CELEX: 51989PC0373(02)
Language: en
Date: 1989-09-08
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) 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

N o C 258/6                           Official Journal of the European Communities                               11. 10. 89
               Proposal for a Council Regulation (EEC) 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
                                                     COM(89) 373 final
                                    (Submitted by the Commission on 8 September 1989)
                                                        (89/C 258/05)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                          Whereas arrangements for greater cooperation over the
                                                                  use of Gibraltar airport were agreed in London on 2
Having regard to the Treaty establishing the European             December 1987 by the Kingdom of Spain and the United
Economic Community, and in particular Article 84 (2)              Kingdom in a joint declaration by the Ministers of
thereof,                                                          Foreign Affairs of the two countries, and such
                                                                  arrangements have yet to come into operation;
Having regard to the proposal from the Commission,
                                                                 Whereas the development of the air traffic system in the
                                                                  Greek Islands is at present inadequate and for this
Having regard       to  the  opinions   of   the  European        reason airports situated on those islands should be
Parliament,                                                       temporarily exempted from the application of this Regu-
                                                                  lation;
Having regard to the opinion of the Economic and
Social Committee.                                                Whereas bilateral rules concerning capacity shares are
                                                                  not compatible with the principles of the internal market
Whereas it is important to adopt measures with the aim           which should be completed by 1993 in the air transport
of progressively establishing the internal market over a         sector; whereas therefore the bilateral restrictions must
period expiring on 31 December 1992 as provided for in           be diminished gradually;
Article 8a of the Treaty; whereas the internal market
shall comprise an area without internal frontiers in which       Whereas it is especially important to encourage the
the free movement of goods, persons, services and
                                                                 development of inter-regional services in order to
capital is ensured;
                                                                 develop the Community network and to contribute to a
                                                                 solution to the problem of congestion at certain large
Whereas Council Decision 87/602/EEC (') made a first             airports; whereas, therefore, it is appropriate to have
step towards the liberalization in respect of sharing of         more liberal rules with respect of capacity sharing for
passenger capacity and access to the market, necessary to        these services;
achieve the internal market in air transport; whereas the
Council agreed to take further measures of liberalization        Whereas, taking into account the competitive market
at the end of a three year initial period;                       situation, provision should be made to prevent unjusti-
                                                                 fiable economic effects on air carriers;
Whereas in order to provide better possibilities for air
carriers it is timely to introduce a first set of measures
                                                                 Whereas          this    Regulation     replaces  Directive
concerning the relations between States of registration
                                                                  83/416/EEC (2), as last amended by Directive
and air carriers established in their territory;
                                                                  8 9 / . . ./EEC, and Decision 87/602/EEC; whereas it is
                                                                 therefore necessary to repeal that Directive and that
Whereas increased market access will stimulate the                Decision,
development of the Community air transport sector and
give rise to improved services for users; whereas as a
consequence it is necessary to introduce more liberal             HAS ADOPTED THIS REGULATION:
provisions concerning multiple designation, third-,
fourth- and fifth-freedom traffic rights and to adopt the
first provisions with respect to cabotage;                                             Scope and definitions
                                                                                             Article 1
Whereas, taking into account airport infrastructure,
navigational aids and a lack of slots, it is necessary to         1.       This Regulation concerns:
include certain limitations concerning the use of traffic
rights;                                                           (a) access to the market for Community air carriers;
(') OJ No L 374, 31. 12. 1987, p. 19.                             O OJ No L 237, 26. 8. 1983, p. 19.
 ---pagebreak--- 11. 10. 89                              Official Journal of the European Communities                              No C 258/7
(b) the sharing of passenger capacity between the air             passengers, freight and mail between two points within a
     carrier(s) established in one Member State and the           Member State other than the State in which it is
     air carrier(s) established in another Member State on        registered;
     scheduled air services between these States.
                                                                  (c) States concerned mean the States between which a
2.     The application of this Regulation to the airport of            scheduled air service is operated;
Gibraltar is understood to be without prejudice to the
respective legal positions of the Kingdom of Spain and            (d) State of registration means the Member State in
the United Kingdom with regard to the dispute over                     which the Community air carrier is registered;
sovereignty over the territory in which the airport is
situated.
