ext/celex/31987D0602

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 Whereas air carriers should be free from any State of their carriers in a bilateral relationship would otherwise obligation to enter into agreements with other air carriers fall below a given percentage ; 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 ,

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 which it is registered ; between Member States which they do not already 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 principal place of business in the Community in the joint declaration made by the Foreign Ministers of and has been providing scheduled or the Kingdom of Spain and the United Kingdom on 2 non-scheduled air services in the Community December 1987 have come into operation . The during the 12 months prior to adoption of this Governments of Spain and the United Kingdom will so 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 ;

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(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 previous corresponding seasons by the air carrier(s) of the ( 1 ) according to a published timetable , or Member State which has (have) reduced its (their) (2 ) with flights so regular or frequent that they capacity . constitute a recognizably systematic series ;

4 . Adjustments within the 55% : 45% range or the (h ) flight means a departure from a specified airport 60 % : 40 % range, as appropriate , shall be permissible in towards a specified destination ; 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 .

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 , Fifth-freedom rights Billund , Sonderborg, 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

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 Member States shall not require air carriers to enter into preliminary of a service to , its State of registration; 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 1 . After consultation with the Commission , Member the route concerned may be used for the carriage of 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 2 . Member States shall communicate to the Commission Portugal may each select one category 1 , airport in each of all the laws , regulations and administrative provisions the other Member States and may each designate an air which they adopt for the application of this Decision . carrier to carry fifth-freedom traffic on services between 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 collection of information for the report referred to in registered in Spain may not claim fifth-freedom rights on 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 The Council shall decide on the revision of this Decision by be obliged to authorize a scheduled air service in cases 30 June 1990 at the latest , on the basis of a Commission where : 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

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 .

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 .

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 .