CELEX: 52013PC0423
Language: en
Date: 2013-06-14
Title: Proposal for a COUNCIL DECISION on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Government of the Republic of Peru on certain aspects of air services

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		52013PC0423
		
			Proposal for a COUNCIL DECISION on the signing, on behalf of the Union, and provisional application of the Agreement between the European Union and the Government of the Republic of Peru on certain aspects of air services /* COM/2013/0423 final - 2013/0196 (NLE) */
			
				
		
		
			
			   	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
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(5)
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 signature and provisional
application of the Agreement on certain aspects of air services between the
European Union and the Republic of Peru. 
2013/0196 (NLE)
Proposal for a
COUNCIL DECISION
on the signing, on behalf of the Union,
and provisional application of the 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(5) thereof,
Having regard to the proposal from the
European Commission,
Whereas:
(1) By its Decision of 5 June 2003, the
Council authorised the Commission to open negotiations with third countries on
the replacement of certain provisions in existing bilateral agreements with an
agreement at Union level.
(2) On behalf of the Union, the Commission
has negotiated an Agreement with the Government of the Republic of Peru on certain aspects of air services (the Agreement) in accordance with the directives in
Annex to the Council Decision of 5 June 2003.
(3) The Agreement should be signed on
behalf of the European Union, subject to its conclusion at a later date.
(4) The Agreement should be applied
provisionally, 
HAS DECIDED
AS FOLLOWS: 
Article 1
The signing of the Agreement between the
European Union and the Government of the Republic of Peru on certain aspects of
air services (the Agreement) is hereby approved on behalf of the Union, subject to the conclusion of the said Agreement.
The text of the Agreement is attached to
this Decision.
Article 2 
The Council Secretariat shall establish the
instrument of full powers to sign the Agreement, subject to its conclusion, for
the person(s) indicated by the negotiator of the Agreement.
Article 3
Pending its entry into force, the Agreement
shall be applied provisionally from the first day of the first month following
the date on which the parties have notified each other of the completion of the
necessary procedures for this purpose[1].

Article 4
The President of the Council is hereby
authorised to make the notification provided for in Article 8(2) of the
Agreement.
Article 5
This Decision shall enter into force on the
date of its adoption.
Article 6
This Decision shall be published in the
Official Journal of the European Union.
Done at Brussels, 
                                                                       For
the Council
                                                                       The
President
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 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.           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. 
2.           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.
3.           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
1.           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. 
2.           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:
              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.           The provisions in paragraph 2 of
this Article shall complement the corresponding provisions in the articles
listed in Annex 2 (c). 
2.           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
1.           The provisions in paragraph 2 of
this Article shall complement the corresponding provisions in the articles
listed in Annex 2 (d).
2.           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.
3.           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.
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.           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.
2.           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.
3.           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
1.           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. 
2.           In the
event that all agreements listed in Annex 1 are terminated, this Agreement
shall terminate at the same time. 
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:       
Annex 1 
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:
-             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 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; 
Annex 2
List of articles in the agreements listed in Annex 1 and referred to
in Articles 2 to 4 of this Agreement
(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;
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.
Annex 3
List of other states referred to in Article 2 of this Agreement
(a)          The
  Republic of Iceland (under the Agreement on the
European Economic Area);
(b)          The
Principality of Liechtenstein (under the Agreement
on the European Economic Area);
(c)          The
  Kingdom of Norway (under the Agreement on the
European Economic Area);
(d)          The
Swiss Confederation (under the Agreement between
the European Community and the Swiss Confederation on Air Transport)
[1]               The date from which the Agreement will be
provisionally applied will be published in the Official Journal of the
European Union by the General Secretariat of the Council.