EN



EN

|[pic] |EUROPEAN COMMISSION |

Brussels, XXX

C(2011) YYY final

Draft

COMMISSION IMPLEMENTING DECISION

of […]

on air service agreements between Member States and third countries notified under Regulation (EC) No 847/2004

(Only the Bulgarian, Czech, Danish, Dutch, English, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Portuguese, Romanian, Slovak, Spanish and Swedish versions are authentic)

Draft

COMMISSION IMPLEMENTING DECISION

of […]

on air service agreements between Member States and third countries notified under Regulation (EC) No 847/2004

(Only the Bulgarian, Czech, Danish, Dutch, English, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Portuguese, Romanian, Slovak, Spanish and Swedish versions are authentic)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 847/2004 of the European Parliament and of the Council of 29 April 2004 on the negotiation and implementation of air service agreements between Member States and third countries[1], and in particular Article 4(4) thereof,

Whereas:

1) The Commission has been notified by the Member States to which this Decision is addressed that they have completed the negotiation of the bilateral air service agreements.

2) The bilateral agreements negotiated by Austria, Bulgaria, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Italy, Latvia, the Netherlands, Portugal, Romania, Slovak Republic, Spain and Sweden belong to the category of agreements negotiated with third countries with which the Commission is actively negotiating on the basis of a “horizontal” mandate or of a country-specific mandate given by the Council. Therefore, those agreements must be assessed under Article 4(4) of Regulation (EC) 847/2004.

3) In accordance with Article 4(4) of Regulation (EC) 847/2004, Member States may be authorised to apply provisionally and/or conclude agreements which were negotiated with third countries with whom the Commission itself is actively negotiating on the basis of a “horizontal” mandate or a country-specific mandate.

4) Whether such an agreement contains the relevant standard clauses or not, the Commission should only authorise a Member State to apply it provisionally and/or conclude it provided that it does not breach EU law and that it would not undermine the objectives of EU negotiations under way with the third country concerned or it is not otherwise incompatible with the objectives of the EU transport policy. This assessment can only be made on a case by case basis according to the content of each agreement.

5) The Commission itself is actively negotiating on the basis of a “horizontal” mandate with China, the Dominican Republic, Egypt, Indonesia, Kuwait, Libya, Nigeria, Turkey and Vietnam, respectively, and on the basis of a country-specific authorization adopted by the Council with Brazil, Georgia, Israel, Jordan, Lebanon and Ukraine, respectively.

6) The agreements between Cyprus and Egypt and between the Netherlands and the Dominican Republic do include all the relevant standard clauses jointly laid down by the Member States and the Council. The Commission should therefore authorise the conclusion of these agreements, as listed in Annex I. In the meantime the agreements may be applied provisionally.

7) The agreements between Denmark jointly with Sweden and China, Slovak Republic and China, Spain and Kuwait, Spain and Turkey, respectively, do include the relevant standard clauses jointly laid down by the Member States and the Council with some deviations. The Commission concludes that these deviations are compatible with the object and purpose of the European Union common transport policy. The Commission should therefore authorise the conclusion of these agreements, as listed in Annex I. In the meantime the agreements may be applied provisionally.

8) The agreements between Austria and Libya, Austria and Turkey, Denmark jointly with Sweden and Turkey, France and Libya, Germany and Nigeria, Greece and Turkey, the Netherlands and Indonesia, the Netherlands and Vietnam, Spain and Libya, respectively, do not include relevant standard clauses jointly laid down by the Member States and the Council. All those agreement are covered by the respective horizontal agreements under negotiation between the European Union and the respective third countries which contain the standard clauses. The Commission concludes that, upon conclusion of the relevant horizontal agreements, the standard clauses in those agreements will supersede the relevant provisions in the aforementioned bilateral agreements. The Commission should therefore authorise the provisional application of the aforementioned bilateral agreements, as listed in Annex II, until the horizontal agreement between the European Union and the third country concerned is concluded, whereupon the Member States may also conclude their respective agreements.

