regulation laying down the procedure for the application of the rules on competition
            to undertakings in the air transport sector and the Council Regulation on the application of
            Article 85 (3) of the Treaty to certain categories of agreements and concerned practices in the air
            transport sector are not applicable in Land Berlin .