                                                                  (e) Community air carrier means:
3.     Application of the provisions of this Regulation to              (i) an air carrier which has its central adminis-
Gibraltar airport shall be suspended until the                              tration and principal place of business in the
arrangements in the joint declaration made by the                           Community, the majority of whose shares are
Foreign Ministers of the Kingdom of Spain and the                           owned by nationals of Member States and/or
United Kingdom on 2 December 1987 have come into                            Member States and which is effectively
operation. The Governments of Spain and the United                          controlled by such persons or States,
Kingdom will so inform the Council on that date.
During this suspension the provisions of Directive
83/416/EEC, as amended by Directive 86/216/EEC ('),
shall apply with respect to scheduled air services to and              (ii) an air carrier which, although it does not meet
from Gibraltar.                                                             the definition set out in (i) at the time of
                                                                            adoption of this Regulation;
4.     Airports in the Greek Islands shall be exempted                      1. either has its central administration and
from the application of this Regulation until 1 July 1993.                      principal place of business in the Community
Unless otherwise decided by the Council, on a proposal                          and has been providing scheduled or
by the Commission, this exemption shall apply for a                             non-scheduled air services in the Community
further period of five years and may be continued for                           during the 12 months prior to adoption of
five years thereafter.                                                          this Regulation;
                            Article 2                                       2. has been providing scheduled air services
                                                                                between Member States on the basis of the
For the purpose of this Regulation:                                             third- and fourth-freedom traffic rights
                                                                                during the 12 months prior to adoption of
(a) air carrier means an air transport enterprise with a                        this Regulation.
      valid operating licence to operate scheduled air
      services;                                                             The air carriers which meet the above criteria
                                                                            are listed in Annex I;
(b) a third-freedom traffic right means the right for an
      air carrier established in one State to put down, in         (f) scheduled air service means a series of flights each
                                                                       possessing all the following characteristics:
      the territory of another State, passengers, freight
      and mail taken up in the State in which it is
      registered;                                                       (i) it is performed by aircraft for the transport of
                                                                            passengers or passengers and cargo and/or mail
                                                                            for remuneration, in such a manner that on each
      a fourth-freedom traffic right means the right for an
                                                                            flight seats are available for purchase by
      air carrier established in one State to take on, in the
                                                                            members of the public (either directly from the
      territory of another State, passengers, freight and                   air carrier or from its authorized agents);
      mail, for off-loading in the State in which it is
      registered;
                                                                       (ii) it is operated so as to serve traffic between the
                                                                            same two or more points, either:
      a fifth-freedom traffic right means the right for an
      air carrier to undertake the commercial air transport                  1. according to a published timetable;
      of passengers, freight and mail between two States
      other than the State in which it is registered;                           or
                                                                            2. with flights so regular or frequent that they
      cabotage means the right for an air carrier to                            constitute a recognizably systematic series;
      undertake the commercial air transport of
                                                                   (g) flight means a departure from a specified airport
 (') OJ No L 152, 6. 6. 1986, p. 74.                                   towards a specified destination airport;
 ---pagebreak--- N o C 258/8                             Official Journal of the European Communities                                 11. 10. 89
(h) multiple designation on a country-pair basis means                     uses for its assessments on economic viability and
      the designation by a State of registration of two or                 communicate them forthwith to the Commission.
      more of the air carriers established in its territory to
      operate scheduled air services between its territory        3.     Any decision to refuse a licence or authorization or
      and that of another Member State;                           to attach conditions shall be accompanied by the reasons
                                                                  therefor in writing.
(i)   multiple designation on a city-pair basis means the
      designation by a State of registration of two or            Relations between a State of destination and Community
      more of the air carriers established in its territory to                              air carriers
      operate a scheduled air service between an airport
      or airport system in its territory and an airport or                                    Article 4
      airport system in the territory of another Member
      State;                                                       1.    Subject to Article 6, a Member State of destination
                                                                  shall authorize Community air carriers, which according
                                                                  to Article 3 has been authorized by the State of regis-
(j)   regional airport means any airport other than one           tration, to:
      listed in Annex II as a category 1 airport;
                                                                  — operate third- and fourth-freedom air services,
(k) airport system means two or more airports grouped             — combine these air services in the airports or airport
      together as serving the same city, as indicated in              systems located in the State of registration.
      Annex II;                                                       Combined through services may have the same flight
                                                                      number.