9) The agreement between Hungary and Egypt does include the relevant standard clauses jointly laid down by the Member States and the Council with some deviations. The Commission concludes that these deviations are compatible with the object and purpose of the European Union common transport policy. However, the agreement contains provisions not compatible with the Article 101 of the TFEU. The agreement is covered by the horizontal agreement under negotiation between the European Union and Egypt, which contains provisions addressing the anti-competitive behaviour. The Commission concludes that, upon conclusion of the horizontal agreement, the relevant provisions in this agreement will supersede the anti-competitive provisions in the bilateral agreement. The Commission should therefore authorise the provisional application of the aforementioned bilateral agreement, as listed in Annex III, until the horizontal agreement is concluded, whereupon the Member State may also conclude the agreement.

10) The agreements between Bulgaria and Turkey, Czech Republic and Vietnam, Finland and Turkey, Portugal and Turkey, Spain and Egypt, respectively, do not include relevant standard clauses jointly laid down by the Member States and the Council and they contain provisions not compatible with the Article 101 of the TFEU. All those agreement are covered by the respective horizontal agreements under negotiation between the European Union and the respective third countries which contain the standard clauses and the provisions addressing the anti-competitive behaviour. The Commission concludes that, upon conclusion of the relevant horizontal agreements, the standard clauses and the anti-competitive provisions in those agreements will supersede the relevant provisions in the bilateral agreements. The Commission should therefore authorise the provisional application of the aforementioned bilateral agreements, as listed in Annex III, until the horizontal agreement between the European Union and the third country concerned is concluded, whereupon the Member States may also conclude their respective agreements.

11) The agreement between Italy and Brazil, as listed in Annex I, does include all relevant standard clauses jointly laid down by the Member States and the Council. The Commission should therefore authorise its conclusion. In the meantime the agreement may be applied provisionally.

12) The agreements between Austria and Ukraine, Greece and Ukraine, Italy and Ukraine, Romania and Israel, Slovak Republic and Ukraine, respectively, do include all relevant standard clauses jointly laid down by the Member States and the Council, while the agreement between Greece an Israel includes the relevant standard clauses with some deviations. The Commission concludes that these deviations are compatible with the object and purpose of the European Union common transport policy. All those agreements have been brought into conformity with EU law under the horizontal agreements concluded by the EU with the respective third country, respectively, which have in the meantime entered into force. The Commission should therefore authorise the conclusion of the aforementioned bilateral agreements, as listed in Annex I. In the meantime the agreements may be applied provisionally.

13) The agreement between Latvia and Lebanon contains designation and revocation clauses which deviate from the standard clauses as they do not refer to EFTA Member States in the provisions on the ownership and control of the EU carrier. The Commission considers that such provisions would allow Lebanon to restrict the possibilities for EU carriers owned or effectively controlled by EFTA Member States and/or by nationals of such states to be designated, and therefore can give rise to discrimination against such carriers. For these reasons, the Commission considers that such designation provisions cannot be considered compatible with the object and purpose of the EU’s common transport policy. The agreement is not covered by the "horizontal" agreement. The Commission concludes that, upon conclusion of a "comprehensive" agreement, all bilateral agreements will be superseded. The Commission should therefore authorise the provisional application of the aforementioned bilateral agreement, as listed in Annex IV, pending the provisional application of the "comprehensive" agreement with Lebanon, whereupon the Member State's agreement will become obsolete. Should the European Union fail to reach such "comprehensive agreement", the Member State may also conclude the agreement provided that in the meantime it is brought into conformity with Article 49 of the Treaty

14) The EU has signed "comprehensive" agreements with Georgia and Jordan, respectively. The agreements negotiated with Georgia by Bulgaria, Czech Republic and Italy, respectively, and with Jordan by Austria, Bulgaria, Cyprus, Italy, Portugal, Slovak Republic and Spain, respectively, are in conformity with EU law. The agreement between Latvia and Jordan contains designation and revocation clauses with some deviations which are incompatible with the object and purpose of the EU’s common transport policy, as they do not refer to EFTA Member States in the provisions on the ownership and control of the EU carrier. However, the "comprehensive" agreements will supersede all Member States bilateral agreements, as from the date of their provisional application. The Commission should therefore authorise the provisional application of the aforementioned bilateral agreements, as listed in Annex V, until the “comprehensive” agreements with Georgia and Jordan, respectively, are provisionally applied, whereupon the Member States' agreements will become obsolete.

