Explanatory Memorandum to COM(2009)412 - Conclusion of the Agreement on certain aspects of air services between the EC and Brazil - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2009)412 - Conclusion of the Agreement on certain aspects of air services between the EC and Brazil. |
|---|---|
| source | COM(2009)412  |
| date | 03-08-2009 |
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 granted the Commission a mandate to open negotiations with third countries on the replacement of certain provisions in existing agreements with a Community agreement i (the “horizontal mandate”). The objectives of such agreements are to give all EU air carriers non-discriminatory access to routes between the Community and third countries, and to bring bilateral air service agreements between Member States and third countries in line with Community law.
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 Community law. 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 Community carriers established in the territory of a Member State but owned and controlled by nationals of other Member States. This is contrary to Article 43 of the Treaty 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. There are further issues, such as aviation fuel taxation, where compliance with Community law should be ensured through amending or complementing existing provisions in bilateral air services agreements between Member States and third countries.
Existing provisions in the area of the proposal The provisions of the Agreement supersede or complement the existing provisions in the fourteen bilateral air services agreements between Member States and the Federative Republic of Brazil.
Consistency with the other policies and objectives of the Union The Agreement will serve a fundamental objective of the Community external aviation policy by bringing existing bilateral air services agreements in line with Community law.
2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT
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.
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 Brazil that replaces certain provisions in the existing bilateral air services agreements between Member States and the Federative Republic of Brazil. Article 2 of the Agreement replaces the traditional designation clauses with a Community designation clause, permitting all Community carriers to benefit from the right of establishment. Articles 4 and 5 of the Agreement address two types of clauses concerning matters of Community competence. Article 4 deals with the taxation of aviation fuel, a matter which has been harmonised by Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity, and in particular Article 14 i thereof. Article 5 resolves potential conflicts with the EC competition rules.
Legal basis EC Treaty Art. 80 i, 300 i
Subsidiarity principle The proposal is entirely based on the “horizontal mandate” granted by the Council taking into account the issues covered by Community law 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 Community law.
Choice of instruments
The Agreement between the Community and the Federative Republic of Brazil is the most efficient instrument to bring all existing bilateral air services agreements between Member States and the Federative Republic of Brazil into conformity with Community law.
The proposal has no implication for the Community budget.
5. ADDITIONAL INFORMATION
Simplification
The proposal provides for simplification of legislation.
The relevant provisions of bilateral air services agreements between Member States and the Federative Republic of Brazil will be superseded or complemented by provisions in one single Community agreement.
Detailed explanation of the proposal In accordance with the standard procedure for the signature and conclusion of international agreements, the Council is asked to approve the decisions on the signature and on the conclusion of the Agreement on certain aspects of air services between the European Community and the Federative Republic of Brazil and to designate the persons authorised to sign the Agreement on behalf of the Community.