(1)   capacity shall be expressed as the number of seats          2.    A Member State, which has approved one of the air
      offered to the general public on a scheduled air            carriers established in its territory to operate a service on
      service over a given period;                                a new route between regional airports with aircraft of no
                                                                  more than 100 seats, is not obliged to authorize a reci-
                                                                  procal air service operated with aircraft larger than 100
(m) capacity share means the share of a Member State              seats for a period of three years from the date of auth-
      expressed as a percentage of the total capacity             orization.
      calculated according to Article 12 in a bilateral
      relationship with another Member State.
                                                                            Third- and fourth-freedom traffic rights
                                                                                              Article 5
Relations between the States of registration and their air
                            carriers                              Third- and fourth-freedom traffic rights shall exist
                                                                  between airports or airport systems in one Member State
                           Article 3                              to airports or airport systems in another Member State
                                                                  when these airports or airport systems are open for intra-
1.     Member States shall grant, on a non-discriminatory
                                                                  community air services.
basis, an operating licence as an air carrier to under-
takings established on their territory when they comply
with a set of requirements including technical and
economic standards. A Member State which has not                                        Multiple designation
defined such a set of requirements shall do so within
three months from the entry into force of this Regu-                                          Article 6
lation. Member States shall publish these requirements            1.    A Member State of destination shall accept multiple
and communicate them forthwith to the Commission.                 designation on a country-pair basis.
                                                                  2.     It shall also accept multiple designation on a
2. (a) The State of registration shall authorize, on a
                                                                  city-pair basis:
         non-discriminatory basis, applicant Community
         air carriers, which are established on its territory
                                                                  — from 1 January 1991, on routes on which more than
         and which meet the set of requirements referred
                                                                       140 000 passengers were carried in the preceding
         to in paragraph 1, to operate air services within
                                                                      year, or on which there are more than 800 return
         the Community.
                                                                      flights per annum,
    (b) The State of registration may refuse its authori-         — from 1 January 1992, on routes on which more than
         zation or attach conditions thereto if the service            100 000 passengers were carried in the preceding
         applied for is not economically viable. Each                 year or on which there are more than 600 return
         Member State shall publish the criteria which it             flights per annum.
 ---pagebreak--- 11. 10. 89                             Official Journal of the European Communities                              No C 258/9
                   Combination of points                          (b) it is operated between two airports at least one of
                                                                      which is a regional airport;
                           Article 7
In operating scheduled air services to or from two or
more points in another Member State or States other              (c) the air carrier may not use more than 30 % of its
than its State of registration, a Community air carrier               annual seat capacity on the air service concerned for
shall be permitted by the States concerned to combine                 the carriage of cabotage passengers.
scheduled air services. Traffic rights between the
combined points may be exercised according to Articles
8 and 9.
                                                                         Conditions for the exercise of traffic rights
                                                                                             Article 10
                    Fifth-freedom rights                         This Regulation shall not affect a Member States' right
                                                                 to regulate in a non-discriminatory way the distribution
                           Article 8                             of traffic between the airports within an airport system.
1.    Community air carriers shall be permitted to
exercise fifth-freedom traffic rights between combined
points in two different Member States on the following                                       Article 11
conditions:
                                                                  1.    The exercise of traffic rights is subject to national,
                                                                 regional or local rules relating to the protection of the
(a) the traffic rights are exercised on a service which          environment, social conditions and safety and, in
    constitutes an extension of a service from, or as a          particular, to the following conditions:
    preliminary of a service to, its State of registration;
                                                                 (a) the airport or airport system concerned must have
(b) the air carrier cannot use more than 50 % of its                  sufficient facilities to accommodate the service;
    annual seat capacity on the service concerned for the
    carriage of fifth-freedom passengers. This limitation
    does not apply to aircraft with no more than 100             (b) navigational aids must be sufficient to accommodate
    seats.                                                            the service;
2.    Member States shall not oppose the operation by            (c) there must be available slots;
Community air carriers of a scheduled fifth-freedom air
service between an airport within the Community and an
airport in a third country, provided that the authorities         (d) the service shall comply with published national,
of the third country concerned agree to the service in                regional or local operational rules.
question.
                                                                  2.    When the conditions in paragraph 1 are not met, a
3.    The air carrier may, for the fifth-freedom service,         Member State may, on a non-discriminatory basis,
use an aircraft which is different but not bigger than the        impose conditions on, limit or refuse the exercise of
aircraft which it uses for the third- and fourth-freedom          those traffic rights. Before taking such a measure it shall
service of which the fifth-freedom service constitutes the        inform the Commission and provide it with all the
extension or the preliminary.                                    necessary elements of information. The Commission
                                                                 shall examine the situation and within two months
                                                                 decide whether the Member State may take the measure.