15) The measures provided for in this Decision are in accordance with the opinion of the Committee established by Article 25 of Regulation (EC) No 1008/2008[2].

HAS ADOPTED THIS DECISION:

Article 1

The conclusion of the bilateral agreements listed in Annex I is hereby authorised. In the meantime the agreements can be applied provisionally.

Article 2

The provisional application of each of the bilateral agreements listed in Annexes II and III is hereby authorised pending the conclusion of the “horizontal” agreement by the European Union and the third countries concerned, whereupon the Member State may also conclude the agreement.

Article 3

The provisional application of the bilateral agreement listed in Annex IV is hereby authorised pending the provisional application of the “comprehensive” agreement between the European Union and the third country concerned, whereupon the Member State's agreement will become obsolete. Should the European Union fail to reach such a "comprehensive agreement", the Member State may also conclude the agreement provided that in the meantime it is brought into conformity with Article 49 of the Treaty.

Article 4

The provisional application of each of the bilateral agreements listed in Annex V is hereby authorised pending the provisional application of the “comprehensive” agreement signed by the European Union and the third countries concerned, whereupon the Member States' agreement will become obsolete.

Article 5

This Decision is addressed to the Republic of Austria, the Republic of Bulgaria, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, the Italian Republic, the Republic of Latvia, the Kingdom of Netherlands, the Republic of Portugal, Romania, the Slovak Republic, the Kingdom of Spain and the Kingdom of Sweden.

Done at Brussels,

For the Commission

Siim KALLAS

Vice-President of the Commission

ANNEX I

|Member State |Third Country |Agreement |Status of the EU "comprehensive" negotiations |Status of the "horizontal" agreement |

|Republic of Austria |Ukraine |Memorandum of Understanding done at Kiev on 10 December 2010 |Comprehensive negotiations opened 3 December 2007 |Horizontal Agreement entered into force on 13 October |

| | | | |2006 |

|Republic of Cyprus |Egypt |Memorandum of Understanding done at Cairo on 2 February 2010 |Not applicable |Draft Horizontal Agreement under negotiation since 17 |

| | | | |January 2007 |

|Kingdom of Denmark/Kingdom of |China |Agreed Minutes and Air Services Agreement initialled at Oslo |Not applicable |Draft Horizontal Agreement under negotiation since 8 |

|Sweden | |on 12 March 2010 | |November 2005 |

|Hellenic Republic |Israel |Agreed Minutes and Air Services Agreement initialled at Tel |Comprehensive negotiations opened on 29 October |Horizontal Agreement entered into force on 4 November |

| | |Aviv on 15 April 2010 |2008 |2009 |

|Hellenic Republic |Ukraine |Memorandum of Understanding and Air Services Agreement |Comprehensive negotiations opened 3 December 2007 |Horizontal Agreement entered into force on 13 October |

| | |initialled at Kiev on 2 July 2009 | |2006 |

|Italian Republic |Brazil |Memorandum of Understanding done by correspondence on 25 |Comprehensive negotiations opened on 15 October |Horizontal Agreement signed on 14 July 2010 |

| | |November 2010 |2010 | |

|Italian Republic |Ukraine |Exchange of letters of 30 July 2009 |Comprehensive negotiations opened 3 December 2007 |Horizontal Agreement entered into force on 13 October |

| | | | |2006 |

|Kingdom of the Netherlands |Dominican Republic |Memorandum of Understanding and Air Services Agreement |Not applicable |Draft Horizontal Agreement under negotiation since 12 |

| | |initialled at Santo Domingo on 16 November 2010 | |September 2006 |

|Romania |Israel |Agreed Minutes done at Bucharest on 3 June 2010 |Comprehensive negotiations opened on 29 October |Horizontal Agreement entered into force on 4 November |

| | | |2008 |2009 |

|Slovak Republic |China |Memorandum of Understanding and Air Services Agreement |Not applicable |Draft Horizontal Agreement under negotiation since 8 |

| | |initialled at Beijing on 12 August 2010 | |November 2005 |

|Slovak Republic |Ukraine |Protocol done by correspondence on 13 March 2010 |Comprehensive negotiations opened 3 December 2007 |Horizontal Agreement entered into force on 13 October |

| | | | |2006 |

|Kingdom of Spain |Kuwait |Memorandum of Understanding done at Kuwait on 18 February 2009|Not applicable |Draft Horizontal Agreement under negotiation since 2 |

| | | | |March 2009 |

|Kingdom of Spain |Turkey |Memorandum of Understanding done at Madrid on 27 May 2010 |Not applicable |Horizontal Agreement initialled on 25 March 2010 |

ANNEX II

|Member State |Third Country |Agreement |Provisions contrary to Article 49 of the TFEU |Status of EU negotiations |

|Republic of Austria |Libya |Memorandum of Understanding and Air Services |Articles 3 and 4 of the Air Services Agreement done at Tripoli 13 |Draft Horizontal Agreement under negotiation |

| | |Agreement initialled at Tripoli on 11 May 2010 |May 1984 |since 29 April 2009 |

|Republic of Austria |Turkey |Memorandum of Understanding done at Istanbul on|Articles 3 and 4 of the Air Services Agreement done at Vienna on |Horizontal Agreement initialled on 25 March |

| | |30 September 2009 |31 October 1967 |2010 |

|Kingdom of Denmark/ Kingdom |Turkey |Agreed Minutes and Memorandum of Understanding |Articles 3 and 4 of the Air Services Agreement done at Ankara 13 |Horizontal Agreement initialled on 25 March |

|of Sweden | |initialled at Oslo on 6 November 2009 |November 1970 |2010 |

|French Republic |Libya |Memorandum of Understanding and Air Services |Articles 4 and 5 of the Air Services Agreement done at Paris on 24|Draft Horizontal Agreement under negotiation |

| | |Agreement initialled at Tripoli on 25 March |May 1974 |since 29 April 2009 |

| | |2009 | | |

|Federal Republic of Germany |Nigeria |Agreed Record and Air Services Agreement |Articles 3 and 5 of the Air Services Agreement done at Bonne 15 |Draft Horizontal Agreement under negotiation |

| | |initialled at Bonn on 26 February 2010 |October 1994 |since 22 October 2010 |

|Hellenic Republic |Turkey |Memorandum of Understanding done at Ankara on |Article 6 of the Air Services Agreement done at Ankara on 22 July |Horizontal Agreement initialled on 25 March |

| | |12 June 2009 |1947 |2010 |

|Kingdom of the Netherlands |Indonesia |Memorandum of Understanding done at The Hague |Articles 3 and 4 of the Air Services Agreement done at The Hague |Horizontal Agreement initialled on 17 August |

| | |on 19 August 2009 |on 23 November 1990 |2009 |

|Kingdom of the Netherlands |Vietnam |Confidential Memorandum of Understanding done |Articles 4 and 5 of the Air Services Agreement done at Hanoi on 1 |Horizontal Agreement signed on 4 October 2010 |

| | |at Hanoi on 26 February 2010 |October 1993 | |

|Kingdom of Spain |Libya |Memorandum of Understanding and Air Services |Articles 3 and 4 of the Air Transport Agreement done at Madrid on |Draft Horizontal Agreement under negotiation |

| | |Agreement initialled at Tripoli on 30 June 2010|6 November 1979 |since 29 April 2009 |

ANNEX III

|Member State |Third Country |Agreement |Provisions contrary to Article 49 of the TFEU |Provisions contrary to Article 101 of the |Status of EU negotiations |

| | | | |TFEU | |

|Republic of Bulgaria |Turkey |Memorandum of Understanding done at Ankara on |Articles 3 and 4 of the Air Services Agreement done|Article 12 of the Air Services Agreement |Horizontal Agreement initialled on 25 |

| | |28 January 2010 |at Ankara on 21 April 2004 |done at Ankara on 21 April 2004 |March 2010 |

|Czech Republic |Vietnam |Memorandum of Understanding done at Istanbul |Articles 4 and 5 of the Air Services Agreement done|Article 7of the Air Services Agreement done |Horizontal Agreement signed on 4 October |