                           Cabotage
                           Article 9                                                     Shares of capacity
Community air carriers shall be permitted to exercise                                         Article 12
cabotage traffic rights between combined points within
the same Member State on the following conditions;                1.    From 1 October 1990, a Member State shall allow
                                                                  any air carrier operating third and fourth freedom traffic
                                                                  rights and authorized by the States concerned under this
(a) the cabotage traffic rights are exercised on an air           Regulation or more flexible arrangements in force
     service which constitutes an extension of an air             between them to operate routes between their territories
     service from or a preliminary of an air service to its       to increase capacity provided that the resulting capacity
     State of registation;                                        shares are not outside the range 67,5 : 32,5.
 ---pagebreak--- No C 258/10                           Official Journal of the European Communities                              11. 10. 89
2.    The range within which a Member State shall allow                              General provisions
another Member State to increase its capacity share shall
be extended to 75 % : 25 % from 1 April 1992.                                            Article 14
                                                                 1.    This Regulation shall not prevent Member States
3.     Paragraphs 1 and 2 shall not apply to a service          from concluding between them arrangements which are
between a category 1 airport as listed in Annex II and a        more flexible than the provisions of Articles 6, 8, 9 and
regional airport which is provided by aircraft with not         12 or from maintaining such arrangements in force.
more than 100 seats nor to a service between regional
airports irrespective of aircraft capacity.                     2.    The provisions of this Regulation shall not be used
                                                                to make existing capacity or market access arrangements
                                                                more restrictive.
4.    In applying the provisions of paragraph 1 and 2,
unilateral cut-backs in capacity shall not be taken into
account. In such cases, the basis for the calculation of                                 Article 15
capacity shares shall be the capacity offered in the            1.    The Commission shall publish a report on the
previous corresponding seasons by the air carrier(s) of         implementation of this Regulation every two years and
the Member State which has (have) reduced its (their)           for the first time by 1 June 1992.
capacity.
                                                                2.     Member States and the Commission shall cooperate
5.    Notwithstanding the application of paragraphs 1           in implementing this Regulation, particularly as regards
and 2, a Member State shall permit another Member               collection of information for the report referred to in
State to increase its capacity share by five percentage         paragraph 1.
points compared to the capacity share during the
previous corresponding season.                                  3.     Confidential information obtained in application of
                                                                this Regulation shall be covered by professional secrecy.
                         Article 13                                                      Article 16
1.    At the request of any Member State for which the          The Council shall decide on the revision of this Regu-
application of Article 12 (1) and (2) has led to serious        lation by 31 December 1992 at the.latest, on the basis of
financial damage for the air carrier(s) established in its      a Commission proposal to be submitted by 1 June 1992.
territory, the Commission will carry out a review and, on
the basis of all relevant factors, including the market                                  Article 17
situation, the financial position of the air carrier(s)
concerned and the capacity utilization achieved, will take      1.     Decision 87/602/EEC is hereby repealed.
a decision on whether the capacity sharing on the routes
                                                                2.    Without prejudice to Article          1,   Directive
to or from that State should be stabilized for a limited
                                                                83/416/EEC is hereby repealed.
period.
                                                                                         Article 18
2.    The Commission shall communicate its decision to
the Council and to the Member States. Any Member                This Regulation shall enter into force on 1 October
State may refer the Commission's decision to the                 1990.
Council within a time limit of one month. The Council,
acting by qualified majority, may take a different              This Regulation shall be binding in its entirety and
decision within a period of one month.                          directly applicable in all Member States.
 ---pagebreak--- 11. 10. 89                            Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s                 N o C 258/11
                                                               ANNEX       I
                                           Air carriers referred to in Article 2 (e) (ii)
           The following air carriers meet the criteria referred to in Article 2 (e) (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 Regu-
           lation :
           — Scandinavian Airlines System,
           — Britannia Airways,
           — Monarch Airlines.
                                                               ANNEX      II
                                                     List of category I airports
           BELGIUM:                                              Brussels-Zaventem
           DENMARK:                                              Copenhagen-Kastrup/Roskilde
           GERMANY:                                              Frankfurt-Rhein-Main,
                                                                 Diisseldorf-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 K I N G D O M :                                London-Heathrow/Gatwick/Stansted,
                                                                 Luton