| | |on 30 September 2009 |at Prague on 23 May 1997 |at Prague on 23 May 1997 |2010 |

|Republic of Finland |Turkey |Memorandum of Understanding done at Istanbul |Articles 3 and 4 of the Air Services Agreement done|Article 10 of the Air Services Agreement |Horizontal Agreement initialled on 25 |

| | |on 1 October 2009 |at Ankara on 25 March 1975 |done at Ankara on 25 March 1975 |March 2010 |

|Republic of Hungary |Egypt |Agreed Minutes and Air Services Agreement |Not applicable |Article 5 of the Air Services Agreement done|Draft Horizontal Agreement under |

| | |initialled at Budapest on 13 February 2009 | |at Cairo on 20 March 1958 |negotiation since 17 January 2007 |

|Republic of Portugal |Turkey |Agreed Records done at Istanbul on 30 |Articles 3 and 4 of the Air Services Agreement done|Article 13 of the Air Services Agreement |Horizontal Agreement initialled on 25 |

| | |September 2009 |at Lisbon on 13 March 1992 |done at Lisbon on 13 March 1992 |March 2010 |

|Kingdom of Spain |Egypt |Memorandum of Understanding done at Madrid on |Articles III and IV of the Air Services Agreement |Article VI of the Air Services Agreement |Draft Horizontal Agreement under |

| | |18 March 2009 |done at Cairo on 12 March 1991 |done at Cairo on 12 March 1991 |negotiation since 17 January 2007 |

ANNEX IV

|Member State |Third Country |Agreement |Provisions contrary to Article 49 of the TFEU |Status of EU negotiations |

|Republic of Latvia |Lebanon |Air Services Agreement initialled at Riga on 24 March 2010 |Articles 3 and 4 of the Air Services Agreement|Comprehensive negotiations opened on 20 |

| | | |initialled at Riga on 24 March 2010 |November 2009 |

ANNEX V

|Member State |Third Country |Agreement |Status of the EU "comprehensive" negotiations |Status of the "horizontal" agreement |

|Republic of Austria |Jordan |Memorandum of Understanding done at Amman on 13 May 2009 |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | | | |2009 |

|Republic of Bulgaria |Georgia |Agreed Minutes and Air Services Agreement initialled at |Comprehensive Agreement signed on 2 December 2010 |Horizontal Agreement entered into force on |

| | |Tbilisi on 9 November 2010 | |25 February 2008 |

|Republic of Bulgaria |Jordan |Memorandum of Understanding and Air Services Agreement |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | |initialled at Amman on 31 March 2010 | |2009 |

|Republic of Cyprus |Jordan |Memorandum of Understanding and Air Services Agreement |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | |initialled at Amman on 25 March 2010 | |2009 |

|Czech Republic |Georgia |Agreed Minutes and Air Services Agreement initialled at |Comprehensive Agreement signed on 2 December 2010 |Horizontal Agreement entered into force on |

| | |Istanbul on 1 October 2009 | |25 February 2008 |

|Italian Republic |Georgia |Exchange of letters of 13 October 2009 |Comprehensive Agreement signed on 2 December 2010 |Horizontal Agreement entered into force on |

| | | | |25 February 2008 |

|Italian Republic |Jordan |Exchange of letters of 23 July 2009 |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | | | |2009 |

|Republic of Latvia |Jordan |Air Services Agreement initialled at Amman on 29 October |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | |2009 | |2009 |

|Republic of Portugal |Jordan |Agreed Record of Discussions done at Istanbul on 30 |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | |September 2009 | |2009 |

|Slovak Republic |Jordan |Memorandum of Understanding and Air Services Agreement |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | |initialled at Bratislava on 5 January 2010 | |2009 |

|Kingdom of Spain |Jordan |Memorandum of Understanding done at Istanbul on 30 |Comprehensive Agreement signed on 15 December 2010 |Horizontal Agreement concluded on 24 June |

| | |September 2009 | |2009 |

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[1] OJ L 157, 30.4.2004, p.7.

[2] OJ L 293, 31.10.2008, p. 3.

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